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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14117
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D.C. Docket No. 1:12-cv-22958-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA DEPARTMENT OF CORRECTIONS
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(July 14, 2016)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY, *
District Judge.
WILLIAM PRYOR, Circuit Judge:
* Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,
sitting by designation.
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This appeal requires us to decide whether the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., prevents the Secretary of
the Florida Department of Corrections from denying kosher meals to inmates
whose sincere religious beliefs require them to keep kosher. After the United States
sued the Secretary to compel the Department to provide kosher meals, but before
the entry of an injunction, the Secretary voluntarily created a religious diet
program. Even so, the Secretary continues to insist that the Department need not
provide kosher meals because denying them is the least restrictive means of
furthering a compelling governmental interest in containing costs. But the
Secretary’s argument lacks any support in the record. We affirm the summary
judgment for the United States and the permanent injunction requiring the
Secretary to provide kosher meals to the inmates.
I. BACKGROUND
Since the 1990s, the Florida Department of Corrections has offered inmates
regular meals, meatless meals, and vegan meals. It began offering kosher meals in
2004, but it stopped in 2007. It resumed offering kosher meals in 2010, but only as
part of a pilot program at one facility.
In 2011, the Civil Rights Division of the United States Department of Justice
opened an investigation into the denial of kosher food by the Department of
Corrections. At the time, the Department of Corrections offered regular, vegan,
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meatless, medical, and therapeutic options to prisoners outside of the pilot
program. None of these diets satisfied the most orthodox version of the laws of
kashrut, which prohibit certain food, such as pork, and “demand that food be
stored, prepared, and served in a certain manner.” Moussazadeh v. Tex. Dep’t of
Criminal Justice, 703 F.3d 781, 786 (5th Cir. 2012). The only choice for prisoners
outside the pilot program with these religious obligations was, in the words of one
prisoner, to “d[o] what a hungry man does, and pray[] for understanding.”
In 2012, the Civil Rights Division concluded that the Department of
Corrections was violating the Religious Land Use and Institutionalized Persons
Act and asked the Secretary to comply. The Secretary refused, and the United
States sued for declaratory and injunctive relief in August 2012.
In March 2013, the Secretary issued Procedure 503.006, which created a
religious diet program. The program offered inmates three choices: the existing
non-meat option, the existing vegan option, and a new kosher certified food option
for inmates for whom “no other meal option offered by the Department . . . is
capable of meeting the diet requirements of that inmate’s professed religious
faith.”
The certified food option initially used “nationally recognized, religiously
certified prepackaged processed foods.” In October 2013, the Secretary revised the
certified food option to allow “a standardized menu prepared in accordance with
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religious dietary guidelines in a dedicated work area established exclusively for
preparation of certified food option meals.” In February 2014, the Secretary again
revised the certified food option to allow “meals utilizing food items served in their
natural state.” The certified food option now consists of peanut butter, cereal,
bread, sardines, cabbage, beans, carrots, crackers, and “an occasional piece of
fruit,” all served cold.
The religious diet program initially had several policies that limited
admission and continued participation. The application tested prisoners’ sincerity
by asking them to cite “specific law(s) connected to your belief or faith that
require(s) you to eat a religious diet” and by creating a waiting period for
admission to the Program. The rules provided for the removal of an inmate “who
misses ten percent (10%) or more of her/his CFO meals within a month” (the ten-
percent rule), who “is discovered purchasing, possessing, or consuming food from
the canteen or other source that violates the religious diet requirements” (the zero-
tolerance rule), or who barters kosher food for non-kosher food (the anti-bartering
rule). A prisoner could challenge his removal from the religious diet program, but
he would have to eat from the mainline during the grievance process, which could
last up to 30 days.
In April 2013, the United States moved for a preliminary injunction ordering
the Secretary to provide a certified kosher diet to all inmates with a sincere
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religious basis for keeping kosher. The United States also asked the district court to
enjoin the religious diet program to the extent that it violated the Religious Land
Use and Institutionalized Persons Act.
In December 2013, the district court entered a preliminary injunction that
ordered the Secretary to provide kosher meals. The district court also prohibited
enforcement of the waiting period, the doctrinal sincerity testing, the ten-percent
rule, and the zero-tolerance rule. The parties and the district court later agreed to
modified versions of the ten-percent rule and the zero-tolerance rule. We vacated
the injunction in 2015 because the district court failed to make certain findings
required by the Prison Litigation Reform Act. See United States v. Sec’y, Fla.
Dep’t of Corr., 778 F.3d 1223, 1228–30 (11th Cir. 2015).
Meanwhile, the Department continued to implement the religious diet
program. The certified food option began at one facility in July 2013, and the
Department provided the option at all facilities by April 2015. As of March 2015,
the Department had approved 9,543 prisoners out of a total population of over
100,000. But participation rates at individual institutions declined over time, in part
because prisoners without sincere religious beliefs tired of the repetitive and cold
meals.
Enforcement of the modified rules limiting participation in the program has
been uneven. A food director employed by the Department testified that enrolled
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prisoners collected only 15 percent of their kosher meals overall one month, but
the food director also testified that he was unaware of any prisoners being removed
for eating from the mainline. A chaplain employed by the Department testified that
he helps prisoners identify religious reasons for participating and that he has not
suspended or removed prisoners for eating non-kosher food from the canteen. The
chaplaincy administrator testified that he instructed chaplains not to remove
prisoners who eat from the mainline and that he had no knowledge of such a
removal. And a food service worker employed by the Department testified that the
central office instructed him to stop suspending prisoners from the program.
The United States estimates a future annual cost of $384,400 for the
program, but the Secretary estimates a future annual cost as high as $12.3 million.
The United States uses a lower estimate of how many prisoners will participate and
how often prisoners will skip meals. The parties also disagree about how to
allocate the cost of staff and equipment assigned to both the program and the
mainline.
Assuming that no prisoners skip meals, the certified food option costs $3.55
per prisoner per day, the mainline option costs $1.89 per prisoner per day, the
vegan option costs $2.04 per prisoner per day, and the medical and therapeutic
diets cost between $2.00 and $3.05 per prisoner per day. Participants in the
mainline option eat 85 percent of their meals, and participants in the certified food
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option eat 75 percent of their meals. The Department reduces its cost for the
mainline option by anticipating how many meals prisoners will eat, and it further
reduces the cost of the mainline meal by using its farm produce program and
reusing leftover food. In his deposition, the chief procurement officer for the
Department testified that the cost of the program was sustainable.
In 2014–15, the total budget of the Department was $2.3 billion. The
operating budget was $2.2 billion, including $54 million for food. The Department
carried over a deficit of $15 million.
The parties agree that the Department has some budgetary tools that it can
use to pay for at least part of the religious diet program without additional
appropriations. The Department can freeze hiring and restrict nonessential travel
by staff. The budget director also can transfer money from one program to another,
but the amount that he can transfer is limited.
After we remanded the case in 2015, the parties filed cross motions for
summary judgment. The district court granted summary judgment and entered a
permanent injunction for the United States on the denial of kosher meals, the ten-
percent rule, and the zero-tolerance rule. The injunction requires the Secretary “to
offer a kosher diet . . . to all prisoners with a sincere religious basis for keeping
kosher.” It defines “kosher diet” as “food prepared consistent with the
requirements recognized by a religious authority qualified to determine whether
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food is kosher,” and it requires all food to be “handled and prepared” in accordance
with Procedure 503.006. The district court also granted summary judgment for the
Secretary on the doctrinal sincerity testing and the anti-bartering policy. The
Secretary appealed only the permanent injunction requiring the provision of kosher
food.
II. STANDARD OF REVIEW
We review a summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reasonable inferences in its
favor. Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
III. DISCUSSION
The only issue on appeal is whether the Religious Land Use and
Institutionalized Persons Act requires the Secretary to accommodate inmates with
a sincere religious basis for keeping kosher. The Act provides that “[n]o
government shall impose a substantial burden on the religious exercise” of an
institutionalized person “unless the government demonstrates that imposition of the
burden on that person” is both “in furtherance of a compelling governmental
interest” and “the least restrictive means of furthering that compelling
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governmental interest.” 42 U.S.C. § 2000cc-1(a). The Secretary concedes that the
United States met its burden of proving that the denial of kosher meals is “a
substantial burden on the religious exercise” of a prisoner in the custody of the
Secretary. Id. As a result, the Secretary had to prove that the denial of kosher meals
is “the least restrictive means” of furthering a compelling governmental interest.
Id.
The Secretary argues that Florida has a compelling interest in cost
containment and that the complete denial of kosher meals is the least restrictive
means of furthering that interest. We disagree on both counts. We address each
argument in turn.
A. The Secretary Has Not Proved a Compelling Governmental Interest.
The Secretary failed to create a genuine dispute of material fact that the cost
of providing kosher meals is so high that it is compelling. Congress has stated that
the Act “may require a government to incur expenses in its own operations to
avoid imposing a substantial burden on religious exercise.” Id. § 2000cc-3(c). The
Act “requires us to ‘“scrutiniz[e] the asserted harm of granting specific exemptions
to particular religious claimants”’ and ‘to look to the marginal interest in
enforcing’ the challenged government action in that particular context.” Holt v.
Hobbs, 135 S. Ct. 853, 863 (2015) (alteration in original) (quoting Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)). “[P]olicies grounded on
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mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to
meet the [A]ct’s requirements.” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525,
533 (11th Cir. 2013) (quoting Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir.
1996)).
The evidence offered by the Secretary is insufficient to survive summary
judgment. She argues that the projected total cost for the meals is high, that the
Department has a budget deficit, that she might have to eliminate 246 positions to
pay for the meals, and that staff vacancies are high. But the Secretary offers no
“concrete evidence concerning how other operations of the prison system would be
affected by these increased costs,” Garner v. Kennedy, 713 F.3d 237, 246 (5th Cir.
2013), and we do not have enough information about the deficit or the vacancies to
conclude that they might make the asserted interest compelling.
In Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015), the Alabama
Department of Corrections met its burden of proof to justify a prohibition on
beards, and the sufficiency of the record in Knight makes apparent the insufficient
record in this appeal. The Alabama Department presented testimony about
“specific incidents in which male inmates had used long hair to conceal weapons
and contraband, as well as a situation in which a male inmate had cut his long hair
to significantly change his appearance after a successful escape.” Id. at 944. The
same witness testified that “prison staff have cut their hands on hidden razors when
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searching male inmates’ long hair.” Id. Two witnesses testified that “long hair had
concealed male inmates’ fungus outbreaks, sores, cysts, and tumors, and even a
spider’s nest.” Id. And witnesses offered “credible opinions, based on decades of
combined correctional experience, that inmates can grab long hair during fights,
long hair impedes the ability of prison staff to readily identify inmates inside the
prison, and an exceptionless short-hair policy promotes order and discipline while
removing a physical characteristic that inmates can use to form gangs.” Id. at 944–
45.
Unlike the Alabama Department, the Secretary fails to explain how the
denial of kosher food furthers an interest in containing costs. She failed to compile
anything like the record in Knight, and indeed the chief procurement officer for the
Department testified to the contrary that the cost of the program was “sustainable
. . . going forward.”
The Secretary also fails to explain how she has a compelling governmental
interest in not providing kosher meals to inmates now even though she voluntarily
provided them in 2013. “[A] law cannot be regarded as protecting an interest ‘of
the highest order’”—a compelling governmental interest—“when it leaves
appreciable damage to that supposedly vital interest unprohibited.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quoting
Fla. Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring in part and
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concurring in the judgment)). The creation of a program to serve kosher meals
causes as much damage to the supposedly vital interest in not serving kosher meals
as one could possibly appreciate. Our Circuit has “recognize[d] that the fact that
Florida formulated a new kosher meal plan may be relevant to the question of
whether a policy of not providing kosher meals is the least restrictive alternative to
further a compelling interest.” Rich, 716 F.3d at 531 n.5. And the Fifth Circuit has
stated that the strength of a state’s interest in denying kosher food “is dampened by
the fact that it has been offering kosher meals to prisoners for more than two years
and provides them at no cost to all observant Jewish inmates that accepted a
transfer to [a certain prison].” Moussazadeh, 703 F.3d at 794–95. To be sure,
changing circumstances can make an interest more compelling than it was before,
but the Secretary has made no such showing.
The Secretary tries to avoid her evidentiary burden by shifting the blame to
limited appropriations from the Florida Legislature, but the Act does not
distinguish between parts of the government. See 42 U.S.C. § 2000cc-1(a). If the
Secretary must provide kosher meals, then the legislature must appropriate enough
funds to honor that obligation.
The Secretary also argues that costs will increase if the Department provides
kosher meals because other inmates will seek their own accommodations, but this
argument is a nonstarter. “At bottom, this argument is but another formulation of
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the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for
you, I’ll have to make one for everybody, so no exceptions.’” Holt, 135 S. Ct. at
866 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 436 (2006)). The Supreme Court rejected this argument in Holt, and we
do too.
Finally, the Secretary argues that the Federal Bureau of Prisons has denied
kosher meals on the ground of cost, but it is mistaken. The Federal Bureau of
Prisons instead has opposed efforts to modify the kosher diet because the kosher
meal “[i]s the strictest diet and subsume[s] all other religious dietary needs.” Patel
v. U.S. Bureau of Prisons, 515 F.3d 807, 810 (8th Cir. 2008). Because the
Secretary failed to do more than “simply utter the magic word[]” “costs,” Davila v.
Gladden, 777 F.3d 1198, 1206 (11th Cir. 2015), we must affirm the summary
judgment against her.
B. Even if the Secretary Had a Compelling Governmental Interest, She Has
Not Proved That Denying Kosher Meals Is the Least Restrictive Means of
Furthering That Interest.
The Secretary also has failed to create a genuine dispute of material fact
about narrow tailoring. “‘The least-restrictive-means standard is exceptionally
demanding,’ and it requires the government to ‘sho[w] that it lacks other means of
achieving its desired goal without imposing a substantial burden on the exercise of
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religion by the objecting part[y].’” Holt, 135 S. Ct. at 864 (alterations in original)
(quoting Hobby Lobby, 134 S. Ct. at 2780).
The Secretary argues that denying a kosher diet statewide is the least
restrictive means of furthering Florida’s interest in cost containment, but she fails
to rebut three arguments to the contrary. First, she fails to explain why the
Department cannot offer kosher meals when the Federal Bureau of Prisons and
other states do so. “[W]hen so many prisons offer an accommodation, a prison
must, at a minimum, offer persuasive reasons why it believes that it must take a
different course . . . .” Id.at 866. In Rich, we reversed the summary judgment for
the Secretary in another action challenging the denial of kosher food in part
because of “meager efforts to explain why Florida’s prisons are so different from
the penal institutions that now provide kosher meals such that the plans adopted by
those other institutions would not work in Florida.” 716 F.3d at 534. The Secretary
does no better in this appeal. Second, the Secretary fails to explain why the
Department cannot offer kosher meals when it offers vegan, medical, and
therapeutic diets at similar marginal costs. “‘[T]he proffered objective[] [is] not
pursued with respect to analogous nonreligious conduct,’ which suggests that ‘th[e]
interest[] could be achieved by narrower ordinances that burdened religion to a far
lesser degree.’” Holt, 135 S. Ct. at 866 (quoting Church of the Lukumi Babalu Aye,
508 U.S. at 546). Third, the Secretary fails to explain why the less restrictive
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alternative of enforcing rules that limit access to, and continued participation in,
the program would not further her stated interest. The United States produced
evidence that the Department is not screening out insincere applicants or enforcing
the rules of participation in the program, and the Secretary does not contest that
evidence. She instead responds that enforcing the rules would be too time-
intensive. But she fails to cite any evidence or explain why it would be too time-
intensive, so she has not created a genuine dispute of material fact.
IV. CONCLUSION
We AFFIRM the summary judgment and injunction in favor of the United
States.
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