A war of words has broken out on the federal appeals court that hears cases from Florida over a vote to deny a rehearing to a prison inmate who sued over the state’s refusal to recognize her transgender status.
The judges of the U.S. Court of Appeals for the 11th Circuit voted, 8-4, against granting a full-court, or “en banc,” rehearing to Reiyn Keohane, who had alleged violations of the Eighth Amendment’s prohibition against cruel and unusual punishment.
A three-judge panel of the appeals court in March voted to overturn an August 2018 ruling by U.S. District Judge Mark Walker ordering the Florida Department of Corrections to supply hormone therapy to Keohane and allow her to present as female; she’d been born as male.
Keohane asked the full court to reconsider, but the judges said no, drawing a blistering dissent from Judge Robin Rosenbaum, who accused the majority of violating circuit precedent and even threatening the rule of law.
“The proper procedure for overruling binding precedent in this circuit requires the court sitting en banc to set it aside; a panel is not free to overrule binding precedent on its own. To be clear, then, this dissent is solely about the importance to the stability and predictability of the law of ensuring every panel strictly follows our prior-precedent rule,” Rosenbaum wrote.
Judge Kevin Newsom, who wrote the three-judge panel ruling that Rosenbaum argued got the law wrong, issued a lengthy defense of his position.
“While the dissental’s spicy rhetoric doesn’t enhance its argument — but rather pretty severely diminishes it, to my mind — it does, I fear, corrode the collegiality that has historically characterized this great court. Here’s hoping for better — and more charitable — days ahead.”
According to court records, Keohane committed self-harm after prison officials denied her the ability to present herself consistent with her gender identity. However, with her lawsuit pending, the department countermanded most of the policies she complained about. The three-judge panel said that left no case to decide.
Rosenbaum said the majority found nonexisting ambiguities in a 2010 precedent (involving administration of drugs to mentally ill Florida prisoners) to essentially rewrite the court’s Eight Amendment jurisprudence.
The issue concerned the degree of deference the appeals court owes to a trial judge’s conclusions of fact regarding whether prison staff displayed deliberate indifference to an inmate’s well-being.
Rosenbaum argued the precedent clearly established that the appeals court could second-guess a trial judge only in cases of “clear error.”
Newsom insisted that the precedent was unclear and that it made sense for an appeal court to decide these matters “de novo,” or with fresh eyes.
“In an effort to paint a picture of lawless, result-oriented judging, the dissental gives the misleading impression that [the 2010 precedent] is pellucidly clear — that it just says, over and over and over, that the entirety of an Eighth Amendment claim, from stem to stern, is subject only to clear-error review, and that the panel, in the face of all that clarity, willfully bulled ahead with de novo review instead. As is so often the case, the reality is more complicated,” Newsom wrote.
Rosenbaum retorted that en banc review exists precisely to iron out any such ambiguities, and that in refusing to hear the case as a whole the court was undermining its adherence to precedent.
“Then, if a majority of judges on the court thinks [the precedent] got it wrong, the court can say so and change our precedent,” she wrote.
“But a panel cannot and should not be allowed to do that. And a panel certainly should not be permitted to do so by reinterpreting our prior-precedent rule to the point where it allows precisely what it has always prohibited: a later panel to issue a holding that directly conflicts with an earlier panel’s precedent.”
Chief Judge William Pryor wrote separately to argue the court is never obliged to grant en banc review.
“No source of law obligates us to hear any appeal en banc,” he said.
“Judges can reasonably disagree about the best way to allocate our judicial resources. And, of course, I never take any colleague’s disagreement personally,” Pryor wrote.
“For the same reason, disagreements about whether to grant rehearing do not warrant attacks on the integrity of judges or their commitment to the rule of law nor, good grief, on the legitimacy of this court,” he added.
Rosenbaum countered that since Jan. 1, 2019, the court has voted against en banc review in only seven of the 12 cases in which it came up, meaning the full court has heard these cases 63 percent of the time.
“Presumably, that is because we exercise extreme discretion in requesting an en banc poll in the first place,” she wrote.