//  9/6/19  //  In-Depth Analysis

Yesterday, I explained why the "zone of interests" test should not apply to lawsuits seeking to enjoin unconstitutional conduct. That discussion touched on the border wall and Emoluments Clause cases, but focused on Federal Defenders of New York v. Bureau of Prisons, a Sixth Amendment suit challenging restrictions on attorney access at the Metropolitan Detention Center in Brooklyn, NY. (Disclaimer: Along with my colleagues at Kaplan Hecker & Fink LLP, I represent the Federal Defenders in that case.) As I emphasized, where a party possesses Article III standing, they should not have to surmount an additional zone-of-interests analysis before their constitutional claims can be decided on the merits. The Court was clear on that point in Lexmark. Moreover, it makes little conceptual sense to apply the zone-of-interests test in such cases.

That said, even if the zone-of-interests test is erroneously held to apply to constitutional claims seeking injunctive relief, it should rarely matter. That is because the test "is not especially demanding." Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 30 (2014). A plaintiff need only “arguably” fall within the relevant zone of interests—and “the benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Put differently, “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 the claim cannot proceed. Lexmark, 572 U.S. at 130 (quotation marks omitted). 

Particularly in light of this exceedingly lax legal standard, the district court's decision in Federal Defenders was striking: it held that a federal public defender organization fell entirely outside the Sixth Amendment's zone of interests. Given the rarity of this zone-of-interests dismissal, it is useful to consider from first principles whether the decision was correct—and, if it was not, what error the district court may have committed in seeking to apply the zone-of-interests test to this important constitutional claim.

Here, I'll undertake both inquiries, borrowing from our Second Circuit brief. This analysis involves a deep dive into the purpose of the Sixth Amendment; the place of federal public defenders under that amendment; and what role the zone-of-interests test is meant to play in preventing injured parties from obtaining judicial redress. 

The Sixth Amendment's Zone of Interests 

The relevant constitutional provision in this case is the Sixth Amendment, which provides 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. So the question is whether a lawsuit by the Federal Defenders seeking to ensure that they are not arbitrarily impeded from meeting with their own clients—who have been accused of crimes (or who are engaged in sentencing or appellate proceedings)—falls within the interests of an amendment guaranteeing the “Assistance of Counsel.”

The answer to that question is “yes,” and for many reasons. First and foremost, the Federal Defenders are a “not-for-profit corporation . . . dedicated solely to defending poor people accused of federal crimes.”[1] The Federal Defenders thus function as the “Face of the Sixth Amendment.”[2] The Federal Defenders’ singular organizational interest—ensuring that their clients are well-represented in criminal proceedings against the federal government—places them at the very heart of the Sixth Amendment. They exist solely to give life to the Amendment’s promise.

Moreover, the Supreme Court has long affirmed the central role that criminal defense counsel play in effectuating “the fundamental purpose of the Sixth Amendment,” which “is to safeguard the fairness of the trial and the integrity of the factfinding process.” Brewer v. Williams, 430 U.S. 387, 426 (1977). To ensure that defense counsel can play this role, the Supreme Court has “construed the Sixth Amendment guarantee to apply to ‘critical’ stages” of criminal proceedings. United States v. Ash, 413 U.S. 300, 310–11 (1973). That determination, in turn, is made “by asking whether counsel is there needed to protect the fairness of the trial.” Brewer, 430 U.S. at 426 n.7; see also Lafler v. Cooper, 566 U.S. 156, 165 (2012). The Supreme Court’s recognition that defense counsel are “needed” to protect the “fundamental purpose of the Sixth Amendment” strongly suggests that efforts by defense counsel to overcome arbitrary restrictions on client access are within the interests shielded by the Sixth Amendment. See Brewer, 430 U.S. at 426.

This conclusion finds support in the Amendment’s original public meaning. See Alleyne v. United States, 570 U.S. 99, 103 (2013) (emphasizing the importance of original meaning in Sixth Amendment cases). The principal impetus for including a right to counsel in the Constitution was a desire to shift the role of criminal defense attorneys from mere technocrat (as at common law) to a bulwark against the powerful prosecutorial machinery of the State. See United States v. Wade, 388 U.S. 218, 224 (1967). In England, the right to counsel had attached only to issues of law, not to issues of fact. See id. This distinction served to “divide technicalities of law from matters of fact and to give the accused the aid of counsel only for the former—the sole aspect in which it was thought that he needed it.” Charles Donahue, Jr., An Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale L. J. 1000, 1033 (1964). But the Framers rejected this distinction and the theory underlying it. They “envisaged a broader role for counsel than . . . merely advising his client in ‘matters of law,’ and eschewing any responsibility for ‘matters of fact.’” Wade, 388 U.S. at 224. The Framers thus adopted an amendment that abolished “the facts-law distinction [because they] appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.” Donahue, Right to Counsel, 73 Yale. L. J. at 1033; United States v. Ash, 413 U.S. 300, 308–09 (1973) (explaining that the colonists “desire[d] to minimize imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official”).

As a historical matter, the Sixth Amendment thus pictures counsel as an essential “‘medium’ between [the defendant] and the State.” Montejo v. Louisiana, 556 U.S. 778, 805 (2009) (Stevens, J., dissenting). This originalist account of defense counsel is reflected in “the scope given by [the Supreme Court’s] decisions to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for his defense.” Wade, 388 U.S. at 224. Of course, it is fully consistent with these precedents to conclude that the Sixth Amendment’s interests are triggered when defense counsel are unable to meet with clients free of arbitrary interference by the federal government and its agents. 

That view is also supported by cases imposing on “defense lawyer[s] . . . [a] a constitutional responsibility.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). As the Supreme Court recognized long ago, the Sixth Amendment requires the availability of defense counsel in criminal cases. And it does so because those accused of crimes are entitled to representation by someone “impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.” Powell v. Alabama, 287 U.S. 45, 56 (1932); see also Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963).

Stated most simply, the duty that the Sixth Amendment imposes on criminal defense counsel is to be “effective” in their representation of criminal defendants. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In Strickland v. Washington, 466 U.S. 668, 691 (1984), the Court elaborated on the “basic duties” that the Constitution imposes on defense counsel for them to qualify as “effective”:[3]

  • “[A] duty of loyalty.”
  • “[A] duty to avoid conflicts of interest.”
  • “[T]he overarching duty to advocate the defendant’s cause.”
  • A “dut[y] to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.”
  • “[A] duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”
  • “[A] duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”

But Strickland’s list was far from complete. In more recent cases, the Supreme Court has identified many other duties that the Sixth Amendment imposes directly on defense counsel in criminal proceedings. See, e.g., McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (duty not to admit defendant’s guilt against defendant’s wishes); Missouri v. Frye, 566 U.S. 134, 145 (2012) (“duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused”); Sears v. Upton, 561 U.S. 945, 952 (2010) (duty not to conduct “cursory” investigations into mitigation evidence); Padilla v. Kentucky, 559 U.S. 356 (2010) (duty to counsel client on deportation consequences of a conviction); Porter v. McCollum, 558 U.S. 30, 40 (2009) (duty to interview witnesses and search records in penalty phase of capital murder trial); Rompilla v. Beard, 545 U.S. 374 (2005) (duty to consult trial transcripts from prior conviction where defense counsel knew prosecution would rely on it); Wiggins v. Smith, 539 U.S. 510 (2003) (duty to investigate defendant’s personal history and present mitigating evidence at capital sentencing); United States v. Cronic, 466 U.S. 648, 659 (1984) (duty to “subject the prosecution’s case to meaningful adversarial testing”).

In addition to the wide-ranging and essential duties that the Sixth Amendment imposes on defense counsel, the Amendment also confers rights on defense counsel that assist them in their task of effectively representing clients. For example, in United States v. Stein, this Court held that “the government violates the Sixth Amendment when it intrudes on the attorney-client relationship, preventing defense counsel from participat[ing] fully and fairly in the adversary factfinding process.” 541 F.3d 130, 154 (2d Cir. 2008). Similarly, in Geders v. United States, the Supreme Court held that the Sixth Amendment prohibits a judge from barring overnight consultation between defense counsel and her client during trial. 425 U.S. 80 (1976). And in Herring v. New York, the Supreme Court held that the Sixth Amendment does not allow a judge to bar counsel from making a final summation. 422 U.S. 853. 857 (1975) (“[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process.”).[4]

This matrix of rights and responsibilities ensures that the daily practice of a criminal defense lawyer is shot through with Sixth Amendment mandates. It follows that efforts by counsel to ensure a constitutionally sufficient level of client access is—at bare minimum—“arguably” within the Amendment’s zone of interests.

The Nature of the District Court's Error 

In its opinion, the district court held that the Federal Defenders are strangers to the Sixth Amendment’s zone of interests. It reasoned that “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.” This analysis is incorrect.

For starters, it looks in the wrong direction. A cause of action in equity invokes the Judiciary’s historic power to enforce constitutional limitations on government conduct. See Armstrong, 135 S. Ct. at 1384. The availability of this cause of action does not require evidence that Congress specifically intended to allow suits to enforce the relevant constitutional guarantee. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (noting the availability of equitable relief “as a general matter” and rejecting arguments that suits under specific constitutional provisions should be “treated differently than every other constitutional claim”). This is not to say that Congress is irrelevant; Congress may in some cases modify the availability of equitable relief. See I.N.S. v. Pangilinan, 486 U.S. 875, 883 (1988) (“[C]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.” (citation omitted)). But where Congress has not done so, there is a presumption favoring the availability of equitable relief to enjoin unconstitutional conduct. See Bell, 327 U.S. at 684; Ex parte Young, 209 U.S. 123, 165 (1908); Osborn v. Bank of United States, 9 Wheat. 738, 839-46 (1824); Marbury v. Madison, 5 U.S. 137, 163-71 (1803). Accordingly, the district court erred in searching for specific evidence that Congress intended to allow equitable relief for violations of the Sixth Amendment.

That said, the district court’s more fundamental error was to conflate the persons on whom the Sixth Amendment confers “the . . . right” with the persons who (at least arguably) fall within the Amendment’s zone of interests. It is not the identity of the party that matters for purposes of the zone-of-interests test, but rather the nature of the interest and its connection to the provision of federal law. See Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 492 (1998) (holding that thereneed not be “an indication of congressional purpose to benefitthe would-be plaintiff”); Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 932 (9th Cir. 2011) (“[T]he zone of interests test turns on the interest sought to be protected, not the harm suffered by the plaintiff.”); TAP Pharm. v. U.S. Dep’t of Health & Human Servs., 163 F.3d 199, 208 (4th Cir. 1998) (“[O]ur approach relies not on the identity of the party but on the nature of the interest that it asserts, as the terms of the zone of interests test have always required.”).

This is clear from Data Processing itself, which first announced the zone-of-interests test. There, a data processors’ association challenged a ruling by the Comptroller of the Currency that national banks could make data processing services available to other banks (and to those banks’ customers). See 397 U.S. at 151. The association pressed its APA claim in reliance on the Bank Service Corporation Act and the National Bank Act, neither of which conferred any particular right on the association. See id. at 157. But the Supreme Court held that their “general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts” fall within its zone of interests. Id. Here, too, the “general policy” of the Sixth Amendment is apparent—and there can be no doubt that the Federal Defenders are “directly affected” by its interpretation and application.

The Supreme Court took a similar approach in Boston Stock Exchange, its only case indicating that the zone-of-interests test may once have applied to constitutional claims. See 429 U.S. at 321 n.3. By its terms, the Commerce Clause does not vest rights in individuals: it provides an affirmative right only to Congress, stating that “The Congress shall have power . . . [t]o regulate commerce . . . among the several states.” U.S. const. art. I § 8. Nonetheless, the Supreme Court concluded that regional stock exchanges were within the zone of interests of the Commerce Clause for purposes of a constitutional suit. This analysis is inconsistent with a focus on which persons or entities are specifically vested with rights by the Constitution. Accord Bridgeport and Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 567 F.3d 79, 86 (2d Cir. 2009) (holding, pre-Lexmark, that “an interstate ferry service [] falls within the zone of interests protected by the Commerce Clause”).

The Supreme Court’s decision in Match-E further confirms the point. There, the plaintiff sued under a provision of the Indian Reorganization Act (IRA), 25 U.S.C. § 465, which provides that the “Secretary of the Interior is authorized, in his discretion, to acquire [land] . . . for the purpose of providing land for Indians.” See 567 U.S. at 211. In an exercise of this statutory authority, the Secretary had acquired land in trust for an Indian tribe seeking to open a casino. See id. at 211-14. The plaintiff, David Patchak, lived near the relevant land. He filed suit under the IRA, asserting that the Secretary had exceeded his authority in purchasing the land with the stated purpose of conveying it to Indians for the creation of a casino. See id.

There was no dispute in Match-E that Patchak lacked any personal right, title, or interest in the property. See id. at 220-22. Nor did Patchak claim any other right vested in him by the IRA. See id. at 224-228. And the statute spoke directly about land acquisition, not land use. Nonetheless, observing that Patchak had an interest in how the land came to be used following an acquisition approved by the Secretary under his statutory authority, the Supreme Court held that Patchak fell within the statutory zone of interests: “The question is not whether § 465 seeks to benefit Patchak; everyone can agree it does not. The question is instead, . . . whether issues of land use (arguably) fall within § 465’s scope—because if they do, a neighbor complaining about such use may sue to enforce the statute’s limits.” Id. at 225 n.7. Needless to say, if Patchak fell within the IRA’s zone of interests on that basis, the Federal Defenders fall within the Sixth Amendment’s interests here.

The district court viewed the Sixth Amendment right as ineluctably personal in nature. On that basis, it held that nobody but the accused can ever have an interest in government action that substantially burdens the exercise of Sixth Amendment rights. This conclusion was incorrect as a matter of law and should be vacated. The Federal Defenders are the means by which many inmates in the MDC have exercised their Sixth Amendment rights. The Federal Defenders are themselves subject to many obligations under the Sixth Amendment. And the Federal Defenders assuredly have an interest in issues that “fall within [the Sixth Amendment’s] scope,” such as practices that impede access to their own clients. See Match-E, 567 U.S. at 225 n.7.

Accordingly, the Federal Defenders have a cause of action to pursue their claim. 


[1]  https://federaldefendersny.org/about-us/ (emphasis added).

[2] https://www.uscourts.gov/news/2012/05/11/federal-defenders-face-sixth-amendment (“The Constitution’s Sixth Amendment states that in all criminal prosecutions ‘the accused shall . . . have the assistance of counsel for his defense.’ But what does that mean for defendants who are penniless? In federal courts, the answer is the federal defender program.”).

[3] The Court has been clear that these duties imposed on defense counsel derive directly from the Sixth Amendment. See Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985)(“the right to effective assistance of counsel is dependent on the [Sixth Amendment] right to counsel itself”); see also Eastern Savings Bank, FSB v. Springer, 2015 WL 13735520, at *5 n.9 (E.D.N.Y. Jan. 30, 2015) (Strickland “is rooted in the protections of the Sixth Amendment,” and therefore “has no application in a civil action”). Strickland itself made this point clearly. See 466 U.S. at 688–89.

[4] Indeed, so special is the relationship between criminal defense counsel and their clients that it can even serve as the predicate for a claim of third-party standing by defense counsel. As the Supreme Court held in Caplin & Drysdale, Chartered v. United States, counsel may have third-party standing to advance a client’s Sixth Amendment rights precisely because their “attorney-client relationship” is “one of special consequence.” 491 U.S. 617, 623 n.3 (1989); accord Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990). The Federal Defenders do not here rely on a theory of third-party standing, but cite these cases as yet another example of the Supreme Court’s recognition that criminal defense lawyers can play a significant role in vindicating Sixth Amendment rights.




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