                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUITÎ

DONALD EDWARD BEATY,                   ⎫
                Plaintiff-Appellant,
                v.
                                              No. 11-99007
JANICE K. BREWER, Governor of
Arizona; CHARLES RYAN, Director,                 D.C. No.
Arizona Department of                        2:11-cv-01037-
Corrections; ERNEST TRUJILLO,          ⎬          NVW
                                           District of Arizona,
Warden, Arizona Department of
Corrections- Eyman; CARSON                       Phoenix
MCWILLIAMS, Warden, Arizona                   AMENDED
Department of Corrections-                       ORDER
Florence; UNKNOWN PARTIES,
Names as Does 1-50,
             Defendants-Appellees.
                                       ⎭
                     Filed May 25, 2011

        Before: Sidney R. Thomas, Circuit Judge and
                 Capital Case Coordinator.

                         Order;
              Concurrence by Judge Tallman;
               Dissent by Judge Reinhardt


                          ORDER

  Pursuant to the rules applicable to capital cases in which an
execution date has been scheduled, a deadline was established
by which any judge could request a vote on whether the
panel’s order should be reheard en banc. A judge requested a
vote on whether to rehear the panel’s decision en banc. Judges

                             7441
7442                    BEATY v. BREWER
Silverman and Ikuta were recused and did not participate in
the vote.

   A majority of the non-recused active judges did not vote in
favor of rehearing en banc. Therefore, the panel’s order is the
final order of this Court. A copy of the panel order, along with
a copy of the district court order to which it refers is attached.
Also attached is a dissent from the order denying rehearing en
banc and a concurrence in the order.

   No further petitions for rehearing or rehearing en banc will
be entertained as to the order. The previously issued tempo-
rary stay of execution is VACATED.



TALLMAN, Circuit Judge, with whom Chief Judge
KOZINSKI, and Judges O’SCANNLAIN, GOULD,
CALLAHAN, BEA, and M. SMITH join, concurring in the
denial of rehearing en banc:

   Judge Reinhardt and those who join him fault this Court for
failing to further delay the inevitable. They fault us for not
giving Donald Beaty yet another opportunity to delay the just
punishment he has been resisting for more than twenty-six
years. Admittedly, we, like the district court, are “troubled by
the timing of both the Department of Justice’s request that
[the Arizona Department of Corrections’s (“ADC”)] sodium
thiopental not be used in Plaintiff’s execution and the ADC’s
decision to substitute pentobarbital.” Nevertheless, we cannot
say that Beaty has not been afforded all the process he is due.
Apparently, the Supreme Court agrees. While we voted on
whether to rehear this case en banc, the Court denied Beaty’s
petition for certiorari challenging the State’s decision to sub-
stitute the drugs. Beaty v. Brewer, No. 10-10675 (May 25,
2011).

  Judge Reinhardt argues that the “issue before us is not the
substantive one of whether substituting drug A for drug B is
                        BEATY v. BREWER                      7443
‘very likely’ to cause needless suffering.” Not so. Though
“the right to procedural due process is ‘absolute,’ ” it is not
unmeasured. Carey v. Piphus, 435 U.S. 247, 259, 266 (1978).
“[I]n deciding what process constitutionally is due in various
contexts, the Court repeatedly has emphasized that ‘proce-
dural due process rules are shaped by the risk of error inherent
in the truth-finding process . . . .’ ” Id. at 259 (quoting
Mathews v. Eldridge, 424 U.S. 319, 344 (1976)).

   Had Beaty raised a claim of significant merit, the “risk of
error” would have risen and so, too, would the degree of pro-
cess necessary to satisfy any constitutional concern. However,
Beaty did not raise such a claim. To the contrary, Beaty not
only failed to provide any factual support for his claim, cf.
Brewer v. Landrigan, 562 U.S. ___, 131 S. Ct. 445 (2010)
(“But speculation cannot substitute for evidence that the use
of the drug is ‘sure or very likely to cause serious illness and
needless suffering.’ ” (quoting Baze v. Rees, 553 U.S. 35, 50
(2008) (plurality opinion))), he failed to suggest any way in
which the modified protocol is constitutionally objectionable
—or objectionable at all. Regardless, the factual underpin-
nings of this claim were reviewed by the Arizona Supreme
Court, the Arizona District Court, the Ninth Circuit, and the
Supreme Court itself. This process was constitutionally suffi-
cient.

   Both the district court, and our three-judge panel, correctly
applied the Winter factors in concluding that Beaty had not
met his burden of entitlement to injunctive relief. Winter v.
Natural Res. Def. Council, 129 S. Ct. 365 (2008). That should
be the end of the matter. Judge Reinhardt suggests that the
timing constraints at issue in this situation should prohibit
Winter’s application, but he cites nothing to support that novel
proposition.

   To the contrary, the Supreme Court has instructed that “a
plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
7444                   BEATY v. BREWER
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Id. at 374 (emphasis added); see also
Hill v. McDonough, 547 U.S. 573, 584 (2006) (stating that a
“preliminary injunction [for a stay of execution is] not granted
unless the movant, by a clear showing, carries the burden of
persuasion” (emphasis added)). No authority supports Judge
Reinhardt’s proposition that a prisoner is entitled to a stay in
order to get discovery to make out a claim. Not only does
Winter apply, but we are prohibited from granting relief
unless its standards are met.

   The Supreme Court has instructed that an injunction is an
“extraordinary and drastic remedy,” Munaf v. Green, 553 U.S.
674, 689 (2008), and that we should be especially cautious in
granting injunctive relief where doing so would trample on
the state court’s judgment, Baze, 553 U.S. at 51 n.2. Federal
courts are not “boards of inquiry charged with determining
‘best practices’ for executions.” Id. at 51. Pentobarbital is a
barbiturate commonly used to euthanize terminally ill patients
who seek death with dignity in states such as Oregon and
Washington. It has also successfully been used for executions
in at least four other states. Beaty’s sheer speculation that the
drug, obtained from a domestic source, will act differently
when administered to him by members of a team comprised
of “medically trained personnel, such as physicians, physician
assistants, nurses, or emergency medical technicians,” Dick-
ens v. Brewer, 631 F.3d 1139, 1142 (9th Cir. 2011), comes
nowhere near meeting his burden of establishing that the drug
is “ ‘sure or very likely to cause serious illness and needless
suffering,’ and give rise to ‘sufficiently imminent dangers,’ ”
Baze, 553 U.S. at 50.

   Were we to countenance such hypothetical arguments—and
delay solely for the sake of delay—we would simply encour-
age collateral litigation, embroiling us in scientific controver-
sies beyond our expertise and intruding on legislative and
executive prerogative in providing for humane methods of
                       BEATY v. BREWER                      7445
execution. See id. at 51. In the process, we would erect new
obstacles preventing states from carrying out legitimate judg-
ments and lose sight of our overarching responsibility to see
that justice is done. Denial of en banc review accords the
appropriate respect for both the state’s legitimate interests and
Supreme Court precedent.



REINHARDT, Circuit Judge, dissenting from the denial of
rehearing en banc, with whom Judges SCHROEDER,
PREGERSON, W. FLETCHER, FISHER, PAEZ, and
BERZON join:

   Rushing to execute Donald Beaty under the circumstances
before us is unconscionable. At 4:00 p.m. yesterday, a mere
eighteen hours before the State was scheduled to execute him,
Arizona announced that, due to concerns about the legality of
its importation of the drug constitutionally approved for use
in its three-drug protocol, it would switch to a new drug that
it had never tested and that its executioners had not been
trained to use.

   The issue before us is not the substantive one of whether
substituting drug A for drug B is “very likely” to cause need-
less suffering. It is the question of procedural due process:
whether an individual may be executed pursuant to a protocol
substituted for the established means of execution, eighteen
hours before the scheduled time of execution and without suf-
ficient opportunity even to present his constitutional objec-
tions.

   The last-minute action in this case, unlike those previously
condemned by the Supreme Court, was taken by the State not
the individual about to be executed. Normally, we count
against a condemned man seeking a stay “the extent to which
the inmate has delayed unnecessarily in bringing the claim.”
Nelson v. Campbell, 541 U.S. 637, 649 (2004). The State
7446                   BEATY v. BREWER
should be held to a higher standard, not a lower one. The
state’s last-minute action serves, whether by design or other-
wise, to deprive a capital defendant of a fair opportunity to
contest the constitutionality of the new method of death to be
used. Surely, under these circumstances, the condemned indi-
vidual is entitled to attempt to determine and present to the
Court any objections that he may legitimately raise to the new
execution protocol hastily introduced by the State.

   Due Process demands more. “The fundamental requisite of
due process of law is the opportunity to be heard. This right
to be heard has little reality or worth unless one is informed
that the matter is pending . . . .” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (internal cita-
tions omitted). Recently, we observed that “[i]f a court could
never look beyond the facial constitutionality of an execution
protocol when presented with evidence of improper adminis-
tration, states could simply adopt constitutionally sufficient
protocols similar to Kentucky’s and then flout them without
fear of repercussion.” Dickens v. Brewer, 631 F.3d 1139,
1146 (9th Cir. 2011). But now Arizona has upped the stakes:
Why bother to properly administer a protocol that a court has
held is constitutionally sufficient on its face, when you can
just discard that protocol and adopt a new one on the eve of
the execution? This way, Arizona has ensured itself a way of
using a protocol that a court can “never” look at it in any seri-
ous fashion, and it can “flout” the requirement for a constitu-
tionally sufficient protocol “without fear of repercussion.”

   Beaty has a right to reasonable notice of changes or varia-
tions to the mode and manner in which the State plans to carry
out his execution in order to review it and ensure that it com-
ports with constitutional requirements. He has a protected
interest in knowing and being given an opportunity to be
heard about the State’s use of pentobarbital in his execution,
in contrast to its protocol in past executions. Were it other-
wise, the capital defendant’s due process right to review such
protocols would be meaningless.
                           BEATY v. BREWER                   7447
   The panel denied relief because Beaty failed to demonstrate
certain factual matters regarding the new protocol. Yet, we
cannot fault him for failing to do so in less than a single day.
To require such a showing in the eighteen hours before execu-
tion is to deny Beaty due process. The Winter v. Natural
Resources Defense Council1 test relied on by the panel cannot
apply when a party has not been given an opportunity to make
the necessary showing. Here, Beaty was clearly not afforded
that opportunity. A stay should be issued in order to allow
him to do so.

   We err not only by concluding that Beaty will not suffer
irreparable injury, a rather odd proposition to say the least, but
by failing to recognize that the judicial system itself will as
well. This is not the first time there has been a rush to judg-
ment in a capital case, nor the first time there has been an
unwillingness to provide due process to a capital defendant.
Our conduct in this case, as in others, will certainly weaken
even further the diminishing public confidence in the adminis-
tration of the death penalty.




  1
      555 U.S. 7 (2008).
7448                  BEATY v. BREWER



DONALD EDWARD BEATY,                   ⎫
                Plaintiff-Appellant,
                v.
                                              No. 11-99007
JANICE K. BREWER, Governor of
Arizona; CHARLES RYAN, Director,                 D.C. No.
Arizona Department of                        2:11-cv-01037-
Corrections; ERNEST TRUJILLO,          ⎬          NVW
                                           District of Arizona,
Warden, Arizona Department of
Corrections- Eyman; CARSON                       Phoenix
MCWILLIAMS, Warden, Arizona                   AMENDED
Department of Corrections-                       ORDER
Florence; UNKNOWN PARTIES,
Names as Does 1-50,
             Defendants-Appellees.
                                       ⎭
            Amended Order Filed May 27, 2011

       Before: Sidney R. Thomas, Circuit Judge and
                Capital Case Coordinator.

                          Order;
           Concurrence by Chief Judge Kozinski;
               Dissent by Judge Reinhardt

   The Amended Order dated May 25, 2011, is amended to
include the attached concurrence by Chief Judge Kozinski and
the additional dissent by Judge Reinhardt.
                       BEATY v. BREWER                      7449
KOZINSKI, Chief Judge, with whom Judges GOULD, BEA
and N.R. SMITH join, concurring in the denial of rehearing
en banc:

   Because I decided not to delay further the order denying en
banc rehearing, I did not file a concurral on the day of the
execution. Nevertheless, I believe it’s important to lay out an
argument that I found very persuasive when voting on the en
banc call. By the time Beaty asked for a stay, his claim—that
the state violated his constitutional rights by substituting pen-
tobarbital for sodium thiopental as the first drug in its three-
drug execution protocol—had already been rejected by two
other courts of appeals. The Tenth Circuit approved a protocol
virtually identical to Arizona’s after allowing the inmate to
conduct discovery, submit an expert report and participate in
an evidentiary hearing. See Pavatt v. Jones, 627 F.3d 1336,
1338-40 (10th Cir. 2010). The Eleventh Circuit approved the
substitution of pentobarbital for sodium thiopental just last
week. See Powell v. Thomas, No. 11-12238, 2011 WL
1899564, at *1-2 (11th Cir. May 19, 2011) (per curiam). None
of Beaty’s filings—not his complaint, nor his motion for a
TRO before the district court, nor his emergency motion in
our court—suggested any way in which the Tenth or Eleventh
Circuits’ analyses were deficient, or that his case differed
materially from those of the inmates there.

   While these out-of-circuit cases aren’t controlling, I found
it significant that the factual and legal issues in Beaty’s claim
had been fully considered by these courts. Indeed, the inmate
in the Eleventh Circuit had about a month’s notice of the
planned drug substitution, yet the best evidence he could pro-
duce was the same expert report the Tenth Circuit had
rejected. See Powell, 2011 WL 1899564, at *1-2. I didn’t see
how Beaty would come up with better evidence if we granted
him a stay, or how he’d clear the Supreme Court’s high bar
for finding a constitutional violation. See Baze v. Rees, 553
U.S. 35, 49-50 (2008) (plurality op.). It was therefore appro-
priate for the district court to rely on the Tenth and Eleventh
7450                   BEATY v. BREWER
Circuits’ analyses in denying Beaty a stay of his execution,
and for the three-judge panel to rely on the same reasoning.
See Order Denying Mot. for TRO or Prelim. Inj., Beaty v.
Brewer, No. CIV 11-1037-PHX-NVW, at 7 (D. Ariz. May 25,
2011) (docket entry #9) (“[B]oth the Tenth and Eleventh Cir-
cuits have found that use of pentobarbital does not create a
substantial risk of serious harm.”); see also Beaty v. Brewer,
No. 11-99007, Slip op. 7441, 7453 (9th Cir. May 25, 2011)
(“For the reasons expressed by the district court, we conclude
that Beaty has failed to satisfy [the standard for a preliminary
injunction].”). There was no reason to go en banc and further
delay the inevitable.



REINHARDT, Circuit Judge, additional dissent from the
denial of rehearing en banc:

   Chief Judge Kozinski finds it “very persuasive” that two
circuits have approved the use of the three-drug protocol that
Arizona adopted less than twenty-four hours before the sched-
uled execution. Again, I find it necessary to express my dis-
agreement.

   Conflicts among circuits are common. Indeed, one of the
principal reasons for the Supreme Court to hear cases is to
resolve the numerous conflicts among circuits. See Sup. Ct. R.
10. That other circuits have taken a position on a constitu-
tional question does not relieve us of the responsibility to
make a full and independent judgment ourselves. This is the
Ninth Circuit, not the Tenth or Eleventh, and our views some-
times differ from those of other circuits. See, e.g., United
States v. Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc),
affirmed, 515 U.S. 506 (1995); id. at 955 (Kozinski, J., dis-
senting) (observing, prior to the affirmance of our decision by
the Supreme Court, that “[e]very other circuit to have consid-
ered” the question presented has disagreed with the Ninth Cir-
cuit).
                        BEATY v. BREWER                       7451
   This is a death penalty, not a slip-and-fall case. We have no
greater duty than to decide such cases fairly and properly.
Constitutional challenges often turn on their facts. We will
never know whether with more time Beaty could have suc-
cessfully pleaded sufficient facts to satisfy the district court or
the three judges of this court to whom the case was assigned
that a stay was warranted.

   When the State has created a constitutional issue by chang-
ing the method of execution only eighteen hours before that
ultimate and irreversible act is to take place, we must permit
the person to be executed adequate time to prepare his chal-
lenge. That did not happen here. As a result, Beaty was
deprived of due process, and we as a court were compelled to
fall back on inadequate arguments such as those advanced by
Chief Judge Kozinski, rather than to make a fully informed
and independent decision of our own.
7452                  BEATY v. BREWER



DONALD EDWARD BEATY,                   ⎫
                Plaintiff-Appellant,
                v.
JANICE K. BREWER, Governor of                 No. 11-99007
Arizona; CHARLES RYAN, Director,                 D.C. No.
Arizona Department of                        2:11-cv-01037-
Corrections; ERNEST TRUJILLO,          ⎬          NVW
Warden, Arizona Department of              District of Arizona,
Corrections- Eyman; CARSON                       Phoenix
MCWILLIAMS, Warden, Arizona
                                                ORDER
Department of Corrections-
Florence; UNKNOWN PARTIES,
Names as Does 1-50,
             Defendants-Appellees.
                                       ⎭
                    Filed May 25, 2011

  Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
          M. Margaret McKeown, Circuit Judges:


                          ORDER

   Donald Beaty is scheduled to be executed by the State of
Arizona today, Wednesday, May 25, 2011. Earlier today, the
district court denied Beaty’s Motion for Temporary Restrain-
ing Order or Preliminary Injunction. Beaty subsequently filed,
in this court, an Emergency Motion Under Circuit Rule 27-3
for an Injunction.

   To obtain preliminary injunctive relief, a plaintiff must
demonstrate (1) that he is likely to succeed on the merits of
such a claim, (2) that he is likely to suffer irreparable harm
in the absence of preliminary relief, (3) that the balance of
                       BEATY v. BREWER                     7453
equities tips in his favor, and (4) that an injunction is in the
public interest. See Winter v. Natural Res. Def. Council, Inc.,
129 S. Ct. 365, 374 (2008). We acknowledge that Beaty has
a strong interest in being executed in a constitutional manner,
but he has not shown that this interest is threatened in this
case. For the reasons expressed by the district court, we con-
clude that Beaty has failed to satisfy this standard.

  Accordingly, Beaty’s motion is DENIED.
7454   BEATY v. BREWER
BEATY v. BREWER   7455
7456   BEATY v. BREWER
BEATY v. BREWER   7457
7458   BEATY v. BREWER
BEATY v. BREWER   7459
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BEATY v. BREWER   7461
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BEATY v. BREWER   7463
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BEATY v. BREWER   7465
