*1 III. Govern- recognized ised on order requested voluntary concession to ment’s foregoing, dismiss Pursuant to the we relief). appeal Goldstein’s of Mootness Order legal Notwithstanding foregoing and affirm the district court’s Fee Order. facts, underlying Gold- principles and AFFIRMED IN PART AND DIS- curiae’s with the amicus stein, support, IN MISSED PART. eligible for an he should be cоntends that costs award under attorneys’ fees and the Buckhannon decision
EAJA because mooting” apply
does not “tactical view, that, in occurred
circumstances in Buckhan Supreme Court
here.4 The
non, however,
ajar
not
door
did
leave the
BROWN, Jr.,
Willie
Plaintiff-
court to
a broad
engraft
an
for
inferior
Appellant,
ruling.
exception onto its
mooting
tactical
Rather,
concluded that tactical
the Court
Secretary,
BECK,
Theоdis
North Car
mooting
are
insufficient to
simply
concerns
Corrections;
Department
statutory
olina
requirement
overcome the
a
Warden,
Prison,
party applying
Polk,
for a fees and costs award
Marvin
Central
must first have been
some relief
Raleigh,
accorded
Carolina;
North
Unknown
in the district court. See 532 U.S.
at 608-
Exeсutioners,
Appellees.
Defendants -
do
1835.5 We need not and
S.Ct.
No. 06-9.
today whether there is an ex
not decide
the Buckhannon
Appeals,
to
rule where a
United
Court of
ception
States
agreed
provide
to
the relief
defendant has
Fourth Circuit.
response
requested in
to an affirmative
2006.
that the
by
presiding
indicatiоn
prevail.
to
In the circum
plaintiff
about
ORDER
presented,
liberty
we are
stances
PER CURIAM.
mooting exception
carve out a tactical
17, 2006,
By order
dated
the dis-
Buckhannon
principles,
and we
obliged to
the Fee
trict court
affirm
Order.6
denied
motion Willie
mooting”
recognized
possibility,
strong
4. "Tactical
could be
a dеfendant has a
incen-
agreed
occurring where a defendant has
agreément,
tive to
a settlement
where
enter
plaintiff’s requested
in order to
relief
attorney's
negotiate
it can
fees and costs.
prospect
avoid
of an
fees
adverse
608-09,
532 U.S.
753 order, Brown, for a in its final preliminary Jr. denied Brown’s motion preliminary injunction enjoining carrying enjoining the defendants from out his for Fri- execution on the ground his execution which is scheduled the State’s April protocol revised day, 2006. Brown has filed a ensures Brown will during be rendered unconscious appeal to from that the execu- notice this Court and order, pain. tion will not feel preliminary injunction a motion for Because this finding is supported by thе Appellees clear support. and a brief filed a evidence, weight of I the would reverse. opposing appellant’s pre- brief motion for liminary injunction. 7, 2006, order the district there determined were “sub-
The Court affirms the district court’s
questions
stantial
as to whether North
of a preliminary injunction
denial
and di-
protocol
Carolina’s execution
creates an
rects the clerk to issue the mandate forth-
(Order,
pain.”
undue risk of excessive
13-
with.
7, 2006.)
Specifically, the court
at
of Judge Luttig
Entered
the direction
found that
inadequate administration of
Judge
with the concurrence of
Traxler.
prior
anesthesia
to execution would undis-
Judge Miсhael wrote
attached
dissent.
putedly make
excruciating
Brown “suffer
as a
pain
result of the administration of
MICHAEL,
Judge, dissenting.
Circuit
potassium
bromide
chlo-
respectfully
majori-
I
dissent from the
(Id.
12.)
ride.”
The court further de-
ty’s affirmance of the district court’s denial
any
termined that
difficulties could be ad-
injunction to
temporarily
of a
if
dressed
Brown,
block the execution of Willie
Jr.
present
there are
and accessible to
is a North
death
in-
Carolina
row
throughout
per-
[Brown]
execution
by
mate scheduled to
executed
lethal
sonnel with
medical training
sufficient
21, 2006,
injection April
at 2:00 a.m. He
ensure
respects
all
[Brown]
that.
§
seeking
enjoin
filed a
1983 aсtion
prior
unconscious
to and at
time
(“the State”)
warden and others
from exe-
any pancuronium
administration
injection
him
cuting
lethal
under the
bromide or
chloride. Should
procedures
employ.
the State intended to
[Brown] exhibit effects
Specifically, Brown
contends
during
time
such
an inadequate protocol
will usе
for anes-
personnel
immediately provide ap-
shall
precursor
carrying
thesia as a
out
his
propriate medical care so as to insure
sentence,
death
and that as a result he
immediately
[Brown]
returned to an
unacceptable
unnecessary
faces an
unconscious state.
suffering excruciating pain during
risk of
14.)
(Id. at
.
Eighth
execution
violation
12, 2006,
Gregg Georgia,
responded
Amendment. See
428
On
the State
153, 173,
protocol
49
by proposing
U.S.
S.Ct.
L.Ed.2d
a revised
that uses a
(1976)
(BIS)
bispectral
monitor,
(recognizing,
context of
index
a device
executions,
that,
State,
Eighth
according
Amendment
can monitor
prohibits punishment “involv[ing]
un-
Brown’s level of consciousness
necessary pain”);
procedure.
objec-
wanton infliction of
execution
Over Brown’s
Kemmler,
436, 447,
tions,
In re
U.S.
S.Ct.
district court determined that
(1890)
.
(recognizing
American evidence, Advisory Intraoperative Practice substantial unrebutted Statе, Awareness and Brain Function Monitor- that casts on serious doubt the relia (2006) Anesthesiology ing, bility of the BIS monitor as sole means Aff.). (attached as Ex. 1 to Third Heath assessing consciousness. Likewise, study reliability on the recent addition, support there is no in the journal of BIS monitors in medical record for the district finding court’s “[ajnesthe-
Anesthesiology concludes that (or if regains Brown remains conscious exclusively rely providers sia should consciousness) during the medi- assessing reading depth when professionals cal able to bring Dagmar et anesthesia.” See J. Niedhart *4 injection about the of additional sodium al., Intrapatient the Reproducibility of until pentothal Brown fully is rendered Monitor, BISxp® Anesthesiology 104 protocol, unconscious. Under the revised (2006) (attached as Ex. to Third only displays if the BIS monitor a value Aff.) Heath proceed below 60 will the State to adminis- The State offers evidence to rebut scant (the pancuronium ter the bromide second re compelling proffer. Brown’s The State drug injection protocol in the lethal solely conclusory lies on the assertion of potassium paralysis) causes and the chlo- Dershwitz, expert, Dr. Mark in his its that (the third in drug injection ride the lethal “beyond of opinion, degree a reasonable protocol which causes heart to stop certainty, medical ... the utilization of the (Second beating). Aff. of Marvin Polk pro monitor part BIS as the execution ¶¶ 2-4.) In the BIS event the value read- ... prevent possibility tocol will above, ing at 60 or remains “additional being during awake the adminis [Brown] given sodium until pentothal be [will] pancuronium potassium tration of or chlo reading оn value monitor does fall BIS added) (Third (emphasis Dr. ride.” Aff. of ¶ 4.) Although below the protocol {Id. 60.” ¶ 11.) Mark Dershwitz Even if Dr. Der that provides BIS monitor will be “[t]he opined shwitz that Brown would not be that it located such can be observed and its (rather awake), simply conscious than registered [the values read licensed opinion questionable: thе basis for his is physician nurse and the licensed who ob- the State offers no evidence to counter Defibrillator],” serve the Cardiac Monitor persuasive argument Brown’s that the BIS provision it no for these medical makes in de monitor be used isolation to professionals actually anything in the do termine individual’s level of сonscious reading event fall does not below 60. Furthermore, opin ness. Dr. Dershwitz’s (Def.’s to 7 Response Notice point particularly suspect on ion 3.) Order, Thus, if Brown’s BIS read- just ago opined because two months he ing 60 or he exceeds otherwise conscious that, testing, another case absent further execution, Statе will during the take “it prudent would recommend inadequate steps to secure same during the use of the lethal it Brown’s unconsciousness would injections.” Rebuttal Report, Dershwitz original Johnson, protocol. have under the 1:05cv934, taken No. 4-5 Walker 2006) (attached (E.D.Va. Even if the revised could be con- B Feb. as Ex. profession- requiring strued the medical Objection to Brown’s to Def.’s Notice Order). als to take some action to ensure Brown’s Response to 7 In find unconsciousness, evidence undisputed will adequately BIS monitor that, verify Brown’s unconsciousness the record establishes based physical set-up, nei- sure that Brown is rendered unconscious chamber’s еxecution “throughout period during nor other member of which lethal ther the warden respond team can observe or drugs injected the execution into his bloodstream” is (See injection in the lethal a malfunction therefore Final clearly erroneous. (First process. Nancy. 2006.) Aff. of Bruton- Order, 2, Apr. ¶ 10.) Moreover, even if a medical
Maree Before the revised execution professional respond, could there is no evi- protocol, the district court concluded that support record to the district dence hardship-bal- finding professional would court’s ancing favored Brown: “the like- test possess necessary skills to ensurе lihood of harm to far irreparable Brown unconsciousness. Brown’s exceeds of harm to the likelihood Defen- is the problematic lack of evidence Also 2006.) (Order, 12, dants.” If that the BIS monitor will accu show fact, does, regain consciousness rately pancu measure consciousness after any point during his “therе is potassium ronium bromide chloride dispute no suffer excruciating [he] Dr. opines are administered. Heath pain as of the administration pan- result the administration bro curonium chloride” bromide *5 mide can lead an inaccurate indication he, having and that suffered a tortuous depth on a BIS monitor. He anesthetic death, meaningful retrospec- have no opinion study finding on a bases this 11-12.) (Id. tive The relief. district pro readouts far below value court conditionally denied Brown’s motion posed by indicating the State as an in preliminary injunction with the re- unconsciousness, can mate’s be observed quirement safeguards add State individuals fully consсious who have been ensure that Brown is in fact unconscious paralysis-inducing drugs administered sim In his execution. an effort to com- pancuronium ilar to bromide. M. Messner ply order, with district court’s al., et Bispectral The Index Declines Dur thereby shift the balance of hardships, the Fully Neuromuscular Block in Awake incorporated usе of the BIS monitor. Patients, Analgesia 97 Anesthesia & evidence, however, weight The clear (2003) (attached Ex. as 5 to Third Heath reveals the State’s use the BIS Aff.) addition, Dershwitz, Dr. adequately will not ensure that recently expert, hypothesized State’s has throughout will remain unconscious that a BIS monitor assess the level of hardships exеcution. The balance once chloride is weighted therefore remains Brown’s fa- administered. See Dershwitz Re Rebuttal vor. I Accordingly, would reverse the dis- Johnson, port, 1:05cv934, No. Walker trict court’s denial of Brown’s motion for a 2006) (attached (E.D.Va. 4-5 Feb. Ex. preliminary injunction and direct Objection B to Brown’s Def.’s Notice court tо enter the Order). Response to 7 In proceedings, conduct further deed, protocol the revised does not indi would allow to State to further revise its cate the BIS monitor whether will be used protocol. drug, after administration of the second bromide, nothing else in indicates that record Brown’s con sciousness will be monitored after
point in the execution. The district court’s
finding that the revised will en-