U.S. v. Newton, 74 M.J. 69

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when faced with the task of distinguishing between a substantive and an interpretative agency rule, appellate courts use some variation of the legal effects test; the critical question under the legal effects test is whether the rule imposes a duty on affected parties; if it does, the rule is substantive; this inquiry 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, and then compares this to the language of the rule
2. an appellate court reviews de novo the question whether an agency’s rule is substantive or interpretative as a matter of law

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. in 1995, appellant pleaded guilty in state court to a charge of statutory rape and was required under state law to register as a sex offender; in 2006, the Sex Offender Registration and Notification Act (SORNA), 18 USC § 2250(a)(2006), became effective; in 2007, the Attorney General published a 2007 Interim Rule that provided that SORNA applied to all sex offenders (as defined by the Act) regardless of when they were convicted; the Attorney General invoked the “good cause” exception to forego the notice and comment procedures required by § 553(b)(3)(B) of the Administrative Procedure Act (APA), and he declared that the 2007 Interim Rule was effective immediately; in 2007, the Attorney General published notice of proposed rulemaking for what would become the 2008 National Guidelines for Sex Offender Registration (the 2008 SMART Guidelines) in the Federal Register; the Attorney General took comments on the proposed guidelines, and in 2008, he published the final 2008 SMART Guidelines; as is relevant to the instant case, those guidelines provided that an individual convicted of any of the statutorily defined sex offenses before the date that SORNA took effect was required to register as a sex offender under SORNA; this retroactive application provision was a substantive rule that was promulgated pursuant to the Attorney General’s statutory authority to make SORNA’s registration requirement apply to pre-act offenders; the rule was promulgated according to proper notice and comment procedures as required by § 553 of the APA; in 2008, appellant joined the Army, and in 2009, he was transferred to a new state, where he failed to register as a sex offender; he was then convicted by a general court-martial of knowingly failing to register as a sex offender as required by SORNA in violation of Article 134, UCMJ; because the 2008 SMART Guidelines created an enforceable substantive rule requiring appellant to register under SORNA, appellant had a duty to register as a sex offender under SORNA and his conviction was affirmed; whether the Attorney General had good cause to forego the notice and comment procedures when promulgating the 2007 Interim Rule did not need to be addressed because the 2008 SMART Guidelines created an enforceable substantive rule requiring appellant to register under SORNA
2. the APA distinguishes between two kinds of agency rules: substantive rules and interpretative rules; 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; a substantive rule modifies or adds to a legal norm based on the agency’s own authority; that authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking; an interpretative rule, by contrast, reflects an agency’s construction of a statute that has been entrusted to the agency to administer; the legal norm is one that Congress has devised; the agency does not purport to modify that norm; an agency’s interpretative rule is afforded some deference, but does not have the force and effect of law and is merely used by an agency to advise the public of the agency’s construction of the statutes and rules which it administers
3. when faced with the task of distinguishing between a substantive and an interpretative agency rule, appellate courts use some variation of the legal effects test; the critical question under the legal effects test is whether the rule imposes a duty on affected parties; if it does, the rule is substantive; this inquiry 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, and then compares this to the language of the rule
4. the retroactive application provision of the 2008 SMART Guidelines constitutes a substantive rule
5. in 42 USC § 16912(b) of SORNA, Congress granted the Attorney General general rulemaking authority, and section 16913(d) specifically provided him with the authority to apply SORNA retroactively to sex offenders convicted before its enactment; this is a clear delegation of congressional power to the Attorney General to promulgate rules in this area and, even without more, this appears sufficient to establish that the retroactive application provision of the 2008 SMART Guidelines is a substantive rule with legislative force
6. for a substantive rule to have the force and effect of law, an agency must also adhere to the procedural requirements set out in § 553 of the APA
7. the 2008 SMART Guidelines were promulgated according to the requirements of the APA and without any procedural defect
8. during appellant’s charged conduct in this case of failing to register as a sex offender in 2009, the 2008 SMART Guidelines were in effect and appellant was retroactively subject to SORNA’s registration requirement under 18 USC § 2250(a)(2006)