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Law360, New York (March 23, 2020, 9:44 PM EDT ) A New York federal judge appointed former U.S. Attorney General Loretta Lynch on Monday to handle the dispute between the Federal Defenders of New York and the Federal Bureau of Prisons over attorney access to detainees, responding to the Second Circuit's plea that a mediator be appointed quickly to help craft new protocols amid the coronavirus pandemic.
During a telephone conference with prosecutors, U.S. District Judge Margo Brodie appointed Lynch to referee the matter pursuant to the Second Circuit's holding on Friday, which revived litigation brought by the Federal Defenders in 2019 over the suspension of attorney-client visits last year at Brooklyn's Metropolitan Detention Center.
Judge Brodie had suggested three possible candidates for the mediator role: Lynch, who served as attorney general in the Obama administration and had previously been the U.S. attorney for the Eastern District of New York; former U.S. District Judge John Gleeson, now with Debevoise & Plimpton LLP; and Alan Vinegrad of Covington & Burling LLP. But she ultimately went with Lynch after the government voiced concern about potential conflicts with Gleeson and Vinegrad. Both men were involved with litigation pending against either the Bureau of Prisons or the U.S. Attorney's Office for the Eastern District of New York, according to Assistant U.S. Attorney Seth Eichenholtz.
Neither side objected to Lynch, now a partner at Paul Weiss Rifkind Wharton & Garrison LLP, who was touted by Judge Brodie as being particularly suited to the role because of her knowledge and experience in dealing with the Bureau of Prisons.
"Not just knowing and understanding how it works, but appreciating and knowing all the different programs that BOP has up and going. I thought maybe she could make more of a headway in terms of getting what we're trying to do here," Judge Brodie said.
Judge Brodie said that included coming up with a system to ensure that inmates have access to their attorneys, regardless of emergencies like the coronavirus pandemic.
An attorney for the Federal Defenders, Sean Hecker of Kaplan Hecker & Fink LLP, outlined what he envisioned the mediator role to be, including the ability to quickly get information and documents from the parties, to have access to staff and detainees, and to make on-site visits "to get a real world understanding of what's possible."
"Historically, the BOP has not prioritized ensuring regular attorney consultation, and in a time like this, we think it is absolutely critical," Hecker said.
Judge Brodie said Hecker's take was consistent with how she viewed the mediator's role.
Eichenholtz cautioned that the government doesn't envision the mediator to have the role of a court-appointed monitor over the MDC for attorney access decisions.
"The government's reading of the Second Circuit decision is that this is a master to mediate between the parties and not a monitor, and the government would object to any order appointing a special master as a monitor or giving them some sort of court-ordered oversight over either of the BOP facilities," Eichenholtz said.
The parties are scheduled to hold another teleconference Tuesday.
Lynch did not immediately respond to a request for comment on Monday.
On March 13, the BOP said legal visits were to be suspended for 30 days, although accommodations could be made at the local level on a case-by-case basis.
The Federal Defenders sued BOP and the warden at Brooklyn's Metropolitan Detention Center last year over a prior suspension of attorney visits, alleging violations of the Administrative Procedure Act and the constitutional right to counsel established by the Sixth Amendment. BOP had cut off access after incidents including a fire at the center that knocked out power and left the building without heat in the middle of winter. The facility currently houses 1,692 inmates, according to the BOP
Access was initially ordered, but Judge Brodie declined to extend that order in March 2019, saying the Federal Defenders had failed to state a claim. The Federal Defenders declined to amend their complaint, and Judge Brodie dismissed it, leading to the Second Circuit appeal.
On Friday, the appeals court vacated Judge Brodie's ruling and urged that a mediator be appointed to settle the dispute and achieve "real-time, comprehensive solutions."
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 Federal Defenders are 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 1:19-cv-00660, in the U.S. District Court for the Eastern District of New York.
--Editing by Jill Coffey.
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