Last week, the United States Court of Appeals for the Eighth Circuit joined the intercircuit conflict over the Administrative Procedure Act (APA) validity of the Attorney General’s regulations applying the Sex Offender Registration and Notification Act (SORNA) to offenses committed prior to SORNA’s effective date. The United States District Court for the Eastern District of Pennsylvania continued the confusion over the Department of Labor (DOL)’s authority to regulate H-2B visas. In the agencies, the Federal Communications Commission (FCC) was pummeled with inconsequential public comments on its net neutrality / fast lane proposed rule – with no substantive effect.
SORNA Good Cause Conflict: The Eighth Circuit, in United States v. Brewer, joined the Third Circuit, Fifth Circuit, Sixth Circuit, and Ninth Circuit – and disagreed with the Fourth Circuit and Eleventh Circuit (same) – in the SORNA intercircuit conflict. As discussed previously, the intercircuit conflict revolves on whether the Attorney General had “good cause” to promulgate regulations making the SORNA registration requirements applicable to sex offenses committed prior to the effective date of SORNA before providing an opportunity for public comment under the APA – the issue not decided in Reynolds v. United States. The accounting for this conflict is complicated by the permutation that the APA violation may be harmless error as applied, such as the Fifth Circuit (as reaffirmed last week in United States v. Torres) and the Eleventh Circuit. The intercircuit conflict concerns a significant temporal gap in required registration – from the effective date of the interim final rule on February 28, 2007, to the effective date of the final rule on January 28, 2011 – and failure to register during that period has been heavily prosecuted. The Eighth Circuit rejected the Attorney General’s rationale that immediate application was needed to eliminate “uncertainty” about the law because it “simply reflects a generalized concern that exists any time an act requires further substantive rulemaking” and the 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.”
► This intercircuit conflict has percolated long enough (and concern for APA compliance is not sympathy for individual defendants) although it is doubtful that the Solicitor General will seek certiorari from the United States Supreme Court (SCOTUS). The Attorney General failed to comply with the APA and the requirements should not continue to apply in the two outlier circuits. Brewer represents another instance in which individual rights and obligations under federal law differ merely on the fortuity (or misfortune) of geography that either the SCOTUS must resolve or the Attorney General must concede defeat. In this instance, the Attorney General can cease prosecution of failure to register within that affected time frame, and confess error and seek to vacate prior convictions for violations within that time frame. Brewer is an attack on the criminal sentence, not an APA case, so the only remedy is vacatur of the conviction, not vacatur of the interim final rule, illuminating the disjunction between process and effective remedy.
H-2B Limbo: In the latest episode in the long-running saga over whether Congress authorized the Department of Labor (DOL) to promulgate regulations governing certification of the employment of H-2B worker visa applications, the district court for the Eastern District of Pennsylvania declined in CATA (Comite de Apoyo a los Trabajadores Agricolas) v. Perez, E.D.Pa. Nos. 09-240, 13-7213 (Memorandum Opinion, Sept. 10, 2014), to vacate DOL’s 2008 substantive rules pending the United States District Court for the Northern District of Florida’s determination of whether DOL is delegated any statutory authority to promulgate regulations in Bayou Lawn and Landscaping. CATA moved to vacate DOL’s 2008 regulations that the court previously held invalid and remanded to the agency (a fourth was previously vacated); each of the three provisions remanded without vacatur was ruled procedurally invalid because “DOL provided no rational explanation for its policy choices.” On remand, DOL amended the regulations in 2012, but Bayou Lawn & Landscape Services preliminarily enjoined the 2012 regulation, setting in motion an inter-district conflict, and the United States Court of Appeals for the Eleventh Circuit affirmed that decision. On the other hand, a recent Third Circuit decision held that Congress delegated to DOL regulatory authority for certifying H-2B visa applications.
DOL continues to use the invalid, remanded 2008 regulations, and CATA sought vacature of those regulations, and argued that “vacatur would necessarily lead to a regulatory void.” Without addressing the standards for remand without vacatur, the court left the 2008 regulations remanded but extant.
► The problem cannot be resolved by CATA so long as the Bayou preliminary injunction remains pending and perhaps not until an appeal from summary judgment is resolved. CATA clearly sought to force DOL to act on new regulations, but the district court declined to go so far and DOL – and the actual authority, the Department of Homeland Security (DHS) – have other options, thus far poorly exercised. At some point, if all lower court options are resolved, and the Administration refuses to take corrective action through DHS, a clear intercircuit conflict may emerge, but the Administration’s ability to act would undercut any petition for certiorari to SCOTUS by the Solicitor General, and support certiorari by a private aggrieved party.
FCC Net Neutrality / Fast Lane Comment Avalanche: Numerous press reports indicated that the FCC received nearly 1.5 million comments on its proposed ‘fast lane née net neutrality’ rule, surpassing the number of comments on Janet Jackson’s “wardrobe malfunction” or “nipplegate,” although the docket reflects less than one-third that number. Numerous websites touted an “internet slowdown” protest using the “spinning wheel of death” to facilitate comments to the FCC, Congress, and the White House – and some claim 700,000 additional comments may have resulted. The FCC even opened a new forum for public comments – filing multiple comments via .csv files of 9MB or less via email. The tabular results of all this activity may not be known for a while – and the FCC has not responded to whether the protest (maybe denial of service attack) had any effect on functionality.
► Massed public comment filing, including mass mailings or mass emailings, have little or no effect on the substance of the policy actually adopted. At best, mass filings may represent an organization’s attempt to engage its members to support the organization; at worst, mass filings may represent a denial of service attack on the agency. Mass filings may actually make it more difficult for serious commenters to make substantive points on the record. Mass filings are counted by an agency’s clerical staff, noted, and forgotten noise. Expect the same from the FCC because public comments on regulatory proposals are not a plebiscite – i.e. # of comments / population of the United States (est. 319 million) = voting block efficacy – regulatory decisions are judgments based on evidence.