Regulatory Experts Ask Supreme Court to Overturn Ruling Lifting Injunction on Federal Executions

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.