“[W]e have held that the prior-precedent rule binds later panels even when the prior panel’s decision failed to mention controlling Supreme Court precedent and reached a holding in conflict with that precedent.”
How later courts described this case
- “[W]e have held that the prior-precedent rule binds later panels even when the prior panel’s decision failed to mention controlling Supreme Court precedent and reached a holding in conflict with that precedent.”
- “[W]e and our sister circuits have said again and again that the ‘heavy artillery’ of en banc review should be used rarely.”
Written by the judges who cited it.
The opinion
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14096
________________________
D.C. Docket No. 4:16-cv-00511-MW-CAS
REIYN KEOHANE,
Plaintiff - Appellee,
versus
FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
and BRASHER, Circuit Judges.
BY THE COURT:
A petition for rehearing having been filed and a member of this Court in
active service having requested a poll on whether this appeal should be reheard by
the Court sitting en banc, and a majority of the judges in active service on this
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Court having voted against granting rehearing en banc, it is ORDERED that this
appeal will not be reheard en banc.
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WILLIAM PRYOR, Chief Judge, joined by BRANCH, Circuit Judge, statement
respecting the denial of rehearing en banc:
I voted with the majority not to rehear this appeal en banc. I write separately
to explain why my dissenting colleague is wrong to assert that a grant of en banc
review is somehow objectively “demand[ed]” or is “an obligation,” Dissenting Op.
at 23, 45–46, in this appeal or any other. No statute, precedent, rule, or internal
operating procedure imposes such an obligation. The decision to grant en banc
review is always discretionary and disfavored.
No source of law obligates us to hear any appeal en banc. To be sure, a
statute grants us the authority to hear appeals en banc. See 28 U.S.C. § 46(c). And
a rule elucidates some procedural aspects of en banc review. See Fed. R. App. P.
35. We have added details of our own. See 11th Cir. R. 35-1–35-10; Fed. R. App.
P. 35, IOP 1–9. But none of those rules requires us to hear any appeals en banc.
Precedent points in the same direction. The Supreme Court long ago
explained that the statute permitting en banc review “vests in the court[s of
appeals] the power to order hearings en banc.” W. Pac. R.R. Case, 345 U.S. 247,
250 (1953). But “[i]t goes no further. It neither forbids nor requires each active
member of a Court of Appeals to entertain each petition for a hearing or rehearing
en banc.” Id. Ten years later, the Supreme Court reaffirmed this view: “the rights
of the litigant go no further than the right to know the administrative machinery
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that will be followed and the right to suggest that the en banc procedure be set in
motion in his case.” Shenker v. Balt. & Ohio R.R. Co., 374 U.S. 1, 5 (1963). And
more recently, the Supreme Court acknowledged yet again that “[r]ehearing [e]n
banc is a discretionary procedure employed only to address questions of
exceptional importance or to maintain uniformity among Circuit decisions.”
Missouri v. Jenkins, 495 U.S. 33, 46 n.14 (1990) (emphasis added); see also Bryan
A. Garner et al., The Law of Judicial Precedent § 61, at 496 (2016) (“The decision
to grant a petition for hearing or rehearing en banc, or to initiate en banc review on
the court’s own motion, is discretionary.”); 16AA Charles A. Wright et al., Federal
Practice and Procedure § 3981.1, at 496 (5th ed. 2020) (“Consideration en banc
rests in the discretion of the court of appeals.”). The Supreme Court has described
this process as “essentially a policy decision of judicial administration.” Moody v.
Albemarle Paper Co., 417 U.S. 622, 627 (1974).
The grant of en banc review is and should be rare. The Federal Rules of
Appellate Procedure say so: “An en banc hearing or rehearing is not favored . . . .”
Fed. R. App. P. 35(a). Practical considerations confirm why: “[T]he institutional
cost of rehearing cases en banc is extraordinary. . . . It is an enormous distraction
to break into [our regular] schedule and tie up the entire court to hear one case en
banc.” Bartlett ex rel. Neuman v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987)
(Edwards, J., concurring in denial of rehearing en banc). After all, a panel of three
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judges has already spent considerable resources deciding the appeal once. For that
reason, we and our sister circuits have said again and again that the “heavy
artillery” of en banc review should be used rarely. United States v. Hogan, 986
F.2d 1364, 1369 (11th Cir. 1993); see, e.g., Mitts v. Bagley, 626 F.3d 366, 369–71
(6th Cir. 2010) (Sutton, J., concurring in denial of rehearing en banc); Kane County
v. United States, 950 F.3d 1323, 1324 (10th Cir. 2020) (Phillips, J., concurring in
denial of rehearing en banc); Church of Scientology of Cal. v. Foley, 640 F.2d
1335, 1339–42 (D.C. Cir. 1981) (en banc) (Robinson, J., dissenting).
Because en banc review is both discretionary and disfavored, reasonable
minds can differ about whether it is appropriate in a particular case. Indeed, the
problem of deciding whether to grant en banc review is evergreen; a judge
wrestling with the decision decades ago remarked that sometimes “one judge’s
case of ‘exceptional importance’ is another judge’s ‘routine or run-of-the-mill’
case.” Bartlett, 824 F.2d at 1242 (Edwards, J., concurring in denial of rehearing en
banc). Judges can reasonably disagree about the best way to allocate our judicial
resources. And, of course, I never take any colleague’s disagreement personally.
Cf. Dissenting Op. at 24 n.1. 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. See
id. at 23–24 & n.1, 28–29, 41–42, 45.
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NEWSOM, Circuit Judge, joined by LUCK, Circuit Judge, concurring in the denial
of rehearing en banc:
I offer the following pre-buttal to Judge Rosenbaum’s dissent from the
denial of rehearing en banc.
Before jumping into the merits, let me say this by way of introduction:
More often than not, any writing’s persuasive value is inversely proportional to its
use of hyperbole and invective. And so it is with today’s dissental—which, rather
than characterizing, I’ll let speak for itself.1 Among other things, the dissental
accuses me—as the author of the panel opinion—of “inaccurately purport[ing]”
(and alternatively “claiming”) “to apply the governing prior precedent” in Thomas
v. Bryant, 614 F.3d 1288 (11th Cir. 2010), “reimagin[ing]” Thomas’s holding,
construing Thomas “as [I] pleased,” “pretending” that Thomas sanctioned a
standard of appellate review that it “demonstrably did not,” “distort[ing] beyond
recognition” this Court’s prior-panel-precedent rule and “remold[ing]” it into an
“unrecognizable and dangerous form,” and now, in this opinion, of engaging in
“distraction tactics.” Rosenbaum Dissenting Op. at 23, 24, 26, 28, 30, 32, 42, 43,
44.
1
For the most part, I’ll use the term “dissental” to refer to Judge Rosenbaum’s dissent from the
denial of rehearing en banc, thereby distinguishing it from Judge Wilson’s panel-stage dissent.
See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online
601 (2012).
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And there’s so much more where that came from. The dissental saves its
most biting criticism—and its most soaring rhetoric—for the seven judges who
voted against rehearing. All of us, the dissental not so subtly implies, cast our
votes simply because we “agree[d] . . . with the ultimate outcome” of the panel
opinion. Id. at 24. In declining to rehear the case, the dissental charges, we have
blessed a “rogue interpretation of the prior-precedent rule,” sanctioned a “critical
threat to the stability and predictability of the law,” and thereby unleashed
“potentially devastating consequences.” Id. at 23, 45.
Strong words. Not a one of them true. Allow me to turn down the volume
and provide a little perspective.
I
I begin with a brief factual summary.
Reiyn Keohane is a Florida inmate currently serving a 15-year sentence for
attempted murder. Keohane was born anatomically male, but she began to identify
as female sometime during her preadolescent years. Beginning at age 14—and up
until the time she was incarcerated at 19—Keohane wore women’s clothing,
makeup, and hairstyles. At 16, she was formally diagnosed with gender dysphoria.
About six weeks before the arrest that eventually landed her in prison, Keohane
began hormone therapy under the care of a pediatric endocrinologist. See Keohane
v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1262 (11th Cir. 2020).
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Upon her incarceration in a Florida prison, Keohane requested (as relevant
here) two forms of treatment. First, she sought to continue hormone therapy. That
request was initially denied for reasons that have no real bearing on my colleague’s
dissental and that I therefore won’t belabor. See id. at 1262–63. In short, though,
not long after Keohane filed suit, the Florida Department of Corrections reversed
course and referred Keohane to an outside endocrinologist, who immediately
prescribed her hormone therapy. See id. at 1263. The panel majority held that the
FDC’s decision to grant Keohane’s hormone-therapy request mooted her challenge
to the initial denial of that treatment. See id. at 1270–72. The dissental doesn’t
take issue with the panel’s mootness determination, so for present purposes we can
leave the hormone-therapy requests to the side. See Rosenbaum Dissenting Op. at
30 n.3.
Second, and separately, Keohane requested the ability to engage in “social
transitioning”—in particular, she asked to wear female undergarments and
makeup, and to grow out her hair in a long, feminine style. Keohane, 952 F.3d at
1263. The FDC refused Keohane’s social-transitioning requests on the grounds
that they violated prison policy—which required male inmates to wear “[u]nder
shorts” and to “have their hair cut short to medium uniform length at all times with
no part of the ear or collar covered,” Fla. Admin. Code r. 33-602.101(2), (4)—and
that they posed a security risk. Keohane, 952 F.3d at 1263. Most notably, the
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FDC expressed concern that an inmate wearing makeup and female undergarments
would inevitably become a target in an all-male prison, thereby endangering not
only the inmate but also the prison employees who would have to step in to protect
her. Id. The FDC also (and relatedly) determined that there were clear advantages
to maintaining uniformity in a prison setting, including the ability to more readily
detect contraband. Id.
As relevant to the concerns raised in the dissental, the district court held that
by refusing Keohane’s social-transitioning requests, Florida prison authorities were
“deliberately indifferent” to Keohane’s serious medical needs in violation of the
Eighth Amendment. Id. at 1264–65. Accordingly, the court entered an injunction
ordering prison officials to “permit Ms. Keohane to socially transition by allowing
her access to female clothing and grooming standards.” Id. at 1265. On appeal,
the panel held (again, as relevant here) that the FDC did not violate the Eighth
Amendment by refusing to accommodate Keohane’s social-transitioning-related
requests, and we therefore vacated the district court’s injunction. See id. at 1272–
80. In so doing, we reviewed de novo the district court’s ultimate determination
that there was an Eighth Amendment violation, and we reviewed subsidiary issues
of fact for clear error. See id. at 1272 & n.8 (citing Thomas v. Bryant, 614 F.3d
1288 (11th Cir. 2010)).
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II
Next, a bit of necessary legal background: A deliberate-indifference claim
entails two components, the latter of which entails three sub-components. See
Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020). First,
the inmate must establish “an objectively serious medical need”—that is, “one that
has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s
attention”—that, “if left unattended, poses a substantial risk of serious harm.” Id.
(quotation marks omitted). Second, the inmate must prove that prison officials
acted with deliberate indifference to that need by showing (1) that they had
“subjective knowledge of a risk of serious harm” and (2) that they “disregarded”
that risk (3) by conduct that was “more than gross negligence.” Id.
Here, there’s no debate about the first component—everyone agrees that
Keohane’s gender dysphoria constitutes a serious medical need. Rather, the
parties’ dispute (and the dissental’s concern) hinges on the application of—and in
particular our review of—the second component.
III
Today’s dissental is predicated on an assertion that the panel only
“purport[ed] to follow,” but instead strategically “reimagine[d],” this Court’s
earlier decision in Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010), when we
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held that the de novo—rather than the clear-error—standard of review applied to
the district court’s determination that prison officials violated the Eighth
Amendment in refusing Keohane’s social-transitioning requests. See Rosenbaum
Dissenting Op. at 26, 29, 43. And because the panel turned its back on Thomas,
the dissental asserts, it violated this Court’s prior-panel-precedent rule, pursuant to
which “a prior panel’s holding is binding on all subsequent panels unless and until
it is overruled or undermined to the point of abrogation by the Supreme Court or
by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008).
With respect, the panel didn’t “reimagine” Thomas—let alone reimagine it
“as [we] pleased.” Rosenbaum Dissenting Op. at 26, 32. To the contrary, and the
dissental’s shade-throwing notwithstanding, the panel followed Thomas—or, to be
more precise, it followed the breadcrumbs left in Thomas’s various (and sometimes
conflicting) passages. Because the panel followed (rather than “flout[ed],” see id.
at 23) Thomas, it didn’t violate the prior-panel-precedent rule. And because the
panel didn’t violate the prior-panel-precedent rule, the basis for the dissental
evaporates.
In an effort to paint a picture of lawless, result-oriented judging, the
dissental gives the misleading impression that Thomas is pellucidly clear—that it
just says, over and over and over, that the entirety of an Eighth Amendment claim,
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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.
It is true, as the dissental says, that Thomas states that “[a] prison official’s
deliberate indifference is a question of fact which we review for clear error.” 614
F.3d at 1312; see also id. at 1302 (“Subsidiary issues of fact are reviewed for clear
error.”). In our opinion, the panel candidly admitted as much. See Keohane, 952
F.3d at 1272 n.8. But Thomas also holds—and I’ll just quote it directly—that an
appellate court must review the ultimate determination “that there was an Eighth
Amendment violation warranting equitable relief . . . de novo.” Thomas, 614 F.3d
at 1303.
For better or worse, then, it fell to the panel to try to synthesize those
competing directives. And for what it’s worth—and totally unsurprisingly, I’m
sure—I think the panel got it exactly right. Let me explain.
A
Despite all the adverbs that the dissental uses to describe the Thomas
opinion—it says, in turn, that Thomas “expressly,” “demonstrably,”
“unmistakably,” “unambiguously,” and “repeatedly” prescribed across-the-board
clear-error review—everyone recognizes that some synthesis of Thomas’s mixed
messages is necessary. I recognize it. Judge Wilson’s panel dissent recognized it.
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And, yes, even Judge Rosenbaum’s dissental ultimately recognizes it. Here, it
seems to me, are the contenders:
1. The Panel Opinion. In tackling the case, the panel took seriously
Thomas’s dual directives (1) that an appellate court must review de novo the
district court’s ultimate determination “that there was an Eighth Amendment
violation warranting equitable relief” and (2) that “[s]ubsidiary issues of fact are
reviewed for clear error.” 614 F.3d at 1302. Accordingly, we held (1) that the
clear-error standard governs what we (echoing the Supreme Court) called
“historical facts—e.g., what happened, who knew what, how did they respond?”—
but (2) that “what the Eighth Amendment means—and requires in a given case—is
an issue squarely within the core competency of appellate courts” and is thus
subject to de novo review. Keohane, 952 F.3d at 1272–73 n.8. The panel opinion
therefore gives meaningful roles to both the de novo and clear-error standards, both
of which Thomas prescribes.
2. The Dissental’s Proposal. Today’s dissental suggests (without quite
saying) that, perhaps, de novo review applies only to the first, objective component
of a deliberate-indifference claim: “Thomas’s precise statements applying clear-
error review to all components of the subjective inquiry . . . are entirely
harmonious with Thomas’s statement that de novo review applies to the
overarching question of deliberate-indifference. The overarching standard of
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review is necessarily de novo because it incorporates within it de novo review of
the objective inquiry of the deliberate-indifference analysis.” Rosenbaum
Dissenting Op. at 33 (emphasis added); see also id. at 34 n.5 (“[De novo review]
extends to the ultimate conclusion because the ultimate conclusion necessarily
includes within it a determination based on de novo review (the objective
inquiry).” (emphasis added)).
With respect, that can’t be correct. The Thomas opinion prescribes de novo
review in two separate places—with respect to two different issues. In one place, it
states that the constituent determination whether the deprivations suffered by the
inmate “are objectively ‘sufficiently serious’ to satisfy the objective prong” of the
deliberate-indifference standard “is a question of law” subject to de novo review.
Thomas, 614 F.3d at 1307. In another, it states, separately, that the district court’s
ultimate determination “that there was an Eighth Amendment violation warranting
equitable relief”—i.e., the entirety of that determination—“is reviewed de novo.”
Id. at 1302. So de novo review unquestionably applies to more than just the first
prong of the deliberate-indifference standard—it applies, somehow or another, to
the whole enchilada.
3. The Panel Dissent. Which brings me to the panel dissent’s reading of
Thomas. It seemed to appreciate that de novo review applies to the entirety of the
deliberate-indifference claim—to the ultimate determination that the Eighth
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Amendment was violated—but it left the de novo standard only a vanishingly
small role:
[I]f the district court, despite checkmarks in both the objective and
subjective boxes, still concluded that there was no Eighth Amendment
violation, we would lend no deference to this error. We would review
it de novo, and would no doubt reverse. And if the district court,
despite holding that one of the elements was not met, still concluded
that there was an Eighth Amendment violation, we would do the
same. We would review this error de novo, and no doubt
reverse. That is the ultimate conclusion that we review de novo.
Keohane, 952 F.3d at 1288 (Wilson, J., dissenting).
With respect, that can’t be right, either. As the panel majority explained in
our opinion, it is inconceivable that “the de novo standard’s sole office is to ensure
that the district court puts ‘checkmarks’ in the right boxes, and then doesn’t make a
truly boneheaded, asinine mistake.” Id. at 1273 n.8.2
B
Among the available alternatives, it won’t surprise you to learn that I think
the panel’s synthesis of Thomas’s mixed messages is clearly correct. I say so for
2
The dissental suggests that the panel “g[ave] itself permission to reimagine what Thomas held
because it conclude[d] that what Thomas expressly said ‘cannot possibly be what we’ve meant.’”
Rosenbaum Dissenting Op. at 26 (quoting Keohane, 952 F.3d at 1273 n.8). No. What the panel
said in the passage that the dissental snatch-quotes is that the panel dissent’s “checkmark”
interpretation of de novo review “cannot possibly be what we’ve meant when we have
repeatedly held that de novo review applies to the district court’s determination whether ‘there
was an Eighth Amendment violation warranting equitable relief.’” Keohane, 952 F.3d at 1273
n.8 (quoting Thomas, 614 F.3d at 1303).
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reasons that I have already explained and that neither of my dissenting colleagues
has even engaged, let alone rebutted.
1
First, the panel’s interpretation gives meaningful roles to both the de novo
and clear-error standards—both of which, again, Thomas expressly prescribes. By
contrast, neither of my dissenting colleagues has any viable explanation of what
role de novo review should play in Eighth Amendment deliberate-indifference
cases. As between the courts of appeals and the district courts, who decides what
the Eighth Amendment ultimately means and requires in a given case? On their
theories, the district courts do—at which point the appellate courts’ hands are
pretty much tied. What an odd state of affairs. In what other circumstance do the
courts of appeals effectively cede to district courts the job of determining the
meaning and proper application of the Constitution?3
2
Second, “meaningful appellate review of a district court’s ultimate
constitutional holding follows straightaway from Supreme Court precedent
3
I note that while a holding that clear-error review applies to the entirety of the deliberate-
indifference analysis—and effectively binds us to the district courts’ determinations—might
serve Keohane well in this particular case, it would be cold comfort to the multitude of prisoners
who appeal from district court orders rejecting deliberate-indifference claims. And of course,
the vast majority of deliberate-indifference cases that appellate courts see arise on appeal by
inmates who have lost below.
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prescribing de novo review of other application-of-law-to-fact questions—
including those arising under the Eighth Amendment.” Keohane, 952 F.3d at 1273
n.8. In United States v. Bajakajian, 524 U.S. 321 (1998), for instance, the
Supreme Court rejected the contention that an appellate court should defer to a
district court’s determination whether a fine is excessive for Eighth Amendment
purposes. As the Supreme Court explained there, while the district court’s factual
findings in conducting the excessiveness inquiry “must be accepted unless clearly
erroneous,” “whether a fine is constitutionally excessive calls for the application of
a constitutional standard to the facts of a particular case”—and thus calls for “de
novo review.” Id. at 336–37 & n.10.
Similarly, in Ornelas v. United States, the Supreme Court held “that as a
general matter determinations of reasonable suspicion and probable cause should
be reviewed de novo on appeal.” 517 U.S. 690, 699 (1996). The Court
acknowledged—precisely as our opinion did—“that a reviewing court should take
care both to review findings of historical fact only for clear error and to give due
weight to inferences drawn from those facts by resident judges and local law
enforcement officers.” Id. (emphasis added); see Keohane, 952 F.3d at 1273 n.8.
But it insisted that the ultimate determination—the application of the constitutional
standard to those facts—demands de novo review. Significantly, the Court gave
three reasons to support its holding, all of which apply equally here: (1) the
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constitutional standards at issue involve “fluid concepts that take their substantive
content from the particular contexts in which the standards are being assessed”; (2)
the applicable “legal rules . . . acquire content only through application,” and
“[i]ndependent review is therefore necessary if appellate courts are to maintain
control of, and to clarify, the legal principles”; and (3) “de novo review tends to
unify precedent” and “stabilize the law.” Ornelas, 517 U.S. at 696–98.
Finally, applying Bajakajian and Ornelas—and repeating the same
considerations—the Supreme Court held in Cooper Industries, Inc. v. Leatherman
Tool Group, Inc., “that courts of appeals should apply a de novo standard of review
when passing on district courts’ determinations of the constitutionality of punitive
damages awards” under the Fourteenth Amendment. 532 U.S. 424, 436 (2001).
Except to say that they aren’t deliberate-indifference cases, neither of my
dissenting colleagues has offered any explanation why the rationale of Bajakajian,
Ornelas, and Cooper Industries doesn’t apply here. District courts are
undoubtedly better situated than appellate courts to make findings of what the
panel (echoing the Supreme Court in Ornelas) called “historical facts,” and their
determinations with respect to those facts are accordingly entitled to deference.
But what the Eighth Amendment means—and requires in a given case—is, as I
have said, an issue squarely within the core competency of appellate courts. And
to be clear, it’s no answer to say, as the panel dissent did—citing Justice Scalia’s
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solo dissent in Ornelas—that some issues underlying a deliberate-indifference
claim may be “fact-specific and not easy to generalize.” Keohane, 952 F.3d at
1291 n.13 (Wilson, J., dissenting). The Supreme Court recognized as much
regarding the “mixed questions” in Bajakajian, Ornelas, and Cooper Industries—
and yet applied de novo review anyway. Just so here.
3
Finally, the panel’s synthesis of Thomas’s standard-of-review conundrum
squares precisely with the First Circuit’s en banc decision in the factually similar
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). The court there rejected the very
arguments that my dissenting colleagues have made and held that de novo, rather
than clear-error, review governed a district court’s determination that the Eighth
Amendment required prison authorities to accommodate a transgender inmate’s
medical-treatment requests. In Kosilek, an inmate alleged that the Massachusetts
Department of Correction’s refusal to provide sex-reassignment surgery to treat the
inmate’s gender-identity disorder constituted deliberate indifference. Id. at 68–69.
Sitting en banc, the First Circuit explained that “[t]he test for establishing an
Eighth Amendment claim of inadequate medical care encompasses a multitude of
questions that present elements both factual and legal”—and, therefore, that
“[r]eview of such ‘mixed questions’ is of a variable exactitude,” such that “the
more law-based a question, the less deferentially we assess the district court’s
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conclusion.” Id. at 84. Citing our opinion in Thomas, the Kosilek court held that
“[t]he ultimate legal conclusion of whether prison administrators have violated the
Eighth Amendment is reviewed de novo.” Id. In so holding, the court rejected the
dissenting judges’ argument that “the ultimate constitutional question is
inextricably tied up with the factual details that emerged at trial,” which, according
to them, “counsels against pure de novo review.” Id. at 99 (Thompson, J.,
dissenting). While acknowledging—again, just as the panel did here—that
appellate courts “award[] deference to the district court’s resolution of questions of
pure fact and issues of credibility,” the Kosilek majority stood by its conclusion
that the ultimate Eighth Amendment question is reviewed de novo. Id. at 84–85.
Notably, the court buttressed its holding with citations to decisions from several
other circuits reaching the same conclusion. See, e.g., Hallett v. Morgan, 296 F.3d
732, 744 (9th Cir. 2002) (“The district court’s factual findings regarding conditions
at the Prison are reviewed for clear error. However, its conclusion that the facts do
not demonstrate an Eighth Amendment violation is a question of law that we
review de novo.”); Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir. 1993) (“Whether
conduct, if done with the required culpability, is sufficiently harmful to establish
an Eighth Amendment violation is an objective or legal determination which we
decide de novo.”); Alberti v. Klevenhagen, 790 F.2d 1220, 1225 (5th Cir. 1986)
(“[O]nce the facts are established, the issue of whether these facts constitute a
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violation of constitutional rights is a question of law that may be assayed anew
upon appeal.”).
* * *
So in short, the panel here didn’t “reimagine” this Court’s earlier decision in
Thomas but, rather, synthesized Thomas’s mixed messages in accordance with
Supreme Court and other circuits’ precedents.
IV
I’ll conclude where I began. For all its rhetorical flourish, today’s dissent
from denial simply doesn’t make a compelling argument that this case warranted
en banc reconsideration. The panel was faced with the vexing question of how the
de novo and clear-error standards of review map onto the various elements and
sub-elements of an Eighth Amendment deliberate-indifference claim—a question
made all the more vexing by Thomas’s (let’s just say) imprecise discussion of that
issue. Faced with all that ambiguity, the panel did its level best—both to apply
Thomas and to faithfully and correctly decide the case before it. I, for one, think
the panel got it exactly right. But even if I’m wrong about that—and reasonable
minds can disagree—the worst that can be said of the panel opinion is that it
“misappli[ed the] correct precedent to the facts of the case.” 11th Cir. R. 35-3. In
this Circuit, that is not a ground for en banc rehearing. Id.
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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.
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ROSENBAUM, Circuit Judge, joined by WILSON, MARTIN, and JILL PRYOR,
Circuit Judges, dissenting from the denial of rehearing en banc:
This is not an easy dissent to write—not because the legal issue involved in
the merits of this case is complex or difficult (it’s not), but because our denial of
rehearing en banc here is not—or at least should not be—normal. We are denying
en banc rehearing in a case that objectively qualifies for it under the Federal Rules
of Appellate Procedure and that indeed demands it to preserve the sanctity of the
prior-precedent rule and the important policies of stability and predictability that that
rule serves.
Our failure to hold en banc review in a case where the panel opinion
contradicts our holdings in opinions earlier panels issued yet claims nonetheless to
comply with the prior-precedent rule introduces uncertainty and confusion into the
law of our Circuit. And worse, it undermines the prior-precedent rule, “the
foundation of our federal judicial system.” Smith v. GTE Corp., 236 F.3d 1292 (11th
Cir. 2001) (quoting Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983)). We
as a Court must reckon with these potentially devastating consequences of our
actions if we continue to allow opinions that flout the prior-precedent rule while
claiming they comply with it to issue unchecked.
A case like this one, where the opinion distorts beyond recognition the prior-
precedent rule—a fundamental mechanism by which this Court ensures the
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predictability and stability of the law—is exactly the kind of case for which the en
banc tool was designed. For that reason, whether any individual judge agrees or
disagrees with the ultimate outcome of Keohane should be irrelevant to the question
of whether this case warrants en banc review. Too much is at stake.
I am sure each of us believes that we are applying the appropriate standards
in determining whether to vote for en banc rehearing.1 But an objective analysis
suggests we are not. So we need to recalibrate. I urge our Court—and each of us
individually—to carefully and objectively reexamine this vote and to truly reflect on
the dangers of condoning panel opinions that contradict our prior precedent while
nonetheless claiming to follow the prior-precedent rule.
I divide my discussion into three substantive sections. In Section I, I review
the law governing the limited circumstances in which en banc review is appropriate.
In Section II, I show that this case warrants en banc rehearing. And in Section III, I
1
I am truly sorry that Chief Judge Pryor and Judge Newsom seem to have taken my
concerns personally. I do not believe this dissent to be personal. I have great respect for all my
colleagues, and I value this Court’s collegiality. But I also have great respect for the rule of law
and the need for our Court to maintain its legitimacy. And I don’t agree that defending these things
or pointing out what I think is wrong with Keohane and explaining why I view it as such a big
problem makes me “[un]collegial[]” and “[un]charitable,” see Newsom Op. at 22, or is an “attack[
on] . . . the integrity of judges or their commitment to the rule of law . . . [or] the legitimacy of this
Court,” W. Pryor Op. at 5. Nor do the labels and characterizations the W. Pryor and Newsom
Opinions feel a need to impose provide a good enough reason to remain silent in the face of the
threat Keohane represents to our judicial norms. I am aware of no other way to oppose what I see
as the failure of our Court to require the Keohane panel to comply with the prior-precedent rule,
other than by writing a dissent that candidly discusses that problem and its significance.
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explain why we must insist on strict adherence to the prior-precedent rule by every
panel.
But first, a word of caution: this dissent is not about what the substantive law
that governs Keohane’s case should or should not be. And to avoid any possible
misunderstanding on that, I begin by stating expressly that I take no position on that
in this dissent. Even assuming without deciding that Keohane arrived at the
objectively legally correct rule for the appropriate standard of review in Eighth
Amendment deliberate-indifference claims, the problem here is that on the way to
doing so, it issued a new rule that is contrary to our binding precedent while
nonetheless attributing that new rule to that same precedent. 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.
I.
Rule 35, Fed. R. App. P., anticipates that en banc rehearing will be ordered
only when it is “necessary to secure or maintain uniformity of the court’s decisions”
or the case “involves a question of exceptional importance.” Fed. R. App. P. 35(a).
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This is one of those cases.2 First, this case objectively warrants en banc review under
Rule 35(a) because the panel majority opinion here, Keohane v. Florida Department
of Corrections, 952 F.3d 1257 (11th Cir. 2020), creates confusion and inconsistency
in our Eighth Amendment Circuit jurisprudence. But second and more urgent is
what the Keohane panel’s interpretation and application of the prior-precedent rule
and our refusal to take this case en banc do to that rule. In trying unsuccessfully to
avoid running afoul of our prior-precedent rule and raising a conflict with our earlier
precedent known as Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010), the
Keohane majority opinion remolds the prior-precedent rule into an unrecognizable
and dangerous form: it gives itself permission to reimagine what Thomas held
because it concludes that what Thomas expressly said “cannot possibly be what
we’ve meant,” Keohane, 952 F.3d at 1272.
Our “firmly established” prior-precedent rule strictly requires later panels to
follow the precedent of earlier panels unless and until the prior precedent is overruled
or undermined to the point of abrogation by the Supreme Court or this Court sitting
2
Chief Judge Pryor notes that “[t]he grant of en banc review is and should be rare.” W.
Pryor Op. at 4. Of course, as I recognize above, that’s true, when we consider the total number of
cases we review every year. But that’s also an oversimplification of what happened here. By my
count, in the most recent nearly two-year period (since January 1, 2019), we have voted for en
banc rehearing in twelve cases. During that same period, we have voted against en banc review
only seven times when a member in active service on this Court has requested an en banc poll. So
once a member of this Court in active service has sought an en banc poll, we have granted en banc
rehearing at a rate of 63%—a majority of the time. Presumably, that is because we exercise
extreme discretion in requesting an en banc poll in the first place.
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en banc. United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc);
see also Smith, 236 F.3d at 1303 n.11. We have described ourselves as “emphatic”
in our strict adherence to this rule, see Steele, 147 F.3d at 1318 (quoting Cargill v.
Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997)), and have said that this Court “take[s]
[the prior-precedent] rule seriously,” Atl. Sounding Co., Inc. v. Townsend, 496 F.3d
1282, 1286 (11th Cir. 2007) (Ed Carnes, J., concurring).
We have gone so far as to hold that under that rule, a later panel cannot
overrule a prior one’s holding “even though convinced it is wrong.” Steele, 147 F.3d
at 1317-18. Indeed, we have held that the prior-precedent rule binds later panels
even when the prior panel’s decision failed to mention controlling Supreme Court
precedent and reached a holding in conflict with that precedent. Smith, 236 F.3d at
1302-03. So strong is the prior-precedent rule that under it, a later panel is bound
by the earlier panel’s “reasoning and result,” even when the prior panel does not
explicitly state its rule. See id. at 1304.
No exceptions to the prior-precedent rule exist. See id. at 1302. That is so,
we have explained, because if an exception applied, “it could end up nullifying the
well-established prior panel precedent rule that is an essential part of the governing
law of this Circuit.” Id. (emphasis added). Not only that but the prior-precedent rule
“helps keep the precedential peace among the judges of this Court, and it allows us
to move on once an issue has been decided.” Townsend, 496 F.3d at 1286 (Ed
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Carnes, J., concurring). Without it, as Judge Ed Carnes has cautioned, “every sitting
of this court would be a series of do-overs, the judicial equivalent of the movie
‘Groundhog Day.’” Id.
The Newsom Opinion takes issue with my discussion, describing it as full of
“hyperbole and invective” because of my concerns that continued disregard of our
prior-precedent rule jeopardizes the rule of law. See Newsom Op. at 6. But those
concerns are not overblown. Indeed, our own Court has emphasized that the prior-
precedent rule “serves as the foundation of our federal judicial system[, as]
[a]dherence to it results in stability and predictability.” Smith, 236 F.3d at 1303
(quoting Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983)). For these
reasons, if we continue to allow panels to skirt the prior-precedent rule, we certainly
ask for trouble.
Under our prior-precedent rule, if a panel vehemently disagrees with a prior
precedent, its only option is to apply it, anyway, and call for en banc rehearing. It
may not, under any circumstances, create its own conflicting rule and inaccurately
purport to apply the governing prior precedent. And if it does, en banc review is in
order—either to correct the panel opinion and make it comply with binding
precedent, or to overrule the prior precedent. But in any case, changing prior
precedent is not something that a panel may do.
II.
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Yet that’s precisely what the Keohane panel did: while insisting it was
following Thomas, it instead created a new rule diametrically opposed to Thomas’s
holding. To show that this is necessarily the case, I must first briefly review the
relevant facts of Keohane’s case (Section A) and the law governing claims of
deliberate indifference to prisoners’ medical claims (Section B). Then in Section C
I point out how the Keohane panel opinion is at war with Thomas, the precedent it
purports to follow.
A.
Reiyn Keohane was assigned male at birth, but she has identified as female
since she was about eight years old. ECF No. 171 at 1. She was formally diagnosed
with gender dysphoria when she was sixteen. Id. at 2. At that time, Keohane began
a hormone-therapy regimen. Id.
After her arrest, she was cut off from her treatment, including hormone
therapy and the ability to dress and groom as a woman. Id. at 2. She complained,
but the prison did not respond. Id. Keohane’s untreated dysphoria caused her such
extreme anxiety that she attempted to kill herself and castrate herself while in
custody. Id.
These facts and others led Keohane to sue the Florida Department of
Corrections (the “FDC”) under 42 U.S.C. § 1983, alleging violations of her Eighth
Amendment rights and seeking declaratory and injunctive relief. As the panel
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opinion explained, after a bench trial, the district court entered a 61-page order
awarding Keohane relief. As relevant to the concerns I raise in this dissent,3 the
district court directed the FDC to permit Keohane “to socially transition by allowing
her access to female clothing and grooming standards.” 952 F.3d at 1262 (quoting
district court order).
The panel opinion reversed. Claiming to follow Thomas, the Keohane panel
applied the de novo standard of review to certain components of the district court’s
findings for which the Thomas Court had instructed a clear-error standard governs.
In so doing, the panel simultaneously injected conflict into our Eighth Amendment
deliberate-indifference jurisprudence and stretched interpretation of our prior-
precedent rule beyond recognition.
B.
The Eighth Amendment prohibits the government from inflicting “cruel and
unusual punishments” on inmates. Wilson v. Seiter, 501 U.S. 294, 296–97 (1991).
That prohibition encompasses “deprivations . . . not specifically part of [a] sentence
but . . . suffered during imprisonment.” Id. at 297. An inmate who suffers
“deliberate indifference” to her “serious medical needs” may state a claim for a
violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
3
Appellant’s motion for rehearing also seeks rehearing on whether the Majority Opinion
correctly applied our mootness exception for voluntary cessation. For purposes of this dissent
from the denial of rehearing en banc, I express no views about the propriety of that holding.
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Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). Under our precedent, a
deliberate-indifference claim has two components: an objectively serious medical
need and subjective deliberate indifference by the official to that need. Brown, 387
F.3d at 1351.
Thomas holds that the objective inquiry (whether a serious medical need
exists) includes both questions of fact subject to clear-error review and a question of
law subject to de novo review. Thomas, 614 F.3d at 1307, 1308. I am not concerned
with that aspect of Keohane because the panel opinion had no occasion to comment
on or apply the Thomas standard of review to the objective inquiry, since “all
agree[d] that Keohane’s gender dysphoria” satisfies that requirement. 952 F.3d at
1273. Instead, I focus on the subjective component of Keohane’s deliberate-
indifference claim.
Before Keohane, we had described the subjective inquiry (whether the
defendant was subjectively deliberately indifferent to the plaintiff’s serious medical
need) to require the plaintiff “to prove three facts: (1) subjective knowledge of a
risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than
mere negligence” (the “subjective-inquiry components”). Brown, 387 F.3d at 1351
(emphasis added). Of course, in characterizing as “facts” the three things that the
plaintiff must prove to satisfy the subjective inquiry, we suggested that the district
court’s resolutions of the three subjective-inquiry components were findings of fact.
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Then, as Judge Wilson plainly showed in his dissent in Keohane, 952 F.3d at
1289-92 (Wilson, J., dissenting), we said precisely that a few years later in Thomas.
There, several inmates sued FDC employees, alleging that their use of chemical
agents on certain mentally ill inmates violated the Eighth Amendment. 614 F.3d at
1293. After a five-day bench trial, the district court determined that the FDC’s non-
spontaneous disciplinary use of chemical agents on inmates who, at the time, were
unable to conform their behavior to prison standards because of their mental
illnesses, violated the Eighth Amendment. Id. at 1294. The FDC employees
appealed this conclusion (among other district-court actions not relevant here). Id.
In analyzing the appeal, we noted that we review de novo the “legal
conclusion—that there was an Eighth Amendment violation[,]”—but that
“[s]ubsidiary issues of fact are reviewed for clear error.” Id. at 1303. Had we
stopped there and both said nothing more about the standard of review and not
applied the standard of review in a way that demonstrated what we meant by this
division of the standard of review, perhaps the Keohane panel would have been free
to construe those two propositions as it pleased, without running afoul of the prior-
precedent rule.4
4
That, too, is questionable (though less so than Keohane’s characterization of Thomas), in
light of our prior description in Brown, 387 F.3d at 1351, that a plaintiff had to prove three “facts”
to establish all three aspects of the subjective part of a deliberate-indifference claim.
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But that was not the end of our discussion and application of the standard of
review. Rather, later in Thomas, our statements concerning the appropriate standard
of review, as well as our application of that standard of review, unmistakably show
that the phrase “legal conclusion . . . that there was an Eighth Amendment violation”
refers to “[t]he ultimate legal conclusion” of whether the defendants violated the
Eighth Amendment, Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014). And the phrase
“[s]ubsidiary issues of fact” refers to the issues of fact that one of the objective-
inquiry components and all the subjective-inquiry components of the deliberate-
indifference analysis constitute.
Contrary to the Newsom Opinion’s characterization of Thomas, there is
nothing “conflicting” or “competing,” see Newsom Op. at 11, 12, about Thomas’s
direction. Nor does Thomas send “mixed messages.” Id. at 12. Thomas’s precise
statements applying clear-error review to all components of the subjective inquiry—
outlined in detail below—are entirely harmonious with Thomas’s statement that de
novo review applies to the overarching question of deliberate-indifference. The
overarching standard of review is necessarily de novo because it incorporates within
it de novo review of the objective inquiry of the deliberate-indifference analysis.5
5
The Newsom Opinion attempts to alter the focus from my reason for seeking en banc
review—Keohane’s failure to follow Thomas and abide by the prior-precedent rule—by arguing
that daylight exists between Judge Wilson and me concerning Thomas’s holding on the applicable
standard of review. See Newsom Op. at 13-15. It doesn’t. I fully agree with Judge Wilson that
Thomas applies the clear-error standard to all aspects of the subjective-inquiry prong of the
deliberate-indifference test. See Keohane, 952 F.3d at 1287-90 (Wilson, J., dissenting). I likewise
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And nothing in Thomas supports the Keohane majority opinion’s suggestion
that, by “[s]ubsidiary issues of fact,” Thomas meant only what the Keohane majority
opinion deemed “historical facts.” See Keohane, 952 F.3d at 1272 n.8. Tellingly,
the Keohane majority opinion cited nothing in Thomas for its contention. Nor did
Thomas ever use the term “historical facts.” On the contrary, as Judge Wilson’s
Keohane dissent and this dissent demonstrate in detail, see infra at 35-38, Thomas
unambiguously applied the clearly erroneous standard of review to each of the three
components of the subjective inquiry. The Keohane majority opinion was not free
to stray from the clear-error standard of review that Thomas held governs the
components of the subjective inquiry. Yet that is what it did.
understand Thomas’s statement that we review “the district court’s . . . conclusion [] that there was
an Eighth Amendment violation warranting equitable relief [] . . . de novo,” Thomas, 614 F.3d at
1303, to refer in context to the notion that “[o]ur de novo review extends only to questions of law
(i.e., the objectively-serious-need element) and to the district court’s ultimate conclusion whether
the objective and subjective elements of a deliberate indifference claim state an Eighth
Amendment violation.” Keohane, 952 F.3d at 1287 (Wilson, J., dissenting). As I have noted, it
extends to the ultimate conclusion because the ultimate conclusion necessarily includes within it a
determination based on de novo review (the objective inquiry). And we’re not the only ones to
understand Thomas’s clear analysis this way. Indeed, in Kosilek v. Spencer, 774 F.3d 63 (1st Cir.
2014), the First Circuit cited Thomas for the proposition that “[t]he ultimate legal conclusion of
whether prison administrators have violated the Eighth Amendment is reviewed de novo,” while
quoting from Thomas in the supporting parenthetical only the following: “Whether the record
demonstrates that [the prisoner] was sprayed with chemical agents . . . and that he suffered
psychological injuries from such sprayings are questions of fact. Whether these deprivations are
objectively ‘sufficiently serious’ to satisfy the objective prong, is a question of law . . . .” Kosilek,
774 F.3d at 84 (quoting Thomas, 614 F.3d at 1307) (quotation marks omitted) (alterations by the
Kosilek Court) (emphasis added). Tellingly, Kosilek never refers to the subjective inquiry to
provide an example of presenting any legal questions to show why Thomas refers to the
overarching question of deliberate-indifference liability as subject to de novo review. Nor does
Kosilek cite Thomas for the proposition that any components of the subjective inquiry are subject
to de novo review.
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C.
I begin with what Thomas had to say about how the standard of review applies
to the evaluation of a district court’s determination on the subjective inquiry of an
Eighth Amendment deliberate-indifference claim—that is, whether the defendant (1)
subjectively knew of a risk of serious harm; (2) nonetheless disregarded that risk;
and (3) did so by conduct that is more than mere negligence. Thomas, 614 F.3d at
1312. Thomas explained that this inquiry requires us to determine whether “the
evidence . . . demonstrate[s] that with knowledge of the infirm conditions, the official
knowingly or recklessly declined to take actions that would have improved the
conditions.” Id. (internal quotation marks and alterations omitted). This summary
of what the subjective inquiry requires encompassed all three prongs of the
subjective inquiry: “knowledge of the infirm conditions” means the defendant
“subjectively knew of a risk of serious harm”; “declined to take actions that would
have improved the conditions” means the defendant “disregarded the risk”; and
“knowingly or recklessly” did so means the defendant “did so by conduct that is
more than mere negligence.”
Immediately after we summarized what the three components of the
subjective inquiry require, we unambiguously stated that “[a] prison official’s
deliberate indifference is a question of fact which we review for clear error.” Id.
(emphasis added). Based on the placement and content of the remark, it is clear that
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with this statement, we were referring to the entirety of the three-part subjective
inquiry. Not only did this quotation appear immediately following our summary of
all the elements of the subjective component of an Eighth Amendment violation, but
significantly, by definition, “[a] prison official” can engage in “deliberate
indifference” only if all three subjective-inquiry components are satisfied.
We need not review Thomas any further than this to know that we
unambiguously held in Thomas that the district court’s rulings on the entire
subjective inquiry—including its rulings on all three of the subjective inquiry’s
components—are subject to the clearly erroneous standard of review.
But there’s more. In addressing each of the three parts of the subjective
inquiry in Thomas, we again said and demonstrated that each component is to be
reviewed for clear error.
With respect to the first question—whether the defendant subjectively knew
of a risk of serious harm—we relied in Thomas on Farmer v. Brennan, 511 U.S. 825,
842 (1994), citing to Farmer’s proposition that “[w]hether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways . . . .” 6 See Thomas, 614 F.3d at 1313 (quoting
Farmer, 511 U.S. at 842) (alteration omitted) (emphasis added).
6
Though in Thomas we omitted the phrase “question of fact” from the Farmer quotation,
we did so only to avoid repetition of the phrase “question of fact,” which appears in the sentence
immediately preceding the Farmer quotation. As I’ve noted above, that sentence states that the
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As to the second and third parts of the test—whether the defendant
disregarded this risk by more than mere negligence—we concluded that “[t]he
record . . . supports the district court’s finding that the Secretary of the [FDC] and
the Warden . . . recklessly disregarded the risk of psychological harm to inmates like
[the Thomas plaintiff].” Id. at 1315 (emphasis added). We then described the
evidence in the record that underpinned the district court’s finding. Id. For example,
we opined that “the [FDC]’s refusal to modify its non-spontaneous use-of-force
policy provides support for the district court’s finding of more than mere or even
gross negligence on the part of the [FDC].” Id. (emphasis added). The repeated
references to evidence in the record and uses of the words “support for the district
court’s finding” further unmistakably demonstrate that we viewed the district court’s
“findings” as factual findings, and we reviewed them for clear error.
But you need not take my word for it. Thomas says as much. Thomas began
its analysis by invoking the clear error-test and by summarizing its conclusion that
the defendant failed to meet that standard: “[O]ur review of the district court’s
voluminous uncontested factual findings as they relate to the defendants’ deliberate
indifference does not leave us with the definite and firm conviction that a mistake
has been committed. Accordingly, the defendants have failed to satisfy their burden
entire subjective inquiry is a question of fact we review for clear error. See Thomas, 614 F.3d at
1312.
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of demonstrating the district court’s clear error.” Thomas, 614 F.3d at 1313
(emphasis added).
That was no mistake. Thomas also ended its discussion of the second and
third components of the subjective inquiry by summing up that it could not
“conclude that the district court was clearly erroneous in finding that the record
demonstrates that FDC officials turned a blind eye to [the plaintiff’s] mental health
needs and the obvious danger that the use of chemical agents presented to his
psychological well-being.” Id. at 1316 (internal quotation marks omitted and
emphasis added). In our very next sentence, we explained that “[t]urning a blind eye
to such obvious danger provides ample support for the [district court’s] finding of
the requisite recklessness.” Id. (emphasis added). Finally, we held that “an
examination of [the] entire record demonstrates that the district court did not commit
clear error in finding the defendants’ deliberate indifference.” Id. at 1317 (emphasis
added).
In short, our discussion in Thomas of the subjective inquiry of the deliberate-
indifference claim repeatedly shows that we characterized and treated each of the
three components as factual ones, governed by the clearly erroneous standard of
review on appeal.
Whether each of us personally agrees or disagrees that a clear-error standard
of review is a good idea for each of the components of the subjective inquiry, see
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Newsom Op. at 16 n.3, is irrelevant. It is beyond dispute that Thomas held that clear-
error review governs.
In contrast, the Keohane majority opinion reviewed de novo the district
court’s findings on the second and third parts of the subjective inquiry.7 See
Keohane, 952 F.3d at 1274-78. In fact, except in a footnote dismissing the notion
that clear-error review applies to each of the three components of the district court’s
factual findings on the subjective inquiry, the majority opinion never once employed
the term “clear error” in conducting its analysis. See id. And even in that footnote,
the Keohane panel opined only that even assuming the clear-error standard of review
governs review of the district court’s findings on each of the three subparts of the
subjective inquiry, “we would have little trouble formulating the required firm
conviction that a mistake had been committed.” Id. at 1272 n.8 (citation and internal
quotation marks omitted). The majority opinion said so, though, without any
corresponding analysis other than a throwaway reference to its legal-error analysis
in the text. See id.
Perhaps most disturbingly, though, despite the Keohane majority opinion’s
use of the de novo standard of review to review the second and third subparts of the
7
The Keohane majority opinion concluded that it did not need to evaluate whether the
district court correctly determined that the prison officials had actual knowledge of a risk of serious
harm because, in any case, Keohane did not establish the second and third parts of the subjective
inquiry. 952 F.3d at 1274. For that reason, the Keohane majority opinion did not expressly review
the first part of the district court’s ruling on the subjective inquiry.
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district court’s subjective inquiry on Keohane’s deliberate-indifference claim, the
Keohane majority opinion asserted that it followed Thomas. But in support of this
proposition, the Keohane majority opinion relied solely on Thomas’s statements that
we review de novo whether “there was an Eighth Amendment violation” and that
“[s]ubsidiary issues of fact are reviewed for clear error.” See Keohane, 952 F.3d at
1265 n.2. Likewise, that is the sole “breadcrumb[]” from Thomas that the Newsom
Opinion cites in justifying Keohane’s application of de novo review to all
components of the subjective inquiry. See Newsom Op. at 11-12.
But as I have already discussed, that one “breadcrumb[]” is part of a trail that
leads inescapably to the conclusion that Thomas holds that the clear-error standard
governs the subjective inquiry.
Yet that one statement deprived of its proper context is the only thing that
Keohane and the Newsom Opinion point to from Thomas to justify Keohane’s
conclusion that Thomas required de novo review of the subjective inquiry. Indeed,
neither Keohane nor the Newsom Opinion responds to any of the numerous
quotations Judge Wilson’s dissent and I have cited from Thomas that show that
Thomas held that clear-error review governs the subjective inquiry. Keohane and
the Newsom Opinion just ignore them. But ignoring Thomas’s words does not make
Thomas’s holding go away.
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Rather than explaining how Keohane’s holding can possibly be consistent
with Thomas’s numerous quotations, the Newsom Opinion takes a different tack: it
appears to attempt to distract the reader from its inability to demonstrate that
Keohane does not violate Thomas. Indeed, careful readers can’t help but notice that
the Newsom Opinion spends nearly all its pages trying to change the subject.
For example, it defends at length the correctness of the outcome of Keohane
and the new rule that the Keohane panel imposed contrary to Thomas’s rule. See,
e.g., Newsom Op. at 8-9 (arguing the facts of Keohane’s case—including defending
the FDC’s decision not to allow Keohane to dress and groom herself as a woman—
that have no bearing on whether Keohane followed Thomas), 16 (opining that, as a
matter of law, it makes better sense for appellate courts to “decide[] what the Eighth
Amendment ultimately means and requires in a given case” because anything else
would be “an odd state of affairs.”8), 16-19 (contending that United States v.
Bajakajian, 524 U.S. 321 (1998), Ornelas v. United States, 517 U.S. 690 (1996),
Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001)—none
of which Thomas cites, by the way—support the new Keohane rule), 19-21
(discussing Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014), to support the notion
8
Most respectfully, I disagree that district courts are somehow not equipped to make
capable rulings on the application of the subjective-inquiry components of the Eighth Amendment
deliberate-indifference standard in any given case. And even if a district court erred, it would not
be the last word on the matter, since a party could always appeal to the circuit court. Clearly
erroneous review does not mean no review.
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that de novo review is the correct legal answer to the standard of review that should
govern the components of the subjective inquiry9).
The Newsom Opinion also tries to divert attention from its failure to show
how it is consistent with Thomas by grading my writing and that of the Thomas
panel. See, e.g., Newsom Op. at 3, 4, 12, 21, 22.
These distraction tactics miss the point. Whether de novo review of the
components of the subjective inquiry is or is not a better answer than Thomas’s clear-
error review is not the issue here. And whether I use too many adverbs in my writing
or whether the Newsom Opinion likes how Thomas is written is similarly irrelevant
to the issue before the Court.
The only question here is whether Keohane is faithful to Thomas. The
Newsom Opinion’s failure to show how the numerous quoted statements from
Thomas can possibly be consistent with Keohane’s new rule applying the de novo
standard of review to the subjective inquiry answers that question with a resounding
“no.”10
9
Kosilek’s sole citation of Thomas for the proposition that “[t]he ultimate legal conclusion
of whether prison administrators have violated the Eighth Amendment is reviewed de novo.”
Kosilek, 774 F.3d at 84, also does not show that Thomas applied de novo review to the components
of the subjective inquiry. In fact, as I have explained in note 5, supra, it demonstrates the opposite.
So to be clear, Kosilek did not purport to read Thomas to hold that the components of the subjective
inquiry are subject to de novo review.
10
The W. Pryor Opinion’s silence on this issue likewise speaks volumes: the W. Pryor
Opinion doesn’t even try to show that Keohane is consistent with Thomas or that it didn’t violate
the prior-precedent rule. Nor does it defend Keohane’s interpretation of the prior-precedent rule,
which allows a later panel to reinvent the holding of a prior panel.
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The Keohane majority opinion reached another conclusion only because it
viewed Thomas’s plain language to require a “mindless, mechanical box-checking
assessment.” Id. So the Keohane majority opinion reasoned that what Thomas
unambiguously said “cannot possibly be what we’ve meant[.]” Id. That language
from Keohane, in and of itself, gives up the game and implicitly concedes that the
Keohane majority opinion did not follow Thomas.
III.
Under our prior-precedent rule, it was not up to the Keohane panel to
reimagine the meaning of Thomas’s unmistakable language holding that the clearly
erroneous standard of review applies to the second and third components of the
subjective inquiry. The Keohane panel was bound by Thomas, whether it agreed
with it or not and whether it found Thomas’s standard of review to be consistent with
“meaningful appellate review” or not. Id. If the Keohane panel had a problem with
the standard of review that Thomas requires, as Judge Wilson pointed out in his
Keohane dissent, 952 F.3d at 1292 (Wilson, J., dissenting), its only option under the
prior-precedent rule was to apply the Thomas standards and call for en banc review.
There was no option to recast Thomas as having held that de novo review applies
when Thomas in fact and unmistakably held that clearly erroneous review governs.
Because the Keohane panel’s holding on the applicable standards of review
conflicts directly with the Thomas panel’s, the Keohane panel introduced conflict in
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our precedent. Under our earliest-precedent rule, “[w]hen we have conflicting
[precedents], we follow our oldest precedent.” CSX Transp., Inc. v. Gen. Mills, Inc.,
846 F.3d 1333, 1338 (11th Cir. 2017) (citation and internal quotation marks
omitted). So the earliest-precedent rule requires later panels and district courts to
follow Thomas. But because Keohane claims to be consistent with Thomas,
Keohane purports to render the earliest-precedent rule inapplicable. To do that,
though, it violates the prior-precedent rule by failing to abide by Thomas’s true
holding imposing the clearly erroneous standard of review and by instead pretending
that Thomas sanctioned the de novo standard of review when it demonstrably did
not.
Ultimately, our refusal to hear Keohane en banc creates a mess with respect
to the current state of the law concerning the correct standards of review governing
the components of the subjective inquiry on an Eighth Amendment deliberate-
indifference claim: should district courts and later panels follow Thomas, as our
prior-precedent rule requires, or should they follow Keohane, which holds the
opposite of Thomas while claiming to have followed it?
But the real problem is that our refusal to hear Keohane en banc sows
uncertainty as to the meaning and strength of our prior-precedent rule. This may be
no big deal to the W. Pryor Opinion (though that opinion never tells us why). But
as I have noted, see supra at Section I, for good reason, we as a Court have
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historically viewed anything that erodes the prior-precedent rule as a critical threat
to the stability and predictability of the law. See Smith, 236 F.3d at 1303; see also
Steele, 147 F.3d at 1317-18. Keohane’s rogue interpretation of the prior-precedent
rule certainly qualifies as such a threat.
If we are willing to accept Keohane as compliant with our prior-precedent
rule, then our prior precedent means only what the last panel to have reconstrued
what the deciding panel held says it means—no matter how inconsistent the most
recent panel’s interpretation may be with what the deciding panel actually held. As
a result, the practical effect is that no later panel will be bound by anything an earlier
panel said.
For these reasons, regardless of what any individual judge on this Court
believes the correct standard of review here to be, a bigger issue is at stake: the rule
of law imposes an obligation to rehear Keohane en banc and reaffirm our
“emphatic[ally]” strict adherence to the prior-precedent rule. See Steele, 147 F.3d
at 1318 (citation omitted). Then, if a majority of judges on the Court thinks Thomas
got it wrong, the Court can say so and change our precedent. 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.
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By any recognized measure, Keohane demands en banc review. We must do
better in the future.
46