Judge David Tatel of the U.S. District Court for the District of Columbia/photo by Diego Radzinschi

The U.S. Court of Appeals for the D.C. Circuit on Friday denied a request for an en banc rehearing of a challenge to Attorney General William Barr's new federal death penalty protocols, with one judge pointing to the U.S. Supreme Court's direction for the court to not hold up the case.

A three-judge panel on the court ruled 2-1 earlier this year to lift a preliminary injunction placed on the protocols, which would allow federal executions to resume. Judges Neomi Rao and Gregory Katsas, both appointed by President Donald Trump to the bench, disagreed on their legal reasoning but came to the same conclusion on lifting the injunction.

Judge David Tatel disagreed with that finding, and in a dissenting opinion said he believed the protocol is "contrary" to federal death penalty law. He issued a statement with Friday's order saying he believes the case "is en banc worthy" but "did not call for a vote because, given that the Supreme Court directed this court to proceed 'with appropriate dispatch,' I agree that '[our] review should be concluded without delay.'" Chief Judge Sri Srinivasan did not participate in consideration of the petition.

Barr announced last year the adoption of new federal execution policies, which were quickly challenged in federal court. U.S. District Judge Tanya Chutkan issued a preliminary injunction blocking the protocol, and both the D.C. Circuit and the U.S. Supreme Court denied Department of Justice's motions to stay that ruling. The justices said in December they expected the circuit court to "render its decision with appropriate dispatch."

In a statement issued with the Supreme Court's findings written by Justice Samuel Alito and joined by Justices Neil Gorsuch and Brett Kavanaugh, the justices said they believed the Justice Department "is very likely to prevail when this question is ultimately decided."

"Nevertheless, 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," the justices said.

Hogan Lovells appellate attorney Catherine Stetson argued the case before the D.C. Circuit in January. In the petition for an en banc rehearing of the case, signed by attorneys from Hogan Lovells, Wilmer Cutler Pickering Hale and Dorr, KaiserDillon and federal defenders, lawyers argued the panel opinion "conflicts with Supreme Court and D.C. Circuit precedent and will carry grave and irremediable consequences."

"The upshot: In its haste to uphold the protocol, the panel majority disregarded foundational principles of statutory interpretation, administrative law, and judicial review. These errors are troubling in their own right, as they could affect a wide range of this court's administrative-law cases," the petition filed last month reads. "But the consequences here are far more imminent and grave. The panel's decision will allow the government to execute scores of federal inmates pursuant to an unlawful protocol."

In a filing last week, the Justice Department urged the circuit to uphold the panel opinion. "If plaintiffs wish to attempt to persuade the Supreme Court that Judge Tatel's dissenting views are correct, they are free to seek further review there," the DOJ lawyers wrote. "But this court should not frustrate the Supreme Court's expectation that this court would render a decision with dispatch, by engaging in lengthy en banc proceedings to second-guess rulings that present neither a conflict with governing precedent nor questions of exceptional importance."

Stetson said in a statement Friday that the legal challenge to the protocol will continue. "The Court of Appeals' fractured decision leaves many questions about the legality of the government's execution protocol unresolved," she said. "We will be actively assessing all available avenues to ensure that no federal executions take place until the courts have had an opportunity to review all outstanding issues."