This week, the Eleventh Circuit held that the rule making the federal Sex Offender Registration and Notification Act (SORNA) retroactive was valid. In passing the rule, the Attorney General did not provide a notice and comment period as required by the Administrative Procedure Act (APA). The Court held, over Judge Wilson’s strong opinion concurring only in the result, that the Attorney General had “good cause” to skip the mandatory notice and comment procedures.
This issue is the subject of a Circuit Court split. The Fourth Circuit has held that the Attorney General complied with the APA, whereas the Sixth Circuit concluded that the retroactivity rule is invalid for failure to show good cause.
The good cause exceptions are contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3). These exceptions allow the agency to skip notice and comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The exception must be read narrowly.
The AG argued that the rule would (1) provide guidance to eliminate uncertainty and (2) prevent the delay in registration of sex offenders who would evade during the notice and comment period. The Court held that the guidance rationale alone may not have established good cause, but counted “to some extent” because people needed to know whether to register. As for the public safety rationale, the Court held that emergency situations are not necessary for the good cause exception. The Court held that SORNA’s increased punishment over existing laws justified bypassing the APA’s notice and comment requirement.
Judge Wilson concurred in the result only. In his well-reasoned opinion, he explained that the delay entailed in a notice and comment period would not have caused any emergency or threat of real harm. Federal law already provided for punishment for failure to register and state law provided for punishment as harsh as that provided by SORNA. He concurred in the result due to harmless error. His concluding paragraph sums up our feelings on the case:
I am troubled by the precedent the majority opinion sets today. It is now easier for an administrative agency to avoid notice and comment in our circuit by claiming an emergency or threat of serious harm, whether or not the facts support one. As Dean’s counsel pointed out at oral argument, today’s holding will apply to APA appeals unrelated to SORNA.