Roane v. Barr (In re Fed. Bureau of Prisons' Execution Protocol Cases)
| Decision Date | 20 September 2020 |
| Docket Number | Case No. 19-mc-145 (TSC) |
| Parties | In the Matter of the Federal Bureau of Prisons' Execution Protocol Cases, LEAD CASE: Roane, et al. v. Barr THIS DOCUMENT RELATES TO: ALL CASES |
| Court | U.S. District Court — District of Columbia |
Plaintiffs are inmates on federal death row who challenge Defendants' efforts to execute them pursuant to the 2019 Federal Bureau of Prisons' Execution Protocol (the 2019 Protocol or the Protocol). Defendants have filed an omnibus motion for summary judgment on Plaintiffs' Administrative Procedure Act (APA) claims and a motion to dismiss all remaining claims pursuant to Fed. R. Civ. P. 12(b)(6). All Plaintiffs have moved for partial summary judgment, (ECF No. 236), as to the violations of the Food, Drug, and Cosmetic Act (FDCA) in Count XI of the Amended Complaint, (ECF. No. 92).1 Most of these claims have been addressed in one way or another by this court or the Court of Appeals for the District of Columbia Circuit, and it is the court's intention to enter final judgment on most of the remaining claims.2
For the reasons set forth below, Defendants' omnibus motion is GRANTED in part. The court DENIES Defendants' motion as to the FDCA claims in Count XI, but the motion is GRANTED in all other respects except as to Norris Holder's as-applied Eighth Amendment challenge. Accordingly, Plaintiffs' motion for partial summary judgment on the FDCA claims in Count XI (and in Count V of Plaintiff LeCroy's Amended Complaint) is GRANTED, but the injunctive relief sought therein is DENIED for all Plaintiffs except Norris Holder.3
In 2005, James H. Roane, Jr., Richard Tipton, and Cory Johnson, three federal death row inmates, sued, alleging that their executions were to be administered under an unlawful and unconstitutional execution protocol. Roane v. Gonzales, 1:05-cv-02337 (D.D.C.), ECF No. 1 ¶ 2. The court preliminarily enjoined their executions. Roane, ECF No. 5. Four other death row inmates intervened, and their executions were enjoined as well. See Roane, ECF Nos. 23, 27, 36, 38, 67, and 68. During this litigation, Defendants produced a 50-page document (the 2004 Main Protocol) outlining the Bureau of Prisons' (BOP) execution procedures. Roane, ECF No. 179-3. Defendants then produced two three-page addenda to the 2004 Main Protocol. See Roane, ECF No. 177-3 (Addendum to Protocol, July 1, 2007) (the 2007 Addendum); ECF No. 177-1 (Addendum to Protocol, Aug. 1, 2008) (the 2008 Addendum). In 2011 the Department of Justice (DOJ) announced that the BOP did not have the drugs it needed to implement the 2008 Addendum. See Letter from Office of Attorney General to National Association of Attorneys General, (Mar. 4, 2011), https://files.deathpenaltyinfo.org/legacy/documents/2011.03.04.holder.letter.pdf. Defendants informed the court that the BOP "has decided to modify its lethalinjection protocol but the protocol revisions have not yet been finalized." Roane, ECF No. 288 at 2. In response, the court stayed the Roane litigation. No further action was taken in the cases for over seven years.
On July 24, 2019, the DOJ announced a new addendum to the execution protocol, (ECF No. 39-1, Admin. R. at 874-78), replacing the three-drug protocol of the 2008 Addendum with a single drug: pentobarbital sodium. (Id. at 879-80.) The BOP also adopted a new protocol to replace the 2004 Main Protocol. (Id. at 1021-72.) The 2019 Protocol provides for three injections, the first two containing 2.5 grams of pentobarbital in 50 milliliters of diluent each, and the third containing 60 milliliters of a saline flush. (Id. at 880.) The 2019 Protocol does not refer to the form or source of the drug, or measures of quality control, and its description of the intravenous administration of the drug simply provides that the BOP Director or designee "shall determine the method of venous access" and that "[i]f peripheral venous access is utilized, two separate lines shall be inserted in separate locations and determined to be patent by qualified personnel." (Id.)
Following this announcement, the court held a status conference in Roane on August 15, 2019. (See Minute Entry, Aug. 15, 2019.) In addition to the Roane plaintiffs, the court heard from counsel for three other federal death row inmates, all of whom cited the need for additional discovery on the new protocol. (See ECF No. 12, Status Hr'g Tr.) Defendants indicated that they were unwilling to stay the executions, and the court bifurcated discovery and ordered Plaintiffs to complete 30(b)(6) depositions by February 28, 2020, and to file amended complaints by March 31, 2020. (See Minute Entry, Aug. 15, 2019.)
Four inmates with scheduled execution dates filed complaints or motions to intervene in the Roane action challenging the 2019 Protocol, and each inmate subsequently moved to preliminarily enjoin his execution.4 On November 20, 2019, the court granted the four Plaintiffs' motions for preliminary injunction, finding that they had demonstrated a likelihood of success on their claims that the 2019 Protocol exceeds the authority set forth in the Federal Death Penalty Act (FDPA). (See ECF No. 50, Nov. 20, 2019 Mem. Op. at 13, 15; ECF No. 50, Nov. 20, 2019 Order.) The court did not rule on Plaintiffs' other claims, including that the 2019 Protocol is arbitrary and capricious under the Administrative Procedure Act (APA), that it violates the Food, Drug, and Cosmetic Act (FDCA) and the Controlled Substances Act (CSA), that it violates Plaintiffs' right to counsel in violation of the First, Fifth, and Sixth Amendments, and that it is cruel and unusual in violation of the Eighth Amendment. (Id. at 13.) Following the court's order, three more death row inmates filed complaints which in turn were consolidated with Roane.5 The court denied Defendants' motion to stay the court's preliminary injunction. (See Minute Order, Nov. 22, 2019.) The D.C. Circuit likewise denied Defendants' motion to stay, In re Fed. Bureau of Prisons' Execution Protocol Cases, No. 19-5322 (D.C. Cir. Dec. 2,2019), as did the United States Supreme Court on December 6, 2019. Barr v. Roane, 140 S. Ct. 353 (2019). However, three Justices issued a statement indicating their belief that Defendants were likely to prevail on the merits. Id.
On November 21, 2019, Defendants filed an interlocutory appeal of the court's November 20, 2019 Order. (See ECF No. 52.) On April 7, 2020, the D.C. Circuit reversed. Execution Protocol Cases, 955 F.3d at 108. Neither of the two Judges on the panel who voted to reverse agreed on the FDPA's statutory requirements, but they nonetheless rejected on the merits Plaintiffs' claim that the federal government was required by the FDPA to follow procedures set forth in state execution protocols. Id. at 112 (per curiam). The panel expressly declined to rule on Plaintiffs' remaining statutory and constitutional claims, as "the government did not seek immediate resolution of all the plaintiffs' claims" and the claims "were neither addressed by the district court nor fully briefed in this Court." Id. at 113. The Court of Appeals denied Plaintiffs' petition for rehearing en banc on May 15, 2020, and the Supreme Court denied Plaintiffs' application for a stay of the mandate and petition for a writ of certiorari on June 29, 2020. Bourgeois, 2020 WL 3492763.
Meanwhile, Plaintiffs filed their Amended Complaint on June 1, 2020, (ECF No. 92, Am. Compl.), the same day Holder filed a separate supplemental complaint, (ECF No. 94.)
On June 15, 2020, the DOJ and BOP scheduled new execution dates for three Plaintiffs in the case: Daniel Lewis Lee on July 13, 2020, Wesley Ira Purkey on July 15, 2020, Dustin Lee Honken on July 17, 2020, and Keith Dwayne Nelson on August 28, 2020. (ECF No. 99.)
On July 13, 2020, the court preliminarily enjoined the executions of Lee, Purkey, Honken, and Nelson, finding that they had demonstrated a likelihood of success on the merits oftheir claim that the 2019 Protocol is cruel and unusual in violation of the Eighth Amendment. Once again, it did not rule on their other statutory and constitutional claims. (See ECF No. 135, July 13 Mem. Op. at 18, 22.) The D.C. Circuit declined to stay or vacate the court's injunction, see Execution Protocol Cases, No. 20-5199 (D.C. Cir. July 13, 2020), but the Supreme Court vacated the injunction early in the morning of July 14, 2020. Barr v. Lee, No. 20A8, 2020 WL 3964985 (U.S. July 14, 2020) (per curiam). Hours later, Defendants executed Lee.
On July 15, 2020, the court preliminarily enjoined the executions of Purkey, Honken, and Nelson, finding that they had demonstrated a likelihood of success on the merits of their claims that the 2019 Protocol violates the FDCA (ECF No. 145, July 15 Mem. Op. at 28.) The court found, however, that Plaintiffs were unlikely to succeed on their claims that the 2019 Protocol is arbitrary and capricious under the APA, violates the CSA, and deprives Plaintiffs of their right to counsel under the First, Fifth, and Sixth Amendments.
The D.C. Circuit declined to stay or vacate the court's injunction, see Execution Protocol Cases, No. 20-5210 (D.C. Cir. July 16, 2020), but the Supreme Court vacated the injunction without addressing the merits on July 16, 2020. Barr v. Purkey, No. 20A10, 2020 WL 4006821 (U.S. July 16, 2020) (per curiam). Later that week, Defendants executed Purkey and Honken.
On July 31, 2020, Defendants filed their combined motion to dismiss and for summary judgment. (ECF Nos. 169, 170, Defs. Mot.)
On August 15, the court granted Defendants' motion as to the Eighth Amendment claims in Count II of the Amended Complaint. (ECF No. 193, Aug. 15 Order.) In the light of the Supreme...
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