author: BRORBY, Circuit Judge.

text:
    Tammie JOHNSON, Elizabeth York, Judy O’Connor, Patricia Caudill, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF FREMONT; Bob Cheek, in his official capacity, Defendants. Cathy Greer, The Law Firm of Hall & Evans, Movants-Appellants.
    No. 95-1075.
    United States Court of Appeals, Tenth Circuit.
    June 4, 1996.
    Rehearing Denied July 30, 1996.

      Richard C. LaFond, Terry Clausen, and Arnold M. Woods, of LaFond & Clausen, L.L.C., Denver, Colorado, for Plaintiffs-Appellees.
    Cathy H. Greer, Alan Epstein, and Josh Marks, of Hall & Evans, L.L.C., Denver, Colorado, for Movants-Appellants.
    Before BRORBY and BARRETT, Circuit Judges, and BRIMMER, District Judge.

       The Honorable Clarence A. Brimmer, United States District Judge for the District of Wyoming, sitting by designation.

   BRORBY, Circuit Judge.

Attorney Cathy Greer and the law firm of Hall & Evans appeal from an order finding that Attorney Greer violated the Colorado Rules of Professional Conduct by representing defendant Bob Cheek in his official capacity only. We affirm, although we apply a different analysis than the district court.

I. Factual & Procedural Background

Mr. Cheek was at all relevant times sheriff of Fremont County, Colorado. While Mr. Cheek was serving as sheriff, four female employees of the Fremont County Sheriffs Department commenced actions against the Board of County Commissioners for the County of Fremont, claiming Mr. Cheek had sexually harassed them in violation of Title VII of the Civil Rights Act of 1964. The board answered, stating it had no legal responsibility for actions of the sheriffs department.

Plaintiffs filed amended complaints adding Mr. Cheek as a defendant to their Title VII claims. The caption listed Mr. Cheek as a defendant in his official capacity. Attorney Greer answered on behalf of Mr. Cheek in his official capacity as sheriff of Fremont County. On June 17, 1994, plaintiffs filed second amended complaints adding a claim under 42 U.S.C. § 1983, and naming Mr. Cheek as a defendant in both his official and individual capacities. These complaints alleged that Mr. Cheek’s actions were taken “both inside and outside the scope of his authority.” Mr. Cheek filed answers in his official capacity, asserting as a defense that “[t]he actions complained of by plaintiff[s] were not taken pursuant to any official custom!,] policy or practice.”

On July 29,1994, Mr. Cheek in his individual capacity and pro se, moved for an extension of time to answer because he was seeking declaratory relief from state court to determine whether the Board of County Commissioners would provide counsel to represent him in his individual capacity. The district court granted the extension.

On September 16, 1994, because the state court had not yet ruled, Mr. Cheek moved for a second extension of time- to file an answer in his individual capacity. The district court denied the motion and ordered Attorney Greer to “show cause in writing ... why all pleadings filed on behalf of Mr. Cheek should not be stricken and under what legal authority [she] presumes to enter a limited appearance on behalf of a party of record.”

Attorney Greer filed a response. She explained that there is a distinction between individual and official capacity suits in that in an official capacity suit, the real party in interest is the governmental entity whereas in an individual capacity suit, liability is sought to be imposed against the individual governmental officer. She stated there are two separate defendants — the government entity that employs Mr. Cheek (Mr. Cheek in his official capacity), and Mr. Cheek in his individual capacity. Further, as of January 1995, a successor to Mr. Cheek would be elected who would then hold the office of sheriff and be represented by counsel.

On October 3, 1994, Mr. Cheek, appearing pro se, answered the second amended complaints in his individual capacity. He adopted all of the assertions in the answer filed by Attorney Greer, and added the additional affirmative defense of qualified immunity with respect to the claim for relief under § 1983.

On October 19, 1994, Attorneys Theodore Halaby and Robert Liechty attempted to enter appearances for Mr. Cheek in his individual capacity. At the hearing held that day, the district court struck all entries of appearances, including Attorney Greer’s, and gave Mr. Cheek an additional thirty days to answer the second amended complaint, either pro se or with an attorney or attorneys representing him in both his capacities.

In a subsequently issued published decision, the district court stated that, although a person may be sued in more than one capacity, that did not mean an attorney may limit his or her appearance to only one of those capacities. Johnson v. Board of County Comm’rs, 868 F.Supp. 1226, 1230 (D.Colo.1994). Reasoning that a party with an attorney of record may appear only through that attorney, the district court determined that by entering an appearance on behalf of Mr. Cheek in his official capacity, Attorney Greer precluded him from appearing pro se or from retaining other counsel for the individual capacity claims. Id. at 1230. The court concluded that by representing Mr. Cheek only in his official capacity, Attorney Greer left him exposed on the claims against him in his individual capacity and therefore violated Colorado Rules of Professional Conduct, Rule 1.1, which requires that a lawyer “provide competent representation to a client.” Id. at 1231. While the court recognized that Colorado Rules of Professional Conduct, Rule 1.2(c) permits a lawyer to “limit the objectives of the representation if the client consents after consultation,” it noted a client may not be asked to agree to representation so limited in scope as to violate Rule 1.1. Id.

In reaching its conclusion Attorney Greer had not satisfied her obligations under the Colorado Rules of Professional Conduct, the district court also made the following findings:

It is not clear who has requested Greer to represent Cheek. The record is silent on this matter. There is no indication that Cheek, whom Greer ostensibly represents, has demanded that his representation be bifurcated....
It is clear, however, that Greer has been instructed by someone not appearing before the court to represent Cheek only insofar as he holds the official title of Sheriff of Fremont County----
Whether Greer consulted with Cheek to obtain his consent to such limited representation is not apparent on the information of record.

Id. at 1230-31.

The attorneys filed a petition for writ of mandamus challenging the order. We denied the petition. Cheek v. Kane, No. 94-1524 (10th Cir. Nov. 29, 1994). The parties settled the underlying action, and the cases were dismissed with prejudice. The attorneys then filed this appeal. We ordered the parties in this appeal to submit briefs addressing whether the appeal should be dismissed as moot based on the settlement of the underlying action.

II. Analysis

A. Mootness

We will dismiss an appeal as moot if it is impossible for this court to grant the appellant any effectual relief whatsoever. In re Material Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir.1996).

We held in G.J.B. & Assocs., Inc. v. Singleton, 913 F.2d 824, 827 (10th Cir.1990), that a sanctions order against an attorney currently of record is not immediately appealable as a final judgment where the underlying controversy is unresolved. Further, such an order is not appealable under the collateral order exception to the final judgment rule because it could be appealed by the attorney at the conclusion of the underlying ease, even if the parties settle or elect not to appeal. Id. at 827-29.

In United States v. Dickstein, 971 F.2d 446 (10th Cir.1992), we addressed whether an attorney who no longer was involved in the underlying action because his pro hac vice status had been revoked could take an immediate appeal from the revocation order, even though the underlying case had not been concluded. We held the attorney could not because the order was not a final judgment. Id. at 448. Further, because the attorney was seeking an appeal only to vindicate his reputation, rather than to be allowed to continue representing his client, we saw no reason why the order could not effectively be reviewed on appeal from the final judgment. Id. at 451. Even the former client’s acquittal would not render the revocation order unreviewable at the conclusion of the underlying case. Id. Thus, the order was not appeal-able under the collateral order exception to the final judgment rule. Id.

These cases establish that settlement of an underlying case does not preclude appellate review of an order disqualifying an attorney from further representation insofar as that order rests on grounds that could harm his or her professional reputation. We therefore conclude the appeal is not moot insofar as the district court’s order found that Attorney Greer had violated the Colorado Rules of Professional Conduct. See Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir.1989) (holding challenge to order disqualifying attorney was not moot, despite dismissal of underlying case, where order’s “brand of disqualification” on grounds of dishonesty and bad faith could hang over attorney’s name and career for years). That the underlying cases were dismissed pursuant to a stipulation for dismissal with prejudice has no effect on the attorneys’ right to appeal because they were not parties to the stipulation. Cf. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 526 (10th Cir.1992).

B. Merits

Attorney Greer contends separate legal representation is required where there are claims against a public official in both his official and individual capacities that create a potential for conflicting defenses.

When a governmental official is sued in his official and individual capacities for acts performed in each capacity, those acts are “treated as the transactions of two different legal personages.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n. 6, 106 S.Ct. 1326, 1332 n. 6, 89 L.Ed.2d 501 (1986) (internal quotation marks omitted). Thus, a person sued in his official capacity has no stake, as an individual, in the outcome of the litigation. Id. at 543-44, 106 S.Ct. at 1332-33. Personal or individual capacity suits “seek to impose personal liability upon a government official for actions he takes under color of state law,” while an official capacity suit is “only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (internal quotation marks omitted). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,” and not as a suit against the official personally, “for the real party in interest is the entity.” Id. at 166, 105 S.Ct. at 3105.

The distinctions between suits against an official in his individual and official capacities give rise to differing and potentially conflicting defenses. Most notably, the government entity could defend itself by asserting that the official whose conduct is in question acted in a manner contrary to the policy or custom of the entity. See id. at 166, 105 S.Ct. at 3105. Also, an individual capacity defendant could assert the defense of qualified immunity. See Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.) (explaining potential conflicts between defenses of municipality and its employees in § 1983 action).

Given the potential conflict between the defenses available to a government official sued in his individual and official capacities, we have admonished that separate representation for the official in his two capacities is a “wise precaution.” Medina v. Housing Auth. of San Miguel County, No. 91-2094, 1992 WL 218990 at *3 (10th Cir. Sep. 4, 1992) (unpublished order and judgment). Although we did not hold that the potential for conflict mandates separate representation, we did hold it was not error to allow separate representation. Id. at *4. While some courts have held separate representation is required in the face of the potential conflict, see, e.g., Ricciuti v. New York City Transit Auth., 796 F.Supp. 84, 88 (S.D.N.Y.1992); Shadid v. Jackson, 521 F.Supp. 87, 90 (E.D.Tex.1981), we decline to adopt a per se rule. We hold that when a potential conflict exists because of the different defenses available to a government official sued in his official and individual capacities, it is permissible, but not required, for the official to have separate counsel for his two capacities. See Silva v. Witschen, 19 F.3d 725, 732 (1st Cir.1994); Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir.1982); Clay v. Doherty, 608 F.Supp. 295, 303 (N.D.Ill.1985). Obviously, if the potential conflict matures into an actual material conflict, separate representation would be required. See Dunton, 729 F.2d at 907-08; Clay, 608 F.Supp. at 303; Model Rules of Professional Conduct, Rule 1.7.

Though separate representation is permissible, an attorney may not undertake only the official capacity representation at his or her sole convenience. Under Colorado Rules of Professional Conduct, Rule 1.2(c), a lawyer may limit the objectives of her representation only “if the client consents after consultation.” In the case where an attorney has been hired to represent a government official in only his official capacity in a suit where the official is also exposed to liability in his individual capacity but has no representation in that capacity, this rule serves an important function. When adhered to properly, the rule ensures the defendant is adequately informed about the workings of 42 U.S.C. § 1983 and the potential conflict between the defenses he may have in his separate capacities. Above all else, the attorney and the district court should ensure the official is not under the impression that the official capacity representation will automatically protect his individual interests sufficiently. Courts have recognized a “need for sensitivity” to the potential for conflict in this area, and have advised that “[t]he bar should be aware of potential ethical violations and possible malpractice claims.” Gordon v. Norman, 788 F.2d 1194, 1199 n. 5 (6th Cir.1986) (quotation omitted). In the service of these interests, we embrace the Second Circuit’s procedure whereby counsel notifies the district court and the government defendant of the potential conflict, the district court determines whether the government defendant fully understands the potential conflict, and the government defendant is permitted to choose joint representation. See Kounitz v. Slaatten, 901 F.Supp. 650, 659 (S.D.N.Y.1995). In addition, the defendant should be told it is advisable that he or she obtain independent counsel on the individual capacity claim. We reinforce that, as with many issues relating , to the relationship between attorney and client, the crucial element is adequate communication.

In the instant case, the district court found:

It is not clear who has requested Greer to represent Cheek. The record is silent on this matter. There is no indication that Cheek, whom Greer ostensibly represents, has demanded that his representation be bifurcated----
It is clear, however, that Greer has been instructed by someone not appearing before the court to represent Cheek only insofar as holds the official title of Sheriff of Fremont County----
Whether Greer consulted with Cheek to obtain his consent to such limited representation is not apparent on the information of record.

Johnson, 868 F.Supp. at 1230-31.

Our review of the record confirms these observations. The district court concluded Attorney Greer “left Cheek exposed on those claims which can be sustained against him in his individual capacity.” Id. at 1231. Given that Attorney Greer has not demonstrated that she consulted with Mr. Cheek about the mechanics of § 1983 and the exposure he was facing in his individual capacity or brought the matter to the district court’s attention, we are not prepared to hold the district court erred in its finding Attorney Greer failed to satisfy her obligations to Mr. Cheek.

The decision of the district court is AFFIRMED, but the reasoning and analysis in Johnson, 868 F.Supp. 1226, are disapproved to the extent they conflict with our opinion.

      . After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

      . Mr. Cheek later admitted to the district court that the documents he filed in his individual capacity and pro se, although signed by him, were ghostwritten by the Fremont county attorney.

      . The court was also critical of the practice of attorneys ghostwriting for pro se litigants. However, Attorney Greer did not engage in that conduct, and this aspect of the court's ruling is not at issue in this appeal.

      . An attorney would lack standing to challenge the order insofar as it affected only his or her client’s rights. Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir.1993).


source: Caselaw Access Project

author: BARRETT, Senior Circuit Judge.

license: Public Domain

text:
    Kenneth HAMILTON, on behalf of himself and all other employees of the Tulsa County Public Facilities Authority similarly situated, Plaintiff-Appellant, v. TULSA COUNTY PUBLIC FACILITIES AUTHORITY, Defendant-Appellee.
    No. 95-5247.
    United States Court of Appeals, Tenth Circuit.
    June 6, 1996.

      Michael T. Keester (Steven A. Broussard with him, on the brief) of Hall, Estill, Hardick, Gable, Golden & Nelson, Tulsa, Oklahoma, for appellee.
    Eric B. Bolusky of Lester & Bryant, Tulsa, Oklahoma, for appellant.
    Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
   BARRETT, Senior Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Kenneth Hamilton, George Bradley, Eddie Ray Tearel, and Rosalee Wood (collectively “Appellants”) appeal from the district court’s Order granting Tulsa County Public Facilities Authority’s (TCPFA) Motion for Summary Judgment and denying Appellants’ Motion for Summary Judgment.

Appellants are former employees of TCPFA. Hamilton, Bradley, and Tearel performed maintenance work for TCPFA Wood was a security guard. During their employment with TCPFA Appellants were compensated at their regular rate of pay for hours worked in excess of forty hours per week.

TCPFA is a public trust which manages the Tulsa County Fairgrounds. Tulsa County is the beneficiary. By its Charter, TCPFA’s primary purpose is to “establish, provide, maintain and promote recreational centers, agricultural and industrial expositions, fairs, trade shows and other recreational facilities and activities.” It is undisputed that more than 50% of TCPFA’s income is derived from recreational or amusement activities, including the Tulsa State Fair, horse racing, amusement and water parks, and baseball.

Appellants filed this action to collect unpaid overtime compensation for hours worked in excess of forty hours per week pursuant to the Fair Labor Standards Act (the FLSA), 29 U.S.C. § 207(a). TCPFA defended on the basis that it was not required to pay Appellants overtime under § 207(a), because it was statutorily exempt pursuant to the amusement or recreational establishment exemption to the FLSA, 29 U.S.C. § 213(a)(3).

On October 12, 1995, the district court granted TCPFA’s Motion for Summary Judgment finding/concluding that TCPFA was an amusement or recreational establishment and that the exemption found in 29 U.S.C. § 213(a)(3) applied.

On appeal, Appellants contend that the district court erred in granting TCPFA’s Motion for Summary Judgment because: (1) they were not covered by the exemption, inasmuch as they were not serving in traditional recreational or amusement activities; and (2) TCPFA does not meet the criteria of a single establishment under the recreational and amusement exemption, inasmuch as the various businesses on the fair grounds constitute separate establishments.

We review a district court’s grant or denial of summary judgment de novo, applying the same legal standard used by the district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995) (citations omitted). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.

Generally, the FLSA requires employers to pay employees at least one and one-half times their regular rate of pay for all hours worked in excess of forty hours per week as “overtime compensation.” 29 U.S.C. § 207(a). However, the FLSA specifically exempts “any employee employed by an establishment which is an amusement or recreational establishment____” 29 U.S.C. § 213(a)(3). “‘Amusement or recreational establishments’ as used in [§ 213(a)(3)] are establishments frequented by the public for its amusement or recreation.” 29 C.F.R. § 779.385. An amusement or recreational establishment employer qualifies for the exemption if “(A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33/6 per centum of its average receipts for the other six months of such year....” 29 U.S.C. § 213(a)(3).

a.

It is undisputed that TCPFA’s average receipts for any six months are not more than 33]é% of its average receipts for the other six months of the year. Therefore, TCPFA qualifies as an amusement or recreational establishment under § 213(a)(3)(B). However, Appellants argue that TCPFA is not entitled to the exemption under § 213(a)(3), because the type of work they performed was not traditional amusement or recreational activities.

By its own terms, § 213(a)(3) of the FLSA exempts employees employed by amusement or recreational establishments; it does not exempt employees on the basis of the work performed at an amusement or recreational establishment. It is the character of the revenue producing activity which affords the employer the protection of the exemption. 29 C.F.R. § 779.302. See Hays v. City of Pauls Valley, 74 F.3d 1002, 1006 (10th Cir.1996); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 596 (11th Cir.1995); Marshall v. New Hampshire Jockey Club, Inc., 562 F.2d 1323, 1331 n. 4 (1st Cir.1977); Brennan v. Southern Productions, Inc., 513 F.2d 740, 746-47 (6th Cir.1975). Since TCPFA is in the business of providing “amusement and recreation” to the public and it has satisfied the requirements of § 213(a)(3)(B), its employees are exempt from the requirement of the overtime provisions of the FLSA, 29 U.S.C. § 207(a).

b.

Appellants contend that because the various businesses located on the fairgrounds constitute separate establishments, TCPFA does not meet the requirement of a single establishment under § 213(a)(3) in relation to Hamilton, Bradley and Tearel since they were central maintenance employees who served more than one “establishment” on the fairgrounds.

Appellants rely on Brennan v. Yellowstone Park Lines, Inc., 478 F.2d 285 (10th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 228, 38 L.Ed.2d 147 (1973), in which we held that the various facilities in Yellowstone National Park were separate and distinct establishments and not a single integrated establishment and that, based on the agreements of the parties, the central employees who worked for several or all of the facilities were not exempt. Appellants reliance is misplaced. Before we reach the issue in Yellowstone Park of whether an employer’s individual operations are a single integrated establishment or separate and distinct establishments, there must be a common owner and/or operator.

Unlike the employers in Yellowstone Park who owned and operated all of the individual facilities in Yellowstone National Park, TCPFA does not own or operate the other businesses located on the fairgrounds; it simply leases the property to them. Therefore, the issue is solely whether TCPFA is an amusement or recreational establishment in and of itself. Whether the other businesses located on the fairground may or may not be amusement or recreational establishments entitled to the exemption under § 213(a)(3) is irrelevant.

After reviewing the record, we conclude that TCPFA satisfies the requirements of the amusement or recreational establishment exemption. First, TCPFA manages the fairgrounds as a distinct physical place of business. Second, it is undisputed that TCPFA’s primary purpose is to establish, provide, maintain, and promote recreational centers, agricultural and industrial expositions, fairs, trade shows, and other recreational facilities and activities. Therefore, TCPFA is an amusement or recreational establishment within the meaning of § 213(a)(3) and its employees are exempt from the FLSA.

AFFIRMED.

      . Prior to this action, Wood filed a claim for overtime pay under § 207(a) of the FLSA with the Department of Labor. Her claim was denied on the grounds that TCPFA was exempt as an amusement or recreational establishment.

      . On December 16, 1994, Hamilton filed his complaint. Bradley and Tearel filed Consents of Individuals to Become Party Plaintiff in Collective Action under § 16(b) of the Fair Labor Standards Act on December 29, 1994. Wood filed her consent to join on February 17, 1995.

      . In Brennan v. Six Flags Over Georgia, Ltd., 474 F.2d 18, 19 (5th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 47, 38 L.Ed.2d 61 (1973), the Fifth Circuit concluded that "[t]he nature of the work is what gives rise to the need for an exemption; the exemption is not a subsidy accorded to an employer because of his principal activities.” We do not agree with this broad statement and decline to follow this view, especially in light of the Fifth Circuit’s failure to do so in Brennan v. Texas City Dike & Marina, Inc., 492 F.2d 1115, 1119 (5th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 175, 42 L.Ed.2d 140 (1974), wherein the court concluded that “its principal activity should be determinative of the marina’s eligibility for an exemption.”

      . 29 C.F.R. § 779.303 provides us with illustrative examples of common ownership or operation.


author: MURPHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlton J. WATKINS, Defendant-Appellant.
    No. 95-3169.
    United States Court of Appeals, Tenth Circuit.
    June 7, 1996.

      D. Blair Watson, Assistant United States Attorney, Wichita, Kansas (Randall K. Rathbun, United States Attorney, Wichita, Kansas, on the brief), for Plaintiff-Appellee.
    Laura B. Shaneyfelt, Focht, Hughey & Calvert, Wichita, Kansas (John E. Cowles, Law Office of John E. Cowles, Wichita, Kansas, on the brief), for Defendant-Appellant.
    Before PORFILIO, HOLLOWAY, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

After a jury trial, defendant Carlton J. Watkins was found guilty of both conspiracy to distribute and distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Watkins appeals, claiming that the district court erred when it allowed the prosecution in its case-in-ehief to present certain incriminating statements made by Watkins to an agent of the Drug Enforcement Administration (“DEA”). We affirm.

BACKGROUND

Watkins was charged in a superseding indictment with one count of conspiring to distribute and four counts of distributing crack cocaine. Watkins eventually entered into plea negotiations with Blair Watson, an Assistant United States Attorney. During a meeting on or about May 19, 1994, Watkins gave a proffer of the information that he could provide to the prosecution. Specifically, Watkins told Watson that he had distributed crack cocaine and also divulged the name of his source for the crack cocaine. The meeting was attended by Watkins and his attorney Richard Seaton, Watson, and a number of law enforcement personnel, including DEA Agent Darrell Pressnell. Watkins was informed that anything he said during that May 19th meeting was protected by Rule 11 of the Federal Rules of Criminal Procedure.

After evaluating the information that Watkins had provided during the May 19th meeting, Watson agreed to enter into a plea agreement with Watkins. A written plea agreement was subsequently entered into on June 6, 1994. That agreement specifically provided as follows:

It is further understood that no information given by this defendant subsequent to and in response to this agreement will be used against him in any criminal ease or criminal investigation, except ... if he violates any provision of this Plea Agreement, in which event it is specifically understood and agreed that all information given by him or derivatives, shall be admissible in evidence in any proceedings against him.

Upon Watkins’ entry into the plea agreement, the government arranged for him to be released to a halfway house in order to facilitate his cooperation.

On June 7,1994, after Watkins had already entered into the plea agreement, Agent Pressnell transported Watkins to the DEA office and debriefed him. Watkins was not represented by counsel at the June 7th meeting and was not told that his statements could be used against him. During the debriefing, Watkins repeated his earlier statement that he had sold crack cocaine and also identified the same source for the drugs that he had identified during the May 19th meeting. The following day, June 8, 1994, Watkins breached the plea agreement by escaping from the halfway house.

After Watkins was apprehended, the government brought him to trial. Both before and at trial, Watkins objected to the introduction of all statements that he had made to law enforcement personnel during the May 19th and June 7th meetings. Although the district court suppressed the statements made during the May 19th meeting, it refused to block the admission of the statements made at the June 7th meeting. According to the district court, Rule 11(e)(6) only applies to statements made during the plea negotiations process. Because the statements during the June 7th meeting were made after the plea agreement had already been reached, the district court held that Rule 11(e)(6) did not preclude their admission. Watkins appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

Watkins’ appeal presents the following question: Are statements made by a criminal defendant pursuant to, but subsequent to the finalization of, a plea agreement entitled to protection under Rule 11(e)(6) of the Federal Rules of Criminal Procedure. Other circuits have considered this issue and conclude that they are not.

Federal Rule of Criminal Procedure 11(e)(6) provides, in relevant part, as follows:

Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Fed.R.Crim.P. 11(e)(6)(D). By its very terms, Rule 11(e)(6)(D) only excludes those statements which are made “in the course of plea discussions.” Id. Furthermore, the policy underlying Rule 11(e)(6)(D) is “to allow a defendant to freely negotiate without fear that statements will [later] be used against him.” United States v. Knight, 867 F.2d 1285, 1288 (11th Cir.), cert. denied, 493 U.S. 846, 110 S.Ct. 139, 107 L.Ed.2d 98 (1989); see also United States v. Lloyd, 43 F.3d 1183, 1186 (8th Cir.1994) (quoting Knight). Accordingly, both the language of, and the policy underlying, Rule 11(e)(6)(D) verify that once a plea agreement is reached, statements made thereafter are not entitled to the exclusionary protection of the Rule. Knight, 867 F.2d at 1288; Lloyd, 43 F.3d at 1186; United States v. Davis, 617 F.2d 677, 685 (D.C.Cir.1979), cert. denied sub nom. Gelestino v. United States, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980); United States v. Stirling, 571 F.2d 708, 731 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978). Because the statements of Watkins at issue here were made after the plea agreement had already been finalized, they are not entitled to Rule ll(e)(6)(D)’s exclusionary protection.

In an effort to distinguish Lloyd, Knight, Davis, and Stirling, Watkins asserts that the rule set out in those cases does not apply here because unlike the situation in the aforementioned cases, Watkins’ June 7th statements are identical to the protected statements he made at the May 19th meeting. The mere fact that the statements made at the June 7th meeting were substantively identical to the statements made at the May 19th meeting does not mean that the June 7th statements are somehow covered by Rule 11(e)(6). As noted in Davis, the purpose of Rule 11(e)(6) is to foster free dialogue and encourage compromise in the plea negotiation process. 617 F.2d at 685. That purpose is not served by excluding statements made after a plea agreement has been reached. This is true whether the subsequent statements are the same as those made during the plea negotiations process or not.

Finally, Watkins argues that the plea agreement itself prohibits the use of the statements made at the June 7th meeting. In support of his contention, Watkins points to language in the plea agreement providing that “[i]t is further understood that no information given by this defendant subsequent to and in response to this agreement will be used against him in any criminal case or investigation.” Unfortunately, Watkins fails to note that the provision he cites does not apply if “he violates any provision of this Plea Agreement, in which event it is specifically understood and agreed that all information given by him or derivatives, shall be admissible in evidence in any proceedings against him.”

As indicated above, statements made after the plea agreement has been entered into are not entitled to protection under Rule 11(e)(6). Thus, the June 7th statements may be excluded only under the terms of the plea agreement. See Lloyd, 43 F.3d at 1185-86 (discussing a plea provision similar to the one at issue here). The agreement, however, specifically provides that any statements Watkins might make after entering into the agreement are admissible if he breaches the agreement. Because the parties do not dispute that Watkins breached the agreement when he left the halfway house, his statements at the June 7th meeting are admissible under the plea agreement.

The judgment of the district court is hereby AFFIRMED.

      . In light of this determination that statements made by a criminal defendant after the finalization of a plea agreement are not entitled to protection under Rule 11(e)(6)(D), this court need not address Watkins' argument that Rule 11 protections cannot be waived.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Victor H. STREVEL, Defendant-Appellant.
    No. 94-8896
    Non-Argument Calendar.
    United States Court of Appeals, Eleventh Circuit.
    May 10, 1996.
    Jay Lester Strongwater, Strongwater & Cherniak, Atlanta, GA, for Appellant.
    Kent Alexander, U.S. Atty., Martin James Weinstein, Asst. U.S. Atty., Atlanta, GA, for Appellee.
    Before TJOFLAT, Chief Judge, and EDMONDSON and BARKETT, Circuit Judges.
   PER CURIAM:

Appellant challenges his sentences of imprisonment for structuring transactions to evade IRS reporting requirements on two grounds. First, appellant contends that the district court erred in calculating his criminal history category by treating as a conviction a bond forfeiture in a DUI case brought in a Georgia court. This contention is meritless; under Georgia law, a bond forfeiture in a DUI case is considered a conviction. See Cofer v. Crowell, 146 Ga.App. 639, 247 S.E.2d 152, 154 (1978); cf. Haley v. Hardison, 247 Ga. 750, 279 S.E.2d 712, 713 (1981).

Second, appellant contends that the district court, prior to the imposition of sentence, erred in failing to find as a fact the amount of the loss caused by appellant’s fraud. According to appellant, the court relied solely on the amount stipulated in the parties’ plea agreement.

The commentary to U.S.S.G. § 6B1.4(d) states that

the [sentencing] court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. . Bather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.

At sentencing, the court, as appellant contends, arrived at the amount of the loss in the case simply by selecting the amount referred to in the plea agreement. The court relied on nothing else. This constituted a clear violation of the plain language of the commentary and requires that we remand the case for a determination of the amount of the loss in question and, thereafter, for re-sentencing.

SO ORDERED.


text:
    Robert Lee LAWSON, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections; S.W. Sprouse, Superintendent, Hendry Correctional Institution; William E. Counselman, Educational Supervisor; Stephen Spencer, Chaplain, Hendry Correctional Institution; and Paul Coburn, Assistant Superintendent, Hendry Correctional Institution, Defendants-Appellants.
    No. 94-4663.
    United States Court of Appeals, Eleventh Circuit.
    May 29, 1996.

      Jason Vail, Office of Attorney General, Tallahassee, FL, for appellants.
    Peter M. Siegel, Randall C. Berg, Jr., Miami, FL, for appellee.
    Before ANDERSON and BARKETT, Circuit Judges, and YOUNG , Senior District Judge.

       Honorable George C. Young, Senior U.S. District Judge for the Middle District of Florida, sitting by designation.

   PER CURIAM:

This case began as a pro se complaint by plaintiff-appellee Robert Lawson, filed in 1983. Counsel was appointed, and a class certified. The plaintiff class represented by Lawson (hereinafter “Hebrew Israelites” or “plaintiffs”) is made up of members of the Hebrew Israelite faith currently serving time in the Florida prison system. The basis for their original complaint was that officials of the defendant-appellant, the Florida Department of Corrections (hereinafter “the Department”), refused to allow certain religious texts, published by the Hebrew Israelites at their headquarters, the “Temple of Love,” into the prisons so that Hebrew Israelite inmates could have access to them. The plaintiffs seek injunctive relief. The Department claimed that the Hebrew Israelite texts at issue contain “highly-charged, anti-white, racism” and thus presented a serious threat to security and order within Florida’s prisons.

Soon after this litigation began, the Department, through head chaplain Counsel-man, attempted to create an informal redaction policy similar to the law now in place that would allow prison chaplains to remove the most objectionable portions of incoming religious materials. See Lawson v. Wainwright, 641 F.Supp. 312, 320-21 (S.D.Fla.1986). The materials at issue in this case were returned by Counselman to Yahweh ben Yahweh, the leader of the Hebrew Israelites, and ben Yahweh was asked to remove those statements that the Department thought were a threat to prison order and security. Once these sections were removed, Counselman assured ben Yahweh, the materials would be allowed into the prisons. Id. at 321. This original redaction policy, however, was poorly defined and sporadically enforced, and at times entire documents were excluded when only portions of those documents presented a threat to prison order and security. Id. at 317-19.

This case has a tortured procedural history. In 1986, the district court held that the Department’s outright ban of these religious texts violated the plaintiffs’ Free Exercise rights under the First Amendment. Lawson v. Wainwright, 641 F.Supp. 312 (S.D.Fla.1986) (hereinafter Lawson I). The primary concern in the first appeal to this Court was the determination of the proper standard by which to evaluate the plaintiffs’ Free Exercise claims. Lawson v. Dugger, 840 F.2d 779 (11th Cir.1987) (hereinafter Lawson II). Following this Court’s 1987 decision, the Supreme Court rendered its decision in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), in which the Court reiterated the principle that prisoner constitutional rights claims are to be evaluated under the rational basis standard. The Department’s petition for certiorari in this case was granted, and the 1987 opinion of this Court was vacated and the case remanded for further consideration in light of Thornburgh. Dugger v. Lawson, 490 U.S. 1078, 109 S.Ct. 2096, 104 L.Ed.2d 658 (1989) (hereinafter “Lawson III"). This Court in turn remanded to the district court. Lawson v. Dugger, No. 86-5774, 897 F.2d 536 (11th Cir. Feb. 1, 1990) (table). Again, however, a change in the law affected the relevant standard. A few days before the district court held its status hearing on remand, Congress passed the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), which purports to reestablish through statute the compelling interest test for neutral laws that incidentally but substantially burden the free exercise of religion. Upon review, the district court interpreted the relevant official activity in this case to be an outright ban on certain incoming religious materials. Then, applying the “least restrictive means” prong of the new RFRA test to the outright ban, the district court held that the Department’s activity violated RFRA. Lawson v. Dugger, 844 F.Supp. 1538, 1542 (S.D.Fla.1994) (hereinafter “Lawson IV”).

Our primary task is to flesh out the meaning of the new RFRA standard as it applies in the prison context, and in particular as it applies to this ease. Two interrelated preliminary matters require discussion: Florida’s new Rule 33-3.012 governing the admissibility into Florida prisons of publications, including religious materials; and the propriety of our consideration in this appeal of the Rule’s redaction policy.

I. RULE 33-3.012 AND REDACTION

In addition to the passage of RFRA, another significant change in the complexion of this case occurred after remand to the district court. On December 17, 1991, Florida amended Rule 33-3.012, inter alia, to incorporate a formal and more precise redaction policy. The portions of the Rule relevant to this case are as follows:

(4) Inmates shall be permitted to receive publications except when the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of the institution or when it is determined that the publication might facilitate criminal activity. Publications shall be rejected when one of the following criteria are met:
(e) It depicts, describes or encourages activities which may lead to the use of physical violence or group disruption;
(h) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person. If only a portion of a publication meets one of the above criteria for rejection, the entire publication shall be rejected unless the reading material is of a religious nature. In the case of religious material, the inmate shall be advised, that he may receive the materials only after the inadmissible portion is removed. The inmate shall make the decision whether to return the material to the sender or to receive the admissible portions after the institution has excised the inadmissible material, and the inmate may appeal the institution’s determination that the material must be excised or returned. The institution shall not take any action to excise or return inadmissible reading material until the inmate’s appeal is concluded or the time for appeal has passed.

Fla.Admin.Code § 33-3.012(4) (1995) (emphasis added). Appeals from decisions to redact certain sections from religious materials are heard by a literature review committee made up of the Assistant Secretary of Operations, one superintendent, one security administrator, the library services administrator and one institutional librarian. FlaAdmin.Code § 33-3.012(2).

The plaintiffs contend that the Department did not specifically argue redaction in its briefs to the district court at the original trial nor on remand, and did not do so until the Department’s motion for rehearing. The plaintiffs argue accordingly that the Department has waived the issue. The district court agreed with the plaintiffs and denied the Department’s motion for rehearing. The district court declined to consider redaction, relying instead on the procedures in use by the Department when this litigation began in 1983, which the district court construed to be an outright ban on the religious materials introduced at trial.

This Court interprets the Department’s motion for rehearing on the redaction issue as a Fed.R.Civ.P. 59(e) motion. McGregor v. Bd. of Com’rs of Palm Beach County, 956 F.2d 1017, 1020 (11th Cir.1992). We review the district court’s denial of the Department’s motion for rehearing for abuse of discretion. O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992); American Home Assur. Co. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1238-39 (11th Cir.1985). In American Home, we affirmed a district court’s denial of a Rule 59(e) motion that raised for the first time a choice of law issue. American Home, 763 F.2d at 1239. We noted that, “[t]he decision to alter or amend judgment is committed to the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion.” Id. at 1238-39.

Several reasons persuade us that the district court abused its discretion by failing to consider redaction, which stands at the core of the current Florida regulation. In our judgment, it would be impossible to evaluate the facial constitutionality of Rule 33-3.012, and its compatibility with RFRA, without considering redaction, which is the essence of the Rule’s policy toward religious publications. This case involves only injunctive relief. Therefore, the only viable issues are the facial validity of Rule 33-3.012, and its validity as applied. Because these issues cannot be intelligently assessed without considering redaction, justice requires that we do so.

Finally, a federal court order dictating the security-related activities of state prison officials raises serious comity concerns. The maintenance of prison security, which is central to this case, is a matter of immense importance to the State of Florida and, of course, responsibility for prison security is committed to the State. Even if the Department’s deficiencies in the presentation of this issue to the district court might lead us to impose waiver in some other context, interests of comity combine with the foregoing factors to persuade us otherwise in this case. Assuming, as we hold below, that Florida’s Rule 33-3.012, with its redaction policy, is facially valid, it would constitute manifest injustice to enjoin state prison officials from the exercise of their duties to maintain prison security based on the technicality that their attorneys failed to present an issue to the district court with sufficient clarity. We conclude that the district court abused its discretion in failing to consider the redaction issue.

II. THE RELIGIOUS FREEDOM RESTORATION ACT (“RFRA”)

Having established that the issue in this ease is the redaction policy found in Rule 33-3.012, we turn to our primary task of evaluating the validity of the Rule in light of RFRA. To understand how RFRA’s compelling interest standard should be applied in the prison context, it is necessary to understand both the legal landscape at the time it was enacted and congressional intent as evidenced by the statute itself and its legislative history. We first address congressional intent and the case law to which Congress intended courts to look for guidance.

A. Congressional Intent and the Case Law Background

The stated purpose of RFRA is to restore the broad applicability of the compelling interest test established in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1960), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), which was substantially circumscribed by Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Act states:

(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Vemer, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened ...

42 U.S.C. § 2000bb(b).

(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-l(b). Congress was obviously attempting to create a statutory buffer around a more limited constitutional right. Cf. Katzenbach v. Morgan, 384 U.S. 641, 653-54, 86 S.Ct. 1717, 1724-25, 16 L.Ed.2d 828 (1966) (implying that Congress has the power to create rights not recognized by the Supreme Court). That intent was manifest in the statutory language restoring the compelling interest test.

The text of RFRA, however, does not elaborate on how the compelling interest test is to be applied. Nowhere in the statute does Congress state that the test is to be construed in precisely the same manner in varying factual scenarios and contexts. By referring to the “compelling interest test,” Congress obviously intended for courts to look for guidance to those cases employing that term. Astoria Fed. S & L Ass’n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 2169, 115 L.Ed.2d 96 (1991) (Congress legislates against the background of federal common law principles).

The Supreme Court has historically applied the compelling interest standard somewhat differently depending on the context in which the protected right arose. Procunier v. Martinez, 416 U.S. 396, 409-10, 94 S.Ct. 1800, 1809-10, 40 L.Ed.2d 224 (1974) (“First Amendment guarantees must be ‘applied in light of the special characteristics of the ... environment.’ ”) (quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)). This is notably true in the prison context. Indeed, the legislative history of RFRA expressly assumes that courts will apply RFRA in the prison context within the framework of prior case law. Both congressional committees charged with consideration of the legislation clearly intended the courts to continue to afford deference to the judgment of prison officials.

The intent of the act is to restore [the] traditional protection afforded to prisoners’ claims prior to O’Lone, not to impose a more rigorous standard than the one that was applied.... Accordingly, the committee expects that the courts will continue the tradition of giving due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with considerations of costs and limited resources.... At the same time, however, inadequately formulated prison regulations and policies grounded on mere speculation, exaggerated fears, or post-hoe rationalizations will not suffice to meet the act’s requirements.

S. Rep. No. 111, 103d Cong., 1st Sess. 10, U.S.Code Cong. & Admin.News 1993 pp. 1892, 1899.

Therefore, the compelling governmental interest test should be applied to all cases where the exercise of religion is substantially burdened; however, the test should not be construed more stringently or more leniently than it was prior to Smith.... Prior to 1987, courts evaluated free exercise challenges by prisoners under the compelling governmental interest test. The courts considered the religiously inspired exercise, as well as the difficulty of the prison officials’ task of maintaining order and protecting the safety of prison employees, visitors and inmates. Strict scrutiny of prison regulations did not automatically assure prisoners of success in court.

H.R.Rep. No. 88,103d Cong., 1st Sess. 8; see also 139 Cong.Rec. § 14362-14365 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch).

On June 9, 1987, the Supreme Court in O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), articulated an unadorned rational basis test for the evaluation of prison regulations challenged under the Free Exercise Clause. RFRA’s legislative history contains some evidence that Congress may have intended to restore the standard for the protection of prisoner Free Exercise rights to where it stood prior to the Court’s decision in O’Lone. However, even prior to O’Lone, the Supreme Court and the lower federal courts applied the compelling interest test in the context of prisoners’ Free Exercise or Free Speech claims by recognizing the special circumstances of the prison context, including recognition of the state’s substantial interest in prison security and order and of the substantial deference due the judgment of prison officials with respect thereto. The primary reason for this is the more limited nature of the First Amendment rights enjoyed by prisoners after incarceration. In Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), for example, the Court noted that “[i]n the First Amendment context ... a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Accord Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2535, 53 L.Ed.2d 629 (1977). See also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); Bradbury v. Wainwright, 718 F.2d 1538, 1540-41 (11th Cir.1983).

In cases involving constitutional challenges to prison regulations, including those implicating the free exercise of religion, the Supreme Court has long made clear that federal courts must afford substantial deference to the judgment of prison authorities. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pell, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). In evaluating prisoners’ constitutional rights claims that challenge assertions by prison officials that the inmates’ rights must yield before the state’s legitimate penological interests, courts have “accorded wide-ranging deference [to prison administrators] in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547, 99 S.Ct. at 1878; accord Jones, 433 U.S. at 128, 97 S.Ct. at 2539; Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807; Cruz, 405 U.S. at 321, 92 S.Ct. at 1081. Such deference is especially appropriate with respect to the primary state interest involved in this case — the maintenance of peace and security within the prison facility. Pell, 417 U.S. at 823, 94 S.Ct. at 2804 (“Central to all other corrections goals is the institutional consideration of the internal security within the corrections facilities.”). The justifications for this deference include the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807.

The standard for evaluating prisoner constitutional rights claims was initially articulated by the Supreme Court in 1974 in Martinez.

First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression____ Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. The two prongs of the Martinez standard correspond to the two prongs of the compelling interest test as it has been articulated by the Court in other contexts: infringement on such constitutional rights is justified only by a compelling state interest and only when the regulation at issue is the least restrictive means for satisfying that interest. Because the first prong is unquestionably satisfied in this case, and indeed is conceded by the plaintiffs, we focus on the second prong.

The Court’s holding in Martinez teaches that the compelling interest test is to be employed by recognizing the special circumstances of the prison context, including recognition of the state’s substantial interest in prison security and order and of the substantial deference due the judgment of prison officials with respect thereto. Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807. The Court noted that although it was applying the compelling interest test,

This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty.

Id. at 414, 94 S.Ct. at 1812. Similarly, in Bell v. Wolfish, the Court reemphasized the “wide-ranging deference” to be accorded the judgment of prison officials.

Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.

Bell, 441 U.S. at 547-48, 99 S.Ct. at 1879 (quoting Pell, 417 U.S. at 827, 94 S.Ct. at 2806).

We recognize that, following the Martinez decision, the constitutional standard employed by the Supreme Court continued to evolve in the direction of a rational basis standard. We also recognize that it is far from clear which precise point in this evolution Congress intended to select as the appropriate analysis for the application of RFRA in a prison context. We need not in this ease decide this precise point, because we can assume arguendo that the appropriate standard is the one set forth in Martinez, which articulates the appropriate standard in the formulation most favorable to the plaintiffs, as compared to the formulation found in the cases that followed Martinez. Applying that standard, tempered by the deference due prison officials that Martinez commands, we readily conclude that Rule 33-3.012 passes muster under RFRA, as discussed more fully below. Accordingly, we need not and do not in this case decide if Congress intended a somewhat less demanding standard like the one that evolved in the cases that follow Martinez and predate O’Lone.

B. Facial Validity of Rule 33-3.012 Under RFRA

Because RFRA provides statutory protection for religious practice that is broader than the core constitutional right explicated in O’Lone, and because Martinez represents the zenith of judicial scrutiny of prison regulations under the light of prisoner constitutional claims, we analyze Rule 33-3.012 utilizing the Martinez standard articulated above. Whether the Rule comports with RFRA is a pure question of law, and is subject to de novo review by this Court. See Christopher v. Cutter Laboratories, 53 F.3d 1184, 1190 (11th Cir.1995).

It is well established that states have a compelling interest in security and order within their prisons. Harris v. Forsyth, 735 F.2d 1235 (11th Cir.1984); Sullivan v. Ford, 609 F.2d 197 (5th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980). In the case at bar, the Hebrew Israelites concede that Florida has a compelling interest in prison security. At issue are the means chosen by the state of Florida to satisfy this interest, which necessarily implicates RFRA’s least restrictive means prong. As explained above, we conclude that Congress intended this second RFRA prong to be no more vigorous than its corresponding incarnation in Martinez. Thus, Rule 33-3.012’s “limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416 U.S. at 413, 94 S.Ct. at 1811. In the application of this standard, we must accord wide-ranging deference to the judgment of the Department. Moreover, the “prison administrators ... [are not] required to show with certainty that adverse consequences would flow from the failure to censor” a particular publication. Id. at 414, 94 S.Ct. at 1811-12.

Applying the foregoing standard to Rule 33-3.012, we readily conclude that the Rule satisfies RFRA’s least restrictive means test. Indeed, it is hard to imagine a means more specifically or more narrowly addressed to the problem posed by passages of text which the Department has determined may lead to violence or disruption, or which otherwise pose a threat to security. Abbott v. Meese, 824 F.2d at 1172-73. The Rule is explicitly addressed to the penological interest at stake, namely security. It is not vague or overbroad and it does not give unbridled discretion to prison administrators. See Vodicka v. Phelps, 624 F.2d 569, 570-71 (5th Cir.1980) (finding facially valid under Martinez a prison regulation allowing the withholding of prisoner mail that presents an “immediate threat” to security); see also Abbott v. Meese, 824 F.2d 1166, 1172-73 (D.C.Cir.1987), vacated by Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989) (“If a regulation were to authorize the Warden to reject a portion of a publication only if he found that the material would ‘encourage’ violence, or some other specified type of conduct breaching security or order ... we think that regulation could survive the minimum Martinez tests.”); Gaines v. Lane, 790 F.2d 1299 (7th Cir.1986) (finding prison regulation, which only allows prison officials to censor mail which presents a threat to prison security, sufficiently narrowly-tailored to be facially valid under Martinez); George v. Sullivan, 896 F.Supp. 895 (W.D.Wis.1995) (upholding prison regulation permitting banning of white supremacist religious literature, even in light of RFRA’s heightened standard of review).

The plaintiffs argue, relying on the law of the ease doctrine, that this Court’s decision in this matter is dictated by our prior decision in Lawson II, 840 F.2d 779 (11th Cir.1987). The law of the case doctrine does not apply in this instance for three reasons. First, this Court’s opinion in Lawson II was vacated by the Supreme Court in Dugger v. Lawson, 490 U.S. 1078, 109 S.Ct. 2096, 104 L.Ed.2d 658 (1989), with instructions to reconsider in light of Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989). Accordingly, this Court is not bound by the vacated decision. United States v. M.C.C. of Florida, 967 F.2d 1559, 1561-62 (11th Cir.1992). Second, the crux of the dispute in Lawson II, and indeed in the whole first round of this litigation, was a disagreement about the standard of review that should be applied to the Department’s regulations. Thus, the focus of the briefs submitted to this Court in Lawson II, as well as the focus of our opinion, was not on the regulations themselves, but instead was on whether the trend in Supreme Court prisoner Free Exercise jurisprudence is one leading toward the application of a rational basis test. Finally, Florida has in the interim changed its prison regulations governing the admissibility of religious materials. As written, Rule 33-3.012 is substantially different from its predecessor, which we considered in Lawson II. Not only has the law changed, but also the facts of the case have changed.

C. Rule 33-3.012 As Applied

In this litigation, no court has been asked to determine which specific portions of any particular Hebrew Israelite publication can be redacted by the Department, operating under the authority of the new Rule 33-3.012, consistent with the Constitution and RFRA Indeed, it appears that the Department may not have applied its new Rule because of this ongoing litigation. It may be that there is no “as applied” issue in this case. This is a question that will have to be determined on remand in the district court. As a practical matter, an “as applied” issue will not arise until a prisoner challenges a particular Department action. The Department will have to identify those sections of the Hebrew Israelite publications that it has decided must be removed pursuant to the Rule, and the district court will then have to determine if the Department can redact those specific portions without running afoul of the United States Constitution and RFRA.

III. CONCLUSION

Pursuant to the above discussion, we hold that Rule 33-3.012 is facially valid under both the United States Constitution and RFRA. We therefore reverse the decision of the district court, and remand to that court for an exploration of any “as applied” issues that may be ripe.

REVERSED and REMANDED.

      . RFRA was signed into law on November 16, 1993.

      . However, because we conclude that Rule 33-3.012 on its face passes even the most restrictive compelling interest test that Congress may have contemplated in drafting RFRA, we need not and do not today resolve the question of RFRA's constitutionality. See Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand.L.Rev. 1539 (1995) (questioning whether RFRA is an unconstitutional application of federal power to the states not authorized by § 5 of the Fourteenth Amendment); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U.L.Rev. 437 (1994) (questioning whether RFRA violates the separation of powers doctrine, the Establishment Clause, and § 5 of the Fourteenth Amendment, and noting that, "RFRA not only defies [Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)], it misreads the Supreme Court's jurisprudence prior to Smith; and RFRA not only gives religious believers far more than their constitutional due, it does so in a fashion that is itself constitutionally objectionable precisely in terms of religious freedom."); Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 Tex. L.Rev. 247 (1994) (suggesting that RFRA may violate the Establishment Clause of the First Amendment to the Constitution, in part because it expands the bounds of Free Exercise beyond the point which the Court has in the past taken it, by establishing a preference for religiosity over non-religiosity); see also Everson v. Board of Ed. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) ("The ‘establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another ...") (emphasis added); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961) (“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to profess a belief or disbelief of any religion. Neither can constitutionally pass

        laws or impose requirements which aid all religions as against non-believers (internal quotation omitted) (emphasis added); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (statute must have secular legislative purpose, and must primarily neither advance nor inhibit religion, nor foster excessive government-religion entanglement, to avoid reach of Establishment Clause); County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (same); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (invalidating, on Establishment grounds, Texas law granting sales tax exemption to religious publications); Board of Ed. of Kiryas Joel v. Grumet, - U.S. -, -, 114 S.Ct. 2481, 2487, 129 L.Ed.2d 546 (1994) ("A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents.”) (internal citations omitted). The Fifth Circuit in Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.1996), rejected an argument that RFRA on its face violates the Establishment Clause, noting that the statute expressly limits its application such that the Establishment Clause shall not be affected. See 42 U.S.C. § 2000bb-4, cited in Flores, 73 F.3d at 1364; but see Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 129, 109 S.Ct. 2829, 2838, 106 L.Ed.2d 93 (1989) ("To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment.”). Because we conclude that Rule 33-3.012 on its face passes the RFRA test, we need not address whether RFRA violates the Establishment Clause. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

      . Fla.Admin.Code Ann. § 33-3.012 (1995).

      . Rule 33-3.012 is similar in some respects to federal prison regulations governing the admissibility of reading materials. See 28 C.F.R. § 540.71. However, the federal regulations do not have a special exception for religious materials permitting redaction as opposed to total exclusion.

      . Plaintiffs’ efforts in this litigation have focussed only on obtaining injunctive relief, either because that is their only real interest or because of the likelihood that qualified immunity wifi bar any claim for damages. Injunctive relief is, of course, prospective, and thus only Rule 33-3.012 is at issue. The validity of the Department's application of its prior policy, with its informal, imprecise and sporadically enforced redaction policy, is moot.

      . We can discern no prejudice to the plaintiffs as a result of our consideration of the Department's current redaction policy embodied in Rule 33-3.012, because they have had a full opportunity in brief and oral argument to discuss the effect of redaction on the facial validity of the Rule.

      .We recognize that the district court in Lawson I summarily rejected the Department's reliance on its previous, informal redaction policy. Lawson I, 641 F.Supp. at 329. The district court relied on the requirement set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), that allegedly obscene publications be evaluated as a whole. It was error to rely on Miller, a case involving the First Amendment rights of non-incarcerated persons. By contrast, prison inmates retain only such First Amendment rights as are not inconsistent with their status as prisoners. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). There is clearly no per se bar to censorship of incoming prisoners’ mail. See Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Abbott v. Meese, 824 F.2d 1166 (D.C.Cir.1987), vacated by Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989); McCorkle v. Johnson, 881 F.2d 993 (11th Cir.1989).

      . The cases discussed in the text involve First Amendment rights, including both Free Exercise and Free Speech. In the prison context, the Supreme Court and the lower federal courts have held that the same deference is due the judgment of prison officials with respect to security and other penological concerns, whether the case involves Free Speech or Free Exercise rights. "In the absence of a contrary indication, we assume that when a statute uses [a term of art], Congress intended it to have its established meaning.” McDermott International, Inc. v. Wilander, 498 U.S. 337, 342, 111 S.Ct. 807, 811, 112 L.Ed.2d 866 (1991).

      . All of the cases cited were decided before O'Lone.

      . We are aware that the result in Martinez has subsequently been limited by Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989). However, in order to elaborate on what Congress meant by using the term “least restrictive means,” we must determine its meaning in the prison context, as construed by the courts.

      . Both prongs of the Martinez standard have evolved in the direction of a simple rational basis standard. In Turner, the Supreme Court discussed in detail four cases which followed Martinez: Pell (1974), Jones (1977), Bell (1979), and Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). The Court noted that "[i]n none of these four prisoners’ rights cases did the Court apply a standard of heightened scrutiny, but instead inquired whether a prison regulation that burdens fundamental rights is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns.” Turner, 482 U.S. at 87, 107 S.Ct. at 2260 (internal quotations omitted). The Court then concluded:
      If Pell, Jones, and Bell have not already resolved the question posed in Martinez, we resolve it now: when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.

        Id. at 89, 107 S.Ct. at 2261. It is clear that the Turner Court contemplated that both prongs of the Martinez standard had so evolved. In discussing the "ready alternatives” factor, through which courts determine if there are available alternatives to the prison policy at issue that satisfy the legitimate interests of the prison administration, the Court asserted that the existence of such alternatives may be evidence that the policy is an "exaggerated response” rather than a reasonable regulation. But the Court was careful to note that,
      This is not a “least restrictive alternative” test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimants' constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis costs to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

        Id. at 90-91, 107 S.Ct. at 2262 (citations omitted). But see H.R.Rep. No. 88, 103d Cong., 1st Sess. 7-8 ("Pursuant to the Religious Freedom Restoration Act, the courts must review the claims of prisoners ... under the compelling governmental interest test.... [Ojfficials must show that the relevant regulations are the least restrictive means of protecting a compelling governmental interest.”).
      As noted in the text, resolution of this case does not require that we determine the extent to which the Martinez standard has evolved into a rational basis analysis. It is sufficient for the resolution of this case to apply the Martinez standard as written, moderated by the wide-ranging deference due the judgment of prison authorities which that opinion contemplated.

      . Because we find that Rule 33-3.012 passes muster under Martinez — which represents both the statutoty standard under RFRA in the most favorable formulation for which the plaintiffs could reasonably hope and the historical summit of the Court’s review of prisoner constitutional claims — we conclude a fortiori that the Rule is constitutional on its face. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d 282 (1987) (holding that a prison regulation that impinges upon inmates’ Free Exercise rights is constitutionally valid if it is reasonably related to legitimate penological interests).

      . Under Rule 33-3.012, inmates have a right to appeal decisions to redact certain sections from religious texts, and these appeals are heard by a literature review committee. The plaintiffs do not challenge the district court's ruling that the Rule does not violate the plaintiffs’ due process rights.

      . As noted above, the validity of the Department's application of its previous policy to the religious texts introduced at trial is moot. The district court erred in focusing on that issue rather than the only viable issue in the case — the validity of Rule 33-3.012.

      . Because an “as applied” challenge might be ripe and might be presented on remand, we provide some limited guidance to avoid repetition of clear error. In Lawson I, 641 F.Supp. at 329, the district court may have labored under the misconception that the Department was required to adduce specific evidence of a causal link between text that it wants to remove and actual incidents of violence (or some other actual threat to security). To the extent that the district court did in fact labor under any such belief, it erred. Requiring proof of such a correlation constitutes insufficient deference to the judgment of the prison authorities with respect to security needs. See Martinez, 416 U.S. at 414, 94 S.Ct. at 1812 (Prison authorities are not "required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty.”).