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Case number 25-1599, Ed Al.

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Jane Doe Ed Al versus Pamela Bondi in her official capacity as Attorney General of the United States, and William K. Markle III in his official capacity as Director of the Federal Bureau of Prisons and Appellants.

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Mr. Hayes for the Appellants, Ms.

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Levi for the Appellees.

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Good morning, Council.

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Mr. Hayes, please proceed when you're ready.

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Good morning, Your Honors.

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May it please the Court, Benjamin Hayes for the Appellants.

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If I could, I'd like to reserve three minutes for rebuttal.

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The President issued Executive Order 14168 with the goal of protecting the dignity, well-being, and safety of women, including by ensuring that males do not invade the intimate single-sex spaces of women.

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The Constitution indisputably allows the Bureau of Prisons to house males with males and females with females, and nothing in the Eighth Amendment requires the government to treat these plaintiffs

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any differently than the 1,400 other plus trans-identifying men already housed in male facilities.

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That is especially true here, given the extensive efforts of the Bureau that the Bureau has taken applying its expertise in this area to minimize the risk of harm to plaintiffs in the facilities that have been designated for them.

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The Constitution requires nothing more.

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So if I could, I'd like to start with

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there are two threshold PLRA questions, and then move to the merits.

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So of those two, there is the judicial review bar, and then there's the exhaustion bar.

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The judicial review bar says, notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.

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From our perspective, that is categorical, is all encompassing, and it does not admit of any exceptions, including

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an exception for as-applied constitutional claims, which is what the district court held.

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And there are a number of court of appeals cases, the Willis case from the 10th Circuit, for example, which agree with us on that.

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If you were to disagree with us on the judicial review bar.

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Can I ask you a question about that one first before you go to exhaustion?

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On that one, the bar speaks in terms of

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a designation of a place of imprisonment under this section.

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And what I'm wondering is, that means a designation of a place of imprisonment under the section that gives the BOP the obligation to designate a place.

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And so if the challenge is to something that comes before the BOP makes a designation, because as I understand this,

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that it wasn't the BOP that came up with this rule.

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It was the executive order.

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The president came up with the rule by executive order.

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And of course, that decision is implemented through the BOP.

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But does the bar apply in a circumstance in which the challenge isn't actually to the designation under this section in that it's a decision made by the BOP under this section, it's to a decision

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That the BOP has to implement comes before the BOP exercises.

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I mean, so it is just as initial matter is little unclear with respect to exactly how plaintiffs are approaching this because in the context of this this issue.

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They want to say they're challenged against the broad policy.

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In the context of the eighth amendment claim, they would say, no, no, no, we're perfectly fine with that.

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Generally, it's just specific to us.

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So it's a little hard to get it.

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Let's assume for these purposes, it's to the policy.

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Focus on this.

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Well, I think, first of all, there are designations right now.

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Those have been made.

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And so I do think it's somewhat artificial to say that the challenge would only be to the policy, even though we have right now designations in place.

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In one situation, you may be totally right about what the state of affairs now, but at least in one situation in the appendix, and I can try to find it, but there was a discussion of somebody as to whom no designation could have been made because it wasn't even clear to which facility they would be assigned.

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So I think for maybe two, that might be true.

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And I think there was maybe two for whom there were designations put on hold.

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There's another one, I believe, who was in a halfway house.

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And so it's not going to be moved regardless.

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So just for purposes of understanding focusing on that, I think it counts as a designation for this reason, because a challenge to the in this case,

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The it obviously would apply to a designation to a facility.

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We understand we agree with that.

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But I think that the key here is that the policy a challenge to the policy, the EO and invalidating policy has the effect is no different than a challenge to the designations.

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It would mean that they cannot go into effect.

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So that's different than the context in the McNary case, for example, that they cite.

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That case was talking about a background policy which might influence a determination.

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This didn't have to do with the BOP, but a determination as to an individual's eligibility for a program.

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And invalidating that policy didn't determine the underlying individual designation.

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Didn't affect that at all.

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It could go one way or the other.

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Here where they're challenging the policy, and if they prevail on that, that means these designations are invalid.

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So I don't think there's really the daylight that might otherwise exist in the context where there's a challenge to a policy, but there's individual designations.

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I don't think that's at play here.

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Wait, I'm not following that.

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You said McNary doesn't involve individual decisions?

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No, what I'm saying is McNary involved, I think, with a pattern of practice challenge to a way that the INS was managing a particular program.

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There were individual eligibility decisions made, but the point there was that a challenge

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to the background policy didn't necessarily change the determination for the individual.

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The INS could have reached the exact same determination.

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It just meant you need to look at the individual and see if they're eligible without this background unlawful thing happening.

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So in other words, it didn't.

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With the background, I'm not sure that I'm following how that helps you.

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The background unlawful, what the court said in McNary was,

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with the special agricultural workers, they could not get review of a determination respecting an application.

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And the Supreme Court held that that precluded review of individual decisions because of the

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Right.

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The language of it, but not a challenge to quote a group of decisions or a practice or procedure employed in making decisions, which to my mind sounds just like what the plaintiffs here are challenging.

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And your distinction of that is?

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So the reason I think it's different is because here, if they succeed on the challenge to the background policy, EO,

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that invalidates, necessarily invalidates, the underlying designations.

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If that would have to follow from it, that's not true in McNary, right?

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Well, it would invalidate the individual determinations to the extent that they rested on it, and then they could be remade, presumably.

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In McNary, the same ones, yes, the same ones could be.

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Here, not true.

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But that's neither here nor there with respect to the applicability of the jurisdiction.

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OK.

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Well, that was why I thought McNair was different.

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But if you disagree and think the judicial review bar doesn't apply to here, we still have the exhaustion bar that is written in the statute.

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This is written in the statute.

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The Supreme Court has said that it is mandatory and doesn't have any extra textual

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exceptions.

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And that review bar, the Supreme Court has said, applies so long as there are administrative remedies that are available.

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And the court in Booth explained what availability means.

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But can I just ask you on this one?

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This is where I'm coming to on this when you tell me what's wrong with thinking about it this way.

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It seems to me that whether the exhaustion bar has the dead end possibility, which means that then you don't have to exhaust if it's dead end.

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Everybody agrees on that, right?

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So it turns entirely on the way the substantive claim is framed.

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And so if the substantive claim is framed to say that there's nothing that could be done in a male facility that would alleviate the constitutional injury, there's just nothing, then it seems to me that exhaustion is by definition a dead end.

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Now that has consequences for the substantive claim, because then as you

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as you raised with respect to the other bar too.

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The way you frame the substantive claim matters for the merits.

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But for purposes of exhaustion, if the substantive claim is, look, there's just nothing that can be done at a male facility to alleviate what I assert is my constitutional injury,

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And at that point, it does seem like exhaustion, by definition, is a dead end, even though you could say, well, there's things that could be done in a male facility that would, in our view, alleviate the injury.

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But if the claimant says, no, no, you don't understand.

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My claim is that, by definition, just being in a male facility is itself a constitutional injury.

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Then isn't exhaustion a dead end?

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I don't think so, Your Honor.

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And I don't think exhaustion, the way I've

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I don't think exhaustion requires that the administrative process be able to fully ameliorate the constitutional violation.

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That's what I take from Booth saying some relief.

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Booth says it doesn't matter if you can't get the exact relief.

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So the relief the plaintiffs here seek.

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is halting these transfers.

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And that's the rationale of the district court.

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And the BOP certainly doesn't have discretion to do that.

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I think the difference is that I understand what you're saying about Booth.

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I think the difference is it's true that that's the relief they seek, but it's also the claim that they're making, which is that that's what's different from Booth.

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is that it doesn't alleviate.

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It's not just that it's not the relief we seek.

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It's that the claim we're making is that being in a male facility, period, is a constitutional violation.

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Now, you may respond and say, well, OK, well, that makes your constitutional claim on the mayor.

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It's tougher.

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And that may well be right.

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But in terms for exhaustion purposes, it just seems to me it's like the case that we had about DNA.

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If the claim in DNA were, in that case involving DNA, were that I'm worried about what you might do with the DNA sample,

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then there could have been some exhaustion because it could have been, well, let's figure out what we're going to do with it.

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But the claim was, you don't understand.

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It's a violation of my religion rights to take the DNA sample period.

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At that point, there's just nothing that can be done with exhaustion.

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And it seems like that to me.

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So I agree that that's the reason.

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I understand that was the case in that case.

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Here's why I think it's different.

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Because regardless of how they're framing their claim, they're still bringing an Eighth Amendment claim.

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And that has elements.

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That is a substantial risk of serious harm, which is objectively intolerable.

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So the question is, regardless of what their theory is about it and what they think will satisfy it or not, that's the claim.

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And so it's just a question of how much risk.

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And so that's why I think it is different, because there is something they can get from the administrative process which will reduce that risk.

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It may not be everything they want.

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Some relief doesn't require that.

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Not only that, but this is

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correct that each facility that houses whether men or women has to go through audits now on the prison rape statute?

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There are extensive procedures that they have to go through, both when individuals are- And there are audit reports that come out with respect to the compliance of the particular prisoner facility that has all kinds of- I've read some of these.

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I mean, all kinds of details about what

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is being done or what should be done and so on and so forth.

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And it would seem to me that the question of harm by being transferred may well depend on a number of factors, not the least of which is what the facility is that they're getting transferred to, what it's done.

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with respect to that prison rape statute.

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So I agree with that.

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It depends on.

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We don't know.

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I can't find.

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Maybe it's in the record.

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But do we know from this record what prison they were going to go to?

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Yes.

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We do.

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Yes.

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Do we know what crime they were imprisoned for?

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I believe as to one, yes, as to others, no.

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One said it was not a crime of violence.

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Right.

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I don't think the record reveals the crimes.

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But the record does show which male facilities, each of the, with the exception of those who have been put on hold, are destined for.

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So I think I've said what I was going to do until that.

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I want to, before you run out of time, I have a couple of questions I want to ask you.

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The first is that I wonder whether yanking somebody out of the women's prison immediately

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is in compliance with the executive order.

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And here's why.

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The way I read it, if I can find it, is section four, it says the attorney general and secretary shall ensure that males are not detained in women's prisons, et cetera, et cetera, but then,

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in sub B of section eight, it says, this order shall be implemented consistent with applicable law.

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The regulations are applicable law, and particularly 115.42,

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says that before you transfer anybody, you've got to go through a whole series of steps with respect to ensuring their safety.

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And from the record we see here, I don't see those steps have been made at all.

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It's just come with me.

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We're transferring you.

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So how is the transfer consistent with applicable law?

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If it's not, then it's not consistent with the

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executive order.

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Well, so I believe in the

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There were several declaration submitted by Mr. Stover in both the Jones and the Doe litigation, which identify that each one of these individuals was given a holistic assessment when it came to which facility to move them and which one to move them to.

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So there was a holistic assessment made as to each of them.

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Now, I don't know that.

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Yeah, I'll take a look at that.

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But before we sit down, let me put this on the table.

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I don't think we have jurisdiction in this case.

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And the reason is because the way the statute's worded, the preliminary injunction has to expire automatically within 90 days, unless it's converted to a final injunction.

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There's an opinion by Judge Chou Flat, I don't know if you're familiar with it, the Georgia advocacy opinion, which goes through the statutory interpretation.

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It's a case that's identical to this case.

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And he holds for the 11th Circuit that they didn't have jurisdiction.

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Another way of framing it is that whether there's been compliance with a preliminary injunction or whether a preliminary injunction should be set aside is moot.

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The case is not moot because you can still go forward with respect to the merits and with a view to a final injunction.

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But that's going to require, it seems to me, evidentiary hearings that clear up a lot of the questions that you've been answering about where the harm is and what prison it is and what offense they committed and so on and so forth.

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As I understand it, and I'll let you respond, I understand that what Judge Lamberth has done is right before the 90 days expire, he has another injunction, another 90 days, and another 90 days.

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I don't think you can do that under the statute.

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That maybe if the situation had changed, that would warrant a new injunction, but he made a specific finding that nothing had changed.

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And so we just reissued, and that seems to me in total defiance of the statute.

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So as I understand it, that is what is being done at the district court in terms of 90 days, and then they are being renewed.

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And I do agree that it is simply just a renewal of the same thing, that nothing has changed.

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And I haven't read that decision, so I really can't comment on it.

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Well, let me give you the citation, if I can find it.

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Oh, here it is.

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It's 4 Fed 4th, 1200.

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And it's a very extensive analysis of the statute we're dealing with here.

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Now, I should add that what happened after Judge Choflat ruled

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is that the parties got together, it was a transfer, and settled the case.

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And so he vacated that opinion.

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I don't know if you can vacate opinions, you can vacate judgments, but he did.

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Okay.

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And you also, the government hasn't taken the position before, I understand.

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I don't believe that we have in the district, we're taking that position.

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I mean, if that's a jurisdictional issue, we'll have to look at that.

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Can I ask you back on exhaustion?

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So I see this in two different ways.

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The way that Ross talks about it is that

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in looking at both, that you're only required to exhaust if the grievance procedure is capable of use to obtain some relief for the action complained of.

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And you and Chief Judge Srinivasan were talking about this just before that.

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And here, the action the plaintiffs complain of is

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BOP's new approach of categorical transfers of all transgender women without regard to their individual characteristics, transferring them all to male facility.

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And if that's what the plaintiffs are complaining of, then there is nothing that BOP can do.

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And I think BOP concedes this in its briefing.

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decline to transfer these transgender women who are now in women's facilities.

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We have to.

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And so if what you're complaining of as a matter of the Eighth Amendment is that decision, we're going to transfer them all, whatever their individual vulnerabilities may be,

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But then, as I read your brief, you say, well, the action complained of is a substantial risk of serious harm from that action, which is part of how they have to argue the Eighth Amendment violation.

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But even accepting that framing,

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then the Bureau says, well, there is some relief that can be given.

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I'm not sure that I, what you point to, that I understand that to be some relief that would be a result of going through exhaustion.

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For example, it's mainly citing to the Stover, one of the Stover declarations, and it points to things like,

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general practices of the Bureau that aren't related to the grievance procedure, that aren't triggered by the grievance procedure, that aren't tailored to the individual as a result of the grievance procedure.

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Just like BOP has commendably programs for training staff, programs for tracking, disciplining, and potentially even prosecuting aggressors against other prisoners.

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That's there whether somebody engages a grievance procedure or not.

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And then the one thing that I see that could be more specific is putting the victim in protective custody in a special housing unit.

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And there, another one of the Stover declarations talks about how that is not something that can be used for any extended period of time.

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It is a very, very restrictive

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kind of confinement.

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And so there may be things.

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And I understand.

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I appreciate your reading of Booth as like it doesn't have to be the full brass ring that the plaintiff wants.

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But if there are things that can come out of it, and Booth is very

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open-ended and says there's value in processes, there's value in exploring things, but I don't see the Bureau as pointing to a single thing that is actually responsive that could come out of it.

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I mean, I think this is, I do take your point about just reference to the PREA regulations.

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Yes, you have to do that screening, but that's not specific to, but here's what is.

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The Bureau has and each facility has

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exceptional discretion when it comes to managing the populations in the facilities.

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So for example, these are low security facilities, and I think there are different layouts as to how they're set up, but there are units.

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And if there's a particular inmate who is a threat, for example, to another one, that can be noticed by the officers in the facility.

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It can be told to them by the potential victim.

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And if it's a problem, they can move that person to a different unit.

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they're on the same work unit for example and there's trouble there they can move them away.

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One of the I believe some of the declarations discussed showering now in the regs there is already in place a requirement that they have separate showers so that's already there but talking about locks on doors or something like that you know I've not been

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They have discretion to take those kinds of steps, which absolutely address the risk of harm.

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And I think maybe it doesn't bring it down to zero.

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But I think that if the risk of harm is 10, pre use of the administrative grievance process, and they bring it down to seven,

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That's still some relief that is being given to the plaintiff, even though all they want.

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But again, Booth says that's not what's required.

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I don't see those things fully spelled out as a result of exhaustion.

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I read pretty carefully the pages of the Stover Declaration in the record that were pointed to.

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But if BOP is not unable, there is a question in the record whether it's consistently unwilling

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to do those things.

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For example, we do have evidence of two of the plaintiffs, I think it was Mary Doe and Jane Doe, who were assaulted in male BOP facilities.

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The BOP was made aware of that.

[00:23:25] Speaker 02:
And then they were assaulted again.

[00:23:28] Speaker 02:
So to the extent that there are these measures, the plaintiffs have put evidence in the record that they are not effectively being used.

[00:23:37] Speaker 02:
We don't have very much information about these plaintiffs being in mail facilities, but to the extent that we do, it's not showing that BOP's awareness

[00:23:49] Speaker 02:
would render the exhaustion something that is worth doing.

[00:23:56] Speaker 02:
And then there's a whole other question about the time that it takes.

[00:24:01] Speaker 02:
If you're one of the, what is it, like 1% of the transgender women that are in BOP custody now that has on an individualized basis under the PREA regulation not been placed

[00:24:17] Speaker 02:
in a male facility.

[00:24:18] Speaker 02:
These are presumably, and I understand your briefing saying it wasn't only based on vulnerability that they weren't placed in male prisons, but surely that is a factor.

[00:24:27] Speaker 02:
And these people are not allowed to sue unless they go through an exhaustion process that has a standard duration of 90 days.

[00:24:38] Speaker 06:
Well, so if I could address that.

[00:24:40] Speaker 06:
So it is true that some of the plaintiffs in their declarations discuss assaults and such in male facilities.

[00:24:48] Speaker 06:
Now, what we have here, a lot of it's unclear as to what male facilities, and it matters because we're talking medium security versus high security versus low security, the risk differential is quite different there.

[00:24:59] Speaker 06:
The two that you might have been referring to, I remember them being Rachel and Ellen, were temporarily moved from their female facilities to the male's facilities and then back as a consequence of the injunction.

[00:25:13] Speaker 06:
And they did not.

[00:25:14] Speaker 06:
I don't remember exactly how many days they were there.

[00:25:16] Speaker 06:
They were not sexually assaulted there.

[00:25:18] Speaker 06:
Now, there was innuendo.

[00:25:19] Speaker 02:
There was harassment.

[00:25:20] Speaker 02:
I was talking about two other women who were assaulted in facilities and then again actually assaulted.

[00:25:27] Speaker 02:
I understand that.

[00:25:29] Speaker 02:
Rachel and Ellen.

[00:25:33] Speaker 02:
But again, I mean, Ellen Doe said, you know, there's no locks on my door.

[00:25:38] Speaker 02:
I can't sleep.

[00:25:39] Speaker 06:
Well, and to your point about the length of the review process, and this is where the Fletcher cage, the plaintiff site is actually quite helpful, because Fletcher is from the Seventh Circuit.

[00:25:51] Speaker 06:
Yeah, yeah.

[00:25:52] Speaker 06:
And so Judge Posner's decision.

[00:25:54] Speaker 06:
And Judge Poser goes through an analysis saying, well, it might be that there is a risk that is so imminent, like right on the doorstep, that no administrative process is swift enough to address, essentially, his point.

[00:26:08] Speaker 06:
But he said that the plaintiff in that case had to exhaust.

[00:26:11] Speaker 06:
Why?

[00:26:11] Speaker 06:
Because the Illinois Department of Corrections had an emergency grievance proceeding in it that would address claims more swiftly.

[00:26:20] Speaker 06:
The plaintiff waited two days, filed suit, and he says, that's not enough.

[00:26:23] Speaker 06:
Here we do have in the regulations an emergency procedure grievance process that can be submitted to the warden and requires a response within three calendar days.

[00:26:34] Speaker 06:
So there are, and that's for situations where there is like an imminent risk to physical bodily harm.

[00:26:39] Speaker 06:
I'm paraphrasing the language.

[00:26:41] Speaker 06:
So my point is there are accommodations or procedures that are not just in 90 days, which I agree that doesn't address something that's very near term.

[00:26:50] Speaker 06:
but there are administrative procedures available to account for what your honor just mentioned in terms of near term issues.

[00:26:59] Speaker 06:
I want to cut you off.

[00:27:01] Speaker 02:
I just wonder if there's anything else in the record other than the

[00:27:08] Speaker 02:
portion of the Stover declaration that's cited in your brief.

[00:27:12] Speaker 02:
I think it's the, your brief at 32 cites JA 308 to 310, which is the first Stover declaration.

[00:27:21] Speaker 02:
It doesn't include anything other than what I view as sort of the background, the OP policies or placement in the special housing unit.

[00:27:31] Speaker 02:
And I take it you don't see the placement in special housing unit as a kind of a durable solution.

[00:27:36] Speaker 02:
You're not going to have these women living in the special.

[00:27:38] Speaker 06:
They are not.

[00:27:39] Speaker 06:
It is a solution for a particularized issue if there is something like someone said they were going to kill me now.

[00:27:45] Speaker 06:
And you could take that quickly but short term.

[00:27:46] Speaker 02:
And you wouldn't be the person who's going to kill you in the special housing unit rather than the potential victim.

[00:27:52] Speaker 06:
I actually don't know.

[00:27:54] Speaker 06:
You could at least put the victim there to keep them separate.

[00:27:58] Speaker 06:
I don't know, actually, whether they could do either one.

[00:28:00] Speaker 06:
I just don't have information.

[00:28:01] Speaker 02:
I mean, it's typically seen as somewhat punitive to be insolitary.

[00:28:04] Speaker 06:
Right, which is why I think the point was made subsequently that this is not a long-term solution to it, because it's not meant to do that.

[00:28:11] Speaker 02:
Yeah, that's your supplemental submission.

[00:28:13] Speaker 06:
Yeah.

[00:28:14] Speaker 02:
And so I don't see individual, you know, that something can be done under both.

[00:28:21] Speaker 06:
So I don't right now remember like a JA site to the kinds of things I just described in terms of just the ability of the facilities to manage the prison populations and keep people separate from one another, which they can do and they do on a regular basis.

[00:28:38] Speaker 06:
And I believe, and I don't remember which plaintiff's declaration mentioned this, recounts an incident where that plaintiff mentioned to a guard, I don't think it was at a prior facility,

[00:28:50] Speaker 06:
someone's causing me a problem, and they decide, and they were able to separate them so that person wasn't housed near that plaintiff.

[00:28:56] Speaker 06:
That is exactly the kind of thing that can be achieved through the administrative process.

[00:29:01] Speaker 04:
I know I'm way over, okay.

[00:29:02] Speaker 04:
I have one more question before you sit down.

[00:29:05] Speaker 04:
Do you view this case as a facial constitutional challenge to an executive order?

[00:29:14] Speaker 06:
Well, I think it partly depends on which part of the case

[00:29:18] Speaker 06:
Talking about so if focused on the eighth amendment arguments that they make the plaintiffs make They their argument is that they are particularly unique.

[00:29:28] Speaker 06:
And so it is only unconstitutional as to them and that they are and as far as I can tell, they are not taking the position that it is unconstitutional.

[00:29:38] Speaker 06:
for all 1,400 other trans-identifying men to be in male facilities.

[00:29:42] Speaker 06:
Now, we don't think, we don't agree with the premise of their position, but just to answer your question directly, I think it isn't.

[00:29:51] Speaker 06:
Their Eighth Amendment claim for getting anything else is phrased as an as-applied challenge.

[00:29:57] Speaker 06:
I know I'm out of time.

[00:29:57] Speaker 06:
Can you talk about the Eighth Amendment issue?

[00:30:00] Speaker 04:
Well, the reason I'm raising that is because whether it's global,

[00:30:05] Speaker 04:
for everybody in their situation, regardless of which prison they're in, or whether it's just confined to the, how many are there, 22?

[00:30:15] Speaker 04:
There are 19 plaintiffs here.

[00:30:18] Speaker 04:
19 plaintiffs in various facilities, or whether it's even confined to them.

[00:30:25] Speaker 04:
The reason I'm asking that question is because it doesn't seem to be specific to their particular circumstances, even if you

[00:30:34] Speaker 04:
narrow the universe to the 19th.

[00:30:37] Speaker 04:
And if that's the case, it's a facial attack.

[00:30:40] Speaker 04:
And if it's a facial attack, under the Supreme Court's decision in Salerno, that you have to go through each one of these individuals to determine whether it would be unconstitutional to put them in immense prison.

[00:30:54] Speaker 04:
You can't do it globally, unless it's unconstitutional with respect to each one, then

[00:31:02] Speaker 04:
The court can't issue an injunction under the Solerno rule.

[00:31:08] Speaker 06:
So I absolutely agree with that.

[00:31:09] Speaker 06:
And so while I will say that they frame it as a bar challenge, we don't think that the features that they say make them distinct and unique from all 1,400 others stand.

[00:31:21] Speaker 06:
And they're not even features that are unique to all of them across the board.

[00:31:25] Speaker 06:
For example, some mentioned that they've had surgeries.

[00:31:27] Speaker 06:
That's, I think, a quarter of them have.

[00:31:32] Speaker 06:
Some, all of them have had hormones, but that's true of others, other trans identify males in male prisons right now, which means that they're not the only ones also have those strike me as the policy because they're not being those strike me those strike me as merits.

[00:31:49] Speaker 05:
And they may, their merits points need to be reckoned with.

[00:31:52] Speaker 05:
But they don't, I think, convert an as-applied challenge into a facial one just because the criteria that are being articulated by the plaintiffs wouldn't apply to all 19 plaintiffs.

[00:32:02] Speaker 05:
Those are merits responses you have.

[00:32:04] Speaker 05:
And I don't know of a principle that says because that's true, it makes it a facial challenge.

[00:32:08] Speaker 06:
Maybe so.

[00:32:08] Speaker 06:
I was trying to get into the merits.

[00:32:10] Speaker 04:
Well, it is.

[00:32:11] Speaker 04:
I just want to make sure I understand where you are.

[00:32:12] Speaker 04:
The chief judge is absolutely correct.

[00:32:16] Speaker 04:
It is a merits thing.

[00:32:17] Speaker 04:
But you have to consider the merits if you issue a preliminary injunction, because one of the criteria is likelihood of success on the merits.

[00:32:26] Speaker 04:
And that's what I'm talking about.

[00:32:29] Speaker 05:
And it definitely goes to that.

[00:32:30] Speaker 05:
I guess all I'm trying to say is that I don't know that that would convert either a meritorious or unmeritorious as applied challenge into a facial challenge.

[00:32:39] Speaker 05:
It's one that might make it a more difficult merits.

[00:32:42] Speaker 06:
Well, I guess my point is that the features that they try to

[00:32:46] Speaker 06:
want you to say, we are unique, do not hold up, which means that they are not distinguishable from all others who are in male prisons.

[00:32:55] Speaker 06:
And then the logical consequence of their argument at that point would have to be that the Eighth Amendment requires that 1,400 other trans and infine people be moved over to male prisons.

[00:33:05] Speaker 06:
They disclaim that.

[00:33:06] Speaker 06:
They say that's not right.

[00:33:07] Speaker 02:
But I follow that because they're the only ones who are being transferred.

[00:33:13] Speaker 02:
They're challenging a transfer policy.

[00:33:17] Speaker 02:
Right.

[00:33:17] Speaker 02:
They're challenging a transfer policy, transferring women who are currently housed in women's facilities.

[00:33:24] Speaker 02:
I'm sorry, transgender women who are currently housed in women's facilities to men's facilities.

[00:33:30] Speaker 02:
All those other 1,500 odd are not being transferred, because they're where the executive order wants them to be.

[00:33:36] Speaker 02:
They're not plaintiffs in the case.

[00:33:37] Speaker 02:
They're not affected.

[00:33:38] Speaker 02:
They're not affected by the district court's criminal injunction against transfer of transgender women from women's to men's facilities.

[00:33:48] Speaker 06:
I'm not suggesting that.

[00:33:50] Speaker 06:
Anything that happens here will have a direct effect on the other 1400.

[00:33:54] Speaker 06:
I'm just talking about the logic of their argument.

[00:33:56] Speaker 05:
In other words, the other 1400 could bring a claim that said, I should be transferred.

[00:34:00] Speaker 06:
Based on the logic of their argument, yes.

[00:34:03] Speaker 06:
So one of the arguments that they make apart from substantial risk of harm based on being victimized, the district court made this point that they would, independent of any harm from individual other inmates,

[00:34:16] Speaker 06:
they would experience a substantial risk of harm just by being in a male facility because it would increase their symptoms of gender dysphoria.

[00:34:23] Speaker 06:
That would be true as to every single other trans-identifying person in male facilities.

[00:34:30] Speaker 06:
The evidence they have is not unique to them.

[00:34:32] Speaker 06:
There's two declarations which are identical on this point, and it just says exactly what I just said.

[00:34:37] Speaker 06:
There's no differentiation between them

[00:34:40] Speaker 06:
and all 1,400 others who are in there.

[00:34:42] Speaker 05:
So that's the same point I'm trying to make, is a lot of people- The upshot of which, I think, as I understand your argument, is the upshot of that would be then somebody who suffers from gender dysphoria but is in a male prison could bring a constitutional claim of an entitlement to be transferred to a women's- Someone and all of them on that theory, yes.

[00:34:59] Speaker 06:
The theory.

[00:35:00] Speaker 06:
It's not individualized at all.

[00:35:02] Speaker 06:
You understand.

[00:35:02] Speaker 06:
Right.

[00:35:03] Speaker 06:
It's not individualized at all.

[00:35:04] Speaker 06:
The evidence they've submitted is not individualized at all on that question, certainly.

[00:35:09] Speaker 02:
The district court ruled on constitutional grounds, but it seems to me that one of the really clearest violations on the merits that BOP has on its hands is, I mean, even the executive order says, as Judge Randolph noted, that the executive order has to be carried out consistent with applicable law, and it particularly

[00:35:34] Speaker 02:
identifies and calls out in section four in ensuring that males are not detaining women's prisons or housing women's detention centers, including through amendment as necessary of the PREA regulation, part 115.41.

[00:35:53] Speaker 02:
That regulation has not been amended, except that it's been effectively amended through BOP's series of actions here without going through notice and comments.

[00:36:08] Speaker 02:
Do you have a merits response to that, or is it just the jurisdiction stripping and exhaustion?

[00:36:16] Speaker 02:
Exhaustion doesn't do anything for that.

[00:36:21] Speaker 06:
It is also, well, there are a few things about their ABA claim.

[00:36:25] Speaker 06:
The first is, this is not a basis on which the district court ruled, as Your Honor just mentioned.

[00:36:30] Speaker 06:
And that is something that's important in most cases.

[00:36:33] Speaker 06:
Usually this court reviews and doesn't take up issues on its own.

[00:36:36] Speaker 06:
I think it's especially important here because this court held in the Shelley versus Sebelius case that we cite in our brief, that in the context of a preliminary injunction, the court should not, not just it's not a matter of discretion, ought not to, should not, reach out to affirm a preliminary injunction on the ground that was not embraced by the district court.

[00:36:55] Speaker 06:
Because granting of a preliminary injunction is a matter of discretion.

[00:36:58] Speaker 06:
So I don't think the court has the ability to do that anyway.

[00:37:02] Speaker 06:
And in addition, I think it would raise some significant issues with respect to the PLRA.

[00:37:09] Speaker 06:
Because that requires the district court to make findings that the particular injunction that is being issued is tailored to

[00:37:17] Speaker 06:
the injury that is being found.

[00:37:20] Speaker 06:
An 8th Amendment injury is not an APA injury.

[00:37:23] Speaker 06:
They're very different things.

[00:37:25] Speaker 06:
So I think it would be very difficult to even reach the APA claim at this stage

[00:37:31] Speaker 02:
In terms of the Shirley versus Sebelius, as I read that case together with subsequent decisions of our court and the practice of circuits nationwide, I have to understand Shirley versus Sebelius to advert to the fact that there were exercises of discretion by the district court that mattered.

[00:37:52] Speaker 02:
in the ground that was being proposed as an alternative grant.

[00:37:57] Speaker 02:
We have since then the InRea Federal Bureau of Prisons Execution Protocol case of 2020 where our court did consider an alternative theory and affirmed our preliminary injunction

[00:38:10] Speaker 02:
because it rested on purely legal arguments.

[00:38:13] Speaker 02:
And here, too, this argument about the failure to do notice and comment rulemaking to depart from the pre-regulation is a purely legal one.

[00:38:26] Speaker 02:
And so even though you're right that formally all injunctions are equitable, it's discretionary, I have to read

[00:38:36] Speaker 02:
our binding case law to, you know, how do we reconcile federal bureau of prisons with Shirley versus Sevelius, and I think where, and it's quite common nationwide that circuits where there's a purely legal issue that the court of appeals is in just as good of a position to address as the district court that injunctions are frequently affirmed on alternative grounds.

[00:38:59] Speaker 02:
So if we, go ahead and address that if you want to.

[00:39:02] Speaker 06:
The only thing I was gonna say is I don't know that I'm familiar

[00:39:06] Speaker 06:
latter cases that your honor cited.

[00:39:07] Speaker 06:
What I thought was the case in Shirley was that it was also the alternative ground was an APA ground.

[00:39:14] Speaker 06:
But I can't remember the exact specifics of it.

[00:39:18] Speaker 06:
But I thought it was an alternative ground and the court did not reach it.

[00:39:22] Speaker 02:
It's APA, but I think it depended on more fact-intensive issues.

[00:39:26] Speaker 02:
It's just a lot of different issues in the brain today.

[00:39:34] Speaker 02:
And in terms of on the merits, assuming that it were passed on by the district court or that Shirley versus Sebelius is not an obstacle, you were saying you didn't think that the plaintiffs would get relief from it?

[00:39:51] Speaker 02:
I'm not sure what you were arguing.

[00:39:53] Speaker 02:
The second thing I. The point about, I mean, this is the rule that says,

[00:40:00] Speaker 02:
look for whether a placement for a transgender woman, consider whether to place them in a male or a female facility.

[00:40:09] Speaker 02:
I mean, that is the rule that they want to have still be in place, the plaintiffs.

[00:40:16] Speaker 06:
No, I didn't mean to say that.

[00:40:18] Speaker 06:
I think what I meant to say was,

[00:40:21] Speaker 06:
Because we're dealing with an injunction issued under the PLRA, there are special rules that apply to issuing injunctions under PLRA, which means the court, the district court, has to look at the particular harm that is found and whether the scope of the injunction and the nature of the injunction are

[00:40:39] Speaker 06:
appropriate for that and as narrow as possible.

[00:40:43] Speaker 02:
You're talking about the need, narrowness, intrusiveness.

[00:40:44] Speaker 02:
Exactly.

[00:40:45] Speaker 06:
I can't remember the exact subsection.

[00:40:48] Speaker 06:
And I think that that analysis could very well be different if the harm as between the harm being identified being an Eighth Amendment claim with a substantial risk of serious harm, et cetera, et cetera, versus an APA claim, which is go through notice and comment, or their other theory being that different alternatives were not considered.

[00:41:09] Speaker 06:
So I just think those are at least could be two different things, which is a reason to let the district court do it.

[00:41:15] Speaker 02:
I see that as an abstract matter.

[00:41:16] Speaker 02:
I'm not sure I see how that would play out.

[00:41:18] Speaker 02:
For example, here, just because it's a little bit cleaner, consider the rulemaking.

[00:41:23] Speaker 02:
They're basically saying, you have to abide by the pre-regulation unless and until it's been duly repealed through notice and comment.

[00:41:33] Speaker 02:
And the relief for that seems to me to be on all fours with the relief

[00:41:37] Speaker 02:
for the, to the extent that you think their Eighth Amendment claim is challenging the transfer of these trans women with their vulnerabilities to a male facility.

[00:41:51] Speaker 02:
If that's the action complained of there, it seems to me pretty, pretty overlapping.

[00:41:57] Speaker 06:
That might be the way the district court would work it out.

[00:41:59] Speaker 02:
But do you have, I'm just interested concretely if you can sort of fill out where you think the district court might come at you from.

[00:42:06] Speaker 06:
I really don't know, honestly.

[00:42:08] Speaker 06:
I really don't know that.

[00:42:11] Speaker 06:
But in addition to what we've just been discussing, I think, on the APA claims, there is also a review bar that applies to the APA claims too.

[00:42:18] Speaker 06:
And I think in this context, some of the discussions that we were having about some of the discussions we were having about a challenge to the policy versus a challenge to the designation sort of fall away.

[00:42:31] Speaker 06:
Because the policy here is the EO, and you cannot bring a challenge

[00:42:35] Speaker 06:
APA challenge the EO and the plaintiffs, I think, acknowledge that.

[00:42:38] Speaker 06:
So the only other thing they could challenge is the designations.

[00:42:41] Speaker 06:
And that's what the APA review bar says you cannot challenge.

[00:42:45] Speaker 06:
So this is much cleaner, certainly, at least, than the initial bar that we were talking about before.

[00:42:50] Speaker 06:
And so the first thing that you will confront if you decided to

[00:42:53] Speaker 06:
move past all the things we've just been discussing, would be a judicial review bar saying, these are not questions that can be adjudicated.

[00:43:00] Speaker 06:
Which the district court didn't look at that either, because it didn't treat with the APA claim.

[00:43:05] Speaker 06:
And because, and because I believe in one of the district court's orders, he said, because they may well be barred.

[00:43:12] Speaker 06:
That was the reason given for the normal course would be to address a non-constitutional argument.

[00:43:18] Speaker 06:
And so he addressed the Eighth Amendment on the belief.

[00:43:21] Speaker 06:
And I think that's explicit in this decision.

[00:43:23] Speaker 06:
It's also explicit in some parallel litigation, in the kingdom litigation, where same judge decided the APA claim and not the Eighth Amendment claim.

[00:43:33] Speaker 06:
So I think that is the reason.

[00:43:35] Speaker 05:
And also because maybe the 3621 bar he thought didn't apply to constitutional claims.

[00:43:41] Speaker 05:
Right, that was part of his rationale in getting to the Eighth Amendment question.

[00:43:45] Speaker 02:
He relied on Webster versus Stowe.

[00:43:48] Speaker ?:
Right, right.

[00:43:50] Speaker 06:
If Your Honor, there's no further questions.

[00:43:55] Speaker 05:
We'll give you a little bit of time for rebuttal.

[00:43:57] Speaker 05:
Thank you.

[00:44:00] Speaker 05:
Mr. Hayes.

[00:44:06] Speaker 05:
Levi.

[00:44:07] Speaker 07:
Thank you, Your Honor.

[00:44:14] Speaker 08:
Morning, Your Honor.

[00:44:15] Speaker 08:
Your Honors, may it please the court, Jennifer Levi, who represent the plaintiff appellees in these three consolidated cases.

[00:44:22] Speaker 08:
This case is about preventing the sexual violence that will be perpetrated against these 19 transgender women currently housed in women's facilities who will be transferred to men's prisons if the court vacates the injunctions below.

[00:44:37] Speaker 08:
Plaintiffs ask this court to affirm because it's the executive order that forces the Bureau of Prisons

[00:44:43] Speaker 08:
to disregard its own safety determinations and transfer these women to the very facilities that BOP previously deemed inappropriate for them.

[00:44:53] Speaker 08:
This isn't about some abstract questions or philosophical debates.

[00:44:58] Speaker 08:
This is about the constitutional limits on prison officials' ability to ignore known and serious violence risks.

[00:45:06] Speaker 08:
These women will face the same brutal reality that any woman would face if forced to live in prison among men.

[00:45:13] Speaker 08:
They will be sexually assaulted, raped, and violently attacked.

[00:45:17] Speaker 08:
And we know this because it's already happened to many of them.

[00:45:21] Speaker 08:
All of those previously housed in men's facilities have been repeatedly sexually threatened or violently assaulted and raped, some of them repeatedly.

[00:45:31] Speaker 08:
And when two of these individual plaintiffs were briefly transferred, they immediately faced sexual victimization.

[00:45:37] Speaker 05:
So can I just make sure that I understand the scope of your theory on the merits?

[00:45:45] Speaker 05:
You say in your briefing that you don't think that it's the case that every inmate, every trans woman inmate needs to be, as a constitutional matter, in a women's facility.

[00:45:59] Speaker 05:
So the theory that you have can't cover everybody because you already say that it doesn't cover them.

[00:46:04] Speaker 05:
And so I guess my question is, what is it that ties together the particular 19 plaintiffs that gives them a constitutional entitlement that wouldn't then be over-inclusive in covering everyone?

[00:46:19] Speaker 05:
but also is not under inclusive in the sense that it actually covers all 19.

[00:46:23] Speaker 05:
And the one thing I can see that does cover these 19 and nobody else is that they were all assigned to a women's facility.

[00:46:30] Speaker 05:
That's the one thing I see.

[00:46:32] Speaker 05:
But beyond that, and then we can talk about that.

[00:46:35] Speaker 05:
But beyond that, it seems like everything that's being asserted in the briefing either covers

[00:46:42] Speaker 05:
substantially, the population is substantially more than 19, or it doesn't cover all 19?

[00:46:49] Speaker 08:
Well, two things I want to say in response.

[00:46:51] Speaker 08:
One is, certainly, they're unique in that they have been designated as being appropriately housed in women's facilities.

[00:46:57] Speaker 08:
The other thing which is unique, which is that they are in women's facilities.

[00:47:00] Speaker 08:
And if they're transferred from women's facilities to men's facilities, they will be targeted because of being women.

[00:47:06] Speaker 08:
BOP has recognized as women appropriately housed in the women's facility being transferred to the men's facility.

[00:47:12] Speaker 08:
there's no doubt that what's going to happen when they arrive, as it happened to Rachel Doe, that they'll be seen and recognized as a woman, and many of them are indistinguishable from other women.

[00:47:24] Speaker 08:
So that distinguishes them.

[00:47:27] Speaker 05:
That and many of them.

[00:47:29] Speaker 05:
The assertion hasn't been... And I don't mean to quibble.

[00:47:32] Speaker 05:
I honestly don't.

[00:47:33] Speaker 05:
It's just that I don't know... I saw in your brief that you say that

[00:47:37] Speaker 05:
Six of the plaintiffs appear indiscriminate from other women, and there's no reason to doubt that.

[00:47:42] Speaker 05:
And that suggested to me that it's not the same degree.

[00:47:46] Speaker 05:
for the entire plaintiff class.

[00:47:48] Speaker 05:
But you're right, of course, that being in the women's facility is definitely true of all 19 of them.

[00:47:53] Speaker 05:
And if that's the criterion, then can I just ask, would that be true regardless of the reason that an inmate is assigned to a women's facility, that the mere fact of being transferred from a women's facility to a men's facility, regardless of why the person was in the inmate was in the women's facility, that would still be enough to state a constitutional claim?

[00:48:13] Speaker 08:
Well, as I said, it puts a target on them for sure, and it designates them in a different way than any other transgender woman in a men's facility would be seen or recognized by others in the facility.

[00:48:24] Speaker 08:
And so that is unique to this group for sure.

[00:48:27] Speaker 05:
Is that the theory then?

[00:48:29] Speaker 05:
Is that any trans woman who's in a women's facility

[00:48:33] Speaker 05:
is targeted upon transfer to a male facility.

[00:48:36] Speaker 05:
And at that point, that's all you need to know.

[00:48:38] Speaker 08:
Well, what I want to say is there could be circumstances, for example, for the broader question if BOP were to wrongly designate someone for being housed in the women's prison.

[00:48:50] Speaker 08:
So it's not as if what defendants argue that there's no circumstances where there couldn't be.

[00:48:57] Speaker 08:
because of an incorrect assignment or designation, but the OP has created a circumstance in placing someone in a woman's facility that puts them at a unique and a different risk than anyone else.

[00:49:09] Speaker 08:
that is transgender women in the men's facility.

[00:49:11] Speaker 08:
I did want to say, defendants have not put any facts in the record to describe the 1,455 individuals that are housed in transgender women in the men's facility.

[00:49:22] Speaker 08:
And so what was in front of the district court was very specific facts about these individuals.

[00:49:28] Speaker 08:
And while not all of them have had genital surgeries, all of them have been on female hormones for an extended period of time,

[00:49:35] Speaker 08:
female breasts, I mean, look like they didn't.

[00:49:40] Speaker 08:
They submitted affidavits.

[00:49:43] Speaker 08:
There's extensive affidavits.

[00:49:45] Speaker 04:
Where there has there been any discovery?

[00:49:48] Speaker 04:
There hasn't been any discovery.

[00:49:49] Speaker 04:
Has there been anything that's gone on in terms of hearing, evidentiary hearings between the time that Judge Lamberth issued a preliminary injunction?

[00:50:01] Speaker 04:
and the 90-day period expired?

[00:50:03] Speaker 04:
Did anything happen?

[00:50:04] Speaker 08:
There has been supplemental affidavits in the record, and there's been an opportunity for the... My question is... Sorry, Your Honor.

[00:50:11] Speaker 04:
I'm looking toward whether there were any proceedings that were leading to converting the preliminary injunction into a permanent injunction, which would require, it seems to me, evidentiary hearings and some discovery.

[00:50:25] Speaker 04:
And my question is whether anything of that nature

[00:50:30] Speaker 04:
occurred during that 90 day period.

[00:50:32] Speaker 08:
There were no evidence here.

[00:50:37] Speaker 05:
Can you can you can you point me to where that Judge Lamberth took into account the individual circumstances of the plaintiffs

[00:50:46] Speaker 08:
I mean, yes.

[00:50:48] Speaker 08:
And we would go through the six orders.

[00:50:51] Speaker 08:
Because the other point that I want to make is that the defendants create the perception that there was a uniform evaluation of each of these individual circumstances.

[00:51:00] Speaker 08:
So I'm happy to go through the individual orders.

[00:51:02] Speaker 08:
But this was a case initially filed in Doe by three individual plaintiffs, including

[00:51:07] Speaker 08:
evidence to support the allegations, opportunity for defendants to rebut it.

[00:51:12] Speaker 08:
There were then nine individuals that were added to the Doe case and then an additional two that were transferred when those injunctions were enforced.

[00:51:21] Speaker 08:
The Jones case was initiated by an individual who has had genital surgery, was transferred from a low security women's prison to a medium men's facility where

[00:51:34] Speaker 08:
I mean, she was immediately at risk and threatened.

[00:51:36] Speaker 08:
She was immediately was quickly transferred back.

[00:51:39] Speaker 08:
There were then four additional plaintiffs and additional evidence before Judge Lambert.

[00:51:44] Speaker 08:
So I can walk through those six orders, but Judge Lambert was pretty specific in each of them about the circumstances.

[00:51:52] Speaker 08:
of Maria Moe, for example, and the additional plaintiffs in Doe that had experienced prior violent history in the men's facilities.

[00:52:04] Speaker 05:
So the way to encapsulate his rationale in your perspective is that

[00:52:10] Speaker 05:
The district court took a look at the individual circumstances of each of the 19 plaintiffs and made an assessment that because of their individual circumstances, transferring them to a men's facility presented an unreasonable risk of physical harm.

[00:52:24] Speaker 05:
That's the way you read what Judge Lambert did.

[00:52:27] Speaker 08:
In the six orders.

[00:52:30] Speaker 08:
The defendants have had extensive opportunity to supplement the record, as Judge Blark pointed out.

[00:52:36] Speaker 08:
What they've pointed to are generalized statistics that Judge Lambert specifically said were unconvincing because they don't look at the risk of violence that a transgender woman transferred from a women's facility into a men's facility would face.

[00:52:51] Speaker 08:
In fact, they don't look at and disaggregate at all the risk to a transgender woman in those men's low security facilities.

[00:52:58] Speaker 08:
What they point to is really one

[00:53:00] Speaker 08:
statistic of sexual assaults for men in those facilities over the past year, which disregards the facts that

[00:53:11] Speaker 08:
the district judge evaluated in terms of and identified in the multiple orders that he issued in terms of the bureau's own statistics, as I said, in terms of the individual experiences of violence that either individuals faced or the fact that Maria Moe, as I said,

[00:53:32] Speaker 08:
the first Jones plaintiff, I'm sorry, Jane Jones.

[00:53:36] Speaker 08:
I mean, they were remitted to the women's facilities of Bureau of Prisons because the judges that evaluated the placement determined that they wouldn't be safe in the men's facility.

[00:53:49] Speaker 08:
So there was very extensive record evidence in front of Judge Lambert in making the determinations that he did.

[00:53:57] Speaker 05:
Then am I understanding the theory correctly then

[00:54:01] Speaker 05:
It may be for somewhat different reasons across the 19 individuals.

[00:54:05] Speaker 05:
But what they share in common is A, they were all assigned to a women's facility and were in a women's facility.

[00:54:14] Speaker 05:
And B, there are other considerations with respect to each of them that renders them particularly vulnerable if transferred to a male facility.

[00:54:20] Speaker 05:
The particular characteristics might be different.

[00:54:23] Speaker 05:
across each of the 19 of them.

[00:54:25] Speaker 05:
But for one reason or another or some combination, each of them has characteristics that render them particularly vulnerable.

[00:54:33] Speaker 05:
And Judge Lamberth focused on the individual characteristics across them to make the conclusion that each of them is vulnerable enough that they state that they have an Eighth Amendment violation.

[00:54:46] Speaker 05:
That's the way you understand the API and the way you're defending it.

[00:54:50] Speaker 08:
Yes, Your Honor.

[00:54:51] Speaker 08:
And I would add to that, of course, that under the Prison Rape Elimination Act, the Bureau of Prisons has to do a review every six months.

[00:55:03] Speaker 08:
And so it's not just that they were, I mean, all of them were assigned there.

[00:55:07] Speaker 08:
And the Bureau of Prisons, and Judge Lambert does address this, has reviewed those and determined that these were the appropriate placements.

[00:55:17] Speaker 08:
And I say that because the defendants have raised

[00:55:20] Speaker 08:
that there are individuals who were placed in the women's prisons because of a judicial order or because of a need for surgery, for example.

[00:55:31] Speaker 08:
One of those surgeries has actually been performed.

[00:55:33] Speaker 08:
So now, again, you have a woman who's uniquely vulnerable from a women's facility to be transferred.

[00:55:38] Speaker 08:
So yes, the district judge made that individual determination and also said that it's the required nondiscretionary transfer

[00:55:50] Speaker 08:
that requires the Bureau of Prisons to ignore those individual safety risks.

[00:55:55] Speaker 03:
Was there any evidence introduced with respect to the reaction or distress of the women having biological men among them?

[00:56:07] Speaker 03:
There's no evidence of that in the record here.

[00:56:09] Speaker 08:
There's no evidence of the record.

[00:56:11] Speaker 03:
There is a case on that, though.

[00:56:14] Speaker 03:
We had an intervention motion.

[00:56:17] Speaker 03:
I think it was a woman prisoner who had litigated.

[00:56:22] Speaker 03:
And we denied the motion.

[00:56:24] Speaker 03:
But I think it was in Washington state or something.

[00:56:28] Speaker 03:
Are you familiar with that?

[00:56:32] Speaker 08:
I know that there was a motion to submit an amicus brief.

[00:56:36] Speaker 08:
And I reviewed it quickly, because I understand it was just filed yesterday.

[00:56:39] Speaker 08:
I mean, many of those.

[00:56:41] Speaker 08:
Oh, that I don't know.

[00:56:42] Speaker 08:
Oh, I'm sorry then.

[00:56:43] Speaker 08:
I thought that's what you were referring to.

[00:56:45] Speaker 04:
No, this was a while.

[00:56:48] Speaker 08:
OK.

[00:56:50] Speaker 08:
But if I may, there is no evidence here that defendants have put into the record about any problems in those facilities.

[00:57:05] Speaker 05:
For exhaustion purposes, am I right in understanding that your theory is that

[00:57:12] Speaker 05:
And this goes to the merits, too.

[00:57:13] Speaker 05:
But your theory is that there's nothing that could be done in a male facility that could prevent the constitutional injury.

[00:57:22] Speaker 08:
Well, that's correct, Your Honor.

[00:57:26] Speaker 08:
First, there was nothing to exhaust because the defendants agree that the transfers are dictated by the executive order and that government lacks any discretion other than to transfer them.

[00:57:42] Speaker 08:
based on the evidence that was in front of the district judge, there's nothing that can be done to keep these individuals safe.

[00:57:50] Speaker 08:
And as I said, that was demonstrated when two of these individuals were transferred.

[00:57:55] Speaker 08:
And I want to say that the record evidence that was submitted in response to that actually corroborated the allegation of the sexual threat that was faced by Rachel Doe.

[00:58:07] Speaker 08:
And what the response was that the BOP couldn't identify the perpetrator.

[00:58:13] Speaker 08:
which just suggests and really underscores risk to them.

[00:58:18] Speaker 04:
To clear this up, at least in my mind, your argument is based on the transfer of a biological male to a male prison, right?

[00:58:33] Speaker 04:
From a female to a male prison.

[00:58:37] Speaker 03:
Yes, your argument.

[00:58:39] Speaker 03:
So how does that affect

[00:58:43] Speaker 04:
I mean, the regulation that's mentioned in the executive order is basically a regulation dealing with assessment of people that have just been convicted.

[00:58:59] Speaker 04:
So how does your argument affect intake?

[00:59:04] Speaker 04:
There's a missing link there.

[00:59:06] Speaker 04:
I mean, your argument depends on having been housed in a woman's prison.

[00:59:11] Speaker 04:
but a new prisoner, and there must be new prisoners coming every day, every week.

[00:59:16] Speaker 04:
I mean, we've got, what is it, a million and a half prisoners in federal prisons and another two and a half million in state, because this affects state prisons too.

[00:59:28] Speaker 04:
So how does your argument affect the intake?

[00:59:34] Speaker 08:
Well, as, because you pointed out earlier, the requirement under the PREA regulation

[00:59:41] Speaker 08:
that the executive order overturns would have required an individual assessment that considers either the placement in either facility.

[00:59:53] Speaker 03:
So hypothetically, the assessment's done.

[00:59:57] Speaker 04:
They got placed in a woman's prison for one day, and now all your arguments click in.

[01:00:04] Speaker 04:
They have to be transferred immediately to a male prison.

[01:00:07] Speaker 08:
Well, no, Your Honor, as I was saying in response to the chief judge, if there's an error in the determination of placing someone in the women's prison, then that would be a circumstance where there could be a different determination made if it's made consistent with the PREA factors.

[01:00:24] Speaker 08:
But if someone is put in a women's prison because they are identified as being unable to be kept safe in a men's prison, then as I said, it puts a target on them for sure if they're transferred.

[01:00:36] Speaker 08:
to a men's facility because the BOP, assuming they've done the assessment correctly, has signaled, has said that they would be at risk in men's facilities.

[01:00:47] Speaker 08:
So it certainly creates a heavy burden to demonstrate after making that determination.

[01:00:52] Speaker 05:
They can ask you about one hypothetical situation.

[01:00:55] Speaker 05:
So suppose that the reason that an inmate is assigned to a women's facility is not that it's based on a assessment of dangerousness as such, but it's based on something like proximity to family.

[01:01:09] Speaker 05:
And for visit visitation purposes, and a judge makes a recommendation for that reason, and then

[01:01:13] Speaker 05:
The BAP takes that into account and says, there's trans women in men's facilities.

[01:01:20] Speaker 05:
There's some trans women in women's facilities.

[01:01:22] Speaker 05:
In this particular case, it makes a special sense to put this person female in the women's facility because of proximity to family for visitation purposes.

[01:01:32] Speaker 05:
In that situation,

[01:01:34] Speaker 05:
would the transfer under your theory of the constitutional violation, would it create an Eighth Amendment?

[01:01:42] Speaker 08:
Well, as you pointed out, that would go to the merits of the Eighth Amendment challenge.

[01:01:46] Speaker 08:
And if it ignored the increased risk that was put upon that individual because of having been in the women's facility, what

[01:01:55] Speaker 08:
what would be constitutionally prohibited would be to ignore that safety risk and then to just reflexively do what the executive order requires the Bureau of Prisons to do is to ignore the safety risk.

[01:02:07] Speaker 08:
And so that could create constitutional implications in that individual case.

[01:02:11] Speaker 02:
So you describe the risk of these transferees showing up in a male prison.

[01:02:19] Speaker 02:
How do

[01:02:20] Speaker 02:
the other prisoners know where they're coming from, who they are.

[01:02:23] Speaker 02:
Presumably they give them different prison garb and they allow them to groom differently.

[01:02:31] Speaker 02:
I mean, I know there are things, but you were saying sort of apart from their individual characteristics, how they present the hormone treatment and other attributes of them personally, that the travel from

[01:02:46] Speaker 02:
facility A to facility B would, I think you said, put a target on them.

[01:02:50] Speaker 02:
I'm not sure I know enough about the information around these actions to appreciate that.

[01:02:58] Speaker 08:
Yeah, I mean, the reality is that these, you know, there's a lot of information flow across

[01:03:05] Speaker 08:
the prison system, and that information will be quickly known.

[01:03:10] Speaker 08:
In these cases, actually, what happened was that the facility refused to provide bras, for example.

[01:03:17] Speaker 08:
And so it was obvious and apparent to everyone that these were individuals who had cut

[01:03:25] Speaker 08:
Well, this isn't in the record.

[01:03:26] Speaker 02:
That seems like it's obvious that their body is what their body is, not so much where they've come from.

[01:03:31] Speaker 02:
If you were a newly incarcerated person and you had the same garments issued to you with the same limitations, you'd be vulnerable for that reason as well now.

[01:03:45] Speaker 08:
Wait, I'm sorry.

[01:03:45] Speaker 02:
I want to make sure I understood your question, the last part of it, that you would be... Just if you were newly arrived, not transferred, you'd never been in a women's prison, but you're a trans woman with...

[01:03:54] Speaker 02:
developed breasts and outside of the facility are used to wearing a bra, and you go in, they don't give you one, it doesn't seem to me that it's having been under the prior regulation assigned to a woman's facility that puts that target on your back.

[01:04:13] Speaker 08:
It's not exclusively that for sure.

[01:04:14] Speaker 08:
And that is that any individual other transgender women that applied would also

[01:04:23] Speaker 03:
and they're sexually victimized.

[01:04:25] Speaker 03:
Aren't there regulations dealing with that?

[01:04:28] Speaker 03:
I thought there were regulations, like they have to provide separate showers.

[01:04:33] Speaker 03:
Isn't that in the regulation?

[01:04:35] Speaker 08:
Yes, Your Honor.

[01:04:36] Speaker 08:
Yeah, so there are other ways in which they would be treated differently and designated.

[01:04:40] Speaker 04:
And I think I read that the prison authorities in a male prison have to provide females or males who have had breast surgery with bras.

[01:04:52] Speaker 08:
I mean, this executive order over purports to overturn the requirements.

[01:04:59] Speaker 08:
And I mean, in fact, people were denied when they were transferred.

[01:05:03] Speaker 08:
Doesn't do separate showers.

[01:05:05] Speaker 08:
No, I agree with that.

[01:05:06] Speaker 05:
I agree with that.

[01:05:07] Speaker 05:
I thought that part of it.

[01:05:09] Speaker 05:
isn't being appealed by the government.

[01:05:11] Speaker 05:
It's not.

[01:05:11] Speaker 05:
It's not.

[01:05:12] Speaker 05:
Can I just follow up on Judge Pillard's hypothetical?

[01:05:14] Speaker 05:
So in the situation in which a new inmate shows up in a male prison and presents as a woman, that could be because they're a new inmate.

[01:05:26] Speaker 05:
It could be because they're transferred from a women's facility.

[01:05:29] Speaker 05:
It could also be because they're transferred from a men's facility because they're transferred for other reasons.

[01:05:33] Speaker 05:
And so in that context, the inmate could be in the male prison for any of those reasons.

[01:05:44] Speaker 05:
What's your view in that situation?

[01:05:46] Speaker 05:
Because I heard part of your answer that, well, they're in danger because of their female features.

[01:05:55] Speaker 05:
And that may well be true.

[01:05:56] Speaker 05:
But then if that were true, then why doesn't your theory then cover all

[01:06:03] Speaker 05:
trans women inmates who are in male facilities now, regardless of whether they came from or transferred from a women's facility, that then it seems like it would potentially cover the full sweep of the 1448, whatever the number is, which is something that you're just claiming your theory does.

[01:06:23] Speaker 08:
So this case has been brought on these 19 individuals.

[01:06:27] Speaker 08:
judge made factual findings on that basis, it may be that there are, I just want to say, of the 1455 individuals who are facing Eighth Amendment violations.

[01:06:38] Speaker 08:
But it's not the executive order's requirement of them to be transferred that's applied to them.

[01:06:45] Speaker 08:
And so the constitutional question associated with that doesn't apply to the individuals that are currently in the mail facilities.

[01:06:54] Speaker 05:
But so your theory could, I guess, I just want to make sure I understand.

[01:07:00] Speaker 05:
Is your position that your theory actually doesn't cover all 1,400 plus, or is it that all 1,400 plus aren't part of this case because they haven't been transferred?

[01:07:12] Speaker 05:
That's definitely true.

[01:07:13] Speaker 05:
And so we just don't need to address them.

[01:07:16] Speaker 05:
I took you brief to be taking the position that your theory actually doesn't cover all trans women who are in male facilities.

[01:07:23] Speaker 08:
Well, the district judge, in this case, evaluated each of these 19 individuals and applied the Eighth Amendment standard to make a determination that the Eighth Amendment standards apply to them.

[01:07:39] Speaker 08:
And among the factors that he would consider is the past history of the DOP designation and the predictable experience that they would face if transferred.

[01:07:51] Speaker 02:
And I guess, I mean, as you mentioned before, we don't have information on the characteristics of those 1500 odd other trans women in BOP custody.

[01:08:03] Speaker 02:
There may be people who are very able to

[01:08:08] Speaker 02:
forgive my nomenclature, to pass as men.

[01:08:11] Speaker 02:
They're trans women.

[01:08:13] Speaker 02:
They can come into a prison population and present themselves in a way that people would not mistake them for women or would not think they look highly feminized.

[01:08:23] Speaker 02:
And we just don't know.

[01:08:25] Speaker 08:
We don't know, Your Honor.

[01:08:26] Speaker 02:
We don't even know.

[01:08:27] Speaker 02:
But you're also not disavowing the possibility that there may also be

[01:08:33] Speaker 02:
people who under the PREA regulations were assigned, trans women who were assigned to a male facility and who may in fact be running into serious harm or risk of harm in that facility and may have, you know, PREA regulation or not, executive order or not, may have

[01:08:55] Speaker 02:
an Eighth Amendment claim, and then there's a question, you know, if they repeal the PREA Reg, what's available to them, but that's not this case.

[01:09:04] Speaker 02:
Correct, Your Honor.

[01:09:06] Speaker 02:
Whose burden, this is going back to exhaustion, and all these questions about, you know, depending on how you read the interaction between Ross and Booth, under Booth, you know, if there's some relief

[01:09:19] Speaker 02:
that BOP can offer from the action complained of, whose burden is it to show that either there is no relief that BOP can offer or that there is some relief?

[01:09:33] Speaker 02:
Is it the plaintiff's burden to show no relief or is it BOP's burden to show there is some relief?

[01:09:40] Speaker 02:
Well, here there's no question that there's

[01:09:42] Speaker 02:
relief so so there seems to be some dispute at least at the level of the briefing I'm not sure in the record but you know they let's say they had in the record said we can give people door locks we can put you know station guards near the area where they

[01:10:03] Speaker 02:
are housed, we can isolate people who are aggressors.

[01:10:09] Speaker 02:
There's a whole bunch of things that we can do.

[01:10:10] Speaker 02:
We do really quickly.

[01:10:12] Speaker 02:
We have emergency exhaustion.

[01:10:13] Speaker 02:
You need to exhaust.

[01:10:17] Speaker 02:
Let's say that is all true, but it isn't in the record.

[01:10:21] Speaker 02:
Whose fault is that?

[01:10:23] Speaker 02:
Is it the plaintiff's fault for not having excluded it, or is it BOP's fault for not having said, look, we can do all these things?

[01:10:30] Speaker 08:
I think it's on the defendants who haven't put evidence in the record to show that they can ensure that.

[01:10:39] Speaker 02:
And do you have any cases that would so say with respect to this burden about exhaustion under the relevant provision?

[01:10:55] Speaker 08:
I don't, but I would also urge this court to look at the amicus brief that was submitted by the law professors on the position regarding exhaustion because there are multiple pathways in this case to address the exhaustion issue, including the fact that these individuals were told that they couldn't exhaust because BOP had no discretion other than to make the transfers and because of

[01:11:21] Speaker 08:
the timing that prohibited them from getting any relief, including three of them at least having been immediately transferred and others being prepared.

[01:11:33] Speaker 02:
Yeah, that is a helpful brief on this.

[01:11:35] Speaker 05:
Can I ask you, do you have, I know this just came up in oral argument, but do you have at least immediate reaction to follow up on Judge Randolph's question about the provision that says that a preliminary injunction can only be in place for 90 days?

[01:11:51] Speaker 08:
My response to that is that what 3626 specifically contemplates is the anticipated renewal of an injunction in 90 days.

[01:12:07] Speaker 08:
Judge Lamberth, you know, tracked the requirement under 3626A2 that authorized the renewal 90 days upon the court making the required findings around the PLRA factors.

[01:12:23] Speaker 08:
I'm not familiar with the case.

[01:12:25] Speaker 08:
We would ask for an opportunity to respond to it.

[01:12:30] Speaker 04:
The purpose of that provision, according to the committee reports,

[01:12:37] Speaker 04:
was to accelerate any lawsuit that dealt with prison conditions and the rights of prisoners.

[01:12:44] Speaker 04:
Because some of those cases were dragging out for years and years.

[01:12:51] Speaker 04:
And so the purpose is pretty clear.

[01:12:54] Speaker 04:
I mean, there's a Supreme Court case called Rufo versus Suffolk County, or something that you make.

[01:12:59] Speaker 04:
And the provision says that once you put in a preliminary injunction,

[01:13:06] Speaker 04:
It can only last 90 days unless, et cetera, et cetera is converted to a final injunction.

[01:13:15] Speaker 04:
To say that this is just being renewed is, to my mind and to the 11th Circus mind, a complete refutation of the purpose and the language of the statute.

[01:13:31] Speaker 08:
I just have a hard time truing that with the language of 3626A2 that anticipates the renewals.

[01:13:40] Speaker 04:
A preliminary injunction shall expire unless a final injunction is issued.

[01:13:51] Speaker 04:
And makes the order final.

[01:13:52] Speaker 08:
I mean, I understand.

[01:13:56] Speaker 08:
And I will say that the defendants have not even objected to two requests for renewals and the renewal of those, along with the specific peeler.

[01:14:06] Speaker 04:
We're talking jurisdiction and probably mutants as well.

[01:14:09] Speaker 04:
It doesn't matter that they didn't change.

[01:14:12] Speaker 02:
I think there's a circuit split on it.

[01:14:13] Speaker 02:
But we can look into it.

[01:14:15] Speaker 05:
I'm wondering if you had an immediate reaction to something that candidly just came up in oral argument.

[01:14:20] Speaker 05:
So I'd appreciate it.

[01:14:22] Speaker 05:
Thank you.

[01:14:22] Speaker 02:
So you do just, I mean, I was pressing you on whose burden it is that you do cite Supreme Court Jones versus Bach, which says this is an affirmative defense, which typically means it would be the defendant's burden, certainly to raise it.

[01:14:36] Speaker 02:
But then there's some circuit law elsewhere, not in this that says,

[01:14:41] Speaker 02:
when it's raised that there is exhaustion, then question whether it's impracticable.

[01:14:47] Speaker 02:
The circuits differ on how that's parsed.

[01:14:51] Speaker 02:
So there is a statistic, and I guess I want to ask the government this too, maybe on rebuttal, but there's a statistic saying that the low-security men's prisons where these plaintiffs would be proposed to be transferred are safer than the

[01:15:07] Speaker 02:
for the women's facilities.

[01:15:10] Speaker 02:
But I did notice, I don't know whether you raised this, but that includes assaults by staff as well as by fellow inmates.

[01:15:22] Speaker 02:
So it would stand to reason that a trans woman going from a woman's facility to a men's facility would probably face an increased risk that those statistics do not account for.

[01:15:37] Speaker 08:
Absolutely.

[01:15:38] Speaker 08:
Yeah, we agree with that.

[01:15:42] Speaker 05:
Make sure my colleagues don't have additional questions.

[01:15:47] Speaker 08:
Thank you, Your Honors.

[01:15:57] Speaker 08:
Nothing further.

[01:15:58] Speaker 05:
Thank you.

[01:15:58] Speaker 05:
Thank you.

[01:16:01] Speaker 05:
Sir Hayes, we'll give you the three minutes you asked for for rebuttal.

[01:16:08] Speaker 06:
Thank you, Your Honors.

[01:16:10] Speaker 06:
Just a few points on the bottle, just to hit some of the points that were raised here.

[01:16:14] Speaker 06:
So I think one of the points that was raised, starting with this idea that they're unique, plaintiffs are unique because they are in a female facility, I think it's important to emphasize that there was no determination made and there's nothing in the record to say that the reason any of these plaintiffs were in the female facilities is because the BOP made a determination that this is the only safe place

[01:16:36] Speaker 06:
that they can be housed.

[01:16:37] Speaker 06:
And the district court recognized that.

[01:16:39] Speaker 06:
He said in one of his opinions, it may well be there's a variety of circumstances, and that's true because it's a multi-leveled analysis.

[01:16:47] Speaker 06:
And so at this point, and the Stover Declaration say this explicitly, there is nothing to suggest, no evidence that safety was the determining factor or that the Bureau ever said determined that these plaintiffs could not be safely housed in mail facilities.

[01:17:03] Speaker 06:
There was some discussion about

[01:17:06] Speaker 06:
the plaintiffs being uniquely susceptible to harm because of transfer.

[01:17:11] Speaker 06:
I am unaware of any evidence that supports the idea that mere transfer from a female facility to a male facility, as opposed to the other scenarios Your Honor mentioned, coming in initially from one male to another male facility, no evidence that I'm aware of to say that that puts them at any sort of increased risk of harm at all.

[01:17:32] Speaker 05:
There's some discussion about, I think.

[01:17:34] Speaker 05:
It's not in any, as far as you know, in any of the affidavits that there's the prospect of targeting because of a transfer from a women's facility.

[01:17:43] Speaker 06:
No, I'm not aware of that.

[01:17:44] Speaker 06:
So their affidavits don't address a lot of the address hormones, which is not an issue in this case.

[01:17:48] Speaker 06:
And the one that's on point, I do not believe mentions that whatsoever.

[01:17:55] Speaker 02:
When you say there's nothing in the record saying that they couldn't be safely housed in men's facilities, I thought you just said that.

[01:18:06] Speaker 06:
You look like... That they can't be safe.

[01:18:08] Speaker 06:
No, what I said is there's nothing in the record indicating that the Bureau determined they had to be housed in female facilities to be safe.

[01:18:17] Speaker 06:
And so, yeah, okay, maybe I understand.

[01:18:18] Speaker 02:
You said there's... Maybe what you said was the BOP did not make a determination

[01:18:26] Speaker 02:
that they could not be safely housed.

[01:18:29] Speaker 02:
That's correct.

[01:18:30] Speaker 02:
I guess that's different from saying there's nothing, because I think there's a lot in the record showing that they can't be safely housed in men's facilities.

[01:18:36] Speaker 02:
Indeed, the declarations, their history of sexual assault and rape in men's facilities, and the experience of the women who were briefly transferred from women's facilities to men's facilities and brought back is all.

[01:18:53] Speaker 02:
I mean, you can quibble with,

[01:18:56] Speaker 02:
how powerful it is on the merits but there is ample evidence that they have not been safely housed and they have been in men's facilities.

[01:19:08] Speaker 06:
Well so I think what the relevant sort of level of analysis here isn't men's facilities generally because that of course would include high security men's facility where murderers and rapers are housed and that's a very different world.

[01:19:19] Speaker 06:
I think the relevant

[01:19:21] Speaker 06:
point that we need to look at is which facilities and the particular facilities that the Bureau has designated for them here.

[01:19:28] Speaker 06:
And that information is in the record.

[01:19:30] Speaker 06:
Still the different declarations lay it out.

[01:19:32] Speaker 06:
And there's a lengthy chart attached to, I believe, the second declaration in the Jones litigation, which lays out statistics on guilty findings of assault generally and then breaks it down based on sexual assault, which is lower level sexual assault or high level and so on.

[01:19:50] Speaker 06:
And I think those statistics are very revealing.

[01:19:53] Speaker 06:
So each one of these facilities, first of all, it's a low security facility, which means non-violent offenders are housed there.

[01:19:59] Speaker 06:
So this is not where other violent individuals who would be more at risk of being perpetrators are housed.

[01:20:05] Speaker 06:
So that's point number one.

[01:20:08] Speaker 04:
On your point number one, in fact, isn't there a requirement that the Bureau of Prisons or that the Attorney General submit a report to Congress every year with respect to rape and sexual harassment

[01:20:22] Speaker 04:
in federal prisons.

[01:20:25] Speaker 04:
I think there is.

[01:20:26] Speaker 04:
I trust you on that.

[01:20:28] Speaker 04:
Prison rape.

[01:20:29] Speaker 04:
And I ran the numbers.

[01:20:33] Speaker 04:
The last numbers I saw were 20, 23.

[01:20:37] Speaker 04:
And at that time, it was about 1,500,000 federal prisoners.

[01:20:44] Speaker 04:
And the incidence of rape or sexual harassment was one half of 1% of the population.

[01:20:52] Speaker 04:
Yeah.

[01:20:53] Speaker 02:
So one of the things I wondered about is you do, I think, repeatedly in your brief refer to, or maybe it's also in the declarations, refer to the target facilities, the low security men's facilities, you characterize as having lower incidents of assault or sexual assaults than the women's facilities.

[01:21:14] Speaker 02:
And that surprised me.

[01:21:18] Speaker 02:
And so I looked into it a little bit more.

[01:21:20] Speaker 02:
And I think what may, I mean,

[01:21:23] Speaker 02:
In the society at large, the women are more victimized of sexual assault more frequently than men, and men are more frequently the perpetrators.

[01:21:32] Speaker 02:
So the notion that if you had a women's prison, that people would be more.

[01:21:36] Speaker 02:
frequently victimized bisexual assault surprised me.

[01:21:40] Speaker 02:
But the figures include victimization by staff.

[01:21:46] Speaker 02:
And that makes me think that if you put a woman in a male, a transgender woman in a male facility, she may not have reason to take much comfort from the relatively low rates of assault there.

[01:22:06] Speaker 06:
Information I'm aware of that was attached in the Stover declarations.

[01:22:10] Speaker 06:
I don't know if you're on is referring to that Bureau of Justice statistics report.

[01:22:15] Speaker 06:
I'm referring now to like the data specific to these facilities.

[01:22:19] Speaker 06:
which I was a little surprised to have us be criticized for referring to a generalized data.

[01:22:25] Speaker 06:
That report is the only basis on which the ditch report relied, the only basis.

[01:22:29] Speaker 06:
So anything that the plaintiffs may say against that report in terms of the statistics not being disaggregated and so on is a problem for them.

[01:22:36] Speaker 06:
It's their burden, not a problem for us, because what we rely on is the information that Mr. Stover submitted, which lays out the guilty finances of assault for the facilities in which the plaintiffs are currently in,

[01:22:49] Speaker 06:
compared to the ones in which they have been designated for.

[01:22:53] Speaker 06:
And they are lower.

[01:22:54] Speaker 02:
All I'm saying is we don't know the most salient thing, which is how do the low-security men's facilities deal with transgender women being there?

[01:23:10] Speaker 02:
And it just stands to reason, and especially since there's past experience of some of these women, including in low-security men's facilities, being victimized.

[01:23:22] Speaker 06:
So I disagree with that because every single one of these facilities to which plaintiffs has been designated currently have trans-identifying men in them.

[01:23:31] Speaker 06:
So these rates, which are- We don't have that information.

[01:23:35] Speaker 02:
We don't have that broken down.

[01:23:37] Speaker 06:
I don't know how many.

[01:23:39] Speaker 02:
Where?

[01:23:39] Speaker 06:
No, I think we do.

[01:23:40] Speaker 06:
I mean, so we have.

[01:23:48] Speaker 06:
I don't know if I can specify certain facilities, because some of that might be under seal, right?

[01:23:53] Speaker 02:
But for we do have information of in a low security men's.

[01:23:58] Speaker 02:
Prison prison, which they don't have any of the residents there are trans women.

[01:24:02] Speaker 06:
This is in the Stover declarations.

[01:24:04] Speaker 06:
Yes.

[01:24:05] Speaker 06:
And so I think that's important because

[01:24:07] Speaker 06:
Number one, and to your point, it shows that looking at the very low rates in these prisons of sexual assault, that's not because they don't have this particularly vulnerable population in them.

[01:24:19] Speaker 06:
It's despite of the fact that they do.

[01:24:21] Speaker 06:
And they are still that low, which I think speaks to the point that this can't be a substantial risk problem that is objectively intolerable when you have, one, guilty finding of assault across all seven prisons

[01:24:35] Speaker 06:
Uh, in 2024.

[01:24:37] Speaker 06:
And that's not an anomaly at all from 2020 to 2021 zero.

[01:24:41] Speaker 06:
I think 2022 had one in one facility and then so on.

[01:24:45] Speaker 06:
Those are the numbers.

[01:24:45] Speaker 06:
And it's just very hard for me to say to think that that can rise to level an objective risk of serious harm when those are the numbers.

[01:24:53] Speaker 06:
And it also goes to show that this is these are facilities that are well aware of how to manage prison populations that have trans identifying people in them.

[01:25:01] Speaker 06:
And therefore, they are accustomed to knowing what issues might arise and how to address them.

[01:25:06] Speaker 06:
I see my time has expired.

[01:25:07] Speaker 06:
Thank you, Your Honor.

[01:25:08] Speaker 05:
I'm sure my colleagues don't have additional questions.

[01:25:11] Speaker 02:
Do you have anything about the burden not being on the BOP to show that there is some relief that exhaustion could provide?

[01:25:23] Speaker 02:
It's clearly on the BOP to raise exhaustion as an affirmative defense.

[01:25:27] Speaker 02:
Once you've said, look, we have an exhaustion process,

[01:25:31] Speaker 02:
to the extent that there's dispute about whether there's anything that can be, you know, any partial relief that can be provided through that.

[01:25:39] Speaker 02:
Is it your burden to establish that there is some relief, or is it the plaintiff's burden to negate that there might be some relief?

[01:25:49] Speaker 06:
I don't know the details of that.

[01:25:51] Speaker 06:
I do know that it's an affirmative defense.

[01:25:52] Speaker 06:
But beyond that, I'm not sure how this court or others have worked it out.

[01:25:56] Speaker 06:
I don't think we have anything directly on point.

[01:25:59] Speaker 02:
Okay.

[01:25:59] Speaker 06:
I haven't seen a case that addresses that.

[01:26:02] Speaker 06:
If you would like, we can submit a 28J on that question.

[01:26:05] Speaker 06:
We can also submit a 28J on the 11th Circuit jurisdictional question, if you so direct.

[01:26:13] Speaker 06:
Thank you.

[01:26:15] Speaker 05:
Thank you, Council.

[01:26:15] Speaker 05:
Thank you to both Council.

[01:26:16] Speaker 02:
If it's helpful, you might as well go ahead and submit.

[01:26:18] Speaker 02:
You said if we so direct, I'm just.

[01:26:20] Speaker 05:
On both of those?

[01:26:21] Speaker 05:
Yeah.

[01:26:21] Speaker 05:
Sure.

[01:26:22] Speaker 05:
Thank you, counsel.

[01:26:23] Speaker 05:
And if we want supplemental briefing, we'll issue something on that.

[01:26:26] Speaker 05:
Thank you, counsel.

[01:26:27] Speaker 05:
Thank you to both counsel.

[01:26:28] Speaker 05:
We'll take this case under submission.