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USCA Case #19-5322 Document #1817384 Filed: 11/25/2019 Page 1 of 48

[ORAL ARGUMENT NOT YET SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN RE: IN THE MATTER OF THE FEDERAL


BUREAU OF PRISONS’ EXECUTION PROTOCOL
CASES
-----------------------------
JAMES H. ROANE, JR., et al.,
Appellees No. 19-5322

v.

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


Appellants

EMERGENCY MOTION TO STAY OR VACATE PRELIMINARY


INJUNCTION BARRING FOUR FEDERAL EXECUTIONS

JOSEPH H. HUNT
Assistant Attorney General
JESSIE K. LIU
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
PAUL R. PERKINS
Special Counsel
MARK B. STERN
MELISSA N. PATTERSON
Attorneys, Appellate Staff
Civil Division, Room 7230
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-1201
melissa.patterson@usdoj.gov
USCA Case #19-5322 Document #1817384 Filed: 11/25/2019 Page 2 of 48

INTRODUCTION AND SUMMARY OF ARGUMENT

The Department of Justice respectfully asks this Court to stay or vacate the

preliminary injunction entered on November 20, 2019, which bars the federal

government from implementing four capital sentences. The district court denied a

motion for a stay on November 22, 2019.

In July 2019, the Department of Justice announced an update to its federal

lethal-injection protocol along with execution dates for the four plaintiffs here. The

first execution, scheduled for December 9, 2019, carries out the sentence imposed on

Daniel Lewis Lee, a white supremacist convicted of murdering an Arkansas family,

including an eight-year-old girl. See infra p.6. The other plaintiffs were also convicted

of murdering children and other brutal crimes. See infra p.6-7. There is no dispute in

this case regarding the lawfulness of the sentences imposed on these plaintiffs, who

have all exhausted post-conviction review.

Nor did the district court suggest that the federal protocol raises any

unconstitutional risk of unnecessary pain, and no such suggestion would be plausible.

Courts have repeatedly approved the protocol’s method—an injection of

pentobarbital—as consistent with the Eighth Amendment. See, e.g., Bucklew v. Precythe,

139 S. Ct. 1112 (2019) (rejecting challenge to single-drug protocol using

pentobarbital); see also Glossip v. Gross, 135 S. Ct. 2726, 2732–33 (2015) (“[C]ourts

across the country have held that the use of pentobarbital in executions does not

violate the Eighth Amendment.”).


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The district court instead enjoined these four plaintiffs’ executions solely on

the theory that the federal execution protocol is inconsistent with the Federal Death

Penalty Act of 1994 (FDPA), which requires that federal capital sentences be

implemented “in the manner prescribed by the law of the State in which the sentence

is imposed.” 18 U.S.C. § 3596(a). Although the district court acknowledged that

conducting executions by the manner of lethal injection “is either permitted or

required in the Plaintiffs’ states of conviction,” A10-11 & n.4, it nevertheless reasoned

that “the 2019 Protocol exceeds statutory authority by establishing a single procedure

for all federal executions rather than using the FDPA’s state-prescribed procedure,”

A7.1

The court’s reasoning is doubly flawed. Most fundamentally, the FDPA’s

incorporation of the state-law “manner” of executions covers the state’s method of

execution—i.e., by lethal injection, hanging, etc.—but not the state’s subsidiary

procedures for carrying out that method. This interpretation is clear from the text,

history, and precedent of the FDPA and its predecessor statutes. By contrast, the

district court’s conclusion that the federal government must follow virtually every

detail of state procedure has no foundation and could effectively block federal death

sentences; requiring the federal government to mimic state execution procedures

1
Addendum references are denominated “A__.”
2
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would, among other things, subject it to a state’s effective veto and even bar it from

improving upon state procedures.

Moreover, even accepting the district court’s premise that some state

procedures subsidiary to the method of execution are relevant under the FDPA, there

still would be no basis to enjoin these four executions. The court identified no

material conflict between the federal protocol and the manner of execution

“prescribed by the law” of the relevant states. The only even purported

“inconsistenc[y]” with “state procedures” the court invoked was states’ “specific and

varied safeguards on how the intravenous catheter is to be inserted,” which the court

contrasted with the federal protocol’s instruction “that the method for insertion of

the IV is to be selected based on the training, experience, or recommendation of

execution personnel.” A11. There is, however, no reason to believe that BOP’s

catheter-insertion procedure will violate any pertinent state statute, and the court

made no attempt to show otherwise.

In short, there is no ground for delaying the lawful punishment imposed on

these plaintiffs who have received all our criminal justice system’s protections. “Both

the [government] and the victims of crime have an important interest in the timely

enforcement of a [death] sentence,” Bucklew, 139 S. Ct. at 1133, and even accepting

the district court’s erroneous holding, plaintiffs have at most a purely procedural

injury. The balance of equities thus militates strongly in favor of setting aside the

order below, as the Supreme Court has summarily done when lower courts
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improperly halted executions. See Dunn v. McNabb, 138 S. Ct. 369 (2017); Brewer v.

Landrigan, 562 U.S. 996 (2010); Sizer v. Oken, 542 U.S. 916 (2004) (mem.). As the first

of the executions is scheduled for December 9 and requires extensive preparations, see

A17-19, we respectfully request that the Court rule on this motion by December 2,

when the Solicitor General intends to seek relief in the Supreme Court absent relief

here.

STATEMENT

A. Background

1. “The Constitution allows capital punishment.” Bucklew, 139 S. Ct. at 1122.

Beginning with the Crimes Act of 1790, Congress has addressed “the manner of

inflicting the punishment of death,” which was then “hanging the person convicted by

the neck until dead.” Act of Apr. 30, 1790, ch.9, § 33, 1 Stat. 112, 119. In 1937,

Congress enacted legislation requiring that “[t]he manner of inflicting the punishment

of death shall be the manner prescribed by the laws of the State within which the

sentence is imposed.” Act of June 19, 1937, ch. 367, 50 Stat. 304, 304. Congress

repealed that Act in 1984. Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987.

In 1993, the Department of Justice promulgated a regulation governing the

implementation of “death sentences in federal civilian cases.” Implementation of

Death Sentences in Federal Cases, 58 Fed. Reg. 4898, 4898 (Jan. 19, 1993). The

regulation specifies that “a sentence of death shall be executed … [b]y a United States

Marshal” at a “federal penal or correctional institution … [b]y intravenous injection of


4
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a lethal substance or substances in a quantity sufficient to cause death … to be

determined by the Director of the Federal Bureau of Prisons.” 28 C.F.R. § 26.3(a)(3)–

(4).

A year after the Department promulgated the regulation, Congress enacted the

Federal Death Penalty Act of 1994, Pub. L. No. 103-322, §§ 60002–60026, 108 Stat.

1796, 1959–82 (codified at 18 U.S.C. §§ 3591–3598). The FDPA requires that the

“United States marshal … shall supervise implementation of [a death] sentence in the

manner prescribed by the law of the State in which the sentence is imposed.” 18

U.S.C. § 3596(a). If that state does not permit capital punishment, then the sentencing

court “shall designate another State, the law of which does provide for the

implementation of a sentence of death, and the sentence shall be implemented in the

latter State in the manner prescribed by such law.” Id.

2. The Federal Bureau of Prisons (BOP) has long maintained an execution

protocol manual (the Manual) for implementing executions. AR876–928 (2004

Manual); AR1016–67 (2019 Manual). The Manual establishes detailed pre-execution,

execution, and post-execution checklists. AR1016–67. The Manual contemplates that

federal death sentences will be implemented by lethal injection, the primary manner of

execution authorized by all states with death penalties. AR870. An addendum to the

Manual previously called for a three-drug sequence including sodium pentothal.

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AR929.2 But when that drug’s sole American manufacturer exited the market in

March 2011, BOP began exploring other options. AR870, 929. Based on its study of

state practices, judicial decisions, medical opinions, and drug availability, BOP

ultimately concluded that a single dose of pentobarbital (a barbiturate) would be the

“most suitable” lethal agent. AR871.

Accordingly, on July 25, 2019, BOP adopted a revised addendum setting out a

single-dose pentobarbital protocol. AR869, 874. BOP explained that: the “one-drug

protocol … reduces the risk of administration mishaps”; the “single-drug

pentobarbital method” had been used “extensive[ly]” by various states; and unlike

other lethal-injection methods used by some states, “none of those executions” for

which complications had been reported “appear to have resulted from the use of

single-drug pentobarbital.” AR871.

B. Facts and District Court Proceedings

1. Plaintiffs are federal inmates sentenced to death.3 Daniel Lewis Lee was

convicted of murdering all three members of an Arkansas family, including an eight-

year old girl. United States v. Lee, 374 F.3d 637, 641–42 (8th Cir. 2004). Wesley Ira

Purkey was found guilty in Missouri of kidnapping, raping, and murdering a sixteen-

Three federal executions occurred since promulgation of the regulation and


2

FDPA, all using the three-drug protocol. AR929.

Lee’s execution is scheduled for December 9; Purkey’s for December 13,


3

2019; Bourgeois’s for January 13, 2020; and Honken’s for January 15, 2020. A1.
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year-old. United States v. Purkey, 428 F.3d 738, 744–45 (8th Cir. 2005). Alfred

Bourgeois was convicted in Texas of physically assaulting and murdering his two-year-

old daughter. United States v. Bourgeois, No. C-02-CR-216, 2011 WL 1930684, at *7, *12

(S.D. Tex. May 19, 2011). And Dustin Lee Honken was found guilty in Iowa of

murdering two federal witnesses, along with the girlfriend of one witness and her six-

year-old and ten-year-old daughters. United States v. Honken, 541 F.3d 1146, 1148–49

(8th Cir. 2008).4 Each of these convictions—all at least fifteen years old—has been

upheld on direct appeal and in post-conviction proceedings.5

2. In this consolidated case, plaintiffs separately moved for preliminary

injunctions prohibiting use of the federal protocol in their executions. On November

20, 2019, the district court granted those motions. A1-16. As detailed further below,

the district court concluded that plaintiffs had demonstrated a likelihood of success

on the merits based solely on a perceived conflict between the FDPA and the

establishment of a federal lethal-injection protocol. A7-13. And consistent with the

Iowa law does not authorize capital punishment; the sentencing court ordered
4

Honken’s sentence implemented in the manner prescribed by Indiana law. See A11
n.4.
5
See, e.g., United States v. Lee, No. 4:97-CR-00243-(2), 2008 WL 4079315, at *1
(E.D. Ark. Aug. 28, 2008), aff’d, 715 F.3d 215 (8th Cir. 2013), reh’g denied, 811 F.3d 272
(8th Cir. 2015), cert. denied, 135 S. Ct. 72 (2014); Purkey v. United States, 729 F.3d 860
(8th Cir. 2013), reh’g denied, 729 F.3d 860 (8th Cir. 2013), cert. denied, 135 S. Ct. 355
(2014); United States v. Bourgeois, No. C-02-CR-216, 2011 WL 1930684, at *7, *12 (S.D.
Tex. May 19, 2011); Honken v. United States, 42 F. Supp. 3d 937 (N.D. Iowa 2013)
(vacating non-capital convictions under 28 U.S.C. § 2255, but otherwise denying
relief), aff’d, No. 14-1329 (8th Cir. May 2, 2014), cert. denied, 136 S. Ct. 29 (2015).
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limited scope of its merits ruling, the court found irreparable injury and concluded

that the balance of equities warranted a preliminary injunction based solely on the

alleged procedural inconsistency between the protocol and the FDPA. A13-15.

ARGUMENT

The district court’s ruling identifies no plausible ground for enjoining the

executions of four federal inmates who were each lawfully convicted of murdering

children, and who have received the full panoply of post-conviction review. For two

reasons, this Court should stay or vacate the preliminary injunction. See Nken v. Holder,

556 U.S. 418, 425-26 (2009) (discussing stay factors); Dunn v. McNabb, 138 S. Ct. 369

(2017) (summarily vacating district court injunction unsupported by a likelihood of

success on the merits).

First, plaintiffs have no “likelihood of success on the merits,” an “often …

dispositive” issue regarding preliminary injunctions. Greater New Orleans Fair Hous.

Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011).

Since 1790, statutory references to the “manner” of execution have referred to the

mechanism by which the death penalty is implemented—e.g., hanging—not to the

granular details of the execution protocol regarding, for example, the type of gun used

by a firing squad or “how the intravenous catheter is to be inserted” in a lethal

injection. A11. The district court’s contrary reading is irreconcilable with the statutory

text and history. Application of the protocol to these four plaintiffs does not conflict

with the FDPA: all four states provide for execution by manner of lethal injection.
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And even if the FDPA did incorporate some subsidiary state procedures, the district

court identified no material conflict in federal and state procedures for implementing

lethal injections.

Second, the balance of equities strongly supports setting aside the injunction.

The government and the public—including the victims’ families and the communities

affected by terrible crimes—have a significant interest in the timely implementation of

lawfully imposed capital sentences, which delay will irreparably injure. And even

assuming arguendo that the protocol conflicts with the FDPA’s incorporation of the

state-law manner of execution, plaintiffs have identified no substantive harm from any

such conflict. Their injury is at most purely procedural, which neither merited

injunctive relief below nor warrants denying relief here.

I. Application Of The Federal Execution Protocol To These Four


Plaintiffs Is Fully Consistent With The Federal Death Penalty Act.

BOP developed the federal protocol after carefully examining state procedures,

relevant judicial decisions, and medical opinions. At the time of BOP’s decision, five

states had adopted a one-drug pentobarbital protocol, and, at minimum,

approximately 100 executions since 2012 and over half of all executions since 2018

used a single dose of pentobarbital. AR871. As BOP noted, many courts, including

the Supreme Court, have rejected Eighth Amendment challenges to a one-drug

pentobarbital protocol. See AR871 & n.13, 932; see, e.g., Bucklew v. Precythe, 139 S. Ct.

1112 (2019). BOP consulted with medical professionals, AR525–26, 872, and

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reviewed expert testimony, AR401–524, 527–761, 931, including one expert’s view

that “[c]ase histories” regarding a one-drug pentobarbital protocol “detail highly

consistent results and extremely rapid and peaceful passing,” AR525. Tellingly, the

district court did not accept plaintiffs’ Eighth Amendment claim that the protocol

poses a risk of unnecessary pain.

Instead, the district court enjoined implementation of the protocol solely on

the ground that it conflicts with the FPDA, which requires that capital sentences be

“implement[ed] … in the manner prescribed by the law of the State in which the

sentence is imposed.” 18 U.S.C. § 3596(a). And it did so despite acknowledging that

carrying out executions by the manner of “lethal injection … is either permitted or

required in the Plaintiffs’ states of conviction.” A1-11 & n.4. The court nevertheless

declared that “the 2019 Protocol exceeds statutory authority by establishing a single

procedure for all federal executions rather than using the FDPA’s state-prescribed

procedure.” A7. And the court further objected that there are “inconsistencies

between the FDPA’s required state procedures and the 2019 Protocol,” invoking

states’ “specific and varied safeguards on how the intravenous catheter is to be

inserted.” A11. The court’s reasoning is fundamentally flawed for two reasons.

a. The district court gravely misinterpreted the FDPA in concluding that it

requires the federal government to adhere to subsidiary state procedures on matters

such as IV-insertion techniques. That interpretation has no basis in law or logic.

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Under both federal and state law, the “manner” of execution has long been

understood to refer to the general method of effectuating death—such as lethal

injection or hanging—not the particular procedures used in carrying out that method.

In Section 33 of the Crimes Act of 1790, the First Congress provided that “the manner

of inflicting the punishment of death, shall be by hanging the person convicted by the

neck until dead.” 1 Stat. at 112 (emphasis added). Over time, states developed other

methods regarded as more humane, which were considered changes in the “manner”

of execution. In 1878, for example, the Supreme Court upheld a Utah execution

under a territory statute providing that the convicted “shall suffer death by being shot,

hanged or beheaded, as the court may direct; or the person condemned shall have his

option as to the manner of his execution.” People v. Wilkinson, 2 Utah 158, 160 (emphasis

added), aff’d, Wilkerson v. Utah, 99 U.S. 130 (1878). The Court, like the territory law,

used the term “manner” to refer to the method for causing death, not the procedural

details. E.g., 99 U.S. at 133–34 (noting that under federal law, capital offenses are

“punished in the same manner … —that is, by hanging”).

Congress carried forward that same understanding in 1937, providing that

“[t]he manner of inflicting the punishment of death shall be the manner prescribed by

the laws of the State within which the sentence is imposed.” 50 Stat. at 304. The

district court here declared that “the manner” of execution is necessarily distinct from

and broader than “the method” of execution, A8-9, but the 1937 Act starkly

demonstrates that “method” and “manner” have been understood as interchangeable


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in this context. The Supreme Court interpreted this Act to provide the “method of

inflicting the death penalty”—namely “death by hanging”—in Hawaii, then a territory.

Andres v. United States, 333 U.S. 740, 742, 745 (1948). And the Report of the House

Committee on the Judiciary, entitled “Method of Imposition of Death Sentence,”

observed that “[m]any of the States” had adopted “more humane methods of

execution, such as electrocution, or gas,” and recommended that the federal

government abandon “[t]he method of imposition of the death sentence imposed by

Federal courts”—then “by hanging”—with “the manner of execution … prescribed

by the laws of the State.” H.R. Rep. No. 75-164, at 1 (1937). The Attorney General’s

letter proposing the change, reproduced in the Report, likewise uses the terms

“manner” and “method” synonymously. Id. at 2. There is no indication in the

statutory or legislative history that Congress intended its “manner” requirement to

sweep beyond this well-established understanding.

When Congress enacted the FDPA in 1994 with the same operative language, it

gave no indication it intended to depart from this understanding. See Sekhar v. United

States, 570 U.S. 729, 733 (2013) (“[I]f a word is obviously transplanted from another

legal source, whether the common law or other legislation, it brings the old soil with

it.”). To the contrary, some of the very “laws of the State” the FDPA references

reflect the same understanding of this term. For example, Missouri in 1988 enacted a

statute specifying that “[t]he manner of inflicting the punishment of death shall be by

the administration of lethal gas or … lethal injection.” 1988 Mo. Laws 985
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(establishing Mo. Ann. Stat. § 546.720) (emphasis added); see also 1992 Cal. Legis. Serv.

ch. 558 (West) (“Notwithstanding” a provision permitting “[p]ersons sentenced to

death … to elect to have the punishment imposed by lethal gas or lethal injection,” “if

either manner of execution … is held invalid, the punishment of death shall be

imposed by the alternative means.”) (emphasis added).

Consistent with this well-established understanding of “manner,” courts

interpreting the FDPA have acknowledged the federal government’s ability to

establish its own execution protocols. See United States v. Bourgeois, 423 F.3d 501, 509

(5th Cir. 2005) (acknowledging “the authority of the Attorney General … to designate

the place of execution and the substances to comprise [the] lethal injection”); United

States v. Fell, No. 5:01-CR-12-01, 2018 WL 7270622, *4 (D. Vt. Aug. 7, 2018)

(explaining that as long as “the manner of execution”—there, lethal injection—is

“consistent with state practice,” “the Department of Justice has the authority to adopt

regulations as to the specific manner of execution”); Higgs v. United States, 711 F. Supp.

2d 479, 556 (D. Md. 2010) (observing that “the [FDPA] only speaks to the ‘manner’

of implementing the sentence without reference to ‘procedure,’” and that the “manner

of execution authorized by [state] law is lethal injection”). The only contrary case

relied upon by the district court, United States v. Hammer, 121 F. Supp. 2d 794 (M.D.

Pa. 2000), drew erroneous inferences from never-enacted bills proposed after the

FDPA. Compare id. 799–800, with infra p.14–15.

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Indeed, the district court’s reasoning would frustrate responsible

implementation of the FDPA, perversely precluding federal officials from selecting

more humane lethal-injection protocols than used by states. BOP chose the single-drug

pentobarbital protocol in part because of its demonstrated reliability. AR871. In fact,

underscoring the oddity of the district court’s ruling, two of the four states at issue

(Missouri and Texas) likewise provide for a single-drug pentobarbital protocol. AR98,

103.6 These practices may reflect expert views that such a protocol “is more humane

than the other double and triple agent injections still employed” by some states.

AR525. Such considerations make it utterly implausible that Congress intended the

FDPA to require federal officials to follow virtually every “procedural detail[],” A8, of

the states’ varied execution protocols.

To justify that counter-intuitive conclusion, the district court emphasized that

legislation introduced, but not passed, after the FDPA’s enactment would have

amended 18 U.S.C. § 3596 to require that federal death sentences “be implemented

pursuant to regulations prescribed by the Attorney General.” H.R. 2359, 104th Cong.

§ 1 (Sept. 19, 1995); see also H.R. 1087, 105th Cong. § 1 (Mar. 17, 1997). From

Congress’s failure to enact such bills, the district court inferred that “the FDPA as

drafted did not permit federal authorities to establish a uniform procedure” for federal

executions. A9. The Supreme Court, however, has long noted the hazards of

Arkansas allows its officials to select a single-drug procedure using


6

pentobarbital. See Ark. Code Ann. § 5-4-617(c).


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interpreting statutes by reference to subsequently proposed bills never enacted into

law. See, e.g., Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990).

That admonition is particularly apposite here, because these bills would have

done much more than free the federal government from any alleged requirement to

adhere to minute details of state execution procedure. Most obviously, the bills would

have allowed the Attorney General to use a method of execution not employed in the

state of conviction (e.g., in states then using a method other than lethal injection).

Moreover, the proposed legislation would have eliminated federal officials’ ability to

use state execution facilities. See H.R. 1087, 105th Cong. § 2; H.R. 2359, 104th Cong.

§ 2. If anything, the bills’ legislative history once again demonstrates that Congress

understood “the manner” of execution to refer only to the lethal method employed.

H.R. 2359’s sponsor explained that the result of the FDPA-mandated “procedure”

was that “some persons convicted of the same capital crime … would be executed in

different ways—some by electrocution, some in the gas chamber, and … by the firing

squad.” Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary on H.R. 1241,

H.R. 1533, H.R. 1552, H.R. 2359, and H.R. 2360, 104th Cong. 2 (1995) (opening

statement of Chairman McCollum).

The district court also observed that the federal protocol “requires use of a

federal facility, while the FDPA permits the use of state facilities.” A11 (citing 18

U.S.C. § 3597). But Section 3597 only underscores Congress’s intent to preserve the

federal government’s discretion to establish procedures to effectuate state execution


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methods. It provides that the U.S. Marshal “may use appropriate State or local

facilities” and “may use the services of an appropriate State or local official.” 18 U.S.C.

§ 3597(a) (emphases added). This permissive language contrasts with Section 3596(a)’s

requirement that federal officials “shall” use the “manner prescribed by the law of the

State.” Cf. Lopez v. Davis, 531 U.S. 230, 241 (2001) (contrasting “Congress’ use of the

permissive ‘may’ in” a statutory early-release provision “with the legislators’ use of a

mandatory ‘shall’ in the very same section”). Read together, Sections 3596 and 3597

highlight the improbability that Congress intended “manner” to include the particulars

of state executions.7

Indeed, reading Section 3596(a) to require federal death sentences to be carried

out under all state procedures would be contrary to the discretion conferred by

Section 3597(a). State procedures frequently specify that state facilities and personnel

must be used in implementing executions. See, e.g., Ala. Code § 15-18-82 (requiring

that “[e]xecutions shall take place at the William C. Holman unit of the prison system

at Atmore” and “[t]he warden of [that facility] … shall be the executioner”); AR20–54

(Idaho standard operating procedure detailing state personnel and facilities). If Section

3596 required the federal government to use those state facilities and personnel, the

7
Similarly, to the extent the district court assumed all federal executions
predating the FDPA occurred in state facilities, A9, it erred. See Federal Bureau of
Prisons, Capital Punishment, https://www.bop.gov/about/history/
federal_executions.jsp (tabs corresponding to 1930-1950) (last visited Nov. 25, 2019).

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discretion to use state facilities and personnel conferred by Section 3597 would be a

nullity.8

Relatedly, the district court’s reasoning would lead to the extraordinary result

that a state could block implementation of a federal death sentence. Some states may

refuse to allow the federal government to use their state-mandated facilities and

personnel for carrying out executions. Others may be unwilling to inform the federal

government of confidential procedures or to share scarce drugs. See AR929. Nothing

about the FDPA’s text or context remotely suggests that Congress intended to turn

the Supremacy Clause on its head, subordinating federal law enforcement to states’

approval. Indeed, Section 3596’s second sentence—permitting a sentencing court in a

State without capital punishment to designate a different State’s law—is designed to

avoid that very result.

b. Even assuming that the FDPA incorporated some state procedures besides

the method of execution, in order to enjoin these four plaintiffs’ executions, it was

incumbent on the district court to identify a material conflict between the federal

protocol and the particular laws of the four relevant states. Yet the court made no

serious attempt to do so. Instead, the court appeared to enjoin application of the

federal protocol simply because it is uniform rather than state-specific. A11-12. But

Insofar as the district court suggested that the FDPA may not require
8

adhering to execution locations specified by state law, A8-9, that arbitrary exclusion
would underscore the atextual nature of the court’s interpretation of the FDPA as
incorporating some, but not all, state procedures.
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absent a showing that the federal protocol and state law materially diverge with

respect to these plaintiffs, there is no reason to bar implementation of their sentences.

The only specific “inconsistenc[y]” that the district court even purported to

identify was that some states specify IV-catheter insertion procedures, while the

protocol leaves that matter to be determined “based on the training, experience, or

recommendation of execution personnel.” A11. That is a red herring. Arkansas’s

statute merely provides the general instruction that “[c]atheters, sterile intravenous

solution, and other equipment used for … intravenous injection … shall be sterilized

and prepared in a manner that is safe and commonly performed in connection with

the intravenous administration of drugs of that type.” Ark. Code Ann. § 5-4-617(f).

The district court provided no basis whatsoever to conclude that BOP would do

otherwise. As for Indiana, Missouri, and Texas, their state statutes do not refer to

catheter-insertion procedures at all,9 and, even assuming that their regulatory policies

on that topic are relevant under the FDPA, the district court likewise failed to show

that BOP would not comply with those policies. Accordingly, the court failed to

demonstrate that application of the protocol to these four plaintiffs would contravene

the FDPA.

9
See Ind. Code Ann. § 35-38-6-1(a); Mo. Ann. Stat. § 546.720(1); Tex. Code
Crim. Proc. Ann. art. 43.14(a).
18
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II. The Balance Of Equities Strongly Militates In Favor Of Staying Or


Vacating The Injunction.

When a sentence of death has been lawfully imposed, “[b]oth the [government]

and the victims of crime have an important interest in the timely enforcement of

[that] sentence.” Bucklew, 139 S. Ct. at 1133. Once post-conviction proceedings “have

run their course … finality acquires an added moral dimension.” Calderon v. Thompson,

523 U.S. 538, 556 (1998). “Only with an assurance of real finality can the

[government] execute its moral judgment in a case,” and “[o]nly with real finality can

the victims of crime move forward knowing the moral judgment will be carried out.”

Id. Indeed, the Supreme Court has recognized that unduly delaying executions can

frustrate the death penalty, and undermine its retributive and deterrent functions. See

Bucklew, 139 S. Ct. at 1134; id. at 1144 (Breyer, J., dissenting). Here, these grave harms

are exacerbated by significant practical problems that would also result from delay. See

A17-19 (discussing the substantial resources devoted to the planned executions,

including coordination with victims’ families who may attend). After years spent

locating a reliable drug source and developing an effective federal protocol, AR871-

72, 929-32, the government scheduled plaintiffs’ executions months in advance to

allow careful coordination and planning. The government has a significant interest in

timely implementing those plans.

By contrast, plaintiffs will suffer no cognizable harm from setting aside the

injunction. After all, that injunction is not based on a conclusion that they were

19
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wrongly sentenced to death, or even that the federal protocol threatens a risk of

unconstitutional pain. Its only basis is an alleged conflict between the state laws

incorporated by the FDPA and the federal protocol—a conflict that is at best purely

procedural and at worst entirely illusory. Supra Part I; cf. Winter v. Nat’l Res. Def.

Council, Inc., 555 U.S. 7, 32–33 (2008) (explaining that where “the ultimate legal claim

is that the Navy must prepare an [environmental impact statement], not … cease

sonar training, there is no basis for enjoining such training” at the risk of national

security). Any such harm did not properly support a preliminary injunction below and

cannot defeat a stay of that injunction here. Contrary to the district court’s suggestion,

A13-14, the same goes for plaintiffs’ inability to continue litigating that meritless

procedural claim absent an injunction. Plaintiffs cannot use their purported statutory

right to be executed under state-law procedures—procedures materially

indistinguishable from the federal protocol—in order to delay their executions for the

sake of delay.

The Supreme Court has not hesitated to summarily set aside lower court orders

that improperly interfere with the lawful implementation of the death penalty. See

McNabb, 138 S. Ct. at 369 (vacating an injunction “[b]ecause the District Court

enjoined respondent’s execution without finding that he has a significant possibility of

success on the merits”); Brewer v. Landrigan, 562 U.S. 996, 996 (2010) (vacating a

temporary restraining order because the district court’s “speculat[ion] as to the risk of

harm … cannot substitute for evidence that the use of the drug is ‘sure or very likely to
20
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cause serious illness and needless suffering’”); Sizer v. Oken, 542 U.S. 916 (2004)

(mem.) (summarily vacating stay entered based on asserted lack of access to state

execution protocol, 321 F. Supp. 2d 658, 667–68 (D. Md. 2004)); see also Trump v. Int’l

Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (staying a preliminary injunction

with respect to certain foreign nationals, even though the injunction would become

moot before the Court could review its merits). This Court should likewise set aside

this flawed injunction against the implementation of entirely lawful executions.10

10
At a minimum, this Court should set aside the injunction insofar as it
prohibits the federal government from carrying out plaintiffs’ sentences at all. Even
accepting the district court’s reasoning, the injunction should have enjoined the
executions only insofar as the federal protocol allegedly conflicts with the FDPA’s
incorporation of the state-law manner of execution.
21
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CONCLUSION

For the foregoing reasons, this Court should stay or vacate the district court’s

preliminary injunction barring four federal executions.

Respectfully submitted,

JOSEPH H. HUNT
Assistant Attorney General
JESSIE K. LIU
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
PAUL R. PERKINS
Special Counsel
MARK B. STERN
/s/ Melissa N. Patterson
MELISSA N. PATTERSON
Attorneys, Appellate Staff
Civil Division, Room 7230
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-1201
melissa.patterson@usdoj.gov

November 2019

22
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CERTIFICATE OF COMPLIANCE

I hereby certify that this motion satisfies the type-volume limitation in Rule

27(d)(2)(A) because it contains 5,174 words. This brief also complies with the typeface

and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6) because it was prepared

using Microsoft Word 2016 in Garamond 14-point font, a proportionally spaced

typeface.

/s/ Melissa N. Patterson


MELISSA N. PATTERSON
USCA Case #19-5322 Document #1817384 Filed: 11/25/2019 Page 25 of 48

CERTIFICATE OF SERVICE

I hereby certify that on November 25, 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 by using the appellate CM/ECF system. Participants in the case are

registered CM/ECF users, and service will be accomplished by the appellate

CM/ECF system, except for the following.

These counsel will be served by courier and, where available, email:

Matthew J. Herrington
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036-1795
Email: mherrington@steptoe.com

William Edward Lawler III


Vinson & Elkins LLP
2200 Pennsylvania Avenue, NW
Suite 500W
Washington, DC 20037-1701

Arin Smith
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006-1420

Joshua Christopher Toll


King & Spalding LLP
1700 Pennsylvania Avenue, NW
Suite 200
Washington, DC 20006-4706
USCA Case #19-5322 Document #1817384 Filed: 11/25/2019 Page 26 of 48

These counsel will be served by Federal Express and email:

Shawn Nolan
Federal Public Defender
(FPD)
601 Walnut Street
Suite 545 West-Curtis Building
Philadelphia, PA 19106-0000
Email: shawn_nolan@fd.org

Billy H. Nolas
Federal Public Defender
(FPD)
601 Walnut Street
Suite 545 West-Curtis Building
Philadelphia, PA 19106-0000
Email: billy_nolas@fd.org

/s/ Melissa N. Patterson


MELISSA N. PATTERSON
USCA Case #19-5322 Document #1817384 Filed: 11/25/2019 Page 27 of 48

ADDENDUM

District Court Memorandum Opinion (ECF No. 50) .................................................... A1

District Court Order (ECF No. 51) ................................................................................ A16

Declaration of Rick Winter (ECF No. 54) ..................................................................... A17

Certificate as to Parties, Rulings, and Related Cases ..................................................... A20


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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
In the Matter of the )
Federal Bureau of Prisons’ Execution )
Protocol Cases, )
)
LEAD CASE: Roane et al. v. Barr ) Case No. 19-mc-145 (TSC)
)
THIS DOCUMENT RELATES TO: )
)
Bourgeois v. U.S. Dep’t of Justice, et al., )
12-cv-0782 )
)
Lee v. Barr, 19-cv-2559 )
)
Purkey v. Barr, et al., 19-cv-03214 )
)

MEMORANDUM OPINION

On July 25th of this year, the U.S. Department of Justice (“DOJ”) announced plans to

execute five people. See Press Release, Dep’t of Justice, Federal Government to Resume Capital

Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/

pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse. The DOJ

intends to execute Daniel Lewis Lee on December 9, 2019; Lezmond Mitchell on December 11,

2019; Wesley Ira Purkey on December 13, 2019; Alfred Bourgeois on January 13, 2020; and

Dustin Lee Honken on January 15, 2020. Id. To implement these executions, the Federal

Bureau of Prisons (“BOP”) adopted a new execution protocol: the “2019 Protocol.” Id; (ECF No.

39-1 (“Administrative R.”) at 1021–1075).

Four of the five individuals with execution dates 1 (collectively, “Plaintiffs”), have filed

complaints against the DOJ and BOP (collectively, “Defendants”), alleging that the 2019

1
Mitchell has not filed a complaint in this court.

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Protocol is unlawful and unconstitutional on numerous grounds. 2 See Purkey v. Barr, 19-cv-

03214 (D.D.C.), Doc. # 1 (Oct. 25, 2019); Lee v. Barr, 1:19-cv-02559 (D.D.C.), Doc. #1 (Aug.

23, 2019); Bourgeois v. U.S. Dep’t of Justice, et al., 1:12-cv-00782 (D.D.C.), Doc. # 1 (May 5,

2012); ECF. No. 38 (“Honken Compl.”). The court consolidated the cases and ordered Plaintiffs

to complete the necessary 30(b)(6) depositions on or before February 29, 2020 and to amend

their complaints on or before March 31, 2020. (See ECF No. 1 (“Consolidation Order”); Min.

Entry, Aug. 15, 2019.) Because Plaintiffs are scheduled to be executed before their claims can

be fully litigated, they have asked this court, pursuant to Federal Rule of Civil Procedure 65 and

Local Rule 65.1, to preliminarily enjoin the DOJ and BOP from executing them while they

litigate their claims. (ECF No. 34 (“Purkey Mot. for Prelim. Inj.”); ECF No. 29 (“Honken Mot.

for Prelim. Inj.”); ECF No. 13 (“Lee Mot. for Prelim. Inj.”); ECF No. 2 (“Bourgeois Mot. for

Prelim. Inj.”)) Having reviewed the parties’ filings, the record, and the relevant case law, and for

the reasons set forth below, the court hereby GRANTS Plaintiffs’ Motions for Preliminary

Injunction.

I. BACKGROUND

Beginning in 1937, Congress required federal executions to be conducted in the manner

prescribed by the state of conviction. See 50 Stat. § 304 (former 18 U.S.C. 542 (1937)),

recodified as 62 Stat. § 837 (former 18 U.S.C. 3566). After the Supreme Court instituted a de

2
Bourgeois’ complaint was filed in 2012 and relates to a separate execution protocol. See
Bourgeois v. U.S. Dep’t of Justice, et al., 1:12-cv-00782 (D.D.C.), Doc. # 1 (May 5, 2012). In
addition, his Motion for Preliminary Injunction (ECF. No. 2 (“Bourgeois Mot. for Prelim. Inj.”))
does not articulate his bases for a preliminary injunction, but instead argues that a preliminary
injunction is warranted because the plaintiffs in the Roane litigation were granted a preliminary
injunction. Despite the shortcomings of Bourgeois’ briefing, this court has determined that he
meets the requirements of a preliminary injunction, as do the three other plaintiffs in the
consolidated case, whose motions are fully briefed.

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facto moratorium on the death penalty in Furman v. Georgia, 408 U.S. 238, 239–40 (1972), and

then lifted it in Gregg v. Georgia, 428 U.S. 153, 187 (1976), Congress reinstated the death

penalty for certain federal crimes but did not specify a procedure for implementation. See Anti-

Drug Abuse Act of 1988, Pub. L. 100–690, § 7001, 102 Stat. 4181 (enacted Nov. 18, 1988).

Four years later, under the direction of then-Attorney General William Barr, the DOJ published a

proposed rule to establish a procedure for implementing executions. Implementation of Death

Sentences in Federal Cases, 57 Fed. Reg. 56536 (proposed Nov. 30, 1992). The proposed rule

noted that the repeal of the 1937 statute “left a need for procedures for obtaining and executing

death orders.” Id. The final rule, issued in 1993, provided a uniform method and place of

execution. See 58 Fed. Reg. 4898 (1993), codified at 28 C.F.R. pt. 26 (setting method of

execution as “intravenous injection of a lethal substance.”)

But a year later, Congress reinstated the traditional approach of following state practices

through passage of the Federal Death Penalty Act (“FDPA”). See Pub. L. No. 103–322, 108

Stat. 1796 (1994), codified at 18 U.S.C. §§ 3591–3599. The FDPA establishes that the U.S.

Marshal “shall supervise implementation of the sentence in the manner prescribed by the law of

the State in which the sentence is imposed.” Id. § 3596(a). The FDPA provides no exceptions to

this rule and does not contemplate the establishment of a separate federal execution procedure.

Plaintiffs’ cases are governed by the FDPA because when the death penalty portions of the

ADAA were repealed in 2006, the FDPA was “effectively render[ed] . . . applicable to all federal

death-eligible offenses.” United States v. Barrett, 496 F.3d 1079, 1106 (10th Cir. 2007).

Given the conflict between the FDPA’s state-by-state approach and the uniform federal

approach adopted by DOJ’s 1993 rule (28 C.F.R. pt. 26), the DOJ and BOP supported proposed

legislation to amend the FDPA to allow them to carry out executions under their own procedures.

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One bill, for example, would have amended § 3596(a) to provide that the death sentence “shall

be implemented pursuant to regulations prescribed by the Attorney General.” H.R. 2359, 104th

Cong. § 1 (1995). In his written testimony supporting the bill, Assistant Attorney General

Andrew Fois wrote that “H.R. 2359 would allow Federal executions to be carried out . . .

pursuant to uniform Federal regulations” and that “amending 18 U.S.C. § 3596 [would] allow for

the implementation of Federal death sentences pursuant to Federal regulations promulgated by

the Attorney General.” Written Testimony on H.R. 2359 Before the Subcomm. on Crime of the

H. Comm. on the Judiciary, 104th Cong. 1 (1995) (Statement of Andrew Fois, Assistant Att’y

Gen. of the United States). None of the proposed amendments were enacted, and the FDPA

continues to require the federal government to carry out executions in the manner prescribed by

the states of conviction.

In 2005, three individuals facing death sentences sued, alleging that their executions were

to be administered under an unlawful and unconstitutional execution protocol. Roane v.

Gonzales, 1:05-cv-02337 (D.D.C.), Doc. #1 ¶ 2. The court preliminarily enjoined their

executions. Roane, Doc. #5. Three other individuals on death row intervened, and the court

enjoined their executions. See Roane, Doc. #23, 27, 36, 38, 67, 68. A seventh individual on

death row subsequently intervened and had his execution enjoined as well. See id. Doc. #333.

During this litigation, the government produced a 50-page document (“2004 Main Protocol”)

outlining BOP execution procedures. Roane, Doc. #179–3. The 2004 Main Protocol cites 28

C.F.R. pt. 26 for authority and does not mention the FDPA. See id. at 1. The government then

produced two three-page addenda to the 2004 Main Protocol. See Roane, Doc. #177-1

(Addendum to Protocol, Aug. 1, 2008) (the “2008 Addendum”); Roane, Doc. #177-3

(Addendum to Protocol, July 1, 2007) (“2007 Addendum”). In 2011 the DOJ announced that the

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BOP did not have the drugs needed to implement the 2008 Addendum. See Letter from Office of

Attorney General to National Association of Attorneys General, (Mar. 4, 2011),

https://files.deathpenaltyinfo.org/legacy/documents/2011.03.04.Holder.Letter.pdf. The

government told the court that the BOP “has decided to modify its lethal injection protocol but

the protocol revisions have not yet been finalized.” Roane, Doc. #288 at 2. In response, the

court stayed the Roane litigation.

No further action was taken in the cases for seven years, until July of this year, when

DOJ announced a new addendum to the execution protocol (“2019 Addendum”) (Administrative

R. at 870–871), that replaces the three-drug protocol of the 2008 Addendum with a single drug:

pentobarbital sodium. See id at ¶ C. In addition to the 2019 Addendum, the BOP adopted a new

protocol to replace the 2004 Main Protocol (the 2019 Main Protocol). (Administrative R. at

1021–1075.)

The court held a status conference in the Roane action on August 15, 2019. (See Min.

Entry, Aug. 15, 2019). In addition to the Roane plaintiffs, the court heard from counsel for three

other death-row inmates, including Bourgeois, all of whom cited the need for additional

discovery on the new protocol. (See ECF No. 12 (“Status Hr’g Tr.”)). The government

indicated that it was unwilling to stay the executions, and the court bifurcated discovery and

ordered Plaintiffs to complete 30(b)(6) depositions by February 28, 2020 and to file amended

complaints by March 31, 2020. (See Min. Entry, Aug. 15, 2019.)

Lee filed a complaint challenging the 2019 Addendum on August 23, 2019 (see Lee v.

Barr, 1:19-cv-02559 (D.D.C.), Doc. 1), and a motion for a preliminary injunction on September

27, 2019, (Lee Mot. for Prelim. Inj.). On August 29, 2019 Bourgeois moved to preliminarily

enjoin his execution. (Bourgeois Mot. for Prelim. Inj.) Honken filed an unopposed motion to

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intervene in Lee v. Barr, which was granted. (ECF No. 26. (“Honken Mot. to Intervene”).) He

then filed a motion for a preliminary injunction on November 5, 2019. (Honken Mot. for Prelim.

Inj.) Purkey filed a complaint and a motion for preliminary injunction under a separate case

number, 1:19-cv-03214, which was consolidated with Roane. Thus, the court now has before it

four fully briefed motions to preliminarily enjoin the DOJ and BOP from executing Lee, Purkey,

Bourgeois, and Honken.

II. ANALYSIS

A preliminary injunction is an “extraordinary remedy” that is “never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553

U.S. 674, 689–90 (2008)). Courts consider four factors on a motion for a preliminary injunction:

(1) the likelihood of plaintiff’s success on the merits, (2) the threat of irreparable harm to the

plaintiff absent an injunction, (3) the balance of equities, and (4) the public interest. Id. at 20

(citations omitted); John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C.

Cir. 2017). The D.C. Circuit has traditionally evaluated claims for injunctive relief on a sliding

scale, such that “a strong showing on one factor could make up for a weaker showing on

another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). It has been suggested,

however, that a movant’s showing regarding success on the merits “is an independent, free-

standing requirement for a preliminary injunction.” Id. at 393 (quoting Davis v. Pension Ben.

Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)). Here,

Plaintiffs’ claims independently satisfy the merits requirement.

A. Likelihood of Success on the Merits

Plaintiffs allege, inter alia, that the 2019 Protocol exceeds statutory authority and

therefore under the Administrative Procedure Act (“APA”), it must be set aside. Under the APA,

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a reviewing court “shall . . . hold unlawful and set aside agency action, findings, and conclusions

found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right.” 5 U.S.C. § 706(2)(C). Plaintiffs argue that the 2019 Protocol exceeds statutory authority

by establishing a single procedure for all federal executions rather than using the FDPA’s state-

prescribed procedure. (Purkey Mot. for Prelim. Inj. at 16; Honken Mot. for Prelim. Inj. at 34–35;

Lee Mot. for Prelim. Inj. at 5–6, 17). Given that the FDPA expressly requires the federal

government to implement executions in the manner prescribed by the state of conviction, this

court finds Plaintiffs have shown a likelihood of success on the merits as to this claim.

Defendants argue that the 2019 Protocol “is not contrary to the FDPA” because the

authority given to DOJ and BOP through § 3596(a) of the FDPA “necessarily includes the

authority to specify . . . procedures for carrying out the death sentence.” (ECF No. 16 (“Defs.

Mot. in Opp. To Lee Mot. for Prelim. Inj.”) at 34.) Section 3596(a) states:

When the [death] sentence is to be implemented, the Attorney


General shall release the person sentenced to death to the custody of
a United States marshal, who shall supervise implementation of the
sentence in the manner prescribed by the law of the State in which
the sentence is imposed. If the law of the State does not provide for
implementation of a sentence of death, the court shall designate
another State, the law of which does provide for the implementation
of a sentence of death, and the sentence shall be implemented in the
latter State in the manner prescribed by such law.

18 U.S.C. § 3596(a) (emphasis added). Because a United States Marshal is to

“supervise” the process, it does appear that at least some authority is granted to the Marshal. But

it goes too far to say that such authority necessarily includes the authority to decide procedures

without reference to state policy. The statute expressly provides that “the implementation of the

sentence” shall be done “in the manner” prescribed by state law. Id. Thus, as between states and

federal agencies, the FDPA gives decision-making authority regarding “implementation” to the

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former. Accordingly, the 2019 Protocol’s uniform procedure approach very likely exceeds the

authority provided by the FDPA.

Defendants contest the meaning of the words “implementation” and “manner.” As they

interpret § 3596(a), 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. The court finds this reading implausible. First, the statute does not refer to the

“method” of execution, a word with particular meaning in the death penalty context. See id.

Instead, it requires that the “implementation” of a death sentence be done in the “manner”

prescribed by the state of conviction. Id. “Manner” means “a mode of procedure or way of

acting.” Manner, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 756 (11th ed. 2014.) The

statute’s use of the word “manner” thus includes not just execution method but also execution

procedure. To adopt Defendants’ interpretation of “manner” would ignore its plain meaning. As

one district court concluded, “the implementation of the death sentence [under the FDPA]

involves a process which includes more than just the method of execution utilized.” United

States v. Hammer, 121 F. Supp. 2d 794, 798 (M.D. Pa. 2000). 3

3
Defendants cite three cases to suggest that “manner” means “method”: Higgs v. United States,
711 F. Supp. 2d 479, 556 (D. Md. 2010); United States v. Bourgeois, 423 F.3d 501 (5th Cir.
2005); and United States v. Fell, No. 5:0-cr-12-01, 2018 WL 7270622 (D. Vt. Aug. 7 2018).
Higgs interpreted the FDPA to require the federal government to follow a state’s chosen method
of execution but not to follow any other state procedure. 711 F. Supp. 2d at 556. This
interpretation, however, was stated in dicta and is not supported by persuasive reasoning. Id.
Bourgeois did not reach the question of what the words “implementation” and “manner” mean in
18 U.S.C. § 3596(a). 423 F.3d 501 (5th Cir. 2005). Instead, it evaluated only whether the
sentence violated Texas law. Id. at 509. The opinion appeared to assume that § 3596(a) only
requires the federal government to follow the state-prescribed method of execution, but it
provided no basis for that assumption. Id.at 509. In Fell, the district court held that the creation
of a federal death chamber does not violate the FDPA. Fell, slip op., at 4. This holding affirms
the notion that the federal government has some authority in execution procedure (such as the

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Moreover, legislative efforts to amend the FDPA further support this court’s

interpretation of the terms “manner” and “implementation.” As noted above, in 1995, the year

after the FDPA became law, the DOJ supported bills amending the statute to allow the DOJ and

BOP to create a uniform method of execution, indicating that the FDPA as drafted did not permit

federal authorities to establish a uniform procedure. The amendments were never enacted.

Defendants argue that reading the FDPA as requiring adherence to more than the state’s

prescribed method of execution leads to absurd results. (See, e.g., Defs. Mot. in Opp. to Purkey

Mot. for Prelim. Inj. at 28.) They contend that if the state’s choice of drug is to be followed, the

federal government would have to “stock all possible lethal agents used by the States.” Id. But

the FDPA contemplates and provides for this very situation: it permits the United States Marshal

to allow the assistance of a state or local official and to use state and local facilities. 18 U.S.C.

§ 3596(a). Moreover, the practice of following state procedure and using state facilities has a

long history in the United States. Before the modern death penalty, the relevant statute provided

that the:

manner of inflicting the punishment of death shall be the manner


prescribed by the laws of the State within which the sentence is
imposed. The United States marshal charged with the execution of
the sentence may use available State or local facilities and the
services of an appropriate State or local official . . .

50 Stat. § 304 (former 18 U.S.C. 542 (1937)), recodified as 62 Stat. § 837 (former 18 U.S.C.

3566) (1948). The federal government carried out executions in accordance with this statute for

decades, including those of Julius and Ethel Rosenberg in New York’s Sing Sing prison, and

Victor Feguer in the Iowa State Penitentiary. See Feguer v. United States, 302 F.2d 214, 216

place of execution), but it does not conflict with the proposition that the FDPA requires the
federal government to follow state procedure as to more than simply the method of execution.

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(8th Cir. 1962) (noting sentence of death by hanging imposed pursuant to § 3566 and Iowa law);

Rosenberg v. Carroll, 99 F. Supp. 630, 632 (S.D.N.Y. 1951) (applying § 3566 to uphold state

law confinement prior to execution). Thus, far from creating absurd results, requiring the federal

government to follow more than just the state’s method of execution is consistent with other

sections of the statute and with historical practices. For all these reasons, this court finds that the

FDPA does not authorize the creation of a single implementation procedure for federal

executions.

Defendants argue that the 2019 Protocol derives authority from 28 C.F.R. § 26.3(a),

which provides that executions are to be carried out at the time and place designated by the

Director of the BOP, at a federal penal or correctional institution, and by injection of a lethal

substance or substances under the direction of the U.S. Marshal. (Defs. Mot. in Opp. to Lee Mot.

for Prelim. Inj. at 31.) However, this argument is undercut by the fact that, as with the 2019

Protocol itself, 28 C.F.R. Pt. 26 also conflicts with the FDPA. As noted above, 28 C.F.R. Pt. 26

was promulgated in 1993 (before the FDPA was enacted) to implement the Anti-Drug Abuse Act

of 1988, 21 U.S.C. § 848(e) (the “ADAA”), which does not specify how federal executions are

to be carried out. 28 C.F.R. § 26.3(a) filled that gap by providing an implementation procedure.

But when Congress passed its own requirements for the implementation procedure in the FDPA,

those requirements conflicted with 28 C.F.R. § 26.3(a).

Defendants concede that “where a regulation contradicts a statute, the latter prevails.”

(Defs. Mot. in Opp. to Lee Mot. for Prelim. Inj. at 31.) They argue instead that the regulation

does not conflict with the FDPA as applied to Plaintiffs because lethal injection (the method

required by 28 C.F.R. § 26.3(a)(4)) is either permitted or required in the Plaintiffs’ states of

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conviction (Texas, Arkansas, Missouri, and Indiana 4). (ECF No. 37 (“Defs. Mot. in Opp. to

Purkey Mot. for Prelim. Inj.”) at 26–27; ECF No. 36 (“Defs. Mot. in Opp. to Honken Mot. for

Prelim. Inj.”) at 19–20; Defs. Mot. in Opp. to Lee Mot. for Prelim. Inj at 31–32.) 5 Two of those

states—Texas and Missouri—use a single dose of pentobarbital for executions. (Administrative

R. at 99, 104.)

But this overlap does not, in and of itself, reconcile 28 C.F.R. pt. 26 with the FDPA. 28

C.F.R. Pt. 26 remains inconsistent with the FDPA because it establishes a single federal

procedure, while the FDPA requires state-prescribed procedures. In addition, 28 C.F.R. §

26.3(a)(2) requires use of a federal facility, while the FDPA permits the use of state facilities.

Compare 28 C.F.R. § 26.3(a)(2) with 18 U.S.C. § 3597. There are also inconsistencies between

the FDPA’s required state procedures and the 2019 Protocol. For example, states of conviction

establish specific and varied safeguards on how the intravenous catheter is to be inserted. 6 The

2019 Protocol, however, provides only that the method for insertion of the IV is to be selected

based on the training, experience, or recommendation of execution personnel. (Administrative

R. at 872.) Thus, the fact that the states of conviction and 28 C.F.R. § 26.3(a) all prescribe lethal

injection as the method of execution is not enough to establish that the regulation is valid as

applied to Plaintiffs.

4
Honken was convicted in Iowa, which does not have a death penalty. The FDPA requires a
court to designate a death penalty state for any individual convicted in a state without the death
penalty, and the court designated Indiana. (Honken Mot. for Prelim. Inj. at 37.)
5
Defendants do not assert this argument as to Bourgeois (likely because he did not raise 28
C.F.R. Part 26 in his motions), but does include Texas’ execution protocol—which requires
lethal injection—in the Administrative Record. (Administrative R. at 83-91.)
6
See, e.g., Administrative R. at 90-91 (Texas); Administrative R. at 70-71 (Missouri); Honken
Mot. for Prelim. Inj. Ex. 6 at 16–17 (Indiana).

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Defendants further argue that even if 28 C.F.R. § 26.3(a) did not conflict with the FDPA

by requiring lethal injection, the DOJ would still adopt lethal injection as its method of execution

for these Plaintiffs. (See e.g., Defs. Mot. in Opp. to Lee Mot. for Prelim. Inj at 32–33.) On this

basis, they ask the court to sever section 26.3(a)(4)—which establishes lethal injection as the

federal method—and affirm the rest of 28 C.F.R. § 26.3(a). Id. Defendants cite Am. Petroleum

Inst. V. EPA, 862 F.3d 50 (D.C. Cir. 2017), for the proposition that the court “will sever and

affirm a portion of an administrative regulation” if it can say “without any substantial doubt that

the agency would have adopted the severed portion on its own.” Id. at 71 (emphasis added). The

court declines to take this approach for several reasons. First, it is premised on the strained

reading of the FDPA that this court has already rejected. Moreover, the court cannot say

“without any substantial doubt” that DOJ “would have adopted the severed portion on its own.”

Id. Even were the court to engage in such speculation, it seems plausible that if 28 C.F.R. §

26.3(a) instructed the BOP to follow state procedure, rather than to implement lethal injection,

that BOP would in fact adopt whatever specific procedures were required by each state. Finally,

even if the court severed the language in 28 C.F.R. § 26.3(a) that conflicts with the FDPA,

another problem would arise: that is the very language that purportedly authorizes the creation of

a single federal procedure. If the court severs it, then 28 C.F.R. § 26.3(a) would no longer

contain the support for a single federal procedure that Defendants claim it does.

More importantly, Defendants’ arguments regarding the regulation’s applicability to

these Plaintiffs take us far afield from the task at hand. The arguments do not control the court’s

inquiry of whether the 2019 Protocol exceeds statutory authority. Based on the reasoning set

forth above, this court finds that insofar as the 2019 Protocol creates a single implementation

procedure it is not authorized by the FDPA. This court further finds that because 28 C.F.R. §

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26.3 directly conflicts with the FDPA, it does not provide the necessary authority for the 2019

Protocol’s uniform procedure. There is no statute that gives the BOP or DOJ the authority to

establish a single implementation procedure for all federal executions. To the contrary,

Congress, through the FDPA, expressly reserved those decisions for the states of conviction.

Thus, Plaintiffs have established a likelihood of success on the merits of their claim that the 2019

Protocol exceeds statutory authority. Given this finding, the court need not reach Plaintiffs’

other claims.

B. Irreparable Harm

To constitute irreparable harm, “the harm must be 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,” and it “must be beyond remediation.” League of Women Voters of U.S. v.

Newby, 838 F. 3d 1, 7–8 (D.C. Cir. 2016) (citing Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006)) (internal quotation marks and brackets omitted).

Here, absent a preliminary injunction, Plaintiffs would be unable to pursue their claims,

including the claim that the 2019 Protocol lacks statutory authority, and would therefore be

executed under a procedure that may well be unlawful. This harm is manifestly irreparable.

Other courts in this Circuit have found irreparable harm in similar circumstances. See,

e.g., Damus v. Nielsen, 313 F. Supp. 3d 317, 342 (D.D.C. 2018) (finding irreparable injury where

plaintiffs faced detention under challenged regulations); Stellar IT Sols., Inc. v. U.S.C.I.S., Civ.

A. No. 18-2015 (RC), 2018 WL 6047413, at *11 (D.D.C. Nov. 19, 2018) (finding irreparable

injury where plaintiff would be forced to leave the country under challenged regulations); FBME

Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 126–27 (D.D.C. 2015) (finding irreparable injury where

challenged regulations would threaten company’s existence); N. Mariana Islands v. United

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States, 686 F. Supp. 2d 7, 19 (D.D.C. 2009) (finding irreparable injury when challenged

regulations would limit guest workers).

Plaintiffs have clearly shown that, absent injunctive relief, they will suffer the irreparable

harm of being executed under a potentially unlawful procedure before their claims can be fully

adjudicated. Given this showing, the court need not reach the various other irreparable harms

that Plaintiffs allege.

C. Balance of Equities

Defendants assert that if the court preliminarily enjoins the 2019 Protocol they will suffer

the harm of a delayed execution date. (See, e.g., Def. Mot. in Opp. to Purkey Mot. for Prelim.

Inj. at 43.) While the government does have a legitimate interest in the finality of criminal

proceedings, the eight years that it waited to establish a new protocol undermines its arguments

regarding the urgency and weight of that interest. Other courts have found “little potential for

injury” as a result of a delayed execution date. See, e.g., Harris v. Johnson, 323 F. Supp. 2d 797,

809 (S.D. Tex. 2004). This court agrees that the potential harm to the government caused by a

delayed execution is not substantial.

D. Public Interest

The 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. On the other hand, “[t]he public interest is served when administrative agencies

comply with their obligations under the APA.” N. Mariana Islands, 686 F. Supp. 2d at 21.

Accordingly, this court finds that the public interest is served by preliminarily enjoining the

execution of the four Plaintiffs because it will allow them to determine whether administrative

agencies acted within their delegated authority, and to ensure that they do so in the future.

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III. CONCLUSION

This court finds that at least one of Plaintiffs’ claims has a likelihood of success on the

merits and that absent a preliminary injunction, they will suffer irreparable harm. It further finds

that the likely harm that Plaintiffs would suffer if this court does not grant injunctive relief far

outweighs any potential harm to the Defendants. Finally, because the public is not served by

short-circuiting legitimate judicial process, and is greatly served by attempting to ensure that the

most serious punishment is imposed lawfully, this court finds that it is in the public interest to

issue a preliminary injunction. Accordingly, each of Plaintiffs’ motions for preliminary

injunctions is hereby GRANTED.

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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
In the Matter of the )
Federal Bureau of Prisons’ Execution )
Protocol Cases, )
)
LEAD CASE: Roane et al. v. Barr ) Case No. 19-mc-145 (TSC)
)
THIS DOCUMENT RELATES TO: )
)
Bourgeois v. U.S. Dep’t of Justice, et al., )
12-cv-0782 )
)
Lee v. Barr, 19-cv-2559 )
)
Purkey v. Barr, et al., 19-cv-03214 )
)

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, the court hereby

GRANTS the Motions for Preliminary Injunction filed by the following individuals: Alfred

Bourgeois (ECF No. 2), Dustin Lee Honken (ECF No. 29), Daniel Lewis Lee (ECF No. 13), and

Wesley Ira Purkey (ECF No. 34).

It is hereby ORDERED that Defendants (along with their respective successors in office,

officers, agents, servants, employees, attorneys, and anyone acting in concert with them) are

enjoined from executing Plaintiffs until further order of this court.

Date: November 20, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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UNITED STATES DISTRICT COURT


DISTRICT OF COLUMBIA

In the Matter of the Federal Bureau of


Prisons’ Execution Protocol Cases,

LEAD CASE: Roane et al. v. Barr


No. 1:19-mc-00145-TSC
THIS DOCUMENT RELATES TO:

Bourgeois v. Barr, et al., 12-cv-0782


Lee v. Barr, et al., 19-cv-2559
Purkey v. Barr, et al., 19-cv-03214

DECLARATION OF RICK WINTER

I, Rick Winter, do hereby declare and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(“BOP”), as Regional Counsel for the BOP’s North Central Region. I have held this

position since October 2016. I have been employed by the BOP since 1994.

2. The statements I make hereinafter are made on the basis of my review of the official files

and records of the BOP, my own personal knowledge, or on the basis of information

acquired by me through the performance of my official duties.

3. The BOP, under the supervision of the United States Marshals Service, is responsible for

implementing federal death sentences. See 18 U.S.C. § 3596(a); 28 C.F.R. Part 26.

Currently, execution dates are in place for four inmates. Specifically, Daniel Lewis Lee’s

execution is scheduled to occur on Dec. 9, 2019; Wesley Ira Purkey’s execution is

scheduled to occur on Dec. 13, 2019; Alfred Bourgeois’ execution is scheduled to occur

on Jan. 13, 2020; and Dustin Lee Honken’s execution is scheduled to occur on Jan. 15,

2020.

4. In advance of these dates, the BOP has been, and intends to continue, making necessary

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arrangements.

5. Such arrangements include the activation of the execution team, which consists of over 40

BOP staff members. These staff members will, by necessity, be removed from their normal

duties, which include a wide range of correctional and administrative positions within the

BOP. Pursuant to the current operational plan, these staff members are scheduled to cease

their normal duties several days in advance of a scheduled execution, in order to give the

team time to practice and prepare for their role in an execution. In addition to the team

members, a number of BOP administrators will be present as well, also ceasing their

normal duties in the days in advance of an execution. Logistical items such as travel,

lodging and personal arrangements have already begun for the two execution dates in

December.

6. Additionally, the BOP plans to use contractors who have made themselves available and

presumably have made any necessary arrangements for personal and work related matters

based on the executions scheduled in December.

7. Executions are scheduled to take place at the Federal Correctional Complex at Terre Haute,

Indiana (FCC Terre Haute). Accordingly, FCC Terre Haute is also mobilizing personnel in

preparation of the currently scheduled executions. In preparation, FCC Terre Haute has

also been coordinating with federal, state, and local law enforcement agencies, some of

whom have indicated their plans to send personnel to FCC Terre Haute to help maintain

security for the currently scheduled executions.

8. Approximately 200 FCC Terre Haute staff will serve as institution security and support

during an execution. With its staff pulled away from their normal duties, FCC Terre Haute

will not be able to operate under normal conditions. For example, due to expected staffing

issues and changes in security procedures, FCC Terre Haute will not be able to prepare

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inmate meals in the ordinary fashion. Instead, the institution plans to prepare food in

advance for its approximately 2,600 inmates. This alteration in meal preparation comes at

a greatly increased cost to the BOP.

9. Additionally, FCC Terre Haute has made arrangements for specific needs related solely to

an execution, for example contracting for buses which will be used to transport public

demonstrators who wish to assemble.

10. Schedules for FCC Terre Haute staff members are currently being created, allocating staff

based on current execution dates. For additional security and support, specialized BOP

teams such as Special Operations Response Teams (SORT) and Disturbance Control

Teams (DCT) will travel to FCC Terre Haute from other BOP institutions. These teams

consists of approximately 50 individuals. Again, logistical arrangements such as travel and

lodging have already begun for the current execution dates.

11. Additionally, BOP has made travel and lodging arrangements for the victims’ family

members to attend the December executions.

12. Any adjustment to the execution dates would require significant planning and coordination

such as that which already has been undertaken by BOP to date.

I declare, under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and

correct.

Executed this 21st day of November, 2019.

____________________________
Rick Winter
Federal Bureau of Prisons

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici

This is an appeal from a preliminary injunction of the U.S. District Court for

the District of Columbia.

Appellants are the United States Department of Justice, William P. Barr, Uttam

Dhillon, Nicole C. English, Kathleen M. Hawk-Sawyer, Jeffrey E. Krueger, Joseph

McClain, T.J. Watson, and William E. Wilson.

Appellees are Alfred Bourgeois, Chadrick Evan Fulks, Cory Johnson, Daniel

Lewis Lee, Wesley Ira Purkey, James H. Roane, Jr., Julius Robinson, and Richard

Tipton. Intervenors for plaintiffs-appellees are Anthony Battle, Orlando Hall, Dustin

Lee Honken, Jeffrey Paul, and Bruce Webster.

Plaintiffs appearing before the district court were Alfred Bourgeois, Chadrick

Evan Fulks, Cory Johnson, Daniel Lewis Lee, Wesley Ira Purkey, James H. Roane, Jr.,

Julius Robinson, and Richard Tipton. Intervenor-plaintiffs appearing before the

district court were Anthony Battle, Orlando Hall, Dustin Lee Honken, Jeffrey Paul,

and Bruce Webster.

Defendants appearing before the district court were the United States

Department of Justice, William P. Barr, Mark Bezy, Radm Chris A. Bina, John F.

Caraway, Alan R. Doerhoff, Kerry J. Forestal, Eric H. Holder, Jr., Newton E. Kendig

II, Jeffrey E. Krueger, Paul Laird, Harley G. Lappin, Michele Leonhart, Charles L.

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Lockett, Joseph McClain, Michael B. Mukasey, Charles E. Samuels, Jr., Karen Tandy,

T.J. Watson, and Thomas Webster. Richard Veach appeared as intervenor-defendant.

There are no amici.

B. Rulings Under Review

Appellants seek review of the November 20, 2019 opinion and order of the

district court (Chutkan, J.) granting a preliminary injunction barring the executions of

Plaintiffs Bourgeois, Honken, Lee, and Purkey. The district court’s opinion and order

are reproduced at A1-A16. No official citation exists.

C. Related Cases

Appellants appeal from the district court’s order in the consolidated case In The

Matter of The Federal Bureau of Prisons' Execution Protocol Cases, No. 1:19-mc-145

(D.D.C.). The consolidated cases are: Roane et al v. Gonzales et al, No. 1:05-cv-2337

(D.D.C.); Robinson v. Mukasey et al, No. 1:07-cv-2145 (D.D.C); Bourgeois v. United States

Department of Justice et al, No. 1:12-cv-782 (D.D.C); Fulks v. United States Department of

Justice et al, No. 1:13-cv-938 (D.D.C.); Lee v. Barr et al, No. 1:19-cv-2559 (D.D.C.); and

Purkey v. Barr et al, No. 1:19-cv-3214 (D.D.C.). One of those cases, Roane et al v.

Gonzales et al, No. 05-cv-2337 (D.D.C.), was previously before this Court as James

Roane, et al v. Michele Leonhart, et al., No. 12-5020 (D.C. Cir.).

/s/ Melissa N. Patterson


Melissa N. Patterson

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