please the court my name is bobby stratton and along with my co counsel maury love and i represent thomas whittaker and perry williams at its core this case is about due process as this court of the where this is the third time this this court returned the case to the district court for trial on the merits that did not happen and now we are back here again during my time before the court i will discuss three issues the procedural errors in dismissing the case specifically second the procedural errors in dismissing the case on statue limitations and thirdly the lack of meaningful discovery that led to the erroneous findings by the district court below in my first argument and ultimately erred by not converting the motion to a summary judgment under twelve but this case really turns on the may most basic fundamental procedural issues that are brought in a twelve yes that is correct but what the truck what the district court did was it applied a heightened standard it didn't it didn't apply a sufficiency of the pleading standard it considered whether the not whether the  factual allegations in the pleading were were true and taken as true and whether or not they were sufficient the district court actually only considered whether the substantiate allegations were true and then only construed those in the light most favorable to the plaintiff's sort of appeal we can look at all the pleadings and decide whether they're sufficient as a matter of law regardless of what the district court do is not right that is correct therefore and that brings me to so under that under the supreme court's decision and gloss up of there's insufficient pleading of a substantial risk of harm here but when you look at substantial risk of harm would be for for using compounded pentobarbital but in a situation like this even though it is a didn't over review for this court to  consider there was an entire procedural debacle created by the district court that ultimately led to a very i mean i would consider it a convoluted record at best  i would also i would also argue that by what the district court did by having a purported trial on the merits i'll just recount to the court a little bit of the procedure that happened once this court again we can still go back and look at the pleadings and decide whether they are sufficient or insufficient as a matter of law regardless of what can district court d requires the supreme court even in glossop doesn't require you to name a specific drug just that there just stayed a type of drug to be to be used does as the alternative you didn't you didn't plead that there is such a thing so there's such a drugs us no yes i mean i would say that yes we did prove we did play that such a drug exists we just didn't plead use this use drug a whatever drug the name of drug are our opinion based on discussions discussions with our expert is there are f d a approved barbiturates out there that could be used as an alternative to this compound a proposal by the state that would be a approved barbiturate the follows this you know the testing standards of the f d a that could be used in the alternative of a compound drug so do you think that's sufficient yes i believe that is sufficient  does not require you to be more specific there were two cases that went up to the u s supreme court recently on that search or on that very issue that search area was denied and therefore i believe that based on that that there is no specificity given from the supreme court that how we played it was adequate in the event that the court does under the don't overrule review determined that this case should be turned back one of the things that occurred by the trial court in connection with that because as i understood this argument it was that that would should not have dismissed at the motion that was filed by the state and i don't have any of these specific records sites popping in my head they also the state also referenced proceedings and procedures that weren't just in the complaint or what was attached to the complaint the court had several several hearings where were the he asked us a lot of questions we submitted multiple expert reports to to try to answer the court's questions and the state even relied upon those in filing its motion to dismiss and in doing that the totality of the motion was a twelve d it wasn't a twelve b six and therefore we should have had the opportunity to file a substitute of response that went to the merits of the claims and that motion should have been converted to a summary judgment under twelve so while i do agree that if it was a straight twelve b six and that was the only thing that was being considered yes this court consider it to novo but procedural the procedurally that's not what happened below where you have time left why don't you address the question of whether any of these sions on a challenge of the challenge of the method of execution of cruise upon in this case it would be the adoption of the change protocol our position is that that occurred in two thousand and thirteen a month before this case was filed now the district court held that it actually was in two thousand and eight when the protocol was changed and it wasn't until two thousand and twelve that it changed to  court in the wood case that recently came out there's an explanation relates back also mentally to a us supreme court case holmberg vs amber act where that where that court held that statue limitations are not controlling measures in equitable relief that position has never been challenged to that i can find to that position in the supreme court and even and even has been unfortunately cited in concurrences it's not a holding opinion in this court but even so i think that when you look at the totality of the case that is before that was before the district court is all about the change in the protocol to compound  the very generic nature of the protocol that doesn't provide ample due process that is available in many many other states i don't know what the walker case then we would have to go in bank to to fix the problem with the walker case if we decide that it's wrong to decide that right yes you're correct i mean that's the procedure of this court however you don't need to overturn walker in order to still there is also in how the court granted the statute and granted statute limitations dismissal that we did make our law the case argument in our brief our position on that is that what the district court held was that at the time he held that my clients have known since two thousand and eight that they would be executed by lethal injection but what the court held the law the first time this case was up on appeal was  last time i'm sorry this case was up on appeal was that they didn't actually know how they were going to be executed therefore they don't have standing now i will concede that the state argued in their brief therefore they don't have standing piece of it  suggests that that is not law of the case but even though the actual order was overturned the court flip flopping on that issue and that ultimately deciding to dismiss the case on that issue creates an equitable position for our for my clients specifically that they on one hand were deemed to not know how they are to deem to not know how they were going to be executed and then on the other hand deemed to definitely know how they're going to be executed  many hearings that we had tended that they would retest the drugs and it was upon that point in time that the court did not let us come back for any purpose no discovery no status conference and that lasted for at least nine months that we were just in limbo because of that very issue but ultimately that doesn't address the the issues that were raised in our complaint and addresses this narrow issue that the judge thought would make found substantially identical claims here were properly dismissed by the same district court so to rule for the plaintiff here you'd have to split with the wood panel that was already decided and also that would decision involved the same underlying report from dr rubel that we're talking about here so that same record in wood is the you cannot come to court and plead a possibility of injury there has to be a plausible a substantiated basis to believe that harm will occur in here especially when there have been thirty two pentobarbital without any incident the claims about retesting the the use by date and the failure to obtain additional details about the execution protocol that is not stating substantiated plausible claims particularly combined if both pleading standard with the substantive standard in gloss on the do you think that the use by date in would in fact use a drug past its use by date or they're also raising claims that well the use by date that we're being provided is somehow wrong and their expert in their report even said have to show a risk that is sure or very likely to cause serious illness and needless suffering there is a substantial risk of serious harm their pleading doesn't come anywhere close to that and even the reports that they were giving the court  try to substantiate those claims don't come close to that and even if they had pleaded that they would still have had moved plead pled a feasible readily implemented alternative that would significantly reduce the substantial risk of severe pain my friend ari or you've been representing to us that the state does not use outdated drugs in execution yes the state does not use compound it pentobarbital the start of the state does not use execution drugs after the use by date that we have been the supreme court said petitioners don't seriously contest the special finding and they have not identified any available drug or drugs that could be used in place of those it's not enough to come to court and say use an f you have to identify a drug and i drug that is in fact available that would necessarily require identifying a particular drug of a provision in our protocol that would tell plaintiffs if there was a change to the drug being used to count to a provision allegedly lacking about access to counsel provision and part of count three which are miscellaneous slew of allegedly defective protocols regarding training of officials and cetera count one count two in those miscellaneous challenges that count our protocol does allow access to counsel approved by the warden and there's it would be purely speculative that the warden would deny access to counsel in an appropriate case and the miscellaneous protocol challenges about training and qualifications none of that comes close to rising to the level of glossop which required a sure and very likely chance of serious illness or substantial risk of serious harm so your contention is the glass of good required three names specifically when an alternative method of execution would be what drug would be yes because we need to know if the drugs available and if there is not a particular drug that is being identified you would not be able to know if it's available and even if it were available it would still have to be a feasible and readily implemented alternative and one that would significantly reduce its substantial risk of severe pain and quoting from glossop there to know all of those facets we would have to be presented with an actual it named alternative to be a texas agree that it would test the drugs and a period close in time to mourn the execution would occur for these two particular prisoners yes we stipulated that we would pentobarbital shortly before their executions now don't that's not a part of the protocol it was just the stipulation that was made with regard to these two that's correct it was a voluntary stipulation we didn't have to stipulate to that as the district court noted the subsequent would opinion there was no eighth amendment or legal requirement that we do that we stipulated and we will honor that stipulation for these two prisoners now that claim though is still not moot because what the plaintiffs have argued is that's not good enough they need testing under certain conditions and they want certain they want to destroy information that's our way thirteen fifty two to fifty five so wood has already rejected testing claims about competent been pentobarbital of the use by date the additional information claims and then as far as the time barred claims not only are they time barred and yes you would have to go and bank to reverse walker but there's no basis to do so in fact if you were to go and bank and you were to reverse walker you'd be creating a circuit split with at least two other circuits so that is good precedent that should be retained and is correctly implementing supreme court precedent if i can just briefly address the procedure back in district court because i think this is important to understand how we got here today in looking at an expert report or the twelve the six posture when this court had the case the first time it ruled that there was article three jurisdiction the claims were right at that point i went back down to district court as soon as we got back down to district court there was a here in this would have been a march thirty first of twenty fifteen and at that hearing the district court immediately expressed skepticism that they had not sufficiently pleaded claims that they were speculative claims in reaction to the district glossop was decided and after glossop the district court had a second hearing again expressing skepticism particularly in light of glossop that these were not adequately pleaded claims and plaintiffs then proffered a second report from d so what was going on in district court was not a limitation of due process what it was was the district court allowing plaintiffs a chance to substantiate their claims and so from the time right and this court reversed on and said no the claims are right that was necessarily only a ruling that there wasn't in fact article three jurisdiction and it couldn't possibly have reached any other issue regarding whether dismissals appropriate or whether summary judgment would have been appropriate at that time so the mandate rule only forecloses relate a geisha of issues that were explicitly or implied they decided that the court could not possibly have decided in the should beyond the article three jurisdiction  to tell us what effect we should give to would it was a summary judgment without the opportunity to respond and therefore the outcome in would cannot be the same outcome in this case i do want to address some of the statements that the state made because they do they do fall in line with some of the the way the state presented its case in the motion to dismiss  this the state has said that they have will not use the use use the drugs beyond the date that was given to them by the pharmacy if you look at the details of what was what is given to them by the use by date at most is forty five days and really should be a much shorter period of time and the state is keeping it for a lunch much longer period of time which is totally contrary to the scientific standard compounding process is done there are standards that are set forth and they're generally depicted based on the level of refrigeration that the drug that the drug is captain what would be the standard with regard to with the representation to they said they would test the drug shortly before the execution as a practical matter for my clients i cannot impractically not be somewhat satisfied that that will have that that will happen however i also cannot equally be satisfied that they're going to  what what the state said during its argument is that the the procedure the way the court took multiple reports and things from from our expert wasn't offered to i mean i was there and i can tell you it was not offered in order to to give us give us more opportunities to try and plead our case at every opportunity we asked for the ability to even even just send simple in in order to get some sworn answers from the state and that wasn't even that wasn't even allowed the the judge allowed us to only ask questions precise questions a fact and it was only signed by their  lawyers i mean i was told at one point when we actually sent us for a trial date that the state didn't even have to produce a witness and i wouldn't even be able to cross examine anyone that that is not due process i mean that is that is a situation where it if that if this opinion were allowed to be allowed to stand it would just put this case in an impossible posture where where they would be held to a certain