In re: FBOP Execution Protocol Cases

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 16, 2020 Decided November 18, 2020 No. 20-5329 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 Appeal from the United States District Court for the District of Columbia (No. 1:19-mc-00145) Alexander C. Drylewski argued the cause for appellants. With him on the briefs were Jonathan L. Marcus, Shawn Nolan, Jonathan C. Aminoff, Paul F. Enzinna, Ginger D. Anders, Jonathan S. Meltzer, Brendan Gants, Amy Lentz, Matthew Lawry, 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 2 General, Sopan Joshi, Senior Counsel to the Assistant Attorney General, and Amanda L. Mundell, Attorney. Before: MILLETT , PILLARD and RAO, Circuit Judges. Opinion for the Court filed PER CURIAM. 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 (FDPA) 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). 3 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, …

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