would call the case with this warning of united states of america versus village of reynolds before i begin argument though i cannot help but reflect and make comment on something richard fisher just brought to my attention having tuned in late last evening to the steelers football game i missed a pre game ceremony which judge fisher notwithstanding the at the serial nature of the proceeding into which we will now move because attorney freeland is very special and we take note of that and please please do note that it was judge fisher who recognized last night and i will make a point of noting that it was judge fisher who recognized him from the sideline i missed it because i also was working please the court my name is lisa friel and i'm here on behalf issue is one of good cars for failure to comply with the procedural requirements that the only a clickable standard of review is arbitrary and capricious and they gaze that argument on the fact that good cause is an inherently factual inquiry relying on agency deference agency expertise i'm sorry and that great deference in that area is required i would like to point out at the outset that the good cause invocation in this case is neither factual nor did it involve an exercise of agency expertise that is with respect to the reasons that were offered for good cause the attorney general otherwise not an observance with procedures required by law and i do want to point now when you're looking at that kind of laundry list of potential standards of review there is a case that was cited in the government's brief with respect to harmless error not statute of review mobil oil the department of energy it's the government's brief at nine and i think it passed explains why in situations like the one we're dealing with given the laundry list of choices why the arbitrary select one standard of review over the other but as set forth in my supplemental brief and page nine there are about a half dozen cases of this court  that have addressed the issue of good cause for failure to bypass the a p s procedural requirements and i'm sorry your honor it's page nine of my supplemental reply on setting forth those d c for example have have express lee applied the without observance of procedure of law are standard although elsewhere in their opinions they are quite aware that arbitrary and capricious was among the choices they just selected not to apply it to the good cause evaluation what should we take relative to standard of review from our schweiker decision it wow i did not read it it seems to suggest a mixed standard well i don't agree that it's a mixed standard and i believe that it applies both standards and as i think about this your honor as a litigant and you look at that you look at seven o six in some of these cases it may very well depends on what the parties assert if a party comes to the court in the first instance and decides to say i'm challenging this is agency action because i believe that it was a decision that was made without observance of procedure required by law that me be the issue that the court goes on to resolve if politiken comes forward and says i believe the decision was arbitrary and capricious the courts are only dealing with what the litigants put before them issues for the court and raised both arbitrary and capricious and without observance of procedure required by law and that's why as you read the court's decisions both the district court decision and the third circuit's decision th both before we move on let me ask my colleagues if they have any questions relative to standard or view alone before we move on to other issues  question and i think that if arbitrary and capricious were to apply and i think i see it a little bit differently but if arbitrary and capricious were to apply and you were looking at a sliding scale there seems to be supporting the cases that more deference would be required where agency expertise with respect to facts that are really primarily within the province of the agency are involved as opposed to where we're really dealing with legal determination written response to that question i guess the reason i see it differently is i see that you would actually in an expertise factual situation select arbitrary and capricious and in a different situation select another hour and i want to just if i can very briefly go back to where i started and explain to you what mobile oil said because i really do think that it explains this mobile oil cited seven zero six all of the different standards it then explained what arbitrary means in mobile oil again is governments brief at nine although that's in its harmless error section it did not address this case with respect to standard or review but this is what the court says and eight after setting forth the statute and a definition of arbitrary appreciates it says an agency's procedural compliance with statutory norms however is subject to closer scrutiny that is then arbitrary they're reviewing court having confidence in this area must satisfy itself that there was pursued her integrity in the promise of the regulation and what the court is saying is that and it's pertinent to your question judge  is that where the reviewing court has the competence do you assess under a less deferential standard the decisions of the agency it is not required to show that kind of deference  situations where the court does not have that particular competence that a more deferential standard of review might be appropriate let's just court but let's let's given the amount of time we have remaining because there are ten o'clock arguments which are placing some pressure on us here i understand your earlier move to whether or not it matters what standard of review applies or who asked the question another way what if in fact arbitrary and capricious is the appropriate standard of review do you lose no your honor and actually i mean this pardon me that understands that because of the lack of clarity in this area that this court might want to once and for all say what the standard of review is that really under the facts of this case it's not necessary because as other courts have recognized the attorney exhaustively discussed in the cases and in the briefs that i want to point to a few that i think explain past why the government loses even under an arbitrary and capricious standard the most notable is that there's nothing in the administrative record to support a rational connection between the facts in the record and the decision to determine that february twenty eighth two thousand and seven was these date upon which no further delay could be countenanced the attorney general himself delayed seven months from the passage of sor now and then decided out of the blue and without explanation that marry twenty eighth not thirty days later which would allow time for notice and comment on publication that seven months was the period of delay that could be countenanced and not eight and that in and of itself i would say that one reason general's decision any better whether or not the question of retroactivity was yes or no well your honor i think the same way that it does in every situation where an agency follows the administrative procedures act requirements it gives interested parties an ability to explain some of the reasons about how they did it how the agency should move forward and in this case as the supreme court noted and other cases also noted there were substantial nuances with hal and let me just answer specifically with what i think could have happened if the interested parties had come forward and said look as the supreme court recognize there are complexities and complications with how we're going to get people to register under sora the attorney general could have said i specify in that soreness to acquire all printouts and offenders and so we can figure those things out people are required to register under their state systems that's something that the attorney general could have done in thirty days taking into account the comments and the problems and then taken the time thereafter to figure out precisely how proposing guidelines and i think that's an important point also judge for sure because the attorney general's actions in february of two thousand and seven although it purported immediately effective it did not and could not until the guidelines were there after promulgated giving people a way to actually register and comply with  i take your question partly to be about good cause and partly to be about harmless error and i just in case i don't have the time i wanted let's i do want to move to harmless error but let's make sure that we've exhausted questions on cause a good cause first of all right i was in there and i think you answered my follow up question and that you would you would proffer the same answer as to a question about harmless there yeah and more specifically the  kind of nothing would have changed the attitude about harmless error is just not borne out in the law it if if the harmless error analysis were to be that the comments would not have in fact changed anything no agency but i can't i need i need to stop you there ms freeland not your lies of the like but because the question i have really is a question that i think requires resolution before we go on to talk specifically about harmless error and it's important question to me and one that i don't believe the parties have touched on and frankly i've not seen it addressed in any of the cases i've looked at and i think i've looked at all the cases both of you have given us this is an unusual case in my experience and and based on my research it's unusual in the sense that one could look at it is an a p a case or one could look at it is a criminal case doesn't the government have the burden that demonstrating no harm was no yes now i think your honor it isn't addressing the grief that i but i am prepared to answer that question now because i just looked at it this weekend and of course if you view this as a criminal case then the government does bear the burden but there's support for that even in the administrative law context initially harmless error analysis has not been applied by this court or by the supreme court and some courts have found that even where there is a complete absence the d c circuit for example has found that even where there's a complete absence there may be a requirement of a limited showing of prejudice under seventy six but the courts have also sad that where there is a complete failure and where there is  the expertise of the agency has not been involved that the burden is not on the person challenging the agency's actions but it's on the agency to show that there is certainty and that it is clear that the comments could have no had no impact on open minded agency architect or right not is real and since we are now beyond the and i'll try to answer that burning question week was united states versus parks a person case from october published in that case says among other things that the sworn or regime they read the legislation in the registration is a civil regime eight seems to contemplate maybe a dual standard or who i call it a bifocal standard or pretty as opposed to mix right as opposed to makes and what i mean by that is this this is the principle i think that you can apply if an agency has discretion to take a certain action and engages in some fact finding in the exercise that discretion that i think under a trike or arbitrary arbitrariness of review applies if the agency doesn't have discretion because the world requires exacting standard applicable term is whether an agency has failed to comply with the procedural requirements for its action contrasts with the deferential standard applicable to subsume the challenges to agency action exacting standard relative wire and we know from all the cases without reciting them all the extent to which we have been told that the good cause exception is to be looked at narrow and it's not to be invoked with any great frequency what impact should that have on our determination as to what is this  arbitrariness and abuse of discretion for my purposes i would settle for an abuse of discretion standard of review of this it to the extent that that's not even as deferential as arbitrariness because i recognize that this might be this is a fact finding made within the promulgated of rule with such a vague notice that the parties had no idea their rights were being affected now obviously nothing in the a p a permits you to promulgating vaguely notice i'm sorry gave such vague notice nothing in the a p a allows you to do that so happen here can we reconcile american insurance deal with i think so to the extent that each of those both of those cases involve an invocation of good cause but in american iron the agency essentially deprive the parties of all notice that under that circumstance i think it's without observance of procedure for the a p it doesn't give an agency discretion not to get parties notice and sharon steel it gave because it articulated because it gave notice but then by by asking for comments on a final rule that was ten amount to saying we're not really interested in your comments none of that happened in her and none of that by the way is happening in my case  the only other case that mr reynolds cites that it needs some pause frankly was the mack truck case out of the d c circuit where it said evidently we're not required to give any deference here's the problem as i see it with that he's naturally overlooked s e c versus cherry that's the case that says one thousand nine hundred census report says essentially what you have to do when you're at value waiting agency action is look only at the reasons the agency gives courts have applied that principle to the good cause articulation the national customs of brokers and forgers cases i cited page twenty five of my does that when you look back at it generally it says the reason we do that is that disciplines are deference to what has happened in other words we know what we're differing to we're different to the agency and not some post hoc rationalization where you look back at national customs workers and borders the court then goes on to say will apply arbitrary and capricious review to an invocation of because that's federal circuit ninety five think under whatever standard review the court applies it doesn't really matter because i think even if you apply without observance of procedure which would essentially be a very noble review then i think the court's assessment of good cause just sort of visceral notion either the court finds and believes that the the attorney general's articulation was good enough this really or it doesn't and if a court thinks one thing or another i doubt i could talk it out of that one thing we fought so hard for it is i can't proceed in the future whether it may matter to other agency action and so since that's this is kind of fall into me in this case i feel like i have to at least put the cases out there whatever the court decides that decided the course but but in this case i not essential literally say that our attorney general with a hypocrite for failing to act sooner in that case and it's just simply unfair as i said in my brief the attorney general initially was of the impression that sort of the statute applied to be an ac offenders in and of its own force it was only when he started hearing arguments that it is true is it not if the attorney general had in the absence taken the same amount of time to promote it wouldn't have been anything in place upon which mr reynolds could have been processed well that's right that's just shows the wisdom of why of the age of promulgating the interim role the first place because had this case gone up to say the supreme time congress acts in some remedial way they intend to address a problem by trying to will know you rate the problem by trying to limit its occurrence to provide remedies for criminal or otherwise for those infractions that occur and create the wrongs so if cause is always the fact that these wrongs for limiting principle can we apply that to provide an excuse to forgo not notice and comment every time you got a new piece of legislation theoretically it would except i would focus the court on the nature of the wrongs that issue here this is a public safety issue that's why this is you know the sort of regime is a civil regime with criminal penalties but so is the e p a so is the f a a those are those are public safety at heart regimes so that's why i think what the a g did was support if you give him thirty days notice the the rule would have been in effect at the time mr reynolds failed to register in september because this would think in february and if you waited thirty years of the march and would be in place and he would have been required to register but more important you know a fact you argued that you needed the good guys if the attorney general didn't promulgated rule without notice that people would go on registered isn't that in air because at that time people like mr reynolds were still required to register under their home states actions in states like missouri which he had registered right but the issue your honour's then he was also required of that new jersey statute to notify them if you had moved to another state but so where's the harm but under the patchwork that preceded soreness not all states required sex offenders to register when they showed up from different states so as to mr reynolds wrong or right he was required to register commentaries and keep in mind your honor i mean the attorney general entertain comments on the on the interim rule until december twenty ninth two thousand and ten he considered this very carefully considered it for years guidelines themselves preceding the smart guidelines to turn in general received two months of notice and comment so he got a total of three months of notice and comment that's three times as much processes as this class of you can deserve so it is an important point your you said in response to my question that there was a difference i recollect all states have statutes all state statutes did in fact require notice to that's right but they were leaving the state going elsewhere and i don't know the answer but let me give you an example here in pennsylvania up until at least march or april this year there was such a statute and the problem was because of a drafting year in the statute someone forgot to put a penalty so the attorney general of this state had to be dismissing a bunch of state level indictments for sex offenders crossing state lines sure it was designed to close loopholes accidental loopholes like that and sometimes just requiring different amounts of data by requiring a uniform amount of data and in uniform notice but it seems to me the a monster yeah factors in to it good cause equation determine that there was no good cause here to accept from those comments fireman's what's the legal basis then remains if any for mr reynolds conviction if there's no good cut the removal is the legal base their rules the legal basis but he still would need to show harmlessness at that point and that burden would still be his  after forty thing by a full panel is is the johnson case out of the fifth circuit it's also the only case that's discussed it after the eighty promulgated the final rule where he addressed all of the comments it received in response to the interim all that's this differs from criminal rules but again if i'm right about this being a civil regime i think that that applies in text directly the burden of proof here i mean i would say this even if the court were to give me the burden of proof for the sake of argument i'd be happy to take the ultimate burden of persuasion but he's got to bear the burden of production and what i mean by that is this under johnson the court says the defendant has to show what he would of art and argue what difference it might have made i didn't kick about him filing a supplemental reply because i wanted to hear the answer that question as of today i still don't know the answer he's not saying what he would have argued if he'd been given the chance and i know mr reynolds says that the supreme court in the third never considered the issue this courts only consider the issue in sharon steel which i distinguished already and a case called mobile chemical where the regulation it issued violated the enabling statute and that's not what happened here so the last bit would like to point out is when it's because these are very carefully chosen words what he doesn't notice in the past ten years there have been i found four other cases besides johnson which have applied this standard of review to to a failure to articulate good cause and they essentially put the burden on the defendants to say what they would have said and why they would have said it and what difference it might have made and those cases are in addition to johnson there is miami dade county agency decision making will be wiser and more insightful and also it will be more there will be a benefit from having this profession and who are interested in this if you don't have notice and comment there's an image to the public interest there is harm well in this case your honor there was prior notice income that's what makes this case so unusual the a g got to hear what the public would say about this through the arguments is the rule of prejudicial error because when i read that seven o six i thought that's funny that's that definite article sounds like they're talking about something specific and sure enough under shinseki beast sanders it cites twenty eight u s c twenty one eleven and that will says we ignore errors that don't have an effect on the substantial rights of the parties so this is a long way around of saying that i understand your author's point that there is some inherent public value to to pretty publication notic really yes your honor i guess i'll start i'm not going to spend the time to give you citations on burden of proof if the court wants not wish ok but i do want to make a couple of points about harmless error first of all the points made in the briefs that it's just simply is not so that the attorney general in a rule addressed the arguments that could have been made in a notice and comment period the issues that were commentary to the interim rule with the later discussion in the commentary to the final rule wearing a tense although very vaguely to address such issues to see the difference and to see that the interim rule just simply did not touch upon those issues it is true that this i mean mr cook has said that he agrees that this court and supreme court have never addressed or applied harmless error where there's a complete failure to comply with the a and he suggests that it's because it never faced the issue well every time these courts found an error of law and bypassed if you will harmless error analysis it may not have expressly said we're not applying it but the fact that it didn't apply it speaks for itself in terms of the burden of production the arguments are in the record they were made in the supreme court they were made by groups representing interested parties before the attorney general when their finally was notice and comment period and the supreme court in reynolds has recognized that there certainly were nuances that the congress was fully aware of when it passed lorna that left to the attorney general to determine this weekend mr copus mentioned that johnson is the only case that was decided after the g promulgated the final rule and it applied harmless error i'd like to note that the district court for the district of vermont is the only case to have addressed this issue after the supreme court's decision in reynolds and that decision was issued on august twenty ninth two thousand and twelve and it was just last week that the government withdrew its appeal before the second circuit the second circuit granted the government's motion to withdraw an appeal of the very issues that we're talking about here and i will follow up this argument with a twenty eight j letter that identifies the mullins case and the issues that were addressed there so i said to say supreme court's decision in reynolds substantially change the landscape with respect to a great cause when the supreme court recognized that the issues that the very dangerous and harms that the attorney general found required needed action are the same ones that the government was relying on to argue that the satch it meant something else in the supreme court said that those arguments were overstated and in fact congress understood that de lay was and was a necessary part of this team and that immediacy was not the primary goal all right at the time expired for rebuttal a little while ago so we will be to bring these proceedings to confusion let me first compliment both counsel on their advocacy both the supplemental briefs that have been very helpful and the argument the swarming that has been very helpful those arguments the reduction of an issue or two  which we did not have before or really did not hear about before has assured that this was really not deja vu all over again notwithstanding that remained from the supreme court this is an important case and we will take the matter under advisement and i would ask also that we have a transcript of this will argument prepared ask counsel to submit the supplemental memoranda that i referred to before on the burden issue i would request that they be sure no more than no more than seven pages filed ten days out from today or by ten days at them today and with that we will take