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: ) ) LeCroy v. Barr, 20-cv-2481 ) )

MEMORANDUM OPINION

Plaintiff William Emmett LeCroy filed a complaint in this court on September 4, 2020

challenging the legality of the 2019 Bureau of Prisons’ Execution Protocol (2019 Protocol or the

Protocol). (See generally Compl., LeCroy v. Barr, No. 20-cv-2481 (D.D.C. Sept. 4, 2020), ECF

No. 1.) His arguments are virtually identical to the remaining claims pressed by the other

Plaintiffs in this consolidated matter, namely that the Protocol violates the Administrative

Procedure Act (APA) because it runs afoul of the Federal Death Penalty Act (FDPA). 1 LeCroy

also alleges a violation of the Take Care Clause of the U.S. Constitution. LeCroy’s execution is

scheduled for September 22, 2020. Four days after filing his complaint, LeCroy filed an

emergency motion for a preliminary injunction (ECF No. 233, LeCroy Mot. for Prelim. Inj.) and

an emergency motion for an expedited hearing, (see ECF No. 234.) For the reasons set forth

below, LeCroy’s motions will be DENIED.

1 The facts and procedural history of this case have been detailed in prior opinions and will not be reiterated here.

1 A preliminary injunction is an “extraordinary remedy” requiring courts to assess four

factors: (1) the likelihood of the plaintiff’s success on the merits, (2) the threat of irreparable

harm to the plaintiff absent an injunction, (3) the balance of equities, and (4) the public interest.

Winter v. Nat. Res. Def. Council, Inc.,

(2008) (citations omitted); John Doe

Co. v. Consumer Fin. Prot. Bureau,

(D.C. Cir. 2017). The D.C. Circuit has

traditionally evaluated claims for injunctive relief on a sliding scale, such that “a strong showing

on one factor could make up for a weaker showing on another.” Sherley v. Sebelius,

(D.C. Cir. 2011). It has been suggested, however, that a movant’s showing regarding

success on the merits “is an independent, free-standing requirement for a preliminary

injunction.”

at 393 (quoting Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir. 2009) (Kavanaugh, J., concurring)).

Defendants argue that LeCroy’s delay in filing his case is sufficient grounds to deny his

motion for injunctive relief. This argument is not without merit. LeCroy has provided no

legitimate reason why he did not seek to consolidate his case with the other Plaintiffs’ at any

point since the government announced its 2019 Protocol in July 2019. The court is mindful of

the Supreme Court’s admonishment that last minute injunctions—of this very sort—“should be

the exception, not the norm.” Barr v. Lee, No. 20A8,

, at *3 (U.S. July 14,

2020). The court has spent considerable time and effort responding to a motion for preliminary

injunction that could have been consolidated with any of the numerous motions for injunctions

filed in this case. Nevertheless, the court was unwilling to reject LeCroy’s motion given that it

had not yet ruled on Defendants’ motion to dismiss and for summary judgment. (See ECF Nos.

169, 170.)

2 LeCroy contends that the 2019 Protocol: (1) is contrary to law under the APA because it

violates § 3596(a) of the FDPA, and (2) violates the Take Care Clause of the U.S. Constitution.

(ECF No. 233-1, LeCroy Mem. at 1.) These claims are unavailing.

The court has already set forth its analysis of FDPA § 3596(a) in its September 20, 2020

Memorandum Opinion. (See generally ECF No. 261, Sept. 20 Mem. Op.) That provision

requires that in carrying out an execution, “the Attorney General shall release the person

sentenced to death to the custody of a United States marshal, who shall supervise implementation

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

imposed.”

(a).

The D.C. Circuit held that the FDPA requires the government to carry out executions

consistent with the level of detail provided by state laws and regulations. See In re Fed. Bureau

of Execution Protocol Cases,

(D.C. Cir. 2020) (Rao, J., concurring). LeCroy

identifies several Georgia statutes that he claims mandate different procedures than those set

forth in the 2019 Protocol, but the court finds no such discrepancy.

LeCroy points out that while Georgia law requires the presence of two physicians during

the execution “to determine when death supervenes,” the 2019 Protocol has no such requirement.

(LeCroy Mem. at 9 (citing

).) While it is true that the 2019 Protocol

does not require two physicians to be present during an execution, Defendants stated in a filing

that they have arranged for two physicians to attend LeCroy’s execution to comply with

Georgia’s statutory requirements. (See ECF No. 242-1, Winter Decl. ¶ 7). LeCroy argues that

Defendants’ representations ring hollow because they have not guaranteed the doctors’

attendance and therefore fail to account for the possibility that one of the doctors “gets sick,

changes his mind, or fails to show up for any reason.” (ECF No. 244, LeCroy Reply at 9.) But

3 speculation that the government may not comply with a statute is not an adequate ground for

injunctive relief. Indeed, a key factor in arguing injunctive relief is a showing of irreparable

harm, which requires a movant to demonstrate that harm is “certain and great, actual and not

theoretical, and so imminent that there is a clear and present need for equitable relief to prevent

irreparable harm,” and “beyond remediation.” League of Women Voters of U.S. v. Newby,

, 7–8 (D.C. Cir. 2016) (citing Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006)) (internal quotation marks and brackets omitted). The speculative

injury LeCroy identifies here falls short of this standard. The court has no basis on which to

believe that Defendants will not comply with Georgia’s two-physician requirement.

LeCroy also argues that the 2019 Protocol conflicts with § 17-10-40 of the Georgia code,

which gives “a judge of the superior court of the county where the case was tried” the power to

“pass an order designating a new time period for the execution of the original sentence “[w]here

the time period for the execution of any convicted person in a capital case has passed by reason

of a supersedeas incident to appellate review, a stay of execution by the State Board of Pardons

and Paroles, or for any other reason.”

(a). That provision also

requires that “[t]he new time period for the execution shall be seven days in duration . . . [and]

shall commence not less than ten nor more than 20 days from the date of the order.”

(b).

Georgia Code § 17-10-40 sets forth the power afforded to Georgia superior court judges

in capital cases carried out by the state of Georgia, not the federal government. LeCroy’s

sentence was entered by a judge of the United States District Court, not a Georgia superior court

judge. LeCroy has supplied no authority—and the court has found none—in which a federal

court applied § 17-10-40 to a federal death-row inmate sentenced in Georgia. Moreover, it is not

4 clear how a violation of this statute constitutes irreparable harm, since LeCroy has known his

execution date since July 31. Furthermore, as LeCroy himself notes, a violation of Ҥ 17-10-40

in no way bars the Government from setting a new execution date.” (LeCroy Reply at 15.)

Thus, he has failed to demonstrate irreparable harm.

LeCroy also contends that the 2019 Protocol does not meet the requirements of Georgia

Rule 480-11-.01(6) and § 26-4-86 of the Georgia code, which require that a compounder of

drugs obtain a prescription to make and provide a drug. (LeCroy Mem. at 11.) Again, LeCroy

has failed to demonstrate a likelihood of success on the merits. Georgia Code § 17-10-38(a)

provides that all persons who have “imposed upon them a sentence of death shall suffer such

punishment by lethal injection,” defined as “the continuous intravenous injection of a substance

or substances sufficient to cause death into the body of the person sentenced to death until such

person is dead.” That provision also states that “[n]otwithstanding any other provision of law,

prescription, preparation, compounding, dispensing, or administration of a lethal injection

authorized by a sentence of death by a court of competent jurisdiction shall not constitute the

practice of medicine . . . which is subject by law to regulation, licensure, or certification.”

(c). Thus, the rules LeCroy cites, which address compounding

requirements for “medical treatments,” are inapplicable. See

-.01(26) (defining a “practitioner” as someone “licensed under the laws of this state

to use, mix, prepare, dispense, prescribe, and administer drugs in connection with medical

treatment to the extent provided by the laws of this state”);

at 480-11-.01 (defining

“compounding” as “the preparation, mixing, assembling, packaging, or labeling of a drug or de

vice as the result of a practitioner’s prescription drug order or initiative” (emphasis supplied)).

5 LeCroy posits that § 17-10-38(c) was intended “to prevent lawsuits against the medical

professionals.” (LeCroy Reply at 16.) He further asserts that “[t]he statute does not say that the

prescription requirement is not applicable in this context.” (Id.at 17.) This argument is

unpersuasive. LeCroy faults Defendants for failing to point to any on-point legal authority, yet

he fails to do the same. The only case he cites in support of his position is one in which the state

agreed to provide information that an execution drug was manufactured by a compounding

pharmacy. (Id. at 16 (citing Owens v. Hill,

(2014).) Incidentally, that case did

not opine on whether the state was required to do so.

And for the reasons set forth in the court’s September 20, 2020 Memorandum Opinion,

even assuming Defendants are required to comply with Georgia’s prescription requirement,

LeCroy has not shown that he is sure to face “certain” and “imminent” harm from Defendants’

use of a compounded drug for which they have not secured a prescription

Finally, LeCroy’s Take Care Clause claim, (LeCroy Mem. at 11–12), fails for the same

reasons as the other Plaintiffs’ Take Care Clause claims, (see Sept. 20 Mem. Op. at 21 n.9).

Indeed, LeCroy seems to have abandoned it because he does not discuss it in his reply. (See

generally LeCroy Reply.)

The court finds that the balance of the equities here tilts in favor of Defendants. LeCroy

has failed to demonstrate success on any of his claims and thus it would be inequitable to prevent

Defendants from carrying out LeCroy’s lawful sentence when he does not have a likelihood of

securing the relief sought in this suit. The same can said for the public’s “powerful and

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

(1998).

6 LeCroy has failed to show that he is entitled to the extraordinary remedy he seeks.

Thus, his motion for a preliminary injunction, and the accompanying motion for a hearing, must

be denied.

Date: September 20, 2020

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

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