Gregory Katsas testifies before the Senate Judiciary Committee during his confirmation hearing to be a judge of the U.S. Court of Appeals for the District of Columbia Circuit in October 2017. (Photo: Diego M. Radzinschi/ALM)

The U.S. Court of Appeals for the D.C. Circuit threw out a district court's preliminary injunction Tuesday that blocked the Trump administration's recent efforts to reinstate the federal death penalty.

Judges Neomi Rao and Gregory Katsas, both appointed to the bench by President Donald Trump, wrote concurring opinions in favor of vacating the injunction. Judge David Tatel, a Clinton appointee, dissented.

"Each member of the panel takes a different view of what the [Federal Death Penalty Act of 1994] requires," Tuesday's opinion reads. "Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction."

At the center of the case is the question of how the federal government can implement the death penalty, as federal law says executions should be carried out "in the manner prescribed by the law of the state in which the sentence is imposed." Attorney General William Barr last year announced new protocols for federal executions and scheduled the executions of five federal prisoners.

In his concurring opinion, Katsas wrote he believes the "manner" of execution as laid out in the federal death penalty law only applies to the method of execution, which gives federal authorities more leeway.

"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," he wrote.

Katsas further wrote that he is in favor of overturning the preliminary injunction entirely, saying "the district court failed to recognize the important governmental and public interest in the timely implementation of capital punishment."

"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," Katsas wrote.

Rao, diverging from Katsas, said the federal death penalty law says authorities should follow state law on execution protocols wherever it exists.

"Where state law is silent, the federal government has discretion to choose whatever lawful execution procedures it prefers," Rao wrote. "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," she continued. "I therefore agree to vacate the preliminary injunction."

While aligned in agreeing the injunction on the protocols should be lifted, each of the Trump-tapped judges laid out their disagreements with the other's opinion.

For example, Katsas said Rao's interpretation of the statute, that state's laws should be the controlling phrase in the statute, "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 as an adjective and modifies the noun 'manner,'" Katsas argued. "By using the adjective to construe the noun broadly, Judge Rao overlooks 'the ordinary understanding of how adjectives work.'"

In response, Rao wrote that Katsas' argument "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,'" she continued. "Thus, my reading is consistent with the most common grammatical function of a participial phrase."

In his dissenting opinion, Tatel said he does not believe Barr's new federal protocols for executions included a "carveout" to follow state regulations where they exist.

He said he believes the Federal Death Penalty Act "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."

Therefore, Tatel wrote, he found the new federal protocol to be "contrary" to federal law and would vacate it.

The panel grilled Hogan Lovells appellate partner Cate Stetson and Justice Department attorney Melissa Patterson during January oral arguments over an injunction issued by U.S. District Judge Tanya Chutkan last year that temporarily blocked the death penalty policy.

A number of Big Law firms, including KaiserDillon and Wilmer Cutler Pickering Hale and Dorr,  alongside federal defenders, are representing federal prisoners Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois and Dustin Lee Honkin.

In a statement Tuesday, Stetson said "the government has rushed the process in order to carry out executions without meaningful judicial review of the legality and constitutionality of the new execution procedures."

"Without action by the full court, the panel's splintered decision will allow the government to execute prisoners even while serious questions remain unanswered about the legality of the government's execution procedures under federal law," she added.

Chutkan found in October that it was necessary to pause the executions, which were set to begin the following December, so the inmates could pursue their legal claims and not "be executed under a procedure that may well be unlawful."

The D.C. Circuit declined to stay the injunction during the appeal, as did the U.S. Supreme Court. Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote in a statement at the time they believed the new execution protocols would ultimately be upheld.

Still, Alito wrote, "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."

Read more:

Hogan Lovells Argues States, Not Feds, Should Hold Executions in Fight Over Barr's Death Penalty Policy

DC Circuit Throws Out McGahn Ruling on House's Lack of Standing, Grants En Banc Rehearing

Trump Appointee Neomi Rao Has Some Strong Opinions. Even Her GOP-Tapped Colleague Disagrees.

Judge Thomas Griffith to Retire from DC Circuit, Opening Third Vacancy for Trump