On December 4, 2013, United States District Court Judge Claudia Wilken of the Northern District of California issued a preliminary injunction
regarding the rule entitled, “Certification Process for State Capital Counsel Systems
,” published at 78 Fed. Reg. 58,160 (Sept. 23, 2013). This Final Rule was promulgated by the Department of Justice to provide a process for determining whether a state has established a post-conviction system for death row inmates that entitles the state to the benefits of Chapter 154 of Title 28 of the United States Code in federal habeas corpus proceedings. Judge Wilken found: (1) the Plaintiffs (Habeas Corpus Resource Center and the Federal Defender for the District of Arizona) are likely to succeed on their claim that the Attorney General failed to provide adequate notice under the APA because he stated, for the first time in the Final Rule, that the certification decisions are not subject to the rule making provisions of the APA; (2) the Plaintiffs have standing to raise substantive challenges to the Final Rule; (3) the Plaintiffs are likely to succeed in demonstrating that the certification process is arbitrary and capricious in one or more of the multiple ways they posit, i.e., the Final Rule - (a) provides no substantive criteria as to how a state may satisfy the requirements of Chapter 154, (b) departs from Chapter 154’s requirement that a state take affirmative steps to prove its eligibility, (c) does not require a state to show that it has actually complied with the terms of its submitted mechanism, (d) does not address the effect of judicial interpretation of Chapter 154, and (e) fails to address the nature and effect of ex parte communication between the United States Attorney General and state officials; and (4) the Plaintiffs have demonstrated a likelihood of irreparable harm sufficient to warrant granting a preliminary injunction.