UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) In the Matter of the ) Federal Bureau of Prisons’ Execution ) Protocol Cases, ) ) LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC) ) THIS DOCUMENT RELATES TO: ) ) Bernard v. Barr, 20-cv-0474 ) ) Bourgeois v. U.S. Dep’t of Just., 12-cv-782 ) )
MEMORANDUM OPINION
Plaintiffs Brandon Bernard and Alfred Bourgeois are scheduled to be executed on
December 10th and 11th respectively. Both Plaintiffs, who were sentenced to death in Texas
federal district court, have moved for a preliminary injunction barring their executions from
proceeding as scheduled. Plaintiffs argue that in failing to provide them with a ninety-one day
notice of their executions pursuant to Article 43.141(c) of the Texas Code of Criminal Procedure,
Defendants violated § 3596(a) of the Federal Death Penalty Act (FDPA), which requires federal
executions to be carried out “in the manner prescribed by the law of the State in which the
sentence was imposed.” Bernard received fifty-five days’ notice, and Bourgeois received
twenty-one days’ notice.
For the reasons set forth below, the court finds that Defendants violated § 3596(a) of the
FDPA, but that Plaintiffs have failed to demonstrate irreparable harm arising out of that statutory
violation. Thus, Plaintiffs’ motion for preliminary injunction will be DENIED.
1 BACKGROUND
This court and the U.S. Court of Appeals for the District of Columbia Circuit have set
forth the facts of this case in prior opinions, and the court will therefore confine the facts here to
those relevant to Plaintiffs’ motion.
I. Procedural History
On July 25, 2019, after considering the matter for eight years, the Bureau of Prisons
(BOP) announced a new execution protocol (the 2019 Protocol) using the barbiturate
pentobarbital for carrying out federal death sentences, along with a notice that the Government
intended to execute Bourgeois on January 13, 2020. See Press Release, Dep’t of Justice, Federal
Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019),
https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-
decade-lapse. Shortly thereafter, Bourgeois, along with four other plaintiffs who were at that
time scheduled to be executed in December 2019 and January 2020, sought a preliminary
injunction barring their respective executions until their challenges to the 2019 Protocol had been
fully litigated.
The court granted a preliminary injunction, finding that Bourgeois and the other plaintiffs
were likely to succeed on the merits of their claim that the 2019 Protocol violates the FDPA, that
they would suffer irreparable harm in the absence of relief, and that the equities tipped in the
Plaintiffs’ favor. (ECF No. 50.) In February 2020, Bernard filed a complaint seeking
declaratory and injunctive relief, which was consolidated with the master case.
On April 7, 2020, a divided panel of the D.C. Circuit vacated the preliminary injunction.
See In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020). In
a per curiam opinion joined by Judges Katsas and Rao, with Judge Tatel dissenting, the Court
2 held that the plaintiffs’ FDPA claim failed on the merits. See id. at 112 (per curiam). Judges
Katsas and Rao reached this conclusion for different reasons, explained in separate concurrences.
See id. at 113–21 (Katsas, J., concurring); id. at 129–33 (Rao, J., concurring).
In light of the D.C. Circuit’s decision, Plaintiffs in the consolidated action filed an
Amended Complaint on June 1, 2020, alleging in part, that the 2019 Protocol violates the FDPA
by failing to comply with state execution protocols and procedures, including those codified in
state law. (ECF. No. 92, ¶¶ 143–49.)
On September 20, 2020, the court granted summary judgment in favor of Defendants as
to Plaintiffs’ FDPA claims. (See ECF No. 261.) In accordance with the D.C. Circuit’s April 7
Opinion, the court found that while the FDPA required Defendants to adhere to the level of detail
prescribed in state laws and regulations governing executions, Plaintiffs had failed to identify a
live controversy or actual disagreement with respect to their FDPA claim. (Id. at 27, 30.) Rather
than promptly appealing the court’s decision to the D.C. Circuit, Plaintiffs moved to alter or
amend the judgment on the FDPA claim, (ECF No. 298), which the court denied, (ECF No. 305).
On October 16, 2020, Defendants scheduled Bernard’s execution for December 10, 2020,
providing him fifty-five days’ notice. (ECF No. 296.)
Given Bernard and plaintiff Orlando Hall’s impending executions, the D.C. Circuit set an
expedited briefing schedule and heard oral argument on November 16, 2020. To avoid any
jurisdictional concerns during the pendency of the appeal, Plaintiffs moved for the entry of final
judgment in this court, which was entered on November 16, 2020. (ECF Nos. 313, 315.)
The Court of Appeals issued a decision two days later, holding in relevant part that this
court did not err in granting summary judgment for Defendants on Plaintiffs’ FDPA claim,
agreeing with this court’s conclusion that “there was no conflict in this case, either because the
3 government had committed to complying with the state statutes at issue or because no Plaintiff
had requested to be executed in accordance with them.” In re Fed. Bureau of Prisons’ Execution
Protocol Cases, No. 20-5329, 2020 WL 6750375, at *11 (D.C. Cir. Nov. 18, 2020) (citing ECF
No. 261 at 27–28). The D.C. Circuit declined “to engage in a line-drawing exercise about
whether a statute setting the time of execution is a procedure that implements ‘the sentence in the
manner prescribed by the law of the State in which the sentence is imposed.’” Id. (quoting 18
U.S.C. § 3596(a)). But because the Court found that this court erred in dismissing Plaintiffs’
Eighth Amendment claims, it remanded the case.
Hall was executed on November 19, 2020. On November 20, 2020, Defendants
scheduled Bourgeois’ execution for December 11, 2020, providing him twenty-one days’ notice.
(ECF No. 330.)
II. Plaintiffs’ Supplemental Complaint and Motion for Preliminary Injunction
Bernard and Bourgeois notified the court in the parties’ November 24, 2020 joint status
report that they planned to move for a preliminary injunction and sought leave to file a
supplemental complaint on the grounds that “the setting of their execution dates conflicts with
Texas death penalty procedures that the Government is required to follow under the [FDPA].”
(ECF No. 332.) Over Defendants’ opposition, the court granted Plaintiffs leave to file a
supplemental complaint addressing only the legality of their scheduled execution dates and
issued an expedited briefing schedule on their motion for preliminary injunction so as “to
provide the court sufficient time to rule on the pending motions, to hold any hearings that may be
required, and to allow adequate time for appeal.” (ECF No. 333.)
On November 25, 2020, Bernard and Bourgeois filed their Supplemental Complaint and
motion for preliminary injunction, alleging a single-count violation of the FDPA. (ECF
4 No. 334.) Plaintiffs seek to “prevent Defendants from executing them in violation of the FDPA,”
(ECF No. 336, Pl. Mem. at 4), arguing that Defendants violated their rights under the FDPA by
failing to provide ninety-one days’ notice of their executions in accordance with
Article 43.141(c) of the Texas Code of Criminal Procedure. (Id. ¶ 16.) They argue that without
injunctive relief, they will be deprived “of their interests in preparing for their executions, in
fully litigating their pending claims, and in their lives.” (Id. at 9.)
DISCUSSION
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008) (citations omitted); John Doe Co. v.
Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). The D.C. Circuit has
traditionally evaluated claims for injunctive relief on a sliding scale, such that “a strong showing
on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d
388, 392 (D.C. Cir. 2011).
I. Likelihood of Success on the Merits
Plaintiffs contend that in failing to provide them ninety-one days’ notice of their
executions, Defendants have violated Article 43.141(c) of the Texas Code of Criminal Procedure
and, by extension, the FDPA’s requirement that the “implementation of [a death] sentence” be
“in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C.
§ 3596(a). The court finds that the Plaintiffs have demonstrated a likelihood of success on the
merits of this claim.
5 A. Forfeiture and Res Judicata
As a threshold matter, Defendants argue that Plaintiffs are unlikely to succeed on their
Article 43.141(c) claim because it is barred by res judicata or has otherwise been waived or
forfeited. In their view, Plaintiffs could have presented an Article 43.141(c) claim before this
court entered summary judgment on September 20, 2020 or final judgment on November 16,
2020.
These procedural arguments are unpersuasive. The court found Plaintiffs’ prior FDPA
claims presented no live controversy either because the government had committed to complying
with the state statutes at issue or because no plaintiff had requested to be executed in accordance
with them—a view shared by the D.C. Circuit. See Execution Protocol Cases, 2020 WL
6750375, at *11 (“As we agree with the district court that there is no live controversy, we find it
unnecessary here to engage in a line-drawing exercise about whether a statute setting the time of
execution is a procedure that implements ‘the sentence in the manner prescribed by the law of
the State in which the sentence is imposed’” (quoting 18 U.S.C. § 3596(a)). And like Plaintiffs’
other FDPA claims, a claim premised on Article 43.141(c) would not have presented a live
controversy at the time the court issued its summary judgment ruling because Plaintiffs had not
yet received notice of their executions. Neither the Plaintiffs nor the court had any reason to
anticipate that Defendants would not have conformed to the state law execution requirement,
particularly after the court stated that Defendants were required to adhere to such laws. (See
ECF No. 261 at 30–31 (“Putting aside the question of whether agreeing to execute an inmate
after 6 p.m. can be characterized as an act of “grace,” Defendants must comply with the Texas
provision because it is incorporated into the FDPA by virtue of D.C. Circuit precedent.”).); see
6 also Execution Protocol Cases, 955 F.3d at 133 (Rao, J., concurring) (“[T]he federal government
is [] bound by the FDPA to follow the level of detail prescribed by state law.”).
Thus, res judicata does not apply because Plaintiffs’ Article 43.141(c) claim could not
have been raised earlier. See Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (“Res judicata
does not preclude claims based on facts not yet in existence at the time of the original action.”).
Indeed, it is questionable whether there has been a final judgment on the merits of Plaintiffs’
state-law FDPA claims as those claims were dismissed for failure to present a live controversy.
See Capitol Hill Grp. v. Pillsbury, Winthrop, Show, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir.
2009) (explaining that a claim is only barred by res judicata if, inter alia, “there has been a final,
valid judgment on the merits”); see also Jackson v. City of Cleveland, 925 F.3d 793, 807 (6th
Cir. 2019) (“Generally, a claim may not be adjudicated on its merits unless it is ripe.”); Crown
Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 n.3 (10th Cir. 2003) (“A
finding [that a] claim is unripe does not constitute an adjudication on the merits for purposes of
claim preclusion.”); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 3532.1 (1984) (“[I]t should be clear that dismissal for lack of ripeness is not a
decision on the merits for purposes of preclusion by judgment.”).
Furthermore, Defendants provide no authority for the proposition that a plaintiff has
forfeited, or is otherwise barred from asserting, an unripe or premature claim when that claim
eventually presents a live controversy.
The court is also not convinced that Plaintiffs have waived their Article 43.141(c) claim.
Bernard raised the Article 43.141(c) claim on appeal to the D.C. Circuit, but that claim was never
addressed, likely due to the truncated time frame and limited scope of the appeal. See Execution
Protocol Cases, 2020 WL 6750375, at *11 (“In this expedited process, we are particularly
7 mindful to decide no more than what is necessary to resolve the appeal.”). Therefore, the court
does not see how the Article 43.141(c) claim could fairly be viewed as waived. Accord Eli Lilly
& Co. v. Home Ins. Co., 794 F.2d 710, 717 (D.C. Cir. 1986) (“The rule in this circuit is that
litigants must raise their claims on their initial appeal and not in subsequent hearings following a
remand.”).
Even assuming Plaintiffs’ current FDPA claim could be precluded on the basis of the
law-of-the-case or waiver doctrines, the court is not willing to do so given the stakes involved,
the pace at which the government is moving to carry out these executions, the interest in
promptly adjudicating claims on the merits, and the limited prejudice to Defendants. See
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739–40 (D.C. Cir. 1995) (“Law of the case is a
prudential rule rather than a jurisdictional one . . . [which] ‘merely expresses the practice of
courts generally to refuse to reopen what has been decided, not a limit to their power’” (quoting
Messenger v. Anderson, 225 U.S. 436, 444 (1912)); id. at 740 (“For both core law-of-the-case
preclusion and its diluted waiver variant, the bases for exceptions are broader than for
conventional issue or claim preclusion.”).
Defendants also contend that the court erred in granting Plaintiffs leave to file a
supplemental complaint. The crux of Defendants’ argument appears to be that Plaintiffs cannot
supplement their complaint after the entry of final judgment without seeking relief from that
judgment—thus, in their view, “the proper course for Bernard and Bourgeois to seek to reinsert
Tex. Code Crim. Proc. Art. 43.141(c) into this litigation would have been to file a Rule 60(b)
motion for relief from judgment or, at a minimum, to file another Rule 59(e) motion to alter or
amend the Court’s final judgment on the FDPA claim.” (ECF No. 337, Def. Opp’n at 13.)
8 Fed. R. Civ. P 15(d) “permit[s] a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” The rule “is intended to give the court broad discretion in allowing a
supplemental pleading.” Fed. R. Civ. P. 15(d) advisory committee’s note to 1963 amendment.
Plaintiffs’ Article 43.141(c) claim involves conduct that occurred after they filed their Amended
Complaint on June 1, 2020 and that is clearly relevant to the ongoing federal execution protocol
litigation. Because the court retains jurisdiction over the consolidated action on remand from the
D.C. Circuit, the court determined that granting leave to file a supplemental complaint was
appropriate, particularly given the tight deadline for ruling on the requested injunctive relief.
Furthermore, it is not unprecedented for a court to allow the filing of a supplemental complaint
after the entry of judgment or on remand after an appeal. See, e.g., Griffin v. Cnty. Sch. Bd. of
Prince Edward Cnty., 377 U.S. 218, 226–27 (1964) (holding that plaintiffs could file a
supplemental complaint challenging conduct occurring after original injunction granted); 6A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1509 (3d ed. 1998)
(“A motion to file a supplemental pleading also may be made on remand after an appeal.”)
Permitting Plaintiffs to supplement their complaint does not substantially prejudice
Defendants, particularly since the court ultimately denies the injunctive relief sought therein.
See Banks v. York, 448 F. Supp. 2d 213, 214 (D.D.C. 2006) (“Leave to file a supplemental
complaint is left to the Court’s discretion, and should be freely granted where such
supplementation will promote the economic and speedy disposition of the controversy between
the parties, will not cause undue delay of trial, inconvenience and will not prejudice the rights of
any other party.” (internal quotation marks omitted)). It is in the interest of all parties to this
9 litigation—and the public—to have the issues resolved promptly on the merits before an
execution. Thus, the court exercised its “broad discretion” accordingly.
B. Article 43.141(c)
The court finds that Plaintiffs are likely to succeed on the merits of their claim. In failing
to provide Plaintiffs ninety-one days’ notice of their executions, Defendants have violated Texas
Code of Criminal Procedure Article 43.141(c) and, by extension, § 3596(a) of the FDPA.
The court has already set forth its analysis of FDPA § 3596(a) in its September 20, 2020
Memorandum Opinion. (See generally ECF No. 261 at 26–31.) That provision requires that in
carrying out an execution, “the Attorney General shall release the person sentenced to death to
the custody of a United States marshal, who shall supervise implementation of the sentence in
the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C.
§ 3596(a). The controlling D.C. Circuit opinion (written by Judge Rao) holds that the FDPA
requires the government to carry out executions consistent with the level of detail provided by
state laws and regulations. See Execution Protocol Cases, 955 F.3d at 133 (Rao, J., concurring);
see also id. at 146 (Tatel, J., dissenting) (explaining that the FDPA, “best understood, requires
federal executions to be carried out using . . . procedures set forth not just in [state] statutes and
regulations, but also in protocols issued by state prison officials”). This includes details such as
the time, date, place, and method of execution, which is precisely the type of state statute at issue
here. Id. at 134 (quoting Implementation of Death Sentences in Federal Cases, 58 Fed. Reg.
4,898, 4,901–02 (Jan. 19, 1993)).
Article 43.141 of the Texas Code of Criminal Procedure provides that an order must be
entered setting the execution date of a “condemned person,” that such an order must be sent to
“the attorney who represented the condemned person” not later than the second business day
10 after the order is entered, and that “[a]n execution date may not be earlier that the 91st day after”
the order is entered. Tex. Code Crim. Proc., Art. 43.141(b)–(c). The Texas Court of Criminal
Appeals has unambiguously held that “notice of an execution date must be given to capital
defendants” and “all executions must be set at least ninety-one days in advance.” Battaglia v.
State, 537 S.W.3d 57, 67 n.53 (Tex. Crim. App. 2017) (citations omitted) (emphasis added);
accord Murphy v. Collier, 139 S. Ct. 1475, 1479–80 (2019) (citing Tex. Code Crim. Proc.,
Art. 43.141(c) (Alito, J., dissenting from grant of application for stay on other grounds) (“Under
Texas law, a new death warrant may be issued, but such a warrant may not set a date less than 90
days in the future.”).
Plaintiffs were sentenced to death in Texas federal district court. Thus, it is undisputed
that Texas law applies. And since Defendants have only provided Bernard a fifty-day-notice and
Bourgeois a twenty-one-day notice of execution, Defendants have violated the FDPA.
Defendants argue that the court’s interpretation is inconsistent with that of several
Circuits, which have interpreted the D.C. Circuit’s April 2020 Opinion to govern only the
procedures that “implement death.” See, e.g., United States v. Vialva, 976 F.3d 458, 462 (5th
Cir. 2020) (finding that Article 43.141(c)’s ninety-one day notice requirement is not incorporated
by the FDPA); LeCroy v. United States, 975 F.3d 1192, 1198 (11th Cir. 2020) (finding that
§ 3596(a) “does not extend to ensuring a lawyer’s presence at execution”); United States v.
Mitchell, 971 F.3d 993, 995–97 (9th Cir. 2020) (“[W]e hold that procedures that do not
effectuate death fall outside the scope of 18 U.S.C. § 3596(a).”); Peterson v. Barr, 965 F.3d 549,
554 (7th Cir. 2020) (concluding that § 3596(a) “cannot be reasonably read to incorporate every
aspect of the forum state’s law regarding execution procedure” and finding that state law
governing execution witnesses falls outside the scope of the FDPA). The court is not bound by
11 other Circuits’ interpretation of D.C. Circuit precedent and cannot square those Circuits’ reading
with the language in either Judge Rao or Judge Tatel’s opinions.
Judge Rao explained that “the ordinary meaning of ‘implementation of the death
sentence’ includes more than ‘inflicting the punishment of death’ . . . [it includes] additional
procedures involved in carrying out the sentence of death.” Execution Protocol Cases, 955 F.3d
at 133 (“the term ‘implementation’ is commonly used to refer to a range of procedures and
safeguards surrounding executions”). She also explained that “implementation” would include
details such as the time, date, place, and method of execution, all of which can fairly be read to
include the state statutes Plaintiffs have identified. Id. at 134 (quoting Implementation of Death
Sentences in Federal Cases, 58 Fed. Reg. 4,898, 4,901–02 (Jan. 19, 1993)).
Judge Tatel’s dissent appears to acknowledge that the federal government need not
follow every execution procedure in state protocols. Id. at 141. But he did not address whether a
de minimis exception applied to procedures in the state statutes and regulations. See id.
The D.C. Circuit was presented with this court’s reading of the April 2020 Opinion and
declined to correct or revise it. 1 The court is bound by the Circuit’s ruling and the controlling
precedent at issue was clear: the FDPA requires the BOP to adhere to state laws and regulations
governing executions which “include details such as the time, date, place and method of
execution.” See id. at 134 (Rao, J., concurring) (quoting Implementation of Death Sentences in
1 Judges Tatel, Katsas, and Rao have all served on panels addressing this court’s interpretation of their prior Execution Protocol opinions, but none have taken issue with this court’s reading of those opinions. See Order, In Re Fed. Bureau of Prisons’ Execution Protocol Cases, No. 20- 5285 (D.C. Cir. Sept. 21, 2020) (Henderson, Tatel, Katsas, JJ.); id., 2020 WL 6750375 (Millett, Pillard, Rao, JJ.).
12 Federal Cases, 58 Fed. Reg. 4,898, 4,901–02 (Jan. 19, 1993)). Since Defendants did not adhere
to Texas law governing the time and date of an execution, they have violated the FDPA.
Defendants also argue that Article 43.141(c) applies only to state law officials, not to
federal officials implementing a death sentence imposed by a federal court. The court reached a
similar conclusion regarding a Georgia law providing “a judge of the superior court of the county
where the case was tried” the power to reschedule an execution if certain conditions are met.
(See ECF No. 263 (citing Ga. Code Ann. § 17-10-40(a).) But whereas the Georgia statute clearly
outlined the powers of a particular state official, Article 43.141(c) is more ambiguous; it states
that “[a]n execution date may not be earlier than the 91st day after the date the convicting court
enters the order setting the execution date.” While Defendants are correct that in the federal
system, the convicting court does not set the execution date, this provision can be read in
harmony with the FDPA to require ninety-one-days’ notice. 2
II. Irreparable Harm
“A finding of a statutory violation does not automatically require the court to issue an
injunction.” Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, (D.D.C. 2000) (citing
Weinberger v. Romero–Barcelo, 456 U.S. 305, 313 (1982) (“The grant of jurisdiction to ensure
compliance with a statute hardly suggests an absolute duty to [enjoin the conduct] under any and
all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant
an injunction for every violation of law.”)). Plaintiffs must also demonstrate irreparable harm
2 In any event, this is a distinction without a difference—the court has found that Plaintiffs have failed to demonstrate irreparable harm. The court reached the same conclusion regarding Georgia Code § 17-10-40(a) (which, if applicable, would have entitled plaintiff to a rescheduled execution date): “It is not clear how a violation of this statute constitutes irreparable harm . . . [since] a violation of § 17-10-40 in no way bars the Government from setting a new execution date.” (ECF No. 263 at 4–5 (internal quotation marks and citations omitted).) 13 that is “certain and great, actual and not theoretical, and so imminent that there is a clear and
present need for equitable relief to prevent irreparable harm,” and it “must be beyond
remediation.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016)
(citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006))
(internal quotation marks and brackets omitted).
Given the Supreme Court’s repeated vacatur of this court’s prior injunctions and the D.C.
Circuit’s finding that Plaintiffs were not entitled to injunctive relief despite Defendants’ violation
of the Food, Drug, and Cosmetic Act, see 2020 WL 6750375, at *10, the court cannot find that
Plaintiffs have demonstrated irreparable harm to warrant injunctive relief. The Supreme Court
has made clear that the prospect of an inmate being executed prior to their claims being fully
litigated will not serve as a basis for injunctive relief. (See Pl. Mem. at 9); see also Barr v. Lee,
140 S. Ct. 2590 (2020) (vacating this court’s preliminary injunction and permitting executions to
proceed notwithstanding pending claims); Barr v. Purkey, No. 20A10, 2020 WL 4006821 (U.S.
July 16, 2020) (same); Barr v. Hall, No. 20A99, 2020 WL 6798770 (U.S. Nov. 19, 2020) (same).
And while “[a] prisoner under a death sentence remains a living person and consequently
has an interest in his life” pending his execution, See Ohio Adult Parole Auth. v. Woodard, 532
U.S. 272, 288 (1998) (O’Connor, J. concurring in part and concurring in the judgment),
providing fewer days’ notice than Plaintiffs may be entitled does not rise to the level of
irreparable harm when Plaintiffs have been under a death sentence for well over a decade, have
received the minimum twenty-day notice required by federal law, 28 C.F.R. § 26.4(a), and have
14 been given the fifty-day notice set forth in the 2019 Execution Protocol, (see ECF No. 171,
Admin. R. at 1093). 3
Plaintiffs also have not been deprived of the opportunity to seek clemency. (See Pl.
Mem. at 8). Both have already submitted clemency petitions, and the decision whether to grant
those petitions now rests with the President. And while the court is certainly sympathetic to the
argument that such petitions would likely receive more favorable treatment from the incoming
administration, Plaintiffs have not provided authority suggesting that an injunction may be issued
on this basis.
Having found that Plaintiffs have failed to establish the requisite irreparable harm, the
court need not address the remaining factors for injunctive relief. See Wis. Gas Co. v. F.E.R.C.,
758 F.2d 669, 674 (D.C. Cir. 1985) (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974) (“The
basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy
of legal remedies.”).
3 Bourgeois was initially notified in July 2019 of a January 2020 execution date and therefore has been on notice of the government’s intent to execute him for sixteen months. This is consistent with the 2019 Execution Protocol which states that “[i]f the date designated [for an execution] passes by reason of a stay of execution, then a new date will be promptly designated by the Director of the BOP when the stay is lifted.” (Admin. R. at 1093 (internal citations omitted)). 15 CONCLUSION
Though Plaintiffs are likely to succeed on the merits of their claim, they are unable to
demonstrate that they have been irreparably harmed by Defendants’ failure to adhere to
Article 43.141(c) of the Texas Code of Criminal Procedure and, by extension, the FDPA.
Accordingly, Plaintiffs’ motion for a preliminary injunction will be DENIED. The court will
issue an order accordingly.
Date: December 6, 2020
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge