PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4747

_____________

UNITED STATES OF AMERICA

v.

BILLY JOE REYNOLDS,

Appellant

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-07-cr-00412-001

District Judge: The Honorable Donetta W. Ambrose

Argued November 13, 2012

upon Remand from the Supreme Court

of the United States

Before: SMITH, FISHER, and STAPLETON,

Circuit Judges

(Filed: March 14, 2013)
2

Donovan J. Cocas ARGUED

Robert L. Eberhardt

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Candace Cain

Lisa B. Freeland ARGUED

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

________________

OPINION

________________

SMITH, Circuit Judge.

This case returns to us after the Supreme Court’s 

review in Reynolds v. United States, 132 S. Ct. 975 

(2012). Remand requires that we reach the merits of 

Reynolds’s claim that the regulatory rule upon which his 
3

indictment was based was promulgated in violation of the 

Administrative Procedure Act (“APA”). This claim gives 

rise to three questions: (1) What is the appropriate 

standard of review of an agency’s assertion of good cause 

in waiving the APA’s notice and comment requirements? 

(2) Did the Attorney General have good cause to waive 

these requirements in promulgating a rule governing the 

retroactivity of the Sex Offender and Registration 

Notification Act’s (“SORNA”) registration 

requirements? (3) If the Attorney General lacked good 

cause to waive the requirements, was Reynolds 

prejudiced by the failure to comply with the APA’s 

notice and comment requirements? 

The courts of appeals are divided on each of these 

questions. On the first question, the Fifth and Eleventh 

Circuits have determined that the arbitrary and capricious 

standard is the appropriate standard for reviewing the 

Attorney General’s actions, the Fourth and Sixth Circuits 

have not stated a standard but appear to use de novo

review, and the Ninth Circuit has explicitly avoided the 

question.1

 1 Compare United States v. Johnson, 632 F.3d 912, 928 

(5th Cir. 2011) (arbitrary and capricious); United States 

v. Dean, 604 F.3d 1275, 1278 (11th Cir. 2010) (same), 

with United States v. Gould, 568 F.3d 459, 469–70 (4th 

Cir. 2009) (unstated, appears de novo); United States v. 

Cain, 583 F.3d 408, 419–23 (6th Cir. 2009) (same), with 

On the second question, the Fourth and 
4

Eleventh Circuits have held that the Attorney General

had good cause to waive notice and comment, while the 

Fifth, Sixth, and Ninth Circuits have held that he did 

not.2 On the final question, the Fifth Circuit has held that 

the Attorney General’s lack of good cause does not 

prejudice defendants, while the Sixth Circuit has held 

that it is prejudicial.3

We conclude that we need not decide the 

appropriate standard of review today because the 

 

United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir. 

2010) (explicitly avoids question).

2 Compare Gould, 568 F.3d at 470; Dean, 604 F.3d at

1281–82, with Johnson, 632 F.3d at 928; Valverde, 628 

F.3d at 1165–66; Cain, 583 F.3d at 422–24.

3 Compare Johnson, 632 F.3d at 930–32; Dean, 604 F.3d 

at 1288–89 (Wilson, J. concurring), with United States v. 

Utesch, 596 F.3d 302, 312–13 (6th Cir. 2010).

The Seventh Circuit has joined the Fourth, Fifth, and 

Eleventh Circuits in upholding the Interim Rule, but the 

basis for its conclusion is unclear. United States v. Dixon, 

551 F.3d 578, 583 (7th Cir. 2008) (dismissing a 

defendant’s “frivolous” APA challenge to the Interim 

Rule in a parenthetical).
5

Attorney General’s assertion of good cause cannot 

withstand review even under the most deferential

standard available. We also conclude that the Attorney 

General’s lack of good cause is prejudicial to Reynolds. 

Accordingly, we will vacate Reynolds’ conviction.

I

In 2001, Reynolds was convicted of sexually 

assaulting a seven-year-old girl in Missouri. This 

conviction required him to register as a sex offender, 

which he did for the next six years. Meanwhile, Congress 

passed SORNA in 2006, which required individuals 

convicted of sex offenses after its enactment to comply 

with certain registration requirements. Through the 

promulgation of an administrative rule on February 28, 

2007, the Attorney General made SORNA’s registration 

requirements retroactive to those convicted of sex 

offenses before its enactment—i.e., sexual offenders such 

as Reynolds.

On September 16, 2007, Reynolds moved to 

Washington, Pennsylvania. He failed both to update his 

place of residence and employment information in 

Missouri and to register as a sex offender in 

Pennsylvania. Police discovered these registration 

violations on October 16, 2007, when Reynolds was 

arrested for violating parole. He was subsequently 

indicted for violating SORNA’s registration requirements 
6

because of his failure to register between September 16, 

2007 and October 16, 2007. He pleaded guilty, reserving 

his right to appeal. He was sentenced to eighteen months 

of imprisonment to be followed by three years of 

supervised release.

A. Procedural History

Reynolds’s primary challenge to his conviction has 

been to its legal basis. In the District Court, he moved to 

dismiss the indictment, arguing that SORNA violated the 

nondelegation doctrine, the Commerce Clause, the Ex 

Post Facto Clause, the Tenth Amendment, and his Fifth 

Amendment substantive and procedural due process 

rights. Finally, he argued that even if SORNA did not 

violate the Constitution, his indictment should be 

dismissed because it was based on an administrative rule 

promulgated by the Attorney General that did not comply 

with the requirements of the APA. The District Court 

rejected each of these arguments and denied his motion 

to dismiss the indictment. Reynolds subsequently entered 

into a plea agreement that specifically reserved his right 

to appeal those issues argued in his motion to dismiss the 

indictment.

In his first appeal to this Court following his guilty 

plea, Reynolds presented these same arguments. Bound 

by United States v. Shenandoah, 595 F.3d 151 (3d Cir. 
7

2010),4

 4 Shenandoah was decided by a different panel of this 

Court shortly before this panel’s first decision in this 

case. The defendant in Shenandoah asserted the same 

arguments (plus an additional one based on the right to 

travel) brought by Reynolds in his first appeal to this 

panel: “that SORNA violated the Non-Delegation 

Doctrine, the Administrative Procedure Act, the Ex Post 

Facto Clause, the Due Process Clause, the Commerce 

Clause, the Tenth Amendment and his right to travel.” 

595 F.3d at 154. The Shenandoah panel rejected the Ex 

Post Facto Clause, Due Process Clause, Commerce 

Clause, and right to travel claims on their merits, id. 

at 158–61, 162–63, and held that the defendant lacked 

standing to make the nondelegation doctrine, APA, and 

Tenth Amendment claims, id. at 161–62, 163–64. 

we upheld the District Court because the 

Central to Shenandoah’s holding that the defendant 

lacked standing for his nondelegation and APA claims 

was its interpretation of SORNA—namely that 

SORNA’s registration requirements applied to preSORNA sex offenders automatically, without any action 

needed by the Attorney General. This understanding of 

SORNA made the administrative rule challenged by the 

defendant irrelevant to his case, in that SORNA, rather 

than the rule, was the basis of his conviction. Id. at 157–

58, 163–64. This understanding of SORNA was rejected 
8

Commerce Clause, Ex Post Facto, and Fifth Amendment 

arguments lacked merit and because Reynolds lacked 

standing to assert his APA, nondelegation, and Tenth 

Amendment arguments. United States v. Reynolds, 380 

Fed. App’x 125, 126 (3d Cir. 2010); see also 

Shenandoah, 595 F.3d at 158–64. Reynolds filed a 

petition for writ of certiorari with the Supreme Court that 

requested review of these holdings. Pet. Writ Cert. at i, 

Reynolds v. United States (No. 10-6549), 2010 WL 

5624498. The Supreme Court granted the petition limited 

to the question of whether Reynolds had standing to 

assert his APA and nondelegation arguments. Reynolds v. 

United States, 131 S. Ct. 1043 (2011). The Court 

reversed, holding that he did have standing to make those 

arguments. Reynolds v. United States, 132 S. Ct. 975, 978 

 

by the Supreme Court in its Reynolds decision. Reynolds 

v. United States, 132 S. Ct. 975, 978 (2012). 

The defendant lacked standing to raise his Tenth 

Amendment claim because, at the time of the decision, 

private parties were thought to be unable to assert Tenth 

Amendment claims absent the involvement of a State. Id. 

at 161–62. This holding was rejected by the Supreme 

Court in Bond v. United States, 131 S. Ct. 2355 (2011). 

In that case, the Supreme Court held that private persons 

may assert Tenth Amendment arguments even when an 

apparatus of the State is not a party to the suit. Id. at 

2360, 2367.
9

(2012).

In reversing, the Supreme Court rejected this 

Court’s interpretation in Shenandoah of the power 

delegated to the Attorney General by SORNA’s 

registration requirement. 42 U.S.C. § 16913(d) (“The 

Attorney General shall have the authority to specify the 

applicability of the [registration] requirements . . . to sex 

offenders convicted before the enactment of this chapter

. . . , and to prescribe rules for the registration of any such 

sex offenders and for other categories of sex offenders 

who are unable to comply with subsection (b).”); 42 

U.S.C. § 16913(b) (providing when sex offenders other 

than those who had already completed their sentences 

should initially register).

5

 5 42 U.S.C. § 16913(b) provides that

In Shenandoah, this Court

concluded that this provision automatically made

SORNA’s registration requirements applicable without 

any action by the Attorney General to sex offenders who 

[t]he sex offender shall initially register (1) 

before completing a sentence of 

imprisonment with respect to the offense 

giving rise to the registration requirement; or 

(2) not later than 3 business days after being 

sentenced for that offense, if the sex 

offender is not sentenced to a term of 

imprisonment. 
10

had been convicted before SORNA was enacted and who 

had already completed their prison sentences. 595 F.3d at 

158. This meant that Reynolds’s obligation to register 

under SORNA was derived from the Act itself and not 

from the administrative rule promulgated by the Attorney 

General. Accordingly, Shenandoah required us to 

conclude that he could not challenge the legality of the 

administrative rule because the statute, not the rule, was 

the basis of his conviction. Reynolds, 380 Fed. App’x at 

126; Shenandoah, 595 F.3d at 163–64.

The Supreme Court interpreted § 16913 otherwise. 

The Court held that the registration requirement did not 

automatically apply retroactively to sex offenders who 

committed their offense before SORNA was enacted. 

Instead, the Court explained that under § 16913, “the 

Act’s registration requirements do not apply to pre-Act 

offenders until the Attorney General specifies that they 

do apply.” Reynolds, 132 S. Ct. at 978. This means, 

contrary to this Court’s previous holding, that Reynolds’s

obligation to register under SORNA does not derive from 

the Act itself but from the administrative rule 

promulgated by the Attorney General. We must now 

reach the merits of the claim Reynolds raises challenging 

the legality of that rule. Reynolds, 132 S. Ct. at 984 

(“Whether the Attorney General’s Interim Rule sets forth 

a valid specification consequently matters in the case 
11

before us.”).6

B. Administrative History

At issue here is the Attorney General’s February 

28, 2007 Interim Rule that made SORNA’s registration 

requirements retroactive for all pre-SORNA offenders. 

Applicability of the Sex Offender Registration and 

Notification Act, 72 Fed. Reg. 8894-01, 8897 (Feb. 28, 

2007) [hereinafter “Interim Rule”]. The Attorney General

issued this Interim Rule seven months after SORNA 

delegated authority to him to make SORNA retroactive. 

The Attorney General did not provide the period for

notice and comment required under 5 U.S.C. § 553(b), 

nor did he provide the minimum thirty-day delay before 

the rule became effective under 5 U.S.C. § 553(d)(3). 

Instead, he concluded that notice and comment were not 

required because “good cause” existed pursuant to 5 

U.S.C. § 553(b)(B) and that requiring those procedures 

 6 As we noted in footnote 4, our previous holding that 

Reynolds lacked standing to assert his Tenth Amendment 

challenge has also been overruled by the Supreme 

Court’s decision in Bond, 131 S. Ct. 2355. We 

acknowledge that Reynolds now has standing to raise a 

Tenth Amendment argument but decline to reach the 

issue because we conclude that the Attorney General 

failed to promulgate the rule in accordance with the 

APA.
12

would be “contrary to the public interest.” Interim Rule, 

72 Fed. Reg. at 8896–97 (citing 5 U.S.C. § 553(b)(B)). 

He provided the following reasons to support his finding

of good cause:

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 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 
13

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.

Id. Finally, the Interim Rule allowed comments to be 

submitted for two months after promulgation. Id. at 8894.

Three months after the Interim Rule took effect, 

the Attorney General issued Proposed Guidelines for the 

interpretation and implementation of SORNA. The 

National Guidelines for Sex Offender Registration and 

Notification, 72 Fed. Reg. 30210-01, 30210 (proposed 

May 30, 2007) [hereinafter “Proposed Guidelines”].

These Proposed Guidelines included the proposed final 

rule governing SORNA’s retroactivity to pre-Act 

offenders. It also solicited comments on all of the 

guidelines’ proposals, which were due August 1, 2007. 

Id. at 30210, 30212–13, 30228–29. Thirteen months after 

issuing the Proposed Guidelines, the Attorney General

promulgated the Final Rule. It was a reiteration of the

same rule set out in the Interim Rule regarding 
14

retroactivity. The National Guidelines for Sex Offender 

Registration and Notification, 73 Fed. Reg. 38030-01, 

38030, 38046–47 (July 2, 2008) [hereinafter “Final 

Rule”].7

II

Reynolds’s conviction is based on the Interim Rule 

because the conduct alleged in the indictment occurred 

from September 16, 2007 to October 16, 2007, 

approximately ten months before the Final Rule went 

into effect. Reynolds challenges the validity of the 

Interim Rule on two grounds. First, he argues that the 

 7 We describe this regulation as the Final Rule because 

the parties have presented it as such. But our description 

is not intended to express our view on whether this 2008 

action or a later action in 2010 actually finalized the 

Interim Rule. See Final Rule, 73 Fed. Reg. at 38030; 

Applicability of the Sex Offender Registration and 

Notification Act, 75 Fed. Reg. 81849-01, 81850 (Dec. 

29, 2010) [hereinafter “2010 Final Rule”]. Accordingly, 

our description of the 2008 guidelines as the Final Rule 

should not be interpreted to endorse the view that the 

2008 action created binding rules. The Attorney General 

appears to do just that in relation to the Sixth Circuit’s 

use of the same language in United States v. Utesch, 596 

F.3d 302 (6th Cir. 2010). 2010 Final Rule, 75 Fed. Reg. 

at 81850 (citing Utesch, 596 F.3d at 310–11).
15

Attorney General did not have “good cause” under the 

APA to waive its procedural requirements. Second, he 

argues that Congress’ delegation to the Attorney General

of the authority to make SORNA retroactive is an 

unconstitutional delegation. Because we conclude that 

the Attorney General did not provide sufficient 

justification for his finding of good cause and that this 

error prejudiced Reynolds, we do not reach Reynolds’s 

nondelegation argument.

Our jurisdiction to hear this case is provided by 28 

U.S.C. § 1291, while the District Court’s jurisdiction was 

provided by 18 U.S.C. § 3231. Our standard of review 

for a district court’s denial of a motion to dismiss an 

indictment is mixed. We review de novo a district court’s 

legal conclusions and a district court’s factual 

determinations for clear error. United States v. NolanCooper, 155 F.3d 221, 229 (3d Cir. 1998). Reynolds 

challenges the District Court’s legal conclusions only, so 

we apply the de novo standard. 

A. Standard of Review

We must consider the parties’ dispute over our 

standard of review for an administrative agency’s 

assertion of good cause under § 553(b)(B) of the APA

before deciding if good cause existed. The parties and 

our prior decisions provide three possible standards: de 

novo, mixed, and arbitrary and capricious. Reynolds 
16

argues that the appropriate standard is de novo under 

5 U.S.C. § 706(2)(D), while the Attorney General argues 

for arbitrary and capricious review under 5 U.S.C. 

§ 706(2)(A).8

 8 The text of 5 U.S.C. §§ 706(2)(A) & (2)(D) is:

Supporting the government’s position are 

the Fifth and Eleventh Circuits’ use of the arbitrary and 

capricious standard in their SORNA decisions. United 

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

United States v. Dean, 604 F.3d 1275, 1278 (11th Cir. 

2010). The arbitrary and capricious standard follows 

from § 706(2)(A)’s explicit inclusion of that standard as 

well as the provision’s broader scope of review that 

To the extent necessary to decision and 

when presented, the reviewing court shall 

decide all relevant questions of law, 

interpret constitutional and statutory 

provisions, and determine the meaning or 

applicability of the terms of an agency 

action. The reviewing court shall . . . (2) 

hold unlawful and set aside agency action, 

findings, and conclusions found to be: 

(A) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance 

with law;

. . .

(D) without observance of procedure 

required by law.
17

allows for review of agencies’ factual determinations. 

Marsh, 490 U.S. at 376; Gardner v. Grandolsky, 585 

F.3d 786, 792 (3d Cir. 2009).

Supporting Reynolds’s position are the Fourth and 

Sixth Circuits’ application of de novo review, although 

these courts do not specifically state the standard they 

applied. United States v. Gould, 568 F.3d 459, 469–70 

(4th Cir. 2009); United States v. Cain, 583 F.3d 408, 

420–21 (6th Cir. 2009). De novo review follows from the 

limited scope of review provided to courts in § 706(2)(D) 

to ensure that agency actions, findings, and conclusions 

are completed in “observance of procedure required by 

law,” 5 U.S.C. § 706(2)(D), which is a legal question for 

which de novo review would typically be utilized. See 

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376–

77 (1989); Pierce v. Underwood, 487 U.S. 552, 558 

(1988). Each party’s position, therefore, has support from 

other courts of appeals.

Notably, none of these decisions has extensively 

analyzed the standard of review question and only the 

Fifth and Ninth Circuits have directly linked their 

discussion of the standard to § 706. Johnson, 632 F.3d at 

928 & n.86; United States v. Valverde, 628 F.3d 1159, 

1162 (9th Cir. 2010). For its part, the Ninth Circuit chose 

not to decide what standard should be applied. Valverde, 

628 F.3d at 1162. What the appropriate standard is, 

therefore, has not received in-depth analysis despite the 
18

disagreement on the ultimate conclusion. For that reason, 

we will take up where those courts left off.

The ambiguity created by the foregoing

disagreement is heightened by the absence of an 

expressed standard in many non-SORNA good cause 

decisions by courts of appeals. Instead, courts have 

resolved these cases by interpreting § 553’s good cause 

provision with a limiting principle. This principle is most 

commonly formulated as a direction that “good cause” 

should be “narrowly construed.” Cain, 583 F.3d at 420; 

Gould, 568 F.3d at 469; Dean, 604 F.3d at 1278; 

Johnson, 632 F.3d at 928 (explaining that good cause 

should be “read narrowly”); Valverde, 628 F.3d at 1164 

(stating that notice and comment can be waived only in 

“narrow circumstances”). Some courts—including this 

one—have elaborated on this interpretive framework by 

explaining that “circumstances justifying reliance on the 

good cause exception are ‘indeed rare’ and will be 

accepted only after the court has examined closely 

proffered rationales justifying the elimination of public 

procedures.” Natural Res. Def. Council, Inc. v. EPA, 683 

F.2d 752, 764 (3d Cir. 1982) (quoting Council of the S.

Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 

1981)) (alterations and quotation marks omitted); see 

also Mid-Tex Elec. Coop. v. Fed. Energy Regulatory 

Comm’n, 822 F.2d 1123, 1132 (D.C. Cir. 1987) (“This

court has cautioned that the § 553(b)(3)(B) exception

should be narrowly construed and reluctantly 
19

countenanced. That admonition means our inquiry should 

be a close one.” (internal quotation marks and citations 

omitted)). This interpretive framework has been 

developed separate and apart from § 706, derived from 

the legislative history of the good cause exception. Am.

Iron & Steel Inst. v. EPA, 568 F.2d 284, 291–92 (3d Cir. 

1977).

Our application of this interpretive principle 

generally suggests that de novo review is the correct

standard for examining claims of good cause under the 

APA. But the close examination required by de novo

review, Natural Res. Def. Council, 683 F.2d at 764, is 

inconsistent with the deference afforded under the 

arbitrary and capricious standard. See id. at 760 (“The 

exacting standard applicable in determining whether an 

agency has failed to comply with the [APA’s] procedural 

requirements [of notice and comment] for its action 

contrasts with the deferential standard applicable to 

substantive challenges to agency action.”).

One of our decisions, however, is more ambivalent 

about whether narrow construction of good cause 

mandates de novo review exclusively. Philadelphia 

Citizens in Action v. Schweiker, 669 F.2d 877 (3d Cir. 

1982), suggests that the narrow-construction limitingprinciple can be applied consistently with arbitrary and 

capricious as well as de novo review through the use of a 

mixed standard. There, we reviewed de novo whether 
20

“shortness of time can [ever] constitute good cause for 

invoking the [good cause] exemption” and whether the 

particular circumstances the department found itself in 

were indeed good cause. 669 F.2d at 883. We then 

employed arbitrary and capricious review for whether the 

agency was correct to conclude that “alternative 

procedure[s]” the agency could have utilized “were 

impracticable under the circumstances.” Id. at 886. 

Schweiker’s bifurcated analysis shows that the 

narrow-construction limiting-principle supports the third 

standard available—a mixed standard—consistent with 

both de novo and arbitrary and capricious review. This 

mixed standard requires that we review de novo whether 

the agency’s asserted reason for waiver of notice and 

comment constitutes good cause, as well as whether the

established facts reveal justifiable reliance on the reason.

But any factual determinations made by the agency to 

support its proffered reason are subject to arbitrary and 

capricious review.

So while some of our good cause decisions—such 

as Natural Resources Defense Council and Mobay—

suggest that de novo review is the appropriate standard in 

light of the narrow-construction limiting-principle, 

Schweiker suggests that this principle could also support

mixed review. Clearly, our decisions are in tension with 

one another because similar procedural determinations 

afforded deference in Schweiker are afforded little or no 
21

deference in Natural Resources Defense Council and 

Mobay. Fortunately, we need not abate that tension here 

because we conclude that the Attorney General’s good 

cause determination will not pass muster under any of the 

available standards.

In summary, § 706 and our prior decisions provide 

us with three possible standards: de novo, mixed, and 

arbitrary and capricious. Selecting the appropriate 

standard gives rise to several difficult questions. The first 

is how to resolve the tension between Schweiker and our 

other good cause decisions. There is reason to doubt 

Schweiker’s use of mixed review because the decision 

appears to be an outlier from the body of good-cause 

case-law from this Court, as well as other courts of 

appeals.9

 9 This concern is only increased by the legal support 

Schweiker relies on for its inclusion of arbitrary and 

capricious review. The Schweiker Court cites to an 

American Iron & Steel Institute v. EPA decision that is 

different from the American Iron & Steel discussed in our 

good cause analysis here. The case Schweiker relies on 

for arbitrary and capricious review only addresses issues 

other than procedural defect. Am. Iron & Steel Inst. v. 

EPA, 526 F.2d 1027, 1035, 1042, 1045, 1047 (3d Cir. 

1975) (analyzing arguments related to the EPA’s power 

to promulgate the rule, the nature of that power, and the 

substance of the rule itself). Section 553’s good cause 

Mixed review, however, is consistent with the 
22

text of § 706 because it includes no requirement that only 

one provision of the section be applied to a particular 

review—the section allows us to apply one standard to 

legal determinations and another to factual 

determinations made in an administrative decision. This 

conformance with § 706 is important because of the 

Supreme Court’s direction that “[t]he standards to be 

applied on review are governed by the provisions of 

§ 706.” Heckler v. Chaney, 470 U.S. 821, 828 (1985); 

Dickinson v. Zurko, 527 U.S. 150, 154–55 (1999) 

(“[r]ecognizing the importance of maintaining a uniform 

approach to judicial review of administrative action” 

found in § 706 to hold that deviations from the standards 

“must be clear[ly]” established by statute or common 

law). This direction by the Court requires that any 

selection among the three standards be guided by a 

determination of what the respective scopes of 

§ 706(2)(A) and (2)(D) are in relation to one another—a 

topic for which there is surprisingly little guidance. 

We decline, for now, to resolve these questions.

We conclude that the Attorney General’s assertion of 

good cause fails even the most deferential standard of 

arbitrary and capricious. Accord Valverde, 628 F.3d 

 

provision was not at issue in that decision. Schweiker’s 

reliance on it as informing a determination as to the 

standard that should be applied in good case cases is 

therefore questionable. 
23

at 1162. Just what is the applicable standard of review for

agency determinations that good cause justifies waiver of

notice and comment is a question for another day.

B. Good Cause

As with the standard of review, appellate courts 

are divided over whether the Attorney General’s 

justifications are sufficient to support a good cause 

determination. The Fourth and Eleventh Circuits have 

concluded they are sufficient. Gould, 568 F.3d at 470; 

Dean, 604 F.3d at 1281–82. The Fifth, Sixth, and Ninth 

Circuits have held otherwise. Johnson, 632 F.3d at 928; 

Cain, 583 F.3d at 422–24; Valverde, 628 F.3d at 1165–

66. We agree with the Fifth, Sixth, and Ninth Circuits 

that the two reasons provided in the Interim Rule are not 

sufficient to establish good cause because the Attorney

General’s reasons for good cause would eviscerate the

APA’s notice and comment requirements.

10

 10 Having the benefit of further development on the good 

cause question, the Eleventh Circuit’s conclusion is more 

developed than the Fourth Circuit’s reasoning, which was 

the first offered on the good cause question. Compare

Dean, 604 F.3d at 1281–82, with Gould, 568 F.3d at 470. 

We will thus focus on the Eleventh Circuit’s rationale as

setting forth the competing understanding with which we 

ultimately disagree.
24

Under the arbitrary and capricious standard, a 

court’s scope of review is “narrow, and a court is not to 

substitute its judgment for that of the agency.” Gardner, 

585 F.3d at 790 (quoting Motor Vehicle Mfrs. Ass’n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 

“[A] reviewing court may not supply a reasoned basis for 

the agency’s action that the agency itself has not given,” 

but it can “uphold a decision of less than ideal clarity if 

the agency’s path may reasonably be discerned” from the 

record. Id. (quoting State Farm, 463 U.S. at 43). “[W]e 

reverse an agency’s decision when it ‘is not supported by 

substantial evidence, or the agency has made a clear error 

in judgment.’” Prometheus Radio Project v. F.C.C., 373 

F.3d 372, 390 (3d Cir. 2004) (quoting AT&T Corp. v. 

F.C.C., 220 F.3d 607, 616 (D.C. Cir. 2000)). The Interim 

Rule cannot withstand review under this standard. The 

Attorney General’s rationale is not supported by 

substantial evidence and constitutes a clear error of 

judgment because the logical extension of the bases 

offered to support it lacks a limiting principle.

Notice and comment may be waived “when the 

agency for good cause finds (and incorporates the finding 

and a brief statement of reasons therefor in the rules 

issued) that notice and public procedure thereon are 

impracticable, unnecessary, or contrary to the public 

interest.” 5 U.S.C. § 553(b)(B). The Attorney General

concluded that good cause existed because undergoing 

notice and comment for the Interim Rule would be 
25

“contrary to the public interest,” offering two reasons.

Interim Rule, 72 Fed. Reg. at 8896–97. First, he asserted

that there was a need to immediately “eliminate any 

possible uncertainty” whether SORNA applied 

retroactively. Id. Second, he contended that waiver was 

necessary in order to “protect the public from sex 

offenders who fail to register” and thereby create 

“practical dangers,” including “the commission of 

additional sexual assaults and child sexual abuse or 

exploitation offenses by sex offenders.” Id. We discuss

each reason in turn.

The desire to eliminate uncertainty, by itself,

cannot constitute good cause. To hold otherwise would 

have the effect of writing the notice and comment 

requirements out of the statute. The Attorney General

states in the Interim Rule that waiver is needed in order 

to eliminate “any possible uncertainty” in regard to the 

retroactive application of SORNA’s registration 

requirements. Interim Rule, 72 Fed. Reg. at 8896 

(emphasis added); see also Dean, 604 F.3d at 1280 

(stating that the Interim Rule’s “guidance rationale is 

particularly important here as the persons who were 

affected by the rule were already convicted of their prior 

crimes and need to know whether to register”). This 

rationale cannot serve as a basis for good cause because

some uncertainty follows the enactment of any law that 

provides an agency with administrative responsibility.

Uncertainty exists because the actual substantive rules 
26

that will eventually result from the delegation are

uncertain until the agency invokes its power to 

promulgate a rule or define the scope of its authority.

Consequently, if elimination of uncertainty were

sufficient to show good cause, then no rule would require 

notice and comment. Nader v. Sawhill, 514 F.2d 1064, 

1068 (Temp. Emer. Ct. App. 1975). An agency’s 

intention to provide clarity, without more, cannot amount 

to good cause.

Further undermining the uncertainty rationale is 

that the elimination of notice and comment, with the 

simultaneous request for postpromulgation comments,

does not achieve the stated goal of eliminating “any” 

uncertainty. Requesting comments on the Interim Rule

implicitly suggests that the rule will be reconsidered and 

possibly changed in light of these comments. But that 

means the level of uncertainty is, at best, unchanged, and 

possibly enhanced because parties do not view the 

Interim Rule as the final version. Johnson, 632 F.3d at 

929 (“[T]he goal of reducing uncertainty is undercut by 

the quest for post-promulgation comments, which could 

have changed the rule.”); Gould, 568 F.3d at 479

(Michael, J., dissenting) (“[T]he possibility of an 

alteration to the interim rule after its promulgation 

increases rather than eliminates uncertainty.” (emphasis 

in original)). Accordingly, if the Attorney General 

intended to eliminate “any possible uncertainty,” the best 

course to have taken would have been to provide for 
27

notice and comment at the start and later issue a final 

rule. His choice not to follow this path undermines his 

stated justification of eliminating uncertainty.

The Government argues that the limiting principle 

to its uncertainty justification is the unique necessity of 

the Interim Rule. Urgent action was required, according 

to the Attorney General, to ensure that “SORNA would 

be enforceable at all as to sex offenders convicted before 

July 27, 2006 [the Act’s effective date].” Gov’t Suppl.

Br. at 19 (emphasis in original). This reasoning is 

unpersuasive for several reasons. First, this argument

assumes that retroactivity was the necessary conclusion 

of the Attorney General’s rulemaking—an assumption 

that is contrary to the very purpose of notice and 

comment for agencies to “maintain[] a flexible and openminded attitude towards its own rules.” Prometheus 

Radio Project, 652 F.3d at 449. Second, a need to 

regulate affected parties does not create the urgency 

necessary to establish good cause. Our prior decisions

have recognized urgency alone as sufficient only when a 

deadline imposed by Congress, the executive, or the 

judiciary requires agency action in a timespan that is too 

short to provide a notice and comment period. See, e.g., 

Schweiker, 669 F.2d at 883 (concluding there was good 

cause when Congress provided only forty-nine days to 

issue comprehensive rules); Am. Iron & Steel, 568 F.2d 

at 292 (concluding there was no good cause when the 

agency had at least three months to promulgate the 
28

regulations at issue). Here, there is no deadline imposed 

by SORNA on the Attorney General other than, perhaps, 

its provision that SORNA’s predecessor statute would 

remain in effect for three years. SORNA §§ 124(a), 

129(b); 42 U.S.C. § 16924. Three years is hardly the 

deadline of mere days we found to be adequate for good 

cause in Schweiker. 669 F.2d at 883. The government’s 

urgency rationale cannot be said to follow from our 

previous urgency cases.

Because no externally-imposed deadline created 

urgency, the Government’s urgency argument must rest 

on the notion that the nature of sex offenses warrants 

good cause. This may be, to some, an appealing intuition 

but it lacks a basis in law. Indeed, if there is any

presumption when it comes to questions of good cause in 

criminal cases, we agree with the D.C. Circuit that “a 

criminal prosecution founded on an agency rule should 

be held to the strict letter of the APA.” United States v. 

Picciotto, 875 F.2d 345, 346 (D.C. Cir. 1989); accord 

Cain, 583 F.3d at 422; Johnson, 632 F.3d at 930. The 

liberty interest at stake is greater than the ordinary civil 

interests litigated in administrative cases. This forecloses 

our adoption of the Government’s position that notice 

and comment are somehow less important in criminal 

cases, and thus easier to waive for good cause, because 

the procedural delay allows criminal harm to continue 

during the time required to comply with the APA. If 

Congress had decided that the harm from delay was too 
29

great to warrant notice and comment, it could have 

statutorily dispensed with the APA requirements or made 

SORNA’s registration requirements retroactive on its 

own. Reynolds, 132 S. Ct. at 981–82. Congress chose not 

to. In light of the subject matter of the Act, Congress’

failure to address the effective date cannot serve as a 

basis for finding good cause on the basis of urgency.

The Government posits that rejecting its

uncertainty argument “would mean that an agency’s 

perception of urgency never could satisfy 5 U.S.C. 

§ 553(b)(B) because every delegation entails some 

delay.” Gov’t Suppl. Br. at 21 (emphasis in original). The 

only rule we establish today is that “an agency’s 

perception of urgency” alone is not sufficient to satisfy 

§ 553(b)(B)’s good cause exception. Section 553(b)(B) 

allows waiver only if notice and comment are 

“impracticable, unnecessary, or contrary to public 

interest.” 5 U.S.C. § 553(b)(B). Urgency for urgency’s 

sake, or “an agency’s perception of urgency,” without 

any supporting evidence, is not among those situations

identified by the statute. As with any other administrative 

agency conclusion, we require some statement of facts or 

circumstances that justifies the existence of good cause 

(e.g. an imminent, externally imposed deadline or the 

existence of an emergency). See, e.g., Schweiker, 669 

F.2d at 883; Haw. Helicopter Operators Ass’n v. F.A.A., 

51 F.3d 212, 214 (9th Cir. 1995) (concluding the FAA 

had good cause when a series of accidents occurred after 
30

Congress passed the relevant legislation showed a need 

for urgent action); DeRieux v. Five Smiths, Inc., 499 F.2d 

1321, 1332 (Temp. Emer. Ct. App. 1974) (concluding 

there was good cause where notice of the rule would 

have resulted in market-distorting behavior). The Interim 

Rule lacks such facts or justification and thus cannot 

constitute a reasoned basis for good cause.

The Attorney General’s second rationale, which 

the Eleventh and Fourth Circuits relied on most heavily, 

is that waiver of the notice and comment requirements

were necessary in order to “protect the public from sex 

offenders who fail to register” thus creating “practical 

dangers,” including “the commission of additional sexual 

assaults and child sexual abuse or exploitation offenses 

by sex offenders.” Interim Rule, 72 Fed. Reg. at 8896–

97; Dean, 604 F.3d at 1281–82; Gould, 568 F.3d at 470. 

This rationale relies on the D.C. Circuit’s explanation 

that good cause can be found “where delay [from notice 

and comment] could result in serious harm.” Chambers 

of Commerce v. SEC, 443 F.3d 890, 908 (D.C. Cir. 

2006). This 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.

Mere restatement of the public safety rationale 

offered in the statute cannot constitute good cause 

because it would allow agencies to circumvent the notice 
31

and comment requirements. The statutory purpose of 

SORNA is “to protect the public from sex offenders and 

offenders against children.” 42 U.S.C. § 16901. The 

Interim Rule’s public safety rationale for good cause, in 

turn, is to reduce “practical dangers” to the public that 

“include the commission of additional sexual assaults and 

child sexual abuse or exploitation offenses by sex 

offenders.” 72 Fed. Reg. at 8897–98. Yet this rationale 

does no more than iterate the harm that “sex offenders 

and offenders against children” represent. Valverde, 628 

F.3d at 1167 (“[T]he Attorney General did little more 

than restate the general dangers of child sexual assault, 

abuse, and exploitation that Congress sought to prevent 

when it enacted SORNA on July 27, 2006.”). Most, if not 

all, laws passed by Congress requiring agencies to 

promulgate new rules are designed to eliminate some real 

or perceived harm. If the mere assertion that such harm 

will continue while an agency gives notice and receives 

comments were enough to establish good cause, then

notice and comment would always have to give way. An 

agency will invariably be able to point to some 

continuing harm during the notice and comment period 

antecedent to the promulgation of a rule. Id. at 1167–68. 

Indeed, one should not expect otherwise: if the statute did 

not address a perceived continuing harm, then Congress 

would not have legislated in the first place. The Attorney 

General’s iteration of the very harm Congress legislated 

against cannot be sufficient justification for good cause.
32

In reaching the opposite conclusion, the Eleventh 

Circuit relied heavily on the D.C. Circuit’s formulation 

that good cause may exist when notice and comment 

would result in “serious harm.” Dean, 604 F.3d at 1281 

(quoting Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 

2004)). We disagree that the public safety rationale 

offered in the record would result in “serious harm.”

Situations that fit within the serious harm justification for 

good cause require some set of facts and circumstances 

showing why the harm at issue demonstrates a need to 

waive the notice and comment requirements. In Hawaii 

Helicopter Operators Ass’n v. F.A.A., for example, the 

FAA waived notice and comment after seven helicopter 

accidents occurred in the first nine months of 1994. 51

F.3d at 214. Based on these accidents, the FAA 

determined that there was “an urgent safety problem that 

[could not] be adequately addressed solely by 

enforcement of existing regulations.” Id. The agency 

went on to provide other facts showing that the safety 

problem was ongoing and that accidents had dramatically 

increased in frequency in recent months. Id. (explaining 

that the agency showed there were twenty accidents from 

1991 to 1994, seven of which occurred in the nine 

months before the rule was issued in late 1994). The 

Ninth Circuit held that this was sufficient to show good 

cause under § 553(b)(B). Id. Hawaii Helicopter thus 

shows what the Sixth and Ninth Circuits have alluded to:

the serious harm justification for waiver requires 

agencies to point to something specific that illustrates a 
33

particular harm that will be caused by the delay required 

for notice and comment. Cain, 583 F.3d at 422 (“[T]he 

Attorney General gave no specific evidence of actual 

harm . . .”); Valverde, 628 F.3d at 1167 (listing possible

situations that might justify the need to waive notice and 

comment).

The D.C. Circuit’s own application of its serious 

harm rationale confirms this specificity requirement. For 

example, in Jifry v. F.A.A., 370 F.3d 1174 (D.C. Cir. 

2004), the FAA relied on the serious harm justification to 

bypass notice and comment in issuing new regulations 

relating to the automatic suspension or revocation of 

alien pilots’ licenses. Id. at 1179–80. The agency 

explained that waiver was necessary “in order to 

minimize security threats and potential security 

vulnerabilities to the fullest extent possible.” Id. The Jifry

Court found this rationale compelling because of the 

agency’s “legitimate concern over the threat of further 

terrorist acts involving aircraft in the aftermath of 

September 11, 2001.” Id. That is, the circumstances 

arising from a specific situation—9/11 in this case—

justified the waiver of notice and comment. Jifry and 

Hawaii Helicopter, therefore, show that an agency 

asserting the “serious harm” justification must state with 

specificity some facts and circumstances which

demonstrate that a new regulation must be swiftly put in 

place.
34

This specificity requirement is little more than a 

demand that an agency comply with § 553(b)(B)’s 

language which requires within the rule “a brief 

statement of reasons” supporting why an agency wishes 

to waive notice and comment. 5 U.S.C. § 553(b)(B). The 

degree of specificity required is not great, as the FAA’s 

reliance on September 11 in Jifry illustrates, but the 

reasons provided must demonstrate the need for a new 

regulation in a shorter-than-usual time span. 

Here, the Interim Rule’s mere restatement of the 

statute’s public safety goal is hardly comparable to the 

specific facts or inferable reasons set forth in Hawaii 

Helicopter or Jifry. The Rule did not point to any event 

that would make a failure to immediately implement the 

rule especially harmful. We lack, for example, any 

factual support for the Rule’s assertion that “additional” 

sex offenses will occur absent immediate rulemaking. 

We do not know whether the Attorney General was 

suggesting that there will be an increase in the frequency 

of these offenses, or simply that the existing harm which 

the underlying legislation sought to address will 

continue. Quite simply, the Interim Rule’s explanations 

rely on nothing more than the nature of the harm being 

regulated to justify waiver. The Government’s “serious 

harm” rationale does not constitute a reasoned basis for 

good cause.

The Eleventh Circuit’s formulation of the “serious 
35

harm” rationale in Dean to permit waiver for good cause 

whenever “delay would do real harm” only reinforces the 

need for a specificity requirement. Dean, 604 F.3d 

at 1281. All, or at least the vast majority of, regulations 

are designed to mitigate or eliminate some harm that is 

presumably real. The delay in promulgating any 

regulation will thus “do real harm” because it will allow 

the currently existing harm addressed by the statute to 

continue unabated during the notice and comment period. 

To avoid the good cause exemption swallowing up notice 

and comment requirements, a limiting principle is 

needed. Hawaii Helicopter and Jifry demonstrate that the 

Government must explain why the harm targeted by the 

regulation will worsen unless notice and comment is 

dispensed with.

Accordingly, the Eleventh Circuit’s distinguishing 

of the Sixth and Ninth Circuits’ reasoning on the basis 

that those cases limited good cause to emergency 

situations without recognizing the serious harm or real 

harm rationale does not convince us that the Interim Rule 

adequately set out good cause. Dean, 604 F.3d at 1281.

Even were we to agree that the emergency rationale for 

good cause is distinct from the serious harm rationale—a 

distinction that is difficult to make in a meaningful 

way—the Attorney General must still explain why the 

harm caused by delay here is unique in a way that 

warrants dispensing with notice and comment. The 

Eleventh Circuit does not point to any such explanation 
36

by the Attorney General, relying instead on the 

“practical” benefits obtained from retroactivity, such as 

the reduced risk of sex offenses by sex offenders and the 

increased ability to apprehend sex offenders who fail to 

register. Id. The absence of a citation to the Interim Rule 

in the Eleventh Circuit’s explanation is telling and 

demonstrates the weakness of the Attorney General’s 

justification. Id.

We therefore hold that the Interim Rule did not 

provide sufficient justification to constitute good cause

for the waiver of notice and comment.

C. Prejudice

Our conclusion that the Attorney General lacked 

good cause to waive notice and comment does not end 

our analysis. The APA requires that “due account shall 

be taken of the rule of prejudicial error” when courts 

review agency actions. 5 U.S.C. § 706(F). This means 

that we must determine whether the agency’s error is 

harmless. Shinseki v. Sanders, 556 U.S. 396, 407 (2009).

The courts of appeals that have concluded that the 

Attorney General lacked good cause to waive notice and 

comment are divided over whether this error was 

harmless.11

 11 Our prejudice analysis is limited to the Attorney 

General’s lack of good cause to waive the notice and 

comment requirements found in § 553(b)–(c). We agree 

The Fifth Circuit has concluded that the 
37

Attorney General’s error was harmless. Johnson, 632 

F.3d at 930–32; see also Dean, 604 F.3d at 1288–89 

(Wilson, J., concurring) (arguing that the Dean majority 

was incorrect in holding that the Attorney General had 

good cause but concurring on grounds that the error is 

harmless). The Sixth Circuit has concluded that the 

Attorney General’s error was not harmless. United States 

v. Utesch, 596 F.3d 302, 312–13 (6th Cir. 2010). We 

agree with the Sixth Circuit, albeit for difference reasons. 

None of the courts of appeals have addressed how the 

criminal nature of the case before them affects the 

harmless error analysis. We conclude that this 

characteristic has important meaning because it shifts the 

burden of showing harmlessness onto the Government. It 

is a burden that the Government cannot meet here.

The Government bears the burden of showing that 

the failure to provide notice and comment was harmless 

because of the liberty interest at stake in a criminal 

proceeding. In Sanders, the Supreme Court interpreted a 

similar prejudice provision, 38 U.S.C. § 7261(b)(2), 

which provides that the Veterans Court must “take due 

 

with the Fifth Circuit that Reynolds cannot argue he was 

prejudiced by the Attorney General’s lack of good cause 

to waive the thirty-day notice requirement in § 553(d) 

because the alleged conduct in the indictment took place 

more than thirty days after the Interim Rule was 

promulgated. Johnson, 632 F.3d at 930.
38

account of the rule of prejudicial error.” Sanders, 556 

U.S. at 407. The Court treated § 7261(b)(2) and § 706 of 

the APA as identical in their incorporation of the 

harmless error rule. Id. Specifically, the Court explained 

that the language found in these provisions requires

courts “to apply the same kind of ‘harmless error’ rule 

that courts ordinarily apply in civil cases” and that “the 

APA’s reference to ‘prejudicial error’ [in § 706] is 

intended to ‘sum up in succinct fashion the harmless 

error rule applied by the courts in review of lower court 

decisions as well as of administrative bodies.’” Id. 

(quoting Dept. of Justice, Attorney’s general Manual on 

the Administrative Procedures Act 110 (1947)) 

(emphasis in original). This could be read to incorporate 

civil harmless-error review only, but the Court concluded 

that its review of the Federal Circuit’s harmless error

approach for review of the Veterans Court in Sanders

would be conducted “in light of [the Court’s] general 

case law governing application of the harmless error

standard.” Id. (emphasis added). Furthermore, the 

language in § 706 that incorporates the rule—“due 

account shall be taken of the rule of prejudicial error,” 5 

U.S.C. § 706—does not make a distinction between civil 

or criminal harmless error review. Instead, as the Sanders

Court suggests by its review “in light of the general case 

law,” the language of § 706 plainly incorporates the 

entire body of harmless error jurisprudence.

This incorporation is notable here because 
39

harmless error doctrine distinguishes between civil and 

criminal matters in allocating the burden of proof. In civil 

matters, the “party seeking reversal normally must 

explain why the erroneous ruling caused harm.” Sanders, 

556 U.S. at 410. In criminal matters, however, the 

Government has the burden of proving that an error did 

not cause harm. Id. (“But we have placed [the burden to 

show error was harmless] on the appellee only when the 

matter underlying review was criminal.”). The burden 

shifts in criminal matters because “the Government seeks 

to deprive an individual of his liberty, thereby providing 

good reason to require the Government to explain why an 

error should not upset the trial court’s determination.” Id. 

Here, Reynolds’s liberty is at stake. Accordingly, the 

Government must bear the burden of showing that the 

failure to provide notice and comment did not cause 

harm.

The Government argues that this conclusion is 

erroneous because sex-offender registration-regimes like 

SORNA impose only civil penalties. Smith v. Doe, 538 

U.S. 84, 105–06 (2003) (holding that a sex-offender 

registration-regime did not violate the Ex Post Facto 

Clause because it is a “civil regulatory scheme”); United 

States v. Parks, 698 F.3d 1, 6 (1st Cir. 2012) (applying 

the Smith rationale to reject an ex post facto argument 

against SORNA). These registration regimes are

therefore civil ones for which, the Government argues,

we would apply the harmless-error framework that we 
40

apply in any other civil matter. This argument is similar 

to the Government’s argument in O’Neal v. McAninch, 

513 U.S. 432 (1995), that a petitioner requesting relief 

through the writ of habeas corpus must bear the burden 

of showing that errors were prejudicial because habeas 

proceedings are civil proceedings. Id. at 440. The 

Supreme Court rejected that argument on the basis that it 

“fail[ed] to take into account the stakes involved in a 

habeas proceeding.” Id. As the Court explained,

“although habeas is a civil proceeding, someone’s 

custody, rather than mere civil liability, is at stake.” For 

that reason, the petitioner did not have the burden of 

showing that the error was harmful. Id. O’Neal makes 

clear that the nature of the underlying statutory regime 

does not control our analysis. Instead, as seen in Sanders 

and O’Neal, the nature of the interests at stake in the 

proceeding before the court are determinative. The 

Government’s reliance on the civil nature of SORNA’s 

registration requirements to shift the burden to Reynolds

is misguided.

The Government’s task in carrying this burden is 

difficult here. The Attorney General chose to completely 

forego notice and comment; he did not merely commit 

some technical error in providing a notice and comment 

period. In the ordinary civil case, prejudice from the 

failure to comply with the notice and comment regime 

falls into two general categories. In the first category, the 

agency has provided some notification and method for
41

commenting but some technical failure in that process 

violates statutory requirements. City of Waukesha v. 

EPA, 320 F.3d 228, 246 (D.C. Cir. 2003). In these 

“technical failure” cases, the party challenging the 

agency rule “may be required to demonstrate that, had 

proper notice been provided, they would have submitted 

additional, different comments that could have 

invalidated the rationale” of the rule. Id. In the second 

category of cases, “the agency [has] entirely failed to 

comply with notice and comment requirements and the 

agency has offered no persuasive evidence that possible 

objections to its final rules have been given sufficient 

consideration.” Shell Oil Co. v. EPA, 950 F.2d 741, 752 

(D.C. Cir. 1991). In these “complete failure” situations, 

the petitioner does not need to show that he would have 

offered comments that would have invalidated the 

rationale underlying the promulgated rule. Id.; see also 

McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 

1323–24 (D.C. Cir. 1988) (explaining that the 

“imposition of [ ] a burden [to show specific prejudice] 

on the challenger is normally inappropriate where the 

agency has completely failed to comply with § 553”).

Instead, the “utter failure to comply with notice and 

comment cannot be considered harmless if there is any 

uncertainty at all as to the effect of that failure.” Sugar 

Cane Growers Co-op of Fla. v. Veneman, 289 F.3d 89, 

96 (D.C. Cir. 2002). That means that, in civil cases, the 

party challenging the administrative rule has a heavier

burden when the errors that have occurred in the process 
42

are only technical as opposed to when the agency has 

completely failed to provide notice and comment.

This distinction between technical errors and 

complete procedural failures is a sensible one: it is driven 

by a concern that harmless error analysis could be used to 

eliminate the notice and comment requirements together 

with a recognition that the underlying purposes of 

§ 553’s requirements are often satisfied when the errors 

made are mere technical ones. As the D.C. and Ninth 

Circuits have explained, “if the government could skip 

[§ 553] procedures, engage in informal consultation, and 

then be protected from judicial review unless a petitioner 

could show a new argument—not presented informally—

section 553 obviously would be eviscerated.” Sugar 

Cane Growers, 289 F.3d at 96. This risk is genuine

because “[a]n agency is not required to adopt a rule that 

conforms in any way to the comments presented to it.” 

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 

(9th Cir. 1992). So “if the harmless error rule were to 

look solely to result, an agency could always claim that it 

would have adopted the same rule even if it had complied 

with the APA procedures.” Id. Accordingly, “[t]o avoid 

gutting the APA’s procedural requirements, harmless 

error analysis in administrative rulemaking must [ ] focus 

on the process as well as the result.” Id. 

Focusing on the process has allowed courts to 

make a meaningful distinction between technical errors 
43

and complete failures of notice and comment. Technical 

errors are often harmless absent a demonstration that the 

challenger would have made a comment to the rule not 

considered by the agency because these errors often do 

not prevent the purposes of notice and comment from 

being satisfied. Id. We have previously explained that 

“[a]mong the purposes of the APA’s notice and comment 

requirements are ‘(1) to ensure that agency regulations 

are tested via exposure to diverse public comment, (2) to 

ensure fairness to affected parties, and (3) to give 

affected parties an opportunity to develop evidence in the 

record to support their objections to the rule and thereby 

enhance the quality of judicial review.’” Prometheus 

Radio Project, 652 F.3d at 449 (quoting Int’l Union, 

United Mine Workers of Am. v. Mine Safety & Health 

Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)). “In 

addition, ‘a chance to comment . . . [enables] the agency 

[to] maintain[] a flexible and open-minded attitude 

towards its own rules.’” Id. (quoting McLouth Steel 

Prods., 838 F.2d at 1325). As part of achieving these 

purposes, “there must be an exchange of views, 

information, and criticism between interested persons and 

the agency.” Id. (quoting Home Box Office, Inc. v. 

F.C.C., 567 F.2d 9, 35–36 (D.C. Cir. 1977)). 

These purposes are often fulfilled despite the 

presence of technical errors. In Riverbend Farms, for 

example, the Secretary of Agriculture’s weekly final 

rules that set quantity limitations on navel orange 
44

production were challenged on procedural grounds. 958 

F.2d at 1482–84. These final rules were reached in a two 

step process. First, there was an annual marketing policy 

that interested parties were notified about and given a 

chance to discuss at a public hearing that predicted the 

weekly restrictions. Second, there were weekly meetings

during the growing season that growers were notified of 

and could comment on at a public meeting. The final 

recommendation for the appropriate restriction for the 

week was made after the meeting and became the 

Secretary’s final rule. Id. at 1483. Although this process 

did not conform with § 553’s requirements because the 

meetings were not publicized in the Federal Register and 

there was no opportunity for written comments, id. 

at 1485–87, the error was deemed harmless, id. at 1487. 

The parties had participated for decades in the

rulemaking process used by the Secretary, and that 

process included notification to interested parties as well 

as consideration of comments received. Id. This, the 

court held, was determinative because it showed that the 

“purposes” of the notice requirement were fulfilled and 

that the process “afforded the public a full and fair 

opportunity to be heard.” Id. (quoting Sagebrush 

Rebellion, Inc. v. Hodel, 790 F.2d 760, 769 (9th Cir. 

1986)). In short, the technical errors in the process used 

did not prevent the “exchange of views, information, and 

criticism between interested persons and the agency” 

which is the very essence of notice and comment 

requirements. This allowed the Riverbend Farms Court 
45

to conclude that the errors were harmless.

These harmless technical errors stand in contrast 

to an agency’s complete failure to comply with § 553’s 

requirements. In those situations, the purposes of notice 

and comment often cannot be fulfilled because there has 

been no effort to have the kind of exchange of views and 

information the requirements are intended to generate. 

Without notice and comment, the regulations are not 

tested by public input nor do and interested parties have 

an opportunity to develop a record for judicial review. 

The lack of a record makes it very difficult for a 

reviewing court to “say with certainty whether 

petitioner’s comments would have had some effect if 

they had been considered when the issue was open,” even 

if we are not sure what those comments would have been. 

McLouth Steel Prods., 838 F.2d at 1324. This doubt 

provides uncertainty “as to the effect of [the] failure,” 

which means that courts are often hard-pressed to 

conclude that the failure has actually resulted in 

prejudice. Sugar Cane Growers, 289 F.3d at 96 (“[U]tter 

failure to comply with notice and comment cannot be 

considered harmless if there is any uncertainty at all as to 

the effect of that failure.”). Courts, then, should be 

hesitant to conclude that complete failure to comply with 

§ 553’s requirements is harmless.

This is not to say that there is a presumption of 

harm when an agency does not provide notice and 
46

comment—only that the nature of complete failure often 

results in courts’ finding prejudice. Courts do find that 

the complete failure to provide for notice and comment is 

harmless, for instance, when an agency’s substantive rule 

is “the only reasonable one” that the court “would reverse 

. . . if [the agency] came out the other way.” Sheppard v. 

Sullivan, 906 F.2d 756, 762 (D.C. Cir. 1990). In other 

words, there is no harm from a complete failure when the 

administrative record demonstrates that the conclusion 

reached in the administrative rule was the only possible 

conclusion. In these instances, the lack of notice and 

comment could not have caused harm because the facts 

and circumstances reveal that the substantive conclusion 

reached was the only one possible. That makes testing 

the rule through public comment and the development of 

an administrative record unnecessary. See id. at 761 

(explaining that the language of the statute at issue and 

the statute’s legislative history foreclosed any reading of 

the provision different from the agency’s). 

In the cases discussed above, courts have discussed 

possible prejudice in the civil context. Here, we must 

determine how shifting the burden from the complaining 

party to the Government affects the analysis. In civil 

cases, the burden on a party challenging a rule is more 

difficult to satisfy when the errors are technical than 

when an agency has failed completely to provide notice 

and comment. In the criminal context, the Government 

will have a heavier burden to show that its complete 
47

failure to comply with § 553’s requirements did not cause 

prejudice than if it had made only technical errors in the 

promulgation of the relevant rule. The reasons are 

obvious. In technical-error cases, the Government will 

more likely have undergone a process that provided 

notice and permitted some exchange of ideas. That 

process makes the fulfillment of § 553’s purposes more 

probable and the risk of circumvention less so. On the 

other hand, in complete-failure cases, the government 

will not be able to rely on a process that independently 

satisfies the purpose of requiring notice and comment. It 

will only be able to assert that the decision it made was 

inescapable regardless of what comments could have 

been made.

Here, the Government’s burden is heavy because 

the Attorney General completely failed to provide notice 

and comment. We conclude that the Government cannot 

carry that burden. First, as with most “complete failure”

situations, the Government has not shown that the 

purposes of notice and comment have been satisfied. The 

Interim Rule was never “tested via exposure to diverse 

public comment,” Prometheus Radio Project, 652 F.3d 

at 449. There was never an opportunity for Reynolds—or 

any other interested party—to provide meaningful 

comments relating to the substance of the rule. This also 

means that interested parties never had the “opportunity 

to develop evidence in the record” to enable more 

effective review. Id. Any suggestion that the 
48

postpromulgation comments to the Interim Rule can 

satisfy these purposes misses the point. See Sharon Steel 

Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979) (“We 

hold that the period for comments after promulgation 

cannot substitute for the prior notice and comment 

required by the APA.”). 

The Government also has not shown that the 

Attorney General “maintain[ed] a flexible and openminded attitude towards” the Interim Rule. Prometheus 

Radio Project, 652 F.3d at 449. The Interim Rule 

demonstrates a single-minded commitment to the 

substantive result reached: the complete retroactive 

application of SORNA’s registration requirements to sex 

offenders who were convicted before SORNA’s 

enactment. The Attorney General states that the Interim 

Rule “serves the narrower, immediately necessary 

purpose of foreclosing any dispute as to whether SORNA 

is applicable” to pre-SORNA offenders. Interim Rule, 72 

Fed. Reg. at 8896 (emphasis added). He sought to 

eliminate “any dispute” because “sex offenders with 

predicate convictions predating SORNA who [did] not 

want to be subject to the SORNA registration 

requirements, or who wish[ed] to avoid being held to 

account for having violated those requirements, [had] not 

been barred from attempting to devise arguments that 

SORNA is inapplicable to them.” Id. (emphasis added). 

The Attorney General thus states that the purpose of the 

Interim Rule is to eliminate any dissenting points of view 
49

about whether SORNA’s registration requirements were 

to be applied retroactively—the very subject matter about 

which he was to keep an “open mind.” Under those 

circumstances, the Interim Rule can hardly be seen as 

fulfilling the purposes of notice and comment.

The failure to satisfy these purposes is especially

troubling because the Attorney General’s decision to 

issue the Interim Rule undermines the very essence of 

why notice and comment is required. “[T]he essential 

purpose of according § 553 notice and comment 

opportunities is to reintroduce public participation and 

fairness to affected parties after governmental authority 

has been delegated to unrepresentative agencies.” Dia 

Nav. Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1265 (3d Cir. 

1994). Notice and comment “avoid[s] the inherently 

arbitrary nature of unpublished ad hoc determinations.” 

Morton v. Ruiz, 415 U.S. 199, 232 (1974). Here, the lack 

of an opportunity for anyone to comment on the Interim 

Rule means that there was never a reintroduction of 

public participation “after governmental authority [had] 

been delegated to [an] unrepresentative agenc[y].” Dia 

Nav., 34 F.3d at 1262. And without public participation, 

all that is left before an agency promulgates a rule is the 

agency’s ipse dixit that its determination will not be

arbitrary and that it is fair to affected parties. 

Even the timing of the Interim Rule undermines 

the reliability of the agency’s justification. The rule was 
50

promulgated only after the Attorney General realized that 

his interpretation that SORNA’s registration 

requirements were automatically retroactive was 

incorrect. Reynolds’s conviction thus appears to rest not 

on carefully considered facts and reason but on a hasty 

reaction from an Attorney General caught by surprise 

when courts, including the Supreme Court, disagreed 

with his interpretation of SORNA. More troubling is that 

this hasty reaction resulted in an interim rule that 

reiterated the substantive, unpublished judgment 

expressed in litigation (that SORNA was retroactive for 

all pre-SORNA offenders) before the Interim Rule was 

issued—exactly the type of “unpublished ad hoc 

determination[]” that is “inherently arbitrary [in] nature” 

and that notice and comment are intended to avoid, 

Morton, 415 U.S. at 232. 

The Government cannot show therefore that the 

promulgation of the Interim Rule has satisfied the 

purposes of notice and comment. Like other “complete

failure” situations, the process used to promulgate the 

rule was completely devoid of the “exchange of views, 

information, and criticism between interested persons and 

the agency” that ensures well-reasoned and fair rules. 

Prometheus Radio Project, 652 F.3d at 449. The 

Government has not provided any reason to believe that 

the purposes of notice and comment are satisfied through 

other means. Accordingly, it has not met its burden of 

showing that the failure to comply with notice and 
51

comment did not harm Reynolds.

Furthermore, the Government cannot show that the 

Attorney General’s conclusion was inescapably correct. 

The strongest argument the Government can muster that

full retroactivity was the only possible conclusion is the 

Fifth Circuit’s rationale that “the Attorney General’s 

interim rulemaking [ ] involved a yes or no decision,” 

rather than a “complex regulatory decision” that involved 

“nuanced and detailed regulations that greatly benefit 

from expert regulated entity participation.” Johnson, 632 

F.3d at 932. But the Supreme Court, in this very case, 

recognized that whether to make SORNA’s registration 

requirements retroactive and the scope of any retroactive 

application did not resemble an on–off switch. Before 

remanding this case, the Supreme Court recognized the 

“practical problems arising when the Act sought to apply 

[ ] new registration requirements to pre-Act offenders.” 

Reynolds, 132 S. Ct. at 981–82. And the Court noted that 

Congress knew that SORNA “could require newly 

registering or re-registering ‘a large number’ of pre-Act 

offenders,” which “could prove expensive” and “might 

not prove feasible to do [ ] immediately.” Id. at 981 

(citing Final Rule, 73 Fed. Reg. at 38063). These 

considerations, the Court observed, “might have 

warranted different federal registration treatment of 

different categories of pre-Act offenders.” Id. Congress’

delegation to the Attorney General was thus a delegation 

“to examine these pre-Act offender problems” and 
52

develop “one efficient and desirable solution.” Id. 

Accordingly, the Attorney General’s decision regarding 

the retroactivity of SORNA’s registration requirements 

cannot be considered a foregone conclusion.

As the Supreme Court points out, the Attorney 

General recognized that his retroactivity decision was not

a yes-or-no decision. In the Final Rule, the Attorney 

General distinguishes between categories of pre-SORNA

offenders. See id. (citing the Final Rule and a later 

SORNA regulatory decision to support its conclusion that 

“different categories of pre-Act offenders” might warrant 

“different federal registration treatment”). The Final Rule 

thus requires jurisdictions to register offenders “who 

remain in the system as prisoners, supervisees, or 

registrants, or reenter the system through subsequent 

convictions.” It does not require the registration of 

“offenders who have fully left the system and merged 

into the general population.” Final Rule, 73 Fed. Reg. 

at 38035. Although this distinction is made only for 

determining if a state is complying with SORNA—rather 

than what obligations are imposed on the sex offenders 

themselves, Final Rule, 73 Fed. Reg. at 38035—the 

distinction shows that the Attorney General’s decision to 

make the registration requirements uniformly retroactive 

was not necessarily an across the board yes or no.

The Fifth Circuit’s Johnson decision offered 

several other justifications in an effort to show that the
53

complete failure of notice and comment here was 

harmless.12

 12 The reasoning found in Johnson largely tracks Judge 

Wilson’s arguments in his Dean concurrence, 604 F.3d at 

1288–89 (Wilson, J. concurring). Our analysis is 

intended to address both.

Central to its conclusion that the results 

Judge Wilson includes an additional argument based on 

the 1995 Administrative Conference of the United States 

recommendation regarding good cause exceptions:

Where an agency has used postpromulgation comment procedures, 

responded to significant adverse comments 

and ratifies or modified the rule as 

appropriate, the Conference suggests that a 

reviewing court generally should not set 

aside that ratified or modified rule solely on 

the basis that adequate good cause did not 

exist to support invoking the exemption 

initially. At this stage, the agency’s initial 

flawed finding of good cause should 

normally be treated as harmless error with 

respect to the validity of the ratified or 

modified rule.

Adoption of Recommendations, Recommendation 8-32, 

“The ‘Good Cause’ Exemption from APA Rulemaking 

Requirements,” 60 Fed. Reg. 43108, 43112 (Aug. 18, 

1995) (emphasis added). The emphasized text shows why 
54

would not have differed if notice and comment had been 

conducted, 632 F.3d at 933, was its determination that 

“the interim rule publication addressed counterarguments and set forth the basis and purpose of the 

rule,” id. at 931. Specifically, the Fifth Circuit pointed to 

the Attorney General’s discussion of his “authority to 

prosecute pre-enactment offenders for failing to register,” 

rejection of arguments made by the defendants in 

litigation that SORNA should not apply to them (such as 

ex post facto arguments), and explanation that 

retroactivity furthered the purpose of SORNA. Id. 

at 931–32. Finally, the Court relied on the fact that 

“[t]here is no suggestion that, if given the opportunity to 

comment, [the defendant] would have presented an 

argument the Attorney General did not consider in 

issuing the interim rule.” Id. at 932. In essence, the Fifth 

Circuit determined that the Attorney General addressed 

all possible arguments that could have been suggested 

through notice and comment.

We find this reasoning unpersuasive. First, the 

Fifth Circuit’s reasoning misplaces the burden of 

harmless-error analysis on the defendant. Second, the 

 

Judge Wilson’s reliance on the recommendation is 

unpersuasive. The conference’s focus is on the final rule, 

not the initial rule. Reynolds does not challenge the 

validity of the Final Rule, thereby rendering the 

conference’s statement inapposite.
55

Fifth Circuit relied on arguments presented in litigation

(but not in the Interim Rule) to satisfy the APA’s notice 

and comment requirements—an approach wholly 

unsupported by law. See id. at 932. Furthermore, this 

approach contradicts the longstanding requirement that 

we restrict our review to the administrative record. Motor 

Vehicle Mfrs. Ass’n, 463 U.S. at 50; Dougherty v. U.S. 

Board for Correction of Naval Records, 784 F.2d 499, 

501 (3d Cir. 1986) (citing Florida Power & Light Co. v. 

Lorion, 470 U.S. 729, 743–44 (1985)).

The final reason we cannot agree with the Johnson

Court’s evaluation of the administrative record is that the 

record does not support a conclusion that the Attorney 

General’s evaluation was truly comprehensive. It is true 

that the Attorney General discussed the potential ex post 

facto argument against SORNA and sought to justify his 

rule by linking it to the law’s purpose. Interim Rule, 

72 Fed. Reg. at 8896. But the Interim Rule is not all 

inclusive. It does not respond to several arguments 

addressed in the Final Rule that were “concerns of a 

more practical nature.” These included “difficulties in 

finding older convictions and determining whether 

registration is required for them under SORNA’s 

standards” and concerns about whether Congress’

delegation of the retroactivity question should be 

construed narrowly out of concerns for fairness. Final 

Rule, 73 Fed. Reg. at 38031. Furthermore, there is no 

evidence that the Attorney General considered an 
56

alternative to across-the-board retroactivity for all sex 

offenders in the Interim Rule. These gaps in the Interim 

Rule’s justification—along with the more natural reading 

of the rule as a reassertion of the Attorney General’s 

interpretation of SORNA in an effort to silence 

dissenters—all suggest that the Government has failed to 

demonstrate that the conclusion it reached was truly the 

only one available.

The Fifth Circuit also declared that “Johnson 

neither proposes comments he would have made during a 

comment period nor did he choose to involve himself in 

the post-promulgation comment period.” Johnson, 632 

F.3d at 933. Reynolds likewise has not proposed any 

comments he would have submitted nor has he suggested 

how he would have involved himself in the process itself. 

Government Supplemental Br. at 35. The Fifth Circuit 

recognized that the defendant’s “participation in these 

alternative comment forums is not required to find 

prejudice,” but further supported its reliance on this 

reasoning that “Johnson had constructive notice that the 

Attorney General would apply SORNA to pre-enactment 

offenders’ when the Attorney General issued the 

[Proposed Guidelines] on May 30, 2007.” Johnson, 632 

F.3d at 933. 

This argument fails because it does not recognize 

that the prejudice-causing event is the complete absence 

of notice and comment on the Interim Rule—rather than 
57

the Final Rule—from anyone. Fundamentally, the 

Johnson Court’s argument is that defendants like

Reynolds are not prejudiced when they have shown no 

interest in participating in the notice and comment 

period. But, as the Fifth Circuit notes, there is nothing 

that requires a defendant to do so before a court may find 

prejudice. Id. If a comment period had been provided, 

others who could have asserted his interest—such as 

public defenders and public-interest groups—would 

almost certainly have weighed in. See, e.g., 3d Supp. 

App’x at 102–07 (post-promulgation comments to the 

Interim Rule by juvenile justice organizations arguing for 

withdrawal of the Interim Rule), 142–48 (postpromulgation comments by New Jersey Public 

Defender’s Office arguing that SORNA should not be 

made retroactive), 155–56 (post-promulgation comments 

by Virginia Attorney General Robert McDonnell 

expressing concern about the cost of making SORNA 

uniformly retroactive). The argument that Reynolds was 

on constructive notice by virtue of the notice of 

rulemaking is beside the point. To the extent this 

argument is intended to support the notion that Reynolds 

would have known that SORNA applied to him, the 

argument is incorrect. The very nature of the publication 

of the Proposed Guidelines was to state that the rules 

included in the Guidelines might come into effect—not 

that the rules were already in effect. These justifications

simply cannot carry the Government’s burden.
58

The remaining justification offered by the Fifth 

Circuit is that “the final rulemaking process with full 

APA comment did not change the Attorney General’s 

decision.” Id. at 932–33. This also cannot support a 

finding of no prejudice, for it would allow agencies to 

avoid notice and comment by simply issuing an interim 

rule and subsequently adopting it as the final rule. See 

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 

129–30 (3d Cir. 1993) (rejecting a no-prejudice argument 

asserting that the procedural error was harmless because 

it did not change the result after reconsideration since

having to file a suit to force reconsideration was enough 

to find prejudice); accord Utesch, 569 F.3d at 312 (“[A] 

reviewing court must focus not merely on the ultimate 

rule but on the process of an administrative rulemaking; 

otherwise, an agency could always violate the APA’s 

procedural requirements . . .”). We cannot countenance a 

justification which has the potential for such mischief.

Our rejection of each of the reasons offered by the 

Fifth Circuit, upon which the Government relies here, 

leaves the Government empty-handed. The Government 

cannot show that the process used to promulgate the 

Interim Rule satisfies the purposes of § 553 or that the 

substantive rule was so inescapable that we would have 

reversed the Attorney General if he had taken an 
59

alternative approach.13 The Johnson Court’s arguments 

are either foreclosed by the Supreme Court’s reasoning in 

Reynolds, unsupported by the administrative record, or 

unpersuasive in light of our placing of the burden on the 

Government. Accordingly, the Government has failed to 

show that lack of notice and comment did not prejudice 

Reynolds.14

 13 The failure of the proffered justifications also shows 

that Reynolds can demonstrate prejudice even if he had 

the burden of showing prejudice. In this situation, 

Reynolds could carry his burden by showing that the 

agency completely failed to provide notice and comment 

and that the result was not inescapable. See City of 

Waukesha, 320 F.3d at 246. As seen, both of these 

conditions have been satisfied. We cannot say, therefore, 

that there is no “uncertainty at all” that the effect of the 

Attorney General’s failure was harmless. Sugar Cane 

Growers, 289 F.3d at 96. Accordingly, we would 

conclude that Reynolds was prejudiced even if he was 

required to carry the burden.

14 In addition to the reasons offered, we note that 

prejudice might be found here because our holding that 

the Interim Rule is invalid could necessarily mean that 

there is no legal basis for Reynolds’s conviction. At oral 

argument, the Government contended that the Interim 

Rule could still serve as the basis for his conviction even 

if we were to hold that it was illegally promulgated. Oral 
60

 

Arg. Tr. at 34: 23–24 to 35:1–9. How this can be is 

unclear. Section 706 requires courts to “hold unlawful 

and set aside agency action, findings, and conclusions” 

that cannot withstand review under the standards 

provided in the section. Our ruling that the Interim Rule 

cannot survive review under any standard in § 706 would 

thus seem to require that we “hold unlawful” and “set 

aside” the Interim Rule such that it cannot be the basis 

for Reynolds’s conviction.

Prejudice follows because prejudice appears to be 

presumed when courts conclude that the law underlying 

the defendant’s conviction is invalid. See United States v. 

Stevens, 130 S. Ct. 1577, 1583, 1592 (2010) (affirming 

the vacation of a conviction because the underlying 

statute violated the First Amendment without undergoing 

a prejudice analysis); United States v. Alvarez, 132 S. Ct. 

2537, 2542, 2551 (2012) (same). Such a presumption 

would only be possible if the absence of a legal basis is 

structural error. Neder v. United States, 527 U.S. 1, 7 

(1999). Whether structural error is present when the 

conduct underlying an indictment is not actually 

unlawful, because the law making the conduct unlawful 

is invalid, is one aspect of a question the Supreme Court 

has thus far avoided. United States v. Resendiz-Ponce, 

549 U.S. 102, 116–17 (2007) (Scalia, J., dissenting) 

(explaining that the majority avoided the question of 
61

* * *

For all of these reasons, we decline to decide the 

appropriate standard of review for agency assertions of 

good cause; we join the Fifth, Sixth, and Ninth Circuits 

in holding that the Attorney General did not have good 

cause to waive notice and comment in promulgating the 

Interim Rule to make SORNA’s registration requirement 

retroactive; and we join the Sixth Circuit in holding that 

the lack of good cause was prejudicial. We will, 

therefore, vacate Reynolds’s conviction.

 

“whether a constitutionally deficient indictment is 

structural error”).

These issues have not been fully briefed and there is an 

adequate alternative basis for finding prejudice. 

Accordingly, we decline to resolve both whether 

determining that an administrative rule is invalid under 

§ 706 is comparable to concluding that a statute is invalid 

under the constitution and whether the lack of legal basis 

for an indictment constitutes structural error.
FISHER, Circuit Judge, concurring.

I join the judgment vacating Reynolds’ conviction. 

I concur with the majority in regard to the applicable 

standard of review and the Attorney General’s lack of 

good cause to forego the APA’s notice and comment 

procedures. However, I take a different approach to the 

prejudice analysis under 5 U.S.C. § 706.

Because the interests at stake in this matter are 

criminal in nature, the government bears the burden of 

showing that the failure to provide notice and comment 

was harmless. Maj. Op. Part II.C (citing Shinseki v. 

Sanders, 556 U.S. 396, 407 (2009) and O’Neal v. 

McAninch, 513 U.S. 432, 440 (1995)). An utter failure, 

as opposed to a mere technical failure, to provide notice 

and comment cannot be considered harmless if there is 

any uncertainty as to the effect of the failure. Id. (citing

Sugar Cane Growers Co-op of Fla. v. Veneman, 289 F.3d 

89, 96 (D.C. Cir. 2002)). Thus, the failure to provide 

notice and comment will be considered harmless only if 

the substantive conclusion reached in the absence of 

notice and comment was the only reasonable one (i.e., we

would have reversed if the agency had arrived at a 

different conclusion). Id. (citing Sheppard v. Sullivan, 

906 F.2d 756, 762 (D.C. Cir. 1990)).

The substantive conclusion of the Interim Rule 

concerned one specific aspect of SORNA – pre-Act 

offenders’ obligations under the statute. See 42 U.S.C. 

§ 16913; 72 Fed. Reg. 8894 (“The Department of Justice 

is publishing this interim rule to specify that the 
2

requirements of [SORNA] apply to sex offenders 

convicted . . . before the enactment of that Act.”); see 

also 28 C.F.R. § 72.1. The substantive conclusion of the 

Interim Rule did not concern the other prominent aspect 

of SORNA – incorporation of standards by non-federal 

jurisdictions. See 42 U.S.C. § 16912; 72 Fed. Reg. 8895 

(describing the two main aspects of SORNA).

Based on the Supreme Court’s recognition of the

“practical problems” that arose “when the Act sought to 

apply the new registration requirements to pre-Act 

offenders,” the majority reasons that the Interim Rule’s

conclusion was not the result of a simple “yes-or-no

decision.” Maj. Op. Part II.C (quoting Reynolds v. 

United States, 132 S. Ct. 975, 981 (2012)). These 

“practical problems,” however, were not relevant to the 

Interim Rule’s conclusion; rather, these were problems 

associated with incorporation of SORNA’s standards by 

non-federal jurisdictions. The Supreme Court 

specifically stated that the “problems arise out of the fact 

that the Act seeks to make more uniform a patchwork of 

pre-existing state systems,” and that “[d]oing so could 

require newly registering or re-registering a large number 

of pre-Act offenders.” Reynolds, 132 S. Ct. at 981 (citing 

73 Fed. Reg. 38063) (internal quotation marks omitted).

Notably, the Supreme Court also stated that 

“[t]hese same considerations might have warranted 

different federal registration treatment of different 
3

categories of pre-Act offenders.” Id. However, this 

observation was based on a provision of the final 

guidelines that also pertained to incorporation of 

SORNA’s standards by non-federal jurisdictions. Id.

(citing 73 Fed. Reg. 38035-36 and 38046-47). The 

provision allows non-federal jurisdictions to meet 

SORNA’s incorporation requirements without registering 

pre-Act offenders who left the system after they were no 

longer required to register. 73 Fed. Reg. 38035-36 and 

38046-47.

Because the Attorney General eventually 

distinguished between pre-Act offenders still in the 

system and pre-Act offenders who left the system with 

regard to the obligations of non-federal jurisdictions, the 

majority reasons that the same distinction could have 

been made with regard to the obligations of sex offenders 

themselves, if the Attorney General had properly 

observed the thirty-day notice and comment period when 

promulgating the Interim Rule. Maj. Op. Part II.C.

However, even if a thirty-day notice and comment 

period could have resulted in SORNA’s requirements not 

applying to pre-Act offenders who had already left the 

system, this hypothetical change would not have affected 

a pre-Act offender such as Reynolds, who was still in the 

system (and was required to register as a sex offender) at 

the time that he was convicted. The prejudice analysis 

should focus specifically on Reynolds, rather than on a 
4

hypothetical defendant who is not before the Court. See 

United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 

2011) (“[A] court must determine whether it is clear that 

the lack of notice and comment did not prejudice the 

petitioner.”) (emphasis added); United States v. Dean, 

604 F.3d 1275, 1289 (11th Cir. 2010) (Wilson, J., 

concurring) (“Here, though, the decision of the Attorney 

General, as far as Dean cared, was binary – either 

someone with a pre-enactment offense could be charged,

or he couldn’t be.”) (emphasis added).

The question for this Court is whether the Attorney 

General, in accordance with the language of the statute,

could have declined to apply SORNA’s requirements to 

pre-Act offenders who were still in the system. The 

answer appears to be yes. There is nothing in the 

statutory language that would have prevented the 

Attorney General from declining to apply SORNA’s 

requirements to pre-Act offenders still in the system. 

The retroactivity decision was not a forgone conclusion, 

even for pre-Act offenders such as Reynolds. Thus, the 

substantive conclusion reached in the absence of notice 

and comment was not the only reasonable one, and the 

government has not overcome its burden of proving 

otherwise.

In sum, Reynolds was prejudiced by the Attorney 

General’s failure to abide by the APA’s notice and 
5

comment procedures. For this reason, I concur in the 

judgment vacating Reynolds’ conviction.
STAPLETON, J. concurring:

I join the opinion and judgment of the Court. I write 

only to note additional facts that, for me, provide additional 

support for the conclusion we reach.

Quoting from the Act’s statement of its purpose, the 

AG summarized his position regarding the good cause issue 

as follows:

[Notice and comment] 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.

Interim Rule, 72 Fed. Reg. at 8896-97 (citing 5 U.S.C. § 

553(b)(B)).

When SORNA was adopted, all 50 states had 

registration requirements for sex offenders with criminal 

penalties for non-compliance, and Congress had made the 

failure of sex offenders to register in accordance with state 

law a federal offense, albeit one with lesser penalties than 

SORNA. 42 U.S.C. § 14071. The purpose of SORNA was to 

make existing law more efficient by creating “a 

comprehensive national system” of registration. Both 

Congress and the AG realized that the creation of such a 
2

system would take a substantial period of time. As of the 

date the Interim Rule was adopted, no state had implemented 

SORNA, and the Act gave states up to three years to do so. 

42 U.S.C. § 16924.The AG provides no explanation for how 

on February 28, 2007, a thirty day period for comment would 

have posed the kind of imminent and serious harm that would 

support a finding of good cause.

In short, I agree with the Ninth Circuit in United States 

v. Valverde, 628 F.3d 1159, 1168 (9th Cir. 2011) (footnote 

omitted):

The issue is not whether sex offenders should 

register, but rather whether the addition of one 

more layer of federal protection atop a 

substantial quilt of existing state and federal 

laws merited emergency treatment.” See Dean, 

604 F.3d at 1283 (Wilson, J. concurring). 

Judge Wilson convincingly reasoned that “the 

existence of stringent state and federal criminal 

sanctions on the books at the time the [interim] 

regulation was promulgated obviated the case 

for an emergency.” Id. (footnote omitted). The 

Attorney General provided no reason why, in 

view of the existing statutory regime that

already imposed registration requirements on 

pre-SORNA sex offenders, it was necessary for 

the interim rule to be made effective 

immediately, without providing any opportunity 

for notice and comment.
3

As a result, the AG has failed to carry his burden of proving 

good cause.