DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

As noted in this post from 10 days ago, a federal district judge last month blocked the scheduled executions of four condemned federal prisoners via this 15-page order based on the contention that the Justice Department's planned execution protocol "exceeds statutory authority."  Not surprisingly, the Justice Department sought review in the DC Circuit, and today via this three-sentence order a panel of judges denied the motion to stay or vacate the lower court's preliminary injunction.  This Reuters article reports on the ruling and its context:

A U.S. appeals court on Monday dealt another setback to plans by President Donald Trump’s administration to resume the death penalty at the federal level after a 16-year hiatus, denying a Justice Department bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least temporarily stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling....

The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” Nolan said....

Under Trump’s Democratic predecessor Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July. Barr scheduled the executions of five inmates for December and January and unveiled a new protocol that involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted. The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued. Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violates the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas for murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. A fifth inmate who Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.

The panel of the DC Circuit ruling her was made up of Circuit Judges Rogers, Griffith, and Rao.  Given the composition of this panel (which includes a recent appointee of Prez Trump), I suspect the Justice Department will not bother with seeking en banc review and instead will press its case to SCOTUS (as Attorney General Barr promised to do, if needed).  Assuming the Justice Department gets its papers to SCOTUS before the end of this week, the Justices should be able to rule on the matter in some manner before the first scheduled execution on Dec. 9.  Interesting times.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?