UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) In the Matter of the ) Federal Bureau of Prisons’ Execution ) Protocol Cases, ) ) LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC) ) THIS DOCUMENT RELATES TO: ) ) Roane v. Gonzales, 05-cv-2337 ) )

MEMORANDUM OPINION

Defendants have moved to vacate this court’s preliminary injunctions barring the

executions of Plaintiffs James Roane, Richard Tipton, Cory Johnson, Orlando Hall, Bruce

Webster, Anthony Battle, and Jeffrey Paul. (ECF No. 173, Defs. Mot. to Vacate Prelim. Inj.)

For the reasons set forth below, the motion is GRANTED.

Defendants’ September 11, 2020 Notice urged the court to rule on this motion with

“dispatch,” requested an expedited ruling, and noted that it had, on several occasions, asked the

court for a ruling by September 4. Although the court was aware of the motion and intended to

resolve it expeditiously, as the parties are aware, this is not the only case on the court’s docket.

Nevertheless, the court has prioritized resolving the issues presented in this case—which has

involved at least eight motions for preliminary injunction and emergency relief over the course

of seven scheduled executions—and has endeavored to ensure the opinions and orders issued

adequately address the parties’ claims and requests. Given the number of plaintiffs and the speed

at which the government has sought to execute them—after eight years of inaction—careful

consideration and resolution of the myriad claims presented necessarily requires time. The

government’s desire to carry out executions in rapid succession must yield to the need to resolve

1 the substantive legal claims at issue, many of which have been placed before the court on the

government’s own motion. No further requests for expedited rulings or deadlines—from any

party in this case—should be filed absent a bona fide emergency.

I. BACKGROUND

In 2005, Plaintiffs Roane, Tipton, and Johnson sued, challenging the three-drug lethal

injection protocol then employed by the Bureau of Prisons (BOP) alleging various constitutional

and Administrative Procedure Act (APA) violations. (Roane v. Gonzales, No. 05-cv-2337

(D.D.C.), ECF No. 1.) Shortly thereafter, they sought a preliminary injunction barring their

executions, which were scheduled for May 2006. (Roane, ECF No. 2.). Defendants consented

to the entry of a preliminary injunction pending the Supreme Court’s disposition of Hill v.

Crosby, which involved a method-of-execution challenge. (Roane, ECF No. 4.) Judge Huvelle,

who was presiding over the case at that time, temporarily enjoined the executions of Roane,

Tipton, and Johnson. (Roane, ECF No. 5.) The preliminary injunction remained, however, after

the Supreme Court decided Hill. See Hill v. McDonough,

(2006); (Roane, ECF

No. 7.)

The following year, Plaintiffs Webster, Battle, and Hall intervened and filed

unopposed motions for preliminary injunctions, which Judge Roberts granted. (See Roane, ECF

Nos. 27 (Webster), 67 (Battle), 68 (Hall)). Defendants stipulated to the preliminary injunctions

but did not “waive any objections or arguments on the merits of the issues in this litigation and

d[id] not admit the veracity of any of the allegations of any of the operative pleadings in this

case.” (Roane, ECF No. 39.)

Defendants sought to dissolve the preliminary injunctions on multiple occasions. (See

Roane, ECF Nos. 61, 160.) Due to litigation over the scope of discovery, the court declined to

2 rule on the motion to lift the stay. (See Roane, ECF No. 209 (ordering further briefing “before

the defendants’ motion to lift the stays currently in place should be considered”).)

On October 6, 2009, Plaintiff Paul sought to intervene and to obtain a preliminary

injunction, (Roane, ECF No. 228), which Defendants opposed, (Roane, ECF No. 242). While

that litigation continued throughout 2010, in December of that year, BOP announced plans to

schedule Paul’s execution date. (Roane, ECF No. 273.) Then in July 2011, after BOP

determined it could no longer obtain one of the drugs in its protocol, Defendants informed the

court that BOP had “decided to modify its lethal injection protocol,” and would “submit a

monthly status report to the Court on the status of finalizing the protocol revisions.” (Roane,

ECF No. 288.)

On July 25, 2019, Defendants notified the Court it had adopted a new, single-drug

protocol on July 25, 2019. (Roane, ECF No. 385.) On the same day, BOP set execution dates

for five inmates, four of whom immediately sought a preliminary injunction. This court

consolidated all four actions into the present case and has since consolidated additional actions

filed by other death-row inmates.

II. DISCUSSION

In light of the new one-drug execution protocol announced by the BOP in July 2019,

Defendants have moved to vacate the existing preliminary injunctions discussed above. (See

generally Defs. Mot. to Vacate Prelim. Inj.) They contend that “the legal and factual premises

underlying the injunctions have fundamentally and undisputedly changed.” (Id. at 7.) Plaintiffs

oppose the motion but have not provided an adequate basis to keep the injunctions in place.

Accordingly, the court will grant Defendants’ motion and the preliminary injunctions prohibiting

3 the executions of Plaintiffs Roane, Tipton, Johnson, Hall, Webster, Battle, and Paul will be

vacated.

A. Legal Standard

Under Federal Rule of Civil Procedure 60(b), a court may “relieve a party . . . from

a[n] . . . order” when “applying it prospectively is no longer equitable” or upon a showing of

“any . . . reason that justifies relief.” Hudson v. AFGE,

, 13 (D.D.C. 2017)

(quoting Fed. R. Civ. P. 60(b)(5) and (6)). Thus, a court may modify an injunction pursuant to

that rule in its “equitable discretion.” Trump v. Int’l Refugee Assistance Project,

(2017). The party seeking relief from an injunction has the burden of showing “a

significant change either in factual conditions or in law” such that continued enforcement of the

injunction would be “detrimental to the public interest.” Horne v. Flores,

(2009). That significant change, moreover, must be “unanticipated” by the parties and the court.

Am. Council of the Blind v. Mnuchin,

(D.C. Cir. 2017).

“[D]issolution should depend on the same considerations that guide a judge in deciding

whether to grant or deny a preliminary injunction in the first place”—i.e., “[t]he familiar quartet”

of “likelihood of success, the threat of irreparable injury to the party seeking interim relief, the

equities and the public interest.” Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp.,

(1st Cir. 1994).

B. Changed Circumstances and Injunctive Relief Factors

The court agrees with Defendants that circumstances have indeed changed since the

injunctions at issue were entered (most more than ten years ago). The basis for these injunctions

was a three-drug protocol that is no longer in use, and Plaintiffs have superseded the complaint

upon which the prior injunctions were based. And while it is true that the claims in the operative

4 complaint are similar to those challenging the three-drug protocol (Due Process Clause, Eighth

Amendment, and APA violations), Plaintiffs now challenge the government’s use of

pentobarbital, a drug that was not utilized used in prior protocols.

Ultimately, Plaintiffs cannot succeed on the merits of a complaint that has been

superseded. And it defies logic to maintain an injunction pertaining to an outdated execution

protocol when Plaintiffs have been unable to demonstrate they are entitled to injunctive relief

under the new protocol. (See, e.g., ECF No. 226; ECF No. 261.)

Death is certainly irreparable. But Plaintiffs have been sentenced to death for crimes

after trial, and their convictions have been upheld on appeal. This court’s injunction was issued

in order to consider and rule on matters pertaining to the method and manner of execution.

Moreover, Plaintiffs are protected from the irreparable harm that formed the basis of the original

injunction because the government will no longer use the methods detailed in the three-drug

protocol to execute them. This factor, accordingly, weighs in favor of lifting the injunction.

The court finds it would not be equitable to leave the prior injunctions in place when the

government will no longer be using the three-drug protocol. Thus, the balance of the equities

favors Defendants. The same is true for the public interest factor. Though the public has a

“powerful and legitimate interest in punishing the guilty,” Calderon v. Thompson,

(1998), this court has repeatedly expressed its view that the public is also strongly served by

ensuring that persons sentenced to death are not executed in a manner that violates the U.S.

Constitution or laws passed by Congress. Those concerns are not implicated here. The legal

claims that formed the basis of the prior injunctions have been resolved—they are moot. This

factor, again, weighs in favor of dissolution.

5 Thus, the changed circumstances and the factors for injunctive relief all weigh in favor of

vacating the injunction.

Plaintiffs fail to advance a convincing reason to leave the injunction in place. First, they

argue that the court may not lift an injunction absent “extraordinary” circumstances. (See ECF

No. 197, Pls. Opp’n at 10.) But this is the standard for relief from final judgment, not for relief

for a preliminary injunction. See Gonzalez v. Crosby,

(2005) (“[O]ur cases

have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’

justifying the reopening of a final judgment.”); SEC v. Bilzerian,

(D.D.C. 2011) (addressing permanent injunctions that had been affirmed by the D.C. Circuit).

Next, Plaintiffs argue that the new Protocol did not moot their claims; they note, for

instance, that their challenge to Defendants’ failure to disclosure the relevant procedures that will

be used to execute them remains live. But this claim has now been dismissed in the court’s

Order of September 20, 2020. (See ECF No. 261.)

Plaintiffs also argue that vacating the injunction would thwart the original purpose on

which the injunction was based, namely to “allow[] the orderly adjudication of a complex

dispute that has urgent implications for Plaintiffs and great significance for the public at large.”

(Pls. Opp’n at 11.) The purpose of the prior injunction, however, was to preserve the status quo

while the court adjudicated claims on which Plaintiffs were likely to succeed on the merits.

Those claims are no longer at issue.

Finally, Plaintiffs argue that Defendants’ motion is untimely, but identify no authority for

that argument. Rule 60(c) requires that motions for relief therein be filed within a “reasonable

time.” Given the speed at which issues have been raised in this litigation, the court does not find

6 the timing of Defendants’ motion to be unreasonable. 1 The preliminary injunction here was

intended to be temporary. The fact that the injunctions have been in place this long—and that

Defendants did not move to vacate them sooner—did not prejudice Plaintiffs.

For the foregoing reasons, Plaintiffs have not supplied a justifiable reason to leave the

preliminary injunctions in place, and they will be VACATED.

Date: September 20, 2020

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

1 Plaintiffs refer to a purported intra-Circuit, three-month timeline to address relief from judgment motions, but, again, the authority cited for that proposition addresses relief from final judgment. (Pls. Opp’n at 6 (citing THEC Int’l-Homdard Cordova Group-Nazari Constr. Co. v. Cohen Moher, LLP,

(D.D.C. 2018); Darby v. Shulkin,

(D.D.C. 2017)).) 7