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

Filing 76

ORDER GRANTING IN PART 67 PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS 71 CROSS-MOTION FOR SUMMARY JUDGMENT. ***Civil Case Terminated.*** Signed by Judge Claudia Wilken on 8/7/2014. (ndr, COURT STAFF) (Filed on 8/7/2014)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6

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

7
8

v.

10

UNITED STATES DEPARTMENT OF
JUSTICE and ERIC H. HOLDER, in
his official capacity as United
States Attorney General,

11

ORDER GRANTING IN
PART PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND
GRANTING IN PART
DEFENDANTS’ CROSSMOTION FOR SUMMARY
JUDGMENT

Defendants.

9

United States District Court
For the Northern District of California

No. C 13-4517 CW

12

________________________________/

13

Plaintiffs Habeas Corpus Resource Center (HCRC)1 and the

14

Office of the Federal Public Defender for the District of Arizona

15

(FDO-Arizona)2 have filed a motion for summary judgment.

16

Defendants United States Department of Justice (DOJ) and United

17

States Attorney General Eric H. Holder oppose the motion and have

18

filed a cross-motion for summary judgment.3

19

heard on July 31, 2014.

The motions were

Having considered oral argument and the

20
21
22

1

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.

23
2

24
25
26
27
28

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

Marc Klaas has filed an unopposed motion to file a brief as
amicus curiae. The Court grants the motion. Docket No. 69.

1

papers submitted by the parties, the Court GRANTS Plaintiffs’

2

motion in part (Docket No. 67) and GRANTS Defendants’ cross-motion

3

in part (Docket No. 71).

4
5
6

BACKGROUND
I.

The 2013 Final Rule
The Antiterrorism and Effective Death Penalty Act (AEDPA) of

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

8

Chapter 154 provides expedited procedures in federal capital

9

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

10
United States District Court
For the Northern District of California

7

provided qualified, competent, adequately resourced and adequately

11

compensated counsel to death-sentenced prisoners.

12

AEDPA, federal courts were responsible for determining whether

13

states were eligible for the expedited federal procedures.

14

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

15

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

16

the eligibility determination from the federal courts to the

17

Attorney General.

18

Under the

The

In December 2008, the Attorney General published a final rule

19

to implement the procedure prescribed by chapter 154.

20

20, 2009, the Court granted a preliminary injunction, enjoining

21

Defendants from putting the regulation into effect without first

22

providing an additional comment period of at least thirty days and

23

publishing a response to any comments received during such a

24

period.

25

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

26

Defendants solicited further public comment on its proposed

27

certification process.

28

the 2008 regulation pending the completion of a new rulemaking

On January

Habeas Corpus Resource Ctr. v. United States Department
On February 5, 2009,

Defendants thereafter proposed to retract

2

1

process.

2

2010, Defendants published a final rule retracting the 2008

3

regulations.

4

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

5

rulemaking for a new certification process.

76 Fed. Reg. 11,705.

6

The comment period closed on June 1, 2011.

On February 13, 2012,

7

the DOJ then published a supplemental notice soliciting public

8

comments on five contemplated changes.

9

comment period closed on March 14, 2012.

United States District Court
For the Northern District of California

10
11

77 Fed. Reg. 7559.

The

On September 23, 2013,

the Final Rule was published.
Section 26.22 of the Final Rule prescribes the standards a

12

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

13

§§ 2261 and 2265.

14

The Final Rule provides:

§ 26.22 Requirements.

15
16
17
18
19
20
21
22
23

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
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.
(1) A State’s standards of competency are
presumptively adequate if they meet or exceed either of
the following criteria:

24
25
26
27
28

(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
3

consideration of the seriousness of the penalty and
the unique and complex nature of the litigation; or

1
2

(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.

3
4
5

(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.

6
7
8
9

78 Fed. Reg. at 58,183.

The “standards established in conformity

10
United States District Court
For the Northern District of California

with 42 U.S.C § 14163(e)(1) and (2)(A)” referred to in section
11
26.22(b)(1)(ii) are provisions of the Innocence Protection Act
12
(IPA).

They call for maintenance of a roster of qualified

13
attorneys, specialized training programs for attorneys providing
14
capital case representation, monitoring of the performance of
15
attorneys who are appointed and their attendance at training
16
programs, and removal from the roster of attorneys who fail to
17
deliver effective representation, engage in unethical conduct, or
18
do not participate in required training.

42 U.S.C.

19
§§ 14163(e)(2)(B),(D), and (E).
20
Section 26.23 of the Final Rule provides the process for a
21
state’s certification:
22
23
24

(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.

25
26
27
28

(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—
4

1
2
3

(1) Indicating that the State has requested
certification;

4

(2) Identifying the Internet address at which the
public may view the State’s request for
certification; and

5

(3) Soliciting public comment on the request.

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20

(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
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.

21
22
23
24
25
26
27

(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.
78 Fed. Reg. at 58,184.

28
5

1
2

II.

The Impact of the 2013 Final Rule
Once a state is certified, the statute of limitations for

3

federal habeas corpus proceedings is “fast-tracked.”

4

statute of limitations for filing a habeas petition in federal

5

court is shortened from one year to 180 days.

6

§ 2263(a).

7

altered to exclude from tolling (1) the period of time between the

8

finality of direct review in state court to the filing of a

9

petition for writ of certiorari in the United States Supreme Court

First, the

28 U.S.C.

Second, tolling of the statute of limitations is

United States District Court
For the Northern District of California

10

and (2) the filing of exhaustion or successive state habeas

11

petitions.

12

amend a petition is limited.

13

a federal district court must enter final judgment on a habeas

14

petition within 450 days of the filing of the petition, or sixty

15

days after it is submitted for decision--whichever is earlier.

16

U.S.C. § 2266(b).

17

reaching back to the date the qualifying mechanism is found to

18

have been established.

19

mechanism described in paragraph 1(A) was established shall be the

20

effective date of the certification under this subsection.”).

21

III. Procedural History

22

28 U.S.C. § 2263(b).

Third, a petitioner’s ability to

28 U.S.C. § 2266(b)(3)(B).

Fourth,

28

Finally, the certification is retroactive,

28 U.S.C. § 2265(a)(2) (“The date the

Plaintiffs filed their complaint in this case on September

23

30, 2013.

24

motion for a temporary restraining order and, on December 4, 2013,

25

the Court granted Plaintiffs a preliminary injunction.

26

6, 2014, the Court granted the parties’ stipulation that

27

Plaintiffs could voluntarily dismiss their fifth cause of action

28

without prejudice.

On October 18, 2013, the Court granted Plaintiffs’

On March

The remaining four causes of action are
6

1

(1)

2

failure to provide adequate notice; (2) violation of the APA for

3

failure to respond to significant public comment; (3) violation of

4

the APA by a procedurally deficient certification process; and

5

(4) violation of the APA by a substantively deficient

6

certification process.

violation of the Administrative Procedure Act (APA) for

7

LEGAL STANDARD

8

Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the

10
United States District Court
For the Northern District of California

9

evidence most favorably to the non-moving party, the movant is

11

clearly entitled to prevail as a matter of law.

12

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

13

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

14

1987).
The moving party bears the burden of showing that there is no

Fed. R. Civ. P.

15
material factual dispute.

Therefore, the court must regard as

16
17

true the opposing party’s evidence, if it is supported by

18

affidavits or other evidentiary material.

19

324; Eisenberg, 815 F.2d at 1289.

20

reasonable inferences in favor of the party against whom summary

21

judgment is sought.

22

Celotex, 477 U.S. at

The court must draw all

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident

23
& Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
24
25
26
27
28
7

DISCUSSION

1
2

I.

Procedural Barriers to Plaintiffs’ Claims

3

A. Standing

4

Defendants first argue that Plaintiffs lack standing to

5

challenge the Final Rule because they cannot satisfy Article III’s

6

“case or controversy requirement.”

A plaintiff “has the burden of

7
establishing the three elements of Article III standing: (1) he or
8
9

she has suffered an injury in fact that is concrete and

United States District Court
For the Northern District of California

10

particularized, and actual or imminent; (2) the injury is fairly

11

traceable to the challenged conduct; and (3) the injury is likely

12

to be redressed by a favorable court decision.”

13

Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir.

14

2008).

Salmon Spawning &

“Article III standing requires an injury that is actual or

15
imminent, not conjectural or hypothetical.”

Cole v. Oroville

16
Union High School Dist., 228 F.3d 1092, 1100 (9th Cir. 2000)
17
18

(internal quotation marks omitted).

19

“A plaintiff may allege a future injury in order to comply

20

with this requirement, but only if he or she ‘is immediately in

21

danger of sustaining some direct injury as the result of the

22

challenged official conduct and the injury or threat of injury is

23

both real and immediate, not conjectural or hypothetical.’”

Scott

24
v. Pasadena Unified School Dist., 306 F.3d 646, 656 (9th Cir.
25
26
27

2002) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983)).

28
8

1

As Plaintiffs note, when the Court granted their motion for a

2

preliminary injunction, it found that they had standing to pursue

3

this challenge.

4

addressed in the order granting Plaintiffs’ motion for preliminary

5

injunction, the Court will not revisit those arguments.

6

Recognizing the Court’s earlier finding that Plaintiffs have

7

standing, Defendants argue that “the Court did not expressly

8

consider the impact of the Supreme Court’s most recent standing

9

analysis in [Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138

To the extent that Defendants raise arguments

United States District Court
For the Northern District of California

10

(2013)], which is instructive and undercuts Plaintiffs’ claim of a

11

cognizable injury.”

12

Clapper is distinguishable from the instant case.

Defendants’ Cross-Motion at 6.

However,

13

In Clapper, the Supreme Court found that “United States

14

persons” who alleged that they engaged in “sensitive international

15

communications with individuals who they believe are likely

16

targets of surveillance” under 50 U.S.C. § 1881a, lacked standing

17

to challenge the constitutionality of that provision.

18

at 1142.

19

order from the Foreign Intelligence Surveillance Court,” the

20

government may authorize surveillance of “‘persons reasonably

21

believed to be located outside the United States to acquire

22

foreign intelligence information.’”

23

U.S.C. § 1881a(a)).

24

intentionally targeting surveillance at any person known to be in

25

the United States or any “United States person.”

26

§ 1881a(b).

27

rights, labor, legal, and media organizations” who alleged that

28

“some of the people with whom they exchange foreign intelligence

133 S. Ct.

“Section 1881a provides that upon the issuance of an

Id. at 1144 (quoting 50

The statute prohibits the government from

50 U.S.C.

The Clapper plaintiffs were “attorneys and human

9

1

information are likely targets of surveillance under § 1881a.”

2

133 S. Ct. at 1145.

3

there was “an objectively reasonable likelihood that their

4

communications [would] be acquired under § 1881a at some point in

5

the future, thus causing them injury” and that the risk of

6

surveillance was “so substantial” that they were “forced to take

7

costly and burdensome measures to protect the confidentiality of

8

their international communications.”

9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18

The Clapper plaintiffs further alleged that

Id. at 1146.

The Supreme Court rejected both theories of standing, finding
that the first failed because the argument rested on Defendants’
highly speculative fear that: (1) the Government will
decide to target the communications of non-U.S. persons
with whom they communicate; (2) in doing so, the
Government will choose to invoke its authority under
§ 1881a rather than utilizing another method of
surveillance; (3) the Article III judges who serve on
the Foreign Intelligence Surveillance Court will
conclude that the Government’s proposed surveillance
procedures satisfy § 1881a’s many safeguards and are
consistent with the Fourth Amendment; (4) the Government
will succeed in intercepting the communications of
respondents’ contacts; and (5) respondents will be
parties to the particular communications that the
Government intercepts.

19

Id. at 1148.

20

chain of possibilities does not satisfy the requirement that

21

threatened injury must certainly be impending.”

22

specifically noted that the government could authorize the same

23

surveillance the plaintiffs feared based on other authority.

24

Court further noted that § 1881a “at most authorizes—-but does not

25

mandate or direct--the surveillance that respondents fear.”

26

at 1149 (emphasis in original).

27
28

The Supreme Court found that this “highly attenuated

Id.

The Court

The

Id.

In contrast, there is no method, other than the procedures
set out in the challenged rule, by which a state can seek to have
10

1

habeas corpus proceedings “fast-tracked.”

2

challenged rule, “[t]he Attorney General will certify that a State

3

meets the requirements for certification . . . if the Attorney

4

General determines that the State has established a mechanism for

5

the appointment of counsel” that satisfies the standards set out

6

in the rule.

7

already applied for certification.

8

that precluded a finding of standing in Clapper do not exist in

9

this case.

United States District Court
For the Northern District of California

10

Moreover, under the

Administrative Record (AR) 1134.

Arizona has

Accordingly, the contingencies

The fact that the retroactive effect of the Final Rule

11

reaches back to the date at which the state mechanism went into

12

effect means that, upon certification, the deadline for a habeas

13

petitioner’s application in the certified state may have come and

14

gone without his knowing it.

15

retroactive effect, particularly when combined with the lack of

16

clear certification standards discussed below, forces Plaintiffs

17

to make urgent decisions regarding their litigation, resources,

18

and strategy.

19

light of the Ninth Circuit’s holding in Calderon v. United States

20

District Court, 128 F.3d 1283 (9th Cir. 1997).

21

Calderon held that AEDPA’s one-year statute of limitation “did not

22

begin to run against any state prisoner prior to the statute's

23

date of enactment.”

24

here are analogous, Defendants cannot guarantee that the Ninth

25

Circuit would come to the same conclusion if faced with a

26

petitioner whose statute of limitations had expired due to a

27

certification under the challenged rule.

The confusion caused by the

Defendants argue that this fear is unreasonable in

128 F.3d at 1287.

28
11

The panel in

Although the circumstances

1

The Court again concludes that Plaintiffs have standing to

2

challenge the substance of the Final Rule.

3

alleged harm with sufficient detail to state a “concrete and

4

particularized” injury.

5

proposed implementation of the Final Rule.

6

alleged injury that can be redressed by a decision blocking

7

implementation of the Final Rule as written.

First, they have

Second, the injury can be traced to the
Third, Plaintiffs have

8

B.

9

Defendants next argue that Plaintiffs’ claims fail because

Other Adequate Remedy

United States District Court
For the Northern District of California

10

the statute provides for judicial review of certification

11

decisions by the D.C. Circuit.

12

Accordingly, Defendants argue that Plaintiffs have another

13

adequate remedy in court that forecloses them from bringing suit

14

pursuant to the APA.

15

judicial review where there is “final agency action for which

16

there is no other adequate remedy in a court.”)

17

See 28 U.S.C. § 2265(c).

See 5 U.S.C. § 704 (APA provides for

However, as Plaintiffs point out, the review provided for by

18

the statute is a review of individual certification decisions, not

19

review of the regulations themselves.

20

certification decisions does not provide an adequate remedy in

21

this case.

Accordingly, the review of

22

C.

23

Defendants’ final procedural argument is that Plaintiffs’

Ripeness

24

claims are not ripe for review.

25

Rule establishes only the process by which state requests for

26

certification will be adjudicated in the future.”

27

12.

28

the ultimate certification decisions, which have yet to be made,

Defendants argue that “the Final

Cross-Motion at

Accordingly, they argue that any harm “would flow only from

12

1

and which will be subject to judicial review in the D.C. Circuit.”

2

Id.

3

Department of Interior, 538 U.S. 803 (2003), in support of the

4

proposition that a challenge to a regulation is not ordinarily

5

ripe for APA review until the regulation has been applied to a

6

claimant’s situation by some concrete action.

7

Defendants cite National Park Hospitality Association v.

However, the National Park Hospitality Association Court

8

held, “Determining whether administrative action is ripe for

9

judicial review requires us to evaluate (1) the fitness of the

United States District Court
For the Northern District of California

10

issues for judicial decision and (2) the hardship to the parties

11

of withholding court consideration.”

12

questions raised by Plaintiffs are fit for judicial decision.

13

Court is able to determine whether the certification procedure as

14

described in the Final Rule provides adequate notice and

15

opportunity for comment and whether that procedure is based on

16

sufficiently defined criteria.

17

in the Court’s order granting Plaintiffs’ motion for a preliminary

18

injunction, there is a likelihood of significant and irreparable

19

harm to Plaintiffs if the Final Rule goes into effect, based in

20

large part on the retroactive effect of any certification

21

decision.

22

II.

23

Id. at 808.

Here, the
The

Moreover, as discussed extensively

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

24

rulemaking to publish in its notice of rulemaking ‘either the

25

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

26

subjects and issues involved.’”

27

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

28

Because the Attorney General’s promulgation of the Final Rule

Long Island Care at Home, Ltd. v.

13

1

constitutes administrative rulemaking, it must comply with the

2

rulemaking provisions of the APA.

3

determine compliance, courts inquire whether “the notice fairly

4

apprise[s] the interested persons of the subjects and issues

5

before the Agency.’”

6

2005).

7

See 5 U.S.C. § 553.

To

Louis v. DOL, 419 F.3d 970, 975 (9th Cir.

Plaintiffs claim that the Attorney General failed to provide

8

adequate notice under the APA because he stated, for the first

9

time in the Final Rule, that the certification decisions are not

United States District Court
For the Northern District of California

10

subject to the rulemaking provisions of the APA.

11

Attorney General’s certifications under chapter 154 are orders

12

rather than rules for purposes of the Administrative Procedure Act

13

(APA).

14

provisions, see 5 U.S.C. § 553[.]”).

15

notify interested parties of its position, its notice of proposed

16

rulemaking has not “provide[d] sufficient factual detail and

17

rationale for the rule to permit interested parties to comment

18

meaningfully.”

19

(D.C. Cir. 2004) (citation omitted).

20

AR 1125 (“[T]he

They are accordingly not subject to the APA’s rulemaking
When an agency fails to

Honeywell Int’l., Inc. v. EPA, 372 F.3d 441, 445

However, Defendants counter that Plaintiffs were given

21

sufficient notice of the Attorney General’s position that

22

certification decisions are orders not subject to the rulemaking

23
24
25
26
27
28
14

1

provisions of the APA.

2

mechanics of the certification process as set out in the Notice of

3

Proposed Rulemaking and adopted in the Final Rule made clear that

4

the Attorney General did not intend to publish proposed decisions

5

granting or rejecting applications for certification or to accept

6

public comment on those decisions.

7

Rulemaking sets out the following steps: (1) a state requests a

8

determination of whether it meets the criteria for certification;

9

(2) the Attorney General publishes the request and solicits public

4

First, Defendants argue that the

The Notice of Proposed

United States District Court
For the Northern District of California

10

comment on the request; (3) the Attorney General will review the

11

request and any timely public comment; and (4) if certification is

12

granted, the Attorney General will publish the certification,

13

including “a determination of the date the capital counsel

14

mechanism qualifying the State for certification was established.”

15

76 Fed. Reg. 11,713 (March 3, 2011).

Defendants argue that these

16
17
18
19
20
21
22
23
24
25
26
27

4

Defendants also renew their argument that the retracted
2008 rule provided sufficient notice under the APA because the
current Attorney General adhered to the position of his
predecessor. Defendants’ argument is unpersuasive. The Attorney
General published a notice of a new proposed rule that resembled
the 2008 rule, but omitted its characterization of certification
decisions as adjudications, not rules. However, as the Court
found in its order granting the preliminary injunction, far from
alerting the public to the fact that the Attorney General adhered
to this position taken by his predecessor, it is more likely that
the notice of the new rule led interested parties to presume that
the Attorney General intentionally removed this characterization.
See, e.g., Keene Corp. v. United States, 508 U.S. 200, 208 (1993)
(“Where Congress includes particular language in one section of a
statute but omits it in another . . . , it is generally presumed
that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”) (citation and internal quotation marks
omitted).

28
15

1

procedures make clear that the Attorney General did not intend for

2

certification decisions to be subject to the notice and comment

3

requirements of rulemaking.

4

the inclusion of the procedures provided sufficient notice because

5

they included the “substance of the proposed rule.”

6

Def. Ctr., Inc. v. EPA, 344 F.3d 832, 851 (9th Cir. 2003).

Accordingly, Defendants argue that

Environmental

7

Moreover, Defendants argue that any error was harmless,

8

because Plaintiffs were not deprived of an opportunity to comment

9

on the proposed procedure.

Indeed, Plaintiffs submitted comments

United States District Court
For the Northern District of California

10

criticizing the procedure’s “failure to require any information

11

upon which the certification determination will be made” and

12

stating that such failure “denies the public notice of and

13

deprives interested persons the opportunity to participate in the

14

certification determination in a meaningful and informed manner

15

and violates due process.”

16

Attorney General’s proposed rule does not create a process that

17

will provide adequate notice of the information to be considered

18

in the certification determination”); AR 572 (“Full justification

19

for granting or denying a request for certification must be made

20

public, as well as all information relied upon by the Attorney

21

General in doing so”).

22

General’s failure explicitly to state his position that

23

certification decisions were orders meant that they “and others

24

had no opportunity to comment on Defendants’ stance specifically,

25

and to explain why it is both erroneous and inequitable.”

26

Plaintiffs’ Opposition at 3.

27

the lack of full rule-making procedures, stating that the proposed

AR 169.

See also AR 570 (“the

Plaintiffs respond that the Attorney

However, Plaintiffs did challenge

28
16

1

procedures violated due process and recommending modifications to

2

the procedure.

3

Accordingly, the Court denies Plaintiffs’ motion for summary

4

judgment and grants Defendants’ cross-motion on the first cause of

5

action.

6

III. Failure to Respond to Public Comments

7

Plaintiffs argue that Defendants failed to respond to public

8

comments when they promulgated the final rule, in violation of the

9

requirement that an agency “must give reasoned responses to all

United States District Court
For the Northern District of California

10

significant comments in a rulemaking proceeding.”

Int’l Fabricare

11

Inst. v. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992).

“An agency need

12

only respond to significant comments, those which, if adopted,

13

would require a change in the agency’s proposed rule.

14

Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1404 (9th Cir. 1995).

15

However, “a court should not infer that an agency considered an

16

issue merely because it was raised, where there is no indication

17

that the agency or other proponents refuted the issue.”

18

Shalala, 30 F.3d 1057, 1074-75 (9th Cir. 1994).

19

Idaho Farm

Beno v.

Specifically, Plaintiffs assert that Defendants failed to

20

respond to their comment that, under chapter 154 and prior court

21

decisions, states applying for certification must bear the burden

22

of demonstrating existence of and compliance with specific

23

standards.

24

applicants to be presumptively certified on the basis of minimal

25

facial showings.”

26

procedure adopted by the Final Rule improperly shifts the burden

27

to those challenging the certification and that Defendants nowhere

28

responded to their comment.

Plaintiffs argue that the Final Rule “allows state

AR 812.

Plaintiffs further assert that the

However, the preamble to the final
17

1

rule clearly states, “The Department does not believe, as some

2

commenters urged, that it is necessary to specify detailed

3

information concerning State capital collateral review systems

4

that States must include in their request for chapter 154

5

certification.”

6

based, in large part, on their contention that states should be

7

required to provide more information.

8

Defendants’ response is sufficient to indicate that Defendants

9

considered arguments regarding burden-shifting.

United States District Court
For the Northern District of California

10

AR 1125.

Plaintiffs’ burden-shifting argument is

The Court finds that

Next, Plaintiffs argue that Defendants failed to respond to

11

their comment that the failure to publish denials of

12

certifications is contrary to 5 U.S.C. § 555(e).

13

preamble to the Final Rule acknowledges that “[s]ome commenters

14

urged that denials of certification also be published in the

15

Federal Register” and states that “the Attorney General has the

16

option of giving notice by service to the State official who

17

requested certification regarding the denial of the certification

18

and is not legally required to publish the denial.”

19

Accordingly, Defendants addressed Plaintiffs’ concern with respect

20

to the legal requirement that denials of certification be

21

published.

22

§ 555(e), the Court finds that this is sufficient to indicate that

23

Defendants considered arguments that they were required to publish

24

denials of certifications.

25

However, the

AR 1125-26.

Although Defendants did not specifically cite

Finally, Plaintiffs argue that Defendants did not respond to

26

their concerns that the proposed rule did not identify any

27

“criteria to indicate what type of information will be considered

28

in granting or denying the application.”
18

AR 570.

However, the

1

preamble to the Final Rule explains Defendants’ reasoning and

2

continues, “States will be free to present any and all information

3

they consider relevant or useful to explain how the mechanism for

4

which they seek certification satisfies” chapter 154’s

5

requirements.

6

Defendants found “no persuasive reason for an across-the-board

7

imposition of more definite informational requirements beyond

8

that.”

9

AR 1125.

Moreover, the preamble indicates that

Id.

Accordingly, the Court denies Plaintiffs’ motion for summary

United States District Court
For the Northern District of California

10

judgment and grants Defendants’ cross-motion on the second cause

11

of action.

12

III. Procedural Challenges to the Final Rule

13

Under § 706(2)(A) of the APA, a reviewing court shall “hold

14

unlawful and set aside agency action, findings, and conclusions

15

found to be arbitrary, capricious, an abuse of discretion, or

16

otherwise not in accordance with the law.”

17

Plaintiffs argue that the certification process set out in the

18

Final Rule is procedurally deficient in violation of the APA.

5 U.S.C. § 706(2)(A).

19

A.

20

Plaintiffs first argue that Defendants’ determination that

Certification Decisions as Orders

21

certification decisions are orders or adjudications instead of

22

rulemaking violates the APA.

23

adjudications “resolve disputes among specific individuals in

24

specific cases whereas rulemaking affects the rights of broad

25

classes of unspecified individuals.”

26

v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994).

27

resulting from rulemaking is the “whole or a part of an agency

28

statement of general or particular applicability and future effect

The Ninth Circuit has held that

19

Yesler Terrace Cmty. Council
A determination

1

designed to implement, interpret, or prescribe law or policy or

2

describing the organization, procedure, or practice requirements

3

of an agency.”

4

Id.

Defendants counter that certification decisions are

5

resolutions of factual questions related to a particular state and

6

whether it is eligible to seek application of the chapter 154

7

proceedings in individual habeas corpus cases.

8

Defendants argue that certification decisions do not affect the

9

rights of broad classes of individuals.

Accordingly,

However, each

United States District Court
For the Northern District of California

10

certification will create a presumption that Chapter 154 applies

11

to the habeas proceedings of every condemned prisoner in the

12

relevant state and accordingly affects the litigation strategy of

13

each of those individuals.

14

Moreover, the fact that the certification decision can be

15

based only on the procedures adopted as policy by a state, rather

16

than the way in which those procedures have been applied in

17

specific cases, undercuts a finding that the certification

18

decisions are fact-based.

19

fact that individual habeas petitioners will be able to challenge

20

the applicability of chapter 154 in their particular cases only

21

underscores the fact that the Attorney General’s certification

22

decisions are rule-making actions that affect the rights of broad

23

classes of individuals.

Finally, as Plaintiffs point out, the

24

Defendants further argue that “it is sufficient that the

25

Attorney General had a reasoned basis for [] concluding” that

26

certification decisions are orders rather than rules.

27

Motion at 18.

28

Teva Pharmaceuticals, USA, Inc. v. FDA, 182 F.3d 1003 (D.C. Cir.

Cross-

Defendants rely on the D.C. Circuit’s decision in

20

1

1999).

2

FDA’s decision to answer a key question, necessary to the

3

resolution of a drug company’s application to market a drug, as

4

part of its future rule-making rather than making a case-by-case

5

order allowing it to determine the outcome of the application.

6

The Teva panel held that, while an agency “generally has

7

discretion to determine whether to proceed by adjudication or

8

rulemaking, litigants also have a right to adjudication of their

9

claims.”

However, in Teva, the D.C. Circuit was addressing the

Id. at 1010.

This is not the same discretion exercised

United States District Court
For the Northern District of California

10

by Defendants in this case to classify a set of all certification

11

decisions as orders.

12

this distinction clear.

13

Supreme Court held that “the choice made between proceeding by

14

general rule or by individual, ad hoc litigation is one that lies

15

primarily in the informed discretion of the administrative

16

agency.”

17

holding on an agency’s need to address areas in which it “may not

18

have had sufficient experience with a particular problem to

19

warrant rigidifying its tentative judgment into a hard and fast

20

rule.”

21

authority to make a rule.

22

characterize any decision under the Final Rule as an order rather

23

than a rule.

24

The cases relied upon by the Teva panel make
For example, in SEC v. Chenery Corp., the

332 U.S. 194, 203 (1947).

Id.

The Chenery Court based this

Here, Defendants are not declining to exercise their
Instead, they are electing to

Because certification decisions will “affect[] the rights of

25

broad classes” of individuals and impact such persons “after the

26

[decision] is applied,” the Court finds that they are more

27

properly characterized as rules rather than orders.

28

Terrace, 37 F.3d at 448.

Yesler

Accordingly, certification decisions
21

1

must comply with all procedural requirements of the APA, including

2

notice regarding the decisions.

3

does not “provide sufficient factual detail and rationale” such

4

that interested parties have an opportunity to “comment

5

meaningfully.”

6

(D.C. Cir. 2004).

7

of an agency’s proposed actions.

8

the Final Rule only requires that “the Attorney General will make

9

[a state’s] request available on the Internet and solicit public

The Final Rule, as promulgated,

Honeywell Int’l Inc. v. EPA, 372 F.3d 441, 445
In addition, the public is entitled to notice
5 U.S.C. § 553(b)(3).

However,

United States District Court
For the Northern District of California

10

comment on the request by publishing a notice in the Federal

11

Register.”

12

Attorney General will consider the state’s request and any timely

13

public comment and then publish the certification in the Federal

14

Register if granted.

15

public be given an opportunity to comment on the Attorney

16

General’s proposed decision-making.

17

need not provide any specific information in its request, there is

18

no guarantee that the public will have sufficient information to

19

make meaningful commentary on the request.

AR 1131.

The Final Rule further provides that the

This falls short of the requirement that the

Moreover, because the state

20

B.

21

Plaintiffs also argue that the Final Rule is arbitrary and

Application Process

22

capricious because a state seeking certification need only submit

23

a “request in writing that the Attorney General determine whether

24

the State meets the requirements for chapter 154 certification.”

25

AR 1131.

26

writing” does not require states seeking certification to provide

27

the relevant information necessary to make a reasoned decision.

28

Accordingly, Plaintiffs argue that the certification process

Plaintiffs contend that this undefined “request in

22

1

itself is “arbitrary and capricious because it fails to consider

2

and address relevant factors about a state’s eligibility for

3

certification and is unrelated to the requirements of Chapter

4

154.”

5

final rule is arbitrary and capricious when an agency “entirely

6

fail[s] to consider an important aspect of the problem.”

7

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,

8

43 (1983).

Motion for Summary Judgment at 13.

The promulgation of a

Motor

Plaintiffs further argue that the lack of specificity

10
United States District Court
For the Northern District of California

9

required by the application process improperly shifts the burden

11

to the public to prove that the state applying for certification

12

does not comply with chapter 154.

13

that a state take affirmative steps to prove its eligibility.

14

court has explained:

15

Chapter 154 itself requires
One

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.

16
17
18
19
20
21
22
23

Ashmus v. Calderon, 31 F. Supp. 2d 1175, 1183 (N.D. Cal. 1998),

24

aff'd sub nom. Ashmus v. Woodford, 202 F.3d 1160 (9th Cir. 2000)

25

(quoting Satcher v. Netherland, 944 F. Supp. 1222, 1243 (E.D. Va.

26

1996)).

27

system reflecting ‘an affirmative, institutionalized, formal

28

commitment’ to habeas representation,” and that Congress did not

The Ashmus court found that “a state must establish a

23

1

intend to permit procedures that “suffer from incoherence or

2

incompleteness.”

3

31 F. Supp. 2d at 1183.

Defendants respond that the Final Rule is not arbitrary and

4

capricious because it “requires demonstration that the requesting

5

state has an established, compliant capital counsel mechanism and

6

subjects that demonstration to public scrutiny.”

7

20.

8

request.

9

the public to demonstrate that the state does not comply.

Cross-Motion at

However, the rule as written requires only a bare-bones
Once a state has made its request, the burden shifts to

United States District Court
For the Northern District of California

10

Moreover, a state applicant need not submit data demonstrating its

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

See 78 Fed. Reg. 78,174

Nor must a state demonstrate that its

Plaintiffs also challenge the fact that the Final Rule does

18

not require a state to show that it has actually complied with the

19

terms of its submitted mechanism.

20

requirements for the appointment, compensation and expenses of

21

competent counsel does not ensure that such requirements are

22

applied and enforced in practice.

23

Arizona notes, capital prisoners in Arizona generally wait more

24

than a year and a half after state court affirmance of their

25

convictions and sentences before state post-conviction counsel is

26

appointed.

27

Arizona (June 1, 2011), AR 583-84.

The mere existence of state

Indeed, as Plaintiff FDO-

Public Comment of Federal Public Defender--District of

28
24

1

Defendants counter that they need not examine whether the

2

state has complied with its own mechanism in any given case

3

because chapter 154’s requirement of an “established” mechanism

4

“presupposes that the State has adopted and implemented standards

5

consistent with the chapter’s requirements.”

6

Rule goes on to state that it “allows for the possibility that the

7

Attorney General will need to address situations in which there

8

has been a wholesale failure to implement one or more material

9

elements of a mechanism described in a State’s certification

AR 1113.

The Final

United States District Court
For the Northern District of California

10

submission.”

11

produce data regarding compliance, the burden will necessarily

12

fall on the public’s comments to point out such “wholesale

13

failure.”

14

AR 1113.

However, if states are not required to

Common sense requires that a state must actually comply with

15

its own mechanism, and the history, purpose and exhaustive

16

judicial interpretation of chapter 154 also support this view.

17

The Fourth Circuit put it most plainly in Tucker v. Catoe, 221

18

F.3d 600, 604-05 (4th Cir. 2000):

19
20
21
22
23
24
25
26
27

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].
The Supreme Court noted that AEDPA “creates an entirely new
chapter 154 with special rules favorable to the state party, but

28
25

1

applicable only if the State meets certain conditions.”

2

Murphy, 521 U.S. 320, 326 (1997) (emphasis added).

3

words, a state may reap procedural benefits only if it has “done

4

its part to promote sound resolution of prisoners’ petitions.”

5

Id. at 330.

6

Cir. 2000) (Maryland did not qualify for chapter 154 provisions

7

because the state’s competency of counsel standards were not

8

applied in the appointment process and the “[c]ompetency standards

9

are meaningless unless they are actually applied in the

Lindh v.

In other

See also Baker v. Corcoran, 220 F.3d 276, 286 (4th

United States District Court
For the Northern District of California

10

appointment process”); Ashmus, 202 F.3d at 1168 (stating that

11

California must abide by its competency standards when appointing

12

counsel and concluding that “a state’s competency standards must

13

be mandatory and binding if the state is to avail itself of

14

Chapter 154”); Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.

15

1996), vacated in part on other grounds in 105 F.3d 209 (5th Cir.

16

1997) (stating that competency standards must be “specific” and

17

“mandatory” in order to satisfy the opt-in requirements).

18

Accordingly, the Court finds that the certification procedure

19

set out in the Final Rule is procedurally deficient and therefore

20

arbitrary and capricious under the APA.

21

Plaintiffs’ motion for summary judgment and denies Defendants’

22

cross-motion with respect to the third cause of action.

23

IV.

24

The Court grants

Substantive Challenges to the Final Rule
Final regulations are arbitrary and capricious when they fail

25

to 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.

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

An agency is “obliged under the APA” to give

26

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
11
12

An agency cannot leave a prospective applicant
S.

“When

Checkosky v. SEC, 139 F.3d 221, 226 (D.C. Cir.

1998) (citation omitted).
Plaintiffs argue that the certification process is
substantively arbitrary and capricious in several respects.

13

A. Criteria

14

Plaintiffs first argue that the Final Rule is arbitrary and

15

capricious because it provides no substantive criteria as to how a

16

state may satisfy the requirements of chapter 154.

17

26.22(b) allows a state to be certified if its competency

18

standards “reasonably assure a level of proficiency appropriate

19

for State post-conviction litigation in capital cases.”

20

Plaintiffs argue that this “catch-all” provision is broad and

21

vague.

22

in section 26.22, which Plaintiffs concede are based on specific

23

criteria and therefore contain definitional content, and argue

24

that those sections provide “benchmark” competency standards “that

25

serve as a point of reference in judging the adequacy of other

26

counsel qualification standards that States may establish and

27

offer for certification.”

Section

AR 1113.

In response, Defendants point to other specific provisions

AR 1123.

28
27

1

Defendants state that “the suggestion that the catch-all

2

provision negates the more specific provisions is unsupported.”

3

Cross-Motion at 22.

4

enumerates “[m]easures that will be deemed relevant[, including]

5

standards of experience, knowledge, skills, training, education,

6

or combinations of these considerations that a State requires

7

attorneys to meet in order to be eligible for appointment in State

8

capital postconviction proceedings.”

9

Defendants do not and cannot deny that the Attorney General can

United States District Court
For the Northern District of California

10

Defendants also note that the Final Rule

AR 1130.

Nevertheless,

base his certification decision on section 26.22(b) alone.

11

Defendants also argue that the catch-all provision gives

12

effect to congressional intent.

13

intended that states be given “wide latitude to establish a

14

mechanism that complies with [the statutory requirements.]”

AR

15

1113.

See

16

Bd. of Educ. v. Rowley, 458 U.S. 76, 183 (1982) (noting that

17

although the Education of the Handicapped Act gives states the

18

“primary responsibility for developing and executing programs, it

19

imposes significant requirements to be followed in the discharge

20

of that responsibility.”).

21

According to Defendants, Congress

But latitude should not be conflated with free rein.

In June 1988, a committee, chaired by retired Supreme Court

22

Justice Lewis Powell, was commissioned by then Chief Justice

23

William Rehnquist to assess the delay and lack of finality in

24

capital cases.

25

Federal Habeas Corpus in Capital Cases Committee Report (Powell

26

Committee Report).

27

154 is intended to codify, explained that the “provision of

28

competent counsel for prisoners under capital sentence throughout

135 Cong. Rec. 24694 (1989), Ad Hoc Committee on

The Powell Committee, whose proposal chapter

28

1

both state and federal collateral review is crucial to ensuring

2

fairness and protecting the constitutional rights of capital

3

litigants.”

4

Committee Report.

5

quo design: a state receives expedited federal review in exchange

6

for its guarantee of adequate representation in state habeas

7

corpus proceedings.

8

courts have uniformly held, chapter 154 explicitly contemplates a

9

quid pro quo relationship.”).

135 Cong. Rec. S13471-04, S13481, S13482, Powell
In chapter 154, Congress provided a quid pro

See Ashmus, 31 F. Supp. 2d at 1180 (“As

The legislative history of chapter

United States District Court
For the Northern District of California

10

154 supports the principle that a regulation effectuating it must

11

require that a state actually uphold its end of the bargain -- to

12

provide competent representation.

13
14

B. Effect of Common Law
Plaintiffs next argue that the Final Rule is arbitrary and

15

capricious because it does not address the effect of judicial

16

interpretation.

17

interpretation of chapter 154, much of which remains generally

18

informative, supports many features of this rule . . . .

19

extent the rule approaches certain matters differently from some

20

past judicial decisions, there are reasons for the differences.”

21

AR 1115.

22

consistently to follow judicial decisions because different courts

23

reached conflicting conclusions on some matters and legislative

24

amendments to chapter 154 preclude the Attorney General from

25

relying on certain case law.

26

The Final Rule states that “prior judicial

To the

The Final Rule goes on to state that it is impossible

Plaintiffs do not dispute that the Attorney General cannot

27

follow every existing case interpreting chapter 154.

28

they argue that the concerns raised in the Final Rule “do not
29

Nonetheless,

1

render all previous judicial interpretations irrelevant to

2

evaluating an application for certification.”

3

Judgment at 22.

4

case law “remains generally informative” and states that the body

5

of law “supports many features of this rule,” it does not in any

6

way address how prior judicial decisions will inform individual

7

certification decisions.

8

not required to address prior judicial interpretation in the Final

9

Rule, but provide no support for this contention.

Motion for Summary

Although the Final Rule recognizes that existing

Defendants simply state that they were

Cross-Motion at

United States District Court
For the Northern District of California

10

24.

11

traditional tools of statutory construction dictate that judicial

12

precedent is a source for giving content to federal standards.

13

See AR 157 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 448

14

(1987).

15

As Plaintiffs noted in their comments during the rulemaking,

Plaintiffs point to the example of Texas’s application,

16

submitted on March 11, 2013.

17

state mechanism established in 1995.

18

had already held that the mechanism in place at that time did not

19

comply with chapter 154.

20

does not explain whether the Attorney General will incorporate the

21

standards and apply the rulings of the courts to a state’s

22

application.

23

Texas seeks certification based on a
However, the Fifth Circuit

Mata, 99 F.3d at 1267.

The Final Rule

Defendants also argue that Plaintiffs failed to raise this

24

issue in their comments submitted during the rulemaking.

25

Plaintiffs’ comments stated, among other things, that “Congress’s

26

decision not to overturn [prior] judicial interpretations or

27

change the terms of the requirements demonstrates congressional

28

acceptance of them.”

AR 156.

However,

Plaintiffs further opined, “These
30

1

interpretations should be reflected in the minimum federal

2

standards included in the Attorney General’s regulations.”

3

Plaintiffs clearly raised the issue of prior judicial

4

interpretation of chapter 154 in their comments.

Id.

5

C.

6

Finally, Plaintiffs argue that the Final Rule is arbitrary

Ex Parte Communication

7

and capricious because it fails to address the nature and effect

8

of ex parte communications between the Attorney General and state

9

officials.

Defendants counter that Plaintiffs failed to address

United States District Court
For the Northern District of California

10

the issue of ex parte communications in their public comment.

11

However, the public comment period closed on June 1, 2011 and

12

Plaintiffs did not discover the ex parte communications until

13

April 2013.

14

See Baich Dec. ¶ 7.

Even before the Final Rule went into effect, Attorney General

15

Holder and Arizona Attorney General Tom Horne commenced a process

16

of certification without notifying interested parties.

17

Dec., Exs. E, F.

18

letter to Attorney General Holder requesting certification of

19

Arizona as an “opt-in” state.

20

Arizona learned of this letter only through a press release issued

21

by the Arizona Attorney General’s Office.

22

Plaintiff FDO-Arizona wrote a letter to Attorney General Holder,

23

referring to Attorney General Horne’s letter and formally

24

requesting notification of any correspondence or communication

25

between the DOJ and the Arizona Attorney General’s Office.

26

Dec., Ex. F.

27

the publication of the Final Rule -- the DOJ informed Arizona that

28

it would review the state’s application immediately.

Baich

On April 18, 2013, Attorney General Horne sent a

Baich Dec., Ex. E.

Plaintiff FDO-

On June 4, 2013,

Baich

On July 16, 2012 -- more than two months prior to

31

In a letter

1

to the Arizona Attorney General, the DOJ stated that it would

2

begin reviewing Arizona’s application to “help speed up the

3

ultimate determination of the certification.”

4

Plaintiff FDO-Arizona was not copied on the DOJ’s response to

5

Arizona and did not receive an acknowledgment of or a response to

6

its letter.

7

Baich Dec., Ex. G.

Baich Dec. ¶¶ 7-8.

In response, Defendants simply note that the APA does not

8

prohibit ex parte communications.

9

certification procedure set out in the Final Rule, specifically

However, in light of the

United States District Court
For the Northern District of California

10

the bare requirement of a “written request” and a single

11

opportunity for public comment based on that potentially bare-

12

bones request, ex parte communications severely interfere with the

13

public’s ability to make informed comment on any application for

14

certification.

15

the Attorney General may publish subsequent notices providing a

16

further opportunity for comment, but there is no requirement that

17

the Attorney General publish anything but the initial written

18

application.

19

Cir. 2004) (holding that the APA’s notice requirements exist to

20

afford interested parties a meaningful opportunity to respond to

21

agency action).

22

parties from offering input regarding the validity and accuracy of

23

such undisclosed communications and documents.

24

Defendants argue that the Final Rule provides that

See Erringer v. Thompson, 371 F.3d 625, 629 (9th

Ex parte communication excludes interested

Accordingly, the Court grants Plaintiffs’ motion for summary

25

judgment and denies Defendants’ motion for summary judgment on the

26

fourth cause of action.

27
28
32

1

CONCLUSION

2

For the foregoing reasons, the Court GRANTS in part

3

Plaintiffs’ motion for summary judgment and GRANTS in part

4

Defendants’ cross-motion for summary judgment.

5

put into effect the rule entitled, “Certification Process for

6

State Capital Counsel Systems,” published at 78 Fed. Reg. 58,160

7

(Sept. 23, 2013).

8

in this order in any future efforts to implement the procedure

9

prescribed by chapter 154.

United States District Court
For the Northern District of California

10

causes of action.

11

close the case.

Defendants may not

Defendants must remedy the defects identified

This order disposes of all of the

The Clerk of the Court shall enter judgment and

All parties shall bear their own costs.

12
13

IT IS SO ORDERED.

14
15
16

Dated: 8/7/2014

CLAUDIA WILKEN
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
33