United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2020 Decided April 7, 2020

No. 19-5322

IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL 

CASES,

JAMES H. ROANE, JR., ET AL.,

APPELLEES

v.

WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-mc-00145)

Melissa N. Patterson, Attorney, U.S. Department of 

Justice, argued the cause for appellants. With her on the briefs 

were Joseph H. Hunt, Assistant Attorney General, Jessie K. 

Liu, U.S. Attorney, Hashim M. Mooppan, Deputy Assistant 

Attorney General, Paul R. Perkins, Special Counsel, and Mark 

B. Stern, Attorney.

Catherine E. Stetson argued the cause for appellees. With 

her on the brief were Sundeep Iyer, Pieter Van Tol, Joshua M. 

Koppel, Arin Smith, Jon Jeffress, Alan E. Schoenfeld, 
2

Stephanie Simon, and Shawn Nolan, Assistant Federal Public 

Defender. 

Before: TATEL, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994

(FDPA) requires federal executions to be implemented “in the

manner prescribed by the law of the State in which the sentence 

is imposed.” 18 U.S.C. § 3596(a). It is common ground that 

this provision requires the federal government to adhere at least 

to a State’s choice among execution methods such as hanging, 

electrocution, or lethal injection. The district court held that 

the FDPA also requires the federal government to follow all the 

subsidiary details set forth in state execution protocols—such 

as, in the case of lethal injection, the method of inserting an 

intravenous catheter. On that basis, the court preliminarily 

enjoined four federal executions. 

Each member of the panel takes a different view of what

the FDPA requires. Because two of us believe that the district 

court misconstrued the FDPA, we vacate the preliminary 

injunction.
3

I

A

On three different occasions, Congress has addressed the 

“manner” of implementing the death penalty for federal capital 

offenses. In the Crimes Act of 1790, the First Congress 

specified that “the manner of inflicting the punishment of 

death, shall be by hanging the person convicted by the neck 

until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 112, 119. 

This provision governed federal executions for over 140 years.

In 1937, Congress changed this rule to make the “manner” 

of federal executions follow state law. Specifically, Congress 

provided: 

The manner of inflicting the punishment of death 

shall be the manner prescribed by the laws of the 

State within which the sentence is imposed. The 

United States marshal charged with the execution of 

the sentence may use available State or local facilities 

and the services of an appropriate State or local 

official or employ some other person for such 

purpose .... If the laws of the State within which 

sentence is imposed make no provision for the 

infliction of the penalty of death, then the court shall 

designate some other State in which such sentence 

shall be executed in the manner prescribed by the 

laws thereof.

An Act To Provide for the Manner of Inflicting the Punishment 

of Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress 

repealed this provision in 1984, see Sentencing Reform Act of 

1984, Pub. L. No. 98-473, § 212, 98 Stat. 1987, but left intact 

the underlying capital offenses. Accordingly, federal law still 
4

authorized the death penalty, but no federal statute specified 

how it would be carried out.

To fill this gap, the Attorney General promulgated a 1993 

regulation titled “Implementation of Death Sentences in 

Federal Cases.” 58 Fed. Reg. 4898, 4901–02 (Jan. 19, 1993). 

It provides that, unless a court orders otherwise, the “method 

of execution” of a federal death sentence shall be “[b]y 

intravenous injection of a lethal substance or substances in a 

quantity sufficient to cause death, such substance or substances 

to be determined by the Director of the Federal Bureau of 

Prisons.” 28 C.F.R. § 26.3(a)(4) (2019). The regulation also 

addresses various other matters including the time and place of 

execution, when the prisoner must be notified of the execution, 

and who may attend it. Id. §§ 26.3–26.5. 

Congress enacted the FDPA in 1994. Under the FDPA, as 

under the 1937 statute, the “manner” of implementing federal 

death sentences turns on state law. In pertinent part, the FDPA 

provides that a United States marshal 

shall supervise implementation of the sentence in the 

manner prescribed by the law of the State in which 

the sentence is imposed. If the law of the State does 

not provide for implementation of a sentence of 

death, the court shall designate another State, the law 

of which does provide for the implementation of a 

sentence of death, and the sentence shall be 

implemented in the latter State in the manner 

prescribed by such law.

18 U.S.C. § 3596(a). The FDPA also provides that a marshal 

overseeing an execution “may use appropriate State or local 

facilities” and “may use the services of an appropriate State or 

local official.” Id. § 3597(a).
5

B

At various times since 2001, the Department of Justice has 

developed protocols setting forth the precise details for 

carrying out federal executions. One such protocol was 

adopted in 2004 and updated in 2019. As updated, the protocol 

“provides specific time related checklists for pre-execution, 

execution, and post execution procedures, as well as detailed 

procedures related to the execution process, command center 

operations, contingency planning, news media procedures, and 

handling stays, commutations and other delays.” App. 24. 

This 50-page document addresses, among other things, 

witnesses for the execution, the prisoner’s final meal and final 

statement, strapping the prisoner to the gurney, opening and 

closing the drapes to the execution chamber, injecting the lethal 

substances, and disposing of the prisoner’s body and property. 

For the three federal executions conducted between 2001 

and 2003, the Bureau of Prisons used a combination of three 

lethal substances—sodium thiopental, a barbiturate that

“induces a deep, comalike unconsciousness when given in the 

amounts used for lethal injection,” Baze v. Rees, 553 U.S. 35, 

44 (2008) (plurality opinion); pancuronium bromide, which 

stops breathing; and potassium chloride, which induces cardiac 

arrest. None of the three prisoners challenged these 

procedures. In 2008, the Bureau memorialized its use of the 

three substances in an addendum to its 2004 execution 

protocol, and the Supreme Court held that Kentucky’s use of 

the same three substances for executions did not violate the 

Eighth Amendment, see id. at 44, 63; id. at 94 (Thomas, J., 

concurring in judgment). But by 2011, a “practical obstacle” 

to using sodium thiopental had emerged, “as anti-death penalty 

advocates pressured pharmaceutical companies to refuse to 

supply the drug” for executions. Glossip v. Gross, 135 S. Ct. 

2726, 2733 (2015). 
6

The Bureau then explored the possible use of other lethal 

substances. Its personnel visited state execution sites and 

evaluated their protocols. BOP also consulted with medical 

experts, reviewed assessments of difficult executions, and 

studied relevant judicial decisions. It considered several

options, including three-drug protocols using other

barbiturates, three-drug protocols using weaker sedatives, and 

one-drug protocols. 

After extensive study, the Bureau recommended use of a 

single barbiturate—pentobarbital—to carry out federal 

executions. It noted that many recent state executions had used 

pentobarbital without difficulty and that courts repeatedly have

upheld the constitutionality of its use for executions. Further, 

BOP had located a “viable source” for obtaining it. App. 15, 

19.

For these reasons, the Bureau proposed a two-page 

addendum to its main execution protocol. The United States 

Marshals Service concurred in the proposal. On July 24, 2019, 

the Attorney General approved the addendum and directed the 

Bureau to adopt it. BOP did so the next day. This 2019 

addendum makes pentobarbital the sole lethal substance to be 

used in federal executions. The addendum also specifies 

procedural details such as dosage, identification of appropriate 

injection sites, and the number of backup syringes.

C

This appeal arises from several consolidated cases in 

which twelve death-row inmates challenge the federal

execution protocol. The first of these cases was filed in 2005, 

by three inmates who are not parties to this appeal. With the 

government’s consent, the district court stayed their executions 

pending the decision in Hill v. McDonough, 547 U.S. 573 

(2006). The government subsequently requested that the case 
7

be stayed pending the decision in Baze. With no objection from 

the inmates, the district court granted the request. In 2011, the 

government announced that it lacked the substances necessary 

to implement its execution protocol. From then through 2019, 

the consolidated cases were stayed, and the government 

submitted status reports explaining that its revision of the 

protocol was ongoing. During that time, one of the plaintiffs 

involved in this appeal—Alfred Bourgeois—filed a complaint 

challenging the unrevised protocol. On the parties’ joint

motion, that lawsuit was stayed pending the revision.

On July 25, 2019, the Department of Justice informed the 

district court that it had adopted a revised protocol providing 

for the use of pentobarbital. That same day, DOJ set execution 

dates for the four plaintiffs involved in this appeal: Daniel Lee, 

Wesley Purkey, Dustin Honken, and Bourgeois. Each of them 

moved for a preliminary injunction. Collectively, they claimed

that the 2019 protocol and addendum violate the FDPA, the 

Administrative Procedure Act, the Federal Food, Drug, and 

Cosmetic Act, the Controlled Substances Act, and the First, 

Fifth, Sixth, and Eighth Amendments to the Constitution.

On November 20, 2019, the district court issued a 

preliminary injunction prohibiting the government from 

executing any of the four plaintiffs. In re Fed. Bureau of 

Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019 

WL 6691814 (D.D.C. Nov. 20, 2019). The court held that the 

plaintiffs were likely to succeed on the merits of their claim

“that the 2019 Protocol exceeds statutory authority.” Id. at *7. 

In particular, the court concluded that “the FDPA gives 

decision-making authority regarding ‘implementation’” of 

federal death sentences to states. Id. at *4. Thus, “insofar as 

the 2019 Protocol creates a single implementation procedure it 

is not authorized by the FDPA.” Id. at *7. The court reasoned

that the requirement to conduct executions “in the manner 
8

prescribed” by state law likely applies both to the selection of 

an execution method, such as lethal injection, and to

“additional procedural details” such as the precise procedures 

for “how the intravenous catheter is to be inserted.” Id. at *4, 

*6. The court did not address whether the plaintiffs were likely 

to succeed on their various other claims. The court further held 

that the balance of equities and the public interest favored a

preliminary injunction. Id. at *7.

The government filed an interlocutory appeal under 28 

U.S.C. § 1292(a)(1) and moved this Court immediately to stay 

or vacate the injunction. Without addressing the merits, we 

concluded that the motion did not meet “the stringent 

requirements for a stay pending appeal.” Order at 1, Roane v. 

Barr, No. 19-5322 (D.C. Cir. Dec. 2, 2019). 

The government applied to the Supreme Court for an 

emergency stay or vacatur of the preliminary injunction. The

Court denied the application but directed us to decide the 

government’s appeal “with appropriate dispatch.” Barr v. 

Roane, 140 S. Ct. 353 (2019 mem.). Three justices explained 

their view that the government was “very likely” to succeed on 

appeal. Id. (statement of Alito, J.). 

We then ordered expedited briefing and argument on the 

government’s appeal. 

II

A preliminary injunction is “an extraordinary remedy that 

may only be awarded upon a clear showing that the plaintiff is 

entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008). 

A party “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 
9

the public interest.” Id. at 20. On appeal, we review the district 

court’s legal conclusions de novo and its weighing of the four 

relevant factors for abuse of discretion. Abdullah v. Obama, 

753 F.3d 193, 197–98 (D.C. Cir. 2014). 

In reviewing a district court’s conclusion as to likelihood

of success, “[t]here are occasions ... when it is appropriate to 

proceed further and address the merits” directly. Munaf v. 

Geren, 553 U.S. 674, 689–92 (2008);see also Wrenn v. District 

of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). For several 

reasons, we exercise our discretion to resolve the merits of 

plaintiffs’ primary FDPA claim. This claim is a purely legal 

one, which the parties have briefed thoroughly. At oral 

argument, the parties agreed that we should decide it now. 

Finally, assessing only the likelihood of success would invite

further litigation and delays on remand, which would hardly 

constitute appropriate dispatch.

The plaintiffs press two distinct claims under the FDPA. 

The first, on which the district court found they were likely to 

succeed, involves the requirement to implement federal 

executions in the manner provided by state law. As explained 

in separate opinions that follow, Judge Katsas and Judge Rao 

both reject that claim on the merits. Judge Katsas concludes

that the FDPA regulates only the top-line choice among 

execution methods, such as the choice to use lethal injection 

instead of hanging or electrocution. Judge Rao concludes that 

the FDPA also requires the federal government to follow 

execution procedures set forth in state statutes and regulations, 

but not execution procedures set forth in less formal state 

execution protocols. Judge Rao further concludes that the 

federal protocol allows the federal government to depart from 

its procedures as necessary to conform to state statutes and 

regulations. On either of their views, the plaintiffs’ primary 

FDPA claim is without merit. Accordingly, the preliminary 
10

injunction must be vacated, and judgment for the government 

must be entered on this claim. 

Alternatively, the plaintiffs contend that the federal 

protocol and addendum reflect an unlawful transfer of authority 

from the United States Marshals Service to the Federal Bureau 

of Prisons. The district court did not address this claim, but the 

plaintiffs press it as an alternative basis for affirmance, and 

both parties ask us to resolve it. A court has discretion to 

consider alternative grounds for affirmance resting on purely 

legal arguments. See, e.g., United States v. Anthem, Inc., 855 

F.3d 345, 349 (D.C. Cir. 2017). And as noted above, in 

addressing likelihood of success on the merits, a court has

discretion to decide the claim. Two of us address the

alternative FDPA claim here. As explained in their separate 

opinions, Judge Katsas would reject the claim on the merits, 

and Judge Rao would hold that it was forfeited. 

The government also asks us to decide whether its protocol 

and addendum violate the notice-and-comment requirement of 

the Administrative Procedure Act. The district court did not 

reach that issue, and the plaintiffs urge us not to reach it. Judge 

Katsas and Judge Rao resolve the notice-and-comment claim

because, on their view, it involves purely legal questions

intertwined with the merits of the FDPA issues at the center of 

this appeal. On the merits, Judge Katsas and Judge Rao

conclude that the 2019 protocol and addendum are rules of 

agency organization, procedure, or practice exempt from the

APA’s requirements for notice-and-comment rulemaking. 

Judgment for the government must be entered on this claim.

Finally, the government asks us to reject the plaintiffs’ 

claims under the Food, Drug, and Cosmetic Act and the 

Controlled Substances Act. We decline to do so because those 

claims were neither addressed by the district court nor fully 
11

briefed in this Court. We do share the government’s concern 

about further delay from multiple rounds of litigation. But the 

government did not seek immediate resolution of all the

plaintiffs’ claims, including the constitutional claims and the

claim that the protocol and addendum are arbitrary and 

capricious under the APA. Thus, regardless of our disposition, 

several claims would remain open on remand. 

III

The Court vacates the preliminary injunction and remands 

the case to the district court for further proceedings consistent 

with this opinion. For the reasons given in his separate opinion, 

Judge Tatel dissents. 

So ordered.
KATSAS, Circuit Judge, concurring: The principal 

question in this appeal is what constitutes a “manner” of 

execution within the meaning of the Federal Death Penalty Act 

(FDPA). The government says that “manner” here means 

“method,” such that the FDPA regulates only the top-line 

choice among execution methods such as hanging,

electrocution, or lethal injection. The plaintiffs, the district 

court, and Judge Tatel say that “manner” encompasses any 

state execution procedure, down to the level of how 

intravenous catheters are inserted. Judge Rao agrees, at least if 

the procedure is set forth in a state statute or regulation.

In my view, the government is correct. The FDPA’s text, 

structure, and history show that “manner” refers only to the 

method of execution. Moreover, the federal execution protocol 

does not violate the FDPA by transferring authority from the 

United States Marshals Service to the Federal Bureau of 

Prisons. Furthermore, the protocol did not need to be 

promulgated through notice-and-comment rulemaking. For 

these reasons, I would vacate the preliminary injunction and 

remand the case with instructions to enter judgment for the 

government on the plaintiffs’ FDPA and notice-and-comment 

claims. Finally, apart from the merits, I would vacate the 

preliminary injunction because the balance of equities tips 

decidedly in favor of the government.

I

A

The FDPA requires federal executions to be implemented 

“in the manner prescribed by the law of the State in which the 

sentence is imposed.” 18 U.S.C. § 3596(a). This appeal turns 

on the level of detail at which that provision operates. Does it 

cover the use of lethal injection rather than other execution 

methods such as hanging or electrocution? The selection of a 

lethal substance or substances? How much of the substance to 
2

inject, and how many syringes to use for the injections? How 

many intravenous lines to insert, and where to insert them? 

Who should insert the lines? In modern execution practice, 

governments address such issues systematically and in advance

of any execution. At the federal level, they are addressed by 

the FDPA, Department of Justice regulations, the federal 

execution protocol, and the protocol addendum. Likewise, at 

the state level, they are addressed in comparable detail by state 

statutes, regulations, and execution protocols.

The government contends that the “manner” of execution 

regulated by the FDPA is simply the method or mode of 

execution—the top-line choice among mechanisms of fatality 

such as hanging, firing squad, electrocution, lethal gas, or lethal 

injection. Under that interpretation, the federal protocol is

clearly consistent with the FDPA: Every state that authorizes 

capital punishment uses lethal injection “as the exclusive or 

primary means of implementing the death penalty.” Baze v. 

Rees, 553 U.S. 35, 42 (2008) (plurality opinion). The federal

regulations likewise designate lethal injection as the means for 

implementing capital punishment, 28 C.F.R. § 26.3(a)(4), and 

the federal protocol establishes procedures for these injections.

The district court and the plaintiffs read the FDPA much 

more broadly. According to the district court, the FDPA covers 

not only the method of execution but also “additional 

procedural details such as the substance to be injected or the 

safeguards taken during the injection.” In re Fed. Bureau of 

Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019 

WL 6691814, at *4 (D.D.C. Nov. 20, 2019). These “additional 

procedural details” include even provisions on “how the 

intravenous catheter is to be inserted.” See id. at *6. As an 

example, the district court cited state protocol provisions 

requiring the catheter to be inserted by “medically trained”

personnel, id. at *6 n.6, whereas the federal protocol requires 
3

the method of insertion to be determined based on “a 

recommendation from qualified personnel” or “the training and 

experience of personnel” on the execution team, App. 75. The 

plaintiffs largely embrace the district court’s position, though 

they seek to carve out exceptions for de minimis deviations 

from state procedures, as well as for procedures insufficiently 

related to implementation of the death sentence. 

1

In my view, the government is correct. All indicators of the 

FDPA’s meaning—statutory text, history, context, and 

design—point to the same conclusion. The FDPA requires 

federal executions to follow the method of execution provided 

by the law of the state in which the sentence is imposed, but it 

does not require federal executions to follow the “additional 

procedural details” invoked by the district court.

The district court began its analysis quite properly, by 

addressing the plain meaning of the critical word “manner.” 

The court recognized that the government’s position would be 

correct if the FDPA had addressed the “method” rather than the 

“manner” of execution, because the word “method” bears 

“particular meaning in the death penalty context”—i.e., it 

denotes the top-line choice among mechanisms of death such 

as hanging, electrocution, or lethal injection. In re Execution 

Protocol Cases, 2019 WL 6691814, at *4. But, the district 

court reasoned, “manner” is broader than “method” because 

one dictionary defines “manner” as “a mode of procedure or 

way of acting.” Id. (quotation marks omitted). This analysis 

overlooks other definitions, as well as the need to consider

statutory history and context, see, e.g., Nat’l Ass’n of Home 

Builders v. Defs. of Wildlife, 551 U.S. 644, 668–69 (2007); 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

132–33 (2000). Other dictionaries indicate that “manner” is 
4

synonymous with “method” as well as “mode.” See, e.g., 

Manner, Black’s Law Dictionary (6th ed. 1990) (“A way, 

mode, method of doing anything, or mode of proceeding in any 

case or situation.”). And history strongly indicates that, in the 

specific context of capital punishment, all three terms refer

only to the top-line choice. This is reflected in practices and 

usages throughout American history. 

First, consider hanging. In 1790, the First Congress 

enacted a bill providing that “the manner of inflicting the 

punishment of death, shall be by hanging the person convicted 

by the neck until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 

112, 119. Congress thus described “hanging” as “the” unitary 

“manner” of imposing capital punishment, without undertaking 

to specify subsidiary details such as the length of the rope, how 

it would be fastened around the neck, or the training of the 

hangman. This approach followed the law of England, where

one common form of capital punishment was to be “hanged by 

the neck till dead.” 4 W. Blackstone, Commentaries on the 

Laws of England 370 (1769). Blackstone further stated that a 

“sheriff cannot alter the manner of the execution by 

substituting one death for another,” for “even the king cannot 

change the punishment of the law, by altering the hanging or 

burning into beheading.” Id. at 397–98 (emphasis added). This 

makes clear that hanging itself was considered a “manner” of 

execution, as distinct from burning or beheading. But no 

evidence suggests that the sheriff (or the king) could not 

improvise “procedural details” such as the length of the rope.

In using “manner” to mean “method,” the First Congress 

followed common historical usage. See, e.g., 1 J. Ash, The New 

and Complete Dictionary of the English Language (2d ed. 

1795) (defining “manner” as “[a] form, a method”); 2

S. Johnson, A Dictionary of the English Language (1755) 

(“Form; method.”). The use of hanging as “the manner” of 
5

carrying out federal executions remained unchanged from 1790 

until 1937. During that time, no federal officials undertook to 

regulate its “procedural details.” And during much of that time, 

hanging “was virtually never questioned,” even though a rope 

too long could produce a beheading, while a rope too short 

could produce a prolonged death by suffocation. Bucklew v. 

Precythe, 139 S. Ct. 1112, 1124 (2019) (quotation marks 

omitted).1 

Consider also practices and usages with respect to the firing 

squad, another common method of execution into the 1800s. 

In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court 

held that the use of a firing squad for executions does not 

violate the Eighth Amendment. The statute at issue provided 

for “death by being shot, hung, or beheaded,” and the court 

imposed a sentence requiring that the defendant be “shot until 

... dead.” Id. at 131–32 (quotation marks omitted). The 

legislature did not undertake to regulate subsidiary “procedural 

details” such as, in the case of a firing squad, the kind or 

number of guns, the type of ammunition, where the shooters 

would aim, or how far away they would stand. Nor did the 

sentencing court specify any of those details. And although

such details might have affected the likelihood of unnecessary 

suffering during the execution, the Court never suggested that 

the Eighth Amendment claim turned on any of them. To the 

1

 Judge Rao seeks to downplay the Crimes Act of 1790 as merely 

reflecting usage “on a single occasion.” Post, at 19. But that statute 

governed “the manner” of conducting federal executions for 147 

years, and it is a direct predecessor of the FDPA provision at issue 

here. It is obviously central to the question presented. Judge Rao 

notes that section 13 of the Crimes Act of 1790 set forth different, 

more detailed “manners” of committing the offense of maiming. Id.

at 14. True enough, but the FDPA traces back to section 33 of the 

Act, which, in the specific context of executions, used “manner” to 

refer only to the top-line choice of method.
6

contrary, it surveyed various rules and customs on whether 

death sentences would be carried out “by shooting or hanging.”

See id. at 132–36. Moreover, it described the governing statute 

as addressing “the manner” of execution, id. at 136, and it used 

the words “manner,” “method,” and “mode” interchangeably, 

see, e.g., id. at 134 (“shooting or hanging is the method”); id.

at 137 (sentence “let him be hanged by the neck” addresses “the 

mode of execution” (quotation marks omitted)).

The history of electrocution follows much the same pattern. 

Introduced in 1888, it soon became “the predominant mode of 

execution for nearly a century,” Baze, 553 U.S. at 42 (plurality 

opinion), and the Supreme Court promptly upheld it as 

constitutional, In re Kemmler, 136 U.S. 436 (1890). As 

Kemmler recounted, electrocution came to replace hanging 

because it was thought to be a more humane “manner” or 

“method” or “mode” of execution—terms the Court again used 

interchangeably. See id. at 442–47. Moreover, the underlying 

legal and policy debates were framed as a unitary choice 

between hanging and electrocution, and the reformers never 

undertook to prescribe subsidiary “procedural details” such as 

how strong an electric current would be used, where electrodes 

would be attached, how the electric chair would be tested, or 

who would train the electrocutioner. See id. at 444.2

2

Judge Rao highlights the Court’s statement that electrocution was 

painless when performed “in the manner contemplated by the [New 

York] statute.” Post, at 15; see Kemmler, 136 U.S. at 443–44. Here 

is the key statutory provision, quoted in its entirety: “The 

punishment of death must, in every case, be inflicted by causing to 

pass through the body of the convict a current of electricity of 

sufficient intensity to cause death, and the application of such current 

must be continued until such convict is dead.” Ch. 489, Laws of the 

State of New York § 505 (June 4, 1888), quoted in Kemmler, 136 
7

In sum, here is what a reasonably informed English speaker 

would have known as of 1937: For over 140 years, Congress 

had designated hanging as “the manner of inflicting the 

punishment of death” for federal capital sentences. English law 

likewise had described “hanging” as a permissible “manner” of 

executing a death sentence. “Manner” and “method” often 

were used interchangeably, including by the Supreme Court in 

assessing alternative execution methods such as hanging, firing 

squad, or electrocution. And nobody focused on subsidiary 

procedural details in the legal or policy debates over these 

various execution methods.

The 1937 Act did not disturb this settled understanding 

about the “manner” of executing capital punishment. To the 

contrary, although Congress changed the governing rule, it

preserved the underlying semantic understanding. Whereas the 

Crimes Act of 1790 had identified hanging as “the manner of 

inflicting the punishment of death,” 1 Stat. at 119, the 1937 Act 

provided a different rule for “[t]he manner of inflicting the 

punishment of death”—i.e., use “the manner prescribed by the 

laws of the State within which the sentence is imposed.” An 

Act To Provide for the Manner of Inflicting the Punishment of 

Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress’s 

decision to carry forward the legally operative text—regarding 

“the manner of inflicting the punishment of death”—also 

carried forward the prevailing understanding about what 

constituted a “manner” of execution. The reason for this is the 

settled canon of construction, framed by Justice Frankfurter

U.S. at 444–45. The statute thus required nothing more than 

electrocution. Judge Rao briefly notes other statutory details 

governing the timing, location, and witnesses of the execution. Post, 

at 16 n.9. They would have had no conceivable bearing on the 

painlessness of electrocution, and they were irrelevant to the one

“manner” question that the Court framed, discussed, and decided—

the unitary choice between electrocution and hanging. 
8

and routinely applied since, that “if a word is obviously 

transplanted from another legal source, whether the common 

law or other legislation, it brings the old soil with it.” 

Frankfurter, Some Reflections on the Reading of Statutes, 47 

Colum. L. Rev. 527, 537 (1947). See, e.g., Taggart v. 

Lorenzen, 139 S. Ct. 1795, 1801 (2019); Stokeling v. United 

States, 139 S. Ct. 544, 551 (2019); Hall v. Hall, 138 S. Ct. 

1118, 1128 (2018).

3

3

 Judge Rao seeks to downplay this canon in contending that 

Congress’s usage in 1790 ought not matter much. She says that to 

maintain consistent usage of “manner” in successor statutes is to 

confuse the word’s abstract “sense,” which must remain fixed, with 

its concrete “reference,” which can evolve. Post, at 19–20. She 

bases this view on a law-review article that seeks to link originalism 

to the theory of proper names espoused by the philosopher Gottlob 

Frege, in pursuit of a “middle ground” between the interpretive 

approaches of Justice Scalia and Justice Stevens. Green, Originalism 

and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 558 

(2006). Put aside the fact that leading philosophers hotly debate 

whether proper names even have a “sense” apart from their 

“reference.” See, e.g., S. Kripke, Naming and Necessity 22–70 

(1980). Put aside the fact that no Supreme Court Justice or opinion 

has adopted Professor Green’s account of how legal text is “partially 

living and partially dead.” Green, supra, at 559. Put aside the fact 

that, in my view, Justice Scalia was right that legal text has “a fixed 

meaning, which does not change.” A. Scalia, Scalia Speaks: 

Reflections on Law, Faith, and Life Well Lived 188 (E. Whelan & 

C. Scalia eds., 2017). Even on Professor Green’s account, the 

reference to a top-line execution method in the Crimes Act of 1790 

has significant interpretive weight in construing that statute (and its 

successors) over time. See Green, supra, at 560 (“While the framers 

are fallible regarding the reference of their [legal] language, they are 

still extremely useful guides.”). Thus, even accepting Professor 

Green’s theory, Judge Rao errs by failing to give substantial weight 

to how Congress used “manner” in the Crimes Act of 1790. 
9

Likewise, the FDPA carried forward the relevant language 

and “old soil” from the 1937 Act. In fact, the statutes are 

virtually identical in all relevant respects. Both statutes provide 

for implementation of federal death sentences in the “manner” 

provided by state law. Compare 18 U.S.C. § 3596(a) (United 

States marshal “shall supervise implementation of the sentence 

in the manner prescribed by the law of the State in which the 

sentence is imposed”), with 50 Stat. at 304 (“The manner of 

inflicting the punishment of death shall be the manner 

prescribed by the laws of the State within which the sentence 

is imposed.”). Both statutes permit, but do not require, the use 

of state facilities for federal executions. Compare 18 U.S.C. 

§ 3597(a) (“A United States marshal charged with supervising 

the implementation of a sentence of death may use appropriate 

State or local facilities for the purpose, may use the services of 

an appropriate State or local official or of a person such an 

official employs for the purpose, and shall pay the costs thereof 

in an amount approved by the Attorney General.”), with 50 

Stat. at 304 (“The United States marshal charged with 

execution of the sentence may use available State or local 

facilities and the services of an appropriate State or local 

official or employ some other person for such purpose, and pay 

the cost thereof in an amount approved by the Attorney 

General.”). And for convictions in states with no death penalty, 

both statutes require conformity to the “manner” of execution 

in some other state designated by the sentencing judge. 

Compare 18 U.S.C. § 3596(a) (“If the law of the State does not 

provide for implementation of a sentence of death, the court 

shall designate another State, the law of which does provide for 

the implementation of a sentence of death, and the sentence 

shall be implemented in the latter State in the manner 

prescribed by such law.”), with 50 Stat. at 304 (“If the laws of 

the State within which sentence is imposed make no provision 

for the infliction of the penalty of death, then the court shall 

designate some other State in which such sentence shall be 
10

executed in the manner prescribed by the laws thereof.”). This 

wholesale copying surely indicates the preservation—not

abrogation—of previously settled understandings.

Nothing in 1994 usage compels a different understanding. 

To the contrary, at that time, many state statutes continued to 

describe the “manner” of execution as a top-line choice among 

methods such as electrocution, lethal gas, or lethal injection. 

See, e.g., Cal. Penal Code § 3604(a), (d) (1994) (“manner of 

execution” is either by “lethal gas” or “intravenous injection of 

a substance or substances in a lethal quantity sufficient to cause 

death”); La. Rev. Stat. Ann. § 15:569 (1994) (“manner of 

execution” is either “electrocution,” defined as “causing to pass 

through the body of the person convicted a current of electricity 

of sufficient intensity to cause death,” or “lethal injection,” 

defined as “the intravenous injection of a substance or 

substances in a lethal quantity into the body of a person 

convicted”); Mo. Rev. Stat. § 546.720 (1994) (“The manner of 

inflicting the punishment of death shall be by the 

administration of lethal gas or by means of the administration 

of lethal injection.”); Vt. Stat. Ann. tit. 13, § 7106 (1994) 

(“Manner of execution” is “causing to pass through the body of 

the convict a current of electricity of sufficient intensity to 

cause death”). A handful of state statutes went one small step 

further, by using “manner” to refer to types of lethal 

substances. But none of them required the use of any particular 

substance, much less even more granular details. See Colo. 

Rev. Stat. § 16-11-401 (1994) (“The manner of inflicting the 

punishment of death shall be by the administration of a lethal 

injection,” defined as “continuous intravenous injection of a 

lethal quantity of sodium thiopental or other equally or more 

effective substance sufficient to cause death.”); Md. Code 

Ann., Crimes and Punishments § 71(a) (1994) (“The manner of 

inflicting the punishment of death shall be the continuous 

intravenous administration of a lethal quantity of an ultrashort-
11

acting barbiturate or other similar drug in combination with a 

chemical paralytic agent.”);4 Miss. Code Ann. § 99-19-51 

(1994) (similar to Maryland, but with alternative provision that 

“the manner of inflicting the punishment of death shall be by 

lethal gas”); Okla. Stat. tit. 22, § 1014 (1994) (“Manner of 

inflicting punishment of death” is either “continuous, 

intravenous administration of a lethal quantity of an ultrashortacting barbiturate in combination with a chemical paralytic 

agent,” or “electrocution” or “firing squad”).5

As of 1994, Supreme Court decisions reflected similar 

understandings. Between 1937 and 1994, the Court became 

much more active in policing capital punishment. But the 

Court never retreated from its holdings that the firing squad and

electrocution are constitutional methods of execution. 

Likewise, the Court had not yet approved granular, post-habeas 

challenges to the specific details of an execution. To the 

contrary, in Gomez v. United States District Court, 503 U.S. 

653 (1992) (per curiam), the Court summarily rejected a claim 

that “execution by lethal gas” violated the Eighth Amendment, 

and it did so because the claim had not been properly channeled 

through the federal habeas statute. Id. at 653–54. The Court’s 

first, tentative approval of claims challenging procedural 

details such as the method of “venous access” did not come 

until a decade after the FDPA was enacted, Nelson v. 

4

 Three other states used a similar formulation. See N.H. Rev. Stat. 

Ann. § 630:5, XIII (1994); N.M. Stat. § 31-14-11 (1994); S.D. 

Codified Laws § 23A-27A-32 (1994).

5

 Despite this occasional, slightly broader usage of “manner” in state 

statutes, the traditional usage remained common, and no state statute 

even remotely addressed items such as the details of catheter 

insertion. In any event, the obvious model for the FDPA was the 

1937 federal statute, so it is by far the most important data point. 
12

Campbell, 541 U.S. 637 (2004), and its wholesale approval of 

post-habeas challenges to the details of lethal-injection 

protocols did not come until even later, Hill v. McDonough, 

547 U.S. 573 (2006).6

In sum, practices and usages in 1994 mirrored those in 

1937: Inquiries into the manner or method of execution 

focused on the choice between say, lethal gas or lethal 

injection—not the choice of specific lethal agents or 

procedures for releasing the gas or inserting the catheter. In 

common understanding, what mattered was the top-line choice.

Within the FDPA itself, statutory context reinforces this 

understanding. The FDPA states that the marshal responsible 

for supervising a federal execution “may use appropriate State 

or local facilities” and “may use the services of an appropriate 

State or local official.” 18 U.S.C. § 3597(a). These grants of 

authority would be unnecessary if section 3596(a), the 

“manner” provision directly at issue, independently required

the use of all state execution procedures. After all, states 

conduct executions in designated state facilities. See, e.g., Ind. 

Code § 35-38-6-5 (2019) (“inside the walls of the state 

prison”); Mo. Rev. Stat. § 546.720 (2019) (“within the walls of 

a correctional facility of the department of corrections”); Tex.

Dep’t of Crim. Justice, Execution Procedure § III.B (2019) 

(Huntsville Unit). Thus, if section 3596 required use of state 

facilities, section 3597 accomplished nothing by permitting 

their use. Of course, interpretations that create surplusage are 

disfavored. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 

6

Judge Rao cites a handful of judicial opinions loosely using the 

word “manner” to refer to subsidiary execution details. Post, at 4–5 

& n.2. Three of them post-date Nelson and Hill—the first Supreme 

Court decisions to suggest that such details might have any legal 

relevance. Two others are either lower-court decisions or dissents. 

None involves a statutory usage of “manner.”
13

(2001). The plaintiffs respond that section 3597 creates a 

“limited exception to Section 3596, permitting (but not 

requiring) the Government to use its own facilities.” 

Appellees’ Br. 30 n.6. But that makes section 3597 even 

stranger, for providing that the federal government “may” use 

“State” facilities would be a remarkably clumsy way of 

permitting the federal government to use federal facilities.

Finally, consider statutory design. In “ascertaining the 

plain meaning of the statute, the court must look to the 

particular statutory language at issue, as well as the language 

and design of the statute as a whole.” K Mart Corp. v. Cartier, 

Inc., 486 U.S. 281, 291 (1988). Here, the plaintiffs’ 

interpretation of “manner” would frustrate a principal objective

of the Federal Death Penalty Act—to provide for an 

administrable scheme of capital punishment. As Justice Alito 

explained, the plaintiffs’ interpretation “would require the BOP 

to follow procedures that have been attacked as less safe than 

the ones the BOP has devised (after extensive study); it would 

demand that the BOP pointlessly copy minor details of a State’s 

protocol; and it could well make it impossible to carry out 

executions of prisoners sentenced in some States.” Barr v. 

Roane, 140 S. Ct. 353, 353 (2019) (statement of Alito, J.). The 

plaintiffs dismiss these points as mere policy arguments, but 

they are more than that.

The FDPA was enacted as Title VI of the Violent Crime

Control and Law Enforcement Act of 1994. See Pub. L. No. 

103-322, § 60001, 108 Stat. 1796, 1959. These statutes sought 

to ensure a workable and expanded system of capital 

punishment. The larger statute created more than two dozen 

new capital offenses. See DOJ, Criminal Resource Manual

§ 69 (2020). And the FDPA established procedures to ensure

the fair administration of capital punishment—by specifying 

aggravating circumstances that a jury must find in order to 
14

render the defendant eligible for the death penalty, 18 U.S.C. 

§ 3592(b)–(d); by allowing a jury to consider any mitigating 

circumstances, id. § 3592(a); and by requiring separate guilt 

and sentencing determinations, id. § 3593. These provisions 

cured potential Eighth Amendment problems, see, e.g., 

Maynard v. Cartwright, 486 U.S. 356, 361–63 (1988) 

(aggravating factors); Eddings v. Oklahoma, 455 U.S. 104, 

110–12 (1982) (mitigating factors); Gregg v. Georgia, 428 

U.S. 153, 190–92 (1976) (plurality opinion) (separate 

sentencing hearing), to ensure that the scheme would be usable. 

Finally, the FDPA contains one provision specifically designed 

to prevent the choices of an individual state from effectively 

nullifying the federal death penalty. It provides: “If the law of 

the State does not provide for implementation of a sentence of 

death, the court shall designate another State, the law of which 

does provide for the implementation of a sentence of death ....” 

18 U.S.C. § 3596(a).

The plaintiffs do not dispute that this scheme would be 

upset if individual states could effectively obstruct the federal 

death penalty. Yet their interpretation would make such 

obstruction likely. For example, states could block federal 

death sentences by refusing to disclose their full execution 

protocols. Some might do so because of moratoria on the use 

of capital punishment, like those ordered by the governors of 

California and Pennsylvania.7 Other states simply may wish 

not to assist in the enforcement of federal law. See, e.g., Printz 

v. United States, 521 U.S. 898, 923 (1997). And state statutes 

may prohibit disclosure of state execution protocols. See, e.g., 

Ark. Code Ann. § 5-4-617(i)(1) (2019). The plaintiffs’ only 

7 See Calif. Exec. Order No. N-09-19 (Mar. 13, 2019); Governor 

Tom Wolf Announces a Moratorium on the Death Penalty in 

Pennsylvania, Office of the Pa. Gov. (Feb. 13, 2015), https://www.

governor.pa.gov/newsroom/moratorium-on-the-death-penalty-inpennsylvania.
15

response is that the federal government obtained several state 

protocols in developing its own 2019 protocol. Yet while about

thirty states authorize capital punishment, the federal 

government was able to obtain only five actual state protocols,

plus a “summary” of the others provided by a private advocacy 

group. App. 10. 

Adherence to the minutiae of state execution protocols is 

not only pointless, but practically impossible. State protocols 

are as detailed as the federal one—from Arkansas’s colorcoding to ensure that three lethal agents are properly separated 

among nine syringes, Arkansas Lethal Injection Procedure, 

Attachment C, § III.5.a (Aug. 6, 2015), to Indiana’s seventeenstep “procedure for venous cut down,” Ind. Dep’t of Corr., 

Facility Directive ISP 06-26: Execution of Death Sentence, 

Appendix A (Jan. 22, 2014). Conducting a single execution 

under the federal protocol requires extensive preparation by a 

trained execution team of over 40 individuals, as well as further 

support from 250 more individuals at the federal execution 

facility in Terre Haute, Indiana. App. 93–94. Simultaneously 

managing the same logistical challenges under a few dozen 

state protocols—all different—would be all but impossible. 

The plaintiffs offer two limiting principles to mitigate this 

problem, but neither would work. First, they suggest a de 

minimis exception to the otherwise unyielding requirement to 

follow state procedures. But that would invite endless 

litigation over which requirements are de minimis. Must the 

federal government follow state provisions regarding the 

number of backup syringes? Compare App. 75 (two sets under 

federal protocol), with Mo. Dep’t of Corr., Preparation and 

Administration of Chemicals for Lethal Injection §§ B, E (one 

set under Missouri protocol). The type of catheters used? The 

selection of execution personnel? The training of those 

personnel? The same problem inheres in the plaintiffs’ related 
16

suggestion that some protocol details might not relate 

sufficiently to “implementation” of the sentence. Would that

exception cover rules for how long the inmate must remain 

strapped to the gurney? App. 40 (under federal protocol, 

between 30 minutes and three hours). Rules about whom the 

inmate may have present? Rules about the inmate’s final meal 

or final statement? Rules about opening and closing the 

execution chamber’s drapes? All such questions would be 

raised at the last minute—likely producing stays, temporary 

restraining orders, preliminary injunctions, and interlocutory 

appeals like this one, which will delay lawful executions for 

months if not years. In sum, the plaintiffs’ interpretation would 

make the federal death penalty virtually un-administrable.

8

 

2

The plaintiffs’ further counterarguments are unavailing. 

First, the plaintiffs highlight the statutory text immediately 

surrounding “manner”—the language stating that a United 

States marshal “shall supervise implementation” of a death 

sentence in the manner prescribed by state law. 18 U.S.C. 

§ 3596(a). The plaintiffs contend that “implementation” of a 

death sentence refers to the entire process for carrying it out, 

not just the use of a top-line execution method. But the only 

8

 Judge Rao correctly notes that bargains reflected in statutory text 

must be enforced as against generalized appeals to statutory purpose. 

Post, at 22–24. But statutory purpose, as reflected in “the language 

and design of the statute as a whole,” can help determine textual 

meaning or resolve textual ambiguity. See, e.g., K Mart, 486 U.S. at 

291. Judge Rao does not dispute that one significant purpose of the 

FDPA is to ensure an administrable system of capital punishment,

and her own analysis thus properly considers whether the plaintiffs’ 

proposed construction would raise “practical, and perhaps 

insurmountable, difficulties to the implementation of federal death 

sentences.” Post, at 12–13.
17

implementing detail that must follow state law is the “manner” 

of carrying out the execution—which begs the question of what 

that term does and does not encompass. 

The plaintiffs next invoke a different FDPA provision 

defining aggravating circumstances to include cases where 

“[t]he defendant committed the offense in an especially 

heinous, cruel, or depraved manner in that it involved torture 

or serious physical abuse to the victim.” 18 U.S.C. 

§ 3592(c)(6). They reason that this FDPA provision uses 

“manner” broadly, so other FDPA provisions must do likewise. 

But the presumption of consistent usage “readily yields to 

context, especially when” the term at issue “takes on distinct 

characters in distinct statutory provisions.” Return Mail, Inc. 

v. USPS, 139 S. Ct. 1853, 1863 (2019) (quotation marks 

omitted). That qualification perfectly fits this case, for each 

FDPA provision has its own history. As explained above, the 

provision regarding the “manner” of executing a death sentence 

traces back to the Crimes Act of 1790. In contrast, section 

3592(c)(6) was copied nearly verbatim from the Anti-Drug 

Abuse Act of 1988, see Pub. L. No. 100-690, § 7001, 102 Stat. 

4181, 4392, which in turn responded to a Supreme Court 

decision allowing consideration of a “heinous, atrocious, or 

cruel” aggravating factor only as narrowed to require “torture 

or serious physical abuse,” Cartwright, 486 U.S. at 363–65

(quotation marks omitted). Because section 3592(c)(6) carries 

its own “old soil,” the presumption of consistent usage must 

yield to context.

Finally, the plaintiffs stress that between 1995 and 2008, 

Congress failed to enact some nine bills that would have 

allowed federal capital punishment to be implemented in a 

manner independent of state law. But “failed legislative 

proposals are a particularly dangerous ground on which to rest 

an interpretation of a prior statute.” Cent. Bank of Denver, N.A. 
18

v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 

(1994) (quotation marks omitted). The plaintiffs highlight DOJ 

statements that the FDPA imperiled its 1993 regulation, which

establishes lethal injection as the sole method for federal 

executions. But those statements were made when some states 

still provided for electrocution “as the sole method of 

execution.” See Baze, 553 U.S. at 42–43 n.1 (plurality 

opinion). In 2009, Nebraska became the last death-penalty 

state to authorize lethal injection as a permissible execution 

method. See Act of May 28, 2009, L.B. 36, 2009 Neb. Laws 

52. After that, attempts to amend the FDPA ceased, as did 

DOJ’s support for them. So, DOJ’s current interpretation of 

the FDPA to encompass methods of execution, but not 

subsidiary procedural details, has been consistent.

3

Judge Rao takes a different approach advocated by none of 

the parties. In her view, the word “manner” is flexible enough, 

considered in isolation, to refer either to the top-line method of 

execution or to the full panoply of execution procedures. Post, 

at 1–6. So far, so good. She then reasons that, by requiring 

federal executions to be conducted “in the manner prescribed 

by the law of the State in which the sentence is imposed,” 

Congress specified “the level of generality” for interpreting the 

word “manner.” Id. at 1. She thus concludes that Congress

used “manner” in its broad sense, so as to include all execution 

procedures—no matter how picayune—that are “prescribed by 

the law of the State.” Id. at 22. For Judge Rao, as it turns out, 

the key to this case is not the word “manner,” but the phrase 

“prescribed by the law of the State.”

This account runs contrary to established rules of grammar 

and statutory interpretation. As a matter of grammar, the 

participial phrase “prescribed by the law of the State” functions 
19

as an adjective and modifies the noun “manner.” By using the 

adjective to construe the noun broadly, Judge Rao overlooks 

“the ordinary understanding of how adjectives work.” 

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 

368 (2018). “Adjectives modify nouns—they pick out a subset 

of a category that possesses a certain quality.” Id. They 

ordinarily do not expand the meaning of the noun they modify. 

Thus, “critical habitat” must first be “habitat.” See id. 

Likewise, “full costs” must first be “costs.” See Rimini Street, 

Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 878–79 (2019). And 

here, whatever is “prescribed by the law of the State” must first 

be a “manner” of execution. In short, the limiting adjective 

provides no basis for interpreting the noun broadly.

To be sure, adjectival phrases can clarify the meaning of 

ambiguous nouns by ruling out certain possibilities through 

context. For example, in the abstract, the noun “check” might 

refer to “an inspection, an impeding of someone else’s 

progress, a restaurant bill, a commercial instrument, a patterned 

square on a fabric, or a distinctive mark-off.” A. Scalia & 

B. Garner, Reading Law: The Interpretation of Legal Texts 70 

(2012). But when “check” is combined with the adjectival 

phrase “made payable to the IRS,” we know that the noun 

refers only to a commercial instrument. In this example, the 

phrase “made payable to the IRS” clarifies the meaning of 

“check” because it is consistent with only one possible 

understanding of it. 

The FDPA does not work like that. Divorced from its 

statutory history, the noun “manner” could mean either the topline execution method or all state execution procedures. But 

the adjectival phrase “prescribed by the law of the State” 

cannot resolve this ambiguity, because it is perfectly consistent 

with both meanings. On the one hand, states use their laws to 

prescribe the top-line method of execution. On the other hand, 
20

they also use their laws to specify additional procedural details. 

So the adjectival phrase “prescribed by the law of the State” 

tells us nothing about the meaning of the noun “manner”—and 

certainly does not undermine a historical understanding of that

term dating back to our country’s founding.9

Judge Rao stresses the assertedly limited scope of her 

reading of the FDPA. She interprets the phrase “prescribed by 

the law of the State” to mean execution procedures set forth 

only in state “statutes and regulations carrying the force of 

law,” but not in less formal state execution protocols. Post, at 

6. And that interpretation, she concludes, “mitigates many of 

the concerns raised by the district court’s broad reading” of the 

FDPA. Id. at 26. All of this is a good reason for rejecting an 

interpretation of the FDPA that encompasses procedural details 

set forth only in state execution protocols. But it is not a good 

reason for rejecting the historical understanding of “manner,” 

which creates no practical concerns about administrability.

Judge Rao also understates the practical difficulties with 

her proposed interpretation. For one thing, state statutes and 

regulations do contain many granular details. Consider just the 

four state death-penalty statutes before us in this case. The

Arkansas statute requires that catheters be “sterilized and 

prepared in a manner that is safe.” Ark. Code Ann. § 5-4-

617(f) (2019). The Indiana statute excludes lawyers from the 

persons who “may be present at the execution.” Ind. Code 

9

 To make the adjectival reference to state law narrow the noun

“manner,” Judge Rao must retreat to the position that “manner,” 

construed without reference to the adjectival phrase, “is broad 

enough to encompass execution procedures at every level of 

generality.” Post, at 9 n.5. As explained above, that position cannot 

be reconciled with historical usages and understandings tracing back 

to the First Congress. 
21

§ 35-38-6-6(a) (2019). The Missouri statute requires the 

execution chamber to be “suitable and efficient.” Mo. Rev. 

Stat. § 546.720.1 (2019). And the Texas statute prohibits the 

infliction of any “unnecessary pain” on the condemned 

prisoner. Tex. Code Crim. Proc. Ann. art. 43.24 (2019). 

Assimilating the various state statutes and regulations will 

present significant logistical challenges. And, of course, these 

various provisions will provide ample opportunity for lastminute stay litigation. 

Moreover, the line between “formal” regulations “carrying 

the force of law” and “informal policy or protocol,” post, at 6–

8, will be another fertile source of litigation. At the state level, 

how “formal” is formal enough? Even at the federal level, the 

question of which regulations have the force of law has been 

“the source of much scholarly and judicial debate.” Perez v. 

Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). Yet now, courts 

will be forced to confront every variation of that question 

arising out of the administrative law of some thirty states. 

What if a state administrative procedure act permits rulemaking 

through processes less formal than notice-and-comment? 

What if a warden may change protocol procedures unilaterally, 

but only under limited circumstances? What if a state court 

moves the goalposts with an unexpected interpretation of the 

governing rules? Litigation over such matters will foreclose

any realistic possibility for the prompt execution of federal 

death sentences.10

10

 To be clear, I agree with Judge Rao that the FDPA’s reference to 

“law of the State” covers only state statutes and binding regulations.

Post, at 6–8. I also agree with Judge Rao that because the state 

protocols in this case “do not appear to have the binding force of law, 

they cannot be deemed part of the ‘law of the State.’” Id. at 28 n.15.

Accordingly, those propositions constitute holdings of this Court. 
22

* * * *

For all these reasons, I would hold that the FDPA requires 

the federal government to follow state law regarding only the 

method of execution and does not regulate the various 

subsidiary details cited by the plaintiffs and the district court. 

On that interpretation, the plaintiffs’ primary FDPA claim is 

without merit.

B

In the alternative, the plaintiffs contend that the 2019 

protocol violates the FDPA by impermissibly shifting authority 

from the United States Marshals Service to the Federal Bureau 

of Prisons. The plaintiffs rest this argument on FDPA 

provisions requiring a United States marshal to “supervise 

implementation” of the death sentence. 18 U.S.C. § 3596(a); 

see also id. § 3597(a). The district court did not reach this 

argument, but the parties have briefed it and the plaintiffs urge 

it as an alternative ground for affirmance.

The execution protocol does not strip the Marshals Service

of the power to supervise executions. To the contrary, it

requires a “United States Marshal designated by the Director 

of the USMS” to oversee the execution and to direct which 

other personnel may be present at it. App. 30. The “execution 

process,” which starts at least thirty minutes before the actual 

execution, cannot begin without the marshal’s approval. App. 

40. The same is true for the execution itself. App. 44, 68. 

Individuals administering the lethal agents are “acting at the 

See Marks v. United States, 430 U.S. 188, 193–94 (1977). But I do 

not share Judge Rao’s optimism that a “law of the State” limitation, 

imposed on an otherwise unbounded interpretation of “manner,” will 

avoid “practical, and perhaps insurmountable, difficulties to the 

implementation of federal death sentences.” Post, at 12–13.
23

direction of the United States Marshal.” App. 74. And once 

the execution is complete, the marshal must notify the court 

that its sentence has been carried out. App. 44–45. The 

protocol thus tasks the USMS with supervising executions.

In any event, federal law vests all powers of DOJ

components in the Attorney General and permits him to 

reassign powers among the components. “All functions of 

other officers of the Department of Justice and all functions of 

agencies and employees of the Department of Justice are vested 

in the Attorney General.” 28 U.S.C. § 509. The Marshals 

Service is “a bureau within the Department of Justice under the 

authority and direction of the Attorney General.” Id. § 561(a). 

Its powers are thus ultimately vested in the Attorney General. 

Moreover, the Attorney General may delegate his powers to 

“any other officer, employee, or agency of the Department of 

Justice.” Id. § 510. Together, these provisions permit the

Attorney General to reassign duties from the Marshals Service

to the Bureau of Prisons.

The plaintiffs invoke United States v. Giordano, 416 U.S. 

505 (1974). There, the Supreme Court held that a statute 

“expressly” limiting the Attorney General’s power to delegate 

wiretap authority to a handful of enumerated officials qualified

his general authority to reassign DOJ functions. Id. at 514. But 

the FDPA contains no such language expressly prohibiting the 

Attorney General from deciding or delegating matters relating 

to executions. For these reasons, the protocol allocates duties 

consistent with the FDPA, so the plaintiffs’ alternative FDPA 

argument is also without merit.

11

11

 Judge Rao contends that the plaintiffs forfeited this argument by 

not raising it below. Post, at 32. But plaintiff Lee, in support of his 

motion for a preliminary injunction, identified eight provisions in the 
24

C

The federal protocol is both a procedural rule and a general 

policy statement exempted from the notice-and-comment 

requirements of the Administrative Procedure Act. See 5 

U.S.C. § 553(b)(3)(A).

“The critical feature of a procedural rule is that it covers 

agency actions that do not themselves alter the rights or 

interests of parties.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d

243, 250 (D.C. Cir. 2014) (quotation marks omitted). The 

federal protocol does not alter the plaintiffs’ rights or interests, 

which were all but extinguished when juries convicted and 

sentenced them to death. Moreover, pre-existing law 

establishes lethal injection as the method of execution, 28 

C.F.R. § 26.3(a)(4), and the protocol simply sets forth 

procedures for carrying out the injections. 

The execution protocol is also a general statement of 

agency policy. In defining this category, “[o]ne line of analysis 

execution protocol that he says impermissibly granted authority to 

the Bureau of Prisons. See Lee Mot. for Prelim. Inj., In re Execution 

Protocol Cases, No. 1:19-mc-145 (D.D.C.), ECF Doc. 13-1, at 10–

12. Lee argued that each of the provisions is “[c]ontrary to Section 

3596 of [the] FDPA, which only refers to the U.S. Marshal 

supervising implementation.” Id. Moreover, the government did not 

argue for a forfeiture, and thus “forfeited [the] forfeiture argument 

here.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014). And for 

several reasons, it would make good sense for us to excuse any 

forfeiture: The plaintiffs’ alternative FDPA claim turns on purely 

legal questions, it was fully briefed on appeal, both parties ask us to 

decide it, the Supreme Court has asked us to proceed with 

appropriate dispatch, and this claim, even if not pursued in the 

preliminary-injunction motions, would remain live on remand.
25

considers the effects of an agency’s action, inquiring whether 

the agency has (1) impose[d] any rights and obligations, or (2) 

genuinely [left] the agency and its decisionmakers free to 

exercise discretion.” Clarian Health West, LLC v. Hargan, 878 

F.3d 346, 357 (D.C. Cir. 2017) (quotation marks omitted). A 

second line “looks to the agency’s expressed intentions, 

including consideration of three factors: (1) the [a]gency’s own 

characterization of the action; (2) whether the action was 

published in the Federal Register or the Code of Federal 

Regulations; and (3) whether the action has binding effects on 

private parties or on the agency.” Id. (quotation marks 

omitted). Here, the protocol contains no rights-creating 

language. Just the opposite, it states that “[t]his manual 

explains internal government procedures and does not create 

any legally enforceable rights or obligations.” App. 24. 

Likewise, the protocol explicitly permits “deviation[s]” and 

“adjustment[s]” upon a determination “by the Director of the 

BOP or the Warden” that the deviation is “required,” thus 

preserving a healthy measure of agency discretion. Id. Finally, 

the protocol was published in neither the Code of Federal 

Regulations nor the Federal Register. 

For these reasons, the federal protocol was not subject to 

notice-and-comment requirements, and the plaintiffs’ contrary 

claim is without merit.

12

 

12

 Given the flexibility built into the federal protocol, I agree with 

Judge Rao that it may be adjusted to conform to state law to whatever 

extent the FDPA may require. Post, at 29–30. That saves the 

protocol itself from attack under Judge Rao’s construction of the 

FDPA. But, as explained above, it opens the door to a wide range of 

challenges to federal executions under the minutiae of state 

execution statutes and regulations.
26

II

Wholly apart from the merits, I would reverse the 

preliminary injunction because the balance of harms and the 

public interest strongly favor the government. The party 

seeking a preliminary injunction “must establish” not only a 

likelihood of success on the merits, but also “that the balance 

of equities tips in his favor, and that an injunction is in the 

public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); see 

also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 

(1987). And appellate courts may reverse preliminary 

injunctions where, apart from the merits, the district court’s 

equitable balancing constituted an abuse of discretion. See 

NRDC, 555 U.S. at 24–26, 32.

In this case, the district court failed to recognize the 

important governmental and public interest in the timely 

implementation of capital punishment. The court concluded

that any “potential harm to the government caused by a delayed 

execution is not substantial.” In re Execution Protocol Cases, 

2019 WL 6691814, at *7. In contrast, the Supreme Court 

frequently has explained that “both the [government] and the 

victims of crime have an important interest in the timely 

enforcement of a [death] sentence,” which is frustrated by 

decades of litigation-driven delay. Bucklew, 139 S. Ct. at 1133

(quotation marks omitted). Indeed, “when lengthy federal 

proceedings have run their course”—as is the case here—

“finality acquires an added moral dimension.” Calderon v. 

Thompson, 523 U.S. 538, 556 (1998). “Only with an assurance 

of real finality can the State execute its moral judgment in a 

case.” Id. And “[o]nly with real finality can the victims of 

crime move forward knowing the moral judgment will be 

carried out.” Id. “To unsettle these expectations is to inflict a 

profound injury to the ‘powerful and legitimate interest in 
27

punishing the guilty.’” Id. (quoting Herrera v. Collins, 506 

U.S. 390, 421 (1993) (O’Connor, J., concurring)). 

These interests are magnified by the heinous nature of the 

offenses committed by the appellees—all of whom murdered 

children—as well as the decades of delay to date. 

In 1999, an Arkansas jury convicted Daniel Lee of three 

counts of murder in aid of racketeering. The murders were 

committed in 1996, during a robbery to fund a white 

supremacist organization. United States v. Lee, 374 F.3d 637, 

641 (8th Cir. 2004). After overpowering a couple and their 

eight-year-old daughter in their home, Lee and a confederate 

“shot the three victims with a stun gun, placed plastic bags over 

their heads, and sealed the bags with duct tape.” Id. at 641–42.

They then drove the family to a bayou, taped rocks to their 

bodies, and threw them into the water to suffocate or drown. 

Id. at 642. The Eighth Circuit affirmed Lee’s death sentence 

on direct review, id., and thrice denied him collateral relief, Lee 

v. United States, No. 19-3576 (8th Cir. Jan. 7, 2020); United 

States v. Lee, 792 F.3d 1021 (8th Cir. 2015); United States v. 

Lee, 715 F.3d 215 (8th Cir. 2013). Nonetheless, Lee continues 

to pursue a fourth round of collateral review. Lee v. United 

States, No. 2:19-cv-00468 (S.D. Ind. Dec. 5, 2019), 

preliminary injunction vacated by Lee v. Watson, No. 19-3399 

(7th Cir. Dec. 6, 2019).

In 2003, a Missouri jury convicted Wesley Purkey of the 

kidnapping, rape, and murder of sixteen-year-old Jennifer 

Long in 1998. United States v. Purkey, 428 F.3d 738, 744–45 

(8th Cir. 2005). After killing the girl, Purkey dismembered her 

body with a chainsaw and burned her remains. Id. at 745. The 

jury found nine aggravating factors, including that Purkey had 

previously bludgeoned a woman to death with a hammer. Id. 

at 746. The Eighth Circuit affirmed Purkey’s death sentence 
28

on direct review, id. at 744, and later denied him collateral 

relief, Purkey v. United States, 729 F.3d 860 (8th Cir. 2013).

In 2004, an Iowa jury convicted Dustin Honken of 

murdering five individuals in 1999, including two witnesses to 

his drug trafficking and two young children. United States v. 

Honken, 541 F.3d 1146, 1148 (8th Cir. 2008). Honken and an 

accomplice kidnapped one witness, the witness’s girlfriend, 

and her six- and ten-year-old daughters. Honken murdered all 

four execution-style, by shooting each in the head. Id. at 1149–

51. Four months later, Honken murdered another prospective

witness against him. Id. at 1148, 1151. Then, while in prison 

awaiting trial, he made plans to murder additional witnesses. 

Id. at 1150–51. Because Iowa has no death penalty, the district 

court ordered Honken to be executed in the manner provided 

by Indiana law. The Eighth Circuit affirmed the death sentence 

on direct appeal, id. at 1148, and then declined to set it aside on 

collateral review, see Honken v. United States, 42 F. Supp. 3d 

937, 1196–97 (N.D. Iowa 2013), certificate of appealability 

denied, No. 14-1329 (8th Cir. May 2, 2014).

In 2004, a Texas jury convicted Alfred Bourgeois of 

murdering his two-year-old daughter in 2002. United States v. 

Bourgeois, 423 F.3d 501, 503 (5th Cir. 2005). Before the 

murder, Bourgeois “systematically abused and tortured” the 

child—he punched her in the face, whipped her with an 

electrical cord, hit her head with a plastic bat so many times 

that it “was swollen like a football,” and later bragged to a 

fellow inmate that the “f––ing baby’s head got as big as a 

watermelon.” Id. He bit her, scratched her, and burned the 

bottom of her feet with a cigarette lighter. When others tried 

to clean the sores, Bourgeois “would stop them and jam his 

dirty thumb into the wounds, then force [her] to walk” on them. 

Id. After her training potty tipped over, Bourgeois repeatedly 

slammed the back of her head into a window. He refused to 
29

take the girl’s limp body to the hospital, but a passer-by called 

an ambulance. “The doctors sustained [her] on life support 

until her mother could get to the hospital, where the baby died 

in her mother’s arms the next day.” Id. at 505. In affirming 

the death sentence, the Fifth Circuit described this as “not a 

close case.” Id. at 512. That court later denied post-conviction 

relief. United States v. Bourgeois, 537 F. App’x 604, 605 (5th 

Cir. 2013) (per curiam).

These crimes were committed twenty-four, twenty-two, 

twenty-one, and eighteen years ago respectively. Each 

appellee received the full panoply of procedural protections 

afforded under the Constitution and the FDPA. Each received 

direct review and one or more rounds of collateral review. Yet 

now, supported by fifteen lawyers on just this appeal, they 

continue to litigate with a vengeance, ostensibly over the 

manner of their executions, but with the obvious and intended 

effect of delaying them indefinitely. As the Supreme Court 

noted in Bucklew, with apparent exasperation, the people and 

the surviving victims “deserve better.” 139 S. Ct. at 1134. 

The district court stressed that the government took eight 

years to craft its revised execution protocol. True enough, but 

things were fine in 2008, with a three-drug execution protocol 

in place and approved by the Supreme Court in Baze. Then 

began a long and successful campaign of obstruction by 

opponents of capital punishment, which removed sodium 

thiopental from the market by 2011 and made pentobarbital 

unavailable shortly thereafter. See Glossip v. Gross, 135 S. Ct.

2726, 2733 (2015). At that point, the government’s options 

were severely limited, and it can hardly be faulted for 

proceeding with caution. The government declined to press 

ahead with an available three-drug protocol using 

midazolam—a milder sedative than either sodium thiopental or 

pentobarbital—and two other substances to stop respiration 
30

and induce cardiac arrest. Its hesitation in the face of 

uncertainty proved reasonable, as four Justices would later 

describe this protocol as possibly “the chemical equivalent of 

being burned at the stake.” Id. at 2781 (Sotomayor, J., 

dissenting). 

Instead of proceeding with an inferior option, the 

government waited until pentobarbital again became available. 

That barbiturate—which can act as both sedative and lethal 

agent—is “widely conceded to be able to render a person fully 

insensate,” Zagorski v. Parker, 139 S. Ct. 11, 11–12 (2018)

(Sotomayor, J., dissenting from denial of application for stay 

and denial of certiorari), thus ensuring a painless execution. 

The government also took time to study the successful track 

record of pentobarbital, documenting its use without incident 

in more than 100 state executions, A.R. 929–30, as well as the 

many cases that have upheld its use,see, e.g., Zink v. Lombardi, 

783 F.3d 1089, 1102 (8th Cir. 2015) (en banc) (per curiam); 

Ladd v. Livingston, 777 F.3d 286, 289–90 (5th Cir. 2015). The 

government’s care in selecting an available and effective 

execution substance does not diminish the importance of 

carrying out the appellees’ sentences.

On the other side of the balance, a death sentence is of 

course serious business. But here, there is no dispute that the 

appellees may be executed by lethal injection, nor any 

colorable dispute that pentobarbital will cause anything but a 

swift and painless death. Instead, the plaintiffs contend only 

that their executions cannot occur until the federal government 

replicates every jot-and-tittle of the relevant state execution 

protocols. And in doing so, they would expose other death-row 

inmates to substances less reliably certain to ensure a painless 

death than is pentobarbital—including midazolam, which 

remains in use in five different states. A.R. 92–93. The claims 

before us are designed neither to prevent unnecessary suffering 
31

nor to ensure that needles are properly inserted into veins—a 

task that nurses routinely perform without difficulty. Instead, 

they are designed to delay lawful executions indefinitely. We 

should not assist in that undertaking.

* * * *

For these reasons, I would vacate the preliminary 

injunction and remand the case to the district court with 

instructions to enter judgment for the government on the 

plaintiffs’ FDPA claims and their notice-and-comment claims.
RAO, Circuit Judge, concurring: The Department of 

Justice specified a range of procedures to govern federal 

executions in its 2019 protocol and addendum. Plaintiffs allege

that the Department’s protocol is inconsistent with the Federal 

Death Penalty Act (“FDPA”), which requires that federal 

executions be implemented “in the manner prescribed by the 

law of the State in which the sentence is imposed.” 18 U.S.C.

§ 3596(a). At every stage of this litigation, the debate has 

centered on whether “manner” should be read at a particular 

level of generality. The word “manner,” however, cannot be 

interpreted in isolation. It is a broad, flexible term whose 

specificity depends on context. The FDPA explicitly defines 

the level of generality of “manner”: It is the “manner prescribed 

by the law of the State.” Thus, the FDPA requires the federal 

government to apply state law—that is, statutes and formal

regulations—at whatever level of generality state law might be 

framed. Where state law is silent, the federal government has 

discretion to choose whatever lawful execution procedures it 

prefers. 

Under this interpretation, the Department of Justice’s 2019 

protocol is consistent with the FDPA. The protocol lays out a 

non-binding procedural framework that the federal government

may apply in most cases, and it allows the U.S. Marshal Service 

to depart from federal procedures when required—a carveout 

that naturally would encompass situations in which the 2019 

protocol conflicts with state law. I therefore agree to vacate the 

preliminary injunction. 

I.

Assessing the validity of the 2019 protocol requires us first 

to interpret the reach of the FDPA. The Department of Justice 

maintains that “manner” as used in the FDPA means only the 

method of execution—i.e., hanging, electrocution, or lethal 

injection—leaving the government free to set forth a uniform 

procedure for executions. The plaintiffs, on the other hand,
2

assert that “manner” means any procedures used by a state 

when implementing the death penalty, thereby precluding any

kind of uniform federal protocol. Neither reading comports 

with the FDPA when read as a whole. In the FDPA, Congress 

left certain choices regarding execution to the States. 

Considering the text and structure of the statute, I explain why 

the FDPA requires the federal government to apply only those 

execution procedures prescribed by a state’s statutes and 

formal regulations, but leaves the federal government free to 

specify other procedures or protocols not inconsistent with 

state law. Moreover, nothing in the statutory history offers a 

basis to override the plain meaning of the FDPA.

A. 

The FDPA provides that the U.S. Marshal “shall supervise 

implementation of the sentence [of death] in the manner 

prescribed by the law of the State in which the sentence is 

imposed.” 18 U.S.C. § 3596(a). The parties as well as my 

colleagues focus on the meaning of the word “manner.” As I 

explain, the word “manner” may refer to varying levels of 

specificity, both in its ordinary meaning and in the context of 

execution procedures. Reading “manner” alongside other 

words in Section 3596(a), as well as the statute as a whole,

demonstrates that the FDPA uses “manner” to include the 

positive law and binding regulations of a state—those 

procedures “prescribed by the law of the State.” State “law,” 

however, does not include informal procedures or protocols. In 

the absence of binding state law, the FDPA leaves other 

procedures to the discretion of the U.S. Marshal who must 

“supervise implementation of the sentence” of death.

1.

In ordinary usage, the word “manner” has a broad, flexible 

meaning. A “manner” is “a characteristic or customary mode 
3

of acting” or “a mode of procedure.” Manner, MerriamWebster’s Collegiate Dictionary (11th ed. 2014). Put 

differently, a “manner” is “[a] way of doing something or the 

way in which a thing is done or happens.” Manner, The 

American Heritage Dictionary of the English Language (5th 

ed. 2018). “Manner” may therefore refer to a general way of 

doing something or the more specific way in which an action 

is carried out. The word had a similarly broad meaning when 

the first two federal death penalty statutes were passed in 1790 

and 1937. See Manner, New International Dictionary of the 

English Language (2d ed. 1941) (“[A] way of acting; a mode 

of procedure; the mode or method in which something is done 

or in which anything happens.”); 2 S. Johnson, A Dictionary of 

the English Language (1755) (“Custom; habit; fashion.”).1

The word “manner” has the same flexible meaning in the 

execution context, as demonstrated by federal and state statutes 

and judicial decisions that use the word with varying levels of 

generality. As DOJ notes, the word is sometimes used to refer 

to a general execution method, and courts occasionally use the 

terms “manner” and “method” interchangeably; yet “manner” 

1

Judge Katsas makes much of the fact that eighteenth-century 

dictionaries, including Samuel Johnson’s, also defined “manner” as 

a “method,” Concurring Op. 4–5 (Katsas, J.), but he overlooks that 

those dictionaries defined “method” in broad terms. For instance, 

Johnson’s dictionary states: “Method, taken in the largest sense, 

implies the placing of several things, or performing several 

operations in such an order as is most convenient to attain some end.” 

2 S. Johnson, A Dictionary of the English Language (1755). This 

“largest sense” is the only definition Johnson provides for “method.”

Judge Katsas notes that “[o]ther dictionaries” also “indicate that 

‘manner’ is synonymous with ‘method’ as well as ‘mode.’” 

Concurring Op. 4 (Katsas, J.). These dictionaries, however, are not 

referring to the narrow sense of “method” employed in the execution 

context. 
4

is also frequently used to refer to granular details, including in 

the FDPA itself. In a provision governing aggravating factors

in homicide cases, the statute reads, “In determining whether a 

sentence of death is justified ..., the jury ... shall consider ... 

[whether] [t]he defendant committed the offense in an 

especially heinous, cruel, or depraved manner in that it 

involved torture or serious physical abuse to the victim.” 18 

U.S.C. § 3592(c)(6). In this instance, the “manner” of 

committing homicide refers not to the general method of 

killing, but to the precise way in which the offense was 

committed.

State legislatures also use the word “manner” to refer to 

the specifics of an execution procedure, including in some 

statutes the choice of lethal substance or method of injection. 

See, e.g., Miss. Code. Ann. § 99-19-51 (“The manner of 

inflicting the punishment of death shall be by the sequential 

intravenous administration of a lethal quantity of the following 

combination of substances ....”); Md. Code Ann., Correctional 

Services, § 3–905 (repealed in 2013) (“The manner of inflicting 

the punishment of death shall be the continuous intravenous 

administration of a lethal quantity of an ultrashort-acting 

barbiturate or other similar drug in combination with a 

chemical paralytic agent.”); Colo. Rev. Stat. Ann. § 18-1.3-

1202 (“The manner of inflicting the punishment of death shall 

be by the administration of a lethal injection .... For the 

purposes of this part 12, ‘lethal injection’ means a continuous 

intravenous injection of a lethal quantity of sodium thiopental 

or other equally or more effective substance.”).

Similarly, federal courts use the term “manner” variably to 

refer both to the method of execution and to the specifics of 

execution procedures. See Glossip v. Gross, 135 S. Ct. 2726, 

2741 (2015) (“[T]here is no scientific literature addressing the 

use of midazolam as a manner to administer lethal injections in 
5

humans.” (quoting a party’s expert report)); id. at 2790

(Sotomayor, J., dissenting) (“These assertions were amply 

supported by the evidence of the manner in which midazolam 

is and can be used.”); Baze v. Rees, 553 U.S. 35, 57 (2008) 

(plurality opinion) (“[T]he Commonwealth’s continued use of 

the three-drug protocol cannot be viewed as posing an 

‘objectively intolerable risk’ when no other State has adopted 

the one-drug method and petitioners proffered no study 

showing that it is an equally effective manner of imposing a 

death sentence.”); Holden v. Minnesota, 137 U.S. 483, 491 

(1890) (“[The state statute] prescribes ... the manner in which[]

the punishment by hanging shall be inflicted.”); Williams v. 

Hobbs, 658 F.3d 842, 849 (8th Cir. 2011) (“The prisoners next 

contend that they have demonstrated a facially plausible claim 

that the Act [which provides for lethal injection in all cases] ... 

increases mental anxiety before execution since the prisoners 

cannot know the manner in which they will be executed.”).2

These examples demonstrate that the word “manner” is used 

2 See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474 

(1947) (Burton, J., dissenting) (“The Supreme Court of Louisiana has 

held that electrocution, in the manner prescribed in its statute, is more 

humane than hanging.”); In re Kemmler, 136 U.S. 436, 443–44 

(1890) (“‘[T]he application of electricity to the vital parts of the 

human body, under such conditions and in the manner contemplated 

by the statute, must result in instantaneous, and consequently in 

painless, death.’” (citation omitted)); Harris v. Dretke, No. 04-

70020, 2004 WL 1427042, at *1 (5th Cir. June 23, 2004) (“David 

Harris appeals the dismissal of his suit ... challenging the manner in 

which the State of Texas intends to carry-out his execution by lethal 

injection.”).
6

frequently in the execution context as a broad term that may 

encompass any level of detail.3

2.

To determine the level of specificity of “manner” as used 

in the FDPA, I start with the language of Section 3596. Recall 

the statute provides that the U.S. Marshal “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). In this context, “manner” does not operate in 

isolation, but is modified by the requirement that the Marshal 

adopt the manner “prescribed by the law of the State.” The 

district court did not address this qualifying language, and both 

parties gloss over it. In defending the 2019 protocol, the 

government contends that the Marshal must apply only the 

state’s method of execution, without reference to other details 

that might be included in state law; the plaintiffs contend that 

the Marshal must apply all state procedures, again without 

reference to whether those procedures were prescribed by state 

law. The government’s distinction is not found anywhere in the 

FDPA, while the plaintiffs’ interpretation would read the 

phrase “prescribed by ... law” out of the statute entirely.

The ordinary meaning of “law of the State” refers to

binding law prescribed through formal lawmaking procedures.

In analogous contexts, the Supreme Court has read similar 

statutory language to incorporate only statutes and regulations 

carrying the force of law. For instance, the Court held in United 

3 As the question before us concerns the meaning of the FDPA and 

whether “manner” can include procedural details prescribed by state 

law, it is of no consequence that the Supreme Court recognized 

constitutional challenges to the procedural details of execution only 

relatively recently. See Concurring Op. 11–12 & n.6 (Katsas, J.).
7

States v. Howard that a Florida regulation was part of the “law 

of the state” because violations of the regulation were 

“punishable as a misdemeanor.” 352 U.S. 212, 216–17, 219

(1957). In Chrysler Corporation v. Brown, the Court held that 

the phrase “authorized by law” encompasses “properly 

promulgated, substantive agency regulations” that “have the 

‘force and effect of law.’” 441 U.S. 281, 295–96 (1979); see 

also Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 398 (1893) 

(“‘[T]he equal protection of the laws,’ ... means equal 

protection not merely by the statutory enactments of the state, 

but equal protection by all the rules and regulations which, 

having the force of law, govern the intercourse of its citizens 

with each other and their relations to the public.”); Samuels v. 

Dist. of Columbia, 770 F.2d 184, 199 (D.C. Cir. 1985) 

(“[T]hose federal regulations adopted pursuant to a clear 

congressional mandate that have the full force and effect of

law ... have long been recognized as part of the body of federal 

law.”). The Supreme Court has emphasized that something is 

“prescribed by law” when it includes binding requirements. Cf. 

United States v. Rodriquez, 553 U.S. 377, 390–91 (2008) 

(holding that the phrase “maximum term of imprisonment ... 

prescribed by law” refers to the statutory maximum, not the 

maximum set by sentencing guidelines, which do not bind a 

judge in all circumstances). Consistent with the deep-rooted 

conception of law as fixed and binding, I have not found, nor 

did the plaintiffs cite, any case in which the Supreme Court or 

this court has held that an informal policy or protocol was 

prescribed by law.

4

4

Judge Tatel argues that the four state execution protocols at issue 

in this case are in fact part of the “manner prescribed by the law of 

the State” because they were adopted pursuant to state statutes that 

“delegate to state prison officials the task of developing specific 

execution procedures.” Dissenting Op. 2. In other words, because 
8

In light of the FDPA’s requirement that the manner of 

execution be prescribed by state “law,” the district court’s 

expansive interpretation of Section 3596(a) fails because it 

includes state procedures regardless of whether they are part of 

state “law.” See Matter of Fed. Bureau of Prisons’ Execution 

Protocol Cases, No. 12-CV-0782, 2019 WL 6691814, at *6 

(D.D.C. Nov. 20, 2019) (citing informal execution policies 

from Texas, Missouri, and Indiana). The FDPA simply does 

not require the U.S. Marshal to follow aspects of a state 

execution procedure that were not formally enacted or 

promulgated. “[P]rescribed by the law of the State” sets an 

outer boundary on what the federal government must follow.

On the other hand, the statutory command also means that the 

federal government cannot look only to the “method” of 

execution prescribed by the state. The interpretation adopted 

by Judge Katsas and the government does not account for other 

details that might be included in state law and formal 

regulations. While, as discussed below, formal state law often 

“‘by law,’ each state directed its prison officials to develop execution 

procedures, and ‘by law,’ those officials established such procedures 

and set them forth in execution protocols,” Judge Tatel contends that 

the protocols are subsumed within the phrase “prescribed by ... law.” 

Id. at 4–5. Yet neither the Supreme Court nor our court has ever 

adopted such a capacious understanding of “law.” Instead, the 

Supreme Court has directed that we ask whether a protocol has the 

“force and effect of law,” Chrysler, 441 U.S. at 295–96, and not 

everything an official does pursuant to his statutory authority carries 

the force of law. For instance, agencies issue interpretive rules 

pursuant to their statutory authority, yet interpretive rules 

emphatically do not carry the force of law. See, e.g., Perez v. Mortg. 

Bankers Ass’n, 575 U.S. 92, 97 (2015). Indeed, the Supreme Court 

explicitly said in Chrysler that neither “[a]n interpretive regulation 

[nor] general statement of agency policy” can be considered an 

“authorization by law” because they lack “the binding effect of law.” 

441 U.S. at 315–16 (alterations omitted). 
9

specifies little more than the method of execution, the federal 

government is nonetheless bound by the FDPA to follow the 

level of detail prescribed by state law.5

The textual context of Section 3596(a) supports this 

interpretation. Section 3596(a) provides that the Marshal “shall 

supervise implementation of the sentence in the manner 

prescribed by the law of the State.” 18 U.S.C. § 3596(a)

(emphasis added). This broad language encompasses more than 

earlier federal death penalty statutes, which incorporated state 

law only to define the “manner of inflicting the punishment of 

death.” See An Act to Provide for the Manner of Inflicting the 

Punishment of Death § 323, 50 Stat. 304, 304 (June 19, 1937); 

An Act for the Punishment of Certain Crimes § 33, 1 Stat. 112,

119 (Apr. 30, 1790). The ordinary meaning of “implementation

of the sentence” includes more than “inflicting the punishment 

of death.” The latter refers to the immediate action of 

execution, whereas “implementation of the sentence” suggests 

5

Judge Katsas claims that the “participial phrase ‘prescribed by the 

law of the State’ functions as an adjective,” and adjectives usually 

“do not expand the meaning of the noun they modify.” Concurring 

Op. 19 (Katsas, J.). This argument begs the question: It makes sense 

only if we presume that the word “manner” refers exclusively to the 

general method. But there is no evidence of such an exclusive 

meaning. Rather, as cases and statutes demonstrate, the word 

“manner” is broad enough to encompass execution procedures at 

every level of generality. The phrase “prescribed by the law of the 

State” actually narrows the meaning of the word “manner.” Thus, 

my reading is consistent with the most common grammatical 

function of a participial phrase. 
10

additional procedures involved in carrying out the sentence of 

death.6

In the death penalty context, the term “implementation” is 

commonly used to refer to a range of procedures and 

safeguards surrounding executions, not just the top-line 

method of execution. This is true of DOJ’s regulations, which 

were promulgated during a period when no statute specified 

procedures for the federal death penalty. DOJ’s 1993 execution 

regulation bears the title, “Implementation of Death Sentences 

in Federal Cases.” See 58 Fed. Reg. 4,898 (Jan. 19, 1993). That 

regulation governs very minute aspects of executions, 

including the “[d]ate, time, place, and method,” whether and 

when the prisoner has access to spiritual advisors, and whether 

photographs are allowed during the execution. Id. at 4,901–

902. Likewise, the 2019 addendum to DOJ’s execution 

protocol, which governs some of the procedures at issue in this 

case, is titled, “Federal Death Sentence Implementation 

Procedures.” Department of Justice, Addendum to BOP 

Execution Protocol, Federal Death Sentence Implementation 

Procedures 1 (July 25, 2019) (“BOP Addendum”). As with the 

1993 regulation, the addendum governs minute details, such as 

the numbering and labeling of syringes. Id. at 2. According to 

DOJ regulations and protocols, all of these details fall under the 

umbrella of implementing a death sentence. The breadth of the 

term “implementation” further undermines the government’s 

narrow interpretation that “manner” means only the “method” 

of execution, irrespective of the requirements of state law. 

6 Compare Implementation Plan, Black’s Law Dictionary (10th ed. 

2014) (“An outline of steps needed to accomplish a particular goal.”), 

with Inflict, Merriam-Webster’s Collegiate Dictionary (11th ed. 

2014) (“[T]o cause (something unpleasant) to be endured.”). 
11

An interpretation requiring the federal government to 

follow all procedures prescribed by state statutes and formal 

regulations, but no more, similarly coheres with the statute’s

directive that the Marshal “supervise” implementation of the 

sentence. 18 U.S.C. § 3596(a). To “supervise” is to 

“superintend” or “oversee.” See Supervise, Merriam Webster’s 

Collegiate Dictionary (11th ed. 2014). The concept of 

supervision does not fit with DOJ’s position that it may 

establish a uniform protocol for all procedures short of the 

method of execution specified by state law. In the context of 

executing the law, supervision must occur within legal 

boundaries. While supervision often includes a degree of 

discretion, it does not include authority to create new law or to 

act in contravention of law. See Youngstown Sheet & Tube Co. 

v. Sawyer, 343 U.S. 579, 588 (1952) (emphasizing that “the 

President’s power to see that the laws are faithfully executed” 

does not include the power to “make laws which the President 

is to execute”). Elsewhere, Congress used more active 

language. In the 1937 statute, for instance, the Marshal was 

“charged with the execution of the sentence,” 50 Stat. at 304, 

and other provisions of the FDPA refer to “carr[ying] out” an 

execution. See 18 U.S.C. § 3596(b), (c). Congress’s choice in 

Section 3596(a) to provide only that the Marshal will 

“supervise” implementation hardly suggests that DOJ was 

given the authority to dictate nearly every aspect of the 

execution procedure regardless of what state law prescribes. 

At the same time, the statute’s use of “supervise” suggests 

that the Marshal enjoys a certain degree of discretion in the 

absence of state law on a particular question. If the FDPA had 

provided only that the Marshal “shall implement” the sentence

according to state law, there would be less support for the idea 

that the Marshal has discretion to fill gaps in a state’s execution 

law. Instead, the statute affords the Marshal a measure of 

supervisory discretion within the bounds of state law.
12

The FDPA specifies one exception to the general rule that 

the federal government must follow state law—the federal 

government may choose state or federal facilities for 

executions, irrespective of state law. Section 3597(a) addresses 

the question of where executions will take place and which 

facilities the Marshal may use. It provides that the Marshal

“may use appropriate State or local facilities,” so long as the 

Marshal “pay[s] the costs thereof.” 18 U.S.C. § 3597(a). This 

language establishes that the Marshal has discretion to choose 

between state and federal facilities, notwithstanding any state 

law requiring executions in a particular location. Under 

familiar canons of construction, the more specific provision 

controls the general. See RadLAX Gateway Hotel, LLC v. 

Amalgamated Bank, 566 U.S. 639, 645 (2012) (noting this 

canon “is a commonplace of statutory construction” (citation 

omitted)). Section 3596(a) directs the government to follow a 

state’s death penalty law generally, while Section 3597(a) is 

best read as an exception, specifying one aspect of the 

execution process by allowing the federal government a choice 

of location. See id.7

Finally, this fuller reading of the statutory text coheres 

with the FDPA and the apparent balance Congress struck 

between providing for a federal death penalty and respecting 

provisions of state law. If “prescribed by the law of the State” 

includes only a state’s statutes and formal regulations, the 

Marshal will be able to identify the requirements of state law. 

Nothing in the FDPA suggests that the federal government 

must incorporate most or all procedures and practices found in 

a state’s informal execution policies, which could raise 

practical, and perhaps insurmountable, difficulties to the

7 While it is true that Section 3597 is not written explicitly as an 

exception, see Concurring Op. 13 (Katsas, J.), it provides specific 

authority that supersedes the general reliance on state law.
13

implementation of federal death sentences. For instance, at 

least some state protocols are not publicly available. See Ark. 

Code Ann. § 5-4-617(i)(1)(C). Others are “revised as needed” 

through informal means. See Indiana State Prison Facility 

Directive, ISP 06-26: Execution of Death Sentence 14 (Jan. 22, 

2014). When Congress used the term “prescribed by the law of 

the State,” it did not mean secret policies and constantly 

changing informal protocols.8

In this politically charged area, Congress enacted a 

federalist scheme, incorporating state law as to the “manner” 

of death penalty implementation, but only for those execution 

procedures enacted or promulgated by states as part of their 

binding law. The FDPA leaves the federal government free to 

specify details regarding execution procedures, as it did in its 

protocol and addendum, subject to any contrary requirements 

of state law.

8 This interpretation is largely consistent with other courts to have 

considered the issue. The Fifth Circuit upheld a death sentence under 

an earlier version of DOJ’s protocol because nothing in the protocol 

was “inconsistent with Texas law.” United States v. Bourgeois, 423 

F.3d 501, 509 (5th Cir. 2005). The only source of law the court 

considered was Texas’s criminal code, id., which does not provide 

for specific procedures or designate a lethal substance. See Tex. Code 

Crim. Proc. Ann. art. 43.14. Similarly, the District of Vermont held 

that a U.S. Marshal is “to adopt local state procedures for execution,” 

but the court looked only to state statutes in defining the state’s 

procedures. See United States v. Fell, No. 5:01-CR-12-01, 2018 WL 

7270622, at *4 (D. Vt. Aug. 7, 2018); but see Higgs v. United States, 

711 F. Supp. 2d 479, 556 (D. Md. 2010) (declining to reach the 

Section 3596(a) question, but briefly suggesting in dicta that 

“manner” refers only to lethal injection). 
14

B.

DOJ attempts to use previous federal death penalty statutes 

to show that “manner” must mean “method.” A review of these 

statutes, however, demonstrates that Congress was at best silent 

as to whether the word had a specialized meaning. Prior federal 

execution statutes support neither the government’s “manner 

means method only” interpretation, nor the plaintiffs’ “manner 

means everything” interpretation. Rather, the history shows 

Congress uses “manner” in its ordinary sense, such that the 

scope of the term’s application depends on the context.

There were only two federal statutes regulating execution 

procedures prior to the FDPA, and neither suggested that 

“manner” refers exclusively to general methods. The first 

federal death penalty statute, passed in 1790, read, “the manner 

of inflicting the punishment of death, shall be by hanging the 

person convicted by the neck until dead.” § 33, 1 Stat. at 119. 

That provision is entirely consistent with my interpretation: 

Congress, using a broad word that can refer to any level of 

generality, chose on that occasion not to mandate further 

details. In another section of the same statute Congress used the 

word “manner” in a highly granular sense. The 1790 statute 

criminalized the maiming of a person in any of six enumerated 

“manners”—a list so particularized that “slit[ting] the nose” 

and “cut[ting] off the nose” were listed separately. § 13, 1 Stat. 

at 115. Reading the 1790 statute as a whole, Congress used the 

word “manner” to refer to both general methods and specific 

details, reinforcing that the term “manner” in isolation has a 

flexible meaning and must be read in context to determine the 

appropriate level of specificity. 

Judge Katsas argues that the 1790 statute should be read 

against the backdrop of English common law. Concurring Op. 

4 (Katsas, J.). As he notes, Blackstone wrote that the 
15

punishment for many capital crimes was to be “hanged by the 

neck till dead.” 4 W. Blackstone, Commentaries on the Laws 

of England 370 (1769). Notably, Blackstone does not say that 

hanging by the neck was the “manner” of execution. He says 

that hanging was the “judgment” pronounced by the court. Id. 

Indeed, this passage never uses the word “manner.” Later, 

Blackstone wrote that a “sheriff cannot alter the manner of the 

execution by substituting one death for another.” Id. at 397. 

Nor could the king substitute one death for another—for 

instance, by “altering the hanging or burning into beheading.” 

Id. at 397–98. Nothing in this passage suggests that the choice 

of general method was the only detail encompassed by the term 

“manner of the execution.” At most, this passage shows that 

changing the general method was one way to change the 

manner of execution. 

Judge Katsas’s reliance on two Supreme Court cases from 

the nineteenth century is similarly unavailing. First, Wilkerson 

v. Utah, 99 U.S. 130 (1878), simply paraphrased the language 

of the 1790 statute, see id. at 133 (“Congress provides that the 

manner of inflicting the punishment of death shall be by 

hanging.”), so it adds no support for the narrow reading of 

“manner.” Next, Judge Katsas argues that the Supreme Court 

used “manner” and “method” interchangeably in Kemmler, 136 

U.S. 436. Yet nothing in the Court’s opinion indicates that the 

two terms are synonymous. To the contrary, the opinion 

strongly suggests that the term “manner” encompasses more 

than the general method. In rejecting a petition for habeas 

corpus, the Court quoted the New York Court of Appeals at 

length, including its conclusion that the general method of 

electrocution is painless—not necessarily as a general matter, 

but when performed “under such conditions and in the manner 

contemplated by the statute.” Id. at 443–44 (“[T]he application 

of electricity to the vital parts of the human body, under such 

conditions and in the manner contemplated by the statute, must 
16

result in instantaneous, and consequently in painless, death.”

(citation omitted)). The term “manner” in that sentence must 

refer to details more specific than the general method of 

electrocution. Id.9 Even if at points Wilkerson and Kemmler

refer to hanging and electrocution as manners of execution, 

they are still consistent with the ordinary meaning of “manner,”

which can refer to the general and the specific. It is not unusual 

for courts to refer to hanging or lethal injection as manners of 

execution, just as courts commonly use “manner” to refer to 

specific details of an execution procedure. See supra at 4–5.

The government also relies on the 1937 statute to argue 

that “manner” is used in the FDPA to refer only to the method 

of execution. See DOJ Br. 21–22 (“Congress [in 1937] 

preserved the meaning of ‘the manner’ as synonymous with 

‘the method’ of execution.”). In the 1937 statute, Congress 

shifted away from the earlier federal death penalty regime to 

one that required the federal government to adopt whatever 

“manner” was “prescribed by the laws of the State.” 50 Stat. at 

304. The 1790 and 1937 statutes thus had different structures, 

one specifying a single method of federal execution and the 

other leaving the manner of execution to be determined by state 

law. This fundamental change to the statutory scheme 

undermines DOJ’s contention that Congress forever settled the 

9

I agree with Judge Katsas that the level of detail in the New York 

statute is not relevant in itself. Concurring Op. 6 n.2 (Katsas, J.); see 

also Chapter 489, Laws of the State of New York §§ 492, 505–07 

(June 4, 1888) (regulating execution timing, location, and personnel, 

among other things). Indeed, my analysis consistently maintains that

the meaning of the word “manner” does not change whenever a 

legislature chooses to specify more or less detail in a given statute, 

whether a state statute or the FDPA. Regardless of how detailed the 

statute was, the Supreme Court in Kemmler used the word “manner” 

to encompass more than the general method of electrocution. See 136 

U.S. at 443–44.
17

scope of federal death penalty legislation in 1790 when it chose 

hanging as the method of execution. Indeed, the fact that 

Congress amended the legally operative text suggests that the 

1937 Act did not use “manner” in precisely the same way as 

the 1790 statute. See Hall v. Hall, 138 S. Ct. 1118, 1128 (2018) 

(stating that a statute “brings the old soil with it” only when 

“obviously transplanted”); Merrill Lynch, Pierce, Fenner & 

Smith Inc. v. Manning, 136 S. Ct. 1562, 1578 (2016) (Thomas, 

J., concurring) (“[W]hen Congress enacts a statute that uses 

different language from a prior statute, we normally presume 

that Congress did so to convey a different meaning.”).

Statutory predecessors can help us to interpret a modern statute, 

but we must respect the changes Congress enacted. 

For the same reasons discussed with respect to the FDPA, 

the phrase “manner prescribed by the laws of the State” in the 

1937 statute is best read as referring to all execution procedures 

found in the state’s “law.” In practice, moreover, the federal 

government incorporated more than the state’s method of 

execution when it carried out executions under the 1937 statute.

The government concedes that nearly all executions conducted 

under the 1937 statute took place in state facilities. Oral 

Argument at 3:30. Presumably, those executions were carried 

out in accordance with state law and possibly with other state 

procedures. DOJ notes that three executions under the 1937 

statute took place in federal facilities, but DOJ is unable to 

identify a single way in which the executions were otherwise 

inconsistent with state law. As in the FDPA, the 1937 statute 

gave the U.S. Marshal discretion over the choice of facilities. 

See 50 Stat. at 304. Thus, the choice of a federal location does 

not undermine the requirement that the manner of execution 

follow whatever details are prescribed by state law. 

Not only did the federal government perform the vast 

majority of executions in state prisons, DOJ has suggested on 
18

several occasions that it understood the 1937 statute to require 

compliance with state procedures. In its 1993 protocol, DOJ 

hypothesized that Congress might have repealed the 1937 

statute because it “no longer wanted the federal method of 

execution dependent on procedures in the states, some of which 

were increasingly under constitutional challenge.” 58 Fed. Reg. 

at 4,899 (discussing repeal of the 1937 statute in 1984). 

Similarly, Attorney General Janet Reno wrote shortly before 

the FDPA’s enactment that the bill “contemplate[s] a return to 

an earlier system in which the Federal Government does not 

directly carry out executions, but makes arrangements with 

states to carry out capital sentences in Federal cases.” See H.R. 

Rep. No. 104-23, at 22 (1995) (quoting Letter from Attorney 

General Janet Reno to Hon. Joseph R. Biden, Jr., at 3–4 (June 

13, 1994)). While such sources are not determinative of the 

meaning of the FDPA, they demonstrate that the Department’s 

narrow interpretation of the statute has hardly been 

consistent.10

10 Judge Katsas also argues that between 1790 and 1937, “nobody 

[was] focused on subsidiary procedural details in the legal or policy 

debates over [] various execution methods.” Concurring Op. 7 

(Katsas, J.). Even assuming that assessment is correct, it has no 

bearing on the broader sense of “manner” or how it was used in the 

FDPA. This observation would be relevant only to the meaning of 

“manner” in statutes that do not specify the scope of the term’s 

application. For example, if the FDPA said something like “the 

manner employed by the state,” then we would have to determine, as 

Judge Katsas asks, “the level of detail at which [Section 3596(a)] 

operates.” Id. at 1. Yet the FDPA explicitly specifies the level of 

detail—it is the level of detail “prescribed by the law of the State.” 

That leaves a question of what is included in the “law of the state,” 

but it does not leave open the level of generality regarding the 

manner of execution.
19

Despite rejecting DOJ’s historical evidence, I start from 

the same fundamental principle: that we should not “depart 

from the original meaning of the statute at hand.” New Prime 

Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). As explained, the 

meaning of the word “manner” has always been broad, and its 

application has always depended on context. DOJ, however,

asks us to go beyond established canons of interpretation: 

Rather than apply the original, broad sense of the word 

“manner,” DOJ argues that the word should be deprived of its 

ordinary meaning because Congress chose on a single occasion

in 1790 to specify one level of detail. There is no support for 

this novel approach. 

In statutory interpretation as in ordinary usage, a word can 

have a fixed meaning even if, in application, it can refer to a 

variety of things. DOJ is confusing the sense of the word 

“manner” with the word’s reference. A word’s sense is its 

linguistic meaning, while its reference is the “actual thing in 

the world that the word picks out.” Christopher R. Green, 

Originalism and the Sense-Reference Distinction, 50 St. Louis 

U. L.J. 555, 563 (2006). A single word with a fixed meaning 

can describe a wide range of references, depending on the 

factual context and how the word is used. See id. at 564; cf.

ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 957–

58 (7th Cir. 2006) (explaining that the term “unjust 

enrichment” has multiple “referents” because it can refer to 

several factually distinct circumstances in which restitution is 

appropriate).

11 Rather than explore what the word “manner” 

11 Judge Katsas’s only linguistic critique of the sense-reference 

distinction is that sense and reference arguably converge when 

dealing with proper names, Concurring Op. 8 n.3 (Katsas, J.), 

something that is completely irrelevant to this case. We both agree 

with Justice Scalia (and Professor Green, for that matter) that statutes 

have “a fixed meaning, which does not change.” Id. That recognition 
20

meant in 1790 (i.e., what sense it carried), DOJ focuses 

narrowly on which procedures Congress chose to require on 

one occasion (i.e., the reference of “manner”). According to 

DOJ, the word “manner” in 1994 cannot be broad enough to 

refer to specific procedures unless the 1790 statute also referred 

to specific procedures. But Congress’s choice not to specify

details like the length of the rope did not change the underlying 

meaning of the word “manner.” The word “manner” was broad 

enough in 1790 to encompass more than the general method (as 

demonstrated by the statute’s discussion of maiming), and the 

word retains that broad sense today. There is simply no reason 

to artificially cabin the word in later statutes so that it refers 

only to the same kinds of procedures required by Congress in 

1790.

DOJ’s ahistorical reading is also flatly inconsistent with 

the canons of interpretation governing incorporation. When 

Congress incorporates a body of law in general terms, the 

incorporating statute “develops in tandem with the” body of 

law that was incorporated. Jam v. Int’l Fin. Corp., 139 S. Ct. 

759, 769 (2019); see also New Prime Inc., 139 S. Ct. at 539; 

2B Sutherland Statutory Construction § 51:8 (7th ed.). For 

most of the last 80 years, Congress has chosen to incorporate 

state law rather than specify a manner of execution. As Judge 

Katsas explains, it was once true that most execution statutes 

did not “prescribe subsidiary ‘procedural details.’” Concurring 

Op. 6 (Katsas, J.). Today, however, some “state statutes and 

regulations do contain many granular details.” Id. at 21. When 

a state legislature chooses to define the manner of execution in 

more detail than was common in older statutes, the FDPA

directs the federal government to follow suit. See New Prime

does nothing to undermine the commonly accepted distinction 

between a word’s meaning and the thing the word refers to on a given 

occasion.
21

Inc., 139 S. Ct. at 539 (explaining that statutes incorporating a 

general body of law must be read to incorporate “later 

amendments and modifications”).12

The historical record is likewise inconsistent with the 

plaintiffs’ assertion that the FDPA does not allow DOJ to adopt 

nationwide procedures. See Plaintiffs’ Br. 23–24. It is true that 

Congress in 1937 replaced a uniform, nationwide approach 

with a requirement that the federal government follow the 

sentencing state’s manner of execution. Nevertheless, neither 

the 1937 statute nor the FDPA requires that the federal 

government follow state practices not prescribed by law. The 

statutory history thus says nothing about whether the 

Department can create uniform procedures to fill gaps in state 

law, as the protocol and addendum do in this case.

12 Failing to find support in the FDPA’s text, history, or practice, DOJ 

tries to prop up its arguments with the 1937 statute’s legislative 

history. This legislative history, however, did not run the Article I, 

section 7, gauntlet, and cannot determine a statute’s meaning. Even 

for those who find legislative history persuasive, the evidence is thin. 

DOJ explains that the House Judiciary Committee twice used the 

word “method” to refer to executions by hanging, electrocution, and 

gas. H.R. Rep. No. 75-164, at 1 (1937). DOJ argues that because the 

Committee changed the word “method” to “manner” in the statute, it 

must have understood the two words to be synonymous. Yet the 

legislative history is silent about why the Committee made that 

choice in the final text of the FDPA. If we are playing the legislative 

history guessing game, another inference is perhaps more likely: that 

Congress chose to use a different word in order to convey a different 

meaning. Cf. Allina Health Servs. v. Price, 863 F.3d 937, 944 (D.C. 

Cir. 2017). Ultimately, however, legislative history is not the law, 

and the history from 1937 tells us little about what the 1937 statute 

meant, much less what the 1994 FDPA means.
22

In sum, the historical evidence does not suggest the term 

“manner” has the narrow meaning pressed by DOJ; neither 

does it support the plaintiffs’ conclusion that the federal 

government may not create national procedures that govern in 

the absence of any state law. Rather, for over 200 years,

Congress has used the term “manner” flexibly, with the word’s 

scope clarified by additional specifying language—“hang[ing]

by the neck,” slit[ting] the nose, and “prescribed by the law of 

the State.” In light of this history, the best interpretation follows 

the plain meaning of the FDPA, which specifies that “manner” 

is whatever is prescribed by state law. This interpretation 

respects Congress’ decision to create a federal death penalty 

that relies on federalism. The FDPA requires DOJ to follow the 

procedures set forth in state laws and regulations but does not 

foreclose federal protocols that apply in areas not addressed by 

state law.

C.

The Department raises a parade of horribles if “manner” is

read to include more than the method of execution. 

Specifically, DOJ argues that a broader reading will make it 

much more difficult to execute prisoners and will leave the 

federal government unable to choose the most humane 

execution procedures. The government’s purpose-driven 

arguments rely on broad policy goals and practical difficulties, 

rather than the plain meaning of the text. These policy 

arguments, however valid, cannot overcome Congress’s plain 

choice in the FDPA to allow the manner of execution to turn 

on state law.13

13 Judge Katsas suggests that arguments about consequences are 

relevant to “help resolve textual ambiguity.” Concurring Op. 16 n.8

(Katsas, J.). Yet the word “manner” as used in Section 3596 is not
23

DOJ’s concerns are rooted in what the Department deems 

to be the purposes of the FDPA. DOJ Br. 15; see also

Concurring Op. 13 (Katsas, J.) (discussing one purpose of the 

FDPA “to ensure a workable and expanded system of capital 

punishment”). As a court, however, “our function [is] to give 

the statute the effect its language suggests,” not to further 

whatever “admirable purposes it might be used to achieve.” 

Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 270 

(2010). DOJ urges us to give the FDPA the interpretation 

producing what it believes would be the most effective 

execution regime, but to do so would ignore both the limited 

nature of our judicial function and the realities of legislative 

deliberation:

[N]o legislation pursues its purposes at all costs. 

Deciding what competing values will or will not 

be sacrificed to the achievement of a particular 

objective is the very essence of legislative 

choice—and it frustrates rather than effectuates 

legislative intent simplistically to assume that 

whatever furthers the statute’s primary 

objective must be the law.

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 646–47 

(1990) (citation and quotation marks omitted). 

ambiguous. Rather, as already explained, the ordinary meaning of 

the word “manner” is broad and flexible, but as qualified in the 

FDPA, the “manner” of execution is unambiguous: It is whatever 

“manner” is prescribed by applicable state law. See supra at 6–8; see 

also Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (“Broad 

general language is not necessarily ambiguous”). Speculations about

congressional intent are rarely illuminating, particularly when, as 

here, the text of the statute provides the relevant level of specificity.
24

In the FDPA, Congress incorporated state law instead of 

directing DOJ to promulgate a uniform protocol. This suggests 

that Congress was balancing at least two competing values: the 

need to effectively implement federal death sentences and an 

interest in federalism. Perhaps Congress simply decided to 

duck controversial specifics by leaving some questions to state 

law. Whatever the reason, statutes strike a bargain and must be 

enforced in their details, not in their lofty goals. After all, “[i]f 

courts felt free to pave over bumpy statutory texts in the name 

of more expeditiously advancing a policy goal, we would risk 

failing to take account of legislative compromises essential to 

a law’s passage and, in that way, thwart rather than honor the 

effectuation of congressional intent.” New Prime Inc., 139 S. 

Ct. at 543 (quotation marks and alterations omitted). We should 

decline DOJ’s invitation to question the bargain Congress 

struck here. To the extent more detailed state statutes raise 

additional interpretive questions, that is an unavoidable 

consequence of the incorporation of state law. Unless and until 

Congress amends the FDPA, DOJ is bound to “follow its

commands as written, not to supplant those commands with 

others it may prefer.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 

1355 (2018). We have no license to read into the FDPA a 

limitation on “manner” that has no basis in the text and to read 

out of the statute its incorporation of state law. 

In addition, DOJ’s policy concerns about administrability

would have applied with equal force in 1937, when Congress 

first incorporated state law to govern the manner of federal 

executions. See New Prime Inc., 139 S. Ct. at 539 (“[I]t’s a 

fundamental canon of statutory construction that words 

generally should be interpreted as taking their ordinary ... 

meaning ... at the time Congress enacted the statute.” 

(quotation marks omitted)). In 1937, permissible execution 

methods varied significantly across the country and included

hanging, electrocution, the gas chamber, and others. State 
25

execution methods also differed, albeit to a lesser extent, when 

the FDPA was passed in 1994. Thus, even under DOJ’s 

interpretation that “manner” means only method, until recently 

the federal government would have had to apply varying 

execution methods on a state-by-state basis. DOJ claims that 

state-by-state administration is unworkable, but state-by-state 

administration has indisputably been a feature of this statutory 

framework since 1937. A uniform method is possible under 

DOJ’s interpretation only because all the death penalty states

have made independent choices since the FDPA’s enactment 

to adopt the method of lethal injection.

Similarly, the federal government has never had absolute 

license to choose the most humane execution procedures. 

When Congress passed the 1937 statute, it chose state practice 

over hanging in part because “[m]any States”—but not all—

“use[d] more humane methods of execution, such as 

electrocution, or gas.” H.R. Rep. No. 75-164, at 1 (1937). 

Congress could have selected one of those more humane 

methods instead of hanging, but it chose to leave that decision 

to the states—many of which continued to hang criminals. See 

Andres v. United States, 333 U.S. 740, 745 (1948) (noting that 

the “method of inflicting the death penalty” in Hawaii in 1948 

was “death by hanging”). Indeed, some states continued to 

provide for hanging even after the passage of the FDPA in 

1994. See Baze, 553 U.S. at 43 n.1 (plurality opinion) (noting 

that New Hampshire and Washington still allowed for hanging 

in 2008). Even under DOJ’s interpretation of the FDPA, the 

government may choose what it considers to be the most 

humane procedures only when state law does not provide for 

another method of execution. Whatever the legitimacy of 
26

DOJ’s concerns, they are necessary features of the statute 

Congress enacted.

14

In any event, as a practical matter, my textual 

interpretation of the FDPA mitigates many of the concerns 

raised by the district court’s broad reading. The FDPA’s 

reliance on state law leaves ample scope for DOJ to follow its 

federal execution procedures and protocols. Few of the 

procedural details cited by the plaintiffs appear to carry the 

force of law, so the federal government need not follow them. 

State execution statutes tend to be rather brief, specifying lethal 

injection without adding further details. For example, none of 

the four states at issue in this case have statutes precluding the 

use of pentobarbital. See Tex. Code Crim. Proc. Ann. art. 43.14 

(calling for lethal injection without specifying which chemical 

to be used); Ark. Code Ann. § 5-4-617 (allowing lethal 

injection using either a barbiturate like pentobarbital or a three 

drug solution); Ind. Code § 35-38-6-1 (calling for lethal 

injection without specifying which chemical must be used); 

Mo. Ann. Stat. § 546.720 (calling for lethal injection without 

specifying which chemical must be used). 

14 Like the DOJ, Judge Tatel invokes the FDPA’s goal of ensuring 

more humane executions, but to support the opposite interpretation. 

He argues that reading “prescribed by the law of the State” to exclude 

non-binding state execution protocols would “defeat section 

3596(a)’s purpose—to make federal executions more humane by 

ensuring that federal prisoners are executed in the same manner as 

states execute their own.” Dissenting Op. 8. Yet that argument 

deprives the phrase “prescribed by ... law” of all meaning. If 

Congress had intended the federal government to incorporate all of 

the state’s execution procedures, it would have said so. Instead, 

Congress chose to incorporate only the manner prescribed by state 

law. 
27

Indeed, I have not been able to locate statutes or formal 

regulations in any state that would prevent the federal 

government from using pentobarbital, the drug currently 

specified in DOJ’s protocol addendum. In the rare cases where 

state law provides for a particular substance, states generally 

either include pentobarbital on the list of permitted substances, 

see 501 Ky. Admin. Regs. 16:330 (allowing either 

pentobarbital or thiopental sodium), or include a general 

provision allowing any equally effective substance, see Utah 

Admin. Code r. 251-107-4 (providing for “a continuous 

intravenous injection, one of which shall be of a lethal quantity 

of sodium thiopental or other equally or more effective 

substance to cause death”).

More specific details are generally found in informal state 

policies and protocols. Execution protocols are exempted from 

many states’ administrative procedure acts, including their 

formal rulemaking requirements. See, e.g., Ark. Code Ann. § 5-

4-617(h); Middleton v. Mo. Dep’t of Corr., 278 S.W.3d 193, 

195–97 (Mo. 2009); Porter v. Commonwealth, 661 S.E.2d 415, 

432–33 (Va. 2008); Abdur’Rahman v. Bredesen, 181 S.W.3d 

292, 312 (Tenn. 2005). Even in states that provide for formal 

rulemaking, execution protocols tend to be informal and nonbinding. Consider Indiana, the state designated by DOJ 

whenever the sentencing state does not provide for the death 

penalty. Indiana allows its department of corrections to adopt 

rules under the state’s formal rulemaking provisions to 

implement its execution statute. See Ind. Code § 35-38-6-1(d). 

Yet the state’s current execution procedures were not 

promulgated under that statute and do not purport to carry the 

force of law. See Indiana State Prison Facility Directive, ISP 

06-26: Execution of Death Sentence 14 (Jan. 22, 2014) (noting 

that Indiana’s protocol is “revised as needed,” not under the 

state’s formal rulemaking procedures, but in accordance with 

the department of corrections’ policies). Similarly, both 
28

Arkansas’ and Missouri’s protocols permit the director of the 

department of corrections to modify certain aspects of the 

execution procedures. See Missouri Department of 

Corrections, Preparation and Administration of Chemicals for 

Lethal Injection 1 (Oct. 18, 2013); Arkansas Lethal Injection 

Procedure 3 (Aug. 6, 2015), https://bit.ly/2ExLkTE. A state 

execution protocol that explicitly allows the department of 

corrections to depart from the protocol’s requirements on a 

case-by-case basis cannot be said to be binding. Given that 

most details found in state execution protocols are not

prescribed by law, DOJ will be able to make most procedural 

choices regarding federal executions.

15

II.

Based on this interpretation of Section 3596(a), I would 

hold that the 2019 protocol did not exceed the government’s 

authority under the FDPA. As an initial matter, the protocol is 

unlikely to conflict with state law in most cases, as state laws 

15 Judge Tatel does not dispute that the four protocols at issue were 

not promulgated through formal rulemaking procedures. Instead, he 

attempts to cabin Chrysler’s holding to its facts, ignores the 

consistent line of cases requiring “law” to have binding effect, see 

supra at 7 (collecting cases), and makes a general appeal to 

examining “context” when determining whether a regulation issued 

outside a formal rulemaking process constitutes “law.” Dissenting 

Op. 7–8. Judge Tatel, however, fails to identify a single case 

supporting his theory that non-binding protocols can qualify as “law” 

in any context—despite the fact that, as Judge Tatel emphasizes, 

“prescribed by law” or similar language appears at least 1,120 times 

in the United States Code. Id. at 7. As the Court explained in 

Chrysler, the question is simply whether these state protocols are 

binding on state officials. Because these protocols do not appear to 

have the binding force of law, they cannot be deemed part of the “law 

of the State.”
29

usually address execution procedures only in general terms.

See supra at 24–26. Should cases arise in which the protocol 

differs from state law—for example, in states with more 

detailed regulations governing executions, see, e.g., 501 Ky. 

Admin. Regs. 16:330; Or. Admin. R. 291-024-0080—DOJ 

remains free to depart from the federal protocol. Indeed, the 

protocol provides explicitly that the Director may depart from 

its procedures in the face of superseding legal obligations—

namely, when “necessary” to “comply with specific judicial 

orders” or when “required by other circumstances.” BOP 

Addendum 1; see also Department of Justice, BOP Execution 

Protocol 4 (2019) (“Execution Protocol”) (“These procedures 

should be observed and followed as written unless deviation or 

adjustment is required ....”). In addition, the protocol directs 

BOP to “make every effort ... to ensure the execution process 

... [f]aithfully adheres to the letter and intent of the law.”

Execution Protocol 4–5. These provisions indicate that the 

government must depart from the protocol as necessary to 

“adhere to the letter and intent of” the FDPA—including the 

requirement that the government apply the manner of execution 

prescribed by state law. Reading the protocol and addendum as 

a whole suggests that DOJ must follow state law, and not that 

the BOP Director is merely granted “discretion.” Dissenting 

Op. 9. Because the 2019 protocol allows departures as needed

to comply with state law, it is consistent with the FDPA.

Judge Tatel casts this reading of the protocol’s plain text 

as an improper effort to “rewrite the protocol” to support an 

interpretation that the government has not advanced. 

Dissenting Op. 10. As an initial matter, my interpretation 

requires no revision—it rests on the words DOJ used in 

promulgating its protocol. Moreover, “[o]ur duty in conducting 

de novo review on appeal is to resolve the questions of law this 

case presents.” Citizens for Responsibility & Ethics in Wash. v. 

FEC, 892 F.3d 434, 440 (D.C. Cir. 2018). “When an issue or 
30

claim is properly before the court, the court is not limited to the 

particular legal theories advanced by the parties, but rather 

retains the independent power to identify and apply the proper 

construction of governing law.” Kamen v. Kemper Fin. Servs., 

Inc., 500 U.S. 90, 99 (1991); see also U.S. Nat’l Bank of Or. v. 

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–47 (1993).

Irrespective of the government’s litigation strategy, the issue 

before us in this case is whether the 2019 protocol exceeds the 

government’s authority under the FDPA, and it is entirely 

appropriate to conduct an independent assessment of all 

relevant materials—including, in particular, the text of the 

protocol—in order to fulfill our duty to say what the law is.

Because the district court’s order was premised 

exclusively on the plaintiffs’ claim that the protocol was “in 

excess of statutory ... authority,” 5 U.S.C. § 706(2)(C), I would 

vacate the preliminary injunction. I would further hold that the 

2019 protocol is a “rule[ ] of agency organization, procedure, 

or practice” exempt from the APA’s notice and comment

requirements. See 5 U.S.C. § 553(b). The plaintiffs maintain 

we should not reach this claim before the district court has 

considered it. It is true that we ordinarily decline to resolve 

claims and arguments not addressed by the district court in 

deciding a preliminary injunction motion. See Sherley v. 

Sebelius, 644 F.3d 388, 397–98 (D.C. Cir. 2011). But if our 

holding on appeal makes a conclusion “inevitable” then “we 

have power to dispose [of a claim] as may be just under the 

circumstances, and should do so to obviate further and entirely 

unnecessary proceedings below.” Wrenn v. Dist. of Columbia, 

864 F.3d 650, 667 (D.C. Cir. 2017) (cleaned up); see also 28 

U.S.C. § 2106 (granting appellate courts authority to “direct the 

entry of ... judgment ... as may be just under the 

circumstances”). The plaintiffs’ notice and comment challenge 

rises and falls with the merits of their FDPA claim—that the 

protocol is a procedural rule follows inescapably from my 
31

conclusion that the protocol does not exceed DOJ’s authority 

under the FDPA. Because the issues are intertwined and the 

plaintiffs’ notice and comment challenge fails under my 

interpretation of the FDPA, it is entirely unnecessary for the 

district court to address this claim on remand.

“The critical feature of a procedural rule is that it covers 

agency actions that do not themselves alter the rights or 

interests of parties.” Nat’l Min. Ass’n, 758 F.3d at 250

(quotation marks omitted). By its terms, the protocol does 

nothing to interfere with the Marshal’s ability to comply with 

the FDPA or with the plaintiffs’ right to have their sentences 

implemented “in the manner prescribed by the law of the 

State.” 18 U.S.C. § 3596(a). To the contrary, the protocol 

simply lays out procedures for the federal government to 

follow in cases where state law does not address some aspect 

of the execution process. It directs the federal government in 

all cases “to ensure the execution process ... [f]aithfully

adheres to the letter and intent of the law,” Execution Protocol 

4–5, which necessarily includes following the FDPA’s 

directive to implement death sentences in conformity with state 

positive law. As such, the protocol cannot be said to “impose 

[any] new substantive burdens,” Aulenback, Inc. v. Fed. 

Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997), or to

“alter the rights or interests of [affected] parties,” Nat’l Min. 

Ass’n, 758 F.3d at 250 (citation omitted)—rather, any 

substantive burdens are derived from the FDPA and the state 

laws it incorporates.

Moreover, the procedures outlined in the 2019 protocol

bear all the hallmarks of “internal house-keeping measures

organizing [DOJ’s] activities” with respect to preparing for and 

conducting executions. Am. Hosp. Ass’n v. Bowen, 834 F.2d 

1037, 1045 (D.C. Cir. 1987) (citation omitted). The protocol 

and accompanying addendum provide lengthy “checklists for 
32

pre-execution, execution and post execution procedures,” 

Execution Protocol 4, including matters as specific as 

arranging food services for an inmate’s final meal, id. at 17, 

“open[ing] the drapes covering the windows of the witness 

rooms” during an execution, id. at 24, and announcing the time 

of death “prior to the drapes being closed,” id. at 25. DOJ’s

decision to promulgate detailed “written guidelines to aid [its] 

exercise of discretion” during the highly sensitive process of 

conducting executions should not come “at the peril of having 

a court transmogrify those guidelines into binding norms 

subject to notice and comment strictures.” Aulenback, 103 F.3d 

at 169 (citation and quotation marks omitted). Because the 

protocol possesses the essential features of a procedural rule, 

the plaintiffs’ notice and comment challenge also fails.

I would not reach the plaintiffs’ argument that only the 

U.S. Marshal Service has the authority to promulgate rules 

under the FDPA. The plaintiffs did not develop this argument 

below, so it is forfeited. See Gov’t of Manitoba v. Bernhardt, 

923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional 

circumstances, a party forfeits an argument by failing to press 

it in district court.”).16 I would also decline to reach the

plaintiffs’ claims under the Food, Drug & Cosmetic Act and

the Controlled Substances Act, which were neither addressed 

by the district court nor pressed by the plaintiffs on appeal. 

Unlike the notice and comment challenge to the protocol, the 

outcome of the FDCA and CSA claims is not plainly dictated 

16 The evidence Judge Katsas relies on to conclude that this argument 

was not forfeited comes from a chart included in the factual 

background section of one plaintiff’s preliminary injunction motion, 

summarizing the “Details of 2019 Protocol and Concerns That Are 

Implicated.” See Pl.’s Mot. for Prelim. Inj., Roane v. Barr, No. 19-

mc-0145, at 10 (D.D.C. Sept. 27, 2019). Such “fleeting reference[s]” 

do not a developed legal argument make. Williams v. Lew, 819 F.3d 

466, 471 (D.C. Cir. 2016).
33

by my interpretation of the FDPA. Thus, it will be “for the 

district court to determine, in the first instance, whether the 

plaintiffs’ showing on [these claims] warrants preliminary 

injunctive relief.” Sherley, 644 F.3d at 398.
TATEL, Circuit Judge, dissenting: Plaintiffs Daniel Lee, 

Wesley Purkey, Alfred Bourgeois, and Dustin Honken do not 

challenge the federal government’s authority to execute them. 

Instead, they argue that the Attorney General’s plan for their 

executions—that is, the federal protocol—conflicts with 

section 3596(a) of the Federal Death Penalty Act of 1994 

(FDPA), 18 U.S.C. §§ 3591 et seq. Section 3596(a) instructs 

U.S. Marshals to carry out federal death sentences by arranging 

for prisoners to be executed “in the manner prescribed by the 

law of the State” in which they were sentenced—or, if that state 

has no death penalty, the law of “another State” “designate[d]” 

by the sentencing judge. Id. § 3596(a). Notwithstanding its 

weighty subject matter, then, this case presents a classic 

question under the Administrative Procedure Act: whether an 

agency has acted “in accordance with law.” 5 U.S.C. 

§ 706(2)(A).

In defending the federal protocol, the government argues 

that the word “manner” in section 3596(a) refers only to the 

general execution method—e.g., lethal injection—not, as 

plaintiffs argue, to the procedures and techniques used to 

implement that method, e.g., substance administered or dosage. 

Because the government seeks no deference to its interpretation 

of the statute, see Oral Arg. Rec. 5:57–6:00 (confirming this),

to prevail it must demonstrate not merely that its interpretation 

of section 3596(a) is reasonable, but that it “best effectuates the 

underlying purposes of the statute.” Vanguard Interstate Tours, 

Inc. v. ICC, 735 F.2d 591, 597 (D.C. Cir. 1984).

I agree with Judge Rao that the term “manner” refers to 

more than just general execution method. Because her detailed 

opinion so thoroughly addresses the government’s arguments 

and convincingly responds to Judge Katsas’s survey of the 

historical record, I see no need to say anything more on the 

issue.
2

Beyond this, Judge Rao and I part company. She would 

hold that when carrying out executions under section 3596(a), 

the Attorney General must comply with state execution 

procedures set forth in “statutes and formal regulations,” but 

not those in state execution protocols. Rao Op. at 1. She also 

reads the federal protocol to contain a “carveout” “indicat[ing] 

that the government must depart from the protocol as necessary 

to . . . apply the manner of execution prescribed by state law.”

Id. at 1, 29. The government, however, makes neither 

argument, and the protocol contains no such carveout. In my 

view, section 3596(a), best understood, requires federal 

executions to be carried out using the same procedures that 

states use to execute their own prisoners—procedures set forth 

not just in statutes and regulations, but also in protocols issued 

by state prison officials pursuant to state law. Because the 

federal protocol, on its face, takes no account of these

procedures, it is contrary to section 3596(a), and I would vacate 

it. See 5 U.S.C. § 706(2)(A), (C) (requiring courts to “hold 

unlawful and set aside agency action . . . found to be . . . not in 

accordance with law” or “in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right”).

Plaintiffs were sentenced to be executed “in the manner 

prescribed by the law,” 18 U.S.C. § 3596(a), of Arkansas, 

Missouri, Texas, and Indiana, respectively. All four states have 

enacted statutes that establish lethal injection as the method of 

execution and delegate to state prison officials the task of 

developing specific execution procedures. Pursuant to these 

statutes, state officials have adopted execution protocols that 

designate, among other things, the chemicals to be 

administered, dosages, procedures for vein access, and 

qualifications of execution personnel. State officials adopt such 

protocols not just to comply with state law, but also to ensure 
3

that executions comply with the Constitution. Cf. Baze v. Rees, 

553 U.S. 35, 55–56 (2008) (plurality opinion) (rejecting Eighth 

Amendment method-of-execution challenge “in light of” 

“important safeguards” contained in state execution protocol, 

including “that members of the [intravenous] team . . . have at 

least one year of professional experience” and specific veinaccess procedures); Raby v. Livingston, 600 F.3d 552, 560 (5th 

Cir. 2010) (rejecting Texas inmate’s Eighth Amendment claim 

because state execution protocol “mandates . . . that sufficient 

safeguards are in place to reduce the risk of pain below the level 

of constitutional significance”).

For example, Texas’s governing statute requires 

condemned prisoners to be “executed . . . by intravenous 

injection . . . , [with] such execution procedure to be 

determined and supervised by the director of the correctional 

institutions division of the Texas Department of Criminal 

Justice.” Tex. Code Crim. Proc. Ann. art. 43.14(a). Pursuant to 

that statute, the Director “adopt[ed]” an “Execution 

Procedure,” under which “100 milliliters of solution containing 

5 grams of Pentobarbital” “shall be mixed . . . by members of 

the drug team,” which, in turn, “shall have at least one 

medically trained individual,” a term defined in the protocol. 

Texas Department of Criminal Justice, Correctional 

Institutions Division, Execution Procedure 2, 7–8 (Apr. 2019), 

Administrative Record (A.R.) 84, 89–90. The protocol further 

requires that intravenous lines be inserted by “a medically 

trained individual” who “shall take as much time as is needed” 

to do so “properly,” and who is prohibited from employing a 

“cut-down” technique, a surgical procedure that exposes the 

vein. Id. at 8, A.R. 90. 

The governing Missouri statute “authorize[s] and 

direct[s]” “the director of the department of corrections . . . to 

provide a suitable and efficient room or place . . . and the 
4

necessary appliances” for carrying out lethal injections and 

requires “[t]he director . . . [to] select an execution team.” Mo. 

Rev. Stat. § 546.720.1–2. Pursuant to that statute, the Director 

issued a protocol requiring prisoners to be executed using two 

five-gram doses of pentobarbital—quantities that “may not be 

changed without prior approval of the department director”—

which “shall be injected into the prisoner . . . under the 

observation of medical personnel,” namely, “a physician, 

nurse, and pharmacist.” Missouri Department of Corrections, 

Preparation and Administration of Chemicals for Lethal 

Injection 1–2 (Oct. 18, 2013), A.R. 70–71.

The other two states—Arkansas and Indiana—have 

similar statutory schemes. See Ark. Code Ann. § 5-4-617 (“The 

director [of the Department of Correction] shall develop 

logistical procedures necessary to carry out the sentence of 

death, including . . . [e]stablishing a protocol for any necessary 

mixing or reconstitution of the drugs and substances set forth 

in this section in accordance with the instructions.”); Ind. Code 

§ 35-38-6-1 (authorizing “[t]he department of correction [to] 

adopt rules” to implement lethal-injection statute); see also 

Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016) 

(discussing Arkansas’s lethal injection protocol); Department 

of Correction, Indiana State Prison Facility Directive, ISP 06-

26: Execution of Death Sentence 16–17 (Jan. 22, 2014), Mot. 

for Prelim. Inj. Barring the Scheduled Execution of Pl. Dustin 

Lee Honken, Ex. 6, In the Matter of the Federal Bureau of 

Prisons’ Execution Protocol Cases, No. 19-mc-145 (D.D.C. 

Nov. 5, 2019). 

The “law” of each state, then, requires executions to be 

implemented according to procedures determined by state 

corrections officials, who, in turn, have set forth such

procedures in execution protocols. In other words, “by law,”

each state directed its prison officials to develop execution 
5

procedures, and “by law,” those officials established such

procedures and set them forth in execution protocols. 

Accordingly, the protocols have been “prescribed by . . . law.”

18 U.S.C. § 3596(a). Apparently agreeing, the government 

argues that interpreting “manner” to mean more than

“method,” as Judge Rao and I do, would require it to use the 

same drugs as the states—drugs “prescribed” in the relevant 

states’ protocols, not in their statutes. See Appellants’ Br. 29.

Indeed, at oral argument government counsel rejected the 

notion that “the law of the State” excludes execution protocols,

calling it “incongruous to think that Congress thought the 

degree of federal control over how to implement . . . a federal 

execution was going to depend on the happenstance of exactly 

where in its law or regulation or sub-regulatory guidance a state 

chose to write out very detailed procedures.” Oral Arg. Rec. 

39:12–32.

Were there any doubt about this, “the natural way to draw 

the line is in light of the statutory purpose,” Rose v. Lundy, 455 

U.S. 509, 517 (1982) (internal quotation marks and citation

omitted), and here, interpreting section 3596(a) to include state 

execution protocols “best effectuates the underlying purposes 

of the statute,” Vanguard Interstate Tours, 735 F.2d at 597. As 

Judge Rao points out, section 3596(a) replicates nearly wordfor-word the statute that governed federal executions from 

1937 to 1984. Like the FDPA, that statute required executions 

to be carried out in “the manner prescribed by the laws of the 

State within which the sentence [wa]s imposed,” or, if that state 

had no death penalty, another state designated by the 

sentencing court. Act of June 19, 1937, ch. 367, 50 Stat. 304 

(repealed 1984) (“1937 Act”). Central to the issue before us, 

Congress passed the 1937 Act because the states were 

undertaking serious efforts to make executions more humane.

See H.R. Rep. 75-164 at 2 (1937) (letter from Attorney General 

Homer Cummings) (advising Congress that states “have
6

adopted more humane methods” of execution than hanging and 

recommending that “the Federal Government likewise . . .

change its law in this respect”); see also Stuart Banner, The 

Death Penalty: An American History 171 (2002) (explaining

that, as early as the 1830s, states had begun experimenting with 

execution procedures, endeavoring to “minimize the 

condemned person’s pain”). Accordingly, almost all federal 

executions pursuant to the 1937 Act were carried out by state 

officials, who, supervised by U.S. Marshals, executed federal 

prisoners in the same “manner” as they executed their own. See

Oral Arg. Rec. 15:00–03 (government counsel agreeing that 

most executions pursuant to the 1937 Act were carried out in 

state facilities); David S. Turk, Forging the Star: The Official 

Modern History of the United States Marshals Service 23–24 

(2016) (describing how the U.S. Marshal arranged for Ethel 

and Julius Rosenberg to be executed at Sing-Sing Correctional 

Facility, then home to New York state’s death row and electric 

chair). 

By using virtually identical language in FDPA section 

3596(a), Congress signaled its intent to continue the same 

system—for federal executions to be carried out in the same 

manner as state executions. See Lorillard v. Pons, 434 U.S. 

575, 580 (1978) (“Congress is presumed to be aware of an 

administrative . . . interpretation of a statute and to adopt that 

interpretation when it re-enacts a statute without change.”). 

Given this, reading section 3596(a) to exclude state execution 

protocols, which set forth the very procedures states use to 

carry out executions humanely, would run contrary not only to 

section 3596(a)’s “‘ultimate purpose[]’” of ensuring more 

humane executions, but also to “‘the means [Congress] has

deemed appropriate . . . for the pursuit of [that] purpose[]’”—

requiring federal prisoners to be executed in the same manner 

as states execute their own. Gresham v. Azar, 950 F.3d 93, 101 

(D.C. Cir. 2020) (quoting MCI Telecommunications Corp. v. 
7

American Telephone & Telegraph Co., 512 U.S. 218, 231 n.4 

(1994)). And at least as recently as 2008, the states have “by all 

accounts” “fulfilled” their “role . . . in implementing their 

execution procedures . . . with an earnest desire to provide for 

a progressively more humane manner of death.” Baze, 553 U.S. 

at 51.

Judge Rao argues that state execution protocols are not 

“prescribed by . . . law” within the meaning of section 3596(a)

because they are not “formal regulations.” Rao Op. at 1. In 

support, she cites Chrysler Corp. v. Brown, 441 U.S. 281

(1979), in which the Supreme Court considered a provision of

the Trade Secrets Act that protected confidential information

by prohibiting its disclosure unless “‘authorized by law,’” id.

at 294 (quoting 18 U.S.C. § 1905). The Court held that a

regulation issued pursuant to an agency’s “housekeeping”

statute and without notice-and-comment procedures did not

qualify as “law” under the Act. Id. at 309–16. From this, Judge

Rao concludes that the word “law” in FDPA section 3596(a) is

limited to regulations issued pursuant to notice-and-comment

procedures. See Rao Op. at 7, 28 n.13.

By my count, the phrase “authorized by law” and its twin

sisters—“prescribed by law” and “prescribed by the law”—

appear 1,120 times in the United States Code, and the Supreme

Court has repeatedly made clear that, even within the same

statute, “the presumption of consistent usage ‘readily yields’ to

context.” Utility Air Regulatory Group v. EPA, 573 U.S. 302,

320 (2014) (quoting Environmental Defense v. Duke Energy

Corp., 549 U.S. 561, 574 (2007)). In Chrysler, moreover, it was

only after closely examining “evidence of legislative intent,”

including statutory text and legislative history, that the Court

limited “law” in the Trade Secrets Act to notice-and-comment

regulations. 441 U.S. at 312. In other words, context matters,

and here context requires a different result. Limiting “the
8

manner prescribed by the law of the State” to execution

procedures contained in statutes and in regulations issued

pursuant to notice and comment, and thereby excluding those

contained in state execution protocols, would defeat section

3596(a)’s purpose—to make federal executions more humane

by ensuring that federal prisoners are executed in the same

manner as states execute their own.

Judge Rao also argues that the Attorney General need not 

follow state execution protocols because they “do not appear to 

have the binding force of law,” “leav[ing] the federal 

government free to specify” its own procedures. Rao Op. at 2, 

28 n.15. But whether state execution protocols are binding 

under state law has nothing to do with whether the Attorney 

General has authority under federal law to issue a uniform 

execution protocol. And as explained above, section 3596(a) 

shifts authority for determining how to “implement” death 

sentences to the states, leaving no comparable authority for the 

Attorney General. Indeed, apart from the Attorney General’s

authority to establish procedures unrelated to “effectuat[ing]

the death,” see infra at 12, the statute assigns the Attorney 

General just three narrow tasks: keeping custody of persons 

sentenced to death until they exhaust their appeals, 18 U.S.C. 

§ 3596(a); releasing prisoners into Marshal custody for 

implementation of their death sentences, id.; and approving the 

amount Marshals may pay for the use of state facilities and 

personnel, id. § 3597(a). 

Of course, the federal protocol’s failure to incorporate

state execution procedures would pose no problem if, as Judge 

Rao believes, it contained a “carveout,” “indicat[ing] that the 

government must depart from the protocol as necessary to . . . 
9

apply the manner of execution prescribed by state law.” Rao 

Op. at 1, 29. But it does not. In relevant part, the protocol states:

The procedures utilized by the [Bureau of 

Prisons (BOP)] to implement federal death 

sentences shall be as follows unless modified 

at the discretion of the Director or his/her 

designee, as necessary to (1) comply with 

specific judicial orders; (2) based on the 

recommendation of on-site medical 

personnel utilizing their clinical judgment; 

or (3) as may be required by other 

circumstances.

Department of Justice, Addendum to BOP Execution Protocol, 

Federal Death Sentence Implementation Procedures 1 (July 25, 

2019) (emphasis added). 

Far from requiring Marshals to follow state law, this 

provision mentions neither state law nor section 3596(a), and it 

leaves the decision to “modif[y]” protocol procedures to “the 

discretion” of the BOP Director, id. Moreover, only the third 

justification for departing from the protocol—“other 

circumstances,” id.—could possibly encompass inconsistent 

state law. But the government—which, after all, wrote the 

protocol—does not so argue. At most, the government suggests 

that it could exercise its residual discretion in accordance with 

state law, noting that “nothing in the federal protocol expressly 

precludes” “offer[ing] . . . a sedative” or having a physician 

present. Appellants’ Br. 33 (referring to the two differences 

between the federal protocol and the relevant state protocols 

identified by the district court). 

Where, as here, agency action is challenged under the 

Administrative Procedure Act, we can uphold the action only 
10

on “[t]he grounds . . . upon which the record discloses that [it] 

was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

Throughout this litigation, the government has insisted that 

requiring it to comply with state law would be “perverse[],” 

Appellants’ Br. 19, and would “hamstring” implementation of 

the federal death penalty, Reply Br. 13. We have no authority 

to rewrite the protocol to ensure it complies with the FDPA.

“[A]gency policy is to be made, in the first instance, by the 

agency itself . . . . Courts ordinarily do not attempt . . . to 

fashion a valid regulation from the remnants of the old rule.” 

Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).

The problem with Judge Rao’s interpretation of the protocol, 

then, is not just that it represents an “independent assessment” 

of the protocol’s meaning, Rao Op. at 30, but more 

fundamentally that “it sustains a rule which the agency has 

never adopted at all,” Harmon, 878 F.2d at 495 n.20.

I end with a few observations about the government’s 

defense of the protocol.

First, had Congress intended to authorize the Attorney 

General to adopt a uniform execution protocol, “it knew 

exactly how to do so.” SAS Institute, Inc. v. Iancu, 138 S. Ct. 

1348, 1355 (2018). The year before Congress enacted the 

FDPA, then-Attorney General William Barr issued a regulation 

setting lethal injection as the uniform federal method of 

execution and authorizing the BOP Director to determine 

which chemicals to use. See Department of Justice, 

Implementation of Death Sentences in Federal Cases, 58 Fed. 

Reg. 4898, 4901–02 (Jan. 19, 1993) (codified at 28 C.F.R. 

§ 26.3) (1993 Regulation). This regulation was a gap-filler: 

several years earlier, Congress had repealed the 1937 Act, 

leaving unclear how federal executions would be carried out. 
11

While Congress was considering the bill that would become the 

FDPA, General Barr’s successor, Attorney General Janet Reno,

warned that section 3596(a)’s “proposed procedures 

contemplate a return to an earlier system”—i.e., the 1937 

Act—“in which the Federal Government does not directly 

carry out executions, but makes arrangements with states to 

carry out capital sentences in Federal cases.” H.R. Rep. No. 

104–23, at 22 (1995) (quoting Letter of Attorney General Janet 

Reno to Honorable Joseph R. Biden, Jr., Detailed Comments at 

3–4 (June 13, 1994)). She therefore recommended that 

Congress amend the bill “to perpetuate the current approach”—

i.e., the 1993 Regulation—“under which the execution of 

capital sentences in Federal cases is carried out by Federal 

officials pursuant to uniform regulations issued by the Attorney 

General.” Id. Despite this recommendation, “Congress didn’t 

choose to pursue that known and readily available approach 

here. And its choice”—to require executions to be carried out 

according to state, not federal, law—“must be given effect 

rather than disregarded.” SAS Institute, 138 S. Ct. at 1356.

Second, the government argues that requiring it to comply 

with state law would “preclud[e]” it “from selecting more 

humane lethal-injection protocols than those used by the 

states.” Appellants’ Br. 29. As explained above, however,

section 3596(a), like the 1937 Act, relies on the states, not the 

Attorney General, to ensure that federal executions are 

humane. Perhaps circumstances have changed and authorizing

the Attorney General to select lethal substances, dosages, and 

injection procedures would lead to more humane executions.

That, however, “is a decision for Congress and the President to 

make if they wish by enacting new legislation.” Loving v. IRS, 

742 F.3d 1013, 1022 (D.C. Cir. 2014); see also Rao Op. at 24.

They have ready templates in the nine bills Congress has 

considered and rejected in the years since the FDPA’s 

enactment, every one of which would have permitted federal 
12

executions to be carried out “pursuant to regulations prescribed 

by the Attorney General.” H.R. 2359, 104th Cong. § 1 (1995); 

see also H.R. 851, 110th Cong. § 6 (2007); H.R. 3156, 110th 

Cong. § 126 (2007); S. 1860, 110th Cong. § 126 (2007); H.R. 

5040, 109th Cong. § 6 (2006); S. 899, 106th Cong. § 6504 

(1999); H.R. 4651, 105th Cong. § 501 (1998); S. 3, 105th 

Cong. § 603 (1997); H.R. 1087, 105th Cong. § 1 (1997).

Finally, the government argues that requiring it to follow 

“every nuance” of state protocols “could impose significant 

barriers to administering” the federal death penalty. 

Appellants’ Br. 27. Plaintiffs, however, do not contend that the 

government must follow “every nuance.” Quite to the contrary, 

they argue, and I agree, that section 3596(a) requires the federal 

government to follow only “implementation” procedures, 18 

U.S.C. § 3596(a), which plaintiffs define as those procedures 

that “effectuat[e] the death,” Oral Arg. Rec. 1:01:06, including

choice of lethal substances, dosages, vein-access procedures, 

and medical-personnel requirements, see id. 1:01:58–1:05:25. 

To be sure, plaintiffs’ interpretation could present courts with 

line-drawing challenges: is, for example, color-coding syringes 

part of effectuating an execution? But here we face no such 

challenges given that the federal protocol fails to account for

state procedures that are obviously integral to 

“implement[ing]” a death sentence, 18 U.S.C. § 3596(a). 

In any event, if crafting a federal protocol consistent with 

the FDPA proves too difficult, then the Attorney General may, 

pursuant to section 3596(a), arrange for plaintiffs to be 

executed by the relevant states—just as most federal prisoners 

have been since 1937. See Oral Arg. Rec. 1:38:13–34

(plaintiffs’ counsel acknowledging as much). The government

fears that states could “block implementation of a federal death 

sentence,” Appellants’ Br. 28, but at oral argument government 

counsel assured us that the government has no evidence of state 
13

recalcitrance in this case, see Oral Arg. Rec. 18:50–55

(responding “no” to the question whether there “is any 

evidence of” “obstructionism” “in this case”). And if such 

problems do come to pass—that is, if section 3596(a)’s 

incorporation of state procedures creates obstacles for federal 

executions—then Congress will have all the more reason to 

revise the statute. Until it does, this court must enforce section 

3596(a) as written. “[I]t is never our job to rewrite . . . statutory 

text under the banner of speculation about what Congress 

might have done had it faced a question that, on everyone’s 

account, it never faced.” Henson v. Santander Consumer USA 

Inc., 137 S. Ct. 1718, 1725 (2017).