Earlene Branch Peterson v. William P. Barr

                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 20-2252


WILLIAM P. BARR, Attorney General
of the United States, MICHAEL CARVAJAL,
and T. J. WATSON, Warden,

             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
   No. 2:20-cv-00350-JMS-DLP — Jane Magnus-Stinson, Chief Judge.

      SUBMITTED JULY 11, 2020 — DECIDED JULY 12, 2020

   Before SYKES, Chief Judge, and EASTERBROOK and BARRETT,
Circuit Judges.
   SYKES, Chief Judge. In 1996 Daniel Lewis Lee murdered an
Arkansas family of three in pursuit of funds to support the
racketeering activities of a white supremacist organization.
The crimes were particularly heinous. Lee and his codefend-
2                                                 No. 20-2252

ant were members of the Aryan Peoples’ Republic, a white
supremacist group that sought to establish an independent
nation in the Pacific Northwest. In January 1996 they trav-
eled from the State of Washington to the Arkansas home of
firearms dealer William Mueller; his wife, Nancy; and their
eight-year-old daughter Sarah. After stealing a cache of
weapons and a large amount of cash and coins, they shot the
three victims with a stun gun, duct taped plastic bags over
their heads to asphyxiate them, weighed their bodies down
with rocks, and threw them in a bayou. The bodies washed
up in an Arkansas lake about six months later.
     In 1999 a federal jury in the Eastern District of Arkansas
convicted Lee of three counts of capital murder in aid of
racketeering, 18 U.S.C. § 1959(a)(1), and sentenced him to
death. Now more than two decades later, Lee has exhausted
all appeals, including multiple rounds of postconviction
review, and is scheduled to be executed on Monday, July 13,
2020, at the United States Penitentiary in Terre Haute,
Indiana. The execution was originally scheduled to take
place on December 9, 2019, but was enjoined by two district
judges, one in the Southern District of Indiana (where the
prison is located) in connection with Lee’s petition for
habeas corpus under 28 U.S.C. § 2241, and another in the
District of Columbia who was hearing a challenge to the
federal execution protocol brought by Lee and other death-
row inmates at the Terre Haute prison. We described this
litigation history in our opinion two days ago affirming the
Indiana judge’s final order denying § 2241 relief. Lee v.
Watson, No. 20-2128, slip op. at 3–6 (7th Cir. July 10, 2020).
For present purposes, it’s enough to say that on December 6,
2019, we vacated the stay in the § 2241 habeas proceeding,
Lee v. Watson, No. 19-3399, 

2019 WL 6718924

(7th Cir. Dec. 6,
No. 20-2252                                                   3

2019), and the Court of Appeals for the District of Columbia
Circuit vacated the injunction in the execution-protocol case
on April 7, 2020, In re Fed. Bureau of Prisons’ Execution Proto-
col Cases, 

955 F.3d 106

(D.C. Cir. 2020). The Bureau of Prisons
(“BOP”) thereafter rescheduled Lee’s execution for July 13,
2020, at 4 p.m. EDT.
    On July 7, 2020, three family members of the victims filed
a complaint in the Southern District of Indiana seeking to
enjoin the BOP from carrying out Lee’s execution. The
plaintiffs—Earlene Peterson, age 81 (Nancy’s mother);
Kimma Gurel, age 61 (Nancy’s sister); and Monica Veillette,
age 43 (Nancy’s niece)—want to attend the execution even
though they oppose it. The Warden has authorized them to
be witnesses, but they object to the BOP’s decision to carry
out the execution during the COVID-19 pandemic. They
raise health concerns due to age, underlying medical condi-
tions, the need to travel interstate to reach the Terre Haute
prison, and the current degree of COVID-19 spread
throughout the country. They seek to delay the execution
until the pandemic is suppressed by widespread vaccination
or effective treatment. The suit names the Attorney General,
the BOP Director, and the Warden as defendants; we refer to
them collectively as “the government.” The plaintiffs allege
that the agency’s decision to schedule Lee’s execution for
July 13 failed to adequately account for the effect of the
pandemic on their right to attend and thus is arbitrary,
capricious, and contrary to law in violation of the Adminis-
trative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).
   Late in the day on Friday, July 10, a district judge in the
Southern District of Indiana issued a preliminarily injunction
enjoining the defendants “from carrying out the execution of
4                                                    No. 20-2252

Daniel Lewis Lee on July 13, 2020, or on any future date,
pending final resolution of the merits of this case or until
further order of this [c]ourt.” Order Granting Plaintiffs’
Motion for Preliminary Injunction at 14, ECF. No. 20. The
judge ruled that “the plaintiffs have shown a strong likeli-
hood of prevailing on their claim that the defendants’ setting
of Mr. Lee’s execution date without considering their right to
be present was arbitrary and capricious and not in ac-
cord[ance] with [the] law.”

Id. at 11.

    The government immediately appealed and sought a
stay from the district court. That request was promptly
denied. On Saturday morning, July 11, the government filed
an emergency motion asking us to summarily stay or vacate
the preliminary injunction. We ordered a response from the
plaintiffs by 6 p.m. CDT. They complied. The government
filed a reply late last night.
    We vacate the preliminary injunction. The plaintiffs’
APA claim lacks any arguable legal basis and is therefore
    First, the challenged agency action—setting a date for ex-
ecution—may not be judicially reviewable at all. The APA
does not permit judicial review of an action “committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2); Heckler v.

470 U.S. 821

, 829–33 (1985). The government argues
that scheduling an execution date is such an action. “When
deciding whether a decision is committed to agency discre-
tion, we first review the applicable statutes and regulations.”
Menominee Indian Tribe of Wis. v. EPA, 

947 F.3d 1065

, 1072
(7th Cir. 2020). The object is “to see if they contain ‘judicially
manageable standards … for judging how and when an
No. 20-2252                                                5

agency should exercise its discretion.’”

Id. (quoting Chaney,

470 U.S. at 830) (omission in original).
    As relevant here, the Federal Death Penalty Act directs
that “[a] person who has been sentenced to death” must be
“committed to the custody of the Attorney General until
exhaustion of the procedures for appeal of the judgment of
conviction and for review of the sentence.” 18 U.S.C.
§ 3596(a). It continues: “When the sentence is to be imple-
mented, the Attorney General shall release the person
sentenced to death to the custody of a United States
[M]arshal, who shall supervise implementation of the sen-
tence in the manner prescribed by the law of the [s]tate in
which the sentence [was] imposed”—here, Arkansas.

Id. (If the

forum state does not have a death penalty, the Act
directs the district court to designate another state. Id.)
   The applicable regulations delegate broad discretion to
the BOP Director to set execution dates:
       (a) Except to the extent a court orders other-
       wise, a sentence of death shall be executed:
           (1) On a date and at a time designated by
           the Director of the Federal Bureau of Pris-
           ons, which date shall be no sooner that
           60 days from the entry of the judgment of
           death. If the date designated for execution
           passes by reason of a stay of execution, then
           a new date shall be designated promptly by
           the Director … when the stay is lifted.
28 C.F.R. § 26.3(a)(1).
   Another regulation provides:
6                                                  No. 20-2252

        Except to the extent a court orders otherwise:
        (a) The Warden of the designated institution
        shall notify the prisoner under sentence of
        death of the date designated for execution at
        least 20 days in advance, except when the date
        follows a postponement of fewer than 20 days
        of a previously scheduled and noticed date of
        execution, in which case the Warden shall noti-
        fy the prisoner as soon as possible.

Id. § 26.4(a).

    Perhaps the minimal constraints imposed by these regu-
latory requirements—the 60-day postjudgment waiting
period and the 20-day notice to the prisoner—are enough to
preclude a conclusion that the BOP Director’s scheduling
decisions are entirely unreviewable under § 701(a)(2). For
example, if a prisoner sued for inadequate notice of an
execution date, a court could review that decision. But if the
BOP observes the minimal requirements in the regulations—
as it did here—then it has the unconstrained discretion to
choose a date for the execution.
    The plaintiffs’ claim is frivolous for another reason: they
have no statutory or regulatory right to attend the execution.
Judicial review under the APA is limited to persons who are
“adversely affected or aggrieved by agency action within the
meaning of a relevant statute.” 5 U.S.C. § 702. Accordingly, a
plaintiff must establish that “the injury he complains of …
falls within the zone of interests sought to be protected by
the statutory provision whose violation forms the legal basis
for his complaint.” Air Courier Conference of Am. v. Am. Postal
No. 20-2252                                                   7

Workers Union AFL-CIO, 

498 U.S. 517

, 523–24 (1991) (quota-
tion marks omitted).
    The plaintiffs cannot satisfy this basic requirement. No
federal statute or regulation gives them a right to attend
Lee’s execution. Needless to say, executions are not public
proceedings. The Federal Death Penalty Act makes no
mention of witnesses, whether members of the victims’
family or others. In their complaint and motion for a prelim-
inary injunction, the plaintiffs relied on the following regula-
       (c) In addition to the Marshal and Warden, the
       following persons shall be present at the execu-
          (1) Necessary personnel selected by the
          Marshal and Warden;
          (2) Those attorneys of the Department of
          Justice whom the Deputy Attorney General
          determines are necessary;
          (3) Not more than the following numbers of
          person[s] selected by the prisoner:
              (i) One spiritual adviser;
              (ii) Two defense attorneys; and
              (iii) Three adult friends or relatives; and
          (4) Not more than the following numbers of
          persons selected by the Warden:
              (i) Eight citizens; and
              (ii) Ten representatives of the press.
8                                                 No. 20-2252

      (d) No other person shall be present at the exe-
      cution, unless leave for such person’s presence
      is granted by the Director of the Federal
      Bureau of Prisons. No person younger than
      18 years of age shall witness the execution.
28 C.F.R. § 26.4(c)–(d) (emphasis added).
    The plaintiffs argued below that subsection (c)(4)(i) of
§ 26.4 gives them a legally enforceable right to attend the
execution. It does not. The regulation specifies who may be
permitted by the Warden to attend an execution. It is a limita-
tion on, not an entitlement to, witness attendance. It is not
designed to protect the plaintiffs; the regulation does not
even mention victims’ family members. Nothing in the
regulation gives the plaintiffs a right to require the BOP to
schedule Lee’s execution at a time when they are willing or
able to attend. Nor does the regulation require their attend-
ance before the execution may proceed.
   Indeed, the district judge did not credit this argument.
Instead, she developed her own theory of the case. Setting
aside the impropriety of this maneuver, see United States v.

140 S. Ct. 1575

, 1582 (2020), the judge’s
theory is no more viable than the one raised by the plaintiffs.
    Recall that the Federal Death Penalty Act provides that
an execution shall be implemented “in the manner pre-
scribed by the law of the [s]tate in which the sentence is
imposed,” § 3596(a)—again, Arkansas. Relying on the D.C.
Circuit’s decision in Execution Protocol Cases, the judge
concluded that § 3596(a) incorporates Arkansas law govern-
ing execution witnesses—more specifically, section 16-90-
No. 20-2252                                                    9

502(e)(1) of the Arkansas Code. That reasoning seriously
misreads the D.C. Circuit’s decision and federal law.
    By its terms, § 3596(a) incorporates the forum state’s law
regarding the “manner” of implementing a death sentence.
At issue in Execution Protocol Cases was whether this provi-
sion incorporates only “a [s]tate’s choice among execution
methods such as hanging, electrocution, or lethal injection,”
or whether it also requires the federal government to adhere
to the “subsidiary details” of the state’s chosen execution

method. 955 F.3d at 108

. The D.C. Circuit split three ways.
Judge Katsas concluded that § 3596(a) incorporates only the
“top-line choice among execution methods such as hanging,
electrocution, or lethal injection.”

Id. at 113

(Katsas, J., con-
curring). Judge Rao interpreted the incorporation language
more broadly to include the procedures governing the
manner of execution formally established by state statute or
regulation, but not informal protocols or procedures.

Id. at 130

(Rao, J., concurring). As relevant here, Judge Rao identi-
fied section 5-4-617 of the Arkansas Code—the provision
specifying the state’s lethal-injection procedures—as the
incorporated state law in Lee’s case.

Id. at 142.

Judge Tatel
dissented. He agreed with Judge Rao that § 3596(a) incorpo-
rates state procedures for effectuating death as contained in
statutes and regulations.

Id. at 146

(Tatel, J., dissenting). But
he concluded that the statute also incorporates informal
protocols if “issued by state prison officials pursuant to state

Id. Nothing in

any of the separate opinions in Execution Pro-
tocol Cases supports the judge’s conclusion that § 3596(a)
incorporates the Arkansas Code provision governing execu-
tion witnesses. To the contrary, the debate among the D.C.
10                                                No. 20-2252

Circuit judges was limited to state laws, regulations, and
protocols governing procedures for effectuating death. Indeed,
even the dissenting judge accepted that § 3596(a) does not
require the BOP to follow “every nuance” of state execution
procedure, but rather only “those procedures that effectuate
the death, including choice of lethal substances, dosages,
vein-access procedures, and medical-personnel require-

Id. at 151

(alteration and citations omitted). Section
3596(a) cannot be reasonably read to incorporate every
aspect of the forum state’s law regarding execution proce-
dure. We do not understand the word “manner” as used in
§ 3596(a) to refer to details such as witnesses. The word
concerns how the sentence is carried out, not who watches.
   In short, section 16-90-502(e)(1) of the Arkansas Code, the
provision governing execution witnesses, is irrelevant here.
The judge was wrong to insert it into this case.
                                        INJUNCTION VACATED

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