[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14117

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D.C. Docket No. 1:12-cv-22958-PAS

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

FLORIDA DEPARTMENT OF CORRECTIONS

 Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_______________________

(July 14, 2016)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and STORY,*

District Judge.

WILLIAM PRYOR, Circuit Judge: 

 

* Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,

sitting by designation.

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This appeal requires us to decide whether the Religious Land Use and 

Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., prevents the Secretary of 

the Florida Department of Corrections from denying kosher meals to inmates 

whose sincere religious beliefs require them to keep kosher. After the United States 

sued the Secretary to compel the Department to provide kosher meals, but before 

the entry of an injunction, the Secretary voluntarily created a religious diet 

program. Even so, the Secretary continues to insist that the Department need not

provide kosher meals because denying them is the least restrictive means of 

furthering a compelling governmental interest in containing costs. But the 

Secretary’s argument lacks any support in the record. We affirm the summary 

judgment for the United States and the permanent injunction requiring the 

Secretary to provide kosher meals to the inmates.

I. BACKGROUND

Since the 1990s, the Florida Department of Corrections has offered inmates 

regular meals, meatless meals, and vegan meals. It began offering kosher meals in 

2004, but it stopped in 2007. It resumed offering kosher meals in 2010, but only as 

part of a pilot program at one facility.

In 2011, the Civil Rights Division of the United States Department of Justice 

opened an investigation into the denial of kosher food by the Department of 

Corrections. At the time, the Department of Corrections offered regular, vegan, 

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meatless, medical, and therapeutic options to prisoners outside of the pilot 

program. None of these diets satisfied the most orthodox version of the laws of 

kashrut, which prohibit certain food, such as pork, and “demand that food be 

stored, prepared, and served in a certain manner.” Moussazadeh v. Tex. Dep’t of 

Criminal Justice, 703 F.3d 781, 786 (5th Cir. 2012). The only choice for prisoners 

outside the pilot program with these religious obligations was, in the words of one 

prisoner, to “d[o] what a hungry man does, and pray[] for understanding.” 

In 2012, the Civil Rights Division concluded that the Department of 

Corrections was violating the Religious Land Use and Institutionalized Persons 

Act and asked the Secretary to comply. The Secretary refused, and the United 

States sued for declaratory and injunctive relief in August 2012. 

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

religious diet program. The program offered inmates three choices: the existing 

non-meat option, the existing vegan option, and a new kosher certified food option 

for inmates for whom “no other meal option offered by the Department . . . is 

capable of meeting the diet requirements of that inmate’s professed religious 

faith.”

The certified food option initially used “nationally recognized, religiously 

certified prepackaged processed foods.” In October 2013, the Secretary revised the 

certified food option to allow “a standardized menu prepared in accordance with 

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religious dietary guidelines in a dedicated work area established exclusively for 

preparation of certified food option meals.” In February 2014, the Secretary again 

revised the certified food option to allow “meals utilizing food items served in their 

natural state.” The certified food option now consists of peanut butter, cereal, 

bread, sardines, cabbage, beans, carrots, crackers, and “an occasional piece of 

fruit,” all served cold.

The religious diet program initially had several policies that limited 

admission and continued participation. The application tested prisoners’ sincerity 

by asking them to cite “specific law(s) connected to your belief or faith that 

require(s) you to eat a religious diet” and by creating a waiting period for 

admission to the Program. The rules provided for the removal of an inmate “who 

misses ten percent (10%) or more of her/his CFO meals within a month” (the tenpercent rule), who “is discovered purchasing, possessing, or consuming food from 

the canteen or other source that violates the religious diet requirements” (the zerotolerance rule), or who barters kosher food for non-kosher food (the anti-bartering 

rule). A prisoner could challenge his removal from the religious diet program, but 

he would have to eat from the mainline during the grievance process, which could

last up to 30 days. 

In April 2013, the United States moved for a preliminary injunction ordering 

the Secretary to provide a certified kosher diet to all inmates with a sincere 

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religious basis for keeping kosher. The United States also asked the district court to 

enjoin the religious diet program to the extent that it violated the Religious Land 

Use and Institutionalized Persons Act. 

In December 2013, the district court entered a preliminary injunction that 

ordered the Secretary to provide kosher meals. The district court also prohibited 

enforcement of the waiting period, the doctrinal sincerity testing, the ten-percent 

rule, and the zero-tolerance rule. The parties and the district court later agreed to 

modified versions of the ten-percent rule and the zero-tolerance rule. We vacated 

the injunction in 2015 because the district court failed to make certain findings 

required by the Prison Litigation Reform Act. See United States v. Sec’y, Fla. 

Dep’t of Corr., 778 F.3d 1223, 1228–30 (11th Cir. 2015).

Meanwhile, the Department continued to implement the religious diet 

program. The certified food option began at one facility in July 2013, and the 

Department provided the option at all facilities by April 2015. As of March 2015, 

the Department had approved 9,543 prisoners out of a total population of over 

100,000. But participation rates at individual institutions declined over time, in part 

because prisoners without sincere religious beliefs tired of the repetitive and cold 

meals. 

Enforcement of the modified rules limiting participation in the program has 

been uneven. A food director employed by the Department testified that enrolled 

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prisoners collected only 15 percent of their kosher meals overall one month, but 

the food director also testified that he was unaware of any prisoners being removed 

for eating from the mainline. A chaplain employed by the Department testified that 

he helps prisoners identify religious reasons for participating and that he has not 

suspended or removed prisoners for eating non-kosher food from the canteen. The 

chaplaincy administrator testified that he instructed chaplains not to remove 

prisoners who eat from the mainline and that he had no knowledge of such a 

removal. And a food service worker employed by the Department testified that the 

central office instructed him to stop suspending prisoners from the program. 

The United States estimates a future annual cost of $384,400 for the 

program, but the Secretary estimates a future annual cost as high as $12.3 million. 

The United States uses a lower estimate of how many prisoners will participate and 

how often prisoners will skip meals. The parties also disagree about how to 

allocate the cost of staff and equipment assigned to both the program and the 

mainline. 

Assuming that no prisoners skip meals, the certified food option costs $3.55 

per prisoner per day, the mainline option costs $1.89 per prisoner per day, the 

vegan option costs $2.04 per prisoner per day, and the medical and therapeutic 

diets cost between $2.00 and $3.05 per prisoner per day. Participants in the 

mainline option eat 85 percent of their meals, and participants in the certified food 

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option eat 75 percent of their meals. The Department reduces its cost for the 

mainline option by anticipating how many meals prisoners will eat, and it further 

reduces the cost of the mainline meal by using its farm produce program and 

reusing leftover food. In his deposition, the chief procurement officer for the 

Department testified that the cost of the program was sustainable. 

In 2014–15, the total budget of the Department was $2.3 billion. The 

operating budget was $2.2 billion, including $54 million for food. The Department 

carried over a deficit of $15 million. 

The parties agree that the Department has some budgetary tools that it can 

use to pay for at least part of the religious diet program without additional 

appropriations. The Department can freeze hiring and restrict nonessential travel 

by staff. The budget director also can transfer money from one program to another, 

but the amount that he can transfer is limited. 

After we remanded the case in 2015, the parties filed cross motions for 

summary judgment. The district court granted summary judgment and entered a 

permanent injunction for the United States on the denial of kosher meals, the tenpercent rule, and the zero-tolerance rule. The injunction requires the Secretary “to 

offer a kosher diet . . . to all prisoners with a sincere religious basis for keeping 

kosher.” It defines “kosher diet” as “food prepared consistent with the 

requirements recognized by a religious authority qualified to determine whether 

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food is kosher,” and it requires all food to be “handled and prepared” in accordance 

with Procedure 503.006. The district court also granted summary judgment for the 

Secretary on the doctrinal sincerity testing and the anti-bartering policy. The 

Secretary appealed only the permanent injunction requiring the provision of kosher 

food. 

II. STANDARD OF REVIEW

We review a summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in its 

favor. Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). Summary 

judgment is appropriate “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a).

III. DISCUSSION

The only issue on appeal is whether the Religious Land Use and 

Institutionalized Persons Act requires the Secretary to accommodate inmates with 

a sincere religious basis for keeping kosher. The Act provides that “[n]o 

government shall impose a substantial burden on the religious exercise” of an 

institutionalized person “unless the government demonstrates that imposition of the 

burden on that person” is both “in furtherance of a compelling governmental 

interest” and “the least restrictive means of furthering that compelling 

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governmental interest.” 42 U.S.C. § 2000cc-1(a). The Secretary concedes that the 

United States met its burden of proving that the denial of kosher meals is “a 

substantial burden on the religious exercise” of a prisoner in the custody of the 

Secretary. Id. As a result, the Secretary had to prove that the denial of kosher meals 

is “the least restrictive means” of furthering a compelling governmental interest. 

Id.

The Secretary argues that Florida has a compelling interest in cost 

containment and that the complete denial of kosher meals is the least restrictive 

means of furthering that interest. We disagree on both counts. We address each 

argument in turn.

A. The Secretary Has Not Proved a Compelling Governmental Interest.

The Secretary failed to create a genuine dispute of material fact that the cost 

of providing kosher meals is so high that it is compelling. Congress has stated that 

the Act “may require a government to incur expenses in its own operations to 

avoid imposing a substantial burden on religious exercise.” Id. § 2000cc-3(c). The 

Act “requires us to ‘“scrutiniz[e] the asserted harm of granting specific exemptions 

to particular religious claimants”’ and ‘to look to the marginal interest in 

enforcing’ the challenged government action in that particular context.” Holt v. 

Hobbs, 135 S. Ct. 853, 863 (2015) (alteration in original) (quoting Burwell v. 

Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)). “[P]olicies grounded on 

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mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to 

meet the [A]ct’s requirements.” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525,

533 (11th Cir. 2013) (quoting Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 

1996)).

The evidence offered by the Secretary is insufficient to survive summary 

judgment. She argues that the projected total cost for the meals is high, that the 

Department has a budget deficit, that she might have to eliminate 246 positions to 

pay for the meals, and that staff vacancies are high. But the Secretary offers no

“concrete evidence concerning how other operations of the prison system would be 

affected by these increased costs,” Garner v. Kennedy, 713 F.3d 237, 246 (5th Cir. 

2013), and we do not have enough information about the deficit or the vacancies to 

conclude that they might make the asserted interest compelling. 

In Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015), the Alabama 

Department of Corrections met its burden of proof to justify a prohibition on 

beards, and the sufficiency of the record in Knight makes apparent the insufficient 

record in this appeal. The Alabama Department presented testimony about 

“specific incidents in which male inmates had used long hair to conceal weapons 

and contraband, as well as a situation in which a male inmate had cut his long hair 

to significantly change his appearance after a successful escape.” Id. at 944. The 

same witness testified that “prison staff have cut their hands on hidden razors when 

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searching male inmates’ long hair.” Id. Two witnesses testified that “long hair had 

concealed male inmates’ fungus outbreaks, sores, cysts, and tumors, and even a 

spider’s nest.” Id. And witnesses offered “credible opinions, based on decades of 

combined correctional experience, that inmates can grab long hair during fights, 

long hair impedes the ability of prison staff to readily identify inmates inside the 

prison, and an exceptionless short-hair policy promotes order and discipline while 

removing a physical characteristic that inmates can use to form gangs.” Id. at 944–

45.

Unlike the Alabama Department, the Secretary fails to explain how the 

denial of kosher food furthers an interest in containing costs. She failed to compile 

anything like the record in Knight, and indeed the chief procurement officer for the 

Department testified to the contrary that the cost of the program was “sustainable

. . . going forward.”

The Secretary also fails to explain how she has a compelling governmental 

interest in not providing kosher meals to inmates now even though she voluntarily 

provided them in 2013. “[A] law cannot be regarded as protecting an interest ‘of 

the highest order’”—a compelling governmental interest—“when it leaves 

appreciable damage to that supposedly vital interest unprohibited.” Church of the 

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quoting 

Fla. Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J., concurring in part and 

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concurring in the judgment)). The creation of a program to serve kosher meals 

causes as much damage to the supposedly vital interest in not serving kosher meals 

as one could possibly appreciate. Our Circuit has “recognize[d] that the fact that 

Florida formulated a new kosher meal plan may be relevant to the question of 

whether a policy of not providing kosher meals is the least restrictive alternative to 

further a compelling interest.” Rich, 716 F.3d at 531 n.5. And the Fifth Circuit has 

stated that the strength of a state’s interest in denying kosher food “is dampened by 

the fact that it has been offering kosher meals to prisoners for more than two years 

and provides them at no cost to all observant Jewish inmates that accepted a 

transfer to [a certain prison].” Moussazadeh, 703 F.3d at 794–95. To be sure, 

changing circumstances can make an interest more compelling than it was before, 

but the Secretary has made no such showing. 

The Secretary tries to avoid her evidentiary burden by shifting the blame to 

limited appropriations from the Florida Legislature, but the Act does not 

distinguish between parts of the government. See 42 U.S.C. § 2000cc-1(a). If the 

Secretary must provide kosher meals, then the legislature must appropriate enough

funds to honor that obligation. 

The Secretary also argues that costs will increase if the Department provides 

kosher meals because other inmates will seek their own accommodations, but this 

argument is a nonstarter. “At bottom, this argument is but another formulation of 

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the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for 

you, I’ll have to make one for everybody, so no exceptions.’” Holt, 135 S. Ct. at 

866 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 

U.S. 418, 436 (2006)). The Supreme Court rejected this argument in Holt, and we 

do too. 

Finally, the Secretary argues that the Federal Bureau of Prisons has denied 

kosher meals on the ground of cost, but it is mistaken. The Federal Bureau of 

Prisons instead has opposed efforts to modify the kosher diet because the kosher 

meal “[i]s the strictest diet and subsume[s] all other religious dietary needs.” Patel 

v. U.S. Bureau of Prisons, 515 F.3d 807, 810 (8th Cir. 2008). Because the 

Secretary failed to do more than “simply utter the magic word[]” “costs,” Davila v. 

Gladden, 777 F.3d 1198, 1206 (11th Cir. 2015), we must affirm the summary 

judgment against her.

B. Even if the Secretary Had a Compelling Governmental Interest, She Has 

Not Proved That Denying Kosher Meals Is the Least Restrictive Means of 

Furthering That Interest.

The Secretary also has failed to create a genuine dispute of material fact 

about narrow tailoring. “‘The least-restrictive-means standard is exceptionally 

demanding,’ and it requires the government to ‘sho[w] that it lacks other means of 

achieving its desired goal without imposing a substantial burden on the exercise of 

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religion by the objecting part[y].’” Holt, 135 S. Ct. at 864 (alterations in original) 

(quoting Hobby Lobby, 134 S. Ct. at 2780).

The Secretary argues that denying a kosher diet statewide is the least 

restrictive means of furthering Florida’s interest in cost containment, but she fails 

to rebut three arguments to the contrary. First, she fails to explain why the 

Department cannot offer kosher meals when the Federal Bureau of Prisons and 

other states do so. “[W]hen so many prisons offer an accommodation, a prison 

must, at a minimum, offer persuasive reasons why it believes that it must take a 

different course . . . .” Id.at 866. In Rich, we reversed the summary judgment for 

the Secretary in another action challenging the denial of kosher food in part 

because of “meager efforts to explain why Florida’s prisons are so different from 

the penal institutions that now provide kosher meals such that the plans adopted by 

those other institutions would not work in Florida.” 716 F.3d at 534. The Secretary

does no better in this appeal. Second, the Secretary fails to explain why the 

Department cannot offer kosher meals when it offers vegan, medical, and 

therapeutic diets at similar marginal costs. “‘[T]he proffered objective[] [is] not 

pursued with respect to analogous nonreligious conduct,’ which suggests that ‘th[e] 

interest[] could be achieved by narrower ordinances that burdened religion to a far 

lesser degree.’” Holt, 135 S. Ct. at 866 (quoting Church of the Lukumi Babalu Aye, 

508 U.S. at 546). Third, the Secretary fails to explain why the less restrictive 

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alternative of enforcing rules that limit access to, and continued participation in, 

the program would not further her stated interest. The United States produced

evidence that the Department is not screening out insincere applicants or enforcing 

the rules of participation in the program, and the Secretary does not contest that 

evidence. She instead responds that enforcing the rules would be too timeintensive. But she fails to cite any evidence or explain why it would be too timeintensive, 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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