[*Ed. note: The Arizona FPD is a party to this case.]

Habeas Corpus Resource Center v. Department of Justice, No. 14-16928 (Bea with O'Scannlain and Silverman) --- The Ninth Circuit vacated a district court's order granting a request by two public-defender agencies that represent state death-row prisoners to enjoin regulations promulgated by the Attorney General to implement Chapter 154 of Title 28 of the U.S. Code, and remanded with instructions to dismiss the lawsuit for lack of standing.

Chapter 154 is a deliberately onerous provision of AEDPA -- the Antiterrorism and Effective Death Penalty Act of 1996 -- that, well, was meant to make the death penalty more effective.  It forestalls federal review of death sentences imposed by state courts, because up until AEDPA passed federal courts had a shameful habit of setting state death sentences aside in habeas corpus proceedings.  Chapter 154 struck a bargain with the states -- if you (the states) provide competent representation to your death-row prisoners in state postconviction proceedings, we (meaning Congress) will basically force the federal courts to rubber-stamp your death sentences.

This case is about who decides whether the states have done their part of the Chapter 154 bargain.  When AEDPA was initially passed, it was left to the various courts faced with ruling on a state death-row prisoner's habeas petition to decide whether there had been competent representation in state postconviction proceedings.  By 2005, no federal court anywhere in the country had found that any state had provided competent representation in state postconviction proceedings.  So Congress amended Chapter 154 to require the Department of Justice to promulgate regulations for states to establish systems for ensuring competent representation for capital postconviction proceedings and for certifying that states had established adequate mechanisms for ensuring competent representation, thus taking control away from the federal courts and vesting it in a federal agency, with judicial review limited to the D.C. Circuit. 

The DOJ promulgated regulations to implement Chapter 154 at the end of the G.W. Bush administration, but those regulations were immediately put on hold by executive order of January 21, 2009.  DOJ promulgated new regulations in 2013, which prompted this lawsuit under the Administrative Procedures Act brought by two public-defender agencies that represent state death-row prisoners -- the Habeas Corpus Resource Center in San Francisco, which represents California death-row prisoners, and the Office of the Federal Public Defender for the District of Arizona, which represents death-row prisoners in that state under 18 U.S.C. § 3599.  (Arizona's Attorney General had been waiting on the steps outside Main Justice with an application for Arizona to be certified as compliant under the Chapter 154 regulations.)  A district judge in the Northern District of California granted summary judgment to the HCRC and the Arizona FPD, finding the regulations to be arbitrary and capricious and enjoining them from taking effect.  The DOJ appealed.

The Ninth Circuit vacated the district court's order because HCRC and the Arizona FPD lacked standing to sue under the APA, finding that the public-defender agencies had not suffered any injury by the promulgation of the regulations that could be redressed by a favorable decision.  The agencies had argued that they did not know what evidence the DOJ would rely on in making its certification decision, they could not meaningfully contribute to the certification decision, and that the standards for certification were essentially lawless.  The resulting confusion prevented the agencies from efficiently allocating their resources, because they would have to advise their clients about litigation contingencies that might not come to pass.  The panel dismissed this as a noncognizable injury, because it was essentially the same uncertainty that any lawyer faced with advising a client who might file a lawsuit about the circumstances under which the lawsuit would have to be brought.

Finally, because no state had been certified as providing competent state postconviction representation under the Chapter 154 regulations, the requests from various death-row prisoners to intervene in the lawsuit were not ripe.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/23/14-16928.pdf

* Keith Hilzendeger, AFPD, District of Arizona, writing for Jon M. Sands who is out of district this week.