Petition for Writ of Certiorari — Lisa Marie Montgomery, Petitioner v. Jeffrey A. Rosen, Acting Attorney General, et al.

CAPITAL CASE

EXECUTION SCHEDULED - JANUARY 12, 2021

No. 20-____

IN THE

Supreme Court of the United States

____________________

LISA MARIE MONTGOMERY,

Petitioner,

v.

JEFFREY ROSEN, ACTING ATTORNEY GENERAL OF THE

UNITED STATES IN HIS OFFICIAL CAPACITY, ET AL.,

Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

Kelley J. Henry

CAPITAL HABEAS UNIT

OFFICE OF FEDERAL PUBLIC

DEFENDER, M.D. TENN.

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

kelley_henry@fd.org

Meaghan VerGow

Counsel of Record

Anna O. Mohan

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

(202) 383-5504

mvergow@omm.com

i

QUESTIONS PRESENTED

1. Federal regulations provide that “[i]f the date

designated for execution passes by reason of a stay of

execution, then a new date shall be designated

promptly by the Director of the Federal Bureau of

Prisons when the stay is lifted.” 28 C.F.R. § 26.3(a)(1)

(emphasis added).

The first question presented is whether, consistent

with § 26.3(a)(1), the Director may designate a new

execution date for a person condemned to death while

a stay of that person’s execution is in place.

2. A panel of the D.C. Circuit summarily reversed

the reasoned decision of the district court on a motion

and without full briefing.

The second question presented is whether a federal court of appeals may summarily reverse the decision of a district court on an important question of

first impression.

ii

PARTIES TO THE PROCEEDING

Petitioner is Lisa Marie Montgomery, plaintiff-appellee below.

Jeffrey A. Rosen, Acting Attorney General of the

United States; Rosalind Sargent-Burns, Acting Pardon Attorney; Michael Carvajal, Director, Federal Bureau of Prisons; Barb von Blackensee, Regional Director of the North Central Region of the BOP; Michael

Carr, Warden, Federal Medical Center Carswell; T.J.

Watson, Warden, Federal Correctional Complex

Terre Haute; Alix M. McLaren, National Administrator of Women and Special Populations Federal Bureau of Prisons; United States Department of Justice;

Office of the Pardon Attorney; and Federal Bureau of

Prisons, are respondents on review.

iii

STATEMENT OF RELATED PROCEEDINGS

Lisa Montgomery v. Jeffrey Rosen, et al., No. 215001 (D.C. Cir.) (notice of appeal docketed on January

8, 2021).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................... i

PARTIES TO THE PROCEEDING .......................... ii

STATEMENT OF RELATED PROCEEDINGS ..... iii

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

RELEVANT PROVISION ......................................... 1

INTRODUCTION ..................................................... 1

STATEMENT ............................................................ 3

REASONS FOR GRANTING THE PETITION ....... 6

A. Whether § 26.3(a)(1) Permits The United

States To Designate A New Execution Date

While The Execution Is Stayed Is An

Important Question Worthy Of Review......... 6

B. Whether Summary Reversal Is Available

For Issues Of First Impression Is An

Important Question Worthy Of Review....... 18

C. This Case Is A Good Vehicle For

Addressing Both Questions .......................... 24

CONCLUSION ........................................................ 25

v

TABLE OF CONTENTS

(continued)

Page

APPENDIX A

D.C. Circuit Opinion

(Jan. 1, 2021)...................................................... 1a

APPENDIX B

District Court Opinion

(Dec. 24, 2020).................................................... 3a

APPENDIX C

District Court Order

(Dec. 26, 2020).................................................. 39a

APPENDIX D

District Court Order

(Dec. 28, 2020).................................................. 41a

APPENDIX E

Order Denying Rehearing

(Jan. 5, 2021).................................................... 45a

APPENDIX F

D.C. Circuit Mandate

(Jan. 5, 2021).................................................... 47a

APPENDIX G

Relevant Statutory Provisions.............................. 48a

vi

TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Siebert,

552 U.S. 3 (2007)................................................ 19

Auer v. Robbins,

519 U.S. 452 (1997) .............................................. 5

Barr v. E. Bay Sanctuary Covenant,

140 S. Ct. 3 (2019).............................................. 21

Blanco de Belbruno v. Ashcroft,

362 F.3d 272 (4th Cir. 2004).............................. 20

Christensen v. Harris Cty.,

529 U.S. 576 (2000) .......................................... 4, 7

Comcast Corp. v. Nat’l Ass’n of African

American-Owned Media,

140 S. Ct. 1009 (2020)........................................ 14

CSX Transp., Inc. v. Hensley,

556 U.S. 838 (2009)............................................ 19

Davis v. Mich. Dep’t of Treasury,

489 U.S. 803 (1989) ............................................ 14

Dodd v. United States,

545 U.S. 353 (2005) .............................................. 7

Dunn v. Wells Fargo Bank, N.A.,

No. 20-1080, 2020 WL 1066008 (7th Cir.

Feb. 25, 2020) ..................................................... 20

Ford v. Wainwright,

477 U.S. 399 (1986) .......................................18, 25

Gonzales v. Thomas,

547 U.S. 183 (2006) ............................................ 19

Grecian Magnesite Mining, Indus. &

Shipping Co., SA v. Comm’r,

926 F.3d 819 (D.C. Cir. 2019) .............................. 7

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Groendyke Transp., Inc. v. Davis,

406 F.2d 1158 (5th Cir. 1969)............................ 20

Harbison v. Bell,

556 U.S. 180 (2009) ............................................ 17

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017).......................................... 7

Hollingsworth v. Perry,

558 U.S. 183 (2010) ............................................ 23

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019)........................................ 18

Isbrandtsen Co. v. Johnson,

343 U.S. 779 (1952) ............................................ 13

Joshua v. United States,

17 F.3d 378 (Fed. Cir. 1994) .............................. 20

Lockhart v. United States,

136 S. Ct. 958 (2016)............................................ 7

Maryland v. Dyson,

527 U.S. 465 (1999) .......................................19, 23

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) ............................................ 18

Meyer v. Holley,

537 U.S. 280 (2003) ............................................ 11

Mireles v. Waco,

502 U.S. 9 (1991)................................................ 21

Montana v. Hall,

481 U.S. 400 (1987) ............................................ 22

N.L.R.B. v. SW Gen., Inc.,

137 S. Ct. 929 (2017).......................................... 18

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife,

551 U.S. 644 (2007) ............................................ 15

Nationwide Mut. Ins. Co. v. Darden,

503 U. S. 318 (1992) ........................................... 14

Neder v. United States,

527 U.S. 1 (1999)................................................ 13

Nielsen v. Preap,

139 S. Ct. 954 (2019)............................................ 7

Nken v. Holder,

556 U.S. 418 (2009) .............................................. 9

Norton v. S. Utah Wilderness All.,

542 U.S. 55 (2004) .............................................. 18

Presley v. Georgia,

558 U.S. 209 (2010) ............................................ 21

Public Lands Council v. Babbitt,

529 U.S. 728 (2000) ............................................ 18

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) .............................................. 8

Raleigh & Gaston R.R. Co. v. Reid,

80 U.S. 269 (1871) ................................................ 7

Schweiker v. Hansen,

450 U.S. 785 (1981) ............................................ 19

Smith v. Armontrout,

825 F.2d 182, 184 (8th Cir. 1987) ........................ 9

Smith v. State,

145 So. 2d 688 (Miss. 1962) ................................. 9

Spears v. United States,

555 U.S. 261 (2009) ............................................ 23

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Standard Oil Co. of N.J. v. United States,

221 U.S. 1 (1911)................................................ 14

State v. Joubert,

518 N.W.2d 887 (Neb. 1994) ................................ 9

Trump v. Sierra Club,

No. 20-138, 2020 WL 6121565 (U.S. Oct.

19, 2020) ............................................................. 18

Trump v. Sierra Club,

140 S. Ct. 1 (2020).............................................. 21

United States v. Montgomery,

635 F.3d 1074 (8th Cir. 2011).............................. 3

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020)........................................ 22

OTHER AUTHORITIES

2A Sutherland, Statutes and Statutory

Construction (Norman J. Singer ed., 7th

ed. 2020) ............................................................... 7

A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts (1st ed.

2012) ..................................................................... 8

Death Penalty Information Center, List of

Federal Death-Row Prisoners ............................ 17

Death Warrants, 2 Op. Att'y Gen. 344 (1830),

1830 WL 856 ...................................................... 10

RULES

1st Cir. R. 27.0......................................................... 20

3d Cir. R. 27.4.......................................................... 20

10th Cir. R. 27.3 ...................................................... 20

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Fed. R. App. P. 1, Advisory Committee Note

(1979 Amendment) ............................................ 22

Sup. Ct. R. 10 ................................................... passim

REGULATIONS

28 C.F.R. § 26.3 ................................................ passim

28 C.F.R. § 26.4 ..............................................5, 16, 24

57 Fed. Reg. 56,536 (Nov. 30, 1992) ......11, 12, 16, 17

85 Fed. Reg. 75,846-01 (Nov. 27, 2020) .................. 12

58 Fed. Reg. 4,898 (Jan. 19, 1993).......................... 10

PETITION FOR A WRIT OF CERTIORARI

Lisa Marie Montgomery respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The court of appeals’ opinion (App. 1a-2a) is unreported and is available at 2021 WL 22316. The opinion of the district court (App. 3a-38a) also is unreported and is available at 2020 WL 7695994.

JURISDICTION

The court of appeals entered judgment on January

1, 2021. App. 1a-2a. The petition for rehearing en

banc was denied on January 5, 2021. App. 45a-46a.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT PROVISION

The regulation involved is 28 C.F.R. § 26.3. It is

reproduced in the Appendix to this brief.

INTRODUCTION

The district court stayed Mrs. Montgomery’s original execution date, December 8, 2020, to permit her

counsel sufficient time to prepare a clemency petition

after they contracted COVID-19 while visiting her in

prison. The Director of the Bureau of Prisons (the “Director”) designated a new execution date while the

court’s stay was in place. That mid-stay designation

contravened 28 C.F.R. § 26.3(a)(1): “If the date designated for execution passes by reason of a stay of execution,” then the Director “shall” designate a new execution date “when the stay is lifted,” id. (emphasis

added), not while the stay is in effect. The district

2

court therefore properly vacated the improper designation under the Administrative Procedure Act

(“APA”).

Within days of that ruling, a panel of the U.S.

Court of Appeals for the D.C. Circuit took the extraordinary step of summarily reversing the district court,

in a per curiam order and without full briefing on the

merits. The panel’s order is not just the first appellate

decision to address the meaning of § 26.3(a)(1). It is

also the first and only judicial authority of which we

are aware to authorize the rescheduling of an execution during a stay of the execution.

The D.C. Circuit’s decision presents two important

questions worthy of this Court’s review.

First, whether the Director may designate a new

execution date during the pendency of a stay is a question of first impression on which the panel clearly

erred. Every interpretive signal, from the regulation’s text to its structure and purpose, confirms that

the Director must forbear scheduling an execution

while a stay is pending. The D.C. Circuit’s conclusion

contradicts that regulation, the background principle

it respects—that a court’s stay of execution temporarily suspends the Government’s authority to designate

a new execution date—and this Court’s precedent.

See Sup. Ct. R. 10(c).

Second, whether a federal court of appeals may

summarily reverse a district court order on a question

of first impression, on a motion and without full briefing, is an important and now unsettled question of

federal appellate procedure. The panel’s decision to

3

summarily vacate the district court here “so far departed from the accepted and usual course of judicial

proceedings” that it “call[s] for [the] exercise” of the

Supreme Court’s “supervisory power.” Sup. Ct. R.

10(a).

Given the exceptional importance of these questions, not only for Mrs. Montgomery and other deathsentenced persons, but for all litigants whose cases

pose novel, timely raised questions that warrant full

and considered treatment on appeal, the Court should

grant certiorari and reverse.

STATEMENT

Mrs. Montgomery was sentenced to death in April

2008. See United States v. Montgomery, 635 F.3d

1074, 1079 (8th Cir. 2011).

On October 16, 2020, the Government scheduled

Mrs. Montgomery’s execution for December 8 pursuant to 28 C.F.R. § 26.3. After visiting their client,

Mrs. Montgomery’s capital attorneys contracted

COVID-19, rendering them incapable of filing her

clemency petition. On November 12, Mrs. Montgomery filed a complaint asserting claims stemming from

her lawyers’ inability to assist her in the clemency

process. Finding merit in the claims, the district

court issued a stay of execution lasting “until December 31, 2020.” Minute Order I, Montgomery v. Barr et

al., No. 1:20-cv-03261 (D.D.C. Nov. 25, 2020); see

Mem. Op., Montgomery v. Barr et al., No. 1:20-cv03261 (D.D.C. Nov. 19, 2020). The Government did

not appeal the court’s stay.

While the stay remained in effect, on November

23, the Government rescheduled Mrs. Montgomery’s

4

execution for January 12, 2021. In response, Mrs.

Montgomery promptly filed a supplemental complaint

asserting claims under the APA. She alleged, inter

alia, that in rescheduling her execution, the Government violated federal regulations providing that “[i]f

the date designated for execution passes by reason of

a stay of execution,” then the Director “shall” designate a new execution date “when the stay is lifted.”

28 C.F.R. § 26.3(a)(1). Mrs. Montgomery moved for

partial summary judgment and sought vacatur of her

January 12 execution date.

After full briefing and oral argument, the district

court granted partial summary judgment for Mrs.

Montgomery, holding that “when an execution is postponed in light of a stay, the governing regulation, 28

C.F.R. § 26.3(a), prevents the Director from setting a

new execution date until after the stay is lifted.” App.

5a. As the court reasoned, when a regulation “‘limits

a thing to be done in a particular mode, it includes a

negative of any other mode.’” App. 25a (quoting

Christensen v. Harris Cty., 529 U.S. 576, 583 (2000)).

Here, “the ‘thing to be done’ is rescheduling after an

execution date lapses by reason of a stay, and the ‘particular mode’ is ‘promptly … when the stay is lifted,’”

meaning that rescheduling an execution during a stay

is precluded. App. 25a.

The court considered and rejected the Government’s argument that the regulation was not triggered because, at the time they set a new execution

date, Mrs. Montgomery’s original date had not yet

passed. “[T]he phrase ‘date designated for execution,’” the court reasoned, “refers to the date of execution subject to the Court’s stay, not whatever date the

5

Director subsequently sets.” App. 29a. Indeed, the

Government “never suggest[ed]—nor could they suggest—that the December 8, 2020 execution date

would have passed had the Court not issued its stay

or that the date passed for some other ‘reason.’” App.

29a.

Next, the court held that the Government’s contrary interpretation was not entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997), because the

regulation is unambiguous and the Government advanced only “post-hoc rationalizations” to support its

position. App. 30a-34a. The court also concluded that

the Government’s violation of the regulation caused

Mrs. Montgomery prejudice sufficient to sustain her

APA claim, by depriving her of time to seek legal relief, including through clemency, and to prepare for

her death. App. 35a. Accordingly, the court vacated

the January 12 execution date—the “‘default remedy’

under the APA.” App. 34a-36a.

On December 28, the Government filed a notice of

appeal and moved for a stay pending appeal in the

district court. The district court denied the Government’s request, finding that it satisfied none of the

stay factors, and observing that the execution could

be scheduled for shortly after the unlawfully designated date. App. 41a-44a (discussing 28 C.F.R.

§ 26.4).

The Government then moved the D.C. Circuit for

a stay pending appeal or vacatur of the district court’s

opinion. On January 1, 2021, a panel of the D.C. Circuit construed the Government’s motion as one “for

summary reversal,” concluded that the merits were

6

“so clear as to warrant summary action,” and summarily reversed the district court’s ruling. App. 1a.

The panel’s reasoning was contained in a single sentence: § 26.3(a)(1) “did not prohibit the Director from

making that designation [of a new execution date on

November 23] … because, at that time, the ‘date designated for execution’ had not yet ‘passe[d].’” App. 1a2a.

On January 5, Mrs. Montgomery’s request for rehearing en banc was denied.1

REASONS FOR GRANTING THE PETITION

A. Whether § 26.3(a)(1) Permits The United

States To Designate A New Execution

Date While The Execution Is Stayed Is An

Important Question Worthy Of Review

The D.C. Circuit held that the Director may designate a new execution date during the pendency of a

stay, notwithstanding the plain language of

§ 26.3(a)(1). The Court should grant certiorari and reverse because the panel’s conclusion contradicts the

regulation’s unambiguous text, conflicts with the settled principle that a stay of execution temporarily suspends the Government’s authority to designate a new

execution date, and is inconsistent with this Court’s

precedent. See Sup. Ct. R. 10(c).

1. Section 26.3(a)(1) provides that “[i]f the date

designated for execution passes by reason of a stay of

execution, then a new date shall be designated

promptly by the Director of the Federal Bureau of

1 Circuit Judges Garland and Pillard did not participate in con-

sideration of the petition for rehearing en banc. App. 45a.

7

Prisons when the stay is lifted.” 28 C.F.R. § 26.3(a)(1)

(emphases added). The regulation on its face directs

the Director—using the mandatory term “shall”—to

designate a new execution date only once “the stay is

lifted.” The regulation is unambiguous; the Court

should therefore presume it “says … what it means

and means ... what it says.” Henson v. Santander

Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)

(quoting Dodd v. United States, 545 U.S. 353, 357

(2005)).

Basic “rules of grammar” confirm this reading of

§ 26.3(a)(1). Nielsen v. Preap, 139 S. Ct. 954, 965

(2019). “[W]hen the stay is lifted” is an adverbial

clause and so necessarily modifies the verb “designated.” See id. at 964. Moreover, “ordinarily, and

within reason, modifiers and qualifying phrases attach to the terms that are nearest.” Grecian Magnesite Mining, Indus. & Shipping Co., SA v. Comm’r,

926 F.3d 819, 824 (D.C. Cir. 2019). Thus, “when the

stay is lifted” should be read to modify “designate[]”—

the “nearest possible referent.” Id.; see also, e.g.,

Lockhart v. United States, 136 S. Ct. 958, 962 (2016)

(applying the “rule of the last antecedent” (quotation

omitted)). The “new date shall be designated,” then,

only “when the stay is lifted.”

Common canons of construction further support

this interpretation. First, when a statute or regulation “limits a thing to be done in a particular mode, it

includes a negative of any other mode.” Christensen,

529 U.S. at 583 (quoting Raleigh & Gaston R.R. Co. v.

Reid, 80 U.S. (13 Wall.) 269, 270 (1871)); see also 2A

Sutherland, Statutes and Statutory Construction

§ 47.23 (Norman J. Singer ed., 7th ed. 2020). As the

8

district court explained, “[h]ere, the ‘thing to be done’

is rescheduling after an execution date lapses by reason of a stay, and the ‘particular mode’ is ‘promptly …

when the stay is lifted.’” App. 25a. By specifying how

and when an execution date “shall” be rescheduled,

the regulation necessarily implies that the Director

may not designate a new date in other ways, at other

times.

Second, when a “general permission … is contradicted by a specific prohibition,” the interpretive question is “eas[y] to deal with”: “the specific provision prevails.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 183 (1st ed. 2012); see, e.g.,

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 645 (2012) (“[T]he specific provision is

construed as an exception to the general one.”). Here,

when it comes to rescheduling an execution date that

“passes by reason of a stay,” the specific limits set out

in § 26.3(a)(1) apply—and the Director may not rely

on his general power to designate an execution date

in other circumstances.

2. The meaning of § 26.3(a)(1) is, on its face, clear.

But when combined with the background rule that a

stay of execution suspends the Government’s authority to designate a new execution date, the point is

scarcely contestable. The panel decision not only contravenes well-established interpretive canons, it also

erodes a fundamental principle—embodied in judicial

authority and the Government’s past practice—that

the Government may not set a new execution date

during the pendency of a stay.

a. In commanding that the Director designate a

9

new date only upon expiration of a stay, federal regulations simply make explicit what is already implicit

in a stay of execution. A stay of execution—like any

stay—“temporarily suspend[s]” the Government’s

“authority to act.” Nken v. Holder, 556 U.S. 418, 42829 (2009). As a result, a stay of execution temporarily

sets aside the Government’s authority to designate a

new execution date during the pendency of a stay. All

relevant judicial authority, the Government’s own

past practice, and its prior interpretations have all

recognized as much, adhering to the foundational

principle that the Government cannot schedule a new

execution date during a pending stay.

First, every court to consider the issue has concluded that a stay of execution temporarily suspends

the Government’s authority to designate a new execution date. The Eighth Circuit, for example, has held

that when “an order of court staying [an] execution is

in full force and effect,” the Government may not “resume any preparations for [the] execution” until the

“stay of execution [is] finally dissolved.” Smith v. Armontrout, 825 F.2d 182, 184 (8th Cir. 1987). The Nebraska Supreme Court has noted that such preparations “clearly” include the “setting of execution dates

in anticipation of the termination of a stay.” State v.

Joubert, 518 N.W.2d 887, 898 (Neb. 1994); see also

Smith v. State, 145 So. 2d 688, 690 (Miss. 1962) (federal stay of execution “precludes” request “that a new

date be set for the execution of the death sentence”).

Second, the Government has consistently adhered

to this view in setting other federal executions. Dating back to at least 1830, the Executive Branch has

“determined to leave the execution of sentences of the

10

law in all cases to the direction of the courts, in full

confidence that they will give a reasonable time for

the exercise of executive clemency in cases where it

ought to be interposed.” Death Warrants, 2 Op. Att’y

Gen. 344, 344 (1830), 1830 WL 856. The Government

has, until now, consistently respected this judicial

role: For every execution scheduled since the Government resumed capital punishment in 2019, when the

prisoner has obtained a stay of execution, the Government has waited until the expiration of the stay to set

a new execution date. Indeed, Mrs. Montgomery’s

case is the only instance we could find since the regulations went into effect in 1993 in which the Government has designated a new execution date while a

court’s stay of execution was in place. See Declaration

of Zohra Ahmed in Support of Plaintiff Lisa Montgomery’s Motion for Partial Summary Judgment, Ex. 1,

Montgomery v. Barr et al., No. 1:20-cv-03261 (D.D.C.

Dec. 15, 2020).2

Third, the Government’s own written interpretations are consistent with this understanding.

The Government explicitly acknowledged, in

promulgating the subject regulations in 1993, that its

authority to set execution dates derives from that of

the courts. See Implementation of Death Sentences

in Federal Cases, 58. Fed. Reg. 4,898, 4,899 (Jan. 19,

2 In two instances—Alfred Bourgeois and Lezmond Mitchell—

the Government appears to have designated a new execution

date after courts ordered that the applicable stays be vacated,

but before formal issuance of the associated mandates. Mrs.

Montgomery’s case is the only one in which the Government has

set an execution date during a stay without a court having ordered the stay vacated.

11

1993) (“The Department is authorized to rely on the

authority of the federal courts, acting pursuant to the

All Writs Act, 28 U.S.C. [§] 1651(a), to order that …

sentences be implemented.”). Section 26.3 extends

that authority to the Director under certain circumstances, subject to a court’s superior authority to order otherwise. See 28 C.F.R. § 26.3(a). The Government’s description in the promulgating commentary

of § 26.3’s purpose makes plain its understanding

that when a court has issued a stay, the Government

will forbear action in furtherance of the execution:

The Government explained that vesting the Director

with the power to designate an execution date “will

obviate the practice, which is a pointless source of delay in state cases, of seeking a new execution date

from the sentencing court each time a higher court

lifts a stay of execution that caused an earlier execution date to pass.” Notice of Proposed Rulemaking,

Implementation of Death Sentences in Federal Cases,

57 Fed. Reg. 56,536, 56,536 (Nov. 30, 1992).

The implication of that statement is that, when

§ 26.3 was written, the Government understood that

it could seek a “new execution date” only after a “court

lifts a stay of execution.” Id. The regulations do not

break with the background principle that a judicial

stay suspends the Executive’s authority to act; they

reaffirm it, by stating that the Director would have

the power to designate a new date “when the stay is

lifted.” Id. Nothing in those regulations even hints

that the Government thought the Director would be

permitted to reschedule an execution while a stay remained in effect. See Meyer v. Holley, 537 U.S. 280,

287 (2003) (when a text “has not expressed a contrary

12

intent, the Court has drawn the inference that it intended ordinary rules to apply”).

This understanding has continued through the

years: The Government’s authority to schedule executions yields to the power of the Judicial Branch over

the same matter. As the Government explained when

promulgating amendments to related regulations,

“Section 26.3(a)’s prefatory language … authoriz[es]

BOP’s Director to set an execution date and time

‘[e]xcept to the extent a court orders otherwise,’” and

“nothing” in the regulations “alters the courts’ power

to set aside or postpone execution dates pursuant to

their authority to issue stays and injunctions.” Manner of Federal Executions, 85 Fed. Reg. 75,846-01,

75,850 (Nov. 27, 2020).

Similarly, the Government’s lethal-injection execution protocols, adopted in 2004, and revised in 2019

and 2020, have always explained that “[i]f the date

designated passes by reason of a stay of execution,

then a new date will be promptly designated by the

Director of the BOP when the stay is lifted.” Administrative Record at 53, 111, 165, Montgomery v. Barr

et al., No. 1:20-cv-03261 (D.D.C. Dec. 13, 2020) (emphasis added).

And last, the Government has described § 26.3, in

at least one prior court filing, as specifying that the

Government’s authority to reschedule an execution

arises after a stay is lifted. See, e.g., Brief for the

United States in Opp’n to Appl. for Stay of Executions

and to Pet. for Cert., O’Keefe v. Barr, Nos. 20A11, 2023, 2020 WL 4015846 at *21 (July, 2020) (explaining

that the “execution date was stayed until June 12,

2020,” and that “once the stay was lifted, BOP

13

promptly rescheduled the executions, consistent with

the applicable regulation” (emphases added) (citing 28

C.F.R. § 26.3(a)(1))).

The Government has never cited a single authority, in case law or otherwise, suggesting it may designate a new execution date during a stay. Every available authority contemplates, to the contrary, that the

Director will designate a new execution date only after a court’s stay has expired, just as the plain text of

the regulation commands. Construing the regulation

to permit the Director to act despite the existence of a

stay thus conflicts with the long-recognized allocation

of authority between the Judiciary and the Executive

Branch.

b. The panel’s ruling is the first ever to depart

from this understanding and approve the scheduling

of an execution during a stay. The novelty of the rule

created below confirms its error.

This Court has long cautioned against interpretations that cast aside background norms, emphasizing

that legal rules “are to be read with a presumption

favoring the retention of long-established and familiar principles.” Isbrandtsen Co. v. Johnson, 343 U.S.

779, 783, (1952). The rationale for that presumption

is straightforward: Absent evidence to the contrary,

courts can fairly assume that laws are enacted

against the background of established principles and

with an intention to preserve them. See Neder v.

United States, 527 U.S. 1, 21-22 (1999) (“It is a wellestablished rule of construction that ‘[w]here Congress uses terms that have accumulated settled

meaning under ... the common law, a court must infer,

unless the statute otherwise dictates, that Congress

14

means to incorporate the established meaning of

these terms.’” (quoting Nationwide Mut. Ins. Co. v.

Darden, 503 U. S. 318, 322 (1992)) (brackets and alteration in Neder)); see also, e.g., Comcast Corp. v.

Nat’l Ass’n of African American-Owned Media, 140 S.

Ct. 1009, 1016 (2020); Standard Oil Co. of N.J. v.

United States, 221 U.S. 1, 59 (1911).

Regulatory “language cannot be considered in a

vacuum.” E.g., Davis v. Mich. Dep’t of Treasury, 489

U.S. 803, 809 (1989). There is no indication that the

Attorney General sought to jettison the usual rule

here. As explained (supra 6-8), every interpretive tool

confirms that the Director must wait until the stay is

lifted before designating a new date. The regulation

does not explicitly authorize the Director to reschedule an execution despite an order by an Article III

court staying that execution—and the Attorney General did not hide that authority in a mousehole.

3. Without the regulatory text, structure, or any

prior authority on its side, the panel’s holding rests

entirely on the conclusion that the original “‘date designated for execution’ had not yet ‘passe[d]’” when the

Director rescheduled Mrs. Montgomery’s execution

for January 12. App. 2a. That interpretation cannot

be squared with the regulation’s text or common

sense. The regulation refers to the execution date

subject to the stay. That date passes by reason of a

stay regardless of whether the Director purports to

schedule a new date beforehand. When a stay of execution renders an execution date inoperable, the “date

designated for execution passes by reason of a stay of

execution.” 28 C.F.R. § 26.3(a)(1).

The panel’s holding implausibly suggests that the

15

date that was stayed does not pass “by reason of a

stay” so long as the Director designates a subsequent

date in view of the stay. That is like saying a barbeque was rescheduled to avoid rain in the forecast, but

not because of rain. Mrs. Montgomery’s reading

“makes sense of the overall provision, which, in the

first sentence instructs the Director to set a date for

execution, and in the second permits the Director to

set a subsequent date ‘when the stay is lifted.’” App.

29a. The panel’s reading of the second sentence, by

contrast, deprives half of the first clause of meaning:

It asks whether the initial “date designated for execution passe[d],” but not (as the rest of the clause demands) whether the “reason” the initial execution

date could not go forward was a stay. 28 C.F.R.

§ 26.3(a)(1). As the district court found, a date designated for execution passes “by reason of a stay” regardless whether the Government purports to designate a second date beforehand. App. 28a-29a.

Furthermore, under the panel’s contrary construction, the Director would have unfettered discretion to

reschedule an execution date whenever he chooses,

even during a stay, up until the moment of the original date. Such a reading renders the phrase “when

the stay is lifted” superfluous. See Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 668-69

(2007) (rejecting regulatory interpretation that rendered language “mere surplusage”). If the Director

can reschedule an execution date notwithstanding a

stay, there is no need for the regulation to specify that

a new date be designated only once “the stay is lifted.”

28 C.F.R. § 26.3(a)(1). The Government’s reading is

also illogical. Under its interpretation, if a stay is in

16

effect, then up until the date passes, the Director can

reschedule an execution date whenever he chooses;

once the date passes, however, the Director’s authority is frozen until the stay is lifted. That makes no

sense.

Reading § 26.3(a)(1) as the district court did, to

preclude the designation of a new execution date

when a stay is in place, comports with the regulation’s

purpose of “ensur[ing] [the] orderly implementation of

death sentences.” 57 Fed. Reg. at 56,536. Section

26.3—together with § 26.4, which specifies that a

prisoner must receive 20 days’ notice of a new execution date after a lengthy postponement—ensures that

a substantial stay of execution will be followed by a

definite period before execution. That 20-day period

gives an individual facing execution the opportunity

to consider and pursue appropriate then-ripe legal

remedies in the wake of a decision dissolving a stay

and ensures adequate time for appellate review.

Under the panel’s view, in contrast, the Government could reschedule an execution for the minute after a lengthy stay is vacated. That rule would frustrate judicial review of orders vacating a stay and impede the ability to pursue legal remedies after a stay

is vacated. It would also generate efforts to pursue

emergency relief and might promote otherwise-avoidable interlocutory appeals to forestall the possibility

that a decision vacating a stay will lead to an immediate execution—chaos that the regulations on their

own terms seek to avoid, by requiring the 20-day period between the expiration of the lengthy stay and

the new execution date. 28 C.F.R. § 26.4.

17

4. The Director’s ability to designate a new execution date during the pendency of a stay is a question

of exceptional importance, not only to Mrs. Montgomery, but also to the more than 50 prisoners currently

on federal death row.3 As explained, the purpose of

the federal regulations is to ensure the “orderly implementation of death sentences.” 57 Fed. Reg. at

56,536. Section 26.3 and § 26.4 work together to advance that goal by guaranteeing that a substantial

stay is followed by a definite 20-day period before execution—a period of time that allows executive and

judicial officers to carry out their own responsibilities,

gives an individual facing execution the opportunity

to consider and pursue appropriate legal remedies in

the wake of a decision dissolving a stay, and ensures

that appellate courts have adequate time for meaningful review.

If § 26.3(a)(1) does not restrict the Government’s

ability to set an execution date for any of these prisoners while a stay is lawfully in effect, federal inmates

will be denied time to which they are legally entitled

to submit clemency petitions and have those petitions

duly considered. Federal law recognizes that prisoners have a legally cognizable interest in “meaningful

access” to clemency proceedings—the “‘fail-safe’ of our

[criminal] justice system.” Harbison v. Bell, 556 U.S.

180, 194 (2009). Further, prisoners condemned to

death will be deprived of guidance on the timing of

their executions, meaning they and their families will

3 Death Penalty Information Center, List of Federal Death-Row

Prisoners,

https://deathpenaltyinfo.org/state-and-federal-info

/federal-death-penalty/list-of-federal-death-row-prisoners (last

visited Jan. 9, 2021).

18

not have the clarity needed to “prepare, mentally and

spiritually, for their death[s].” Ford v. Wainwright,

477 U.S. 399, 421 (1986) (Powell, J., concurring). The

execution regulations themselves recognize the importance of having such time to prepare. See 57 Fed.

Reg. at 56,536 (regulations “enable the prisoner and

his immediate family to prepare themselves for the

execution”).

5. Though there is no circuit split on the specific

interpretation of § 26.3(a)(1), the decision below is in

grave tension with prior decisions. This Court routinely grants certiorari to address regulatory and

statutory questions of “unusual importance,” even in

the absence of a conflict. Massachusetts v. E.P.A., 549

U.S. 497, 506 (2007). Indeed, just this Term, the Government sought—and obtained—a writ of certiorari

on a case that raised only claims of statutory interpretation and did not involve a circuit split. See Trump

v. Sierra Club, No. 20-138, 2020 WL 6121565, at *1

(U.S. Oct. 19, 2020); see also, e.g., Home Depot U.S.A.,

Inc. v. Jackson, 139 S. Ct. 1743, 1750 (2019) (interpreting the Class Action Fairness Act without circuit

split); N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 938

(2017) (interpreting Federal Vacancies Reform Act of

1998 without circuit split); Norton v. S. Utah Wilderness All., 542 U.S. 55, 57–58 (2004) (granting certiorari to decide whether ability to “compel agency action

unlawfully withheld or unreasonably delayed” under

the APA extended to review of Bureau of Land Management’s statutory obligations without mention of

circuit split) (quotations omitted); Public Lands

Council v. Babbitt, 529 U.S. 728 (2000) (interpreting

Taylor Grazing Act and implementing regulations

19

without circuit split).

B. Whether Summary Reversal Is Available

For Issues Of First Impression Is An Important Question Worthy Of Review

This Court should also grant certiorari because

the use of summary reversal in this case is a marked

departure from the usual conduct of judicial proceedings and creates the possibility of confusion for the

lower courts over when summary reversal is appropriate. See Sup. Ct. R. 10(a).

1. The practice of this Court and of every court of

appeals is to give considered attention to novel questions of first impression.

This Court’s own summary reversal precedent

makes clear that “summary reversal does not decide

any new or unanswered question of law, but simply

corrects a lower court’s demonstrably erroneous application of federal law.” Maryland v. Dyson, 527 U.S.

465, 467 n.1 (1999); see also CSX Transp., Inc. v.

Hensley, 556 U.S. 838, 840 (2009) (summarily reversing where court of appeals committed “clear error”

when applying a prior decision of the Supreme Court);

Allen v. Siebert, 552 U.S. 3, 7 (2007) (summarily reversing where prior decision of Supreme Court “preclude[d]” the “Court of Appeals’ approach”); Gonzales

v. Thomas, 547 U.S. 183, 185 (2006) (summarily reversing because error was “obvious” in light of binding

precedent); Schweiker v. Hansen, 450 U.S. 785, 791

(1981) (Marshall, J., dissenting) (summary disposition “usually reserved by th[e] Court for situations in

which the law is settled and stable, the facts are not

in dispute, and the decision below is clearly in error”).

20

Decisions and rules of courts of appeals likewise

state that summary reversal is not available on a new

or unanswered question of law. See, e.g., Dunn v.

Wells Fargo Bank, N.A., No. 20-1080, 2020 WL

1066008, at *1 (7th Cir. Feb. 25, 2020) (internal quotation marks omitted) (observing that summary disposition is appropriate “when the position of one party

is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal

exists”); Blanco de Belbruno v. Ashcroft, 362 F.3d 272,

281 (4th Cir. 2004) (noting that summary disposition

is “used by appellate courts to resolve cases which do

not raise novel or complex questions”); Joshua v.

United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (summary disposition appropriate “when the position of

one party is so clearly correct as a matter of law that

no substantial question regarding the outcome of the

appeal exists”); Groendyke Transp., Inc. v. Davis, 406

F.2d 1158, 1162 (5th Cir. 1969) (summary disposition

appropriate where “the position of one of the parties

is clearly right as a matter of law so that there can be

no substantial question as to the outcome of the case,”

or where “the appeal is frivolous”); 1st Cir. R. 27.0

(“[T]he court may dismiss the appeal or other request

for relief or affirm and enforce the judgment or order

below if the court lacks jurisdiction, or if it shall

clearly appear that no substantial question is presented. In case of obvious error the court may, similarly, reverse.”); 3d Cir. R. 27.4 (“A party may move

for summary action … reversing a judgment, decree

or order, alleging that no substantial question is presented or that subsequent precedent or a change in

circumstances warrants such action.”); 10th Cir. R.

21

27.3(A)(1)(b) (“A party may file only the following dispositive motions … a motion for summary disposition

because of a supervening change of law or mootness.”).

Of course, exigent issues arise that require the immediate attention of the courts. This Court’s own efforts to handle legal questions relating to the country’s public health emergency are but one example.

But this was no emergency. Summary reversal is inappropriate when the circumstances permit reasoned

consideration, as they did here: Mrs. Montgomery asserted her claim promptly after her execution was improperly designated; the Government appealed nearly

three weeks before the date it sought to secure; and a

court may always ensure that important issues receive due deliberation by using a stay to preserve the

status quo, as this Court frequently does. See, e.g.,

Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3

(2019); Trump v. Sierra Club, 140 S. Ct. 1 (2019).

There was no practical impediment to plenary consideration of the opinion below and the claim it vindicated.

2. The traditional standards delimiting summary

reversal serve an important purpose in our judicial

system. Summary dispositions are fundamentally

unfair to the litigants, depriving them of the opportunity for full briefing and argument. See Presley v.

Georgia, 558 U.S. 209, 217-18 (2010) (Thomas, J., dissenting) (“I am unwilling to decide this important question summarily without the benefit of

full briefing and argument.”); Mireles v. Waco, 502

U.S. 9, 15 (1991) (Scalia, J., dissenting) (“I am sure

that, if we are to decide this case, we should not do so

22

without briefing and argument.”); Montana v.

Hall, 481 U.S. 400, 405-06 (1987) (Marshall, J., dissenting) (summary disposition “deprive[s] the litigants of a fair opportunity to be heard on the merits”).

Summary reversal in particular fails to “accord

proper respect for the judgments of the lower courts,”

when “[t]he judges below have had the benefit of full

briefing on the merits and review of the entire record”

but the court of appeals has not. Hall, 481 U.S. at

408-409 (Marshall, J., dissenting). Summary disposition likewise deprives courts of a decisional process

that is designed to enable judges to reach the correct

outcome across cases. Cf. Fed. R. App. P. 1, Advisory

Committee Note (1979 Amendment) (“Federal Rules

of Appellate Procedure were designed as an integrated set of rules to be followed in appeals to the

courts of appeals, covering all steps in the appellate

process.”). This Court has itself recently recognized

the importance of procedural regularity to the integrity and proper functioning of our judicial system. Cf.

United States v. Sineneng-Smith, 140 S. Ct. 1575,

1581-82 (2020) (reversing based on court of appeals’

procedural error of appointing three amici to brief and

argue legal issues not raised by the parties).

3. The panel’s decision conflicts with this well-settled precedent and threatens to erode the ordinary

procedures of appellate review.

Here, the question before the court of appeals concerning the construction of § 26.3(a) was concededly a

novel one, i.e., a “new or unanswered question of law.”

See Resp. to Pet. for Reh’g at 8, Montgomery v. Rosen,

et al., No. 20-5379 (D.C. Cir. Jan 4, 2021). Indeed, the

23

decision below was the first ever to address the meaning of § 26.3(a)(1) and determine that an execution

may be scheduled during a stay. The decision below

thus necessarily did not depend on a “demonstrably

erroneous application of federal law,” Dyson, 527 U.S.

at 467 n.1, that warrants summary reversal. Rather,

all prior judicial authority concerning the broader

question of whether the Government may schedule an

execution during a stay indicated that the district

court’s decision was a correct application of law.

In summarily reversing the district court’s wellreasoned, careful opinion on a matter of first impression, the panel “has so far departed from the accepted

and usual course of judicial proceedings … as to call

for an exercise of this Court’s supervisory power.”

Sup. Ct. R. 10(a). Under the approach taken by the

panel, any case on which the panel disagrees with the

merits can be summarily reversed without full briefing, thereby subverting the regular appellate process,

inevitably reaching wrong, hasty results, and contradicting this Court’s own practice regarding summary

dispositions. The Court “has a significant interest in

supervising the administration of the judicial system”

and the “Court’s interest in ensuring compliance with

proper rules of judicial administration is particularly

acute when those rules relate to the integrity of judicial processes.” Hollingsworth v. Perry, 558 U.S. 183,

196 (2010).

Members of this Court have recognized that its

own use of summary disposition amounts to “bitter medicine,” Spears v. United States, 555 U.S. 261,

268 (2009) (Roberts, C.J., dissenting), to be dispensed

infrequently, but this Court has provided only limited

24

guidance to the lower courts regarding the standard

governing the availability of summary reversals. This

case provides the ideal opportunity for the Court to

provide that guidance.

C. This Case Is A Good Vehicle For Addressing Both Questions

This case is an ideal vehicle for addressing both

questions presented. Whether the Director, consistent with § 26.3(a), may designate a new execution

date for Mrs. Montgomery while a stay of her execution was in place—a question on which the D.C. Circuit summarily reversed without the benefit of full

briefing on the merits—is an exceedingly important

question of first impression. The panel’s opinion

cleanly sets up the question of the proper interpretation of the regulation, as well as the question of

whether summary reversal was appropriate.

Further, as the district court explained, the prejudice to Mrs. Montgomery resulting from the Government’s unlawful action is “obvious.” App. 35a. Had

the Government complied with § 26.3(a)(1), it would

not have been able to set a new execution date for

Mrs. Montgomery before December 31. App. 43a. As

noted supra 16, moreover, under § 26.3’s neighboring

provision, § 26.4, a “prisoner under sentence of death

is entitled to notification “of the date designated for

execution at least 20 days in advance.”4 Accordingly,

4 The exception to the 20-day notice requirement for short stays

is inapplicable here. See 28 C.F.R. § 26.4(a) (providing exception

“when the date follows a postponement of fewer than 20 days of

a previously scheduled and noticed execution”).

25

the Government may not lawfully execute Mrs. Montgomery before January 20.

The Government’s violation of the regulations, in

other words, deprives Mrs. Montgomery of eight days

of life. And it “diminishe[s] the time that she has to

seek legal relief from her death sentence, including

through the clemency process, and to prepare, mentally and spiritually, for [her] death.” App. 35a-36a

(cleaned up); see also Ford, 477 U.S. at 421 (Powell,

J., concurring).

Nor is this a case where the prisoner has unduly

delayed asserting her claim. This particular APA

claim grounded in § 26.3(a)(1) did not arise until the

Director rescheduled Mrs. Montgomery’s execution on

November 23. After that new designation, Mrs. Montgomery promptly filed a supplemental complaint and

moved for summary judgment on the claim. The district court subsequently moved expeditiously—ultimately issuing a 28-page opinion granting final judgment to Mrs. Montgomery on December 24, about one

month after the claim first arose. Mrs. Montgomery

is before this Court days before her scheduled execution through no fault of her own, but because of the

Government’s attempt to put her to death on an unlawfully expedited timeline.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

26

Respectfully submitted,

Kelley J. Henry

Chief, Capital Habeas Unit

Office of Federal Public Defender, Middle

District of Tennessee

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

kelley_henry@fd.org

January 9, 2021

Meaghan VerGow

Counsel of Record

Anna O. Mohan

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

(202) 383-5504

mvergow@omm.com