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In Their Filing Today No. 19A IN THE Supreme Court of the United States IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES JAMES H. ROANE, JR., et al., Applicants, v. WILLIAM P. BARR, ATTORNEY GENERAL, et al., Respondents. On Application for Stay EMERGENCY APPLICATION FOR A STAY OF MANDATE PENDING DISPOSITION OF PETITION FOR A WRIT OF CERTIORARI PIETER VAN TOL CATHERINE E. STETSON HOGAN LOVELLS US LLP Counsel of Record 390 Madison Avenue DANIELLE DESAULNIERS STEMPEL* New York, NY 10017 REEDY C. SWANSON HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5600 [email protected] * Admitted only in Maryland; practice super- vised by principals of the firm admitted in D.C. Counsel for Daniel Lewis Lee June 10, 2020 Additional counsel listed on inside cover JOSEPH W. LUBY ALAN E. SCHOENFELD ALEX KURSMAN STEPHANIE SIMON LYNNE KOLODINSKY WILMER CUTLER PICKERING FEDERAL COMMUNITY HALE AND DORR LLP DEFENDER OFFICE E.D. PA. 7 World Trade Center 601 Walnut Street New York, NY 10007 Suite 545 West (212) 230-8800 Philadelphia, PA 19106 (215) 928-0520 Counsel for Wesley Purkey Counsel for Alfred Bourgeois SHAWN NOLAN JON JEFFRESS TIMOTHY KANE KAISERDILLON PLLC DEVON PORTER 1099 Fourteenth Street, N.W. FEDERAL COMMUNITY 8th Floor West DEFENDER OFFICE E.D. PA. Washington, DC 20005 601 Walnut Street (202) 640-2850 Suite 545 West Philadelphia, PA 19106 (215) 928-0520 Counsel for Dustin Lee Honken PARTIES TO THE PROCEEDING Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Purkey, petitioners on review, were the plaintiffs-appellees below. William P. Barr, Attorney General, the U.S. Department of Justice; Timothy J. Shea, Acting Administrator, Drug Enforcement Administration; Michael Carva- jal, Director, Federal Bureau of Prisons; Nicole C. English, Assistant Director, Health Services Division, Federal Bureau of Prisons; Jeffrey E. Krueger, Regional Director, Federal Bureau of Prisons, North Central Region; T.J. Watson, Complex Warden, U.S. Penitentiary Terre Haute; William E. Wilson, M.D., Clinical Director, U.S. Penitentiary Terre Haute; Joseph McClain, United States Marshal, Southern District of Indiana; and John Does 1-X, individually and in their official capacities, are respondents on review. William P. Barr, Attorney General, the U.S. Department of Justice; Uttam Dhillon, (former) Acting Administrator, Drug Enforcement Administration; Michael Carvajal, Director, Federal Bureau of Prisons; Nicole C. English, Assistant Director, Health Services Division, Federal Bureau of Prisons; Jeffrey E. Krueger, Regional Director, Federal Bureau of Prisons, North Central Region; T.J. Watson, Complex Warden, U.S. Penitentiary Terre Haute; William E. Wilson, M.D., Clinical Director, U.S. Penitentiary Terre Haute; Joseph McClain, United States Marshal, Southern District of Indiana; and John Does 1-X, individually and in their official capacities, were the defendants-appellants below. (i) ii RELATED PROCEEDINGS There are several related proceedings, as defined in Supreme Court Rule 14.1(b)(iii). This case has previously been before this Court on the Government’s unsuc- cessful motion for a stay or vacatur of the District Court’s preliminary injunction. See Barr v. Roane, 140 S. Ct. 353 (2019) (mem.). A petition for certiorari is current- ly pending, docketed as No. 19-1348 (June 5, 2020). There are several related cases in the District Court that have been consoli- dated into the single master case from which this appeal originates. See Order, In re Fed. Bureau of Prisons’ Execution Protocol Cases, No. 19-mc-145 (D.D.C. Aug. 20, 2019), Dkt. #1 (“Dist. Dkt.”). Those related cases are: Roane v. Barr, No. 05-cv-2337 (D.D.C. filed Dec. 6, 2005); Robinson v. Barr, No. 07-cv-2145 (D.D.C. filed Nov. 28, 2007); Bourgeois v. U.S. Dep’t of Justice, No. 12-cv-782 (D.D.C. filed May 15, 2012); Fulks v. U.S. Dep’t of Justice, No. 13-cv-938 (D.D.C. filed June 21, 2013); Lee v. Barr, 19-cv-2559 (D.D.C. filed Aug. 23, 2019); Purkey v. Barr, No. 19-cv-3214 (D.D.C. filed Oct. 25, 2019); Holder v. Barr, No. 19-cv-3520 (D.D.C. filed Nov. 22, 2019); Bernard v. Barr, No. 20-cv-474 (D.D.C. filed Feb. 19, 2020); Nelson v. Barr, No. 20-cv-557 (D.D.C. filed Feb. 25, 2020). One of these related District Court cases previously resulted in two appeals to the D.C. Circuit, which were decided on July 6, 2012, and January 24, 2014. See Roane v. Leonhart, 741 F.3d 147 (D.C. Cir. 2014); Roane v. Tandy, No. 12-5020, iii 2012 WL 3068444 (D.C. Cir. July 6, 2012). Neither decision was appealed to this Court. iv TABLE OF CONTENTS Page PARTIES TO THE PROCEEDING ............................................................................... i RELATED PROCEEDINGS .......................................................................................... ii TABLE OF AUTHORITIES .......................................................................................... v OPINIONS BELOW ...................................................................................................... 4 JURISDICTION ............................................................................................................. 5 STATUTES INVOLVED ............................................................................................... 5 STATEMENT OF THE CASE ....................................................................................... 6 A. Statutory and Regulatory Background .................................................... 6 B. Factual and Procedural History ............................................................... 7 REASONS FOR GRANTING THE STAY .................................................................. 11 I. THERE IS A REASONABLE PROBABILITY THAT THIS COURT WILL GRANT CERTIORARI TO DETERMINE THE PROPER INTERPRETATION OF THE FDPA AND THE LEGALITY OF THE PROTOCOL ..................................................... 12 II. THERE IS A FAIR PROSPECT THAT THIS COURT WILL HOLD THAT THE D.C. CIRCUIT’S INTERPRETATION OF THE FDPA OR DECISION TO UPHOLD THE PROTOCOL WAS ERRONEOUS ..................................................................................... 16 III. PETITIONERS WILL SUFFER IRREPARABLE HARM AB- SENT A STAY .............................................................................................. 31 IV. THE BALANCE OF EQUITIES AND RELATIVE HARMS WEIGH STRONGLY IN FAVOR OF GRANTING A STAY ...................... 33 CONCLUSION ............................................................................................................. 36 APPENDIX A—United States Court of Appeals for the District of Columbia Cir- cuit’s Amended Order (June 8, 2020) ................................................................. 1a CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE v TABLE OF AUTHORITIES Page(s) CASES: Am. Bus. Ass’n v. United States, 627 F.2d 525 (D.C. Cir. 1980) ................................................................................ 27 Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993)............................................................................... 28 American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987)............................................................. 27, 28, 29, 30 Araneta v. United States, 478 U.S. 1301 (1986) .............................................................................................. 16 Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ............................................................................................ 21 Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................................................ 1, 12 Barr v. Roane, 140 S. Ct. 353 (2019) ....................................................................................... passim In re Bart, 82 S. Ct. 675 (1962) ................................................................................................ 33 Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980) .......................................................................... 27, 28 Bd. of Educ. of City of L.A. v. Super. Ct. of Cal., Cty. of L.A., 448 U.S. 1343 (1980) .............................................................................................. 16 Bucklew v. Precythe, 139 S. Ct. 1112 (2019) ................................................................................ 13, 28, 34 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) ................................................................................................ 14 California v. Am. Stores Co., 492 U.S. 1301 (1989) ........................................................................................ 16, 32 Chafin v. Chafin, 568 U.S. 165 (2013) ................................................................................................ 33 vi TABLE OF AUTHORITIES—Continued Page(s) Chamber of Commerce of U.S. v. Dep’t of Labor, 174 F.3d 206 (D.C. Cir. 1999) .......................................................................... 28, 29 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......................................................................................... 18, 27 Conkright v. Frommert, 556 U.S. 1401 (2009) ........................................................................................ 12, 33 Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ............................................................................................ 23 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.
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