IN THE MATTER OF THE FEDERAL BUREAU OF PRISONS' EXECUTION PROTOCOL CASES

Filing 322

MEMORANDUM AND OPINION re Plaintiff Orlando Hall's 318 Motion to Set Aside 2019 Federal Lethal Injection Protocol and Motion to Stay Execution. Signed by Judge Tanya S. Chutkan on 11/19/2020. (lcfb)

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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
THIS DOCUMENT RELATES TO:
Roane, et al. v. Barr, 05-cv-2337

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Case No. 19-mc-145 (TSC)

MEMORANDUM OPINION
In an order issued early yesterday morning, the U.S. Court of Appeals for the District of
Columbia Circuit reversed this court’s dismissal of Plaintiff Orlando Hall’s Eighth Amendment
claim. In re Federal Bureau of Prisons’ Execution Protocol Cases, No. 20-5329 (D.C. Cir. Nov.
18, 2020). In doing so, the Court of Appeals found that this court had read too broadly Barr v.
Lee in assessing the irreparable harm facing Plaintiff from being executed with non-prescribed
pentobarbital in violation of the Food, Drug, and Cosmetic Act (FDCA).
Plaintiff Hall, whose execution is scheduled for 6 p.m. today, has moved for an order
setting aside the 2019 Federal Bureau of Prisons’ Execution Protocol and declaring it unlawful
for Defendants to carry out further executions without a prescription for pentobarbital. Hall has
also moved for a stay of execution to allow the court to reconsider its finding that Plaintiffs in
this consolidated litigation failed to make the necessary showing of irreparable harm to warrant a
permanent injunction despite Defendants’ FDCA violation. Given the complexity of this
litigation, including a decision by the Court of Appeals issued on the eve of the scheduled
execution which has fundamentally altered this court’s prior fact-findings, and the Plaintiff’s

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likelihood of success on the merits of his challenge to this court’s irreparable harm findings, the
motion is GRANTED.
I.

BACKGROUND1

A. The Court’s Prior Rulings
On August 20, 2020, this court entered partial final judgment in favor of Defendants as to
Plaintiffs’ Eighth Amendment claim in Count II of their Amended Complaint. Based on the
Supreme Court’s reasoning in Barr v. Lee, the court found that “[s]o long as pentobarbital is
widely used . . . no amount of new evidence will suffice to prove that the pain pentobarbital
causes reaches unconstitutional levels.” (ECF No. 193 at 4 (discussing Barr v. Lee, 140 S. Ct.
2590 (2020) (per curiam)).) This conclusion was premised, in part, on the Supreme Court’s
observation that Plaintiffs’ Eighth Amendment claim faced “an exceedingly high bar” given that
single-dose pentobarbital “has become a mainstay of state executions . . . [h]as been used to
carry out over 100 executions, without incident . . . [and h]as been repeatedly invoked by
prisoners as a less painful and risky alternative to the lethal injection protocols of other
jurisdictions.” Lee, 140 S. Ct. at 2591; see also id. (citing Bucklew v. Precythe, 139 S. Ct. 1112,
1124 (2019)) (“This Court has yet to hold that a State’s method of execution qualifies as cruel
and unusual.”).
In its Opinion, the court further concluded that even if it “found in favor of Plaintiffs on
all alleged facts,” including evidence that an inmate would be virtually certain to suffer the
effects of flash pulmonary edema, “there would be no Eighth Amendment violation because the

This being the most recent of several opinions in this litigation, the court presumes familiarity
with the facts and procedural posture of the case. A more detailed recitation of the facts may be
found in the Court of Appeals’ most recent opinion in this case. Execution Protocol Cases, No.
20-5329, Slip Op. at 5–11.
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evidence of pain would not satisfy Lee’s high bar for an objectively intolerable risk of pain.”
(ECF No. 193 at 3, 5.)
On September 20, 2020, the court granted summary judgment in favor of Plaintiffs’
FDCA claim. It found that that “the pentobarbital the government intends to use in executions is
subject to the FDCA and fails to meet the premarketing, labeling, and prescription requirements
therein,” and that because “the government’s use, under the 2019 Protocol, of pentobarbital . . .
has not been prescribed and does not meet other statutory requirements of the FDCA,” the
intended executions “constitute[] agency action that is contrary to law in violation of the APA
[Administrative Procedure Act].” (ECF No. 261 at 33; see also ECF No. 213.)
The court, however, denied Plaintiffs’ request for injunctive relief, finding that although
there was a “possibility that inmates will suffer excruciating pain during their executions,
Plaintiffs have not established that flash pulmonary edema is ‘certain’ or even ‘likely’ to occur
before an inmate is rendered insensate.” (ECF No. 261 at 36.)
This conclusion was influenced by the court’s overbroad reading of Lee. Emphasizing
that it could not “weigh the evidence before it in a vacuum,” the court concluded that Plaintiffs
were not entitled to injunctive relief “[g]iven the Supreme Court’s decision” in Lee and “the
competing evidence in this case.” (Id. at 39–40.) The court reaffirmed this reading in
considering Plaintiffs’ motion for reconsideration, explaining that it was “constrained” by the
Supreme Court’s findings in Lee and other cases and that “Plaintiff would need to supply
evidence that casts doubt on the more than “100 executions carried out using pentobarbital.”
(ECF No. 305 at 7.)

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B. The Court of Appeals’ November 18, 2020 Decision
In reversing this court’s dismissal of Plaintiffs’ Eighth Amendment claim, the Court of
Appeals disagreed with this court’s assessment that “no amount of new evidence will suffice to
prove that the pain pentobarbital causes reaches unconstitutional levels.” Execution Protocol
Cases, No. 20-5329, slip op. at 18–19 (citing ECF No. 193 at 4). The Court clarified that “all the
Supreme Court said in Lee was that, under the demanding preliminary-injunction standard and
before any conclusive factual findings could be made in the case, ‘competing expert testimony’
over whether pulmonary edema occurs before or after the inmate is rendered insensate would not
by itself support a ‘last-minute’ stay of execution.” Id. at 19 (citing Lee, 140 S. Ct. at 2591).
Finally, the Court of Appeals affirmed this court’s conclusion that “the FDCA applies
when already-covered drugs like pentobarbital are used for lethal injections” and that the
Protocol as administered is “‘not in accordance with law’ to the extent it allows the dispensation
and administration of pentobarbital without a prescription.” Id. at 24 (quoting 5 U.S.C.
§ 706(2)). The Court then directed that the Protocol be “set aside” in that respect. Id. It
affirmed this court’s denial of a stay given this court’s finding that “the evidence in the record
does not support Plaintiffs’ contention that they are likely to suffer flash pulmonary edema while
still conscious.” Id. at 25 (quoting ECF No. 261 at 39).
Plaintiff then filed the present motion, asking the court to: 1) issue an order setting aside
the 2019 Protocol and declaring it unlawful for Defendants to carry out further executions
without a prescription, and 2) stay his execution to allow the court to reconsider its findings that
Plaintiffs failed to make the necessary ‘irreparable harm’ showing to warrant enjoining their
executions.

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As to the first request, the Court of Appeals has already directed this court to enter an
order setting aside the Protocol to the extent it permits the dispensing and administration of
pentobarbital without a prescription, and the court will therefore issue an order accordingly.
Given the extraordinary circumstances here, the request for a stay of execution will be granted.
II.

LEGAL STANDARD

In considering whether to grant the “extraordinary remedy” afforded by injunctive relief,
courts assess four factors: (1) the likelihood of the 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. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008) (citations
omitted); John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017).
“[L]ike other stay applicants, inmates seeking time to challenge the manner in which the [the
government] plans to execute them must satisfy all of the requirements for a stay, including a
showing of a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573,
584 (2006). In addition, “the traditional stay inquiry calls for assessing the harm to the opposing
party and weighing the public interest,” two factors that “merge” where, as here, the government
is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009).
A. Significant Possibility of Success on the Merits
In denying Plaintiff’s earlier request for permanent injunctive relief, the court found that
the evidence in the record was insufficient to show that flash pulmonary edema was “likely, let
alone ‘certain’ or ‘imminent.’” (ECF No. 261 at 40 (citing Wis. Gas Co. v. FERC, 758 F.2d 669,
674 (D.C. Cir. 1985)).) As the court explained, this conclusion was premised, in part, on its
interpretation of Lee. (Id. at 39–40.) And in ruling on Plaintiffs’ motion for reconsideration, the
court found that in order to demonstrate irreparable harm, Plaintiffs would need to “supply

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evidence that casts doubt on the more than 100 executions carried out using pentobarbital.” (See
ECF No. 305.) 2
These conclusions were thrown into doubt given the D.C. Circuit’s clarification of Lee.
And as Judge Pillard pointed out in her dissent, this court’s prior assessment of the evidence in
the record was tainted by the court’s erroneous interpretation of Lee. See Execution Protocol
Cases, No. 20-5320, slip op. at 31 (Pillard, J., dissenting) (“Only after the Supreme Court
vacated a preliminary injunction on Plaintiffs’ Eighth Amendment claim did the district court
find that Plaintiffs had failed to show irreparable harm.”).
Indeed, correcting this court’s error casts the evidence in a different light such that
Plaintiffs have established a significant possibility of showing irreparable harm given
Defendants’ violation of the FDCA. This court found initially that the question of whether an
inmate injected with a high dose of pentobarbital will suffer flash pulmonary edema while
sensate was one upon which reasonable minds could differ. But that conclusion was premised on
a finding that Plaintiffs had failed to “completely undermine” the testimony of Defendants’
expert Dr. Crowns. (See ECF No. 261 at 38.) This improperly elevated Plaintiff’s burden to
show irreparable harm. And new evidence presented after each execution (See, e.g., ECF
No. 282-4, Van Norman Supp. Decl.), appears to chip away at Crowns’ hypothesis and, given
the Court of Appeals’ interpretation of Lee, undermines the basis for the court’s conclusion on

The court also explained that it was not clear whether the prescription requirement was linked
to the harm of flash pulmonary edema. (ECF No. 261 at 36.) The Court of Appeals could have
adopted this reasoning and avoided consideration of the court’s factual finding regarding
irreparable harm altogether. Instead, it relied on this court’s factual findings, which suggests, at
least at this juncture, that the Plaintiffs can make a showing of irreparable harm in the absence of
the prescription requirement.
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Plaintiffs’ motion for reconsideration of the irreparable harm finding. Accordingly, this factor
weights in favor of issuing a stay.
Defendants’ arguments to the contrary are unpersuasive. First, they argue that Dunn v.
McNabb, 138 S. Ct. 369 (2017) forecloses this court’s ability to issue a stay to reconsider its
findings on irreparable harm. (ECF No. 319 at 1.) Not quite. In Dunn, the Supreme Court
vacated a stay issued by a district court where the plaintiff had failed to establish a “significant
possibility of success on the merits.” 138 S. Ct. 369. Plaintiff in this case has made that
showing. Citing the mandate rule, Defendants also argue that Plaintiff’s request for injunctive
relief is foreclosed by the D.C. Circuit’s finding that this court “was correct to deny the entry of a
permanent injunction” on the FDCA claims. (ECF No. 319 at 2.) But as Plaintiff correctly
points out, the Circuit’s conclusion means only that this court did not abuse its discretion under
the circumstances that were then before it, not that a permanent injunction was unavailable as a
matter of law. Even after a mandate issues, a court may revisit an issue when “there has been a
substantial change in the evidence or where an intervening decision has changed the law.”
Yankee Atomic Elec. Co. v. United States, 679 F.3d 1354, 1360 (Fed. Cir. 2012); accord Barrow
v. Falck, 11 F.3d 729, 731 (7th Cir. 1993) (“An appellate mandate does not turn a district judge
into a robot, mechanically carrying out orders that become inappropriate in light of subsequent
factual discoveries or changes in the law.”).
The Court of Appeals’ decision has fundamentally changed the law upon which this court
relied in making its factual finding. Thus, the court is not foreclosed from reconsidering whether
to grant a permanent injunction, especially after finding that Plaintiff has a substantial possibility
of success on the merits.

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B. Irreparable Harm
In order to prevail on a request for a stay, as with a request for a preliminary injunction,
irreparable 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); see also Nken, 556 U.S. at 434 (noting
the substantial overlap between the factors governing a stay and the factors governing a
preliminary injunction). Here, without injunctive relief, Plaintiff will be executed with a drug
administered in violation of a federal law that ensures its safety and efficacy for the intended
purpose. Furthermore, he will be unable to pursue his Eighth Amendment claim, which the D.C.
Circuit has just revived as of yesterday. This harm is manifestly irreparable.
Other courts in this Circuit have found irreparable harm in similar, but less dire
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. USCIS, 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 States, 686 F. Supp. 2d 7, 19 (D.D.C. 2009) (finding irreparable
injury where challenged regulations would limit guest workers).

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C. Balance of Equities
The need for closure in this case—particularly for the victim’s family—is weighty. See
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] the victims of crime move
forward knowing the moral judgment will be carried out.”). And this court is mindful of the
Supreme Court’s caution against last minute stays of execution. See Bucklew, 139 S. Ct. at 1134.
But the government’s ability to enact moral judgment is a great responsibility and, in the case of
a death sentence, cannot be reversed. After suspending federal executions for over seventeen
years, the government announced a new Execution Protocol and a resumption of executions in
July 2019, and since July of this year has executed seven inmates. Any potential harm to the
government caused by a brief stay is not substantial. Indeed, the government has not shown that
it would be significantly burdened by staying federal executions until it can secure a valid
prescription. Accordingly, the court sees no reason why this execution must proceed today.
Thus, the balance of the equities favors a stay.
D. Public Interest
The court is deeply concerned that the government intends to proceed with a method of
execution that this court and the Court of Appeals have found violates federal law. The public
interest is not served by executing individuals in this manner. See Harris v. Johnson, 323 F.
Supp. 2d 797, 810 (S.D. Tex. 2004) (“Confidence in the humane application of the governing
laws . . . must be in the public’s interest.”).
Thus, the court finds that all four factors weigh in favor of a stay. The court once again
finds itself in the unenviable position of having to issue yet another last-minute stay of execution.
Nonetheless, this is the nature of death penalty litigation and this court has had a disproportionate

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number of such claims given the nature of the case. Moreover, this result could not have been
avoided here. The Court of Appeals issued a decision altering the court’s understanding of the
law of this case just after 3 a.m. yesterday. The Court of Appeals’ mandate was not filed until 3
p.m., another twelve hours later. The court received Plaintiff’s motion at around 10 p.m. last
night and the motion was fully briefed around 10:45 a.m. this morning. The court would not
issue a stay were it not convinced that the Plaintiff has presented claims that had a substantial
possibility of succeeding. Indeed, the court denied another request for a stay of execution
brought by Orlando Hall earlier this week. (See Hall v. Barr, No. 20-cv-3184 (D.D.C.).)
III.

CONCLUSION

For the foregoing reasons, Plaintiffs motion for a stay of execution will be GRANTED
until such time that the court has reconsidered its finding that Plaintiffs failed to show the
necessary “irreparable harm” to warrant enjoining their executions, despite Defendants’ violation
of the FDCA. Plaintiff’s request for an order declaring that the Federal Execution Protocol must
be set aside to the extent it permits the use of pentobarbital not subject to a prescription is also
GRANTED. The court will issue an accompanying order.
Date: November 19, 2020

Tanya S. Chutkan

TANYA S. CHUTKAN
United States District Judge

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