regulations implementing a certification process under chapter one fifty four of title twenty eight and chapter one fifty four establishes a statutory scheme that allows states that satisfy various criteria to want to be sure to start with there now the plaintiffs are to public law offices there represent state capitol prisoners in haiti as proceedings the crux of their claim of injury is that they face uncertainty about the legal landscape going forward about whether chapter one fifty four special rules may apply to particular clients in the future there are several difficulties with this legal uncertainty for an attorney i don't think that the result would be different it certainly would be a different case than the one we have here that was not how this case proceeded with that with that standing issue now i think we would still have certainly a ripeness problem would remain absolutely but i think that the standing problem would still be one that the court would have to confront because for any given capital defendant there would be a question of course of whether depending where that person is has been convicted if they've already been convicted or perhaps that they  stand for presumably there's at least one potential claimant who would have standing there is certainly no doubt that there will be individuals with standing there is the government's position in this case to be very clear is not that these challenges cannot be brought it is that they can't be brought by the attorneys for these individuals and that they can't be brought at this time in this way that th case is not ripe so we think that a proper challenge would for example be those capital inmates or others there would be also others withstanding potentially challenging a certification decision so that is the route that we see all of the challenges that are being you know brought forward and that issue in our people today properly being before a court would be in the d c circuit as a as a challenge to a certification decision is your view that the d c circuit is exclusive these cases well what the what the congress said in writing chapter one fifty four is that the d c circuit is the exclusive forum for challenging certification  so you have a different view no absolutely no no no i just mean to say it's not merely my view but it was congress's view and so these challenges can all be your lying and somes passages  the it is exclusive that because the legislative history confirms that what congress was doing in two thousand and six so let me just step back and provide a little bit of context chapter one fifty four was created in one thousand nine hundred six as part of at  initially as passed then it put all of the decision making about the application of chapter one fifty four in the hands of federal courts regional federal habeas courts would decide whether states had established the relevant  mechanism and whether she should be applying and given whether the timelines of an provisions of section one fifty four should apply in a given case in two thousand and six congress revisited this and changed it and took the first part of the decision making and put it in the hands of the attorney general the congress asked the attorney general directed the attorney general to make these certification decisions about whether states had established the necessary mechanism and it left the second part of the decision making about whether a particular hippias petitioner had been a veiled that are given the opportunity to benefit from that mechanism it left that part in the hands of federal habeas courts but it moved the first part to the attorney general and then it also made clear that it wanted that decision making by the attorney general to be reviewed by the d c circuit because the d c circuit is not a circuit that hears end it's only challenges to the certification decisions that go to the d c circuit in a given petitioners case they would still proceed in their regional federal hate us court but these challenges are best understood as challenges to future certification decisions and that's the reason why we think that these challenges are not only on the right but that congress would have understood that these would be on right up until there is a certification decision and therefore they are also to float to the d c circuit and to be presented as part of that challenge that is to say a challenge to a future certification decision and i'm happy to walk through why with regard to each of the substantive challenges that we're talking about today we face a ripeness concern but i certainly don't want to suggest that there isn't a grave standing issue that that this case presents that certainly also the case imminent injury we only have speculation about uncertainty and frankly it's really two parts it's that legal uncertainty itself for lawyers and that's actually the nature of what it is to be a lawyer as allowing a challenge that's on ripe to proceed and we the supreme court has told us that he says like national park hospitality they acknowledge that if if uncertainty were enough the courts would be inundated with requests for clarification  fast track system if the serve occasion is maybe this state that immediately collapses the period in which the prisoner can seek federal relief from one year to six months and that there's a few points that i would make in our sponsor that that is why it's so important that these challenges can be brought as challenges once a certification decision is made but as the supreme court has told us in cases like  even where there is a perfectly reasonable concern or uncertainty about what the future may hold and taking steps today in the present no matter how reasonable that is it can't convert a speculative injury into a concrete one and so what your honor is describing we don't dispute that it may be reasonable to take steps in anticipation of what the future may hold legally but our point is simply that that doesn't  change the highly speculative nature of those concerns and so we can't manufacture as clapper tells us a present and concrete injury and imminent injury well i think the authorities are quality of the work we do for our club right but the that process that's exactly what clapper tells us doesn't create a concrete legal injur that you know meets the requirements for standing you know to step back i would also note that that kind of uncertainty isn't traceable nor addressable through the final rule that's  that's right you know they do they essentially seek to nullify the scheme that congress has created because there would be no perfect rule that the attorney general could write that would satisfy their claim of injury  there's no rule that could be devised that would possibly address the legal uncertainty that they assert because that legal uncertainty comes from not knowing whether a given state would seek certification and what kind of a system that state might have in place and we have california which is not applied for certification in arizona which is that's correct what's the status of the regulations of this point is it your view with their final or not well the rule is final but it's because it was enjoined no issues well i'd be most interested obviously to address those that are of greatest interest to the panel i think that you know for each of these it becomes clear that you know if i had to summarize at bottom what the plaintiffs are looking for it seems that time and time again they are anticipating speculating about what the world might look like down the road alter and one that i'm concerned with and maybe you c standards that are set out in section twenty six point two two in the first part which are are quite specific before we get to the provisions iran is describing on those those first two are based on existing federal law  those are benchmarks and in fact they are described in the provision your honor is describing they are described as benchmark criteria that inform how that last provisional be understood the rule states that they will serve as a point of reference in judging the adequacy of other council qualifications standards that states may establish and then a mechanism that doesn't incorporate the benchmark standards will receive obviously close examination by the attorney general with particular attention paid to standards of experience knowledge skills training education or combinations of the there are a number of reasons that this was included that this provision was included we know that congress in an acting chapter one of fifty four  very keen to give states wide latitude in how they would go about establishing these criteria and there was no desire on the part of the attorney general in promulgating this rule to curtail that ability of states to take different approaches now and there is nothing in administrative law that would require the attorney general to have done so this is a perfectly permissible approach that explains at how the attorney general in the future will evaluate this but those decisions will have to be fully explained in certification decisions so this takes us back to the ripeness point that once we have a was appropriate but these are appropriate for the purpose for which they are describe it appropriate for capital defense and so we know from the first two sections for example the much some detail about what the attorney general thinks is appropriate and the rule explains that that standards that don't meet the first two sets of criteria would presumptively be inadequate so five years of bar experience with three years relevant experience in post conviction litigation for example is presumptively adequate the requirements meeting the innocence protection acts requirements is another very specific set of standards that's laid out in section twenty six point two two so the rule actually does at some length provide detail about what would be appropriate we know that things that fall under that line we would anticipate presumptively adequate and so that third provision that opens the door to assessing states specific circumstances and states specific criteria you know the discussion that states have to develop their own criteria is going to be viewed through the same lens as these other criteria and so we do have a sense of what appropriateness looks like but the bottom line here really is again this is not something to be decided in a vacuum the attorney general took a very considered and careful approach here and saying look i'm going to lay out a variety of criteria that i think are important and relevant when a certification decision is issued in the future it will have to be justified and it will be subjected to novo review in the d c circuit at that time there will be an opportunity for people like you know the individuals for example that plaintiffs represent to challenge that something was deemed appropriate when it should not have been and it will be incumbent upon the attorney general in his or her decision to have adequately explained why that decision was appropriate and this is a really a crucial aspect of administrative law that courts don't preemptively come in and suggest that you know a agency needed to go and arizona federal defenders of the panel has noted arizona has already applied for certification under chapter one fifty four and what we seek at bottom through this litigation is the ability to meaningfully engage in the certification process but the final rule prevents us from doing so on numerous counts that the district court found warranted enjoining the final rule namely first that will itself requires nothing more than  application of chapter one fifty four and we who you're referring to our clients have to understand where your claim is our clients are two entities government entities one in the state of california the other arizona federal defenders various lawyers and different ball versus excuse me their lawyers and law offices a ticket they are not just like they are public part of public entities state into my car i've got standing to sue him but i don't see where my lawyer would have standing to sue him or the american bar association would have standing to sue well we don't dispute that this is the organ the entities have to show a concrete entry but as the district court found and she made findings of fact on this point and i would refer the court to the government's accepted record at pages forty five to forty seven where the court referenced the and the lawrence declarations in which she identified numerous immediate decisions that these entities will have to make regarding that occasion resources warrant you're really asking for an advisory opinion no your honor we because of the nature of the problems with the final rule the effect of an application arizona's application in of itself results in a defacto one hundred eighty day deadline for our clients we have no ability to ascertain whether or not the state of california the state of arizona will be certified but we have an obligation statutory and ethical duty to dozens hundreds of of clients that are at jeopardy of having their rights denied by default in claims and so we have to proceed as if the rule is in fact in effect and that's the result and that's part of the problem with that with the final rule that when the states cements a question writing that need only say we request that we be certified and then we have no opportunity to meaningful engage in a notice and comment period back and forth with the attorney general's office that offers any insight as to what the attorney general's thought process is how he she will go about making that determination why can't you go to  circuit when the certification order is me that you don't agree with what we don't dispute that we can eventually why doesn't that take care of it well the problem with that is that there are factual determination that are going to be made and the record will be set based in part on for instance x part of communications that are apparently occurring during the course of this process and the government's position is well you don't have to be privy to those communications we need to be able to show for instance that the state of arizona the state of california are not complying with whatever mechanisms they might suggest in fact comply with chapter one fifty four but if you had a client who was threatened by this sort of the commission and he brought in a waltz with a district court you could take discovery and find what you need using right in that particular place we have then you have a record which the district court could determine whether the certification is proper and then you would have and so if for instance there is systematic a systematic breakdown that occurs in the state of california in arizona as this court explained and ash mess there it makes zero sense to go ahead in some sort of piecemeal litigation fashion where in each and every case we're going to have a district court say that oh well california still for example is providing for counsel one and a half years after a direct appeal has concluded if there's a systematic breakdown it just makes little sense sort of piecemeal litigation is the way to go that we would have the opportunity to rely upon other cases as precedent but what congress intended in chapter one fifty four was to say look this is a big care and a big stick that is going to that that  is being dangled here one if in fact states are going to go ahead and be granted what is an extremely expedited federal hate us process we want to ensure that competent counsel is in fact being being appointed what we have here is a system that allows the state to apply without any real showing that in fact there is a mechanism in place that provides for competent post conviction counsel and i think that gets to your point about the catch all provision which is exceedingly vague it allows states to be certified under chapter one fifty four as long as there is a reasonable assurance that they provide for a competent or proficient state post conviction counsel we are at a loss as to what it is that that actually means and your honor i couldn't congress with just a short commons whole process one or one fifty four by the attorney general sort of  the procedures as he sees best period i don't think that would but it would depend on what the attorney general how the attorney general construed that delegation of authority here the attorney general construe that as requiring that he at the time set out these procedures what we have here now is a provision that despite the government's representations in of itself can constitute a freestanding ground for certification and so that provision requires definitional content we cite to pearson where the d c circuit explain that it is not enough to simply throw out an exceedingly vague standard there it was significant scientific agreement and the purpose of the a p a is to put parties on notice to extol that they can engage in the decision making process and explain and anticipate what it is that the agency is going to do or didn't do the d o j conduct hearings along on along the way here or not i i don't i'm not sure that there was actually hearings there was a notice and comment period that occurred where all during the rulemaking process there were opportunities for you for your client to participate where they're not yes and and we have challenges on that front as well your honor are you barred from participating in the in other words that you specifically but is the arizona federal defender barred from participating in the certification procedure well that's it that's a good question one that has not risen yet because we aren't quite at that point well there is a pending motion or are there per there's a pending application for certification which we heard from the do you is sort of in suspense because of this case but once this case is resolved one way or another that person certification proceeding will continue are you bored from participating in the i don't know you meaning the arizona defender because they obviously there's a connection there i think at that point we would not be we would not be barred necessarily but what i do know is that prior to the final bill taking effect one of the problems with us filing sort of preemptive actions to protect our client's rights is that they the arizona federal defenders were precluded from taking on those cases in federal court to file those petitions early to ensure that the threat of this big final rule would not actually be injurious  our clients and that continues to be a problem today we judge a judge or a scam and you mentioned the opportunity for notice and comment one of the problems with this rule and we didn't find out until the final issued is that apparently the attorney general is going to treat certification as orders rather than rules that comes with a whole host of problems and that it deprives us of deprives us our clients of considerable opportunity to engage in the decision making the decision making process going to peel the orders the carrot you excuse me you have a relief from orders that you think should not have been issued not like you're left with a remedy but we have a right to engage in a back and forth and under the a p a during the certification period well i mean you said there was notice and comment and if these sort of occasions are treated as orders of the issue an order you don't like you have remedies we have after the fact remedies show for example we  have we have to but that means that for now what we have to do is we still have to go in not knowing what the process is going to look like we have to file early we have to get our clients and to protect their one hundred eighty day deadline and make sure that they they do not t it was done with that exactly what's wrong with that well what's wrong with it is that is that the a p a requires that there be definitional content is we should be able to engage and make informed decisions as to how and why the attorney general is going to make these decisions again appears in the court citing justice stewart's decision famous decision regarding up then he said look it shouldn't have to be i know it when i see it instead parties should be made made aware we shouldn't have to fly fly blind here allocate resources fundamentally adjust the way each entity is deciding which cases to take on which clients they cannot take on potentially defaulting claims because they are in a rush to file for certain clients have to make budgetary considerations for the upcoming year have to advise attorneys who they don't represent but are statutory obligated to engage in advisory services all of these things are going to result from an ill defined final rule that really puts nobody on notice as to how these decisions are going to be made and i don't think we are asking for much here are asking simply to for a meaningful opportunity to engage in the process and what the state seems to be saying is oh well you can remedy all this later sorry the government seems to be saying if you can remedy all of this later on but you can remedy the fact that there is a de facto one hundred eighty day deadline that occurs just by virtue of the threat of the final rule applying for certification under the final rule itself that means many many individuals may have defaulted claims filing within a six month period needlessly and that has serious implications it means that for them they have been denied the opportunity to engage in thorough investigation with regard to post conviction claims and how many inmates in arizona for example would be affected what we have  there are sixty six individuals this is set out in the based ration there are sixty six individuals presently pending and undirected peel and state post conviction all of whom are at risk especially given the retroactive application of this rule we it's our understanding that the rule being applied retroactive it means that every day somebody is deadline could be missed today tomorrow and the next day depending on where they are in the process and we have to make immediate  life and death decisions on behalf of our clients that should not have to be made if the attorney general complied with the a p a and afforded us a meaningful opportunity to understand to engage in the process so that we can make better decisions going forward more informed decisions going forward and i think that's exactly what's at the heart of the a p a and what it's designed to affect period required well yes and addition provide definitional content for the catch all provision we have not challenge the first two benchmarks it's the catch all provision that we really do focus in on it and state that we need some clarification on that score and as you say judge by we need meaningful opportunity to engage in the process we need to have notice and comment period we need  to be privy to what it is that the state is relying upon we cannot have x part of communications i would know even in the course of this litigation we are continually learning more information about what's going on for the first time in briefing we have been told that apparently the arizona application is no longer being processed that's the first time that we've learned about that we've also been told in briefing for the first time that the attorney general will issue some sort of explanation with regard certification decisions and contrast with the denials of certification by which the attorney general's position is there needs to be no explanation and that in of itself is a problem is when there are there's no indication what the basis is for the denial of a certification we again are such are sort of traveling blind to advise our clients trying to advise other attorneys who have their clients as to what they should do should they file early and risk defaulting claims for their clients because they are not adequately research they are not adequately investigated because there may be they may be subject to a one hundred eighty day deadline and that deadline and this is really important th y there are serious restrictions on amending a b s petition as well so that means when you file you're stuck with what you've got for the most part and so it should not be the case that dozens hundreds of death row inmates and needlessly hav petitions because they are operating in fear that they will although they may not be subject to the one hundred eighty day deadline although if the final bill takes a fact the application itself results in this one hundred eighty day deadline  being one that we have to embrace out of an abundance of caution and it would be a year other wars would have no excuse me it would be one year otherwise that would have no that's right that's right but so are there some people that would be  d because it took longer than a year there under showed the way that the will works our understanding is with regard to retroactivity is that some people may actually have deadlines that are just a few days from now because they the mechanism that was in place at the time that they were concluded their direct appeals is one that arizona or california make may assert should be certified days and so we have to then rush to get that person into federal court hoping perhaps that we can assure equitable tolling or some other means by which they will be relieved of the really dire effects of th six month statute of limitation thank you counsel your time has expired before you leave the room and before we submit let me ask both sides is this the kind of case that would be amenable to some sort of mediation i don't see how that could be the case for the government this is a case in which we have a statutory scheme that directs the attorney general to put regulations into effect to implement the certification procedure the attorney general has done that and that's been enjoined from and reason rather  i'm raising the question is you heard from the other side about what their concerns are and it's miss deadlines obviously if that could be accommodated in some way maybe well if i may your honor i know i'm out of time but i do want to make some factual corrections  or dispute some of the factual presentations of opposing counsel and that goes to one of them with regard to retroactivity i'll be very brief i mean i would defer that i refer the court to our briefs but you know the retroactivity point that they make is not one that the government agrees about how we expect chapter one fifty four to play out if that's a function of course the retroactivity prom they're identifying is a problem that would stem from the statute not from the final rule but it's also not how the government would expect the statutory scheme to be implemented by federal courts in light of prior presidents including this court's precedent in the one thousand nine hundred seven calderon case there's actually uniform precedent on this point and so we don't think that that the only