Habeas Corpus Resource Center et al v. United States Department of Justice et al, No. 4:2013cv04517 - Document 76 (N.D. Cal. 2014)

Court Description: 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)

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Habeas Corpus Resource Center et al v. United States Department of Justice et al Doc. 76 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. Dockets.Justia.com 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

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