United States Court of Appeals

For the Eighth Circuit

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No. 13-1261

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kevin Lamont Brewer

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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 Submitted: April 16, 2014

 Filed: September 10, 2014

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Before WOLLMAN, BYE, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Kevin Brewer was convicted of failing to register as a sex offender under

18 U.S.C. § 2250(a) and sentenced to 18 months in prison and 15 years of supervised

release. Brewer moved to vacate his conviction under 28 U.S.C. § 2255. The district

court denied the motion. Brewer then moved to reconsider and requested a certificate

of appealability. The district court denied Brewer’s motion to reconsider but granted
Brewer a certificate of appealability on two issues. Having jurisdiction under 28

U.S.C. § 1291, we reverse and remand for further proceedings.

I. Background

In 2006, Congress enacted the Sex Offender and Registration Notification Act

(“SORNA”), which established a national registration system for persons convicted

of sex offenses under state and federal laws. 42 U.S.C. §§ 16901–16991. SORNA

“requires those convicted of certain sex crimes to provide state governments with

(and to update) information, such as names and current addresses, for inclusion on

state and federal sex offender registries.” Reynolds v. United States, 132 S. Ct. 975,

978 (2012). Specifically, under SORNA, a person is criminally liable for failure to

register if he (1) is required to register under SORNA; (2) is a sex offender by reason

of a federal conviction or, alternatively, is a person who “travels in interstate or

foreign commerce, or enters or leaves, or resides in, Indian country”; and

(3) “knowingly fails to register or update a registration as required” by SORNA. 

18 U.S.C. § 2250(a). 

SORNA’s registration requirements were not immediately applicable to

persons who, like Brewer, were convicted of a sex offense prior to the enactment of

SORNA. Reynolds, 132 S. Ct. at 978. SORNA mandated that the registration

requirements would not apply to “pre-Act offenders until the Attorney General

specifies that they do apply.” Id.; see also 42 U.S.C. § 16913(d) (granting the

Attorney General rule-making authority regarding applicability). On February 28,

2007, the Attorney General promulgated an Interim Rule that made registration

requirements applicable to all pre-Act offenders. See 72 Fed. Reg. 8894, 8897

(Feb. 28, 2007). The Attorney General did not establish a period for prepromulgation notice and comment and bypassed the 30-day publication requirement

because, he asserted, there was “good cause” to waive those requirements. See 72

Fed. Reg. 8894, 8896–97. Three months later the Attorney General published the

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proposed “SMART” Guidelines to “interpret and implement SORNA.” 72 Fed. Reg.

30,210 (May 30, 2007); see United States v. Knutson, 680 F.3d 1021, 1023 (8th Cir.

2012). The “SMART” Guidelines became effective on August 1, 2008, and

“reaffirmed the interim rule applying SORNA to pre-Act offenders.” Knutson, 680

F.3d at 1023; see 73 Fed. Reg. 38,030 (July 2, 2008). Though the Attorney General 1

maintained that SORNA had been effective to all pre-Act offenders all along, the

Supreme Court inReynoldsrejected that position and held that SORNA’s registration

requirements did not apply to pre-Act offenders until the Attorney General issued a

rule saying so. See Reynolds, 132 S. Ct. at 984.

Brewer currently is required to register under SORNA because of a 1997

conviction for a sex offense in Hawaii. At the time of SORNA’s enactment, Brewer

was living in South Africa. In December 2007, he moved back to the United States

and settled in Arkansas, but he did not register as a sex offender. He was arrested in

March 2009 and pleaded guilty in September 2009.

Following his release from prison, Brewer moved to vacate his sentence under

28 U.S.C. § 2255. As relevant to this appeal, Brewer argued that (1) the Attorney

General lacked “good cause” and thereby violated the Administrative Procedures Act

(APA) when he promulgated and made effective the Interim Rule without allowing

for the required public notice-and-comment period and minimum 30-day publication

period, and (2) SORNAviolatesthe nondelegation doctrine by providing the Attorney

General with the authority to determine when, and if, SORNA will apply to

pre-SORNA offenders. The district court adopted the magistrate judge’s report and

denied Brewer’s motion to vacate on all grounds. Brewer then moved for

reconsideration and asked the district court for a certificate of appealability. The

Subsequently, the Attorney General has issued a “Final rule,” which mirrors

1

the language of the Interim Rule. 75 Fed. Reg. 81,849 (Dec. 29, 2010);

see also Knutson, 680 F.3d at 1023.

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district court declined to reconsider its earlier ruling but certified for appeal the two

issues stated above.

II. Discussion

We review de novo the district court’s denial of a motion under section 2255. 

United States v. Hernandez, 436 F.3d 851, 855 (8th Cir. 2006). Any underlying

factual findings are reviewed for clear error. Id. 

On appealBrewer maintainsthat the AttorneyGeneral’s Interim Rule isinvalid

and, therefore, his conviction isillegal. Brewer presses the same grounds for vacating

his conviction that he argued in the district court: (1) the “Interim Rule violated the

[APA] because Appellant was prejudiced by the AttorneyGeneral’s failure to comply

with the required procedures for substantive rulemaking and failure to provide

sufficient good cause for avoiding those procedures”; and (2) “[c]ontrary to Circuit 2

precedent, [SORNA] violates nondelegation doctrine with regards to state sex

offenders whose prior conviction pre-dates the enactment or implementation of the

Act.” We address each of his arguments in turn.

The government asserted in the district court that Brewer had procedurally 2

defaulted this argument by failing to raise it on direct appeal. The magistrate judge

did not consider the issue defaulted and recommended addressing the merits of

Brewer’s argument. The government did not object to the magistrate judge’s

recommendation, did not cross-appeal the district court’s order adopting the

magistrate judge’s report, and does not maintain on appeal that Brewer’s APA

argument is defaulted. Thus, we believe the government has waived procedural

default as an affirmative defense and will not further address the issue. See Jones v.

Norman, 633 F.3d 661, 666 (8th Cir. 2011).

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A. Good Cause3

As a state-law sex offender, Brewer is guilty of failing to register under

SORNA if he “travels in interstate or foreign commerce” while knowingly failing to

register or update his registration. 18 U.S.C. § 2250(a)(2)(B). Brewer suggests,

however, that SORNA was not yet effective as to him when he traveled from Africa

to Arkansas in December 2007 because, he argues, the Interim Rule, which for the

first time made SORNA applicable to sex offenders convicted before the Act’s

enactment, is invalid. Because the “final rule” did not become effective until August

2008, Brewer cannot be guilty under that rule for his December 2007 move. Thus,

if the Interim Rule is invalid, then Brewer’s conviction also is invalid. 

Brewer asserts that the Interim Rule is invalid because the Attorney General

failed to comply with the APA rulemaking procedures without good cause. We

review de novo whether an agency has complied with the APA’s procedural

requirements because compliance “is not a matter that Congress has committed to the

agency’s discretion.” Iowa League of Cities v. EPA, 711 F.3d 844, 872 (8th Cir.

2013). “Agencies must conduct ‘rule making’ in accord with the APA’s notice and

comment procedures.” Id. at 855 (citing 5 U.S.C. § 553(b), (c)). “The APA’s

rulemaking provisions require three steps to enact substantive rules: notice of the

proposed rule, a hearing or receipt and consideration of public comments, and the

publication of the new rule.” United States v. DeLeon, 330 F.3d 1033, 1036 (8th Cir.

Brewer argues on appeal not only that the Attorney General lacked good 3

cause but also that the issue of good cause is foreclosed on appeal because the

government failed to object to the magistrate judge’s report and recommendation or

cross-appeal the district court’s adoption of that ruling. As a result, Brewer asserts

that he must prevail on this issue. But the district court did not explicitly find that the

Attorney General had good cause. Rather, the district court held that even if the

Attorney General lacked good cause, the error was harmless. Thus, we address this

issue on appeal.

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2003). The third step, publication of a new substantive rule, must be completed “not

less than 30 days before [the rule’s] effective date.” See 5 U.S.C. § 553(d).

An agencymaywaive the requirements of a notice and comment period and the

30-day grace period before publication if the agency finds “good cause” to do so. 

See 5 U.S.C. § 553(b)(B), (d)(3). We have cautioned, however, that courtsshould not

conflate the pre-adoption notice-and-comment requirements, listed in § 553(b) and

(c), with the post-adoption publication requirements, listed in § 553(d). United States

v. Gavrilovic, 551 F.2d 1099, 1104 n.9 (8th Cir. 1977). Because these are separate

requirements, the agency must have good cause to waive each.

We note that there is a conflict among the circuits regarding the appropriate

standard of review for an agency’s assertion of good cause under § 553(b)(B). We

have in the past deferred to the agency’s determination and reviewed only “whether

the agency’s determination of good cause complies with the congressional intent” in

§ 553(d). Gavrilovic, 551 F.2d at 1105. This deferential standard appears similar to

the approach taken by the Fifth and Eleventh Circuits, which each used an

arbitrary-and-capricious standard found in 5 U.S.C. § 706(2)(A). See United States

v. Reynolds (Reynolds II), 710 F.3d 498, 506–07 (3d Cir. 2013) (collecting and

reviewing conflicting standards of review). The Fourth and Sixth Circuits, however,

applied de novo review and cited § 706(2)(D). Id. at 507. While we recognize that

this division is unhelpful, we agree with the Third Circuit that the Attorney General’s

assertion of good cause fails under any of the above standards.

In promulgating the Interim Rule, the Attorney General asserted good cause to

waive the procedural requirements and make the rule effective immediately:

The immediate effectiveness of this rule is necessary to eliminate any

possible uncertainty about the applicability of the Act’s

requirements—and related means of enforcement, including criminal

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liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to

register as required—to sex offenders whose predicate convictions

predate the enactment of SORNA. Delay in the implementation of this

rule would impede the effective registration of such sex offenders and

would impair immediate efforts to protect the public from sex offenders

who fail to register through prosecution and the imposition of criminal

sanctions. The resulting practical dangers include the commission of

additional sexual assaults and child sexual abuse or exploitation

offenses by sex offenders that could have been prevented had local

authorities and the community been aware of their presence, in addition

to greater difficulty in apprehending perpetrators who have not been

registered and tracked as provided by SORNA. This would thwart the

legislative objective of “protect[ing] the public from sex offenders and

offenders against children” by establishing “a comprehensive national

system for the registration of those offenders,” SORNA § 102, because

a substantial class of sex offenders could evade the Act’s registration

requirements and enforcement mechanisms during the pendency of a

proposed rule and delay in the effectiveness of a final rule.

It would accordingly be contrary to the public interest to adopt this rule

with the prior notice and comment period normally required under

5 U.S.C. 553(b) or with the delayed effective date normally required

under 5 U.S.C. 553(d).

72 Fed. Reg. 8894, 8896–97. Thus, the Attorney General offered two rationales for

waiving the requirements: (1) the need to eliminate “any possible uncertainty” about

the applicability of SORNA; and (2) the concern that further delay would endanger

the public. Id.

The appellate courts are divided over whether the Attorney General’s

justifications for extending SORNA to all pre-Act offenders without adhering to the

requirements of the APA were sufficient. The parties’ arguments in this appeal

largely track the divide in the circuits. Two circuits, the Fourth and the Eleventh, have

held that the Attorney General had good cause to bypass the notice and comment

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provisions. In United States v. Gould, the Fourth Circuit noted that there was some

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ambiguity about SORNA’s effectiveness and reasoned that the Interim Rule was

necessary to provide “legal certainty about SORNA’s ‘retroactive’ application.” 568

F.3d 459, 469–70 (4th Cir. 2009). Similarly, in United States v. Dean, the Eleventh

Circuit held that the Interim Rule served to promote public safety and that the public

safety exception applied not only to true “emergency situations” but also to situations

“where delay could result in serious harm.” 604 F.3d 1275, 1281 (4th Cir. 2010)

(quoting Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 2004)). The court found that

despite the long delay between SORNA’s passage and the promulgation of the

Interim Rule, the Attorney General “reasonably determined that waiting thirty

additional days for the notice and comment period to pass would do real harm.” Id.

at 1282–83. 

In contrast, four circuits—the Third, Fifth, Sixth, and Ninth—have found that

the Attorney General’s stated reasons for finding good cause to bypass the 30-day

advance-publication and notice-and-comment requirements—alleviating uncertainty

and protecting the public safety—were insufficient. See Reynolds II, 710 F.3d at

509; United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); United States v.

Valverde, 628 F.3d 1159, 1168 (9th Cir. 2010); United States v. Cain, 583 F.3d 408,

421–24 (6th Cir. 2009). We agree with these circuits that the Attorney General

lacked good cause to waive the procedural requirements. 

The Attorney General’s first rationale, the need to eliminate “uncertainty”

about the law, simply reflects a generalized concern that exists any time an act

requires further substantive rulemaking. There always will be some level of

The Seventh Circuit also has suggested that the Interim Rule was effective

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immediately. See United States v. Dixon, 551 F.3d 578 (7th Cir. 2008), rev’d on

other grounds sub nom., Carr v. United States, 560 U.S. 438 (2010). The court

rejected the defendant’s APA argument as “frivolous” but did not elaborate on its

reasoning. Id. at 583. 

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uncertainty about the breadth and timing of applicability until the agency has

promulgated a rule. See Reynolds II, 710 F.3d at 510 (“[S]ome uncertainty follows

the enactment of any law that provides the agency with administrative

responsibility.”). But in thissituation, “[t]he desire to eliminate uncertainty, by itself,

cannot constitute good cause.” Id. “If good cause could be satisfied by an Agency’s

assertion that normal procedures were not followed because of the need to provide

immediate guidance and information[,] . . . then an exception to the notice

requirement would be created that would swallow the rule.” Valverde, 628 F.3d at

1166 (internal quotation marks omitted). Congress could have alleviated this

uncertainty by providing that SORNA be immediately applicable to all pre-Act

offenders. Instead, Congress granted the Attorney General discretion to decide how,

and if, SORNA would apply to pre-Act offenders. As such, this level of uncertainty

inherent in the Congressional directive itself cannot constitute an emergency or public

neccesity.

We also note that the Attorney General did not actually find a concrete

uncertainty to remedy but rather was acting to “eliminat[e] any possible uncertainty.”

72 Fed. Reg. 8894, 8896–97 (emphasis added). There is a difference between

addressing present legal uncertainty and addressing the possibility of future legal

uncertainty. Although the risk offuture harmmay, under some circumstances, justify

a finding of good cause, that risk must be more substantial than a mere possibility.

Similarly, the Attorney General’s “public safety rationale cannot constitute a

reasoned basis for good cause because it is nothing more than a rewording of the

statutory purpose Congress provided in the text of SORNA.” Reynolds II, 710 F.3d

at 512. The Attorney General posited that delay in implementing the Interim Rule

“would impair immediate efforts to protect the public from sex offenders who fail to

register.” 72 Fed. Reg. 8894, 8896–97. But delay in implementing a statute always

will cause additional danger from the same harm the statute seeks to avoid. And the

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Attorney General’s stated concern for public safety further is undermined by his own

seven-month delay in promulgating the Interim Rule. Moreover, just asthe Attorney

Generalfailed to show any substantial risk of uncertaintyabout SORNA’s application

to pre-Act offenders, his concern for public safety fails to “point to something

specific that illustrates a particular harm that will be caused by the delay required for

notice and comment.” Reynolds II, 710 F.3d at 513. 

We thus conclude that, even under an arbitrary and capricious standard of

review, there is an insufficient showing of good cause for bypassing the APA’s

requirements of notice and comment and pre-enactment publication. 

B. Prejudice

In the alternative, the government argues that any violation of the APA’s

procedural requirements was harmless to Brewer. The APA instructs courts

reviewing agency action to take “due account . . . of the rule of prejudicial error.”

5 U.S.C. § 706; see Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009) (explaining

that intent of APA’s reference to “prejudicial error” is to summarize harmless-error

rule applied by courts). Because the underlying matter in this case involves a

criminal conviction, the government bears the burden of showing that there was no

prejudicial error. See Reynolds II, 710 F.3d at 515–16; see also Sanders, 556 U.S. at

410–11 (noting that in criminal matters, the government has the burden of showing

harmless error because of the defendant’s liberty interest at stake).

The minimum publication period required prior to a rule becoming effective

is 30 days. 5 U.S.C. § 553(d). Since the Interim Rule was issued on February 28,

2007, the government argues that if it had observed proper procedure, the Interim

Rule would have become effective 30 days later on March 30, 2007. Because Brewer

did not violate the act until December 2007, the government contends, it is irrelevant

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to Brewer’s conviction whether the rule became effective immediately in February

or later in March. We agree. Brewer’s violation of the Interim Rule occurred

nine months after it would have gone into effect. The absence of those extra thirty

days between effectuation and violation did not result in any prejudice to him.

But the Attorney General also bypassed the requirement of a period for notice

and comment. To support its position that this error also was harmless, the

government primarily relies on the Fifth Circuit’s decision in United States v.

Johnson, 632 F.3d 912. In Johnson, the Fifth Circuit found that any procedural error

as to the notice-and-comment provision was not prejudicial because the Attorney

General had “thoroughly engage[d] the issues and challenges inherent in the

regulation” when enacting the Interim Rule. 632 F.3d at 931. Because the Attorney

General had “considered the arguments . . . asserted and responded to those

arguments during the interim rulemaking,” albeit without notice and comment, the

Fifth Circuit held that “the error in failing to solicit public comment before issuing

the rule was not prejudicial.” Id. at 932.

In its brief on appeal, the government here argues:

Like Johnson, Brewer fails to show he involved himself in the

post-promulgation comment period. Neither does Brewer allege or

show that he participated in the Attorney General’s subsequent

rulemaking process that crafted regulations regarding the more detailed

provisions of SORNA, in which the Attorney General also considered

the retroactivity of SORNA, free of APA error. Finally, because Brewer

makes no showing that the outcome of the process would have differed

had notice and comment been proper, it is clear that the Attorney

General’s alleged APA violations would be harmless error as applied to

him. 

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We disagree with the government. We first note that the Attorney General’s

failure to follow the APA’s pre-promulgation requirements was a “complete failure,”

compared to a “technical failure.” See Reynolds II, 710 F.3d at 516–17. It is not that

the method of allowing notice and comment was flawed; rather, there was no method

at all. Because there was no period during which Brewer, or anyone else, could have

offered comments before the Interim Rule was promulgated, he does not need to show

that any hypothetical comments would have changed the rationale underlying that

rule. Id. at 516 (citing Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C. Cir. 1991)).

Second, the government’s argument improperly shifts to Brewer the burden to

show that the outcome of the process would have been different with the proper

procedures. Moreover, it is irrelevant that Brewer did not participate in the

post-promulgation comment period. As we earlier noted, his only movement in

interstate or foreign commerce occurred after the Interim Rule had been promulgated

but before the Final Rule was published. Thus, Brewer could not be guilty of

violating the final rule, which is the only rule that may have been affected by the

post-promulgation comments. The only notice-and-comment period relevant to his

conviction isthe one that the Attorney General failed to provide before promulgation

of the Interim Rule.

Nor can we accept the government’s assumption that the enacted rule certainly

would have been the same. Contrary to the government’s contention, the Attorney

General did not face a simple “yes or no” decision. Compare Johnson, 632 F.3d at

932, with Reynolds II, 710 F.3d at 520–21. In fact, the Attorney General had a range

of options: from applying SORNA to all pre-Act offendersto applying SORNA to no

pre-Act offenders. The Attorney General also had the opportunity to distinguish

between “‘offenders who have fully left the system and merged into the general

population’” and those “‘who remain in the system as prisoners, supervisees, or

registrants, or reenter the systemthrough subsequent convictions.’” ReynoldsII, 710

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F.3d at 521 (quoting the “SMART” Guidelines, 73 Fed. Reg. 38,030, 38,035 (July 2,

2008), which note the Attorney General’s ability to distinguish between prior

offenders on the basis of status). Given this range of choices, we do not believe that

the Attorney General’s final choice was inevitable or that the outcome certainly

would have been the same had there been a period for notice and comment.

Brewer argues that “even if confronted with just a binary question, the Attorney

General did not give both options full consideration.” We agree. As Brewer notes,

at the time the Interim Rule was promulgated, the Attorney General was persisting in

his view that no rulemaking was needed for SORNA to apply to pre-Act offenders. 

See United States v. May, 535 F.3d 912, 919 (8th Cir. 2008) (“The Attorney General

did not believe a rule was even needed to confirm SORNA’s applicability to

defendants [including pre-Act offenders]. Rather, the Attorney General only

promulgated the rule as a precautionary measure to ‘foreclose [ ] such claims [of preAct offenders] by making it indisputably clear that SORNA applies to all sex

offenders (as the Act defines that term) regardless of when they were convicted.’”

(first alteration in original) (quoting 72 Fed. Reg. at 8896)), abrogated in part by

Reynolds, 132 S. Ct. 975. The Attorney General’s attempt to foreclose the possible

claims of pre-Act offenders seems incompatible with his duty seriously to consider

whether SORNA applies to those offenders, and if so, which ones. Such an approach

certainly does not suggest the sort of “flexible and open-minded attitude towards its

own rules,” that is generally required for the notice-and-comment period. 

See Prometheus Radio Project v. FCC, 652 F.3d 431, 449 (3d Cir. 2011) (internal

quotation marks omitted). Based on the record before us, we cannot say the

immediate effectiveness of the Interim Rule was harmless as to Brewer. 

In sum, the Attorney General lacked good cause to waive the procedural

requirements of notice and comment when promulgating the Interim Rule, and this

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procedural error prejudiced Brewer. As a result, SORNA did not apply to Brewer in

2007, so his conviction for failing to register is invalid.

C. Nondelegation Doctrine

Because we conclude that the Attorney General lacked good cause to bypass

the APA’s procedural requirements, we need not address Brewer’s second argument

that SORNA violates the nondelegation doctrine. We note, however, that Brewer

acknowledges that his argument is contrary to this circuit’s precedent. See United

States v. Kuehl, 706 F.3d 917 (8th Cir. 2013) (concluding that SORNA did not

violate the nondelegation doctrine).

III. Conclusion

For the reasons discussed above, we reverse the district court’s denial of

Brewer’s motion under § 2255 and remand. The district court is ordered to vacate

Brewer’s conviction.

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