DC Cir - Fed Exec - Opp To DOJ Stay Motion

USCA Case #19-5322 Document #1818021
ORAL ARGUMENT NOT YET Filed: 11/27/2019

SCHEDULED Page 1 of 31
No. 19-5322
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES
JAMES H. ROANE, et al.,

Plaintiffs-Appellees,
v.
WILLIAM P. BARR, ATTORNEY GENERAL, et al.,

Defendants-Appellants.
On Appeal from the United States District Court

for the District of Columbia, No. 19-mc-145
Before the Honorable Judge Tanya S. Chutkan
PLAINTIFFS-APPELLEES’ OPPOSITION TO
DEFENDANTS-APPELLANTS’ MOTION TO STAY OR
VACATE THE PRELIMINARY INJUNCTION
JOSHUA M. KOPPEL ALAN E. SCHOENFELD

ARIN SMITH STEPHANIE SIMON
WILMER CUTLER PICKERING MARGUERITE COLSON
HALE AND DORR LLP WILMER CUTLER PICKERING
1875 Pennsylvania Avenue NW HALE AND DORR LLP
Washington, DC 20006 7 World Trade Center
(202) 663-6000 250 Greenwich Street
New York, NY 10007
(212) 230-8800
Counsel for Wesley Purkey
November 27, 2019
ADDITIONAL COUNSEL LISTED ON INSIDE COVER

USCA Case #19-5322 Document #1818021 Filed: 11/27/2019 Page 2 of 31
SHAWN NOLAN CATHERINE E. STETSON

JOSEPH LUBY ELIZABETH M. HAGERTY
ALEX KURSMAN HOGAN LOVELLS US LLP
LYNNE KOLODINSKY 555 Thirteenth Street NW
FEDERAL COMMUNITY DEFENDER OFFICE Washington, DC 20004
E.D. PA. (202) 637-5600
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106 PIETER VAN TOL
(215) 928-0520 HOGAN LOVELLS US LLP
390 Madison Avenue
Counsel for Alfred Bourgeois New York, NY 10017
(212) 918-3000
JON JEFFRESS
KAISERDILLON PLLC Counsel for Daniel Lewis Lee
1099 14th Street NW
8th Floor West
Washington, DC 20005
(202) 640-2850
SHAWN NOLAN
TIMOTHY KANE
DEVON PORTER
FEDERAL COMMUNITY DEFENDER OFFICE
E.D. PA.
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
Counsel for Dustin Lee Honken

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................................iv
INTRODUCTION ..................................................................................................... 1
BACKGROUND ....................................................................................................... 2
A. Statutory And Regulatory Background ................................................. 2
B. The Lethal-Injection Protocols .............................................................. 6
C. Factual And Procedural History ............................................................ 6
ARGUMENT ............................................................................................................. 8
I. DEFENDANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS ........................ 9
A. BOP’s Issuance Of The Protocol Was Ultra Vires ............................... 9
B. The 2019 Protocol Does Not “Implement” A Death

Sentence In The “Manner” Used By The States ................................. 11
C. The 2019 Protocol Differs In Significant Respects From

State Procedures .................................................................................. 18
II. DEFENDANTS WILL NOT BE IRREPARABLY HARMED BY THE

PRELIMINARY INJUNCTION.............................................................................. 19
III. PLAINTIFFS WILL BE IRREPARABLY HARMED BY A STAY OF THE

INJUNCTION .................................................................................................... 20
IV. A STAY IS NOT IN THE PUBLIC INTEREST ....................................................... 21
CONCLUSION ........................................................................................................ 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
CASES
Page
Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652 (2017) .................... 12
American Library Ass’n v. FCC, 406 F.3d 689 (D.C. Cir. 2005) ........................... 10
Andres v. United States, 333 U.S. 740 (1948) ........................................................... 3
California v. Azar, 911 F.3d 558 (9th Cir. 2018) .................................................... 21
Higgs v. United States, 711 F. Supp. 2d 479 (D. Md. 2010) ................................... 14
League of Women Voters of United States v. Newby, 838 F.3d 1

(D.C. Cir. 2016) .......................................................................................20, 21
Nken v. Holder, 556 U.S. 418 (2009) ........................................................................ 9
Rosenberg v. Carroll, 99 F. Supp. 630 (S.D.N.Y. 1951) ........................................ 15
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ............................................... 8
United States Telecom Ass’n v. FCC, 359 F.3d 554 (D.C. Cir. 2004) .................... 10
United States v. Bourgeois, 423 F.3d 501 (5th Cir. 2005).................................13, 14
United States v. Fell, 2018 WL 7270622 (D. Vt. Aug. 7, 2018) ............................. 14
United States v. Hammer, 121 F. Supp. 2d 794 (M.D. Pa. 2000) ........................... 14
Winter v. Natural Defense Council, Inc., 555 U.S. 7 (2008) ................................... 21
DOCKETED CASES
Bourgeois v. United States Department of Justice, No. 12-cv-782

(D.D.C.) ......................................................................................................... 20
Roane v. Barr, No. 05-cv-2337 (D.D.C.) ................................................................ 20
STATUTES AND REGULATIONS
5 U.S.C. §706 .......................................................................................................9, 18
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18 U.S.C.
§542 (Supp. III 1937) .................................................................................. 2, 3
§3596 .....................................................................................4, 7, 9, 14, 15, 16
§3597 .....................................................................................................4, 9, 16
28 U.S.C. §566 ......................................................................................................... 10
Pub. L. No. 98-473, 98 Stat. 1837 (1984) .................................................................. 3
Pub. L. No. 103-322, 108 Stat. 1796 (1994) .............................................................. 3
1 Stat. 112 (1790) ....................................................................................................... 2
28 C.F.R. part 26 ..................................................................................................4, 15
58 Fed. Reg. 4898 (Jan. 19, 1993) ............................................................................. 3
LEGISLATIVE MATERIALS
H.R. Rep. No. 75-164 (1937) .........................................................................2, 12, 13
H.R. Rep. No. 101-170 (1989) ................................................................................... 3
H.R. Rep. No. 102-405 (1991) ................................................................................... 3
H.R. Rep. No. 104-23 (1995) ...........................................................................4, 5, 17
Death Penalty Reform Act of 2006: Hearing Before the Subcommittee

on Crime, Terrorism, and Homeland Security of the House
Committee on the Judiciary, 109th Cong. (2006) ......................................... 17
Hearing on H.R. 2359 Before the Subcommittee on Crime of the

House Committee on the Judiciary, 104th Cong. (1995) ................................ 5
Matters Relating to the Federal Bureau of Prisons: Hearing Before

the Subcommittee on Crime of the House Committee on the
Judiciary, 105th Cong. (1995) ......................................................................... 5
H.R. 851, 110th Cong. (2007).................................................................................... 6
H.R. 1087, 105th Cong. (1997).................................................................................. 6
H.R. 2359, 104th Cong. (1995).................................................................................. 5
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OTHER AUTHORITIES
Arkansas Protocol, available at https://files.deathpenaltyinfo.org/

legacy/files/pdf/ExecutionProtocols/ArkansasProtocol08.06.
2015.pdf ......................................................................................................... 18
The Last Man Uncle Sam Executed, The Smoking Gun (May 7, 2001),
http://www.thesmokinggun.com/documents/crime/last-man-
uncle-sam-executed ....................................................................................... 15
Memorandum from Deborah Westbrook to Director Gonzalez (Sept.

9, 1994), https://files.deathpenaltyinfo.org/documents/United-
States-Marshals-Federal-Execution-Documents.pdf .......................4, 5, 10, 13
Merriam Webster’s Collegiate Dictionary (10th ed. 1993)..................................... 11
Robertson, Campbell, She Doesn’t Want Her Daughter’s Killer To Be

Put To Death. Should the Government Listen?, N.Y. Times
(Nov. 29, 2019), https://www.nytimes.com/2019/10/29/us/
arkansas-federal-death-penalty.html.............................................................. 22
Webster’s Collegiate Dictionary (5th ed. 1936) ...................................................... 11
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INTRODUCTION
This case involves a challenge to the legality of the federal government’s
lethal-injection procedures, which were issued without statutory authority and are
therefore void as a matter of law. The underlying action, first filed in 2005, has
been stayed since 2011 to permit the government to adopt a new lethal-injection
protocol. Defendants finally announced that new protocol in July 2019. At the
same time—and despite the pending litigation—Defendants scheduled the
executions of five individuals to take place a few months later.
The district court preliminarily enjoined those executions, finding that
Plaintiffs—who include four of the five inmates scheduled for execution—are
likely to prevail on their claim that the new protocol is unlawful. As the court
explained, the federal law governing the implementation of death sentences does
not allow the Bureau of Prisons to issue the protocol that it announced in July
2019. The district court also found that Plaintiffs—who face execution in a matter
of weeks—would suffer irreparable harm absent an injunction, and the
government—having waited eight years to issue the protocol in question—would
not be harmed by a short delay to allow the court to resolve Plaintiffs’ claims. The
district court did not abuse its discretion in making those findings.
Defendants now seek to side-step judicial review by requesting a stay or
vacatur of the district court’s injunction without full briefing. A stay is
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inappropriate because it would not preserve the status quo pending appeal, but
instead moot the appeal and change the status quo by permitting Plaintiffs to be
executed. And summary vacatur is inappropriate because the district court’s
injunction was properly issued, and certainly not so clearly erroneous that it can be
reversed without full briefing. Plaintiffs are prepared to brief this appeal on any
expedited schedule entered by the Court. Defendants’ motion should be denied so
that Plaintiffs’ claims can be resolved on the merits, before Plaintiffs are executed
pursuant to an unlawful protocol.
BACKGROUND
A. Statutory And Regulatory Background
Until 1937, federal law mandated that the United States Marshals Service
(USMS) carry out federal executions by hanging. 1 Stat. 112, 119 (1790). In
1937, however, Congress recognized that hanging had become an antiquated
practice, and so it looked to the methods in use in the States. H.R. Rep. No. 75-
164, at 1 (1937). Congress replaced the federal execution procedure with a
decentralized system to ensure that federal executions would mirror those of the
States. Specifically, Congress required that USMS carry out federal executions in
“the manner prescribed by the laws of the State within which the sentence is
imposed.” 18 U.S.C. §542 (Supp. III 1937). If the State where the sentence was
imposed had no death penalty, the sentencing court was required to “designate
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some other State in which such sentence shall be executed in the manner
prescribed by the laws thereof.” Id.; see also Andres v. United States, 333 U.S.
740, 745 & n.6 (1948).
In 1984, Congress repealed the federal death-penalty statute as part of the
Sentencing Reform Act, leaving the federal government without a mechanism for
carrying out executions. See Pub. L. No. 98-473, §211, 98 Stat. 1837, 1987
(1984). In the ensuing years, Congress considered but did not enact various bills
that would have provided such a mechanism. See, e.g., H.R. Rep. No. 101-170, at
12-13 (1989); H.R. Rep. No. 102-405, at 9-10 (1991) (Conf. Rep.).
In the meantime, DOJ issued a final rule in 1993 to fill the gap created by
the repeal of the 1937 law and “establish[] procedures” for carrying out federal
executions. 58 Fed. Reg. 4898, 4898 (Jan. 19, 1993) (Final Rule). The Final Rule
required executions to take place by lethal injection, but left the specific drugs to
be used and other key decisions to the discretion of the BOP Director. Id. at 4902.
The next year, however, Congress enacted the Federal Death Penalty Act
(FDPA). See Pub. L. No. 103-322, tit. VI, 108 Stat. 1796, 1959-1982 (1994).
With the FDPA, Congress returned to its earlier approach of requiring the federal
government to look to the manner of executions used by the States, thereby
displacing the 1993 regulations. The FDPA requires that a U.S. Marshal
“supervise implementation” of the death penalty “in the manner prescribed by the
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law of the State in which the sentence is imposed.” 18 U.S.C. §3596(a). The
FDPA—like the 1937 law—permits the Marshal to “use appropriate State or local
facilities” and “the services of an appropriate State or local official” or employee to
carry out executions. Id. §3597(a). Nowhere does the FDPA sanction
implementation of the death sentence by BOP, and nowhere does it sanction
implementation in any manner aside from the one provided for by the relevant
State.
DOJ understood that the FDPA conflicted with its Final Rule (28 C.F.R. part
26). Then-Attorney General Janet Reno expressed concern that the bill
“contemplate[s] a return to an earlier system in which the Federal Government
does not directly carry out executions, but makes arrangements with states to carry
out capital sentences in Federal cases.” H.R. Rep. No. 104-23, at 22 (1995). DOJ
therefore “recommend[ed] amendment of the legislation to perpetuate the current
approach, under which the execution of capital sentences … is carried out …
pursuant to uniform regulations issued by the Attorney General.” Id. Congress
declined to adopt such an amendment.
USMS also understood that the FDPA conflicted with the Final Rule. The
USMS’s General Counsel wrote that, under the FDPA, “implementation of the
death sentence is dependent on state, not Federal law.” Memorandum from
-4-
Deborah Westbrook to Director Gonzalez 2 (Sept. 9, 1994) (“Westbrook Memo”).1
She expressed concern that the “death penalty implementation established by the
[FDPA] is in conflict with [DOJ’s] regulations …, which established uniform
implementation procedures.” Id. at 2 n.2; see also Matters Relating to the Federal
Bureau of Prisons: Hearing Before the Subcomm. on Crime of the H. Comm. on
the Judiciary, 105th Cong. 14 (1995) (statement of Kathleen Hawk, Director,
BOP) (referring to the FDPA as a “little-noted provision” that put the Final Rule
“in question” and encouraging an amendment that would allow for “a uniform
system for implementing Federal death sentences”).
DOJ has, on several occasions, asked Congress to amend the FDPA to grant
BOP authority to perform executions “pursuant to uniform regulations.” H.R. Rep.
No. 104-23, at 22. For example, a 1995 bill would have amended Section 3596 to
allow a death sentence to be “implemented pursuant to regulations prescribed by
the Attorney General,” which the bill sponsor explained “was the law prior to the
passage of [the FDPA].” Hearing on H.R. 2359 Before the Subcomm. on Crime of
the H. Comm. on the Judiciary, 104th Cong. 2, 10 (1995) (statement of Rep.
McCollum); see H.R. 2359, 104th Cong. (1995). That bill was never enacted, and
Congress has since failed to pass eight additional bills proposing to amend the
1
Available at https://files.deathpenaltyinfo.org/documents/United-States-
Marshals-Federal-Execution-Documents.pdf.
-5-
FDPA to allow DOJ to develop its own manner of implementing the death penalty
and to grant BOP authority to carry out executions. See, e.g., A4; H.R. 1087,
105th Cong. (1997); H.R. 851, 110th Cong. (2007).
B. The Lethal-Injection Protocols
In 2004, Defendants adopted a protocol that detailed procedures for carrying
out federal executions. A4-5. In 2008, BOP issued an addendum announcing that
federal executions would be carried out using three drugs. Id. But in 2011, BOP
announced that it lacked the drugs necessary to implement the 2008 addendum and
that it was in the process of considering revisions to it. Id.
On July 25, 2019, after more than eight years of review and without any
public notice, DOJ issued what it referred to as an “addendum” to the lethal-
injection protocol. A5. This self-styled addendum replaces the three drugs
specified by the 2008 addendum with a single drug, pentobarbital sodium, and
makes other changes. Id. At the same time, and without any public notice, BOP
replaced the 2004 protocol with a 2019 main protocol (together with the 2019
addendum, the “2019 Protocol”). Id.
C. Factual And Procedural History
The first of the consolidated cases challenging the federal execution
procedures was filed in 2005. A4. The cases were stayed in 2011, following
DOJ’s announcement that it was revising its lethal-injection protocol. A4-5.
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On July 25, 2019, simultaneously with the announcement of the 2019
Protocol, Defendants identified five individuals to be executed under the new
protocol: Daniel Lee on December 9, 2019; Lezmond Mitchell on December 11,
2019; Wesley Purkey on December 13, 2019; Alfred Bourgeois on January 13,
2020; and Dustin Honken on January 15, 2020. The pending cases were
subsequently reopened, and the appellees here—Lee, Purkey, Bourgeois, and
Honken—each challenged the 2019 Protocol and sought preliminary injunctions.
Plaintiffs argued, among other things, that the 2019 Protocol violates the FDPA by
creating distinct federal lethal-injection procedures rather than requiring that
executions be implemented “in the manner prescribed” by State law, 18 U.S.C.
§3596(a).
On November 20, 2019, the district court granted a preliminary injunction.
The court found that Plaintiffs are likely to succeed on their claim that the 2019
Protocol contravenes the FDPA, and thus found it unnecessary to reach any of the
other claims. The court explained that the statute does not permit BOP “to decide
procedures without reference to state policy.” A7. In so holding, the court rejected
the argument that “Congress only gave the states the authority to decide the
‘method’ of execution, e.g., whether to use lethal injection or an alternative, not the
authority to decide additional procedural details such as the substance to be
injected or the safeguards taken during the injection.” A8-9.
-7-
The district court further found that, absent preliminary injunctive relief,
“Plaintiffs would be unable to pursue their claims, … and would therefore be
executed under a procedure that may well be unlawful.” A13. “This harm,” the
court stated, “is manifestly irreparable.” Id. The court rejected Defendants’
argument that they would suffer harm if the executions were enjoined, explaining
that “the eight years that [the government] waited to establish a new protocol
undermines its arguments regarding the urgency and weight of [its] interest” in the
finality of criminal proceedings. A14. Finally, the court found that “[t]he public
interest is not served by executing individuals before they have had the opportunity
to avail themselves of legitimate procedures to challenge the legality of their
executions.” Id.
The district court denied Defendants’ motion to stay the preliminary
injunction.
ARGUMENT
A stay pending appeal is available “only under extraordinary
circumstances,” and the “district court’s conclusion that a stay is unwarranted is
entitled to considerable deference.” Ruckelshaus v. Monsanto Co., 463 U.S. 1315,
1316 (1983) (Blackmun, J., in chambers). The government has not carried its
“‘heavy burden’” to justify such relief here, id., as (1) it has not “‘made a strong
showing that [it] is likely to succeed’” in challenging the injunction on appeal;
-8-
(2) it will not “‘be irreparably injured absent a stay’”; (3) a stay would
substantially and irreparably injure Plaintiffs; and (4) a stay is not in the public
interest. Nken v. Holder, 556 U.S. 418, 434 (2009).
I. DEFENDANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS
The district court correctly held that Plaintiffs are likely to prevail on their
claim that the 2019 Protocol is contrary to law. 5 U.S.C. §706(2)(A). Under the
FDPA, the death penalty must be carried out by a U.S. Marshal in accordance with
the law of the State in which the sentence was imposed. 18 U.S.C. §3596(a). The
statute thus prohibits the creation or use of a distinct federal execution protocol.2
A. BOP’s Issuance Of The Protocol Was Ultra Vires
BOP lacked authority to issue the 2019 Protocol. Section 3596 states that
the “United States Marshal” “shall” supervise the implementation of death
sentences, and Section 3597 likewise refers to the Marshal’s role in implementing
such sentences. Neither section refers to BOP, nor does the FDPA elsewhere grant
any authority to BOP with respect to implementing death sentences. Congress
vested USMS with the sole authority to carry out sentences under the FDPA.
BOP, “like other federal agencies, ‘literally has no power to act … unless and until
2
Defendants are incorrect that “the district court did not accept plaintiffs’
Eighth Amendment claim.” Mot. 10. The court expressly declined to reach that
constitutional claim—as well as Plaintiffs’ other statutory and constitutional
claims—because a preliminary injunction was warranted on a threshold statutory
ground. See A15.
-9-
Congress confers power upon it.’” American Library Ass’n v. FCC, 406 F.3d 689,
698 (D.C. Cir. 2005). The protocol should be set aside as ultra vires.
Defendants have recognized this statutory scheme. In a 1994 memo
concerning the recently passed FDPA, the USMS General Counsel wrote that “the
most notable aspect [of the FDPA] for the Marshals Services is our responsibility
in implementing the Federal sentence.” Westbrook Memo 2. BOP also recognized
USMS’s responsibility for implementing death sentences. When BOP set out to
formulate the 2019 Protocol, it obtained USMS’s “deference to BOP on all matters
related to the time, place, and manner of carrying out federal executions.” AR858
(emphasis added).
But BOP cannot step into USMS’s shoes to exercise congressionally
delegated authority, even with USMS’s consent. This Court has explained that
“[w]hen a statute delegates authority to a federal … agency,” the agency may not
subdelegate its responsibility to another agency “absent an affirmative showing of
congressional authorization.” United States Telecom Ass’n v. FCC, 359 F.3d 554,
565 (D.C. Cir. 2004). This is particularly true here because USMS is not an
executive-branch agency in the typical sense, but instead has “the primary role” of
“obey[ing], execut[ing], and enforc[ing] all orders of the” United States courts. 28
U.S.C. §566(a). Accordingly, BOP’s actions in formulating the 2019 Protocol
were ultra vires, and the protocol must be set aside.
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B. The 2019 Protocol Does Not “Implement” A Death Sentence In

The “Manner” Used By The States
The 2019 Protocol is also unlawful because it creates distinct federal lethal-
injection procedures, without regard to the manner of execution used by the States.
The district court correctly held that the requirement that the U.S. Marshal
“implement[]” the death penalty in accordance with the “manner” used by the State
where the prisoner was sentenced refers to more than just the method of
execution—it also includes the State’s choice of drug(s) and other key procedures.
A7-10.
1. The plain meaning of the word “manner” refers to the procedures
used by the States—not just the type of execution. “Manner” means “a mode of
procedure or way of acting.” Merriam Webster’s Collegiate Dictionary 708 (10th
ed. 1993); see also Webster’s Collegiate Dictionary 609 (5th ed. 1936) (“way of
acting; a mode of procedure”). Thus, Section 3596 requires the U.S. Marshal to
implement the federal death penalty using the same “mode of procedure” as the
States.
Defendants argue that “manner” means “method,” and that the “method” of
execution refers only to the type of execution in the sense of hanging, lethal
injection, or electrocution. Mot. 11-12. But as the district court explained,
Congress’s “use of the word ‘manner’” instead of “method” indicates that
Congress was referring “not just [to] execution method but also [to] execution
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procedure.” A8; see Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652,
1659 (2017) (when Congress “did not adopt ‘obvious alternative’ language, ‘the
natural implication is that [it] did not intend’ the alternative”).
There is no doubt that the “manner” of execution includes the “method” of
execution, but that does not suggest that their meanings are coterminous. Rather,
“manner”—consistent with its definition—is broader and includes execution
procedures. Defendants’ citations (at 11-13) to instances where “manner” has
been used to mean the type of execution are thus unavailing. Moreover, contrary
to Defendants’ assertion (at 12), “manner” and “method” are not used
interchangeably in the legislative history or, in particular, in the 1937 House
Report that Defendants rely on. There, both the Committee and the Attorney
General consistently used the word “method” to refer to the type of execution (e.g.,
hanging, electrocution, or gas). H.R. Rep. No. 75-164, at 1-2 (1937). But the law
Congress passed instead requires the government to execute prisoners in the
“manner” used by the States. The selection of “manner” over “method” was an
intentional reflection of the desire to encompass more than just the “method” of
execution.
Notably, the district court’s construction of the statute is consistent with the
understanding of USMS at the time the FDPA was enacted, which was that a
State’s prescribed “manner” of execution involves something more than the
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“method” of execution. Westbrook Memo 2 & n.2; see supra pp.4-5. Moreover,
the legislative history of the FDPA and subsequent attempts to amend it are rife
with evidence that the execution type is commonly referred to as the “method” of
execution, not the “manner” of execution. See, e.g., H.R. Rep. No. 75-164, at 1-2
(letter from the Attorney General and House Report referring to hanging,
execution, and gas as “methods” of execution).
The district court’s construction is also consistent with the legislative
history, which makes clear that Congress intended the 1937 law to constrain the
federal government’s authority to create execution procedures and required USMS
to defer to the States’ decisions about the appropriate manner of execution. See
H.R. Rep. No. 75-164, at 1. That constraint on the federal government’s authority
is equally applicable to the method of execution and the manner of carrying out the
execution, both of which have substantial consequences for the inmate.
Defendants argue that the federal government should have authority to craft lethal-
injection procedures. Mot. 14. But that is an argument for Congress to amend the
law; it does not permit Defendants to ignore the law.3
3
The cases cited by Defendants (at 13) are unavailing. In United States v.
Bourgeois, 423 F.3d 501 (5th Cir. 2005), the Fifth Circuit held that the district
court in Texas did not violate the FDPA when it ordered that Bourgeois be
executed by lethal injection at a place and with drugs to be determined by BOP and
the Attorney General. See id. at 509. But there was no argument that the Texas
procedures could be ignored and no showing that they would be, as Defendants
seek to do now. Indeed, the court noted that the federal protocol must be
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2. Even assuming “method” and “manner” were synonymous, as
Defendants assert, their argument wholly ignores the fact that the FDPA differs
from previous statutes in that it mandates “implementation of the [death] sentence
in the manner prescribed by the law of the State in which the sentence is imposed.”
18 U.S.C. §3596 (emphasis added). “Implementation” refers to the various
processes involved in carrying out a sentence of death. The requirement that a
U.S. Marshal “supervise implementation” of the sentence in the manner of the
State therefore entails following state processes. See United States v. Hammer,
121 F. Supp. 2d 794, 798 (M.D. Pa. 2000) (“The implementation of the death
sentence [under the FDPA] involves a process which includes more than just the
method of execution utilized.”).
implemented “‘in the manner prescribed by the law of the State in which the
sentence is imposed.’” Id. The FDPA discussion in Higgs v. United States, 711 F.
Supp. 2d 479, 555 (D. Md. 2010), is dicta, since the plaintiff’s claim was “not yet
ripe for review.” In any case, the court’s reasoning is unpersuasive. The court
stated that the FDPA “speaks to the ‘manner’ of implementing the sentence
without reference to ‘procedure,’” id. at 556, but failed to recognize that “manner”
is defined to include “procedure.” See supra p.11. And in United States v. Fell,
2018 WL 7270622, at *4 (D. Vt. Aug. 7, 2018), the court upheld the creation of a
federal death chamber in Indiana because Indiana law provides for lethal injection.
But the court did not sanction the use of that chamber to execute prisoners in a
manner different than that prescribed by the relevant States. Judge Chutkan’s
decision below recognized that the relevant discussion in each of these cases is
dicta, unpersuasive, or not addressed to the question at hand, A8-9 n.3, and
Defendants have no response.
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Defendants’ own use of the term “implementation” supports the district
court’s view. For example, the Final Rule contains a subpart entitled
“Implementation of Death Sentences in Federal Cases.” 28 C.F.R. pt. 26 subpt. A.
Beyond simply naming a method of execution, this “implementation” subpart
includes sections with specific instructions about scheduling the date, time, place,
and manner of executions. Furthermore, Defendants’ motion acknowledges that
BOP has a “protocol manual … for implementing executions,” which “establishes
detailed pre-execution, execution, and post-execution checklists.” Mot. 5
(emphasis added). Congress, in enacting the FDPA, mandated “implementation of
the sentence in the manner prescribed by the law of the State,” not implementation
in the manner of the BOP protocol.
3. Interpreting Section 3596 to require the federal government to adhere
to state execution procedures is consistent with historical practice. The standard
practice until the 1990s was for the U.S. Marshal to transport federal death-
sentenced inmates to State prisons where they were executed in accordance with
that State’s laws. For example, in 1953, Julius and Ethel Rosenberg were executed
at Sing-Sing Prison in New York. Rosenberg v. Carroll, 99 F. Supp. 630
(S.D.N.Y. 1951). Ten years later, Victor Feguer was transported to Iowa where he
was hanged in the State Penitentiary. See The Last Man Uncle Sam Executed, The
Smoking Gun (May 7, 2001).
- 15 -
The government chides Judge Chutkan for supposedly assuming that all
federal executions occurred in State facilities before the FDPA. See Mot. 16 n.7.
The government is wrong: The BOP website cited in Defendants’ motion reports a
total of twenty-three non-military executions between 1937 and the enactment of
the FDPA. Seventeen occurred at State facilities. Of the remaining six, three
executions were conducted at a federal facility in Alaska before Alaska became a
State, and the remaining three occurred in Michigan and Kansas at a time when
those States were not conducting executions despite having the death penalty on
the books. The government’s own source thus confirms that Judge Chutkan
correctly recognized that the prevailing practice during this time period was to
conduct executions at state facilities.
Even now, the federal government has the authority to “use appropriate State
or local facilities” and “the services of an appropriate State or local official” or
employee to carry out executions—which makes it easier for the U.S. Marshal to
implement the death sentence using all of the State’s procedures. 18 U.S.C.
§3597(a). Defendants err in arguing that Section 3597 supports their interpretation
of Section 3596. Mot. 16-17. Section 3597 at most creates a limited exception to
Section 3596, permitting (but not requiring) the federal government to use its own
facilities and personnel. Otherwise, Section 3596 requires that the federal
government follow the procedures used by the States.
- 16 -
When Congress enacted the FDPA, DOJ understood that it significantly
constrained the federal government’s authority in implementing the death penalty.
See H.R. Rep. No. 104-23, at 22 (“The proposed procedures contemplate a return
to an earlier system in which the Federal Government does not directly carry out
executions[.]”). Indeed, it was that understanding that led DOJ to unsuccessfully
lobby Congress to amend the FDPA in 2006, noting that the former “practice and
expectation” of housing federal death-sentenced inmates in state facilities and
executing them under state procedures was still “reflect[ed]” in the FDPA. Death
Penalty Reform Act of 2006: Hearing Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. 16 (2006)
(statement of Margaret Griffey, Chief, Capital Case Unit, DOJ). Accordingly,
there is nothing unusual about the FDPA requiring adherence to state procedures; it
is consistent with longstanding practice. And if Defendants want to change that
practice, Congress must amend the law.
4. Defendants err in suggesting that the district court’s conclusion would
permit States to block implementation of a federal death sentence. Mot. 17. There
is no support for the fanciful proposition that a State with a death-penalty protocol
would ever attempt to thwart the implementation of a federal death sentence
pursuant to the State’s own protocol. Id. More importantly, however, even if a
State could hypothetically interfere with the implementation of federal death
- 17 -
sentences, that does not give Defendants license to rewrite the law—only Congress
can do that.
C. The 2019 Protocol Differs In Significant Respects From State

Procedures
Defendants fabricate the supposed requirement that there be “a material
conflict between the federal protocol and the particular laws of the four relevant
states.” Mot. 17. As explained (see supra pp.9-15), the 2019 Protocol is ultra
vires because Congress acted to prohibit Defendants from using a federal
execution protocol. Accordingly, it must be “set aside.” 5 U.S.C. §706(2).
In any event, the 2019 Protocol is different from the relevant state manners
of execution. The district court cited the example of state safeguards on how IVs
are inserted—safeguards intended to minimize the risk of maladministration that
exacerbates and prolongs a prisoner’s suffering. A11. But that is not the only
distinction. For example, Indiana (the State whose law is applicable to Honken)
and Arkansas (where Lee’s sentence was imposed) use a three-drug sequence, not
a one-drug pentobarbital protocol. Dist. Ct. Dkt. #29-6 at 15.4 Indiana, Texas
(where Bourgeois’s sentence was imposed), and Missouri (Purkey’s)—unlike the
federal government—require a physician to be involved in executions. AR70, 91;
Dist. Ct. Dkt. #29-6 at 9-12. And Missouri offers the prisoner a sedative prior to
4
See also Arkansas Protocol (rev. Aug. 6, 2015), https://files.deathpenaltyinfo
.org/legacy/files/pdf/ExecutionProtocols/ArkansasProtocol08.06.2015.pdf.
- 18 -
the execution, see Dist. Ct. Dkt. #47 at 7; the federal protocol contains no such
provision. Thus, adherence to the 2019 Protocol would result in Plaintiffs being
executed in a manner other than that used by the States where they were sentenced.
II. DEFENDANTS WILL NOT BE IRREPARABLY HARMED BY THE

PRELIMINARY INJUNCTION
Defendants have not shown that they would be harmed—much less
irreparably so—absent a stay.
Defendants contend the government has a “significant interest in timely
implementing” Plaintiffs’ death sentences. Mot. 19. But Defendants had taken no
steps to schedule the executions until this summer, when they endeavored to do so
at an unreasonably fast pace. As the district court recognized, “the eight years that
[the government] waited to establish a new protocol undermines its arguments
regarding the urgency and weight of [its] interest.” A14.
Nor do the supposed “practical problems that would … result from a delay,”
Mot. 19, justify a stay. Defendants could mitigate any financial harm by stopping
their preparations now. And even assuming that the government has spent money
and time preparing, those expenditures are the result of the government’s choice to
schedule five executions within just a few months of announcing the 2019
Protocol, knowing that legal challenges to earlier protocols were already pending
and would be revived when Defendants issued the new protocol. Indeed, in both
Roane and Bourgeois, the district court’s stay orders expressly contemplated that
- 19 -
litigation would resume after a new protocol was announced. Roane v. Barr, No.
05-cv-2337 (D.D.C. July 29, 2011); Bourgeois v. United States Dep’t of Justice,
No. 12-cv-782, Dkt. #15 (D.D.C. Jan. 23, 2013). Defendants willfully created this
emergency by announcing execution dates and a new method of execution on the
same morning; they cannot now say that the administrative burden of delaying the
event constitutes irreparable harm.
III. PLAINTIFFS WILL BE IRREPARABLY HARMED BY A STAY OF THE

INJUNCTION
Plaintiffs, in contrast, would suffer irreparable harm of the highest order if
the preliminary injunction is stayed: Plaintiffs would be executed “under a
procedure that may well be unlawful” without the opportunity to test its legality.
A13. As the district court found, “[t]his harm is manifestly irreparable.” Id. The
harm of being executed is inarguably “certain and great, actual and not theoretical,
and so imminent that there is a clear and present need for equitable relief to prevent
irreparable harm.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7-8
(D.C. Cir. 2016); see A13-14. Further, such harm is clearly “beyond remediation”
absent injunctive relief. League of Women Voters, 838 F.3d at 8. Nothing is so
irreparable as death.
It does not matter that Plaintiffs are under a valid sentence of death. See
Mot. 19-20. Plaintiffs would be irreparably harmed if their scheduled executions
proceed, regardless of whether the government would lawfully be permitted to
- 20 -
execute Plaintiffs in a different manner. See, e.g., California v. Azar, 911 F.3d
558, 580-581 (9th Cir. 2018) (irreparable harm present even though agency could
in the future reinstate same rule in conformity with the APA). And even if it were
relevant whether federal and state execution procedures differ, Plaintiffs have
shown that they do. See supra pp.18-19.
Finally, Defendants err in comparing this case to Winter v. Natural Defense
Council, Inc., 555 U.S. 7 (2008). See Mot. 20. Plaintiffs do not claim that
Defendants have merely skipped an intermediary procedural step before taking a
lawful action; rather, Plaintiffs claim that the threatened agency action itself—
execution pursuant to the 2019 Protocol—is itself unlawful. That is no mere
procedural violation.
IV. A STAY IS NOT IN THE PUBLIC INTEREST
Finally, “[t]he public interest is not served by executing individuals before
they have had the opportunity to avail themselves of legitimate procedures to
challenge the legality of their executions.” A14. Rather, the public interest lies in
ensuring that agencies act in accordance with law. See League of Women Voters,
838 F.3d at 12. These concerns are only heightened in the context of executions.
The public would be ill served if Plaintiffs were executed pursuant to a procedure
held to be unlawful by a court of competent jurisdiction without being given a full
opportunity to test its legality.
- 21 -
Defendants claim that a preliminary injunction is inappropriate given the
public’s interest in finality. Mot. 19. But a stay would not undermine the finality
of Plaintiffs’ convictions. Plaintiffs do not challenge their convictions or their
sentences of death in this litigation; both will be undisturbed if this Court affirms
the preliminary injunction. Furthermore, as explained above (supra pp.19-20) and
noted by the district court, the government’s suggestion that a stay would
undermine finality strains credulity when the government itself has for so long
declined to schedule an execution.
For similar reasons, Defendants also err in claiming that victims’ families
will be harmed absent a stay. Mot. 19. Defendants unilaterally scheduled the
executions before the legality of their execution procedures can be determined. It
is therefore the Defendants who have created the likelihood of a stay and any
resulting disappointment of victims. In any event, Defendants’ argument is belied
by the fact that the family of the victims in Lee’s case have told DOJ multiple
times that they oppose Lee’s execution—as have the trial judge and the prosecutor.
Far from being injured by a “delay,” they have requested clemency for Lee from
DOJ. See Robertson, She Doesn’t Want Her Daughter’s Killer To Be Put To
Death. Should the Government Listen?, N.Y. Times (Nov. 29, 2019).
The public interest lies in ensuring that Defendants comply with the laws
Congress enacted.
- 22 -
CONCLUSION
The motion for a stay pending appeal should be denied.
Respectfully submitted.
/s/ Alan E. Schoenfeld

SHAWN NOLAN ALAN E. SCHOENFELD
JOSEPH LUBY STEPHANIE SIMON
ALEX KURSMAN MARGUERITE COLSON
LYNNE KOLODINSKY WILMER CUTLER PICKERING
FEDERAL COMMUNITY DEFENDER OFFICE HALE AND DORR LLP
E.D. PA. 7 World Trade Center
601 Walnut Street, Suite 545 West 250 Greenwich Street
Philadelphia, PA 19106 New York, NY 10007
(215) 928-0520 (212) 230-8800
Counsel for Alfred Bourgeois JOSHUA M. KOPPEL
ARIN SMITH
JON JEFFRESS WILMER CUTLER PICKERING
KAISERDILLON PLLC HALE AND DORR LLP
1099 14th Street NW 1875 Pennsylvania Avenue NW
8th Floor West Washington, DC 20006
Washington, DC 20005 (202) 663-6000
(202) 640-2850 Counsel for Wesley Purkey
SHAWN NOLAN
TIMOTHY KANE CATHERINE E. STETSON
DEVON PORTER ELIZABETH M. HAGERTY
FEDERAL COMMUNITY DEFENDER OFFICE HOGAN LOVELLS US LLP
E.D. PA. 555 Thirteenth Street, NW
601 Walnut Street, Suite 545 West Washington, DC 20004
Philadelphia, PA 19106 (202) 637-5600
(215) 928-0520 PIETER VAN TOL
Counsel for Dustin Lee Honken HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
(212) 918-3000
Counsel for Daniel Lewis Lee
November 27, 2019
- 23 -
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g)(1), the undersigned hereby certifies that
this brief complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A).
1. Exclusive of the exempted portions of the brief, as provided in Fed. R.
App. P. 32(f), the brief contains 5,192 words.
2. The brief has been prepared in proportionally spaced typeface using
Microsoft Word 365 in 14-point Times New Roman font. As permitted by Fed. R.
App. P. 32(g)(1), the undersigned has relied upon the word count feature of this
word processing system in preparing this certificate.

ALAN E. SCHOENFELD
November 27, 2019

CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of November, 2019, I electronically
filed the foregoing with the Clerk of the Court for the United States Court of
Appeals for the District of Columbia Circuit using the appellate CM/ECF system.
With the exceptions noted below, counsel for parties to the case are registered
CM/ECF users and will be served by the appellate CM/ECF system.
I hereby further certify that on this 27th day of November, 2019, I served
copies of the attached via FedEx Overnight Mail on the following parties, who are
not receiving ECF Notifications through CM/ECF.
William Edward Lawler, III

[LD NTC Trial Counsel]
Vinson & Elkins LLP
Firm: 202-639-6500
2200 Pennsylvania Avenue, NW
Suite 500W
Washington, DC 20037-1701
Joshua Christopher Toll

[LD NTC Trial Counsel]
King & Spalding LLP
Firm: 202-737-0500
1700 Pennsylvania Avenue, NW
Suite 200
Washington, DC 20006-4706

ALAN E. SCHOENFELD

DC Cir - Fed Exec - Opp To DOJ Stay Motion

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USCA Case #19-5322 Document #1818021

ORAL ARGUMENT NOT YET Filed: 11/27/2019

UNITED STATES COURT OF APPEALS

IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES

JAMES H. ROANE, et al.,

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,

On Appeal from the United States District Court

JOSHUA M. KOPPEL ALAN E. SCHOENFELD

Counsel for Wesley Purkey

November 27, 2019

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

SHAWN NOLAN CATHERINE E. STETSON

Counsel for Dustin Lee Honken

A. Statutory And Regulatory Background ................................................. 2

B. The Lethal-Injection Protocols .............................................................. 6

C. Factual And Procedural History ............................................................ 6

I. DEFENDANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS ........................ 9

A. BOP’s Issuance Of The Protocol Was Ultra Vires ............................... 9

B. The 2019 Protocol Does Not “Implement” A Death

C. The 2019 Protocol Differs In Significant Respects From

II. DEFENDANTS WILL NOT BE IRREPARABLY HARMED BY THE

III. PLAINTIFFS WILL BE IRREPARABLY HARMED BY A STAY OF THE

IV. A STAY IS NOT IN THE PUBLIC INTEREST ....................................................... 21

Andres v. United States, 333 U.S. 740 (1948) ........................................................... 3

California v. Azar, 911 F.3d 558 (9th Cir. 2018) .................................................... 21

League of Women Voters of United States v. Newby, 838 F.3d 1

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................ 9

Rosenberg v. Carroll, 99 F. Supp. 630 (S.D.N.Y. 1951) ........................................ 15

Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ............................................... 8

United States v. Bourgeois, 423 F.3d 501 (5th Cir. 2005).................................13, 14

Winter v. Natural Defense Council, Inc., 555 U.S. 7 (2008) ................................... 21

Bourgeois v. United States Department of Justice, No. 12-cv-782

Roane v. Barr, No. 05-cv-2337 (D.D.C.) ................................................................ 20

STATUTES AND REGULATIONS

5 U.S.C. §706 .......................................................................................................9, 18

28 U.S.C. §566 ......................................................................................................... 10

Pub. L. No. 98-473, 98 Stat. 1837 (1984) .................................................................. 3

Pub. L. No. 103-322, 108 Stat. 1796 (1994) .............................................................. 3

1 Stat. 112 (1790) ....................................................................................................... 2

28 C.F.R. part 26 ..................................................................................................4, 15

58 Fed. Reg. 4898 (Jan. 19, 1993) ............................................................................. 3

H.R. Rep. No. 75-164 (1937) .........................................................................2, 12, 13

H.R. Rep. No. 101-170 (1989) ................................................................................... 3

H.R. Rep. No. 102-405 (1991) ................................................................................... 3

H.R. Rep. No. 104-23 (1995) ...........................................................................4, 5, 17

Death Penalty Reform Act of 2006: Hearing Before the Subcommittee

Hearing on H.R. 2359 Before the Subcommittee on Crime of the

Matters Relating to the Federal Bureau of Prisons: Hearing Before

H.R. 851, 110th Cong. (2007).................................................................................... 6

H.R. 1087, 105th Cong. (1997).................................................................................. 6

H.R. 2359, 104th Cong. (1995).................................................................................. 5

Arkansas Protocol, available at https://files.deathpenaltyinfo.org/

Memorandum from Deborah Westbrook to Director Gonzalez (Sept.

Merriam Webster’s Collegiate Dictionary (10th ed. 1993)..................................... 11

Robertson, Campbell, She Doesn’t Want Her Daughter’s Killer To Be

Webster’s Collegiate Dictionary (5th ed. 1936) ...................................................... 11

This case involves a challenge to the legality of the federal government’s

same time—and despite the pending litigation—Defendants scheduled the

executions of five individuals to take place a few months later.

The district court preliminarily enjoined those executions, finding that

Plaintiffs—who include four of the five inmates scheduled for execution—are

of weeks—would suffer irreparable harm absent an injunction, and the

government—having waited eight years to issue the protocol in question—would

Defendants now seek to side-step judicial review by requesting a stay or