Judge Kayatta – The Great Dissenter?


So in our August round up of Judge Kayatta's first year, we noted, among other things, a dissent he authored in a bankruptcy case that we thought might be ripe for cert petition (Judge Kayatta – Year 1).  We were right – they petitioned for cert on Oct. 8, and the Court asked for a response. due today.  (Doc. 14-418).  In other words, the Court is interested, and there's a decent chance cert will be granted – understandable, since in the First Circuit decision, the majority decided to deviate from every other circuit addressing the issue presented. 

In another more recent case, Judge Kayatta wrote a ringing dissent in an appeal heard en banc – Kosilek v. Spencer, No. 12-2194.  There were 5 judges (like Darmouth, the First Circuit is a small place, but we like it.)  The majority opinion was written by Judge Torruella, joined by Judge Howard and CJ Lynch.  There were two dissenting opinions, one from Judge Thompson, and one from Judge Kayatta.

District Court Judge Wolf had found that the plaintiff prisoner had shown, through expert and other evidence, that she suffers from gender identity disorder, and that surgery was needed to treat the disorder.  The majority said nope, hormones were enough. 

Focusing on Judge Kayatta's dissent, he first noted that the standard of review was straightforward and agreed upon, so that the decision turned on the facts, which included evidence of a serious medical need, and that prison doctors as well as specialists hired by those doctors had said that surgery was required.  Had Judge Kayatta been the trial judge, he said that he would likely have found against the plaintiff as to whether surgery was required based on the testimony of an independent expert appointed by the trial court; but, he wrote: "I am not the trial judge in this case.  Nor are my colleagues.  And that is the rub."

The majority, he wrote, never explained why the trial court's findings were not pure findings of fact subject solely to review for clear error.  "Nor can it."  Judge Kayatta added:  "Let me be plain on this point:  Until today, there was absolutely no precedent (and the majority cites none) for reviewing such quintessentially factual findings under anything other than the clear error test." 

He continued:  "Of course, deferring to the trial judge's fact-finding happens to produce a result in this case that some of us find surprising, and much of the public likely finds shocking.  Scientific knowledge advances quickly and without regard to settled norms and arrangements.  It sometimes draws in its wake a reluctnant community, unnerved by notions that challenge our views of who we are and how we fit in the universe. "

But in this context, he reasoned, the solution is to trust the trial judge to make the fact-finding.  "Instead, by deciding the facts in this case as an appellate court essentially finding law, the majority ends any search for the truth through continued examination of the medical evidence by the trial courts.  It locks in an answer that binds all trial courts in the circuit:  no prison may be required to provide [surgery] to a prisoner who suffers from gener dysphoria as long as a prison official calls up Ms. Osborn or Dr. Schmidt.  Acknowledging that the majority may well be correct on the facts, I nevertheless decline the invitation to join the majority in embracing the authority to decide the facts.  I suspect that our court will devote some effort in the coming years to distinguishing this case, and eventually reducing it to the one-off reserved only for transgender prisoners."