Montgomery v. Barr

502 F.Supp.3d 165

Lisa MONTGOMERY, Plaintiff,

v.William P. BARR, Attorney General of the United States in his official capacity, et al., Defendants.

Case No. 1:20-cv-03214 (TNM)

United States District Court, District of Columbia.

Signed November 25, 2020

Robin Linnett Nunn, Pro Hac Vice, David E. Marvin, Morgan, Lewis & Bockius LLP, Arthur B. Spitzer, American Civil Liberties Union of the District of Columbia, Washington, DC, Anjana Samant, American Civil Liberties Union Foundation, New York, NY, Brian Stull, Cassandra Stubbs, American Civil Liberties Union, Durham, NC, for Plaintiff.

Alan T. Simpson, U.S. Attorney's Office, Kansas City, MO, Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM ORDER

TREVOR N. McFADDEN, U.S.D.J.

Plaintiff Lisa Montgomery strangled Bobbie Jo Stinnett to death while Stinnett was eight months pregnant and sliced her open with a kitchen knife to deliver and kidnap her premature baby. At trial, a federal jury recommended a death sentence, which the district court imposed. With her execution date looming, Montgomery now sues various federal officials—mainly to challenge the conditions of her confinement in a Texas prison and her pending transfer to an Indiana prison for execution.

Heeding the D.C. Circuit's warning that courts must carefully examine venue "to guard against the danger that a plaintiff might manufacture venue in the District of Columbia," Cameron v. Thornburgh , 983 F.2d 253, 256 (D.C. Cir. 1993), the Court will transfer this case to the Northern District of Texas. That is where Montgomery is incarcerated, where the bulk of the conduct underlying her claims has taken place, and where the warden overseeing her custody resides. Not every federal execution case should be heard in this district. At its heart, this is a local matter that should be heard by a local court in Texas.

I.

Montgomery is incarcerated at Federal Medical Center Carswell ("FMC Carswell") near Fort Worth, in the Northern District of Texas. Pl.’s Mem. Supp. Mot. Prelim. Inj. ("Pl.’s Mem.") at 17, ECF No. 12-1; Defs.’ Resp. to Pl.’s Mem. Regarding Transfer ("Defs.’ Venue Mem.") at 10, ECF No. 24.¹ On October 16, 2020, the Government scheduled Montgomery's execution to occur on December 8 at the Federal Correctional Complex in Terre Haute, Indiana ("FCC Terre Haute"). Defs.’ Resp. Opp'n to Mot. Prelim. Inj. ("Defs.’ Opp'n") at 11, 14, ECF No. 23. Her execution was re-scheduled for January 12, 2021. Defs.’ Notice, ECF No. 27.²

Since the announcement of her original execution date, Montgomery has been placed on "suicide watch," meaning that she is in a cell by herself with limited access to items and freedoms that she might otherwise enjoy. See Pl.’s Mem. at 17–19.

On November 6, 2020, Montgomery sued Attorney General William Barr, the Federal Bureau of Prisons ("BOP"), Michael Carvajal (BOP Director), Michael Carr (Warden at FMC Carswell), T.J. Watson (Warden at FCC Terre Haute), Alix McLearen (National Administrator of Women and Special Populations Branch within BOP)—collectively, "the Government." Compl. ¶¶ 11–16, ECF No. 1. Montgomery claims that the Government has violated the Eighth Amendment, the Rehabilitation Act, and the Administrative Procedure Act. Id. ¶¶ 83, 89, 92.

A motion for injunctive relief followed ten days later. Pl.’s Mot. Prelim. Inj. ("Pl.’s Mot."), ECF No. 12. Montgomery seeks to enjoin the Government from (1) "continuing to subject her to the unique, harsh and unconstitutional conditions of confinement at FMC Carswell," and (2) "transferring Mrs. Montgomery to USP Terre Haute or any other all-male prison for execution." Pl.’s Mem. at 48.

The same day she filed her preliminary injunction motion, Montgomery moved for reassignment of her case to another judge under 28 U.S.C. § 455(a) and the Fifth Amendment's Due Process Clause. See Mot. to Reassign Case ("Pl.’s Reassign Mot."), ECF No. 13. Alternatively, she asks the Court to disclose all relevant facts that bear on the question of its impartiality here. Id. at 16–18. Montgomery bases her motion on the Court's brief role as Acting Principal Deputy Assistant Attorney General ("PDAAG") in the Criminal Division of the Department of Justice ("DOJ"). Id. at 11–16. The Government opposed the motion, and Montgomery replied. See Defs.’ Resp. Opp'n to Mot. to Reassign Case ("Defs.’ Reassign Opp'n"), ECF No. 19; Pl.’s Reply Supp. Mot. to Reassign ("Pl.’s Reassign Reply"), ECF No. 26.

Meanwhile, this Court issued an order directing Montgomery to show cause as to why this case should not be transferred to the Northern District of Texas or elsewhere. Min. Order (Nov. 18, 2020). The venue issue has been fully briefed. Pl.’s Mem. Resp. to Ct.’s Show Cause Order ("Pl.’s Venue Mem."), ECF No. 18; Defs.’ Venue Mem.; Pl.’s Reply Resp. to Ct.’s Show Cause Order ("Pl.’s Venue Reply"), ECF No. 29.

II.

The Court first must consider Montgomery's motion for reassignment. The Court served as Acting PDAAG of the DOJ's Criminal Division from March 16, 2017 through June 29, 2017.³ Montgomery contends that the Court's prior role as Acting PDAAG requires recusal here. She argues that the Court served in this position when the DOJ "was planning to resume executions and as Mrs. Montgomery's postconviction petition remained pending." Pl.’s Reassign Mot. at 11; see Pl.’s Reassign Reply at 5.

As explained below, however, Montgomery has pointed to nothing suggesting the DOJ's Criminal Division played any role in developing or advising on the execution protocol and conditions of confinement that Montgomery seeks to challenge during the time the Court was Acting PDAAG. Indeed, all the evidence points to the contrary.

Simply put, the Court's three-month tenure as Acting PDAAG—under a different Attorney General than the current one who approved the operative execution protocol and set her execution date—a decade after Montgomery received a death sentence does not support recusal under 28 U.S.C. § 455 or the Fifth Amendment's Due Process Clause.⁴

A.

"A court has broad discretion in considering the sufficiency of a motion to recuse pursuant to 28 U.S.C. § 455." United States v. Nixon , 267 F. Supp. 3d 140, 146 (D.D.C. 2017). "[D]isqualification of a judge is not lightly granted." United States v. Pollard , 959 F.2d 1011, 1023 (D.C. Cir. 1992). And there is a "presumption against disqualification." Nixon , 267 F. Supp. 3d at 147 (cleaned up) (citing cases).

28 U.S.C. § 455 enumerates the circumstances that require judicial recusal. Section 455(b) is specific. It provides five scenarios that compel a judge to withdraw from a case. See 28 U.S.C. § 455(b)(1)–(5). One scenario is if the judge "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." Id. § 455(b)(3). Section 455(a) is a general catchall provision. It requires disqualification "in any proceeding in which [the judge's] impartiality might reasonably be questioned." Id. § 455(a). The test under Section 455(a) "is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Microsoft Corp. v. United States , 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (Rehnquist, C.J., Statement).

Under the Due Process Clause, the inquiry for recusal is "whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Williams v. Pennsylvania , ––– U.S. ––––, 136 S. Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) (cleaned up).⁵

B.

The D.C. Circuit has made clear that recusal requests based on prior government service must satisfy Section 455(b)(3) "except in rare and extraordinary circumstances." See In re Hawsawi , 955 F.3d 152, 160 (D.C. Cir. 2020) (cleaned up); Baker & Hostetler LLP v. U.S. Dep't of Commerce , 471 F.3d 1355, 1358 (D.C. Cir. 2006) (Kavanaugh, J.).

Montgomery concedes that the Court's prior government experience does not support recusal under Section 455(b)(3). See Pl.’s Reassign Mot. at 15 n.3. So she must establish "rare and extraordinary circumstances" based on the Court's role as Acting PDAAG. She has not done so. Nor has she shown that the Court's "impartiality might reasonably be questioned" under Section 455(a).

Montgomery's theory of recusal rests on the assumption that the Court either participated in, or supervised, her final appeals and the efforts to resume federal executions and addend the execution protocol. See Pl.’s Reassign Mot. at 11; Pl.’s Reassign Reply at 5, 7. But the facts show otherwise.

Indeed, one need not look further than the evidence Montgomery cites, which offers insight into how the execution protocol she seeks to challenge was developed. See Pl.’s Reassign Reply at 6 (citing In re Fed. Bureau of Prisons’ Execution Protocol Cases , No. 1:19-mc-00145-TSC (D.D.C.), ECF No. 39-1). Montgomery identifies several memoranda between the BOP Director, the Deputy Attorney General's office, and the Attorney General dating back to 2017. In these memoranda, the BOP discusses the development and implementation of the new protocol for executions in preparation for approval by the Attorney General. The memoranda discuss the other agencies involved in these efforts. For example, the BOP worked in consultation with the United States Marshals Service Office of General Counsel and the Drug Enforcement Administration Office of General Counsel. Defs.’ Notice of Filing of Am. Administrative R. Ex. 1 at 863–64, In re Fed. Bureau of Prisons’ Execution Protocol Cases , No. 1:19-mc-00145-TSC (D.D.C. Nov. 13, 2019), ECF No. 39-1. After these consultations, the memoranda suggest the protocol was considered by various senior officials within the Deputy Attorney General's office, and was ultimately approved by Attorney General Barr. Id....