Habeas Corpus Resource Center et al v. United States Department of Justice et al
Filing
42
ORDER GRANTING PRELIMINARY INJUNCTION. Signed by Judge Claudia Wilken on 12/4/2013. (ndr, COURT STAFF) (Filed on 12/4/2013)
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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,
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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Defendants.
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United States District Court
For the Northern District of California
ORDER GRANTING
PRELIMINARY
INJUNCTION
Plaintiffs,
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No. C 13-4517 CW
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________________________________/
On October 18, 2013, the Court issued an order to show cause
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why a preliminary injunction should not issue and a temporary
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restraining order enjoining Defendants until November 1, 2013 from
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putting into effect the rule entitled, “Certification Process for
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State Capital Counsel Systems,” published at 78 Fed. Reg. 58,160
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(Sept. 23, 2013).
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lapse in appropriations, Defendants had filed a request for a stay
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and had not yet filed an opposition.
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parties submitted a stipulation for an extended briefing schedule
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in which they agreed to extend the temporary restraining order for
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an additional fourteen days.
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Center (HCRC)1 and the Office of the Federal Public Defender for
The order was issued ex parte.
Due to the
On October 23, 2013, the
Plaintiffs Habeas Corpus Resource
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HCRC is an entity in the Judicial Branch of the State of
California that, among other things, provides legal representation
to men and women under sentence of death in state and federal
habeas corpus proceedings. Complaint ¶ 16.
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the District of Arizona (FDO-Arizona)2 seek a preliminary
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injunction.
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and United States Attorney General Eric H. Holder oppose the
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motion.3
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considered oral argument and the papers submitted by the parties,
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the Court GRANTS Plaintiffs’ motion.
Defendants United States Department of Justice (DOJ)
The motion was heard on November 14, 2013.
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Having
BACKGROUND
I.
The 2013 Final Rule
The Antiterrorism and Effective Death Penalty Act (AEDPA) of
United States District Court
For the Northern District of California
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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
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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.
Under the
The
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FDO-AZ is a Federal Defender organization that operates
under the authority of the Criminal Justice Act of 1964, 18 U.S.C.
§ 3006A(g). Among other things, FDO-AZ provides legal
representation to indigent men and women sentenced to death.
Complaint ¶ 17.
3
On November 22, 2013, the Court granted Marc Klaas’s motion
to file a brief as amicus curiae. The Court has reviewed the
brief, Plaintiffs’ response to it and amicus’s reply. The Court
finds that the amicus brief does not alter the Court’s assessment
of the motion.
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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, the Court granted a preliminary injunction, enjoining
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Defendants from putting the regulation into effect 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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of Justice, 2009 WL 185423, *10 (N.D. Cal.).
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Defendants solicited further public comment on its proposed
On January
Habeas Corpus Resource Ctr. v. United States Department
On February 5, 2009,
United States District Court
For the Northern District of California
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certification process.
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the 2008 regulation pending the completion of a new rulemaking
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process.
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2010, the Defendants published a final rule retracting the 2008
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regulations.
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Defendants thereafter proposed to retract
See 75 Fed. Reg. 29,217 (May 25, 2010).
On November 23,
See 75 Fed. Reg. 71,353 (Nov. 23, 2010).
On March 3, 2011, the DOJ published a notice of proposed
16
rulemaking for a new certification process.
76 Fed. Reg. 11,705.
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The comment period closed on June 1, 2011.
On February 13, 2012,
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the DOJ then published a supplemental notice soliciting public
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comments on five contemplated changes.
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comment period closed on March 14, 2012.
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Final Rule was published.
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77 Fed. Reg. 7559.
The
On September 2013, the
Section 26.22 of the Final Rule prescribes the standards a
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state must meet in order to earn certification under 28 U.S.C.
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§§ 2261 and 2265.
The Final Rule provides:
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§ 26.22 Requirements.
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The Attorney General will certify that a State meets the
requirements for certification under 28 U.S.C. 2261 and
2265 if the Attorney General determines that the State
has established a mechanism for the appointment of
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counsel for indigent prisoners under sentence of death
in State postconviction proceedings that satisfies the
following standards:
. . .
(b) The mechanism must provide for appointment of
competent counsel as defined in State standards of
competency for such appointments.
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(1) A State’s standards of competency are
presumptively adequate if they meet or exceed either of
the following criteria:
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(i) Appointment of counsel who have been admitted
to the bar for at least five years and have at
least three years of postconviction litigation
experience. But a court, for good cause, may
appoint other counsel whose background, knowledge,
or experience would otherwise enable them to
properly represent the petitioner, with due
consideration of the seriousness of the penalty and
the unique and complex nature of the litigation; or
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United States District Court
For the Northern District of California
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(ii) Appointment of counsel meeting qualification
standards established in conformity with 42 U.S.C.
14163(e)(1) and (2)(A), if the requirements of 42
U.S.C. 14163(e)(2)(B), (D), and (E) are also
satisfied.
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(2) Competency standards not satisfying the
benchmark criteria in paragraph (b)(1) of this section
will be deemed adequate only if they otherwise
reasonably assure a level of proficiency appropriate for
State postconviction litigation in capital cases.
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78 Fed. Reg. at 58,183.
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with 42 U.S.C § 14163(e)(1) and (2)(A)” referred to in section
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26.22(b)(1)(ii) are provisions of the Innocence Protection Act
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(IPA).
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attorneys, specialized training programs for attorneys providing
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capital case representation, monitoring of the performance of
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attorneys who are appointed and their attendance at training
27
programs, and removal from the roster of attorneys who fail to
The “standards established in conformity
They call for maintenance of a roster of qualified
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deliver effective representation, engage in unethical conduct, or
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do not participate in required training.
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§§ 14163(e)(2)(B),(D), and (E).
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United States District Court
For the Northern District of California
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42 U.S.C.
Section 26.23 of the Final Rule provides the process for a
state’s certification:
(a) An appropriate State official may request in
writing that the Attorney General determine whether the
State meets the requirements for certification under
§ 26.22 of this subpart.
(b) Upon receipt of a State’s request for
certification, the Attorney General will make the
request publicly available on the Internet (including
any supporting materials included in the request) and
publish a notice in the Federal Register—
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(1) Indicating that the State has requested
certification;
(2) Identifying the Internet address at which the
public may view the State’s request for
certification; and
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(3) Soliciting public comment on the request.
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(c) The State’s request will be reviewed by the
Attorney General. The review will include consideration
of timely public comments received in response to the
Federal Register notice under paragraph (b) of this
section, or any subsequent notice the Attorney General
may publish providing a further opportunity for comment.
The certification will be published in the Federal
Register if certification is granted. The certification
will include a determination of the date the capital
counsel mechanism qualifying the State for certification
was established.
(d) A certification by the Attorney General
reflects the Attorney General’s determination that the
State capital counsel mechanism reviewed under paragraph
(c) of this section satisfies chapter 154’s
requirements. A State may request a new certification
by the Attorney General to ensure the continued
applicability of chapter 154 to cases in which State
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postconviction proceedings occur after a change or
alleged change in the State’s certified capital counsel
mechanism. Changes in a State’s capital counsel
mechanism do not affect the applicability of chapter 154
in any case in which a mechanism certified by the
Attorney General existed throughout State postconviction
proceedings in the case.
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(e) A certification remains effective for a period
of five years after the completion of the certification
process by the Attorney General and any related judicial
review. If a State requests re-certification at or
before the end of that five-year period, the
certification remains effective for an additional period
extending until the completion of the re-certification
process by the Attorney General and any related judicial
review.
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United States District Court
For the Northern District of California
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78 Fed. Reg. at 58,184.
II.
The Impact of the 2013 Final Rule
Once a state is certified, the statute of limitations for
federal habeas corpus proceedings is “fast-tracked.”
First, the
statute of limitations for filing a habeas petition in federal
court is shortened from one year to 180 days.
§ 2263(a).
28 U.S.C.
Second, tolling of the statute of limitations is
altered to exclude (1) the period of time between the finality of
direct review in state court to the filing of a petition for writ
of certiorari in the United States Supreme Court and (2) the
filing of exhaustion or successive state habeas petitions.
U.S.C. § 2263(b).
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Third, a petitioner’s ability to amend a
petition is limited.
28 U.S.C. § 2266(b)(3)(B).
Fourth, a
federal district court must enter final judgment on a habeas
petition within 450 days of the filing of the petition, or sixty
days after it is submitted for decision--whichever is earlier.
U.S.C. § 2266(b).
Finally, the certification is retroactive,
reaching back to the date the qualifying mechanism is found to
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have been established.
2
mechanism described in paragraph 1(A) was established shall be the
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effective date of the certification under this subsection.”).
28 U.S.C. § 2265(a)(2) (“The date the
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LEGAL STANDARD
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It is appropriate to issue a preliminary injunction if the
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moving party establishes either (1) a combination of probable
7
success on the merits and the possibility of irreparable injury,
8
or (2) that serious questions are raised and the balance of
9
hardships tips sharply in favor of the moving party.
Stuhlbarg
United States District Court
For the Northern District of California
10
Intern. Sales Co. v. John D. Brush and Co., 240 F.3d 832, 839–840
11
(9th Cir. 2001).
12
represent two points on a sliding scale in which the degree of
13
irreparable harm increases as likelihood of success on the merits
14
decreases.”
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for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991)
16
(citations omitted).
17
party seeking a preliminary injunction always must show that a
18
significant threat of irreparable harm exists.
19
Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th
20
Cir. 1985).
21
also consider the public interest when it assesses the propriety
22
of issuing an injunction.
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Court, 303 F.3d 959, 973 (9th Cir. 2002).
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“These formulations are not different tests, but
Associated Gen. Contractors of Calif. v. Coalition
Under either formulation of the test, a
American Passage
In addition, in the Ninth Circuit, the Court must
Sammartano v. First Judicial District
DISCUSSION
I.
Likelihood of Success on Procedural Issues
The APA “requires an agency conducting notice-and-comment
27
rulemaking to publish in its notice of rulemaking ‘either the
28
terms or substance of the proposed rule or a description of the
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1
subjects and issues involved.’”
2
Coke, 551 U.S. 158, 174 (2001) (quoting 5 U.S.C. § 553(b)(3)).
3
Because the Attorney General’s promulgation of the Final Rule
4
constitutes administrative rulemaking, it must comply with the
5
rulemaking provisions of the APA.
6
determine compliance, courts inquire whether “the notice fairly
7
apprise[s] the interested persons of the subjects and issues
8
before the Agency.’”
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975 (9th Cir. 2005).
United States District Court
For the Northern District of California
10
Long Island Care at Home, Ltd. v.
See 5 U.S.C. § 553.
To
Louis v. U.S. Dep’t of Labor, 419 F.3d 970,
The Court finds that Plaintiffs are likely to succeed on
11
their claim that the Attorney General failed to provide adequate
12
notice under the APA because he stated, for the first time in the
13
Final Rule, that the certification decisions are not subject to
14
the rulemaking provisions of the APA.
15
Attorney General’s certifications under chapter 154 are orders
16
rather than rules for purposes of the Administrative Procedure Act
17
(APA).
18
provisions, see 5 U.S.C. § 553[.]”).
19
been denied an opportunity to comment on the Attorney General’s
20
view.
21
position, its notice of proposed rulemaking has not “provide[d]
22
sufficient factual detail and rationale for the rule to permit
23
interested parties to comment meaningfully.”
24
Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (citation
25
omitted).
26
78 Fed. Reg. 58,174 (“[T]he
They are accordingly not subject to the APA’s rulemaking
Interested parties may have
When an agency fails to notify interested parties of its
Honeywell Int’l.,
Defendants respond that the retracted 2008 rule provided
27
sufficient notice under the APA because the current Attorney
28
General adhered to the position of his predecessor.
8
Defendants’
argument is unpersuasive.
2
of a new proposed rule that resembled the 2008 rule, but omitted
3
its characterization of certification decisions as adjudications,
4
not rules.
5
Attorney General adhered to this position taken by his
6
predecessor, it is more likely that the notice of the new rule led
7
interested parties to presume that the Attorney General
8
intentionally removed this characterization.
9
Corp. v. United States, 508 U.S. 200, 208 (1993) (“Where Congress
10
United States District Court
For the Northern District of California
1
includes particular language in one section of a statute but omits
11
it in another . . . , it is generally presumed that Congress acts
12
intentionally and purposely in the disparate inclusion or
13
exclusion.”) (citation and internal quotation marks omitted).
14
The Attorney General published a notice
Far from alerting the public to the fact that the
See, e.g., Keene
Defendants additionally contend that certification decisions
15
are self-evidently adjudications, and thus that they were not
16
required to provide notice of their view.
17
for such a contention.
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certification determinations are unlike typical APA adjudications
19
that are individualized, including Social Security and Medicare
20
benefits claims.
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“affects the rights of broad classes” of individuals and impacts
22
such persons “after the [decision] is applied.”
23
Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994).
24
Further, the 2011 Proposed Rule and 2012 Supplemental Notice
25
included indicia of rulemaking, e.g. publication and a notice and
26
comment period.
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their claim that certification is self-evidently an adjudication.
Scarce authority exists
As Plaintiffs note, the Attorney General’s
Rather, this particular certification decision
Yesler Terrace
Defendants thus have not provided authority for
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9
1
Accordingly, Plaintiffs are likely to succeed in
2
demonstrating that Defendants were obliged to provide notice of
3
their view that rulemaking procedures would not apply to the
4
certification decision.
5
notice that omitted “potentially controversial subject matter”
6
insufficient); Habeas Corpus Res. Ctr. v. U.S. Dept. of Justice,
7
2009 WL 185423, at *8 (N.D. Cal.) (holding that notice was
8
inadequate when public commenters did not reflect any
9
understanding of DOJ’s controversial interpretation and likely
United States District Court
For the Northern District of California
10
11
See Louis, 419 F.3d at 976 (finding
would have disputed it had they been provided notice).
The Court concludes that the Final Rule likely did not give
12
adequate notice of the Attorney General’s view of the
13
certification process.
14
succeed on the merits of this claim.
15
Accordingly, Plaintiffs are likely to
II. Likelihood of Success on the Challenges to the Final Rule
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A.
17
Defendants assert Plaintiffs lack standing to pursue their
Standing
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challenge to the substance of the Final Rule and thus cannot
19
satisfy Article III’s “case or controversy requirement.”
20
plaintiff “has the burden of establishing the three elements of
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Article III standing: (1) he or she has suffered an injury in fact
22
that is concrete and particularized, and actual or imminent;
23
(2) the injury is fairly traceable to the challenged conduct; and
24
(3) the injury is likely to be redressed by a favorable court
25
decision.”
26
F.3d 1220, 1225 (9th Cir. 2008).
27
an injury that is actual or imminent, not conjectural or
A
Salmon Spawning & Recovery Alliance v. Gutierrez, 545
“Article III standing requires
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10
hypothetical.”
2
1092, 1100 (9th Cir. 2000) (internal quotation marks omitted).
3
plaintiff may allege a future injury in order to comply with this
4
requirement, but only if he or she ‘is immediately in danger of
5
sustaining some direct injury as the result of the challenged
6
official conduct and the injury or threat of injury is both real
7
and immediate, not conjectural or hypothetical.’”
8
Pasadena Unified School Dist., 306 F.3d 646, 656 (9th Cir. 2002)
9
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
10
United States District Court
For the Northern District of California
1
Defendants first incorrectly state that the Court has found
11
that Plaintiffs lack standing with regard to substantive claims.
12
Defs.’ Resp. at 14–15.
13
standing issues were not before this Court, because Plaintiff HCRC
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raised only procedural deficiencies.
15
to Mot. for Preliminary Inj., Docket No. 71, Case No. 08-cv-02649,
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at 6.
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to substantive standing issues and found that HCRC had standing to
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challenge procedural defects.
19
185423, at *5.
20
Cole v. Oroville Union High School Dist., 228 F.3d
“A
Scott v.
In the prior litigation, substantive
See HCRC’s Reply Br. to Opp.
Accordingly, in the prior case the Court made no finding as
Habeas Corpus Res. Ctr., 2009 WL
Defendants contend that Plaintiffs lack standing because
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their injuries are speculative and not imminent.
22
Defendants, Plaintiffs’ injuries will occur only if California or
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Arizona are certified.
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consequences of permitting the flawed rule to go into effect are
25
not contingent on whether California will be certified, but rather
26
upon the inability to predict whether California qualifies for
27
chapter 154’s benefits[.]”
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Laurence ¶ 3.
According to
Plaintiffs respond that “the harmful
Supplemental Declaration of Michael
It is Defendants’ position that the retroactive
11
1
effect of the Final Rule reaches back to the date at which the
2
state mechanism went into effect.
3
certify a state and deem a state’s mechanism to have gone into
4
effect at a prior date, the deadline for a habeas petitioner’s
5
application may have come and gone without his knowing it.
6
confusion caused by the claimed retroactive effect forces
7
Plaintiff HCRC to make urgent decisions regarding its litigation,
8
resources, and strategy.
9
In other words, were the DOJ to
Arizona has already applied for certification.
The
If Arizona is
United States District Court
For the Northern District of California
10
certified, under Defendants’ interpretation of the Final Rule,
11
Arizona’s certification will reach back to the date when the
12
mechanism is found to have been established.
13
caused by the retroactive effect of the Final Rule curtails and
14
disrupts FDO-Arizona’s capacity to counsel its clients
15
meaningfully.
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the present injury alleged by Plaintiffs is actual and
17
particularized, and the future injury is predictable and imminent.
18
As the Court has found previously, there can be little doubt that
19
the legal uncertainty of the retroactive effect of the new
20
limitations period will severely harm Plaintiffs, leaving them in
21
protracted legal limbo.
22
Defendants have articulated no persuasive response to suggest
23
otherwise.
24
The uncertainty
Declaration of Dale Baich ¶¶ 10-12.
Accordingly,
Docket No. 26, TRO Order at 8.
Defendants argue next that Plaintiffs lack standing to raise
25
substantive claims because they do not meet the second and third
26
elements of Article III standing.
27
Plaintiffs can trace their actual or future injuries to the
28
implementation of the Final Rule.
12
Defendants’ argument fails.
The implementation “will result
1
in known, predictable consequences” that constitute concrete
2
injury.
3
Cir. 2004) (finding that plaintiff’s harm was traceable to the
4
implementation of defendant’s proposed plan, and “because
5
Sausalito’s asserted injuries will not occur if the Plan is not
6
implemented, Sausalito has alleged injury that can be redressed by
7
a decision blocking implementation of the Plan.”).
8
Plaintiffs’ injuries will not occur if the Final Rule is not
9
implemented, Plaintiffs have alleged injury that can be redressed
City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th
Because
United States District Court
For the Northern District of California
10
by a decision blocking implementation of the Final Rule as
11
written.
12
Id.
The Court concludes that Plaintiffs have standing to
13
challenge the substance of the Final Rule.
14
alleged harm with sufficient detail to state a “concrete and
15
particularized” injury.
16
proposed implementation of the Final Rule.
17
alleged injury that can be redressed by a decision blocking
18
implementation of the Final Rule as written.
First, they have
Second, the injury can be traced to the
Third, Plaintiffs have
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B.
20
Under § 706(2)(A) of the APA, a reviewing court shall “hold
Deficient Certification Process
21
unlawful and set aside agency action, findings, and conclusions
22
found to be arbitrary, capricious, an abuse of discretion, or
23
otherwise not in accordance with the law.”
24
Final regulations are arbitrary and capricious when they fail to
25
provide “definitional content” for terms guiding agency action
26
implementing a statute.
27
(D.C. Cir. 1999).
28
content to statutory standards it is tasked with implementing.
5 U.S.C. § 706(2)(A).
Pearson v. Shalala, 164 F.3d 650, 660
An agency is “obliged under the APA” to give
13
1
Id. at 661.
2
“utterly without guidance as to what he must prove, and how.”
3
Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974).
4
an agency utterly fails to provide a standard for its decision, it
5
runs afoul of more than one provision of the Administrative
6
Procedure Act. . . . An agency’s failure to state its reasoning or
7
to adopt an intelligible decisional standard is so glaring that we
8
can declare with confidence that the agency action was arbitrary
9
and capricious.”
United States District Court
For the Northern District of California
10
An agency cannot leave a prospective applicant
S.
“When
Checkosky v. SEC, 139 F.3d 221, 226 (D.C. Cir.
1998) (citation omitted).
11
The Court finds that Plaintiffs are likely to succeed in
12
demonstrating that the certification process is arbitrary and
13
capricious in one or more of the multiple ways they posit.
14
1. Substantive Criteria
15
Plaintiffs may succeed in showing that the Final Rule is
16
arbitrary and capricious in that it provides no substantive
17
criteria as to how a state may satisfy the requirements of chapter
18
154.
19
competency standards “reasonably assure a level of proficiency
20
appropriate for State post-conviction litigation in capital
21
cases.”
22
all” provision is broad and vague.
23
to other provisions in section 26.22 and argue that section
24
26.22(b) should not be read “in isolation.”
25
dispute that the Attorney General can base his certification
26
decision on section 26.22(b) alone.
27
language does not offer meaningful notice as to how certification
28
decisions will be made pursuant to it.
Section 26.22(b) allows a state to be certified if its
78 Fed. Reg. 58,162.
Plaintiffs argue that this “catch-
14
In response, Defendants point
But Defendants do not
Section 26.22(b)’s vague
1
Defendants also argue that the catch-all provision gives
2
effect to congressional intent.
3
intended that states be given “wide latitude to establish a
4
mechanism that complies with [the statutory requirements.]”
5
Fed. Reg. 58, 162.
6
rein.
7
that although the Education of the Handicapped Act gives states
8
the “primary responsibility for developing and executing programs,
9
it imposes significant requirements to be followed in the
United States District Court
For the Northern District of California
10
11
According to Defendants, Congress
78
But latitude should not be conflated with free
See Bd. of Educ. v. Rowley, 458 U.S. 76, 183 (1982) (noting
discharge of that responsibility.”).
In June 1988, a committee, chaired by retired Supreme Court
12
Justice Lewis Powell, was commissioned by Chief Justice Rehnquist
13
to assess the delay and lack of finality in capital cases.
14
Cong. Rec. 24694 (1989), Ad Hoc Committee on Federal Habeas Corpus
15
in Capital Cases Committee Report (Powell Committee Report).
16
Powell Committee, whose proposal chapter 154 essentially codifies,
17
explained that the “provision of competent counsel for prisoners
18
under capital sentence throughout both state and federal
19
collateral review is crucial to ensuring fairness and protecting
20
the constitutional rights of capital litigants.”
21
S13471-04, S13481, S13482, Powell Committee Report.
22
154, Congress provided a quid pro quo design: a state receives
23
expedited federal review in exchange for its guarantee of adequate
24
representation in state habeas corpus proceedings.
25
Calderon, 31 F. Supp. 2d 1175, 1180 (N.D. Cal. 1998) aff'd sub
26
nom. Ashmus v. Woodford, 202 F.3d 1160 (9th Cir. 2000) (“As courts
27
have uniformly held, chapter 154 explicitly contemplates a quid
28
pro quo relationship.”).
135
The
135 Cong. Rec.
In chapter
See Ashmus v.
The legislative history of chapter 154
15
1
supports the principle that a regulation pursuant to it must
2
require that a state actually uphold its end of the bargain -- to
3
provide competent representation.
4
wide latitude in providing for competent representation in a
5
number of specified, equivalent ways, without the latitude of
6
specifying no requirements at all.
7
8
9
The states could be afforded
2. State’s Obligation to Take Affirmative Steps
Plaintiffs may also succeed in showing that the Final Rule is
arbitrary and capricious because it departs from chapter 154’s
United States District Court
For the Northern District of California
10
requirement that a state take affirmative steps to prove its
11
eligibility.
12
13
14
15
16
17
18
One court has explained:
“If Congress had intended to afford the States the
very significant benefits conferred by Chapter 154
on the basis of a finding of substantial compliance
based on past performance, it could have done so.
However, it elected not to do so; and instead,
Congress chose to confer those benefits only if the
State made an affirmative, institutionalized,
formal commitment to provide a post-conviction
review system which Congress considered to be
‘crucial to ensuring fairness and protecting the
constitutional rights of capital litigants.’
Powell Committee Report at 3240.”
19
20
Ashmus, 31 F. Supp. 2d at 1183 (quoting Satcher v. Netherland, 944
21
F. Supp. 1222, 1243 (E.D. Va. 1996)).
22
must establish a system reflecting ‘an affirmative,
23
institutionalized, formal commitment’ to habeas representation,”
24
and Congress did not intend to permit procedures that “suffer from
25
incoherence or incompleteness.”
26
Ashmus found that “a state
Ashmus, 31 F. Supp. 2d at 1183.
Defendants respond that the Final Rule is not arbitrary and
27
capricious because it properly places the burden on states “to
28
demonstrate that they have established a compliant capital counsel
16
1
appointment mechanism, and subjects that demonstration to public
2
scrutiny.”
3
assertion, the rule as written requires only a bare-bones request.
4
Pursuant to the Final Rule, a state desiring certification must
5
submit a “request in writing that the Attorney General determine
6
whether the State meets the requirements for certification under §
7
26.22 of this subpart.”
8
burden shifts to the public -- more precisely, to indigent death-
9
sentenced prisoners -- to demonstrate that the state does not
Defs.’ Resp. at 20.
Contrary to Defendants’
78 Fed. Reg. 58,184.
At that point, the
United States District Court
For the Northern District of California
10
comply.
11
record of compliance with its mechanism.
12
(stating that certification decision “need not be supported by a
13
data-intensive examination of the State’s record of compliance
14
with the established mechanism in all or some significant subset
15
of postconviction cases.”).
16
procedures are adequate.
17
to explain how its mechanism qualifies under chapter 154, the
18
Final Rule may depart from chapter 154’s requirement that the
19
state take affirmative steps to qualify.
20
132 S. Ct. 476 (2011) (finding that the agency’s regulation was
21
arbitrary and capricious because it bore little relation to the
22
purpose of the law).
23
24
A state applicant need not submit data demonstrating its
See 78 Fed. Reg. 78,174
Nor must a state demonstrate that its
By severely lessening a state’s burden
See Judulang v. Holder,
3. Actual Compliance with Terms of Submitted Mechanism
The Final Rule does not require a state to show that it has
25
actually complied with the terms of its submitted mechanism.
26
mere existence of state requirements for the appointment,
27
compensation and expenses of competent counsel does not ensure
28
that such requirements are applied and enforced in practice.
17
The
1
Indeed, as FDO-Arizona notes, capital prisoners generally wait
2
more than a year and a half after state court affirmance of their
3
convictions and sentences before state post-conviction counsel is
4
appointed.
5
Arizona (June 1, 2011), AR 583-84.
6
Public Comment of Federal Public Defender--District of
It is common sense that a state must actually comply with its
7
own mechanism, but the history, purpose and exhaustive judicial
8
interpretation of chapter 154 also support this view.
9
Circuit put it most plainly in Tucker v. Catoe, 221 F.3d 600, 604-
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
The Fourth
05 (4th Cir. 2000):
We accordingly conclude that a state must not only
enact a “mechanism” and standards for postconviction review counsel, but those mechanisms and
standards must in fact be complied with before the
state may invoke the time limitations of [chapter
154]. Not only is this conclusion consistent with
our precedent, but it is also consistent with
common sense: It would be an astounding proposition
if a state could benefit from the capital-specific
provisions of AEDPA by enacting, but not following,
procedures promulgated [to meet chapter 154
requirements].
18
19
20
21
22
23
24
25
26
27
28
The Supreme Court noted that AEDPA “creates an entirely new
chapter 154 with special rules favorable to the state party, but
applicable only if the State meets certain conditions.”
Murphy, 521 U.S. 320, 326 (1997) (emphasis added).
Lindh v.
In other
words, a state may reap procedural benefits only if it has “done
its part to promote sound resolution of prisoners’ petitions.”
Id. at 330.
See also Baker v. Corcoran, 220 F.3d 276, 286 (4th
Cir. 2000) (Maryland did not qualify for chapter 154 provisions
because the state’s competency standards were not applied in the
appointment process and the “[c]ompetency standards are
18
1
meaningless unless they are actually applied in the appointment
2
process”); Ashmus, 202 F.3d at 1168 (stating that California must
3
abide by its competency standards when appointing counsel and
4
concluding that “a state’s competency standards must be mandatory
5
and binding if the state is to avail itself of Chapter 154”); Mata
6
v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in part on
7
other grounds in 105 F.3d 209 (5th Cir. 1997) (stating that
8
competency standards must be “specific” and “mandatory” in order
9
to satisfy the opt-in requirements).
Plaintiffs may succeed in
United States District Court
For the Northern District of California
10
showing that the Final Rule is arbitrary and capricious for this
11
reason.
12
13
4. Effect of Common Law
Plaintiffs may succeed in demonstrating that the Final Rule
14
is arbitrary and capricious because it does not address the effect
15
of judicial interpretation.
16
thoughtful body of law addressing chapter 154, Defendants fail to
17
show with any specificity how the Attorney General's certification
18
decision will be guided by it.
19
General submitted an application on March 11, 2013, seeking
20
certification based on a state mechanism established in 1995.
21
Declaration of Michael Laurence ¶ 12, Ex. B.
22
Appeals for the Fifth Circuit in Mata, 99 F.3d at 1267, has held
23
that the mechanism in place at that time did not comply with
24
chapter 154.
25
incorporate the standards and rulings of the courts to a state’s
26
application.
27
28
In spite of the considerable and
For instance, the Texas Attorney
Yet, the Court of
The Final Rule does not explain whether it will
Defendants represent in a footnote in their response brief
that the Final Rule will not invalidate prior case law.
19
Defs.’
1
Resp. at 9, n.8.
2
the Final Rule: “[P]rior judicial interpretation of chapter 154,
3
much of which remains generally informative, supports many
4
features of this rule, as th[e] preamble documents.
5
the rule approaches certain matters differently from some past
6
judicial interpretations, there are reasons for the differences.”
7
Id.
8
addressing judicial interpretation does not provide assurance that
9
the Attorney General will be guided by the case law addressing
United States District Court
For the Northern District of California
10
(citing 78 Fed. Reg. 58,164).
To the extent
The Final Rule’s language
chapter 154 in making his certification decisions.
11
12
In support of this contention, Defendants cite
5. Ex Parte Communication
Finally, Plaintiffs may succeed in demonstrating that the
13
Final Rule is arbitrary and capricious because it fails to address
14
the nature and effect of ex parte communication between the United
15
States Attorney General and state officials.
16
Final Rule went into effect, Attorney General Holder and the
17
Arizona Attorney General commenced a process of certification
18
without notifying interested parties.
19
April 18, 2013, Arizona Attorney General Tom Horne sent a letter
20
to Attorney General Holder requesting certification of Arizona as
21
an “opt-in” state.
22
this letter only through a press release issued by the Arizona
23
Attorney General’s Office.
24
letter to Attorney General Holder, referring to Horne’s letter and
25
formally requesting notification of any correspondence or
26
communication between the DOJ and the Arizona Attorney General’s
27
Office.
28
months prior to the publication of the Final Rule -- the DOJ
Baich Dec., Ex. E.
Baich Dec., Ex. F.
Even before the
Baich Dec., Exs. E, F.
On
FDO-Arizona learned of
On June 4, 2013, FDO-Arizona wrote a
On July 16, 2012 -- more than two
20
1
informed Arizona that it would review the state’s application
2
immediately.
3
DOJ stated that it would begin reviewing Arizona’s application to
4
“help speed up the ultimate determination of the certification.”
5
Baich Dec., Ex. G.
6
DOJ’s response to Arizona and did not receive an acknowledgment of
7
or a response to its letter and.
8
9
In its letter to the Arizona Attorney General, the
Plaintiff FDO-Arizona was not copied on the
Baich Dec. ¶¶ 7-8.
In their brief Defendants appear to contend that their
private communications with state attorneys general will be merely
United States District Court
For the Northern District of California
10
“ministerial communications.”
11
argument Defendants were asked to explain the meaning of this
12
evidently subjective term.
13
Defendants expanded their position to argue that nothing in the
14
Final Rule prohibits Defendants from engaging in ex parte
15
communication, ministerial or not, with state attorneys general.
16
However, the APA’s notice requirements exist to afford interested
17
parties a meaningful opportunity to respond to agency action.
18
Erringer v. Thompson, 371 F.3d 625, 629 (9th Cir. 2004).
19
Final Rule itself states that all requests will be made publicly
20
available, making no allowance for ex parte communication.
21
Fed. Reg. 58,184.
22
parties from offering input regarding the validity and accuracy of
23
the undisclosed documents.
24
Defs.’ Resp. at 12-13.
At oral
Rather than define “ministerial,”
The
78
Ex parte communication excludes interested
Accordingly, Plaintiffs may succeed in demonstrating that the
25
Final Rule is arbitrary and capricious because it lacks specific
26
guidelines addressing the DOJ’s disclosure of ex parte
27
communication with state officials.
28
articulate transparent and specific parameters governing the
21
The Final Rule's failure to
1
Attorney General's ex parte communication with state officials
2
leaves Plaintiffs and the public in the dark, depriving them of
3
the opportunity to offer meaningful opposition.
4
In sum, Plaintiffs may prevail on their claims that the Final
Rule does not provide substantive criteria as to how a state may
6
satisfy the requirements of chapter 154; shifts the burden of
7
proof from the state to the condemned to demonstrate that the
8
state mechanism does not qualify under chapter 154; does not
9
require the state to show that it actually complies with the terms
10
United States District Court
For the Northern District of California
5
of its submitted mechanism; does not show with any specificity how
11
the considerable body of law addressing chapter 154 will guide the
12
Attorney General's certification decision; and does not address
13
the nature and effect of ex parte communication between the
14
Attorney General and state officials.
15
Plaintiffs are likely to succeed on the merits of their claim that
16
the Final Rule is arbitrary and capricious under the APA.
17
18
19
20
21
22
23
24
25
26
27
The Court finds that
III. Irreparable Harm, Balance of Equities, and the Public
Interest
Plaintiffs have demonstrated a likelihood of irreparable harm
sufficient to warrant granting a preliminary injunction.
Were the
Final Rule to go into effect, the possibility that California
could apply for certification at any time or that Arizona, which
has already applied for certification, could be certified at any
time will “thrust Plaintiffs into uncertainty over the legal
framework that applies to state and federal post-conviction
remedies already being pursued on behalf of its clients.”
Corpus Res. Ctr., 2009 WL 185423, at *9.
28
22
Habeas
1
Defendants’ primary argument is that Plaintiffs will not
2
suffer irreparable harm because any harm is “contingent on Arizona
3
or California being certified under the Final Rule.”
4
connection with Plaintiffs’ standing argument above, HCRC has
5
explained that “the harmful consequences of permitting the flawed
6
rule to go into effect are not contingent on whether California
7
will be certified, but rather upon the inability to predict
8
whether California qualifies for chapter 154’s benefits[.]”
9
Supplemental Laurence Dec. ¶ 3.
As noted in
Because the Final Rule offers few
United States District Court
For the Northern District of California
10
substantive criteria that illuminate whether California will be
11
certified, HCRC is forced to revise its strategy and management of
12
resources in anticipation of potential certification.
13
given the fact that Arizona has already applied for certification,
14
FDO-Arizona is forced to prepare for the possibility of
15
drastically expedited federal review procedures.
16
¶¶ 10-12.
Similarly,
Baich Dec.
17
Title 28 U.S.C. § 2265(a)(2) provides that a state's
18
certification is retroactive to the date on which its mechanism
19
for appointing counsel was established.
20
Temporary Restraining Order, the legal uncertainty of the
21
retroactive effect of the new limitations period combined with the
22
possibility that California could apply for certification at any
23
time or that Arizona’s pending application for certification could
24
be approved would create serious uncertainty with respect to “the
25
legal framework that applies to state and federal post-conviction
26
remedies already being pursued.”
27
185423 at *9.
As discussed in the
Habeas Corpus Res. Ctr., 2009 WL
28
23
1
Compared to the harm faced by Plaintiffs, Defendants stand to
2
face little, if any, harm if the Final Rule does not go into
3
effect immediately.
4
2005.
5
Defendants only recently attempted to revive it.
6
delay pending resolution of this lawsuit will not prejudice them.
7
Public interest likewise favors maintaining the status quo while
8
the legality of Defendants' rule is determined.
The Patriot Act amendments were passed in
After retracting their 2008 proposed rule in 2010,
9
United States District Court
For the Northern District of California
10
An additional
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’
11
motion for a preliminary injunction.
12
litigation, Defendants are enjoined from putting into effect the
13
rule entitled, “Certification Process for State Capital Counsel
14
Systems,” published at 78 Fed. Reg. 58,160 (Sept. 23, 2013).
During the pendency of this
15
16
IT IS SO ORDERED.
17
18
19
Dated:
12/4/2013
CLAUDIA WILKEN
United States District Judge
20
21
22
23
24
25
26
27
28
24
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