February 18, 2014
WILLIAM CECIL THORNTON, Plaintiff-Appellant,
EDMUND G. BROWN, Jr., [*] Governor of California; MATTHEW CATE, Secretary of Corrections; LEWIS, John Doe, Parole Unit Supervisor; MARK JOSEPH, Parole Agent; CHRISTINE CAVALIN, Parole Agent; JOHN DOE #1, Parole Agent, Defendants-Appellees
Appeal from the United States District Court for the Southern District of California. D.C.No. 3:10-cv-01583-RBB. Ruben B. Brooks, Magistrate Judge, Presiding.
Before: Myron H. Bright,[**] Susan P. Graber, and Sandra S. Ikuta, Circuit Judges. Dissent to Order by Judge O'Scannlain. O'SCANNLAIN, Circuit Judge, joined by BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc.
The opinion and dissenting opinion, filed on July 31, 2013, and published at 724 F.3d 1255, are replaced by the amended opinion and amended dissenting opinion filed concurrently with this order. With these amendments, Judges Bright and Graber have voted to deny the petition for panel rehearing, and Judge Ikuta has voted to grant it. Judge Graber has voted to deny the petition for rehearing en banc, and Judge Bright has so recommended. Judge Ikuta has voted to grant it.
The full court has been advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.
The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for panel rehearing or petitions for rehearing en banc shall be entertained.
O'SCANNLAIN, Circuit Judge, joined by BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:
Today, a panel of our Court disregards the " strong considerations of comity" between federal courts and the States, grasping power for itself where it is " difficult to imagine . . . a State has a stronger interest." Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). To reach this result, the panel misapplies Supreme Court precedent and creates a split with the Seventh Circuit, as described in Judge Ikuta's compelling dissent. I write to emphasize the important federalism and practical concerns that warranted rehearing this case en banc.
The central question in this appeal is whether William Cecil Thornton may challenge his parole conditions under 42 U.S.C. § 1983 or whether he must instead petition for a writ of habeas corpus. To a casual observer, this issue may appear trivial, but as the relevant statutory framework and Supreme Court precedents make clear, the answer to this question directly implicates our constitutional system's respect for state sovereignty and the limitations Congress has placed on federal judicial power.
As the Supreme Court has observed, federal habeas review " frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Calderon v. Thompson, 523 U.S. 538, 555-56, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (internal quotation marks omitted). When a federal court has authority to review state criminal matters, it " intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (quoting Harris v. Reed, 489 U.S. 255, 282, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (Kennedy, J., dissenting)).
In order to " confirm that state courts are the principal forum for asserting constitutional challenges" to state confinement, Congress has dramatically restricted federal habeas review. Id. A petitioner
seeking a writ from a federal court must " first attempt to present his claim in state court." Id. Moreover, a federal court can issue a writ of habeas corpus only where a state court's judgment " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). In this way, Congress has curtailed federal judicial interference with a State's " sovereign power to punish offenders." Thompson, 523 U.S. at 555.
By contrast, the power of federal courts in § 1983 suits is far greater--and the intrusion on state sovereignty far more significant. Unlike a habeas petitioner, a plaintiff suing under § 1983 bypasses the state court system and goes directly to federal court. Patsy v. Bd. of Regents, 457 U.S. 496, 500-01, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Absent is the notion that " state proceedings are the central process," as they are in the habeas context. Richter, 131 S.Ct. at 787. And whereas federal habeas review entails deference to a state court judgment unless that judgment is " beyond any possibility for fairminded disagreement," id., no such deference to the States exists in § 1983 suits. For these and other reasons, § 1983 suits involve " a basic problem of American federalism," Monroe v. Pape, 365 U.S. 167, 222, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting), and this is especially true in the context of state penal systems. Cf. Thompson, 523 U.S. at 555.
Against this background, the implications of the panel's decision for state sovereignty are obvious. State decisions about parole conditions will now be subject to far-reaching and searching review by federal courts in our circuit. Rather than reserving federal judicial intervention for cases of " extreme malfunctio[n]" of state penal systems, as is the case with habeas review, Burt v. Titlow, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013) (alteration in original) (quoting Richter, 131 S.Ct. at 786), federal judicial involvement in the setting of parole conditions will now become routine. As Judge Ikuta's dissent convincingly argues, challenges to parole conditions fall within the purview of the federal habeas statute, with all its attendant limitations on our power. By instead permitting such challenges to be brought under § 1983, the panel has worked " a major new intrusion into state sovereignty under our federal system," Maine v. Thiboutot, 448 U.S. 1, 33, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (Powell, J., dissenting), something Congress expressly sought to avoid.
The consequences of the panel's decision go beyond its disregard of fundamental federalism principles. One of the key differences between habeas and § 1983 actions is that the latter holds out the prospect of attorney's fees for a prevailing plaintiff. See 42 U.S.C. § 1988(b). As federal courts have observed on numerous occasions, awarding attorney's fees in § 1983 litigation encourages would-be plaintiffs to bring suits that might otherwise never make it into court because counsel have a financial incentive to undertake such cases. See, e.g., Dennis v. Chang, 611 F.2d 1302, 1306-07 (9th Cir. 1980). That incentive is conspicuously lacking in habeas actions, which means that the likely effect of the panel's decision will be a rush of parolees to the federal courthouse steps.
Given the predictable increase in § 1983 litigation the panel's opinion will produce, one would expect the panel to articulate how litigants and district courts will determine when a challenge must be brought in habeas. But the panel remains coy, offering only hints at what may or may not be relevant considerations in future cases. The panel's proffered standard is a mystery, one that the district courts of this circuit must struggle now to solve.
I respectfully dissent from our regrettable decision not to rehear this case en banc.