Opinion Analysis: Substantive guidelines from 2008, and no decision on the 2007 interim rule, in United States v. Newton, No. 14-0415/AR
CAAF decided the Army case of United States v. Newton, 74 M.J. 69, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.
Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.
Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:
Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)
SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:
- In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
- In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
- In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.
Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.
Judge Ryan’s analysis begins by explaining that “this case, which requires traversing the field of administrative law, is one of first impression for this Court, but an area well covered by other federal appellate courts.” Slip op. at 7. She then explains that “The APA distinguishes between two kinds of rules: substantive rules and interpretative rules.” Slip op. at 7 (citation omitted). “A rule is substantive, and has the force of law, only if Congress has delegated legislative power to the agency and if the agency intended to exercise that power in promulgating the rule.” Slip op. at 7 (citation and marks omitted). “An interpretative rule, by contrast, reflects an agency’s construction of a statute that has been entrusted to the agency to administer.” Slip op. at 8 (citation and marks omitted). Determining whether a rule is substantive or interpretative generally involves “some variation of the legal effects test” which “looks primarily at the language of the statute to determine the substance of the congressional enactment and the scope of the agency’s delegated authority, then compares this to the language of the rule.” Slip op. at 9 (citations omitted).
Applying this test, Judge Ryan concludes that the retroactive application provisions of the 2008 SMART guidelines are substantive, not interpretative:
The Supreme Court’s reading of § 16912(b) and § 16913(d) in Reynolds compels the conclusion both that Congress delegated the authority to promulgate a substantive rule to make SORNA apply to pre-act offenders to the Attorney General, and that § 16913(d) contains a legislative gap that Congress desired the Attorney General to fill; until he put forth a rule, SORNA’s requirements did not apply to pre-act offenders. See Reynolds, 132 S. Ct. at 981-82.
Moreover, the Attorney General did fill this gap, and explicitly invoked Congress’s delegation of rulemaking authority when he established the 2008 SMART Guidelines, putting affected individuals on adequate notice as to the legislative authority for the rulemaking.
Slip op. at 11. Judge Ryan also notes that CAAF’s decision is in conformity will federal civilian precedent:
We hold that the 2008 SMART Guidelines’ retroactive application provision is a substantive rule. In so holding we are in good company. All of the federal courts of appeals that have considered this provision of the 2008 SMART Guidelines have treated it as substantive, not interpretative. Bridges, 741 F.3d at 468; Lott, 750 F.3d at 217; Whitlow, 714 F.3d at 46-48; Stevenson, 676 F.3d at 563-65; United States v. Utesch, 596 F.3d 302, 310 (6th Cir. 2010).
Slip op. at 13. Finally, Judge Ryan finds that “the 2008 SMART Guidelines were promulgated according to the
requirements of the APA and without any procedural defect.” Slip op. at 14.
By finding that the 2008 SMART Guidelines are substantive, CAAF makes no decision about the validity of the 2007 interim rule. But a footnote highlights that there is a split among the federal courts that have considered the interim rule. CAAF avoids taking a side in the debate over the validity of the interim rule, and Judge Ryan’s opinion gives no significant hints about which way the court might be leaning.