Coalition of Clergy, Lawyers, and Professors v. Bush/Opinion of Judge Berzon

by Marsha Siegel Berzon

BERZON, Circuit Judge, concurring:

I agree with the result reached in the court’s opinion. I write separately because I do not believe that we need to address whether next friend standing always requires a significant relationship. If we did need to address that question, I would be inclined to hold that a significant relationship is not always necessary.

I.

The Supreme Court’s decision in Whitmore v. Arkansas, 495 U.S. 149, 163–64, 110 S.Ct. 1717, 109 L.Ed.2d 185 (1990) adopted two requirements: (1) that the petitioner is unable to litigate his own cause; and (2) that the next friend be “truly dedicated” to the best interests of the person on whose behalf he seeks to litigate. Although the Supreme Court noted that “it has been suggested that a ‘next friend’ must have some significant relationship with the real party in interest,” id. (emphasis added), the Court, notably, did not choose to adopt this suggestion, adhering instead to the two-pronged test. See also Sanchez-Velasco v. Dept. of Corrections, 287 F.3d 1015, 1026 (11th Cir.2002), cert. denied 525 U.S. 811, 119 S.Ct. 42, 142 L.Ed.2d 33 (1998) (“significant relationship” may not be an “independent requirement”); but see Hamdi v. Rumsfeld, 294 F.3d 598, 604 (4th Cir.2002) (“Hamdi I”) (concluding that a significant relationship is an “important requirement”).

This Court appeared to import the significant relationship requirement into Whitmore’s second prong in Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir.2001). Massie summarized Whitmore as follows:

In order to establish next friend standing, the putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner. See Whitmore, 495 U.S. at 163–65, 110 S.Ct. 1717.

Massie’s summary of Whitmore was incorrect. As noted, the Supreme Court in Whitmore did not indicate that a “significant relationship” was part of the second Whitmore prong. Rather, only after stating the two-prong Whitmore test did the Court add “it has been suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” Whitmore, 495 U.S. at 164, 110 S.Ct. 1717 (emphasis added).

After the summarizing language quoted above, the Massie opinion never discussed the second Whitmore prong again. Instead, Massie denied next friend standing solely because the petitioners in that case failed to meet the first Whitmore prong. Id. at 1199 n. 3. Absolutely nothing in Massie turned on the resolution of the significant relationship issue pointedly left open in Whitmore.

The above-quoted language in Massie, then, was simply dicta, on any view of that concept: It was unaccompanied by any analysis whatsoever of the issue left open in Whitmore regarding the necessity of a significant relationship and was in no way relevant to any holding in Massie. As dicta, it does not bind a panel of this court. See e.g. Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d 1075, 1081 (9th Cir.2002) (panel not bound by dicta from prior cases); United States v. Johnson, 256 F.3d 895, 915 (9th Cir.2001) (Kozinski, J., concurring) (defining dicta narrowly, but recognizing that “a statement [ ] made casually and without analysis” as a “prelude to another legal issue that commands the panel’s full attention” is dicta if the later panel is convinced that the earlier panel did not “make a deliberate decision to adopt the rule of law it announced.”)

I therefore do not agree that we are bound by Massie’s reading of Whitmore. Instead, I would address the role of a significant relationship in the next friend doctrine afresh.

II.

Doing so, I conclude that, like Massie, this case does not require us to decide whether the significant relationship requirement is an independent requirement or merely one way of satisfying the second Whitmore prong. Compare Sanchez-Velasco, 287 F.3d at 1026–1027 (significant relationship is probative, but may not be required) with Hamdi I, 294 F.3d at 604 (significant relationship required). Under either analysis, Coalition lacks next friend standing. Though Coalition’s concern for the detainees of Camp X-Ray is surely genuine and sincere, Coalition has not sufficiently demonstrated that it is positioned so as to provide assurance that it will best advance the detainees’ interests.

First, Coalition has failed to demonstrate any relationship with the detainees which would provide assurance that its interests were appropriately aligned with the detainees’. Such relationships might include that of blood relative, friend, present or past fiduciary agent, or any other relevant relationship.^[1] See, e.g., Hamdi v. Rumsfeld, 296 F.3d 278, 281 (4th Cir.2002) (“Hamdi II”) (granting next friend standing to father on behalf of son); Ford v. Haley, 195 F.3d 603, 624 (11th Cir.1999) (attorney with history of representing a client has next friend standing if client is determined to be incompetent).

Not only has the Coalition failed to demonstrate any such relationship,^[2] the Coalition has not otherwise demonstrated compliance with Whitmore’s second prong. In particular, the record is devoid of any Coalition effort even to communicate with the detainees. See Sanchez-Velasco, 287 F.3d at 1026–27 (where attorney had no prior relationship with client, fact that attorney did not even attempt contact before filing petition suggested that interests were not aligned). Although actual contact may be unnecessary if, for example, prisoners are being held incommunicado, the complete lack of any attempt to communicate counsels against next friend standing. Id.

Further, the Coalition, while it asserts an interest in the detainees’ welfare, is an ad-hoc, self-appointed group. An institution with an established history of concern for the rights of individuals in the detainees’ circumstances—such as the Red Cross or Amnesty International—would be more likely to be able to show that it is truly dedicated to the best interest of the detainees than a group without that history and with more broad ranging interests and background.

III.

As the majority recognizes, the requisite alignment of interests must adapt to the circumstances facing each individual detainee. Not all detainees have a relative, friend, prior attorney, or other suitable person to act on their behalf. In the extreme case, where there is no next friend under traditional criteria, the showing required to meet Whitmore’s second prong should be relaxed, to the degree that no relationship should be required if none is practically possible. See Hamdi I, 294 F.3d at 604 n. 3.

Coalition has argued that this was such a situation. Some detainees, however, have pursued legal action on their own behalf or through family members. See e.g. Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C.2002) (habeas petition brought by citizens of Australia and United Kingdom; injunction requested by twelve Kuwaiti nationals and their family members). Coalition responds by noting that legal action has only ensued on behalf of Australian, English and Kuwaiti detainees, and suggests that people from those countries, independently or with the help of their government, are likely to have the money and sophistication to investigate and bring legal claims in the United States. These lawsuits, Coalition argues, do not indicate that the other prisoners, such as the Afghani and Pakistani detainees, have access to suitable next friends.

On a different record, this contention might have merit. Here, however, Coalition has not proven except by assertion that the remaining detainees have no relationship with anyone who could appropriately serve to litigate the legality of the detention.^[3]

Indeed, at least with respect to the complicated threshold jurisdictional issues presented by this case, the detainees’ interests are being currently litigated in our nation’s courts by other detainees and their families. See, e.g., Rasul, 215 F.Supp.2d at 57. Presumably, fellow detainees are “truly dedicated” to the interests of the detainees as a group, at least with regard to those common threshold issues, because the interests of the various detainees are identical with regard to those issues. So Coalition, which has not established any nexus or relationship with the detainees, is not as well situated to litigate these common issues as are the detainees who have managed to access our courts. While those detainees are not purporting directly to represent the interests of fellow detainees, they are doing so as a practical matter with regard to the initial jurisdictional issues, and have every incentive to do so well. Although we do not ordinarily permit such virtual representation as a substitute for direct representation of an individual, see Richards v. Jefferson County, 517 U.S. 793, 797–803, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996), here any representation will be “virtual” in the sense that the injured individual will not himself have direction or control of the litigation. Where that is the case—and it is likely to be the case where plaintiffs seek next friend standing but have no cognizable relationship to the detainees—the fact that the pertinent legal issues are being litigated in other suits by individuals with interests identical as to those issues with those of the detainees becomes, for me, decisive. Were the courts to decide in favor of jurisdiction in those cases and the interests of the various detainees on the merits issues then to diverge, the possibility that non-related next friends (using “related” in the broad sense I have posited) might be able to establish standing could be addressed anew.

I stress that the difference between my position and that of the majority is relatively narrow. The majority recognizes that the significant relationship requirement must be a flexible one. I would go a bit further and leave open the possibility that no prior relationship is necessary if (1) the plaintiffs make an affirmative and convincing demonstration of their dedication to the detainees’ best interests, including a showing that they have made a reasonable effort to establish a relationship if none exists; and (2) the plaintiffs also show that the circumstances entirely preclude both the appearance as next friend of anyone with any relationship to the detainees as well as the practical representation of the detainees’ interests in court by others similarly situated.

The distinction between my understanding of the next friend doctrine and that of the majority could matter in another case. It does not matter in this one. I therefore concur.

1. The related context of third-party standing recognizes a wide range of relationships in which the third-parties’ interests are sufficiently aligned with the interests of the rightsholder that standing is appropriate. See e.g. U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 720–21, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (lawyer-client); Carey v. Population Serv. Int’l, 431 U.S. 678, 682, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1978) (vendor-customer); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (doctor-patient); Pierce v. Society of Sisters, 268 U.S. 510, 536, 45 S.Ct. 571, 69 L.Ed. 1070 (school-students). In the proper context these are the sorts of relationships that could support next friend standing. I would not limit the pertinent relationships to agency or consent relationships.
2. At best, Coalition could assert the relationship of a potential lawyer to a potential client. In some circumstances, such a relationship might create third party standing. See note 3, infra. I cannot conclude on the particular facts of this case, however, that next friend standing on this basis is appropriate, especially in light of the Coalition’s failure to try to contact the detainees. Accord Sanchez-Velasco, 287 F.3d at 1026–27.
3. I note that in some instances plaintiffs such as those here may be able to establish standing on their own behalf. It is plausible, for example, that the inability of the lawyer-plaintiffs to represent as clients the Guantanamo detainees when they wished to do so (whether for a fee or otherwise) created an injury-in-fact sufficient under Article III for standing purposes. Cf. Dept. of Labor v. Triplett, 494 U.S. 715, 720–21, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (lawyer injured by fee-limitation statute had standing to assert the “due process right to obtain legal representation” of his clients). Coalition does not allege such an injury.