Two attorneys accused of shopping for judges in a gender-affirming care lawsuit apologized Friday for potentially offending U.S. District Judge Liles C. Burke by withdrawing and refiling their original complaint.
Under questioning from Burke, Melody Eagan and Jeffrey Doss, attorneys for families challenging the ban on gender-affirming health care for transgender youth, acknowledged they had concerns about how Burke, nominated to the federal court by then-President Donald Trump in 2018, might go about making his decision, but said it was the least significant factor in their decision to dismiss his first filing, known as Ladinsky.
In 2022, the state of Alabama made it a felony, punishable by up to 10 years in prison, for doctors to prescribe puberty blockers and hormones for gender-affirming care to youth under the age of 19. Two lawsuits were filed challenging the ban, titled Walker and Ladinsky. presented shortly after. The cases were reassigned several times before they were linked and assigned to Burke.
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The attorneys then moved to dismiss the lawsuits. Walker’s suit was dismissed and not refiled, while Ladinsky’s was refiled as Eknes-Tucker, also assigned to Burke.
Burke claims the original cases were dismissed to avoid being assigned to him. A three-judge panel reported in October that there was evidence of efforts by plaintiffs’ attorneys to take their cases to a more favorable judge, a move that has raised questions of misconduct.
The attorneys said Friday that a major factor in seeking dismissal was concern that the case would be transferred to Burke outside of procedures they were familiar with and said that was the reason for their alarm at the time.
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Eagan said “this case had been treated differently than all the cases” he had worked on before. Burke said it is normal procedure for judges to transfer cases when they have conflicting commitments, and that is not an uncommon procedure.
“What makes you nervous when you’re transferred?” Burke asked.
“Our sensitivities were heightened by the nature of this nature,” Eagan said.
Burke asked Doss the same questions.
“Do you feel entitled to an explanation?” Burke asked.
“Looking back, maybe I overreacted,” Doss said.
Eagan and Doss said the second main concern in their decision to dismiss the case was the coordination of legal strategy with Walker’s team and the loss of lead status on the case. Having the lead role would allow them to “better craft the legal argument,” Eagan said.
Both Eagan and Doss apologized to Burke during questioning.
“I’m very sorry. I’m very sorry. I’m sorry if I did anything that offended your honor or your dignity,” Eagan said.
“I am sorry and I apologize today. I am sorry I let you down,” Doss said.
Burke blocked the law in May 2022, citing parental rights and lack of evidence of drug harm.
“In this particular case, I didn’t think you were a good candidate. I was wrong,” Eagan said.
Last year, a three-judge panel of the 11th U.S. Circuit Court of Appeals overturned Burke’s ruling, saying there was no “fundamental right” to gender-affirming care. The plaintiffs and the U.S. Department of Justice are asking for a stay of the proceedings while the Supreme Court reviews a similar ban in Tennessee.
Burke also questioned Carl Charles, an attorney who called U.S. District Judge Myron Thompson after the Walker case was filed. At the time of questioning by the three-judge panel, he did not recall making that call until a few minutes later, when one of the judges asked him if his phone number was the same as the one he had called one of Myron’s law clerks. A few minutes later, Charles recalled that he made the call to alert the chamber that they had filed the Walker lawsuit, which was related to another lawsuit that Thompson was assigned to handle, and corrected his statement to the panel.
“I respectfully and wholeheartedly disagree with the panel,” Charles said of the panel’s claim that he was lying, adding that “my memory failed me.”
Charles said he was not prepared to be questioned and did not expect to answer questions at the hearing since he was not one of the lead attorneys in the case.
In his closing statement, Barry Ragsdale, Charles’ attorney, said he felt responsible for putting Charles in this position.
“I’m really emotional right now,” he said, adding, “I do a really good job of hiding my feelings, but today is tough.”
He said he interpreted that he would speak at the panel hearing and that he did not believe it was necessary to prepare Charles for questioning.
“This call has taken on a lot more significance than I had imagined,” Ragsdale said.
In a discussion about the ethics of using Rule 41, which allows the moving party the ability to dismiss without giving the court an explanation, Burke proposed several different scenarios to Eagan and asked him after each one if he thought they were ethical or permissible. .
The scenarios ranged from an attorney hypothetically dismissing the same case and refiling it with a different plaintiff 20 times until reaching a favorable judge, to an attorney dismissing a case every time it was assigned to a black female judge instead of a white one over the course of a 30-year career.
Eagan said each of those scenarios would be permissible under Rule 41, but that he would not implement any of them because he found them “unpleasant.”
“If you can fire someone for any reason, I’m not sure there is such a thing as an improper reason,” she said.
Burke completed the hearings on Friday afternoon. He did not say when he might make a decision on the case, which could include sanctions for the attorneys.