United States District Court, District of Columbia
B. WALTON United States District Judge
plaintiffs, Texas Defender Service (“TDS”), John
Allen Rubio, Gabriel Paul Hall, and Brian Edward Davis (the
“individual plaintiffs”) (collectively, the
“plaintiffs”), bring this civil action under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701-06 (2018), against the defendants, the
United States Department of Justice (the
“Department”) and William Barr,  in his official
capacity as the Attorney General of the United States
(collectively, the “defendants”), seeking
“injunctive and other relief to set aside the Final
Rule regarding Certification Process for State Capital
Counsel, 78 Fed. Reg. 58, 160 (Sept. 23, 2013)”
(codified at 28 C.F.R. pt. 26) (the “2013
Regulations”). Complaint and Request for Injunctive
Relief (“Compl.”) ¶¶ 1, 3. Currently
pending before the Court is the Defendants' Motion to
Dismiss (“Defs.' Mot.”). After careful
consideration of the parties' submissions, the Court
concludes for the reasons set forth below that it must grant
the defendants' motion to dismiss.
Chapter 154 of the AEDPA and the 2013 Regulations
Sixth Amendment to the United States Constitution states 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. Additionally,
federal law guarantees indigent state and federal capital
prisoners the right to counsel in federal habeas proceedings.
18 U.S.C. § 3599(a)(2) (2018). However, the Constitution
does not guarantee a similar right to counsel in state
postconviction proceedings. See Murray v.
Giarratano, 492 U.S. 1, 10 (1989) (holding that neither
the Eighth Amendment nor the Due Process Clause guarantees
indigent capital prisoners the right to counsel in state
postconviction proceedings); Pennsylvania v. Finley,
481 U.S. 551, 552 (1987) (noting that “States have no
obligation to provide” postconviction relief,
“and when they do, the fundamental fairness mandated by
the Due Process Clause does not require that the State supply
a lawyer as well”).
attempt to address this limitation on representation for
capital prisoners in state postconviction proceedings,
Congress passed Chapter 154, Title 28 of the United States
Code (“Chapter 154”), 28 U.S.C. §§
2261-66 (2018), as part of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which
“provides procedural benefits to states that
voluntarily appoint counsel to represent indigent capital
prisoners during state postconviction proceedings.”
Habeas Corpus Res. Ctr. v. U.S. Dep't of
Justice, 816 F.3d 1241, 1244 (9th Cir. 2016) (citing 28
U.S.C. §§ 2261-66), cert. denied, 137
S.Ct. 1338 (2017).
If Chapter 154 applies in a federal habeas case, then, among
other things, (1) the capital prisoner can secure an
automatic stay from execution while his postconviction and
federal habeas proceedings are ongoing; (2) the statute of
limitations for filing a federal habeas petition is shortened
from one year to six month from the date of final judgment of
the state courts on direct appeal; and (3) the federal courts
must give priority status to the habeas case and resolve it
within the time periods specified by Chapter 154.
Id. at 1245 (citations omitted). These procedural
benefits of Chapter 154 are available only if “(1) the
Attorney General of the United States certifies that a State
has established a mechanism for providing counsel in
postconviction proceedings as provided in section 2265; and
(2) counsel was appointed pursuant to that mechanism,
petitioner validly waived counsel, or petitioner was found
not to be indigent.” 28 U.S.C. § 2261(b). The
Attorney General's certification decisions are subject to
de novo review by the District of Columbia Circuit.
Id. § 2265(c)(2), (3).
154 also requires the Attorney General to “promulgate
regulations to implement the certification procedure, ”
id. § 2265(b), which the Attorney General did
on September 23, 2013, see Certification Process for
State Capital Counsel Systems, Fed. Reg. 58, 160 (Sept. 23,
2013) (codified at 28 C.F.R. pt. 26).
The  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  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. If
the Attorney General certifies that a state's
capital-counsel mechanism conforms to the requirements of
Chapter 154 and the  Regulations, she [or he] must also
determine the date on which the state established its
mechanism. The certification is effective as to the date the
Attorney General finds the state established its adequate
mechanism; as this date can be in the past, a certification
decision may be applied retroactively.
The  Regulations also set forth the substantive
criteria that a state's capital-counsel mechanism must 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 a capital prisoner
competently rejected the offer of counsel or was not indeed
indigent. If the court appoints counsel, the attorney must
not have represented the prisoner at trial, unless the
attorney and prisoner expressly agree otherwise. Under the
 Regulations, a state's capital-counsel mechanisms
must include competency and compensation standards for
counsel appointed pursuant to the mechanism. The 
Regulations provide two competency benchmarks, as well as a
catchall provision for mechanism that otherwise reasonably
assure a level of proficiency appropriate for State
postconviction litigation in capital cases. Similarly, the
 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. A
state's mechanism must also authorize payment of the
reasonable litigation expenses of appointed counsel.
Habeas Corpus Res. Ctr., 816 F.3d at 1245-46
(citations and internal quotation marks omitted).
to the plaintiffs, on March 11, 2013, the State of Texas
(“Texas”) submitted a certification request to
the United States Attorney General. Compl. ¶ 38.
“On November 16, 2017, the Department . . . published a
notice in the Federal Register advising the public of
Texas's certification request and initiating a sixty-day
public comment period.” Id. ¶ 39.
“On December 18, 2017, Texas submitted an amended
application for certification in the form of a short
supplemental letter to the Department . . . advising it of
changes that had been made to [Texas's] system for
appointing postconviction counsel since [the] initial
request” for certification in 2013. Id.
“On December 27, 2017, the Department . . . published a
notice advising the public of Texas's supplemental letter
and extending the comment period to February 26, 2018.”
“is a non-profit organization established in 1995 by
experienced Texas death penalty attorneys, ”
id. ¶ 10, and on February 23, 2018, TDS and the
individual plaintiffs filed their Complaint with this Court,
challenging the 2013 Regulations, see id. at 1.
“TDS works to improve the quality of representation
afforded to those facing a death sentence and to expose and
eradicate the systematic flaws plaguing the Texas death
penalty” system and “represent[s] death-sentenced
Texas prisoners in postconviction proceedings in federal
court.” Id. As of the date of the filing of
Complaint, “TDS [was] participating in the public
comment process and [was] [ ] preparing its substantive
comment for submission.” Id. ¶ 40. The
individual plaintiffs are capital prisoners in Texas, all of
whom are “currently in simultaneous direct appeal and
state postconviction proceedings.” See id.
26, 2018, the defendants filed their motion to dismiss the
plaintiffs' Complaint, see Defs.' Mot. at 1,
which is the subject of this Memorandum Opinion.
STANDARDS OF REVIEW
Rule 12(b)(1) Motion to Dismiss
[district] courts are courts of limited jurisdiction, ”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994), and “[a] motion for dismissal under
[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a
threshold challenge to the [C]ourt's jurisdiction,
'” Morrow v. United States, 723 F.Supp.2d
71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the
Court is obligated to dismiss a claim if it “lack[s] .
. . subject-matter jurisdiction.” Fed.R.Civ.P.
12(b)(1). Because “[i]t is to be presumed that a cause
lies outside [a federal court's] limited jurisdiction,
” Kokkonen, 511 U.S. at 377, the plaintiff
bears the burden of establishing by a preponderance of the
evidence that the Court has subject-matter jurisdiction,
see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
deciding a motion to dismiss for lack of subject-matter
jurisdiction, the Court “need not limit itself to the
allegations of the complaint.” Grand Lodge of the
Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9,
14 (D.D.C. 2001). Rather, the “[C]ourt may consider
such materials outside the pleadings as it deems appropriate
to resolve the questions [of] whether it has jurisdiction
[over] the case.” Scolaro v. D.C. Bd. of Elections
& Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000);
see Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d
1249, 1253 (D.C. Cir. 2005). Additionally, the Court must
“assume the truth of all material factual allegations
in the complaint and ‘construe the complaint liberally,
granting [the] plaintiff the benefit of all inferences that
can be derived from the facts alleged.'” Am.
Nat'l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d
1137, 1139 (D.C. Cir. 2011) (quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However,