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Emergency Cancellation of Attorney Visits Subject to Court Oversight

On March 20, 2020, the Second Circuit Court of Appeals reversed the dismissal of a lawsuit challenging the cancellation of lawyer-client visits at the Metropolitan Detention Center-Brooklyn (MDC). The court urged a quick resolution in the district court with a mediator to deal with access to counsel during “ongoing and future emergencies, including the COVID-19 outbreak.”

MDC houses more than 1,600 persons, most of whom are pretrial detainees. It is operated by the Bureau of Prisons (BOP). In January 2019, a series of events resulted in limited access to MDC detainees by the Federal Defenders of New York.

First, visitation was canceled for seven days due to a government shutdown. Then, a fire at the facility resulted in visit cancellation from January 28 through February 2. Four hours after visitation was restored on February 3, it was canceled due to a confrontation with BOP officials and persons in MDC’s lobby. BOP “stonewall[ed]” the Federal Defenders’ requests to seek information on conditions within MDC and the reasons for the visitation cancellation.

The Federal Defenders filed suit on February 4, 2019, alleging the suspension of attorney visitation violated the Administrative Procedures Act (APA) and the Sixth Amendment. The district court dismissed the action on March 1, on grounds the Federal Defenders could not state a cause of action under the zone-of-interests inquiry.

The Second Circuit, on appeal, rejected BOP’s argument that the Federal Defenders lacked standing. The court found that the circumstances that disrupted attorney-client visits at MDC “are all too likely to recur” in light of “recent public health-related developments,” in a reference to the coronavirus pandemic. While the Warden has the authority to close a facility in an emergency, a court can “establish the legal boundaries that limit such a closure.”

The BOP’s regulations concerning attorney visits was the determining factor. The Second Circuit noted that agencies are bound to adhere to their own rules. It held that when such rules are at issue, “the applicable zone of interests includes, at a minimum, those protected or regulated by the agency rule that the plaintiff says was violated.”
        The Federal Defenders “squarely fell within the zone of interests to be protected and regulated by three BOP regulations on inmate-attorney visits that Defendants allegedly violated.” The court further found the Sixth Amendment claim was a “cause of action in equity.” That claim raised “a host of unfamiliar and thorny legal issues.” The matter was remanded for the district court to resolve all the issues in the first instance.

Related legal case

Federal Defenders of NY, Inc. v. Federal Bureau of Prisons