                                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)
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
                           2
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 On the second question, the Fourth and

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
                            3
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).


                             4
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

                           5
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.


                             6
2010), 4 we upheld the District Court because the


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.
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 pre-
SORNA 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
                            7
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.
                            8
(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 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

5
    42 U.S.C. § 16913(b) provides that
        [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.
                              9
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


                           10
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.
                          11
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
                           12
      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
                           13
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).
                           14
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. Nolan-
Cooper, 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

                           15
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 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

8
    The text of 5 U.S.C. §§ 706(2)(A) & (2)(D) is:
        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.
                              16
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
                            17
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
                            18
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 limiting-
principle 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
                           19
“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
                            20
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 Mixed review, however, is consistent with the

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
                             21
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.
                           22
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.
                            23
       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
                            24
“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
                           25
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
                           26
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 open-
minded 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
                            27
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
                            28
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
                            29
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
                           30
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.

                            31
       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
                             32
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.

                             33
       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
                           34
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
                            35
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 The Fifth Circuit has concluded that the
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
                            36
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.
                            37
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
                            38
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
                            39
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
                             40
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
                            41
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
                            42
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
                           43
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
                            44
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
                            45
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
                            46
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
                           47
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 open-
minded 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
                           48
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
                            49
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
                            50
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
                           51
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
                            52
complete failure of notice and comment here was
harmless.12 Central to its conclusion that the results
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.
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 post-
      promulgation        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
                           53
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 counter-
arguments 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.
                             54
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
                            55
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
                           56
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 (post-
promulgation 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.

                            57
        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



                           58
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
                            59
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
                            60
                          ***

       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.
                            61
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
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


                             2
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


                            3
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



                            4
comment procedures. For this reason, I concur in the
judgment vacating Reynolds’ conviction.




                         5
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
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.


                               2
As a result, the AG has failed to carry his burden of proving
good cause.




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