In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 20-2252

EARLENE BRANCH PETERSON,

KIMMA GUREL, and MONICA VEILLETTE,

Plaintiffs-Appellees,

v.

WILLIAM P. BARR, Attorney General 

of the United States, MICHAEL CARVAJAL,

and T. J. WATSON, Warden,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:20-cv-00350-JMS-DLP — Jane Magnus-Stinson, Chief Judge.

____________________

SUBMITTED JULY 11, 2020 — DECIDED JULY 12, 2020

____________________

Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,

Circuit Judges.

SYKES, Chief Judge. In 1996 Daniel Lewis Lee murdered an 

Arkansas family of three in pursuit of funds to support the 

racketeering activities of a white supremacist organization. 

The crimes were particularly heinous. Lee and his codefend-
2 No. 20-2252

ant were members of the Aryan Peoples’ Republic, a white 

supremacist group that sought to establish an independent 

nation in the Pacific Northwest. In January 1996 they traveled from the State of Washington to the Arkansas home of 

firearms dealer William Mueller; his wife, Nancy; and their 

eight-year-old daughter Sarah. After stealing a cache of 

weapons and a large amount of cash and coins, they shot the 

three victims with a stun gun, duct taped plastic bags over 

their heads to asphyxiate them, weighed their bodies down 

with rocks, and threw them in a bayou. The bodies washed 

up in an Arkansas lake about six months later.

In 1999 a federal jury in the Eastern District of Arkansas 

convicted Lee of three counts of capital murder in aid of 

racketeering, 18 U.S.C. § 1959(a)(1), and sentenced him to 

death. Now more than two decades later, Lee has exhausted 

all appeals, including multiple rounds of postconviction 

review, and is scheduled to be executed on Monday, July 13, 

2020, at the United States Penitentiary in Terre Haute, 

Indiana. The execution was originally scheduled to take 

place on December 9, 2019, but was enjoined by two district 

judges, one in the Southern District of Indiana (where the 

prison is located) in connection with Lee’s petition for 

habeas corpus under 28 U.S.C. § 2241, and another in the 

District of Columbia who was hearing a challenge to the 

federal execution protocol brought by Lee and other deathrow inmates at the Terre Haute prison. We described this 

litigation history in our opinion two days ago affirming the 

Indiana judge’s final order denying § 2241 relief. Lee v. 

Watson, No. 20-2128, slip op. at 3–6 (7th Cir. July 10, 2020). 

For present purposes, it’s enough to say that on December 6, 

2019, we vacated the stay in the § 2241 habeas proceeding, 

Lee v. Watson, No. 19-3399, 2019 WL 6718924 (7th Cir. Dec. 6, 
No. 20-2252 3

2019), and the Court of Appeals for the District of Columbia 

Circuit vacated the injunction in the execution-protocol case 

on April 7, 2020, In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020). The Bureau of Prisons 

(“BOP”) thereafter rescheduled Lee’s execution for July 13, 

2020, at 4 p.m. EDT.

On July 7, 2020, three family members of the victims filed 

a complaint in the Southern District of Indiana seeking to 

enjoin the BOP from carrying out Lee’s execution. The 

plaintiffs—Earlene Peterson, age 81 (Nancy’s mother); 

Kimma Gurel, age 61 (Nancy’s sister); and Monica Veillette, 

age 43 (Nancy’s niece)—want to attend the execution even 

though they oppose it. The Warden has authorized them to 

be witnesses, but they object to the BOP’s decision to carry 

out the execution during the COVID-19 pandemic. They 

raise health concerns due to age, underlying medical conditions, the need to travel interstate to reach the Terre Haute 

prison, and the current degree of COVID-19 spread 

throughout the country. They seek to delay the execution 

until the pandemic is suppressed by widespread vaccination 

or effective treatment. The suit names the Attorney General, 

the BOP Director, and the Warden as defendants; we refer to 

them collectively as “the government.” The plaintiffs allege 

that the agency’s decision to schedule Lee’s execution for 

July 13 failed to adequately account for the effect of the 

pandemic on their right to attend and thus is arbitrary, 

capricious, and contrary to law in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).

Late in the day on Friday, July 10, a district judge in the 

Southern District of Indiana issued a preliminarily injunction 

enjoining the defendants “from carrying out the execution of 
4 No. 20-2252

Daniel Lewis Lee on July 13, 2020, or on any future date, 

pending final resolution of the merits of this case or until 

further order of this [c]ourt.” Order Granting Plaintiffs’ 

Motion for Preliminary Injunction at 14, ECF. No. 20. The 

judge ruled that “the plaintiffs have shown a strong likelihood of prevailing on their claim that the defendants’ setting 

of Mr. Lee’s execution date without considering their right to 

be present was arbitrary and capricious and not in accord[ance] with [the] law.” Id. at 11.

The government immediately appealed and sought a 

stay from the district court. That request was promptly 

denied. On Saturday morning, July 11, the government filed 

an emergency motion asking us to summarily stay or vacate 

the preliminary injunction. We ordered a response from the 

plaintiffs by 6 p.m. CDT. They complied. The government 

filed a reply late last night.

We vacate the preliminary injunction. The plaintiffs’ 

APA claim lacks any arguable legal basis and is therefore 

frivolous. 

First, the challenged agency action—setting a date for execution—may not be judicially reviewable at all. The APA 

does not permit judicial review of an action “committed to 

agency discretion by law.” 5 U.S.C. § 701(a)(2); Heckler v. 

Chaney, 470 U.S. 821, 829–33 (1985). The government argues 

that scheduling an execution date is such an action. “When 

deciding whether a decision is committed to agency discretion, we first review the applicable statutes and regulations.” 

Menominee Indian Tribe of Wis. v. EPA, 947 F.3d 1065, 1072 

(7th Cir. 2020). The object is “to see if they contain ‘judicially 

manageable standards ... for judging how and when an 
No. 20-2252 5

agency should exercise its discretion.’” Id. (quoting Chaney, 

470 U.S. at 830) (omission in original).

As relevant here, the Federal Death Penalty Act directs 

that “[a] person who has been sentenced to death” must be 

“committed to the custody of the Attorney General until 

exhaustion of the procedures for appeal of the judgment of 

conviction and for review of the sentence.” 18 U.S.C. 

§ 3596(a). It continues: “When the sentence is to be implemented, the Attorney General shall release the person 

sentenced to death to the custody of a United States 

[M]arshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the [s]tate in 

which the sentence [was] imposed”—here, Arkansas. Id. (If 

the forum state does not have a death penalty, the Act 

directs the district court to designate another state. Id.)

The applicable regulations delegate broad discretion to 

the BOP Director to set execution dates:

(a) Except to the extent a court orders otherwise, a sentence of death shall be executed:

(1) On a date and at a time designated by 

the Director of the Federal Bureau of Prisons, which date shall be no sooner that 

60 days from the entry of the judgment of 

death. If the date designated for execution 

passes by reason of a stay of execution, then 

a new date shall be designated promptly by 

the Director ... when the stay is lifted.

28 C.F.R. § 26.3(a)(1). 

Another regulation provides:
6 No. 20-2252

Except to the extent a court orders otherwise: 

(a) The Warden of the designated institution 

shall notify the prisoner under sentence of 

death of the date designated for execution at 

least 20 days in advance, except when the date 

follows a postponement of fewer than 20 days 

of a previously scheduled and noticed date of 

execution, in which case the Warden shall notify the prisoner as soon as possible.

Id. § 26.4(a).

Perhaps the minimal constraints imposed by these regulatory requirements—the 60-day postjudgment waiting 

period and the 20-day notice to the prisoner—are enough to 

preclude a conclusion that the BOP Director’s scheduling 

decisions are entirely unreviewable under § 701(a)(2). For 

example, if a prisoner sued for inadequate notice of an 

execution date, a court could review that decision. But if the 

BOP observes the minimal requirements in the regulations—

as it did here—then it has the unconstrained discretion to 

choose a date for the execution.

The plaintiffs’ claim is frivolous for another reason: they 

have no statutory or regulatory right to attend the execution. 

Judicial review under the APA is limited to persons who are 

“adversely affected or aggrieved by agency action within the 

meaning of a relevant statute.” 5 U.S.C. § 702. Accordingly, a 

plaintiff must establish that “the injury he complains of ... 

falls within the zone of interests sought to be protected by 

the statutory provision whose violation forms the legal basis 

for his complaint.” Air Courier Conference of Am. v. Am. Postal 
No. 20-2252 7

Workers Union AFL-CIO, 498 U.S. 517, 523–24 (1991) (quotation marks omitted).

The plaintiffs cannot satisfy this basic requirement. No 

federal statute or regulation gives them a right to attend 

Lee’s execution. Needless to say, executions are not public 

proceedings. The Federal Death Penalty Act makes no 

mention of witnesses, whether members of the victims’ 

family or others. In their complaint and motion for a preliminary injunction, the plaintiffs relied on the following regulation:

(c) In addition to the Marshal and Warden, the 

following persons shall be present at the execution:

(1) Necessary personnel selected by the 

Marshal and Warden;

(2) Those attorneys of the Department of 

Justice whom the Deputy Attorney General 

determines are necessary;

(3) Not more than the following numbers of 

person[s] selected by the prisoner:

(i) One spiritual adviser;

(ii) Two defense attorneys; and

(iii) Three adult friends or relatives; and

(4) Not more than the following numbers of 

persons selected by the Warden:

(i) Eight citizens; and

(ii) Ten representatives of the press.
8 No. 20-2252

(d) No other person shall be present at the execution, unless leave for such person’s presence 

is granted by the Director of the Federal 

Bureau of Prisons. No person younger than 

18 years of age shall witness the execution.

28 C.F.R. § 26.4(c)–(d) (emphasis added).

The plaintiffs argued below that subsection (c)(4)(i) of 

§ 26.4 gives them a legally enforceable right to attend the 

execution. It does not. The regulation specifies who may be 

permitted by the Warden to attend an execution. It is a limitation on, not an entitlement to, witness attendance. It is not 

designed to protect the plaintiffs; the regulation does not 

even mention victims’ family members. Nothing in the 

regulation gives the plaintiffs a right to require the BOP to 

schedule Lee’s execution at a time when they are willing or 

able to attend. Nor does the regulation require their attendance before the execution may proceed.

Indeed, the district judge did not credit this argument. 

Instead, she developed her own theory of the case. Setting 

aside the impropriety of this maneuver, see United States v. 

Sineneng-Smith, 140 S. Ct. 1575, 1582 (2020), the judge’s 

theory is no more viable than the one raised by the plaintiffs.

Recall that the Federal Death Penalty Act provides that 

an execution shall be implemented “in the manner prescribed by the law of the [s]tate in which the sentence is 

imposed,” § 3596(a)—again, Arkansas. Relying on the D.C. 

Circuit’s decision in Execution Protocol Cases, the judge 

concluded that § 3596(a) incorporates Arkansas law governing execution witnesses—more specifically, section 16-90-
No. 20-2252 9

502(e)(1) of the Arkansas Code. That reasoning seriously 

misreads the D.C. Circuit’s decision and federal law.

By its terms, § 3596(a) incorporates the forum state’s law 

regarding the “manner” of implementing a death sentence. 

At issue in Execution Protocol Cases was whether this provision incorporates only “a [s]tate’s choice among execution 

methods such as hanging, electrocution, or lethal injection,” 

or whether it also requires the federal government to adhere 

to the “subsidiary details” of the state’s chosen execution 

method. 955 F.3d at 108. The D.C. Circuit split three ways. 

Judge Katsas concluded that § 3596(a) incorporates only the 

“top-line choice among execution methods such as hanging, 

electrocution, or lethal injection.” Id. at 113 (Katsas, J., concurring). Judge Rao interpreted the incorporation language 

more broadly to include the procedures governing the 

manner of execution formally established by state statute or 

regulation, but not informal protocols or procedures. Id. at 

130 (Rao, J., concurring). As relevant here, Judge Rao identified section 5-4-617 of the Arkansas Code—the provision 

specifying the state’s lethal-injection procedures—as the 

incorporated state law in Lee’s case. Id. at 142. Judge Tatel 

dissented. He agreed with Judge Rao that § 3596(a) incorporates state procedures for effectuating death as contained in 

statutes and regulations. Id. at 146 (Tatel, J., dissenting). But 

he concluded that the statute also incorporates informal 

protocols if “issued by state prison officials pursuant to state 

law.” Id.

Nothing in any of the separate opinions in Execution Protocol Cases supports the judge’s conclusion that § 3596(a) 

incorporates the Arkansas Code provision governing execution witnesses. To the contrary, the debate among the D.C. 
10 No. 20-2252

Circuit judges was limited to state laws, regulations, and 

protocols governing procedures for effectuating death. Indeed, 

even the dissenting judge accepted that § 3596(a) does not 

require the BOP to follow “every nuance” of state execution 

procedure, but rather only “those procedures that effectuate 

the death, including choice of lethal substances, dosages, 

vein-access procedures, and medical-personnel requirements.” Id. at 151 (alteration and citations omitted). Section 

3596(a) cannot be reasonably read to incorporate every 

aspect of the forum state’s law regarding execution procedure. We do not understand the word “manner” as used in 

§ 3596(a) to refer to details such as witnesses. The word 

concerns how the sentence is carried out, not who watches.

In short, section 16-90-502(e)(1) of the Arkansas Code, the 

provision governing execution witnesses, is irrelevant here. 

The judge was wrong to insert it into this case.

INJUNCTION VACATED