Petition for Writ of Certiorari — Alfred Bourgeois, et al., Petitioners v. William P. Barr, Attorney General, et al.

APPENDIX

1a

APPENDIX A

_________

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

2a

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, Stephanie Simon, and

Shawn Nolan, Assistant Federal Public Defender.

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

Opinion for the Court filed PER CURIAM.

Concurring

KATSAS.

opinion

filed

by

Circuit

Judge

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.

3a

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,

4a

see Sentencing Reform Act of 1984, Pub. L. No. 98473, § 212, 98 Stat. 1987, but left intact the

underlying capital offenses. Accordingly, federal law

still 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

5a

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).

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 50page 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

6a

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).

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.

7a

For these reasons, the Bureau proposed a twopage 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 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.

8a

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 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.

9a

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

10a

his favor, and that an injunction is in 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

11a

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 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-andcomment 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-

12a

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 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.

13a

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

14a

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 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.

15a

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 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.

16a

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 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

17a

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 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

18a

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.

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.

19a

To the 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

20a

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

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

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.

21a

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 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

22a

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

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.

23a

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 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

24a

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-acting barbiturate or other

similar drug in combination with a chemical

paralytic agent.”);4 Miss. Code Ann. § 99-19-51 (1994)

4

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

25a

(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 ultrashortacting 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

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.

26a

FDPA was enacted, Nelson v. 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

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.”

27a

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 (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

28a

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

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).

29a

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 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

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-thedeath-penalty-in-pennsylvania.

30a

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 0626: 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 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

31a

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 unadministrable.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

implementing detail that must follow state law is the

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.

32a

“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

33a

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. 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

34a

“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 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-

35a

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, 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

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.

36a

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 § 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

37a

“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

****

For all these reasons, I would hold that the FDPA

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. 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.

38a

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

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

39a

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

40a

argument is also without merit.11

C

The federal protocol is both a procedural rule and

a general policy statement exempted from the noticeand-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

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 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.

41a

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 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

42a

plaintiffs’ contrary claim is without merit.12

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

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.

43a

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 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

44a

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-yearold 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 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

45a

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 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.

46a

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 and induce cardiac

47a

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,

48a

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 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.

49a

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.

50a

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, 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

51a

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 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;

52a

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” 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

1

Judge Katsas makes much of the fact that eighteenthcentury 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.

53a

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 ultrashortacting 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

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)

54a

(“[T]he Commonwealth’s continued use of the threedrug 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

frequently in the execution context as a broad term

that may encompass any level of detail.3

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.”).

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

55a

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 States v. Howard that a Florida regulation

procedural details of execution only relatively recently. See

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

56a

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

57a

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

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 “‘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).

58a

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 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

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.

59a

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 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

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.”).

60a

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.

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

61a

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.

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

62a

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 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

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.

63a

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.

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

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).

64a

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.

65a

Concurring Op. 4 (Katsas, J.). As he notes,

Blackstone wrote that the 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

66a

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 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.

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.

67a

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 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

68a

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 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

69a

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. 10423, 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

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

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.

70a

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” meant in 1790 (i.e.,

what sense it carried), DOJ focuses narrowly on

11

Judge Katsas’s only linguistic critique of the sensereference 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 does nothing to

undermine the commonly accepted distinction between a word’s

meaning and the thing the word refers to on a given occasion.

71a

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

72a

statutes, the FDPA directs the federal government to

follow suit. See New Prime 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

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.

73a

nothing about whether the Department can create

uniform procedures to fill gaps in state law, as the

protocol and addendum do in this case.

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

74a

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

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

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 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.

75a

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).

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

76a

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

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

77a

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 DOJ’s

concerns, they are necessary features of the statute

Congress enacted.14

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.

78a

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).

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,

79a

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 § 3538-6-1(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 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

80a

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 caseby-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

15

executions.

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 usually

address execution procedures only in general terms.

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.”

81a

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

82a

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 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

83a

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 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

84a

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 housekeeping 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 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

85a

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 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.

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).

86a

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).

87a

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.

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”).

88a

A.

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 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

89a

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 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—

90a

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

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

91a

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 adopted more

humane methods” of execution than hanging and

recommending that “the Federal Government

92a

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

93a

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. 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

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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-andcomment regulations. 441 U.S. at 312. In other

words, context matters, and here context requires a

different result. Limiting “the 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

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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).

B.

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 . . . 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

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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 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, the government has insisted that

requiring it to comply with state law would be

“perverse[],” Appellants’ Br. 19, and would

“hamstring” implementation of the federal death

penalty, Reply Br. 13. We have no authority to

rewrite the protocol to ensure it complies with the

FDPA. “[A]gency policy is to be made, in the first

instance, by the agency itself . . . . Courts ordinarily

do not attempt . . . to fashion a valid regulation from

the remnants of the old rule.” Harmon v.

Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989). The

problem with Judge Rao’s interpretation of the

protocol, then, is not just that it represents an

“independent assessment” of the protocol’s meaning,

Rao Op. at 30, but more fundamentally that “it

sustains a rule which the agency has never adopted

at all,” Harmon, 878 F.2d at 495 n.20.

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C.

I end with a few observations about the

government’s defense of the protocol.

First, had Congress intended to authorize the

Attorney General to adopt a uniform execution

protocol, “it knew exactly how to do so.” SAS

Institute, Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018).

The year before Congress enacted the FDPA, thenAttorney General William Barr issued a regulation

setting lethal injection as the uniform federal

method of execution and authorizing the BOP

Director to determine which chemicals to use. See

Department of Justice, Implementation of Death

Sentences in Federal Cases, 58 Fed. Reg. 4898,

4901–02 (Jan. 19, 1993) (codified at 28 C.F.R. § 26.3)

(1993 Regulation). This regulation was a gap-filler:

several years earlier, Congress had repealed the

1937 Act, leaving unclear how federal executions

would be carried out. While Congress was

considering the bill that would become the FDPA,

General Barr’s successor, Attorney General Janet

Reno, warned that section 3596(a)’s “proposed

procedures contemplate a return to an earlier

system”—i.e., the 1937 Act—“in which the Federal

Government does not directly carry out executions,

but makes arrangements with states to carry out

capital sentences in Federal cases.” H.R. Rep. No.

104–23, at 22 (1995) (quoting Letter of Attorney

General Janet Reno to Honorable Joseph R. Biden,

Jr., Detailed Comments at 3–4 (June 13, 1994)). She

therefore recommended that Congress amend the bill

“to perpetuate the current approach”—i.e., the 1993

Regulation—“under which the execution of capital

sentences in Federal cases is carried out by Federal

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officials pursuant to uniform regulations issued by

the

Attorney

General.”

Id.

Despite

this

recommendation, “Congress didn’t choose to pursue

that known and readily available approach here. And

its choice”—to require executions to be carried out

according to state, not federal, law—“must be given

effect rather than disregarded.” SAS Institute, 138 S.

Ct. at 1356.

Second, the government argues that requiring it

to comply with state law would “preclud[e]” it “from

selecting more humane lethal-injection protocols

than those used by the states.” Appellants’ Br. 29. As

explained above, however, section 3596(a), like the

1937 Act, relies on the states, not the Attorney

General, to ensure that federal executions are

humane. Perhaps circumstances have changed and

authorizing the Attorney General to select lethal

substances, dosages, and injection procedures would

lead to more humane executions. That, however, “is a

decision for Congress and the President to make if

they wish by enacting new legislation.” Loving v.

IRS, 742 F.3d 1013, 1022 (D.C. Cir. 2014); see also

Rao Op. at 24. They have ready templates in the nine

bills Congress has considered and rejected in the

years since the FDPA’s enactment, every one of

which would have permitted federal executions to be

carried out “pursuant to regulations prescribed by

the Attorney General.” H.R. 2359, 104th Cong. § 1

(1995); see also H.R. 851, 110th Cong. § 6 (2007);

H.R. 3156, 110th Cong. § 126 (2007); S. 1860, 110th

Cong. § 126 (2007); H.R. 5040, 109th Cong. § 6

(2006); S. 899, 106th Cong. § 6504 (1999); H.R. 4651,

105th Cong. § 501 (1998); S. 3, 105th Cong. § 603

(1997); H.R. 1087, 105th Cong. § 1 (1997).

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Finally, the government argues that requiring it

to follow “every nuance” of state protocols “could

impose significant barriers to administering” the

federal death penalty. Appellants’ Br. 27. Plaintiffs,

however, do not contend that the government must

follow “every nuance.” Quite to the contrary, they

argue, and I agree, that section 3596(a) requires the

federal government to follow only “implementation”

procedures, 18 U.S.C. § 3596(a), which plaintiffs

define as those

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