honors may please accord i'm here on behalf mr donald middlebrooks i think this is a traditional not particularly complicated sufficiency of the pleadings case under bell atlantic versus twamley i think the issue is whether m pled facts that overcome the tennessee defense of ray's utica under tennessee law that mr middlebrooks is on death row matters to some extent where important human values are at stake even a slight change in circumstances may overcome raise you to kata cautions u s supreme court in whole women's fell from two thousand and sixteen but beyond that this is a case my best laid plans are going to address three things today st i want to quickly address the procedural history of this case dating back to the inception of lethal injection i'll do that quickly secondly then examining ra relation to that in regards to the facial challenge and in regards to the key question did after rock mons decision in two thousand and eighteen that pentobarbital was not a feasible alternative method of execution preclude a claim that pentobarbital was a feasible method of execution today in rd on the discuss when personal as applied th amendment challenges become right where they ripen repeatedly with every change and protocols or whether they only become right when the issue ceases to be hypothetical and when an execution day is actually sought so quickly the background in one thousand nine hundred and eighty record reflects this tennessee adopted lethal injection by two thousand it was a default method over the next two decades at least three different chemical combinations were employed five separate protocols were inactive and four different facial challenges gloss significantly reduces the sadat's the substantial risk and severe pain it would be inflicted by the three drug protocol and therefore only the one drug protocol can be  all of this gets rushed to trial the protocol is in january of eighteen by july of eighteen we are in trial i think the record reflects that we have boston auburn alabama twelve focal home and miami florida all who have to be deposed before trial so this is all going on in this rush base four days before trial the tennessee department of corrections amends a protocol again and remove record before us just recites that they testified that they could no longer obtain pentobarbital i think the underlying trial records a little bit more developed on that but their testimony was a cre would submit the basis for the tennessee supreme court's finding that pentobarbital was not proven by the plaintiffs to be a feasible alternative and on that ground and that ground alone we lost and so that brings us to the key question is that determination based on the testimony of the commissioner deputy commissioner that as of july two thousand eight hundred they no longer could obtain that orbital zephyr clude a suit today based on the current availability of pentobarbital and in answering that question i'd like to focus on a case that is in our brief white versus white yesterday in preparing for argument this case just stood out to me it involves alligators but it involves facts that are directly on point with our situation white is a tennessee supreme court decision from ninety four dollars and it recites the same standard that banks had set forth sixty years earlier and it creates reiterated fifteen years later and it says a raise judicata extends only to the facts an issue as a existed the time the judgment was rendered and again it observe that if the facts of change or new facts have occurred that may alter the legal rights or relation of the litigants a new suit may go forward that's the standard but the reason why stood out to me is it applies the standard in a situation it's really close or so in the early eighty's the husband disappeared thirty feet of water in louisiana he couldn't swim in the water was filled with alligators his body was never found his wife submitted he was dead and attempted to claim on the insurance policy life insurance case went to trial in one thousand nine hundred and eighty five dates are incredibly important there's only two of them nine hundred and eighty five the case went to trial and the jury was asked as of the conclusion of trial august of eighty five had the wife proven that her husband was dead and they concluded she had not proven he was dead five years later a new suit was made to claim the life insurance the new suit very interestingly said no new facts of all other than the husband has been found in five years but they said that's the only new fact curious though there was one other issue corps they're trying to claim on the life insurance they said issue litigated in the st trial on the issue alleging the present suit are not the same the st one was whether he was dead by august th of eighty five however now we have to decide whether he died before the insurance policy lapsed in one thousand nine hundred and eighty six and there is a new fact that a jury could consider which is that he has never been found alive i submit that that's legally  would mean that race to the cape it would be impossible women i don't think so your honor i think it is a valid concern and it's one of the reasons that i submit the suit such as this one should finally go forward on the merit s the analysis designed by the us supreme court is a comparative whole and it always begs us to question whether a new alternative or a newly available  didn't take much under tennessee law in light of a five year absence was enough but i think it's more important to look at buckelew which i think clarifies the standard and it says what we need to do is a prisoner may point to a well established protocol in another state as a potentially viable option that's a pleading requirement at this stage i would submit then the u s supreme court goes on and says of course in a case like that a court would have to  into the possibility that one state possessed a legitimate reason for declining to adopt that protocol that's a post complaint issue but i absolutely agree with your honor that some new facts must be included in the complain and i think we've included five paragraphs of the vermins related to two thousand and nineteen specifically i mean we've included more that go back and i think that all of those facts are significantly more than what was enough and white and in fact if you were to step back and just look at this case as i suggest actually we should have we pled it a feasible alternative under buckler let's not look at raised you to comics it's really a different issue have we pl conclusory and i to meet the conclusion obviously is that pentobarbital is presently available the facts that lead up to that are the united states attorney general saying it's widely available the united states bureau of prisons announcing they have a domestic supply and i'm looking at my complaint obviously some things have happened in two thousand and twenty that state the complaint but that it was being used regularly throughout two thousand pentobarbital that of course didn't do them any good intil import licenses became available we have argued are set forth in our complaint that import licenses now are available arizona nebraska both obtained import licenses and ohio has a application pending this of course goes back to the office of legal counsel opinion which said that the federal drug control act no longer could be used to restrict executions and that is i think what brings us to two incredibly important developments in u s supreme court will the st from july the twenty and october of two thousand and barbour says perking bar versus hall the s supreme court twice said effectively that the o l c opinion is correct and the federal drug control act does not apply to restrict executions and they permitted two executions to go forward with pento barbital overturning f t c a injunctions on execution so that makes clear that while years past the import of the o l c opinion was debatable it no longer is tennessee can import and that is a completely new fact today and then stuck and like you know when we talk to buckley says we have to point to an alternative use in another state we haven't pointed to a l term  pointed to the alternative that in bar versus lady the united states risa cream court recognized was the main day of state execution mainstay they discussed over one hundred executions without incident page of their opinion discussing its virtues so i respectfully submit that these u s supreme court developments coupled with the new facts that we've alleged in light of the fact that states can no guess now it's two thousand and twenty one so with that if i may i'll move on to the rightness of as applied challenge i think personal at method of execution cases are very rarely right under tennessee law the tennessee supreme court has made clear they do not like to engage in hypothetical litigation over methods of execution twice in the easier facial challenge arena they have rejected electrocution challenges as being an right because they said it's hypothetical that the alternative of execution will be used because it required some intervening event that frankly the state being unable to get a lethal injection drug before execution or electrocution would go forward of course of safety pleading they have trouble getting lethal injection drugs nonetheless the tennessee supreme court says that until they formally announce that they must execute someone in the electric chair which would happen twenty days before their electrocution by the way until they make that formal announcement on the eve of an execution the electric chair challenge right so i want to compare that if that's hypothetical of a type of federal that inmates or not who knows whether anyone will be killed in the electric chair let's talk about how hypothetical it is that any  inmate will be killed under any given protocol so we've had five different lethal injection protocols using three different variations of drugs that's just in tennessee it ok during the same time period that mr middlebrook has been on death row other states have either implemented or discussed implementing the firing squad hanging and nitrogen hypoxia so we have all of these different varieties of execution they're constantly being discussed injection you know i think there's two important issues there first remember these are things that have been with him for a while and they can get worse and they can get better medical science changes and we simply in one thousand nine hundred and ninety eight would not have no way or mr michael brooks condition would be i mean one might presume with age they might degenerate but sometimes mental disorders get better i'm not a doctor i'm just saying from experience one observes that these things go in two different directions and more importantly the medications we used to treat such disorders are forever evolving so again not speaking as a doctor but just as a lay person the medications that we would expect to try to use to overcome his seizure disorder in one thousand nine hundred and eighty eight versus two thousand and twenty one i'm going to suggest are radically different and therefore you know let's let's say we filed a suit in two thousand and five and we were discussing the then state of the or for managing a seizure disorder with those findings be relevant sixteen years later i'd suggest that it would have been a waste of judicial resources to engage in that suit of employ those experts and then to have to come back today when we have a different state of his condition different circumstances heck we have different methods of even employing arguments the state may logic instance so if we don't watch the suit we have waited too long if we do odds with a suit it's not ripe yet whatever we do tends to be against as having been the wrong thing so here we have a bright line they sought his execution the only other possible bright lie is the twenty day notice they give on the eve of execution and the united states supreme court has repeatedly condemned death penalty litigants who wait till twenty days before an execution to file process so in light of that it seems like the most prudent thing for mr middlebrooks to do was to wait until execution date was sought which meant an execution date at the time they sought it either months or within a year or so koven it obviously has changed things  but what was when was his execution date announced and what is execution day your honor he does not have one they they sought one and then we went on hold and we have a number of dates that have been postponed and we have a number of other inmates who are awaiting the scheduling of a day so he is he is in limbo right now at the time we filed the suit i don't think we would have expected that  supreme court granted dates i believe in eight cases and in roughly another eight cases did not immediately schedule date for whatever reason under tennessee's process they normally schedule dates a two month i may be getting a little bit confused about the timeline but he was part of the initial he was part of the facial challenge yes your honor so why was it right then i think the reason it's right in a facial challenge is well it may be hypothetical that mr middlebrooks will be executed using any particular protocol it was absolutely clear that some inmates were going to be executed in fact when that suit went forward billy ray iraheta day in august which was why we were trying to get everything done in july in the trial courts so that a ruling could be made relevant to his execution and then it means a gorski had an execution in october which was immediately after the tennessee supreme court had scheduled their decision to be issued so wow mr  middlebrooks arguably didn't have a right facial challenge i don't think there was any harm to anyone because remember rightness is a two part analysis under tennessee law the nd part of it is hardship to the party so it was much more expedient in light of mr i reckon mr is of course the having right facial challenges for other inmates to join in that case as opposed to i would say sandbagging their own but you're talking about and the facial challenge right yes i am i absolutely so but it was an applied challenge raised in the ad directly by anybody i believe plaintiffs from the eastern district of a at some point did file as applied challenges i honestly apologize your honor i don't believe anyone litigated it for chancellor law but i believe separate as applied challenges were law based on people with imminent execution dates indeed i believe with individuals who have been executed but the distinction that you would drop because the question is if the if tennessee thought  supreme court decision and i've the rock but if i thought that the challenges to the method of execution as applied were right would that be a binding decision on what you're saying that at least means that the mr middlebrooks he did not raise and as applied challenge in iraq no i'm trying to recall the opinion i know i can look at it but did i direct when say it only the facial challenge there was only a facial challenge before the tennessee supreme court on that appeal let me ask you this the senate's your client's claim is right but i think the major issue is not whether he did have a seizure disorder some years ago that's not what makes it right today what makes it right today is it is now actually imminent and no longer hypothetical that an execution will go forward so i believe no doubt we have to plead ground for an as applied challenge but i don't think that that has to do with the rightness inquiry the rightness  is is focused on the reality then execution using lethal injection as opposed to electric chair as opposed to whatever else is now a a legitimate i see that your time is up to many of the judges have any other questions on all of this thank you thank you thank you two reasons st plaintiff has not alleged a single material new fact showing that tend to bar the title is available for use in tennessee executions and nd plaintiffs as apply challenge has been right since of execution that imposes an unnecessary and severe risk of suffering and the plea to must also show an alternative method of execution that is simultaneously steve double and readily implemented it's very important to bear those two component of the availability part in mind because but we're focused on the nd half but i'm focused on when a method of execution can be readily implemented in discussing that concept but the bug report said an inmate is not limited to choosing among methods of execution that are already exist under state law and the reason that in the supreme court said this w address precedent from the th circuit where the th circuit had improperly interpret a glass and held that death row inmates alleging alternative had to choose from preexisting methods in their own states the bus to court said that is not correct you can look to other states and there are methods of execution when proposing an alternative in arguing that the alternative can be readily implemented but but will in no way change the feasibility component of the available alternative what do you why is the complaint not adequate in that it lists in a number of different grabs a number of al but that does not go to show that this method of execution is feasible in fact this court in the two thousand and one team opinion for in re ohio specifically reiterated that feasibility is also a component is available for use in tennessee none of these facts show it is actually available for use in tennessee it is infeasible because pentobarbital is not available for use in the latest complaint there is a wide variety of that generals are actually said that it is just a term used in the article it's not clear that general are made that statement but regardless of that that is a conclusory statement this court cannot take a conclusory statement as of if there were additional facts given by attorney general bar to bolster that statement then those facts might be relied upon certainly in the context of a complaint if that's the basis of the pleading but a purely conclusory statement is not sufficient to support a finding to demonstrate a trained general bars hypothetical statement that is widely available your honor those are not a change in circumstances from the two thousand and eighteen after rockman decision all of those states had access to pentobarbital or plaintiff does not allege that any of a lethal injection chemical does not mean that this issue can also therefore gain access that's a logical fallacy because certain states can acquire it in a very confidential manner that other suppliers would not be willing to supply to multiple states and risk exposure and discovery that they're supplying lethal injection chemicals i'm sorry of what i'm curious what you would think would be an adequate allegation in the complain well certainly the that the drug is now available for use in tennessee the easiest would be your honor if plaintiffs allege that plaintiff was aware of a specific source that was willing to says that had explicitly said they were willing to sell it for use in tennessee executions that would definitely be sufficient so they would need they wouldn't need according to your statement here they wouldn't need to name the precise source tennessee for executions is that right yes your honor with the understanding that at some point those sources would be need to get on site not in public creating but privately in discovery to confirm that that is accurate but in the initial pleading no an anonymous source that they can confirm would legally meet the the requirements as a kind of our little supplier all of the many regulations that the suppliers not comply with and the requirements of tennessee's protocol there are specific requirements under tennessee to the extent that they must allege fact that plausibly could yes that are in fact plausible it showed it could be obtained the facts alleged are no materially no different from the fact  alleging or insufficient to plausibly allege that it is now available it's a combination of the two your honor the relevant facts have not changed certain facts have changed but they are not sufficient to show it is available certain many of the facts alleged are business as usual like this argument that five states are applying continuing to use part of our town their executions when they are anywhere you can in two thousand and eighteen the new fact that's been alleged so there's a combination there are facts that are business as usual they're not technically new facts and then there are a couple of new facts that have been alleged which is that tennessee is the federal government is using or that there is an l l c opinion suggesting it might be possible to import those are new facts but they do not show a change in legal circumstances to the amount that it would require a few to kata to no longer apply so it's not a brand new analysis of whether there is sufficien pleading under twelve b six regardless of race due to cut it's an analysis under tennessee law the question is have the facts changed to the extent that the legal circumstances have changed from the prior case that had the race to to effect and we're letting they have not they may have alleged certain new back but those back do not amount to a change in the legal circumstances of the case so rape to the cottage still applies your opponent was focusing on one point on the importation issue can you address that law importation changed no your honor the law has not changed the d c circuit in the bt case i believe it effect in his reply brief reiterated that standard and reef affirmed that standards still binds the d c circuit and cordingly still by the f d a plaintiffs relied on to united states supreme court actions as somehow being evidence that this holding in the d c circuit is no longer a good law i would urge your honour's to review bar the hall and bar the perky because these are court opinion they are one dollar and two dollars sentence orders that all they do without any findings of fact conclusion of law all they do is reverse stay the execution there is no basis given for the reversal of the stay and it would be improper to infer from the supreme court silence the basis for the supreme court's decision to overturn that stay until the circuit law is explicitly overturned it is binding precedent and that remains a law prohibiting the importation of lethal injection chemicals so where did my understanding is that the federal government good use of our politics and struggle several inmates where d that they couldn't import domestically they had a domestic supplier your honor so why doesn't tennessee use that wire we do not have that supplier is your honor the identity of lethal injection supplier this test highly confidential and many states refuse to even discuss the topic with other states much less delve into providing the identity of their suppliers the fact that the federal government has acted to death domestic supply or if anything is even less significant than a state having access to it which we've already discussed is not compelling fact in and of itself because the federal government has far greater resources at its disposal to find a supplier willing to provide access to lethal injection chemicals individual states don't have the same level of resources to spend on execution your honor i know it was the method of execution in tennessee for several years i do not know if it was ever actually applied i apologize and i'd be happy to supplement that with grieving but certainly for a period of time this was the method of execution in tennessee and it is almost at that point in time yet there are so many side from execution i mean electrocution well were people in fact electrocuted or not during that time period i do not believe so your honor so if there were executions during that time period they were again i believe so i would be happy to supplement that briefing i know it with the method of execution i don't know if it was in force complaint demonstrates that he is he would suffer severe pain if he were executed using lethal injection now this argument is already undermined by the claim that point of arbitral a lethal injection is a more humane alternative but more to the point this claim was right when tennessee adopted lethal injection as a method of execution in one thousand nine hundred and eighty eight the basis on which plaintiff relies to argue that the claim was not right until an arbitrary point in time when the attorney general's office moved to set the date of execution the entire basis of think its argument is that plaintiffs might have died before now plaintiffs might have been healthier before now and tennessee might have adopted a new protocol your honor none of those arguments go to write this right it is about the birth of the claim the claim was born when the preexisting factors necessary for the claim to exist existed and that is a direct appeal was completed on the criminal process so plaintiffs was certainly going to be executed in tennessee and tennessee had adopted it lethal injection and plaintiffs in physical condition with esta is not the default method and therefore it is only right when it is clear that that is the method that is going to be used and in order for that be clear the state has to either lack access to the necessary lethal injection chemicals that would be used in a different method or the default method needs to been found unconstitutional in let's one of those two things happen the claim is not right so they're illegal a clearly defined statutory precursor to electrocution being right the same is not true with that as applied challenge the legal precursors that had to be established were the fact that he was going to be executed in tennessee which was established i believe in  condition which was again established during his direct appeal the argument plaintiffs raised that for why it is not right although to move they don't go to the birth of the claim they go to the death of the clinic plaintiff's argument that he could and you know hypothetically the courts are twenty years because they're executing people people twenty years later you're saying that if soon if that person's judgment is final they have to bring their challenge timing of the execution are completely up in the air because of the implied that you know passage of time your honor at that point in time the method of execution is not in the and drugs become available become not available cases are decided that make certain drugs disfavored and all of this happens over time but are you saying that the tendency courts do consider playing games recording executions that history shows will not take place challenge under the method of execution in place at that time because the of the type of as applied challenge it issue and there might be future methods of execution that change the abbotts i challenge rendering moot or creating a new as applied challenge but when needs to be litigated is the state of the law in existence at the time that the as applied challenges race otherwise stagnated only if you give me a couple of the kentucky  challenge to a death penalty protocol claim isn't right before a certain point in time i'm not aware of one that says it is right however i am aware of the fact that in the abdurrahman litigation plaintiffs had the opportunity to bring in as my challenge they ability or inability for those thirty people to raise as applied challenges here your honor this may have been a decision by the trial court not the supreme court i would have to double check but i believe the supreme court did not clearly hold on me and supply challenges that i believe the court held that the trial court properly dismissed certain as applied challenges because the parties attempted to raise them too late in the proceedings if the indicating that if the plaintiffs had attempted to reason at like challenge in a timely fashion they would have been able to litigate and that is the extent of what i recall from the supreme court's question on the  you're not aware of any tennessee supreme court decision one way or the other no your honor not with respect to the physical conditions alleged in this case and part of that may go to the unique nature and apply challenges they might not be that common the facial challenge is a much more common approach because it's an argument that the death penalty is unconstitutional in general individuals have to have a unique physical condition that he placed in that jeopardy when bringing in and supply challenge and that is just not as common as  general facial challenge everyone might experience eight years from now when you're likely to be facing execution so come back later your honor i can see that happening and it would depend on the nature of the as applied challenge for example if it goes solely to the state of a mental condition that is highly changeable that there is a basis for approaching that and in fact the competency test under tennessee law of competency is not right until execution is imminent so yes if it's a very changeable condition like mental competency that is the point that must be determined later but what we have here than established these your condition and what we have are allegations that this is well established last any physical condition and that at the time of plaintiff's criminal case there was a well established seizure condition that could be at issue so this the physical condition was already established if it's a different condition that may not be a taoist is uncertain there might be different factual circumstances to consider but in this instance what we have is an as applied challenge regarding a physical condition that was well established and the basis for which the claim that it's an unconstitutional method of execution or wrote right is lethal injections to physically not anyone protocol not some sort of specific chemical compound interacting with  unique physical conditions in a unique way it is the simple act of lethal injection that is being objected to and that claim was certainly right during the but your position says that it was right twenty years ago yes however this court doesn't need to reach that decision because the district court ruled solely on the basis of race to the cottage with regard to the abdurrahman litigation so moodiness can apply equally to a claim existing before litigation started and after litigation started and the key simply to fight are all discussing facts that arose after litigation started but none of them stand for the proposition that a claim could be mooted prior to coming to the court and this is relevant because if the court were to uphold plaintiff argument that movement alone is a basis for determining a claim  an right it would be an end run around race to kind of because the plaintive could argue any point in time oh well i just didn't wait long enough with regards to a declaratory judgment action oh well it just wasn't close enough in time so i i waited until this arbitrary point in time was closer because all of these things could have happened in the interim that would have mooted my claim and that would prevent race to the current from having the finality of fact in future litigation particularly declaratory judgment action so this i'm curious about the carbon key point that you made earlier so competency is something that should be raised to the according to supreme court precedent yes your honor why should large that all of a sudden you're not no your honor competency goes to a person's ability to be fit for execution this argument goes to whether or not he would experience severe pain as a result of these and the argument that he already handed mental condition that causes him distress was in existence at the time that lethal injection was adopted as an act of execution certainly in existence during the even the mental execute a mental state and competency as that competency goes to a person's ability to be executed it goes to their ability to understand why they are being executed the mental state that plaintiff is alleging he does not alleges knew this mental state under the allegations in the complaint with existing during the after rock and litigation is not a levy and so what if the person was in pump it shortly after they were sentenced they were found with it so the court still wants you to wait right yes your honor for the purpose of seeing mother not a mental condition could improve but there  two different issues here even if the mental condition was not right at the time or was right at the time the seizure condition was alledged and was right for that reason risky to kind of would certainly bar the seizure condition claim in place it has not alleged any facts showing that the new condition as opposed to competency is a flexible condition that could have been or wasn't right after that point in time the st time of done this and i was trying to look something up and i clearly didn't follow the admonishment correctly to turn all notifications what i was looking for was a term as applied  state of tennessee said that they do not contest pentobarbital as readily implemented as an alternative means of execution i think that's a huge positive at this stage i also think it's dispositive at this stage when we're talking about the that we hear the state of tennessee saying we don't know who the supplier it it's well that's a disputed fact i think it's dispositive when they say that the united states has sources we don't again that's a disputed fact they appear to be arguing that the tennessee as a legitimate reason not to adopt a readily implemented method of execution which under buckelew which is merely clarifying the law under buckler who is something that we're going to inquire into later that's something for the court to inquire into it's not something for us to plead but then i think the last thing that's absolutely dispositive while i don't agree with the point the hamster resolves in the state of tennessee he said that to plead a complaint that would meet their standards we would have to have benefit to sift it but i'm named supply they said if we did that in our complaint we would have done enough so we don't have to name this isn't me saying that there's somebody in europe with plenty this is the state of tennessee in their own email saying there's plenty in the nd one october of two thousand and nineteen so this post date there's a if mr white being missing for five years was more than enough to overcome res judicata then i submit we've done more than enough but i think that we can meet the challenge that tennessee put for us because our complaint licenses and i submit with the united states supreme court removing two f t ca injunctions it now clearly is plausible much more than plausible that they can import pinto from that very source your opponent says the c circuit opinion is still i'm doing well how do you respond to that i believe the only way to reconcile what happened and perky in the hall is the united states supreme court agreed with judge raul who had found in dissent that the f t c i could not be used to regulate lethal injection drugs or executions certainly it's hard to understand how the united states supreme court which overturned that injunction in less they believed and i'm going to misstate the standard but to overturn an injunction requires a finding that the plaintiffs had almost no chance of prevailing i apologize i'm not saying  my time is up you obviously i'll answer how do you do with the twenty one published cases do you is your rants are well they're they're not sudden relied almost exclusively on the o l c opinion and did not allege any new facts either obviously some sudden was decided we now have perky and hall upholding the o l see opinion and the issuance of these license so i think that bayer are very narrowly limited to the limited facts that were played in those cases we've pled much more