In re: FBOP Execution Protocol Cases

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2020 Decided April 7, 2020

No. 19-5322

IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL

CASES,

JAMES H. ROANE, JR., ET AL.,

APPELLEES

v.

WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-mc-00145)

Melissa N. Patterson, Attorney, U.S. Department of

Justice, argued the cause for appellants. With her on the briefs

were Joseph H. Hunt, Assistant Attorney General, Jessie K.

Liu, U.S. Attorney, Hashim M. Mooppan, Deputy Assistant

Attorney General, Paul R. Perkins, Special Counsel, and Mark

B. Stern, Attorney.

Catherine E. Stetson argued the cause for appellees. With

her on the brief were Sundeep Iyer, Pieter Van Tol, Joshua M.

Koppel, Arin Smith, Jon Jeffress, Alan E. Schoenfeld,

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Stephanie Simon, and Shawn Nolan, Assistant Federal Public

Defender.

Before: TATEL, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994

(FDPA) requires federal executions to be implemented “in the

manner prescribed by the law of the State in which the sentence

is imposed.” 18 U.S.C. § 3596(a). It is common ground that

this provision requires the federal government to adhere at least

to a State’s choice among execution methods such as hanging,

electrocution, or lethal injection. The district court held that

the FDPA also requires the federal government to follow all the

subsidiary details set forth in state execution protocols—such

as, in the case of lethal injection, the method of inserting an

intravenous catheter. On that basis, the court preliminarily

enjoined four federal executions.

Each member of the panel takes a different view of what

the FDPA requires. Because two of us believe that the district

court misconstrued the FDPA, we vacate the preliminary

injunction.

3

I

A

On three different occasions, Congress has addressed the

“manner” of implementing the death penalty for federal capital

offenses. In the Crimes Act of 1790, the First Congress

specified that “the manner of inflicting the punishment of

death, shall be by hanging the person convicted by the neck

until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 112, 119.

This provision governed federal executions for over 140 years.

In 1937, Congress changed this rule to make the “manner”

of federal executions follow state law. Specifically, Congress

provided:

The manner of inflicting the punishment of death

shall be the manner prescribed by the laws of the

State within which the sentence is imposed. The

United States marshal charged with the execution of

the sentence may use available State or local facilities

and the services of an appropriate State or local

official or employ some other person for such

purpose …. If the laws of the State within which

sentence is imposed make no provision for the

infliction of the penalty of death, then the court shall

designate some other State in which such sentence

shall be executed in the manner prescribed by the

laws thereof.

An Act To Provide for the Manner of Inflicting the Punishment

of Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress

repealed this provision in 1984, see Sentencing Reform Act of

1984, Pub. L. No. 98-473, § 212, 98 Stat. 1987, but left intact

the underlying capital offenses. Accordingly, federal law still

4

authorized the death penalty, but no federal statute specified

how it would be carried out.

To fill this gap, the Attorney General promulgated a 1993

regulation titled “Implementation of Death Sentences in

Federal Cases.” 58 Fed. Reg. 4898, 4901–02 (Jan. 19, 1993).

It provides that, unless a court orders otherwise, the “method

of execution” of a federal death sentence shall be “[b]y

intravenous injection of a lethal substance or substances in a

quantity sufficient to cause death, such substance or substances

to be determined by the Director of the Federal Bureau of

Prisons.” 28 C.F.R. § 26.3(a)(4) (2019). The regulation also

addresses various other matters including the time and place of

execution, when the prisoner must be notified of the execution,

and who may attend it. Id. §§ 26.3–26.5.

Congress enacted the FDPA in 1994. Under the FDPA, as

under the 1937 statute, the “manner” of implementing federal

death sentences turns on state law. In pertinent part, the FDPA

provides that a United States marshal

shall supervise implementation of the sentence in the

manner prescribed by the law of the State in which

the sentence is imposed. If the law of the State does

not provide for implementation of a sentence of

death, the court shall designate another State, the law

of which does provide for the implementation of a

sentence of death, and the sentence shall be

implemented in the latter State in the manner

prescribed by such law.

18 U.S.C. § 3596(a). The FDPA also provides that a marshal

overseeing an execution “may use appropriate State or local

facilities” and “may use the services of an appropriate State or

local official.” Id. § 3597(a).

5

B

At various times since 2001, the Department of Justice has

developed protocols setting forth the precise details for

carrying out federal executions. One such protocol was

adopted in 2004 and updated in 2019. As updated, the protocol

“provides specific time related checklists for pre-execution,

execution, and post execution procedures, as well as detailed

procedures related to the execution process, command center

operations, contingency planning, news media procedures, and

handling stays, commutations and other delays.” App. 24.

This 50-page document addresses, among other things,

witnesses for the execution, the prisoner’s final meal and final

statement, strapping the prisoner to the gurney, opening and

closing the drapes to the execution chamber, injecting the lethal

substances, and disposing of the prisoner’s body and property.

For the three federal executions conducted between 2001

and 2003, the Bureau of Prisons used a combination of three

lethal substances—sodium thiopental, a barbiturate that

“induces a deep, comalike unconsciousness when given in the

amounts used for lethal injection,” Baze v. Rees, 553 U.S. 35,

44 (2008) (plurality opinion); pancuronium bromide, which

stops breathing; and potassium chloride, which induces cardiac

arrest. None of the three prisoners challenged these

procedures. In 2008, the Bureau memorialized its use of the

three substances in an addendum to its 2004 execution

protocol, and the Supreme Court held that Kentucky’s use of

the same three substances for executions did not violate the

Eighth Amendment, see id. at 44, 63; id. at 94 (Thomas, J.,

concurring in judgment). But by 2011, a “practical obstacle”

to using sodium thiopental had emerged, “as anti-death penalty

advocates pressured pharmaceutical companies to refuse to

supply the drug” for executions. Glossip v. Gross, 135 S. Ct.

2726, 2733 (2015).

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The Bureau then explored the possible use of other lethal

substances. Its personnel visited state execution sites and

evaluated their protocols. BOP also consulted with medical

experts, reviewed assessments of difficult executions, and

studied relevant judicial decisions. It considered several

options, including three-drug protocols using other

barbiturates, three-drug protocols using weaker sedatives, and

one-drug protocols.

After extensive study, the Bureau recommended use of a

single barbiturate—pentobarbital—to carry out federal

executions. It noted that many recent state executions had used

pentobarbital without difficulty and that courts repeatedly have

upheld the constitutionality of its use for executions. Further,

BOP had located a “viable source” for obtaining it. App. 15,

19.

For these reasons, the Bureau proposed a two-page

addendum to its main execution protocol. The United States

Marshals Service concurred in the proposal. On July 24, 2019,

the Attorney General approved the addendum and directed the

Bureau to adopt it. BOP did so the next day. This 2019

addendum makes pentobarbital the sole lethal substance to be

used in federal executions. The addendum also specifies

procedural details such as dosage, identification of appropriate

injection sites, and the number of backup syringes.

C

This appeal arises from several consolidated cases in

which twelve death-row inmates challenge the federal

execution protocol. The first of these cases was filed in 2005,

by three inmates who are not parties to this appeal. With the

government’s consent, the district court stayed their executions

pending the decision in Hill v. McDonough, 547 U.S. 573

(2006). The government subsequently requested that the case

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be stayed pending the decision in Baze. With no objection from

the inmates, the district court granted the request. In 2011, the

government announced that it lacked the substances necessary

to implement its execution protocol. From then through 2019,

the consolidated cases were stayed, and the government

submitted status reports explaining that its revision of the

protocol was ongoing. During that time, one of the plaintiffs

involved in this appeal—Alfred Bourgeois—filed a complaint

challenging the unrevised protocol. On the parties’ joint

motion, that lawsuit was stayed pending the revision.

On July 25, 2019, the Department of Justice informed the

district court that it had adopted a revised protocol providing

for the use of pentobarbital. That same day, DOJ set execution

dates for the four plaintiffs involved in this appeal: Daniel Lee,

Wesley Purkey, Dustin Honken, and Bourgeois. Each of them

moved for a preliminary injunction. Collectively, they claimed

that the 2019 protocol and addendum violate the FDPA, the

Administrative Procedure Act, the Federal Food, Drug, and

Cosmetic Act, the Controlled Substances Act, and the First,

Fifth, Sixth, and Eighth Amendments to the Constitution.

On November 20, 2019, the district court issued a

preliminary injunction prohibiting the government from

executing any of the four plaintiffs. In re Fed. Bureau of

Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019

WL 6691814 (D.D.C. Nov. 20, 2019). The court held that the

plaintiffs were likely to succeed on the merits of their claim

“that the 2019 Protocol exceeds statutory authority.” Id. at *7.

In particular, the court concluded that “the FDPA gives

decision-making authority regarding ‘implementation’” of

federal death sentences to states. Id. at *4. Thus, “insofar as

the 2019 Protocol creates a single implementation procedure it

is not authorized by the FDPA.” Id. at *7. The court reasoned

that the requirement to conduct executions “in the manner

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prescribed” by state law likely applies both to the selection of

an execution method, such as lethal injection, and to

“additional procedural details” such as the precise procedures

for “how the intravenous catheter is to be inserted.” Id. at *4,

*6. The court did not address whether the plaintiffs were likely

to succeed on their various other claims. The court further held

that the balance of equities and the public interest favored a

preliminary injunction. Id. at *7.

The government filed an interlocutory appeal under 28

U.S.C. § 1292(a)(1) and moved this Court immediately to stay

or vacate the injunction. Without addressing the merits, we

concluded that the motion did not meet “the stringent

requirements for a stay pending appeal.” Order at 1, Roane v.

Barr, No. 19-5322 (D.C. Cir. Dec. 2, 2019).

The government applied to the Supreme Court for an

emergency stay or vacatur of the preliminary injunction. The

Court denied the application but directed us to decide the

government’s appeal “with appropriate dispatch.” Barr v.

Roane, 140 S. Ct. 353 (2019 mem.). Three justices explained

their view that the government was “very likely” to succeed on

appeal. Id. (statement of Alito, J.).

We then ordered expedited briefing and argument on the

government’s appeal.

II

A preliminary injunction is “an extraordinary remedy that

may only be awarded upon a clear showing that the plaintiff is

entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008).

A party “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

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the public interest.” Id. at 20. On appeal, we review the district

court’s legal conclusions de novo and its weighing of the four

relevant factors for abuse of discretion. Abdullah v. Obama,

753 F.3d 193, 197–98 (D.C. Cir. 2014).

In reviewing a district court’s conclusion as to likelihood

of success, “[t]here are occasions … when it is appropriate to

proceed further and address the merits” directly. Munaf v.

Geren, 553 U.S. 674, 689–92 (2008); see also Wrenn v. District

of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). For several

reasons, we exercise our discretion to resolve the merits of

plaintiffs’ primary FDPA claim. This claim is a purely legal

one, which the parties have briefed thoroughly. At oral

argument, the parties agreed that we should decide it now.

Finally, assessing only the likelihood of success would invite

further litigation and delays on remand, which would hardly

constitute appropriate dispatch.

The plaintiffs press two distinct claims under the FDPA.

The first, on which the district court found they were likely to

succeed, involves the requirement to implement federal

executions in the manner provided by state law. As explained

in separate opinions that follow, Judge Katsas and Judge Rao

both reject that claim on the merits. Judge Katsas concludes

that the FDPA regulates only the top-line choice among

execution methods, such as the choice to use lethal injection

instead of hanging or electrocution. Judge Rao concludes that

the FDPA also requires the federal government to follow

execution procedures set forth in state statutes and regulations,

but not execution procedures set forth in less formal state

execution protocols. Judge Rao further concludes that the

federal protocol allows the federal government to depart from

its procedures as necessary to conform to state statutes and

regulations. On either of their views, the plaintiffs’ primary

FDPA claim is without merit. Accordingly, the preliminary

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injunction must be vacated, and judgment for the government

must be entered on this claim.

Alternatively, the plaintiffs contend that the federal

protocol and addendum reflect an unlawful transfer of authority

from the United States Marshals Service to the Federal Bureau

of Prisons. The district court did not address this claim, but the

plaintiffs press it as an alternative basis for affirmance, and

both parties ask us to resolve it. A court has discretion to

consider alternative grounds for affirmance resting on purely

legal arguments. See, e.g., United States v. Anthem, Inc., 855

F.3d 345, 349 (D.C. Cir. 2017). And as noted above, in

addressing likelihood of success on the merits, a court has

discretion to decide the claim. Two of us address the

alternative FDPA claim here. As explained in their separate

opinions, Judge Katsas would reject the claim on the merits,

and Judge Rao would hold that it was forfeited.

The government also asks us to decide whether its protocol

and addendum violate the notice-and-comment requirement of

the Administrative Procedure Act. The district court did not

reach that issue, and the plaintiffs urge us not to reach it. Judge

Katsas and Judge Rao resolve the notice-and-comment claim

because, on their view, it involves purely legal questions

intertwined with the merits of the FDPA issues at the center of

this appeal. On the merits, Judge Katsas and Judge Rao

conclude that the 2019 protocol and addendum are rules of

agency organization, procedure, or practice exempt from the

APA’s requirements for notice-and-comment rulemaking.

Judgment for the government must be entered on this claim.

Finally, the government asks us to reject the plaintiffs’

claims under the Food, Drug, and Cosmetic Act and the

Controlled Substances Act. We decline to do so because those

claims were neither addressed by the district court nor fully

11

briefed in this Court. We do share the government’s concern

about further delay from multiple rounds of litigation. But the

government did not seek immediate resolution of all the

plaintiffs’ claims, including the constitutional claims and the

claim that the protocol and addendum are arbitrary and

capricious under the APA. Thus, regardless of our disposition,

several claims would remain open on remand.

III

The Court vacates the preliminary injunction and remands

the case to the district court for further proceedings consistent

with this opinion. For the reasons given in his separate opinion,

Judge Tatel dissents.

So ordered.

KATSAS, Circuit Judge, concurring: The principal

question in this appeal is what constitutes a “manner” of

execution within the meaning of the Federal Death Penalty Act

(FDPA). The government says that “manner” here means

“method,” such that the FDPA regulates only the top-line

choice among execution methods such as hanging,

electrocution, or lethal injection. The plaintiffs, the district

court, and Judge Tatel say that “manner” encompasses any

state execution procedure, down to the level of how

intravenous catheters are inserted. Judge Rao agrees, at least if

the procedure is set forth in a state statute or regulation.

In my view, the government is correct. The FDPA’s text,

structure, and history show that “manner” refers only to the

method of execution. Moreover, the federal execution protocol

does not violate the FDPA by transferring authority from the

United States Marshals Service to the Federal Bureau of

Prisons. Furthermore, the protocol did not need to be

promulgated through notice-and-comment rulemaking. For

these reasons, I would vacate the preliminary injunction and

remand the case with instructions to enter judgment for the

government on the plaintiffs’ FDPA and notice-and-comment

claims. Finally, apart from the merits, I would vacate the

preliminary injunction because the balance of equities tips

decidedly in favor of the government.

I

A

The FDPA requires federal executions to be implemented

“in the manner prescribed by the law of the State in which the

sentence is imposed.” 18 U.S.C. § 3596(a). This appeal turns

on the level of detail at which that provision operates. Does it

cover the use of lethal injection rather than other execution

methods such as hanging or electrocution? The selection of a

lethal substance or substances? How much of the substance to

2

inject, and how many syringes to use for the injections? How

many intravenous lines to insert, and where to insert them?

Who should insert the lines? In modern execution practice,

governments address such issues systematically and in advance

of any execution. At the federal level, they are addressed by

the FDPA, Department of Justice regulations, the federal

execution protocol, and the protocol addendum. Likewise, at

the state level, they are addressed in comparable detail by state

statutes, regulations, and execution protocols.

The government contends that the “manner” of execution

regulated by the FDPA is simply the method or mode of

execution—the top-line choice among mechanisms of fatality

such as hanging, firing squad, electrocution, lethal gas, or lethal

injection. Under that interpretation, the federal protocol is

clearly consistent with the FDPA: Every state that authorizes

capital punishment uses lethal injection “as the exclusive or

primary means of implementing the death penalty.” Baze v.

Rees, 553 U.S. 35, 42 (2008) (plurality opinion). The federal

regulations likewise designate lethal injection as the means for

implementing capital punishment, 28 C.F.R. § 26.3(a)(4), and

the federal protocol establishes procedures for these injections.

The district court and the plaintiffs read the FDPA much

more broadly. According to the district court, the FDPA covers

not only the method of execution but also “additional

procedural details such as the substance to be injected or the

safeguards taken during the injection.” In re Fed. Bureau of

Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019

WL 6691814, at *4 (D.D.C. Nov. 20, 2019). These “additional

procedural details” include even provisions on “how the

intravenous catheter is to be inserted.” See id. at *6. As an

example, the district court cited state protocol provisions

requiring the catheter to be inserted by “medically trained”

personnel, id. at *6 n.6, whereas the federal protocol requires

3

the method of insertion to be determined based on “a

recommendation from qualified personnel” or “the training and

experience of personnel” on the execution team, App. 75. The

plaintiffs largely embrace the district court’s position, though

they seek to carve out exceptions for de minimis deviations

from state procedures, as well as for procedures insufficiently

related to implementation of the death sentence.

1

In my view, the government is correct. All indicators of the

FDPA’s meaning—statutory text, history, context, and

design—point to the same conclusion. 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.

The district court began its analysis quite properly, by

addressing the plain meaning of the critical word “manner.”

The court recognized that the government’s position would be

correct if the FDPA had addressed the “method” rather than the

“manner” of execution, because the word “method” bears

“particular meaning in the death penalty context”—i.e., it

denotes the top-line choice among mechanisms of death such

as hanging, electrocution, or lethal injection. In re Execution

Protocol Cases, 2019 WL 6691814, at *4. But, the district

court reasoned, “manner” is broader than “method” because

one dictionary defines “manner” as “a mode of procedure or

way of acting.” Id. (quotation marks omitted). This analysis

overlooks other definitions, as well as the need to consider

statutory history and context, see, e.g., Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 668–69 (2007);

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132–33 (2000). Other dictionaries indicate that “manner” is

4

synonymous with “method” as well as “mode.” See, e.g.,

Manner, Black’s Law Dictionary (6th ed. 1990) (“A way,

mode, method of doing anything, or mode of proceeding in any

case or situation.”). And history strongly indicates that, in the

specific context of capital punishment, all three terms refer

only to the top-line choice. This is reflected in practices and

usages throughout American history.

First, consider hanging. In 1790, the First Congress

enacted a bill providing that “the manner of inflicting the

punishment of death, shall be by hanging the person convicted

by the neck until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat.

112, 119. Congress thus described “hanging” as “the” unitary

“manner” of imposing capital punishment, without undertaking

to specify subsidiary details such as the length of the rope, how

it would be fastened around the neck, or the training of the

hangman. This approach followed the law of England, where

one common form of capital punishment was to be “hanged by

the neck till dead.” 4 W. Blackstone, Commentaries on the

Laws of England 370 (1769). Blackstone further stated that a

“sheriff cannot alter the manner of the execution by

substituting one death for another,” for “even the king cannot

change the punishment of the law, by altering the hanging or

burning into beheading.” Id. at 397–98 (emphasis added). This

makes clear that hanging itself was considered a “manner” of

execution, as distinct from burning or beheading. But no

evidence suggests that the sheriff (or the king) could not

improvise “procedural details” such as the length of the rope.

In using “manner” to mean “method,” the First Congress

followed common historical usage. See, e.g., 1 J. Ash, The New

and Complete Dictionary of the English Language (2d ed.

1795) (defining “manner” as “[a] form, a method”); 2

S. Johnson, A Dictionary of the English Language (1755)

(“Form; method.”). The use of hanging as “the manner” of

5

carrying out federal executions remained unchanged from 1790

until 1937. During that time, no federal officials undertook to

regulate its “procedural details.” And during much of that time,

hanging “was virtually never questioned,” even though a rope

too long could produce a beheading, while a rope too short

could produce a prolonged death by suffocation. Bucklew v.

Precythe, 139 S. Ct. 1112, 1124 (2019) (quotation marks

omitted).1

Consider also practices and usages with respect to the firing

squad, another common method of execution into the 1800s.

In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court

held that the use of a firing squad for executions does not

violate the Eighth Amendment. The statute at issue provided

for “death by being shot, hung, or beheaded,” and the court

imposed a sentence requiring that the defendant be “shot until

… dead.” Id. at 131–32 (quotation marks omitted). The

legislature did not undertake to regulate subsidiary “procedural

details” such as, in the case of a firing squad, the kind or

number of guns, the type of ammunition, where the shooters

would aim, or how far away they would stand. Nor did the

sentencing court specify any of those details. And although

such details might have affected the likelihood of unnecessary

suffering during the execution, the Court never suggested that

the Eighth Amendment claim turned on any of them. To the

1

Judge Rao seeks to downplay the Crimes Act of 1790 as merely

reflecting usage “on a single occasion.” Post, at 19. But that statute

governed “the manner” of conducting federal executions for 147

years, and it is a direct predecessor of the FDPA provision at issue

here. It is obviously central to the question presented. Judge Rao

notes that section 13 of the Crimes Act of 1790 set forth different,

more detailed “manners” of committing the offense of maiming. Id.

at 14. True enough, but the FDPA traces back to section 33 of the

Act, which, in the specific context of executions, used “manner” to

refer only to the top-line choice of method.

6

contrary, it surveyed various rules and customs on whether

death sentences would be carried out “by shooting or hanging.”

See id. at 132–36. Moreover, it described the governing statute

as addressing “the manner” of execution, id. at 136, and it used

the words “manner,” “method,” and “mode” interchangeably,

see, e.g., id. at 134 (“shooting or hanging is the method”); id.

at 137 (sentence “let him be hanged by the neck” addresses “the

mode of execution” (quotation marks omitted)).

The history of electrocution follows much the same pattern.

Introduced in 1888, it soon became “the predominant mode of

execution for nearly a century,” Baze, 553 U.S. at 42 (plurality

opinion), and the Supreme Court promptly upheld it as

constitutional, In re Kemmler, 136 U.S. 436 (1890). As

Kemmler recounted, electrocution came to replace hanging

because it was thought to be a more humane “manner” or

“method” or “mode” of execution—terms the Court again used

interchangeably. See id. at 442–47. Moreover, the underlying

legal and policy debates were framed as a unitary choice

between hanging and electrocution, and the reformers never

undertook to prescribe subsidiary “procedural details” such as

how strong an electric current would be used, where electrodes

would be attached, how the electric chair would be tested, or

who would train the electrocutioner. See id. at 444.2

2

Judge Rao highlights the Court’s statement that electrocution was

painless when performed “in the manner contemplated by the [New

York] statute.” Post, at 15; see Kemmler, 136 U.S. at 443–44. Here

is the key statutory provision, quoted in its entirety: “The

punishment of death must, in every case, be inflicted by causing to

pass through the body of the convict a current of electricity of

sufficient intensity to cause death, and the application of such current

must be continued until such convict is dead.” Ch. 489, Laws of the

State of New York § 505 (June 4, 1888), quoted in Kemmler, 136

7

In sum, here is what a reasonably informed English speaker

would have known as of 1937: For over 140 years, Congress

had designated hanging as “the manner of inflicting the

punishment of death” for federal capital sentences. English law

likewise had described “hanging” as a permissible “manner” of

executing a death sentence. “Manner” and “method” often

were used interchangeably, including by the Supreme Court in

assessing alternative execution methods such as hanging, firing

squad, or electrocution. And nobody focused on subsidiary

procedural details in the legal or policy debates over these

various execution methods.

The 1937 Act did not disturb this settled understanding

about the “manner” of executing capital punishment. To the

contrary, although Congress changed the governing rule, it

preserved the underlying semantic understanding. Whereas the

Crimes Act of 1790 had identified hanging as “the manner of

inflicting the punishment of death,” 1 Stat. at 119, the 1937 Act

provided a different rule for “[t]he manner of inflicting the

punishment of death”—i.e., use “the manner prescribed by the

laws of the State within which the sentence is imposed.” An

Act To Provide for the Manner of Inflicting the Punishment of

Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress’s

decision to carry forward the legally operative text—regarding

“the manner of inflicting the punishment of death”—also

carried forward the prevailing understanding about what

constituted a “manner” of execution. The reason for this is the

settled canon of construction, framed by Justice Frankfurter

U.S. at 444–45. The statute thus required nothing more than

electrocution. Judge Rao briefly notes other statutory details

governing the timing, location, and witnesses of the execution. Post,

at 16 n.9. They would have had no conceivable bearing on the

painlessness of electrocution, and they were irrelevant to the one

“manner” question that the Court framed, discussed, and decided—

the unitary choice between electrocution and hanging.

8

and routinely applied since, that “if a word is obviously

transplanted from another legal source, whether the common

law or other legislation, it brings the old soil with it.”

Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L. Rev. 527, 537 (1947). See, e.g., Taggart v.

Lorenzen, 139 S. Ct. 1795, 1801 (2019); Stokeling v. United

States, 139 S. Ct. 544, 551 (2019); Hall v. Hall, 138 S. Ct.

1118, 1128 (2018).3

3

Judge Rao seeks to downplay this canon in contending that

Congress’s usage in 1790 ought not matter much. She says that to

maintain consistent usage of “manner” in successor statutes is to

confuse the word’s abstract “sense,” which must remain fixed, with

its concrete “reference,” which can evolve. Post, at 19–20. She

bases this view on a law-review article that seeks to link originalism

to the theory of proper names espoused by the philosopher Gottlob

Frege, in pursuit of a “middle ground” between the interpretive

approaches of Justice Scalia and Justice Stevens. Green, Originalism

and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 558

(2006). Put aside the fact that leading philosophers hotly debate

whether proper names even have a “sense” apart from their

“reference.” See, e.g., S. Kripke, Naming and Necessity 22–70

(1980). Put aside the fact that no Supreme Court Justice or opinion

has adopted Professor Green’s account of how legal text is “partially

living and partially dead.” Green, supra, at 559. Put aside the fact

that, in my view, Justice Scalia was right that legal text has “a fixed

meaning, which does not change.” A. Scalia, Scalia Speaks:

Reflections on Law, Faith, and Life Well Lived 188 (E. Whelan &

C. Scalia eds., 2017). Even on Professor Green’s account, the

reference to a top-line execution method in the Crimes Act of 1790

has significant interpretive weight in construing that statute (and its

successors) over time. See Green, supra, at 560 (“While the framers

are fallible regarding the reference of their [legal] language, they are

still extremely useful guides.”). Thus, even accepting Professor

Green’s theory, Judge Rao errs by failing to give substantial weight

to how Congress used “manner” in the Crimes Act of 1790.

9

Likewise, the FDPA carried forward the relevant language

and “old soil” from the 1937 Act. In fact, the statutes are

virtually identical in all relevant respects. Both statutes provide

for implementation of federal death sentences in the “manner”

provided by state law. Compare 18 U.S.C. § 3596(a) (United

States marshal “shall supervise implementation of the sentence

in the manner prescribed by the law of the State in which the

sentence is imposed”), with 50 Stat. at 304 (“The manner of

inflicting the punishment of death shall be the manner

prescribed by the laws of the State within which the sentence

is imposed.”). Both statutes permit, but do not require, the use

of state facilities for federal executions. Compare 18 U.S.C.

§ 3597(a) (“A United States marshal charged with supervising

the implementation of a sentence of death may use appropriate

State or local facilities for the purpose, may use the services of

an appropriate State or local official or of a person such an

official employs for the purpose, and shall pay the costs thereof

in an amount approved by the Attorney General.”), with 50

Stat. at 304 (“The United States marshal charged with

execution of the sentence may use available State or local

facilities and the services of an appropriate State or local

official or employ some other person for such purpose, and pay

the cost thereof in an amount approved by the Attorney

General.”). And for convictions in states with no death penalty,

both statutes require conformity to the “manner” of execution

in some other state designated by the sentencing judge.

Compare 18 U.S.C. § 3596(a) (“If the law of the State does not

provide for implementation of a sentence of death, the court

shall designate another State, the law of which does provide for

the implementation of a sentence of death, and the sentence

shall be implemented in the latter State in the manner

prescribed by such law.”), with 50 Stat. at 304 (“If the laws of

the State within which sentence is imposed make no provision

for the infliction of the penalty of death, then the court shall

designate some other State in which such sentence shall be

10

executed in the manner prescribed by the laws thereof.”). This

wholesale copying surely indicates the preservation—not

abrogation—of previously settled understandings.

Nothing in 1994 usage compels a different understanding.

To the contrary, at that time, many state statutes continued to

describe the “manner” of execution as a top-line choice among

methods such as electrocution, lethal gas, or lethal injection.

See, e.g., Cal. Penal Code § 3604(a), (d) (1994) (“manner of

execution” is either by “lethal gas” or “intravenous injection of

a substance or substances in a lethal quantity sufficient to cause

death”); La. Rev. Stat. Ann. § 15:569 (1994) (“manner of

execution” is either “electrocution,” defined as “causing to pass

through the body of the person convicted a current of electricity

of sufficient intensity to cause death,” or “lethal injection,”

defined as “the intravenous injection of a substance or

substances in a lethal quantity into the body of a person

convicted”); Mo. Rev. Stat. § 546.720 (1994) (“The manner of

inflicting the punishment of death shall be by the

administration of lethal gas or by means of the administration

of lethal injection.”); Vt. Stat. Ann. tit. 13, § 7106 (1994)

(“Manner of execution” is “causing to pass through the body of

the convict a current of electricity of sufficient intensity to

cause death”). A handful of state statutes went one small step

further, by using “manner” to refer to types of lethal

substances. But none of them required the use of any particular

substance, much less even more granular details. See Colo.

Rev. Stat. § 16-11-401 (1994) (“The manner of inflicting the

punishment of death shall be by the administration of a lethal

injection,” defined as “continuous intravenous injection of a

lethal quantity of sodium thiopental or other equally or more

effective substance sufficient to cause death.”); Md. Code

Ann., Crimes and Punishments § 71(a) (1994) (“The manner of

inflicting the punishment of death shall be the continuous

intravenous administration of a lethal quantity of an ultrashort-

11

acting barbiturate or other similar drug in combination with a

chemical paralytic agent.”);4 Miss. Code Ann. § 99-19-51

(1994) (similar to Maryland, but with alternative provision that

“the manner of inflicting the punishment of death shall be by

lethal gas”); Okla. Stat. tit. 22, § 1014 (1994) (“Manner of

inflicting punishment of death” is either “continuous,

intravenous administration of a lethal quantity of an ultrashort-

acting barbiturate in combination with a chemical paralytic

agent,” or “electrocution” or “firing squad”).5

As of 1994, Supreme Court decisions reflected similar

understandings. Between 1937 and 1994, the Court became

much more active in policing capital punishment. But the

Court never retreated from its holdings that the firing squad and

electrocution are constitutional methods of execution.

Likewise, the Court had not yet approved granular, post-habeas

challenges to the specific details of an execution. To the

contrary, in Gomez v. United States District Court, 503 U.S.

653 (1992) (per curiam), the Court summarily rejected a claim

that “execution by lethal gas” violated the Eighth Amendment,

and it did so because the claim had not been properly channeled

through the federal habeas statute. Id. at 653–54. The Court’s

first, tentative approval of claims challenging procedural

details such as the method of “venous access” did not come

until a decade after the FDPA was enacted, Nelson v.

4

Three other states used a similar formulation. See N.H. Rev. Stat.

Ann. § 630:5, XIII (1994); N.M. Stat. § 31-14-11 (1994); S.D.

Codified Laws § 23A-27A-32 (1994).

5

Despite this occasional, slightly broader usage of “manner” in state

statutes, the traditional usage remained common, and no state statute

even remotely addressed items such as the details of catheter

insertion. In any event, the obvious model for the FDPA was the

1937 federal statute, so it is by far the most important data point.

12

Campbell, 541 U.S. 637 (2004), and its wholesale approval of

post-habeas challenges to the details of lethal-injection

protocols did not come until even later, Hill v. McDonough,

547 U.S. 573 (2006).6

In sum, practices and usages in 1994 mirrored those in

1937: Inquiries into the manner or method of execution

focused on the choice between say, lethal gas or lethal

injection—not the choice of specific lethal agents or

procedures for releasing the gas or inserting the catheter. In

common understanding, what mattered was the top-line choice.

Within the FDPA itself, statutory context reinforces this

understanding. The FDPA states that the marshal responsible

for supervising a federal execution “may use appropriate State

or local facilities” and “may use the services of an appropriate

State or local official.” 18 U.S.C. § 3597(a). These grants of

authority would be unnecessary if section 3596(a), the

“manner” provision directly at issue, independently required

the use of all state execution procedures. After all, states

conduct executions in designated state facilities. See, e.g., Ind.

Code § 35-38-6-5 (2019) (“inside the walls of the state

prison”); Mo. Rev. Stat. § 546.720 (2019) (“within the walls of

a correctional facility of the department of corrections”); Tex.

Dep’t of Crim. Justice, Execution Procedure § III.B (2019)

(Huntsville Unit). Thus, if section 3596 required use of state

facilities, section 3597 accomplished nothing by permitting

their use. Of course, interpretations that create surplusage are

disfavored. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31

6

Judge Rao cites a handful of judicial opinions loosely using the

word “manner” to refer to subsidiary execution details. Post, at 4–5

& n.2. Three of them post-date Nelson and Hill—the first Supreme

Court decisions to suggest that such details might have any legal

relevance. Two others are either lower-court decisions or dissents.

None involves a statutory usage of “manner.”

13

(2001). The plaintiffs respond that section 3597 creates a

“limited exception to Section 3596, permitting (but not

requiring) the Government to use its own facilities.”

Appellees’ Br. 30 n.6. But that makes section 3597 even

stranger, for providing that the federal government “may” use

“State” facilities would be a remarkably clumsy way of

permitting the federal government to use federal facilities.

Finally, consider statutory design. In “ascertaining the

plain meaning of the statute, the court must look to the

particular statutory language at issue, as well as the language

and design of the statute as a whole.” K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). Here, the plaintiffs’

interpretation of “manner” would frustrate a principal objective

of the Federal Death Penalty Act—to provide for an

administrable scheme of capital punishment. As Justice Alito

explained, the plaintiffs’ interpretation “would require the BOP

to follow procedures that have been attacked as less safe than

the ones the BOP has devised (after extensive study); it would

demand that the BOP pointlessly copy minor details of a State’s

protocol; and it could well make it impossible to carry out

executions of prisoners sentenced in some States.” Barr v.

Roane, 140 S. Ct. 353, 353 (2019) (statement of Alito, J.). The

plaintiffs dismiss these points as mere policy arguments, but

they are more than that.

The FDPA was enacted as Title VI of the Violent Crime

Control and Law Enforcement Act of 1994. See Pub. L. No.

103-322, § 60001, 108 Stat. 1796, 1959. These statutes sought

to ensure a workable and expanded system of capital

punishment. The larger statute created more than two dozen

new capital offenses. See DOJ, Criminal Resource Manual

§ 69 (2020). And the FDPA established procedures to ensure

the fair administration of capital punishment—by specifying

aggravating circumstances that a jury must find in order to

14

render the defendant eligible for the death penalty, 18 U.S.C.

§ 3592(b)–(d); by allowing a jury to consider any mitigating

circumstances, id. § 3592(a); and by requiring separate guilt

and sentencing determinations, id. § 3593. These provisions

cured potential Eighth Amendment problems, see, e.g.,

Maynard v. Cartwright, 486 U.S. 356, 361–63 (1988)

(aggravating factors); Eddings v. Oklahoma, 455 U.S. 104,

110–12 (1982) (mitigating factors); Gregg v. Georgia, 428

U.S. 153, 190–92 (1976) (plurality opinion) (separate

sentencing hearing), to ensure that the scheme would be usable.

Finally, the FDPA contains one provision specifically designed

to prevent the choices of an individual state from effectively

nullifying the federal death penalty. It provides: “If the law of

the State does not provide for implementation of a sentence of

death, the court shall designate another State, the law of which

does provide for the implementation of a sentence of death ….”

18 U.S.C. § 3596(a).

The plaintiffs do not dispute that this scheme would be

upset if individual states could effectively obstruct the federal

death penalty. Yet their interpretation would make such

obstruction likely. For example, states could block federal

death sentences by refusing to disclose their full execution

protocols. Some might do so because of moratoria on the use

of capital punishment, like those ordered by the governors of

California and Pennsylvania.7 Other states simply may wish

not to assist in the enforcement of federal law. See, e.g., Printz

v. United States, 521 U.S. 898, 923 (1997). And state statutes

may prohibit disclosure of state execution protocols. See, e.g.,

Ark. Code Ann. § 5-4-617(i)(1) (2019). The plaintiffs’ only

7

See Calif. Exec. Order No. N-09-19 (Mar. 13, 2019); Governor

Tom Wolf Announces a Moratorium on the Death Penalty in

Pennsylvania, Office of the Pa. Gov. (Feb. 13, 2015), https://www.

governor.pa.gov/newsroom/moratorium-on-the-death-penalty-in-

pennsylvania.

15

response is that the federal government obtained several state

protocols in developing its own 2019 protocol. Yet while about

thirty states authorize capital punishment, the federal

government was able to obtain only five actual state protocols,

plus a “summary” of the others provided by a private advocacy

group. App. 10.

Adherence to the minutiae of state execution protocols is

not only pointless, but practically impossible. State protocols

are as detailed as the federal one—from Arkansas’s color-

coding to ensure that three lethal agents are properly separated

among nine syringes, Arkansas Lethal Injection Procedure,

Attachment C, § III.5.a (Aug. 6, 2015), to Indiana’s seventeen-

step “procedure for venous cut down,” Ind. Dep’t of Corr.,

Facility Directive ISP 06-26: Execution of Death Sentence,

Appendix A (Jan. 22, 2014). Conducting a single execution

under the federal protocol requires extensive preparation by a

trained execution team of over 40 individuals, as well as further

support from 250 more individuals at the federal execution

facility in Terre Haute, Indiana. App. 93–94. Simultaneously

managing the same logistical challenges under a few dozen

state protocols—all different—would be all but impossible.

The plaintiffs offer two limiting principles to mitigate this

problem, but neither would work. First, they suggest a de

minimis exception to the otherwise unyielding requirement to

follow state procedures. But that would invite endless

litigation over which requirements are de minimis. Must the

federal government follow state provisions regarding the

number of backup syringes? Compare App. 75 (two sets under

federal protocol), with Mo. Dep’t of Corr., Preparation and

Administration of Chemicals for Lethal Injection §§ B, E (one

set under Missouri protocol). The type of catheters used? The

selection of execution personnel? The training of those

personnel? The same problem inheres in the plaintiffs’ related

16

suggestion that some protocol details might not relate

sufficiently to “implementation” of the sentence. Would that

exception cover rules for how long the inmate must remain

strapped to the gurney? App. 40 (under federal protocol,

between 30 minutes and three hours). Rules about whom the

inmate may have present? Rules about the inmate’s final meal

or final statement? Rules about opening and closing the

execution chamber’s drapes? All such questions would be

raised at the last minute—likely producing stays, temporary

restraining orders, preliminary injunctions, and interlocutory

appeals like this one, which will delay lawful executions for

months if not years. In sum, the plaintiffs’ interpretation would

make the federal death penalty virtually un-administrable.8

2

The plaintiffs’ further counterarguments are unavailing.

First, the plaintiffs highlight the statutory text immediately

surrounding “manner”—the language stating that a United

States marshal “shall supervise implementation” of a death

sentence in the manner prescribed by state law. 18 U.S.C.

§ 3596(a). The plaintiffs contend that “implementation” of a

death sentence refers to the entire process for carrying it out,

not just the use of a top-line execution method. But the only

8

Judge Rao correctly notes that bargains reflected in statutory text

must be enforced as against generalized appeals to statutory purpose.

Post, at 22–24. But statutory purpose, as reflected in “the language

and design of the statute as a whole,” can help determine textual

meaning or resolve textual ambiguity. See, e.g., K Mart, 486 U.S. at

291. Judge Rao does not dispute that one significant purpose of the

FDPA is to ensure an administrable system of capital punishment,

and her own analysis thus properly considers whether the plaintiffs’

proposed construction would raise “practical, and perhaps

insurmountable, difficulties to the implementation of federal death

sentences.” Post, at 12–13.

17

implementing detail that must follow state law is the “manner”

of carrying out the execution—which begs the question of what

that term does and does not encompass.

The plaintiffs next invoke a different FDPA provision

defining aggravating circumstances to include cases where

“[t]he defendant committed the offense in an especially

heinous, cruel, or depraved manner in that it involved torture

or serious physical abuse to the victim.” 18 U.S.C.

§ 3592(c)(6). They reason that this FDPA provision uses

“manner” broadly, so other FDPA provisions must do likewise.

But the presumption of consistent usage “readily yields to

context, especially when” the term at issue “takes on distinct

characters in distinct statutory provisions.” Return Mail, Inc.

v. USPS, 139 S. Ct. 1853, 1863 (2019) (quotation marks

omitted). That qualification perfectly fits this case, for each

FDPA provision has its own history. As explained above, the

provision regarding the “manner” of executing a death sentence

traces back to the Crimes Act of 1790. In contrast, section

3592(c)(6) was copied nearly verbatim from the Anti-Drug

Abuse Act of 1988, see Pub. L. No. 100-690, § 7001, 102 Stat.

4181, 4392, which in turn responded to a Supreme Court

decision allowing consideration of a “heinous, atrocious, or

cruel” aggravating factor only as narrowed to require “torture

or serious physical abuse,” Cartwright, 486 U.S. at 363–65

(quotation marks omitted). Because section 3592(c)(6) carries

its own “old soil,” the presumption of consistent usage must

yield to context.

Finally, the plaintiffs stress that between 1995 and 2008,

Congress failed to enact some nine bills that would have

allowed federal capital punishment to be implemented in a

manner independent of state law. But “failed legislative

proposals are a particularly dangerous ground on which to rest

an interpretation of a prior statute.” Cent. Bank of Denver, N.A.

18

v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187

(1994) (quotation marks omitted). The plaintiffs highlight DOJ

statements that the FDPA imperiled its 1993 regulation, which

establishes lethal injection as the sole method for federal

executions. But those statements were made when some states

still provided for electrocution “as the sole method of

execution.” See Baze, 553 U.S. at 42–43 n.1 (plurality

opinion). In 2009, Nebraska became the last death-penalty

state to authorize lethal injection as a permissible execution

method. See Act of May 28, 2009, L.B. 36, 2009 Neb. Laws

52. After that, attempts to amend the FDPA ceased, as did

DOJ’s support for them. So, DOJ’s current interpretation of

the FDPA to encompass methods of execution, but not

subsidiary procedural details, has been consistent.

3

Judge Rao takes a different approach advocated by none of

the parties. In her view, the word “manner” is flexible enough,

considered in isolation, to refer either to the top-line method of

execution or to the full panoply of execution procedures. Post,

at 1–6. So far, so good. She then reasons that, by requiring

federal executions to be conducted “in the manner prescribed

by the law of the State in which the sentence is imposed,”

Congress specified “the level of generality” for interpreting the

word “manner.” Id. at 1. She thus concludes that Congress

used “manner” in its broad sense, so as to include all execution

procedures—no matter how picayune—that are “prescribed by

the law of the State.” Id. at 22. For Judge Rao, as it turns out,

the key to this case is not the word “manner,” but the phrase

“prescribed by the law of the State.”

This account 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

19

as an adjective and modifies the noun “manner.” By using the

adjective to construe the noun broadly, Judge Rao overlooks

“the ordinary understanding of how adjectives work.”

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,

368 (2018). “Adjectives modify nouns—they pick out a subset

of a category that possesses a certain quality.” Id. They

ordinarily do not expand the meaning of the noun they modify.

Thus, “critical habitat” must first be “habitat.” See id.

Likewise, “full costs” must first be “costs.” See Rimini Street,

Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 878–79 (2019). And

here, whatever is “prescribed by the law of the State” must first

be a “manner” of execution. In short, the limiting adjective

provides no basis for interpreting the noun broadly.

To be sure, adjectival phrases can clarify the meaning of

ambiguous nouns by ruling out certain possibilities through

context. For example, in the abstract, the noun “check” might

refer to “an inspection, an impeding of someone else’s

progress, a restaurant bill, a commercial instrument, a patterned

square on a fabric, or a distinctive mark-off.” A. Scalia &

B. Garner, Reading Law: The Interpretation of Legal Texts 70

(2012). But when “check” is combined with the adjectival

phrase “made payable to the IRS,” we know that the noun

refers only to a commercial instrument. In this example, the

phrase “made payable to the IRS” clarifies the meaning of

“check” because it is consistent with only one possible

understanding of it.

The FDPA does not work like that. Divorced from its

statutory history, the noun “manner” could mean either the top-

line execution method or all state execution procedures. But

the adjectival phrase “prescribed by the law of the State”

cannot resolve this ambiguity, because it is perfectly consistent

with both meanings. On the one hand, states use their laws to

prescribe the top-line method of execution. On the other hand,

20

they also use their laws to specify additional procedural details.

So the adjectival phrase “prescribed by the law of the State”

tells us nothing about the meaning of the noun “manner”—and

certainly does not undermine a historical understanding of that

term dating back to our country’s founding.9

Judge Rao stresses the assertedly limited scope of her

reading of the FDPA. She interprets the phrase “prescribed by

the law of the State” to mean execution procedures set forth

only in state “statutes and regulations carrying the force of

law,” but not in less formal state execution protocols. Post, at

6. And that interpretation, she concludes, “mitigates many of

the concerns raised by the district court’s broad reading” of the

FDPA. Id. at 26. All of this is a good reason for rejecting an

interpretation of the FDPA that encompasses procedural details

set forth only in state execution protocols. But it is not a good

reason for rejecting the historical understanding of “manner,”

which creates no practical concerns about administrability.

Judge Rao also understates the practical difficulties with

her proposed interpretation. For one thing, state statutes and

regulations do contain many granular details. Consider just the

four state death-penalty statutes before us in this case. The

Arkansas statute requires that catheters be “sterilized and

prepared in a manner that is safe.” Ark. Code Ann. § 5-4-

617(f) (2019). The Indiana statute excludes lawyers from the

persons who “may be present at the execution.” Ind. Code

9

To make the adjectival reference to state law narrow the noun

“manner,” Judge Rao must retreat to the position that “manner,”

construed without reference to the adjectival phrase, “is broad

enough to encompass execution procedures at every level of

generality.” Post, at 9 n.5. As explained above, that position cannot

be reconciled with historical usages and understandings tracing back

to the First Congress.

21

§ 35-38-6-6(a) (2019). The Missouri statute requires the

execution chamber to be “suitable and efficient.” Mo. Rev.

Stat. § 546.720.1 (2019). And the Texas statute prohibits the

infliction of any “unnecessary pain” on the condemned

prisoner. Tex. Code Crim. Proc. Ann. art. 43.24 (2019).

Assimilating the various state statutes and regulations will

present significant logistical challenges. And, of course, these

various provisions will provide ample opportunity for last-

minute stay litigation.

Moreover, the line between “formal” regulations “carrying

the force of law” and “informal policy or protocol,” post, at 6–

8, will be another fertile source of litigation. At the state level,

how “formal” is formal enough? Even at the federal level, the

question of which regulations have the force of law has been

“the source of much scholarly and judicial debate.” Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). Yet now, courts

will be forced to confront every variation of that question

arising out of the administrative law of some thirty states.

What if a state administrative procedure act permits rulemaking

through processes less formal than notice-and-comment?

What if a warden may change protocol procedures unilaterally,

but only under limited circumstances? What if a state court

moves the goalposts with an unexpected interpretation of the

governing rules? Litigation over such matters will foreclose

any realistic possibility for the prompt execution of federal

death sentences.10

10

To be clear, I agree with Judge Rao that the FDPA’s reference to

“law of the State” covers only state statutes and binding regulations.

Post, at 6–8. I also agree with Judge Rao that because the state

protocols in this case “do not appear to have the binding force of law,

they cannot be deemed part of the ‘law of the State.’” Id. at 28 n.15.

Accordingly, those propositions constitute holdings of this Court.

22

* * * *

For all these reasons, I would hold that the FDPA requires

the federal government to follow state law regarding only the

method of execution and does not regulate the various

subsidiary details cited by the plaintiffs and the district court.

On that interpretation, the plaintiffs’ primary FDPA claim is

without merit.

B

In the alternative, the plaintiffs contend that the 2019

protocol violates the FDPA by impermissibly shifting authority

from the United States Marshals Service to the Federal Bureau

of Prisons. The plaintiffs rest this argument on FDPA

provisions requiring a United States marshal to “supervise

implementation” of the death sentence. 18 U.S.C. § 3596(a);

see also id. § 3597(a). The district court did not reach this

argument, but the parties have briefed it and the plaintiffs urge

it as an alternative ground for affirmance.

The execution protocol does not strip the Marshals Service

of the power to supervise executions. To the contrary, it

requires a “United States Marshal designated by the Director

of the USMS” to oversee the execution and to direct which

other personnel may be present at it. App. 30. The “execution

process,” which starts at least thirty minutes before the actual

execution, cannot begin without the marshal’s approval. App.

40. The same is true for the execution itself. App. 44, 68.

Individuals administering the lethal agents are “acting at the

See Marks v. United States, 430 U.S. 188, 193–94 (1977). But I do

not share Judge Rao’s optimism that a “law of the State” limitation,

imposed on an otherwise unbounded interpretation of “manner,” will

avoid “practical, and perhaps insurmountable, difficulties to the

implementation of federal death sentences.” Post, at 12–13.

23

direction of the United States Marshal.” App. 74. And once

the execution is complete, the marshal must notify the court

that its sentence has been carried out. App. 44–45. The

protocol thus tasks the USMS with supervising executions.

In any event, federal law vests all powers of DOJ

components in the Attorney General and permits him to

reassign powers among the components. “All functions of

other officers of the Department of Justice and all functions of

agencies and employees of the Department of Justice are vested

in the Attorney General.” 28 U.S.C. § 509. The Marshals

Service is “a bureau within the Department of Justice under the

authority and direction of the Attorney General.” Id. § 561(a).

Its powers are thus ultimately vested in the Attorney General.

Moreover, the Attorney General may delegate his powers to

“any other officer, employee, or agency of the Department of

Justice.” Id. § 510. Together, these provisions permit the

Attorney General to reassign duties from the Marshals Service

to the Bureau of Prisons.

The plaintiffs invoke United States v. Giordano, 416 U.S.

505 (1974). There, the Supreme Court held that a statute

“expressly” limiting the Attorney General’s power to delegate

wiretap authority to a handful of enumerated officials qualified

his general authority to reassign DOJ functions. Id. at 514. But

the FDPA contains no such language expressly prohibiting the

Attorney General from deciding or delegating matters relating

to executions. For these reasons, the protocol allocates duties

consistent with the FDPA, so the plaintiffs’ alternative FDPA

argument is also without merit.11

11

Judge Rao contends that the plaintiffs forfeited this argument by

not raising it below. Post, at 32. But plaintiff Lee, in support of his

motion for a preliminary injunction, identified eight provisions in the

24

C

The federal protocol is both a procedural rule and a general

policy statement exempted from the notice-and-comment

requirements of the Administrative Procedure Act. See 5

U.S.C. § 553(b)(3)(A).

“The critical feature of a procedural rule is that it covers

agency actions that do not themselves alter the rights or

interests of parties.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d

243, 250 (D.C. Cir. 2014) (quotation marks omitted). The

federal protocol does not alter the plaintiffs’ rights or interests,

which were all but extinguished when juries convicted and

sentenced them to death. Moreover, pre-existing law

establishes lethal injection as the method of execution, 28

C.F.R. § 26.3(a)(4), and the protocol simply sets forth

procedures for carrying out the injections.

The execution protocol is also a general statement of

agency policy. In defining this category, “[o]ne line of analysis

execution protocol that he says impermissibly granted authority to

the Bureau of Prisons. See Lee Mot. for Prelim. Inj., In re Execution

Protocol Cases, No. 1:19-mc-145 (D.D.C.), ECF Doc. 13-1, at 10–

12. Lee argued that each of the provisions is “[c]ontrary to Section

3596 of [the] FDPA, which only refers to the U.S. Marshal

supervising implementation.” Id. Moreover, the government did not

argue for a forfeiture, and thus “forfeited [the] forfeiture argument

here.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014). And for

several reasons, it would make good sense for us to excuse any

forfeiture: The plaintiffs’ alternative FDPA claim turns on purely

legal questions, it was fully briefed on appeal, both parties ask us to

decide it, the Supreme Court has asked us to proceed with

appropriate dispatch, and this claim, even if not pursued in the

preliminary-injunction motions, would remain live on remand.

25

considers the effects of an agency’s action, inquiring whether

the agency has (1) impose[d] any rights and obligations, or (2)

genuinely [left] the agency and its decisionmakers free to

exercise discretion.” Clarian Health West, LLC v. Hargan, 878

F.3d 346, 357 (D.C. Cir. 2017) (quotation marks omitted). A

second line “looks to the agency’s expressed intentions,

including consideration of three factors: (1) the [a]gency’s own

characterization of the action; (2) whether the action was

published in the Federal Register or the Code of Federal

Regulations; and (3) whether the action has binding effects on

private parties or on the agency.” Id. (quotation marks

omitted). Here, the protocol contains no rights-creating

language. Just the opposite, it states that “[t]his manual

explains internal government procedures and does not create

any legally enforceable rights or obligations.” App. 24.

Likewise, the protocol explicitly permits “deviation[s]” and

“adjustment[s]” upon a determination “by the Director of the

BOP or the Warden” that the deviation is “required,” thus

preserving a healthy measure of agency discretion. Id. Finally,

the protocol was published in neither the Code of Federal

Regulations nor the Federal Register.

For these reasons, the federal protocol was not subject to

notice-and-comment requirements, and the plaintiffs’ contrary

claim is without merit.12

12

Given the flexibility built into the federal protocol, I agree with

Judge Rao that it may be adjusted to conform to state law to whatever

extent the FDPA may require. Post, at 29–30. That saves the

protocol itself from attack under Judge Rao’s construction of the

FDPA. But, as explained above, it opens the door to a wide range of

challenges to federal executions under the minutiae of state

execution statutes and regulations.

26

II

Wholly apart from the merits, I would reverse the

preliminary injunction because the balance of harms and the

public interest strongly favor the government. The party

seeking a preliminary injunction “must establish” not only a

likelihood of success on the merits, but also “that the balance

of equities tips in his favor, and that an injunction is in the

public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); see

also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542

(1987). And appellate courts may reverse preliminary

injunctions where, apart from the merits, the district court’s

equitable balancing constituted an abuse of discretion. See

NRDC, 555 U.S. at 24–26, 32.

In this case, the district court failed to recognize the

important governmental and public interest in the timely

implementation of capital punishment. The court concluded

that any “potential harm to the government caused by a delayed

execution is not substantial.” In re Execution Protocol Cases,

2019 WL 6691814, at *7. In contrast, the Supreme Court

frequently has explained that “both the [government] and the

victims of crime have an important interest in the timely

enforcement of a [death] sentence,” which is frustrated by

decades of litigation-driven delay. Bucklew, 139 S. Ct. at 1133

(quotation marks omitted). Indeed, “when lengthy federal

proceedings have run their course”—as is the case here—

“finality acquires an added moral dimension.” Calderon v.

Thompson, 523 U.S. 538, 556 (1998). “Only with an assurance

of real finality can the State execute its moral judgment in a

case.” Id. And “[o]nly with real finality can the victims of

crime move forward knowing the moral judgment will be

carried out.” Id. “To unsettle these expectations is to inflict a

profound injury to the ‘powerful and legitimate interest in

27

punishing the guilty.’” Id. (quoting Herrera v. Collins, 506

U.S. 390, 421 (1993) (O’Connor, J., concurring)).

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.

In 1999, an Arkansas jury convicted Daniel Lee of three

counts of murder in aid of racketeering. The murders were

committed in 1996, during a robbery to fund a white

supremacist organization. United States v. Lee, 374 F.3d 637,

641 (8th Cir. 2004). After overpowering a couple and their

eight-year-old daughter in their home, Lee and a confederate

“shot the three victims with a stun gun, placed plastic bags over

their heads, and sealed the bags with duct tape.” Id. at 641–42.

They then drove the family to a bayou, taped rocks to their

bodies, and threw them into the water to suffocate or drown.

Id. at 642. The Eighth Circuit affirmed Lee’s death sentence

on direct review, id., and thrice denied him collateral relief, Lee

v. United States, No. 19-3576 (8th Cir. Jan. 7, 2020); United

States v. Lee, 792 F.3d 1021 (8th Cir. 2015); United States v.

Lee, 715 F.3d 215 (8th Cir. 2013). Nonetheless, Lee continues

to pursue a fourth round of collateral review. Lee v. United

States, No. 2:19-cv-00468 (S.D. Ind. Dec. 5, 2019),

preliminary injunction vacated by Lee v. Watson, No. 19-3399

(7th Cir. Dec. 6, 2019).

In 2003, a Missouri jury convicted Wesley Purkey of the

kidnapping, rape, and murder of sixteen-year-old Jennifer

Long in 1998. United States v. Purkey, 428 F.3d 738, 744–45

(8th Cir. 2005). After killing the girl, Purkey dismembered her

body with a chainsaw and burned her remains. Id. at 745. The

jury found nine aggravating factors, including that Purkey had

previously bludgeoned a woman to death with a hammer. Id.

at 746. The Eighth Circuit affirmed Purkey’s death sentence

28

on direct review, id. at 744, and later denied him collateral

relief, Purkey v. United States, 729 F.3d 860 (8th Cir. 2013).

In 2004, an Iowa jury convicted Dustin Honken of

murdering five individuals in 1999, including two witnesses to

his drug trafficking and two young children. United States v.

Honken, 541 F.3d 1146, 1148 (8th Cir. 2008). Honken and an

accomplice kidnapped one witness, the witness’s girlfriend,

and her six- and ten-year-old daughters. Honken murdered all

four execution-style, by shooting each in the head. Id. at 1149–

51. Four months later, Honken murdered another prospective

witness against him. Id. at 1148, 1151. Then, while in prison

awaiting trial, he made plans to murder additional witnesses.

Id. at 1150–51. Because Iowa has no death penalty, the district

court ordered Honken to be executed in the manner provided

by Indiana law. The Eighth Circuit affirmed the death sentence

on direct appeal, id. at 1148, and then declined to set it aside on

collateral review, see Honken v. United States, 42 F. Supp. 3d

937, 1196–97 (N.D. Iowa 2013), certificate of appealability

denied, No. 14-1329 (8th Cir. May 2, 2014).

In 2004, a Texas jury convicted Alfred Bourgeois of

murdering his two-year-old daughter in 2002. United States v.

Bourgeois, 423 F.3d 501, 503 (5th Cir. 2005). Before the

murder, Bourgeois “systematically abused and tortured” the

child—he punched her in the face, whipped her with an

electrical cord, hit her head with a plastic bat so many times

that it “was swollen like a football,” and later bragged to a

fellow inmate that the “f––ing baby’s head got as big as a

watermelon.” Id. He bit her, scratched her, and burned the

bottom of her feet with a cigarette lighter. When others tried

to clean the sores, Bourgeois “would stop them and jam his

dirty thumb into the wounds, then force [her] to walk” on them.

Id. After her training potty tipped over, Bourgeois repeatedly

slammed the back of her head into a window. He refused to

29

take the girl’s limp body to the hospital, but a passer-by called

an ambulance. “The doctors sustained [her] on life support

until her mother could get to the hospital, where the baby died

in her mother’s arms the next day.” Id. at 505. In affirming

the death sentence, the Fifth Circuit described this as “not a

close case.” Id. at 512. That court later denied post-conviction

relief. United States v. Bourgeois, 537 F. App’x 604, 605 (5th

Cir. 2013) (per curiam).

These crimes were committed twenty-four, twenty-two,

twenty-one, and eighteen years ago respectively. Each

appellee received the full panoply of procedural protections

afforded under the Constitution and the FDPA. Each received

direct review and one or more rounds of collateral review. Yet

now, supported by fifteen lawyers on just this appeal, they

continue to litigate with a vengeance, ostensibly over the

manner of their executions, but with the obvious and intended

effect of delaying them indefinitely. As the Supreme Court

noted in Bucklew, with apparent exasperation, the people and

the surviving victims “deserve better.” 139 S. Ct. at 1134.

The district court stressed that the government took eight

years to craft its revised execution protocol. True enough, but

things were fine in 2008, with a three-drug execution protocol

in place and approved by the Supreme Court in Baze. Then

began a long and successful campaign of obstruction by

opponents of capital punishment, which removed sodium

thiopental from the market by 2011 and made pentobarbital

unavailable shortly thereafter. See Glossip v. Gross, 135 S. Ct.

2726, 2733 (2015). At that point, the government’s options

were severely limited, and it can hardly be faulted for

proceeding with caution. The government declined to press

ahead with an available three-drug protocol using

midazolam—a milder sedative than either sodium thiopental or

pentobarbital—and two other substances to stop respiration

30

and induce cardiac arrest. Its hesitation in the face of

uncertainty proved reasonable, as four Justices would later

describe this protocol as possibly “the chemical equivalent of

being burned at the stake.” Id. at 2781 (Sotomayor, J.,

dissenting).

Instead of proceeding with an inferior option, the

government waited until pentobarbital again became available.

That barbiturate—which can act as both sedative and lethal

agent—is “widely conceded to be able to render a person fully

insensate,” Zagorski v. Parker, 139 S. Ct. 11, 11–12 (2018)

(Sotomayor, J., dissenting from denial of application for stay

and denial of certiorari), thus ensuring a painless execution.

The government also took time to study the successful track

record of pentobarbital, documenting its use without incident

in more than 100 state executions, A.R. 929–30, as well as the

many cases that have upheld its use, see, e.g., Zink v. Lombardi,

783 F.3d 1089, 1102 (8th Cir. 2015) (en banc) (per curiam);

Ladd v. Livingston, 777 F.3d 286, 289–90 (5th Cir. 2015). The

government’s care in selecting an available and effective

execution substance does not diminish the importance of

carrying out the appellees’ sentences.

On the other side of the balance, a death sentence is of

course serious business. But here, there is no dispute that the

appellees may be executed by lethal injection, nor any

colorable dispute that pentobarbital will cause anything but a

swift and painless death. Instead, the plaintiffs contend only

that their executions cannot occur until the federal government

replicates every jot-and-tittle of the relevant state execution

protocols. And in doing so, they would expose other death-row

inmates to substances less reliably certain to ensure a painless

death than is pentobarbital—including midazolam, which

remains in use in five different states. A.R. 92–93. The claims

before us are designed neither to prevent unnecessary suffering

31

nor to ensure that needles are properly inserted into veins—a

task that nurses routinely perform without difficulty. Instead,

they are designed to delay lawful executions indefinitely. We

should not assist in that undertaking.

* * * *

For these reasons, I would vacate the preliminary

injunction and remand the case to the district court with

instructions to enter judgment for the government on the

plaintiffs’ FDPA claims and their notice-and-comment claims.

RAO, Circuit Judge, concurring: The Department of

Justice specified a range of procedures to govern federal

executions in its 2019 protocol and addendum. Plaintiffs allege

that the Department’s protocol is inconsistent with the Federal

Death Penalty Act (“FDPA”), which requires that federal

executions be implemented “in the manner prescribed by the

law of the State in which the sentence is imposed.” 18 U.S.C.

§ 3596(a). At every stage of this litigation, the debate has

centered on whether “manner” should be read at a particular

level of generality. The word “manner,” however, cannot be

interpreted in isolation. It is a broad, flexible term whose

specificity depends on context. The FDPA explicitly defines

the level of generality of “manner”: It is the “manner prescribed

by the law of the State.” Thus, the FDPA requires the federal

government to apply state law—that is, statutes and formal

regulations—at whatever level of generality state law might be

framed. Where state law is silent, the federal government has

discretion to choose whatever lawful execution procedures it

prefers.

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. I therefore agree to vacate the

preliminary injunction.

I.

Assessing the validity of the 2019 protocol requires us first

to interpret the reach of the FDPA. The Department of Justice

maintains that “manner” as used in the FDPA means only the

method of execution—i.e., hanging, electrocution, or lethal

injection—leaving the government free to set forth a uniform

procedure for executions. The plaintiffs, on the other hand,

2

assert that “manner” means any procedures used by a state

when implementing the death penalty, thereby precluding any

kind of uniform federal protocol. Neither reading comports

with the FDPA when read as a whole. In the FDPA, Congress

left certain choices regarding execution to the States.

Considering the text and structure of the statute, I explain why

the FDPA requires the federal government to apply only those

execution procedures prescribed by a state’s statutes and

formal regulations, but leaves the federal government free to

specify other procedures or protocols not inconsistent with

state law. Moreover, nothing in the statutory history offers a

basis to override the plain meaning of the FDPA.

A.

The FDPA provides that the U.S. Marshal “shall supervise

implementation of the sentence [of death] in the manner

prescribed by the law of the State in which the sentence is

imposed.” 18 U.S.C. § 3596(a). The parties as well as my

colleagues focus on the meaning of the word “manner.” As I

explain, the word “manner” may refer to varying levels of

specificity, both in its ordinary meaning and in the context of

execution procedures. Reading “manner” alongside other

words in Section 3596(a), as well as the statute as a whole,

demonstrates that the FDPA uses “manner” to include the

positive law and binding regulations of a state—those

procedures “prescribed by the law of the State.” State “law,”

however, does not include informal procedures or protocols. In

the absence of binding state law, the FDPA leaves other

procedures to the discretion of the U.S. Marshal who must

“supervise implementation of the sentence” of death.

1.

In ordinary usage, the word “manner” has a broad, flexible

meaning. A “manner” is “a characteristic or customary mode

3

of acting” or “a mode of procedure.” Manner, Merriam-

Webster’s Collegiate Dictionary (11th ed. 2014). Put

differently, a “manner” is “[a] way of doing something or the

way in which a thing is done or happens.” Manner, The

American Heritage Dictionary of the English Language (5th

ed. 2018). “Manner” may therefore refer to a general way of

doing something or the more specific way in which an action

is carried out. The word had a similarly broad meaning when

the first two federal death penalty statutes were passed in 1790

and 1937. See Manner, New International Dictionary of the

English Language (2d ed. 1941) (“[A] way of acting; a mode

of procedure; the mode or method in which something is done

or in which anything happens.”); 2 S. Johnson, A Dictionary of

the English Language (1755) (“Custom; habit; fashion.”).1

The word “manner” has the same flexible meaning in the

execution context, as demonstrated by federal and state statutes

and judicial decisions that use the word with varying levels of

generality. As DOJ notes, the word is sometimes used to refer

to a general execution method, and courts occasionally use the

terms “manner” and “method” interchangeably; yet “manner”

1

Judge Katsas makes much of the fact that eighteenth-century

dictionaries, including Samuel Johnson’s, also defined “manner” as

a “method,” Concurring Op. 4–5 (Katsas, J.), but he overlooks that

those dictionaries defined “method” in broad terms. For instance,

Johnson’s dictionary states: “Method, taken in the largest sense,

implies the placing of several things, or performing several

operations in such an order as is most convenient to attain some end.”

2 S. Johnson, A Dictionary of the English Language (1755). This

“largest sense” is the only definition Johnson provides for “method.”

Judge Katsas notes that “[o]ther dictionaries” also “indicate that

‘manner’ is synonymous with ‘method’ as well as ‘mode.’”

Concurring Op. 4 (Katsas, J.). These dictionaries, however, are not

referring to the narrow sense of “method” employed in the execution

context.

4

is also frequently used to refer to granular details, including in

the FDPA itself. In a provision governing aggravating factors

in homicide cases, the statute reads, “In determining whether a

sentence of death is justified …, the jury … shall consider …

[whether] [t]he defendant committed the offense in an

especially heinous, cruel, or depraved manner in that it

involved torture or serious physical abuse to the victim.” 18

U.S.C. § 3592(c)(6). In this instance, the “manner” of

committing homicide refers not to the general method of

killing, but to the precise way in which the offense was

committed.

State legislatures also use the word “manner” to refer to

the specifics of an execution procedure, including in some

statutes the choice of lethal substance or method of injection.

See, e.g., Miss. Code. Ann. § 99-19-51 (“The manner of

inflicting the punishment of death shall be by the sequential

intravenous administration of a lethal quantity of the following

combination of substances ….”); Md. Code Ann., Correctional

Services, § 3–905 (repealed in 2013) (“The manner of inflicting

the punishment of death shall be the continuous intravenous

administration of a lethal quantity of an ultrashort-acting

barbiturate or other similar drug in combination with a

chemical paralytic agent.”); Colo. Rev. Stat. Ann. § 18-1.3-

1202 (“The manner of inflicting the punishment of death shall

be by the administration of a lethal injection …. For the

purposes of this part 12, ‘lethal injection’ means a continuous

intravenous injection of a lethal quantity of sodium thiopental

or other equally or more effective substance.”).

Similarly, federal courts use the term “manner” variably to

refer both to the method of execution and to the specifics of

execution procedures. See Glossip v. Gross, 135 S. Ct. 2726,

2741 (2015) (“[T]here is no scientific literature addressing the

use of midazolam as a manner to administer lethal injections in

5

humans.” (quoting a party’s expert report)); id. at 2790

(Sotomayor, J., dissenting) (“These assertions were amply

supported by the evidence of the manner in which midazolam

is and can be used.”); Baze v. Rees, 553 U.S. 35, 57 (2008)

(plurality opinion) (“[T]he Commonwealth’s continued use of

the three-drug protocol cannot be viewed as posing an

‘objectively intolerable risk’ when no other State has adopted

the one-drug method and petitioners proffered no study

showing that it is an equally effective manner of imposing a

death sentence.”); Holden v. Minnesota, 137 U.S. 483, 491

(1890) (“[The state statute] prescribes … the manner in which[]

the punishment by hanging shall be inflicted.”); Williams v.

Hobbs, 658 F.3d 842, 849 (8th Cir. 2011) (“The prisoners next

contend that they have demonstrated a facially plausible claim

that the Act [which provides for lethal injection in all cases] …

increases mental anxiety before execution since the prisoners

cannot know the manner in which they will be executed.”).2

These examples demonstrate that the word “manner” is used

2

See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474

(1947) (Burton, J., dissenting) (“The Supreme Court of Louisiana has

held that electrocution, in the manner prescribed in its statute, is more

humane than hanging.”); In re Kemmler, 136 U.S. 436, 443–44

(1890) (“‘[T]he application of electricity to the vital parts of the

human body, under such conditions and in the manner contemplated

by the statute, must result in instantaneous, and consequently in

painless, death.’” (citation omitted)); Harris v. Dretke, No. 04-

70020, 2004 WL 1427042, at *1 (5th Cir. June 23, 2004) (“David

Harris appeals the dismissal of his suit … challenging the manner in

which the State of Texas intends to carry-out his execution by lethal

injection.”).

6

frequently in the execution context as a broad term that may

encompass any level of detail.3

2.

To determine the level of specificity of “manner” as used

in the FDPA, I start with the language of Section 3596. Recall

the statute provides that the U.S. Marshal “shall supervise

implementation of the sentence in the manner prescribed by the

law of the State in which the sentence is imposed.” 18 U.S.C.

§ 3596(a). In this context, “manner” does not operate in

isolation, but is modified by the requirement that the Marshal

adopt the manner “prescribed by the law of the State.” The

district court did not address this qualifying language, and both

parties gloss over it. In defending the 2019 protocol, the

government contends that the Marshal must apply only the

state’s method of execution, without reference to other details

that might be included in state law; the plaintiffs contend that

the Marshal must apply all state procedures, again without

reference to whether those procedures were prescribed by state

law. The government’s distinction is not found anywhere in the

FDPA, while the plaintiffs’ interpretation would read the

phrase “prescribed by … law” out of the statute entirely.

The ordinary meaning of “law of the State” refers to

binding law prescribed through formal lawmaking procedures.

In analogous contexts, the Supreme Court has read similar

statutory language to incorporate only statutes and regulations

carrying the force of law. For instance, the Court held in United

3

As the question before us concerns the meaning of the FDPA and

whether “manner” can include procedural details prescribed by state

law, it is of no consequence that the Supreme Court recognized

constitutional challenges to the procedural details of execution only

relatively recently. See Concurring Op. 11–12 & n.6 (Katsas, J.).

7

States v. Howard that a Florida regulation was part of the “law

of the state” because violations of the regulation were

“punishable as a misdemeanor.” 352 U.S. 212, 216–17, 219

(1957). In Chrysler Corporation v. Brown, the Court held that

the phrase “authorized by law” encompasses “properly

promulgated, substantive agency regulations” that “have the

‘force and effect of law.’” 441 U.S. 281, 295–96 (1979); see

also Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 398 (1893)

(“‘[T]he equal protection of the laws,’ … means equal

protection not merely by the statutory enactments of the state,

but equal protection by all the rules and regulations which,

having the force of law, govern the intercourse of its citizens

with each other and their relations to the public.”); Samuels v.

Dist. of Columbia, 770 F.2d 184, 199 (D.C. Cir. 1985)

(“[T]hose federal regulations adopted pursuant to a clear

congressional mandate that have the full force and effect of

law … have long been recognized as part of the body of federal

law.”). The Supreme Court has emphasized that something is

“prescribed by law” when it includes binding requirements. Cf.

United States v. Rodriquez, 553 U.S. 377, 390–91 (2008)

(holding that the phrase “maximum term of imprisonment …

prescribed by law” refers to the statutory maximum, not the

maximum set by sentencing guidelines, which do not bind a

judge in all circumstances). Consistent with the deep-rooted

conception of law as fixed and binding, I have not found, nor

did the plaintiffs cite, any case in which the Supreme Court or

this court has held that an informal policy or protocol was

prescribed by law.4

4

Judge Tatel argues that the four state execution protocols at issue

in this case are in fact part of the “manner prescribed by the law of

the State” because they were adopted pursuant to state statutes that

“delegate to state prison officials the task of developing specific

execution procedures.” Dissenting Op. 2. In other words, because

8

In light of the FDPA’s requirement that the manner of

execution be prescribed by state “law,” the district court’s

expansive interpretation of Section 3596(a) fails because it

includes state procedures regardless of whether they are part of

state “law.” See Matter of Fed. Bureau of Prisons’ Execution

Protocol Cases, No. 12-CV-0782, 2019 WL 6691814, at *6

(D.D.C. Nov. 20, 2019) (citing informal execution policies

from Texas, Missouri, and Indiana). The FDPA simply does

not require the U.S. Marshal to follow aspects of a state

execution procedure that were not formally enacted or

promulgated. “[P]rescribed by the law of the State” sets an

outer boundary on what the federal government must follow.

On the other hand, the statutory command also means that the

federal government cannot look only to the “method” of

execution prescribed by the state. The interpretation adopted

by Judge Katsas and the government does not account for other

details that might be included in state law and formal

regulations. While, as discussed below, formal state law often

“‘by law,’ each state directed its prison officials to develop execution

procedures, and ‘by law,’ those officials established such procedures

and set them forth in execution protocols,” Judge Tatel contends that

the protocols are subsumed within the phrase “prescribed by … law.”

Id. at 4–5. Yet neither the Supreme Court nor our court has ever

adopted such a capacious understanding of “law.” Instead, the

Supreme Court has directed that we ask whether a protocol has the

“force and effect of law,” Chrysler, 441 U.S. at 295–96, and not

everything an official does pursuant to his statutory authority carries

the force of law. For instance, agencies issue interpretive rules

pursuant to their statutory authority, yet interpretive rules

emphatically do not carry the force of law. See, e.g., Perez v. Mortg.

Bankers Ass’n, 575 U.S. 92, 97 (2015). Indeed, the Supreme Court

explicitly said in Chrysler that neither “[a]n interpretive regulation

[nor] general statement of agency policy” can be considered an

“authorization by law” because they lack “the binding effect of law.”

441 U.S. at 315–16 (alterations omitted).

9

specifies little more than the method of execution, the federal

government is nonetheless bound by the FDPA to follow the

level of detail prescribed by state law.5

The textual context of Section 3596(a) supports this

interpretation. Section 3596(a) provides that the Marshal “shall

supervise implementation of the sentence in the manner

prescribed by the law of the State.” 18 U.S.C. § 3596(a)

(emphasis added). This broad language encompasses more than

earlier federal death penalty statutes, which incorporated state

law only to define the “manner of inflicting the punishment of

death.” See An Act to Provide for the Manner of Inflicting the

Punishment of Death § 323, 50 Stat. 304, 304 (June 19, 1937);

An Act for the Punishment of Certain Crimes § 33, 1 Stat. 112,

119 (Apr. 30, 1790). The ordinary meaning of “implementation

of the sentence” includes more than “inflicting the punishment

of death.” The latter refers to the immediate action of

execution, whereas “implementation of the sentence” suggests

5

Judge Katsas claims that the “participial phrase ‘prescribed by the

law of the State’ functions as an adjective,” and adjectives usually

“do not expand the meaning of the noun they modify.” Concurring

Op. 19 (Katsas, J.). This argument begs the question: It 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.” Thus,

my reading is consistent with the most common grammatical

function of a participial phrase.

10

additional procedures involved in carrying out the sentence of

death.6

In the death penalty context, the term “implementation” is

commonly used to refer to a range of procedures and

safeguards surrounding executions, not just the top-line

method of execution. This is true of DOJ’s regulations, which

were promulgated during a period when no statute specified

procedures for the federal death penalty. DOJ’s 1993 execution

regulation bears the title, “Implementation of Death Sentences

in Federal Cases.” See 58 Fed. Reg. 4,898 (Jan. 19, 1993). That

regulation governs very minute aspects of executions,

including the “[d]ate, time, place, and method,” whether and

when the prisoner has access to spiritual advisors, and whether

photographs are allowed during the execution. Id. at 4,901–

902. Likewise, the 2019 addendum to DOJ’s execution

protocol, which governs some of the procedures at issue in this

case, is titled, “Federal Death Sentence Implementation

Procedures.” Department of Justice, Addendum to BOP

Execution Protocol, Federal Death Sentence Implementation

Procedures 1 (July 25, 2019) (“BOP Addendum”). As with the

1993 regulation, the addendum governs minute details, such as

the numbering and labeling of syringes. Id. at 2. According to

DOJ regulations and protocols, all of these details fall under the

umbrella of implementing a death sentence. The breadth of the

term “implementation” further undermines the government’s

narrow interpretation that “manner” means only the “method”

of execution, irrespective of the requirements of state law.

6

Compare Implementation Plan, Black’s Law Dictionary (10th ed.

2014) (“An outline of steps needed to accomplish a particular goal.”),

with Inflict, Merriam-Webster’s Collegiate Dictionary (11th ed.

2014) (“[T]o cause (something unpleasant) to be endured.”).

11

An interpretation requiring the federal government to

follow all procedures prescribed by state statutes and formal

regulations, but no more, similarly coheres with the statute’s

directive that the Marshal “supervise” implementation of the

sentence. 18 U.S.C. § 3596(a). To “supervise” is to

“superintend” or “oversee.” See Supervise, Merriam Webster’s

Collegiate Dictionary (11th ed. 2014). The concept of

supervision does not fit with DOJ’s position that it may

establish a uniform protocol for all procedures short of the

method of execution specified by state law. In the context of

executing the law, supervision must occur within legal

boundaries. While supervision often includes a degree of

discretion, it does not include authority to create new law or to

act in contravention of law. See Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 588 (1952) (emphasizing that “the

President’s power to see that the laws are faithfully executed”

does not include the power to “make laws which the President

is to execute”). Elsewhere, Congress used more active

language. In the 1937 statute, for instance, the Marshal was

“charged with the execution of the sentence,” 50 Stat. at 304,

and other provisions of the FDPA refer to “carr[ying] out” an

execution. See 18 U.S.C. § 3596(b), (c). Congress’s choice in

Section 3596(a) to provide only that the Marshal will

“supervise” implementation hardly suggests that DOJ was

given the authority to dictate nearly every aspect of the

execution procedure regardless of what state law prescribes.

At the same time, the statute’s use of “supervise” suggests

that the Marshal enjoys a certain degree of discretion in the

absence of state law on a particular question. If the FDPA had

provided only that the Marshal “shall implement” the sentence

according to state law, there would be less support for the idea

that the Marshal has discretion to fill gaps in a state’s execution

law. Instead, the statute affords the Marshal a measure of

supervisory discretion within the bounds of state law.

12

The FDPA specifies one exception to the general rule that

the federal government must follow state law—the federal

government may choose state or federal facilities for

executions, irrespective of state law. Section 3597(a) addresses

the question of where executions will take place and which

facilities the Marshal may use. It provides that the Marshal

“may use appropriate State or local facilities,” so long as the

Marshal “pay[s] the costs thereof.” 18 U.S.C. § 3597(a). This

language establishes that the Marshal has discretion to choose

between state and federal facilities, notwithstanding any state

law requiring executions in a particular location. Under

familiar canons of construction, the more specific provision

controls the general. See RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 645 (2012) (noting this

canon “is a commonplace of statutory construction” (citation

omitted)). Section 3596(a) directs the government to follow a

state’s death penalty law generally, while Section 3597(a) is

best read as an exception, specifying one aspect of the

execution process by allowing the federal government a choice

of location. See id.7

Finally, this fuller reading of the statutory text coheres

with the FDPA and the apparent balance Congress struck

between providing for a federal death penalty and respecting

provisions of state law. If “prescribed by the law of the State”

includes only a state’s statutes and formal regulations, the

Marshal will be able to identify the requirements of state law.

Nothing in the FDPA suggests that the federal government

must incorporate most or all procedures and practices found in

a state’s informal execution policies, which could raise

practical, and perhaps insurmountable, difficulties to the

7

While it is true that Section 3597 is not written explicitly as an

exception, see Concurring Op. 13 (Katsas, J.), it provides specific

authority that supersedes the general reliance on state law.

13

implementation of federal death sentences. For instance, at

least some state protocols are not publicly available. See Ark.

Code Ann. § 5-4-617(i)(1)(C). Others are “revised as needed”

through informal means. See Indiana State Prison Facility

Directive, ISP 06-26: Execution of Death Sentence 14 (Jan. 22,

2014). When Congress used the term “prescribed by the law of

the State,” it did not mean secret policies and constantly

changing informal protocols.8

In this politically charged area, Congress enacted a

federalist scheme, incorporating state law as to the “manner”

of death penalty implementation, but only for those execution

procedures enacted or promulgated by states as part of their

binding law. The FDPA leaves the federal government free to

specify details regarding execution procedures, as it did in its

protocol and addendum, subject to any contrary requirements

of state law.

8

This interpretation is largely consistent with other courts to have

considered the issue. The Fifth Circuit upheld a death sentence under

an earlier version of DOJ’s protocol because nothing in the protocol

was “inconsistent with Texas law.” United States v. Bourgeois, 423

F.3d 501, 509 (5th Cir. 2005). The only source of law the court

considered was Texas’s criminal code, id., which does not provide

for specific procedures or designate a lethal substance. See Tex. Code

Crim. Proc. Ann. art. 43.14. Similarly, the District of Vermont held

that a U.S. Marshal is “to adopt local state procedures for execution,”

but the court looked only to state statutes in defining the state’s

procedures. See United States v. Fell, No. 5:01-CR-12-01, 2018 WL

7270622, at *4 (D. Vt. Aug. 7, 2018); but see Higgs v. United States,

711 F. Supp. 2d 479, 556 (D. Md. 2010) (declining to reach the

Section 3596(a) question, but briefly suggesting in dicta that

“manner” refers only to lethal injection).

14

B.

DOJ attempts to use previous federal death penalty statutes

to show that “manner” must mean “method.” A review of these

statutes, however, demonstrates that Congress was at best silent

as to whether the word had a specialized meaning. Prior federal

execution statutes support neither the government’s “manner

means method only” interpretation, nor the plaintiffs’ “manner

means everything” interpretation. Rather, the history shows

Congress uses “manner” in its ordinary sense, such that the

scope of the term’s application depends on the context.

There were only two federal statutes regulating execution

procedures prior to the FDPA, and neither suggested that

“manner” refers exclusively to general methods. The first

federal death penalty statute, passed in 1790, read, “the manner

of inflicting the punishment of death, shall be by hanging the

person convicted by the neck until dead.” § 33, 1 Stat. at 119.

That provision is entirely consistent with my interpretation:

Congress, using a broad word that can refer to any level of

generality, chose on that occasion not to mandate further

details. In another section of the same statute Congress used the

word “manner” in a highly granular sense. The 1790 statute

criminalized the maiming of a person in any of six enumerated

“manners”—a list so particularized that “slit[ting] the nose”

and “cut[ting] off the nose” were listed separately. § 13, 1 Stat.

at 115. Reading the 1790 statute as a whole, Congress used the

word “manner” to refer to both general methods and specific

details, reinforcing that the term “manner” in isolation has a

flexible meaning and must be read in context to determine the

appropriate level of specificity.

Judge Katsas argues that the 1790 statute should be read

against the backdrop of English common law. Concurring Op.

4 (Katsas, J.). As he notes, Blackstone wrote that the

15

punishment for many capital crimes was to be “hanged by the

neck till dead.” 4 W. Blackstone, Commentaries on the Laws

of England 370 (1769). Notably, Blackstone does not say that

hanging by the neck was the “manner” of execution. He says

that hanging was the “judgment” pronounced by the court. Id.

Indeed, this passage never uses the word “manner.” Later,

Blackstone wrote that a “sheriff cannot alter the manner of the

execution by substituting one death for another.” Id. at 397.

Nor could the king substitute one death for another—for

instance, by “altering the hanging or burning into beheading.”

Id. at 397–98. Nothing in this passage suggests that the choice

of general method was the only detail encompassed by the term

“manner of the execution.” At most, this passage shows that

changing the general method was one way to change the

manner of execution.

Judge Katsas’s reliance on two Supreme Court cases from

the nineteenth century is similarly unavailing. First, Wilkerson

v. Utah, 99 U.S. 130 (1878), simply paraphrased the language

of the 1790 statute, see id. at 133 (“Congress provides that the

manner of inflicting the punishment of death shall be by

hanging.”), so it adds no support for the narrow reading of

“manner.” Next, Judge Katsas argues that the Supreme Court

used “manner” and “method” interchangeably in Kemmler, 136

U.S. 436. Yet nothing in the Court’s opinion indicates that the

two terms are synonymous. To the contrary, the opinion

strongly suggests that the term “manner” encompasses more

than the general method. In rejecting a petition for habeas

corpus, the Court quoted the New York Court of Appeals at

length, including its conclusion that the general method of

electrocution is painless—not necessarily as a general matter,

but when performed “under such conditions and in the manner

contemplated by the statute.” Id. at 443–44 (“[T]he application

of electricity to the vital parts of the human body, under such

conditions and in the manner contemplated by the statute, must

16

result in instantaneous, and consequently in painless, death.”

(citation omitted)). The term “manner” in that sentence must

refer to details more specific than the general method of

electrocution. Id.9 Even if at points Wilkerson and Kemmler

refer to hanging and electrocution as manners of execution,

they are still consistent with the ordinary meaning of “manner,”

which can refer to the general and the specific. It is not unusual

for courts to refer to hanging or lethal injection as manners of

execution, just as courts commonly use “manner” to refer to

specific details of an execution procedure. See supra at 4–5.

The government also relies on the 1937 statute to argue

that “manner” is used in the FDPA to refer only to the method

of execution. See DOJ Br. 21–22 (“Congress [in 1937]

preserved the meaning of ‘the manner’ as synonymous with

‘the method’ of execution.”). In the 1937 statute, Congress

shifted away from the earlier federal death penalty regime to

one that required the federal government to adopt whatever

“manner” was “prescribed by the laws of the State.” 50 Stat. at

304. The 1790 and 1937 statutes thus had different structures,

one specifying a single method of federal execution and the

other leaving the manner of execution to be determined by state

law. This fundamental change to the statutory scheme

undermines DOJ’s contention that Congress forever settled the

9

I agree with Judge Katsas that the level of detail in the New York

statute is not relevant in itself. Concurring Op. 6 n.2 (Katsas, J.); see

also Chapter 489, Laws of the State of New York §§ 492, 505–07

(June 4, 1888) (regulating execution timing, location, and personnel,

among other things). Indeed, my analysis consistently maintains that

the meaning of the word “manner” does not change whenever a

legislature chooses to specify more or less detail in a given statute,

whether a state statute or the FDPA. Regardless of how detailed the

statute was, the Supreme Court in Kemmler used the word “manner”

to encompass more than the general method of electrocution. See 136

U.S. at 443–44.

17

scope of federal death penalty legislation in 1790 when it chose

hanging as the method of execution. Indeed, the fact that

Congress amended the legally operative text suggests that the

1937 Act did not use “manner” in precisely the same way as

the 1790 statute. See Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)

(stating that a statute “brings the old soil with it” only when

“obviously transplanted”); Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 136 S. Ct. 1562, 1578 (2016) (Thomas,

J., concurring) (“[W]hen Congress enacts a statute that uses

different language from a prior statute, we normally presume

that Congress did so to convey a different meaning.”).

Statutory predecessors can help us to interpret a modern statute,

but we must respect the changes Congress enacted.

For the same reasons discussed with respect to the FDPA,

the phrase “manner prescribed by the laws of the State” in the

1937 statute is best read as referring to all execution procedures

found in the state’s “law.” In practice, moreover, the federal

government incorporated more than the state’s method of

execution when it carried out executions under the 1937 statute.

The government concedes that nearly all executions conducted

under the 1937 statute took place in state facilities. Oral

Argument at 3:30. Presumably, those executions were carried

out in accordance with state law and possibly with other state

procedures. DOJ notes that three executions under the 1937

statute took place in federal facilities, but DOJ is unable to

identify a single way in which the executions were otherwise

inconsistent with state law. As in the FDPA, the 1937 statute

gave the U.S. Marshal discretion over the choice of facilities.

See 50 Stat. at 304. Thus, the choice of a federal location does

not undermine the requirement that the manner of execution

follow whatever details are prescribed by state law.

Not only did the federal government perform the vast

majority of executions in state prisons, DOJ has suggested on

18

several occasions that it understood the 1937 statute to require

compliance with state procedures. In its 1993 protocol, DOJ

hypothesized that Congress might have repealed the 1937

statute because it “no longer wanted the federal method of

execution dependent on procedures in the states, some of which

were increasingly under constitutional challenge.” 58 Fed. Reg.

at 4,899 (discussing repeal of the 1937 statute in 1984).

Similarly, Attorney General Janet Reno wrote shortly before

the FDPA’s enactment that the bill “contemplate[s] a return to

an earlier system in which the Federal Government does not

directly carry out executions, but makes arrangements with

states to carry out capital sentences in Federal cases.” See H.R.

Rep. No. 104-23, at 22 (1995) (quoting Letter from Attorney

General Janet Reno to Hon. Joseph R. Biden, Jr., at 3–4 (June

13, 1994)). While such sources are not determinative of the

meaning of the FDPA, they demonstrate that the Department’s

narrow interpretation of the statute has hardly been

consistent.10

10

Judge Katsas also argues that between 1790 and 1937, “nobody

[was] focused on subsidiary procedural details in the legal or policy

debates over [] various execution methods.” Concurring Op. 7

(Katsas, J.). Even assuming that assessment is correct, it has no

bearing on the broader sense of “manner” or how it was used in the

FDPA. This observation would be relevant only to the meaning of

“manner” in statutes that do not specify the scope of the term’s

application. For example, if the FDPA said something like “the

manner employed by the state,” then we would have to determine, as

Judge Katsas asks, “the level of detail at which [Section 3596(a)]

operates.” Id. at 1. Yet the FDPA explicitly specifies the level of

detail—it is the level of detail “prescribed by the law of the State.”

That leaves a question of what is included in the “law of the state,”

but it does not leave open the level of generality regarding the

manner of execution.

19

Despite rejecting DOJ’s historical evidence, I start from

the same fundamental principle: that we should not “depart

from the original meaning of the statute at hand.” New Prime

Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). As explained, the

meaning of the word “manner” has always been broad, and its

application has always depended on context. DOJ, however,

asks us to go beyond established canons of interpretation:

Rather than apply the original, broad sense of the word

“manner,” DOJ argues that the word should be deprived of its

ordinary meaning because Congress chose on a single occasion

in 1790 to specify one level of detail. There is no support for

this novel approach.

In statutory interpretation as in ordinary usage, a word can

have a fixed meaning even if, in application, it can refer to a

variety of things. DOJ is confusing the sense of the word

“manner” with the word’s reference. A word’s sense is its

linguistic meaning, while its reference is the “actual thing in

the world that the word picks out.” Christopher R. Green,

Originalism and the Sense-Reference Distinction, 50 St. Louis

U. L.J. 555, 563 (2006). A single word with a fixed meaning

can describe a wide range of references, depending on the

factual context and how the word is used. See id. at 564; cf.

ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 957–

58 (7th Cir. 2006) (explaining that the term “unjust

enrichment” has multiple “referents” because it can refer to

several factually distinct circumstances in which restitution is

appropriate).11 Rather than explore what the word “manner”

11

Judge Katsas’s only linguistic critique of the sense-reference

distinction is that sense and reference arguably converge when

dealing with proper names, Concurring Op. 8 n.3 (Katsas, J.),

something that is completely irrelevant to this case. We both agree

with Justice Scalia (and Professor Green, for that matter) that statutes

have “a fixed meaning, which does not change.” Id. That recognition

20

meant in 1790 (i.e., what sense it carried), DOJ focuses

narrowly on which procedures Congress chose to require on

one occasion (i.e., the reference of “manner”). According to

DOJ, the word “manner” in 1994 cannot be broad enough to

refer to specific procedures unless the 1790 statute also referred

to specific procedures. But Congress’s choice not to specify

details like the length of the rope did not change the underlying

meaning of the word “manner.” The word “manner” was broad

enough in 1790 to encompass more than the general method (as

demonstrated by the statute’s discussion of maiming), and the

word retains that broad sense today. There is simply no reason

to artificially cabin the word in later statutes so that it refers

only to the same kinds of procedures required by Congress in

1790.

DOJ’s ahistorical reading is also flatly inconsistent with

the canons of interpretation governing incorporation. When

Congress incorporates a body of law in general terms, the

incorporating statute “develops in tandem with the” body of

law that was incorporated. Jam v. Int’l Fin. Corp., 139 S. Ct.

759, 769 (2019); see also New Prime Inc., 139 S. Ct. at 539;

2B Sutherland Statutory Construction § 51:8 (7th ed.). For

most of the last 80 years, Congress has chosen to incorporate

state law rather than specify a manner of execution. As Judge

Katsas explains, it was once true that most execution statutes

did not “prescribe subsidiary ‘procedural details.’” Concurring

Op. 6 (Katsas, J.). Today, however, some “state statutes and

regulations do contain many granular details.” Id. at 21. When

a state legislature chooses to define the manner of execution in

more detail than was common in older statutes, the FDPA

directs the federal government to follow suit. See New Prime

does nothing to undermine the commonly accepted distinction

between a word’s meaning and the thing the word refers to on a given

occasion.

21

Inc., 139 S. Ct. at 539 (explaining that statutes incorporating a

general body of law must be read to incorporate “later

amendments and modifications”).12

The historical record is likewise inconsistent with the

plaintiffs’ assertion that the FDPA does not allow DOJ to adopt

nationwide procedures. See Plaintiffs’ Br. 23–24. It is true that

Congress in 1937 replaced a uniform, nationwide approach

with a requirement that the federal government follow the

sentencing state’s manner of execution. Nevertheless, neither

the 1937 statute nor the FDPA requires that the federal

government follow state practices not prescribed by law. The

statutory history thus says nothing about whether the

Department can create uniform procedures to fill gaps in state

law, as the protocol and addendum do in this case.

12

Failing to find support in the FDPA’s text, history, or practice, DOJ

tries to prop up its arguments with the 1937 statute’s legislative

history. This legislative history, however, did not run the Article I,

section 7, gauntlet, and cannot determine a statute’s meaning. Even

for those who find legislative history persuasive, the evidence is thin.

DOJ explains that the House Judiciary Committee twice used the

word “method” to refer to executions by hanging, electrocution, and

gas. H.R. Rep. No. 75-164, at 1 (1937). DOJ argues that because the

Committee changed the word “method” to “manner” in the statute, it

must have understood the two words to be synonymous. Yet the

legislative history is silent about why the Committee made that

choice in the final text of the FDPA. If we are playing the legislative

history guessing game, another inference is perhaps more likely: that

Congress chose to use a different word in order to convey a different

meaning. Cf. Allina Health Servs. v. Price, 863 F.3d 937, 944 (D.C.

Cir. 2017). Ultimately, however, legislative history is not the law,

and the history from 1937 tells us little about what the 1937 statute

meant, much less what the 1994 FDPA means.

22

In sum, the historical evidence does not suggest the term

“manner” has the narrow meaning pressed by DOJ; neither

does it support the plaintiffs’ conclusion that the federal

government may not create national procedures that govern in

the absence of any state law. Rather, for over 200 years,

Congress has used the term “manner” flexibly, with the word’s

scope clarified by additional specifying language—“hang[ing]

by the neck,” slit[ting] the nose, and “prescribed by the law of

the State.” In light of this history, the best interpretation follows

the plain meaning of the FDPA, which specifies that “manner”

is whatever is prescribed by state law. This interpretation

respects Congress’ decision to create a federal death penalty

that relies on federalism. The FDPA requires DOJ to follow the

procedures set forth in state laws and regulations but does not

foreclose federal protocols that apply in areas not addressed by

state law.

C.

The Department raises a parade of horribles if “manner” is

read to include more than the method of execution.

Specifically, DOJ argues that a broader reading will make it

much more difficult to execute prisoners and will leave the

federal government unable to choose the most humane

execution procedures. The government’s purpose-driven

arguments rely on broad policy goals and practical difficulties,

rather than the plain meaning of the text. These policy

arguments, however valid, cannot overcome Congress’s plain

choice in the FDPA to allow the manner of execution to turn

on state law.13

13

Judge Katsas suggests that arguments about consequences are

relevant to “help resolve textual ambiguity.” Concurring Op. 16 n.8

(Katsas, J.). Yet the word “manner” as used in Section 3596 is not

23

DOJ’s concerns are rooted in what the Department deems

to be the purposes of the FDPA. DOJ Br. 15; see also

Concurring Op. 13 (Katsas, J.) (discussing one purpose of the

FDPA “to ensure a workable and expanded system of capital

punishment”). As a court, however, “our function [is] to give

the statute the effect its language suggests,” not to further

whatever “admirable purposes it might be used to achieve.”

Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 270

(2010). DOJ urges us to give the FDPA the interpretation

producing what it believes would be the most effective

execution regime, but to do so would ignore both the limited

nature of our judicial function and the realities of legislative

deliberation:

[N]o legislation pursues its purposes at all costs.

Deciding what competing values will or will not

be sacrificed to the achievement of a particular

objective is the very essence of legislative

choice—and it frustrates rather than effectuates

legislative intent simplistically to assume that

whatever furthers the statute’s primary

objective must be the law.

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 646–47

(1990) (citation and quotation marks omitted).

ambiguous. Rather, as already explained, the ordinary meaning of

the word “manner” is broad and flexible, but as qualified in the

FDPA, the “manner” of execution is unambiguous: It is whatever

“manner” is prescribed by applicable state law. See supra at 6–8; see

also Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (“Broad

general language is not necessarily ambiguous”). Speculations about

congressional intent are rarely illuminating, particularly when, as

here, the text of the statute provides the relevant level of specificity.

24

In the FDPA, Congress incorporated state law instead of

directing DOJ to promulgate a uniform protocol. This suggests

that Congress was balancing at least two competing values: the

need to effectively implement federal death sentences and an

interest in federalism. Perhaps Congress simply decided to

duck controversial specifics by leaving some questions to state

law. Whatever the reason, statutes strike a bargain and must be

enforced in their details, not in their lofty goals. After all, “[i]f

courts felt free to pave over bumpy statutory texts in the name

of more expeditiously advancing a policy goal, we would risk

failing to take account of legislative compromises essential to

a law’s passage and, in that way, thwart rather than honor the

effectuation of congressional intent.” New Prime Inc., 139 S.

Ct. at 543 (quotation marks and alterations omitted). We should

decline DOJ’s invitation to question the bargain Congress

struck here. To the extent more detailed state statutes raise

additional interpretive questions, that is an unavoidable

consequence of the incorporation of state law. Unless and until

Congress amends the FDPA, DOJ is bound to “follow its

commands as written, not to supplant those commands with

others it may prefer.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,

1355 (2018). We have no license to read into the FDPA a

limitation on “manner” that has no basis in the text and to read

out of the statute its incorporation of state law.

In addition, DOJ’s policy concerns about administrability

would have applied with equal force in 1937, when Congress

first incorporated state law to govern the manner of federal

executions. See New Prime Inc., 139 S. Ct. at 539 (“[I]t’s a

fundamental canon of statutory construction that words

generally should be interpreted as taking their ordinary ...

meaning ... at the time Congress enacted the statute.”

(quotation marks omitted)). In 1937, permissible execution

methods varied significantly across the country and included

hanging, electrocution, the gas chamber, and others. State

25

execution methods also differed, albeit to a lesser extent, when

the FDPA was passed in 1994. Thus, even under DOJ’s

interpretation that “manner” means only method, until recently

the federal government would have had to apply varying

execution methods on a state-by-state basis. DOJ claims that

state-by-state administration is unworkable, but state-by-state

administration has indisputably been a feature of this statutory

framework since 1937. A uniform method is possible under

DOJ’s interpretation only because all the death penalty states

have made independent choices since the FDPA’s enactment

to adopt the method of lethal injection.

Similarly, the federal government has never had absolute

license to choose the most humane execution procedures.

When Congress passed the 1937 statute, it chose state practice

over hanging in part because “[m]any States”—but not all—

“use[d] more humane methods of execution, such as

electrocution, or gas.” H.R. Rep. No. 75-164, at 1 (1937).

Congress could have selected one of those more humane

methods instead of hanging, but it chose to leave that decision

to the states—many of which continued to hang criminals. See

Andres v. United States, 333 U.S. 740, 745 (1948) (noting that

the “method of inflicting the death penalty” in Hawaii in 1948

was “death by hanging”). Indeed, some states continued to

provide for hanging even after the passage of the FDPA in

1994. See Baze, 553 U.S. at 43 n.1 (plurality opinion) (noting

that New Hampshire and Washington still allowed for hanging

in 2008). Even under DOJ’s interpretation of the FDPA, the

government may choose what it considers to be the most

humane procedures only when state law does not provide for

another method of execution. Whatever the legitimacy of

26

DOJ’s concerns, they are necessary features of the statute

Congress enacted.14

In any event, as a practical matter, my textual

interpretation of the FDPA mitigates many of the concerns

raised by the district court’s broad reading. The FDPA’s

reliance on state law leaves ample scope for DOJ to follow its

federal execution procedures and protocols. Few of the

procedural details cited by the plaintiffs appear to carry the

force of law, so the federal government need not follow them.

State execution statutes tend to be rather brief, specifying lethal

injection without adding further details. For example, none of

the four states at issue in this case have statutes precluding the

use of pentobarbital. See Tex. Code Crim. Proc. Ann. art. 43.14

(calling for lethal injection without specifying which chemical

to be used); Ark. Code Ann. § 5-4-617 (allowing lethal

injection using either a barbiturate like pentobarbital or a three

drug solution); Ind. Code § 35-38-6-1 (calling for lethal

injection without specifying which chemical must be used);

Mo. Ann. Stat. § 546.720 (calling for lethal injection without

specifying which chemical must be used).

14

Like the DOJ, Judge Tatel invokes the FDPA’s goal of ensuring

more humane executions, but to support the opposite interpretation.

He argues that reading “prescribed by the law of the State” to exclude

non-binding state execution protocols would “defeat section

3596(a)’s purpose—to make federal executions more humane by

ensuring that federal prisoners are executed in the same manner as

states execute their own.” Dissenting Op. 8. Yet that argument

deprives the phrase “prescribed by … law” of all meaning. If

Congress had intended the federal government to incorporate all of

the state’s execution procedures, it would have said so. Instead,

Congress chose to incorporate only the manner prescribed by state

law.

27

Indeed, I have not been able to locate statutes or formal

regulations in any state that would prevent the federal

government from using pentobarbital, the drug currently

specified in DOJ’s protocol addendum. In the rare cases where

state law provides for a particular substance, states generally

either include pentobarbital on the list of permitted substances,

see 501 Ky. Admin. Regs. 16:330 (allowing either

pentobarbital or thiopental sodium), or include a general

provision allowing any equally effective substance, see Utah

Admin. Code r. 251-107-4 (providing for “a continuous

intravenous injection, one of which shall be of a lethal quantity

of sodium thiopental or other equally or more effective

substance to cause death”).

More specific details are generally found in informal state

policies and protocols. Execution protocols are exempted from

many states’ administrative procedure acts, including their

formal rulemaking requirements. See, e.g., Ark. Code Ann. § 5-

4-617(h); Middleton v. Mo. Dep’t of Corr., 278 S.W.3d 193,

195–97 (Mo. 2009); Porter v. Commonwealth, 661 S.E.2d 415,

432–33 (Va. 2008); Abdur’Rahman v. Bredesen, 181 S.W.3d

292, 312 (Tenn. 2005). Even in states that provide for formal

rulemaking, execution protocols tend to be informal and non-

binding. Consider Indiana, the state designated by DOJ

whenever the sentencing state does not provide for the death

penalty. Indiana allows its department of corrections to adopt

rules under the state’s formal rulemaking provisions to

implement its execution statute. See Ind. Code § 35-38-6-1(d).

Yet the state’s current execution procedures were not

promulgated under that statute and do not purport to carry the

force of law. See Indiana State Prison Facility Directive, ISP

06-26: Execution of Death Sentence 14 (Jan. 22, 2014) (noting

that Indiana’s protocol is “revised as needed,” not under the

state’s formal rulemaking procedures, but in accordance with

the department of corrections’ policies). Similarly, both

28

Arkansas’ and Missouri’s protocols permit the director of the

department of corrections to modify certain aspects of the

execution procedures. See Missouri Department of

Corrections, Preparation and Administration of Chemicals for

Lethal Injection 1 (Oct. 18, 2013); Arkansas Lethal Injection

Procedure 3 (Aug. 6, 2015), https://bit.ly/2ExLkTE. A state

execution protocol that explicitly allows the department of

corrections to depart from the protocol’s requirements on a

case-by-case basis cannot be said to be binding. Given that

most details found in state execution protocols are not

prescribed by law, DOJ will be able to make most procedural

choices regarding federal executions.15

II.

Based on this interpretation of Section 3596(a), I would

hold that the 2019 protocol did not exceed the government’s

authority under the FDPA. As an initial matter, the protocol is

unlikely to conflict with state law in most cases, as state laws

15

Judge Tatel does not dispute that the four protocols at issue were

not promulgated through formal rulemaking procedures. Instead, he

attempts to cabin Chrysler’s holding to its facts, ignores the

consistent line of cases requiring “law” to have binding effect, see

supra at 7 (collecting cases), and makes a general appeal to

examining “context” when determining whether a regulation issued

outside a formal rulemaking process constitutes “law.” Dissenting

Op. 7–8. Judge Tatel, however, fails to identify a single case

supporting his theory that non-binding protocols can qualify as “law”

in any context—despite the fact that, as Judge Tatel emphasizes,

“prescribed by law” or similar language appears at least 1,120 times

in the United States Code. Id. at 7. As the Court explained in

Chrysler, the question is simply whether these state protocols are

binding on state officials. Because these protocols do not appear to

have the binding force of law, they cannot be deemed part of the “law

of the State.”

29

usually address execution procedures only in general terms.

See supra at 24–26. Should cases arise in which the protocol

differs from state law—for example, in states with more

detailed regulations governing executions, see, e.g., 501 Ky.

Admin. Regs. 16:330; Or. Admin. R. 291-024-0080—DOJ

remains free to depart from the federal protocol. Indeed, the

protocol provides explicitly that the Director may depart from

its procedures in the face of superseding legal obligations—

namely, when “necessary” to “comply with specific judicial

orders” or when “required by other circumstances.” BOP

Addendum 1; see also Department of Justice, BOP Execution

Protocol 4 (2019) (“Execution Protocol”) (“These procedures

should be observed and followed as written unless deviation or

adjustment is required ….”). In addition, the protocol directs

BOP to “make every effort … to ensure the execution process

… [f]aithfully adheres to the letter and intent of the law.”

Execution Protocol 4–5. These provisions indicate that the

government must depart from the protocol as necessary to

“adhere to the letter and intent of” the FDPA—including the

requirement that the government apply the manner of execution

prescribed by state law. Reading the protocol and addendum as

a whole suggests that DOJ must follow state law, and not that

the BOP Director is merely granted “discretion.” Dissenting

Op. 9. Because the 2019 protocol allows departures as needed

to comply with state law, it is consistent with the FDPA.

Judge Tatel casts this reading of the protocol’s plain text

as an improper effort to “rewrite the protocol” to support an

interpretation that the government has not advanced.

Dissenting Op. 10. As an initial matter, my interpretation

requires no revision—it rests on the words DOJ used in

promulgating its protocol. Moreover, “[o]ur duty in conducting

de novo review on appeal is to resolve the questions of law this

case presents.” Citizens for Responsibility & Ethics in Wash. v.

FEC, 892 F.3d 434, 440 (D.C. Cir. 2018). “When an issue or

30

claim is properly before the court, the court is not limited to the

particular legal theories advanced by the parties, but rather

retains the independent power to identify and apply the proper

construction of governing law.” Kamen v. Kemper Fin. Servs.,

Inc., 500 U.S. 90, 99 (1991); see also U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–47 (1993).

Irrespective of the government’s litigation strategy, the issue

before us in this case is whether the 2019 protocol exceeds the

government’s authority under the FDPA, and it is entirely

appropriate to conduct an independent assessment of all

relevant materials—including, in particular, the text of the

protocol—in order to fulfill our duty to say what the law is.

Because the district court’s order was premised

exclusively on the plaintiffs’ claim that the protocol was “in

excess of statutory … authority,” 5 U.S.C. § 706(2)(C), I would

vacate the preliminary injunction. I would further hold that the

2019 protocol is a “rule[ ] of agency organization, procedure,

or practice” exempt from the APA’s notice and comment

requirements. See 5 U.S.C. § 553(b). The plaintiffs maintain

we should not reach this claim before the district court has

considered it. It is true that we ordinarily decline to resolve

claims and arguments not addressed by the district court in

deciding a preliminary injunction motion. See Sherley v.

Sebelius, 644 F.3d 388, 397–98 (D.C. Cir. 2011). But if our

holding on appeal makes a conclusion “inevitable” then “we

have power to dispose [of a claim] as may be just under the

circumstances, and should do so to obviate further and entirely

unnecessary proceedings below.” Wrenn v. Dist. of Columbia,

864 F.3d 650, 667 (D.C. Cir. 2017) (cleaned up); see also 28

U.S.C. § 2106 (granting appellate courts authority to “direct the

entry of … judgment … as may be just under the

circumstances”). The plaintiffs’ notice and comment challenge

rises and falls with the merits of their FDPA claim—that the

protocol is a procedural rule follows inescapably from my

31

conclusion that the protocol does not exceed DOJ’s authority

under the FDPA. Because the issues are intertwined and the

plaintiffs’ notice and comment challenge fails under my

interpretation of the FDPA, it is entirely unnecessary for the

district court to address this claim on remand.

“The critical feature of a procedural rule is that it covers

agency actions that do not themselves alter the rights or

interests of parties.” Nat’l Min. Ass’n, 758 F.3d at 250

(quotation marks omitted). By its terms, the protocol does

nothing to interfere with the Marshal’s ability to comply with

the FDPA or with the plaintiffs’ right to have their sentences

implemented “in the manner prescribed by the law of the

State.” 18 U.S.C. § 3596(a). To the contrary, the protocol

simply lays out procedures for the federal government to

follow in cases where state law does not address some aspect

of the execution process. It directs the federal government in

all cases “to ensure the execution process … [f]aithfully

adheres to the letter and intent of the law,” Execution Protocol

4–5, which necessarily includes following the FDPA’s

directive to implement death sentences in conformity with state

positive law. As such, the protocol cannot be said to “impose

[any] new substantive burdens,” Aulenback, Inc. v. Fed.

Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997), or to

“alter the rights or interests of [affected] parties,” Nat’l Min.

Ass’n, 758 F.3d at 250 (citation omitted)—rather, any

substantive burdens are derived from the FDPA and the state

laws it incorporates.

Moreover, the procedures outlined in the 2019 protocol

bear all the hallmarks of “internal house-keeping measures

organizing [DOJ’s] activities” with respect to preparing for and

conducting executions. Am. Hosp. Ass’n v. Bowen, 834 F.2d

1037, 1045 (D.C. Cir. 1987) (citation omitted). The protocol

and accompanying addendum provide lengthy “checklists for

32

pre-execution, execution and post execution procedures,”

Execution Protocol 4, including matters as specific as

arranging food services for an inmate’s final meal, id. at 17,

“open[ing] the drapes covering the windows of the witness

rooms” during an execution, id. at 24, and announcing the time

of death “prior to the drapes being closed,” id. at 25. DOJ’s

decision to promulgate detailed “written guidelines to aid [its]

exercise of discretion” during the highly sensitive process of

conducting executions should not come “at the peril of having

a court transmogrify those guidelines into binding norms

subject to notice and comment strictures.” Aulenback, 103 F.3d

at 169 (citation and quotation marks omitted). Because the

protocol possesses the essential features of a procedural rule,

the plaintiffs’ notice and comment challenge also fails.

I would not reach the plaintiffs’ argument that only the

U.S. Marshal Service has the authority to promulgate rules

under the FDPA. The plaintiffs did not develop this argument

below, so it is forfeited. See Gov’t of Manitoba v. Bernhardt,

923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional

circumstances, a party forfeits an argument by failing to press

it in district court.”).16 I would also decline to reach the

plaintiffs’ claims under the Food, Drug & Cosmetic Act and

the Controlled Substances Act, which were neither addressed

by the district court nor pressed by the plaintiffs on appeal.

Unlike the notice and comment challenge to the protocol, the

outcome of the FDCA and CSA claims is not plainly dictated

16

The evidence Judge Katsas relies on to conclude that this argument

was not forfeited comes from a chart included in the factual

background section of one plaintiff’s preliminary injunction motion,

summarizing the “Details of 2019 Protocol and Concerns That Are

Implicated.” See Pl.’s Mot. for Prelim. Inj., Roane v. Barr, No. 19-

mc-0145, at 10 (D.D.C. Sept. 27, 2019). Such “fleeting reference[s]”

do not a developed legal argument make. Williams v. Lew, 819 F.3d

466, 471 (D.C. Cir. 2016).

33

by my interpretation of the FDPA. Thus, it will be “for the

district court to determine, in the first instance, whether the

plaintiffs’ showing on [these claims] warrants preliminary

injunctive relief.” Sherley, 644 F.3d at 398.

TATEL, Circuit Judge, dissenting: Plaintiffs Daniel Lee,

Wesley Purkey, Alfred Bourgeois, and Dustin Honken do not

challenge the federal government’s authority to execute them.

Instead, they argue that the Attorney General’s plan for their

executions—that is, the federal protocol—conflicts with

section 3596(a) of the Federal Death Penalty Act of 1994

(FDPA), 18 U.S.C. §§ 3591 et seq. Section 3596(a) instructs

U.S. Marshals to carry out federal death sentences by arranging

for prisoners to be executed “in the manner prescribed by the

law of the State” in which they were sentenced—or, if that state

has no death penalty, the law of “another State” “designate[d]”

by the sentencing judge. Id. § 3596(a). Notwithstanding its

weighty subject matter, then, this case presents a classic

question under the Administrative Procedure Act: whether an

agency has acted “in accordance with law.” 5 U.S.C.

§ 706(2)(A).

In defending the federal protocol, the government argues

that the word “manner” in section 3596(a) refers only to the

general execution method—e.g., lethal injection—not, as

plaintiffs argue, to the procedures and techniques used to

implement that method, e.g., substance administered or dosage.

Because the government seeks no deference to its interpretation

of the statute, see Oral Arg. Rec. 5:57–6:00 (confirming this),

to prevail it must demonstrate not merely that its interpretation

of section 3596(a) is reasonable, but that it “best effectuates the

underlying purposes of the statute.” Vanguard Interstate Tours,

Inc. v. ICC, 735 F.2d 591, 597 (D.C. Cir. 1984).

I agree with Judge Rao that the term “manner” refers to

more than just general execution method. Because her detailed

opinion so thoroughly addresses the government’s arguments

and convincingly responds to Judge Katsas’s survey of the

historical record, I see no need to say anything more on the

issue.

2

Beyond this, Judge Rao and I part company. She would

hold that when carrying out executions under section 3596(a),

the Attorney General must comply with state execution

procedures set forth in “statutes and formal regulations,” but

not those in state execution protocols. Rao Op. at 1. She also

reads the federal protocol to contain a “carveout” “indicat[ing]

that the government must depart from the protocol as necessary

to . . . apply the manner of execution prescribed by state law.”

Id. at 1, 29. The government, however, makes neither

argument, and the protocol contains no such carveout. In my

view, section 3596(a), best understood, 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. Because the

federal protocol, on its face, takes no account of these

procedures, it is contrary to section 3596(a), and I would vacate

it. See 5 U.S.C. § 706(2)(A), (C) (requiring courts to “hold

unlawful and set aside agency action . . . found to be . . . not in

accordance with law” or “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right”).

Plaintiffs were sentenced to be executed “in the manner

prescribed by the law,” 18 U.S.C. § 3596(a), of Arkansas,

Missouri, Texas, and Indiana, respectively. All four states have

enacted statutes that establish lethal injection as the method of

execution and delegate to state prison officials the task of

developing specific execution procedures. Pursuant to these

statutes, state officials have adopted execution protocols that

designate, among other things, the chemicals to be

administered, dosages, procedures for vein access, and

qualifications of execution personnel. State officials adopt such

protocols not just to comply with state law, but also to ensure

3

that executions comply with the Constitution. Cf. Baze v. Rees,

553 U.S. 35, 55–56 (2008) (plurality opinion) (rejecting Eighth

Amendment method-of-execution challenge “in light of”

“important safeguards” contained in state execution protocol,

including “that members of the [intravenous] team . . . have at

least one year of professional experience” and specific vein-

access procedures); Raby v. Livingston, 600 F.3d 552, 560 (5th

Cir. 2010) (rejecting Texas inmate’s Eighth Amendment claim

because state execution protocol “mandates . . . that sufficient

safeguards are in place to reduce the risk of pain below the level

of constitutional significance”).

For example, Texas’s governing statute requires

condemned prisoners to be “executed . . . by intravenous

injection . . . , [with] such execution procedure to be

determined and supervised by the director of the correctional

institutions division of the Texas Department of Criminal

Justice.” Tex. Code Crim. Proc. Ann. art. 43.14(a). Pursuant to

that statute, the Director “adopt[ed]” an “Execution

Procedure,” under which “100 milliliters of solution containing

5 grams of Pentobarbital” “shall be mixed . . . by members of

the drug team,” which, in turn, “shall have at least one

medically trained individual,” a term defined in the protocol.

Texas Department of Criminal Justice, Correctional

Institutions Division, Execution Procedure 2, 7–8 (Apr. 2019),

Administrative Record (A.R.) 84, 89–90. The protocol further

requires that intravenous lines be inserted by “a medically

trained individual” who “shall take as much time as is needed”

to do so “properly,” and who is prohibited from employing a

“cut-down” technique, a surgical procedure that exposes the

vein. Id. at 8, A.R. 90.

The governing Missouri statute “authorize[s] and

direct[s]” “the director of the department of corrections . . . to

provide a suitable and efficient room or place . . . and the

4

necessary appliances” for carrying out lethal injections and

requires “[t]he director . . . [to] select an execution team.” Mo.

Rev. Stat. § 546.720.1–2. Pursuant to that statute, the Director

issued a protocol requiring prisoners to be executed using two

five-gram doses of pentobarbital—quantities that “may not be

changed without prior approval of the department director”—

which “shall be injected into the prisoner . . . under the

observation of medical personnel,” namely, “a physician,

nurse, and pharmacist.” Missouri Department of Corrections,

Preparation and Administration of Chemicals for Lethal

Injection 1–2 (Oct. 18, 2013), A.R. 70–71.

The other two states—Arkansas and Indiana—have

similar statutory schemes. See Ark. Code Ann. § 5-4-617 (“The

director [of the Department of Correction] shall develop

logistical procedures necessary to carry out the sentence of

death, including . . . [e]stablishing a protocol for any necessary

mixing or reconstitution of the drugs and substances set forth

in this section in accordance with the instructions.”); Ind. Code

§ 35-38-6-1 (authorizing “[t]he department of correction [to]

adopt rules” to implement lethal-injection statute); see also

Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016)

(discussing Arkansas’s lethal injection protocol); Department

of Correction, Indiana State Prison Facility Directive, ISP 06-

26: Execution of Death Sentence 16–17 (Jan. 22, 2014), Mot.

for Prelim. Inj. Barring the Scheduled Execution of Pl. Dustin

Lee Honken, Ex. 6, In the Matter of the Federal Bureau of

Prisons’ Execution Protocol Cases, No. 19-mc-145 (D.D.C.

Nov. 5, 2019).

The “law” of each state, then, requires executions to be

implemented according to procedures determined by state

corrections officials, who, in turn, have set forth such

procedures in execution protocols. In other words, “by law,”

each state directed its prison officials to develop execution

5

procedures, and “by law,” those officials established such

procedures and set them forth in execution protocols.

Accordingly, the protocols have been “prescribed by . . . law.”

18 U.S.C. § 3596(a). Apparently agreeing, the government

argues that interpreting “manner” to mean more than

“method,” as Judge Rao and I do, would require it to use the

same drugs as the states—drugs “prescribed” in the relevant

states’ protocols, not in their statutes. See Appellants’ Br. 29.

Indeed, at oral argument government counsel rejected the

notion that “the law of the State” excludes execution protocols,

calling it “incongruous to think that Congress thought the

degree of federal control over how to implement . . . a federal

execution was going to depend on the happenstance of exactly

where in its law or regulation or sub-regulatory guidance a state

chose to write out very detailed procedures.” Oral Arg. Rec.

39:12–32.

Were there any doubt about this, “the natural way to draw

the line is in light of the statutory purpose,” Rose v. Lundy, 455

U.S. 509, 517 (1982) (internal quotation marks and citation

omitted), and here, interpreting section 3596(a) to include state

execution protocols “best effectuates the underlying purposes

of the statute,” Vanguard Interstate Tours, 735 F.2d at 597. As

Judge Rao points out, section 3596(a) replicates nearly word-

for-word the statute that governed federal executions from

1937 to 1984. Like the FDPA, that statute required executions

to be carried out in “the manner prescribed by the laws of the

State within which the sentence [wa]s imposed,” or, if that state

had no death penalty, another state designated by the

sentencing court. Act of June 19, 1937, ch. 367, 50 Stat. 304

(repealed 1984) (“1937 Act”). Central to the issue before us,

Congress passed the 1937 Act because the states were

undertaking serious efforts to make executions more humane.

See H.R. Rep. 75-164 at 2 (1937) (letter from Attorney General

Homer Cummings) (advising Congress that states “have

6

adopted more humane methods” of execution than hanging and

recommending that “the Federal Government likewise . . .

change its law in this respect”); see also Stuart Banner, The

Death Penalty: An American History 171 (2002) (explaining

that, as early as the 1830s, states had begun experimenting with

execution procedures, endeavoring to “minimize the

condemned person’s pain”). Accordingly, almost all federal

executions pursuant to the 1937 Act were carried out by state

officials, who, supervised by U.S. Marshals, executed federal

prisoners in the same “manner” as they executed their own. See

Oral Arg. Rec. 15:00–03 (government counsel agreeing that

most executions pursuant to the 1937 Act were carried out in

state facilities); David S. Turk, Forging the Star: The Official

Modern History of the United States Marshals Service 23–24

(2016) (describing how the U.S. Marshal arranged for Ethel

and Julius Rosenberg to be executed at Sing-Sing Correctional

Facility, then home to New York state’s death row and electric

chair).

By using virtually identical language in FDPA section

3596(a), Congress signaled its intent to continue the same

system—for federal executions to be carried out in the same

manner as state executions. See Lorillard v. Pons, 434 U.S.

575, 580 (1978) (“Congress is presumed to be aware of an

administrative . . . interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change.”).

Given this, reading section 3596(a) to exclude state execution

protocols, which set forth the very procedures states use to

carry out executions humanely, would run contrary not only to

section 3596(a)’s “‘ultimate purpose[]’” of ensuring more

humane executions, but also to “‘the means [Congress] has

deemed appropriate . . . for the pursuit of [that] purpose[]’”—

requiring federal prisoners to be executed in the same manner

as states execute their own. Gresham v. Azar, 950 F.3d 93, 101

(D.C. Cir. 2020) (quoting MCI Telecommunications Corp. v.

7

American Telephone & Telegraph Co., 512 U.S. 218, 231 n.4

(1994)). And at least as recently as 2008, the states have “by all

accounts” “fulfilled” their “role . . . in implementing their

execution procedures . . . with an earnest desire to provide for

a progressively more humane manner of death.” Baze, 553 U.S.

at 51.

Judge Rao argues that state execution protocols are not

“prescribed by . . . law” within the meaning of section 3596(a)

because they are not “formal regulations.” Rao Op. at 1. In

support, she cites Chrysler Corp. v. Brown, 441 U.S. 281

(1979), in which the Supreme Court considered a provision of

the Trade Secrets Act that protected confidential information

by prohibiting its disclosure unless “‘authorized by law,’” id.

at 294 (quoting 18 U.S.C. § 1905). The Court held that a

regulation issued pursuant to an agency’s “housekeeping”

statute and without notice-and-comment procedures did not

qualify as “law” under the Act. Id. at 309–16. From this, Judge

Rao concludes that the word “law” in FDPA section 3596(a) is

limited to regulations issued pursuant to notice-and-comment

procedures. See Rao Op. at 7, 28 n.13.

By my count, the phrase “authorized by law” and its twin

sisters—“prescribed by law” and “prescribed by the law”—

appear 1,120 times in the United States Code, and the Supreme

Court has repeatedly made clear that, even within the same

statute, “the presumption of consistent usage ‘readily yields’ to

context.” Utility Air Regulatory Group v. EPA, 573 U.S. 302,

320 (2014) (quoting Environmental Defense v. Duke Energy

Corp., 549 U.S. 561, 574 (2007)). In Chrysler, moreover, it was

only after closely examining “evidence of legislative intent,”

including statutory text and legislative history, that the Court

limited “law” in the Trade Secrets Act to notice-and-comment

regulations. 441 U.S. at 312. In other words, context matters,

and here context requires a different result. Limiting “the

8

manner prescribed by the law of the State” to execution

procedures contained in statutes and in regulations issued

pursuant to notice and comment, and thereby excluding those

contained in state execution protocols, would defeat section

3596(a)’s purpose—to make federal executions more humane

by ensuring that federal prisoners are executed in the same

manner as states execute their own.

Judge Rao also argues that the Attorney General need not

follow state execution protocols because they “do not appear to

have the binding force of law,” “leav[ing] the federal

government free to specify” its own procedures. Rao Op. at 2,

28 n.15. But whether state execution protocols are binding

under state law has nothing to do with whether the Attorney

General has authority under federal law to issue a uniform

execution protocol. And as explained above, section 3596(a)

shifts authority for determining how to “implement” death

sentences to the states, leaving no comparable authority for the

Attorney General. Indeed, apart from the Attorney General’s

authority to establish procedures unrelated to “effectuat[ing]

the death,” see infra at 12, the statute assigns the Attorney

General just three narrow tasks: keeping custody of persons

sentenced to death until they exhaust their appeals, 18 U.S.C.

§ 3596(a); releasing prisoners into Marshal custody for

implementation of their death sentences, id.; and approving the

amount Marshals may pay for the use of state facilities and

personnel, id. § 3597(a).

Of course, the federal protocol’s failure to incorporate

state execution procedures would pose no problem if, as Judge

Rao believes, it contained a “carveout,” “indicat[ing] that the

government must depart from the protocol as necessary to . . .

9

apply the manner of execution prescribed by state law.” Rao

Op. at 1, 29. But it does not. In relevant part, the protocol states:

The procedures utilized by the [Bureau of

Prisons (BOP)] to implement federal death

sentences shall be as follows unless modified

at the discretion of the Director or his/her

designee, as necessary to (1) comply with

specific judicial orders; (2) based on the

recommendation of on-site medical

personnel utilizing their clinical judgment;

or (3) as may be required by other

circumstances.

Department of Justice, Addendum to BOP Execution Protocol,

Federal Death Sentence Implementation Procedures 1 (July 25,

2019) (emphasis added).

Far from requiring Marshals to follow state law, this

provision mentions neither state law nor section 3596(a), and it

leaves the decision to “modif[y]” protocol procedures to “the

discretion” of the BOP Director, id. Moreover, only the third

justification for departing from the protocol—“other

circumstances,” id.—could possibly encompass inconsistent

state law. But the government—which, after all, wrote the

protocol—does not so argue. At most, the government suggests

that it could exercise its residual discretion in accordance with

state law, noting that “nothing in the federal protocol expressly

precludes” “offer[ing] . . . a sedative” or having a physician

present. Appellants’ Br. 33 (referring to the two differences

between the federal protocol and the relevant state protocols

identified by the district court).

Where, as here, agency action is challenged under the

Administrative Procedure Act, we can uphold the action only

10

on “[t]he grounds . . . upon which the record discloses that [it]

was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

Throughout this litigation, t

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