19-1778 IN THE United States Court of Appeals FOR THE SECOND CIRCUIT FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center-Brooklyn, Plaintiff-Appellant, —against— FEDERAL BUREAU OF PRISONS, WARDEN HERMAN QUAY , in his official capacity, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK BRIEF AND SPECIAL APPENDIX FOR PLAINTIFF-APPELLANT d SEAN HECKER JENNA M. DABBS JOSHUA MATZ MATTHEW J. CRAIG BENJAMIN D. WHITE KAPLAN HECKER & FINK LLP 350 Fifth Avenue, Suite 7110 New York, New York 10118 (212) 763-0883 Attorneys for Plaintiff-Appellant Case 19-1778, Document 36, 08/14/2019, 2632574, Page1 of 75
Transcript
19-1778IN THE
United States Court of AppealsFOR THE SECOND CIRCUIT
FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients
detained at the Metropolitan Detention Center-Brooklyn,
Plaintiff-Appellant,—against—
FEDERAL BUREAU OF PRISONS, WARDEN HERMAN QUAY,
in his official capacity,Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF AND SPECIAL APPENDIX FOR PLAINTIFF-APPELLANT
d
SEAN HECKER
JENNA M. DABBS
JOSHUA MATZ
MATTHEW J. CRAIG
BENJAMIN D. WHITE
KAPLAN HECKER & FINK LLP
350 Fifth Avenue, Suite 7110
New York, New York 10118
(212) 763-0883
Attorneys for Plaintiff-Appellant
Case 19-1778, Document 36, 08/14/2019, 2632574, Page1 of 75
i
CORPORATE DISCLOSURE STATEMENT
The Federal Defenders of New York have no parent corporations. They have
no stock and hence no publicly held company owns 10% or more of their stock.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page2 of 75
Case 19-1778, Document 36, 08/14/2019, 2632574, Page12 of 75
PAGE(S)
xii
Denning, Brannon P. & Bothma, Sarah F., Zone-of-Interests Standing in Constitutional Cases After Lexmark, 21 Lewis & Clark L. Rev. 97 (2017) . . . . . 23
Donahue, Jr., Charles A., An Historical Argument for the Right to Counsel
Case 19-1778, Document 36, 08/14/2019, 2632574, Page13 of 75
1
INTRODUCTION
The Federal Defenders were founded in the wake of Gideon v. Wainwright,
372 U.S. 335 (1963). They exist for a single purpose: ensuring the zealous
representation of any person in the federal system entitled to the appointment of
counsel under the Sixth Amendment. Tirelessly, in courts, prisons, and prosecutors’
offices across the nation, the Federal Defenders fight to fulfill the Constitution’s
promise that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence.” U.S. Const. amend VI.
To advance that mission, the Federal Defenders of New York filed this lawsuit
against Warden Herman Quay and the Federal Bureau of Prisons (BOP) to enjoin a
practice of arbitrarily canceling (and restricting) attorney access at the Metropolitan
Detention Center in Brooklyn (MDC). This practice was cast into stark relief by an
electrical fire in January 2019, but the problem is endemic and longstanding—and it
has injured the Federal Defenders, many of whose clients are detained at the MDC.
The district court, however, held that the Federal Defenders lacked a cause of
action because they are not within the “zone of interests” of the Sixth Amendment
or the statutes underlying their Administrative Procedure Act claim. This reasoning
was gravely mistaken. The zone-of-interests test does not apply to causes of action
in equity seeking to enjoin unconstitutional conduct. And the district court viewed
the relevant interests far too narrowly. Its decision should therefore be vacated.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page14 of 75
2
JURISDICTIONAL STATEMENT
The district court had subject matter jurisdiction under 28 U.S.C. § 1331 and
5 U.S.C. § 702. The Federal Defenders filed a timely notice of appeal on June 18,
2019. J.A. 335. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the district court erred in dismissing the Federal Defenders’ Sixth
Amendment claim for lack of a cause of action.
2. Whether the district court erred in dismissing the Federal Defenders’
Administrative Procedure Act claim for lack of a cause of action.
STATEMENT OF THE CASE AND OF THE FACTS
A. Factual Background1
The MDC is the principal federal pre-trial detention facility in the Eastern
District of New York. It is operated by Defendants. The vast majority of the more
than 1,600 detainees held at the MDC are being held prior to trial and therefore are
presumed innocent of any crimes with which they have been charged.
The MDC’s stated practice is to allow for attorney visitation from 8:00 am to
8:00 pm, seven days per week. In reality, however, Defendants maintain an arbitrary
1 Because the district court dismissed this case on the pleadings, these facts
are drawn from the Complaint and materials incorporated by reference therein (including the Declaration of Deirdre von Dornum, Attorney-in-Charge for the Federal Defenders in the Eastern District of New York). J.A. 9, 14 & 55.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page15 of 75
3
and unlawful practice of shutting down attorney visitation for reasons large and
small—often with little explanation or notice. Pursuant to that practice, legal visiting
was cancelled or substantially delayed at the MDC on eight of the first 27 days in
January 2019—January 4, 5, 6, 9, 10, 11, 14, and 21—purportedly because of
staffing issues related to the partial government shutdown. J.A. 42; see also id.
(noting that the BOP cancelled or substantially delayed attorney visits at the MCC,
the other main federal jail in New York City, on January 1, 11, 12, 13, 20, and 21).
It initially appeared to be more of the same when a BOP official e-mailed the
Federal Defenders on January 27, announcing that “[t]here will be no visits on
Monday January 28 at MDC Brooklyn.” J.A. 71. But over the days that followed,
equally terse e-mails announced still more wholesale cancellations of attorney
visiting. When asked for an explanation, and for guidance on conditions at the MDC,
BOP officials demurred and dissembled. J.A. 69-86 (collecting email exchanges
between the Federal Defenders and BOP officials); J.A. 57 (“BOP officials were
largely non-responsive to [the Federal Defenders’] inquiries, and refused to provide
detailed and accurate information about the conditions at MDC or the reasons for
the cancellation of legal visiting.”); see also D.A. 10, 13. In dribs and drabs,
however, the Federal Defenders received reports of an electrical fire, and a power
outage, from clients who were produced by the BOP for court appearances or who
were able to access the MDC’s telephone lines to the Federal Defenders. J.A. 56.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page16 of 75
4
These reports were horrifying. Inmates revealed that there was little (or no)
heat or hot water in their units. The electricity had gone out, except for dim
emergency lights in common areas—which meant that the two-man cells were
completely dark. Inmates described a near-total shutdown of medical services,
phones, televisions, computers, laundry, and commissary. Many inmates were
confined to their individual cells, without heat or light, and were completely barred
from submitting grievances or communicating with counsel. J.A. 12, 13-14, 56.
Alarmed, the Federal Defenders sought information from Defendant Quay
and other BOP officials. The BOP mostly ignored those inquiries. When officials
did respond, they frequently obfuscated. For instance, one BOP attorney represented
on January 28—and again on January 29—that “the power outage did not impact the
heating in the institutions” and “the heat is operational.” J.A. 13, 57. This was false.
On January 30, another BOP attorney represented that visiting would restart as soon
as the visiting room in the MDC’s West Building—which houses all male inmates—
was “usable.” J.A. 13. This attorney added that if legal visits did not resume by the
following week, “a temporary procedure will be implemented to allow for legal
visits to take place in the east visiting room,” which houses female inmates and
apparently was fully operational. Id. But despite questioning, the BOP never
explained why this temporary procedure—which is routinely used for co-defendant
meetings at the MDC—was not activated immediately. Id.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page17 of 75
5
By February 1, judges, legislators, and journalists had begun asking the same
questions that the Federal Defenders had been propounding for days. In response,
Defendant Quay made representations to SDNY officials, including the following:
• Inmates have not been confined to their cells and are still allowed leisure/recreational activities.
• Inmates still have access to Public Defender Phones which are working.
• Heat has never been impacted.
• Hot water has not been impacted.
• There are no problems with meals, prisoners are still receiving hot meals.
• There is no problem with medical, medications are still delivered twice daily.
• The visiting room is without power which is why there have been no visitations. The staff has temporary wiring in place and should have attorney visiting up today.
J.A. 13-14.
The very same evening that Defendant Quay made these statements, Deirdre
von Dornum—the Federal Defenders’ Attorney-in-Charge for the EDNY—visited
the MDC under an administrative order from Chief Judge Irizarry. What she
discovered was bleak. Inmates’ cells were pitch black, and a guard reported that
some inmates had not been allowed outside of their cells since the fire occurred a
week earlier. Some inmates had not received hot food for days, and there were large
Case 19-1778, Document 36, 08/14/2019, 2632574, Page18 of 75
6
fluctuations from unit to unit in the temperature and potability of water—in some
units, the water was visibly brown. The facility as a whole was painfully chilly, cold
air blew from some vents, and BOP officers wore multiple layers to keep warm
(whereas inmates had been issued only short-sleeved shirts and light cotton pants).
In housing units throughout the MDC, inmates reported that no extra blankets or
clothes had been provided. Inmates in multiple units also reported that they were not
receiving prescriptions, and that they had requested—but not received—urgently
needed medical attention. See J.A. 14-15, 59-66,
Despite von Dornum’s first-hand observations, the BOP issued and re-issued
press releases on February 2 and 3 repeating false statements that Defendant Quay
had made to SDNY officials on February 1. These misrepresentations included the
claim that heating had not been affected by the power outage, and that medical staff
had addressed the “medical needs of the inmate population.” J.A. 15-16.
Legal visiting had been cancelled throughout this period: on January 28, 29,
30, and 31, as well as February 1 and 2. J.A. 12. On February 3, visiting was initially
allowed on a limited basis, with each defense attorney permitted to see only one
client even though BOP policies ordinarily allow counsel to meet with several clients
per visit. J.A. 12, 66. However, less than four hours after legal visiting resumed, it
was cut short, reportedly because BOP officials had pepper sprayed protestors in the
MDC lobby. J.A. 12, 67.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page19 of 75
7
These events represented an especially extreme consequence of Defendants’
arbitrary and unlawful approach to attorney visiting. They also heavily burdened the
Federal Defenders’ ability to achieve their main organizational objective. In late
January and early February, the Federal Defenders were unable to meet or speak
privately with their clients at the MDC. They were unable to review discovery files
with clients who were deciding whether to go to trial, whether and how to engage in
pretrial motion practice, how to plead, and how to frame a sentencing strategy. And
they had to cancel presentence and expert interviews with their clients. The result
was a significant drain on the Federal Defenders’ resources and a diversion of time,
money, and energy toward addressing the deplorable conditions at the MDC.
B. Procedural History
On February 4, 2019, frustrated by Defendants’ obfuscation about the MDC’s
dire conditions and facing continuing organizational injury, the Federal Defenders
filed this lawsuit. The Complaint alleged two distinct claims: one under the Sixth
Amendment, which guarantees all accused persons “the Assistance of Counsel,” and
the other under the Administrative Procedure Act, 5 U.S.C. § 706(2), since
Defendants had arbitrarily and capriciously violated their own regulations governing
That same day, the Federal Defenders also sought a temporary restraining
order (TRO) requiring Defendants to resume legal visiting at the MDC. The assigned
Case 19-1778, Document 36, 08/14/2019, 2632574, Page20 of 75
8
Judge (Hon. LaShann DeArcy Hall) for the district court immediately held a hearing
on that request. As the Federal Defenders explained at the hearing, a TRO was
necessary to remedy “a problem that’s much broader than the one that was
occasioned by the electrical problem . . . . [W]hat the electrical problem
demonstrated was that [Defendants] do not take seriously the Sixth Amendment
right, are not prioritizing it. It goes to the wayside the minute they have a problem.”
J.A. 113. Defendants opposed any order that would have required the MDC to allow
legal visiting, but the district court ordered that the MDC reinstitute such visiting,
on the standard schedule, subject to a security exception. It also scheduled a
preliminary injunction (PI) hearing one week later.
Only after the district court entered the TRO did Defendants comply with the
Sixth Amendment and their own regulations. Legal visits resumed immediately. The
PI hearing was eventually adjourned, for a period of weeks, to March 1. In the
interim, Defendants filed an opposition to the Federal Defenders’ request for a PI.
J.A. 159-89. They did not argue that the Federal Defenders lack a cause of action to
pursue their Sixth Amendment claim. Nor did they argue that the zone-of-interests
test applies to this claim. Instead, Defendants argued that the Federal Defenders
lacked Article III standing; were not within the zone-of-interests of the APA; and
were unlikely to succeed on the merits of their claims. J.A. 171-87. On February 19,
the Federal Defenders filed a reply. J.A. 257-70. In addition to refuting Defendants’
Case 19-1778, Document 36, 08/14/2019, 2632574, Page21 of 75
9
legal arguments, this brief demonstrated that Defendant Quay had issued a series of
inconsistent and false statements—to the Federal Defenders, to federal court
officials, and to the public—and that only a hearing could resolve key factual issues
bearing on the need for preliminary injunctive relief.
After the parties’ briefs were filed, the district court issued an order requesting
“oral argument on the issue of whether plaintiff has standing to bring this action.”
At the very outset of the oral argument, however, the district court told counsel for
the Federal Defenders, “I believe you have constitutional standing.” J.A. 274. The
court instead asked the parties to argue an issue that Defendants had not raised and
that neither party had briefed: whether the Federal Defenders have a cause of action
in equity to pursue their Sixth Amendment claim. In the court’s view, this turned on
whether the Federal Defenders are within the Sixth Amendment’s zone of interests.
J.A. 274-304. The Federal Defenders explained that the zone-of-interests test does
not apply to a constitutional suit seeking injunctive relief—and that, if the test does
apply, it is satisfied. See J.A. 281-90. The district court disagreed on both fronts. It
also held that the Federal Defenders lack an APA cause of action because they are
outside the relevant zone of interests. It therefore denied the pending PI motion.
On March 29, the Federal Defenders filed a letter stating as follows: “[W]e
understand the Court’s ruling (with which we disagree) to mean that the Federal
Defenders cannot proceed with the claims asserted in the complaint without
Case 19-1778, Document 36, 08/14/2019, 2632574, Page22 of 75
10
substituting or adding plaintiffs. We have considered the matter further and have
concluded that we will not amend the complaint to add additional parties.” J.A. 324.
As a result, in an order filed May 20, the district court sua sponte dismissed the
complaint, briefly restating its earlier analysis. SPA 2. Specifically, the court opined
that “the Sixth Amendment right to counsel is personal to the accused and there is
no indication that Congress has ever intended to authorize attorneys to bring suit
under the right to counsel clause of the Sixth Amendment.” SPA 4. As for the APA,
the district court found that the Federal Defenders were not within the zone of
interests protected by applicable statutes. It reasoned that, although the statutes are
“broadly worded,” they did not “protect Plaintiff’s interest in access to its clients,
nor has Plaintiff pointed to legislative history that would suggest the zone of interests
encompasses such an interest.” SPA 6. This appeal followed.2
2 As they did below, Defendants may argue that this case is moot, asserting
that the BOP’s attorney access practices have changed since early 2019. But it is axiomatic that “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). If Defendants claim that this case is moot, they will bear “the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 190 (2000).
Defendants cannot meet that burden. Defendants’ principal argument in support of mootness below was that the decision to cancel legal visiting flowed from “extraordinary events” that are “unlikely to occur again.” J.A. 188 n.10. To the extent Defendants mean that it is unlikely that the MDC will experience another fire, that argument has been surpassed by recent events: another fire broke out at the MDC in July 2019. See Nick Pinto, Fire at Notorious Brooklyn Federal Jail as NYC Enters Heat Wave, GOTHAMIST (July 19, 2019). But more importantly, the Federal
Case 19-1778, Document 36, 08/14/2019, 2632574, Page23 of 75
11
STANDARD OF REVIEW
This Court reviews dismissals under Rule 12(b)(6) de novo, “accepting all of
the complaint’s factual allegations as true and drawing all reasonable inferences in
the plaintiffs’ favor.” Giunta v. Dingman, 893 F.3d 73, 79 (2d Cir. 2018).
SUMMARY OF ARGUMENT
It is impossible to overstate the importance of access to counsel for inmates
who have been charged but not yet tried. It is during this critical period that the
accused relies on counsel to investigate the charges against them, formulate potential
defenses, and assist in life-altering decisions about potential plea bargains and
whether to proceed to trial. Of course, even for inmates who have been convicted
and await sentencing or appeal, access to (and advice from) counsel is crucial. The
Federal Defenders, who at any given point may represent hundreds of individuals at
the MDC, thus have a deep stake in maintenance of regular attorney access. Not only
is such access essential to vindicating their clients’ Sixth Amendment rights, but it
also ensures that the Federal Defenders satisfy their own Sixth Amendment duties
to existing clients. In holding that the Federal Defenders do not fall within the “zone
Defenders explained below that their challenge encompasses a broader, preexisting practice of arbitrarily curtailing legal visiting. Unless Defendants make unequivocal factual representations that the challenged practice has abated—and that they have committed to conduct that permanently resolves it—they can’t meet the “formidable burden” of establishing mootness. Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603-04 (2d Cir. 2016); Holland v. Goord, 758 F.3d 215, 223-24 (2d Cir. 2014).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page24 of 75
12
of interests” of the Sixth Amendment or any applicable regulatory requirements, the
district court committed clear legal error. Its decision should therefore be vacated.
I. The district court’s dismissal of the Federal Defenders’ constitutional claim
rests on two flawed premises. The first is that a zone-of-interests test applies to a
cause of action in equity seeking to enjoin unconstitutional conduct by governmental
officials. The second is that the Federal Defenders fail that test if it does apply.
I.A. The zone-of-interests test was born in an administrative law context and
has virtually always been applied in statutory and regulatory cases. Only once—in a
40-year-old footnote—has the Supreme Court applied it to a constitutional claim.
See Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 321 n.3 (1977). Since then,
the Supreme Court has conspicuously failed to apply it in constitutional cases, even
when urged to do so by dissenters. E.g., Wyoming v. Oklahoma, 502 U.S. 437, 469-
71 (1992). And in Lexmark International, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 129-30 (2014), the Supreme Court reconceptualized the test as focused
entirely on legislative intent and statutory interpretation. This rule is irreconcilable
with the test’s application to suits that arise not from statutory causes of action, but
instead from the Judiciary’s equitable power to enjoin unconstitutional conduct. See
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). Following
Lexmark, there is simply no sound basis for concluding that the zone-of-interests test
applies to the cause of action on which the Federal Defenders rely.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page25 of 75
13
I.B. If the Court does apply a zone-of-interests test here, the Federal
Defenders satisfy it. Under Lexmark, the test is “not especially demanding” and
“forecloses suit only when a plaintiff’s interests are . . . marginally related to or
inconsistent with the purposes implicit” in the provision of federal law. 572 U.S. at
130. A lawsuit by the Federal Defenders challenging arbitrary obstacles to meeting
with their own clients—who have been accused of crimes or are engaged in
sentencing or appellate proceedings—self-evidently falls within the interests of an
amendment guaranteeing the “Assistance of Counsel” to the accused. This is
confirmed by an assessment of the Federal Defenders’ organizational purpose, a line
of Supreme Court authority addressing the crucial role of defense counsel in
effectuating the fundamental purpose of the Sixth Amendment, the original public
meaning and purpose of the Sixth Amendment, and precedent imposing duties and
conferring rights upon criminal defense counsel directly under the Sixth Amendment
itself.
The district court’s contrary conclusion resulted from two legal errors. To
start, it looked for affirmative evidence that Congress specifically intended to allow
suits to enforce the Sixth Amendment. But that approach inverts the general
presumption that courts of equity may grant relief to enjoin unconstitutional conduct.
See Armstrong, 135 S. Ct. at 1384; Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 491 n.2 (2010); Bell v. Hood, 327 U.S. 678, 684 (1946).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page26 of 75
14
More fundamentally, the district court conflated the persons on whom the Sixth
Amendment confers “the . . . right” with the persons who fall within the
Amendment’s zone of interests. As the Supreme Court has held time and again, it is
not the identity of the party that matters for purposes of the zone-of-interests test,
but rather the nature of the interest and its connection to the provision of federal law.
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S.
209, 225 (2012); Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522
U.S. 479, 492 (1998); Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 153 (1970). Whereas the district court viewed the Sixth Amendment right as
“personal” and thus held that nobody but “the accused” can ever fall within its zone
of interests, the correct view is that the Federal Defenders may file suit to vindicate
core Sixth Amendment interests—which is exactly what they have done here in
challenging arbitrary restrictions on meeting with their clients at the MDC.
II. The district court further erred in dismissing the Federal Defenders’ APA
claim—and that judgment should not be affirmed on the alternative ground, which
Defendants raised below and may raise again on appeal, that they have unreviewable
discretion to restrict or cancel attorney visitation at the MDC.
II.A. It is well-established in APA cases that applicable regulations bear on
the zone-of-interests inquiry. See Acevedo v. Nassau Cty, N.Y., 500 F.2d 1078, 1083
(2d Cir. 1974); see also Kurapati v. U.S. Bureau of Citizenship and Immigration
Case 19-1778, Document 36, 08/14/2019, 2632574, Page27 of 75
15
Servs., 775 F.3d 1255, 1260 (11th Cir. 2014); City Of Albuquerque v. U.S. Dep’t Of
this trend, the Court later allowed farmers, a city, two hospital associations, a
hospital, and a farmer’s cooperative to attack the Line Item Veto Act under the
Presentment Clause—even though it is hard to see how these plaintiffs would satisfy
the test had it applied. See Clinton v. City of New York, 524 U.S. 417, 425 (1998).
This pattern led influential commentators and judges to reflect more deeply
on the doctrinal basis for the zone-of-interests test—and to conclude that applying
the test makes little sense in constitutional cases. For example, Professor Tribe noted
that “in constitutional litigation, the test has been employed somewhat sporadically”
Case 19-1778, Document 36, 08/14/2019, 2632574, Page33 of 75
21
and should be subsumed within “third-party standing analysis.” Tribe, American
Constitutional Law 446 (3d ed. 2000). Professor Chemerinsky agreed: “There is a
strong argument that the zone of interests test is an additional standing requirement
only in cases seeking review of agency decisions under the Administrative
Procedure Act.” Chemerinsky, Federal Jurisdiction §2.3 (5th ed. 2007); see also
Bradford C. Mank, Prudential Standing and the Dormant Commerce Clause: Why
the “Zone of Interests” Test Should Not Apply to Constitutional Cases, 48 Ariz. L.
Rev. 23 (2006). In 2013, Judge Silberman concluded that the zone-of-interests test
is most properly understood as tied to “the organic statute underlying a complaint
and the APA itself.” Ass’n of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667, 676
(D.C. Cir. 2013) (Silberman, J., concurring). Citing Boston Stock Exchange, which
involved a “non-statutory cause of action,” Judge Silberman bluntly remarked,
“[p]erhaps that decision was simply anomalous.” Id. at 676 n.3.3
3 In 1987, Judge Bork had similarly emphasized that the zone-of-interests test
does not apply in cases challenging ultra vires action, including on constitutional grounds. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987). To explain why, Judge Bork invoked the facts of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): “[W]ere a case like [Youngstown] to arise today, the steel mill owners would not be required to show that their interests fell within the zone of interests of the President’s war powers in order to establish their standing to challenge the seizure of their mills as beyond the scope of those powers.” Id.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page34 of 75
22
2. The Supreme Court’s Decision in Lexmark
Following widespread criticism of the zone-of-interests test—and its weak
doctrinal basis—the Supreme Court issued its landmark decision in Lexmark
International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). Lexmark
brought welcome clarity to zone-of-interests analysis. Recognizing that it had
“placed that test under the ‘prudential’ rubric in the past,” the Supreme Court
declared that “it does not belong there.” Id. at 127. Instead, Lexmark rejected the
very concept of prudential standing—which, as noted above, was the only basis ever
offered for applying the test to constitutional claims. See id. at 126 (emphasizing that
the doctrine of prudential standing is in serious tension with “the principle that ‘a
federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually
unflagging’” (citation omitted)). In an important pivot, Lexmark described the
inquiry as focused exclusively on legislative intent: “Whether a plaintiff comes
within the ‘zone of interests’ is an issue that requires us to determine, using
traditional tools of statutory interpretation, whether a legislatively conferred cause
of action encompasses a particular plaintiff’s claim.” Id. at 127 (citations omitted).
Quoting Judge Silberman, the Supreme Court added that the key question is whether
“this particular class of persons [has] a right to sue under this substantive statute.”
Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956));
standing” limitation—to a Dormant Commerce Clause claim. 584 F.3d 82, 91–92 (2d Cir. 2009). No such prudential standing requirement survives Lexmark.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page37 of 75
25
see also Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this
Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights
safeguarded by the Constitution”). Accordingly, “‘in a proper case, relief may be
given in a court of equity . . . to prevent an injurious act by a public officer.’”
Armstrong, 135 S. Ct. at 1384 (quoting Carroll v. Safford, 3 How. 441, 463 (1845)).5
Where plaintiffs do not rely on a statute, but instead invoke a cause of action
in equity, it is a category error to apply the zone-of-interests test as articulated in
Lexmark. Such lawsuits are not controlled by Congress’s expectations of who should
be able to sue. They instead evoke a centuries-old tradition of equity that has never
been understood to incorporate the vagaries of a zone-of-interests test, which was
invented a few decades ago primarily to govern regulatory litigation. And applying
“traditional tools of statutory interpretation” to discern a “zone of interests” makes
little sense when the law being interpreted is the Constitution—a document whose
framers and ratifiers had no concept that suits to enforce compliance might be subject
to an interests-based purposive inquiry invented almost two hundred years later.
The Ninth Circuit recently supported this conclusion in Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019). There, plaintiffs challenged a decision by the President
to reallocate funds for the construction of a border wall. The plaintiffs presented their
5 Accord Am. Ins. Co. v. Garamendi, 539 U.S. 396 (2003); U.S. Steel Corp. v.
Multistate Tax Comm’n, 434 U.S. 452 (1978); Hill v. Wallace, 259 U.S. 44 (1922).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page38 of 75
26
claims as constitutional in nature, citing separation of powers principles and the
Appropriations Clause. Id. at 688. The Ninth Circuit accepted this characterization
and treated the plaintiffs’ claim as “one alleging a constitutional violation.” Id. at
688-89. On that premise, the Court disagreed with the government’s contention that
the plaintiffs fell beyond the relevant zone of interests. See id. at 700-704.
The Ninth Circuit began its analysis by emphasizing that “we are doubtful that
a zone of interests test applies to Plaintiffs’ equitable cause of action.” Id. at 700; see
also id. (“We are doubtful that any zone of interests test applies to Plaintiffs’
equitable cause of action to enjoin a violation of the Appropriations Clause,
particularly after Lexmark.”). After discussing the history of equitable relief in ultra
vires cases, which had long proceeded without a zone-of-interests test, the Ninth
Circuit added that Lexmark was a game-changer for constitutional litigation:
Even if a zone of interests test may have been applied to some cases considering constitutional claims like Plaintiffs’ prior to Lexmark, we think that Lexmark has called into question its continuing applicability to constitutional claims. Lexmark focuses on Congress’s intent in creating statutory causes of action, casting doubt on Defendants’ argument that a zone of interests test has any role to play here, where Plaintiffs’ theory derives from the Constitution. The Court in Lexmark described the purpose of the zone of interests test as being to discern whether a statutory cause of action exists—specifically, “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Because the Constitution was not created by any act of Congress, it is hard to see how the zone of interests test would even apply.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page39 of 75
27
Id. at 701-02 (citation omitted). The Ninth Circuit buttressed this point by observing
that in Tennessee Wine & Spirits Retailers Association v. Thomas, 139 S. Ct. 2449
(2019)—a Dormant Commerce Clause case—“the Supreme Court did not even
mention the zone of interests test.” Sierra Club, 929 F.3d at 702. Given that the
Supreme Court’s only prior application of the test in a constitutional case occurred
in another Dormant Commerce Clause case (Boston Stock Exchange), “Tennessee
Wine supports the idea that Lexmark has changed the landscape.” Id.6
Ultimately, the Ninth Circuit concluded that even if a zone-of-interests test
did apply, it was satisfied. See id. at 703-704. But while Sierra Club does not
formally deem the zone-of-interests test irrelevant to constitutional claims post-
Lexmark, it issued well-reasoned dicta on that question. And under Ninth Circuit
precedent, that dicta is itself binding on future panels, which means that it is now the
law of the Ninth Circuit. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.
6 In Sierra Club, the government argued that causes of action in equity are
subject to the zone-of-interests test because they are based in a statute—namely, the Judiciary Act of 1789, which “conferred on the federal courts jurisdiction over all suits . . . in equity.” Grupo Mexicano, 527 U.S. at 318. But the Ninth Circuit correctly deemed it “a stretch to conclude that the traditional equitable cause of action to enjoin a constitutional violation was therefore created by statute.” Sierra Club, 929 F.3d at 702 n.25. After all, “the lower federal courts are created entirely by statute, see An Act to Establish the Judicial Courts of the United States §§ 2-6, 1 Stat. 73 (1789), but this does not mean that all constitutional claims filed in a federal district court are really statutory claims. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (recognizing “a cause of action under the Fourth Amendment” for damages).” Id.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page40 of 75
28
2003) (holding that reasoned dicta in a panel opinion germane to the resolution of
that case constitutes binding circuit law and has the force of precedent).7
No circuit has issued a reasoned opinion post-Lexmark that grapples with this
question and comes out the other way. The Fourth Circuit has indicated, in dicta and
without any analysis, that a constitutional plaintiff “might” need to satisfy the zone-
of-interests test. In re Trump, 928 F.3d 360, 374 (4th Cir. 2019). The Third Circuit
has applied the zone-of-interests test to a Tonnage Clause Claim, and the Eleventh
Circuit has applied it to a Dormant Commerce Clause Claim, but neither court has
actually explained why the test still applies post-Lexmark. See Newton v. Duke
7 In response to Sierra Club, the government filed a stay application with the
Supreme Court. The government’s main contention was that the Ninth Circuit erred in characterizing the plaintiffs’ challenge as constitutional rather than statutory. See App. for a Stay Pending Appeal at 22-31 Trump v. Sierra Club, No. 19A60 (U.S. July 12, 2019). On that basis, the government argued the plaintiffs lacked a cause of action under the Department of Defense Appropriations Act of 2019 § 8005, 132 Stat. 2999. See id. The government devoted only a single, conclusory paragraph to arguing that the zone-of-interests test would apply if the plaintiff’s claim were constitutional in character. See id. at 30-31.
The Supreme Court subsequently granted the government’s application for a stay, stating that “[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Order, Trump v. Sierra Club, No. 19A60 (U.S. July 26, 2019). Given that it characterizes the plaintiffs’ claims as seeking review of “compliance with Section 8005,” this order suggests that the Supreme Court agrees with the government’s argument that the plaintiffs’ claim is statutory—not constitutional—in character. It does not suggest that the Supreme Court disagrees with the Ninth Circuit’s conclusion that the zone-of-interests test does not apply to constitutional claims seeking injunctive relief.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page41 of 75
29
Energy Fla., LLC, 895 F.3d 1270, 1275 (11th Cir. 2018); Maher Terminals, LLC v.
Port Auth. of New York & New Jersey, 805 F.3d 98, 108 (3d Cir. 2015). Both cases,
moreover, address the issue with reasoning that resembles merits analysis—or third-
party standing analysis—far more than it resembles a traditional zone-of-interests
inquiry. See Newton, 895 F.3d at 1275 & n.9; Maher, 805 F.3d at 109. Accordingly,
neither decision should be accepted by this Court as persuasive authority.
The Second Circuit has yet to address whether causes of action in equity to
enjoin unconstitutional conduct remain subject to a zone-of-interests test.8 Here,
although Defendants did not raise (or brief) that issue, the district court reached the
question and effectively held that Lexmark changed nothing. This conclusion was
mistaken. Lexmark’s reasoning is irreconcilably inconsistent with the application of
a zone-of-interests requirement in constitutional cases like this one. To be clear, that
does not throw open the courthouse doors. Plaintiffs must still demonstrate Article
III standing—including injury-in-fact, which “helps to ensure that the plaintiff has a
‘personal stake in the outcome of the controversy.’” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014) (citation omitted). But plaintiffs who seek to
8 In Montesa v. Schwartz, the Court stated that litigants have to satisfy both
Article III and prudential standing requirements to bring a claim, and listed the zone-of-interests test as one prudential requirement. See 836 F.3d 176, 195 (2d. Cir. 2016). But Montesa did not turn on prudential standing, and the Court lacked occasion to consider the question here at issue.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page42 of 75
30
enjoin unconstitutional conduct—as the Federal Defenders do here—need not show
more for their constitutional claims to be decided on the merits.
B. If the Zone-of-Interests Test Does Apply, It Is Satisfied
For the reasons given above, the Court should not apply a zone-of-interests
test here. But if it does, the test that it would apply “is not especially demanding.”
Lexmark, 572 U.S. at 130. A plaintiff need only “arguably” fall within the relevant
zone of interests—and “the benefit of any doubt goes to the plaintiff.” Match-E, 567
U.S. at 225. “The test forecloses suit only when a plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute” that
the claim cannot proceed. Lexmark, 572 U.S. at 130 (quotation marks omitted).
1. This Lawsuit Seeks to Vindicate Sixth Amendment Interests
The relevant constitutional provision here is the Sixth Amendment, which
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence.” U.S. Const. amend VI. So the
question is whether a lawsuit by the Federal Defenders seeking to ensure that they
are not arbitrarily impeded from meeting with their own clients—who have been
accused of crimes (or who are engaged in sentencing or appellate proceedings)—
falls within the interests of an amendment guaranteeing the “Assistance of Counsel.”
The answer to that question is “yes,” and for many reasons. First and foremost,
the Federal Defenders are a “not-for-profit corporation . . . dedicated solely to
Case 19-1778, Document 36, 08/14/2019, 2632574, Page43 of 75
31
defending poor people accused of federal crimes.”9 The Federal Defenders thus
function as the “Face of the Sixth Amendment.”10 The Federal Defenders’ singular
organizational interest—ensuring that their clients are well-represented in criminal
proceedings against the federal government—places them at the very heart of the
Sixth Amendment. They exist solely to give life to the Amendment’s promise.
Moreover, the Supreme Court has long affirmed the central role that criminal
defense counsel play in effectuating “the fundamental purpose of the Sixth
Amendment,” which “is to safeguard the fairness of the trial and the integrity of the
factfinding process.” Brewer v. Williams, 430 U.S. 387, 426 (1977). To ensure that
defense counsel can play this role, the Supreme Court has “construed the Sixth
Amendment guarantee to apply to ‘critical’ stages” of criminal proceedings. United
States v. Ash, 413 U.S. 300, 310–11 (1973). That determination, in turn, is made “by
asking whether counsel is there needed to protect the fairness of the trial.” Brewer,
430 U.S. at 426 n.7; see also Lafler v. Cooper, 566 U.S. 156, 165 (2012). The
Supreme Court’s recognition that defense counsel are “needed” to protect the
“fundamental purpose of the Sixth Amendment” strongly suggests that efforts by
amendment (“The Constitution’s Sixth Amendment states that in all criminal prosecutions ‘the accused shall . . . have the assistance of counsel for his defense.’ But what does that mean for defendants who are penniless? In federal courts, the answer is the federal defender program.”).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page44 of 75
32
defense counsel to overcome arbitrary restrictions on client access are within the
interests shielded by the Sixth Amendment. See Brewer, 430 U.S. at 426.
This conclusion finds support in the Amendment’s original public meaning.
See Alleyne v. United States, 570 U.S. 99, 103 (2013) (emphasizing the importance
of original meaning in Sixth Amendment cases). The principal impetus for including
a right to counsel in the Constitution was a desire to shift the role of criminal defense
attorneys from mere technocrat (as at common law) to a bulwark against the
powerful prosecutorial machinery of the State. See United States v. Wade, 388 U.S.
218, 224 (1967). In England, the right to counsel had attached only to issues of law,
not to issues of fact. See id. This distinction served to “divide technicalities of law
from matters of fact and to give the accused the aid of counsel only for the former—
the sole aspect in which it was thought that he needed it.” Charles Donahue, Jr., An
Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale
L. J. 1000, 1033 (1964). But the Framers rejected this distinction and the theory
underlying it. They “envisaged a broader role for counsel than . . . merely advising
his client in ‘matters of law,’ and eschewing any responsibility for ‘matters of fact.’”
Wade, 388 U.S. at 224. The Framers thus adopted an amendment that abolished “the
facts-law distinction [because they] appreciated that if a defendant were forced to
stand alone against the state, his case was foredoomed.” Donahue, Right to Counsel,
73 Yale. L. J. at 1033; United States v. Ash, 413 U.S. 300, 308–09 (1973) (explaining
Case 19-1778, Document 36, 08/14/2019, 2632574, Page45 of 75
33
that the colonists “desire[d] to minimize imbalance in the adversary system that
otherwise resulted with the creation of a professional prosecuting official”).
As a historical matter, the Sixth Amendment thus pictures counsel as an
essential “‘medium’ between [the defendant] and the State.” Montejo v. Louisiana,
556 U.S. 778, 805 (2009) (Stevens, J., dissenting). This originalist account of
defense counsel is reflected in “the scope given by [the Supreme Court’s] decisions
to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for
his defense.” Wade, 388 U.S. at 224. Of course, it is fully consistent with these
precedents to conclude that the Sixth Amendment’s interests are triggered when
defense counsel are unable to meet with clients free of arbitrary interference by the
federal government and its agents.
That view is also supported by cases imposing on “defense lawyer[s] . . . [a]
a constitutional responsibility.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). As the
Supreme Court recognized long ago, the Sixth Amendment requires the availability
of defense counsel in criminal cases. And it does so because those accused of crimes
are entitled to representation by someone “impressed with that individual sense of
duty which should and naturally would accompany the appointment of a selected
member of the bar, specifically named and assigned.” Powell v. Alabama, 287 U.S.
45, 56 (1932); see also Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page46 of 75
34
Stated most simply, the duty that the Sixth Amendment imposes on criminal
defense counsel is to be “effective” in their representation of criminal defendants.
See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In Strickland v.
Washington, 466 U.S. 668, 691 (1984), the Court elaborated on the “basic duties”
that the Constitution imposes on defense counsel for them to qualify as “effective”:11
• “[A] duty of loyalty.” • “[A] duty to avoid conflicts of interest.” • “[T]he overarching duty to advocate the defendant’s
cause.”
• A “dut[y] to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.”
• “[A] duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”
• “[A] duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”
Id.
But Strickland’s list was far from complete. In more recent cases, the Supreme
Court has identified many other duties that the Sixth Amendment imposes directly
11 The Court has been clear that these duties imposed on defense counsel
derive directly from the Sixth Amendment. See Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985) (“the right to effective assistance of counsel is dependent on the [Sixth Amendment] right to counsel itself”); see also Eastern Savings Bank, FSB v. Springer, 2015 WL 13735520, at *5 n.9 (E.D.N.Y. Jan. 30, 2015) (Strickland “is rooted in the protections of the Sixth Amendment,” and therefore “has no application in a civil action”). Strickland itself made this point clearly. See 466 U.S. at 688–89.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page47 of 75
35
on defense counsel in criminal proceedings. See, e.g., McCoy v. Louisiana, 138 S.
Ct. 1500 (2018) (duty not to admit defendant’s guilt against defendant’s wishes);
Missouri v. Frye, 566 U.S. 134, 145 (2012) (“duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable
to the accused”); Sears v. Upton, 561 U.S. 945, 952 (2010) (duty not to conduct
“cursory” investigations into mitigation evidence); Padilla v. Kentucky, 559 U.S.
356 (2010) (duty to counsel client on deportation consequences of a conviction);
Porter v. McCollum, 558 U.S. 30, 40 (2009) (duty to interview witnesses and search
records in penalty phase of capital murder trial); Rompilla v. Beard, 545 U.S. 374
(2005) (duty to consult trial transcripts from prior conviction where defense counsel
knew prosecution would rely on it); Wiggins v. Smith, 539 U.S. 510 (2003) (duty to
investigate defendant’s personal history and present mitigating evidence at capital
sentencing); United States v. Cronic, 466 U.S. 648, 659 (1984) (duty to “subject the
prosecution’s case to meaningful adversarial testing”).
In addition to the wide-ranging and essential duties that the Sixth Amendment
imposes on defense counsel, the Amendment also confers rights on defense counsel
that assist them in their task of effectively representing clients. For example, in
United States v. Stein, this Court held that “the government violates the Sixth
Amendment when it intrudes on the attorney-client relationship, preventing defense
counsel from participat[ing] fully and fairly in the adversary factfinding process.”
Case 19-1778, Document 36, 08/14/2019, 2632574, Page48 of 75
36
541 F.3d 130, 154 (2d Cir. 2008). Similarly, in Geders v. United States, the Supreme
Court held that the Sixth Amendment prohibits a judge from barring overnight
consultation between defense counsel and her client during trial. 425 U.S. 80 (1976).
And in Herring v. New York, the Supreme Court held that the Sixth Amendment
does not allow a judge to bar counsel from making a final summation. 422 U.S. 853.
857 (1975) (“[T]he right to the assistance of counsel has been understood to mean
that there can be no restrictions upon the function of counsel in defending a criminal
prosecution in accord with the traditions of the adversary factfinding process.”).12
This matrix of rights and responsibilities ensures that the daily practice of a
criminal defense lawyer is shot through with Sixth Amendment mandates. It follows
that efforts by counsel to ensure a constitutionally sufficient level of client access
is—at bare minimum—“arguably” within the Amendment’s zone of interests.
12 Indeed, so special is the relationship between criminal defense counsel and
their clients that it can even serve as the predicate for a claim of third-party standing by defense counsel. As the Supreme Court held in Caplin & Drysdale, Chartered v. United States, counsel may have third-party standing to advance a client’s Sixth Amendment rights precisely because their “attorney-client relationship” is “one of special consequence.” 491 U.S. 617, 623 n.3 (1989); accord Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990). The Federal Defenders do not here rely on a theory of third-party standing, but cite these cases as yet another example of the Supreme Court’s recognition that criminal defense lawyers can play a significant role in vindicating Sixth Amendment rights.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page49 of 75
37
2. The District Court’s Reasoning is Erroneous
In its opinion, the district court held that the Federal Defenders are strangers
to the Sixth Amendment’s zone of interests. It reasoned that “the Sixth Amendment
right to counsel is personal to the accused and there is no indication that Congress
has ever intended to authorize attorneys to bring suit under the right to counsel clause
of the Sixth Amendment.” J.A. 331. This analysis is incorrect.
For starters, it looks in the wrong direction. A cause of action in equity invokes
the Judiciary’s historic power to enforce constitutional limitations on government
conduct. See Armstrong, 135 S. Ct. at 1384. The availability of this cause of action
does not require evidence that Congress specifically intended to allow suits to
enforce the relevant constitutional guarantee. See Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (noting the availability of
equitable relief “as a general matter” and rejecting arguments that suits under
specific constitutional provisions should be “treated differently than every other
constitutional claim”). This is not to say that Congress is irrelevant; Congress may
in some cases modify the availability of equitable relief. See I.N.S. v. Pangilinan,
486 U.S. 875, 883 (1988) (“[C]ourts of equity can no more disregard statutory and
constitutional requirements and provisions than can courts of law.” (citation
omitted)). But where Congress has not done so, there is a presumption favoring the
availability of equitable relief to enjoin unconstitutional conduct. See Bell, 327 U.S.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page50 of 75
38
at 684; Ex parte Young, 209 U.S. 123, 165 (1908); Osborn v. Bank of United
States, 9 Wheat. 738, 839-46 (1824); Marbury v. Madison, 5 U.S. 137, 163-71
(1803). Accordingly, the district court erred in searching for specific evidence that
Congress intended to allow equitable relief for violations of the Sixth Amendment.13
That said, the district court’s more fundamental error was to conflate the
persons on whom the Sixth Amendment confers “the . . . right” with the persons who
(at least arguably) fall within the Amendment’s zone of interests. It is not the identity
of the party that matters for purposes of the zone-of-interests test, but rather the
nature of the interest and its connection to the provision of federal law. See Nat’l
Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 492 (1998)
(holding that there need not be “an indication of congressional purpose to benefit the
would-be plaintiff”); Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health,
654 F.3d 919, 932 (9th Cir. 2011) (“[T]he zone of interests test turns on the interest
sought to be protected, not the harm suffered by the plaintiff.”); TAP Pharm. v. U.S.
Dep’t of Health & Human Servs., 163 F.3d 199, 208 (4th Cir. 1998) (“[O]ur
13 The district court also erred by referencing the standard for determining
when a statutory right is enforceable under 42 U.S.C. § 1983. J.A. 331; J.A. 331 n.3. That has never been the standard for enforcing constitutional limitations through a suit for injunctive relief. It turns on statutory and historical considerations unique to Section 1983 that have little bearing on the question here at issue. See Gonzaga Univ. v. Doe, 536 U.S. 273, 279-280 (2002). And, in any event, the Sixth Amendment does contain unambiguous rights-conferring language—which the Supreme Court has read as imposing duties and conferring protections on defense counsel in the context of attorney-client relationships with the “Accused” in criminal proceedings.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page51 of 75
39
approach relies not on the identity of the party but on the nature of the interest that
it asserts, as the terms of the zone of interests test have always required.”).
This is clear from Data Processing itself, which first announced the zone-of-
interests test. There, a data processors’ association challenged a ruling by the
Comptroller of the Currency that national banks could make data processing services
available to other banks (and to those banks’ customers). See 397 U.S. at 151. The
association pressed its APA claim in reliance on the Bank Service Corporation Act
and the National Bank Act, neither of which conferred any particular right on the
association. See id. at 157. But the Supreme Court held that their “general policy is
apparent; and those whose interests are directly affected by a broad or narrow
interpretation of the Acts” fall within its zone of interests. Id. Here, too, the “general
policy” of the Sixth Amendment is apparent—and there can be no doubt that the
Federal Defenders are “directly affected” by its interpretation and application.
The Supreme Court took a similar approach in Boston Stock Exchange, its
only case indicating that the zone-of-interests test may once have applied to
constitutional claims. See 429 U.S. at 321 n.3. By its terms, the Commerce Clause
does not vest rights in individuals: it provides an affirmative right only to Congress,
stating that “The Congress shall have power . . . [t]o regulate commerce . . . among
the several states.” U.S. const. art. I § 8. Nonetheless, the Supreme Court concluded
that regional stock exchanges were within the zone of interests of the Commerce
Case 19-1778, Document 36, 08/14/2019, 2632574, Page52 of 75
40
Clause for purposes of a constitutional suit. This analysis is inconsistent with a focus
on which persons or entities are specifically vested with rights by the Constitution.
Accord Bridgeport and Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 567
F.3d 79, 86 (2d Cir. 2009) (holding, pre-Lexmark, that “an interstate ferry service []
falls within the zone of interests protected by the Commerce Clause”).
The Supreme Court’s decision in Match-E further confirms the point. There,
the plaintiff sued under a provision of the Indian Reorganization Act (IRA), 25
U.S.C. § 465, which provides that the “Secretary of the Interior is authorized, in his
discretion, to acquire [land] . . . for the purpose of providing land for Indians.” See
567 U.S. at 211. In an exercise of this statutory authority, the Secretary had acquired
land in trust for an Indian tribe seeking to open a casino. See id. at 211-14. The
plaintiff, David Patchak, lived near the relevant land. He filed suit under the IRA,
asserting that the Secretary had exceeded his authority in purchasing the land with
the stated purpose of conveying it to Indians for the creation of a casino. See id.
There was no dispute in Match-E that Patchak lacked any personal right, title,
or interest in the property. See id. at 220-22. Nor did Patchak claim any other right
vested in him by the IRA. See id. at 224-228. And the statute spoke directly about
land acquisition, not land use. Nonetheless, observing that Patchak had an interest
in how the land came to be used following an acquisition approved by the Secretary
under his statutory authority, the Supreme Court held that Patchak fell within the
Case 19-1778, Document 36, 08/14/2019, 2632574, Page53 of 75
41
statutory zone of interests: “The question is not whether § 465 seeks to benefit
Patchak; everyone can agree it does not. The question is instead, . . . whether issues
of land use (arguably) fall within § 465’s scope—because if they do, a neighbor
complaining about such use may sue to enforce the statute’s limits.” Id. at 225 n.7.
Needless to say, if Patchak fell within the IRA’s zone of interests on that basis, the
Federal Defenders fall within the Sixth Amendment’s interests here.
The district court viewed the Sixth Amendment right as ineluctably personal
in nature. On that basis, it held that nobody but the accused can ever have an interest
in government action that substantially burdens the exercise of Sixth Amendment
rights. This conclusion was incorrect as a matter of law and should be vacated. The
Federal Defenders are the means by which many inmates in the MDC have exercised
their Sixth Amendment rights. The Federal Defenders are themselves subject to
many obligations under the Sixth Amendment. And the Federal Defenders assuredly
have an interest in issues that “fall within [the Sixth Amendment’s] scope,” such as
practices that impede access to their own clients. See Match-E, 567 U.S. at 225 n.7.
Accordingly, the Federal Defenders have a cause of action to pursue their claim.
II. THE DISTRICT COURT ERRED IN DISMISSING THE FEDERAL DEFENDERS’ ADMINISTRATIVE PROCEDURE ACT CLAIM
A. The Federal Defenders Satisfy the Zone-of-Interests Test
The district court concluded that the Federal Defenders lacked a cause of
action for their APA claim because the statutes on which the Federal Defenders
Case 19-1778, Document 36, 08/14/2019, 2632574, Page54 of 75
42
relied “relate primarily to the health, safety, and well-being of inmates and facility
personnel.” J.A. 333. This conclusion rests on two errors of law.
1. The District Court Failed to Consider Applicable Regulations
First, the district court erred in treating only statutes, but not regulations, as
relevant to the APA zone-of-interests analysis. In post-Lexmark APA cases, the
zone-of-interests test selects for plaintiffs who fall within the class of “adversely
affected or aggrieved” persons permitted to bring suit. 5 U.S.C. § 702. In assessing
the zone of interests for APA claims, courts review the “substantive provisions . . .
[that] serve as the gravamen of the complaint.” Bennett v. Spear, 520 U.S. 154, 175
(1997). But those “substantive provisions” are not limited to statutes. Plaintiffs are
free to base APA claims upon an agency’s violation of its own regulations, for it has
long been settled “that the rules promulgated by a federal agency . . . are controlling
upon the agency.” Montilla v. I.N.S., 926 F.2d 162, 166 (2d Cir. 1991).
Accordingly, as many circuits have held, an APA plaintiff must “allege a harm
that falls within the ‘zone of interests’ protected by the underlying statute or
(emphasis added); accord Kurapati v. U.S. Bureau of Citizenship and Immigration
Servs., 775 F.3d 1255, 1260 (11th Cir. 2014); City Of Albuquerque v. U.S. Dep’t Of
Interior, 379 F.3d 901, 915 (10th Cir. 2004); Hayes Int’l Corp. v. McLucas, 509 F.2d
247, 256 (5th Cir. 1975). Indeed, this Court has expressly looked to GSA regulations
Case 19-1778, Document 36, 08/14/2019, 2632574, Page55 of 75
43
in conducting zone-of-interests analysis. See Acevedo v. Nassau Cty, N.Y., 500 F.2d
1078, 1083 (2d Cir. 1974). And the Supreme Court confirmed in Match-E that
agency regulations may—at the very least—shed light on the zone of interests
protected by an applicable statute. See 567 U.S. at 227.
In fact, Defendants reasonably conceded this point below. J.A. 309-10.
Agencies cannot exceed the authority that Congress has delegated to them in
statutes. See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018). Regulations that
vary from a statute must be set aside as exceeding “statutory jurisdiction, authority,
or limitations.” 5 U.S.C. § 706(2)(C). Valid regulations therefore implement and
effectuate federal statutes and themselves have the force of law. For these reasons,
they are properly considered in a zone-of-interests analysis. See City of Albuquerque,
379 F.3d at 915 (“We think [the APA] clearly allows standing for those plaintiffs
‘within the zone of interests protected by the statute, executive order, or regulation
which the agency is alleged to have violated’ provided, of course, that the executive
order or regulation is within the scope of authority delegated by Congress.”).
Here, accounting for applicable BOP regulations—which the district court did
not do—there can be no doubt that the Federal Defenders fall within the relevant
zone of interests for APA purposes. There are three relevant regulations:
28 C.F.R. § 551.117(a): “The Warden shall provide the opportunity for pretrial inmate-attorney visits on a seven-days-a-week basis.”
Case 19-1778, Document 36, 08/14/2019, 2632574, Page56 of 75
44
28 C.F.R. § 543.13(b): “The Warden generally may not limit the frequency of attorney visits since the number of visits necessary is dependent upon the nature and urgency of the legal problems involved. The Warden shall set the time and place for visits, which ordinarily take place during regular visiting hours. Attorney visits shall take place in a private conference room, if available, or in a regular visiting room in an area and at a time designed to allow a degree of privacy. The Warden may make exceptions according to local conditions or for an emergency situation demonstrated by the inmate or visiting attorney.”
28 C.F.R. § 543.13(c): “The attorney shall make an advance appointment for the visit through the Warden prior to each visit; however, the Warden shall make every effort to arrange for a visit when prior notification is not practical.”
[Compl. ¶¶ 41–42].14
Even a cursory review of these legal visiting regulations makes clear that the
Federal Defenders’ interests are not “marginally related to or inconsistent with the
purposes implicit” in them. Match-E, 567 U.S. at 224–25. Take, for example, the
obligation placed on the Warden to “provide the opportunity for pretrial inmate-
attorney visits on a seven-days-a-week basis.” 28 C.F.R. § 551.117(a). An arbitrary
deprivation of daily visiting causes concrete harm to the Federal Defenders as an
organization and stymies their efforts to provide high-quality legal services to
indigent criminal defendants. J.A. 67-68. Because cancellation of visits for just a
14 The complaint cited “28 U.S.C. § 543.13(b), (d),” see J.A. 17, but that
contained typographical errors and should have read: “28 C.F.R. § 543.13(b), (c).”
Case 19-1778, Document 36, 08/14/2019, 2632574, Page57 of 75
45
single day burdens the Federal Defenders, and because they are attorneys governed
by Section 551.117(a), they are within the relevant zone of interests.
These three regulations cannot be said to be concerned only with inmates.
Section 543.1 governs “Visits by attorneys” and grants affirmative rights specifically
to defense counsel. For instance, where an attorney is unable to make an advance
appointment, the Warden is required to “make every effort to arrange for a visit when
prior notification is not practical.” 28 C.F.R. § 543.13(c). That same section goes on
to prohibit the Warden from asking a visiting attorney “to state the subject matter”
of the case. 28 C.F.R. § 543.13(d). The regulations also impose express obligations
on defense counsel—such as the Federal Defenders—including the requirement of
“an advance appointment.” 28 C.F.R. § 543.13(c); see also Sturm v. Clark, 835 F.2d
officials to “impose notice and visiting hour regulations on all attorneys”); id. at
1011 n.5 (Sections 543.13 and 543.14 “generally empower a warden to establish the
terms and conditions of attorney visitation privileges, and to restrict those privileges
should an attorney threaten institution security”).15
In short, because BOP legal visiting regulations are directed at defense
counsel, give defense counsel rights vis-à-vis the Warden, and impose restrictions
15 Even if Defendants were right that legal visiting regulations are meant only
to effectuate Sixth Amendment rights, see J.A. 187, the Federal Defenders would be within the zone of interests of those regulations for the reasons given above.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page58 of 75
46
on defense counsel, the Federal Defenders are within their zone of interests and may
bring an APA claim alleging arbitrary and capricious conduct by Defendants.
2. The District Court’s Statutory Analysis is Overly Restrictive
Even setting aside the regulations that form the basis of the Federal Defenders’
claim, the district court erred in holding that the Federal Defenders fall outside the
zone of interests of the relevant enabling statutes. See § 4001(b)(1), 4042(a).
As explained above, the zone-of-interests test is “not meant to be especially
demanding” and “forecloses suit only when a plaintiff’s interests are so marginally
related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.” Match-E, 567
U.S. at 224-25 (citation omitted). There need not be “an indication of congressional
purpose to benefit the would-be plaintiff.” Nat’l Credit Union, 522 U.S. at 492.
The enabling statutes here vest “control and management of Federal penal and
correction institutions” in the Attorney General. 18 U.S.C. § 4001(b)(1). They also
permit the BOP to (1) “have charge of the management and regulation of all Federal
penal and correctional institutions;” (2) “provide suitable quarters and provide for
the safekeeping, care, and subsistence of” inmates; and (3) “provide for the
protection, instruction, and discipline” of inmates,” Id. § 4042(a)(1)-(3).
The district court characterized these statutes as “primarily” concerned with
the “health, safety, and well-being of inmates and facility personnel.” J.A. 333. On
Case 19-1778, Document 36, 08/14/2019, 2632574, Page59 of 75
47
that basis alone, it held that the Federal Defenders fall beyond their zone of interests.
But one of the most pressing concerns for inmates at institutions like the MDC is
their legal representation. To these inmates, access to the Federal Defenders is
“indispensable” to protecting the “fundamental purpose of the Sixth Amendment.”
Brewer, 430 U.S. at 398, 426. As a result, it is wrong to say that the Federal
Defenders are not even arguably within the zone of interests of statutes that govern
everyday operations at the MDC. That conclusion strips from the terms “[prison]
management and regulation,” “[inmate] care,” and “[inmate] protection” any notion
that the BOP must ensure access to courts and uphold the Sixth Amendment.
It also raises the question: if the relevant enabling statutes are wholly divorced
from the interests of the Federal Defenders—and other criminal defense counsel
with clients at federal facilities—what gives the BOP the authority to regulate
attorney visits at all? Defendants cannot have it both ways. If the statutes at issue
here give the BOP authority to directly regulate attorney access, and thus to control
whether the Federal Defenders can do their job, Defendants should not be heard to
argue that the Federal Defenders are somehow foreign to those statutes.
Because the Federal Defenders are plainly—and certainly arguably—within
the zone of interests of the relevant legal visiting regulations, as well as applicable
statutes, the district court erred in dismissing the Federal Defenders’ APA claim.
Case 19-1778, Document 36, 08/14/2019, 2632574, Page60 of 75
48
B. Defendants’ Conduct is Not Immune from Judicial Review As they did below, Defendants may argue in the alternative that this Court
cannot consider the Federal Defenders’ claim under the APA because a decision to
“temporarily suspend inmate visitations [i]s an ‘agency action [] committed to
agency discretion by law.’” J.A. 138 (quoting 5 U.S.C. § 701(a)(2)). Any such
argument should quickly be rejected.
Federal courts apply a strong presumption favoring judicial review of agency
action. See Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1652–53 (2015). For
that reason, the exception to review in Section 701(a)(2) is read “quite narrowly,”
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018), and is
triggered only where “the statutes and regulations at issue” are “drawn in such broad
terms that . . . there is no law to apply.” Salazar v. King, 822 F.3d 61, 76 (2d Cir.
2016) (internal quotation marks omitted). In assessing whether there is any law
against which to “judg[e] an agency’s exercise of discretion,” courts look to “the
statutory text, the agency’s regulations, and informal agency guidance that govern
the agency’s challenged action.” Id.
Here, the Federal Defenders allege that Defendants have arbitrarily violated
regulations that require “the opportunity for pretrial inmate-attorney visits on a
seven-days-a-week basis.” 28 C.F.R. § 551.117(a). The Federal Defenders have also
alleged that Defendants violated rules that prohibit any limitation on “the frequency
Case 19-1778, Document 36, 08/14/2019, 2632574, Page61 of 75
49
of attorney visits” and obligate wardens to “make every effort to arrange for a visit,”
even when an attorney is unable to provide prior notification, id. § 543.13(b), (c).
It cannot credibly be argued that these regulations lack a “meaningful standard
against which to judge the agency’s exercise of discretion.” Lincoln v. Vigil, 508
U.S. 182, 191 (1993). Nonetheless, Defendants may argue that the Federal
Defenders’ APA claim is unreviewable because of a BOP Program Statement
regarding visiting regulations. That Statement, offered as an exhibit below, provides:
Due to practical considerations and the different characteristics of institutions, certain limitations and controls must be established in developing and administering visiting regulations. The extent of these limitations will vary with each institution, and are recognized as reasons upon which visiting restrictions may be based.
J.A. 206.
Any reliance on this exhibit would be misplaced in at least two respects. First,
even if Defendant Quay has a measure of latitude to develop certain MDC-specific
visitation policies, that does not mean he can override the legal visiting standards
that the BOP has mandated for all institutions. “[A]n administrative agency must
adhere to its own regulations,” Singh v. U.S. Dep’t of Justice, 461 F.3d 290, 296 (2d
Cir. 2006), and nothing in the Program Statement frees Defendant Quay from that
obligation. In fact, a separate Program Statement—which specifically concerns
attorney visits—reiterates wardens’ obligation to provide “seven-days-a-week” legal
Case 19-1778, Document 36, 08/14/2019, 2632574, Page62 of 75
50
visiting and directs wardens to communicate attorney visiting hours “to the local
legal community.” BOP Program Statement 7331.04(24).16
Second, simply because a warden is afforded a measure of discretion to make
institution-specific determinations does not render such determinations
unreviewable. They instead remain subject “to the general requirements of reasoned
agency decisionmaking.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569
(2019); see also Salazar, 822 F.3d at 76 (“[A]n irrational departure from [an agency]
policy . . . could constitute action that must be overturned as ‘arbitrary, capricious,
or an abuse of discretion.”). Thus, even if BOP regulations provided no “law to
apply,” Defendant Quay’s arbitrary departures from the MDC’s own policies and
practices would themselves support review and defeat reliance on Section 701(a)(2).
The bottom line is that Defendants cannot escape judicial review. The Federal
Defenders have alleged a pattern and practice of arbitrary, unlawful restrictions on
attorney access at the MDC. The Federal Defenders have causes of action in equity
and under the APA to maintain these claims—and Defendants have no basis to assert
that adjudicating the APA claim is beyond judicial competence. This Court should
therefore vacate the judgment below and remand for further proceedings.
16 See https://www.bop.gov/policy/progstat/7331_004.pdf (Jan. 31, 2003).
Case 19-1778, Document 36, 08/14/2019, 2632574, Page63 of 75
51
CONCLUSION
For the foregoing reasons, the judgment below should be vacated.
August 14, 2019
Respectfully Submitted, /s/ Sean Hecker
Sean Hecker Jenna M. Dabbs Joshua Matz Matthew J. Craig Benjamin White KAPLAN HECKER & FINK LLP 350 Fifth Avenue | Suite 7110 New York, NY 10118 (212) 763-0883 [email protected]
Counsel for Plaintiff-Appellant
Case 19-1778, Document 36, 08/14/2019, 2632574, Page64 of 75
52
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Local Rule 32.1(a)(4)
because this brief contains 12,998 words, excluding the parts of the brief exempted
by Federal Rule of Appellate Procedure 32(f). This brief complies with the typeface
requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6)
because this brief has been prepared in proportionally spaced typeface using
Microsoft Word 2016 in 14-point Times New Roman.
August 14, 2019
/s/ Sean Hecker Sean Hecker Counsel for Plaintiff-Appellant
Case 19-1778, Document 36, 08/14/2019, 2632574, Page65 of 75
53
CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2019, I electronically filed the foregoing
brief with the Clerk of the Court for the U.S. Court of Appeals for the Second Circuit
by using the CM/ECF system. All participants are registered CM/ECF users, and
will be served by the appellate CM/ECF system.
/s/ Sean Hecker Sean Hecker Counsel for Plaintiffs-Appellants
Case 19-1778, Document 36, 08/14/2019, 2632574, Page66 of 75
SPECIAL APPENDIX
Case 19-1778, Document 36, 08/14/2019, 2632574, Page67 of 75
Plaintiff Federal Defenders of New York, Inc. commenced the above-captioned action on
February 4, 2019, against Defendants the Federal Bureau of Prisons (the “BOP”) and Warden
Herman Quay, challenging the cancellation of legal and social visits at the Metropolitan
Detention Center (the “MDC”) in Brooklyn, New York, pursuant to the Sixth Amendment of the
United States Constitution, U.S. Const. amend. VI, and the Administrative Procedure Act, 5
U.S.C. § 706(2)(A) (“APA”). (Compl., Docket Entry No. 1.) Plaintiff, proceeding by order to
show cause, sought an order to restrain and enjoin Defendants from failing to permit (1) daily
legal visitation for all inmates at the MDC; and (2) social visitation for all inmates in accordance
with the MDC’s normal schedule and procedure. (Pl. Unsigned Order to Show Cause, Docket
Entry No. 3.) On March 1, 2019, the Court heard argument on Plaintiff’s application for
injunctive relief and, as discussed on the record, denied Plaintiff’s application — finding that,
pursuant to the Supreme Court’s decision in Lexmark International, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 127 (2014), despite having Article III constitutional standing to
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 1 of 6 PageID #: 517
SPA-1Case 19-1778, Document 36, 08/14/2019, 2632574, Page69 of 75
2
bring this case on behalf of its clients, Plaintiff does not have a cause of action under the Sixth
Amendment or the APA. (Tr. of Oral Argument held on Mar. 1, 2019 (“Tr.”) 45:5–25–46:1–6.)
The Court granted Plaintiff leave to amend the Complaint. (Id. at 46:10–11.)
On March 29, 2019, Plaintiff filed a letter informing the Court that it will not amend the
Complaint. (Pl. Ltr. dated Mar. 29, 2019, Docket Entry No. 30.) Plaintiff’s letter also states that
it anticipates that Defendants would move to dismiss the Complaint or that the Court would
dismiss the Complaint sua sponte.1 (Id.) Defendants agree that the Court can dismiss this action
sua sponte. (Defs. Ltr. dated Apr. 3, 2019, Docket Entry No. 31.) As discussed below, the Court
sua sponte dismisses the Complaint.
I. Discussion
a. Standard of review
“‘The district court has the power to dismiss a complaint sua sponte for failure to state a
claim’ . . . so long as the plaintiff is given notice and ‘an opportunity to be heard.’” Wachtler v.
Cty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (first quoting Leonhard v. United States, 633
F.2d 599, 609 n.11 (2d Cir. 1980); and then quoting Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.
1991)); see also FPP, LLC v. Xaxis US, LLC, --- F. App’x ---, ---, 2019 WL 1552344, at *2 (2d
Cir. Apr. 10, 2019) (affirming district court’s sua sponte dismissal of claim and holding that the
court “will reverse a district court’s sua sponte dismissal if the court ‘gave the parties no advance
notice that dismissal was contemplated and afforded them no opportunity to brief the question’”
(quoting McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001))); Grant v. County of Erie, 542 F.
1 By letter dated April 4, 2019, Plaintiff states that, while it opposes dismissal of the
Complaint, it agrees that the “Court’s legal ruling precludes [Plaintiff] from pursuing their claims at present,” and Plaintiff “reserve[s] all rights to challenge the Court’s conclusion” through an appeal. (Pl. Ltr. dated Apr. 4, 2019, Docket Entry No. 32.)
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 2 of 6 PageID #: 518
SPA-2Case 19-1778, Document 36, 08/14/2019, 2632574, Page70 of 75
3
App’x 21, 24 (2d Cir. 2013) (“[A] district court may dismiss an action sua sponte for failure to
state a claim so long as the plaintiff is given notice of the grounds for dismissal and an
opportunity to be heard.”).
b. Plaintiff does not have a cause of action under the Sixth Amendment or the APA
In opposing Plaintiff’s application for injunctive relief, Defendants argued that, as an
initial matter, the Court lacked subject matter jurisdiction to adjudicate Plaintiff’s claims. (Defs.
Mem. in Opp’n to Pl. Mot. for a Prelim. Inj. (“Defs. Mem.”) 7, Docket Entry No. 22.)
Specifically, Defendants argued that Plaintiff lacked (1) standing to bring a claim in its
individual capacity for alleged violations of its clients’ Sixth Amendment rights, (2) standing to
bring an APA claim in its individual capacity, (3) third-party standing to bring Sixth Amendment
and APA claims on behalf of its clients, and (4) standing to bring a claim regarding conditions at
the MDC, as conceded by Plaintiff. (Id. at 7–13.)
Although Defendants argued that Plaintiff lacks standing to bring this action, the Court
understood the proper question to be whether Plaintiff had a cause of action under the Sixth
Amendment or the APA pursuant to Lexmark, where the Supreme Court addressed and clarified
the issue of standing.2 At oral argument, the Court heard extensive arguments from Plaintiff as
to whether Plaintiff has a cause of action under the Sixth Amendment or the APA. (See
2 In Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127
(2014), the Supreme Court held that the term “statutory standing” is “misleading, since ‘the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate a case.’” 572 U.S. at 127 (citation omitted); see American Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016) (finding that the question of whether a particular plaintiff has a cause of action “‘does not belong’ to the family of standing inquires” (quoting Lexmark, 572 U.S. at 127)).
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 3 of 6 PageID #: 519
SPA-3Case 19-1778, Document 36, 08/14/2019, 2632574, Page71 of 75
4
generally Tr.) In concluding that Plaintiff did not have a cause of action, the Court began with
the Sixth Amendment, which guarantees criminal defendants the right to effective assistance of
counsel. See U.S. Const. amend. VI. The Court explained that the right to counsel is a right that
is personal to the accused. See Faretta v. California, 422 U.S. 806, 837 (1975) (Burger, J.,
dissenting) (“As the Court seems to recognize . . . the conclusion that the rights guaranteed by
the Sixth Amendment are ‘personal’ to an accused reflects nothing more than the obvious fact
that it is he who is on trial and therefore has need of a defense.”); see also United States v.
Medunjanin, 752 F.3d 576, 587 (2d Cir. 2014) (finding, at least in the context of Miranda v.
Arizona, 384 U.S. 436 (1966), that “the right to counsel is personal to the individual questioned;
it is a right that must be affirmatively invoked by the suspect” (citation and internal quotation
marks omitted)); Coleman v. Hardy, 690 F.3d 811, 818 (7th Cir. 2012) (“The law is clear . . . that
an attorney cannot invoke his client’s right to counsel under Miranda.”). Thus, unlike in the
context of claims pursuant to the Fair Housing Act and 42 U.S.C. § 1983, as discussed in Havens
Realty Corporation. v. Coleman, 455 U.S. 363, 379 (1982) and Centro de la Comunidad
Hispana de Locus Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017), upon which
Plaintiff relies to argue that it has standing and which involved broad federal statutes that
expressly authorized suit,3 the Sixth Amendment right to counsel is personal to the accused and
there is no indication that Congress has ever intended to authorize attorneys to bring suit under
the right to counsel clause of the Sixth Amendment. Thus, because the right to counsel is
3 In Havens, the plaintiff brought suit under the Fair Housing Act, which the Supreme
Court held provided for standing to the “full limit” of Article III and under which courts lack the authority to impose prudential barriers. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982). In Centro, the organizational plaintiff brought suit under section 1983, challenging a town ordinance under the First and Fourteenth Amendments, which have broad language granting rights to the general public. See Centro de la Comunidad Hispana de Locus Valley v. Town of Oyster Bay, 868 F.3d 104, 108 (2d Cir. 2017).
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 4 of 6 PageID #: 520
SPA-4Case 19-1778, Document 36, 08/14/2019, 2632574, Page72 of 75
5
personal to the accused, Plaintiff does not have a cause of action under the Sixth Amendment.
Similarly, the Court found that Plaintiff does not have a cause of action under the APA
because Plaintiff was not within the “zone of interests” sought to be protected or regulated by the
relevant statutes. (Tr. 45:5–25–46:1–2.) Section 702 of the APA provides: “A person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.
To bring a claim under the APA, “a plaintiff must satisfy Article III’s standing requirements
(constitutional standing) and assert interests that are arguably within the zone of interests to be
protected or regulated by the statute she claims was violated (statutory standing), at all times
during the litigation (mootness).” Salazar v. King, 822 F.3d 61, 73 (2d Cir. 2016). “Whether a
plaintiff comes within the zone of interests is an issue that requires [a court] to determine, using
traditional tools of statutory interpretation, whether a legislatively conferred cause of action
encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S. at 127 (internal quotation marks
omitted).
During the hearing, Plaintiff identified 18 U.S.C. § 4001 as the relevant statute. (Tr.
35:17–18.) Section 4001 of title 18 of the United States Code provides that the “control and
management of Federal penal and correctional institutions . . . shall be vested in the Attorney
General, who shall promulgate rules for the government thereof, and appoint all necessary
officers and employees in accordance with the civil-service laws, the Classification Act, as
amended, and the applicable regulations.” 18 U.S.C. § 4001(b)(1). Although not identified by
Plaintiff during the hearing, the Court also considered the applicability of 18 U.S.C.
§ 4042(a)(1)–(2). Under section 4042 of title 18 of the United States Code, the BOP shall,
among other things, “have charge of the management and regulation of all Federal penal and
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 5 of 6 PageID #: 521
SPA-5Case 19-1778, Document 36, 08/14/2019, 2632574, Page73 of 75
6
correctional institutions” and “provide suitable quarters and provide for the safekeeping, care,
and subsistence of all persons charged with . . . offenses against the United States . . . .” 18
U.S.C. § 4042(a)(1)–(2). These statutory provisions relate primarily to the health, safety, and
well-being of inmates and facility personnel. Although broadly worded, the statutes do not
protect Plaintiff’s interest in access to its clients, nor has Plaintiff pointed to legislative history
that would suggest the zone of interests encompasses such an interest. In addition, to the extent
Plaintiff’s APA claim relies on the Sixth Amendment right to counsel, the APA claim fails for
the same reasons the Sixth Amendment claim fails.
At the conclusion of oral argument and based generally on the reasoning summarized
above, the Court denied Plaintiff’s request for injunctive relief but granted Plaintiff the
opportunity to amend the Complaint. Based on Plaintiff’s March 29, 2019 submission to the
Court, informing the Court that it will not amend the Complaint and inviting the Court to sua
sponte dismiss the action, and on Defendants’ response also urging sua sponte dismissal of the
action, the Court dismisses the Complaint because Plaintiff does not have a cause of action under
the Sixth Amendment or the APA.
The Clerk of Court is directed to close this case.
Dated: May 19, 2019 Brooklyn, New York
SO ORDERED: s/ MKB MARGO K. BRODIE United States District Judge
Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 6 of 6 PageID #: 522
SPA-6Case 19-1778, Document 36, 08/14/2019, 2632574, Page74 of 75
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------------- X FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center – Brooklyn,
JUDGMENT 19-CV-660 (MKB) Plaintiff,
-v- FEDERAL BUREAU OF PRISONS and WARDEN HERMAN QUAY, in his official capacity,
Defendants. ------------------------------------------------------------------------- X
An Order of Honorable Margo K. Brodie, United States District Judge, having been filed
on May 20, 2019, dismissing the complaint because Plaintiff does not have a cause of action
under the Sixth Amendment or the APA; it is
ORDERED and ADJUDGED that the complaint is dismissed because Plaintiff does not
have a cause of action under the Sixth Amendment or the APA; and that this case is closed.
Dated: Brooklyn, NY Douglas C. Palmer June 4, 2019 Clerk of Court
By: /s/Jalitza Poveda
Deputy Clerk
Case 1:19-cv-00660-MKB-SMG Document 34 Filed 06/04/19 Page 1 of 1 PageID #: 523
SPA-7Case 19-1778, Document 36, 08/14/2019, 2632574, Page75 of 75
