Roane v. Barr (In re Fed. Bureau of Prisons' Execution Protocol Cases)

• Decision Date: 18 November 2020
• Docket Number: No. 20-5329,20-5329
• Citation: 980 F.3d 123
• Parties: IN RE: in the Matter of the FEDERAL BUREAU OF PRISONS' EXECUTION PROTOCOL CASES, James H. Roane, Jr., et al., Appellants v. William P. Barr, Attorney General, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

980 F.3d 123

IN RE: in the Matter of the FEDERAL BUREAU OF PRISONS' EXECUTION PROTOCOL CASES,James H. Roane, Jr., et al., Appellants

v.William P. Barr, Attorney General, et al., Appellees

No. 20-5329

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 2020

Decided November 18, 2020

Alexander C. Drylewski, New York, NY, argued the cause for appellants. With him on the briefs were Jonathan L. Marcus, Shawn Nolan, Jonathan C. Aminoff, Paul F. Enzinna, Washington, DC, Ginger D. Anders, Jonathan S. Meltzer, Brendan Gants, Amy Lentz, Washington, DC, Matthew Lawry, Philadelphia, PA, Gerald W. King, Jr., Jeffrey Lyn Ertel, and Evan Miller.

Melissa N. Patterson, Attorney, U.S. Department of Justice, argued the cause for the appellees. With her on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Sopan Joshi, Senior Counsel to the Assistant Attorney General, and Amanda L. Mundell, Attorney.

Before: Millett, Pillard and Rao, Circuit Judges.

Opinion concurring in part and dissenting in part by Circuit Judge Pillard.

Opinion concurring in part, concurring in the judgment, and dissenting in part filed by Circuit Judge Rao.

Per Curiam:

In July 2019, eight years after federal executions were put on hold due to the government's inability to acquire one of the drugs for its then-existing lethal injection protocol, the Department of Justice announced a revised protocol for execution by lethal injection using a single drug, pentobarbital. Plaintiffs, thirteen federal death row inmates, promptly raised statutory and constitutional challenges to the government's revised protocol. In November 2019, the district court preliminarily enjoined the four then-scheduled executions while it (and, in turn, we) considered a pair of baseline legal challenges to the government's lethal injection protocol. When we held that the 2019 Protocol is exempt from notice and comment requirements under the Administrative Procedure Act (APA) and that the Federal Death Penalty Act (Death Penalty Act) does not require the federal government to follow execution procedures set forth in state execution protocols that are less formal than state statutes and regulations, we vacated those injunctions and remanded for the district court to consider the balance of Plaintiffs’ challenges. See In re Federal Bureau of Prisons’ Execution Protocol Cases (In re FBOP ), 955 F.3d 106 (D.C. Cir. 2020).

During the pendency of the litigation on those remaining claims, the government scheduled executions to take place within days or weeks of one another through the summer and fall. At the behest of Plaintiffs with execution dates and unresolved challenges, the district court issued a series of injunctions barring the federal government from executing inmates whose pending claims it held were likely to succeed. Each of those injunctions was vacated by either this court or the Supreme Court, and the government has since executed seven inmates, six of whom were Plaintiffs in this case at the time of their execution. In September, the district court resolved the Plaintiffs’ remaining claims. On November 3, 2020, the district court denied the Plaintiffs’ motion to alter or amend the judgment under Rule 59(e).

The Plaintiffs then sought expedited review in this court of three of the district court's rulings, and two Plaintiffs with upcoming execution dates moved for stays of execution pending appeal. We affirm the district court's grant of summary judgment to the government based on Plaintiffs’ new challenges to the Death Penalty Act, but we reverse its dismissal of the Plaintiffs’ Eighth Amendment challenge for failure to state a claim. We also hold that the district court should have ordered the 2019 Protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the Federal Food, Drug, and Cosmetic Act (FDCA). But we affirm the district court's denial of a permanent injunction to remedy the FDCA violation.

I.

A.

In 1988, Congress reinstated the federal death penalty without specifying how executions were to be implemented. Five years later, in 1993, the Attorney General issued regulations to fill that gap. Those regulations provide that the "method of execution" for a sentence of death is to be "intravenous injection of a lethal substance or substances in a quantity sufficient to cause death." 28 C.F.R. § 26.3(a)(4). The regulations include no details regarding the specific substances to be used or how those substances are to be chosen or administered. In 1994, Congress enacted the Death Penalty Act, which states that federal executions are to be implemented "in the manner prescribed by the law of the State in which the sentence is imposed." 18 U.S.C. § 3596(a). The Death Penalty Act and the Attorney General's regulations remain the federal law governing executions by the United States. See Manner of Federal Executions, 854 Fed. Reg. 47,324, 47,325-26 (2020).

Between 2001 and 2003, the federal government carried out its first three executions since the death penalty was reinstated. See In re Federal Bureau of Prisons’ Execution Protocol Cases (In re FBOP ), 955 F.3d 106, 110 (D.C. Cir. 2020). The method of execution for each was lethal injection using a combination of three substances—sodium thiopental, pancuronium bromide, and potassium chloride. Id. In 2005, three death row inmates filed suit in the District Court for the District of Columbia alleging they were to be executed under a protocol that violated the Constitution and the APA. See Complaint at 30-36, Roane v. Gonzales , 05-cv-2337 (D.D.C. Dec. 6, 2005); see also Amended Complaint at 28-32, Roane , 05-cv-2337 (D.D.C. July 10, 2006). The court granted motions by the three original Plaintiffs and several Plaintiffs who intervened for preliminary injunctions barring their executions. See, e.g. , Order at 1, Roane , 05-cv-2337 (D.D.C. June 30, 2006); Minute Order, Roane , 05-cv-2337 (D.D.C. Feb. 14, 2007); Order at 1, Roane , 05-cv-2337 (D.D.C. Feb. 21, 2007). During the litigation, the government produced a 50-page protocol, first adopted in 2004, detailing the procedures for carrying out executions, including admitting witnesses to the execution, providing for the prisoner's final meal, and permitting statements, among many other things. In re FBOP , 955 F.3d at 110. In 2008, the government produced an addendum to the 2004 Protocol specifying that the method of execution would be by lethal injection using the same three-drug protocol the government used in the executions between 2001 and 2003. See id . That same year, the Supreme Court rejected an Eighth Amendment challenge to Kentucky's use of the same three substances for execution by lethal injection. See Baze v. Rees , 553 U.S. 35, 53-54, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). In 2011, however, the government announced it was unable to procure sodium thiopental, one of the drugs required to carry out an execution under its existing protocol. At that point, at least two cases involving method-of-execution challenges were pending in the district court and two more were filed shortly thereafter. See Roane , 05-cv-2337; Robinson v. Mukasey , 05-cv-2145 (D.D.C.); Bourgeois v. Dep't of Justice , 12-cv-782 (D.D.C.); Fulks v. Dep't of Justice , 13-cv-938 (D.D.C.). All four were put on hold pending the government's issuance of a revised protocol.

On July 25, 2019, eight years after announcing the unavailability of sodium thiopental, the Department of Justice announced its revised protocol, referred to in this litigation as the 2019 Protocol. A two-page addendum to the 2019 Protocol makes pentobarbital, a barbiturate, the sole drug to be used in federal executions. See In re FBOP , 955 F.3d at 110. On the same day that it announced the 2019 Protocol, the government also announced scheduled execution dates in December 2019 and January 2020 for five inmates on death row.

In response to the government's notification of its revised protocol, the district court scheduled a status conference in the four pending cases for August 15 of last year and consolidated the cases five days later. See Minute Order, Roane , 05-cv-2337 (D.D.C. Aug. 5, 2019). Because the execution date of one of the Plaintiffs before the court, Alfred Bourgeois, had been scheduled for January 13, 2020, the district court asked the government at the scheduling conference if it was willing to stay Bourgeois's execution pending the resolution of his case. See Status Hr'g Tr. 6, supra . The government stated that it did not intend to stay the execution date, so the district court proceeded to set an expedited schedule, requiring an amended complaint by the end of March. Id. at 19; see Fed. R. Civ. P. 30(b)(6). On March 18, the parties jointly requested that the court extend by 60 days the deadline for Plaintiffs’ amended complaint because of the disruptions the COVID-19 outbreak had caused in Plaintiffs’ efforts to complete pre-amendment discovery. The court granted that request the next day and set a briefing schedule for dispositive motions extending from July to December. See Minute Order, In re FBOP , No. 19-mc-145 (D.D.C. Mar. 18, 2020).

In the meantime, Plaintiffs with execution dates in December and January sought to enjoin their executions until their pending claims could be resolved. Three of the inmates with scheduled execution dates—Daniel Lee, Wesley Purkey, and Dustin Honken—had intervened in the master case in the months after the protocol was announced. Those three Plaintiffs and Bourgeois all moved for preliminary injunctions, which the district court granted in November 2019. See Memorandum Opinion, In re FBOP , No. 19-mc-145 (D.D.C. Nov. 20, 2019), ECF No. 50. The court found that Plaintiffs had shown a likelihood of success on their claim that the 2019 Protocol exceeded the government's statutory authority under the Death Penalty Act but it did not reach any of the Plaintiffs’ other claims. Id. at...