U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:19-cv-00660-MKB-SMG

Federal Defenders of New York, Inc. v. Federal Bureau Date Filed: 02/04/2019

of Prisons et al

Jury Demand: None

Assigned to: Judge Margo K. Brodie

Nature of Suit: 899 Other Statutes:

Referred to: Magistrate Judge Steven M. Gold

Administrative Procedures

Cause: 05:702 Administrative Procedure Act

Act/Review or Appeal of Agency

Decision

Jurisdiction: U.S. Government

Defendant

Mediator Loretta E. Lynch

Plaintiff
Federal Defenders of New York, Inc. on behalf of itself and its clients detained at the Metropolitan Detention Center-Brooklyn

represented by Benjamin White Kaplan Hecker & Fink LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0883 Fax: 212-564-0883 Email: bwhite@kaplanhecker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek Wikstrom Kaplan Hecker & Fink LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0883 Fax: 212-564-0883 Email: dwikstrom@kaplanhecker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jenna Minicucci Dabbs Kaplan Hecker & Fink LLP 350 Fifth Avenue Suite 7110

V. Defendant Federal Bureau of Prisons

New York, NY 10118 212-763-0889 Email: jdabbs@kaplanhecker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Adam Matz Kaplan Hecker & Fink LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0889 Email: jmatz@kaplanhecker.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew J. Craig Kaplan Hecker & Fink LLP 350 5th Ave, Ste 7110 New York, NY 10118 212-763-0883 Fax: 212-564-0883 Email: mcraig@kaplanhecker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Hecker Kaplan Hecker & Fink LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0883 Fax: 212-546-0883 Email: shecker@kaplanhecker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Seth D. Eichenholtz United States Attorneys Office 271 Cadman Plaza East Brooklyn, NY 11201

Defendant Warden Herman Quay in his official capacity
Amicus State Of New York

718-254-7036 Fax: 718-254-6081 Email: seth.eichenholtz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clayton P. Solomon U.S. Attorney's Office, EDNY 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6039 Fax: 718-254-6081 Email: clayton.solomon@usdoj.gov ATTORNEY TO BE NOTICED
Sean P. Greene United States Attorney's Office, EDNY 271 Cadman Plaza East 7th Floor Brooklyn, NY 11201 718-254-6484 Fax: 718-254-7483 Email: sean.greene@usdoj.gov ATTORNEY TO BE NOTICED
represented by Seth D. Eichenholtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clayton P. Solomon (See above for address) ATTORNEY TO BE NOTICED
Sean P. Greene (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Underwood United States Attorneys Office Criminal Division Eastern District of New York

271 Cadman Plaza East Brooklyn, NY 11201-1820 (718) 254-6263 Fax: 718-254-6329 Email: barbara.underwood@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed # Docket Text

02/04/2019

1 COMPLAINT against Federal Bureau of Prisons, Herman Quay, filed by Federal Defenders of New York, Inc.. (Attachments: # 1 Civil Cover Sheet) (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

FILING FEE: $ 400, receipt number 4653136763 (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

2 Summons Issued as to Federal Bureau of Prisons, Herman Quay, U.S. Attorney and U.S. Attorney General (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019 3 Unsigned Order to Show Cause by Federal Defenders of New York, Inc. (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019 4 DISCLOSURE of Interested Parties by Federal Defenders of New York, Inc.. (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

5 MEMORANDUM in Support re 3 Unsigned Order to Show Cause filed by Federal Defenders of New York, Inc.. (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

6 DECLARATION of Dean Hecker re 3 Unsigned Order to Show Cause by Federal Defenders of New York, Inc. (Attachments: # 1 Exhibit A) (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

7 DECLARATION of Dierdre D. Von Dornum by Federal Defenders of New York, Inc. (Attachments: # 1 Exhibit) (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

8 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the

following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 02/04/2019)

02/04/2019

9 MEMORANDUM AND ORDER: For the reasons stated in the attached Memorandum, Plaintiff's request for a temporary restraining order is GRANTED in part and DENIED in part. It is ORDERED that Defendants show cause before this Court, in Courtroom 6F, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York 11201, on February 13, 2019, at 10:30 a.m., or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Fed. R. Civ. P. 65 enjoining Defendants during the pendency of this action from (1) failing to permit daily legal visiting for all inmates at the MDC; and (2) failing to permit social visiting for all inmates in accordance with the MDCs normal schedule and procedures for such visits; and pursuant to Fed. R. Civ. P. 53 appointing a special master to inspect MDC and undertake the factfinding necessary to determine whether Defendants are protecting the constitutional rights of inmates in their custody and complying with the injunction; and it is further ORDERED that sufficient reason having been shown, therefore, pending the hearing of Plaintiffs application for a preliminary injunction, pursuant to Fed. R. Civ. P. 65, Defendants are temporarily required to reinstitute legal visiting at the MDC on the standard schedule: 8:00 a.m. to 8:00 p.m., seven days per week; provided, however, that should Defendants determine that security concerns necessitate the suspension of legal visiting for any period of two hours or longer, Defendants shall within two hours of such determination notify the Court and the Plaintiff of that determination and the reasons therefor, and within 24 hours of such determination Defendants shall file with the Court an application consisting of a sworn affidavit from Warden Quay that sets forth with specificity the reasons justifying the suspension; and it is further ORDERED that personal service of a copy of this order and the papers upon which it is granted upon the Defendants or their counsel on or before February 5, 2019, at 12:00 p.m., shall be deemed good and sufficient service thereof. Ordered by Judge LaShann DeArcy Hall on 2/4/2019. (Valentin, Winnethka) (Entered: 02/04/2019)

02/05/2019 10 CERTIFICATE OF SERVICE by Federal Defenders of New York, Inc. (Wikstrom, Derek) (Entered: 02/05/2019)

02/05/2019 11 NOTICE of Appearance by Seth D. Eichenholtz on behalf of Federal Bureau of Prisons, Herman Quay (aty to be noticed) (Eichenholtz, Seth) (Entered: 02/05/2019)

02/06/2019

12 Consent MOTION for Reconsideration re 9 Memorandum & Opinion,,,,,,,, to modify the Order to reflect the standard weekend visitation hours of 8 AM until 2 PM by Federal Bureau of Prisons, Herman Quay. (Eichenholtz, Seth) (Entered: 02/06/2019)

02/06/2019

ORDER granting 12 Motion for Reconsideration. The Court grants defendants' application to modify the 9 Memorandum and Order to Show Cause (the "Order") dated February 4, 2019, on consent of the parties. The Court modifies the Order to provide that defendants facilitate legal visitation on the weekend from 8:00 AM to 2:00 PM. All other provisions of the Order remain in effect. Ordered by Judge Margo K. Brodie on 2/6/2019. (Morel, Christopher) (Entered: 02/06/2019)

02/07/2019

13 Letter MOTION for Discovery , to Advise Court of Hearing Witnesses, and to Request Identification of Hearing Procedures by Federal Defenders of New York, Inc.. (Attachments: # 1 Exhibit A) (Craig, Matthew) (Entered: 02/07/2019)

02/07/2019

ORDER re 13 . The Court directs defendants to file any opposition to plaintiff's discovery requests by 5:00 PM today. Ordered by Judge Margo K. Brodie on 2/7/2019. (Morel, Christopher) (Entered: 02/07/2019)

02/07/2019

SCHEDULING ORDER: Telephone Conference set for February 8, 2019 at 2:30 PM before Judge Margo K. Brodie. Plaintiff's counsel is directed to call Chambers at (718) 613-2140 once all the parties are on the line. The telephone conference will be to discuss plaintiff's 13 letter requesting expedited discovery, specific procedures during the hearing, and a briefing schedule for the opposition and reply briefs to plaintiff's application for a preliminary injunction. Ordered by Judge Margo K. Brodie on 2/7/2019. (Brucella, Michelle) (Entered: 02/07/2019)

02/07/2019

14 RESPONSE in Opposition re 13 Letter MOTION for Discovery , to Advise Court of Hearing Witnesses, and to Request Identification of Hearing Procedures filed by Federal Bureau of Prisons, Herman Quay. (Attachments: # 1 Exhibit A) (Eichenholtz, Seth) (Entered: 02/07/2019)

02/07/2019 15 NOTICE of Appearance by Sean P. Greene on behalf of Federal Bureau of Prisons, Herman Quay (aty to be noticed) (Greene, Sean) (Entered: 02/07/2019)

02/08/2019

16 MOTION to Appear Pro Hac Vice of Joshua Matz Filing fee $ 150, receipt number ANYEDC-11181785. by Federal Defenders of New York, Inc.. (Attachments: # 1 Certificate of Good Standing (NY), # 2 Certificate of Good Standing (DC), # 3 Affidavit of Joshua Matz in Support of Motion to Appear Pro Hac Vice) (Matz, Joshua) (Entered: 02/08/2019)

02/08/2019

Minute Entry for proceedings held before Judge Margo K. Brodie: Telephone conference before Judge Margo K. Brodie held on February 8, 2019. Jenna Dabbs and Sean Hecker appeared on behalf of plaintiff; Seth D. Eichenholtz and Sean Greene appeared on behalf of defendants. For the reasons stated on the record, the Court orders the parties to confer on plaintiff's discovery request no. 5 and orders defendants to produce documents sufficient to evidence current policies, procedures, or operational requirements concerning legal visits at the MDC. Defendants shall file a response to plaintiff's application for injunctive relief and address plaintiff's standing on or before February 15, 2019; plaintiff shall file a reply, if any, on or before February 19, 2019. The Preliminary Injunction hearing is adjourned to February 27, 2019 at 10:30 AM. (Court Reporter Holly Driscoll.) (Morel, Christopher) (Entered: 02/08/2019)

02/13/2019 17 Letter dated February 7, 2019 from Ben Weiser to Judge Brodie, requesting permission to use laptop at the hearing scheduled to begin on February 13, 2019. (Piper, Francine) (Entered: 02/13/2019)

02/13/2019

18 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on February 8, 2019, before Judge Brodie. Court Reporter/Transcriber H. Driscoll, Telephone number 718-613-2274. Email address: hdrisc@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request Transcript" located under "Other Filings - Other Documents". Redaction Request due 3/6/2019. Redacted Transcript Deadline set for 3/18/2019. Release of Transcript Restriction set for 5/14/2019. (Driscoll, Holly) (Entered: 02/13/2019)

02/13/2019

ORDER: Granting 16 Motion for Leave to Appear Pro Hac Vice. Attorney Joshua Adam Matz shall register for ECF, registration is available online at www.pacer.gov. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150.00 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . Ordered by Magistrate Judge Steven M. Gold on 2/13/2019. (Gillespie, Saudia) (Entered: 02/13/2019)

02/15/2019 19 NOTICE of Appearance by Clayton P. Solomon on behalf of All Defendants (aty to be noticed) (Solomon, Clayton) (Entered: 02/15/2019)

02/15/2019 20 NOTICE of Appearance by Barbara Underwood on behalf of State Of New York (aty to be noticed) (Underwood, Barbara) (Entered: 02/15/2019)

02/15/2019

21 MOTION for Leave to File Document by State Of New York. (Attachments: # 1 Memorandum in Support Motion to Appear as Amicus Curiae, # 2 Exhibit Brief for Amicus Curiae State of New York, # 3 Certificate of Service Certificate of Service) (Underwood, Barbara) (Entered: 02/15/2019)

02/15/2019

22 MEMORANDUM in Opposition to Plaintiff's Motion for a Preliminary Injunction filed by Federal Bureau of Prisons, Herman Quay. (Attachments: # 1 Declaration of John Maffeo, # 2 Declaration of Warden Herman Quay, # 3 Declaration of Seth D. Eichenholtz, with Exhibits) (Eichenholtz, Seth) (Entered: 02/15/2019)

02/15/2019 23 Letter enclosing a courtesy copy of defendants' opposition to plaintiff's motion for a preliminary injunction by Federal Bureau of Prisons, Herman Quay (Eichenholtz, Seth) (Entered: 02/15/2019)

02/19/2019 24 REPLY in Support of Plaintiff's Application for a Preliminary Injunction filed by Federal Defenders of New York, Inc.. (Dabbs, Jenna) (Entered: 02/19/2019)

02/21/2019 25 MOTION for Hearing to be Adjourned and for Preliminary Injunction by Federal Defenders of New York, Inc.. (Dabbs, Jenna) (Entered: 02/21/2019)

02/21/2019

26 RESPONSE to Motion re 25 MOTION for Hearing to be Adjourned and for Preliminary Injunction consenting to Plaintiff's request to adjourn the hearing and in opposition to Plaintiff's request to immediately enter a Preliminary Injunction filed by Federal Bureau of Prisons, Herman Quay. (Eichenholtz, Seth) (Entered: 02/21/2019)

02/22/2019 27 Notice of Related Case (Davis, Kimberly) (Entered: 02/22/2019)

02/22/2019 02/22/2019

ORDER granting in part and denying in part 25 Motion for Hearing. The Court grants on consent 25 plaintiff's application to adjourn the preliminary injunction hearing currently scheduled for February 27, 2019. The parties shall appear before the Court on Friday, March 1, 2019 at 10:30 AM, in Courtroom 6F North, for oral argument on the issue of whether plaintiff has standing to bring this action. On consent of the parties, the TRO shall remain in effect through March 1, 2019. So ordered. Ordered by Judge Margo K. Brodie on 2/22/2019. (Morel, Christopher) (Entered: 02/22/2019)
ORDER re 17 Letter from Ben Weiser to Judge Brodie, requesting permission to use laptop at the hearing: The application is denied. Ordered by Judge Margo K. Brodie on 2/22/2019. (Brucella, Michelle) (Entered: 02/22/2019)

02/28/2019 28 MOTION to Appear by Telephone for David Patton by Federal Defenders of New York, Inc.. (Dabbs, Jenna) (Entered: 02/28/2019)

02/28/2019

ORDER granting 28 Motion to Appear by Telephone. Mr. Patton is directed to call into chambers at (718) 613-2140. Ordered by Judge Margo K. Brodie on 2/28/2019. (Brucella, Michelle) (Entered: 02/28/2019)

03/01/2019

Minute Entry for proceedings held before Judge Margo K. Brodie: Oral argument held before Judge Margo K. Brodie on March 1, 2019. Jenna Dabbs and Joshua Matz appeared on behalf of plaintiff; Seth Eichenholtz, Sean Greene, and Clayton Solomon appeared on behalf of defendants. The Court heard arguments as to plaintiff's standing to proceed with this action. For the reasons stated on the record, the Court finds that although plaintiff has constitutional standing, plaintiff does not have a cause of action under the Sixth Amendment or the Administrative Procedure Act. The Court denied plaintiff's application for injunctive relief. Plaintiff shall file its amended complaint on or before March 8, 2019. (Court Reporter Michele Lucchese) (Morel, Christopher) (Entered: 03/01/2019)

03/06/2019 29 MOTION for Extension of Time to Amend 1 Complaint by Federal Defenders of New York, Inc.. (Dabbs, Jenna) (Entered: 03/06/2019)

03/06/2019

ORDER granting 29 Motion for Extension of Time to Amend. The Court grants plaintiff's request for an extension of time to file an amended complaint. Plaintiff shall file its amended complaint on or before March 29, 2019. Ordered by Judge Margo K. Brodie on 3/6/2019. (Morel, Christopher) (Entered: 03/06/2019)

03/29/2019 30 Letter re: Amended Complaint by Federal Defenders of New York, Inc. (Dabbs, Jenna) (Entered: 03/29/2019)

04/03/2019 31 Letter in response to plaintiff's letter of April 1, 2019 by Federal Bureau of Prisons, Herman Quay (Eichenholtz, Seth) (Entered: 04/03/2019)

04/04/2019 32 Letter re: Defendants' April 3, 2019 Letter by Federal Defenders of New York, Inc. (Dabbs, Jenna) (Entered: 04/04/2019)

05/20/2019

33 ORDER: At the conclusion of oral argument and based generally on the reasoning summarized in the attached Order, the Court denied Plaintiff's request for injunctive relief but granted Plaintiff the opportunity to amend the Complaint. Based on Plaintiff's March 29, 2019 submission to the Court, informing the Court that it will not amend the Complaint and inviting the Court to sua sponte dismiss the action, and on Defendants' response also urging sua sponte dismissal of the action, the Court dismisses the Complaint because Plaintiff does not have a cause of action under the Sixth Amendment or the APA. The Clerk of Court is directed to

close this case. Ordered by Judge Margo K. Brodie on 5/19/2019. (Brucella, Michelle) (Entered: 05/20/2019)

06/04/2019

34 CLERK'S JUDGMENT, It is ORDERED and ADJUDGED that the complaint is dismissed because Plaintiff does not have a cause of action under the Sixth Amendment or the APA; and that this case is closed. Signed by Douglas C. Palmer, Clerk of Court by Jalitza Poveda, Deputy Clerk on 6/4/2019. (Piper, Francine)VACATED pursuant to 37 Mandate of the U.S. Court of Appeals. This entry has been modified on March 23, 2020 to indicate Judgment 34 has been vacated Modified on 3/23/2020 (Piper, Francine). (Entered: 06/04/2019)

06/18/2019 35 NOTICE OF APPEAL as to 34 Clerk's Judgment, by Federal Defenders of New York, Inc.. Filing fee $ 505, receipt number ANYEDC-11587672. (Dabbs, Jenna) (Entered: 06/18/2019)

06/20/2019

Electronic Index to Record on Appeal sent to US Court of Appeals. 35 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 06/20/2019)

03/20/2020

Remand Hearing: In view of the Second Circuit's decision and Mandate issued today, the parties are ordered to appear on 3/23/2020 02:30 PM via telephone conference before Judge Margo K. Brodie. The parties are directed to call 888-684-8852 using access code 9801036. Ordered by Judge Margo K. Brodie on 3/20/2020. (Brodie, Margo) (Entered: 03/20/2020)

03/23/2020

36 ORDER of USCA as to 35 Notice of Appeal filed by Federal Defenders of New York, Inc. It is Ordered that We VACATE the District Court's judgment in its entirety and REMAND the cause for further proceedings consistent with this Opinion. See document for further details. This Order is endorsed on the USCA Opinion. Certified Copy Issued: 3/20/20. USCA #19-1778. (McGee, Mary Ann) (Entered: 03/23/2020)

03/23/2020

37 MANDATE of USCA as to 35 Notice of Appeal filed by Federal Defenders of New York, Inc. It is ORDERED that the District Court's judgment is VACATED in its entirety and the case is REMANDED to the District Court for further proceedings consistent with this Court's Opinion. See document for further details. Issued as Mandate: 3/20/20. USCA #191778 (Attachments: # 1 USCA Opinion) (McGee, Mary Ann) (Entered: 03/23/2020)

03/23/2020

MINUTE ENTRY: Conference by telephone was held before Judge Margo K. Brodie on March 23, 2020. Joshua Adam Matz, Matthew J. Craig, and Sean Hecker appeared on behalf of plaintiff. Seth D. Eichenholtz and Sean

P. Greene appeared on behalf of defendants. The Court discussed with the parties three mediator candidates. For the reasons stated on the record and pursuant to the Second Circuit's Order and Mandate dated March 20, 2020, the Court appointed former Attorney General Loretta Lynch as the mediator. The Court scheduled a telephone conference for March 24, 2020 at 12:00 PM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Ordered by Judge Margo K. Brodie on 3/23/2020. (Court Reporter Anthony Mancuso.) (Johnson, Alexsis) (Entered: 03/23/2020)

03/23/2020 38 Letter re: Proposed Order Regarding the Appointment of the Honorable Loretta Lynch as Mediator by Federal Defenders of New York, Inc. (Attachments: # 1 Proposed Order) (Hecker, Sean) (Entered: 03/23/2020)

03/24/2020

ORDER. The government is ordered to submit any proposed language or revision to the proposed order by 11:30 AM today. Ordered by Judge Margo K. Brodie on 3/24/2020. (Valentin, Winnethka) (Entered: 03/24/2020)

03/24/2020

39 Letter objecting in part to plaintiff's proposed order and providing defendants' proposed order appointing a mediator by Federal Bureau of Prisons, Herman Quay (Attachments: # 1 Proposed Order Appointing Mediator) (Eichenholtz, Seth) (Entered: 03/24/2020)

03/24/2020

MINUTE ENTRY: Conference by telephone was held before Judge Margo K. Brodie on March 24, 2020. Jenna Minicucci Dabbs, Joshua Adam Matz, Matthew J. Craig, and Sean Hecker appeared on behalf of plaintiff. Seth D. Eichenholtz and Sean P. Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator. Chief Magistrate Judge Cheryl L. Pollak also participated. The Court discussed with the parties plaintiff's proposed order appointing a mediator and heard defendants' objections to the proposed order. The Court scheduled a telephone status conference for March 27, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Ordered by Judge Margo K. Brodie on 3/24/2020. (Court Reporter Anthony Mancuso) (Johnson, Alexsis) (Entered: 03/24/2020)

03/24/2020 40 Letter re Court's Proposed Order by Federal Defenders of New York, Inc. (Hecker, Sean) (Entered: 03/24/2020)

03/24/2020 41 Letter requesting changes to the Court's proposed order appointing a mediator by Federal Bureau of Prisons, Herman Quay (Attachments: # 1 Proposed Changes) (Eichenholtz, Seth) (Entered: 03/24/2020)

03/24/2020 42 ORDER REGARDING THE APPOINTMENT OF THE HONORABLE LORETTA LYNCH AS MEDIATOR. Ordered by Judge Margo K. Brodie on 3/24/2020. (Valentin, Winnethka) (Entered: 03/24/2020)

03/27/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on March 27, 2020. Benjamin White, Jenna Dabbs, Joshua Matz, Matthew Craig, and Sean Hecker appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator, along with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison J. Nathan appeared as a monitor for the Southern District of New York and Assistant U.S. Attorneys for the Southern District of New York Jeffery Oestericher and David Jones also participated. Ms. Lynch provided a status update and the Court heard from the parties on the issue of phone access to certain quarantined inmates. The Court scheduled a telephone status conference for April 3, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Ordered by Judge Margo K. Brodie on 3/27/2020. (Court Reporter Anthony Mancuso) (Johnson, Alexsis) (Entered: 03/27/2020)

04/02/2020

43 Letter Providing the Court with an Update Regarding the BOP's Continuing Efforts to Facilitate Attorney Access during the COVID-19 National Emergency by Federal Bureau of Prisons, Herman Quay (Greene, Sean) (Entered: 04/02/2020)

04/02/2020 44 MEDIATION STATUS REPORT by Loretta E. Lynch (Finzi, Roberto) (Entered: 04/02/2020)

04/03/2020

45 Letter re: Proposed Order Regarding Attorney Consultation by Federal Defenders of New York, Inc. (Attachments: # 1 Proposed Order, # 2 Declaration of Deirdre D. von Dornum) (Hecker, Sean) (Entered: 04/03/2020)

04/03/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on April 3, 2020. Benjamin White, Jenna Dabbs, Joshua Matz, Matthew Craig, and Sean Hecker appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. Ms. Lynch provided a status update and the Court heard from the parties on the issues of phone access and plaintiff's proposed order. For the reasons stated on the record, the Court denied plaintiff's application. The Court directed defendants to file a letter on or before Monday, April 6, 2020 informing the Court how many telephone calls defendants can accommodate per day. Defendants shall fill

all available video conference time slots at the MDC and MCC for the upcoming week. The Court scheduled a telephone status conference for April 10, 2020 at 10:00 AM. The parties are directed to call 1-888-6848852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Ordered by Judge Margo K. Brodie on 4/3/2020. (Court Reporter Lisa Schmid) (Johnson, Alexsis) (Entered: 04/3/2020) (Entered: 04/03/2020)

04/06/2020 46 MOTION for Extension of Time to File report to the Court regarding legal calls at MDC and MCC from April 6 until April 7 by Federal Bureau of Prisons, Herman Quay. (Eichenholtz, Seth) (Entered: 04/06/2020)

04/06/2020

47 RESPONSE in Opposition re 46 MOTION for Extension of Time to File report to the Court regarding legal calls at MDC and MCC from April 6 until April 7 filed by Federal Defenders of New York, Inc.. (Attachments: # 1 Exhibit A - April 2020 Emails between Counsel) (Hecker, Sean) (Entered: 04/06/2020)

04/06/2020

ORDER granting 46 Motion for Extension of Time to File. The report shall be filed on April 7, 2020 by 5:00 p.m. Ordered by Judge Margo K. Brodie on 4/6/2020. (Valentin, Winnethka) (Entered: 04/06/2020)

04/07/2020 48 Letter Regarding Legal Call Capacity in Response to the Court's April 3, 2020 Order by Federal Bureau of Prisons, Herman Quay (Greene, Sean) (Entered: 04/07/2020)

04/07/2020 49 Letter Response to Defendants' April 7, 2020 Letter by Federal Defenders of New York, Inc. (Attachments: # 1 Exhibit A - Proposed Order) (Hecker, Sean) (Entered: 04/07/2020)

04/09/2020 50 Letter in Opposition to Plaintiff's April 7, 2020 Request for a Court Order Regarding Legal Calls and Videoteleconferences by Federal Bureau of Prisons, Herman Quay (Greene, Sean) (Entered: 04/09/2020)

04/09/2020 51 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 04/09/2020)

04/10/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on April 10, 2020. Jenna Dabbs, Benjamin White, Joshua Matz, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York, and Assistant U.S. Attorney for the Southern District of New York Jeffery Oestericher also participated. Ms. Lynch provided a status update and the Court heard from the parties on

various phone access issues and plaintiff's revised proposed order. For the reasons stated on the record, the Court declined to issue an order at this time. The Court directed defendants to file a letter on or before April 14, 2020, providing to the Court a report regarding the use of non-confidential phone lines for legal calls and more information as to how the increased staff will assist with increasing the capacity to accommodate what is expected to be an increased number of requests in view of the recommencement of criminal proceedings in the next two weeks and confirming whether isolated and quarantined individuals will have access to phone calls under the protocol for attorney calls and teleconference hearings at the MDC. The Court scheduled a telephone status conference for April 17, 2020 at 10:00 AM. The parties are directed to call 1-888-6848852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Ordered by Judge Margo K. Brodie on 4/10/2020. (Court Reporter Michele Lucchese) (Johnson, Alexsis) (Entered: 04/10/2020)

04/14/2020 52 Letter reporting to the Court regarding the matters listed in the Court's April 10, 2020 Order by Federal Bureau of Prisons, Herman Quay (Eichenholtz, Seth) (Entered: 04/14/2020)

04/16/2020 53 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 04/16/2020)

04/17/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on April 17, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, Joshua Matz, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York, and Assistant U.S. Attorney for the Southern District of New York Jeffery Oestericher also participated. Ms. Lynch provided a status update and the Court heard from the parties on various phone access and videoconferencing issues. The Court scheduled a telephone status conference for April 24, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered by Judge Margo K. Brodie on 4/17/2020. (Court Reporter Linda Marino)(Johnson, Alexsis) (Entered: 04/17/2020)

04/23/2020 54 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 04/23/2020)

04/24/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on April 24, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, Joshua Matz, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York, and Assistant U.S. Attorney for the Southern District of New York Jeffery Oestericher also participated. Ms. Lynch provided a status update and the Court heard from the parties on various issues related to call confidentiality, reports of retaliation for information shared during legal calls, and phone access for medically isolated individuals. The Court encouraged the parties to discuss with the mediator whether guards need additional training on the protocol, confidential legal calls, and the requirement that legal calls last at least thirty minutes. The Court scheduled a telephone status conference for May 1, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered by Judge Margo K. Brodie on 4/24/2020. (Court Reporter Sophie Nolan) (Johnson, Alexsis) (Entered: 04/24/2020)

04/28/2020 55 Letter Regarding Continued Lack of Access to Legal Calls for Inmates in Isolation by Federal Defenders of New York, Inc. (Hecker, Sean) (Entered: 04/28/2020)

04/28/2020

56 Letter in response to Federal Defenders' letter of April 28 and reiterating that MDC facilitates legal calls for inmates housed in its isolation unit by Federal Bureau of Prisons, Herman Quay (Eichenholtz, Seth) (Entered: 04/28/2020)

04/30/2020 57 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 04/30/2020)

05/01/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on May 1, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, and Matthew Craig appeared on behalf of plaintiff. Seth

Eichenholtz and Sean Green appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York and Assistant U.S. Attorney for the Southern District of New York Jeffery Oestericher also participated. Ms. Lynch provided a status update and the Court heard from the parties on various issues related to call confidentiality, the duration of legal calls, and phone access for medically isolated individuals. The Court encouraged the parties to begin a discussion with the mediator regarding any anticipated issues related to the eventual re-opening of the MDC and MCC facilities to visitors. The Court scheduled a telephone status conference for May 8, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-6132140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered by Judge Margo K. Brodie on 5/1/2020. (Court Reporter Victoria Butler) (Johnson, Alexsis) (Entered: 05/01/2020)

05/07/2020 58 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 05/07/2020)

05/08/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on May 8, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York. Magistrate Judge Steven Gold and Assistant U.S. Attorneys for the Southern District of New York Jeffery Oestericher and David Jones also participated. Ms. Lynch provided a status update and the Court heard from the parties on various issues related to privacy and confidentiality for legal calls and videoconferences, the duration of legal calls, and preparations to accommodate a possible increase in call volume. In light of the expected increase in call volume in the coming weeks, the Court encouraged defendants to investigate the possibility of scheduling calls in the evening as an alternative in the event the volume of call requests cannot be accommodated during daytime hours. The Court scheduled a telephone status conference for May 15, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using

access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered by Judge Margo K. Brodie on 5/8/2020. (Court Reporter Denise Parisi) (Johnson, Alexsis) (Entered: 05/08/2020)

05/14/2020 59 Letter from Sean Hecker to Judge Brodie re Capacity for Legal Consultation by Federal Defenders of New York, Inc. (Hecker, Sean) (Entered: 05/14/2020)

05/14/2020 60 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 05/14/2020)

05/15/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on May 15, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York. Magistrate Judge Steven Gold and Assistant U.S. Attorneys for the Southern District of New York Jeffery Oestericher and David Jones also participated. Ms. Lynch provided a status update and the Court heard from the parties on various issues related to scheduling legal calls and videoconferences. The Court directed defendants to work on addressing plaintiff's request that videoconferences and phone calls be scheduled to occur within a particular time period. The Court also encouraged the parties to confer regarding scheduling all requested calls within forty-eight (48) hours of the request and encouraged both sides to work with the mediator in addressing the additional issues raised in plaintiff's May 14, 2020 letter to the Court. The Court scheduled a telephone status conference for May 22, 2020 at 10:00 AM. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered

by Judge Margo K. Brodie on 5/15/2020. (Court Reporter Linda Danelczyk) (Johnson, Alexsis) (Entered: 05/15/2020)

05/19/2020

61 ORDER. The Court adjourns the May 22, 2020 status conference to May 29, 2020 at 10:00 AM. The parties are directed to continue to work with mediator Loretta E. Lynch to resolve the various issues. By the end of the day on May 27, 2020, the parties are directed to submit a report to the Court identifying issues to be discussed at the May 29 conference, and to discuss those issues with Ms. Lynch on May 28, 2020, to further narrow the issues to be discussed at the May 29, 2020 conference. Ordered by Judge Margo K. Brodie on 5/19/2020. (Valentin, Winnethka) (Entered: 05/19/2020)

05/21/2020 62 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 05/21/2020)

05/27/2020 63 STATUS REPORT by Federal Bureau of Prisons, Herman Quay (Eichenholtz, Seth) (Entered: 05/27/2020)

05/27/2020 64 STATUS REPORT Pursuant to the Court's May 19, 2020 Order by Federal Defenders of New York, Inc. (Hecker, Sean) (Entered: 05/27/2020)

05/28/2020 65 MEDIATION STATUS REPORT by Loretta E. Lynch (Lynch, Loretta) (Entered: 05/28/2020)

05/29/2020

MINUTE ENTRY: Status conference by telephone was held before Judge Margo K. Brodie on May 29, 2020. Sean Hecker, Jenna Dabbs, Benjamin White, and Matthew Craig appeared on behalf of plaintiff. Seth Eichenholtz and Sean Greene appeared on behalf of defendants. Former Attorney General Loretta Lynch participated as the mediator and appeared with Roberto Finzi and Tony Joe. District Judge for the Southern District of New York Alison Nathan appeared as a judicial observer and point of contact for the Southern District of New York. Magistrate Judge Steven Gold and Assistant U.S. Attorneys for the Southern District of New York Jeffery Oestericher and David Jones also participated. Ms. Lynch provided a status update and the Court heard from the parties on various issues related to the governments plans to increase capacity for regular legal videoconferences, the possibility of case-by-case in-person legal visits, and a lack of confidentiality and consistency in the delivery of legal mail to individuals at the MDC and MCC. The Court directed Plaintiff to provide additional information regarding the issues with legal mail to the mediator and government so that they can investigate the issue and encouraged the parties to work with the mediator in reaching a consensus as to what additional access will be provided under the governments forthcoming plan for increasing videoconference access. The Court scheduled a telephone status conference for June 12, 2020 at 10:00 AM. By the end of

the day on June 10, 2020, the parties are directed to submit a report to the Court identifying issues to be discussed at the June 12 conference, and to discuss those issues with Ms. Lynch on June 11, 2020, to further narrow the issues to be discussed at the June 12 conference. The parties are directed to call 1-888-684-8852 using access code 9801036. If any party has any difficulty accessing the telephone conference, please contact chambers at 718-613-2140. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Ordered by Judge Margo K. Brodie on 5/29/2020. (Court Reporter Charlene Heading) (Johnson, Alexsis) (Johnson, Alexsis) (Entered: 05/29/2020)

 
 Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 1 of 11 PageID #: 1

U.S. Uiomiv_,i

t.u.N.Y.

^ FEB 0 ^ 2019 tSt

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

PROOKLYN OFFICE

FEDERAL DEFENDERS OF NEW YORK,INC., on behalfofitselfand its clients detained at the
Metropolitan Detention Center-Brooklyn,
Plaintiff,
FEDERAL BUREAU OF PRISONS and
WARDEN HERMAN QUAY,in his official capacity.
Defendants.

cvi ass
Na
BRODIE, J.
GOLD, MJ.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff Federal Defenders ofNew York, Inc.(the "Federal Defenders"), by and through its undersigned counsel,for its Complaint against Defendants Federal Bureau ofPrisons("BOP") and Warden Herman Quay, alleges as follows:
INTRODUCTION
1. There is a humanitarian crisis taking place at the main federal detention facility in this District. The conditions at the Metropolitan Detention Center in Brooklyn, New York ("MDC"),are inhumane, violate the constitution, and are causing irreparable harm to both MDC
detainees and the Federal Defenders.
2. On Sunday,January 27,2019,there was a fire at the MDC.The fire affected the power source for the MDC's West Building, which houses male inmates,and resulted in what the BOP has characterized as a "partial power outage."
3. Defendants' response to the fire has been woefully inadequate. They have been slow to acknowledge the problem and have not taken sufficient steps to obtain temporary supplies ofelectricity or heat,or to repair the damage.

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 2 of 11 PageID #: 2
4. Critically, since January 27,there has been near-total cancellation oflegal and family visiting for male inmates at the MDC.Defendants cancelled legal visiting each day between January 27and February 2,and substantially curtailed visiting on February 3.
5. Further, Defendants have issued misleading statements to the public and to the courts about the significantly deleterious conditions facing MDC inmates.
6. Defendants' misstatements were made manifest when a Federal Defenders
attorney was given access to the MDC—access which Defendants granted only following the issuance ofan administrative order by the ChiefJudge ofthis District. That visitation revealed that the Defendants' response to the fire has caused significant and serious deprivations ofthe constitutional rights ofthe MDC detainees.
7. The Defendants' deprivation of MDC detainees' constitutional rights has caused and is causing irreparable harm to the Federal Defenders and its clients.
THE PARTIES
8. PlaintiffFederal Defenders ofNew York,Inc. is a New York not-for-profit corporation with offices in Brooklyn,Central Islip, Manhattan,and White Plains,New York. Federal Defenders is dedicated to offering public defense services to indigent persons in federal
criminal cases in the Eastern and Southern Districts of New York.
9. Defendant BOP is a component ofthe United States Department ofJustice. It is the federal agency that administers federaljail and prison facilities. It is responsible for the custody and care of more than 180,000 inmates nationwide.
10. Defendant Herman Quay is the Warden ofthe MDC in Brooklyn.

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 3 of 11 PageID #: 3
JURISDICTION AND VENUE
11. The Court hassubject matterjurisdiction pursuantto 28 U.S.C.§ 1331 and 5 U.S.C. § 702. The Federal Defenders seek declaratory and injunctive relief pursuant to 5 U.S.C. § 706 and 28 U.S.C. §§ 2201 and 2202.
12. Venue is proper under 28 U.S.C.§ 1391(b)(2)and(e)(1)because a substantial part ofthe events and/or omissions giving rise to the claims asserted herein occurred within this District, the Federal Defenders reside in this District, and Defendants are officers, employees, or agencies ofthe United States acting in their official capacity.
BACKGROUND A. The MDC
13. The MDC is the principal federal pre-trial detention facility in this District. It is operated by Defendant BOP and led by Defendant Herman Quay,the warden ofthe facility.
14. The vast majority ofthe more than 1,600 detainees held at the facility are being held prior to trial and thus are presumed innocent ofthe crimes for which they may ultimately be
tried.
15. The MDC is located in the Sunset Park neighborhood ofBrooklyn,New York. It consists oftwo buildings,the West Building, which houses male inmates,and the East Building, which houses female inmates. BOP regulations, and an Institution Supplement for MDC issued by Defendant Quay,set forth specific and detailed rules for legal and social visitation.
16. The MDC's standard practice is to allow for attorney visitation from 8:00 a.m.to 8:00 p.m. seven days per week.
17. MDC inmates rely heavily on electricity beyond just the basic services related to heating, ventilation,and air conditioning. For example,inmates rely on CorrLinks,the BOP's e-

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 4 of 11 PageID #: 4
mail system,to communicate with counsel and family,and also use electronic platforms to submit medical requests, prescription refills, and administrative grievances.
B. The Fire at the MDC
18. On January 27,2019,a power source in the switch gear room in the West Building ofthe MDC caught fire, leading to partial yet wide-ranging power outages.
19. Following the fire, MDC inmates reported to attorneys at the Federal Defenders that there was little or no heating, no or limited hot water, minimal access to electricity, and near total lack ofaccess to certain medical services,telephones,televisions, computers,laundry,or commissary. Inmates also reported that they smelled noxious fumes;some reported seeing BOP officers wearing masks. No masks were supplied to inmates.
20. Further,the BOP cancelled both legal and social visiting in the aftermath ofthe
fire.
21. Legal and social visiting were cancelled entirely on January 28,January 29, January 30,January 31,February 1,and February 2.
22. On February 2,2019,the BOP informed the Federal Defenders that legal visiting would resume at MDC the next day. On February 3, however, less than four hours after legal visiting resumed, visiting attorneys began to smell a strong chemical scent, and started coughing, when pepper spray was dispersed in the visiting room. Legal visits were then abruptly cut short, and the visiting attorneys were escorted out ofthe MDC.Public reports indicate that BOP officials pepper sprayed individuals that had assembled in the lobby ofthe MDC.
23. As a result, for each day since the fire, up to the date ofthis Complaint,the people housed at MDC were prevented from meeting with the attorneys that were representing them in pending criminal proceedings.

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 5 of 11 PageID #: 5
C. The BOP's Stonewalling and False Statements 24. During the week following the fire, attorneys at the Federal Defenders sought to
engage with BOP officials regarding troubling reports they had received from people held at
MDC.
25. BOP officials were largely non-responsive. They refused to provide detailed or accurate information about the conditions at MDC or the reasons that legal visitations were
cancelled.
26. Specifically, BOP officials frequently did not respond to certain inquiries by attorneys at the Federal Defenders,and, when they did respond,they offered explanations that were inconsistent with the conditions that had been described by the MDC inmates. For example, one BOP attorney represented to a Federal Defenders attorney on two separate occasions that he was"informed that the power outage did not impact the heating in the institutions" and that"the heat is operational." As discussed below,however,the power outage following the fire had a significant impact on the MDC's heating system.
27. On January 30,2019,a BOP official informed an attorney at the Federal Defenders that legal visitation rights would resume"as soon as[the visiting room in the West Building]is usable," but represented that"ifvisitation is not returned to normal by next week,a temporary procedure will be implemented to allow for legal visits to take place in the east visiting room." The BOP has never explained why that temporary procedure was not put in place immediately. That procedure is, in fact, routinely used for co-defendant meetings.
28. On February 1,2019,Defendant Quay,the warden ofthe MDC,provided a purported update as to the conditions at the MDC to the United States District Court for the Southern District ofNew York. Defendant Quay reported the following:

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 6 of 11 PageID #: 6
Inmates have not been confined to their cells and are still allowed
leisure/recreational activities. There is currently no TV/Internet.
Inmates still have access to Public Defender Phones which are
working. Heat has never been impacted and is monitored regularly due to the cold weather. Heat is in the high 60s and low 70s. Hot water has not been impacted as it is on the same system as the heat. There are no problems with meals, prisoner are still receiving hot meals. There is no problem with medical, medications are still delivered twice daily. The only issue related to medication is that the computers are not working so you can not request medical through the computers. Medical still can be requested through their units and also during the twice daily medical runs. The visiting room is without power which is why there was no visitations. The staff has temporary wiring in place and should have attorney visiting up today.
29. Later that day,following an order from ChiefJudge Irizarry, Deirdre von
Domum,Attomey-in-Chiefofthe Federal Defenders for the Eastern District, visited the MDC.
As set forth in detail in her declaration accompanying the Federal Defender's application for a
temporary restraining order, filed contemporaneously herewith and incorporated by reference
herein, von Domum discovered that much ofwhat Defendant Quay told the Southern District
was materially false and/or misleading. For example,the attorney at Federal Defenders witnessed
the following:
a. the facility was very cold (including one unit in which cold air was
blowing from facility vents), such that BOP officers were wearing
multiple layers and scarves around their heads, yet many inmates were
wearing only short-sleeved shirts and light cotton pants;
b. the lights were not functioning in individual cells, leaving the cells in total
darkness;
c. inmates widely reported that they had been unable to fill medical
prescriptions or request new medical care because the medical computer

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 7 of 11 PageID #: 7
system was not in operation, leading to numerous instances in which serious medical conditions were not receiving necessary treatment; d. inmates were unable to submit administrative grievances; e. inmates had not received clean clothing or bedding since the fire, forcing one inmate,for example,to sleep on bedding that was made bloody due to his ulcerative colitis; f. large fluctuations in water temperature and potability; g. one MDC official reported that certain inmates had not been allowed outside oftheir cells at all since the date ofthe fire; and h. certain inmates received only cold food for the several days following the
fire.
30. Despite what was witnessed by von Domum,the BOP issued a press release the following day,February 2,2019, which repeated certain ofthe materially false or misleading statements made by Defendant Quay. Most notably, the BOP press release represented that "medical services continue to be provided," even though numerous inmates reported not receiving needed medical care.
31. On February 3,2019,the BOP updated its press release,including three principal additions.First,that heating to the building"was not affected by the power outage."Second,that "[m]edical staff have checked and continue to check each inmate cell-by-cell periodically and continue to dispense required medications and address the medical needs ofthe inmate population." Third,that"[l]egal visits will be available today." Ofcourse,those first two representations wholly contradict what von Domum learned and observed during her visit two days earlier. As for the third, as noted above, limited legal visits were permitted in the moming

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 8 of 11 PageID #: 8
before legal visitation was abruptly cut short and the visiting attorneys were escorted out ofthe
MDC. D. The Harm to the Federal Defenders and Their Clients
32. The events described above have significantly impacted the Federal Defenders' ability to achieve the organization's principal objectives. The Federal Defenders have been unable to meet with or speak privately with their clients detained at the MDC,which has impaired client representation in several ways.
33. For example,the Federal Defenders have been unable to review discovery files with clients who are deciding whether to go to trial, how to plead, and how to frame a sentencing strategy. Additionally, presentence interviews with Federal Defenders' clients, as well as expert interviews, have been cancelled, which will significantly delay these clients' access to Justice. Meeting cancellations also have lengthened Federal Defenders' clients' stays at MDC because clients being considered for reentry programs could not be interviewed and thus released into those programs.
34. The events described above have caused a significant drain on the Federal Defenders' resources. The Federal Defenders have been forced to spend significant time,focus, and resources in addressing the issues at the MDC and attempting to visit clients there.
35. The Federal Defenders(and their clients at MDC)will be irreparably harmed if the above conduct is not preliminarily and permanently enjoined.
CLAIMS FIRST CAUSE OF ACTION
(Violation of the Sixth Amendment Right to Counsel) 36. The Federal Defenders incorporate all ofthe preceding paragraphs as iffully set
forth herein.

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 9 of 11 PageID #: 9
37. The Sixth Amendment to the U.S. Constitution guarantees that "[i]n all criminal prosecutions,the accused shall enjoy the right...to have the Assistance ofCounsel for his defence." Actions that substantially interfere with the right to counsel constitute a violation of
the Sixth Amendment.
38. Defendants have cancelled nearly all legal visiting in the West Building ofthe MDC since January 27 until the date ofthis Complaint. Their refusal to provide detailed information about these cancellations to defense counsel, as well as the dire conditions in which MDC inmates find themselves, have only made it more difficult for inmates to access their
attorneys. 39. These actions constitute substantial interference with Federal Defender clients'
right to counsel, in violation ofthe Sixth Amendment.
SECOND CAUSE OF ACTION
(Violation of the Administrative Procedure Act) 40. The Federal Defenders incorporate all ofthe preceding paragraphs as iffully set
forth herein.
41. BOP regulations require wardens to "provide the opportunity for pretrial inmateattorney visits on a seven-days-a-week basis." 28 C.F.R. §551.117(a).
42. BOP regulations also prohibit any limitation of"the frequency ofattorney visits" for all inmates,and obligate wardens to"make every effort to arrange for a visit" even when an attorney is unable to provide prior notification.28 U.S.C.§ 543.13(b),(d).
43. The BOP's failure to follow its own regulations is arbitrary and capricious and contrary to the law,and thus a violation ofthe Administrative Procedure Act.5 U.S.C.§ 706(2).

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 10 of 11 PageID #: 10
REQUEST FOR RELIEF
44. WHEREFORE,Plaintiffrespectfully requests that the Court: a. Declare that Defendants' denial oflegal visiting violates the Sixth
Amendment to the U.S. Constitution by improperly interfering with the right to counsel; b. Declare that Defendants' denial oflegal visiting arbitrarily and
capriciously fails to comply with the BOP's own regulations, in violation ofthe Administrative Procedure Act;
c. Preliminarily and permanently enjoin Defendants and their officers, agents,servants, employees,and attorneys,and all persons acting in concert or participation with them,from talcing any actions to prevent legal visiting from taking place on a daily basis at the MDC,and from taking any action to prevent social visiting for all inmates from occurring in accordance with the MDC's normal schedule and procedures for such visits;
d. Hold a hearing to evaluate the conditions ofconfinement that are infnnging the constitutional rights ofinmates at the MDC and require the Defendants to supply information about those conditions;
e. Appoint a special master to inspect the MDC and undertake the factfinding necessary to determine whether Defendants are protecting the constitutional rights ofinmates in their custody;
f. Award Plaintiffs attorneys' fees, costs, and other expenses to the extent permitted by law; and
g. Award such other and further relief as the Court determines to be Just and
proper.
10

Case 1:19-cv-00660-MKB-SMG Document 1 Filed 02/04/19 Page 11 of 11 PageID #: 11

Dated: Brooklyn, New York February 4,2019

Respectfully submitted.
Sean Hecker Jenna M.Dabbs Joshua Matz Derek Wikstrom
Matthew J. Craig Benjamin D. White {admission pending) Kaplan,Hecker& Fink LLP 350 Fifth Avenue, Suite 7110 New York, New York 10118 (212)763-0883 shecker@kaplanhecker.com jdabbs@kaplanhecker.com jmatz@kaplanhecker.com dwikstrom@kaplanhecker.com mcraig@kaplanhecker.com bwhite@kaplanhecker.com
Counselfor PlaintiffFederal Defenders ofNew
York, Inc.

11

 
 Case 1:19-cv-00660-MKB-SMG Document 9 Filed 02/04/19 Page 1 of 5 PageID #: 95

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center – Brooklyn,
Plaintiff, v.
FEDERAL BUREAU OF PRISONS and WARDEN HERMAN QUAY, in his official capacity,
Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE
No. 19-cv-660

Plaintiff Federal Defenders of New York, Inc., brings the instant action against the Federal Bureau of Prisons and Warden Herman Quay (collectively “Defendants”) alleging violations of the Sixth Amendment to the U.S. Constitution and the Administrative Procedures Act, 5 U.S.C. § 706, arising from the conditions of Plaintiff’s clients’ confinement at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. Plaintiff, proceeding by order to show cause, sought an order to restrain and enjoin Defendants from failing to permit (1) daily legal visitation for all inmates at the MDC; and (2) social visitation for all inmates in accordance with the MDC’s normal schedule and procedure. The Court held a hearing on February 4, 2019, at which counsel for Plaintiff and Defendants appeared.
Plaintiff’s submissions raise concerns regarding the conditions of its clients’ incarceration, as well its clients’ access to attorney visits and social visits. (See ECF Nos. 1, 57.) According to Plaintiff, legal visitation has been all but suspended since January 28, 2019. (Decl. Deirdre D. Von Dornum (“Von Dornum Decl.”), Exs. A, B, D, F, ECF No. 7.) With respect to conditions within MDC, Plaintiff represented that inmates at MDC had not been provided heat, hot water, or additional blankets, notwithstanding below-freezing temperatures.

Case 1:19-cv-00660-MKB-SMG Document 9 Filed 02/04/19 Page 2 of 5 PageID #: 96
See Annie Correal, No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates are Sick and ‘Frantic’, N.Y. Times (Feb. 1, 2019), https://nyti.ms/2UCOImd. Inmates were unable to refill medication or receive necessary medical treatment, had not been provided clean clothing or bedding, and were locked in their cells for long periods of time without explanation. (Von Dornum Decl., ¶¶ 31, 32, 35-38, 40-41, 43-44, 51-57.) Plaintiff also has proffered evidence that Defendants’ representations regarding conditions in MDC have been incomplete or inaccurate. (See Mem. Law Supp. Pl.’s Appl. TRO, 4-7, ECF No. 5.)
If the conditions of confinement at MDC are as represented in Plaintiff’s submissions, there can be little question that such conditions are constitutionally intolerable. See, e.g., Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (“[P]rison officials violate the Constitution when they deprive an inmate of his ‘basic human needs’ such as food, clothing, medical care, and safe and sanitary living conditions.”) (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)); Wilson v. Seiter, 501 U.S. 294, 304 (1991) (noting that “low cell temperature at night combined with a failure to issue blankets” may establish an Eighth Amendment violation). The Court, however, makes no finding with respect to the conditions of confinement at MDC. Indeed, the temporary restraining order sought by Plaintiff is limited to Plaintiff’s request to permit attorney and social visits. The Court denies Plaintiff’s request with respect to social visits, as Plaintiff has failed to articulate a cognizable claim for social visitation under the Sixth Amendment or the Administrative Procedures Act. Conversely, Plaintiff has made the requisite showing with respect to attorney visits.
There is no question that an inmate’s right to attorney visits is protected by the Sixth Amendment to our Constitution. See Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (holding that “unreasonable interference with the accused person’s ability to consult counsel is
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itself an impairment of the [Sixth Amendment] right.”); see also Maine v. Moulton, 474 U.S. 159, 170 (1985) (“[T]o deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.”). Defendants do not challenge this principle. Instead, Defendants argue, in relevant part, that granting Plaintiff’s requested relief would impede the ability of the Bureau of Prisons to address potential security concerns. The Court recognizes that security concerns are ever present in the prison context. This alone, however, does not permit the wholesale denial of a detainee’s Sixth Amendment right.
The government has suggested that an order requiring attorney visits would mire the Court in the daily administration of MDC and, in any event, that the Court is without the authority to enter such an order. While the Court agrees that it should not endeavor to assume the administration of MDC, the Court is not only authorized but obligated to ensure that individuals confined in our federal institutions are provided with access to attorneys, as guaranteed by the Constitution. If not the courts, then who?
Of course, an institution like MDC, “must be permitted to use reasonable means to insure that its legitimate interests in security are safeguarded.” Wolfish v. Levi, 573 F.2d 118, 124 (2d Cir. 1978), rev’d on other grounds, 441 U.S. 520 (1979). And, while courts “may disagree with the choice of means, . . . it is not wise . . . to second-guess the expert administrators on matters on which they are better informed.” Id. Indeed, “[c]oncern with minutiae of prison administration can only distract the court from detached consideration of the one overriding question presented to it: does the practice or condition violate the Constitution?” Id. at 125. Here, the Court is not concerned with minutiae. Instead, it is solely focused on whether Defendants’ alleged denial of access to legal visits since January 28, 2019, violates the Sixth Amendment. The Court finds that Plaintiff has at least demonstrated sufficiently serious
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questions as to the constitutionality of Defendants’ conduct and has met the other requirements for a temporary restraining order.
The standards for a preliminary injunction and temporary restraining order are identical. See Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). A party must demonstrate: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010). First, the irreparable harm here, the denial of access to legal counsel, is apparent on its face. Second, Plaintiff has raised sufficiently serious questions going to the merits of its claim to make them a fair ground for litigation. Third, Plaintiff has demonstrated that the balance of hardships tips decidedly in its favor.
For the foregoing reasons, upon Plaintiff’s February 4, 2019 submissions and the parties’ February 4, 2019 arguments, it is therefore:
ORDERED, that Defendants show cause before this Court, in Courtroom 6F, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York 11201, on February 13, 2019, at 10:30 a.m., or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Fed. R. Civ. P. 65 enjoining Defendants during the pendency of this action from (1) failing to permit daily legal visiting for all inmates at the MDC; and (2) failing to permit social visiting for all inmates in accordance with the MDC’s normal schedule and procedures for such visits; and pursuant to Fed. R. Civ. P. 53 appointing a special master to inspect MDC and undertake the factfinding necessary to determine whether Defendants are protecting the
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constitutional rights of inmates in their custody and complying with the injunction; and it is

further

ORDERED that sufficient reason having been shown, therefore, pending the hearing of

Plaintiff’s application for a preliminary injunction, pursuant to Fed. R. Civ. P. 65 Defendants are

temporarily required to reinstitute legal visiting at the MDC on the standard schedule: 8:00 a.m.

to 8:00 p.m., seven days per week; provided, however, that should Defendants determine that

security concerns necessitate the suspension of legal visiting for any period of two hours or

longer, Defendants shall within two hours of such determination notify the Court and the

Plaintiff of that determination and the reasons therefor, and within 24 hours of such

determination Defendants shall file with the Court an application consisting of a sworn affidavit

from Warden Quay that sets forth with specificity the reasons justifying the suspension; and it is

further

ORDERED that personal service of a copy of this order and the papers upon which it is

granted upon the Defendants or their counsel on or before February 5, 2019, at 12:00 p.m., shall

be deemed good and sufficient service thereof.

Dated: Brooklyn, New York February 4, 2019

/s/ LDH LaShann DeArcy Hall United States District Judge

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 Case 1:19-cv-00660-MKB-SMG Document 33 Filed 05/20/19 Page 1 of 6 PageID #: 517

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------FEDERAL DEFENDERS OF NEW YORK, INC., on behalf of itself and its clients detained at the Metropolitan Detention Center – Brooklyn,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS and WARDEN HERMAN QUAY, in his official capacity,

ORDER 19-CV-660 (MKB)

Defendants. --------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Federal Defenders of New York, Inc. commenced the above-captioned action on February 4, 2019, against Defendants the Federal Bureau of Prisons (the “BOP”) and Warden Herman Quay, challenging the cancellation of legal and social visits at the Metropolitan Detention Center (the “MDC”) in Brooklyn, New York, pursuant to the Sixth Amendment of the United States Constitution, U.S. Const. amend. VI, and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”). (Compl., Docket Entry No. 1.) Plaintiff, proceeding by order to show cause, sought an order to restrain and enjoin Defendants from failing to permit (1) daily legal visitation for all inmates at the MDC; and (2) social visitation for all inmates in accordance with the MDC’s normal schedule and procedure. (Pl. Unsigned Order to Show Cause, Docket Entry No. 3.) On March 1, 2019, the Court heard argument on Plaintiff’s application for injunctive relief and, as discussed on the record, denied Plaintiff’s application — finding that, pursuant to the Supreme Court’s decision in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014), despite having Article III constitutional standing to

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bring this case on behalf of its clients, Plaintiff does not have a cause of action under the Sixth Amendment or the APA. (Tr. of Oral Argument held on Mar. 1, 2019 (“Tr.”) 45:5–25–46:1–6.) The Court granted Plaintiff leave to amend the Complaint. (Id. at 46:10–11.)
On March 29, 2019, Plaintiff filed a letter informing the Court that it will not amend the Complaint. (Pl. Ltr. dated Mar. 29, 2019, Docket Entry No. 30.) Plaintiff’s letter also states that it anticipates that Defendants would move to dismiss the Complaint or that the Court would dismiss the Complaint sua sponte.1 (Id.) Defendants agree that the Court can dismiss this action sua sponte. (Defs. Ltr. dated Apr. 3, 2019, Docket Entry No. 31.) As discussed below, the Court sua sponte dismisses the Complaint.
I. Discussion a. Standard of review
“‘The district court has the power to dismiss a complaint sua sponte for failure to state a claim’ . . . so long as the plaintiff is given notice and ‘an opportunity to be heard.’” Wachtler v. Cty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (first quoting Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980); and then quoting Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991)); see also FPP, LLC v. Xaxis US, LLC, --- F. App’x ---, ---, 2019 WL 1552344, at *2 (2d Cir. Apr. 10, 2019) (affirming district court’s sua sponte dismissal of claim and holding that the court “will reverse a district court’s sua sponte dismissal if the court ‘gave the parties no advance notice that dismissal was contemplated and afforded them no opportunity to brief the question’” (quoting McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001))); Grant v. County of Erie, 542 F.
1 By letter dated April 4, 2019, Plaintiff states that, while it opposes dismissal of the Complaint, it agrees that the “Court’s legal ruling precludes [Plaintiff] from pursuing their claims at present,” and Plaintiff “reserve[s] all rights to challenge the Court’s conclusion” through an appeal. (Pl. Ltr. dated Apr. 4, 2019, Docket Entry No. 32.)
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App’x 21, 24 (2d Cir. 2013) (“[A] district court may dismiss an action sua sponte for failure to state a claim so long as the plaintiff is given notice of the grounds for dismissal and an opportunity to be heard.”).
b. Plaintiff does not have a cause of action under the Sixth Amendment or the APA
In opposing Plaintiff’s application for injunctive relief, Defendants argued that, as an initial matter, the Court lacked subject matter jurisdiction to adjudicate Plaintiff’s claims. (Defs. Mem. in Opp’n to Pl. Mot. for a Prelim. Inj. (“Defs. Mem.”) 7, Docket Entry No. 22.) Specifically, Defendants argued that Plaintiff lacked (1) standing to bring a claim in its individual capacity for alleged violations of its clients’ Sixth Amendment rights, (2) standing to bring an APA claim in its individual capacity, (3) third-party standing to bring Sixth Amendment and APA claims on behalf of its clients, and (4) standing to bring a claim regarding conditions at the MDC, as conceded by Plaintiff. (Id. at 7–13.)
Although Defendants argued that Plaintiff lacks standing to bring this action, the Court understood the proper question to be whether Plaintiff had a cause of action under the Sixth Amendment or the APA pursuant to Lexmark, where the Supreme Court addressed and clarified the issue of standing.2 At oral argument, the Court heard extensive arguments from Plaintiff as to whether Plaintiff has a cause of action under the Sixth Amendment or the APA. (See
2 In Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014), the Supreme Court held that the term “statutory standing” is “misleading, since ‘the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate a case.’” 572 U.S. at 127 (citation omitted); see American Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016) (finding that the question of whether a particular plaintiff has a cause of action “‘does not belong’ to the family of standing inquires” (quoting Lexmark, 572 U.S. at 127)).
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generally Tr.) In concluding that Plaintiff did not have a cause of action, the Court began with the Sixth Amendment, which guarantees criminal defendants the right to effective assistance of counsel. See U.S. Const. amend. VI. The Court explained that the right to counsel is a right that is personal to the accused. See Faretta v. California, 422 U.S. 806, 837 (1975) (Burger, J., dissenting) (“As the Court seems to recognize . . . the conclusion that the rights guaranteed by the Sixth Amendment are ‘personal’ to an accused reflects nothing more than the obvious fact that it is he who is on trial and therefore has need of a defense.”); see also United States v. Medunjanin, 752 F.3d 576, 587 (2d Cir. 2014) (finding, at least in the context of Miranda v. Arizona, 384 U.S. 436 (1966), that “the right to counsel is personal to the individual questioned; it is a right that must be affirmatively invoked by the suspect” (citation and internal quotation marks omitted)); Coleman v. Hardy, 690 F.3d 811, 818 (7th Cir. 2012) (“The law is clear . . . that an attorney cannot invoke his client’s right to counsel under Miranda.”). Thus, unlike in the context of claims pursuant to the Fair Housing Act and 42 U.S.C. § 1983, as discussed in Havens Realty Corporation. v. Coleman, 455 U.S. 363, 379 (1982) and Centro de la Comunidad Hispana de Locus Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017), upon which Plaintiff relies to argue that it has standing and which involved broad federal statutes that expressly authorized suit,3 the Sixth Amendment right to counsel is personal to the accused and there is no indication that Congress has ever intended to authorize attorneys to bring suit under the right to counsel clause of the Sixth Amendment. Thus, because the right to counsel is
3 In Havens, the plaintiff brought suit under the Fair Housing Act, which the Supreme Court held provided for standing to the “full limit” of Article III and under which courts lack the authority to impose prudential barriers. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982). In Centro, the organizational plaintiff brought suit under section 1983, challenging a town ordinance under the First and Fourteenth Amendments, which have broad language granting rights to the general public. See Centro de la Comunidad Hispana de Locus Valley v. Town of Oyster Bay, 868 F.3d 104, 108 (2d Cir. 2017).
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personal to the accused, Plaintiff does not have a cause of action under the Sixth Amendment. Similarly, the Court found that Plaintiff does not have a cause of action under the APA
because Plaintiff was not within the “zone of interests” sought to be protected or regulated by the relevant statutes. (Tr. 45:5–25–46:1–2.) Section 702 of the APA provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. To bring a claim under the APA, “a plaintiff must satisfy Article III’s standing requirements (constitutional standing) and assert interests that are arguably within the zone of interests to be protected or regulated by the statute she claims was violated (statutory standing), at all times during the litigation (mootness).” Salazar v. King, 822 F.3d 61, 73 (2d Cir. 2016). “Whether a plaintiff comes within the zone of interests is an issue that requires [a court] to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S. at 127 (internal quotation marks omitted).
During the hearing, Plaintiff identified 18 U.S.C. § 4001 as the relevant statute. (Tr. 35:17–18.) Section 4001 of title 18 of the United States Code provides that the “control and management of Federal penal and correctional institutions . . . shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations.” 18 U.S.C. § 4001(b)(1). Although not identified by Plaintiff during the hearing, the Court also considered the applicability of 18 U.S.C. § 4042(a)(1)–(2). Under section 4042 of title 18 of the United States Code, the BOP shall, among other things, “have charge of the management and regulation of all Federal penal and
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correctional institutions” and “provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States . . . .” 18 U.S.C. § 4042(a)(1)–(2). These statutory provisions relate primarily to the health, safety, and well-being of inmates and facility personnel. Although broadly worded, the statutes do not protect Plaintiff’s interest in access to its clients, nor has Plaintiff pointed to legislative history that would suggest the zone of interests encompasses such an interest. In addition, to the extent Plaintiff’s APA claim relies on the Sixth Amendment right to counsel, the APA claim fails for the same reasons the Sixth Amendment claim fails.
At the conclusion of oral argument and based generally on the reasoning summarized above, the Court denied Plaintiff’s request for injunctive relief but granted Plaintiff the opportunity to amend the Complaint. Based on Plaintiff’s March 29, 2019 submission to the Court, informing the Court that it will not amend the Complaint and inviting the Court to sua sponte dismiss the action, and on Defendants’ response also urging sua sponte dismissal of the action, the Court dismisses the Complaint because Plaintiff does not have a cause of action under the Sixth Amendment or the APA.
The Clerk of Court is directed to close this case. Dated: May 19, 2019
Brooklyn, New York SO ORDERED:
s/ MKB MARGO K. BRODIE United States District Judge
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 Case 1:19-cv-00660-MKB-SMG Document 36 Filed 03/23/20 Page 1 of 28 PageID #: 526

19-1778 Federal Defenders of New York, Inc. v. Federal Bureau of Prisons
In the
United States Court of Appeals
For the Second Circuit
______________

August Term, 2020

(Argued: February 11, 2020

Decided: March 20, 2020)

Docket No. 19-1778 ______________

FEDERAL DEFENDERS OF NEW YORK, INC., ON BEHALF OF ITSELF AND ITS CLIENTS DETAINED AT THE METROPOLITAN DETENTION CENTER-BROOKLYN,

Plaintiff-Appellant,

–v.–

FEDERAL BUREAU OF PRISONS, WARDEN HERMAN QUAY, IN HIS OFFICIAL CAPACITY,

______________

Defendants-Appellees.

B e f o r e:

WALKER, PARKER, and CARNEY, Circuit Judges. ______________

Plaintiff-Appellant the Federal Defenders of New York, Inc. (the “Federal Defenders” or “Defenders”) appeals from a June 4, 2019 judgment of the United States District Court for the Eastern District of New York (Brodie, J.), dismissing the organization’s complaint against Defendants-Appellees the Federal Bureau of Prisons

CERTIFIED COPY ISSUED ON 03/20/2020

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(the “BOP”) and Warden Herman Quay (“Warden Quay”) (together, “Defendants”). The Federal Defenders allege that Defendants’ curtailment of inmate-attorney visits at the Metropolitan Detention Center-Brooklyn (the “MDC”) in early 2019 violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), and the constitutional right to counsel established by the Sixth Amendment. We conclude that the District Court erred in dismissing the Federal Defenders’ APA claim by failing to consider applicable BOP regulations in its zone-of-interests analysis. In its ruling, the District Court also misconstrued the Defenders’ Sixth Amendment claim: whereas the Federal Defenders invoke the court’s traditional equitable powers in their Sixth Amendment claim against Defendants, the District Court treated this claim as purporting to arise under the Constitution itself. Because the equitable basis of the Federal Defenders’ Sixth Amendment claim raises novel questions of constitutional law, we think it prudent to defer ruling on its merits. We therefore vacate the District Court’s judgment and remand the cause for further proceedings. In particular, we direct the District Court on remand to consider appointing a master to mediate the parties’ differences at the earliest possible time to ensure that the Federal Defenders have meaningful, continuous access to their clients either in person or by remote access pending adjudication of these claims, as these claims may be amended to address similar issues of access arising during the current public health emergency.
VACATED and REMANDED. The mandate shall issue FORTHWITH. ______________
JENNA M. DABBS (Sean Hecker, Joshua Matz, Matthew J. Craig, Benjamin D. White, on the brief), Kaplan Hecker & Fink LLP, New York, NY, for Plaintiff-Appellant.
SEAN P. GREENE (Varuni Nelson, Rachel G. Balaban, Seth D. Eichenholtz, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendants-Appellees. ______________
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JOHN M. WALKER, JR., BARRINGTON D. PARKER, SUSAN L. CARNEY: This appeal concerns the severe curtailment of defense attorneys’ access to client
inmates held at the Metropolitan Detention Center-Brooklyn (“MDC”), most of whom are pretrial detainees who have not been convicted of a crime.
In February 2019, the Federal Defenders of New York, Inc. (the “Federal Defenders” or “Defenders”) sued the Federal Bureau of Prisons (the “BOP”) and Warden Herman Quay (“Warden Quay”) (together, “Defendants”), alleging that their cancellation of inmate-attorney visits at the MDC violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), and the right to counsel established by the Sixth Amendment. The United States District Court for the Eastern District of New York (Brodie, J.), dismissed the complaint for failure to state a claim. The District Court held that the Federal Defenders’ APA claim did not satisfy the zone-of-interests test and it concluded that the Defenders did not have a cause of action under the Sixth Amendment because the constitutional right to counsel is personal to the accused.
For the reasons set forth below, we VACATE the District Court’s judgment. The District Court erred in dismissing the Defenders’ APA claim by failing to consider relevant BOP regulations in its zone-of-interests analysis. It also misunderstood the basis of their Sixth Amendment claim: whereas the Federal Defenders bring this claim under the federal courts’ inherent equitable powers, the District Court treated the claim as purporting to arise directly under the Sixth Amendment. Because the equitable nature of the claim raises important questions of constitutional law not fully explored by the District Court, we remand the cause for further proceedings on the APA claim and, if necessary, for reconsideration of the Sixth Amendment claim.
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BACKGROUND The MDC is the principal federal pretrial detention facility in the Eastern District of New York. It houses more than 1,600 inmates in two buildings located in Brooklyn. The BOP, which administers the nation’s federal jail and prison system, oversees and directs operations at the MDC, with Warden Quay superintending the facility during the period relevant to this appeal. Regulations issued by the BOP govern inmate-attorney visits at the MDC.1 Under these rules, the Warden is responsible for “set[ting] the time and place” for attorney visitation. 28 C.F.R. § 543.13(b). In doing so, he must “provide the opportunity for pretrial inmate-attorney visits on a seven-days-a-week basis,” id. at § 551.117(a), and he must “make every effort to arrange for a visit when prior notification is not practical,” id. at § 543.13(c). In addition, the Warden generally may not restrict the frequency of attorney visits or require these visits to take place outside of normal visitation hours, although he “may make exceptions according to local conditions or for an emergency situation demonstrated by the inmate or visiting attorney.” Id. at § 543.13(b). The “standard practice” at the MDC is to allow attorneys to visit detainees from 8 am to 8 pm, seven days per week.2 Joint App’x (“JA”) 11. The Federal Defenders—a
1 Congress has vested the Attorney General with the broad authority to “control and manage[]” federal penal and correctional institutions. 18 U.S.C. § 4001(b)(1). The Attorney General, in turn, has delegated that authority to the federal BOP. See 28 C.F.R. § 0.96. 2 This statement of facts is drawn from the allegations in the complaint, the documents filed by the Federal Defenders in connection with their motion for a temporary restraining order (which were incorporated by reference into the complaint), see JA 14, and “matters of which judicial notice may be taken.” S.E.C. v. Apuzzo, 689 F.3d 204, 207 (2d Cir. 2012) (internal quotation marks omitted).
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not-for-profit organization that “is dedicated to offering public defense services to indigent persons in federal criminal cases brought in the Eastern and Southern Districts of New York”—rely on this schedule to visit their clients at the MDC. JA 10.
In January 2019, however, a series of events resulted in a severe curtailment of the Federal Defenders’ access to MDC inmates. First, the BOP cancelled or substantially delayed attorney visitation at the MDC during seven days in January, citing staffing issues related to a partial shutdown of the federal government that resulted from a budgetary dispute. Shortly after the government shutdown ended on January 25 and attorney visiting resumed, the BOP again cancelled all inmate-attorney visits at the MDC, effective from January 28 through February 2, this time in response to a fire that started in the MDC’s switch gear room on January 27 and caused power outages throughout the facility. Inmate-attorney visits resumed again, temporarily, on February 3, but were then abruptly halted after less than four hours, apparently because of a confrontation between BOP officials and individuals who had assembled in the MDC’s lobby.
The Federal Defenders spent “significant time, focus, and resources” in responding to these disruptions in the MDC’s schedule for attorney visits. JA 16. During the January government shutdown, for example, the Federal Defenders complained in a contemporaneous letter to BOP officials that the “[l]ast-minute scheduling changes and unexpected closings impose[d] significant burdens on the Defenders and other defense lawyers, particularly those who ha[d] to travel long distances to meet with clients at these facilities, need[ed] to arrange for interpreters or other experts to attend meetings
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with their clients, or ha[d] a time-sensitive matter to discuss.” JA 47.3 Later, in the wake of the January 27 fire, the Federal Defenders dedicated resources to contacting their clients in the MDC and gathering information about their clients’ welfare. After hearing reports that the power outages had deprived many detainees of heating, electricity, hot water, phones, medical care, and other basic services, the Defenders repeatedly requested information from BOP officials on the conditions at the MDC and sought to know the reasons that the facility cancelled visitation. When the BOP “[s]tonewall[ed]” their requests, the Federal Defenders turned to the courts, seeking and securing an administrative order from the District Court (Irizarry, then C.J.) that required the BOP to allow the Federal Defenders to inspect the MDC facilities and to speak directly with the inmates. JA 13-14.
In addition to draining the Federal Defenders’ resources, the BOP’s cancellations and delays of attorney visits impaired the Defenders’ ability to represent their clients. During these periods of curtailment, the Federal Defenders could not review discovery files with clients. Nor could they counsel MDC inmates on pleading decisions, trial strategy, or the sentencing process. Disruptions to the visiting schedule also forced the Defenders’ attorneys to cancel presentence and expert interviews and to postpone interviews for reentry programs that could have shortened their clients’ periods of detention at the MDC.
3 As noted above, the complaint incorporates the documents submitted by the Federal Defenders in connection with their motion for a temporary restraining order, including their January 22 letter to the BOP.
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On February 4, 2019, the Federal Defenders filed this action.4 In their Complaint, they allege that Defendants’ suspension of attorney visitation at the MDC in early 2019 violated the APA (by contravening the BOP’s own regulations on inmate-attorney visits) and the Sixth Amendment (by interfering with the right to counsel). The Federal Defenders request injunctive and declaratory relief, primarily in the form of an order requiring Defendants to maintain daily attorney visitation at the MDC.
On the day that the Federal Defenders filed their complaint, the District Court (DeArcy Hall, J.) granted their concurrent application for a temporary restraining order (the “TRO”). The TRO required Defendants to reinstate attorney visits “in accordance with the MDC’s normal schedule and procedures for such visits.” JA 157. Inmateattorney visitation at the MDC—which had been cancelled again on February 4, 2019, because of a bomb threat—resumed. The District Court (Brodie, J.) then scheduled a March 1 hearing date for the Defenders’ application for a preliminary injunction, directing the parties to prepare “for oral argument on the issue of whether [the Federal Defenders] ha[ve] standing to bring this action.” JA 6.5
At the March 1 hearing, the District Court reframed the discussion. The government had opposed the Federal Defenders’ motion for a preliminary injunction, arguing that the Defenders lacked standing to sue for the stated violations of legal rights, which (they asserted) belonged to MDC inmates alone. In the District Court’s
4 On February 22, 2019, certain MDC inmates acting on behalf of an asserted class filed a separate, but related, action for damages, alleging that in the aftermath of the January 27 fire, BOP officials subjected them to unconstitutional conditions and deprived them of legal counsel. See Am. Compl., Scott v. Quay, No. 19-cv-1075 (E.D.N.Y. Nov. 15, 2019), ECF No. 29. 5 Defendants agreed to keep the TRO in effect until the preliminary injunction hearing.
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view, however, the central issue was not whether the Federal Defenders had Article III standing to bring their claims, but rather whether they could maintain a cause of action under the APA or the Sixth Amendment to press for relief. The District Court expressed concern, in particular, about whether the Federal Defenders’ claims satisfied the socalled zone-of-interests test—a test developed in case law and holding generally that a plaintiff has no cause of action if his interests lie outside the zone of interests arguably protected or regulated by the law that the plaintiff seeks to invoke. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126-29 (2014). After hearing from both sides, the District Court denied the Federal Defenders’ application for a preliminary injunction, concluding that, under the zone-of-interests doctrine, they had failed to state a claim under either the APA or the Sixth Amendment.
The Defenders declined to amend their complaint to address the flaw perceived by the District Court. Instead, they informed the District Court that they would appeal the dismissal of their suit. Accordingly, on May 20, 2019, the District Court dismissed the complaint sua sponte for failure to state a claim. See Order, Federal Defs. of N.Y., Inc. v. Fed. Bureau of Prisons, No. 19-cv-660 (MKB) (E.D.N.Y. May 19, 2019), ECF No. 33 (“Order”). In a brief six-page opinion that reiterated and, to some extent, clarified the court’s reasons for denying the Federal Defenders a preliminary injunction on March 1, the District Court set forth its two primary conclusions. First, it ruled that the Defenders have no cause of action under the Sixth Amendment to sue for alleged violations of the right to counsel. This is because, the District Court stated, the constitutional right to counsel is personal to the accused and does not accrue to the Federal Defenders. Second, the Court determined that the Defenders’ APA claim does not fall within the zone of interests that Congress sought to protect in 18 U.S.C. § 4001 (which the Federal Defenders identified as the relevant statutory provision at the March 1 hearing) or 18
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U.S.C. § 4042 (which the District Court identified, on its own, as potentially relevant).6 Omitting any mention of the BOP regulations on attorney visitation that the Federal Defenders cited in their complaint, the District Court’s decision focused exclusively on statutory sections 4001 and 4042. It concluded that, although these provisions are “broadly worded,” they do “not protect [the Defenders’] interest in access to its clients” because the provisions “relate primarily to the health, safety, and well-being of inmates and facility personnel.” Order at 6.
This timely appeal followed.
DISCUSSION We review de novo a district court’s sua sponte dismissal of a complaint for failure to state a claim. See J.S. v. T’Kach, 714 F.3d 99, 103 (2d Cir. 2013). In doing so, we accept as true all well-pled factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012). The Federal Defenders contend that, in dismissing their complaint, the District Court misapplied the zone-of-interests test. With respect to their APA claim, they urge that the District Court erred by failing to consider the BOP regulations that govern inmate-attorney visits. As for their Sixth Amendment claim, the Federal Defenders assert that the zone-of-interests test does not apply to constitutional claims for relief
6 Section 4001 provides, in relevant part, that the Attorney General has rulemaking authority related to “[t]he control and management of Federal penal and correctional institutions, except military or naval institutions.” 18 U.S.C. § 4001(b)(1). Section 4042 instructs the BOP to “provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.” Id. § 4042(a)(2).
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pursued under the court’s inherent equitable powers, and that even if the test does apply, their interests in this litigation would satisfy it. Below, we consider these arguments in turn. Before doing so, however, we address Defendants’ contention that the Federal Defenders lack Article III standing because the relief they request will not redress their alleged injury. See Strubel v. Comenity Bank, 842 F.3d 181, 187 (2d Cir. 2016) (“[B]ecause standing is necessary to our jurisdiction, we are obliged to decide the question at the outset.”). If the Defenders do not have Article III standing, we must dismiss for want of jurisdiction. As set forth below, however, we reject this threshold argument.
I. Redressability To establish “the irreducible constitutional minimum” of Article III standing, a
plaintiff must show: (1) “an injury in fact,” (2) “a causal connection between the injury and the conduct complained of,” and (3) a likelihood that “the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted). Defendants submit that the Federal Defenders’ stated injury fails to satisfy the third element: redressability. They contend that, because Defendants reinstated normal visitation schedules at the MDC after this action was filed, the Federal Defenders’ alleged injuries constitute “past harms” that cannot be addressed by their request for prospective injunctive and declaratory relief. Appellees’ Br. 20.
Under established standing doctrine, however, we evaluate “whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (emphasis added). Thus, if the Federal Defenders’ claims satisfy Article III’s redressability requirement “as of the outset of litigation,” they will continue to do so throughout the litigation. Klein ex rel.
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Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d 215, 221 (2d Cir. 2018) (internal quotation marks omitted), cert. dismissed sub nom. Cadian Capital Mgmt., LP v. Klein, 139 S. Ct. 1406 (2019). Here, the Federal Defenders allege that Defendants continued to interfere with their access to MDC inmates up through the filing of the complaint on February 4, 2019. Taken as true, this allegation establishes that the Federal Defenders’ injuries were ongoing when this suit was filed and were therefore amenable at that time to redress by their request for prospective injunctive relief. This is enough to satisfy Article III’s redressability requirement.
In arguing that the Federal Defenders’ stated injuries are not redressable because the MDC has returned to its normal inmate-attorney visitation schedule, Defendants appear to confuse standing with mootness. While standing doctrine determines whether a plaintiff has a personal stake in the litigation when the complaint is filed, “[m]ootness doctrine determines what to do if an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation after its initiation.” Id. at 221 (internal quotation marks and brackets omitted). Defendants, however, “cannot automatically moot [this] case simply by ending [their] unlawful conduct once sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Instead, they must show that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. Although the events of early 2019 were hardly routine, Defendants have not argued—much less demonstrated—that the circumstances that disrupted attorney-client visits at the MDC are unlikely to arise again. Indeed, recent public health-related developments suggest that they are all too likely to recur. See Danielle Ivory, “We Are Not a Hospital”: A Prison Braces for the Coronavirus, N.Y. TIMES (Mar. 18, 2020), https://www.nytimes.com/2020/03/17/us/coronavirus-prisonsjails.html (reporting that the BOP has suspended visits, including most visits by
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lawyers, to the federal prison system for 30 days in response to the outbreak of COVID19). Accordingly, Defendants have not carried their “formidable burden” of demonstrating that intervening events mooted the Federal Defenders’ claims. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Defendants also insist that, as a matter of law, the Federal Defenders’ claims are not redressable because courts do not have the authority to provide the relief requested. No judge, they contend, “could, as a legal or practical matter, prevent Defendants from taking such actions as they deem necessary in emergency situations to protect those entrusted to their care, including, if necessary, altering the attorney visitation schedule while those emergencies persist.” Appellees’ Br. 20. In support, Defendants cite several BOP regulations that charge the Warden with developing various detention-facility procedures. See 28 C.F.R. §§ 540.40 (regarding inmate visitation by family, friends, and others, and restrictions of such visits when necessary for “security and good order”), 543.10 (affording inmates “reasonable access to legal materials and counsel, and reasonable opportunity to prepare legal documents”), 543.13 (permitting “visits by the retained, appointed, or prospective attorney of an inmate or by an attorney who wishes to interview an inmate as a witness”).
This argument is unavailing. Judicial consideration of claims is generally available unless clearly precluded by Congress. See Webster v. Doe, 486 U.S. 592, 603 (1988). Here, Defendants do not identify any statute that precludes courts from evaluating the lawfulness of the Warden’s conduct, even during emergency situations. The BOP regulations that Defendants reference in their appellate brief merely delegate to the Warden the authority to develop procedures for inmate visitations and access to legal counsel; they do not shield the Warden’s conduct from judicial review. Nor are we
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persuaded that judicial relief is unavailable as a “practical matter.” Appellee’s Br. 20. If the Federal Defenders prevail on the merits of this dispute, we see no reason why a court could not grant appropriate relief and order Defendants to conform their conduct to statutory and constitutional law. Even if such an order were to acknowledge the Warden’s authority to close a facility in an emergency, it could nevertheless establish the legal boundaries that limit such a closure.
For these reasons, we conclude that the Federal Defenders satisfy the redressability requirement of constitutional standing.
II. APA Claim We next consider whether the District Court correctly dismissed the Federal
Defenders’ APA claim for failing to satisfy the zone-of-interests test. Under the zone-ofinterests doctrine, a plaintiff may state a cause of action only when his interests in the litigation “fall within the zone of interests protected by the law invoked.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017) (internal quotation marks omitted). Although courts traditionally classified this doctrine as part of ”[the] prudential branch of standing,” the Supreme Court recently clarified in its Lexmark decision that the zoneof-interests test actually determines whether a plaintiff has a right to sue under a particular substantive law, and is not of jurisdictional import. Lexmark, 572 U.S. at 12627 (internal quotation marks omitted). More precisely, the test “requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Bank of Am. Corp., 137 S. Ct. at 1303 (citation omitted).
Here, the Federal Defenders sue under the APA, alleging that Defendants failed to comply with the BOP’s own regulations on inmate-attorney visits. The APA provides
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a civil cause of action to those “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see also Sharkey v. Quarantillo, 541 F.3d 75, 83-84 (2d Cir. 2008). In doing so, the statute functions as an “omnibus judicial-review provision,” permitting “suit[s] for [agency] violations of numerous statutes of varying character that do not themselves include causes of action for judicial review.” Lexmark, 572 U.S. at 130.
The relevant zone of interests for an APA claim is defined by “the statute that [the plaintiff] says was violated,” rather than by the APA itself. Match-E-Be-Nash-SheWish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (internal quotation marks omitted); see also East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 767-68 (9th Cir. 2018). In keeping with “Congress’s evident intent when enacting the APA to make agency action presumptively reviewable,” the zone-of-interests test is not “especially demanding” in the APA context, as the Supreme Court has explained. Match-E, 567 U.S. at 225 (internal quotation marks omitted). The test “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. (internal quotation marks omitted). The Supreme Court has emphasized, moreover, that an APA claim need only “arguably” fall within “the zone of interests to be protected or regulated by the statute that he says was violated,” explaining that “the word ‘arguably’ . . . indicate[s] that the benefit of any doubt goes to the plaintiff.” Id. at 224-25 (emphasis added) (internal quotation marks omitted).
The Federal Defenders submit that their APA claim satisfies this “lenient” test. Lexmark, 572 U.S. at 130. On appeal, they point to three regulatory provisions, adopted by the BOP and published in title 28 of the Code of Federal Regulations, as sheltering
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their organization’s interests in having frequent and predictable access to clients housed at the MDC. The first, which is codified at section 551.117(a), directs the Warden to “provide the opportunity for pretrial inmate-attorney visits on a seven-days-a-week basis.”7 The second, found in section 543.13(b), sets forth various parameters for scheduling this daily visitation.8 As relevant to the present appeal, the provision generally prohibits the Warden from “limit[ing] the frequency of attorney visits” or requiring these visits to occur outside of “regular visiting hours,” while at the same time empowering the Warden to “make exceptions according to local conditions or for an emergency situation demonstrated by the inmate or visiting attorney.” 28 C.F.R. § 543.13(b). Finally, the Federal Defenders highlight section 543.13(c), which directs the Warden to “make every effort to arrange for a[n] [attorney-client] visit,” even when the attorney is unable to notify the Warden of the visit in advance.9
The District Court did not address these regulations when it dismissed the Federal Defenders’ APA claim. Instead, it confined its zone-of-interests analysis to the two statutory provisions mentioned above: 18 U.S.C. § 4001, which generally authorizes
7 See 28 C.F.R. § 551.117(a) (“The Warden shall provide the opportunity for pretrial inmateattorney visits on a seven-days-a-week basis.”). 8 See 28 C.F.R. § 543.13(b) (“The Warden generally may not limit the frequency of attorney visits since the number of visits necessary is dependent upon the nature and urgency of the legal problems involved. The Warden shall set the time and place for visits, which ordinarily take place during regular visiting hours. Attorney visits shall take place in a private conference room, if available, or in a regular visiting room in an area and at a time designed to allow a degree of privacy. The Warden may make exceptions according to local conditions or for an emergency situation demonstrated by the inmate or visiting attorney.”). 9 28 C.F.R. § 543.13(c) (“The attorney shall make an advance appointment for the visit through the Warden prior to each visit; however, the Warden shall make every effort to arrange for a visit when prior notification is not practical.”).
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the Attorney General to promulgate rules relating to “[t]he control and management of Federal penal and correctional institutions,” and 18 U.S.C. § 4042, which entrusts the BOP with, inter alia, providing for “the safekeeping, care, and subsistence of all persons charged with . . . offenses against the United States.” Although the District Court’s written opinion provides no explanation for its decision to focus exclusively on sections 4001 and 4042 of title 18, the transcript of its March 1 preliminary injunction hearing offers some clues to the Court’s thinking. In that hearing, the District Court expressed uncertainty about whether it could consider regulations when applying the zone-ofinterests test, asking the parties on several occasions whether its inquiry had to be limited to the relevant statutory provisions.
The District Court’s hesitation is understandable. We have not addressed in any detail the role that agency regulations might play in the zone-of-interests inquiry.10 Nor have we explicitly held that a plaintiff may satisfy this doctrine by demonstrating that his interests fall within those protected or regulated by agency rules. Moreover, we can see how, at first blush, agency regulations might be viewed as irrelevant, or even inappropriate, to the zone-of-interests analysis. The core concern of the zone-of-interests doctrine is, after all, whether a plaintiff has a cause of action under the law invoked, see Lexmark, 572 U.S. at 126-27, and courts have long recognized that agency regulations cannot themselves “conjure up a private cause of action that has not been authorized by Congress,” Alexander v. Sandoval, 532 U.S. 275, 291 (2001); see also Smith v. Dearborn Fin.
10 We have identified only one published opinion in which this Court expressly considered agency regulations when applying the zone-of-interests test. In Acevedo v. Nassau County, we concluded, in dicta and without much discussion, that the plaintiffs failed to satisfy the zone-ofinterests test because their interests did not align with, inter alia, “[t]he purposes” of certain regulations issued by the General Services Administration. 500 F.2d 1078, 1083 (2d Cir. 1974).
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Servs., Inc., 982 F.2d 976, 979 (6th Cir. 1993) (“[F]ederal regulations cannot themselves create a cause of action; that is a function of the legislature.”).
Upon closer examination, however, we conclude that agency regulations properly inform the zone-of-interests inquiry in at least two ways. First, agency interpretations of their enabling statutes are among the “traditional tools of statutory interpretation” that the Supreme Court has instructed us to use when defining the zone of interests protected by a given statute. Bank of Am. Corp., 137 S. Ct. at 1303 (internal quotation marks omitted). Recognizing the value that agency expertise can bring to statutory interpretation, courts have developed canons of construction that afford varying degrees of deference to an agency’s views of the law that it is charged with administering. See United States v. Mead Corp., 533 U.S. 218, 227-28 (2001) (discussing levels of deference owed to agencies); see also Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113 (2d Cir. 2015) (noting that the “traditional tools of statutory interpretation” include “affording some degree of weight to the interpretations of the agencies charged with enforcing [the statute under review]”). We think that those same canons can help courts apply the zone-of-interests doctrine, given that the related inquiry is, in most cases, simply an exercise in statutory interpretation.11 Indeed, the Supreme Court signaled as much in Match-E, where it looked to agency rules for guidance on whether a plaintiff’s APA claim fell within the zone of interests protected by the Indian Reorganization Act, observing that “[these] regulations make [the Act’s] statutory concern with land use crystal clear.” 567 U.S. at 226.
11 The parties dispute whether the zone-of-interests test applies to constitutional claims. As discussed below, however, we need not—and do not—reach this question to resolve the Federal Defenders’ appeal.
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Second, agency regulations are likely to be critical to a correct zone-of-interests analysis where, as here, a plaintiff’s APA claim is predicated on an agency’s violation of its own regulations. Under deeply rooted principles of administrative law, not to mention common sense, government agencies are generally required to follow their own regulations. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) (“Accardi”) (articulating this principle); Singh v. DOJ, 461 F.3d 290, 296 (2d Cir. 2006) (observing that, at least since Accardi, “the Supreme Court has held that an administrative agency must adhere to its own regulations”). When agencies fail to do so, the APA (as developed by case law) gives aggrieved parties a cause of action to enforce compliance. See Webster, 486 U.S. at 602 n.7 (“[T]he Agency’s failure to follow its own regulations can be challenged under the APA . . . .” (emphasis in original)); see also Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 642 (10th Cir. 1990) (“The failure of an agency to follow its own regulations is challengeable under the APA.”); Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569, 594 (2006) (explaining that the APA provides aggrieved parties with a cause of action to enforce an agency’s duty to adhere to its own rules). Importantly, such a cause of action under the APA stands independent of any other right to sue agencies for violations of a statute. It exists to bring an agency’s conduct into conformity with “existing valid regulations,” not to ensure that an agency’s regulations are, themselves, lawful and valid. Accardi, 347 U.S. at 268.
We think that our application of the zone-of-interests test must reflect the purpose and contours of this particular APA cause of action for regulatory noncompliance. After all, the test’s raison d'être is to ascertain “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Bank of Am. Corp., 137 S. Ct. at 1303 (internal quotation marks omitted). Thus, when an aggrieved party
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invokes the APA’s right to sue an agency for failing to adhere to its own valid regulations, the zone-of-interests inquiry—like the cause of action that it seeks to delineate—should focus on the regulations that were allegedly violated. In such cases, we hold, the applicable zone of interests includes, at a minimum, those protected or regulated by the agency rule that the plaintiff says was violated.12 This rule ensures that the APA’s right to sue agencies for failing to adhere to their own regulations can be exercised by “those who in practice can be expected to police the interests that the statute protects.” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998); see also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n.12 (1987) (observing that the zone-ofinterests inquiry seeks to identify plaintiffs who are “reliable private attorney[s] general” insofar as their suits will “further statutory objectives” rather than “frustrate [them]”).
Here, the Federal Defenders’ APA claim falls squarely within the zone of interests to be protected and regulated by the three BOP regulations on inmate-attorney visits that Defendants allegedly violated. In bringing this suit, the Federal Defenders
12 Several of our sister circuits have articulated the zone-of-interests test in ways suggesting that a plaintiff may satisfy the test by showing that his interests in the litigation fall within the zone of interests protected or regulated by agency rules. See, e.g., Busse Broad. Corp. v. F.C.C., 87 F.3d 1456, 1463 (D.C. Cir. 1996) (defining the relevant “zone of interests” as those “protected by the underlying statute or regulation [the plaintiffs] accuse the agency of violating” (internal quotation marks omitted)); accord Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1260 (11th Cir. 2014); Hayes Int’l Corp. v. McLucas, 509 F.2d 247, 256 (5th Cir. 1975). Notably, the Tenth Circuit, in City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 915 (10th Cir. 2004), expressly rejected the argument that “standing under the Administrative Procedure Act can only be provided through a statute itself” rather than an “executive order or regulation.” City of Albuquerque suggests that the APA’s provision of a cause of action for those “suffering legal wrong because of agency action” easily applies to parties directly regulated or protected by an executive order or regulation who seek enforcement of that executive order or regulation against an agency. Id.
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seek to protect their interests in having adequate access to their clients at the MDC. Those interests mirror the interests that these BOP regulations seek to protect, namely: the strong interests of MDC inmates, especially pretrial detainees whose cases have not been adjudicated, in having adequate access to legal counsel. Thus, far from being “marginally related to or inconsistent with the purposes implicit in [these regulations],” Lexmark, 572 U.S. at 130 (internal quotation marks omitted), the Defenders’ APA claim directly advances the three regulations’ plain—and critical—objective of ensuring that detainees have frequent and predictable opportunities to consult with their attorneys.
Defendants do not seriously dispute that the BOP regulations on attorney visitation bear on the zone-of-interests analysis of the Federal Defenders’ APA claim. Instead, they assert that the Federal Defenders’ interests fall outside the zone of interests protected by these regulations because the BOP intended the regulations to benefit MDC inmates, not their attorneys. We reject this line of argument. As the Federal Defenders correctly observe, the zone-of-interests test does not require an APA plaintiff to be the intended beneficiary of the law that he charges was violated. See Match-E, 567 U.S. at 225 (“We do not require any indication of congressional purpose to benefit the would-be plaintiff.” (internal quotation marks omitted)). Rather, in the APA context, the test is satisfied where, as here, a plaintiff’s interests in the litigation are simply more than “marginally related” to the purposes implicit in the law or regulations invoked. Id. The Federal Defenders easily satisfy this standard.
Accordingly, we conclude that the District Court erred in dismissing the Federal
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Defenders’ APA claim for failure to state a claim under the zone-of-interests test.13
III. Sixth Amendment Claim Turning next to the Sixth Amendment claim, the Federal Defenders allege that
Defendants’ suspension of attorney visitation in early 2019 violated the Sixth Amendment right to counsel. They do not bring this claim under a statute (e.g., the APA). Nor do they assert that they can maintain a cause of action springing directly from the Sixth Amendment. Instead, they invoke “a cause of action in equity” that derives from the judiciary’s traditional “equitable power[s],” Defenders’ Br. 12, relying in particular on the Supreme Court’s decision in Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015).
In Armstrong, certain Medicaid providers sought to enforce section 30(A) of the Medicaid Act, claiming that Idaho’s Medicaid plan reimbursed them at rates lower than section 30(A) permitted. Id. at 322-23. The plaintiffs asserted that they had “an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation.” Id. at 324 (internal quotation marks omitted). The Supreme Court disagreed, however, explaining that the Supremacy Clause is merely “a rule of decision” that “instructs courts [on] what to do when state
13 Defendants also urge us to reach the merits of the Federal Defenders’ APA claim, arguing that “the record fails to support” the complaint’s allegations that Defendants acted arbitrarily and capriciously when they curtailed attorney visits at the MDC. Appellees’ Br. 12. The District Court did not address this contention, however, and we decline to do so here, especially on a motion to dismiss, where the record is undeveloped and reliance on evidence submitted by Defendants would run afoul of Federal Rule of Civil Procedure 12(d). Instead, we vacate and remand with respect to this claim, following “our settled practice” of allowing the District Court to “address arguments in the first instance.” Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000).
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and federal law clash.” Id. at 324-25. The Clause “is not the source of any federal rights, and certainly does not create a cause of action,” it held. Id. at 324-25 (internal quotation marks and citations omitted).
The Supreme Court did not end its inquiry there, however. Instead, it examined whether the plaintiffs’ “suit c[ould] proceed against Idaho in equity.” Id. at 327. The Court explained that a plaintiff may, in certain circumstances, invoke the court’s inherent “equitable powers” to “sue to enjoin unconstitutional actions by state and federal officers.” Id. at 327-28. Such a cause of action “in equity” stands “quite apart from any cause of action conferred by [the Constitution].” Id. at 327. Instead, it “is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Id.; see also id. at 326-27 (identifying Osborn v. Bank of United States, 9 Wheat. 738 (1824), and Ex parte Young, 209 U.S. 123 (1908), as suits in equity).
Notwithstanding these deep roots, the precise scope and contours of the court’s equitable powers of this nature are ill-defined. See Lisa Manheim & Kathryn A. Watts, Reviewing Presidential Orders, 86 U. CHI. L. REV. 1743, 1807-09 (2019). In Armstrong, the Supreme Court explained that Congress may expressly or impliedly foreclose pursuit of an equitable cause of action, and it applied this principle to conclude that the Medicaid Act implicitly precluded enforcement of section 30(A) through suits in equity. 575 U.S. at 328. Beyond that, however, the Supreme Court has done little to define the boundaries, if any, that might circumscribe this “judge-made remedy.” Armstrong, 575 U.S. at 327; see also Manheim & Watts, supra, at 1809 n.346 (identifying a multitude of questions that Armstrong “raises, but does not answer”).
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The Federal Defenders plunge headlong into these deep and murky waters. Although they describe their Sixth Amendment claim as nothing more than a continuation of “a centuries-old tradition of equity,” Defenders’ Br. 25, their appeal raises a host of unfamiliar and thorny legal issues. These include, inter alia: (1) whether criminal defense attorneys have rights of their own under the Sixth Amendment, independent of those guaranteed to their clients; (2) whether a party without a strictly personal right under the Sixth Amendment can nevertheless invoke a cause of action in equity to sue for Sixth Amendment violations; (3) whether the zone-of-interests test applies to causes of action in equity; (4) whether the judiciary’s equitable powers are constrained at all by “the so-called third-party standing bar,” a rule of prudential standing that generally prevents “litigants from asserting the rights or legal interests of others simply to obtain relief from injury to themselves,” New York State Citizens' Coal. for Children v. Poole, 922 F.3d 69, 75 (2d Cir. 2019) (internal quotation marks and brackets omitted); and (5) whether the APA in any way displaces suits in equity.
We are not convinced that the District Court fully appreciated the nature or complexity of the Federal Defenders’ Sixth Amendment claim, or the legitimacy of their reliance on Armstrong as a basis for pursuing suits in equity. Rather than recognizing that the Defenders frame this claim as one in equity that is separate and distinct from any cause of action conferred by the Constitution, see Armstrong, 575 U.S. at 327, the District Court seemed to treat the claim as purporting to arise directly under the Sixth Amendment. As a result, it did not grapple with many of the weighty issues raised by this aspect of the appeal.
To take one example, the District Court reasoned that the Federal Defenders lack “a cause of action under the Sixth Amendment” because the right to counsel belongs
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solely to “the accused.” Order at 3-4. In reaching this conclusion, the District Court overlooked a narrow but well-drawn line of precedent establishing that a plaintiff may invoke the court’s equitable powers to enjoin a defendant from violating constitutional provisions that do not, themselves, grant any legal rights to private plaintiffs. See, e.g., Armstrong, 575 U.S. at 324, 327 (recognizing that a plaintiff has a cause of action “in equity” to enforce the Supremacy Clause, even though that clause “is not the source of any federal rights” (internal quotation marks omitted)); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (recognizing that plaintiffs may pursue “Appointments Clause [and] separation-of-powers claim[s]” against a federal regulatory agency, even if they have no “implied private right of action directly under the Constitution”).
We decline to address and decide these substantial questions of constitutional law in the first instance. Instead, we vacate judgment as to this claim, and direct the District Court on remand to consider the Defenders’ Sixth Amendment action as one in equity under Armstrong. Remand “is particularly appropriate” where, as here, “the district court never considered [a theory of the case] . . . and the issue has been given a somewhat cursory and confused treatment [by the parties] on appeal.” United Food & Commercial Workers Union v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 306-07 (2d Cir. 1994).
Familiar principles of constitutional avoidance further counsel against an appellate decision on the Federal Defenders’ Sixth Amendment claim at this early stage of the litigation. “It is axiomatic that the federal courts should, where possible, avoid reaching constitutional questions.” Allstate Ins. Co. v. Serio, 261 F.3d 143, 149-50 (2d Cir. 2002). We therefore generally refrain from addressing constitutional claims when those
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claims would not “entitle [plaintiffs] to relief beyond that to which they were entitled on their statutory claims.” See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 446 (1988). Here, if the Federal Defenders prevail on their APA claim on remand, it is possible that they will obtain the injunctive and declaratory relief that they request, making it “unnecessary and therefore inappropriate” for a court to decide their Sixth Amendment claim. Id. Moreover, as we discuss further below, both parties expressed a willingness at oral argument to consider mediating this dispute. Mediation would enhance the prospect that this litigation can be resolved without a judicial ruling on the novel constitutional issues that it raises.
For these reasons, we defer ruling on the Federal Defenders’ Sixth Amendment claim at this time. See Clinton v. Jones, 520 U.S. 681, 690 (1997) (“[W]e have often stressed the importance of avoiding the premature adjudication of constitutional questions.”). We therefore reinstate this claim and remand it to the District Court for further consideration as necessary.
CONCLUSION In this lawsuit, the Federal Defenders have raised claims of the utmost gravity about the lawfulness of the BOP’s unilateral curtailment of the ability of pretrial detainees and others confined at the MDC to consult with legal counsel. The right to consult with legal counsel about being released on bond, entering a plea, negotiating and accepting a plea agreement, going to trial, testifying at trial, locating trial witnesses, and other decisions confronting the detained suspect, whose innocence is presumed, is a right inextricably linked to the legitimacy of our criminal justice system. As we have discussed above, the Federal Defenders’ assertions that their resources are drained needlessly by the BOP’s summary actions give them standing to assert such claims.
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Their suit, moreover, is not mooted by the re-initiation of attorney access after the February 2019 fire; rather, the record makes clear that the suspension of legal consultation can be expected to recur. As for the merits of their claims, the Federal Defenders have plausibly alleged violations of the APA, and while we decline to decide at this moment whether they can maintain a cause of action in equity to vindicate violations of the Sixth Amendment, they have raised serious arguments in favor of allowing this claim to proceed as well.
The Defenders describe a course of events that demands the attention of all components of the system that our country relies on for meting out justice. The regulations that the BOP has adopted raise fundamental legal questions about the seriousness—for the whole justice system—of curtailing the right of legal consultation, and the need for stringent oversight of the scope of curtailment and alternatives offered for consultation when some curtailment is reasonably determined to be unavoidable. Curtailment of attorney contact can adversely affect the efficacy of judicial proceedings, which in turn bears directly on the quality of justice received. The judicial branch bears a unique supervisory responsibility for ensuring that the right of legal consultation is not unnecessarily restricted by prison authorities. We therefore take special care in scrutinizing this complaint by the Federal Defenders and the concerns that it reflects.
We recognize, of course, that proper prison management presents daunting challenges. Public safety depends on successful management of those challenges both in ordinary times and in times of emergency; it also depends, however, on maintaining the integrity of the criminal justice system and the public trust in that system. In 2019, the MDC and the BOP faced several different emergencies, requiring adjustments as the BOP carried out its responsibilities: staffing shortages; a fire in an aging facility; a bomb
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scare. As we write this opinion, a different and even more dramatic challenge is presented by COVID-19, a novel and easily transmitted viral disease that has prompted a rapid reorientation of workplace practices and social life in support of public health. The impact of this recent emergency on jail and prison inmates, their counsel (in the lead, the Federal Defenders), the United States Attorneys, and the BOP, including the individual Wardens and the personnel of each facility, is just beginning to be felt. Its likely course we cannot foresee. Present information strongly suggests, however, that it may be grave and enduring.
These challenges to prison management implicate statutory and constitutional rights that, as they have been here, are often addressed in the courts. And indeed, the judiciary is well-positioned, usually after the fact, to vindicate such rights. Courts can and must help ensure that constitutional boundaries are not transgressed by considerations of expediency. At the same time, the careful balancing of needs and rights that such emergencies require is likely not best achieved by protracted and contentious litigation after the fact, and certainly not at the appellate level. It requires real-time, comprehensive solutions, reached in cooperative institutional discussions.
In this case, both parties are federal governmental entities: the BOP is an agency within the Department of Justice, and the Federal Defenders are situated in the judicial branch and funded within its budget. Accordingly, at oral argument, we pressed the parties on their openness to mediation and were assured that both the Defenders and the BOP were amenable to pursuing this alternative to litigation. Correspondence received by the Court since oral argument, however, leaves little doubt that the parties have made no progress on this front, and indeed that they have taken no meaningful steps to engage in mediation. The parties point fingers at each other, and it is apparent
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that hostility and obstruction, not cooperation, have prevailed. The BOP, in particular, has appeared to be unresponsive to the Defenders’ entreaties, perhaps relying on the District Court’s rapid dismissal of the underlying action.
We therefore urge in the strongest possible terms that, as soon as the District Court again has jurisdiction over this case, it consider convening the parties to obtain their advice as to the appointment of an individual with the stature, experience, and knowledge necessary to mediate this weighty dispute and ultimately facilitate the adoption of procedures for dealing with ongoing and future emergencies, including the COVID-19 outbreak. Such a person should diligently and speedily work to ensure that those incarcerated at the MDC and those who represent them have access to each other, and that the BOP—while maintaining its ability and authority to manage the facility in a safe way—takes every reasonable step to preserve the statutory and constitutional rights of the inmates and their counsel. We are confident that under wise leadership and guidance, these parties, whose common interest is service to the public, will rise to the occasion and achieve a satisfactory resolution to their permanent credit.
We VACATE the District Court’s judgment in its entirety and REMAND the cause for further proceedings consistent with this opinion. We invite the District Court, to consider its full range of options for efficiently and judiciously resolving this institutional-level dispute. The mandate shall issue FORTHWITH.
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