Sepulvado v. Jindal

• Decision Date: 23 December 2013
• Docket Number: No. 13–70007.,13–70007.
• Citation: 739 F.3d 716
• Parties: Christopher SEPULVADO, Intervenor Plaintiff–Appellee, v. Bobby JINDAL, Governor of Louisiana; James M. LeBlanc, Secretary, Department of Public Safety and Corrections; Burl Cain, Warden, Louisiana State Penitentiary; Angie Norwood, Warden, Death Row; Louisiana Department of Public Safety and Corrections; John Does, Unknown Executioners, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

739 F.3d 716

Christopher SEPULVADO, Intervenor Plaintiff–Appellee,

v.Bobby JINDAL, Governor of Louisiana; James M. LeBlanc, Secretary, Department of Public Safety and Corrections; Burl Cain, Warden, Louisiana State Penitentiary; Angie Norwood, Warden, Death Row; Louisiana Department of Public Safety and Corrections; John Does, Unknown Executioners, Defendants–Appellants.

No. 13–70007.

United States Court of Appeals, Fifth Circuit.

Dec. 23, 2013.

Gary Patrick Clements, Counsel, Kathleen Ann Kelly, Esq., Capital Post—Conviction Project of Louisiana, New Orleans, LA, for Intervenor Plaintiff–Appellee.

Edmond Wade Shows, Shows, Cali, Berthelot & Walsh, L.L.P., Baton Rouge, LA, for Intervenor Plaintiff–Appellee and Defendant–Appellant.

Jacqueline Bordelon Wilson, Shows, Cali, Berthelot & Walsh, L.L.P., Baton Rouge, LA, for Defendants–Appellants.

Appeal from the United States District Court for the Middle District of Louisiana.

Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.

PER CURIAM:

ON PETITION FOR PANEL REHEARING AND PETITION FOR REHEARING EN BANC

The petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.

In the en banc poll, 4 judges voted in favor of rehearing (Judges King, Dennis, Prado, and Graves), and 11 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Jones, Smith, Clement, Owen, Elrod, South wick, Haynes, and Higginson).

JAMES L. DENNIS, Circuit Judge, joined by CAROLYN DINEEN KING and JAMES E. GRAVES, JR., Circuit Judges, dissenting from the denial of rehearing en banc:

Louisiana, by statute, requires that death sentence executions be carried out by lethal injection. La.Rev.Stat. § 15:569(B). Prior to 2010, the State of Louisiana, pursuant to a Louisiana Department of Corrections directive, used a three-drug protocol to execute inmates via lethal injection: a combination of sodium thiopental (a barbiturate and anesthetic), pancuronium bromide (a paralyzing agent that, inter alia, induces suffocation), and potassium chloride (a substance that induces a heart attack).¹ In 2010, due to a nationwide shortage of sodium thiopental, Louisiana, having exhausted its unexpired supply of that drug, repealed or rescinded its regulations governing lethal-injection protocols and procedures altogether and did not publicly announce what drug or combination of drugs it would use in place of sodium thiopental.

On January 23, 2013, Sepulvado, a Louisiana death row prisoner, intervened in this § 1983 suit seeking to obtain notice from the State of what drug or combination of drugs will be used to execute him in his execution on February 13, 2013, and an opportunity to consider whether to challenge the constitutionality of the drug protocol that the State plans to use in his execution.² The State repeatedly refused to furnish Sepulvado with this notice and adamantly insisted before the district court that it is under no obligation to officially release the details of the execution protocol.

On February 7, 2013, the district court granted Sepulvado a preliminary injunction that required the State to turn over its lethal-injection protocols and stayed Sepulvado's execution until further order of the court. Hoffman v. Jindal, No. 12–CV–796–JJB, 2013 WL 489809 (M.D.La. Feb. 7, 2013). If the district court had not stayed Sepulvado's execution scheduled for February 13, 2013, Sepulvado likely would have been the first person to be put to death without definite official notice as to what drug or combination of drugs would be used to execute him and without an opportunity to object and be heard at a meaningful time and in a meaningful manner.

The State appealed the district court's injunction and stay order. Subsequently, after regular appellate proceedings, a panel of this court, on August 30, 2013, reversed the district court's judgment and held that a death row prisoner has no liberty or procedural due process interest in receiving notice of what drug or combination of drugs and methods will be used to execute him, and, if appropriate, in having an opportunity to object to those drugs and methods. Sepulvado v. Jindal, 729 F.3d 413 (5th Cir.2013).

However, prior to the panel's decision on August 30, 2013, the State, on June 17, 2013, disclosed a new lethal-injection protocol to Sepulvado and the district court, stating that the State will use a single dose of pentobarbital to execute Sepulvado and describing in some detail the methods by which the execution will take place. The State's compliance with the district court's injunction order thus rendered moot the constitutional procedural due process question raised by the State's appeal.

In my view, the panel opinion is not only invalid because it was based on an erroneous application of procedural due process—the panel also contravened the Supreme Court's prior admonishment to us in University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), that we must refrain from issuing advisory opinions on preliminary injunctions that have already been carried out. Accordingly, I respectfully dissent from the denial of rehearing en banc.

I.

It is axiomatic that this Court has an obligation to satisfy itself of its own subject-matter jurisdiction. E.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Article III of the Constitution extends the “judicial Power” of the United States only to “Cases” and “Controversies.” U.S. Const. art. III, § 2. With certain exceptions not applicable here, federal courts must decline to exercise jurisdiction over a case that has become moot. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome. No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.” Already, LLC v. Nike, Inc., ––– U.S. ––––, 133 S.Ct. 721, 726–27, 184 L.Ed.2d 553 (2013) (citations and quotation marks omitted); see also, e.g., Friends of the Earth, 528 U.S. at 180, 120 S.Ct. 693 (“The Constitution's case-or-controversy limitation on federal judicial authority, Art. III, § 2, underpins ... [the Court's] mootness jurisprudence.”). Federal courts of appeals must decline to review a preliminary injunction on the merits if, during the pendency of the appeal, the defendant has complied with the terms of the injunction. Camenisch, 451 U.S. at 396, 398, 101 S.Ct. 1830.

In Camenisch, the Supreme Court granted certiorari and vacated an opinion of this Court as moot under circumstances similar to those presented in this case. See id. There, the district court granted a preliminary injunction that required the University of Texas to pay for an interpreter for a deaf graduate student under the Rehabilitation Act of 1973. Id. at 392–93, 101 S.Ct. 1830. A panel of this Court affirmed the district court's order in relevant part. Id. at 393, 101 S.Ct. 1830. However, by the time this Court acted, the University had obeyed the district court's preliminary injunction. Id. Nevertheless, we concluded that the case was not moot because, we reasoned, one justiciable issue remained live in the case—namely, which party would bear the responsibility of paying for the interpreter. Id. The Supreme Court vacated our opinion as moot, admonishing that “the terms of the injunction ... ha[d] been fully and irrevocably carried out” by the time we issued our opinion, and that, because the only issue remaining must be resolved after a full trial on the merits, “[u]ntil such a trial has taken place, it [was] inappropriate for th[e] Court to intimate any view on the merits of the lawsuit.” Id. at 398, 101 S.Ct. 1830;see also, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993) (summarily vacating as moot court of appeals decision affirming preliminary injunction) (citing Camenisch, 451 U.S. 390, 101 S.Ct. 1830, and United States v. Munsingwear, 340 U.S. 36, 39–40, 71 S.Ct. 104, 95 L.Ed. 36 (1950)).

The panel fails to acknowledge that this case is controlled by Camenisch. The district court entered a preliminary injunction before any proceedings had taken place on the merits, and the State complied fully with the terms of the preliminary injunction—by turning over its revised lethal-injection protocol to Sepulvado—before the panel of this Court issued its decision. This appeal commenced on February 7, 2013, when the State filed its notice of appeal. During the pendency of this appeal, on June 6, 2013, a magistrate judge ordered that the State turn over its lethal-injection protocols and denied the State a protective order with respect to the protocols. See Hoffman v. Jindal, No. 3:12–cv–00796–JJB–SCR (Doc. No. 62). ³ The State complied with the discovery order, and on June 17, 2013, the State turned over its revised lethal-injection protocol. See id. (Doc. No. 67, ¶ 31, at 9–10). The new protocol describes the lethal-injection methodology and provides that pentobarbital alone will be used. See id. On August 16, 2013, the plaintiffs filed an amended complaint citing and summarizing the State's procedures pursuant to the lethal-injection protocol that the State turned over on June 17, 2013. Id. (Doc. No. 67, ¶ 31, at 9). The panel filed its opinion addressing the State's ostensible refusal to hand over the protocol on August 30, 2013,...