[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14117

________________________ D.C. Docket No. 1:12

- cv - 22958

- PAS

UNITED STATES OF AMERICA , Plaintiff

- Appell ee ,
versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS , FLORIDA DEPARTMENT OF CORRECTIONS Defendant s - Appell ant s .

_______________ _________ 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.

Case: 15-14117 Date Filed: 07/14/2016 Page: 1 of 152 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 t he United States sued the Secretary to com pel the Department to provide kosher meals, but before the entry of an injunction, the Secretary voluntarily cr eated a r eligious d iet
p rogram. Even so , the Secretary continue s to insist that th e 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 Flo rida 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,

Case: 15-14117 Date Filed: 07/14/2016 Page: 2 of 153 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, t he Civil Rights Division concluded that the D epartment of Corrections was violating the Religious Land Use and Institutionalized Persons
Act and asked the Secretary to comply . The Secretary refused, and t he United States sued for declaratory and injunctive relief in August 2012

. In March 2013, the Secretary issued Procedure 503.006, which created a

r eligious d iet p rogram. The p rogram offer ed inmates three choices : the existing

non - meat option, the existing vegan option, and a new kosher c ertified f ood o ption for inmates for whom “no other meal opt ion offered by the Department .

. . is capable of meeting the diet requirements of that inmate’s professed religious fa ith.” The c ertified f ood o ption initially used “nationally recognized, religiously certified prepackaged processed foods. ” In October 201 3, the Secretary revised the

c ertified fo od o ption to allow “a standardized menu prepared in accordance with

Case: 15-14117 Date Filed: 07/14/2016 Page: 3 of 154 religious dietary guidelines in a dedicated work area established exclusively for preparation of certified food option meals.” In February 2014, th e Secretary again revised the c ertified f ood o ption to allow “meals utilizing food items served in their natural state.” T he c ertified f ood o ption now consists of peanut butter, cereal, bread, sardines, cabbage, beans, carrots, crackers, and “an occ asional piece of fruit, ” all served cold. The r eligious d iet p rogram initially had several policies that limited admission and continued participation . T he application tested prisoners’ sincerity by asking them to cite “specific law(s) connected to your belief o r faith that require(s) you to eat a relig ious 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 t he 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 r eligious d iet p rogram, but he would have to eat from the mainline during t he grievance process, which could last up to 30 days. In April 2013, t he United States moved for a preliminary injunction ordering the Secretary to provide a certified kosher diet to all inmates with a sincere

Case: 15-14117 Date Filed: 07/14/2016 Page: 4 of 155 religious basis for keeping kosher. The United States also asked the district court to enjoin the r eligious d iet p rogram to the extent that it violated the Religious Land Use and Institutionalized Persons Act

. In December 2013, t he 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 distr ict 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, 12 28

– 30 (11th Cir. 2015). Meanwhile, the Department continued to imp lement the r eligious d iet
p rogram. The c ertified f ood o ption 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 reli gious beliefs tire d of the repetitive and cold meals. Enforcement of the modified rules limiting participation in the p rogram has been uneven. A food director employed by the Department testified that enrolled

Case: 15-14117 Date Filed: 07/14/2016 Page: 5 of 156 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 par ticipating 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 p rogram. The United States estimates a future annual cost of $384, 4 00 for the
program , but the Sec retary 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 eq uipment assigned to both the p rogram and the mainline. Assuming that no prisoners skip meals , the c ertified f ood o ption 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 d ay, and the medical and therapeutic diets cost between $2.00 and $3.05 per prisoner per day. P articipants in the mainline option eat 85 percent of their meals , and participants in the c ertified f ood Case: 15-14117 Date Filed: 07/14/2016 Page: 6 of 157 o ption 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, t he chief procurement officer f or the Department testified th at 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 p rogram without additional appropriations . The Department can freeze hiring and restrict non essential travel by staff. T he 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. T he district court granted summary judgment a nd 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 fo r keeping kosher.” It defines “kosher diet” as “food prepared consistent with the requirements recognized by a religious authority qualified to determine whether

Case: 15-14117 Date Filed: 07/14/2016 Page: 7 of 158 food is kosher,” and it requires all food to be “handled and prepared” in accordance with Proc edure 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 approp riate “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 Institutio nalized 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

Case: 15-14117 Date Filed: 07/14/2016 Page: 8 of 159 governmental interest.” 42 U.S.C. § 2000cc

- 1(a). The Sec retary concedes that the United States met its burden of proving that t he 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 res trictive 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 pr oviding 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 (2 015) (alteration in original) (quoting Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751, 2779 (2014) ) . “[P]olicies grounded on

Case: 15-14117 Date Filed: 07/14/2016 Page: 9 of 1510 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 con cerning how other operations of the prison system would be af fected by these increased costs , ” Garner v. Kennedy , 7 13 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 t he 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 insuffi cient record in this appeal. T he 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 significant ly 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

Case: 15-14117 Date Filed: 07/14/2016 Page: 10 of 1511 searching male inmates’ long hair.” Id. Two witnesses testified that “ long hair had concealed male inm ates’ 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 prom otes order and discipline while removing a physical characteristic that inmates can use to form gangs.” Id. at 944

– 45. Unlike the Alabama Department, t he 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 p rogram was “ sustainable

. . . going forward

. ” The Secretary also fails to explain how she ha s 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 l eaves 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

Case: 15-14117 Date Filed: 07/14/2016 Page: 11 of 1512 concu rring in the judgment)). T he 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. O ur Circuit has “recognize[d] that the fact that Florida formulate d 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 t he 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 tha t accepted a transfer to [a certain prison].” Moussazadeh , 703 F.3d at 794

– 95. To be sure,

c hanging 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 evident iary burden by shifting the blame to limited a ppropriations from the Florida L egislature, 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 a ppropriate 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 argu ment is but another formulation of

Case: 15-14117 Date Filed: 07/14/2016 Page: 12 of 1513 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 Espi rita Beneficente Uni ao d o Vegetal , 546 U.S. 418, 436 (2006)). T he 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[] ” “ c osts,” Davila v. Gladden , 777 F.3d 1198, 1206 (11th Cir. 2015) , we must affirm the summary judgment against her

. B. Even if the Secretary Ha d a Compelling Governmental Interest, She Has Not Prove d T hat Denying Kosher Meals I s the Least Restrictive Means of Furthering T hat Interest. The Secretary also has failed to create a genuine dispute of material fact about narrow tailoring. “‘The least

- restrictive

- means standard is exceptionally demandi ng,’ 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

Case: 15-14117 Date Filed: 07/14/2016 Page: 13 of 1514 religion by the objecting part[y].’” Holt , 135 S. Ct. at 864 (alteration s 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 ex plain 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 i t must take a different course

. . . . ” Id. at 866. In Rich , we reversed the summary judgment for the Secretary in an other 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 ins titutions 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 narrowe r 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

Case: 15-14117 Date Filed: 07/14/2016 Page: 14 of 1515 alternative of enforcing rules that limit acces s to , and c ontinued participation in, the p rogram 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 p rogram , and t he Secretary does not contest that evidence. S he instead responds that enforcing the ru les would be too time

intensive

. B ut 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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