The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Six death row inmates facing execution by lethal injection bring this action against the Attorney General and other Justice Department officials*fn1 in their official and individual capacities alleging various constitutional and statutory violations caused by the federal government's adoption and intended use of a lethal injection protocol that allegedly exposes the inmates to a substantial risk of severe pain. The defendants have renewed their motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Because the defendants' asserted statute of limitations defense raises a genuine factual dispute that precludes summary judgment, the defendants' renewed motion for judgment on the pleadings will be denied in part. The defendants have also renewed their motion to dismiss under Rules 12(b)(1) and 12(b)(6). Because the plaintiffs do not oppose dismissal of all individual capacity claims, the defendants' motion to dismiss all individual capacity claims will be granted. In addition, because the plaintiffs do not seek to challenge 28 C.F.R. § 26.3, the defendants' motion to dismiss Count IV to the extent it challenges this regulation will be denied as moot. Because Count V challenges the defendants' general policy to not apply certain Controlled Substances Act ("CSA") provisions against individuals who participate in federal lethal injections or against the federal government's lethal injection protocol itself, but does not challenge any individual decision not to prosecute an alleged CSA violation, the defendants' motion to dismiss to Count V of the amended complaint will be denied. The defendants' motion to dismiss all official capacity claims against defendant Thomas Webster, M.D., a penitentiary Clinic Director, will be granted because Dr. Webster has exercised his right under 18 U.S.C. § 3597(b) and 28 C.F.R. § 26.5 not to participate in federal executions.
Plaintiffs James Roane, Jr., Cory Johnson, and Richard Tipton were each tried and convicted on multiple charges and "each was sentenced to death on one or more of the capital murder charges on which he was convicted." United States v. Tipton, 90 F.3d 861, 868 (4th Cir. 1996). Their convictions became final on direct appeal when the Supreme Court denied certiorari for each on June 2, 1997. Roane v. United States, Johnson v. United States, Tipton v. United States, 520 U.S. 1253 (1997). Plaintiff Orlando Hall was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1995. United States v. Hall, 152 F.3d 381, 390 (5th Cir. 1998). His conviction became final on May 17, 1999. Hall v. United States, 526 U.S. 1117 (1999) (denying petition for certorari). Plaintiff Bruce Webster was convicted of kidnaping resulting in death and other crimes and sentenced to death in 1996. United States v. Webster, 162 F.3d 308, 317, 319-20 (5th Cir. 1998). His conviction became final on October 4, 1999. Webster v. United States, 528 U.S. 829 (1999) (denying petition for certiorari). Plaintiff Anthony Battle was convicted of murdering a federal correctional officer and sentenced to death in 1997. United States v. Battle, 173 F.3d 1343, 1345 (11th Cir. 1999). His conviction became final on March 20, 2000. Battle v. United States, 529 U.S. 1022 (2000) (denying petition for certorari). Each plaintiff also has sought unsuccessfully to challenge his death sentence through collateral review. At present, each plaintiff is to be executed in the manner prescribed by the federal government's lethal injection protocol.
Plaintiffs Roane, Tipton, and Johnson filed this action on December 6, 2005 against the Attorney General, the Administrator of the Drug Enforcement Administration ("DEA"), Director of the Federal Bureau of Prisons Harley G. Lappin, Medical Director of the Health Services Division of the Federal Bureau of Prisons Newton E. Kendig, M.D., Warden of the United States Penitentiary Terre Haute ("Terre Haute") Mark Bezy, and Clinical Director at Terre Haute Thomas Webster, M.D. Bruce Webster, Battle, and Hall intervened as plaintiffs in 2007. The plaintiffs' executions were stayed by consent of all parties. The plaintiffs' amended complaint alleges five claims. The plaintiffs' first claim alleges that they have been denied due process under the Fifth Amendment because the defendants "have refused to disclose the procedures that will be utilized in carrying out the plaintiffs' executions[.]" (Am. Compl. ¶ 58.) The plaintiffs' second and third claims allege that the defendants' method of carrying out the plaintiffs' executions by lethal injection violates the Eighth Amendment's prohibition against cruel and unusual punishment. (Id. ¶¶ 61, 63-66.) The plaintiffs' fourth claim, brought under the Administrative Procedure Act ("APA"), alleges that the defendants failed to follow the APA's rulemaking procedures when promulgating their lethal injection protocol. (Id. ¶¶ 68-72.) Finally, the plaintiffs' fifth claim alleges that "the defendants have arbitrarily and capriciously failed to exercise their authority to enforce the CSA" against persons dispensing one of the lethal injection drugs, sodium thiopental, without a valid registration. (Id. ¶¶ 74-77.)
The defendants have renewed*fn2 their motion for judgment on the pleadings and their motion to dismiss certain claims and defendants. The defendants contend that they are entitled to judgment because the plaintiffs' claims are barred by the applicable statute of limitations and because the plaintiffs' claims are an eleventh hour challenge filed "too late in the day." (Defs.' Mem. in Supp. of Their Renewed Mot. for J. on the Pleadings ("Defs.' J. on the Pleadings Mem.") at 9-10.) The defendants also contend that all individual capacity claims, the official capacity claims against the DEA Administrator and Dr. Webster, and Counts IV (in part) and V of the amended complaint should be dismissed, alleging that one claim in Count IV is barred by res judicata, that the claim against the DEA Administrator in Count V is foreclosed by the Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821 (1985), and that no relief is available against Dr. Webster because he has exercised his right not to participate in federal executions.
I. RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS
A party may move for judgment on the pleadings "[a]fter the pleadings are closed -- but early enough not to delay trial" under Rule 12(c). Fed. R. Civ. P. 12(c). Under Rule 12(d), if, as here, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). Summary judgment may be granted only where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The relevant inquiry "is the threshold inquiry of determining whether there is a need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Statute of Limitations
The defendants contend that the plaintiffs' method-of-execution claims are barred by the general six-year statute of limitations on lawsuits against the government. (Defs.' J. on the Pleadings Mem. at 14 (citing 28 U.S.C. § 2401 ("[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.").) A statute of limitations bar is an affirmative defense and the defendants bear the burden of proving it. See Colbert v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Jones v. Ritter, 587 F. Supp. 2d 152, 159 (D.D.C. 2008.) The defendants allege that each plaintiff's claim accrued at the time he exhausted his direct appeal, which was more than six years before each plaintiff's participation in this action. In response, the plaintiffs contend that the general six-year statute of limitations does not apply to constitutional claims seeking injunctive relief, and that if the statute of limitations does apply, the plaintiffs' claims are timely. (See Pls.' Opp'n to Renewed Mot. for J. on the Pleadings at 15-16.)
The six-year statute of limitations under 28 U.S.C. § 2401 applies to the plaintiffs' claims for injunctive relief. See Kendall v. Army Bd. of Corr. of Military Records, 996 F.2d 362, 365 (D.C. Cir. 1993) (holding that § 2401(a) "applies to all civil actions whether legal, equitable, or mixed"). Section 2401(a) applies to "every civil action," making no distinction between legal and equitable actions. 28 U.S.C. § 2401(a); see Kendall, 996 F.2d at 365; Walters v. Sec'y of Def., 725 F.2d 107, 111-12 (D.C. Cir. 1983) (noting the Congress's choice to use "civil action" rather than "suit" "eliminat[es] any possible distinction under the statute between legal and equitable claims"). Thus, by its express terms, the six-year statute of limitations under § 2401(a) applies to all civil actions against the United States, "even [if] the relief sought . . . is purely prospective." Walters, 725 F.2d at 113. Accordingly, although the plaintiffs' claims seek injunctive relief, such claims are still subject to the six-year limitations period for claims brought against the United States.
"[I]t is the 'standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action[,]' . . . that is, when 'the plaintiff can file suit and obtain relief[.]'" Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal citation omitted) (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fun v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). A cause of action may accrue even if "the full extent of the injury is not then known or predictable." Id. at 391 (internal quotation marks omitted). Courts of appeals considering when a method-of-execution claim accrues have concluded that a plaintiff's claim accrues upon completion of the plaintiff's direct appeal or, if the challenged protocol is not known upon conclusion of direct appeal, at the time when a plaintiff "knew or should have known based upon reasonable inquiry" about the protocol giving rise to the challenge. Cooey v. Strickland, 479 F.3d 412, 422 (6th Cir. 2007); see Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008) (holding that the statute of limitations begins to run on "the date direct review of an individual case is complete or the date on which the challenged protocol was adopted"); McNair v. Allen, 515 F.3d 1168, 1174, 1176-77 (11th Cir. 2008) (holding that a method-of-execution claim under § 1983 "accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol"); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007) (concluding that the constitutionality of a lethal injection protocol can be challenged once an inmate's death sentence becomes final on direct review "as long as lethal injection is the established method of execution, the protocol is known, and no state administrative remedies are available); see also Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) ("A challenge to a method of execution may be filed at any time after the plaintiff's conviction has become final on direct review.").
The question of when a plaintiff knew or should have known of his cause of action is a question of fact. See Jones v. Rogers Mem'l Hosp., 442 F.2d 773, 775 n.2 (D.C. Cir. 1971); Cobell v. Babbitt, 30 F. Supp. 2d 24, 44 (D.D.C. 1998) ("The question of when the plaintiffs knew or should have known of their claim is a question of fact."). For example, in Cooey, the Sixth Circuit concluded that Cooey's 2004 method-of-execution challenge was untimely under the applicable two-year statute of limitations because, regardless of his actual knowledge, "Cooey should have known of his cause of action in 2001 after amendments to the law required that he be executed by lethal injection, and the information was publicly available upon request." 479 F.3d at 422. Similarly, in McNair, the Eleventh Circuit held that the plaintiff, whose conviction became final in 1990, had a method-of-execution claim that accrued on July 31, 2002, the date the plaintiff "selected lethal injection as the means by which he [would] die." 515 F.3d at 1177. The Eleventh Circuit concluded that at the time the plaintiff selected lethal injection ...