Habeas Corpus Resource Center v. United States Department of Justice

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HABEAS CORPUS RESOURCE No. 14-16928
CENTER; OFFICE OF THE FEDERAL
PUBLIC DEFENDER FOR THE DISTRICT D.C. No.
OF ARIZONA, 4:13-cv-04517-
Plaintiffs-Appellees, CW

v.
OPINION
UNITED STATES DEPARTMENT OF
JUSTICE; LORETTA E. LYNCH,
Attorney General,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Senior District Judge, Presiding

Argued and Submitted
December 10, 2015—San Francisco, California

Filed March 23, 2016

Before: Diarmuid F. O’Scannlain, Barry G. Silverman,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea
2 HABEAS CORPUS RES. CTR. V. USDOJ

SUMMARY*

Standing/Ripeness

The panel vacated the district court’s decision on
summary judgment and remanded with instructions to dismiss
an action raising challenges to the Attorney General’s 2013
regulations implementing a procedure for certifying a state’s
capital-counsel mechanisms for the fast-tracking of capital
prisoners’ federal habeas cases.

The panel held that the plaintiffs, the Habeas Corpus
Resource Center and the Office of the Federal Public
Defender for the District of Arizona, two governmental
organizations that provide legal representation to capital
defendants and prisoners, did not have standing to bring this
action based on their theory of direct injury. Because the
plaintiffs have not suffered a legally cognizable injury as a
result of the promulgations of the final regulations, the panel
did not need to address further their contentions that they had
standing to challenge procedural errors in the notice-and-
comment-rulemaking process and third-party standing on
behalf of their clients.

The panel declined the plaintiffs’ request for a limited
remand to allow their clients an opportunity to intervene. The
panel wrote that the Attorney General has not yet made any
certification decisions, and, thus, challenges to the procedures
and criteria set forth in the regulations are not ripe for review.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 HABEAS CORPUS RES. CTR. V. USDOJ 3

COUNSEL

Samantha Lee Chaifetz (argued), Melissa N. Patterson, and
Michael Raab, United States Department of Justice, Civil
Division, Washington, D.C., for Defendants-Appellants.

Marc Shapiro (argued), Orrick, Herrington & Sutcliffe LLP,
New York, New York; George E. Greer, Orrick, Herrington
& Sutcliffe LLP, Seattle, Washington; Shannon Christine
Leong, Catherine Y. Lui, and Darren S. Teshima, Orrick,
Herrington & Sutcliffe LLP, San Francisco, California, for
Plaintiffs-Appellees.

Kent S. Scheidegger, Criminal Legal Foundation,
Sacramento, California, for Amici Curiae Marc Klaas and
Edward G. Hardesty.

OPINION

BEA, Circuit Judge:

Title 28, chapter 154 of the United States Code (“Chapter
154”) permits the “fast-tracking” of federal habeas cases for
capital prisoners from states that offer competent counsel to
indigent capital prisoners during state postconviction
proceedings. See 28 U.S.C. §§ 2261–2266. “Fast-tracking”
principally affects habeas corpus petitioners because it
contracts from one year to six months the period in which
petitioners may file a timely federal habeas petition. See id.
§ 2263(a). Before a state can avail itself of Chapter 154’s
“fast-tracking” provisions, it must request and receive
4 HABEAS CORPUS RES. CTR. V. USDOJ

certification from the Attorney General1 that it “has
established a mechanism for providing counsel in
postconviction proceedings” to indigent capital prisoners. Id.
§§ 2261(b)(1), 2265(a)(1)(A). In 2013, the Attorney General
finalized regulations to implement a certification procedure,
pursuant to 28 U.S.C. § 2265(b), and the plaintiffs then
brought this action, which raises numerous challenges to the
regulations, which challenges are based upon the
Administrative Procedure Act (“APA”). On summary
judgment, the district court sustained most of the plaintiffs’
challenges, found the regulations arbitrary or capricious in
several respects, and enjoined the regulations from going into
effect. We vacate the district court’s decision and remand
with instructions to dismiss this case because the plaintiffs,
two governmental organizations that provide legal
representation to capital defendants and prisoners, did not
have standing to bring this action. Furthermore, we decline
the plaintiffs’ request for a limited remand to allow their
clients an opportunity to intervene; the Attorney General has
not yet made any certification decisions, and, thus, challenges
to the procedures and criteria set forth in the regulations are
not yet ripe for review.

1
The United States Department of Justice and the Attorney General are
named as defendants in this case. Because the Attorney General is vested
with the authority to promulgate the regulations at issue here, see
28 U.S.C. § 2265(b), we refer to the Attorney General when discussing the
defendants. Loretta E. Lynch was substituted for Eric H. Holder Jr. as
Attorney General on April 27, 2015.
 HABEAS CORPUS RES. CTR. V. USDOJ 5

I

A. Background on Chapter 154 and the Final Regulations

Although the federal Constitution requires that counsel be
appointed for indigent criminal defendants when a conviction
results in imprisonment, see Alabama v. Shelton, 535 U.S.
654, 661–62 (2002), this requirement does not extend, as a
federal constitutional matter, to postconviction collateral
attacks on a conviction or sentence in state or federal court,
see Pennsylvania v. Finley, 481 U.S. 551, 555–59 (1987).
Chapter 154, which was added by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), provides
procedural benefits to states that voluntarily appoint counsel
to represent indigent capital prisoners during state
postconviction proceedings. See 28 U.S.C. §§ 2261–2266.2

For a state to “opt in” to Chapter 154, it must request and
receive certification from the Attorney General that it “has
established a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent
counsel in State postconviction proceedings brought by
indigent prisoners who have been sentenced to death.” Id.
§ 2265(a)(1)(A); see id. § 2261(b)(1). For the state to invoke
Chapter 154 in a particular capital prisoner’s federal habeas
case, it must have appointed counsel to represent the prisoner
during state postconviction proceedings pursuant to its
capital-counsel mechanism, unless the prisoner validly

2
Federal law provides for the appointment of counsel to indigent capital
prisoners during federal habeas proceedings. See 18 U.S.C. § 3599(a)(2).
6 HABEAS CORPUS RES. CTR. V. USDOJ

waived counsel, retained his own counsel, or was found not
indigent. Id. § 2261(b)(2).3

If Chapter 154 applies to a federal habeas case, then,
among other things, (1) the capital prisoner can secure an
automatic stay from execution while his state postconviction
and federal habeas proceedings are ongoing, see id. § 2262;
(2) the statute of limitations for filing a federal habeas
petition is shortened from one year to six months from the
date of final judgment of the state courts on direct appeal,
compare id. § 2244(d) (general rule), with id. § 2263(a)
(Chapter 154 rule); and (3) the federal courts must give
priority status to the habeas case and resolve it within the
time periods specified by Chapter 154, see id. § 2266.

Chapter 154 requires the Attorney General to certify state
capital-counsel mechanisms that comply with the
requirements of Chapter 154, and such certification decisions
are subject to de novo review in the U.S. Court of Appeals for
the D.C. Circuit. Id. § 2265(a), (c). The Attorney General
must also promulgate regulations to implement such
certification procedure. Id. § 2265(b). After engaging in

3
Federal courts entertaining habeas corpus petitions were previously
required to determine whether a state’s capital-counsel mechanism
qualified the state to receive Chapter 154’s benefits. See 28 U.S.C.
§ 2261(b) (Supp. III 1997); Spears v. Stewart, 283 F.3d 992, 1008–09 (9th
Cir. 2002) (amended opinion). In 2006, Congress amended Chapter 154
to shift responsibility for determining the adequacy of state capital-counsel
mechanisms from the federal courts to the Attorney General. See USA
PATRIOT Improvement & Reauthorization Act of 2005, Pub. L. No. 109-
177, § 507, 120 Stat. 192, 250–51 (2006). Under all versions of the statute,
such federal habeas courts must still determine whether the state did
appoint counsel to represent the capital prisoner during state
postconviction proceedings, pursuant to the state’s capital-counsel
mechanism.
 HABEAS CORPUS RES. CTR. V. USDOJ 7

notice-and-comment rulemaking, the Attorney General
finalized such regulations in September 2013 (“Final
Regulations”). See 78 Fed. Reg. 58,160 (Sept. 23, 2013).4

The Final Regulations establish a procedure for certifying
whether a state’s mechanism is adequate for the appointment
of professionally competent counsel to represent indigent
capital prisoners during state postconviction proceedings. The
Final Regulations require a state to request certification; the
Attorney General must post the state’s request on the Internet,
solicit public comments, and review such comments during
the certification process. See 28 C.F.R. § 26.23. If the
Attorney General certifies that a state’s capital-counsel
mechanism conforms to the requirements of Chapter 154 and
the Final Regulations, she also must determine the date on
which the state established its mechanism. See 28 C.F.R.
§ 26.23(c)–(d); see also 28 U.S.C. § 2265(a)(1)(B). The
certification is effective as of the date the Attorney General
finds the state established its adequate mechanism; as this
date can be in the past, a certification decision may apply
retroactively. 28 U.S.C. § 2265(a)(2); 28 C.F.R. § 26.23(c).

The Final Regulations also set forth substantive criteria
that a state’s capital-counsel mechanism must meet to be
certified. Consistent with 28 U.S.C. § 2261(c)–(d), a state’s
mechanism must require a court of record to appoint counsel

4
The Attorney General first issued final regulations under Chapter 154
in 2008. See 73 Fed. Reg. 75,327 (Dec. 11, 2008). The district court
preliminarily enjoined the Attorney General from putting those regulations
into effect, concluding that notice of certain aspects of the final regulations
had been inadequate. Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice,
No. C 08-2649 CW, 2009 WL 185423, at *7–*8, *10 (N.D. Cal. Jan. 20,
2009). The Attorney General subsequently withdrew those regulations.
See 75 Fed. Reg. 71,353 (Nov. 23, 2010).
8 HABEAS CORPUS RES. CTR. V. USDOJ

to represent an indigent capital prisoner in state
postconviction proceedings unless the capital prisoner
competently rejected the offer of counsel or was not indeed
indigent. 28 C.F.R. § 26.22(a). If the court appoints counsel,
the attorney must not have represented the prisoner at trial,
unless the attorney and prisoner expressly agree otherwise.
See id. Under the Final Regulations, a state’s capital-counsel
mechanism must include competency and compensation
standards for counsel appointed pursuant to the mechanism.
The Final Regulations provide two competency benchmarks,
as well as a catchall provision for mechanisms that
“otherwise reasonably assure a level of proficiency
appropriate for State postconviction litigation in capital
cases.” Id. § 26.22(b)(2). Similarly, the Final Regulations
provide four compensation benchmarks, as well as a catchall
provision for mechanisms that are “otherwise reasonably
designed to ensure the availability for appointment of
counsel” satisfying the competency standards. Id.
§ 26.22(c)(2). A state’s mechanism must also authorize
payment of “the reasonable litigation expenses of appointed
counsel.” Id. § 26.22(d); accord 28 U.S.C. § 2265(a)(1)(A).

B. Procedural History

After the Attorney General issued the Final Regulations
in 2013, the Habeas Corpus Resource Center (“HCRC”) and
the Office of the Federal Public Defender for the District of
Arizona (“Arizona FPD”) (collectively, “Defender
Organizations”), commenced this action, in which they
sought to block the Final Regulations from taking effect.
Their complaint alleged four causes of action under the APA:
(1) the Attorney General had failed to give adequate notice
regarding certain aspects of the Final Regulations; (2) the
Attorney General had failed to respond to significant public
 HABEAS CORPUS RES. CTR. V. USDOJ 9

comments made about the Final Regulations during notice-
and-comment rulemaking; (3) the certification process
prescribed by the Final Regulations is arbitrary or capricious
because it is exempt from the APA’s notice-and-comment-
rulemaking requirements and does not allow for meaningful
public participation; and (4) the substantive criteria set forth
in the Final Regulations are arbitrary or capricious because
they do not provide sufficient competency standards and fail
to establish the factual bases on which the Attorney General
will make certification decisions.5

The Defender Organizations are governmental
organizations that counsel capital defendants and prisoners
and represent capital prisoners in federal habeas proceedings.6
According to declarations submitted by the Defender
Organizations to the district court, vagueness in the Final
Regulations prevents the Defender Organizations from
making reasonable predictions as to whether and how the
Attorney General will certify state capital-counsel
mechanisms and, thus, whether Chapter 154 may apply to
their clients’ federal habeas cases. The Defender
Organizations declared that, as a result, they must make

5
The Defender Organizations voluntarily withdrew a fifth cause of
action, which alleged that the Attorney General’s “involvement in the
rulemaking and certification process violates the Due Process Clause of
the United States Constitution.”
6
The HCRC is an office within the judicial branch of the State of
California that represents indigent capital prisoners in state postconviction,
federal habeas, and executive clemency proceedings. Similarly, the
Arizona FPD is a federal defender organization that represents capital
prisoners in federal habeas proceedings, provides legal assistance to
capital defendants and prisoners and their counsel, and trains attorneys
who represent capital prisoners in federal habeas proceedings.
10 HABEAS CORPUS RES. CTR. V. USDOJ

immediate strategic and resourcing decisions, such as
“whether to commit limited attorney time and financial
resources,” whether to “curtail the development of claims to
include in a federal [habeas] petition,” and how to advise
appellate and postconviction counsel to preserve capital
defendants’ and prisoners’ rights for their eventual federal
habeas cases.

The district court agreed that “confusion” caused by the
Final Regulations required the Defender Organizations to
“make urgent decisions regarding their litigation, resources,
and strategy.” The district court held that this “confusion”
was a legally cognizable injury sufficient to give the
Defender Organizations standing to challenge the Final
Regulations; it also ruled that the Defender Organizations’
challenges to the Final Regulations were ripe for review. The
district court issued a temporary restraining order preventing
the Attorney General from applying the Final Regulations.
The Defender Organizations then filed a motion for a
preliminary injunction, which the district court granted. The
Attorney General appealed the district court’s order granting
a preliminary injunction; while the appeal was pending, the
parties cross-moved for summary judgment. On summary
judgment, the district court sustained most of the Defender
Organizations’ challenges to the Final Regulations and found
the Final Regulations arbitrary or capricious in several
respects. The district court thus ordered that the Attorney
General refrain from putting the Final Regulations into effect
and held that the Attorney General “must remedy the defects
identified in this order in any future efforts to implement the
 HABEAS CORPUS RES. CTR. V. USDOJ 11

procedure prescribed by chapter 154.” The Attorney General
appeals this decision.7

II

Article III of the Constitution limits the jurisdiction of
federal courts to “Cases” and “Controversies.” U.S. Const.
art. III, § 2. The case-or-controversy requirement ensures that
“[f]ederal courts [do] not ‘decide questions that cannot affect
the rights of litigants in the case before them’ or give
‘opinion[s] advising what the law would be upon a
hypothetical state of facts.’” Chafin v. Chafin, 133 S. Ct.
1017, 1023 (2013) (third alteration in original) (quoting Lewis
v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). This
case involves two components of the Article III case-or-
controversy requirement: standing, which concerns who may
bring suit, and ripeness, which concerns when a litigant may
bring suit. As noted, the district court found that the Defender
Organizations had standing to bring this suit and that their
challenges to the Final Regulations were ripe for review. We
review the district court’s standing and ripeness
determinations de novo. See Colwell v. Dep’t of Health &
Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009).8

7
The district court’s final judgment superseded the preliminary
injunction. As a result, we previously granted the Attorney General’s
unopposed motion to dismiss the appeal of the district court’s order
granting the preliminary injunction as moot.
8
We note that the Supreme Court previously rejected, on jurisdictional
grounds, a challenge arising out of the prior version of Chapter 154.
Before the statute was amended in 2006, federal habeas courts—not the
Attorney General—determined whether a state’s capital-counsel
mechanism qualified the state to receive Chapter 154’s benefits. See supra
note 3. In Calderon v. Ashmus, 523 U.S. 740, 743 (1998), a class of
12 HABEAS CORPUS RES. CTR. V. USDOJ

A. Standing

At the core of the Article III case-or-controversy
requirement is the doctrine of standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). “It requires federal courts
to satisfy themselves that the plaintiff has alleged such a
personal stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction,” so that “there is
a real need to exercise the power of judicial review in order
to protect the interests of the complaining party.” Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009) (emphasis in
original) (internal quotation marks and citations omitted).

California capital prisoners brought suit under the Declaratory Judgment
Act, 28 U.S.C. § 2201(a), seeking “declaratory and injunctive relief to
resolve uncertainty over whether Chapter 154 applied” to them. Ashmus,
523 U.S. at 743. The Supreme Court found that this was not a justiciable
Article III case or controversy. Id. at 749. The Court noted that the suit
would not finally determine class members’ entitlement to habeas relief;
the class sought to resolve only a subsidiary legal issue, to wit, whether
Chapter 154 would apply when class members eventually filed federal
habeas petitions. Id. at 746–48. “Any risk associated with resolving [that]
question in habeas, rather than a pre-emptive suit, is no different from
risks associated with choices commonly faced by litigants.” Id. at 748.
The Court found that there was no concrete Article III case or controversy
even though class members allegedly were forced “to make an
unacceptable choice: filing a pro se [habeas] petition within 180 days in
order to ensure compliance with Chapter 154, which may fail to raise
substantial claims, or waiting until counsel is appointed, which may miss
the 180-day filing deadline if Chapter 154 applies.” Id. at 744, 746–48 &
n.3. We recognize that there are clear parallels between Ashmus and this
case. However, the Court focused on whether Ashmus presented “a
concrete controversy susceptible to conclusive judicial determination,”
which is a jurisdictional prerequisite for cases arising under the
Declaratory Judgment Act; the Court did not discuss the standing and
ripeness issues that are present in this case. Id. at 748–49. As a result,
Ashmus does not control our analysis.
 HABEAS CORPUS RES. CTR. V. USDOJ 13

Case law has “established that the irreducible constitutional
minimum of standing contains three elements”:

First, the plaintiff must have suffered an
“injury in fact”—an invasion of a legally
protected interest which is (a) concrete and
particularized; and (b) “actual or imminent,
not ‘conjectural’ or ‘hypothetical.’” Second,
there must be a causal connection between the
injury and the conduct complained of—the
injury has to be “fairly . . . trace[able] to the
challenged action of the defendant, and
not . . . th[e] result [of] the independent action
of some third party not before the court.”
Third, it must be “likely,” as opposed to
merely “speculative,” that the injury will be
“redressed by a favorable decision.”

Defenders of Wildlife, 504 U.S. at 560–61 (alterations in
original) (citations and footnote omitted). The Defender
Organizations “bear[] the burden of establishing these
elements.” Id. at 561. Because this is an appeal from an order
granting summary judgment, we accept as true the
declarations submitted by the Defender Organizations to the
district court. See id. We find, however, that these
declarations do not demonstrate that the Defender
Organizations have suffered a legally cognizable injury in
fact. As a result, the Defender Organizations did not have
standing to bring this suit.

1. Direct Injury

At the outset, we note that the Final Regulations prescribe
procedures and criteria to guide the Attorney General’s
14 HABEAS CORPUS RES. CTR. V. USDOJ

certification of state capital-counsel mechanisms; the Final
Regulations thus directly affect only the Attorney General
and, to some degree, states seeking certification under
Chapter 154. See 28 C.F.R. §§ 26.22–.23. “[W]hen the
plaintiff is not himself the object of the government action or
inaction he challenges, standing is not precluded, but it is
ordinarily ‘substantially more difficult’ to establish.”
Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v.
Wright, 468 U.S. 737, 758 (1984)). The Defender
Organizations “can demonstrate standing only if application
of the regulations by the Government will affect them in the
manner described above.” Summers, 555 U.S. at 494
(emphasis in original).

In their brief, the Defender Organizations set forth a
connection between themselves and the Final Regulations
which, they argue, establishes that they have suffered a
legally cognizable injury due to the issuance of the Final
Regulations. We do not disagree with the Defender
Organizations on several points. To start, we do not dispute
that, if Chapter 154 applies to a capital prisoner’s federal
habeas case, the prisoner may be adversely affected,
particularly because Chapter 154 shortens the statute of
limitations for filing a federal habeas petition from one year
to six months.9 See 28 U.S.C. § 2263(a). We also do not
doubt that Chapter 154’s shorter statute of limitations may
alter the Defender Organizations’ “strategic considerations in
the development and presentation of appellate and post-
conviction claims, the calculation of legal and financial
resources available to competently prepare and litigate cases,

9
We do not decide here whether this effect alone constitutes a legally
cognizable injury sufficient to confer standing on capital prisoners to
challenge the Final Regulations directly.
 HABEAS CORPUS RES. CTR. V. USDOJ 15

and the advice to counsel and clients who are subject [to] its
provisions.” (Alteration in original.) And we recognize that
the Final Regulations influence whether Chapter 154 will
apply to a capital prisoner’s federal habeas case, as they guide
the Attorney General’s certification process under Chapter
154. Further, a state must request and receive certification
from the Attorney General before it may seek to invoke
Chapter 154 in a capital prisoner’s federal habeas case. See
id. §§ 2261(a)(1)(A), 2265(b)(1).

The Defender Organizations base their claim of injury on
the role the Final Regulations play in the certification
process. According to the Defender Organizations, the Final
Regulations create “‘significant confusion’ insofar as [they]
provide[] (1) no basis for understanding what evidence or
measure of sufficiency the Attorney General will rely upon in
making . . . certification decisions, (2) no procedural
safeguards to those directly affected by certification or an
opportunity to meaningfully contribute to the certification
decision, and (3) no indication whether a certification
decision will be guided by the body of law interpreting
Chapter 154 prior to its amendment.” In light of this
“confusion,” the Defender Organizations assert that they and
their death-sentenced clients “are faced with two untenable
choices: either proceed as if Chapter 154 does not apply, and
thereby risk the forfeiture of potentially meritorious claims
against their convictions and death sentences if the time
limitations of Chapter 154 are later found to be applicable; or
attempt to comply with those stringent limitations, and
thereby forego full investigation and adequate factual and
16 HABEAS CORPUS RES. CTR. V. USDOJ

legal development of their constitutional claims.”10 The
Defender Organizations assert that the Final Regulations have
injured them because they must “assume the worst and
‘immediately make litigation, resource, and advisory
decisions’ in the dark,” such as “whether to commit limited
attorney time and financial resources, and, in some instances,
curtail the development of claims to include in a federal
petition, in order to comply with a six month, rather than one
year, statute of limitations.”

This is a long-winded explanation of what we think is a
relatively simple notion: The Defender Organizations contend
that they had standing to challenge the Final Regulations
because the Final Regulations are vague, and the Defender
Organizations must advise and assist their death-sentenced
clients without knowing, in advance, whether the Attorney
General will certify state capital-counsel mechanisms and
whether Chapter 154 may therefore apply to their clients’
federal habeas cases. However, we fail to see how the
Defender Organizations have suffered a concrete,
particularized11 injury sufficient to give them standing to
challenge the Final Regulations. The Defender Organizations’
bare uncertainty regarding the validity of the Final
Regulations and the applicability of Chapter 154 to their
clients’ federal habeas cases, absent “any concrete application
that threatens imminent harm to [their] interests,” cannot

10
This is very similar to the risk that the Supreme Court in Ashmus
found was insufficient to give rise to a concrete case or controversy under
the Declaratory Judgment Act. See supra note 8.
11
“Particularized” in this context “mean[s] that the injury must affect the
plaintiff in a personal and individual way.” Defenders of Wildlife,
504 U.S. at 560 n.1.
 HABEAS CORPUS RES. CTR. V. USDOJ 17

support standing. Summers, 555 U.S. at 494; see Lewis,
494 U.S. at 477–79; Nuclear Info. & Res. Serv. v. Nuclear
Regulatory Comm’n, 457 F.3d 941, 951–55 (9th Cir. 2006).

Nor is it enough that vagueness in the Final Regulations
may cause the Defender Organizations to “assume the worst”
and change their litigation strategy to file their clients’ federal
habeas petitions within the six-month statute-of-limitations
period prescribed by Chapter 154 instead of the general one-
year statute-of-limitations period. Cf. Calderon v. Ashmus,
523 U.S. 740, 748 (1998) (“Any risk associated with
resolving the question [whether Chapter 154 applies] in
habeas, rather than a pre-emptive suit, is no different from
risks associated with choices commonly faced by litigants.”).
Assisting and counseling clients in the face of legal
uncertainty is the role of lawyers,12 and, notably, the
Defender Organizations have not cited any authority
suggesting that lawyers suffer a legally cognizable injury in
fact when they take measures to protect their clients’ rights or
alter their litigation strategy amid legal uncertainty.13 Taken

12
We recognize that the Defender Organizations are in a different
position from typical attorneys: They are governmental organizations that
have a mandate to represent indigent clients; they cannot recoup the cost
of their representation and must make independent resourcing decisions
in light of legal uncertainty created by the Final Regulations. However, we
think that distinction is unimportant, and the Defender Organizations have
cited no authority that would support standing in light of that distinction.
13
The Defender Organizations emphasize that the district court ruled
that they had standing to challenge the Attorney General’s Chapter 154
regulations on three separate occasions: twice in this case and once in a
prior, related case. See also supra note 4. However, the decision we here
review provides little authoritative support for the rulings in that very
decision. Further, we cannot affirm the district court’s decision because
it made the same analytical mistake three times instead of just once. The
18 HABEAS CORPUS RES. CTR. V. USDOJ

to its logical conclusion, this theory of injury would permit
attorneys to challenge any governmental action or regulation
when doing so would make the scope of their clients’ rights
clearer and their strategies to vindicate those rights more
easily selected. We think the Defender Organizations would
be hard-pressed to find authority supporting such an
expansion of standing. Cf. Summers, 555 U.S. at 494 (opining
that allowing the plaintiff to challenge a “regulation in the
abstract . . . would fly in the face of Article III’s injury-in-fact
requirement”).

Indeed, a recent Supreme Court case undercuts the
Defender Organizations’ claim of direct injury. In Clapper v.
Amnesty International USA, 133 S. Ct. 1138, 1142 (2013),
lawyers, journalists, and others sought to enjoin the
enforcement of 50 U.S.C. § 1881a, a statute authorizing
governmental surveillance of communications with foreign
persons. The plaintiffs claimed that they had standing
because, among other reasons, they were injured by the need
to take measures to avoid surveillance when communicating
with their foreign contacts. Id. at 1150–51. The Supreme
Court rejected that argument, holding that the harm the

closest relevant cases the Defender Organizations cite are Paulsen v.
Daniels, 413 F.3d 999, 1005 (9th Cir. 2005), and Yesler Terrace
Community Council v. Cisneros, 37 F.3d 442, 445–47 (9th Cir. 1994). But
in those cases, the plaintiffs challenged regulations that directly affected
their rights, not the rights of any client of theirs. See Paulsen, 413 F.3d at
1005 (“The effect of the regulation was to deny [the petitioners] sentence
reduction.”); Yesler Terrace, 37 F.3d at 445–47 (“As a consequence of
HUD’s decision, [the plaintiffs], personally, now are subject to the threat
of eviction for alleged criminal activity without recourse to an informal
grievance hearing.”). These cases may support the standing of capital
prisoners—the Defender Organizations’ clients—to challenge the Final
Regulations, but they do not support the standing of the Defender
Organizations themselves.
 HABEAS CORPUS RES. CTR. V. USDOJ 19

plaintiffs sought to avoid was not “certainly impending,” as
the plaintiffs could only “speculate and make assumptions
about whether their communications with their foreign
contacts [would] be acquired under § 1881a.” Id. at 1148. The
plaintiffs could not “manufacture standing merely by
inflicting harm on themselves based on their fears of
hypothetical future harm that is not certainly impending,”
even though the measures they took were “a reasonable
reaction to a risk of harm.” Id. at 1151.

So too here, it may be eminently reasonable for the
Defender Organizations to take measures to prevent or
mitigate the harm their clients may face due to the possible
future application of Chapter 154 to their federal habeas
cases. But, the Defender Organizations face no “certainly
impending” harm resulting from the issuance and application
of the Final Regulations; even if their clients face a “certainly
impending” harm from “confusion” caused by the Final
Regulations, the Defender Organizations have given us no
reason to believe that they can parlay such harm into an
injury of their own. We therefore hold that the Defender
Organizations did not have standing to bring this suit based
on their theory of direct injury, as propounded in their
declarations and accepted by the district court.14

14
We also question whether the Defender Organizations’ claimed injury
is fairly traceable to the Final Regulations or redressable by setting aside
the Final Regulations. However, because we find that the Defender
Organizations have not suffered a legally cognizable injury in fact, we
need not, and do not, analyze the remaining prongs of the standing
inquiry.
20 HABEAS CORPUS RES. CTR. V. USDOJ

2. Third-Party Standing and Procedural Standing

In their brief, the Defender Organizations advance, for the
first time, two additional theories of standing. First, they
claim that, at a minimum, they had standing to challenge
procedural errors in the notice-and-comment-rulemaking
process that culminated in the issuance of the Final
Regulations, because they participated in that process.
Second, the Defender Organizations argue that they had third-
party standing to challenge the Final Regulations on behalf of
their death-sentenced clients. However, even under these
theories, the Defender Organizations must identify a concrete
interest of their own that is harmed by the Final Regulations;
they cannot circumvent the injury-in-fact requirement of
standing. See, e.g., Summers, 555 U.S. at 496 (procedural
standing); Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 623 n.3 (1989) (third-party standing). Because
we find that the Defender Organizations have not suffered a
legally cognizable injury as a result of the promulgation of
the Final Regulations, we need not address these theories
further.

B. Ripeness

Because we find that the Defender Organizations lacked
standing to challenge the substance of the Final Regulations,
we decide next whether to grant the Defender Organizations’
request for a limited remand to afford their death-sentenced
clients an opportunity to intervene. We decline to follow this
course of action, because the challenges to the substance of
the Final Regulations that the Defender Organizations raise—
 HABEAS CORPUS RES. CTR. V. USDOJ 21

and, by extension, those that their clients would raise if they
intervened in this case—are not yet ripe for review.15

Ripeness doctrine seeks “to prevent the courts . . . from
entangling themselves in abstract disagreements over
administrative policies, and also to protect [administrative]
agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete
way by the challenging parties.” Abbott Labs. v. Gardner,
387 U.S. 136, 148–49 (1967). In resolving ripeness questions,
courts examine the “fitness of the issues for judicial decision”
and the “hardship to the parties of withholding court
consideration.” Id. at 149.

Ripeness issues arise often when a litigant seeks “pre-
enforcement review” of an agency’s regulations—that is, the
litigant challenges regulations anticipating that an
administrative agency will, in the near future, apply those
regulations in a manner that will harm the litigant’s interests.
See, e.g., id. Courts permit pre-enforcement review of
regulations understanding that regulations can immediately
affect “primary conduct”: Regulated parties may have to
choose between complying with the regulations immediately
or facing penalties. See, e.g., Lujan v. Nat’l Wildlife Fed’n,

15
We could also conceivably scrutinize the ability of capital prisoners
to challenge the Final Regulations in terms of standing, because, “[w]hen
addressing the sufficiency of a showing of injury-in-fact grounded in
potential future harms, Article III standing and ripeness issues often ‘boil
down to the same question.’” Coons v. Lew, 762 F.3d 891, 897 (9th Cir.
2014) (amended opinion) (quoting Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2341 n.5 (2014)); see also Warth v. Seldin, 422 U.S. 490,
499 n.10 (1975). We think ripeness cases better describe the jurisdictional
constraints on capital prisoners who might seek preemptively to challenge
the Final Regulations.
22 HABEAS CORPUS RES. CTR. V. USDOJ

497 U.S. 871, 891–92 (1990). The Final Regulations are of a
different sort, because they do not act upon capital prisoners
but guide the Attorney General’s certification of state capital-
counsel mechanisms. See 28 C.F.R. §§ 26.22–.23. A capital
prisoner’s federal habeas rights may be affected indirectly, if
the sentencing state requests certification and if the Attorney
General finds that the state’s capital-counsel mechanism
comports with Chapter 154 and the Final Regulations. See
28 U.S.C. §§ 2261(a), 2265(a)–(b); 28 C.F.R. §§ 26.22–.23.

To determine whether the challenges to the substance of
the Final Regulations are ripe, we must consider:
“(1) whether delayed review would cause hardship to the
plaintiffs; (2) whether judicial intervention would
inappropriately interfere with further administrative action;
and (3) whether the courts would benefit from further factual
development of the issues presented.” Ohio Forestry Ass’n,
Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). We think this
case is analogous to Ohio Forestry and, as in that case,
consideration of these factors forecloses review here.

In Ohio Forestry, the Forest Service developed a plan,
mandated by statute, for managing the natural resources of
the Wayne National Forest. Id. at 728–29. The plan set
logging goals, selected areas of the forest suitable for logging,
and determined appropriate methods for timber harvesting.
Id. at 730. Promulgation of the plan made logging more likely
because a plan is a “logging precondition”—“in its absence
logging could not take place”—but the plan did not itself
authorize the cutting of any trees. Id. The Forest Service had
to take additional steps to permit logging, and its decisions
were subject to an administrative-appeals process and judicial
review. Id. The Sierra Club challenged the plan as wrongly
 HABEAS CORPUS RES. CTR. V. USDOJ 23

favoring logging; the Supreme Court ruled that the challenge
was not ripe for review. Id. at 732–37.

The Court noted first that the Forest Service’s plan did not
“command anyone to do anything or to refrain from doing
anything”; before the Forest Service could permit logging, it
had to “focus upon a particular site, propose a specific
harvesting method, prepare an environmental review, permit
the public an opportunity to be heard, and (if challenged)
justify the proposal in court.” Id. at 733–34. This gave the
Sierra Club “ample opportunity later to bring its legal
challenge at a time when harm is more imminent and more
certain, [which] challenge might also include a challenge to
the lawfulness of the present Plan.” Id. at 734. The same is
true here: The Final Regulations do not require anything of
capital prisoners—or indeed of their lawyers—and do not
immediately alter their federal habeas rights or procedures.
See 28 C.F.R. §§ 26.22–.23. Before a capital prisoner’s rights
may be affected, the sentencing state must request
certification by the Attorney General, the Attorney General
must (under the Final Regulations) allow for public comment
on the request, and the Attorney General must then certify
that the state’s capital-counsel mechanism is compliant with
Chapter 154. See 28 U.S.C. § 2265; 28 C.F.R. § 26.23. That
decision is (under Chapter 154) subject to de novo review in
the D.C. Circuit.16 28 U.S.C. § 2265(c). Delayed judicial
review of the Final Regulations is unlikely to cause hardship
to capital prisoners, even if they might change their strategy

16
The D.C. Circuit’s de novo review of certification decisions is
different from—and less deferential than—typical judicial review of
agency action, which is governed by the arbitrary-or-capricious standard.
Compare 28 U.S.C. § 2265(c)(3) (Chapter 154), with 5 U.S.C.
§ 706(2)(A) (APA).
24 HABEAS CORPUS RES. CTR. V. USDOJ

for pursuing postconviction relief in light of the promulgation
of the Final Regulations. Cf. Nat’l Park Hosp. Ass’n v. Dep’t
of Interior, 538 U.S. 803, 807–12 (2003) (finding unripe a
challenge to regulations exempting concession contracts from
the provisions of the Contract Disputes Act of 1978 (“CDA”)
even though “applicability vel non of the CDA is one of the
factors a concessioner takes into account when preparing its
bid for . . . concession contracts” and rejecting the argument
that “mere uncertainty as to the validity of a legal rule
constitutes a hardship for purposes of the ripeness analysis”).

As to the second Ohio Forestry factor, the Supreme Court
noted that judicial interference “could hinder agency efforts
to refine its policies . . . through application of the Plan in
practice.” 523 U.S. at 735–36. Similarly here, the Attorney
General must interpret and apply the Final Regulations when
evaluating specific state capital-counsel mechanisms, and
judicial review of the Final Regulations has prevented the
Attorney General from doing so. The Defender Organizations
(and, hence, their clients) essentially complain that the Final
Regulations do not make clear precisely how the Attorney
General will conduct the certification process, how the
Attorney General will make certification decisions, and how
the Attorney General will apply the catchall provision for
competency of counsel. These issues will sort themselves out
as the Attorney General applies the Final Regulations, makes
certification decisions, and justifies those decisions in the
D.C. Circuit, if indeed challenged. Cf. Toilet Goods Ass’n,
Inc. v. Gardner, 387 U.S. 158, 164–65 (1967).

Considering the third Ohio Forestry factor, we think that,
in the absence of a concrete application of the Final
Regulations, the challenges to the substance of the Final
Regulations represent “‘abstract disagreements over
 HABEAS CORPUS RES. CTR. V. USDOJ 25

administrative policies,’ that the ripeness doctrine seeks to
avoid.” 523 U.S. at 736 (quoting Abbott Labs., 387 U.S. at
148). Any deficiencies in the certification process and the
criteria prescribed by the Final Regulations will become
clearer as the Attorney General makes certification decisions
and as those decisions undergo de novo review in the D.C.
Circuit. See id. at 737 (“All this is to say that further factual
development would ‘significantly advance our ability to deal
with the legal issues presented’ and would ‘aid us in their
resolution.’” (quoting Duke Power Co. v. Carolina Envt’l
Study Grp., Inc., 438 U.S. 59, 82 (1978)); cf. Pearson v.
Shalala, 164 F.3d 650, 661 (D.C. Cir. 1999) (“That is not to
say that the agency was necessarily required to define the
term in its initial general regulation—or indeed that it is
obliged to issue a comprehensive definition all at once. The
agency is entitled to proceed case by case . . . .”). We find the
challenges to the substance of the Final Regulations not ripe
for review at this time. We therefore decline to remand this
case to the district court to allow capital prisoners an
opportunity to intervene and interpose these challenges.17

17
The Defender Organizations renew their argument that the Attorney
General failed to give adequate notice that certification decisions will be
treated as orders, not rules, and will not be subject to the dictates of
notice-and-comment rulemaking under the APA. Ordinarily, we would
agree that such a procedural claim is ripe for review. See Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 976–78 (9th Cir.
2003); Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 216 (D.C. Cir.
2007). We question whether the same ripeness conclusion holds here: The
Defender Organizations essentially complain that they did not receive
notice that the certification process prescribed by the Final Regulations
will not meet certain procedural requirements, but the Attorney General
has not yet endeavored to begin the certification process. The Attorney
General may very well afford the Defender Organizations all the
procedural protections they seek. Cf. Colwell, 558 F.3d at 1124–28. In any
event, we need not decide this issue, because the Defender Organizations
26 HABEAS CORPUS RES. CTR. V. USDOJ

III

For these reasons, we vacate the decision of the district
court and remand with instructions to dismiss this case for
lack of jurisdiction. Each party will bear its own costs on
appeal.

VACATED and REMANDED with instructions.

did not have standing to bring that claim. See supra. The Defender
Organizations do not appear to request that we remand this case to the
district court to allow capital prisoners to intervene regarding the
inadequate-notice claim—perhaps because the district court found in favor
of the Attorney General on that claim—and we decline to do so.