A group of 15 administrative law experts have filed an amicus curiae brief in support of death-row prisoners seeking U.S. Supreme Court review of a challenge to the federal government’s proposed execution protocol. The brief was filed June 19, 2020 in Roane v. Barr, a case brought by federal death-row prisoners asking the Court to overturn an appellate court’s ruling that lifted an injunction on federal executions. According to the amicus brief, “This case presents a trifecta of classic administrative-law problems: The Bureau of Prisons (BOP) (1) misinterpreted a statute, (2) after having failed to engage in required notice-and-comment processes, and (3) the court below upheld BOP’s action on grounds not provided by the agency itself.”

The brief supports the prisoner’s assertion that the federal appellate court “violated bedrock principles of statutory interpretation, federalism, and administrative law.” On April 7, 2020, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a fractured 2-1 ruling lifting an injunction that had been blocking the federal government from resuming executions. Two of the judges found that the federal government’s justification for its execution protocol was inconsistent with the language of the Federal Death Penalty Act. However, a different combination of two judges upheld the protocol, construing the language of the statute in a manner that differed from the Department of Justice’s interpretation and that deviated from years of case precedent interpreting the meaning of similar statutory and regulatory terms.

The circuit court’s ruling also exempted the execution protocol from the Administrative Procedure Act’s requirement that federal regulations provide the public with notice and an opportunity to comment before an agency can promulgate a new rule. Two of the judges on the panel ruled that the notice and comment requirement applied only to “substantive” rules and that the execution protocol was merely “procedural.”

The amicus brief asks the high Court to address two questions raised by the circuit panel’s decision: “First, when does an agency rule become sufficiently ‘substantive,’ such that notice-and-comment rulemaking is necessary? Second, can a court rewrite an agency decision in an effort to uphold it?” The brief argues that the D.C. Circuit “altered both the Protocol itself and the existing frameworks for determining whether a rule is ‘procedural’ to shield the Protocol from public scrutiny. … That position is deeply misguided. The means for ending a human life is not mere house-keeping.” The experts explain that the court misapplied several tests for determining what constitutes a “procedural” rule. They also argue that the court violated an 80-year-old principle of administrative law by upholding an agency’s actions on a basis that was not actually articulated by that agency.

The prisoners’ petition had argued that the three conflicting circuit panel opinions, none of which commanded a majority, cause “grave uncertainty about what the Federal Death Penalty Act means and what rules the federal government must follow when it carries out executions.” Cate Stetson, who argued the case for the prisoners, said the ruling, “if uncorrected, will have significant effects on both future death-penalty litigation and administrative law more broadly.” The brief of the administrative law experts reinforces the concern that the decision, which ostensibly addressed only the federal execution protocol, could have far-reaching unintended effects by undermining long-established principles governing statutory construction and federal regulatory practice.

The Supreme Court has scheduled the case for conference on June 25, 2020. Despite the pending litigation, the U.S. Department of Justice has scheduled four federal executions beginning on July 13, 2020.