955 F.3d 106
D.C. Cir.2020Background
- The FDPA requires federal death sentences 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).
- DOJ/BOP adopted a detailed 2019 federal execution protocol and pentobarbital addendum after prior three-drug protocols became practically unavailable.
- Four federal death-row inmates sought preliminary injunctions arguing the 2019 protocol violates the FDPA (and other statutes/constitutional provisions) because it does not adopt the prescribing states’ execution procedures.
- The district court preliminarily enjoined four federal executions, holding the FDPA likely requires the federal government to follow state execution protocols’ subsidiary details (e.g., catheter insertion).
- The government appealed; the D.C. Circuit considered the FDPA question on the merits and also addressed whether the protocol was exempt from APA notice-and-comment requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of “manner” in §3596(a) — does it require following state procedural details or only the top-line method? | "Manner" includes state-prescribed procedures and subsidiary details (e.g., drug, dose, catheter techniques). | "Manner" = method; FDPA requires only following state choice among methods (e.g., lethal injection vs. hanging). | Court vacated injunction; two judges (Katsas, Rao) rejected the district court. Katsas: "manner" means method only. Rao: "manner" means what is prescribed by state law — statutes/regulations, not informal protocols; protocol can yield to contrary state law. Overall result: plaintiffs’ primary FDPA claim fails. |
| Whether the 2019 protocol unlawfully transferred execution-supervision authority from U.S. Marshals Service to BOP | Protocol improperly delegates Marshals’ statutory supervisory role to BOP. | Protocol retains USMS supervision and is consistent with DOJ/AG authority to reassign duties within DOJ. | Two concurrences: Katsas rejects plaintiffs’ transfer claim on the merits; Rao deems the claim forfeited. Panel did not adopt the transfer argument as a basis to affirm. |
| APA notice-and-comment — was the 2019 protocol a rule requiring notice-and-comment? | Protocol is a substantive rule and required notice-and-comment. | Protocol is an internal procedural/policy statement exempt from notice-and-comment. | Katsas and Rao conclude the protocol is a procedural/internal policy rule exempt from notice-and-comment; judgment for government on APA claim. |
| Equitable factors for preliminary injunction (irreparable harm, balance of equities, public interest) | Execution under an unlawful protocol causes irreparable constitutional/statutory injury; injunction appropriate. | Delay harms government and victims; federal interest in timely enforcement; equities favor vacating injunction. | Katsas would also vacate injunction on equitable grounds (government/public interest weighs strongly in favor of execution). The panel vacated the district court’s injunction. |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (Sup. Ct. 2008) (upholding a three‑drug lethal‑injection protocol against Eighth Amendment challenge)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (Sup. Ct. 2008) (preliminary‑injunction standard requires likelihood of success, irreparable harm, balance of equities, public interest)
- Munaf v. Geren, 553 U.S. 674 (Sup. Ct. 2008) (courts may resolve merits where appropriate on interlocutory review)
- Nelson v. Campbell, 541 U.S. 637 (Sup. Ct. 2004) (permitting certain Eighth Amendment challenges to execution procedures)
- Hill v. McDonough, 547 U.S. 573 (Sup. Ct. 2006) (habeas and §1983 overlap for method-of-execution challenges)
- In re Kemmler, 136 U.S. 436 (Sup. Ct. 1890) (discussion of electrocution and the role of statutory prescription of execution manner)