On April 7, 2020, the United States Court of Appeals for the District of Columbia Circuit issued its decision in IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES, vacating the preliminary injunction that had been issued by the lower court. The lower court’s ruling had barred the execution of four federal death row inmates through use of the lethal injection protocol promulgated by the Bureau of Prisons and approved by the United States Attorney General last year. The primary issue in the appeal was the meaning of 18 U.S.C. § 3596(a), part of The Federal Death Penalty Act of 1994 (FDPA). This statute requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” The lower court agreed with the plaintiffs’ construction of the statute as requiring not only that the federal government utilize the method of execution proscribed by the law of the State where the sentence had been imposed, but also to follow all the subsidiary details set forth in state execution protocols. Two members of the appeals court panel disagreed with the lower court but for different reasons. One, Judge Katsas, concluded that the FDPA regulates only the choice among execution methods, e.g., the choice to use lethal injection instead of hanging or electrocution. The other, Judge Rao, found that the FDPA also requires the federal government to follow execution procedures set forth in state statutes and regulations, but not execution procedures set forth in less formal state execution protocols. Judge Rao further concluded that the federal protocol allows the federal government to depart from its procedures insofar as necessary to conform to state statutes and regulations. Under either of their views, the plaintiffs’ primary FDPA claim failed, resulting in the vacation of the preliminary injunction.
Judges Katsas and Rao also addressed the plaintiffs’ argument that the lower court’s order could be affirmed on the alternative ground that the federal protocol and an addendum to it reflected an unlawful transfer of authority from the United States Marshals Service to the Federal Bureau of Prisons. Judge Katsas found the argument to be without merit while Judge Rao concluded it was forfeited.
Judges Katsas and Rao, at the request of the government, also ruled on the claim by the plaintiffs that the protocol and addendum violated the notice-and-comment requirement of the Administrative Procedure Act (“APA”). They held it did not because “the 2019 protocol and addendum are rules of agency organization, procedure, or practice exempt from the APA’s requirements for notice-and-comment rulemaking.”
Lastly, the appeals court rejected the government’s request that it rule on and reject the plaintiffs’ claims under the Food, Drug, and Cosmetic Act and the Controlled Substances Act. The appeals court “decline[d] to do so because those claims were neither addressed by the district court nor fully briefed” in this appeal. Although the appeals court “share[d] the government’s concern about further delay from multiple rounds of litigation,” it observed that the government had not sought immediate resolution of all the plaintiffs’ claims, “including the constitutional claims and the claim that the protocol and addendum are arbitrary and capricious under the APA.” Thus, several claims would remain open on remand even if the appeals court reached the claims under the Food, Drug, and Cosmetic Act and the Controlled Substances Act.
Judge Tatel dissented.