Trump's DC Circuit Appointees Rule in Favor of Administration's Federal Execution Policies
Hogan Lovells appellate partner Cate Stetson argued before the panel on behalf of several death row inmates.
April 07, 2020 at 11:19 AM
6 minute read
The original version of this story was published on National Law Journal
The U.S. Court of Appeals for the D.C. Circuit threw out a district court's preliminary injunction Tuesday that blocked the Trump administration's recent efforts to reinstate the federal death penalty.
Judges Neomi Rao and Gregory Katsas, both appointed to the bench by President Donald Trump, wrote concurring opinions in favor of vacating the injunction. Judge David Tatel, a Clinton appointee, dissented.
"Each member of the panel takes a different view of what the [Federal Death Penalty Act of 1994] requires," Tuesday's opinion reads. "Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction."
At the center of the case is the question of how the federal government can implement the death penalty, as federal law says executions should be carried out "in the manner prescribed by the law of the state in which the sentence is imposed." Attorney General William Barr last year announced new protocols for federal executions and scheduled the executions of five federal prisoners.
In his concurring opinion, Katsas wrote he believes the "manner" of execution as laid out in the federal death penalty law only applies to the method of execution, which gives federal authorities more leeway.
"The FDPA requires federal executions to follow the method of execution provided by the law of the state in which the sentence is imposed, but it does not require federal executions to follow the 'additional procedural details' invoked by the district court," he wrote.
Katsas further wrote that he is in favor of overturning the preliminary injunction entirely, saying "the district court failed to recognize the important governmental and public interest in the timely implementation of capital punishment."
"These interests are magnified by the heinous nature of the offenses committed by the appellees—all of whom murdered children—as well as the decades of delay to date," Katsas wrote.
Rao, diverging from Katsas, said the federal death penalty law says authorities should follow state law on execution protocols wherever it exists.
"Where state law is silent, the federal government has discretion to choose whatever lawful execution procedures it prefers," Rao wrote. "Under this interpretation, the Department of Justice's 2019 protocol is consistent with the FDPA."
"The protocol lays out a non-binding procedural framework that the federal government may apply in most cases, and it allows the U.S. Marshal Service to depart from federal procedures when required—a carveout that naturally would encompass situations in which the 2019 protocol conflicts with state law," she continued. "I therefore agree to vacate the preliminary injunction."
While aligned in agreeing the injunction on the protocols should be lifted, each of the Trump-tapped judges laid out their disagreements with the other's opinion.
For example, Katsas said Rao's interpretation of the statute, that state's laws should be the controlling phrase in the statute, "runs contrary to established rules of grammar and statutory interpretation.
"As a matter of grammar, the participial phrase 'prescribed by the law of the state' functions as an adjective and modifies the noun 'manner,'" Katsas argued. "By using the adjective to construe the noun broadly, Judge Rao overlooks 'the ordinary understanding of how adjectives work.'"
In response, Rao wrote that Katsas' argument "makes sense only if we presume that the word 'manner' refers exclusively to the general method. But there is no evidence of such an exclusive meaning. Rather, as cases and statutes demonstrate, the word 'manner' is broad enough to encompass execution procedures at every level of generality."
"The phrase 'prescribed by the law of the state' actually narrows the meaning of the word 'manner,'" she continued. "Thus, my reading is consistent with the most common grammatical function of a participial phrase."
In his dissenting opinion, Tatel said he does not believe Barr's new federal protocols for executions included a "carveout" to follow state regulations where they exist.
He said he believes the Federal Death Penalty Act "requires federal executions to be carried out using the same procedures that states use to execute their own prisoners—procedures set forth not just in statutes and regulations, but also in protocols issued by state prison officials pursuant to state law."
Therefore, Tatel wrote, he found the new federal protocol to be "contrary" to federal law and would vacate it.
The panel grilled Hogan Lovells appellate partner Cate Stetson and Justice Department attorney Melissa Patterson during January oral arguments over an injunction issued by U.S. District Judge Tanya Chutkan last year that temporarily blocked the death penalty policy.
A number of Big Law firms, including KaiserDillon and Wilmer Cutler Pickering Hale and Dorr, alongside federal defenders, are representing federal prisoners Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois and Dustin Lee Honkin.
In a statement Tuesday, Stetson said "the government has rushed the process in order to carry out executions without meaningful judicial review of the legality and constitutionality of the new execution procedures."
"Without action by the full court, the panel's splintered decision will allow the government to execute prisoners even while serious questions remain unanswered about the legality of the government's execution procedures under federal law," she added.
Chutkan found in October that it was necessary to pause the executions, which were set to begin the following December, so the inmates could pursue their legal claims and not "be executed under a procedure that may well be unlawful."
The D.C. Circuit declined to stay the injunction during the appeal, as did the U.S. Supreme Court. Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote in a statement at the time they believed the new execution protocols would ultimately be upheld.
Still, Alito wrote, "in light of what is at stake, it would be preferable for the District Court's decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out."
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFTC Reaches Settlements With Two Companies on Claims of Selling Sensitive Location Data
Deluge of Trump-Leery Government Lawyers Join Job Market, Setting Up Free-for-All for Law Firm, In-House Openings
4 minute read'That Decision was Wrong:' Federal Judge Rethinks Consumer Protection Class Certification
Law Firms Mentioned
Trending Stories
- 1Justices Will Weigh Constitutionality of Law Allowing Terror Victims to Sue PLO
- 2Nevada Supreme Court to Decide Fate of Groundbreaking Contingency Cap Ballot Measure
- 3OpenAI Tells Court It Will Seek to Consolidate Copyright Suits Under MDL
- 44th Circuit Allows State Felon Voting Ban Challenge to Go Forward
- 5Class Actions Claim Progressive Undervalues Totaled Cars
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250