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 certification from the Attorney General
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, 122 S.Ct. 1764, 152 L.Ed.2d 888 (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, 107 S.Ct. 1990, 95 L.Ed.2d 539 (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.
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 waived counsel, retained his own counsel, or was found not indigent. Id. § 2261(b)(2).
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 notice-and-comment rulemaking, the Attorney General finalized such regulations in September 2013 ("Final Regulations"). See 78 Fed. Reg. 58,160 (Sept. 23, 2013).
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 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
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 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.
The Defender Organizations are governmental organizations that counsel capital defendants and prisoners and represent capital prisoners in federal habeas proceedings.
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
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, ___ U.S. ___, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (third alteration in original) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (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).
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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (emphasis in original) (internal quotation marks and citations omitted). Case law has "established that the irreducible constitutional minimum of standing contains three elements":
Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (alterations in original) (citations and footnote omitted). The Defender Organizations "bear[] the burden of establishing these elements." Id. at 561, 112 S.Ct. 2130. 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.
At the outset, we note that the Final Regulations prescribe procedures and criteria to guide the Attorney General's 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, 112 S.Ct. 2130 (quoting Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (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, 129 S.Ct. 1142 (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
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 legal development of their constitutional claims."
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.
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, 118 S.Ct. 1694, 140 L.Ed.2d 970 (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,
Indeed, a recent Supreme Court case undercuts the Defender Organizations' claim of direct injury. In Clapper v. Amnesty International USA, ___ U.S. ___, 133 S.Ct. 1138, 1142, 185 L.Ed.2d 264 (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 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.
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, 129 S.Ct. 1142 (procedural standing); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 105 L.Ed.2d 528 (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.
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—and, by extension, those that their clients would raise if they intervened in this case—are not yet ripe for review.
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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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, 87 S.Ct. 1507.
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, 497 U.S. 871, 891-92, 110 S.Ct. 3177, 111 L.Ed.2d 695 (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, 118 S.Ct. 1665, 140 L.Ed.2d 921 (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
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, 118 S.Ct. 1665. 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, 118 S.Ct. 1665. 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.
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, 118 S.Ct. 1665. 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
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 administrative policies,' that the ripeness doctrine seeks to avoid." 523 U.S. at 736, 118 S.Ct. 1665 (quoting Abbott Labs., 387 U.S. at 148, 87 S.Ct. 1507). 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, 118 S.Ct. 1665 ("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, 98 S.Ct. 2620, 57 L.Ed.2d 595 (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.
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.
