Hogan Lovells office in Washington, D.C. (Photo: Diego M. Radzinschi / ALM)

A flood of Big Law and Justice Department lawyers took over the U.S. Court of Appeals for the D.C. Circuit on Wednesday, as they argued over Attorney General William Barr's new policy reviving the federal death penalty.

U.S. District Judge Tanya Chutkan ruled late last year to block several federal executions scheduled to begin in December under the new policy. The D.C. Circuit and the U.S. Supreme Court both declined to stay that order while the appeal was litigated.

Justice Department attorney Melissa Patterson urged the three-judge panel to lift Chutkan's injunction, noting that a statement signed by Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicates they believe the federal government will win the case.

She said the case turns on the reading of the word "manner" within federal death penalty law, arguing that term applies solely to the method of execution, and not other issues like the substance used for a lethal injection or the location of an execution.

Wednesday's panel—comprised of Judges David Tatel, Neomi Rao and Gregory Katsas—questioned the law on executions, the Federal Death Penalty Act and what responsibilities it hands to federal and state governments.

Tatel noted the act directly gives some powers to the attorney general but does not address others.

"How can a statute that gives a federal official three express responsibilities," Tatel asked, be interpreted to let that officials fill in the rest of the gaps during an execution?

Arguing on behalf of the four men whose executions are currently blocked was Catherine Stetson, co-head of Hogan Lovells' appellate practice group.

Stetson told the panel that the federal death penalty law blocked the creation of a national policy for executions and that executions should be left to the states.

She noted that Congress had turned to the states to lead execution policies because their protocols were considered "more humane" than those used at the federal level and that the new policy therefore should not be upheld.

The panel of judges did not explicitly signal how they'll rule on the policy. But the panel's makeup, which consists of two judges appointed by Donald Trump, Katsas and Rao, puts the president's judicial nominees at the heart of a decision on a major administration policy.

The case has also drawn a number of Big Law attorneys to the D.C. Circuit. Stetson, alongside fellow Hogan Lovells partner Pieter Van Tol, is representing inmate Daniel Lewis Lee.

Attorneys from Wilmer Cutler Pickering Hale and Dorr are representing another inmate, Wesley Ira Purka, and KaiserDillon attorney Jonathan Jeffress is on board to defend Dustin Lee Honken. Federal public defender Shawn Nolan is representing Alfred Bourgeois.

The line for parties in the case stretched far longer than the lines for the press or the public waiting to enter the courtroom ahead of arguments Wednesday morning. And after arguments, a couple of dozen attorneys, including Stetson, could be seen huddling in the courthouse cafeteria.

Chutkan wrote in her November opinion that, "absent a preliminary injunction, Plaintiffs would be unable to pursue their claims, including the claim that the 2019 protocol lacks statutory authority, and would therefore be executed under a procedure that may well be unlawful."

Alito, Gorsuch and Kavanaugh urged the appeals court to act quickly after the Supreme Court denied to pause Chutkan's order.

"The Government has shown that it is very likely to prevail when this question is ultimately decided," Alito wrote at the time, adding, "in light of what is at stake, it would be preferable for the District Court's decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out."

Wednesday's arguments stem from a years-old case originally playing out in district court. That challenge to the federal death penalty was paused after the executive branch stopped executions but was revived when Attorney General William Barr announced that the agency would restart the practice.

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