2nd Circ. Urges Atty Access For Detainees Amid Pandemic

By Jody Godoy | March 22, 2020, 5:31 PM EDT

The Federal Defenders of New York made progress in its fight for consistent access to clients in detention on Friday when the Second Circuit ruled that a mediator should be quickly appointed to help craft new protocols amid the novel coronavirus pandemic.

The group that represents indigent defendants in federal court sued the warden at Brooklyn’s Metropolitan Detention Center last year over the suspension of attorney visits. The Bureau of Prisons had cut off access after incidents including a fire at the jail that knocked out power and left the prison without heat in the middle of winter. The facility houses around 1,600 inmates.

Access was initially ordered, but U.S. District Judge Margo K. Brodie declined to extend that order in March, saying the Federal Defenders had failed to state a claim. The Federal Defenders declined to amend its complaint, and Judge Brodie dismissed it, leading to the Second Circuit appeal.

On Friday, the appeals court urged that a mediator be appointed to settle the dispute and achieve “real-time, comprehensive solutions” that would be delayed by further litigation.Circuit Court Judges John M. Walker Jr., Barrington D. Parker and Susan L. Carney co-authored the opinion.

While acknowledging that talks between the Federal Defenders and the MDC over mediation had broken down, the appeals court urged Judge Brodie “in the strongest possible terms” to again broach the possibility with the parties as soon as she gets the case back.

The Second Circuit suggested that the mediator should have 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.”

The court also said the mediator “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.”

Weighing in on the legal questions posed by the suit, the appellate court said Judge Brodie erred in overlooking the Federal Defenders’ argument that the Administrative Procedures Act allowed it to sue to enforce BOP regulations, rather than statutes.

“Under deeply rooted principles of administrative law, not to mention common sense, government agencies are generally required to follow their own regulations,” the court wrote. “When agencies fail to do so, the APA (as developed by case law) gives aggrieved parties a cause of action to enforce compliance.”

The Second Circuit acknowledged that it had never before decided how regulations factor into the “zone-of-interests inquiry” by which courts decide whether plaintiffs’ interests are protected by the law they seek to invoke.

The appellate court rejected the government’s argument that regulations allowing attorneys access seven days a week are aimed at protecting defendants, not their attorneys, meaning the attorneys’ interests were not implicated.

The court wrote that the zone of interests test was not a particularly hard one to pass, and that the Federal Defenders’ claim fell “squarely” within it as its interests in access to its clients “mirror” those clients’ interest in seeing counsel.

Jenna Dabbs of Kaplan Hecker & Fink LLP represents the Federal Defenders and said the suit has“a single objective: stopping what the court recognized as 'the BOP’s unilateral curtailment' of the right to counsel."

"The court’s decision is a welcome acknowledgment of the ways that the Bureau of Prisons has threatened that right in the past, and continues to threaten that right today. We will continue to fight alongside the Federal Defenders until their clients receive the legal representation that the Constitution guarantees them,” Dabbs said.

A spokesman for the U.S. attorney’s office declined to comment Sunday.

Circuit Judges John M. Walker Jr., Barrington D. Parker and S­usan L. Carney sat on the panel for the Second Circuit.

The Federal Defenders is represented by Jenna M. Dabbs, Sean Hecker, Joshua Matz, Matthew J. Craig and Benjamin D. White of Kaplan Hecker & Fink LLP.

The government is represented by Varuni Nelson, Rachel Balaban, Seth D. Eichenholtz and Sean P. Greene of the U.S. Attorney's office for the Eastern District of New York.

The case is Federal Defenders of New York Inc. v. Federal Bureau of Prisons et al., case number 19-1778, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Bruce Goldman.

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