UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

TEXAS DEFENDER SERVICE, et al.,

Plaintiffs, 

v.

UNITED STATES DEPARTMENT OF 

JUSTICE, et al.,

 

Defendants.

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Civil Action No. 18-426 (RBW)

MEMORANDUM OPINION

The plaintiffs, Texas Defender Service (“TDS”), John Allen Rubio, Gabriel Paul Hall, 

and Brian Edward Davis (the “individual plaintiffs”) (collectively, the “plaintiffs”), bring this 

civil action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06 (2018), 

against the defendants, the United States Department of Justice (the “Department”) and William 

Barr,

1

in his official capacity as the Attorney General of the United States (collectively, the 

“defendants”), seeking “injunctive and other relief to set aside the Final Rule regarding 

Certification Process for State Capital Counsel, 78 Fed. Reg. 58,160 (Sept. 23, 2013)” (codified 

at 28 C.F.R. pt. 26) (the “2013 Regulations”). Complaint and Request for Injunctive Relief

(“Compl.”) ¶¶ 1, 3. Currently pending before the Court is the Defendants’ Motion to Dismiss 

(“Defs.’ Mot.”).2 After careful consideration of the parties’ submissions, the Court concludes for 

the reasons set forth below that it must grant the defendants’ motion to dismiss.

 

1 William Barr is substituted for Jefferson B. Sessions as the proper party defendant pursuant to Federal Rule of 

Civil Procedure 25(d). 

2

In addition to the filings already identified, the Court considered the following submissions in rendering its 

decision: (1) the memorandum in support of the Defendants’ Motion to Dismiss (“Defs.’ Mem.”); (2) the Plaintiffs’ 

Brief in Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n”); and (3) the Defendants’ Reply to Plaintifs’ 

Opposition to Defendants’ Motion to Dismiss (“Defs.’ Reply”). 
2

I. BACKGROUND

A. Chapter 154 of the AEDPA and the 2013 Regulations

The Sixth Amendment to the United States Constitution states that “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his 

defence.” U.S. Const. amend. VI. Additionally, federal law guarantees indigent state and 

federal capital prisoners the right to counsel in federal habeas proceedings. 18 U.S.C. 

§ 3599(a)(2) (2018). However, the Constitution does not guarantee a similar right to counsel in 

state postconviction proceedings. See Murray v. Giarratano, 492 U.S. 1, 10 (1989) (holding that 

neither the Eighth Amendment nor the Due Process Clause guarantees indigent capital prisoners 

the right to counsel in state postconviction proceedings); Pennsylvania v. Finley, 481 U.S. 551, 

552 (1987) (noting that “States have no obligation to provide” postconviction relief, “and when 

they do, the fundamental fairness mandated by the Due Process Clause does not require that the 

State supply a lawyer as well”).

In an attempt to address this limitation on representation for capital prisoners in state 

postconviction proceedings, Congress passed Chapter 154, Title 28 of the United States Code 

(“Chapter 154”), 28 U.S.C. §§ 2261–66 (2018), as part of the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), which “provides procedural benefits to states that voluntarily 

appoint counsel to represent indigent capital prisoners during state postconviction proceedings.” 

Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice, 816 F.3d 1241, 1244 (9th Cir. 2016) (citing 28 

U.S.C. §§ 2261–66), cert. denied, 137 S. Ct. 1338 (2017).

If Chapter 154 applies in a federal habeas case, then, among other things, (1) the 

capital prisoner can secure an automatic stay from execution while his 

postconviction and federal habeas proceedings are ongoing; (2) the statute of 

limitations for filing a federal habeas petition is shortened from one year to six 

month from the date of final judgment of the state courts on direct appeal; and 
3

(3) the federal courts must give priority status to the habeas case and resolve it 

within the time periods specified by Chapter 154.

Id. at 1245 (citations omitted). These procedural benefits of Chapter 154 are available only if 

“(1) the Attorney General of the United States certifies that a State has established a mechanism 

for providing counsel in postconviction proceedings as provided in section 2265; and (2) counsel 

was appointed pursuant to that mechanism, petitioner validly waived counsel, or petitioner was 

found not to be indigent.” 28 U.S.C. § 2261(b). The Attorney General’s certification decisions 

are subject to de novo review by the District of Columbia Circuit. Id. § 2265(c)(2), (3). 

Chapter 154 also requires the Attorney General to “promulgate regulations to implement 

the certification procedure,” id. § 2265(b), which the Attorney General did on September 23, 

2013, see Certification Process for State Capital Counsel Systems, Fed. Reg. 58,160 (Sept. 23, 

2013) (codified at 28 C.F.R. pt. 26). 

The [2013] Regulations establish a procedure for certifying whether a state’s 

mechanism is adequate for the appointment of professionally competent counsel to 

represent indigent capital prisoners during state postconviction proceedings. The 

[2013] Regulations require a state to request certification; the Attorney General 

must post the state’s request on the Internet, solicit public comments, and review 

such comments during the certification process. If the Attorney General certifies 

that a state’s capital-counsel mechanism conforms to the requirements of Chapter 

154 and the [2013] Regulations, she [or he] must also determine the date on which 

the state established its mechanism. The certification is effective as to the date the 

Attorney General finds the state established its adequate mechanism; as this date 

can be in the past, a certification decision may be applied retroactively.

The [2013] Regulations also set forth the substantive criteria that a state’s capitalcounsel mechanism must be certified. Consistent with 28 U.S.C. § 2261(c)–(d), a 

state’s mechanism must require a court of record to appoint counsel to represent an 

indigent capital prisoner in state postconviction proceedings unless a capital 

prisoner competently rejected the offer of counsel or was not indeed indigent. If 

the court appoints counsel, the attorney must not have represented the prisoner at 

trial, unless the attorney and prisoner expressly agree otherwise. Under the [2013] 

Regulations, a state’s capital-counsel mechanisms must include competency and 

compensation standards for counsel appointed pursuant to the mechanism. The 

[2013] Regulations provide two competency benchmarks, as well as a catchall 

provision for mechanism that otherwise reasonably assure a level of proficiency 
4

appropriate for State postconviction litigation in capital cases. Similarly, the [2013] 

Regulations provide four compensation benchmarks, as well as a catchall provision 

for mechanisms that are otherwise reasonably designed to ensure the availability 

for appointment of counsel satisfying the competency standards. A state’s 

mechanism must also authorize payment of the reasonable litigation expenses of 

appointed counsel.

Habeas Corpus Res. Ctr., 816 F.3d at 1245–46 (citations and internal quotation marks omitted). 

B. Procedural History

According to the plaintiffs, on March 11, 2013, the State of Texas (“Texas”) submitted a 

certification request to the United States Attorney General. Compl. ¶ 38. “On November 16, 

2017, the Department . . . published a notice in the Federal Register advising the public of 

Texas’s certification request and initiating a sixty-day public comment period.” Id. ¶ 39. “On 

December 18, 2017, Texas submitted an amended application for certification in the form of a 

short supplemental letter to the Department . . . advising it of changes that had been made to 

[Texas’s] system for appointing post[]conviction counsel since [the] initial request” for 

certification in 2013. Id. “On December 27, 2017, the Department . . . published a notice 

advising the public of Texas’s supplemental letter and extending the comment period to February 

26, 2018.” Id. 

TDS “is a non-profit organization established in 1995 by experienced Texas death 

penalty attorneys,” id. ¶ 10, and on February 23, 2018, TDS and the individual plaintiffs filed 

their Complaint with this Court, challenging the 2013 Regulations, see id. at 1. “TDS works to 

improve the quality of representation afforded to those facing a death sentence and to expose and 

eradicate the systematic flaws plaguing the Texas death penalty” system and “represent[s] deathsentenced Texas prisoners in post[]conviction proceedings in federal court.” Id. As of the date 

of the filing of Complaint, “TDS [was] participating in the public comment process and [was] [ ] 

preparing its substantive comment for submission.” Id. ¶ 40. The individual plaintiffs are capital 
5

prisoners in Texas, all of whom are “currently in simultaneous direct appeal and state 

post[]conviction proceedings.” See id. ¶¶ 11–13. 

On June 26, 2018, the defendants filed their motion to dismiss the plaintiffs’ Complaint, 

see Defs.’ Mot. at 1, which is the subject of this Memorandum Opinion.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1) Motion to Dismiss

“Federal [district] courts are courts of limited jurisdiction,” Kokkonen v. Guardian Life 

Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of 

Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s jurisdiction,’” Morrow 

v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 

835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if it “lack[s] 

. . . subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Because “[i]t is to be presumed that a 

cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the 

plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has 

subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

In deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court “need 

not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of Police 

v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such 

materials outside the pleadings as it deems appropriate to resolve the questions [of] whether it 

has jurisdiction [over] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 

22 (D.D.C. 2000); see Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 

2005). Additionally, the Court must “assume the truth of all material factual allegations in the 

complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all 
6

inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. Fed. Deposit Ins. 

Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 

(D.C. Cir. 2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear 

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to 

state a claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (internal quotation marks omitted).

B. Rule 12(b)(6) Motion to Dismiss

A complaint must contain “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss for 

“failure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the 

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). A “claim has facial plausibility when the plaintiff pleads 

factual content that allows the [C]ourt to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see Kowal v. MCI 

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that the plaintiff is entitled to “the 

benefits of all inferences that can be derived from the facts alleged”). Although the Court must 

accept the facts pleaded as true, legal allegations devoid of factual support are not entitled to this 

presumption. See, e.g., Kowal, 16 F.3d at 1276. In addition to allegations asserted within the 

four corners of the complaint, the Court may also consider “any documents either attached to or 

incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St. 

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
7

III. ANALYSIS

This Court’s authority under Article III of the United States Constitution is limited to 

adjudicating actual cases and controversies. Honig v. Doe, 484 U.S. 305, 317 (1988). “In an 

attempt to give meaning to Article III’s case-or-controversy requirement, the courts have 

developed a series of principles termed ‘justiciability doctrines,’ among which are standing[,] 

ripeness, mootness, and the political question doctrine.” Nat’l Treasury Emps. Union v. United 

States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). 

The defendants move to dismiss the plaintiffs’ Complaint, arguing that the “[p]laintiffs

have failed to present an Article III case or controversy, and therefore[,] this Court lacks 

jurisdiction over this case.” Defs.’ Mot. at 1. Specifically, the defendants argue that (1) the 

“[p]laintiffs lack standing to assert any of their claims, as plaintiffs do not challenge any ‘final 

agency action’ under the . . . []APA[]”; id.; (2) the “[p]laintiffs’ claims are [ ] not ripe for 

review,” id.; and (3) “review under the APA is precluded by statute, which provides a special 

review proceeding for the types of claims plaintiffs seek to raise,” id. The plaintiffs respond that 

(1) they have standing to bring their claims because “the 2013 Regulations have frustrated 

[TDS’s] ability to advance its mission and have drained organizational resources that would

otherwise be directed towards ordinary programs” and the individual plaintiffs “face an 

imminent threat of deprivation of their legal rights,” Pls.’ Opp’n at 2; (2) their “claims are ripe 

for judicial resolution” because their claims “challenge the 2013 Regulations, the promulgation 

of which unquestionably constitutes final agency action,” and “are purely legal” and therefore 

“presumptively reviewable,” id.; and (3) they “have no adequate alternative remedy that 

precludes this Court’s review under Section 704 of the . . . []APA[],” id. 
8

A. Standing

The defendants first argue that neither TDS nor the individual plaintiffs can establish 

standing to assert their claims. See Defs.’ Mem. at 11–14. To establish standing, the plaintiff 

must satisfy three elements:

First, the plaintiff must have suffered an injury in fact—an invasion of a legally 

protected interest which is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical. Second, there must be a causal 

connection between the injury and the conduct complained of—the injury has to be 

fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] 

result [of] the independent action of some third party not before the court. Third, 

it must be likely, as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.

Lujan, 504 U.S. at 560–61 (alterations in original) (citations and internal quotation omitted).

Where . . . the lawsuit challenges the legality of government action, the nature of 

the standing inquiry depends largely on “whether the plaintiff is himself an object

of the action . . . at issue.” When a plaintiff is subject to the challenged regulation 

or policy, “there is ordinary little question that the [government] action . . . has 

caused him injury, and that a judgment preventing . . . the action will redress it.” 

But, when a “plaintiff’s asserted injury arises from the government’s allegedly 

unlawful regulation . . . of someone else, much more is needed.” Standing in those 

cases is not foreclosed entirely, “but it is ordinarily ‘substantially more difficult’ to 

establish.”

Sanchez v. Office of State Superintendent of Educ., Civ. Action No. 18-975 (RC), 2019 WL 

935330, at *4 (D.D.C. Feb. 26, 2019) (second through sixth alterations in original) (citations 

omitted) (quoting Lujan, 504 U.S. at 561–62). “While the burden of production to establish 

standing is more relaxed at the pleading stage than at summary judgment, a plaintiff must 

nonetheless allege general factual allegations of injury resulting from the defendant’s conduct 

(notwithstanding the court presum[es] that general allegations embrace the specific facts that are 

necessary to support the claim).” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. 

Cir. 2011) (alteration in original) (internal quotation marks omitted).

The Court will address separately whether each set of plaintiffs have standing in turn.
9

1. TDS

The defendants argue that TDS lacks standing because “[a]n attorney’s interest in the 

legal standards for the field of law in which he or she practices is not the sort of legally protected 

interest that establishes Article III standing,” Defs.’ Mem. at 12, and TDS “cannot evade the 

conjectural and speculative nature of [its] alleged injuries simply by claiming that [it] feel[s]

compelled to take steps now—modifying [its] advice to clients and/or adapting [its] litigation 

strategies—because of [its] concerns about possible changes to the applicable legal framework in 

the future,” id. The plaintiffs respond that TDS has standing because (1) “the 2013 Regulations 

frustrate its ability to further [its] mission,” and (2) “it has been forced to expend resources to 

counteract the[] ill effects” of the 2013 Regulations. Pls.’ Opp’n at 15. 

When an organization seeks to pursue claims on its own behalf, “organizational standing 

requires [the organization], ‘like an individual plaintiff, to show actual or threatened injury in 

fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable 

court decision.’” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015) 

(quoting Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1138 (D.C. Cir. 2011)). 

In Havens Realty Corp. v. Coleman, the Supreme Court held that a “concrete and 

demonstrable injury to an organization’s activities”—there, providing “counseling 

and referral services”—can support Article III standing if the organization can show 

a “consequent drain on [its] resources” and “more than simply a setback to the 

organization’s abstract social interests.”

Public Citizen, Inc. v. Trump, 297 F. Supp. 3d 6, 36–37 (D.D.C. 2018) (quoting Havens Realty 

Corp. v. Coleman, 455 U.S. 363, 379 (1982)). “The [District of Columbia] Circuit has 

‘establishe[d] two important limitations on the scope of standing under Havens,’ with a twoprong inquiry.” Nat’l Fair Housing Ass’n v. Carson, 330 F. Supp. 3d 14, 42 (D.D.C. 2018)

(second alteration in original) (quoting Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n 
10

on Election Integrity, 878 F.3d 371, 378 (D.C Cir. 2017)). “First, the plaintiff must show that the 

defendant’s ‘action or omission to act injured the organization’s interest.’ Second, the plaintiff 

must show that it ‘used its resources to counteract that harm.’” Elec. Privacy Info. Ctr., 878 F.3d 

at 378 (citations omitted) (quoting People for the Ethical Treatment of Animals v. USDA, 797 

F.3d 1087, 1094 (D.C. Cir. 2015)). 

As to the first prong of the injury-in-fact component of standing under Havens, the

plaintiffs argue that the 2013 Regulations frustrate TDS’s ability to advance its mission because 

“[t]he absence of meaningful guidance in the [2013] Regulations, combined with the draconian 

retroactive effect[,] impairs TDS’s ability to provide sound legal advice and make strategic 

decisions with respect to its clients’ cases.” Pls.’ Opp’n at 20. They further argue that “[i]f 

Texas were certified, TDS would immediately have to devote substantial resources to investigate 

its clients’ claims and prepare their petitions to meet the shortened deadlines,” and that “[t]o 

avoid this untenable strain on its resources, TDS has been forced to act conservatively in 

accepting new clients.” Id. at 20. In her declaration in support of the plaintiffs’ opposition, 

Amanda Marzullo, the Executive Director of TDS, explains that “[t]hese decisions directly affect 

TDS’s finances” because “TDS receives compensation for acting as court-appointed counsel and 

for providing mitigation investigation services,” and “[w]hen TDS is unable to accept new 

appointments, it loses the opportunity to earn those fees.” Id., Exhibit (“Ex.”) 1 (Declaration of 

Amanda Marzullo in Opposition to Defendants’ Motion to Dismiss (“Marzullo Decl.”)) ¶ 20. 

The first prong of the injury-in-fact requirement of standing under Havens is satisfied 

“when the plaintiff demonstrates that a direct conflict exists between the defendant’s conduct and 

the organization’s mission, and when the defendant’s conduct causes an inhibition of [the 

organization’s] daily operations.” Nat’l Fair Housing Ass’n, 330 F. Supp. 3d at 41–42 (second 
11

alteration in original) (citations and internal quotation marks omitted). Here, the Court 

concludes that because “TDS’s mission is to establish a fair and just criminal justice system in 

Texas” and a significant aspect of TDS’s work includes “represent[ing] death-sentenced 

prisoners in post[]conviction proceedings in federal court,” Compl. ¶ 10, the 2013 Regulations—

particularly the provision allowing for the potential retroactive application of certification, see 28 

C.F.R. § 26.23(c) (“The certification will include a determination of the date the capital counsel 

mechanism qualifying the State for certification was established.”)—is “‘at loggerheads’ with 

[TDS’s] mission-driven activities.” Nat’l Fair Housing Ass’n, 330 F. Supp. 3d at 42 (quoting 

Nat’l Treasury Emps. Union, 101 F.3d at 1429). Moreover, based on the information currently 

before the Court, the 2013 Regulations “inhibit[] [ ] [TDS’s] daily operations,” id. (quoting Food 

& Water Watch v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015)), by impacting TDS’s finances, 

see Pls.’ Opp’n, Ex. 1 (Marzullo Decl.) ¶ 10. The Court therefore concludes that TDS has 

satisfied the first prong of the injury-in-fact requirement of standing under Havens. 

As to the second prong of the injury-in-fact requirement of standing under Havens, the 

plaintiffs argue that “[b]ecause the 2013 Regulations require virtually nothing from Texas and 

instead place the burden on the public to disprove the state’s eligibility for certification, TDS has 

been forced to expend substantial resources to prepare its comments opposing Texas’s request.” 

Id. at 18. According to the plaintiffs, “[t]he preparation of TDS’s comments consumed over 100 

hours of TDS staff time, diverting their attention from their ordinary responsibilities.” Id.

The second prong of the injury-in-fact requirement of standing under Havens is satisfied 

upon a “show[ing] [by the plaintiff] that it used its resources to counteract [the] harm caused by 

the defendant’s action or omission to act. The plaintiff must demonstrate that it has expended 

operational costs beyond those normally expended to carry out its advocacy mission.” Nat’l Fair 
12

Housing Ass’n, 330 F. Supp. 3d at 42 (third alteration in original) (citation and internal quotation 

marks omitted). However, this Circuit “ha[s] [ ] recognized that the expenditure of resources on 

advocacy is not a cognizable Article III injury.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 

24 (D.C. Cir. 2015) (citing Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 n.4 

(D.C. Cir. 2005)); see also Nat’l Ass’n of Home Builders, 667 F.3d at 12 (rejecting 

organization’s argument that it had standing based on the fact that “it ha[d] spent considerable 

staff time and monetary resources in the quest to clarify [Clean Water Act] jurisdiction, such as 

submitting comments to the [Environmental Protection Agency] . . . [and] testifying before the 

United States Senate” because the organization “ha[d] not shown [that] they were operational 

costs beyond those normally expended to carry out its advocacy mission” (internal quotation 

marks omitted)); Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 

1995) (“The mere fact that an organization redirects some of its resources to litigation and legal 

counseling in response to actions or inactions of another party is insufficient to impart standing 

upon the organization.”). Despite the fact that Ms. Marzullo represents in her declaration that 

advocacy is a core part of TDS’s mission, see Pls.’ Opp’n, Ex. 1 (Marzullo Decl.) ¶ 4 (“TDS 

engages in policy reform, which includes issue advocacy, research and writing, and 

communications . . . . Through its advocacy and research, TDS endeavors to expose and 

eradicate the systematic flaws that plague the Texas death penalty [system].”), TDS’s position 

that it has been “forced to expend substantial resources to prepare its comments” and that its staff 

“divert[ed] their attention from their ordinary responsibilities,” id. at 18, fails to satisfy the 

second prong of injury-in-fact under Havens because TDS has not shown that preparing 

comments to advocate against Texas’s certification was an “operational cost[] beyond those 

normally expended to carry out its advocacy mission,” Nat’l Ass’n of Home Builders v. EPA, 
13

667 F.3d at 12; cf. Turlock Irrigation Dist., 786 F.3d at 24 (“The Trust’s decision to expend more 

of its resources by participating in both Don Pedro’s and La Grange’s licensing proceedings is 

the type of alleged harm that we have repeatedly held does not qualify as an injury in fact.”). 

Therefore, because TDS has failed to demonstrate that it has suffered an injury-in-fact under 

Havens, the Court is compelled to conclude that TDS does not have organizational standing to 

challenge the 2013 Regulations.

3

 

2. The Individual Plaintiffs

The defendants argue that the individual plaintiffs lack standing because they “are not 

currently suffering the loss of any important procedural rights, and they do not establish that, 

even if Texas’s request for certification were to be granted, it would be applied retroactively to 

curtail or eliminate the time available to them for federal habeas filing.” Defs.’ Reply at 10–11. 

The individual plaintiffs respond that they have standing because “[t]he potential retroactive 

effect of a certification means that they could find themselves unexpectedly out of time to file 

their federal habeas petitions,” Pls.’ Opp’n at 25, and they contend that “[t]he loss of important 

procedural rights, particularly for a death-sentenced prisoner, clearly constitutes injury in fact,” 

id. at 26. 

Where a plaintiff has yet to face prosecution under a statute he seeks to challenge, 

the Supreme Court, in Babbitt v. United Farm Workers, requires that he establish 

Article III standing by (1) “alleg[ing] an intention to engage in a course of conduct 

arguably affected with a constitutional interest, but proscribed by a statute,” and 

(2) demonstrating that “there exists a credible threat of prosecution thereunder.” In 

Navegar, Inc. v. United States, however, [this Circuit] held that plaintiffs must show 

more than a “credible threat” of prosecution: they must demonstrate an “imminent” 

threat of prosecution.

 

3 Because the Court concludes that TDS has not demonstrated that it has suffered an injury-in-fact necessary to 

confer organizational standing under Havens, the Court need not separately address whether TDS’s alleged injury 

“is fairly traceable to the [2013 Regulations] and likely to be redressed by a favorable court decision.” Food & 

Water Watch, Inc., 808 F.3d at 919.
14

Ord v. District of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009) (first alteration in original) 

(citations omitted) (first quoting Babbitt v. United Farm Workers, 442 U.S. 289, 299 (1979); 

then quoting Navegar, Inc. v. United States, 103 F.3d 994, 999 (D.C. Cir. 1997)). 

“To prove that a threat is both credible and imminent, [this Circuit] requires plaintiffs to 

demonstrate that their prosecution results from a special law enforcement priority, namely that 

they have been ‘singled out or uniquely targeted by the . . . government for prosecution.’” Id. at 

1140–41 (quoting Parker v. District of Columbia, 478 F.3d 370, 375 (D.C Cir. 2007), aff’d in 

part sub nom. District of Columbia v. Heller, 554 U.S. 570 (2008)). In Seegars v. Gonzales, the 

Circuit “not[ed] that Navegar’s analysis is in sharp tension with standard rules governing 

preenforcement challenges to agency regulations, where an affected party may generally secure 

review before enforcement so long as the issues are fit for judicial review without further factual 

development and denial of immediate review would inflict a hardship on the challenger,” 396 

F.3d 1248, 1253 (D.C. Cir. 2005), but nonetheless “faithfully appl[ied] the analysis articulated 

by Navegar,” id. at 1254. 

Here, the individual plaintiffs fail to demonstrate a credible and imminent threat of 

prosecution under the 2013 Regulations. “A credible threat of prosecution exists when ‘the 

[challenged] law is aimed directly at plaintiffs, who, if their interpretation of the statute is 

correct, will have to take significant and costly compliance measures or risk criminal 

prosecution.” Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 102 (D.D.C. 2016) (Walton, 

J.) (emphasis added) (alteration in original) (quoting Virginia v. Am. Booksellers Ass’n, 484 

U.S. 383, 392 (1988)). Here, the challenged regulation is not aimed directly at the individual 

plaintiffs because, as the Ninth Circuit observed in Habeas Corpus Resource Center, “[t]he 

[2013] Regulations . . . do not act upon capital prisoners but guide the Attorney General’s 
15

certification of state capital-counsel mechanisms. A capital prisoner’s federal habeas rights may 

be affected indirectly, if the sentencing state requests certification and if the Attorney General 

finds that the state’s capital-counsel mechanism comports with Chapter 154 and the [2013] 

Regulations.” 816 F.3d at 1252 (citation omitted) (citing 28 C.F.R. §§ 26.22–.23)); cf. Navegar, 

103 F.3d at 1000 (finding that the plaintiffs had standing in a pre-enforcement challenge to a 

statute that “prohibit[ed] weapons that only the [plaintiffs] make”). The 2013 Regulations

therefore do not have the coercive impact necessary to confer standing on the individual 

plaintiffs to bring their preenforcement challenge to the 2013 Regulations. See Calderon v. 

Ashmus, 523 U.S. 740, 748–49 (1988) (rejecting the plaintiff’s argument that “the State’s 

‘threat’ to assert Chapter 154 in habeas proceedings and the risk that the class members w[ould] 

thereby lose their rights to application of Chapter 153 [were] sufficient to establish standing,” 

reasoning that “California’s assertions on Chapter 154 have no coercive impact on the legal 

rights or obligations of either party[] [because] [i]t is the members of the class, and not the State, 

who anticipate filing lawsuits”). Accordingly, the Court must conclude that the individual 

plaintiffs have not satisfied “the stringent requirements for pre-enforcement standing under 

Navegar and Seegars.” Parker, 478 F.3d at 376. 

B. Ripeness

Even if the Court could conclude that the plaintiffs had standing to pursue the relief 

sought in this case, the doctrine of ripeness would pose an additional bar to the plaintiffs’ 

lawsuit. The defendants argue that the “plaintiffs[’] claims are not ripe, as there has been no 

final decision on Texas’s amended application.” Defs.’ Mem. at 17. The plaintiffs respond that 

their claims are ripe because they “do not challenge the merits of Texas’s request. Rather, they 
16

challenge the Regulations that govern the certification process, which are final and have already 

gone into effect.” Pls.’ Opp’n at 31. The Court agrees with the defendants.

The ripeness doctrine, which “generally deals with when a federal court can or should 

decide a case,” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012), is “designed ‘to 

prevent the courts, through avoidance of premature adjudication, from entangling themselves in 

abstract disagreements over administrative policies, and also to protect the agencies from judicial 

interference until an administrative decision has been formalized and its effects felt in a concrete 

way by the challenging parties,’” Chlorine Inst., Inc. v. Fed. R.R. Admin., 718 F.3d 922, 927 

(D.C. Cir. 2013) (quoting Nat’l Park Hosp. Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 

(2003)). “Determining whether administrative action is ripe for judicial review requires [courts] 

to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of 

withholding court consideration.” Nat’l Park Hosp. Ass’n, 527 U.S. at 808. “To do so . . . , [the 

Court] must consider: (1) whether delayed review would cause hardship to the plaintiffs; 

(2) whether judicial intervention would inappropriately interfere with further administrative 

action; and (3) whether the courts would benefit from further factual development of the issues 

presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). 

In Habeas Corpus Resource Center, the plaintiffs challenged the same 2013 Regulations 

at issue in this case on similar grounds. See 816 F.3d at 1246–47. Analyzing the ripeness of the

plaintiffs’ challenge to the 2013 Regulations under the Ohio Forestry framework, the Ninth 

Circuit concluded that the challenge was not ripe for judicial review. Id. at 1254. As to the first 

Ohio Forestry factor, the Ninth Circuit concluded that “[d]elayed judicial review of the [2013]

Regulations is unlikely to cause hardship to capital prisoners, even if they might change their 

strategy for pursuing postconviction relief in light of the promulgation of the [2013]
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Regulations,” because “[t]he [2013] Regulations do not require anything of capital prisoners—or 

indeed of their lawyers—and do not immediately alter their federal habeas corpus rights or 

procedures.” Id. at 1253; see id. (explaining that “[b]efore a capital prisoner’s rights may be 

affected, the sentencing state must request certification by the Attorney General, the Attorney 

General must (under the [2013] Regulations) allow for public comment on the request, and the 

Attorney General must then certify that the state’s capital-counsel mechanism is compliant with 

Chapter 154”). As to the second Ohio Forestry factor, the Ninth Circuit concluded that “judicial 

interference [w]ould hinder agency efforts to refine its policies,” because the alleged problems 

with the 2013 Regulations that the plaintiffs took issue with—i.e., “that the [2013] Regulations 

do not make clear precisely how the Attorney General will conduct the certification process, how 

the Attorney General will make certification decisions, and how the Attorney General will apply 

the catchall provision for competency of counsel”—would “sort themselves out as the Attorney 

General applies the [2013] Regulations, makes certification decisions, and justifies those 

decisions in the [District of Columbia] Circuit, if indeed challenged.” Id. at 1253–54. As to the 

final Ohio Forestry factor, the Ninth Circuit concluded that “in the absence of a concrete 

application of the [2013] Regulations, the challenges to the substance of the [2013] Regulations 

represent ‘‘abstract disagreements over administrative policies,’ that the ripeness doctrine seeks 

to avoid.’” Id. at 1254 (quoting Ohio Forestry, 523 U.S. at 736). 

The Court finds the Ninth Circuit’s reasoning persuasive. Like the Ninth Circuit, this 

Court concludes that delayed judicial review of the 2013 Regulations will not cause hardship to 

the plaintiffs. As the Supreme Court has explained:

Absent [a statutory provision providing for immediate judicial review], a regulation 

is not ordinarily considered the type of agency action “ripe” for judicial review 

under the . . . []APA[] until the scope of the controversy has been reduced to more 

manageable proportions, and its factual components, by some concrete action 
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applying the claimant’s situation in a fashion that harms or threatens to harm him. 

(The major exception, of course, is a substantive rule which as a practical matter 

requires the plaintiff to adjust his conduct immediately . . . .)

Nat’l Park Hosp. Ass’n, 538 U.S. at 808 (first and fifth alterations in original) (internal quotation 

marks omitted) (quoting Lujan v. Nat’l Wildlife Fed., 487 U.S. 871, 891 (1990)). Here, the 

“major exception” does not apply because, as previously discussed, the 2013 Regulations are not 

“aimed directly” at the plaintiffs. Backpage.com, LLC, 216 F. Supp. 3d at 102; see Nat’l Park 

Hosp. Ass’n, 538 U.S. at 810, 812 (finding that the plaintiff “ha[d] failed to demonstrate that 

deferring judicial review [of the regulation] w[ould] result in real hardship” because the 

regulation “d[id] not affect a concessioner’s primary conduct”).

The Court similarly concludes that the issues are not fit for judicial review at this time. 

The plaintiffs correctly note that their claims are “purely legal,” Pls.’ Opp’n at 31, and that the 

2013 Regulations constitute final agency action, id. at 32. However, “[a]lthough the question 

presented here is a purely legal one and [the 2013 Regulations] constitute final agency action 

within the meaning of § 10 of the APA, [the Court] nevertheless believe[s] that further factual 

development would significantly advance [its] ability to deal with the legal issues presented.” 

Nat’l Park Hosp. Ass’n, 538 U.S. at 812 (citations and internal quotation marks omitted). 

Specifically, in the absence of a determination by the Attorney General on Texas’s certification 

request, the effects of the 2013 Regulations have not been “felt in a concrete way by the 

challenging parties,” therefore making judicial review premature. See In re Aiken Cty., 645 F.3d 

428, 434 (D.C. Cir. 2011) (“But when an agency decision may never have its effects felt in a 

concrete way by the challenging parties, the prospect of entangling ourselves in a challenge to 

such a decision is an element of the fitness determination as well. Hence, a claim is not ripe for 
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adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed 

may not occur at all.” (citations and internal quotation marks omitted)). 

Accordingly, the Court concludes that the plaintiffs’ claims are not yet ripe for review.4

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the plaintiffs do not have standing in 

this action and the plaintiffs’ challenge is not yet ripe for judicial review. Accordingly, it grants 

the defendants’ motion to dismiss.5

SO ORDERED this 9th day of April, 2019.

REGGIE B. WALTON

United States District Judge

 

4 Because the Court concludes that dismissal of the plaintiffs’ claims on standing and ripeness grounds is

appropriate, the Court need not address the defendants’ alternative argument that the plaintiffs’ claims are precluded 

under the APA. See Defs.’ Mem. at 15–16. 

5 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.