Habeas Corpus Resource Center et al v. United States Department of Justice et al

Filing 26

ORDER by Judge Claudia WilkenGRANTING 7 PLAINTIFFS APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE. (Denying 13 Motion to Stay). (ndr, COURT STAFF) (Filed on 10/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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HABEAS CORPUS RESOURCE CENTER AND
THE OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE DISTRICT OF
ARIZONA,
Plaintiffs,

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v.

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UNITED STATES DEPARTMENT OF
JUSTICE AND ERIC H. HOLDER, IN
HIS OFFICIAL CAPACITY AS UNITED
STATES ATTORNEY GENERAL,

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ORDER GRANTING
PLAINTIFFS’
APPLICATION FOR A
TEMPORARY
RESTRAINING ORDER
AND ORDER TO SHOW
CAUSE WHY
PRELIMINARY
INJUNCTION SHOULD
NOT ISSUE
(DOCKET NO. 7)

Defendants.

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United States District Court
For the Northern District of California

No. C 13-4517 CW

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________________________________/
On September 30, 2013, Plaintiffs Habeas Corpus Resource

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Center (HCRC) and the Office of the Federal Public Defender for

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the District of Arizona (FDO-AZ) brought an action for injunctive

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relief to set aside the September 23, 2013 Final Rule regarding

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Certification Process for State Capital Counsel System, 78 Fed.

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Reg. 58,160.

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States Department of Justice (DOJ) and United States Attorney

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General Eric Holder on September 23, 2013 and will become

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effective on October 23, 2013.

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moved for (1) a temporary injunction enjoining Defendants from

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putting into effect the Final Rule pending a ruling on a

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preliminary injunction, and (2) order to show cause for a

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preliminary injunction hearing.

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The Final Rule was issued by Defendants United

On October 4, 2013, Plaintiffs

Docket No. 7.

Due to the lapse

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in appropriations, Defendants did not respond to Plaintiffs’

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motion and moved for a stay in litigation.1

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Docket No. 13.

BACKGROUND
A.

Chapter 154
The Antiterrorism and Effective Death Penalty Act (AEDPA) of

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1996 added chapter 154 of Title 28 of the United States Code.

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Chapter 154 provides expedited procedures in federal capital

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habeas corpus cases when a state is able to establish that it has

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provided qualified, competent, adequately resourced and adequately

United States District Court
For the Northern District of California

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compensated counsel to death-sentenced prisoners.

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AEDPA, federal courts were responsible for determining whether

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states were eligible for the expedited federal procedures.

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USA Patriot Improvement and Reauthorization Act of 2005, Pub. L.

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No. 109-174, 120 Stat. 192 (2005), amended chapter 154 to shift

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the eligibility determination from the federal courts to the

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Attorney General.

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Under the

The

In December 2008, the Attorney General published a final rule

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to implement the procedure prescribed by chapter 154.

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20, 2009 this Court granted a preliminary injunction, enjoining

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Defendants from putting into effect the regulation without first

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providing an additional comment period of at least thirty days and

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publishing a response to any comments received during such a

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period.

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Department of Justice, 2009 WL 185423 (N.D. Cal.) at *10.

On January

See Habeas Corpus Resource Ctr. v. United States
The

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The lapse in appropriations has now ended. Accordingly,
the Court DENIES Defendants’ motion to stay as moot. Docket No.
13.
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regulation did not go into effect.

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published a final rule removing the regulation.

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In November 2010, Defendants

The DOJ published a new proposed rule on March 3, 2011.

76

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Fed. Reg. 11,705.

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DOJ then published a supplemental notice of proposed rulemaking on

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February 13, 2012.

77 Fed. Reg. 7559.

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on March 14, 2012.

On September 2013, the Final Rule was

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published.

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The comment period closed on June 1, 2011.

The

The comment period closed

Section 26.22 of the Final Rule prescribes the standards a

United States District Court
For the Northern District of California

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state must meet in order to earn certification under 28 U.S.C.

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§§ 2261 and 2265.

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ways a state may meet the requirements for providing competent

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counsel.

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third allows a state to be certified if the competency standards

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“reasonably assure a level of proficiency appropriate for State

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post-conviction litigation in capital cases.”

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58,182.

Section 26.22(b) prescribes three different

The first two are based on statutory criteria.

The

78 Fed. Reg.

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Section 26.23 provides the certification process.

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must “request in writing” a certification that it meets the

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requirements of § 26.22.

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Attorney General will make the request publicly available on the

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Internet; publish a notice in the Federal Register, identifying

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the Internet address at which the public may view the state’s

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request; and solicit public comments.

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review the state’s request and public comments, and will publish

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the certification in the Federal Register if the certification is

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granted.

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years after the completion of the certification process by the

A state

Upon receiving the state’s request, the

The Attorney General will

A certification remains effective for a period of five

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Attorney General and any related judicial review.

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58,184.

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78 Fed. Reg.

LEGAL STANDARD

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Temporary restraining orders are governed by the same
standard applicable to preliminary injunctions.

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Gommerman, 865 F. 2d 1093, 1095 (9th Cir. 1989).

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preliminary injunction, the moving party must demonstrate “(1) a

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likelihood of success on the merits; (2) a significant threat of

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irreparable injury; (3) that the balance of hardships favors the

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United States District Court
For the Northern District of California

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applicant; and (4) whether any public interest favors granting an

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injunction.”

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2003).

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required showing of meritoriousness.”

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Cal., Inc. v. Shewry, 543 F.3d 1047, 1049 (9th Cir.2008) (citation

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omitted).

To qualify for a

Raich v. Ashcroft, 352 F.3d 1222, 1227 (9th Cir.

“[T]he required showing of harm varies inversely with the

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See Dumas v.

Indep. Living Ctr. of S.

DISCUSSION
I.

Likelihood of Success on the Merits

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A. Adequacy of Notice

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The APA “requires an agency conducting notice-and-comment

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rulemaking to publish in its notice of rulemaking ‘either the

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terms or substance of the proposed rule or a description of the

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subjects and issues involved.’”

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Coke, 551 U.S. 158, 174 (2001) (quoting 5 U.S.C. § 553(b)(3)).

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Because the Attorney General’s promulgation of the Final Rule

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constitutes administrative rulemaking with notice in the Federal

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Register and public comment, it must comply with the rulemaking

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provisions of the APA.

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the Attorney General complied, this Court inquires whether “the

Long Island Care at Home, Ltd. v.

See 5 U.S.C. § 553.

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To determine whether

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notice fairly apprise[s] the interested persons of the subjects

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and issues before the Agency.’”

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F.3d 970, 975 (9th Cir. 2005).

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Louis v. U.S. Dep’t of Labor, 419

Here, Plaintiffs are likely to succeed on their claim that

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the Attorney General failed to provide adequate notice under the

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APA because he stated, for the first time in the final rule, that

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the certification decisions are not subject to the rulemaking

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provisions of the APA.

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General’s certifications under chapter 154 are orders rather than

78 Fed. Reg. 58,174 (“[T]he Attorney

United States District Court
For the Northern District of California

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rules for purposes of the Administrative Procedure Act (APA).

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They are accordingly not subject to the APA’s rulemaking

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provisions, see 5 U.S.C. 553, much less to the APA’s requirements

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for rulemaking or adjudication required to be made or determined

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on the record after opportunity for an agency hearing[.]”).

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Notice was likely inadequate because it did not reveal the

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Attorney General's view that certification determinations

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constitute orders, not rules, and therefore are not subject to the

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APA requirements governing rulemaking.

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may have been denied an opportunity to comment on the Attorney

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General’s view.

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of its position, its notice of proposed rulemaking has not

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“provide[d] sufficient factual detail and rationale for the rule

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to permit interested parties to comment meaningfully.”

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Int’l., Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (citation

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omitted).

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Interested parties thus

When an agency fails to notify interested parties

Honeywell

The Court concludes that the Final Rule likely did not give
adequate notice of the Attorney General’s view of the

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certification process.

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of success on the merits of this claim.

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B. Deficient Certification Process

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Final regulations are arbitrary and capricious when they fail

Accordingly, Plaintiffs have a likelihood

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to provide “definitional content” for terms guiding agency action

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implementing a statute.

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(D.C. Cir. 1999).

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content to statutory standards it is tasked with implementing.

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Id. at 661.

Pearson v. Shalala, 164 F.3d 650, 660

An agency is “obliged under the APA” to give

An agency cannot leave a prospective applicant

United States District Court
For the Northern District of California

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“utterly without guidance as to what he must prove, and how.”

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Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974).

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S.

The Court finds that the certification process is likely

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arbitrary and capricious in several ways.

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fails to provide substantive criteria as to how a state may

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satisfy the requirements of chapter 154.

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a state to be certified if the competency standards “reasonably

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assure a level of proficiency appropriate for State post-

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conviction litigation in capital cases.”

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This catch-all exception is broad and vague.

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relatedly, the Final Rule fails to indicate whether the Attorney

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General’s certification decision will be guided by the body of law

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interpreting the requirements of chapter 154 prior to its

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amendment, including the applicable standards established by the

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United States Supreme Court.

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address the nature and effect of ex parte communication between

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Attorney General Holder and the state officials.

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note, even before the Final Rule went into effect, Attorney

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General Holder and the Arizona Attorney General commenced a

First, the Final Rule

Section 26.22(b) allows

78 Fed. Reg. 58,162.
Second and

Last, the Final Rule fails to

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As Plaintiffs

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process of certification without notifying interested parties.

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Baich Dec., Exs. E, F.

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transparent and specific parameters governing the Attorney

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General’s ex parte communication with state officials may leave

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Plaintiffs and the public in the dark, depriving them of the

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opportunity to offer meaningful opposition.

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The Final Rule’s failure to articulate

The “agency’s failure to state its reasoning or to adopt an

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intelligible standard” favors a finding that the Final Rule is

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arbitrary and capricious.

Checkosky v. SEC, 139 F.3d 221, 226

United States District Court
For the Northern District of California

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(D.C. Cir. 1998) (citation omitted).

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a likelihood of success on the merits of their claim that the

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Final Rule is arbitrary and capricious under the APA.

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II.

Accordingly, Plaintiffs have

Irreparable Harm, Balance of Equities, and the Public
Interest

Plaintiffs have demonstrated a likelihood of irreparable harm

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sufficient to warrant granting a temporary restraining order.

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Were the Final Rule to go into effect, the possibility that

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California could apply for certification at any time or that

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Arizona, which has already applied for certification, could be

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certified at any time will “thrust Plaintiffs into uncertainty

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over the legal framework that applies to state and federal post-

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conviction remedies already being pursued on behalf of its

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clients.”

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Habeas Corpus Res. Ctr., 2009 WL 185423, at *9.

There can be little doubt that the legal uncertainty of the

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retroactive effect of the new limitations period will severely

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harm Plaintiffs, leaving them in protracted legal limbo.

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U.S.C. § 2265(a)(2) provides that a state's certification is

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retroactive to the date on which its mechanism for appointing
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Title 28

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counsel was established.

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deadline for filing federal habeas petitions from one year to six

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months, Plaintiffs would be forced “to advise counsel to treat

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each case as [an] opt-in-case until a federal court rules

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otherwise” and, as a result, forgo possibly meritorious claims.

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Baich Dec. ¶ 13.

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As certification would shorten the

Were the Final Rule to go into effect, Plaintiffs would

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confront a tumult of critical choices that affect their death-

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sentenced clients.

Plaintiffs do not court hyperbole when they

United States District Court
For the Northern District of California

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deem the risk of permitting a potentially flawed regulation to

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proceed an “unconscionable gamble.”

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to the harm faced by Plaintiffs, Defendants stand to face little,

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if any, harm if the Final Rule does not enter into effect

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immediately.

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After removing their proposed rule in 2010, Defendants only

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recently attempted to revive it.

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resolution of this lawsuit will not prejudice them.

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interest likewise favors maintaining the status quo while the

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legality of Defendants' rule is determined.

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Laurence Dec. ¶ 16.

Compared

The Patriot Act amendments were passed in 2005.

An additional delay pending
Public

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’

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application for a temporary restraining order and order to show

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cause why a preliminary injunction should not issue.

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are enjoined from putting into effect the rule entitled

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“Certification Process for State Capital Counsel Systems,”

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published at 78 Fed. Reg. 58,160 (Sept. 23, 2013).

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restraining order shall expire on November 1, 2013.

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Defendants

The temporary

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Unless the parties stipulate to an alternate briefing

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schedule, including an extension of the temporary restraining

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order, the schedule on Plaintiffs’ motion for a preliminary

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injunction is as follows.

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order, Defendants shall file a response to the order to show cause

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why a preliminary injunction should not issue.

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file a reply within four days thereafter.

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at 2:00 on Thursday, October 31, 2013.

Within six days of the date of this

Plaintiffs may

A hearing will be held

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated:

10/18/2013

CLAUDIA WILKEN
United States District Judge

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