Roane v. Bernard (In re Fed. Bureau of Prisons' Execution Protocol Cases)

In the Matter of the Federal Bureau of Prisons' Execution Protocol Cases,

LEAD CASE: Roane, et al. v. Barr

THIS DOCUMENT RELATES TO:

Bernard v. Barr, 20-cv-0474

Bourgeois v. U.S. Dep't of Just., 12-cv-782

Case No. 19-mc-145 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 6, 2020

MEMORANDUM OPINION

Plaintiffs Brandon Bernard and Alfred Bourgeois are scheduled to be executed on December 10^th and 11^th respectively. Both Plaintiffs, who were sentenced to death in Texas federal district court, have moved for a preliminary injunction barring their executions from proceeding as scheduled. Plaintiffs argue that in failing to provide them with a ninety-one day notice of their executions pursuant to Article 43.141(c) of the Texas Code of Criminal Procedure, Defendants violated § 3596(a) of the Federal Death Penalty Act (FDPA), which requires federal executions to be carried out "in the manner prescribed by the law of the State in which the sentence was imposed." Bernard received fifty-five days' notice, and Bourgeois received twenty-one days' notice.

For the reasons set forth below, the court finds that Defendants violated § 3596(a) of the FDPA, but that Plaintiffs have failed to demonstrate irreparable harm arising out of that statutory violation. Thus, Plaintiffs' motion for preliminary injunction will be DENIED.

BACKGROUND

This court and the U.S. Court of Appeals for the District of Columbia Circuit have set forth the facts of this case in prior opinions, and the court will therefore confine the facts here to those relevant to Plaintiffs' motion.

I. Procedural History

On July 25, 2019, after considering the matter for eight years, the Bureau of Prisons (BOP) announced a new execution protocol (the 2019 Protocol) using the barbiturate pentobarbital for carrying out federal death sentences, along with a notice that the Government intended to execute Bourgeois on January 13, 2020. See Press Release, Dep't of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse. Shortly thereafter, Bourgeois, along with four other plaintiffs who were at that time scheduled to be executed in December 2019 and January 2020, sought a preliminary injunction barring their respective executions until their challenges to the 2019 Protocol had been fully litigated.

The court granted a preliminary injunction, finding that Bourgeois and the other plaintiffs were likely to succeed on the merits of their claim that the 2019 Protocol violates the FDPA, that they would suffer irreparable harm in the absence of relief, and that the equities tipped in the Plaintiffs' favor. (ECF No. 50.) In February 2020, Bernard filed a complaint seeking declaratory and injunctive relief, which was consolidated with the master case.

On April 7, 2020, a divided panel of the D.C. Circuit vacated the preliminary injunction. See In re Fed. Bureau of Prisons' Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020). In a per curiam opinion joined by Judges Katsas and Rao, with Judge Tatel dissenting, the Courtheld that the plaintiffs' FDPA claim failed on the merits. See id. at 112 (per curiam). Judges Katsas and Rao reached this conclusion for different reasons, explained in separate concurrences. See id. at 113-21 (Katsas, J., concurring); id. at 129-33 (Rao, J., concurring).

In light of the D.C. Circuit's decision, Plaintiffs in the consolidated action filed an Amended Complaint on June 1, 2020, alleging in part, that the 2019 Protocol violates the FDPA by failing to comply with state execution protocols and procedures, including those codified in state law. (ECF. No. 92, ¶¶ 143-49.)

On September 20, 2020, the court granted summary judgment in favor of Defendants as to Plaintiffs' FDPA claims. (See ECF No. 261.) In accordance with the D.C. Circuit's April 7 Opinion, the court found that while the FDPA required Defendants to adhere to the level of detail prescribed in state laws and regulations governing executions, Plaintiffs had failed to identify a live controversy or actual disagreement with respect to their FDPA claim. (Id. at 27, 30.) Rather than promptly appealing the court's decision to the D.C. Circuit, Plaintiffs moved to alter or amend the judgment on the FDPA claim, (ECF No. 298), which the court denied, (ECF No. 305).

On October 16, 2020, Defendants scheduled Bernard's execution for December 10, 2020, providing him fifty-five days' notice. (ECF No. 296.)

Given Bernard and plaintiff Orlando Hall's impending executions, the D.C. Circuit set an expedited briefing schedule and heard oral argument on November 16, 2020. To avoid any jurisdictional concerns during the pendency of the appeal, Plaintiffs moved for the entry of final judgment in this court, which was entered on November 16, 2020. (ECF Nos. 313, 315.)

The Court of Appeals issued a decision two days later, holding in relevant part that this court did not err in granting summary judgment for Defendants on Plaintiffs' FDPA claim, agreeing with this court's conclusion that "there was no conflict in this case, either because thegovernment had committed to complying with the state statutes at issue or because no Plaintiff had requested to be executed in accordance with them." In re Fed. Bureau of Prisons' Execution Protocol Cases, No. 20-5329, 2020 WL 6750375, at *11 (D.C. Cir. Nov. 18, 2020) (citing ECF No. 261 at 27-28). The D.C. Circuit declined "to engage in a line-drawing exercise about whether a statute setting the time of execution is a procedure that implements 'the sentence in the manner prescribed by the law of the State in which the sentence is imposed.'" Id. (quoting 18 U.S.C. § 3596(a)). But because the Court found that this court erred in dismissing Plaintiffs' Eighth Amendment claims, it remanded the case.

Hall was executed on November 19, 2020. On November 20, 2020, Defendants scheduled Bourgeois' execution for December 11, 2020, providing him twenty-one days' notice. (ECF No. 330.)

II. Plaintiffs' Supplemental Complaint and Motion for Preliminary Injunction

Bernard and Bourgeois notified the court in the parties' November 24, 2020 joint status report that they planned to move for a preliminary injunction and sought leave to file a supplemental complaint on the grounds that "the setting of their execution dates conflicts with Texas death penalty procedures that the Government is required to follow under the [FDPA]." (ECF No. 332.) Over Defendants' opposition, the court granted Plaintiffs leave to file a supplemental complaint addressing only the legality of their scheduled execution dates and issued an expedited briefing schedule on their motion for preliminary injunction so as "to provide the court sufficient time to rule on the pending motions, to hold any hearings that may be required, and to allow adequate time for appeal." (ECF No. 333.)

On November 25, 2020, Bernard and Bourgeois filed their Supplemental Complaint and motion for preliminary injunction, alleging a single-count violation of the FDPA. (ECFNo. 334.) Plaintiffs seek to "prevent Defendants from executing them in violation of the FDPA," (ECF No. 336, Pl. Mem. at 4), arguing that Defendants violated their rights under the FDPA by failing to provide ninety-one days' notice of their executions in accordance with Article 43.141(c) of the Texas Code of Criminal Procedure. (Id. ¶ 16.) They argue that without injunctive relief, they will be deprived "of their interests in preparing for their executions, in fully litigating their pending claims, and in their lives." (Id. at 9.)

DISCUSSION

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 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). The D.C. Circuit has traditionally evaluated claims for injunctive relief on a sliding scale, such that "a strong showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011).

I. Likelihood of Success on the Merits

Plaintiffs contend that in failing to provide them ninety-one days' notice of their executions, Defendants have violated Article 43.141(c) of the Texas Code of Criminal Procedure and, by extension, the FDPA's requirement that the "implementation of [a death] sentence" be "in the manner prescribed by the law of the State in which the sentence is imposed." 18 U.S.C. § 3596(a). The court finds that the Plaintiffs have demonstrated a likelihood of success on the merits of this claim.

A. Forfeiture and Res Judicata

As a threshold matter, Defendants argue that Plaintiffs are unlikely to succeed on their Article 43.141(c) claim because it is barred by res judicata or has otherwise been waived or forfeited. In their view, Plaintiffs could have presented an Article 43.141(c) claim before this court entered summary judgment on September 20, 2020 or final judgment on November 16, 2020.

These procedural arguments are unpersuasive. The court found Plaintiffs' prior FDPA claims presented no live controversy either because the government had committed to complying with the state statutes at issue or because no plaintiff had requested to be executed in accordance with them—a view shared by the D.C. Circuit. See Execution Protocol Cases, 2020 WL 6750375, at *11 ("As we agree with the district court that there is no live controversy, we find it unnecessary here to engage in a line-drawing exercise about whether a statute setting the time of execution is a procedure that implements 'the sentence in the manner prescribed by the law of the State in which the sentence is...