2.21.2011

Fifth Circuit Notes Split on SORNA-APA Intersection, and Chooses Third Way

Per United States v. Undra Johnson, __ F.3d __ (5th Cir. Feb. 4, 2011):

The courts of appeals are divided over whether the Attorney General properly complied with the APA. The Fourth and Eleventh Circuits did not find an APA violation, while the Sixth and Ninth Circuits held that the Attorney General lacked good cause. The Supreme Court has acknowledged the conflict but "express[ed] no view" on the matter.

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Here, we do not find the Attorney General’s reasons for bypassing the APA’s notice and-comment and thirty day provisions persuasive.

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... We find both errors to be harmless in the particular circumstances of this case.

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... In so holding, we recognize that our interpretation of SORNA is a position not previously held by the majority in another circuit. Cf. Dean, 604 F.3d at 1288 (Wilson, J., concurring) (endorsing the harmless error doctrine’s applicability to SORNA).

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