By Christopher Zoukis

In an unusual opinion based on an issue completely missed by the parties, the United States Court of Appeals for the Eleventh Circuit has vacated an injunction that required the State of Florida to "provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher."

The case began in 2012 when the United States sued the Florida Department of Corrections under the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleging that Florida was not providing a kosher diet to eligible prisoners. In response to the lawsuit, Florida instituted a new policy referred to as "the Religious Diet Program." This program would allegedly provide prisoners with kosher meals, so long as they passed an undefined "sincerity test" and refrained from purchasing any item not deemed kosher. The program also disallowed "bartering" using kosher food.

The United States moved for a preliminary injunction after Florida implemented the new Religious Diet Program. The district court entered a preliminary injunction requiring Florida to "provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher." The injunction also prohibited Florida from enforcing the exceptions to program eligibility. Florida filed an appeal of the district court's decision to grant the preliminary injunction.

And then things got weird.

On appeal, the Eleventh Circuit found that the parties and the district court overlooked controlling statutory provisions that not only rendered Florida's appeal moot, but also required it to vacate the preliminary injunction. In other words, Florida lost the appeal, but the court vacated the injunction anyway.

The statute in question was the Prison Litigation Reform Act (PLRA). The PLRA specifies that a preliminary injunction automatically expires after 90 days unless the district court makes specific findings that the relief is "narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." The PLRA also requires that the district court make the preliminary injunction order final before the expiration of the 90-day period.

The district court did neither of these things, and no one noticed. Florida continued on as if the preliminary injunction was still in force. Both parties litigated the appeal of the injunction as if it were still a live issue.

But it wasn't. The Eleventh Circuit found that because the preliminary injunction had expired by operation of law, there was no issue to decide, rendering the appeal moot. This was the case regardless of whether the parties believed that the preliminary injunction still existed.

"The preliminary injunction in the present case passed on to injunction heaven on March 6, 2014," noted the court. "And with it died this appeal."

Unfortunately for prisoners in Florida, the appellate court not only dismissed Florida's appeal, but vacated the order that entered the injunction in the first place. As such, if Florida continues to enforce the Religious Diet Program, as well as its dubious requirements and exceptions, the United States will need to file a new lawsuit in order to stop it.

Case:  United States of America v. Secretary, Florida Dep't of Corrections, United States Court of Appeals for the Eleventh Circuit, Case No. 14-10086 (February 27, 2015).

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