DC Judge Stays Federal Executions Yet Again

U.S. District Judge Tanya Chutkan, twice reversed for halting federal executions, has halted them yet again. Her 18 page opinion finds a probability of success on one claim, based on the Food, Drug, and Cosmetic Act, and she concludes without analysis of any depth that the public interest in having this claim litigated outweighs the interest of justice in carrying out very long overdue sentences for heinous crimes.

Judge Chutkan summarizes the issues:

Plaintiffs contend that the 2019 Protocol (1) is arbitrary and capricious under the APA [Administrative Procedure Act]; (2) violates the CSA [Controlled Substance Act] and FDCA [Food, Drug, and Cosmetic Act]; and (3) deprives Plaintiffs of their right to access the courts and counsel under the First, Fifth, and Sixth Amendments. (Pls. Mot. for Prelim. Inj. at 1.) The court addresses Plaintiffs’ likelihood of success on the merits on each of these claims in turn. Although most of their claims are without merit, the court finds that Plaintiffs’ have demonstrated a likelihood of success on their FDCA claims.

The Bureau of Prison’s [BOP’s] adoption of the protocol is not “arbitrary and capricious” under the APA. The issue of “flash pulmonary edema” was the subject of the last round of litigation, and Judge Chutkan acknowledges that she is bound by the Supreme Court’s decision, though she is not happy about it. BOP did consider issues of IV line placement and the use of compounded drugs. The latter complaint “must be viewed in light of the Supreme Court’s recognition that the government ‘can’t be faulted for failing to use lethal injection drugs that it’s unable to procure through good-faith efforts.’ Bucklew v. Precythe, 139 S. Ct. 1112, 1125 (2019) ….” Yup. I expected at the time that Bucklew would pay dividends beyond the quirky issue in the case, and it has.

The claim that BOP cannot use these drugs on condemned murderers without a prescription under the CSA founders on the Supreme Court’s decision in Gonzales v. Oregon, 546 U.S. 243 (2006). That decision prevented the use of the CSA from effectively blocking a state’s decision to allow assisted suicide.

Yet Judge Chutkan then does the same thing with the FDCA. She cites the D.C. District Court’s dubious decision in Beaty v. FDA for the sweeping proposition “that death-sentenced individuals are permitted to assert violations of the FDCA,” and then cites Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013) as affirming that decision in relevant part.

Of course, Cook is binding precedent in the D.C. District Court no matter how shaky its reasoning, but Cook does not and cannot stand for the proposition that death row inmates can employ any and all alleged violations of the FDCA to block executions. Curiously absent from the opinion is any mention of Heckler v. Chaney, 470 U.S. 821 (1985). In that case, the Supreme Court rejected an attempt to use the FDCA to block the use of lethal injection drugs. The high court bypassed the “thorny question” of whether the FDA had jurisdiction over the use of drugs for execution at all and held that it had discretion not to exercise it. See id., at 828.

The D.C. Circuit panel in Cook distinguished Heckler by saying that the provision of the FDCA governing importation is different from the provisions at issue in Heckler, and it ordered the FDA to take action against state departments of corrections importing drugs. This dubious holding was not reviewed by the full D.C. Circuit or by Supreme Court because the Obama Administration chose not to seek review. In any case, Cook most certainly did not hold that the inmates could directly invoke an alleged FDCA violation to block their executions without an FDA enforcement action. That issue was not presented by the case.

None of this bothers Judge Chutkan. She just plows right ahead. I predict she has plowed right into reversal number three.

Some good may come of this. Judge Chutkan’s invocation of Cook in a case of high interest to DOJ may bring about a review of that decision by the D.C. Circuit en banc or the Supreme Court. Overruling that decision would be a great victory for capital punishment.