                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                         File Name: 09a0413p.06

                   UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                            X
                                             -
 RICHARD COOEY, KENNETH BIROS

                        Plaintiff-Appellee, --
 (Intervenor),

                                             -
                                                                     No. 09-4300

                                             ,
                                              >
                                             -
            v.

                                             -
                    Defendants-Appellants. -
 TED STRICKLAND, Governor, et al.,
                                            N

                                      Filed: December 4, 2009
                   Before: SILER, GIBBONS, and SUTTON, Circuit Judges.

                                         _________________

                                                ORDER
                                         _________________

          The court having received a petition for rehearing en banc, and the petition having
                                                                                    1
been circulated not only to the original panel members but also to all other active judges
of this court, and less than a majority of the judges having favored the suggestion, the
petition for rehearing has been referred to the original panel.

          The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.

          Additional separate writings may follow.




 1
     Judge Cook recused herself from participation in this ruling.


                                                     1
No. 09-4300         Biros v. Strickland, et al.                                     Page 2


        SUTTON, Circuit Judge, with whom GIBBONS, Circuit Judge, joins, concurring
in the denial of rehearing en banc. In his petition for rehearing and for rehearing en
banc, Kenneth Biros principally argues that the panel’s order vacating the district court’s
stay of execution, Cooey (Biros) v. Strickland, ___ F.3d ___, No. 09-4300, 2009 WL
4061632 (6th Cir. Nov. 25, 2009), improperly applies the law of mootness. I disagree
and remain comfortable with the panel’s conclusion in the context of Ohio’s change
from a facially constitutional execution protocol, see Baze v. Rees, 553 U.S. ___, 128 S.
Ct. 1520 (2008), to an improved execution protocol. But even if one is unsure about that
conclusion, Biros faces a series of likelihood-of-success problems—some having
nothing to do with the law of mootness—that stand in the way of granting his request to
reinstate the district court’s stay order.

        In thinking about Biros’ en banc petition and his underlying request to stay his
December 8th execution, the key point, it seems to me, is that the district court’s October
19, 2009 stay order does not offer any basis for staying the execution today. That order
of course dealt with the old protocol, not the new one, and the order itself acknowledges
that the State is considering changing its protocol and tells both parties that the court
“reserves the right to reconsider this order staying the execution of Biros should a new
protocol as developed by Defendants render Biros’ claims regarding the May 2009
protocol moot.” When the State returned to the district court on November 13th after
announcing the new protocol, however, the district court refused to consider whether to
vacate the stay before the execution date. The district court thus offered no new reasons
(or for that matter old reasons) for continuing to keep the stay in place—even with
respect to a new, markedly changed protocol.

        That left the panel with a stay of execution that had no supporting rationale. The
new procedure addressed two of the central complaints about Ohio’s old execution
protocol: the use of a three-drug protocol and the difficulty in accessing the veins of
some individuals. With the adoption of a one-drug protocol and with the development
of a back-up plan for individuals with difficult-to-access veins, Ohio had resolved the
No. 09-4300        Biros v. Strickland, et al.                                     Page 3


central issues that might have supported a stay with respect to the old protocol—but not
the new one.

       That development leaves Biros with serious likelihood-of-success problems.
One, for the reasons stated in the panel opinion, the adoption of this new procedure
moots the old challenge. Two, even if one thinks there is room for disagreement about
this point, that does not justify a stay. At a minimum, the new protocol “likely” moots
the old challenge, and that is enough to create a likelihood-of-success problem for Biros
when it comes to premising a request for a stay on orders related to a different protocol.
Three, even if that is too much to accept, Biros still must show why the new protocol is
likely unconstitutional—and the old orders (dealing with the prior procedure) get him
nowhere on that point. Moot or not, in other words, the old orders still must provide a
basis for staying this protocol. Since nearly everything in the assorted orders from the
district court and our court with respect to the old protocol dealt with the three-drug
protocol and difficult-to-access veins, these orders simply cannot provide a likelihood-
of-success foundation for staying the new protocol.

       Perhaps one exception to this last point is that, according to Biros, the old
procedure and the new one share a common problem: poor training by the State of the
relevant medical staff and the use of EMTs in implementing the protocol. But Kentucky
faced similar allegations in Baze, and the Court upheld the procedure nonetheless. Baze,
128 S. Ct. at 1533–34. Through it all, it deserves emphasis, the one-drug protocol that
Ohio now voluntarily plans to use is the one that the plaintiffs (unsuccessfully) claimed
in Baze was constitutionally required. Id. at 1534.

       Biros’ petition for rehearing and rehearing en banc does not provide a basis for
staying his December 8th execution.
No. 09-4300        Biros v. Strickland, et al.                                      Page 4


       KAREN NELSON MOORE, Circuit Judge, with whom MARTIN, COLE, and
CLAY, Circuit Judges, join, dissenting. This court should grant Biros’s petition for
rehearing en banc. The panel’s order in Biros v. Strickland, No. 09-4300 (6th Cir. Nov.
25, 2009), which held Biros’s § 1983 challenge to Ohio’s lethal-injection protocol moot,
directly contradicts binding precedent regarding mootness in cases where a defendant
has voluntarily ceased the challenged activity. In finding Biros’s case moot, the panel
erroneously construed his challenge to the Ohio lethal-injection protocol as involving
solely a challenge to the use of the particular three-drug cocktail, as opposed to the
broader challenge as articulated within Biros’s complaint and subsequent pleadings.
Moreover, to the extent that portions of Biros’s initial claim are no longer implicated by
the new protocol, the panel improperly concluded that there is no reasonable expectation
that the alleged violation will recur and failed to hold the State to its formidable burden
of showing mootness. As these holdings run contrary to binding precedent, this case
presents legal questions of exceptional importance and grave consequence.

       “Simply stated, a case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979) (quotation omitted). And it has been long established
that generally “voluntary cessation of a challenged practice does not moot a case.”
League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th Cir. 2008)
(quotation omitted) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.
167, 189 (2000); Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342–43
(6th Cir. 2007)). “Rather, voluntary conduct moots a case only in the rare instance where
‘subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur,’” id. (quoting Akers v. McGinnis, 352 F.3d 1030,
1035 (6th Cir. 2003)), and “interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” Davis, 400 U.S. at 631. “When both
conditions are satisfied it may be said that the case is moot because neither party has a
legally cognizable interest in the final determination of the underlying questions of fact
and law.” Id. (emphasis added).
No. 09-4300         Biros v. Strickland, et al.                                      Page 5


        In this case, the Defendant has not met its burden to show either condition, and
the panel’s conclusion to the contrary directly conflicts with prior precedent. First,
based on the information that this court has regarding Ohio’s new lethal-injection
protocol, there is no indication that it “completely and irrevocably eradicated the effects”
of Biros’s alleged violation. Id. Not only does Biros challenge the use of the particular
drugs—the only fact upon which the panel bases its order—but he has maintained
continually that Ohio’s procedures are “administered by inadequately trained personnel,
who use inappropriate equipment and methods,” Compl. at 3 (R. 127), and has also
challenged the use of intravenous lines for the administration of the procedure,
regardless of the drug. Id. at 11. In fact, in paragraph 28 of his Complaint, Biros
challenges the use of the three-drug protocol as well as “any other procedures, practices,
policies, protocols and/or means for accomplishing [his] execution by lethal injection
that are or might be adopted by Defendants for use at [his] contemplated execution and
which are the same as or similar to the [three-drug] protocol.” Id. at 10. In short,
although the drugs might be different, the procedure is still initiated via intravenous
methods with the same personnel, and Ohio has presented no evidence that Biros’s
complaints regarding the personnel training and intravenous introduction have been
resolved.

        Second, to the extent that the new protocol does not implicate the challenge Biros
made to the specific drugs, his claim is not moot. Although there is little indication that
the State will continue to use the initially challenged three-drug cocktail now that it has
developed a new procedure, in analyzing whether Biros’s claim is moot, we must
consider whether anything would prevent the State from doing so. See Akers, 352 F.3d
at 1035. The promulgation and implementation of the lethal-injection protocol is solely
within the discretion of the Ohio Department of Rehabilitation and Correction
(“ODRC”) and it is “not established by statute or administrative rule or regulation.”
Cooey v. Strickland, 479 F.3d 412, 426 (6th Cir. 2007) (Gilman, J., dissenting). “The
ODRC can change the protocol at any time, regardless of whether an inmate is scheduled
for execution,” and it has indeed done so. Id. This Court has held previously that a
challenge to a Michigan Department of Corrections Rule is not moot where “the
No. 09-4300         Biros v. Strickland, et al.                                      Page 6


promulgation of [the] rule[] appears to be solely within the discretion of the MDOC,
[and] there is no guarantee that MDOC will not change back to its older, stricter Rule
as soon as th[e] action terminates.” Akers, 352 F.3d at 1030.

        In this case, other than providing the court with its word, the State has presented
no evidence that it will not use any of the challenged drugs in the future or established
that it is “absolutely clear” that the alleged violation will never recur. Brunner, 548 F.3d
at 473. More broadly, the panel appears to allow Ohio to moot the case by simply
volunteering to cease the challenged activity. Although we have no reason to doubt
Ohio’s sincerity, determining mootness based on a litigant’s statement that it has no
reason to resume the challenged activity, no matter how earnest, is not part of the
mootness analysis. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203 (1968) (finding a case “not technically moot” where the court only had the
“appellees’ own statement that it would be uneconomical for them to engage in [the
challenged activity in the future], and concluding that “[s]uch a statement, standing
alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests
upon those in appellees’ shoes”).

        The panel highlighted the fact that if Biros wants to challenge the new protocol
there is nothing preventing him from bringing that suit prior to his execution, on
December 8, 2009, which is less than one week from today. It is true that nothing
prevents Biros from filing another § 1983 action to address specifically the drugs
involved in the new one-drug protocol and the “back-up” plan. As highlighted above,
however, much of his new complaint would necessarily mirror the one in the instant
case. There is no sense in deeming moot portions of a claim and then encouraging Biros
to bring them again.

        As a further point, Judge Sutton’s belief that even assuming a live controversy
Biros would be unable to satisfy the requirements warranting the continuance of the
district court’s stay and would be in the same position as he is now does nothing to
persuade me that this court should let stand a published panel opinion that is in blatant
disregard of prior Circuit and Supreme Court precedent regarding mootness. Fidelity
No. 09-4300        Biros v. Strickland, et al.                                      Page 7


to the law cannot be based solely on outcomes, but hinges on analysis. The Biros panel
opinion was not based on whether the stay was warranted after an analysis of the
traditional stay factors and whether Biros could demonstrate a “likelihood of success”
on the merits of his underlying § 1983 action. If the panel had decided to vacate the
district court’s stay on grounds other than mootness then this would be a different case.
But as the opinion stands, it does nothing other than confuse well-established precedent
in an effort to achieve a particular outcome in the most perfunctory manner possible.

       I do not adopt Judge Sutton’s conclusion that Biros would be unable to satisfy
the requirements of a stay and see no need to pass judgment on the merits of that
argument because it is not the basis upon which the panel decided Biros’s case. But I
cannot help but notice that in discussing whether Biros is likely to succeed on the merits,
Judge Sutton notes that Biros has argued that “the old procedure and the new one share
a common problem: poor training by the State of the relevant medical staff and the use
of EMTs in implementing the protocol.” This statement seemingly contradicts the Biros
panel’s conclusion that the new protocol completely mooted Biros’s claim under the
previous one.

       In sum, the panel committed an “error of exceptional public importance” that
“directly conflicts with prior . . . precedent’” in holding Biros’s case moot and vacating
the district court’s stay of execution. Bell v. Bell, 512 F.3d 223, 250 (6th Cir. 2008)
(Moore, J., dissenting) (citing 6 Cir. R. 35(c)). Six judges of this court have voted to
rehear this case. The rush to execution in this case is totally unwarranted, and the
panel’s justification is unsupportable.
No. 09-4300        Biros v. Strickland, et al.                                     Page 8


       BOYCE F. MARTIN, JR., Circuit Judge, with whom MOORE, COLE, and
CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc. I join
Judge Moore’s dissent pointing out the panel’s clearly incorrect application of the
mootness doctrine to Biros’s claims. I write separately to address what I perceive to be
the unintended consequences of gilding the lily.

       I would obviously have preferred that we allow Biros’s claims, which are not
moot, to be resolved on their merits. But a majority of this Court disagrees, so we
continue on our sprint towards the death bed. I just wish that was where it ended.

       Instead of merely allowing the panel’s decision to stand on its own shaky
foundation, two of my colleagues reaffirm the mootness ruling and then offer even more
justification for the panel’s decision to lift the stay. However, I would rather that the
panel’s opinion be the last word on why the stay was lifted because at least that opinion
cabins its damage to undermining our mootness precedents.

       But my colleagues’ concurrence in the denial of rehearing en banc goes further,
most glaringly by prognosticating on the constitutionality of Ohio’s new lethal injection
protocol. See supra, Op. of Sutton, J., at 2 (“I disagree and remain comfortable with the
panel’s conclusion in the context of Ohio’s change from a facially constitutional
execution protocol, see Baze v. Rees, 553 U.S. ___, 128 S. Ct. 1520 (2008), to an
improved execution protocol.”) (emphasis added) and at 3 (“Through it all, it deserves
emphasis, the one-drug protocol that Ohio now voluntarily plans to use is the one that
the plaintiffs (unsuccessfully) claimed in Baze was constitutionally required.”). The
merits of Ohio’s new protocol are certainly not before us—indeed, that is the
fundamental basis for the panel’s decision that Biros’s claims based on the prior protocol
are moot—but they inevitably will be, and the concurrence offers a sneak peek on the
way that at least two of my colleagues view those merits. On the whole, I would rather
that we all went home today having only made a hash of our mootness jurisprudence
rather than having made a hash of our mootness jurisprudence and having offered up
views on an issue that is not currently, but soon will be, before us.

       I therefore respectfully dissent from the denial of rehearing en banc.
No. 09-4300   Biros v. Strickland, et al.                                Page 9


                                            ENTERED BY ORDER OF THE COURT

                                                  /s/ Leonard Green
                                            ___________________________________
                                                          Clerk
