UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 21-1074
United States of America
Appellee
v.
Lisa M. Montgomery
Appellant
______
Appeal from U.S. District Court for the Western District of Missouri - St. Joseph (5:05-cr-06002-GAF-1) ______
ORDER
Before SHEPHERD, KELLY and ERICKSON, Circuit Judges.
Appellant’s motion for a stay of execution pending appeal is granted. Judge Shepherd
would deny the motion.
January 12, 2021
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ______/s/ Michael E. Gans
(1a) Appellate Case: 21-1074 Page: 1 Date Filed: 01/12/2021 Entry ID: 4993591 2a
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION
UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Case No. 05-06002-01-CR-SJ-GAF ) LISA M. MONTGOMERY, ) ) Defendant. )
ORDER
Now before the Court is Defendant Lisa M. Montgomery’s (“Defendant”) Motion to
Enforce the Court’s Judgment.1 (Doc. # 448). In likely anticipation of this Motion and in response to a footnote included in an opinion entered on January 8, 2021 in a case initiated by Defendant in the United States District Court for the District of Columbia, the Government filed a “Notice of
Supplemental Authority” in the above-captioned case, asserting its position that the stay of execution the Court imposed if Defendant appealed her sentence was lifted when her 2255 motion was denied. (Doc. # 447). The Government is correct; in the Court’s view, the stay lifted when it denied her 2255 motion. The Court had no intention to limit execution of the judgment beyond exhaustion of appeals. For this reason and the reasons explained in the Government’s Notice, it is
ORDERED that Defendant’s Motion is DENIED.
s/ Gary A. Fenner GARY A. FENNER, JUDGE UNITED STATES DISTRICT COURT
DATED: January 10, 2021
1 The Court does not construe Defendant’s Motion as one for a stay of execution. If Defendant was seeking a stay in the alternative, such request is also DENIED. 1
Case 5:05-cr-06002-GAF Document 451 Filed 01/10/21 Page 1 of 1 3a
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION
UNITED STATES OF AMERICA
-vs- Case No.: 05-06002-01-CR-SJ-GAF
LISA M. MONTGOMERY
USM Number:
Frederick J. Duchardt, Jr., CJA John O. Connor, CJA
______
JUDGMENT IN A CRIMINAL CASE
The defendant was found guilty on Count 1s on 10/22/07 of the Superseding Indictment. Accordingly, the court has adjudicated that the defendant is guilty of the following offense(s):
Date Offense Count Title & Section Nature of Offense Concluded Number(s)
18 USC 1201(a)(1) Kidnapping Resulting Death December 17, 2004 1s
The defendant is sentenced as provided in the following pages of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
IT IS ORDERED that the defendant shall notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change in the defendant’s economic circumstances.
Date of Imposition of Sentence: April 4, 2008
______/s/ Gary A. Fenner______GARY A. FENNER UNITED STATES DISTRICT JUDGE
April 4,2008
AO 245B (Rev. 12/03) Judgment in a Criminal Case Case 5:05-cr-06002-GAF Document 402 Filed 04/04/08 Page 1 of 3 4a LISA M. MONTGOMERY Page 2 of 3 05-06002-01-CR-SJ-GAF
IMPRISONMENT
It is the judgment of the Court that the defendant is sentenced to death on Count 1s.
The time, place and manner of execution are to be determined by the Attorney General, provided that the time shall not be sooner than 60 days nor later than 90 days after the date of this judgment. If an appeal is taken from the conviction or sentence, execution of the judgment shall be stayed pending further order of this Court upon receipt of the Mandate of the Court of Appeal.
The defendant is remanded to the custody of the United States Marshal.
RETURN
I have executed this judgment as follows:
Defendant delivered on ______to ______
at ______, with a certified copy of this judgment.
______UNITED STATES MARSHAL
By:______Deputy U.S. Marshal
AO 245B (Rev. 12/03) Judgment in a Criminal Case Case 5:05-cr-06002-GAF Document 402 Filed 04/04/08 Page 2 of 3 5a LISA M. MONTGOMERY Page 3 of 3 05-06002-01-CR-SJ-GAF
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments set forth in the Schedule of Payments.
Total Assessment Total Fine Total Restitution
$100.00 $ $
The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on the Schedule of Payments may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
Note: Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18, United States Code, for offenses committed on or after September 13, 1994 but before April 23, 1996.
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties shall be due as follows:
Lump sum payment of $100.00 due immediately.
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
AO 245B (Rev. 12/03) Judgment in a Criminal Case Case 5:05-cr-06002-GAF Document 402 Filed 04/04/08 Page 3 of 3 6a 1
1 BEFORE THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2
3 LISA MARIE MONTGOMERY, . . Case Number 20-cv-3261 4 Plaintiff, . . 5 vs. . . 6 WILLIAM P. BARR, et al., . January 7, 2021 . 2:02 p.m. 7 Defendants. . ------8
9 TRANSCRIPT OF TELEPHONIC MOTION HEARING BEFORE THE HONORABLE RANDOLPH D. MOSS 10 UNITED STATES DISTRICT JUDGE
11 APPEARANCES:
12 For the Plaintiff: ALEC SCHIERENBECK, ESQ. O'Melveny & Myers LLP 13 7 Times Square Tower New York, New York 10036 14 SANDRA BABCOCK, ESQ. 15 Cornell Law School 157 Hughes Hall 16 Ithaca, New York 14853
17 EDWARD UNGVARSKY, ESQ. Ungvarsky Law, PLLC 18 114 North Alfred Street Alexandria, Virginia 22314 19 For the Defendants: ALAN SIMPSON, AUSA 20 U.S. Attorney's Office 400 East Ninth Street, Suite 5510 21 Kansas City, Missouri 64106
22 Official Court Reporter: SARA A. WICK, RPR, CRR 333 Constitution Avenue Northwest 23 U.S. Courthouse, Room 4704-B Washington, D.C. 20001 24 202-354-3284
25 Proceedings recorded by stenotype shorthand. Transcript produced by computer-aided transcription. 7a 2
1 P R O C E E D I N G S
2 (All participants present telephonically.)
3 THE COURTROOM DEPUTY: Your Honor, this is Civil
4 Action 20-3261, Lisa Marie Montgomery versus William Barr,
5 et al. Appearing for plaintiff, Sandra Babcock, Edward
6 Ungvarsky, and Alec Schierenbeck. Appearing for defendant, Alan
7 Simpson.
8 THE COURT: All right. Thank you, all. I appreciate
9 your prompt responses to the Court's order and promptly getting
10 on the telephone for this hearing today.
11 Who is speaking on behalf of the plaintiff today?
12 MR. SCHIERENBECK: Your Honor, this is Alec
13 Schierenbeck. I will be speaking on behalf of Ms. Montgomery.
14 THE COURT: Okay. Why don't you go ahead, then.
15 MR. SCHIERENBECK: Thank you, Your Honor.
16 We are, of course, happy to take Your Honor's direction as
17 to where you would like to go this afternoon, but in light of
18 Your Honor's prior opinion, we don't see a need to again address
19 why the defendants have misconstrued the standard for vacatur
20 under the APA or why Ms. Montgomery suffers prejudice as a
21 result of an unlawfully truncated period between notice and
22 execution. Instead, we plan to address only defendants'
23 argument that the FDPA does not incorporate Missouri law at
24 issue here.
25 And we think plaintiffs are wrong starting with the text. 8a 3
1 The dictionary definitions of "implementation" are broad. They
2 includes the act of putting a plan into action or carrying it
3 out, as Judge Wilkins has noted. Notice is a critical part of
4 carrying out the death sentence and thus implementing it.
5 The government, of course, its own construction of
6 "implementation" in 1993 recognized as much. Its regulation
7 that promulgated its notice and timing rules, we're entitled to
8 implementation of death sentences in federal cases.
9 Now, the text is buttressed by Judge Rao's controlling
10 opinion in Execution Protocols 1. Judge Rao said that the FDPA
11 incorporates all procedures at, quote, whatever level of
12 generalities state law might be framed, including, quote,
13 granular details. She construed "implementation" to include
14 date, time, and place.
15 Defendants read Execution Protocols 1 as a manner case and
16 not as an implementation case. And I think that is defendants'
17 way of trying to wiggle away from Judge Rao's reasoning.
18 THE COURT: Can I ask you to pause there for a second.
19 I'm on board with the proposition that the case is not just
20 about the meaning of the word "manner" and is about the meaning
21 of the entire phrase, including the word "implementation."
22 But given the fact that the setting of the execution date
23 wasn't at issue in that case -- and that case dealt with a much
24 narrower question -- I am interested in how you sort of get to
25 the conclusion that what she said on that issue created binding 9a 4
1 circuit precedent, because that's a pretty, you know, expansive
2 view of when a concurring opinion can create binding circuit
3 precedent, and that so that any time there's any sort of
4 reasoning in that opinion that touches on questions that go, you
5 know, well beyond what was at issue in the case, that that can
6 then create a binding sort of precedent as long as there's
7 another opinion which doesn't necessarily engage in the same
8 reasoning but reaches the same bottom line on that issue, on the
9 question of the meaning of the word.
10 MR. SCHIERENBECK: I understand your point, Your
11 Honor, and I think there are a few ways of thinking about that.
12 First is, of course, Execution Protocols 1 didn't concern a
13 date and time provision itself, but it did construe the statute
14 to include all procedures at whatever level of generalities
15 state law might be framed. It's factually distinguishable in
16 not having touched upon a date, time, or place requirement, but
17 its reasoning isn't distinguished based on that factual
18 distinction.
19 Now, under sort of Marks principles which Your Honor
20 alluded to in our last conversation, the controlling opinion is
21 the reasoning of the judge who concurred in the judgment on the
22 narrowest grounds, and Judge Rao's reasoning was the narrowest.
23 Judge Katsas would have stated that nothing other than the
24 top-line method is incorporated. And Judge Rao vacated the
25 District Court on narrower grounds. She said the state 10a 5
1 execution protocols in question were not incorporated because
2 they were not positive law, simply on that narrow not positive
3 law grounds. And so that is how she reasoned, and that
4 reasoning was necessary for the judgment. So I think that's how
5 you get to construing as binding.
6 There's also the overlap between Judge Rao and Judge Tatel.
7 And I understand that Judge Tatel did not concur in the
8 judgment, but construing the Panel's decisions as a whole, Judge
9 Rao took all state procedures. Judge Tatel said that the FDPA
10 incorporates all implementation procedures, and subsequently,
11 Judge Tatel clarified that that narrower view of scheduling and
12 notice provisions are incorporated within the meaning of
13 "implementation procedures," at least in his view, although that
14 is certainly not binding on the Court.
15 So that's how we get there, Your Honor.
16 Now, I think I will move to what I take to be defendant's
17 big argument now on opposition, which is newly raised, this,
18 quote unquote, structural argument. Now, we think the better
19 reading of 3596(a) is that the provision merely establishes that
20 an execution will only be implemented after exhaustion of direct
21 and collateral review. At that point the sentence is to be
22 implemented, and it is the marshal who is going to supervise
23 implementation.
24 Now, Judge Rao saw no conflict between following, quote,
25 all procedures under law and the marshal's role in supervision. 11a 6
1 And I would direct Your Honor to Judge Rao's opinion at 133 and
2 134 where she really goes into this issue and is obviously
3 construing the marshal's role as a part of the whole statute.
4 Now, there are additional problems with defendants'
5 argument. The first is that although defendants appear to argue
6 at this point that the statute that incorporates death
7 effectuation procedures, their view would carve out even some
8 death effectuation procedures, including critical death
9 effectuation procedures, like how drugs are obtained and
10 compounded. And I can think of no more potential element of
11 state law in terms of inflicting the punishment of lethal
12 injection than determining the safety and provenance of the
13 chemicals to be used themselves.
14 Also, if release is instrumental to the marshal's duty to
15 supervise implementation of law, then certainly the government
16 should be able to identify when release to the marshal occurs,
17 but they haven't even tried. I'm not sure as a matter of
18 practice there is even a technical or formal transfer of
19 custody.
20 Also, I think the government's obscurity on that point
21 points to why the FDPA doesn't turn merely on the DOJ's own
22 internal decision about when formal transfer of custody occurs,
23 because if it did the government could evade the FDPA all
24 together simply by saying the marshal only formally takes
25 custody upon pushing the button for the electrocution chamber or 12a 7
1 what have you, at the very last moment of the infliction of
2 punishment.
3 Now, I will skip getting into at length why we think the
4 government is wrong on the effectuation of death reading. They
5 give no linguistic reasoning why the broad terms of
6 "implementation of the manner" should be narrowed to just
7 "effectuation of death," and they misread Judge Tatel's opinion
8 as adopting that view. The other circuits they cite are
9 inapposite and really provide no more reasoning than the
10 government does. Because even if effectuation is the line,
11 scheduling is a critical part of carrying out the sentence and
12 thereby effectuating it.
13 Now, a few other points. The government stresses the
14 historic role of the marshal, and of course, we have never
15 argued that the marshal sets the execution date. Our point is
16 that the marshal ensures that the execution is carried out in
17 accordance with law. Although the law provides the timing
18 provision, he ensures that the execution is carried out in
19 accordance with that timing provision.
20 The government's argument just proves too much. The
21 marshal doesn't select the top-line method either. Of course,
22 the marshal has to follow the top-line method prescribed by law.
23 It's always been federal law that suggested what the top-line
24 method would be or direct following state procedure with respect
25 to the top-line method. I don't think there's any question -- 13a 8
1 THE COURT: So let me ask you a question about this.
2 The marshal is required to supervise the implementation in
3 accordance with state law. If you are right and if the
4 government is right -- which I think it is that the historical
5 backdrop here was that the courts set the execution date, and
6 indeed, in this case the Court did set the execution date.
7 If the Court sets the execution date for a Saturday
8 afternoon and there is a state law that says that under state
9 procedures executions should not occur on the weekends, the
10 Court issues an order setting a date for Saturday afternoon.
11 The marshal shows up.
12 Is the marshal at that point in time supposed to say, look,
13 I can't actually -- the execution cannot go forward because in
14 my view the Court's order is inconsistent with state law?
15 MR. SCHIERENBECK: I don't know whether as a practical
16 matter, Your Honor, that happens. I think the statute envisions
17 that the marshal has a duty to ensure that the execution is
18 carried out in accordance with law. And here the law is not
19 just the courts set date, but it's the state law. And so yes, I
20 think that's the scheme the statute envisions.
21 You could think of it as the marshal being delegated the
22 responsibility on behalf of the entire Department of Justice to
23 ensure that the execution is implemented in accordance with
24 applicable law.
25 THE COURT: Okay. Since I've already interrupted you, 14a 9
1 let me ask you another question, which is, if the Court were to
2 rule against Mrs. Montgomery on this current motion, what do you
3 think that I should do?
4 You've moved for summary judgment. The government has not
5 moved for summary judgment. And it's not clear to me that there
6 would be an appealable order at that point if I were to simply
7 deny your motion for summary judgment.
8 So I guess my question for you is, would you agree that I
9 can treat the government's opposition as a cross-motion for
10 summary judgment and just resolve this case on the merits?
11 And part 2 of that question is, if I did that, should I
12 enter final judgment in the case on the grounds that the D.C.
13 Circuit has already rejected your other argument with respect to
14 the regulations? What do I do to preserve your appellate
15 rights?
16 MR. SCHIERENBECK: Your Honor, I think because we want
17 to move as expeditiously as possible to enforce our -- to keep
18 this case going, a final judgment on this claim would be
19 appropriate. Your Honor, we still have an outstanding Woodard
20 claim in the initial complaint, and I don't think we are
21 prepared to say that final judgment on that Woodard claim would
22 be appropriate at this juncture.
23 THE COURT: Is there more to do with respect to that
24 claim?
25 MR. SCHIERENBECK: Potentially, Your Honor. The 15a 10
1 government's consideration of Ms. Montgomery's clemency petition
2 is ongoing. And were the government to depart from the minimal
3 safeguards of due process with respect to that claim, we may be
4 before Your Honor on that claim.
5 THE COURT: How would they -- how would that come
6 about just hypothetically?
7 I mean, I take it it's not based on sort of the original
8 basis of the claim in that the lawyers were ill, but that they
9 didn't give the claim adequate consideration. I'm not quite
10 sure what that would look like.
11 MR. SCHIERENBECK: I understand, Your Honor. I don't
12 want to suggest that this is, you know, in the offing, but if
13 you want an example of what it might look like, suppose the
14 Office of the Pardon Attorney is struck by coronavirus and we
15 find out that they are incapable of considering this petition.
16 THE COURT: All right. That's fair enough.
17 So your position, then, is that -- and I'm not saying what
18 I will do, but that if I were to rule against you on the present
19 motion for summary judgment, that I should treat the
20 government's opposition as a cross-motion and enter partial
21 summary judgment on Count 2 of Mrs. Montgomery's supplemental
22 complaint.
23 Do I have it right?
24 MR. SCHIERENBECK: I think that's fair, Your Honor. I
25 confess I have not walked through all of the pieces. There 16a 11
1 would also be, I suppose, an option to certify that issue for
2 interlocutory appeal.
3 THE COURT: Yeah, I'm not sure that that is going to
4 get you the expedition you want. If I certify it for
5 interlocutory appeal, first of all, I would need briefing on the
6 question of whether the standards of 1292(b) are satisfied, and
7 then you would have to get an order from the Court of Appeals
8 granting interlocutory appeal before then the case could even be
9 teed up to the Court of Appeals.
10 MR. SCHIERENBECK: The point is well-taken, Your
11 Honor. I do think that construing the government's motion as a
12 cross-motion would be appropriate under those circumstances.
13 THE COURT: It does seem to me that there's nothing
14 left -- again, without suggesting how I'm going to come out one
15 way or the other on this issue, I don't need the briefing. It's
16 not like there's discovery that's going to be taking place or
17 further briefing on it. So it seems the parties have fully
18 presented their views with respect to that claim and it is ripe
19 for resolution one way or the other.
20 MR. SCHIERENBECK: I would agree, Your Honor. It's
21 purely legal. This is an administrative law case. The record's
22 here. Your Honor could rule.
23 THE COURT: Okay.
24 MR. SCHIERENBECK: I think there are only two points,
25 Your Honor, that I wanted to press in this opening presentation. 17a 12
1 First is -- two of many points, I should say.
2 The first is that I take the government to argue that they
3 understand that references to state officials can't be an
4 insurmountable problem to incorporate in state law in the FDPA,
5 or else the FDPA would be totally eviscerated. I take the
6 government's argument to be that references to courts are
7 different, but it doesn't quite explain why. The government
8 doesn't dispute that it could give 90 days' notice. It doesn't
9 dispute that these rules have the force and effect of law. It
10 suggests that the rules are only binding on courts and litigants
11 and counsel, but of course, the government is a litigant in a
12 criminal prosecution that ends in a sentence of death.
13 And to the extent the government is referencing practical
14 problems that arise from having to follow Missouri law, those
15 are the very practical problems that were rejected by the panel
16 in the Execution Protocols 1 case.
17 And finally, I feel compelled to respond to the argument
18 from the government in its most recent filing that we have
19 unnecessarily delayed in bringing this claim. As Your Honor is
20 aware, we have moved quite expeditiously in trying to enforce
21 Ms. Montgomery's rights. The pleading was filed within two
22 weeks of the government setting the execution date. The
23 government appears to argue that Ms. Montgomery could have
24 challenged the execution date before it was even set, but basic
25 rules of the Administrative Procedure Act require final agency 18a 13
1 action prior to a challenge to that agency action.
2 And to the extent we are now on the precipice of the
3 execution in litigating this claim, that is a consequence of the
4 government's actions in this case that are under review, in
5 rushing to the execution chamber in an unprecedented way in
6 violation of federal law.
7 THE COURT: This touches on a question I had for you,
8 which is, the judgment from the District Court in this case, the
9 District Court in Missouri, says that the execution would be no
10 sooner than 60 days, no later than 90 days from the entry of a
11 judgment. Give me a second here. And then the Missouri Supreme
12 Court rule says that any execution shall be at least 90 days but
13 not more than 120 days after the date of the order.
14 My question to you is, was the order entered by the
15 District Court invalid, in your view, because it didn't comply
16 with the Missouri Supreme Court rules? And if so, were you
17 untimely raising an objection with respect to that? That
18 obviously has been around for years.
19 MR. SCHIERENBECK: Your Honor, we haven't made that
20 argument. We didn't make that argument in our supplemental
21 complaint as to the judgment. We didn't add it to this
22 proceeding after Your Honor raised that very interesting point
23 in our last conversation. So we are simply not pressing that
24 point at all.
25 THE COURT: Okay. But are you pressing it before the 19a 14
1 District Court in Missouri, and what's the status?
2 It at least puzzles the Court and perhaps troubles the
3 Court if there is actually a judicial decree from a sister court
4 which is not being complied with here. It may not be an issue
5 for me to resolve, but I am concerned at least about the
6 prospect that there could be an order from a federal court here
7 that's not being complied with. I am just curious as to what's
8 going on with that. You have previously represented to me that
9 the order that has been provided to me is the only thing that is
10 on the docket in Missouri and that the District Court judge, the
11 sentencing court has not entered any further order or modified
12 its order in any respect. So I am still scratching my head
13 about that issue.
14 MR. SCHIERENBECK: I understand, Your Honor. We have
15 not returned to Judge Fenner on that point.
16 THE COURT: Okay. Obviously, that's not my decision
17 as to whether you go to Judge Fenner with it. It's one of the
18 things that complicates my analysis as I think about it. If I
19 conclude that the historic backdrop for the statute is that the
20 Court set the execution date, the Court actually did set the
21 execution date or a range of dates here in this case, and it's
22 leaving me scratching my head a little bit about what we're
23 talking about here where -- what Judge Fenner did was somehow
24 improper, in your view, or if the government is not complying
25 with Judge Fenner's order in some respect, I'm left scratching 20a 15
1 my head.
2 Isn't your remedy to go to Judge Fenner rather than this
3 Court with those issues?
4 MR. SCHIERENBECK: I understand, Your Honor. If we
5 were pressing a claim with respect to Judge Fenner's judgment,
6 the appropriate forum would likely be Judge Fenner. But because
7 we're bringing an APA claim in this jurisdiction and our claims
8 were based on, you know, the federal regulations and now the
9 FDPA, we think these questions are appropriate for Your Honor.
10 THE COURT: All right. For me -- and I realize the
11 issue is not one that's presented to me and presumably one that
12 should be presented, if at all, to Judge Fenner. It complicates
13 things a little bit for how I think about it, because if the
14 backdrop is the courts typically set the execution dates, to
15 address this case without talking about and thinking about what
16 has actually happened in the sentencing court is a little bit
17 artificial. It's made my consideration in the case a little bit
18 more difficult.
19 MR. SCHIERENBECK: I understand, Your Honor, and I
20 think we may need to investigate that claim a bit more, you
21 know, and consider what to do. But we don't think that claim is
22 before Your Honor. In all candor, there have been a lot of
23 moving pieces here, and we are riding the horse we have at the
24 moment.
25 THE COURT: And I understand that. It does help me to 21a 16
1 at least know where things stand for purposes of preparing my
2 opinion. So thank you for that.
3 MR. SCHIERENBECK: Of course.
4 THE COURT: Anything else you want to add?
5 MR. SCHIERENBECK: Not at the moment, Your Honor.
6 Thank you.
7 THE COURT: Okay. I will let you reserve some time,
8 and I will hear from Mr. Simpson now.
9 MR. SIMPSON: Thank you, Your Honor.
10 Defendants believe that scheduling of Montgomery's
11 execution complied with the Federal Death Penalty Act, as
12 apparent from the text and structure of the FDPA. The FDPA
13 provides that the person who has been sentenced to death is
14 committed to the custody of the Attorney General until
15 exhaustion of the procedures for appeal. And post-sentence,
16 Montgomery was committed to the custody of the Attorney General.
17 She exhausted her appeals in May 2020, and she remains in the
18 Attorney General's custody today. She's confined in Texas, as
19 Your Honor well knows.
20 The FDPA next provides that when the sentence is to be
21 implemented, the Attorney General shall release the person to
22 the custody of a marshal, and that has not yet occurred.
23 Montgomery is at the Federal Medical Center Carswell and will
24 not be placed into the custody of a marshal for purposes of the
25 FDPA as opposed to transfer until she is in the execution room 22a 17
1 and the execution is ready to proceed.
2 THE COURT: But let me ask you about that. Does that
3 mean that in essence the requirement in the FDPA that the
4 marshal supervise implementation of the execution according to
5 state law is in essence a nullity or can be rendered a nullity
6 by planning by the Department of Justice in that some other
7 official can decide what chemical to use for purposes of the
8 execution, who is going to be in the room for the execution,
9 everything whatsoever relating to implementation, and that the
10 marshal can simply walk in eight seconds before the execution is
11 set to take place and say go ahead and do it, and there actually
12 would be nothing to the requirement that the supervision be in
13 accordance with state law because the marshal would be doing
14 nothing other than simply saying do it after all the other
15 decisions and actions have taken place?
16 MR. SIMPSON: No, Your Honor, because those state laws
17 govern the actual implementation of the sentence. And I believe
18 that this is something that Judge Rao discusses in her
19 concurrence where she says that most state statutes and formal
20 regulations, including a reference to Missouri's, govern the
21 implementation of a sentence at a high level of generality. But
22 there are still nonetheless requirements applying to the
23 sentence, that is, the chemicals to be used or that chemicals
24 used to effectuate that shall have been procured in a particular
25 way. It's not merely a reference to -- it's not merely a 23a 18
1 requirement to the types of plans that various officials must
2 undertake.
3 So for example, with respect to witness attendance, if its
4 state law says that state officials shall plan for certain
5 people to be able to attend, then I think that that would not be
6 a procedure which effectuates -- or in any event, that would not
7 be comparable -- and it's probably a better example to use the
8 prescription -- not the prescription, but the actual chemical
9 requirement that Your Honor mentioned and that Mr. Schierenbeck
10 mentioned. But there, the requirement is actually on the
11 chemical to be used, not on merely the type of chemical that
12 shall be obtained for use.
13 THE COURT: So are you disagreeing, then, with Judge
14 Rao?
15 MR. SIMPSON: I don't believe that I'm disagreeing
16 with Judge Rao.
17 THE COURT: Well, because Judge Rao seems to say that
18 part of the implementation even includes the setting of the
19 date.
20 MR. SIMPSON: Your Honor, we believe that Judge
21 Katsas's concurrence was correct and that Judge Rao's
22 concurrence did not address this particular issue.
23 And I think that the context of that particular opinion is
24 important. There, Judge Chutkan had found that the requirement
25 to conduct executions in the manner prescribed by state law 24a 19
1 applies both to the selection of the execution method as well as
2 to additional procedural details, for example how the
3 intravenous catheter is to be inserted. And Judge Rao reads
4 that "manner" included procedural details where the details were
5 a part of state statutes or formal regulations, including
6 Missouri's and again not referencing state court rules of
7 practice and procedure. But we believe that Judge Katsas's
8 recent concurrence is correct that that case did not present and
9 had no occasion to decide whether the FDPA extends to these
10 matters that precede the release of the prisoner to the marshal.
11 THE COURT: I will ask you the same question I asked
12 Mr. Schierenbeck about what I should do. If I agree with
13 plaintiff, it's pretty clear what I would do. I would enter
14 summary judgment in plaintiff's favor. If I agree with the
15 defendants, what do you think I should do? Would it be
16 appropriate for me to treat your opposition as a cross-motion
17 for summary judgment and just enter judgment in your favor, in
18 favor of the defendants on that claim?
19 MR. SIMPSON: I believe that that would be
20 appropriate, Your Honor. The defendants want to see this matter
21 brought forth expeditiously. We've made various arguments about
22 that and note that this issue has been apparent for many months.
23 And in fact, Ms. Montgomery attempted, after her date was set in
24 October, to intervene into the federal death penalty -- into the
25 execution protocol litigation but did not raise this particular 25a 20
1 claim, even though it was readily apparent.
2 Moreover --
3 THE COURT: I'm sorry. Just to finish on this point.
4 MR. SIMPSON: Yes. Sorry, Your Honor. Yes, please.
5 THE COURT: So it is appropriate to treat your
6 opposition as a cross-motion. Would it be appropriate for me
7 also to enter, as I did before, a partial judgment, this time on
8 Count 2 of the supplemental complaint, which would then permit
9 for prompt appellate review?
10 MR. SIMPSON: Yes, Your Honor.
11 THE COURT: All right. Thank you. I'm sorry. I cut
12 you off.
13 MR. SIMPSON: Your Honor, I don't want to belabor the
14 point. I think it's well addressed in the briefs. But this
15 particular issue or this alleged violation has been apparent for
16 some number of months, and it was only recently brought to --
17 brought forth. And we believe that the delay and here now where
18 any relief on this claim would occur nearly five days at the
19 earliest before the execution means that this falls within the
20 category of cases that the Supreme Court has repeatedly
21 discouraged capital defendants from not raising these claims
22 earlier, and various other defendants -- or other inmates have
23 actively brought these claims.
24 And I note Mr. Schierenbeck's opposition to that is only
25 that they could not have brought an APA claim before a date was, 26a 21
1 in fact, set, but they could have brought an injunction action,
2 as many other inmates did. And I think that it relates to the
3 point in the briefs about why Ms. Montgomery's argument has to
4 be incorrect, and that is that she can avoid a sort of -- the
5 standard for a stay of execution or for equitable relief based
6 solely on the APA, that her rule would counsel the precise sort
7 of delay that the Supreme Court has repeatedly discouraged.
8 THE COURT: Let me ask you about the judgment again.
9 I know I've had this conversation with you before. But do you
10 have anything else to update on this?
11 I guess I still am confused as to the basis the government
12 has for concluding that you go forward with the execution here
13 on the date that's scheduled where there's a court order that
14 says that the execution -- the Attorney General can determine
15 the time, place, and manner of the execution, provided that it
16 should be no sooner than -- no sooner than 90 days, no later
17 than 90 days after the date of this judgment, and the judgment
18 is stayed pending appeal and then also pending further order of
19 the Court.
20 And so reading that, it looks to me as though there's at
21 least an argument that the judgment actually has been stayed and
22 is still stayed in the District Court in Missouri, and if it's
23 not stayed in the District Court in Missouri, then it seems like
24 the time that was specified has run and you need to go back to
25 Judge Fenner to get him to either clarify or set a new date. 27a 22
1 I am interested in the government's position on that
2 question.
3 MR. SIMPSON: Your Honor, we do not believe that the
4 60 to 90 days provision is applicable because there was a direct
5 appeal taken and subsequent to that a timely 2255 proceeding.
6 And we believe that the further order contemplated by Judge
7 Fenner's criminal judgment was his 2255 order which denied
8 relief and a certificate of appealability. And that order,
9 collateral review entirely became final in May of 2020, and that
10 now -- at any point in time thereafter, Ms. Montgomery was
11 subject to defendant's scheduling for execution.
12 THE COURT: Maybe it's Judge Fenner's business and not
13 my business as to whether that complies with his order. But
14 it's not obvious to me by any means. It's a little hard, I
15 think, to reconcile with what the order and judgment actually
16 says, but I will leave that to the parties and Judge Fenner.
17 For me, I don't think the question -- and I think
18 Mr. Schierenbeck was clear that the issue is not presented to me
19 in this case, but it poses a little bit of a quandary for me in
20 how I think about this case. As I said to Mr. Schierenbeck, I
21 tend to agree with what I believe is your position, Mr. Simpson,
22 that the sort of background norm here upon which the legislation
23 was adopted was that the courts set the execution date, and
24 therefore, your argument is that it is not the marshal who sets
25 the execution date, it's been historically the Court does. In 28a 23
1 fact, that's what happened here. But then the judgment doesn't
2 actually jive with what's going on, which is causing me a little
3 bit of a quandary.
4 MR. SIMPSON: Your Honor, both the judgment as well as
5 the FDPA were entered well after the Department of Justice had
6 promulgated its regulations that provide for the director of the
7 Federal Bureau of Prisons to set execution dates.
8 THE COURT: I don't think that's quite a fair reading
9 of it, because as you also know, until just a couple of weeks
10 ago, the federal regulations said that the U.S. Attorney should
11 go to the Court and request that the Court set an execution date
12 that, in essence, delegates authority to the Bureau of Prisons
13 to set the date, which is sort of what happened here. It may
14 have been the Attorney General instead of the Bureau of Prisons.
15 And Judge Fenner entered the order along the lines
16 contemplated by the regulations, and the regulations also said
17 that the director of the Bureau of Prisons shall set the date
18 except as otherwise provided by the Court. So we still kind of
19 run back into this judgment from the District Court in Missouri.
20 MR. SIMPSON: And Your Honor, defendants have no
21 opposition to go in to Judge Fenner, but we also do not believe
22 that this criminal judgment that we have requires us to do so,
23 and we're not in a position where we believe that that's a
24 necessary action.
25 But I understand Your Honor's concern, and I believe that 29a 24
1 defendants just disagree as to the conclusions to be drawn from
2 those cases.
3 THE COURT: Let me ask you, was I correct in my
4 wind-up to that question that it is defendants' position that
5 sort of the historical norm preceding adoption of the FDPA was
6 the courts set the execution date and that that norm counsels
7 against plaintiff's contention here that Congress contemplated
8 that it would be the U.S. Marshal that would be implementing the
9 judgment in setting a date in accordance with state law?
10 MR. SIMPSON: Your Honor, yes, with my prior caveat
11 about the regulation. I think that Congress enacted the FDPA
12 with knowledge of the regulations and intending to supplement
13 and by the FDPA make federal executions easier, particularly in
14 locations or states where there are no -- where there is no
15 death penalty.
16 So the answer is yes, but I don't believe that there's any
17 limitation thereby on defendants' ability to set dates. So as a
18 matter of historical practice, we agree that the marshal really
19 never set dates, apart from this instance which we mentioned in
20 the historical briefing regarding when a Court might set a
21 window, for example, and I believe that that actually occurred
22 in the Rosenberg case.
23 But apart from that, marshals did not set dates, and I
24 think that that is reinforced by the structure of the FDPA in
25 that section where it says that the supervision of the marshal, 30a 25
1 of that implementation is only occurring upon release to a
2 marshal. So it contemplates sort of a single person and not a
3 lengthy period of time, that that corresponds with historical
4 practice and understanding.
5 And so all of these decisions about scheduling are far
6 antecedent to the actual release to the marshal and the
7 implementation of the sentence.
8 THE COURT: Okay. Anything else, Mr. Simpson?
9 MR. SIMPSON: Yes, I did want to mention one other
10 thing. I'm just going to jump through in my notes. I had one
11 final point.
12 And that is that we believe this case is -- that this
13 particular claim is different than the regulatory claim in that
14 even if Your Honor were to determine that Ms. Montgomery is
15 correct on the merits that scheduling is something the marshal
16 is supposed to supervise, that the director of BOP's designation
17 of Montgomery's date is not itself contrary to law or in excess
18 of statutory authority. And accordingly, it cannot be vacated
19 under the APA. Any legal action -- or any legal violation or
20 provision of law would be a failure of the marshal to supervise
21 under the FDPA.
22 So unlike this Court's prior order where the regulation, if
23 it applied at all, made the setting of the execution date itself
24 contrary to law, here, the FDPA does not directly govern what
25 BOP designates. At most, it prescribes the way in which the 31a 26
1 marshal supervises. Accordingly, we do not believe that APA
2 vacatur would be an available remedy to set aside BOP's
3 designation.
4 Again, assuming that Montgomery is right on the merits of
5 her argument, any relief would have to be via an injunction,
6 which requires a showing of irreparable harm. And I think that
7 Your Honor understands my point, but to put it another way,
8 there is space between the textual duty imposed on the marshal
9 by the FDPA and the thing that Ms. Montgomery is seeking to
10 vacate.
11 THE COURT: I get that point. That's helpful. Thank
12 you.
13 MR. SIMPSON: Okay. So with that, Your Honor,
14 defendants would rest on their briefs.
15 THE COURT: All right. Thank you.
16 Mr. Schierenbeck, your rebuttal? You may be on mute,
17 Mr. Schierenbeck.
18 MR. SCHIERENBECK: Thank you, Your Honor. Only two
19 quick points.
20 The first is that in discussing with co-counsel Your Honor
21 asked about the status of our Woodard claim, and it was brought
22 to my attention that there is a situation we are monitoring. I
23 just want to say, all we are doing is monitoring what is very
24 fast-moving, and there are currently questions about the ability
25 of the executives to carry out the duties of office and whether 32a 27
1 that would be probative of a Woodard claim and is something we
2 are monitoring.
3 THE COURT: One thing I should just caution the
4 parties about is that I will be unavailable for most of the day
5 on Saturday. If you need to come to me with any emergency
6 requests, I'm going to be hard to get in touch with on Saturday.
7 MR. SCHIERENBECK: Understood, Your Honor.
8 THE COURT: Anything further, Mr. Schierenbeck?
9 MR. SCHIERENBECK: No, Your Honor. The only point I
10 think is this last argument which I had not took the defendants
11 to have made in their papers, that there is a distinction
12 between the duty of the marshal to supervise implementation and
13 the agency action we're challenging here. It's entirely new to
14 me, and Your Honor, it's something I think we would have to
15 discuss with co-counsel to adequately respond to. I wonder, if
16 Your Honor would allow, that I am able to consult with them and
17 if necessary file a paper no later than 5:00 on that point.
18 THE COURT: Yeah, I will allow that. I haven't been
19 focusing on this myself. I can't tell you that it will be time
20 well spent on your part, but if you would like to file something
21 by 5:00, you are welcome to do so.
22 MR. SCHIERENBECK: I understand, Your Honor. I don't
23 think there's -- at first blush, there's not much to it, but I
24 simply haven't -- because it wasn't in their papers, I haven't
25 thought it over. 33a 28
1 THE COURT: Completely fair. I'm not objecting at
2 all. It's completely fair if you would like to file something.
3 All I was saying is that if it's in the papers it's not
4 something I focused on previously. So it's not as though I'm
5 getting ready in the next couple hours to issue an opinion that
6 is going to rely on that reasoning. But if you would like to
7 file something by 5:00 p.m. tonight addressing that, you are
8 welcome to do so if you think that is something you would like
9 to do.
10 MR. SCHIERENBECK: I understand, Your Honor. And if
11 no paper comes, I think then it would mean that we also found no
12 reason to respond. Thank you.
13 THE COURT: Fair enough. That's completely fair.
14 Anything else, Mr. Schierenbeck, you want to raise?
15 MR. SCHIERENBECK: No, Your Honor. Thank you very
16 much.
17 THE COURT: Okay. And Mr. Simpson, anything further
18 from you?
19 MR. SIMPSON: No, Your Honor. Thank you.
20 THE COURT: Thank you, all. And once again, I
21 appreciate your incredibly hard work on this matter on a very
22 short timetable. I know the pressure you are all operating
23 under, and I know that things are tough in the world right now
24 anyway with the virus and people having to work from home with
25 family around. So I am very appreciative of your efforts. So 34a 29
1 thank you.
2 I will issue an opinion as soon as I possibly can. One way
3 or the other, I want to make sure that whoever is unhappy with
4 what I do they have an opportunity to take further steps.
5 Thank you, all.
6 (Proceedings adjourned at 2:48 p.m.)
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1 CERTIFICATE OF OFFICIAL COURT REPORTER
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3 I, Sara A. Wick, certify that the foregoing is a
4 correct transcript from the record of proceedings in the
5 above-entitled matter.
6
7 Please Note: This hearing occurred during the
8 COVID-19 pandemic and is, therefore, subject to the
9 technological limitations of court reporting remotely.
10
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12 /s/ Sara A. Wick January 8, 2021
13 SIGNATURE OF COURT REPORTER DATE
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25 36a 1
1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 LISA MARIE MONTGOMERY, 3 Civil Action Plaintiff, No. 1:20-cv-3261 4 vs. Washington, DC 5 December 23, 2020 WILLIAM P. BARR, et al., 6 11:04 a.m. Defendants. 7 ______/
8 TRANSCRIPT OF TELEPHONIC MOTION HEARING 9 BEFORE THE HONORABLE RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE 10 APPEARANCES: 11 For the Plaintiff: ALEC SCHIERENBECK O'Melveny & Myers 12 7 Times Square Tower New York, NY 10036 13 SANDRA L. BABCOCK 14 ZOHRA AHMED Cornell University Law School 15 157 Hughes Hall Ithaca, NY 14853 16 EDWARD UNGVARSKY 17 Ungvarsky Law, PLLC 114 North Alfred Street 18 Alexandria, VA 22314
19 For the Defendants: ALAN SIMPSON 20 U.S. Attorney's Office for the Western District of Missouri 21 400 E. 9th Street, Suite 5510 Kansas City, MO 64106 22
23 Court Reporter: JEFF M. HOOK Official Court Reporter 24 U.S. District & Bankruptcy Courts 333 Constitution Avenue, NW 25 Washington, DC 20001 37a 2
1 P R O C E E D I N G S
2 DEPUTY CLERK: This is civil action 20-3261, Lisa
3 Marie Montgomery vs. William P. Barr, et al. Appearing for
4 plaintiff, Sandra Babcock, Zohra Ahmed, Edward Ungvarsky and
5 Alec Schierenbeck. Appearing for defendants, Alan Simpson.
6 THE COURT: Welcome, all. I'll remind you all
7 once again that under the Court's rules and the Chief
8 Judge's standing order, it's not permitted to record or to
9 rebroadcast today's proceedings, and I'm going to order that
10 nobody do so. I'll ask that everyone mute your telephones
11 when you're not speaking so we don't get feedback. Please
12 speak into the handset when you are -- when it is your turn
13 so that we can hear you clearly. And please introduce
14 yourself by name each time that you speak so we have a clear
15 record.
16 We're here today on the plaintiff's motion to
17 clarify the Court's order, and on plaintiff's motion for
18 partial summary judgment. So I will hear from plaintiffs
19 first.
20 I don't know, is it Mr. Schierenbeck or
21 Ms. Babcock -- Professor Babcock who's speaking on behalf of
22 the plaintiffs today?
23 MR. SCHIERENBECK: Your Honor, this is Alec
24 Schierenbeck, and I'll speaking on behalf of plaintiffs
25 today. 38a 3
1 THE COURT: Okay. Well, go ahead, please.
2 MR. SCHIERENBECK: Wonderful. Good morning, your
3 Honor.
4 THE COURT: Good morning.
5 MR. SCHIERENBECK: I can begin however you'd like,
6 your Honor, but I was planning to start with our motion for
7 summary judgment and the text of the regulation 26.3.
8 THE COURT: That's fine.
9 MR. SCHIERENBECK: Great. Well, our reading of
10 26.3, your Honor, under which the director cannot reschedule
11 a date until, as the text specifies, when the stay is lifted
12 is confirmed by the text, the context, the logic and the
13 purpose of that regulation. On the text, the regulation
14 uses the mandatory term shall, and it specifies the director
15 must, quote, designate a new date, quote, when the stay is
16 lifted. That phrase, when the stay is lifted, modifies the
17 verb designate which the Government hasn't disputed. So the
18 command is that the director designate a new date only when
19 the stay is lifted.
20 Now, the Government has put forward two readings
21 of the regulation that permit its action here. Neither are
22 tenable. The first, I think, is they say the whole purpose
23 of the second sentence is merely to ensure prompt
24 rescheduling. And so the sentence doesn't limit the
25 Government's ability to designate a new date at all at any 39a 4
1 time during a stay. It's simply a duty to designate after a
2 stay is lifted, if the director hasn't done so prior.
3 But it's a basic tenet of the interpretation of
4 any text that when a statute or a regulation provides that a
5 thing shall be done in a certain way, it carries with it an
6 implied prohibition against doing it in any other way. Or
7 as the Supreme Court stated as far back as 1871 in the
8 Raleigh case, when a statute limits a thing to be done in a
9 particular mode, it includes a negative of any other mode.
10 And that's precisely what happened here, the regulation --
11 THE COURT: I'm sorry to interrupt, but in support
12 of that proposition, you cite to Sutherland and you cite to
13 that case from 1871.
14 Any case law more recent than 1871 that says the
15 same thing?
16 MR. SCHIERENBECK: Absolutely, your Honor, and I
17 can have that for you in a moment.
18 THE COURT: Okay.
19 MR. SCHIERENBECK: It's been cited in the last
20 decade by the Supreme Court and circuit courts as well. We
21 cited the Raleigh v. Reid case to show how far back that
22 proposition goes. And I think it is a basic tenet -- it's
23 also cited, your Honor, in the Garner and Scalia Reading Law
24 text which goes exhaustively through the history of that
25 proposition. 40a 5
1 Now, if the Government is right, and if the
2 purpose of that provision is just promptness, then why
3 specify at all that designation should occur when the stay
4 is lifted? In fact, if the director can redesignate during
5 a stay, why does the provision speak to a stay at all? The
6 Government's interest in prompt rescheduling is presumably
7 the same for whatever reason an original date passes. But
8 this sentence doesn't speak to any reason that a date may
9 pass, it speaks to when a date passes by reason of a stay.
10 So that says that the stay is something different and
11 something special that the regulation called out that
12 prescribed when and how a director should react to the
13 passing of a date in response to a stay.
14 We also point out, your Honor, that to the extent
15 the Government is saying that the general discretion of the
16 director in the first sentence of 26.3(a)(1) is the reason
17 why the director had his power here, well, the basic canon
18 that the specific governs the general means that the
19 specific prohibition in the second sentence overrides and
20 controls the general discretion in the first sentence.
21 Now, the Government also argues that here there's
22 no problem in the second sentence, because the director --
23 because the date that was originally designated didn't pass.
24 The director acted before the date passed, and the statute
25 references if the date passes by reason of a stay. But 41a 6
1 again, if that were a plausible reading of the provision,
2 then why would the provision specify that re-designation
3 should occur only, quote, when the stay is lifted?
4 The Government's reading also leads to a bizarre
5 consequence, your Honor. It would mean that the director
6 has unfettered discretion before the date passes, but then
7 his authority is frozen until after the date passes. Now,
8 the passing of the date alone isn't some magic event. The
9 legally consequential event, your Honor, is the stay going
10 into effect.
11 Now, the Government has made a lot of work in its
12 opposition papers saying that Auer rule serves no purpose.
13 But the purpose of the rules that promulgated -- that
14 contain 26.3 and 26.4 is to ensure the, quote, orderly
15 implementation of death sentences. That's the stated
16 purpose in the notice of proposed rulemaking. And together
17 26.3 and 26.4 serve that purpose by ensuring that after a
18 stay is lifted, there will be a 20-day period of daylight so
19 that a plaintiff can consider and pursue appropriate legal
20 remedies in the wake of a stay being lifted, so that
21 appellate courts can review.
22 Now, in the Government's view, by contrast, it
23 could schedule an execution for a minute after a stay
24 expires, which would frustrate the ability of courts like
25 your Honor to review their own decisions or reconsider 42a 7
1 decisions; would frustrate judicial review; and would be a
2 recipe for dysfunction as plaintiffs fearing an execution
3 that could occur one minute after a stay expires would file
4 rushed pleadings and perhaps even interlocutory appeals to
5 try to head off that.
6 THE COURT: But that can happen in the
7 circumstances in which the execution date has not been
8 moved, right? So if the execution date is scheduled for
9 December 8th, and there's a rush up to that execution date,
10 and there is a stay that is lifted at 11:00 p.m. on
11 December 8th, the execution can take place before midnight.
12 And that actually often happens.
13 MR. SCHIERENBECK: It can, your Honor.
14 THE COURT: The disorder you're talking about does
15 occur frequently. And in fact, it's probably more typical
16 than not in the death penalty, right?
17 MR. SCHIERENBECK: Your Honor, it certainly can
18 occur that way. Of course, in that context, all of the
19 relevant parties and the court are aware of the date. So
20 you don't have this situation where a notice happens after a
21 lengthy stay with -- to designate a date that will occur
22 quite shortly thereafter to frustrate review. But it's true
23 that that does occur. I think the regulations, however,
24 contemplate preventing a different kind of dysfunction where
25 a lengthy stay has been in effect and no date has been 43a 8
1 designated.
2 We also think that our reading of the statute is
3 confirmed by the context here, your Honor, the background
4 rule and the general practice that a stay suspends the
5 Government's ability to designate a new date. Now, the
6 Government recognized that general practice in 1993 when it
7 promulgated these rules. It said that 26.3 would, "Obviate
8 the practice which was common in state cases of seeking a
9 new execution date from the sentencing court each time a
10 higher court lifts a stay of execution that caused an
11 earlier execution date to pass."
12 Now, the Government can't point to a single
13 judicial decision, not a treatise or any other authority,
14 not even internal guidance, which suggests that it has
15 ever -- that a court or anything has properly -- has said
16 that the Government may redesignate a date during the
17 pendency of a stay. Rather, the only authority we've
18 located says that the Government can't. And the only
19 evidence of practice the Government can point to is from
20 this year, in the last six months, in the Bourgeois and
21 Mitchell cases which are factually distinct in the context
22 that there had already been a judicial order which vacated a
23 stay but a mandate hadn't passed.
24 But more importantly, no judicial authority in
25 either of those contexts blessed the Government's action, it 44a 9
1 simply went totally unchallenged. In the Bourgeois case,
2 the plaintiffs simply filed a letter informing the court of
3 a newly scheduled date. And in Mitchell, the defendant just
4 vaguely referenced the, quote, Code of Federal Regulations
5 with no specific arguments about 26.3 or the FDPA or any
6 other authority.
7 We think that's why our reading of the regulation
8 26.3 is clear. And because it's clear, there's no basis for
9 deference. Nevertheless, the agency asks for deference
10 based on three litigation filings from the last six months.
11 Again, those filings come in the Mitchell and Bourgeois
12 cases, and not one of those filings even quotes 26.3's text,
13 let alone analyzes it. All of the Government's prior
14 interpretations placed in the record contemplate only that
15 the Government will designate upon the lifting of the stay.
16 That was true of the 1993 rule that we quoted in our papers,
17 your Honor. It said that 26.3 would, quote, require the
18 director to appoint a new execution date promptly upon the
19 lifting of the stay.
20 The 2004, 2019 and 2020 protocols also say that if
21 the date designated passes by reason of a stay of execution,
22 then a new date will be promptly designated by the director
23 when the stay is lifted. Not one of those authorities
24 suggests that the director may do so before.
25 THE COURT: What about the amendments to the 45a 10
1 Justice Manual which was filed this morning and was
2 apparently made just a few days ago?
3 MR. SCHIERENBECK: Well, your Honor, in the
4 limited time we've had to review that filing, it may support
5 the Government's argument. But of course it's not in the
6 administrative record, and we know from the date it was
7 created that it was not guidance upon which the director
8 could have relied in making his decision. So it's classic
9 post hoc rationalization and it's entitled to zero weight.
10 You cannot create an administrative record after the agency
11 decision, that's sort of basic principles here.
12 It is also somewhat troubling that the Government
13 is I think inventing post hoc rationales during the pendency
14 of this case. If this section was completed on
15 December 18th and then only brought to the attention of the
16 Court five days later, it was only brought to the attention
17 of all the parties and the Court after briefing on both
18 motions and just before our scheduled hearing about an hour
19 and a half ago. I think it's also telling, your Honor, that
20 the Government feels the need to invent post hoc rationales.
21 And even on its face, the Justice Manual is
22 expressly not a binding document. The Justice Manual is
23 internal DOJ guidance. It says on its face, quote, it's not
24 intended to and does not -- and may not be relied upon to
25 create any rights, substantive or procedural. It's not 46a 11
1 enforceable at law nor are any limitations hereby placed on
2 otherwise lawful litigation prerogatives of the DOJ.
3 So this is a post hoc rationale, a guidance
4 document that is on its face nonbinding.
5 THE COURT: You may not have had time to consider
6 this issue, but do you know whether any court has ever
7 accorded deference to the Justice Manual?
8 MR. SCHIERENBECK: Your Honor, I am not aware,
9 because we haven't looked into it --
10 THE COURT: Fair enough.
11 MR. SCHIERENBECK: -- due to the timing here. But
12 of course we'd be happy to brief the effect of this letter
13 on the case.
14 THE COURT: I can look at that as well, but if you
15 have anything on that, that may be worth providing to the
16 Court promptly.
17 MR. SCHIERENBECK: Okay, we'll do that. Now, I
18 also want to note that the Government has I suppose invoked
19 its substantive expertise in executions as a grounds for
20 Auer deference here. But that substantive expertise is
21 inapposite for the legal interpretive question before your
22 Honor. As Justice Kagan noted in Kaiser, sometimes legal
23 questions do affect substantive expertise of an agency, but
24 sometimes they're in a judge's bailiwick. And here we're
25 talking about a provision that relates to timing and relates 47a 12
1 to the effect of a judicial order. And that I think is in
2 the judge's bailiwick, not within the province of the
3 expertise of the director of the BOP.
4 So that is why --
5 THE COURT: Can I ask you a question just while
6 you touched on the topic of interpreting a judicial order.
7 One of the things that has puzzled be a little bit here is I
8 asked that the district court's judgment be provided to the
9 Court -- the judgment of conviction in this case. I just
10 want to pull it up on the docket here. At docket 32, it was
11 provided to me. I'm a little mystified by that order and
12 whether there's been some substantive order following that
13 order. Because that order says that, "The time, place and
14 manner of execution are to be determined by the Attorney
15 General, provided that the time shall be no sooner than 60
16 days nor later than 90 days after the date of this
17 judgment." And then it says, "If an appeal is taken from
18 the conviction and sentence, execution of the judgment shall
19 be stayed pending order of this Court upon receipt of the
20 mandate from the Court of Appeals."
21 I assume that the mandate from the Court of
22 Appeals came down long ago, and certainly well more than 90
23 days has passed since that happened. And so just a literal
24 reading of the judgment in this case leaves me scratching my
25 head, because it sounds like the attorney general is not 48a 13
1 allowed to set a date more than 90 days after the date the
2 judgment became final upon issuance of the mandate from the
3 Court of Appeals.
4 MR. SCHIERENBECK: That's a good point, your
5 Honor. I'd be curious what the Government would make of
6 that. We've taken so far the question to be that once a
7 judgment like that is rendered, there's an order under the
8 26.2 provision of the regulations. And that order specifies
9 that the director may set a date. And then that date
10 setting authority is governed by 26.3 of the regulations,
11 and so we've focused on 26.3. But of course, the 26.3
12 powers are subject to any court order otherwise.
13 So to the extent that the judgment does not
14 provide for the director to have set a date after the 90
15 days, then that could be a limitation on the director's
16 authority altogether here.
17 THE COURT: I was just wondering -- when I read
18 that, I was wondering whether someone had to go back to the
19 district court in Missouri to either clarify that or to get
20 an order or something from them. But it may be -- let's see
21 what the Justice Department has to say about this. I was
22 just scratching my head about that. My apologies, I
23 interrupted your line of argument.
24 MR. SCHIERENBECK: No, not at all. So based on
25 that reading of 26.3, your Honor, the obvious remedy here is 49a 14
1 vacatur. I can turn to the FDPA after this, but we're
2 seeking vacatur. As such, we need only show prejudice. I
3 think the Government's opposition understands that our case
4 for prejudice is a slam dunk, because it conspicuously
5 misconstrues the relief we're seeking as an injunction
6 rather than vacatur, because they wish to impose a higher
7 standard on Ms. Montgomery.
8 THE COURT: Well, let me ask you about that. I
9 just want to make sure I understand what relief you are
10 seeking here, because the final sentence -- or the
11 conclusion of the motion for partial summary judgment does
12 say in it that the request is that the Court vacate
13 Mrs. Montgomery's January 12th, 2021 execution date, period.
14 The proposed order, however, requests vacatur and requests
15 that I enter an injunction, I think, directing that the
16 director of the Bureau of Prisons not set a new execution
17 date before January 1st, 2021. But then in your reply
18 brief, you say pretty clearly that the only relief that
19 we're seeking here is vacatur. So I want to make -- I guess
20 I want to be clear about what relief you are seeking.
21 Are you seeking any type of injunctive relief or
22 are you seeking purely vacatur here?
23 MR. SCHIERENBECK: Let me clarify, your Honor.
24 The objection we have is to the designation of the date.
25 And vacatur of that designation would be sufficient to give 50a 15
1 Ms. Montgomery the relief she's seeking. If for some reason
2 it wasn't sufficient because of some way in which your Honor
3 interpreted the Government's authority, then potentially an
4 injunction could be appropriate. But I think that the
5 straight forward way of handling this case is the ordinary
6 APA method, which is to say the Government didn't act in
7 accordance with law and so their decision should be set
8 aside and no further relief would be necessary.
9 And I think the Government is focusing on that
10 injunctive requirement because they want the irreparable
11 harm standard rather than prejudice. Because, of course,
12 prejudice is not an onerous requirement, it's a much lesser
13 showing than irreparable harm. And the prejudice here is
14 obvious. It's measured in days of life. It's measured in
15 less time for consideration of Ms. Montgomery's clemency
16 petition, for a petition that may only be complete on
17 December 1st -- December 31st. That timing is critical.
18 In Woodard, every member of the court agreed that
19 a death sentenced prisoner has some continued life interest.
20 Even the Chief Justice's opinion said that a death sentenced
21 prisoner had a residual interest in clemency. Justice
22 O'Connor said a continuing interest in life. Judge Wilkins
23 in the statement respecting the most recent round of
24 litigation in the execution protocols before the D.C.
25 Circuit said that denying time for consideration of a 51a 16
1 clemency petition would be irreparable harm. So it's a
2 fortiori prejudice under the APA. Also Ms. Montgomery will
3 suffer less time to seek legal relief in general, less time
4 to spiritually and materially prepare for her death. Under
5 the APA's flexible and minimal prejudice requirement, this
6 easily satisfies and vacatur is the ordinary relief.
7 So on that basis alone, your Honor, on 26.3 on the
8 prejudice, you can vacate the Government's decision. But we
9 would urge you also to reach the FDPA issue in this case,
10 one, because it would facilitate likely appellate review.
11 And two, because it would obviate the potential for seriatim
12 litigation before your Honor based on a very similar
13 challenge were the Government to redesignate the date in
14 accordance with the 26.3 requirements but not the FDPA
15 requirements.
16 THE COURT: If I conclude that you're right on the
17 regulation and that the order setting the date of execution
18 has to be set aside or vacated, at that point in time, does
19 Mrs. Montgomery even really have standing to challenge the
20 FDPA or to make -- to raise the FDPA argument? Because at
21 that point in time, it's contingent on the prospect that the
22 director of the Bureau of Prisons will then reset a new
23 execution date, which in your view would not be compliant
24 with Missouri law. But we don't know what would happen
25 until he acts. And in fact, there's not really -- there 52a 17
1 wouldn't even be final agency action with respect to that
2 until they act. There's really not anything to review until
3 that decision is made.
4 MR. SCHIERENBECK: I think, your Honor, if you
5 were to vacate the designation on the basis of 26.3 alone,
6 and then before there was a designated date -- for example,
7 if we were to file new papers before your Honor requesting
8 some kind of declaratory relief with respect to the FDPA
9 part of this puzzle, then there might be a standing issue.
10 But of course here we have fully briefed two problems with
11 the agency's action. So we would ask that you reach both
12 issues, even though we win on either and the decision should
13 be set aside, in order to facilitate appellate review and to
14 avoid the possibility of seriatim litigation before your
15 Honor for reasons of judicial economy.
16 Now on that FDPA point, your Honor is going to
17 look of course to Judge Rao's controlling opinion in the
18 execution protocols case. Judge Rao explained that the FDPA
19 incorporates all procedures at, quote, whatever level of
20 generality state law might be framed. She even noted that
21 those state procedures might include, quote, granular
22 procedures at 139. And she construed the term
23 implementation to include the date, time and place.
24 Now, in construing --
25 THE COURT: Can I ask you a question about Judge 53a 18
1 Rao's opinion?
2 MR. SCHIERENBECK: Yes.
3 THE COURT: In your view, is her opinion -- and in
4 particular, the portion of her opinion that construes the
5 word implementation to include the providing of notice, is
6 that literally a controlling opinion in the sense that it is
7 binding on me under Marks or some similar line of analysis?
8 I'm curious as to whether it's just really informative to me
9 or whether that analysis from her opinion is actually
10 binding in that as a district court judge I'm duty bound to
11 follow that.
12 If that's your theory, I'd like to understand why
13 that's the case.
14 MR. SCHIERENBECK: I think, your Honor, if you
15 need to look to the narrowest grounds of agreement for all
16 of the Justices, then it's that overlap between Judge Rao's
17 opinion and Judge Tatel's opinion.
18 THE COURT: But the agreement with respect to the
19 judgment in some way? I mean, here it's not like -- it
20 doesn't form the basis for the judgment in the case which
21 actually went the other way. And as far as I can tell, I'm
22 not sure whether it's fair to call this dicta or not, but
23 the notice question wasn't before the court. I understand
24 that the interpretation of the proper meaning of the statute
25 was before the court. 54a 19
1 But I'm really struggling with whether -- I don't
2 know if you've gone back to look at Marks and the D.C.
3 Circuit's precedent applying Marks, but I am struggling with
4 whether this is actually binding.
5 MR. SCHIERENBECK: That's fair. And Marks is a
6 vexing question, your Honor, every time I think about it. I
7 haven't looked at the most recent D.C. Circuit precedent
8 interpreting Marks. But you're right that that case didn't
9 address -- it didn't concern a date, time and notice
10 provision. At the very least, Judge Rao's opinion
11 explicated on the meaning of implementation in a determining
12 manner. She construed implementation to include date, time
13 and place.
14 Judge Tatel did not elaborate on Judge Rao's
15 reasoning in that respect. To the extent he did at all, it
16 was when at the very end of his opinion he talked about the
17 FDPA incorporating quote, unquote implementation procedures.
18 And if we want to know what Judge Tatel thought that meant,
19 you can of course look to his signing on to Judge Wilkins'
20 statement in the most recent round of the D.C. Circuit where
21 he agreed that implementation procedures includes procedures
22 that prescribe the date and time.
23 Now, we think that flows from the dictionary
24 definitions of implementation, which it means the act of
25 putting a plan into action. Judge Wilkins noted that notice 55a 20
1 and time are a critical part of carrying out a death
2 sentence and so easily fall within implementation. I'll
3 also note the Government's own construction of
4 implementation in 1993 recognized as much. Because the very
5 regs we're talking about, the notice and timing provisions
6 in the federal regulations, those regs were entitled
7 implementation of death sentences in federal cases. So now
8 the Government has a different understanding of that word.
9 Now, even if you were to construe the FDPA as only
10 requiring those procedures that quote, unquote effectuate
11 death -- and that's incorrect, and I think that's been based
12 on a misconstruction of Judge Tatel's opinion which I'd be
13 happy to get into. Judge Wilkins also explained that it's
14 clear that prescribing the date and time of execution is a
15 necessary element of effectuating death.
16 The other circuit cases that the Government has
17 cited are plainly inapposite. Vialva is the only one that
18 concerned a notice provision, and it is frankly, your Honor,
19 very short on reasoning. It's death effectuation holding or
20 reasoning is ipse dixit. The rest of those circuit opinions
21 are inapposite for a variety of reasons that I'd be happy to
22 get into if you'd like.
23 THE COURT: Can I ask you about the statutory
24 text? Because I have been really puzzling over the
25 statutory text. As Judge Katsas points out in his 56a 21
1 concurring opinion respecting the denial of the stay in the
2 protocol litigation, the duty of the U.S. Marshal is
3 triggered first when the sentence is to be implemented. And
4 I think he makes the point in saying -- and he reads that to
5 say in other words when a date has been sent, and therefore
6 the date has already been set before the Marshal's duty to
7 supervise the implementation of the sentence comes into
8 play.
9 But in any event, what the provision deals with is
10 an obligation of the Marshal who has custody over the death
11 sentenced individual to supervise implementation of the
12 sentence in the manner prescribed by state law. And it's a
13 little odd to think about the Marshal, for example, as being
14 the one who sets the execution date. That's particularly
15 odd in circumstances in which one has to go to a court to
16 get the court to set the execution date.
17 So I'm curious as to sort of how you understand or
18 conceive of this provision, how you sort of conceive of the
19 role of the Marshal. In your view, is the Marshal -- as
20 soon as the direct appeals are complete, at that point in
21 time is the Marshal in charge of everything that happens
22 after that? When does the Marshal step in? What is the
23 scope of the Marshal's role? Am I right in thinking that
24 all that's at issue here is what the Marshal needs to do and
25 not what the attorney general or the director of the Bureau 57a 22
1 of Prisons or others do?
2 MR. SCHIERENBECK: Yes, so there's a few pieces
3 there. So as to Judge Katsas' opinion, his observation was
4 that the statute speaks to transference of the Marshal who
5 will supervise implementation. And he deduced that that
6 means only those parts of procedures that follows
7 transference. I think that that makes sense with respect to
8 Judge Katsas' view that the statute only includes the top
9 line method, but not with the view that's been adopted by --
10 in the wake of that view being rejected about the
11 effectuation of death, because it's dramatically
12 underinclusive with respect to the effectuation of death.
13 There are state laws that, for instance, clearly
14 talk about the components of a process that effectuate death
15 but would happen well before transference to a Marshal. For
16 example, the compounding of the chemicals that will be used
17 in a lethal injection. That process of creating the drugs
18 that will be used to perform the sentence itself, that's not
19 happening after transference to the Marshal.
20 Now, capital counsel could maybe inform better
21 about sort of the factual background of sort of when exactly
22 custody of the United States Marshal occurs. But the
23 statute of course has to be read against the context that
24 any delegation to an officer under the purview of the
25 attorney general is in some ways a delegation to the 58a 23
1 attorney general itself. I think that was a predicate part
2 of the reasoning of the execution protocols panel. So that
3 might help to explain what's going on here. The Marshal is
4 supervising implementation of course, but that's simply a
5 part of the Department of Justice's responsibilities.
6 As to how to think about state provisions that
7 sort of reference state officials or state institutions, you
8 know, that's always going to be a problem under the FDPA's
9 scheme because state laws are written with state executions
10 in mind. And so it's little surprise that they will talk
11 about a state court or a state official. But if that were
12 an insurmountable problem to those state laws being
13 incorporated into the FDPA, then the scheme of the FDPA --
14 which I think is the decision of the execution protocols
15 panel one, would be totally eviscerated.
16 Also, the Government here is pointing to some of
17 the practical problems that might arise if the federal
18 government is made to follow state rules. But of course,
19 those practical problems were rejected by the D.C. Circuit
20 in Judge Rao's opinion. She said that those kinds of policy
21 and practical concerns were really for Congress to work out.
22 THE COURT: Can I ask you -- I'm sorry to
23 interrupt you, Mr. Schierenbeck. It may be that one of the
24 law professors who's on the telephone has studied this and
25 knows the answer to this question. But I am curious about 59a 24
1 historically what role the Marshal played in the process.
2 It's my understanding that most death row inmates are housed
3 at Terre Haute, and that Mrs. Montgomery isn't there because
4 she's a woman and that the facility is principally for male
5 offenders.
6 But I am curious as to just sort of the -- both
7 how this currently works, and how it worked historically.
8 So, for example, your argument would be stronger if either
9 as a matter of -- let's start with current. Your argument
10 would be stronger if currently what happens is as soon as
11 the direct appeals are complete, the individual is
12 transferred to Terra Haute. And it may be that the Bureau
13 of Prisons has day-to-day management authority over Terra
14 Haute, but that in some sense that individual is then -- as
15 soon as the direct review process is complete, is in some
16 sense in the custody of the U.S. Marshal.
17 And in fact, there are lots of times where people
18 are I think technically in the custody of the U.S. Marshal
19 but they're at a prison or a jail that is not run by the
20 Marshals Service. For example, here in D.C., people who are
21 awaiting trial I think probably -- or people who have been
22 subpoenaed from other jurisdictions are probably technically
23 in the custody of the U.S. Marshal even though they're held
24 at the D.C. jail under contract I would assume with the
25 Marshals Service. So sort of understanding what happens 60a 25
1 once someone has a final judgment of death after direct
2 appeals, what happens, and whether that person in some sense
3 is at least arguably in the custody of the Marshals Service,
4 that would be helpful to know.
5 And then related to that, it would be helpful to
6 know is what happened historically either in the '50s or
7 '60s where there was a federal death penalty that was in
8 operation or even much earlier. I think during the earliest
9 days of the republic, it was the Marshal -- I mean, there
10 wasn't a Justice Department back in the early days, and the
11 U.S. Marshals existed before there was a Justice Department.
12 You know, when you watch an old western, it was the Marshals
13 that were enforcing federal law, and it was the Marshals who
14 were overseeing the executions and setting up the gallows
15 and doing all of that.
16 So I don't know if there's anybody on the line now
17 who knows something about the history of the role of the
18 Marshals Service in executions or whether that's something
19 that could be very quickly provided to me. But with respect
20 to understanding how 3596 works, it's hard to do that
21 without understanding what the current role and historical
22 role has been of the Marshals Service.
23 MR. SCHIERENBECK: I understand your question,
24 your Honor. And from chatting with my co-counsel, it does
25 not appear that anyone on the line can speak with the kind 61a 26
1 of authority we would like to on the record here today
2 before you. But we can look into that question, and we
3 would be happy to provide a letter on that subject.
4 THE COURT: When do you think you can do that by?
5 MR. SCHIERENBECK: Perhaps by tomorrow, your
6 Honor. We can also look into it today, we'd just need time
7 to fire up Westlaw, your Honor.
8 THE COURT: I mean, this may be more than a
9 Westlaw question I'm afraid.
10 MR. SCHIERENBECK: It may be.
11 THE COURT: It may be you need to be looking at
12 historical materials, and also looking if there are any
13 histories of the death penalty or histories of the Marshals
14 Service that talks about how that worked so we can try and
15 understand what Congress was thinking in -- was it 1994 when
16 3596 was adopted?
17 MR. SCHIERENBECK: Yes, your Honor.
18 THE COURT: Well, that is something that is on my
19 mind. If anyone has any thoughts on it, it would be helpful
20 to me. If there's anything you can provide me on that by
21 the end of the day today, that would be very helpful.
22 MR. SCHIERENBECK: Okay. We'll do our best, your
23 Honor.
24 THE COURT: Okay, thank you.
25 MR. SCHIERENBECK: And so I think I was saying 62a 27
1 that the practical problems were rejected by the D.C.
2 Circuit, the same practical problems that the Government is
3 raising now. And so that's why I think it's rather clear
4 that Missouri's timing and its number of execution
5 requirements, which are in 30.30(f) and have the binding
6 force and effect of law under the Missouri constitution, are
7 incorporated into the FDPA.
8 So, your Honor, I could stop there. I think both
9 the 26.3 and the FDPA arguments are grounds to vacate the
10 agency's decision. Ms. Montgomery has clearly demonstrated
11 prejudice.
12 THE COURT: Give me just a moment here, I want to
13 look back at my notes.
14 If you're right about 3596 incorporating
15 Missouri's timing requirements, what does that do with
16 respect to your 26.3 argument? Is 26.3 invalid because
17 Congress has provided that Missouri law should set the
18 date -- or provides the notice period? What's your view on
19 how 3596 and 26.3 interact?
20 MR. SCHIERENBECK: I think, your Honor, you can
21 read 26.3 and the FDPA together, and in this instance
22 there's no conflict. Missouri simply provides for a longer
23 notice period than the federal regulations. But if you
24 satisfied the Missouri notice period, you'd be satisfying at
25 least the 20-day period in 26.4. And if there were a 63a 28
1 situation where there were a conflict, then I do think there
2 would be a problem. Because the FDPA, having incorporated a
3 state law, would have to take supremacy over the regulation.
4 And to the extent those kinds of things would happen in some
5 cases, that's simply the consequence of I think these
6 regulations having been promulgated prior to the FDPA.
7 THE COURT: Okay. Well, I'll give you a chance to
8 respond after I hear from Mr. Simpson. Thank you.
9 MR. SCHIERENBECK: Thank you.
10 THE COURT: Mr. Simpson.
11 MR. SIMPSON: Good morning, your Honor. Alan
12 Simpson for defendants William P. Barr and others. The
13 scheduling of plaintiff's execution complies with every
14 provision of applicable law. On November 19th, this Court
15 enjoined defendants from executing Lisa Montgomery until
16 December 31st. And four days later, the defendants
17 rescheduled Ms. Montgomery's execution for a date
18 permissible under the plain terms of this Court's order.
19 The rescheduling complies with each and every federal
20 regulation, statute and order of this Court.
21 First, the scheduling complies with the text of
22 the federal regulation plaintiff cites, which is section
23 26.3. That regulation, as was detailed at length in the
24 brief, requires the director of the Bureau of Prisons to
25 designate a new execution date if a date needs to be set 64a 29
1 upon the expiration of a stay. Nothing in the regulation
2 contains an express prohibition on the director from
3 scheduling an execution date more promptly whenever
4 possible. The provision is unambiguous, it is mandatory and
5 not prohibitory.
6 And even if the regulation did contain a
7 prohibition, as Ms. Montgomery's counsel posits, the
8 prohibition here was never triggered. I haven't heard
9 anything or seen anything in a brief that explains how there
10 could be more than one V date designated for execution.
11 Here, the relevant condition in the prohibition that
12 Ms. Montgomery has identified simply never occurred, because
13 a new date was designated before the old date passed.
14 There's only one date designated for execution at any
15 particular time. And since rescheduling, that date has been
16 January 12th, 2021.
17 Plaintiff's construction is simply not reasonable.
18 I believe Mr. Schierenbeck several times used the
19 construction only if. And I'd note that that construction
20 does not appear in the regulation. They attempt to rewrite
21 it to prohibit the director from setting a new date until a
22 stay of execution or injunction is lifted. But the shall
23 language in the regulation does not indicate that, it does
24 not mean that, and it cannot be reasonably interpreted to
25 say it. The purpose -- 65a 30
1 THE COURT: I'm sorry, you have a regulation that
2 says -- or a statute that says that every citizen of the
3 United States shall promptly register for the draft when
4 they turn 18.
5 Would that mean that people could go in when
6 they're 16 and 17 and register for the draft?
7 MR. SIMPSON: Your Honor, you're referring to the
8 canon of expressio unius. And I think that that -- it's an
9 unexceptional canon, all right. And I probably butchered
10 the Latin which is embarrassing because it is so
11 unexceptional. However, here there is no limitation that is
12 a predicate for application of the canon. What the canon
13 states is that whenever there is a limitation in a
14 particular statute or a regulation, it's to be presumed that
15 that is in fact the only situation. But here there is no
16 limit, it's simply a mandatory instruction.
17 THE COURT: Why is the language in there then?
18 Why is the language "when the stay is lifted" in the
19 provision? Why not just simply say if the date passes by
20 reason of a stay of execution or if the date -- if the
21 execution cannot be implemented for some reason, a new date
22 shall be set as promptly as possible?
23 MR. SIMPSON: Your Honor, I think that reading the
24 entire section of 26.3(a), it contemplates both an initial
25 date being set, and then it also contemplates -- or it 66a 31
1 directs, it mandates action in that circumstance. And I'm
2 not aware of any situation that's beyond the -- I'm not
3 aware of any situation in which there is a stay, there is an
4 injunction or there would otherwise be any issue in applying
5 the plain language.
6 As to why it's phrased in the language of a stay
7 of execution, I think that practical considerations over the
8 years have shown that open ended, long term stays can be
9 difficult to manage. It's difficult for the defendants to
10 understand when those stays might be lifted. And quite
11 simply, sometimes injunctions or -- injunctions may
12 expressly prohibit the scheduling of executions. So I think
13 it's logical for there to be a direction to the director.
14 This regulation governs his conduct, it doesn't
15 necessarily -- and it need not necessarily, impart any
16 protection to a defendant or to a criminal -- to a prisoner
17 under a sentence of death. It simply directs that in this
18 instance, as soon as the director is able to, then he shall
19 designate a new date.
20 THE COURT: You would be right if that's what it
21 said, but that's just not what it said. It would have been
22 pretty simple to write what you said. I mean, that is a
23 pretty simple sentence to write, but that's not what the
24 drafters of this regulation wrote.
25 MR. SIMPSON: I understand, your Honor. I don't 67a 32
1 believe that the stay language itself is in fact imposing
2 any limit. I don't understand -- I don't think that it's
3 logical to view that whenever the language is simply the
4 shall language. And by the same token, it would be very
5 easy for the drafters to have said if a stay is granted,
6 only if the stay is lifted shall the director set a new
7 date. But that's not the language that appears either.
8 And in this instance, I think that reading the
9 entire provision in context, it simply denotes that there is
10 a requirement or an instruction for prompt action.
11 THE COURT: So let me ask you about the
12 interaction with 26.3 and 26.4. Because 26.4 provides that
13 the warden shall notify the prisoner of the date at least 20
14 days in advance except when there's been a postponement of
15 fewer than 20 days. So presumably what this means is that
16 both when the initial date is set and if there is a need to
17 set a subsequent date, that in each case the warden has to
18 give the prisoner 20 days notice to prepare themselves for
19 whatever purposes, litigation, whatever it might be.
20 There's an exception to that rule, though, where it's just a
21 short postponement. So if there's a stay that's in effect
22 just for a couple of days, there's not a need to -- or
23 things get put off for a couple of days, there's not a need
24 to do it again.
25 But it seems to me that your construction of 26.3 68a 33
1 would at least allow the director of the Bureau of Prisons
2 to undercut that rule by simply setting new dates seriatim
3 as long as each new date is set the day before the date was
4 to come. And so if the director of the Bureau of Prisons
5 didn't want to provide somebody with 20 days notice, then --
6 and there was a stay in effect, even perhaps an indefinite
7 stay, then just every 10 days the director of the Bureau of
8 Prisons could say the day before the execution was supposed
9 to take place, okay, 10 more days, okay, 10 more days, okay,
10 10 more days, and that could go on forever.
11 Is that fair? And if so, why isn't that a problem
12 with your reading of the regulation?
13 MR. SIMPSON: Your Honor, I want to think about it
14 for just one second.
15 THE COURT: Yes, please.
16 MR. SIMPSON: I believe that your Honor is correct
17 that that is a necessary implication. However, I don't
18 think that there's any issue with that. As your Honor
19 mentioned previously, oftentimes whenever there's a stay in
20 effect, there would be -- there's lots of last minute
21 litigation attempting to get the stay lifted. And there's
22 always going to be lots of litigation or a lack of comfort
23 whenever the sole reason a person is not being executed
24 imminently is in light of a court stay, unless of course
25 it's the Supreme Court that has stayed such execution. So I 69a 34
1 don't think that it's a unique feature or a unique
2 disadvantage to defendants' construction.
3 I'd note that in fact sometimes delays are very
4 short. Sometimes delays, as has occurred I believe earlier
5 this year -- and I apologize if it was in -- I believe it
6 was earlier this year, that there was a stay of only a few
7 hours. And obviously the notification provision was not --
8 under 26.4 was not triggered because it was a postponement
9 of fewer than 20 days. I don't think that there are
10 particular reliance concerns that are uniquely affected
11 by --
12 THE COURT: I'm sorry, why wouldn't there be a
13 reliance concern that if you got a stay that was longer than
14 20 days, you knew that you would at least get the 20 days
15 notice after the stay expired? Why isn't there some
16 reliance interest in that? People may be planning what
17 their litigation strategy is, their clemency strategy is,
18 planning on when relatives are going to come say goodbye to
19 them or whatever else it might be.
20 MR. SIMPSON: Because, your Honor, there's no
21 guarantee that that stay itself would stay in effect in a
22 general sense; that the underlying action itself, if it is a
23 stay, it is subject to -- a stay or an injunction, it is
24 subject to reconsideration, it's subject to any number of
25 issues. And these regulations are governing defendants' 70a 35
1 conduct and simply how they go about their business in terms
2 of trying to timely and promptly execute and implement the
3 capital sentences.
4 THE COURT: I think in general -- I'm sorry,
5 Mr. Simpson. I think in general that may be a little bit of
6 a problem with your argument here. Because you construe the
7 regulations in general as really being purely about internal
8 management in a way that doesn't confer any rights or
9 interests on capital inmates or others; and that it's really
10 just about the efficient means by which the Department of
11 Justice can go about doing what it's doing. But there
12 clearly are some portions of the rule that are designed to
13 provide substantive rights to capital inmates. You know, no
14 sooner than 60 days from the entry of the judgment of death,
15 that's not presumably just for purposes of benefitting the
16 Justice Department or for efficient administration of the
17 death penalty. There's the 20-day notice rule.
18 So the rules are not just about -- I mean, they
19 may be in part about facilitating how the Department of
20 Justice goes about doing its business, but they're not
21 solely about that.
22 MR. SIMPSON: Correct, your Honor, and I did not
23 intend to paint all of the rules with such a broad brush.
24 I'd further note that in your Honor's hypothetical, where
25 the stay is a date certain, there would naturally be -- 71a 36
1 where the injunction terminates on a date certain, there
2 would naturally be an end to the sort of serial renotices
3 that your Honor had identified. And in practice, although
4 defendants have renoticed for a period that could have
5 possibly been subject to a stay, they have never executed
6 anyone during a stay, and have never scheduled anyone for
7 execution during a time in which they believed that a stay
8 was likely to be in effect. And I think that that covers
9 the rule of the Mitchell and Bourgeois cases.
10 THE COURT: Can I ask you, do you agree with
11 plaintiff's counsel that the stated purpose of the
12 regulations was to provide for an orderly process for
13 implementing executions or death sentences?
14 MR. SIMPSON: Your Honor, I believe that the -- so
15 the Federal Register notice that was identified contains
16 many different sentences and statements, and I believe that
17 that is certainly a purpose.
18 THE COURT: Isn't it fair to say that that is the
19 purpose? I mean, I'd have to go back and look at it again,
20 but I thought that it said that that was the purpose and not
21 just sort of one of many purposes.
22 MR. SIMPSON: Your Honor may be correct, I can't
23 say for sure. I know that the Federal Register, for
24 example, goes on to say that the director -- you know, the
25 director's unique knowledge in the institutional resources 72a 37
1 and circumstances of setting execution dates is one reason
2 why the director was given the task of setting execution
3 dates. And that is directly applicable I believe as well to
4 defendants' deference argument, that the regulations
5 recognize a substantive expertise of the director of the
6 Bureau of Prisons in scheduling executions and in
7 understanding when it may be possible in light of logistics,
8 in light of the people who are on federal death row and so
9 on. So I --
10 THE COURT: Can I ask you another question? I'm
11 sorry.
12 MR. SIMPSON: Please.
13 THE COURT: What is your view with respect to the
14 language that I read from the judgment from the Western
15 District of Missouri?
16 MR. SIMPSON: Your Honor, defendants do not
17 believe that any stay is in effect. After the conclusion of
18 direct appeal, there was a 2255 proceeding. At the end of
19 that proceeding, we believe that the 2255 order denying the
20 certificate of appealability was an order as contemplated by
21 Judge Fenner's judgment. And I would just add, your Honor,
22 that this is not a novel or particularly unique issue in
23 judgments. Prior to this particular case, both Keith
24 Nelson, who was sentenced in the Western District of
25 Missouri, had a similar judgment as well as defendants 73a 38
1 Brandon Bernard and Mr. Vialva. And in each of those
2 instances, the parties understood that there was no stay in
3 effect. I have not heard any argument from Ms. Montgomery
4 or her counsel that --
5 THE COURT: I guess -- yeah, I'm not asking
6 whether there's a stay in effect, I'm just puzzled by what
7 the authority is of the Marshal or the Justice Department to
8 carry out an execution without going back to Judge Fenner to
9 seek modification of his order unless there's some other
10 order out there or else I'm not understanding something.
11 Because the order says that the time, place and manner of
12 the execution are to be determined by the attorney general,
13 fine. Provided that -- here's a limit, the attorney general
14 cannot, may not order the execution any sooner than 60 days.
15 Fine, not an issue here. Nor later than 90 days later after
16 the date of this judgment.
17 In other words, has the time run so it's too late
18 under Judge Fenner's order for the attorney general or the
19 director of the Bureau of Prisons to set an execution date?
20 I mean, I'm just not clear also that the department actually
21 has authority given his order to carry out an execution.
22 It's only tangentially related to what is before me, but it
23 is related in the sense that I'm being asked to consider --
24 I mean, one of the arguments that's presented to me is that
25 the director of the Bureau of Prisons didn't have any 74a 39
1 authority to set a new execution date while my stay was in
2 effect, to which I'm wondering is that even the first
3 question. Because Judge Fenner's authorization to allow the
4 attorney general to set an execution date expired 90 days
5 after the mandate issued from the Court of Appeals.
6 MR. SIMPSON: Thank you, your Honor. I know that
7 this issue has come up several times, and the 90-day
8 language is not a limit on the defendants' ability to
9 conduct an execution. We could submit additional paper on
10 that if your Honor would like. I'd note that we've filed
11 now two notices regarding the execution date in the
12 underlying criminal case in front of Judge Fenner. And to
13 the extent the parties have any concern over whether or not
14 there is a valid execution scheduled or that Judge Fenner's
15 judgment as stated permits execution, I think that that
16 would be the appropriate venue for that dispute. But I'm
17 sympathetic to your Honor's point as well. I'm sympathetic
18 to your Honor's point.
19 THE COURT: All I'm saying is I think this is
20 something that someone should look at. You're probably
21 right that this isn't in front of me. But I have to say, I
22 would not want to be the one who orders an execution to take
23 place if there was a doubt about whether it was actually
24 authorized by the court's order. So I think it's just
25 something that somebody better look at. 75a 40
1 MR. SIMPSON: I appreciate it, your Honor. I'm
2 aware of other issues in which capital defendants have
3 raised these arguments, and I believe that courts have
4 unanimously concluded the matters by entering an order
5 stating something to the effect that they didn't believe the
6 order was necessary, however they otherwise set an execution
7 date. Those are types of potential things that I think
8 could be done if the parties had any concerns. But as of
9 today, I'm not aware the defendants have any concerns
10 regarding the --
11 THE COURT: And the issue's not in front of me, so
12 I have flagged it and I'll leave it to you all to do
13 whatever you think is appropriate with that issue.
14 Let me ask you another thing about the judgment.
15 This relates to the questions that I was asking about the
16 meaning of 3596 and the role of the Marshal. I am noticing
17 that the judgment actually does remand the defendant to the
18 custody of the U.S. Marshal. It provides that execution of
19 the judgment shall be stayed pending a mandate from the
20 Court of Appeals. But I'm sort of wondering what your view
21 is as to whether either after Judge Fenner issued his order
22 or at least after the time in which the Court of Appeals
23 sustained the conviction and sentence and issued its
24 mandate, whether from that point forward -- at least in some
25 technical sense, Mrs. Montgomery was in the custody of the 76a 41
1 U.S. Marshal?
2 MR. SIMPSON: Thank you, your Honor. I believe
3 the answer is an emphatic no. She was only in the custody
4 of the U.S. Marshal for the period of time in which she was
5 being transferred to the Bureau of Prisons facility. In the
6 same way --
7 THE COURT: I'm sorry, but don't you -- I mean,
8 maybe she was -- I guess maybe was she standing in court --
9 I mean, she wasn't in court presumably when Judge Fenner
10 issued this order, although it may be this order is just
11 reflecting what he did when she was standing in court.
12 MR. SIMPSON: Yes, your Honor, he did in fact read
13 the judgment. I have reviewed enough of the transcript to
14 be able to state that, that the judgment was read aloud in
15 court.
16 THE COURT: I see, okay. Before I turn to 3596,
17 let me let you finish up with the regs and see if you have
18 anything else you wanted to add with respect to the
19 regulations.
20 MR. SIMPSON: Thank you, your Honor. I believe
21 that the statute is unambiguous, and I don't dispute any of
22 the canons that exist and that have been cited. However, we
23 don't believe that they apply here, and I think that we've
24 laid that out in great detail in the brief. The provision
25 is not superfluous, as I think that was my last point. It 77a 42
1 has this unique effect. There is no other provision which
2 requires the director of the Bureau of Prisons to promptly
3 act to designate a new date in the circumstances where a
4 capital inmate's sentence or even the scheduling of his or
5 her sentence may be delayed for years. And to avoid the
6 situation that your Honor may posit, I think it makes sense
7 where it otherwise cannot be practicably done to set that
8 general baseline rule.
9 In terms of the -- now, your Honor, I'd like to
10 turn to -- I think I'd like to finish up on deference. I
11 wanted to say a couple of things that I didn't say
12 previously. I apologize for the late hour of the Justice
13 Manual provision submission. It was not my intent to submit
14 it quite so soon. But as soon as I became aware of it, we
15 submitted it to your Honor out of an abundance of caution.
16 And given your Honor's prior statements in this case, we
17 don't believe that it's necessary to decide the case and we
18 don't make any arguments for deference based off of the
19 Justice Manual provision. However, because it relates to
20 the initial scheduling of executions, we thought that it
21 ought to be included consistent with your Honor's prior
22 order.
23 THE COURT: I appreciate that, thank you.
24 MR. SIMPSON: With that, your Honor, I think I've
25 concluded my argument on the regulation itself and I'd turn 78a 43
1 to the Federal Death Penalty Act.
2 THE COURT: Okay.
3 MR. SIMPSON: The selected provision of Missouri
4 Supreme Court Rule 30.30 relates to the practice, procedure
5 and pleading in state courts. It simply does not relate to
6 the implementation of Ms. Montgomery's sentence as that term
7 was used either in the April execution protocol cases or in
8 the most recent en banc concurrence. The fact that the
9 particular rule goes to the Missouri Supreme Court's
10 scheduling authority demonstrates that the rule does not
11 concern the implementation of the sentence by the Marshal or
12 the type of thing that happens after the state equivalent of
13 release of the person sentenced to death to the custody of
14 the United States Marshal. Those are the only types of
15 state law incorporated into federal law by the Federal Death
16 Penalty Act.
17 And incidentally --
18 THE COURT: That leads to the question that I was
19 just asking Mr. Schierenbeck about, what historically was
20 the role of the Marshal; historically when were people
21 released to the custody of the Marshal. Because there's a
22 sort of glaring gap in the statute here. And if you look at
23 the structure of the Federal Death Penalty Act, you start
24 off with the types of crimes where a sentence of death can
25 be imposed. And then you deal with mitigating and 79a 44
1 aggravating factors relating to the imposition of sentence
2 of death. And then how the death sentence actually is
3 imposed with a special hearing and the role of security in
4 that process. There's precautions to ensure against
5 discrimination.
6 Then you get to a sentence on the imposition of
7 the sentence of death. And then there's review of the
8 sentence of death and how that goes up to the Court of
9 Appeals and how that process takes place. And then the next
10 provision after that just jumps to implementation of the
11 sentence of death. The lead in sentence is, okay, after
12 you've done all that I've just discussed and the review
13 process is complete, then at that point in time -- or the
14 person is committed to the attorney general until the review
15 process is complete. And then the next thing after that is
16 when the sentence is to be implemented, the attorney general
17 shall transfer the person to the Marshal.
18 Under your view of the statute -- where as I
19 understand it the Marshal's role is pretty limited and only
20 really comes into play during the actual administration of
21 the drugs that may cause death or something along those
22 lines, but it's that very final step in the process. That
23 leaves a big gap in the statute, because the person is in
24 the custody of the attorney general until the direct review
25 is done and then it doesn't say what happens to the person 80a 45
1 at that point in time. It doesn't say anything about who
2 sets the execution date. It doesn't say anything about
3 where the person goes. If the person's only in the custody
4 of the attorney general until that's all done, what happens
5 after that's all done. Is the person then automatically --
6 is the expectation the person would then be transferred to
7 the Marshal immediately at that point in time.
8 So anything you can do to help me understand how
9 this historically was understood, what the history was, it
10 would be very helpful.
11 MR. SIMPSON: Thank you, your Honor. I don't have
12 the relevant backdrop as to what Congress would have been
13 thinking about in 1994. Whenever I hear the words United
14 States Marshal, I think about perhaps westerns or things
15 like that. And I think that the law had moved far beyond
16 that point in time in that in 1994, there was both the
17 understanding that the person would be at the Bureau of
18 Prisons facility as well as --
19 THE COURT: The Marshals Service doesn't have any
20 facilities. They either rent them from the federal
21 government or enter into a contract with the federal
22 government or with the states. But as far as I know, there
23 are no U.S. Marshals Service facilities, jails that the
24 Marshals Service runs.
25 MR. SIMPSON: So we've quickly exhausted my 81a 46
1 knowledge of the history, your Honor. We'd be happy to try
2 to get you something else by the end of today, to the extent
3 that we can. I'd note that there is a discussion of -- in
4 the Federal Register of very old history related to the
5 executive's authority to act, but it simply does not address
6 the point that your Honor is getting at.
7 THE COURT: That would be helpful. If you want to
8 file something on that, I would appreciate it.
9 MR. SIMPSON: I can say that currently, the
10 Marshal only takes custody in the execution facility in the
11 immediate lead up to death. There's no de facto control,
12 there's no agreement that the Bureau of Prisons shall hold a
13 person for the Marshal for some period of time before
14 execution or anything of that sort. And I think that that
15 makes sense for a couple of reasons.
16 First, as Judge Katsas' recent concurrence
17 recognized, and as Justice Alito's dissent recognized, the
18 Federal Death Penalty Act was designed to make the death
19 penalty more workable. It was designed to eliminate issues.
20 And so I don't think that it's necessary that it envisioned
21 some comprehensive scheme to go about that.
22 THE COURT: Just to back up for a second. I agree
23 with you and with Judge Katsas and with Justice Alito about
24 that understanding of the Federal Death Penalty Act, and
25 that it was designed to make the federal death penalty more 82a 47
1 workable. But as I understand it, what Congress sensibly
2 did and said to itself is look, there has been a huge amount
3 of litigation with respect to what types of procedures
4 relating to the death penalty are constitutional and which
5 are not. And if we were to specify a bunch of procedures
6 here, there would be another 10 years of litigation about
7 whether those procedures are permissible or not. And to
8 avoid all of that, what we're going to do is we're just
9 going to let the Justice Department rely on the procedures
10 from the states. Because those have already been tested in
11 the courts, and there's already been a great deal of
12 litigation about those. And they've been refined and tested
13 in ways by the courts that are much more likely to be upheld
14 and to be satisfactory. And so to streamline things, we're
15 just going to rely on the state procedures. But the
16 question is how far -- exactly what that encompasses within
17 the concept of the state procedures that were being adopted.
18 But it is a little odd that the statute -- either
19 Judge Rao is correct and these procedures encompass a great
20 deal or Congress left a huge lacuna and just didn't specify
21 anything about what sorts of procedures would apply up until
22 the actual administration of death.
23 MR. SIMPSON: Thank you, your Honor. For the
24 reasons Judge Katsas identified, we believe that Judge Rao's
25 broad understanding of the word implementation was -- is not 83a 48
1 binding precedent on this Court. We'd note that there's a
2 textual issue within the Federal Death Penalty Act with any
3 construction of implementation that is broad. It's that the
4 Marshal would be tasked with supervising these broad
5 implementation procedures, and that is very unlike anything
6 that ever has occurred with the federal death penalty as far
7 as I can say.
8 THE COURT: I mean, as far as you can say that's a
9 good point, but that's what my question is, right. I don't
10 know whether in the 19th century when the Marshals were
11 involved in administering death sentences or involved in
12 implementing death sentences, what their role was. I don't
13 know what their role was before there even was a Department
14 of Justice. And I don't really understand entirely what
15 their role historically has been, so that's why I think
16 that's an important question.
17 MR. SIMPSON: Thank you, your Honor. And we'll
18 supplement that. We believe that Congress didn't anticipate
19 any translation problems between state court rules or rules
20 governing other branches of government. Because what
21 Congress did was incorporate that narrow manner of
22 implementing death. And in every state, it is the executive
23 that actually implements death. So the fact that we're
24 arguing about scheduling or the provision relates to
25 scheduling and it may be done by a trial court, or as here 84a 49
1 an appellate court, reveals that it's not the type of
2 implementation that the Marshal would be tasked with
3 supervising. There are many --
4 THE COURT: How would the date get set according
5 to Congress? I mean, how were all the procedures that would
6 take place from the date of final review of the -- on direct
7 review until the individual is taken to the death chamber,
8 how were all those rules to be defined? What was going to
9 fill that lacuna?
10 MR. SIMPSON: Your Honor, what fills it is 28
11 C.F.R. 26.3. I think that that's the justification for the
12 regulation to prescribe that there ought be -- that the
13 director of the federal Bureau of Prisons ought do the date
14 setting. And there was debate amongst the capital bar
15 community as described in the Federal Register as to whether
16 or not trial courts should ordinarily have the discretion to
17 either -- to sit back and not do that or whether the
18 director of the Bureau of Prisons should have the
19 affirmative ability to do so. The regulation was adopted
20 that said that that was what the director would do. So I do
21 believe that the regulation is important to that extent.
22 THE COURT: Although the regulation was before the
23 statute was adopted. So unless you think that Congress just
24 intended -- understood the regulation was there and intended
25 to sort of codify the regulation or to defer the regulation, 85a 50
1 then I still have my same question. If your argument is
2 that they intended to defer to the regulation, I guess I'd
3 love to see some evidence of that.
4 MR. SIMPSON: Thank you, your Honor. I don't have
5 any direct evidence of that. I think that Congress is
6 generally aware both of court decisions as well as
7 regulations that are in effect. I think it's just on its
8 face some level of evidence that they didn't -- you know,
9 assuming that they did not overrule it, that they did not
10 overrule it. But moreover, I think that the regulation
11 makes sense because it codifies historical practice. It
12 recognizes that courts play a role in scheduling executions,
13 as they have for a very long time. But that history is well
14 set out in the regulation -- Federal Register itself.
15 THE COURT: Okay, I hear you.
16 MR. SIMPSON: I'm sorry, I'm trying to not repeat
17 myself. The last thing I would say, your Honor, on the
18 Federal Death Penalty Act is even if this rule did relate to
19 implementation of Ms. Montgomery's sentence, even if you
20 went -- if your Honor decided that it did, the rule is
21 simply not translatable to federal law given the structure
22 of 3596. There's a picking and choosing of the preferred
23 provisions within the rules, but such selective
24 incorporation is not reflective of any rule that Missouri
25 has actually adopted. 86a 51
1 I think it's notable that Judge Rao referred both
2 to the Missouri execution protocol as well as I believe --
3 or one of the judges at that time referred to the state
4 statute governing executions. But no person contemplated --
5 no judge contemplated under the reading that I can divine
6 from those -- from the separate opinions that court rules
7 would additionally be adopted, and that we would simply
8 substitute or translate the executive or the U.S. Marshal
9 for another subsidiary state branch.
10 THE COURT: But picking up on -- I mean, if you
11 look at Judge Rao's opinion and Judge Tatel's opinion, Judge
12 Tatel would be more expansive and not even require that the
13 rules at issue have independent legal force. Judge Rao
14 would draw the line at those rules that have legal force to
15 them. I take it you would agree that the 30.30 rule that
16 plaintiff relies upon here does have the force of law?
17 MR. SIMPSON: The rule as stated does, yes, your
18 Honor, because it is a rule of pleading, practice or
19 procedure in Missouri state court.
20 THE COURT: It's more than state court, right?
21 It's more than a court rule, because it actually deals with
22 setting of an execution date or when an execution can
23 actually occur, right?
24 MR. SIMPSON: Your Honor, the only legal effect
25 that the rule is entitled to under the Missouri constitution 87a 52
1 is to the extent it is a rule -- a court rule, a pleading,
2 practice or procedure. The Court does not have the
3 authority to adopt rules that could grant substantive rights
4 or the sort, it's only a court rule. And I think that that
5 is -- I think that that's telling. I think it's problematic
6 whenever we try to translate it to other contexts.
7 And moreover, I'd note that for the reasons we
8 stated at length in the brief, that the apparent -- that the
9 rule is actually designed to govern the Missouri Supreme
10 Court and how it interacts with another coequal branch of
11 Missouri state government. And that is simply a unique
12 consideration that we don't believe is applicable here. But
13 it's one of the furthest afield types of rules that the FDPA
14 might incorporate. It's sufficient to state that the FDPA
15 does not incorporate court rules of pleading, practice or
16 procedure.
17 THE COURT: Okay.
18 MR. SIMPSON: And finally, your Honor, I would
19 just indicate that we believe that we've complied with your
20 court's -- with your Honor's order. I don't have anything
21 further unless your Honor has any further questions for
22 myself.
23 Actually, I apologize, your Honor, I take it back.
24 The last thing I would say just briefly is that on the
25 question of vacatur and irreparable harm, we believe that to 88a 53
1 set aside or to -- does not indicate or does not mean that
2 defendants' plans can simply be quashed. We think that it's
3 telling that Ms. Montgomery has sought precisely the same
4 relief both under the label of a preliminary injunction as
5 well as under the label of vacatur. And we don't think that
6 anything in the APA permits her to do so absent a showing of
7 irreparable harm. Your Honor, thank you for your time.
8 THE COURT: With respect to that argument, what I
9 don't get about it is sitting on a court that hears a heck
10 of a lot more APA cases than we hear death penalty cases,
11 it's just really common that this issue comes up. I have on
12 multiple occasions respected requests from the United States
13 Government and from the Justice Department not to enter an
14 injunction in an APA case, and doing the narrower thing and
15 simply vacating the agency action at issue where the United
16 States has said, you know, Judge, you're overstepping if you
17 actually enter an injunction because you should assume that
18 we'll abide by either your declaratory judgment or by your
19 order setting aside the agency action and nothing more is
20 required. So in all these APA cases, I hear the Government
21 arguing exactly the opposite of what you're arguing today in
22 this case.
23 MR. SIMPSON: I don't dispute your Honor's
24 recollection.
25 THE COURT: The Government would not be very happy 89a 54
1 if I started entering injunctions in all of my APA cases.
2 MR. SIMPSON: I'm sure that that's correct, your
3 Honor. The Government doesn't believe that anything in the
4 APA displaces the requirement -- or there's no special
5 review statute here, right. And so the question is what is
6 the form of proceeding, and what does vacatur actually
7 practically mean here where the thing sought to be vacated
8 is an execution date. And in this instance, we believe that
9 doing so -- you know, for reasons identified for example in
10 the LeCroy case, that a stay of execution regardless of how
11 it's characterized has to meet this heightened standard --
12 or the ordinary standard for injunctive relief, which is
13 both a showing of irreparable harm as well as the balance of
14 the equities favors the injunction or vacatur.
15 And equitable considerations are similarly part of
16 the Court's calculation under vacatur. And we believe just
17 as a matter of law that the types of APA challenges raised
18 here cannot overcome the public's significant interest in
19 the timely enforcement of Ms. Montgomery's capital sentence.
20 THE COURT: With respect to the timely enforcement
21 here, assuming if I were to agree with the plaintiff on the
22 regulation and disagree on the statute, we're not talking
23 about a very lengthy delay. You're talking about I think to
24 reset the execution date 20 days out from the end of the
25 stay period. But it's not -- this is not the sort of 90a 55
1 endless cycles of delay that raise legitimate concerns in
2 cases of this type.
3 MR. SIMPSON: Your Honor, by the same token, we
4 believe that that counts against any finding of prejudice;
5 that there ought not be sort of a categorical rule that any
6 delay any day is enough to demonstrate prejudice under the
7 APA. But your point is well taken that it's not the kind
8 of -- a shorter delay is not the kind of unending delay that
9 would yield the most significant irreparable harm. However,
10 Ms. Montgomery committed her crime over 16 years ago. She
11 was sentenced to death over 12 years ago. She's had
12 sufficient time, and we believe that there is a strong
13 interest in the date that has been set by federal officials.
14 THE COURT: So let me ask you this, one final
15 question. With respect to whether -- if I agree with
16 plaintiff on the regulation, I then need to decide whether I
17 should reach the question of whether the Federal Death
18 Penalty Act requires that I incorporate Missouri rules and
19 direct that no execution date shall be set for at least 90
20 days.
21 The question I have for you is do you know -- so
22 if the Court were to agree with plaintiff on the regulation,
23 has the Department of Justice made a decision about when it
24 would set the next execution date to occur or is that
25 something that would be subject to further consideration 91a 56
1 after considering the Court's opinion?
2 MR. SIMPSON: I can't really speak to that, your
3 Honor, I just don't know. I think that in cases like this,
4 it's very difficult to make plans when -- as in
5 Ms. Montgomery's case, right, she has brought an FDPA claim
6 that was ripe at a minimum, at the absolute minimum, on
7 October 16th. And she delayed almost two months in bringing
8 it. So it's difficult for us to formulate plans in those
9 sorts of circumstances. I think that we would have to --
10 that the relevant officials would have to consider it, some
11 of whom I may not know.
12 THE COURT: Right. And I take it that there's
13 likely to be a different attorney general by the time that
14 occurs as well.
15 MR. SIMPSON: Well, I think that there will be a
16 different one by the end of date, but that is --
17 THE COURT: By the end of the day today, is today
18 Attorney General Barr's final day?
19 MR. SIMPSON: I believe so, your Honor.
20 THE COURT: Okay, thank you. Let me give
21 Mr. Schierenbeck an opportunity to respond.
22 MR. SCHIERENBECK: Thank you, your Honor. Alec
23 Schierenbeck. I don't have much to respond to, your Honor,
24 although I'd be happy to answer any of your Honor's
25 questions. Three quick points occur to me. The first is 92a 57
1 that I heard the Government concede that these rules have
2 the force and effect of law under the Missouri constitution.
3 I take the Government's argument to be that the rules are
4 only binding on courts and litigants and counsel of course.
5 The Government in a proceeding to effectuate death is a
6 litigant. I don't understand how they would step outside
7 the force and effect of those rules.
8 The Government's argument that LeCroy somehow
9 suggests that the ordinary standard for vacatur under the
10 APA doesn't apply is just wrong. LeCroy didn't present an
11 APA claim. The plaintiff in that case identified no source
12 of authority to grant the relief sought, and so the court
13 sensibly understood their request for what it was. But if
14 they had brought an APA vacatur claim in the appropriate
15 course, then I think the ordinary APA vacatur standard would
16 have applied.
17 And lastly, on the notion that we've delayed, your
18 Honor, these APA claims were brought within two weeks of the
19 Government designating a new date. My understanding is that
20 after the Government designated the date, there was
21 surprise. Of course, the Government doesn't do this sort of
22 thing as we've pointed out, so people were mystified.
23 Ms. Montgomery's counsel retained APA counsel to aid in this
24 part of the proceeding. We filed our motion for
25 clarification and leave to file a supplemental complaint 93a 58
1 within two weeks, which was quite expeditious. And of
2 course, as your Honor knows, we've been attempting to
3 proceed as expeditiously as possible since that time.
4 So those are the three points I wanted to raise.
5 THE COURT: And I appreciate the efforts of
6 everyone involved in this case to move this quickly as they
7 can. Let me ask you a question about 30.30, which is, is
8 this arguably outside the scope of 3596 because it deals
9 with what a court should do, and it deals with the court
10 setting an execution date? It says that a court should set
11 a date that is at least 90 days, but not more than 120 days,
12 out from the date that the order is entered.
13 To the extent the 3596 may incorporate state law,
14 the state law that it incorporates should be state law that
15 governs not how courts operate, because that would raise
16 perhaps Article III problems, but to adopt rules with
17 respect to how Executive Branch actors proceed. And that as
18 a result, even if you're right about the meaning of 3596, it
19 doesn't apply to a rule like 30.30 which addresses how
20 courts should act.
21 MR. SCHIERENBECK: Your Honor, I think I'd go back
22 to the answer I gave you earlier, that state statutes
23 necessarily are going to reference state institutions and
24 state officials. And that can't be an insurmountable
25 problem to the incorporation of state law in the FDPA or 94a 59
1 else the scheme envisioned by Congress in the FDPA would be
2 eviscerated.
3 THE COURT: Right, but there's a difference
4 between state judicial officers and state executive
5 officers. So to the extent that state law says how the
6 State department of corrections should behave, yes, you're
7 right. But to the extent it's a rule defining how state
8 courts should behave, it's more difficult to import through
9 3596.
10 MR. SCHIERENBECK: I take your point, your Honor.
11 I think the FDPA at a minimum requires an effort to
12 harmonize the rules. I would contend here, your Honor, that
13 the rules can be harmonized to -- in this respect and in
14 respect of the notice and timing provisions. So I think
15 that's the answer. Now, there's also another possibility
16 which is that the FDPA actually does expressly contemplate
17 that the United States Marshal may use appropriate state or
18 local facilities or appropriate state or local officials in
19 implementing a sentence.
20 So it's possible that Congress expressly
21 authorized the federal government to go -- to reach in and
22 avail itself of state facilities and state officials, and
23 that that is the sort of thing that would harmonize the 3596
24 language and these very state procedures. Of course, we're
25 not arguing -- 95a 60
1 THE COURT: I'm not following that. You're not
2 suggesting that the Marshals Service is supposed to go to a
3 Missouri state court to set the date, so I'm not following
4 your argument.
5 MR. SCHIERENBECK: I'm not, your Honor, I'm just
6 suggesting that to the extent that -- because we're not
7 raising that claim. But my point is to the extent there's a
8 disjuncture in some of these state procedures that reference
9 state institutions and state officials, that it may be that
10 Congress expressly provided in 3597 a way to comply.
11 THE COURT: All right. Anything further?
12 MR. SCHIERENBECK: No, your Honor.
13 THE COURT: You know, I don't want to be
14 unreasonable with the parties in trying to get me additional
15 materials, particularly as we're approaching a holiday. On
16 the other hand, I want to make sure I'm able to get my
17 opinion out quickly for everyone involved and for the other
18 courts that are going to have to look at these issues.
19 I guess it would be helpful to me if you can get
20 me anything on the historical question I have about the
21 Marshals by midnight tonight, and the same goes for the
22 Government. If in the course of that the parties are of the
23 view that they need more time, you can jointly request more
24 time from me to respond to that. But I do want to move this
25 as fast as I can. I'm not sure I would say yes to that, but 96a 61
1 if both sides sought the additional time, I would at least
2 give that some thought. But I guess I hope that you just do
3 your best to get back to me on that tonight and see where we
4 stand.
5 MR. SCHIERENBECK: Yes, your Honor. This is Alec
6 Schierenbeck, and we'll do our best. I think that's
7 realistic.
8 THE COURT: Okay. Mr. Simpson.
9 MR. SIMPSON: Yes, your Honor, nothing further
10 from defendants. Thank you for your time.
11 THE COURT: Okay. Well, thank you all, this was
12 very helpful. The briefing was excellent in this case, so I
13 do appreciate all of your help. I'm going to do my best to
14 get you an opinion as fast as I possibly can.
15 Well, thank you all, and hopefully you'll all get
16 a chance to at least take some time off for the holidays.
17 (Proceedings adjourned at 12:46 p.m.)
18
19
20
21
22
23
24
25 97a
'50s - argues 63 98a actually [17] 7/12 16/7 17/5 ' 3 18/9 18/21 19/4 along [1] 44/21 '50s [1] 25/6 30.30 [5] 27/5 43/4 38/20 39/23 40/17 aloud [1] 41/14 '60s [1] 25/7 51/15 58/7 58/19 44/2 48/23 50/25 although [4] 36/3 31st [2] 15/17 51/21 51/23 52/9 41/10 49/22 56/24 1 28/16 52/23 53/17 54/6 altogether [1] 10 [5] 33/7 33/9 32 [1] 12/10 59/16 13/16 33/9 33/10 47/6 3261 [2] 1/3 2/2 add [2] 37/21 41/18 always [2] 23/8 10036 [1] 1/12 333 [1] 1/24 additional [3] 39/9 33/22 114 [1] 1/17 3596 [12] 25/20 60/14 61/1 amendments [1] 9/25 11:00 p.m [1] 7/10 26/16 27/14 27/19 additionally [1] amongst [1] 49/14 11:04 [1] 1/6 40/16 41/16 50/22 51/7 amount [1] 47/2 12 [1] 55/11 58/8 58/13 58/18 address [2] 19/9 analysis [2] 18/7 120 [1] 58/11 59/9 59/23 46/5 18/9 12:46 p.m [1] 61/17 3597 [1] 60/10 addresses [1] 58/19 analyzes [1] 9/13 12th [2] 14/13 adjourned [1] 61/17 anticipate [1] 29/16 4 administering [1] 48/18 139 [1] 17/22 400 [1] 1/21 48/11 APA [16] 15/6 16/2 14853 [1] 1/15 administration [3] 53/6 53/10 53/14 157 [1] 1/15 5 35/16 44/20 47/22 53/20 54/1 54/4 16 [2] 30/6 55/10 5510 [1] 1/21 administrative [2] 54/17 55/7 57/10 16th [1] 56/7 6 10/6 10/10 57/11 57/14 57/15 17 [1] 30/6 adopt [2] 52/3 57/18 57/23 18 [1] 30/4 60 [3] 12/15 35/14 58/16 APA's [1] 16/5 1871 [3] 4/7 4/13 38/14 adopted [7] 22/9 apologies [1] 13/22 4/14 64106 [1] 1/21 26/16 47/17 49/19 apologize [3] 34/5 18th [1] 10/15 8 49/23 50/25 51/7 42/12 52/23 19 [1] 62/8 advance [1] 32/14 apparent [1] 52/8 1993 [3] 8/6 9/16 8th [2] 7/9 7/11 affect [1] 11/23 apparently [1] 10/2 20/4 9 affected [1] 34/10 appeal [2] 12/17 1994 [3] 26/15 affirmative [1] 37/18 45/13 45/16 90 [8] 12/16 12/22 49/19 appealability [1] 19th [2] 28/14 13/1 13/14 38/15 afield [1] 52/13 37/20 48/10 39/4 55/19 58/11 afraid [1] 26/9 appeals [11] 7/4 1:20-cv-3261 [1] 90-day [1] 39/7 again [5] 2/7 6/1 12/20 12/22 13/3 1/3 9th [1] 1/21 9/11 32/24 36/19 21/20 24/11 25/2 1st [2] 14/17 15/17 A against [4] 4/6 39/5 40/20 40/22 22/23 44/4 55/4 44/9 2 a.m [1] 1/6 agency [6] 9/9 appear [2] 25/25 20 [8] 32/13 32/15 abide [1] 53/18 10/10 11/23 17/1 29/20 32/18 33/5 34/9 ability [5] 3/25 53/15 53/19 APPEARANCES [1] 34/14 34/14 54/24 6/24 8/5 39/8 49/19 agency's [2] 17/11 1/10 20-3261 [1] 2/2 able [3] 31/18 27/10 Appearing [2] 2/3 20-day [3] 6/18 41/14 60/16 aggravating [1] 2/5 27/25 35/17 above [1] 62/5 44/1 appears [1] 32/7 20001 [1] 1/25 above-entitled [1] ago [5] 10/2 10/19 appellate [4] 6/21 2004 [1] 9/20 62/5 12/22 55/10 55/11 16/10 17/13 49/1 2019 [1] 9/20 absent [1] 53/6 agree [6] 36/10 applicable [3] 2020 [2] 1/5 9/20 absolute [1] 56/6 46/22 51/15 54/21 28/14 37/3 52/12 2021 [3] 14/13 Absolutely [1] 4/16 55/15 55/22 application [1] 14/17 29/16 abundance [1] 42/15 agreed [2] 15/18 30/12 22314 [1] 1/18 accordance [2] 15/7 19/21 applied [1] 57/16 2255 [2] 37/18 16/14 agreement [3] 18/15 apply [4] 41/23 37/19 accorded [1] 11/7 18/18 46/12 47/21 57/10 58/19 23 [1] 1/5 according [1] 49/4 ahead [1] 3/1 applying [2] 19/3 26.2 [1] 13/8 act [14] 15/6 17/2 AHMED [2] 1/14 2/4 31/4 26.3 [26] 3/7 3/10 19/24 42/3 43/1 aid [1] 57/23 appoint [1] 9/18 5/16 6/14 6/17 8/7 43/16 43/23 46/5 al [2] 1/5 2/3 appreciate [5] 40/1 9/5 9/8 9/17 13/10 46/18 46/24 48/2 ALAN [3] 1/19 2/5 42/23 46/8 58/5 13/11 13/11 13/25 50/18 55/18 58/20 28/11 61/13 16/7 16/14 17/5 acted [1] 5/24 ALEC [5] 1/11 2/5 approaching [1] 27/9 27/16 27/16 action [12] 1/3 2/2 2/23 56/22 61/5 60/15 27/19 27/21 28/23 3/21 8/25 17/1 Alexandria [1] 1/18 appropriate [7] 30/24 32/12 32/25 17/11 19/25 31/1 Alfred [1] 1/17 6/19 15/4 39/16 49/11 32/10 34/22 53/15 Alito [1] 46/23 40/13 57/14 59/17 26.3's [1] 9/12 53/19 Alito's [1] 46/17 59/18 26.4 [6] 6/14 6/17 actors [1] 58/17 allow [2] 33/1 39/3 April [1] 43/7 27/25 32/12 32/12 acts [1] 16/25 allowed [1] 13/1 arguably [2] 25/3 34/8 actual [2] 44/20 almost [1] 56/7 58/8 28 [1] 49/10 47/22 alone [4] 6/8 9/13 argues [1] 5/21
arguing - complies 64 99a 12/2 33/7 37/6 38/19 16/19 A balance [1] 54/13 38/25 41/5 42/2 challenges [1] arguing [4] 48/24 banc [1] 43/8 45/17 46/12 49/13 54/17 53/21 53/21 59/25 Bankruptcy [1] 1/24 49/18 chamber [1] 49/7 argument [15] 10/5 bar [1] 49/14 business [2] 35/1 chance [2] 28/7 13/23 16/20 24/8 BARR [3] 1/5 2/3 35/20 61/16 24/9 27/16 35/6 28/12 butchered [1] 30/9 characterized [1] 37/4 38/3 42/25 Barr's [1] 56/18 54/11 50/1 53/8 57/3 57/8 based [5] 9/10 C charge [1] 21/21 60/4 13/24 16/12 20/11 C.F.R [1] 49/11 chatting [1] 25/24 arguments [5] 9/5 42/18 calculation [1] chemicals [1] 22/16 27/9 38/24 40/3 baseline [1] 42/8 54/16 Chief [2] 2/7 15/20 42/18 basic [4] 4/3 4/22 call [1] 18/22 choosing [1] 50/22 arise [1] 23/17 5/17 10/11 called [1] 5/11 circuit [8] 4/20 Article [1] 58/16 basis [4] 9/8 16/7 came [1] 12/22 15/25 19/7 19/20 aside [5] 15/8 17/5 18/20 can [46] 2/13 3/5 20/16 20/20 23/19 16/18 17/13 53/1 became [2] 13/2 4/17 5/4 6/19 6/21 27/2 53/19 42/14 7/6 7/11 7/13 7/17 Circuit's [1] 19/3 assume [3] 12/21 begin [1] 3/5 8/19 11/14 12/5 circumstance [1] 24/24 53/17 behalf [2] 2/21 14/1 16/8 17/25 31/1 assuming [2] 50/9 2/24 18/21 19/19 20/23 circumstances [5] 54/21 behave [2] 59/6 23/22 25/25 26/2 7/7 21/15 37/1 42/3 attempt [1] 29/20 59/8 26/4 26/6 26/14 56/9 attempting [2] benefitting [1] 26/20 27/20 31/8 cite [2] 4/12 4/12 33/21 58/2 35/15 35/11 36/10 37/10 cited [5] 4/19 4/21 attention [2] 10/15 Bernard [1] 38/1 43/24 45/8 46/3 4/23 20/17 41/22 10/16 best [4] 26/22 61/3 46/9 48/7 48/8 51/5 cites [1] 28/22 attorney [15] 12/14 61/6 61/13 51/22 53/2 58/7 citizen [1] 30/2 12/25 21/25 22/25 better [2] 22/20 59/13 60/19 60/23 City [1] 1/21 23/1 38/12 38/13 39/25 60/25 61/14 civil [2] 1/3 2/2 38/18 39/4 44/14 beyond [2] 31/2 canon [5] 5/17 30/8 claim [4] 56/5 44/16 44/24 45/4 45/15 30/9 30/12 30/12 57/11 57/14 60/7 56/13 56/18 big [1] 44/23 canons [1] 41/22 claims [1] 57/18 Attorney's [1] 1/20 binding [7] 10/22 capital [8] 22/20 clarification [1] Auer [2] 6/12 11/20 18/7 18/10 19/4 35/3 35/9 35/13 57/25 authorities [1] 27/5 48/1 57/4 40/2 42/4 49/14 clarify [3] 2/17 9/23 bit [2] 12/7 35/5 54/19 13/19 14/23 authority [17] 6/7 bizarre [1] 6/4 carries [1] 4/5 classic [1] 10/8 8/13 8/17 8/24 9/6 blessed [1] 8/25 carry [2] 38/8 clear [7] 2/14 9/8 13/10 13/16 15/3 BOP [1] 12/3 38/21 9/8 14/20 20/14 24/13 26/1 38/7 both [13] 10/17 carrying [1] 20/1 27/3 38/20 38/21 39/1 43/10 17/11 24/6 27/8 case [28] 4/8 4/13 clearly [5] 2/13 46/5 52/3 57/12 30/24 32/16 37/23 4/14 4/21 9/1 10/14 14/18 22/13 27/10 authorization [1] 45/16 50/6 51/1 11/13 12/9 12/24 35/12 39/3 53/4 54/13 61/1 14/3 15/5 16/9 clemency [4] 15/15 authorized [2] bound [1] 18/10 17/18 18/13 18/20 15/21 16/1 34/17 39/24 59/21 Bourgeois [4] 8/20 19/8 32/17 37/23 co [1] 25/24 automatically [1] 9/1 9/11 36/9 39/12 42/16 42/17 co-counsel [1] 45/5 branch [3] 51/9 53/14 53/22 54/10 25/24 avail [1] 59/22 52/10 58/17 56/5 57/11 58/6 Code [1] 9/4 Avenue [1] 1/24 branches [1] 48/20 61/12 codifies [1] 50/11 avoid [3] 17/14 Brandon [1] 38/1 cases [14] 8/8 8/21 codify [1] 49/25 42/5 47/8 brief [6] 11/12 9/12 20/7 20/16 coequal [1] 52/10 awaiting [1] 24/21 14/18 28/24 29/9 28/5 36/9 43/7 COLUMBIA [1] 1/1 aware [8] 7/19 11/8 41/24 52/8 53/10 53/10 53/20 comfort [1] 33/22 31/2 31/3 40/2 40/9 briefed [1] 17/10 54/1 55/2 56/3 command [1] 3/18 42/14 50/6 briefing [2] 10/17 categorical [1] committed [2] 44/14 61/12 55/5 55/10 B briefly [1] 52/24 cause [1] 44/21 common [2] 8/8 BABCOCK [4] 1/13 bringing [1] 56/7 caused [1] 8/10 53/11 2/4 2/21 2/21 broad [4] 35/23 caution [1] 42/15 community [1] 49/15 back [13] 4/7 4/21 47/25 48/3 48/4 century [1] 48/10 complaint [1] 57/25 13/18 19/2 25/10 brought [5] 10/15 certain [3] 4/5 complete [6] 15/16 27/13 36/19 38/8 10/16 56/5 57/14 35/25 36/1 21/20 24/11 24/15 46/22 49/17 52/23 57/18 certainly [3] 7/17 44/13 44/15 58/21 61/3 brush [1] 35/23 12/22 36/17 completed [1] 10/14 backdrop [1] 45/12 bunch [1] 47/5 certificate [1] compliant [1] 16/23 background [2] 8/3 Bureau [17] 14/16 37/20 complied [1] 52/19 22/21 16/22 21/25 24/12 certify [1] 62/4 complies [3] 28/13 bailiwick [2] 11/24 28/24 33/1 33/4 challenge [2] 16/13 28/19 28/21
comply - described 65 100a 19/12 crimes [1] 43/24 55/11 55/17 57/5 C construes [1] 18/4 criminal [2] 31/16 debate [1] 49/14 comply [1] 60/10 construing [1] 39/12 decade [1] 4/20 components [1] 17/24 critical [2] 15/17 December [7] 1/5 22/14 contain [2] 6/14 20/1 7/9 7/11 10/15 compounding [1] 29/6 curious [5] 13/5 15/17 15/17 28/16 22/16 contains [2] 29/2 18/8 21/17 23/25 December 18th [1] comprehensive [1] 36/15 24/6 10/15 46/21 contemplate [3] current [2] 24/9 December 1st [1] concede [1] 57/1 7/24 9/14 59/16 25/21 15/17 conceive [2] 21/18 contemplated [3] currently [3] 24/7 December 31st [2] 21/18 37/20 51/4 51/5 24/10 46/9 15/17 28/16 concept [1] 47/17 contemplates [2] custody [14] 21/10 December 8th [2] concern [4] 19/9 30/24 30/25 22/22 24/16 24/18 7/9 7/11 34/13 39/13 43/11 contend [1] 59/12 24/23 25/3 40/18 decide [2] 42/17 concerned [1] 20/18 context [6] 3/12 40/25 41/3 43/13 55/16 concerns [5] 23/21 7/18 8/3 8/21 22/23 43/21 44/24 45/3 decided [1] 50/20 34/10 40/8 40/9 32/9 46/10 decision [10] 8/13 55/1 contexts [2] 8/25 cv [1] 1/3 10/8 10/11 15/7 conclude [1] 16/16 52/6 cycles [1] 55/1 16/8 17/3 17/12 concluded [2] 40/4 contingent [1] 23/14 27/10 55/23 42/25 16/21 D decisions [3] 6/25 conclusion [2] continued [1] 15/19 D.C [8] 15/24 19/2 7/1 50/6 14/11 37/17 continuing [1] 19/7 19/20 23/19 declaratory [2] concurrence [2] 15/22 24/20 24/24 27/1 17/8 53/18 43/8 46/16 contract [2] 24/24 date [100] deduced [1] 22/5 concurring [1] 21/1 45/21 dates [3] 33/2 37/1 defendant [3] 9/3 condition [1] 29/11 contrast [1] 6/22 37/3 31/16 40/17 conduct [3] 31/14 control [1] 46/11 day [12] 6/18 24/13 defendants [13] 1/6 35/1 39/9 controlling [2] 24/13 26/21 27/25 1/19 2/5 28/12 confer [1] 35/8 17/17 18/6 33/3 33/8 35/17 28/15 28/16 31/9 confirmed [2] 3/12 controls [1] 5/20 39/7 55/6 56/17 36/4 37/16 37/25 8/3 conviction [3] 12/9 56/18 40/2 40/9 61/10 conflict [2] 27/22 12/18 40/23 day-to-day [1] defendants' [5] 28/1 Cornell [1] 1/14 24/13 34/2 34/25 37/4 Congress [14] 23/21 corrections [1] daylight [1] 6/18 39/8 53/2 26/15 27/17 45/12 59/6 days [32] 10/2 defer [2] 49/25 47/1 47/20 48/18 counsel [8] 22/20 10/16 12/16 12/16 50/2 48/21 49/5 49/23 25/24 29/7 36/11 12/23 13/1 13/15 deference [7] 9/9 50/5 59/1 59/20 38/4 57/4 57/23 15/14 25/9 25/10 9/9 11/7 11/20 37/4 60/10 57/23 28/16 32/14 32/15 42/10 42/18 consequence [2] 6/5 counts [1] 55/4 32/18 32/22 32/23 defined [1] 49/8 28/5 couple [4] 32/22 33/5 33/7 33/9 33/9 defining [1] 59/7 consequential [1] 32/23 42/11 46/15 33/10 34/9 34/14 definitions [1] 6/9 course [18] 7/18 34/14 35/14 38/14 19/24 consider [4] 6/19 10/5 11/12 13/11 38/15 39/4 54/24 delay [5] 54/23 11/5 38/23 56/10 15/11 17/10 17/17 55/20 58/11 58/11 55/1 55/6 55/8 55/8 consideration [4] 19/19 22/23 23/4 DC [2] 1/4 1/25 delayed [3] 42/5 15/15 15/25 52/12 23/18 33/24 57/4 de [1] 46/11 56/7 57/17 55/25 57/15 57/21 58/2 deal [3] 43/25 delays [2] 34/3 considerations [2] 59/24 60/22 47/11 47/20 34/4 31/7 54/15 court [65] deals [4] 21/9 delegation [2] considering [1] court's [9] 2/7 51/21 58/8 58/9 22/24 22/25 56/1 2/17 12/8 28/18 death [53] 6/15 demonstrate [1] consistent [1] 39/24 43/9 52/20 7/16 15/19 15/20 55/6 42/21 54/16 56/1 16/4 20/1 20/7 demonstrated [1] conspicuously [1] courts [15] 1/24 20/11 20/15 20/19 27/10 14/4 4/20 6/21 6/24 40/3 21/10 22/11 22/12 demonstrates [1] constitution [4] 43/5 47/11 47/13 22/14 24/2 25/1 43/10 1/24 27/6 51/25 49/16 50/12 57/4 25/7 26/13 31/17 denial [1] 21/1 57/2 58/15 58/20 59/8 35/14 35/17 36/13 denotes [1] 32/9 constitutional [1] 60/18 37/8 43/1 43/13 denying [2] 15/25 47/4 covers [1] 36/8 43/15 43/23 43/24 37/19 construction [7] COVID [1] 62/8 44/2 44/2 44/7 44/8 department [14] 20/3 29/17 29/19 COVID-19 [1] 62/8 44/11 44/21 46/11 13/21 23/5 25/10 29/19 32/25 34/2 create [2] 10/10 46/18 46/18 46/24 25/11 35/10 35/16 48/3 10/25 46/25 47/4 47/22 35/19 38/7 38/20 construe [2] 20/9 created [1] 10/7 48/2 48/6 48/11 47/9 48/13 53/13 35/6 creating [1] 22/17 48/12 48/22 48/23 55/23 59/6 construed [2] 17/22 crime [1] 55/10 49/7 50/18 53/10 described [1] 49/15
designate - fact 66 101a 41/21 53/23 25/6 32/7 40/21 excellent [1] 61/12 D disputed [1] 3/17 43/7 45/20 47/18 except [1] 32/14 designate [11] 3/15 dissent [1] 46/17 49/17 53/18 exception [1] 32/20 3/17 3/18 3/25 4/1 distinct [1] 8/21 elaborate [1] 19/14 execute [1] 35/2 7/21 8/5 9/15 28/25 district [10] 1/1 element [1] 20/15 executed [2] 33/23 31/19 42/3 1/1 1/9 1/20 1/24 eliminate [1] 46/19 36/5 designated [9] 5/23 12/8 13/19 18/10 else [5] 34/19 executing [1] 28/15 8/1 9/21 9/22 17/6 37/15 37/24 38/10 41/18 46/2 execution [67] 29/10 29/13 29/14 divine [1] 51/5 59/1 executions [10] 57/20 dixit [1] 20/20 embarrassing [1] 11/19 23/9 25/14 designating [1] docket [2] 12/10 30/10 25/18 31/12 36/13 57/19 12/10 emphatic [1] 41/3 37/6 42/20 50/12 designation [5] 5/3 document [2] 10/22 en [1] 43/8 51/4 6/2 14/24 14/25 11/4 encompass [1] 47/19 executive [4] 48/22 17/5 DOJ [2] 10/23 11/2 encompasses [1] 51/8 58/17 59/4 designed [5] 35/12 done [10] 4/2 4/5 47/16 executive's [1] 46/18 46/19 46/25 4/8 40/8 42/7 44/12 end [8] 19/16 26/21 46/5 52/9 44/25 45/4 45/5 36/2 37/18 46/2 exhausted [1] 45/25 detail [1] 41/24 48/25 54/24 56/16 56/17 exhaustively [1] detailed [1] 28/23 doubt [1] 39/23 ended [1] 31/8 4/24 determined [2] down [1] 12/22 endless [1] 55/1 exist [1] 41/22 12/14 38/12 draft [2] 30/3 30/6 enforceable [1] existed [1] 25/11 determining [1] drafters [2] 31/24 11/1 expansive [1] 51/12 19/11 32/5 enforcement [2] expectation [1] dicta [1] 18/22 dramatically [1] 54/19 54/20 45/6 dictionary [1] 22/11 enforcing [1] 25/13 expeditious [1] 19/23 draw [1] 51/14 enjoined [1] 28/15 58/1 difference [1] 59/3 drugs [2] 22/17 enough [3] 11/10 expeditiously [1] different [6] 5/10 44/21 41/13 55/6 58/3 7/24 20/8 36/16 due [1] 11/11 ensure [3] 3/23 expertise [5] 11/19 56/13 56/16 dunk [1] 14/4 6/14 44/4 11/20 11/23 12/3 difficult [5] 31/9 during [9] 4/1 5/4 ensuring [1] 6/17 37/5 31/9 56/4 56/8 59/8 8/16 10/13 25/8 enter [4] 14/15 expiration [1] 29/1 direct [9] 21/20 36/6 36/7 44/20 45/21 53/13 53/17 expired [2] 34/15 24/11 24/15 25/1 62/7 entered [1] 58/12 39/4 37/18 44/24 49/6 duty [4] 4/1 18/10 entering [2] 40/4 expires [2] 6/24 50/5 55/19 21/2 21/6 54/1 7/3 directing [1] 14/15 dysfunction [2] 7/2 entire [2] 30/24 explain [1] 23/3 direction [1] 31/13 7/24 32/9 explained [2] 17/18 directly [1] 37/3 entirely [1] 48/14 20/13 director [39] 3/10 E entitled [4] 10/9 explains [1] 29/9 3/14 3/18 4/2 5/4 earlier [5] 8/11 20/6 51/25 62/5 explicated [1] 5/12 5/16 5/17 5/22 25/8 34/4 34/6 entry [1] 35/14 19/11 5/24 6/5 9/18 9/22 58/22 envisioned [2] express [1] 29/2 9/24 10/7 12/3 13/9 earliest [1] 25/8 46/20 59/1 expressio [1] 30/8 13/14 14/16 16/22 early [1] 25/10 equitable [1] 54/15 expressly [5] 10/22 21/25 28/24 29/2 easily [2] 16/6 equities [1] 54/14 31/12 59/16 59/20 29/21 31/13 31/18 20/2 equivalent [1] 60/10 32/6 33/1 33/4 33/7 easy [1] 32/5 43/12 extent [13] 5/14 36/24 37/2 37/5 economy [1] 17/15 et [2] 1/5 2/3 13/13 19/15 28/4 38/19 38/25 42/2 EDWARD [2] 1/16 2/4 even [21] 7/4 8/14 39/13 46/2 49/21 49/13 49/18 49/20 effect [20] 6/10 9/12 10/21 15/20 52/1 58/13 59/5 director's [2] 7/25 11/12 12/1 16/19 17/1 17/12 59/7 60/6 60/7 13/15 36/25 27/6 32/21 33/6 17/20 20/9 24/23 directs [2] 31/1 33/20 34/21 36/8 25/8 29/6 33/6 39/2 F 31/17 37/17 38/3 38/6 42/4 48/13 50/18 face [4] 10/21 disadvantage [1] 39/2 40/5 42/1 50/7 50/19 51/12 58/18 10/23 11/4 50/8 34/2 51/24 57/2 57/7 event [3] 6/8 6/9 facilitate [2] disagree [1] 54/22 effectuate [3] 21/9 16/10 17/13 discretion [4] 5/15 20/10 22/14 57/5 everyone [3] 2/10 facilitating [1] 5/20 6/6 49/16 effectuating [1] 58/6 60/17 35/19 discrimination [1] 20/15 evidence [4] 8/19 facilities [4] 44/5 effectuation [3] 50/3 50/5 50/8 45/20 45/23 59/18 discussed [1] 44/12 20/19 22/11 22/12 eviscerated [2] 59/22 discussion [1] 46/3 efficient [2] 35/10 23/15 59/2 facility [4] 24/4 disjuncture [1] 35/16 exactly [3] 22/21 41/5 45/18 46/10 60/8 effort [1] 59/11 47/16 53/21 fact [10] 5/4 7/15 disorder [1] 7/14 efforts [1] 58/5 example [7] 17/6 16/25 24/17 30/15 displaces [1] 54/4 either [12] 8/25 21/13 22/16 24/8 32/1 34/3 41/12 dispute [3] 39/16 13/19 17/12 24/8 24/20 36/24 54/9 43/8 48/23
facto - implementation 67 102a fire [1] 26/7 governed [1] 13/10 53/10 53/20 F first [9] 2/19 3/22 governing [3] 34/25 heard [3] 29/8 38/3 facto [1] 46/11 5/16 5/20 21/3 48/20 51/4 57/1 factors [1] 44/1 28/21 39/2 46/16 government [39] hearing [4] 1/8 factual [1] 22/21 56/25 3/17 3/20 5/1 5/15 10/18 44/3 62/7 factually [1] 8/21 five [1] 10/16 5/21 6/11 8/6 8/12 hears [1] 53/9 fair [5] 11/10 flagged [1] 40/12 8/16 8/18 8/19 9/15 heck [1] 53/9 18/22 19/5 33/11 flexible [1] 16/5 10/12 10/20 11/18 heightened [1] 36/18 flows [1] 19/23 13/5 15/6 15/9 54/11 fall [1] 20/2 focused [1] 13/11 16/13 20/8 20/16 held [1] 24/23 far [9] 4/7 4/21 focusing [1] 15/9 23/16 23/18 27/2 help [3] 23/3 45/8 13/6 18/21 45/15 follow [2] 18/11 45/21 45/22 48/20 61/13 45/22 47/16 48/6 23/18 52/11 53/13 53/20 helpful [8] 25/4 48/8 following [3] 12/12 53/25 54/3 57/1 25/5 26/19 26/21 fast [2] 60/25 60/1 60/3 57/5 57/19 57/20 45/10 46/7 60/19 61/14 follows [1] 22/6 57/21 59/21 60/22 61/12 favors [1] 54/14 For the Defendants [1]Government's [14] here's [1] 38/13 FDPA [25] 9/5 14/1 1/19 3/25 5/6 6/4 6/22 hereby [1] 11/1 16/9 16/14 16/20 force [6] 27/6 8/5 8/25 9/13 10/5 higher [2] 8/10 16/20 17/8 17/16 51/13 51/14 51/16 14/3 15/3 16/8 20/3 14/6 17/18 19/17 20/9 57/2 57/7 57/3 57/8 historical [4] 23/13 23/13 27/7 foregoing [1] 62/4 governs [3] 5/18 25/21 26/12 50/11 27/9 27/21 28/2 forever [1] 33/10 31/14 58/15 60/20 28/6 52/13 52/14 form [2] 18/20 54/6 grant [2] 52/3 historically [7] 56/5 58/25 59/1 formulate [1] 56/8 57/12 24/1 24/7 25/6 59/11 59/16 fortiori [1] 16/2 granted [1] 32/5 43/19 43/20 45/9 FDPA's [1] 23/8 forward [3] 3/20 granular [1] 17/21 48/15 fearing [1] 7/2 15/5 40/24 great [4] 3/9 41/24 histories [2] 26/13 feature [1] 34/1 four [1] 28/16 47/11 47/19 26/13 federal [32] 9/4 framed [1] 17/20 grounds [3] 11/19 history [6] 4/24 20/6 20/7 23/17 frankly [1] 20/18 18/15 27/9 25/17 45/9 46/1 25/7 25/13 27/23 frequently [1] 7/15 guarantee [1] 34/21 46/4 50/13 28/19 28/22 36/15 front [3] 39/12 guess [6] 14/19 hoc [4] 10/9 10/13 36/23 37/8 43/1 39/21 40/11 38/5 41/8 50/2 10/20 11/3 43/15 43/15 43/23 frozen [1] 6/7 60/19 61/2 hold [1] 46/12 45/20 45/21 46/4 frustrate [3] 6/24 guidance [4] 8/14 holding [1] 20/19 46/18 46/24 46/25 7/1 7/22 10/7 10/23 11/3 holiday [1] 60/15 48/2 48/6 49/13 fully [1] 17/10 holidays [1] 61/16 49/15 50/14 50/18 further [7] 15/8 H Honor [92] 50/21 55/13 55/17 35/24 52/21 52/21 half [1] 10/19 Honor's [8] 35/24 59/21 55/25 60/11 61/9 Hall [1] 1/15 39/17 39/18 42/16 feedback [1] 2/11 furthest [1] 52/13 hand [1] 60/16 42/21 52/20 53/23 feels [1] 10/20 handling [1] 15/5 56/24 Fenner [4] 38/8 G handset [1] 2/12 HONORABLE [1] 1/9 39/12 40/21 41/9 gallows [1] 25/14 happen [4] 7/6 HOOK [3] 1/23 62/3 Fenner's [4] 37/21 gap [2] 43/22 44/23 16/24 22/15 28/4 62/14 38/18 39/3 39/14 Garner [1] 4/23 happened [3] 4/10 hope [1] 61/2 few [3] 10/2 22/2 gave [1] 58/22 12/23 25/6 hopefully [1] 61/15 34/6 general [26] 5/15 happening [1] 22/19 hour [2] 10/18 fewer [2] 32/15 5/18 5/20 8/4 8/6 happens [9] 7/12 42/12 34/9 12/15 12/25 16/3 7/20 21/21 24/10 hours [1] 34/7 file [4] 7/3 17/7 21/25 22/25 23/1 24/25 25/2 43/12 housed [1] 24/2 46/8 57/25 34/22 35/4 35/5 44/25 45/4 huge [2] 47/2 47/20 filed [4] 9/2 10/1 35/7 38/12 38/13 happy [7] 11/12 Hughes [1] 1/15 39/10 57/24 38/18 39/4 42/8 20/13 20/21 26/3 hypothetical [1] filing [1] 10/4 44/14 44/16 44/24 46/1 53/25 56/24 35/24 filings [3] 9/10 45/4 56/13 56/18 hard [1] 25/20 9/11 9/12 generality [1] harm [7] 15/11 I fill [1] 49/9 17/20 15/13 16/1 52/25 identified [6] fills [1] 49/10 generally [1] 50/6 53/7 54/13 55/9 29/12 36/3 36/15 final [8] 13/2 given [4] 37/2 harmonize [2] 59/12 47/24 54/9 57/11 14/10 17/1 25/1 38/21 42/16 50/21 59/23 III [1] 58/16 44/22 49/6 55/14 glaring [1] 43/22 harmonized [1] immediate [1] 46/11 56/18 goes [8] 4/22 4/24 59/13 immediately [1] finally [1] 52/18 35/20 36/24 43/9 Haute [3] 24/3 45/7 finding [1] 55/4 44/8 45/3 60/21 24/12 24/14 imminently [1] fine [3] 3/8 38/13 good [5] 3/2 3/4 head [3] 7/5 12/25 33/24 38/15 13/4 28/11 48/9 13/22 impart [1] 31/15 finish [2] 41/17 goodbye [1] 34/18 hear [7] 2/13 2/18 implement [1] 35/2 42/10 govern [1] 52/9 28/8 45/13 50/15 implementation [23]
implementation... - leaves 68 103a injunction [11] 55/9 Justice's [2] 15/20 I 14/5 14/15 15/4 issuance [1] 13/2 23/5 implementation... [23] 29/22 31/4 34/23 issue [14] 11/6 Justices [1] 18/16 6/15 17/23 18/5 36/1 53/4 53/14 16/9 17/9 21/24 justification [1] 19/11 19/12 19/17 53/17 54/14 31/4 33/18 37/22 49/11 19/21 19/24 20/2 injunctions [3] 38/15 39/7 40/13 20/4 20/7 21/7 31/11 31/11 54/1 48/2 51/13 53/11 K 21/11 22/5 23/4 injunctive [3] 53/15 Kagan [1] 11/22 43/6 43/11 44/10 14/21 15/10 54/12 issue's [1] 40/11 Kaiser [1] 11/22 47/25 48/3 48/5 inmate's [1] 42/4 issued [4] 39/5 Kansas [1] 1/21 49/2 50/19 inmates [3] 24/2 40/21 40/23 41/10 Katsas [3] 20/25 implemented [3] 35/9 35/13 issues [5] 17/12 46/23 47/24 21/3 30/21 44/16 instance [5] 22/13 34/25 40/2 46/19 Katsas' [3] 22/3 implementing [4] 27/21 31/18 32/8 60/18 22/8 46/16 36/13 48/12 48/22 54/8 Ithaca [1] 1/15 Keith [1] 37/23 59/19 instances [1] 38/2 kind [5] 7/24 17/8 implements [1] institutional [1] J 25/25 55/7 55/8 48/23 36/25 jail [2] 24/19 kinds [2] 23/20 implication [1] institutions [3] 24/24 28/4 33/17 23/7 58/23 60/9 jails [1] 45/23 knew [1] 34/14 implied [1] 4/6 instruction [2] January [3] 14/13 knowledge [2] 36/25 import [1] 59/8 30/16 32/10 14/17 29/16 46/1 important [2] 48/16 insurmountable [2] January 12th [1] knows [3] 23/25 49/21 23/12 58/24 29/16 25/17 58/2 importantly [1] intend [1] 35/23 January 1st [1] 8/24 intended [4] 10/24 14/17 L impose [1] 14/6 49/24 49/24 50/2 JEFF [3] 1/23 62/3 label [2] 53/4 53/5 imposed [2] 43/25 intent [1] 42/13 62/14 lack [1] 33/22 44/3 interact [1] 27/19 jointly [1] 60/23 lacuna [2] 47/20 imposing [1] 32/1 interaction [1] judge [40] 1/9 49/9 imposition [2] 44/1 32/12 15/22 17/17 17/18 laid [1] 41/24 44/6 interacts [1] 52/10 17/25 18/10 18/16 language [12] 29/23 in saying [1] 21/4 interest [7] 5/6 18/17 19/10 19/14 30/17 30/18 31/5 inapposite [3] 15/19 15/21 15/22 19/14 19/18 19/19 31/6 32/1 32/3 32/4 11/21 20/17 20/21 34/16 54/18 55/13 19/25 20/12 20/13 32/7 37/14 39/8 incidentally [1] interests [1] 35/9 20/25 22/3 22/8 59/24 43/17 interlocutory [1] 23/20 37/21 38/8 last [7] 4/19 8/20 include [4] 17/21 7/4 38/18 39/3 39/12 9/10 33/20 41/25 17/23 18/5 19/12 internal [3] 8/14 39/14 40/21 41/9 50/17 52/24 included [1] 42/21 10/23 35/7 46/16 46/23 47/19 lastly [1] 57/17 includes [3] 4/9 interpretation [2] 47/24 47/24 51/1 late [2] 38/17 19/21 22/8 4/3 18/24 51/5 51/11 51/11 42/12 incorporate [5] interpretations [1] 51/11 51/13 53/16 later [5] 10/16 48/21 52/14 52/15 9/14 judge's [3] 2/8 12/16 28/16 38/15 55/18 58/13 interpreted [2] 11/24 12/2 38/15 incorporated [4] 15/3 29/24 judges [1] 51/3 Latin [1] 30/10 23/13 27/7 28/2 interpreting [2] judgment [26] 2/18 law [27] 1/14 1/17 43/15 12/6 19/8 3/7 12/8 12/9 12/17 4/14 4/23 11/1 15/7 incorporates [2] interpretive [1] 12/18 12/24 13/2 16/24 17/20 21/12 17/19 58/14 11/21 13/7 13/13 14/11 23/24 25/13 27/6 incorporating [2] interrupt [2] 4/11 18/19 18/20 25/1 27/17 28/3 28/14 19/17 27/14 23/23 35/14 37/14 37/21 43/15 43/15 45/15 incorporation [2] interrupted [1] 37/25 38/16 39/15 50/21 51/16 54/17 50/24 58/25 13/23 40/14 40/17 40/19 57/2 58/13 58/14 incorrect [1] 20/11 into [14] 2/12 6/10 41/13 41/14 53/18 58/14 58/25 59/5 indefinite [1] 33/6 11/9 19/25 20/13 judgments [1] 37/23 lawful [1] 11/2 independent [1] 20/22 21/7 23/13 judicial [8] 7/1 laws [3] 22/13 23/9 51/13 26/2 26/6 27/7 8/13 8/22 8/24 12/1 23/12 indicate [3] 29/23 43/15 44/20 45/21 12/6 17/15 59/4 lead [2] 44/11 52/19 53/1 introduce [1] 2/13 jumps [1] 44/10 46/11 individual [4] invalid [1] 27/16 jurisdictions [1] leads [2] 6/4 43/18 21/11 24/11 24/14 invent [1] 10/20 24/22 least [12] 19/10 49/7 inventing [1] 10/13 Justice [21] 10/1 25/3 27/25 32/13 inform [1] 22/20 invoked [1] 11/18 10/21 10/22 11/7 33/1 34/14 40/22 informative [1] involved [4] 48/11 11/22 13/21 15/21 40/24 55/19 58/11 18/8 48/11 58/6 60/17 25/10 25/11 35/11 61/1 61/16 informing [1] 9/2 ipse [1] 20/20 35/16 35/20 38/7 leave [2] 40/12 initial [3] 30/24 irreparable [7] 42/12 42/19 46/17 57/25 32/16 42/20 15/10 15/13 16/1 46/23 47/9 48/14 leaves [2] 12/24 injection [1] 22/17 52/25 53/7 54/13 53/13 55/23 44/23
LeCroy - Ms. Montgomery's 69 104a logical [2] 31/13 materials [2] 26/12 mode [2] 4/9 4/9 L 32/3 60/15 modification [1] LeCroy [3] 54/10 logistics [1] 37/7 matter [3] 24/9 38/9 57/8 57/10 long [4] 12/22 31/8 54/17 62/6 modifies [1] 3/16 left [1] 47/20 33/3 50/13 matters [1] 40/4 moment [2] 4/17 legal [7] 6/19 longer [2] 27/22 may [31] 5/8 8/16 27/12 11/21 11/22 16/3 34/13 9/24 10/4 10/24 MONTGOMERY [14] 1/2 51/13 51/14 51/24 look [15] 11/14 11/5 11/15 13/9 2/3 14/7 15/1 16/2 legally [1] 6/9 17/17 18/15 19/2 13/20 15/16 23/23 16/19 24/3 27/10 legitimate [1] 55/1 19/19 26/2 26/6 24/12 26/8 26/10 28/15 29/12 38/3 length [2] 28/23 27/13 36/19 39/20 26/11 31/11 34/16 40/25 53/3 55/10 52/8 39/25 43/22 47/2 35/5 35/19 36/22 Montgomery's [9] lengthy [3] 7/21 51/11 60/18 37/7 38/14 41/10 14/13 15/15 28/17 7/25 54/23 looked [2] 11/9 42/5 42/6 44/21 29/7 43/6 50/19 less [3] 15/15 16/3 19/7 48/25 56/11 58/13 54/19 56/5 57/23 16/3 looking [2] 26/11 59/17 60/9 months [3] 8/20 lesser [1] 15/12 26/12 maybe [3] 22/20 9/10 56/7 lethal [1] 22/17 lot [2] 6/11 53/10 41/8 41/8 more [23] 4/14 7/15 letter [3] 9/2 lots [3] 24/17 mean [18] 6/5 18/19 8/24 12/22 13/1 11/12 26/3 33/20 33/22 25/9 26/8 29/24 26/8 29/3 29/10 level [2] 17/19 love [1] 50/3 30/5 31/22 35/18 33/9 33/9 33/10 50/8 36/19 38/20 38/24 46/19 46/25 47/13 life [3] 15/14 M 41/7 41/9 48/8 49/5 51/12 51/20 51/21 15/19 15/22 magic [1] 6/8 51/10 53/1 54/7 53/10 53/19 58/11 lifted [16] 3/11 makes [5] 21/4 22/7 meaning [4] 18/24 59/8 60/23 60/23 3/16 3/16 3/19 4/2 42/6 46/15 50/11 19/11 40/16 58/18 moreover [2] 50/10 5/4 6/3 6/18 6/20 making [1] 10/8 means [5] 5/18 52/7 7/10 9/23 29/22 male [1] 24/4 19/24 22/6 32/15 morning [4] 3/2 3/4 30/18 31/10 32/6 manage [1] 31/9 35/10 10/1 28/11 33/21 management [2] meant [1] 19/18 MOSS [1] 1/9 lifting [2] 9/15 24/13 35/8 measured [2] 15/14 most [6] 15/23 19/7 9/19 mandate [7] 8/23 15/14 19/20 24/2 43/8 lifts [1] 8/10 12/20 12/21 13/2 meet [1] 54/11 55/9 light [3] 33/24 39/5 40/19 40/24 member [1] 15/18 motion [6] 1/8 2/16 37/7 37/8 mandates [1] 31/1 mentioned [1] 33/19 2/17 3/6 14/11 likely [4] 16/10 mandatory [3] 3/14 merely [1] 3/23 57/24 36/8 47/13 56/13 29/4 30/16 method [2] 15/6 motions [1] 10/18 limit [5] 3/24 manner [5] 12/14 22/9 move [2] 58/6 60/24 30/16 32/2 38/13 19/12 21/12 38/11 midnight [2] 7/11 moved [2] 7/8 45/15 39/8 48/21 60/21 Mr. [10] 2/20 23/23 limitation [3] Manual [6] 10/1 might [9] 17/9 28/8 28/10 29/18 13/15 30/11 30/13 10/21 10/22 11/7 17/20 17/21 23/3 35/5 38/1 43/19 limitations [2] 42/13 42/19 23/17 31/10 32/19 56/21 61/8 11/1 62/9 many [3] 36/16 34/19 52/14 Mr. Schierenbeck [5] limited [2] 10/4 36/21 49/3 mind [2] 23/10 2/20 23/23 29/18 44/19 MARIE [2] 1/2 2/3 26/19 43/19 56/21 limits [1] 4/8 Marks [5] 18/7 19/2 minimal [1] 16/5 Mr. Simpson [4] line [6] 13/23 18/7 19/3 19/5 19/8 minimum [3] 56/6 28/8 28/10 35/5 22/9 25/16 25/25 Marshal [36] 21/2 56/6 59/11 61/8 51/14 21/10 21/13 21/19 minute [3] 6/23 7/3 Mr. Vialva [1] 38/1 lines [1] 44/22 21/19 21/21 21/22 33/20 Mrs. [4] 14/13 LISA [3] 1/2 2/2 21/24 22/4 22/15 misconstruction [1] 16/19 24/3 40/25 28/15 22/19 22/22 23/3 20/12 Mrs. Montgomery [3] literal [1] 12/23 24/1 24/16 24/18 misconstrues [1] 16/19 24/3 40/25 literally [1] 18/6 24/23 25/9 38/7 14/5 Mrs. Montgomery's [1] litigant [1] 57/6 40/16 40/18 41/1 Missouri [20] 1/20 14/13 litigants [1] 57/4 41/4 43/11 43/14 13/19 16/24 27/6 Ms. [17] 2/21 14/7 litigation [13] 43/20 43/21 44/17 27/17 27/22 27/24 15/1 15/15 16/2 9/10 11/2 15/24 45/7 45/14 46/10 37/15 37/25 43/3 27/10 28/17 29/7 16/12 17/14 21/2 46/13 48/4 49/2 43/9 50/24 51/2 29/12 38/3 43/6 32/19 33/21 33/22 51/8 59/17 51/19 51/25 52/9 50/19 53/3 54/19 34/17 47/3 47/6 Marshal's [3] 21/6 52/11 55/18 57/2 55/10 56/5 57/23 47/12 21/23 44/19 60/3 Ms. Babcock [1] little [6] 12/7 Marshals [15] 24/20 Missouri's [2] 27/4 2/21 12/11 21/13 23/10 24/25 25/3 25/11 27/15 Ms. Montgomery [8] 35/5 47/18 25/12 25/13 25/18 Mitchell [4] 8/21 14/7 15/1 16/2 local [2] 59/18 25/22 26/13 45/19 9/3 9/11 36/9 27/10 29/12 38/3 59/18 45/23 45/24 48/10 mitigating [1] 53/3 55/10 located [1] 8/18 60/2 60/21 43/25 Ms. Montgomery's [8] logic [1] 3/12 materially [1] 16/4 MO [1] 1/21 15/15 28/17 29/7
Ms. Montgomery's... - permit 70 105a 59/14 onerous [1] 15/12 55/11 M notices [1] 39/11 only [28] 3/18 6/3 overcome [1] 54/18 Ms. Montgomery's... [5]noticing [1] 40/16 8/17 8/18 9/14 overlap [1] 18/16 43/6 50/19 54/19 notification [1] 10/15 10/16 14/2 overrides [1] 5/19 56/5 57/23 34/7 14/18 15/16 20/9 overrule [2] 50/9 much [5] 15/12 20/4 notify [1] 32/13 20/17 22/6 22/8 50/10 25/8 47/13 56/23 notion [1] 57/17 29/14 29/19 30/15 overseeing [1] multiple [1] 53/12 novel [1] 37/22 32/6 34/6 38/22 25/14 must [1] 3/15 November [1] 28/14 41/3 43/14 44/19 overstepping [1] mute [1] 2/10 November 19th [1] 45/3 46/10 51/24 53/16 Myers [1] 1/11 28/14 52/4 57/4 own [2] 6/25 20/3 myself [2] 50/17 number [2] 27/4 open [1] 31/8 52/22 34/24 operate [1] 58/15 P mystified [2] 12/11 NW [1] 1/24 operation [1] 25/8 p.m [2] 7/10 61/17 57/22 NY [2] 1/12 1/15 opinion [20] 15/20 paint [1] 35/23 17/17 18/1 18/3 pandemic [1] 62/8 N O 18/4 18/6 18/9 panel [2] 23/2 name [1] 2/14 O'Connor [1] 15/22 18/17 18/17 19/10 23/15 narrow [1] 48/21 O'Melveny [1] 1/11 19/16 20/12 21/1 paper [1] 39/9 narrower [1] 53/14 objection [1] 14/24 22/3 23/20 51/11 papers [3] 6/12 narrowest [1] 18/15 obligation [1] 51/11 56/1 60/17 9/16 17/7 naturally [2] 35/25 21/10 61/14 part [7] 17/9 20/1 36/2 observation [1] opinions [2] 20/20 23/1 23/5 35/19 necessarily [3] 22/3 51/6 54/15 57/24 31/15 31/15 58/23 obviate [2] 8/7 opportunity [1] partial [2] 2/18 necessary [6] 15/8 16/11 56/21 14/11 20/15 33/17 40/6 obvious [2] 13/25 opposite [1] 53/21 particular [7] 4/9 42/17 46/20 15/14 opposition [2] 6/12 18/4 29/15 30/14 need [11] 10/20 obviously [1] 34/7 14/3 34/10 37/23 43/9 14/2 18/15 26/6 occasions [1] 53/12 order [38] 2/8 2/9 particularly [3] 26/11 31/15 32/16 occur [10] 5/3 6/3 2/17 8/22 12/1 12/6 21/14 37/22 60/15 32/22 32/23 55/16 7/3 7/15 7/18 7/21 12/11 12/12 12/13 parties [7] 7/19 60/23 7/23 51/23 55/24 12/13 12/19 13/7 10/17 38/2 39/13 needs [2] 21/24 56/25 13/8 13/12 13/20 40/8 60/14 60/22 28/25 occurred [4] 29/12 14/14 16/17 17/13 parts [1] 22/6 negative [1] 4/9 34/4 48/6 62/7 28/18 28/20 37/19 pass [3] 5/9 5/23 Neither [1] 3/21 occurs [2] 22/22 37/20 38/9 38/10 8/11 Nelson [1] 37/24 56/14 38/11 38/14 38/18 passed [4] 5/24 Nevertheless [1] October [1] 56/7 38/21 39/24 40/4 8/23 12/23 29/13 9/9 October 16th [1] 40/6 40/21 41/10 passes [7] 5/7 5/9 new [22] 1/12 3/15 56/7 41/10 42/22 52/20 5/25 6/6 6/7 9/21 3/18 3/25 8/5 8/9 odd [3] 21/13 21/15 53/19 58/12 30/19 9/18 9/22 14/16 47/18 orderly [2] 6/14 passing [2] 5/13 16/22 17/7 28/25 off [5] 7/5 32/23 36/12 6/8 29/13 29/21 30/21 42/18 43/24 61/16 orders [1] 39/22 penalty [17] 7/16 31/19 32/6 33/2 offenders [1] 24/5 ordinarily [1] 25/7 26/13 35/17 33/3 39/1 42/3 Office [1] 1/20 49/16 43/1 43/16 43/23 57/19 officer [1] 22/24 ordinary [5] 15/5 46/18 46/19 46/24 newly [1] 9/3 officers [2] 59/4 16/6 54/12 57/9 46/25 47/4 48/2 next [3] 44/9 44/15 59/5 57/15 48/6 50/18 53/10 55/24 official [3] 1/23 original [1] 5/7 55/18 nobody [1] 2/10 23/11 62/3 originally [1] 5/23 pendency [2] 8/17 nonbinding [1] 11/4 officials [7] 23/7 others [3] 22/1 10/13 nor [3] 11/1 12/16 55/13 56/10 58/24 28/12 35/9 pending [2] 12/19 38/15 59/18 59/22 60/9 otherwise [5] 11/2 40/19 North [1] 1/17 often [1] 7/12 13/12 31/4 40/6 people [8] 24/17 notable [1] 51/1 oftentimes [1] 42/7 24/20 24/21 30/5 note [10] 11/18 33/19 ought [4] 42/21 34/16 37/8 43/20 20/3 29/19 34/3 old [3] 25/12 29/13 49/12 49/13 55/5 57/22 35/24 39/10 46/3 46/4 out [15] 5/11 5/14 perform [1] 22/18 48/1 52/7 62/7 once [3] 2/7 13/6 20/1 20/25 23/21 perhaps [5] 7/4 noted [3] 11/22 25/1 38/8 38/10 38/21 26/5 33/6 45/14 17/20 19/25 one [21] 7/3 9/12 41/24 42/15 50/14 58/16 notes [1] 27/13 9/23 12/7 16/10 54/24 57/22 58/12 period [10] 6/18 notice [17] 6/16 20/17 21/14 21/15 60/17 14/13 27/18 27/23 7/20 18/5 18/23 23/15 23/23 29/10 outside [2] 57/6 27/24 27/25 36/4 19/9 19/25 20/5 29/14 33/14 36/21 58/8 41/4 46/13 54/25 20/18 27/18 27/23 37/1 38/24 39/22 over [8] 20/24 permissible [2] 27/24 32/18 33/5 51/3 52/13 55/14 21/10 24/13 28/3 28/18 47/7 34/15 35/17 36/15 56/16 31/7 39/13 55/10 permit [1] 3/21
permits - raising 71 106a 17/14 59/15 prison [1] 24/19 prospect [1] 16/21 P possible [5] 29/4 prisoner [5] 15/19 protection [1] permits [2] 39/15 30/22 37/7 58/3 15/21 31/16 32/13 31/16 53/6 59/20 32/18 protocol [3] 21/2 permitted [1] 2/8 possibly [2] 36/5 Prisons [17] 14/16 43/7 51/2 person [13] 25/2 61/14 16/22 22/1 24/13 protocols [5] 9/20 33/23 43/13 44/14 post [4] 10/9 10/13 28/24 33/1 33/4 15/24 17/18 23/2 44/17 44/23 44/25 10/20 11/3 33/8 37/6 38/19 23/14 45/3 45/5 45/6 postponement [3] 38/25 41/5 42/2 provide [6] 13/14 45/17 46/13 51/4 32/14 32/21 34/8 45/18 46/12 49/13 26/3 26/20 33/5 person's [1] 45/3 potential [2] 16/11 49/18 35/13 36/12 petition [3] 15/16 40/7 probably [5] 7/15 provided [7] 12/8 15/16 16/1 potentially [1] 24/21 24/22 30/9 12/11 12/15 25/19 phrase [1] 3/16 15/3 39/20 27/17 38/13 60/10 phrased [1] 31/6 power [1] 5/17 problem [7] 5/22 provides [5] 4/4 picking [2] 50/22 powers [1] 13/12 23/8 23/12 28/2 27/18 27/22 32/12 51/10 practicably [1] 33/11 35/6 58/25 40/18 pieces [1] 22/2 42/7 problematic [1] providing [2] 11/15 place [9] 7/11 practical [6] 23/17 52/5 18/5 12/13 17/23 19/13 23/19 23/21 27/1 problems [7] 17/10 province [1] 12/2 33/9 38/11 39/23 27/2 31/7 23/17 23/19 27/1 provision [22] 5/2 44/9 49/6 practically [1] 27/2 48/19 58/16 5/5 6/1 6/2 11/25 placed [2] 9/14 54/7 procedural [1] 13/8 19/10 20/18 11/1 practice [10] 8/4 10/25 21/9 21/18 28/14 plain [2] 28/18 8/6 8/8 8/19 36/3 procedure [4] 43/4 29/4 30/19 32/9 31/5 43/4 50/11 51/18 51/19 52/2 52/16 34/7 41/24 42/1 plainly [1] 20/17 52/2 52/15 procedures [20] 42/13 42/19 43/3 plaintiff [10] 1/3 precautions [1] 17/19 17/21 17/22 44/10 48/24 1/11 2/4 6/19 28/22 44/4 19/17 19/21 19/21 provisions [4] 20/5 51/16 54/21 55/16 precedent [3] 19/3 20/10 22/6 47/3 23/6 50/23 59/14 55/22 57/11 19/7 48/1 47/5 47/7 47/9 public's [1] 54/18 plaintiff's [5] precisely [2] 4/10 47/15 47/17 47/19 pull [1] 12/10 2/16 2/17 28/13 53/3 47/21 48/5 49/5 purely [2] 14/22 29/17 36/11 predicate [2] 23/1 59/24 60/8 35/7 plaintiffs [5] 2/18 30/12 proceed [2] 58/3 purpose [12] 3/13 2/22 2/24 7/2 9/2 preferred [1] 50/22 58/17 3/22 5/2 6/12 6/13 plan [1] 19/25 prejudice [11] 14/2 proceeding [5] 6/16 6/17 29/25 planning [3] 3/6 14/4 15/11 15/12 37/18 37/19 54/6 36/11 36/17 36/19 34/16 34/18 15/13 16/2 16/5 57/5 57/24 36/20 plans [3] 53/2 56/4 16/8 27/11 55/4 proceedings [3] 2/9 purposes [3] 32/19 56/8 55/6 61/17 62/5 35/15 36/21 plausible [1] 6/1 preliminary [1] process [10] 22/14 pursue [1] 6/19 play [3] 21/8 44/20 53/4 22/17 24/1 24/15 purview [1] 22/24 50/12 prepare [2] 16/4 36/12 44/4 44/9 put [2] 3/20 32/23 played [1] 24/1 32/18 44/13 44/15 44/22 putting [1] 19/25 pleading [4] 43/5 prerogatives [1] Professor [1] 2/21 puzzle [1] 17/9 51/18 52/1 52/15 11/2 professors [1] puzzled [2] 12/7 pleadings [1] 7/4 prescribe [2] 19/22 23/24 38/6 please [6] 2/11 49/12 prohibit [2] 29/21 puzzling [1] 20/24 2/13 3/1 33/15 prescribed [2] 5/12 31/12 37/12 62/7 21/12 prohibition [6] 4/6 Q PLLC [1] 1/17 prescribing [1] 5/19 29/2 29/7 29/8 quashed [1] 53/2 point [22] 5/14 20/14 29/11 quick [1] 56/25 8/12 8/19 13/4 present [1] 57/10 prohibitory [1] quickly [4] 25/19 16/18 16/21 17/16 presented [1] 38/24 29/5 45/25 58/6 60/17 21/4 21/20 39/17 presumably [4] 5/6 prompt [3] 3/23 5/6 quite [4] 7/22 39/18 40/24 41/25 32/15 35/15 41/9 32/10 31/10 42/14 58/1 44/13 45/1 45/7 presumed [1] 30/14 promptly [8] 9/18 quote [11] 3/15 45/16 46/6 48/9 pretty [4] 14/18 9/22 11/16 29/3 3/15 6/3 6/14 9/4 55/7 59/10 60/7 31/22 31/23 44/19 30/3 30/22 35/2 9/17 10/23 17/19 pointed [1] 57/22 preventing [1] 7/24 42/2 17/21 19/17 20/10 pointing [1] 23/16 previously [2] promptness [1] 5/2 quoted [1] 9/16 points [3] 20/25 33/19 42/12 promulgated [3] quotes [1] 9/12 56/25 58/4 principally [1] 6/13 8/7 28/6 policy [1] 23/20 24/4 proper [1] 18/24 R portion [1] 18/4 principles [1] properly [1] 8/15 raise [4] 16/20 portions [1] 35/12 10/11 proposed [2] 6/16 55/1 58/4 58/15 posit [1] 42/6 prior [6] 4/2 9/13 14/14 raised [2] 40/3 posits [1] 29/7 28/6 37/23 42/16 proposition [3] 54/17 possibility [2] 42/21 4/12 4/22 4/25 raising [2] 27/3
raising... - scheme 72 107a record [6] 2/8 2/15 rely [2] 47/9 47/15 reviewed [1] 41/13 R 9/14 10/6 10/10 remand [1] 40/17 rewrite [1] 29/20 raising... [1] 60/7 26/1 remedies [1] 6/20 right [20] 5/1 7/8 Raleigh [2] 4/8 redesignate [3] 5/4 remedy [1] 13/25 7/16 16/16 19/8 4/21 8/16 16/13 remind [1] 2/6 21/23 27/14 30/9 RANDOLPH [1] 1/9 reference [3] 23/7 remotely [2] 62/5 31/20 39/21 48/9 Rao [4] 17/18 47/19 58/23 60/8 62/9 51/20 51/23 54/5 51/1 51/13 referenced [1] 9/4 rendered [1] 13/7 56/5 56/12 58/18 Rao's [8] 17/17 references [1] 5/25 renoticed [1] 36/4 59/3 59/7 60/11 18/1 18/16 19/10 referred [2] 51/1 renotices [1] 36/2 rights [4] 10/25 19/14 23/20 47/24 51/3 rent [1] 45/20 35/8 35/13 52/3 51/11 referring [1] 30/7 repeat [1] 50/16 ripe [1] 56/6 rather [4] 8/17 refined [1] 47/12 reply [1] 14/17 role [14] 21/19 14/6 15/11 27/3 reflecting [1] reported [1] 62/5 21/23 24/1 25/17 rationale [1] 11/3 41/11 Reporter [3] 1/23 25/21 25/22 40/16 rationales [2] reflective [1] 1/23 62/3 43/20 44/3 44/19 10/13 10/20 50/24 reporting [1] 62/9 48/12 48/13 48/15 rationalization [1] regarding [2] 39/11 republic [1] 25/9 50/12 10/9 40/10 request [3] 14/12 round [2] 15/23 re [1] 6/2 regardless [1] 57/13 60/23 19/20 re-designation [1] 54/10 requesting [1] 17/7 row [2] 24/2 37/8 6/2 register [7] 30/3 requests [3] 14/14 rule [27] 6/12 8/4 reach [4] 16/9 30/6 36/15 36/23 14/14 53/12 9/16 32/20 33/2 17/11 55/17 59/21 46/4 49/15 50/14 require [2] 9/17 35/12 35/17 36/9 react [1] 5/12 regs [3] 20/5 20/6 51/12 42/8 43/4 43/9 read [6] 13/17 41/17 required [1] 53/20 43/10 50/18 50/20 22/23 27/21 37/14 regulation [36] 3/7 requirement [5] 50/24 51/15 51/17 41/12 41/14 3/13 3/13 3/21 4/4 15/10 15/12 16/5 51/18 51/21 51/25 reading [12] 3/9 4/10 5/11 9/7 16/17 32/10 54/4 52/1 52/1 52/4 52/9 4/23 6/1 6/4 8/2 28/3 28/20 28/22 requirements [4] 55/5 58/19 59/7 9/7 12/24 13/25 28/23 29/1 29/6 16/14 16/15 27/5 rulemaking [1] 6/16 30/23 32/8 33/12 29/20 29/23 30/1 27/15 rules [23] 2/7 6/13 51/5 30/14 31/14 31/24 requires [4] 28/24 8/7 23/18 35/18 readings [1] 3/20 33/12 42/25 49/12 42/2 55/18 59/11 35/23 48/19 48/19 reads [1] 21/4 49/19 49/21 49/22 requiring [1] 20/10 49/8 50/23 51/6 realistic [1] 61/7 49/24 49/25 49/25 reschedule [1] 3/10 51/13 51/14 52/3 really [13] 16/19 50/2 50/10 50/14 rescheduled [1] 52/13 52/15 55/18 16/25 17/2 18/8 54/22 55/16 55/22 28/17 57/1 57/3 57/7 19/1 20/24 23/21 regulations [13] rescheduling [4] 58/16 59/12 59/13 35/7 35/9 44/20 7/23 9/4 13/8 13/10 3/24 5/6 28/19 run [2] 24/19 38/17 48/14 53/11 56/2 20/6 27/23 28/6 29/15 runs [1] 45/24 reason [11] 5/7 5/8 34/25 35/7 36/12 reset [2] 16/22 rush [1] 7/9 5/9 5/16 5/25 9/21 37/4 41/19 50/7 54/24 rushed [1] 7/4 15/1 30/20 30/21 Reid [1] 4/21 residual [1] 15/21 33/23 37/1 rejected [3] 22/10 resources [1] 36/25 S reasonable [1] 23/19 27/1 respect [17] 17/1 same [9] 4/15 5/7 29/17 relate [2] 43/5 17/8 18/18 19/15 27/2 32/4 41/6 50/1 reasonably [1] 50/18 22/7 22/12 25/19 53/3 55/3 60/21 29/24 related [4] 25/5 27/16 37/13 41/18 SANDRA [2] 1/13 2/4 reasoning [4] 19/15 38/22 38/23 46/4 47/3 53/8 54/20 satisfactory [1] 20/19 20/20 23/2 relates [6] 11/25 55/15 58/17 59/13 47/14 reasons [6] 17/15 11/25 40/15 42/19 59/14 satisfied [1] 27/24 20/21 46/15 47/24 43/4 48/24 respected [1] 53/12 satisfies [1] 16/6 52/7 54/9 relating [2] 44/1 respecting [2] satisfying [1] rebroadcast [1] 2/9 47/4 15/23 21/1 27/24 receipt [1] 12/19 relatives [1] 34/18 respond [4] 28/8 saying [5] 5/15 recent [6] 4/14 release [1] 43/13 56/21 56/23 60/24 6/12 21/4 26/25 15/23 19/7 19/20 released [1] 43/21 response [1] 5/13 39/19 43/8 46/16 relevant [4] 7/19 responsibilities [1] Scalia [1] 4/23 recipe [1] 7/2 29/11 45/12 56/10 23/5 schedule [1] 6/23 recognize [1] 37/5 reliance [3] 34/10 rest [1] 20/20 scheduled [5] 7/8 recognized [4] 8/6 34/13 34/16 result [1] 58/18 9/3 10/18 36/6 20/4 46/17 46/17 relied [2] 10/8 retained [1] 57/23 39/14 recognizes [1] 10/24 reveals [1] 49/1 scheduling [11] 50/12 relief [13] 14/5 review [16] 6/21 28/13 28/21 29/3 recollection [1] 14/9 14/18 14/20 6/25 7/1 7/22 10/4 31/12 37/6 42/4 53/24 14/21 15/1 15/8 16/10 17/2 17/13 42/20 43/10 48/24 reconsider [1] 6/25 16/3 16/6 17/8 53/4 24/15 44/7 44/12 48/25 50/12 reconsideration [1] 54/12 57/12 44/14 44/24 49/6 scheme [4] 23/9 34/24 relies [1] 51/16 49/7 54/5 23/13 46/21 59/1
SCHIERENBECK - supervising 73 108a 55/19 55/24 58/10 35/4 37/11 41/7 stating [1] 40/5 S 60/3 50/16 statute [20] 4/4 SCHIERENBECK [10] sets [2] 21/14 45/2 sort [19] 10/11 4/8 5/24 8/2 18/24 1/11 2/5 2/20 2/24 setting [11] 13/10 21/17 21/18 22/21 22/4 22/8 22/23 23/23 29/18 43/19 16/17 25/14 29/21 22/21 23/7 24/6 28/20 30/2 30/14 56/21 56/23 61/6 33/2 37/1 37/2 24/25 36/2 36/21 41/21 43/22 44/18 School [1] 1/14 49/14 51/22 53/19 40/20 43/22 46/14 44/23 47/18 49/23 scope [2] 21/23 58/10 49/25 52/4 54/25 51/4 54/5 54/22 58/8 several [2] 29/18 55/5 57/21 59/23 statutes [1] 58/22 scratching [2] 39/7 sorts [2] 47/21 statutory [2] 20/23 12/24 13/22 shall [15] 3/14 4/5 56/9 20/25 second [5] 3/23 12/15 12/18 29/22 sought [4] 53/3 stay [63] 5/19 5/22 33/14 30/3 30/22 31/18 54/7 57/12 61/1 stayed [3] 12/19 46/22 32/4 32/6 32/13 sounds [1] 12/25 33/25 40/19 section [3] 10/14 40/19 44/17 46/12 source [1] 57/11 stays [2] 31/8 28/22 30/24 55/19 speak [6] 2/12 2/14 31/10 security [1] 44/3 short [3] 20/19 5/5 5/8 25/25 56/2 step [3] 21/22 seek [2] 16/3 38/9 32/21 34/4 speaking [3] 2/11 44/22 57/6 seeking [9] 8/8 shorter [1] 55/8 2/21 2/24 still [1] 50/1 14/2 14/5 14/10 shortly [1] 7/22 speaks [2] 5/9 22/4 stop [1] 27/8 14/19 14/20 14/21 show [2] 4/21 14/2 special [3] 5/11 straight [1] 15/5 14/22 15/1 showing [3] 15/13 44/3 54/4 strategy [2] 34/17 seems [1] 32/25 53/6 54/13 specific [3] 5/18 34/17 selected [1] 43/3 shown [1] 31/8 5/19 9/5 streamline [1] selective [1] 50/23 sides [1] 61/1 specifies [3] 3/11 47/14 sense [11] 18/6 significant [2] 3/14 13/8 Street [2] 1/17 22/7 24/14 24/16 54/18 55/9 specify [4] 5/3 6/2 1/21 25/2 34/22 38/23 signing [1] 19/19 47/5 47/20 strong [1] 55/12 40/25 42/6 46/15 similar [3] 16/12 spiritually [1] stronger [2] 24/8 50/11 18/7 37/25 16/4 24/10 sensibly [2] 47/1 similarly [1] 54/15 Square [1] 1/12 structure [2] 43/23 57/13 simple [2] 31/22 stand [1] 61/4 50/21 sent [1] 21/5 31/23 standard [6] 14/7 struggling [2] 19/1 sentence [33] 3/23 simply [23] 4/1 9/1 15/11 54/11 54/12 19/3 3/24 5/8 5/16 5/19 9/2 23/4 27/22 28/5 57/9 57/15 studied [1] 23/24 5/20 5/22 12/18 29/12 29/17 30/16 standing [5] 2/8 subject [8] 13/12 14/10 20/2 21/3 30/19 31/11 31/17 16/19 17/9 41/8 26/3 34/23 34/24 21/7 21/12 22/18 32/3 32/9 33/2 35/1 41/11 34/24 36/5 55/25 31/17 31/23 40/23 43/5 46/5 50/21 start [3] 3/6 24/9 62/8 42/4 42/5 43/6 51/7 52/11 53/2 43/23 submission [1] 43/11 43/24 44/1 53/15 started [1] 54/1 42/13 44/2 44/6 44/7 44/8 SIMPSON [7] 1/19 state [50] 8/8 submit [2] 39/9 44/11 44/11 44/16 2/5 28/8 28/10 17/20 17/21 21/12 42/13 50/19 54/19 59/19 28/12 35/5 61/8 22/13 23/6 23/7 submitted [1] 42/15 sentenced [6] 15/19 single [1] 8/12 23/7 23/9 23/9 subpoenaed [1] 15/20 21/11 37/24 sit [1] 49/17 23/11 23/11 23/12 24/22 43/13 55/11 sitting [1] 53/9 23/18 28/3 41/14 subsequent [1] sentences [7] 6/15 situation [6] 7/20 43/5 43/12 43/15 32/17 20/7 35/3 36/13 28/1 30/15 31/2 47/15 47/17 48/19 subsidiary [1] 51/9 36/16 48/11 48/12 31/3 42/6 48/22 51/3 51/9 substantive [8] sentencing [1] 8/9 six [2] 8/20 9/10 51/19 51/20 52/11 10/25 11/19 11/20 separate [1] 51/6 slam [1] 14/4 52/14 58/13 58/14 11/23 12/12 35/13 serial [1] 36/2 sole [1] 33/23 58/14 58/22 58/23 37/5 52/3 seriatim [3] 16/11 solely [1] 35/21 58/24 58/25 59/4 substitute [1] 51/8 17/14 33/2 somebody [2] 33/5 59/4 59/5 59/6 59/7 suffer [1] 16/3 serve [1] 6/17 39/25 59/17 59/18 59/22 sufficient [4] serves [1] 6/12 somehow [1] 57/8 59/22 59/24 60/3 14/25 15/2 52/14 Service [10] 24/20 someone [3] 13/18 60/8 60/9 60/9 55/12 24/25 25/3 25/18 25/1 39/20 stated [6] 4/7 6/15 suggesting [2] 60/2 25/22 26/14 45/19 sometimes [5] 11/22 36/11 39/15 51/17 60/6 45/23 45/24 60/2 11/24 31/11 34/3 52/8 suggests [3] 8/14 set [30] 13/1 13/9 34/4 statement [2] 15/23 9/24 57/9 13/14 14/16 15/7 somewhat [1] 10/12 19/20 Suite [1] 1/21 16/18 17/13 21/6 soon [6] 21/20 statements [2] summary [3] 2/18 21/16 27/17 28/25 24/10 24/15 31/18 36/16 42/16 3/7 14/11 30/22 30/25 32/6 42/14 42/14 states [12] 1/1 1/9 superfluous [1] 32/16 32/17 33/3 sooner [3] 12/15 22/22 30/3 30/13 41/25 38/19 39/1 39/4 35/14 38/14 43/14 45/14 45/22 supervise [3] 21/7 40/6 42/7 49/4 sorry [8] 4/11 47/10 53/12 53/16 21/11 22/5 50/14 53/1 55/13 23/22 30/1 34/12 59/17 supervising [3]
supervising... - without 74 109a therefore [2] 21/5 types [6] 40/7 uses [1] 3/14 S 62/8 43/14 43/24 47/3 supervising... [3] thinking [3] 21/23 52/13 54/17 V 23/4 48/4 49/3 26/15 45/13 typical [1] 7/15 VA [1] 1/18 supplement [1] though [3] 17/12 vacate [4] 14/12 48/18 24/23 32/20 U 16/8 17/5 27/9 supplemental [1] thought [4] 19/18 U.S [12] 1/20 1/24 vacated [3] 8/22 57/25 36/20 42/20 61/2 21/2 24/16 24/18 16/18 54/7 support [2] 4/11 thoughts [1] 26/19 24/23 25/11 40/18 vacating [1] 53/15 10/4 three [3] 9/10 41/1 41/4 45/23 vacatur [16] 14/1 suppose [1] 11/18 56/25 58/4 51/8 14/2 14/6 14/14 supposed [2] 33/8 timely [3] 35/2 unambiguous [2] 14/19 14/22 14/25 60/2 54/19 54/20 29/4 41/21 16/6 52/25 53/5 supremacy [1] 28/3 times [4] 1/12 unanimously [1] 54/6 54/14 54/16 Supreme [6] 4/7 24/17 29/18 39/7 40/4 57/9 57/14 57/15 4/20 33/25 43/4 timing [7] 11/11 unchallenged [1] vaguely [1] 9/4 43/9 52/9 11/25 15/17 20/5 9/1 valid [1] 39/14 sure [6] 14/9 18/22 27/4 27/15 59/14 under [23] 2/7 3/10 variety [1] 20/21 36/23 54/2 60/16 to make [1] 14/19 13/7 16/2 16/4 18/7 venue [1] 39/16 60/25 today [11] 2/16 22/24 23/8 24/24 verb [1] 3/17 surprise [2] 23/10 2/22 2/25 26/1 26/6 27/6 28/18 31/17 vexing [1] 19/6 57/21 26/21 40/9 46/2 34/8 38/18 44/18 Vialva [2] 20/17 suspends [1] 8/4 53/21 56/17 56/17 51/5 51/25 53/4 38/1 sustained [1] 40/23 today's [1] 2/9 53/5 54/16 55/6 view [13] 6/22 Sutherland [1] 4/12 together [2] 6/16 57/2 57/9 16/23 18/3 21/19 sympathetic [2] 27/21 undercut [1] 33/2 22/8 22/9 22/10 39/17 39/17 token [2] 32/4 55/3 underinclusive [1] 27/18 32/3 37/13 tomorrow [1] 26/5 22/12 40/20 44/18 60/23 T tonight [2] 60/21 underlying [2] talk [2] 22/14 61/3 34/22 39/12 W 23/10 top [1] 22/8 understands [1] wake [2] 6/20 22/10 talked [1] 19/16 topic [1] 12/6 14/3 warden [2] 32/13 talking [5] 7/14 totally [2] 9/1 understood [4] 38/2 32/17 11/25 20/5 54/22 23/15 45/9 49/24 57/13 Washington [2] 1/4 54/23 touched [1] 12/6 unending [1] 55/8 1/25 talks [1] 26/14 Tower [1] 1/12 unexceptional [2] watch [1] 25/12 tangentially [1] transcript [3] 1/8 30/9 30/11 way [10] 4/5 4/6 38/22 41/13 62/4 unfettered [1] 6/6 7/18 15/2 15/5 task [1] 37/2 transfer [1] 44/17 UNGVARSKY [3] 1/16 18/19 18/21 35/8 tasked [2] 48/4 transference [4] 1/17 2/4 41/6 60/10 49/2 22/4 22/7 22/15 unique [6] 34/1 ways [2] 22/25 Tatel [3] 19/14 22/19 34/1 36/25 37/22 47/13 19/18 51/12 transferred [3] 42/1 52/11 weeks [2] 57/18 Tatel's [3] 18/17 24/12 41/5 45/6 uniquely [1] 34/10 58/1 20/12 51/11 translatable [1] UNITED [9] 1/1 1/9 weight [1] 10/9 technical [1] 40/25 50/21 22/22 30/3 43/14 Welcome [1] 2/6 technically [2] translate [2] 51/8 45/13 53/12 53/15 western [4] 1/20 24/18 24/22 52/6 59/17 25/12 37/14 37/24 technological [1] translation [1] unius [1] 30/8 westerns [1] 45/14 62/9 48/19 University [1] 1/14 Westlaw [2] 26/7 telephone [1] 23/24 treatise [1] 8/13 unless [4] 33/24 26/9 telephones [1] 2/10 trial [3] 24/21 38/9 49/23 52/21 what's [2] 23/3 TELEPHONIC [1] 1/8 48/25 49/16 unlike [1] 48/5 27/18 telling [3] 10/19 triggered [3] 21/3 unquote [2] 19/17 whenever [7] 29/3 52/5 53/3 29/8 34/8 20/10 30/13 32/3 33/19 tenable [1] 3/22 troubling [1] 10/12 unreasonable [1] 33/23 45/13 52/6 tenet [2] 4/3 4/22 true [3] 7/22 9/16 60/14 who's [2] 2/21 term [4] 3/14 17/22 62/4 up [13] 7/9 12/10 23/24 31/8 43/6 try [4] 7/5 26/14 25/14 26/7 39/7 whole [1] 3/22 terminates [1] 36/1 46/1 52/6 41/17 42/10 44/8 Wilkins [3] 15/22 terms [3] 28/18 trying [3] 35/2 46/11 46/22 47/21 19/25 20/13 35/1 42/9 50/16 60/14 51/10 53/11 Wilkins' [1] 19/19 Terra [2] 24/12 turn [6] 2/12 14/1 upheld [1] 47/13 WILLIAM [3] 1/5 2/3 24/13 30/4 41/16 42/10 upon [8] 9/15 9/18 28/12 Terre [1] 24/3 42/25 10/7 10/24 12/19 win [1] 17/12 tested [2] 47/10 two [7] 3/20 16/11 13/2 29/1 51/16 wish [1] 14/6 47/12 17/10 39/11 56/7 urge [1] 16/9 within [7] 12/2 textual [1] 48/2 57/18 58/1 use [1] 59/17 20/2 47/16 48/2 theory [1] 18/12 type [4] 14/21 used [4] 22/16 50/23 57/18 58/1 thereafter [1] 7/22 43/12 49/1 55/2 22/18 29/18 43/7 without [2] 25/21
without... - ZOHRA 75 110a W without... [1] 38/8 woman [1] 24/4 Wonderful [1] 3/2 wondering [4] 13/17 13/18 39/2 40/20 Woodard [1] 15/18 word [3] 18/5 20/8 47/25 words [3] 21/5 38/17 45/13 work [2] 6/11 23/21 workable [2] 46/19 47/1 worked [2] 24/7 26/14 works [2] 24/7 25/20 worth [1] 11/15 write [2] 31/22 31/23 written [1] 23/9 wrong [1] 57/10 wrote [1] 31/24 Y year [3] 8/20 34/5 34/6 years [5] 31/8 42/5 47/6 55/10 55/11 yield [1] 55/9 York [1] 1/12 Z zero [1] 10/9 ZOHRA [2] 1/14 2/4