Jane Doe v. Todd Blanche

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2025 Decided April 17, 2026
No. 25-5099
JANE DOE, ET AL.,
APPELLEES
v.
TODD BLANCHE, IN HIS OFFICIAL CAPACITY AS ACTING
ATTORNEY GENERAL OF THE UNITED STATES AND WILLIAM K.
MARSHALL, III, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
THE FEDERAL BUREAU OF PRISONS,
APPELLANTS
Consolidated with 25-5101, 25-5108, 25-5210, 25-5213,
25-5215, 25-5304, 25-5305, 25-5306, 25-5419, 25-5420, 25-
5427, 26-5066, 26-5067, 26-5069
Appeals from the United States District Court
for the District of Columbia
(No. 1:25-cv-00286)
(No. 1:25-cv-00401)
(No. 1:25-cv-00653)
Benjamin Hayes, Attorney, U.S. Department of Justice,
argued the cause for appellants. On the briefs were Brett A.

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Shumate, Assistant Attorney General, Yaakov M. Roth, Acting
Assistant Attorney General, at the time the brief was filed, Eric
D. McArthur, Deputy Assistant Attorney General, and Gerard
Sinzdak, Charles W. Scarborough, and McKaye L. Neumeister,
Attorneys.
Theodore E. Rokita, Attorney General, Office of the
Attorney General for the State of Indiana, James A. Barta,
Solicitor General, Jenna M. Lorence, Deputy Solicitor General,
Raul R. Labrador, Attorney General, Office of the Attorney
General for the State of Idaho, Alan M. Hurst, Solicitor
General, Michael A. Zarian, Deputy Solicitor General, Steve
Marshall, Attorney General, Office of the Attorney General for
the State of Alabama, Treg Taylor, Attorney General, Office of
the Attorney General for the State of Alaska, Tim Griffin,
Attorney General, Office of the Attorney General for the State
of Arkansas, James Uthmeier, Attorney General, Office of the
Attorney General for the State of Florida, Chris Carr, Attorney
General, Office of the Attorney General for the State of
Georgia, Brenna Bird, Attorney General, Office of the
Attorney General for the State of Iowa, Kris Kobach, Attorney
General, Office of the Attorney General for the State of Kansas,
Russell Coleman, Attorney General, Office of the Attorney
General for the Commonwealth of Kentucky, Liz Murrill,
Attorney General, Office of the Attorney General for the State
of Louisiana, Lynn Fitch, Attorney General, Office of the
Attorney General for the State of Mississippi, Andrew Bailey,
Attorney General, Office of the Attorney General for the State
of Missouri, Austin Knudsen, Attorney General, Office of the
Attorney General for the State of Montana, Michael T. Hilgers,
Attorney General, Office of the Attorney General for the State
of Nebraska, Drew Wrigley, Attorney General, Office of the
Attorney General for the State of North Dakota, Dave Yost,
Attorney General, Office of the Attorney General for the State
of Ohio, Gentner Drummund, Attorney General, Office of the

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Attorney General for the State of Oklahoma, Alan Wilson,
Attorney General, Office of the Attorney General for the State
of South Carolina, Marty Jackley, Attorney General, Office of
the Attorney General for the State of South Dakota, Ken
Paxton, Attorney General, Office of the Attorney General for
the State of Texas, Derek Brown, Attorney General, Office of
the Attorney General for the State of Utah, Jason S. Miyares,
Attorney General, Office of the Attorney General for the
Commonwealth of Virginia, John B. McCuskey, Attorney
General, Office of the Attorney General for the State of West
Virginia, Bridget Hill, Attorney General, Office of the
Attorney General for the State of Wyoming, Rusty D. Crandell,
and Linley Wilson were on the brief for amici curiae Idaho,
Indiana, 23 Other States, and the Arizona Legislature, in
support of appellants.
Jennifer L. Levi argued the cause for appellees. With her
on the brief were Ernest Galvan, Kara J. Janssen, Adrienne
Spiegel, Ben Hattem, Alexander Shalom, Natalie J. Kraner,
Shannon Minter, Amy Whelan, Sarah Austin, and Eve L. Hill.
Christopher Stoll entered an appearance.
Carolyn F. Corwin was on the brief for amici curiae Law
Professors in support of appellees.
Andrew Joy Campbell, Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Elizabeth Matos, Chief, Civil Rights Division, Helle Sachse,
Deputy Director, Police Accountability Unit, Rob Bonta,
Attorney General, Office of the Attorney General for the State
of California, Brian L. Schwalb, Attorney General, Office of
the Attorney General for the District of Columbia, Kathleen
Jennings, Attorney General, Office of the Attorney General for
the State of Delaware, Anne E. Lopez, Attorney General, Office
of the Attorney General for the State of Hawai’i, Kwame Raoul,

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Attorney General, Office of the Attorney General for the State
of Illinois, Aaron M. Frey, Attorney General, Office of the
Attorney General for the State of Maine, Anthony G. Brown,
Attorney General, Office of the Attorney General for the State
of Maryland, Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Leticia James,
Attorney General, Office of the Attorney General for the State
of New York, Dan Reyfield, Attorney General, Office of the
Attorney General for the State of Oregon, Peter F. Neronha,
Attorney General, Office of the Attorney General for the State
of Rhode Island, and Charity R. Clark, Attorney General,
Office of the Attorney General for the State of Vermont, were
on the brief for amici curiae Massachusetts and 12 Other States
in support of appellees.
Richard Saenz and Michael J. Mestitz was on the brief
amici curiae Dee Deidre Farmer, et al., in support of appellees.
Lawrence S. Lustberg was on the brief for amici curiae
Former Corrections Officials in support of appellees.
Before: SRINIVASAN, Chief Judge, PILLARD, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Dissenting Opinion filed by Senior Circuit Judge
RANDOLPH.
PILLARD, Circuit Judge:
On January 20, 2025, the President issued an Executive
Order directing the Attorney General to “ensure that males”—
defined as “person[s] belonging, at conception, to the sex that
produces the small reproductive cell”—“are not detained in

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women’s prisons or housed in women’s detention centers.”
Defending Women From Gender Ideology Extremism and
Restoring Biological Truth to the Federal Government, 90 Fed.
Reg. 8615, 8615-16 (Jan. 30, 2025). Pursuant to the Executive
Order, the Federal Bureau of Prisons prepared to transfer the
eighteen transgender women who are plaintiffs in this case to
men’s facilities. Plaintiffs are a very small subset of the
thousands of transgender women in the Bureau’s custody: those
few who the Bureau itself had previously decided should be
housed in women’s facilities.
Plaintiffs sued to block their transfers, claiming in relevant
part that incarceration in men’s facilities will expose them to
substantial risk of grave harm in violation of the Eighth
Amendment to the U.S. Constitution. The district court granted
plaintiffs preliminary injunctive relief on the ground that
transgender women face an unconstitutional risk of harm in
men’s prisons. To the extent the court’s reasoning categorically
forbids placing any transgender woman in a men’s prison,
plaintiffs do not defend it on appeal. They instead urge us to
sustain the preliminary injunctions on the narrower ground that
the individual plaintiffs before the court all have characteristics
that make them particularly vulnerable to violence, abuse, and
psychiatric harm in men’s prisons.
The existing record does not include findings of fact about
the individual plaintiffs’ vulnerabilities, or about the reasons on
which the Bureau relied in placing plaintiffs in women’s
facilities in the first place, to enable us to sustain the district
court’s preliminary injunctions on either of the narrower,
plaintiff-specific grounds urged on appeal. We thus vacate the
operative preliminary injunctions and remand for further
proceedings. The district court remains free to consider, as it
deems appropriate, whether plaintiffs may be entitled to relief

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on those or other available grounds that may be supported by
further findings of fact and analysis.
I.
A.
The Eighth Amendment’s prohibition on cruel and unusual
punishment imposes constraints on “the treatment a prisoner
receives in prison and the conditions under which he is
confined.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(internal quotation marks omitted). In particular, the Supreme
Court has long held that “[a] prison official’s deliberate
indifference to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” Id. at 828 (internal quotation
marks omitted). To prove an Eighth Amendment violation
based on “deliberate indifference,” a prisoner must establish
that (1) the conditions in which the prisoner is incarcerated
“pos[ed] a substantial risk of serious harm”; and (2) prison
officials “kn[ew] of and disregard[ed] an excessive risk” to the
prisoner’s health or safety. Id. at 834, 837. A prison official
may violate the Eighth Amendment by, inter alia, failing to
“protect prisoners from violence at the hands of other
prisoners” or “ensure that inmates receive adequate . . .
medical care.” Id. at 832-33 (internal quotation marks
omitted).
The Prison Litigation Reform Act of 1995 (PLRA)
imposes various requirements on claims challenging prison
conditions. See Jones v. Bock, 549 U.S. 199, 203-04 (2007).
As relevant here, the PLRA requires prisoners to exhaust prison
grievance procedures before filing suit. Id. at 204. It provides
that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion
requirement is “mandatory,” which means “unexhausted
claims cannot be brought in court,” Jones, 549 U.S. at 211, and
“a court may not excuse a failure to exhaust, even to take
[special] circumstances into account,” Ross v. Blake, 578 U.S.
632, 639 (2016). But the statute has a “built-in exception to the
exhaustion requirement: A prisoner need not exhaust remedies
if they are not ‘available.’” Id. at 635-36 (quoting 42 U.S.C.
§ 1997e(a)). Because “failure to exhaust is an affirmative
defense under the PLRA,” Jones, 549 U.S. at 216, the
defendant bears the burden of showing that an administrative
remedy was available for the plaintiff to exhaust, see
Kaemmerling v. Lapin, 553 F.3d 669, 675-76 (D.C. Cir. 2008).
The PLRA also cabins courts’ power to grant remedies
with respect to prison conditions. See 18 U.S.C. § 3626
(“Appropriate remedies with respect to prison conditions”).
Specifically, the PLRA instructs courts not to “grant or approve
any prospective relief” in “any civil action with respect to
prison conditions” unless “the court finds that such 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.”
Id. § 3626(a)(1)(A). The PLRA further provides that
“[p]reliminary injunctive relief” with respect to prison
conditions “shall automatically expire on the date that is 90
days after its entry, unless the court makes the findings required
under subsection (a)(1) for the entry of prospective relief and
makes the order final before the expiration of the 90-day
period.” Id. § 3626(a)(2).
When a person is sentenced to a term of imprisonment in
federal prison, the Federal Bureau of Prisons (BOP or Bureau)
designates the place of imprisonment. The governing statute
directs the Bureau to designate for each prisoner “any available

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penal or correctional facility . . . that [BOP] determines to be
appropriate and suitable” after it considers a list of factors,
including “the resources of the facility contemplated,” “the
nature and circumstances of the offense,” and “the history and
characteristics of the prisoner.” 18 U.S.C. § 3621(b). The
same provision states that, “[n]otwithstanding any other
provision of law, a designation of a place of imprisonment
under this subsection is not reviewable by any court.” Id. It
further authorizes BOP, “at any time, having regard for the
same matters, [to] direct the transfer of a prisoner from one
penal or correctional facility to another.” Id.
In making designation and transfer decisions, the Bureau
is required to follow applicable regulations under the Prison
Rape Elimination Act (PREA). 34 U.S.C. § 30301 et seq. As
relevant here, those regulations require BOP to screen inmates
for “their risk of being sexually abused by other inmates,”
considering, among other things, “[w]hether the inmate is or is
perceived to be gay, lesbian, bisexual, transgender, intersex, or
gender nonconforming.” 28 C.F.R. § 115.41(a), (d)(7). The
regulations further require BOP to use that information to
“inform housing, bed, work, education, and program
assignments with the goal of keeping separate those inmates at
high risk of being sexually victimized from those at high risk
of being sexually abusive.” Id. § 115.42(a). Regarding the
housing assignment of transgender inmates in particular, the
regulations require BOP to “consider on a case-by-case basis
whether a placement would ensure the inmate’s health and
safety, and whether the placement would present management
or security problems.” Id. § 115.42(c).
B.
Plaintiffs are eighteen transgender women in BOP
custody. See Appellees’ Br. i & n.1; Appellees’ Notice of

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Death of Appellee Susan Doe, Doc. No. 2167503. Each
plaintiff has been diagnosed with gender dysphoria, “a
condition marked by significant distress and a host of
physiological and psychological symptoms when a person lives
in a manner conforming to their biological sex.” Doe v.
McHenry, 763 F. Supp. 3d 81, 84 (D.D.C. 2025). To treat their
gender dysphoria, all plaintiffs have received long-term
hormone therapy, id., which has led some plaintiffs to “grow
breasts” or develop “more feminine” features, Zoe Doe Decl.
¶ 5 (J.A. 915-16); see, e.g., Mary Doe Decl. ¶ 5 (J.A. 942-43).
Several plaintiffs have also had surgeries such as vaginoplasty,
breast augmentation, and facial feminization. See, e.g., [Name
Redacted] Decl. ¶ 5 (J.A. 286); Doe Second Am. Compl. ¶ 10
(J.A. 192).
On January 20, 2025, President Trump issued Executive
Order No. 14,168, “Defending Women From Gender Ideology
Extremism and Restoring Biological Truth to the Federal
Government.” 90 Fed. Reg. at 8615. Section 4(a) of the
Executive Order directs the Attorney General and the Secretary
of the Department of Homeland Security to “ensure that males
are not detained in women’s prisons or housed in women’s
detention centers.” Id. at 8616.1
When the Executive Order issued, each plaintiff was in the
Bureau’s custody at a women’s facility. Plaintiffs represented
a very small subset—about one percent—of transgender
women in BOP custody, the remainder of whom were in men’s
facilities. Doe v. Bondi, 2025 WL 596653, at *1 (D.D.C.
1 Section 4(c) of the Executive Order separately directs the Attorney
General to “ensure that no Federal funds are expended for any
medical procedure, treatment, or drug for the purpose of conforming
an inmate’s appearance to that of the opposite sex.” 90 Fed. Reg. at
8617. Section 4(c), and BOP’s actions implementing that directive,
are not before us. See Appellants’ Br. 7 n.2.

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Feb. 24, 2025); see Rick Stover Second Jones Decl. ¶ 22-2
(J.A. 393). BOP had decided, after an individualized
assessment of various statutory and regulatory factors, to house
each plaintiff in a women’s facility. See Jones v. Bondi, 2025
WL 923755, at *1 (D.D.C. Mar. 3, 2025); Stover Second Jones
Decl. ¶ 24 (J.A. 393). Five plaintiffs had never been housed in
a men’s facility. See Rachel Doe Decl. ¶ 7 (J.A. 233); Jane
Jones Decl. ¶ 8 (J.A. 286), Moe Compl. (J.A. 466), Sara Doe
Decl. ¶ 3 (J.A. 951), Wendy Doe Decl. ¶ 6 (J.A. 946-47). Other
plaintiffs had previously been housed in men’s facilities while
in BOP or state custody. See, e.g., Zoe Doe Decl. ¶ 6
(J.A. 916); Olivia Doe Decl. ¶ 3 (J.A. 920). Those plaintiffs
who had been housed in men’s facilities reported that they were
sexually harassed, threatened, raped, and assaulted by male
inmates in those facilities. See, e.g., Emily Doe Decl. ¶ 4
(J.A. 924) (rape); Zoe Doe Decl. ¶ 5 (J.A. 916) (stalking); Sally
Doe Decl. ¶ 6 (J.A. 930) (threats); Donna Jones Decl. ¶ 6 (J.A.
385) (sexual assault). Others had attempted suicide, engaged
in self-harm, or experienced suicidal ideation while housed in
men’s facilities. See, e.g., Olivia Doe Decl. ¶ 5 (J.A. 921)
(attempted suicide).
In response to the Executive Order, however, BOP
officials began taking steps to transfer plaintiffs to men’s
facilities. See Doe, 763 F. Supp. 3d at 84. Three plaintiffs—
Ellen Doe, Rachel Doe, and Jane Jones—were transferred
before joining this litigation. See Ellen Doe Decl. ¶ 7 (J.A.
230); Rachel Doe Decl. ¶ 11 (J.A. 233); Jane Jones Decl. ¶ 14
(J.A. 287). The district court’s March 19 preliminary
injunction rescinded the transfers and enjoined any other such
transfers pending final judgment. See Doe March 19 PI Order
(J.A. 240); Jones February 24 PI Order (J.A. 334).

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C.
Plaintiffs brought three separate actions challenging their
transfers (or impending transfers) from women’s to men’s
facilities pursuant to the Executive Order. See Doe, 763 F.
Supp. 3d at 84; Jones v. Bondi, 2025 WL 923117, at *1
(D.D.C. Feb. 24, 2025); Moe March 10 PI Order (J.A. 569-71).
As the district court noted, each complaint contained
“substantially similar” allegations. Jones, 2025 WL 923117, at
*1. For simplicity, we cite to the Doe complaint. Naming as
defendants the Attorney General and the Director of BOP in
their official capacities, plaintiffs sued for declaratory,
injunctive, and compensatory relief. They claimed that Section
4(a) of the Executive Order, as applied to them, violated the
Eighth Amendment to the United States Constitution, the equal
protection component of the Due Process Clause of the Fifth
Amendment, the Rehabilitation Act, and the Administrative
Procedure Act (APA). Doe v. Bondi, No. 25-286, ECF No. 1
(Compl.) ¶ 14 (D.D.C. filed Feb. 3, 2025). Plaintiffs sought
preliminary injunctive relief to prohibit defendants from
implementing Section 4(a) of the Executive Order against them
and require defendants to maintain plaintiffs’ housing as it was
before January 20, 2025. Doe v. Bondi, No. 25-286, ECF
No. 13-1 (Mot. for TRO & PI) at 26 (D.D.C. filed
Feb. 3, 2025).
In a February 4 Temporary Restraining Order and in six
ensuing preliminary-injunction orders, the district court
granted preliminary relief to all eighteen plaintiffs. Doe
February 4 TRO (J.A. 157); Doe February 18 PI Order
(J.A. 168); Doe February 24 PI Order (J.A. 185); Doe March
19 PI Order (J.A. 240); Jones February 24 PI Order (J.A. 333);
Jones March 3 PI Order (J.A. 445); Moe March 10 PI Order
(J.A. 569). The court incorporated the reasoning of its
February 4 TRO in its subsequent preliminary injunction

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orders, see, e.g., Doe February 24 PI Order at 2 (J.A. 186);
Jones February 24 PI Order at 1 (J.A. 333); Moe March 10 PI
Order at 1 (J.A. 569), and both parties treat the February 4 TRO
as containing the court’s reasoning for purposes of the
preliminary injunctions on appeal. See Reply Br. 11;
Appellees’ Br. 20. So again, for simplicity, we describe the
rationales as set forth in the February 4 TRO.
The district court first rejected defendants’ threshold
defenses that (1) the PLRA forecloses judicial review of
plaintiffs’ challenge to defendants’ decision to transfer them to
men’s facilities and (2) plaintiffs failed to exhaust available
administrative remedies as required by the PLRA. Doe, 763 F.
Supp. 3d at 85-87. As to jurisdiction stripping, the court
declined to address whether the PLRA prohibits judicial review
of “APA challenges to facility designations and transfer
decisions,” because, in any event, the PLRA was “not
sufficiently explicit to bar consideration of [plaintiffs’]
constitutional claims.” Id. (emphases added) (citing Webster
v. Doe, 486 U.S. 592, 603 (1988)). As to exhaustion, the
district court reasoned that the PLRA requires exhaustion of
only “available” remedies, 42 U.S.C. § 1997e(a), and that no
remedy was “available” to plaintiffs because “there [was] no
form of relief that is within BOP’s discretion to provide and
that would remedy [plaintiffs’] supposed constitutional
violations.” Doe, 763 F. Supp. 3d at 87 (citing Kaemmerling,
553 F.3d at 675-76, and Ross, 578 U.S. at 643). Thus, the court
concluded that the PLRA does not bar consideration of
plaintiffs’ request for relief insofar as plaintiffs allege a
violation of their constitutional rights. Id.
The district court then turned to the likelihood of success
on the merits and concluded that plaintiffs had established such
a likelihood on their Eighth Amendment claim. Plaintiffs had
shown a likelihood of proving an “objectively intolerable risk

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of harm” on the basis of two distinct harms: (1) transgender
women’s “significantly elevated risk of physical and sexual
violence relative to other inmates when housed in a facility
corresponding to their biological sex”; and (2) the risk that
“placement in a male penitentiary by itself will exacerbate the
symptoms of [plaintiffs’] gender dysphoria,” regardless of
whether plaintiffs face a substantial risk of violence in the new
facility. Id. at 88.
The court further concluded that plaintiffs likely could
prove that BOP knowingly or recklessly subjected them to such
risks because “the government resources and regulations to
which plaintiffs gesture in their complaint strongly suggest”
that “BOP is subjectively aware that transferring the plaintiffs
to a male penitentiary would substantially increase the
likelihood of them experiencing this parade of harms.” Id. at
89; see 28 C.F.R. § 115.41(d)(7) (listing whether an inmate is
or is perceived to be transgender as a risk factor for “sexual
victimization”); Doe v. Bondi, No. 25-286, ECF No. 1
(Compl.) ¶ 43 (D.D.C. filed Feb. 3, 2025) (citing a 2013 U.S.
Department of Justice report that estimated nearly 35% of
transgender people in state and federal prisons were sexually
assaulted between 2007 and 2012).
For those reasons, the court concluded that plaintiffs had
met their burden to show a likelihood of success on the merits
of their Eighth Amendment claim. The court did not consider
the merits of plaintiffs’ other claims for relief, including their
APA claims. See Doe, 763 F. Supp. 3d at 87-89.
Importantly, however, the court’s analysis of plaintiffs’
Eighth Amendment claims did not make individualized
findings that characteristics the court generally identified as
likely posing substantial risks of serious harm were applicable
to each plaintiff. In particular, the court did not identify

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characteristics of each individual, such as effects of sex
reassignment medical treatment or prior experience of assault
or self-harm in men’s prisons, and make a corresponding
finding that the plaintiff therefore likely faces a risk of harm
rising to the level of an Eighth Amendment violation. See id.
at 88-89.
In evaluating the remaining factors for preliminary
injunctive relief, the district court reasoned that plaintiffs had
“straightforwardly” demonstrated irreparable harm because “a
prospective violation of a constitutional right constitutes
irreparable injury.” Id. at 89 (quoting Davis v. Dist. of
Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)). The court
concluded that the harms it had identified in its Eighth
Amendment analysis were irreparable. See id. As to the
balance of equities and the public interest, the court rejected
defendants’ representation that housing these few “biological
males” in women’s facilities had deleterious effects on the
privacy and security of other “female inmates,” because
“defendants have not so much as alleged that the plaintiffs in
this particular suit present any threat to the female inmates
housed with them.” Id. at 89-90. The district court thus
concluded that the balance of equities and the public interest
favored plaintiffs. Id. at 90-91.
For those reasons, the court preliminarily “enjoined and
restrained” defendants from “implementing Section[]
4(a) . . . of [the Executive Order]” and further ordered
defendants to “maintain and continue . . . plaintiffs’ housing
status . . . as [it] existed immediately prior to January
20, 2025.” Id. at 90.
Within ninety days of each preliminary injunction,
plaintiffs filed in the district court motions for “renewed
preliminary injunction[s].” Doe v. Bondi, No. 25-286, ECF

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No. 81-1 (Doe Renewed PI Mot.) at 1 (D.D.C. filed May 12,
2025). Plaintiffs explained that, pursuant to 18 U.S.C.
§ 3626(a)(1)(A) and (a)(2), the preliminary injunctions would
expire after ninety days. Preliminary relief remained
necessary, plaintiffs argued, and “[n]othing in the statute limits
the number of times a court may enter preliminary relief” upon
such a showing. Doe Renewed PI Mot. 5 (quoting
Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001)).
Plaintiffs accordingly asked the district court to “enter a new
preliminary injunction renewing the relief in the current
injunctions for an additional ninety (90) days.” Id. at 10.
Defendants did not oppose plaintiffs’ motions, id. at 1, and the
district court renewed each of the preliminary injunctions as
requested. See, e.g., Doe May 15 PI Order (J.A. 954-56).
Defendants timely appealed the preliminary injunctions
(both original and renewed). We consolidated the appeals for
briefing and argument.
II.
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat’l Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). “We review the district
court’s decision whether to grant the Plaintiffs’ request for a
preliminary injunction for abuse of discretion, its legal
conclusions de novo, and its findings of fact for clear error.”
Hanson v. District of Columbia, 120 F.4th 223, 231 (D.C. Cir.
2024) (internal quotation marks omitted).
Defendants contend that the district court erred in granting
preliminary injunctive relief based on plaintiffs’ Eighth
Amendment claim. They first argue that the district court

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should not have considered plaintiffs’ Eighth Amendment
claim because 18 U.S.C. § 3621(b) prohibits judicial review of
BOP’s designation of a place of imprisonment and because
plaintiffs failed to exhaust available administrative remedies.
Defendants separately argue that, even if the district court
could consider plaintiffs’ Eighth Amendment claim, plaintiffs
have failed to show a likelihood of success on the merits of that
claim because they do not face an “objectively intolerable” risk
of harm from their transfer to men’s facilities and because the
Bureau did not exhibit deliberate indifference to any such risk.
Lastly, defendants contend that the preliminary injunctions
should be vacated because plaintiffs failed to establish the
remaining Winter factors and the district court failed to make
the requisite findings under the PLRA before granting
injunctive relief. See 18 U.S.C. § 3626(a)(2).
We hold that 18 U.S.C. § 3621(b) does not bar judicial
review of constitutional claims challenging BOP’s designation
of a place of imprisonment. We also hold that defendants have
failed to carry their burden to show plaintiffs’ failure to exhaust
available administrative remedies. Turning to the merits, we
conclude that we cannot sustain the preliminary injunctions
because plaintiffs expressly disclaim the district court’s
rationale for granting relief and instead advance a narrower
ground for upholding the injunctions—namely, that they are
entitled to relief based on their specific characteristics—that we
cannot adopt on the existing record. We thus vacate the
preliminary injunctions and remand for further proceedings.
A.
1.
Before turning to the parties’ arguments, we address a
threshold issue raised by our dissenting colleague. We have
before us a set of preliminary injunctions, some of which were

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entered more than ninety days ago and have accordingly since
expired under 8 U.S.C. § 3626(a)(2) and others newly entered
in the last ninety days and thus still in effect. Our colleague
argues that the injunctions should be vacated because the PLRA
provides that civil orders granting preliminary relief from
unlawful prison conditions “shall automatically expire” within
ninety days. 18 U.S.C. § 3626(a)(2). In his view, that means
the preliminary injunctions on appeal are either moot (because
they are no longer in effect) or invalid (because the district
court lacked authority to issue them once the original
injunction in each case expired).
We agree that the challenges to preliminary injunctions
that have expired are moot. See Banks v. Booth, 3 F.4th 445,
447-49 (D.C. Cir. 2021) (dismissing as moot appeal from
preliminary injunction that expired after ninety-day window).
But we do not resolve whether section 3626(a)(2) prohibited
the district court from entering the new injunctions. Even
assuming section 3626(a)(2) limits a district court’s ability to
issue a new preliminary injunction at the end of the ninety-day
period set forth in that statute, but see Mayweathers, 258 F.3d
at 936, we conclude that any implicit restriction to that effect
can be and has been waived by the defendants.
“In our adversarial system of adjudication, we follow the
principle of party presentation.” Clark v. Sweeney, 607 U.S. 7,
9 (2025) (quoting United States v. Sineneng-Smith, 590 U.S.
371, 375 (2020)). As the “neutral arbiter of matters the parties
present,” we “rely on the parties to frame the issues for
decision.” Greenlaw v. United States, 554 U.S. 237, 243
(2008). Here, both parties agree that section 3626(a)(2) does
not limit a district court’s ability to issue a new preliminary
injunction at the end of the ninety-day period set forth in that
statute. See Appellants’ Supp. Br. 3-8; Appellees’ Supp. Br. 1-
6. The Bureau explains that the parties’ shared reading of

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18
section 3626(a)(2) “avoids the heightened litigation burdens
that would be imposed on the parties and the courts if prison-
condition disputes regularly had to be litigated on a highly
expedited basis in order to achieve final judgment before the
initial [preliminary injunction] expired.” Appellants’ Supp. Br.
4. And plaintiffs note that “every court of appeals that has
reached the issue” agrees. Appellees’ Supp. Br. 3 (citing cases).
The party-presentation principle does not apply to
questions of subject-matter jurisdiction, which federal courts
have an “independent obligation” to raise and decide even
when “the parties either overlook or elect not to press” them.
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434
(2011). But no one contends that any implicit limitation section
3626(a)(2) imposes on a district court’s ability to issue a
successive preliminary injunction is jurisdictional. Appellants’
Supp. Br. 9-11; Appellees’ Supp. Br. 6-7; Dissenting Op. at 21.
After all, we only “brand[] a rule as going to a court’s subject
matter jurisdiction” if Congress has clearly stated as much.
Henderson, 562 U.S. at 434; see Sebelius v. Auburn Reg. Med.
Ctr., 568 U.S. 145, 153 (2013). Section 3626(a)(2) is silent on
this point.
Seeing no justification for departing from the principle of
party presentation, we do not address whether the injunctions
before us would be subject to vacatur under section 3626(a)(2)
if the point had been preserved and pressed.
Next, we address the two threshold obstacles that the
Bureau asserts prevent us from reaching the merits of plaintiffs’
Eighth Amendment claim. We hold that neither applies to bar
our review.

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19
2.
Defendants first contend that 8 U.S.C. § 3621(b) prevents
this court from hearing plaintiffs’ Eighth Amendment claim
challenging their transfer to men’s facilities. In relevant part,
section 3621(b) states: “Notwithstanding any other provision
of law, a designation of a place of imprisonment under this
subsection is not reviewable by any court.” Id.
“[W]here Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.” Webster
v. Doe, 486 U.S. 592, 603 (1988). The Supreme Court
“require[s] this heightened showing . . . to avoid the serious
constitutional question that would arise if a federal statute were
construed to deny any judicial forum for a colorable
constitutional claim.” Id. (internal quotation marks omitted).
Thus, we have held that a statute precludes judicial review of
constitutional challenges “only if the evidence of congressional
intent to preclude is ‘clear and convincing.’” McBryde v.
Comm. to Review Cir. Council Conduct & Disability Orders of
the Jud. Conf. of the U.S., 264 F.3d 52, 59 (D.C. Cir. 2001)
(collecting cases).
Even assuming that what plaintiffs challenge is “a
designation of a place of imprisonment under this subsection,”
8 U.S.C. § 3621(b), defendants fail to identify “clear and
convincing” evidence that Congress intended to preclude
judicial review of constitutional challenges to such a
designation. Defendants hang their hat on statutory text that
they say uses “clear, categorical language” demonstrating
preclusive intent. Appellants’ Br. 28. But our cases treat even
such “broad and seemingly comprehensive statutory language”
as alone insufficient to “supply[] the necessary clarity to bar as
applied constitutional claims.” McBryde, 264 F.3d at 59; see
Griffith v. FLRA, 842 F.2d 487, 494-95 (D.C. Cir. 1988); Ungar

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20
v. Smith, 667 F.2d 188, 193 (D.C. Cir. 1981); Ralpho v. Bell,
569 F.2d 607, 620-21 (D.C. Cir. 1977). In McBryde, we
confronted a statute stating that certain decisions of entities of
the federal courts—a regional Circuit Judicial Council and the
nationwide Judicial Conference Review Committee—“shall be
final and conclusive and shall not be judicially reviewable on
appeal or otherwise.” Id. at 58 (quoting 28 U.S.C.
§ 372(c)(10)). That text fell short of “clear and convincing”
evidence of preclusive intent. Id. at 59. We found the requisite
clarity only after examining legislative history that emphasized
the quasi-judicial nature of the form of “agency” review that
the statute left available to aggrieved persons. Id. at 62; see
also id. at 58-63. The statutory text here is quite like that of the
statute at issue in McBryde, as defendants themselves
acknowledge. Appellants’ Br. 28. But defendants fail to point
to any further indicia of “clear and convincing” preclusive
intent, which McBryde deemed necessary. And none of the
non-precedential, out-of-circuit cases defendants cite in
support of section 3621(b) preclusion for constitutional claims
addresses Webster v. Doe—let alone our precedent described
above. See Appellants’ Br. 28-29 (citing Wills v. Barnhardt,
2022 WL 4481492, at *1-*2, *4 (10th Cir. Sept. 27, 2022);
Touizer v. U.S. Att’y Gen., 2021 WL 3829618, at *1-*2 (11th
Cir. Aug. 27, 2021) (per curiam); Jiau v. Tews, 812 F. App’x
638, 639 (9th Cir. 2020)).
We are thus unpersuaded that section 3621(b) precludes
judicial review of plaintiffs’ Eighth Amendment claim.
3.
We turn next to defendants’ argument that plaintiffs’
challenge is barred by their failure to exhaust administrative
remedies. Plaintiffs do not deny that they sought no
administrative relief before filing suit. Rather, they note that

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21
the PLRA requires the exhaustion of only “available” remedies,
42 U.S.C. § 1997e(a), see Ross, 578 U.S. at 635-36, and
contend that there were no administrative remedies available to
them, Appellees’ Br. 42-45. The point thus turns on whether
plaintiffs are right about that.
An administrative remedy is “available” if it is “capable of
use to obtain some relief for the action complained of.” Ross,
578 U.S. at 642 (internal quotation marks omitted).
Conversely, an administrative remedy is not available “where
the relevant administrative procedure lacks authority to provide
any relief” such that it operates as “a simple dead end.” Id. at
643 (quoting Booth v. Churner, 532 U.S. 731, 736 (2001)).
Defendants have failed to carry their burden to show that
administrative remedies were available to plaintiffs. See
Kaemmerling, 553 F.3d at 675 (citing Jones, 549 U.S. at
215-16). No one disputes that BOP has a grievance procedure
open to inmates. See 28 C.F.R. §§ 542.13-.15. But defendants
have failed to show that, for plaintiffs, the grievance procedure
is “capable of use to obtain some relief for the action
complained of.” Ross, 578 U.S. at 642 (internal quotation
marks omitted). Part of the injury plaintiffs claim is that the
mere fact of their transfer to a men’s facility would subject
them to an intolerable risk of harm by exacerbating their gender
dysphoria. And defendants acknowledge that BOP’s grievance
procedure cannot stop or reverse the challenged transfers
because they are mandated by the Executive Order. Appellants’
Br. 32. The “action complained of” is not an Eighth
Amendment violation in the abstract, but the concrete action
the plaintiffs challenge—here, the transfers and their attendant
risks. And Ross asks whether the grievance process can
provide “some relief for the action complained of.” 578 U.S.
at 642 (quoting Booth, 532 U.S. at 738).

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22
In that respect, this case is on all fours with Kaemmerling,
where an inmate challenged BOP’s collection of his DNA
information as contrary to his sincerely held religious beliefs.
553 F.3d at 675. In assessing the availability of an
administrative remedy, we accepted the plaintiff’s claim that
the collection of his DNA would complete the asserted
religious injury. Id. We held that he had “no administrative
process to exhaust” because “BOP ha[d] no discretion not to
collect his DNA, as the [DNA Act’s] mandatory language
indicates and as BOP conceded.” Id.
Plaintiffs also claim Eighth Amendment injury from the
substantially elevated risk of physical or sexual violence they
would face in men’s facilities. With respect to that asserted
injury, too, defendants have failed to carry their burden to
identify an administrative remedy “capable” of providing
plaintiffs “some relief.” Ross, 578 U.S. at 642 (internal
quotation marks omitted). In support of their assertion that
BOP can take “additional safety measures” in response to any
personal safety concerns plaintiffs may raise through BOP’s
grievance procedure, defendants point to a single declaration
from a BOP official. See Appellants’ Br. 32 (citing Rick Stover
First Jones Decl. ¶¶ 11-15 (J.A. 308-10)). That declaration
discusses general BOP policies and procedures designed to
ensure the safety of inmates, and the only form of
administrative relief it identifies as an additional safety
measure is the possibility of housing an inmate “as a protective
custody case in the Special Housing Unit.” Stover First Jones
Decl. ¶ 15 (J.A. 309-10).
As the Bureau acknowledges, transferring plaintiffs into
segregated housing in men’s prisons is no solution. The same
BOP official who identified placement in the Special Housing
Unit (SHU) as a possible administrative remedy explained it
would involve “more restrictive conditions” than being housed

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23
in the general prison population. Id. See BOP Program
Statement 5270.12 § 541.21 (noting “inability to leave the
room or cell for the majority of the day” as “element” of
“[r]estrictive housing”). He clarified in a further declaration
that the Bureau planned to use segregated housing only as a
short-term measure. See Stover Second Jones Decl. ¶ 25
(J.A. 394) (“BOP does not intend to house any plaintiff in the
SHU . . . for an extended period of time.”). Thus, defendants’
only proffered administrative relief is by their own lights not
an appropriate, sustainable form of relief from plaintiffs’
claimed harms. A temporary, stop-gap measure that lacks any
capacity to relieve plaintiffs from the ongoing risk of harm in
men’s prisons that plaintiffs allege is not “capable of use to
obtain some relief for the action complained of.” Ross, 578
U.S. at 642 (quoting Booth, 532 U.S. at 738).
The dissent posits that exhausting administrative remedies
—even through a process incapable of reducing objective
risk—can still provide plaintiffs “some relief” from Eighth
Amendment injury by mitigating prison officials’ deliberate
indifference. See Dissenting Op. at 5-6. We are not persuaded.
First, the suggestion cannot be squared with Ross. It
would mean no plaintiff with a failure-to-protect claim could
benefit from Ross’s rule that “an administrative procedure is
unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with
officers unable . . . to provide any relief to aggrieved inmates.”
578 U.S. at 643. But Ross itself (and Booth, from which Ross
derived this rule) involved a failure-to-protect claim. See Ross,
578 U.S. at 636, 643; Booth, 532 U.S. at 734.
Second, the suggestion that grievance procedures
inherently mitigate deliberate indifference fails as a practical
matter. The bare fact of prompting prison officials to consider

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24
an inmate’s grievance does not somehow mitigate the officials’
indifference if they have no response to the inmate’s plight. Cf.
Farmer, 511 U.S. at 844 (explaining that prison officials do not
act with deliberate indifference “if they responded reasonably
to the risk, even if the harm ultimately was not averted”). If
anything, requiring an inmate to exhaust an administrative
procedure incapable of providing any identified, concrete relief
from a substantial risk of serious harm makes official
indifference more deliberate, not less. The burden is on the
Bureau. With no evidence in the record even suggesting that
there is any sustainable way in which BOP’s grievance
procedure could provide plaintiffs’ “some relief” from the
severe risks they claim they will face if housed in men’s
prisons, defendants have failed to carry their burden to show an
“available” administrative remedy for plaintiffs to exhaust.
With defendants’ threshold objections cleared, we turn to
the merits of plaintiffs’ Eighth Amendment claim.
B.
The district court concluded that plaintiffs were entitled to
preliminary injunctive relief because they are likely to succeed
on the merits of their claim that their transfer to men’s facilities
would violate the Eighth Amendment. As noted above, the
district court set forth its rationale for so concluding in the
February 4 TRO in Doe. There, the district court found that
plaintiffs had shown that “transgender persons are at a
significantly elevated risk of physical and sexual violence
relative to other inmates when housed in a facility
corresponding to their biological sex.” 763 F. Supp. 3d at 88.
The district court also credited plaintiffs’ claim that “placement
in a male penitentiary by itself will exacerbate the symptoms of
their gender dysphoria, even if they [plaintiffs] are not subject
to physical or sexual violence in their new facility.” Id.

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25
Notably, in making those findings, the district court did not
identify each individual plaintiffs’ risk-elevating
characteristics, such as their having undergone sex
reassignment treatment or their experiences of assault or self-
harm in men’s prisons. Id. Rather, the court cited to “various
government reports and regulations” that recognized the
generally heightened risks faced by transgender women housed
in men’s facilities. Id.
On the basis of those findings, the district court concluded
that plaintiffs were likely to succeed in showing (1) that they
faced an “objectively intolerable” risk of violence (as
transgender women housed in men’s facilities) and of
exacerbated gender dysphoria (as transgender women with
gender dysphoria housed in men’s facilities); and (2) that BOP
was actually aware of those risks. Id. at 88-89. The district
court thus concluded that plaintiffs had shown a likelihood of
success on their Eighth Amendment claim, id. at 88 (citing
Farmer, 511 U.S. at 839-40), and further concluded that
plaintiffs would be irreparably harmed absent preliminary
injunctive relief, id. at 89.
Plaintiffs, however, expressly disclaim the categorical
argument “that the Eighth Amendment requires every
transgender woman to be housed in a women’s prison.”
Appellees’ Br. 19-20. They also make clear that they do not
contend that every transgender woman diagnosed with gender
dysphoria has an Eighth Amendment entitlement to be housed
in a women’s prison. See Appellees’ Br. 25 (arguing that
worsening gender dysphoria will put these plaintiffs at
“significant risk of harm” because they have lived as women
for extended periods, transitioned through use of medications
and surgeries, and because they have histories of self-injury
and suicidal ideation). We generally do not consider arguments
that parties do not make—or, as here, arguments that they

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26
disclaim. See Greenlaw v. United States, 554 U.S. 237, 243-44
(2008). Thus, we cannot sustain the district court’s preliminary
injunctions on the ground that every transgender woman (or
every transgender woman diagnosed with gender dysphoria) in
BOP custody has an Eighth Amendment entitlement to not be
housed in men’s facilities.
Plaintiffs urge us to affirm the district court’s preliminary
injunctions on a different—narrower—ground. They contend
that they all have “particular vulnerabilities” that expose them
to a greater risk of harm than transgender women in BOP
custody generally. Appellees’ Br. 19-25. Plaintiffs argue that
their characteristics make them “an especially at-risk group”
even among transgender women inmates, which is why
plaintiffs “are part of the small, unique group of transgender
women whom BOP placed in women’s facilities.” Id. at 20. In
explaining what distinguishes them, plaintiffs point to long-
term hormone therapy and surgeries effecting gendered
physical alterations, prior history of sexual assault or self-harm
in men’s facilities, or a combination of such factors. See id. at
20-21. They further contend that BOP is aware of their
individual characteristics—an awareness that defendants do
not dispute. Appellees’ Br. 26; see Appellants’ Br. 42-44.
According to plaintiffs, such characteristics render their
housing in men’s facilities unconstitutional under the Eighth
Amendment regardless of whether other transgender women
could constitutionally be housed in men’s facilities. See
Appellees’ Br. 28-29.
The record indeed contains ample, uncontested evidence
of plaintiffs’ characteristics that, according to plaintiffs, make
them distinctively vulnerable to harm in men’s facilities. See,
e.g., [Name Redacted] Decl. ¶ 5 (J.A. 286) (facial
reconstructive surgery, breast augmentation surgery, and
vaginoplasty); Donna Jones Decl. ¶ 6 (J.A. 385) (prior history

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27
of sexual assault in men’s prison); Olivia Doe Decl. ¶ 5
(J.A. 921) (prior history of attempting suicide in men’s prison).
But the district court did not make findings that each of the
plaintiffs would be subject to a “significantly elevated risk” of
harm in men’s facilities, Doe, 763 F. Supp. 3d at 88, and we
cannot “take [its] place” to make such factual findings
ourselves, United States v. Hill, 131 F.3d 1056, 1061 (D.C. Cir.
1997) (internal quotation marks omitted). Instead, it is the
province of the district court to elicit and assess evidence and
find facts. We accordingly remand to allow the district court to
exercise its judgment whether to make the factual
determinations needed to hold, as plaintiffs urge, that the
distinctive characteristics of these individuals in particular
render their transfer to men’s facilities unconstitutional under
the Eighth Amendment.
In two of its preliminary injunction orders, the district
court relied on a different ground that is particularized to the
specific group of plaintiffs in this case: Before the President
issued his Executive Order barring any such assignments,
“BOP determined that women’s facilities are the appropriate
facilities for plaintiffs under the prevailing legal regime
considering all statutorily and constitutionally required
factors.” Doe, 2025 WL 596653, at *1; Jones, 2025 WL
923755, at *1 (internal quotation marks omitted); see also
Appellees’ Br. 20 (emphasizing BOP’s initial placement of
plaintiffs in women’s facilities). Specifically, the district court
relied on the Bureau’s initial determinations that women’s
facilities were the appropriate facilities for plaintiffs and the
fact that “housing inmates with inmates of the opposite
biological sex is a statistical anomaly” to infer that plaintiffs
faced risks cognizable under the Eighth Amendment. Id. at *1
(internal quotation marks omitted). Simply put, the Bureau
itself decided that, among the thousands of transgender women

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28
in its custody, this small subgroup should be placed in women’s
facilities, not men’s.
But the referenced “statutorily and constitutionally
required factors” applicable to such assignments encompass
considerations outside the concerns of the Eighth Amendment.
See, e.g., 18 U.S.C. § 3621(b) (requiring BOP to place inmates
“as close as practicable to the prisoner’s primary residence”
and to consider many factors in designating a place of
imprisonment, inter alia, “the resources of the facility
contemplated,” “the nature and circumstances of the offense,”
any “faith-based” or health needs, and available special
services such as substance abuse treatment). The Bureau,
relying on an affidavit from a BOP official, asserted that the
“decision to place each Plaintiff in a women’s facility was
made for a ‘variety of reasons,’ and not simply because of a
finding that the plaintiffs could not be safely housed in a men’s
facility”—i.e., for reasons “beyond just safety
concerns.” Jones, 2025 WL 923755, at *1. BOP’s supporting
affidavit stated that plaintiffs were initially placed in women’s
facilities because of court orders or settlement agreements,
because they were waiting for sex reassignment surgery, or
because they were “already being housed with women prior to
coming into [BOP] custody.” Stover Second Jones Decl. ¶ 24
(J.A. 393).
Given the rarity of such placements within the federal
system, it is reasonable to infer that BOP’s decisions to house
plaintiffs in women’s facilities are the product of deliberate,
individualized determinations rather than happenstance. And
the Bureau denies only that its placements of transgender
women in women’s institutions were “all” made based on risks
they would face if housed in men’s facilities. Id.

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29
That said, the record does not definitively establish
whether safety concerns motivated each plaintiff’s placement.
The district court made no findings that the Bureau’s prior
assignments of plaintiffs rested on the Bureau’s assessment that
they would face constitutionally germane risks of harm if
housed with men. Without such findings, we cannot confirm
the district court’s inference that BOP previously placed
plaintiffs in women’s facilities because they could not be safely
housed in men’s facilities.
Because the district court did not otherwise explain why
these individual plaintiffs—as opposed to transgender women
in BOP custody more broadly—are likely to succeed on an
Eighth Amendment challenge to their placement in men’s
facilities, and because plaintiffs disclaim broader theories that
the Eighth Amendment requires all transgender women—or all
those with gender dysphoria—to be housed in women’s
facilities, plaintiffs have not shown a likelihood of success on
their Eighth Amendment claim.
C.
Our conclusion that plaintiffs have not shown a likelihood
of success on their Eighth Amendment claim means that we
cannot sustain the district court’s preliminary injunctions. For
largely the same reasons that plaintiffs have failed to show a
likelihood of success, we lack grounds to hold that they “will
likely suffer irreparable harm before the district court can
resolve the merits of the case.” Singh v. Berger, 56 F.4th 88,
95 (D.C. Cir. 2022). The district court reasoned that plaintiffs
demonstrated irreparable harm from their transfer because “a
prospective violation of a constitutional right constitutes
irreparable injury.” Doe, 763 F. Supp. 3d at 89 (quoting Davis
v. Dist. of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)).
But, as explained above, plaintiffs have disclaimed the basis on

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30
which the district court rested its likelihood-of-success
conclusion and advanced only their more individuated claim as
to which the district court has not made the necessary findings.
We cannot affirm a finding of irreparable harm to all plaintiffs
that was predicated on a categorial, since-disclaimed theory of
constitutional injury.
We recognize that plaintiffs separately contend that they
each face a substantial risk of irreparable harm from physical
and sexual violence as well as the worsening of their gender
dysphoria. But, again, that argument expressly relies on
plaintiff-specific characteristics that plaintiffs say make them
particularly at risk of harm. See Appellees’ Br. 47-48. The
district court did not rely on plaintiff-specific factfinding in
concluding that plaintiffs would be irreparably harmed absent
an injunction, leaving unexpressed the specific factual support
for a holding that plaintiffs’ distinct characteristics would
subject them to irreparable harm. For these reasons, we cannot
conclude that plaintiffs “will likely suffer irreparable harm
before the district court can resolve the merits of the case.”
Singh v. Berger, 56 F.4th at 95. That conclusion obviates the
need for us to consider the other Winter factors. See Davis v.
Pension Ben. Guar. Corp., 571 F.3d 1288, 1295 (D.C. Cir.
2009) (even under sliding-scale approach to preliminary
injunction factors, failure to establish first two obviates need to
consider other two). Because we cannot affirm the district
court’s conclusion that plaintiffs have shown a likelihood of
success on the merits of their Eighth Amendment claim and
irreparable harm, we must vacate the preliminary injunctions
and remand for further consideration. Id.
Apart from their Eighth Amendment claim, plaintiffs seek
to defend the preliminary injunctions based on their claims
under the Administrative Procedure Act. Appellees’ Br. 29-38.
But the district court did not reach those claims. See Doe, 763

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31
F. Supp. 3d at 87-90. And “we are a court of review, not of first
view, so where the merits went unaddressed below, it is our
general practice to remand to the district court.” Bauer v.
FDIC, 38 F.4th 1114, 1126 (D.C. Cir. 2022) (formatting
modified). We thus decline to reach plaintiffs’ APA claims in
the first instance and remand to the district court to consider
those claims as appropriate.
Because we vacate the preliminary injunctions on the
merits, we need not address defendants’ contention that the
preliminary injunctions fail to comply with the PLRA’s
provisions limiting relief to that which the district court finds
is “narrowly drawn” and extends “no further than necessary to
correct the harm” supporting preliminary relief. 18 U.S.C.
§ 3626(a)(2).
III.
For the foregoing reasons, we vacate the preliminary
injunctions still in effect and remand for further proceedings.
As to the preliminary injunctions that everyone agrees have
since expired pursuant to section 3626(a)(2)’s ninety-day time
limit, we dismiss the appeals as moot insofar as they speak to
those superseded injunctions. See Banks, 3 F.4th at 447-49.
Nothing in this opinion limits the district court’s ability on
remand to elicit further information, make additional findings
of fact, or consider additional or alternative legal bases for
relief, as it deems appropriate.
So ordered.

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RANDOLPH, Senior Circuit Judge, dissenting:
Thirty years ago Congress addressed the burgeoning
number of lawsuits dealing with prison conditions and the
regulatory injunctions federal judges were issuing in response.
In order to identify and channel those prisoner cases worthy of
concern and to cabin the injunctive authority of federal judges,
Congress passed the Prison Litigation Reform Act of 1995.
Two of the major reforms of that legislation are at issue in this
case. The majority opinion defies both.
I
A
Although I agree that the outstanding preliminary
injunctions must be vacated, I dissent because the Prison
Litigation Reform Act compels an end to these consolidated
cases, not a remand that encourages the district court to
repackage relief under alternative theories. The PLRA speaks
in unmistakable terms: “No action shall be brought with respect
to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a).
Requiring exhaustion “afford[s] corrections officials time
and opportunity to address complaints internally before
allowing the initiation of a federal case.” Porter v. Nussle, 534
U.S. 516, 525 (2002). It is, at its core, a rule grounded in
respect for the institutional competence of those who daily
contend with the complex realities of incarceration. See Shaw
v. Murphy, 532 U.S. 223, 229 (2001).
That respect is absent from the majority’s opinion. None of
the plaintiffs took advantage of the administrative remedies
available to them. Under the PLRA’s unambiguous command,

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2
that failure should have ended these consolidated cases. As the
Supreme Court has cautioned, “a court may not excuse a failure
to exhaust, even to take [special] circumstances into account.”
Ross v. Blake, 578 U.S. 632, 639 (2016).
The majority does precisely what the Supreme Court has
forbidden, masking its departure from the statute by distending
the “unavailability” exception articulated in Ross beyond its
limits. See Maj. Op. at 20-21. They assert that the
administrative process here was a “dead end” because officers
purportedly lacked power to grant any form of relief, and so
administrative procedures are unavailable and need not be
exhausted. Id. at 21 (quoting Ross, 578 U.S. at 643). That
conclusion cannot survive even cursory examination. Prison
officials retained broad discretion to ameliorate plaintiffs’
alleged harms through an array of ordinary interventions,
including modified housing assignments, accommodations, or
alternative treatment measures. See 28 C.F.R. § 115.42(c);
JA308-10 (Stover First Jones Decl. ¶ 11-15).
To prop up its contrary conclusion, the majority leans
heavily—indeed, nearly exclusively—on Kaemmerling v.
Lapin, 553 F.3d 669 (D.C. Cir. 2008). See Maj. Op. at 22. But
Kaemmerling cannot bear the load they place upon it. The
plaintiff there sought to enjoin the statutorily mandated
collection of his DNA, asserting that the procedure violated his
religious beliefs and thus infringed upon his rights under the
Religious Freedom Restoration Act and the Constitution.
Kaemmerling, 553 F.3d at 674. This court concluded that,
because the prison officials had no discretion over the DNA
collection and no grievance procedure could offer any relief, no
administrative remedy remained “available.” Id. at 675-76.
Only striking down a federal statute—which the Bureau of
Prisons could not do—would provide any relief. Id. at 676.

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3
To transform that limited holding—rendered outside the
context of any Eighth Amendment claim—into an endorsement
of the majority’s position is irreconcilable with the Supreme
Court’s unequivocal instruction that a remedy need not be
“effective” to be “available.” Booth v. Churner, 532 U.S. 731,
740-41 (2001). “Even when the prisoner seeks relief not
available in grievance proceedings . . . exhaustion is a
prerequisite to suit.” Porter, 534 U.S. at 524. Kaemmerling, by
its own terms, did nothing more than acknowledge the
unremarkable proposition that a remedy is not “available” when
it is incapable of altering the contours of the dispute before the
court: “This case is the rare one in which there is no
administrative process to exhaust because the BOP lacks
authority to provide Kaemmerling any relief or to take any
action whatsoever in response to his complaint challenging
enforcement of the DNA Act.” 553 F.3d at 675 (emphasis
added).
Not so here. These cases do not give rise to a purely legal
question, insulated from factual development and agency
judgment. As already noted, prison officials retained broad
discretion to ameliorate the plaintiffs’ alleged harms. The
majority attempts to manufacture parity with Kaemmerling by
asserting a tight nexus between the plaintiffs’ transfer to male
facilities and the exacerbation of their gender dysphoria—the
implication being that, because exacerbation is inevitable, no
factual development or application of agency expertise could
meaningfully inform the court’s analysis. See Maj. Op. at 22.
They contend that this nexus “is on all fours with” the
connection identified in Kaemmerling between the statutorily
mandated DNA collection and the asserted religious injury. Id.
But that analogy falters at the threshold. Unlike
Kaemmerling, this case does not involve an alleged legal injury
flowing inexorably from a mandatory government act. Plaintiffs

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4
assert that their transfer to male facilities will inevitably
intensify their feeling of gender dysphoria. But such distress,
without more, is damnum absque injuria, for which federal
courts themselves afford no relief. The relevant inquiry is not
whether administrative remedies are available to address such
non-cognizable harm, but whether remedies are available to
address the alleged legal injury—here, an Eighth Amendment
violation. See Alabama Power Co. v. Ickes, 302 U.S. 464, 478-
79 (1938) (noting that remedies attach only to legal injuries;
harm alone does not suffice); Abdelfattah v. Dep’t of Homeland
Sec., 787 F.3d 524, 536 (D.C. Cir. 2015) (recognizing that
remedies are defined as relief intended to redress “a violation
of an established legal right [that] has occurred or is imminent”
(emphasis added)).
Once framed correctly, the analogy to Kaemmerling
collapses. The PLRA demands exhaustion whenever grievance
mechanisms “are ‘capable of use’ to obtain ‘some relief for the
action complained of.’” Ross, 578 U.S. at 642 (emphasis added)
(quoting Booth, 532 U.S. at 738). “Some relief” is a modest
threshold—and a fatal obstacle to the majority’s reasoning.
That principle had no purchase in Kaemmerling, where the
claim admitted no possibility of any mitigation whatsoever and
therefore no prospect of “some relief.” Either the Bureau of
Prisons would collect the plaintiff’s DNA and thereby fully
consummate the asserted religious injury, or it would refrain
and cause no injury at all.
Unlike the alleged harm in Kaemmerling, the Eighth
Amendment injury the plaintiffs here assert is necessarily one
of degree. Failure-to-protect claims comprise two inquiries:
whether the inmate “is incarcerated under conditions posing a
substantial risk of serious harm,” and whether the authorities
are deliberately indifferent to that risk. Farmer v. Brennan, 511
U.S. 825, 834 (1994). Both concepts operate along a

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5
continuum. Risk presents gradations. So does indifference.
Accordingly, the possibility of “some relief” carries
significance here that it lacked in Kaemmerling. If grievance
procedures could diminish the level of risk or mitigate official
indifference even marginally, then administrative remedies
remain available and the PLRA demands that they be pursued
before judicial intervention may be sought.
With respect to deliberate indifference, it borders on
paradoxical to conclude that there is no possibility of “some
relief” here. Grievance procedures exist precisely to confront
alleged indifference and, when warranted, to secure institutional
response. Cf. Jones v. N. Carolina Prisoners’ Lab. Union, Inc.,
433 U.S. 119, 130 n.6 (1977). Short of circumstances in which
prison officials categorically refuse to act upon grievances or
obstruct access to grievance procedures, it is difficult to
conceive how a failure-to-protect claim could ever admit of no
possible relief on this element. Administrative consideration of
an inmate’s grievance is the antithesis of disregarding it. And
given the range of interventions ordinarily available in
correctional settings, it is not apparent how officials willing to
engage with an inmate could ever be incapable of “respond[ing]
reasonably” in a failure-to-protect context. Farmer, 511 U.S.1
at 844. One plaintiff’s experience before joining this litigation
makes the point. After transferring to a male facility, Rachel
Doe reported receiving a sexually explicit note from an
unidentified inmate, and prison officials promptly opened an
Contrary to the majority’s suggestion, this does not foreclose 1
application of Ross’s “dead end” exception to all failure-to-protect
claims. See Maj. Op. at 23. The examples Ross itself offers—where
grievances must be directed to an office that “disclaims the capacity”
to consider them or officials with apparent authority “decline ever to
exercise it”—reflect circumstances of categorical refusal in which the
exception remains available. Ross, 578 U.S. at 643.

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6
investigation to address the matter. Nothing in the record
supports the conclusion that prison officials would abandon the
vigilance reflected in Rachel Doe’s experience or prove
indifferent to the risks the plaintiffs assert.
Accordingly, because deliberate indifference is an
indispensable element of failure-to-protect claims, plaintiffs
cannot establish that administrative remedies are unavailable
irrespective of the asserted risks attendant to their transfers. See
id. (“[P]rison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm
ultimately was not averted.”). But even if plaintiffs’ claims
depended solely on their asserted risks following transfer, that
would not excuse their failure to exhaust. Intensified gender2
dysphoria does not inevitably ripen into a substantial risk of
serious harm. The condition exists along a continuum with its
severity neither fixed nor immutable, but contingent on a range
of influences—some aggravating, others ameliorating. Transfer
to male facilities may push the trajectory of plaintiffs’
dysphoria in an unfavorable direction. It does not, however,
dictate the ultimate severity of their condition, particularly in
light of the range of treatment measures prison officials could
implement. Administrative relief therefore remains available
The majority’s contention that mitigation of officials’ deliberate 2
indifference does not constitute “some relief” is incorrect for the
reasons already explained. See Maj. Op. at 23. Tellingly absent,
however, is any response to the separate and sufficient point that
remedies would also have mitigated the substantial risk of serious
harm plaintiffs allege. Because a failure-to-protect claim requires both
deliberate indifference and substantial risk of serious harm, plaintiffs
must demonstrate that relief was unavailable with respect to both
elements in order to establish the absence of any possibility of “some
relief.”

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7
with respect to the risks plaintiffs attribute to their gender
dysphoria after transfer.
That conclusion follows even more self-evidently with
respect to the portion of plaintiffs’ claims alleging a heightened
risk of physical and sexual violence. Managing and reducing
such risks is among the most fundamental responsibilities of
prison administration. See Hewitt v. Helms, 459 U.S. 460, 473
(1983) (“The safety of the institution’s . . . inmates is perhaps
the most fundamental responsibility of the prison
administration.”); Pell v. Procunier, 417 U.S. 817, 823 (1974)
(“[C]entral to all other corrections goals is the institutional
consideration of internal security within the corrections
facilities themselves.”). It would be a remarkable proposition to
conclude that prison officials are categorically incapable of
reducing, to any extent, the risk of physical or sexual assault
within their institutions.
Nor is it a sufficient rejoinder to assert that any available
administrative remedy would fail to mitigate the harms
associated with transfer to male facilities to an adequate degree.
It may ultimately prove that transfer to male facilities gravely
intensifies certain plaintiffs’ risks of serious harm, and that no
action by prison officials can meaningfully alleviate those risks.
But it is wholly speculative to conclude, at this juncture, that no
relief whatsoever could conceivably be available through
established grievance channels. And it is precisely such
speculation that the PLRA’s exhaustion requirement is designed
to forestall. Prisoners must pursue “the possibility of some
relief,” Booth, 532 U.S. at 738 (emphasis added)—even if there
is no “effective” remedy, id. at 740—because it is not for courts
to preemptively adjudicate the adequacy of such relief.
Exhaustion serves to “afford[] corrections officials time and
opportunity to address complaints internally,” thereby
generating an administrative record that “clarifies the contours

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8
of the controversy.” Porter, 534 U.S. at 525. Some measure of
relief is plainly available here. Whether it would prove
inadequate is a question that cries out for factual development.
Yet the majority indulges plaintiffs’ request to proceed in the
absence of any such administrative record.
The majority objects that the “action complained of” is not
an Eighth Amendment violation “in the abstract,” but rather
“the concrete action the plaintiffs challenge—here, the transfers
and their attendant risks.” Maj. Op. at 21. The charge is
puzzling. This dissent nowhere disputes that the action
complained of is the transfer. But the availability of “some
relief” for that action can only be assessed by reference to the
elements of the constitutional claim the plaintiffs raise. If
measuring facts against legal standards is “abstract,” the
majority’s quarrel lies not with my dissent but with the
enterprise of judging. Whatever abstraction burdens this case is
a consequence of the majority’s own making. It has proceeded
without the factual record that exhaustion exists to produce,
condemned relief as unavailable before the record could show
otherwise, and substituted its own anticipatory conclusions for
the evidence it declined to await.
At bottom, this case is far simpler than the majority tries to
make it appear. The plaintiffs ask us to excuse exhaustion not
because no remedies were available, but because none could
deliver their preferred remedy—namely, insulation from being
transferred to male facilities. But the PLRA demands
exhaustion whenever grievance mechanisms “are ‘capable of
use’ to obtain ‘some relief for the action complained of.’” Ross,
578 U.S. at 642 (emphasis added) (quoting Booth, 532 U.S. at
738). For the action complained of, not from the action
complained of, as the majority implicitly contends. Courts may
not excuse exhaustion simply because the available remedies do
not include a plaintiff’s preferred choice. See Porter, 534 U.S.

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9
at 524 (“All ‘available’ remedies must . . . be exhausted; those
remedies need not meet federal standards, nor must they be
‘plain, speedy, and effective.’ Even when the prisoner seeks
relief not available in grievance proceedings . . . exhaustion is
a prerequisite to suit.” (quoting Booth, 532 U.S. at 739));
Kaemmerling, 553 F.3d at 675 (“Even if an inmate believes that
seeking administrative relief from the prison would be futile
and even if the grievance system cannot offer the particular
form of relief sought, the prisoner nevertheless must exhaust
the available administrative process.”). A prisoner “may not
circumvent the requirement of exhaustion by picking out a
remedy that the prison happens not to offer and contending that
its absence entitles him to bypass the administrative grievance
procedure.” Fletcher v. Menard Corr. Ctr., 623 F.3d 1171,
1174 (7th Cir. 2010). Yet that is precisely what the majority’s
opinion endorses.
B
The majority’s sole refuge from the inescapable conclusion
that the plaintiffs failed to exhaust available remedies is the
assertion that the government did not satisfy its burden of
showing those remedies were available. See Maj. Op. at 21-22,
24. To sustain that proposition, the majority once again
stretches Kaemmerling past its breaking point. They aggrandize
a fleeting statement—that the government there “failed to carry
its burden of showing an administrative remedy available . . . to
exhaust,” Kaemmerling, 553 F.3d at 675—into a holding that
under the PLRA “the defendant bears the burden of showing
that an administrative remedy was available for the plaintiff to
exhaust.” Maj. Op. at 7.
But that maneuver can succeed only by unmooring the
statement from its context. The government’s briefing in
Kaemmerling was silent about whether administrative remedies

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10
could offer even the possibility of some relief. See Brief for
Appellees at 10-12, Kaemmerling v. Lappin, 553 F.3d 669
(D.C. Cir. 2008) (No. 07-5065). Indeed, as the court observed
immediately before the statement the majority now seizes upon,
“counsel for the BOP could not articulate a single possible way
the prison’s administrative system could provide relief or take
any action at all in response to Kaemmerling’s claim that
collecting his DNA would violate his statutory and
constitutional rights.” Kaemmerling, 553 F.3d at 675.
Against this backdrop, Kaemmerling’s reference to the
government’s “burden” was not a pronouncement on burden
allocation at all. It was instead a recognition that the
choreography of burdens was immaterial because the
government had conceded the ultimate question—that
administrative remedies were unavailable. See Barth v. Gelb, 2
F.3d 1180, 1186 (D.C. Cir. 1993) (recognizing that “the
ultimate purpose” of burden allocation “is typically achieved
from the outset” when a party concedes the dispositive issue);
Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.
2007) (en banc) (observing that “[a] burden-shifting protocol
is . . . unnecessary” when “[t]he fact to be uncovered by such
a protocol . . . is not in dispute”); Preston v. Texas Dep’t of
Fam. & Protective Servs., 222 F. App’x 353, 359 (5th Cir.
2007) (explaining that the court “need not make [a]
determination” regarding the first two prongs of a burden-
shifting inquiry because the plaintiff “failed to create a fact
issue at the third step of the burden shifting analysis”).
When the parties contest whether administrative remedies
were available, Kaemmerling offers no guidance. Other circuits,
however, have charted a clear course. The majority to consider
the issue have uniformly adopted a three-step framework. The
government bears only a modest initial burden to establish a
generally available grievance procedure, after which the burden

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11
shifts to the plaintiff to undertake the more demanding task of
demonstrating that the procedure was, in reality, unavailable.3
Only then does the burden return to the government, which may
attempt to rebut the plaintiff’s showing of unavailability.
Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021).
While the convergence of other circuits is not itself
determinative, see infra at 14-15, the alignment here is the
natural product of the PLRA’s design. The statute itself is
“silent on the allocation of the burden of persuasion,” and so
one must “begin with the ordinary default rule that plaintiffs
bear the risk of failing to prove their claims.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009) (quoting Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 56 (2005)). Exhaustion is, of
course, styled an “affirmative defense,” Jones v. Bock, 549 U.S.
199, 216 (2007), and the burden of proof often rests with the
defendant who asserts such a defense, see, e.g., Corning Glass
Works v. Brennan, 417 U.S. 188, 196-97 (1974). But that
convention derives from “the general rule of statutory
construction that the burden of proving justification or
See Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) 3
(“Once the defendant shows that such a remedy was generally
available, the burden shifts to the inmate to show that something in
his particular case made the generally available administrative
remedies effectively unavailable to him. Because the failure to
exhaust is an affirmative defense that defendants must plead and
prove, the ultimate burden of proving that the inmate has not
exhausted his claims remains with the defendants.”); Rinaldi v.
United States, 904 F.3d 257, 268 (3d Cir. 2018) (“[O]nce the
defendant has established that the inmate failed to resort to
administrative remedies, the onus falls on the inmate to show that
such remedies were unavailable to him.”); Tuckel v. Grover, 660 F.3d
1249, 1254 (10th Cir. 2011); Geter v. Baldwin State Prison, 974 F.3d
1348, 1356 n.14 (11th Cir. 2020); Hubbs v. Suffolk Cnty. Sheriff’s
Dep’t, 788 F.3d 54, 59 (2d Cir. 2015).

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12
exemption under a special exception to the prohibitions of a
statute generally rests on one who claims its benefits.” FTC v.
Morton Salt Co., 334 U.S. 37, 44-45 (1948). Typically, it is the
defendant who claims the benefit of an exception when raising
an affirmative defense. Exhaustion under the PLRA, however,
reverses that posture. Though styled as an affirmative defense,
exhaustion is not an exception to the statutory scheme but its
default rule. See Porter, 534 U.S. at 525 n.4. Once exhaustion
is raised, it is the plaintiff—not the defendant—who seeks
departure from the ordinary rule. And “absent some reason to
believe that Congress intended otherwise, . . . we should
conclude that the burden of persuasion lies where it usually
falls, upon the party seeking relief.” Meacham v. Knolls Atomic
Power Laboratory, 554 U.S. 84, 92 (2008) (quoting Schaffer,
546 U.S. at 57-58).
The prevailing burden-shifting framework for determining
the availability of remedies under the PLRA faithfully reflects
this principle. After the defendant identifies a nominally4
The Sixth and Seventh Circuits have declined to adopt the 4
prevailing burden-shifting framework, holding instead that the
government bears the burden of demonstrating the availability of
administrative remedies. See Lamb v. Kendrick, 52 F.4th 286, 295
(6th Cir. 2022); Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022).
But those decisions arose in a materially distinct context: disputes
over whether prison officials obstructed prisoners’ access to the
grievance process itself, not whether an otherwise accessible process
was capable of affording relief. See Lamb, 52 F.4th at 295; Gooch, 24
F.4th at 627-28; Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018);
Hill v. Snyder, 817 F.3d 1037, 1040-41 (7th Cir. 2016). In cases
involving impeded access, allocating the burden in this manner may
be sensible, given the practical difficulty prisoners face in proving
facts uniquely within the knowledge and control of prison officials.
See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 60 (2005) (“[T]he
ordinary rule, based on considerations of fairness, does not place the
burden upon a litigant of establishing facts peculiarly within the

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13
available administrative process—a showing that may be made
simply by “pointing to legally sufficient sources such as
statutes, regulations, or grievance procedures,” Hubbs, 788 F.3d
at 59 (cleaned up)—the substantial burden lies with the plaintiff
to establish why that procedure was, in reality, unavailable.
The majority’s contrary approach thus inverts the PLRA’s
design. It relieves plaintiffs of their obligation to demonstrate
unavailability and imposes on the government a burden the
statute nowhere assigns. Neither Kaemmerling nor any other
authority supports that result. Under the consensus burden-
shifting framework, the government undisputedly carried its
threshold obligation by identifying a nominally available
grievance procedure. The burden thus rested with the plaintiffs
to demonstrate that administrative remedies were unavailable
to them in fact. They did not satisfy that burden and that failure
should have resulted in the dismissal of their complaints.
II
The preliminary injunctions should be vacated for an
additional reason antecedent to the merits: following its
issuance of the initial round of injunctions, the district court
lacked authority to issue further preliminary relief.
knowledge of his adversary.” (quoting United States v. New York,
New Haven & Hartford R.R. Co., 355 U.S. 253, 256 n.5 (1957))).
Whatever force that allocation may have in such circumstances,
however, does not extend to a case like this one. Here, the question
is not whether grievance procedures were accessible, but whether
they could provide meaningful relief in light of the plaintiffs’
particular characteristics and situation—considerations that do not
implicate the same evidentiary imbalance and therefore do not justify
the same departure from the consensus approach.

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14
Congress spoke plainly in the PLRA. Preliminary injunctive
relief “shall automatically expire” ninety days after entry
unless—before that deadline—the court both makes the
findings required for prospective relief under § 3626(a)(1) and
“makes the order final.” 18 U.S.C. § 3626(a)(2). The district
court entered its original preliminary injunction orders on
February 18, February 24, March 3, March 10, and March 19,
2025. It did not, however, convert any of those orders into final
prospective relief. As a result, each expired by operation of law
ninety days after entry.
At that juncture, the statute afforded the district court a
single lawful avenue to continue injunctive relief. The court
could proceed to a trial on the merits and, if appropriate, enter
final, prospective relief. The district court did not do so.
Instead, it has repeatedly reissued successive preliminary
injunctions, attempting to reset the ninety-day clock each time.
Having failed to issue final relief, the district court was without
power to continue preliminarily enjoining defendants. The latest
orders are therefore invalid and we lack appellate jurisdiction
over these interlocutory appeals.
I acknowledge that this practice of issuing rolling
injunctions has become familiar in PLRA litigation, and that
every circuit to confront the issue—save one, see Georgia
Advocacy Office v. Jackson, 4 F.4th 1200, 1207-15 (11th Cir.
2021), vacated as moot, 33 F.4th 1325 (11th Cir. 2022) (per
curiam)—has acquiesced in that understanding. But “we have
no warrant to ignore clear statutory language on the ground that
other courts have done so.” Milner v. Department of Navy, 562
U.S. 562, 576 (2011).
A broad consensus may, of course, reflect sound reasoning
and thus merit respectful consideration. But here the consensus
rests on little more than inertia. Uncritical adherence to the

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15
decisions of other circuits risks ossifying error, undermining the
process of percolation through which divergent views sharpen
the law. See Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S.
485, 488 (1900). Should uniformity ultimately prove
indispensable, the task of reconciling any ensuing conflict
properly belongs to our superiors. See Cruz v. Am. Airlines,
Inc., 193 F.3d 526, 530 (D.C. Cir. 1999).
This is precisely such an instance in which consensus
should not command assent. Only the Ninth Circuit has
attempted anything resembling a textual analysis, and its effort
falls well short. See Mayweathers v. Newland, 258 F.3d 930,
936 (9th Cir. 2001). That opinion summarily declared that
“[n]othing in the statute limits the number of times a court may
enter preliminary relief,” and suggested that “[i]f anything, the
[expiration] provision simply imposes a burden on plaintiffs to
continue to prove that preliminary relief is warranted.” Id.
Other circuits have dispensed with even that minimal effort,
asserting the conclusion without any independent analysis. See,
e.g., Smith v. Edwards, 88 F.4th 1119, 1125-26 (5th Cir. 2023)
(asserting, without explanation, that a preliminary injunction
under the PLRA “may be extended by the district court if it
makes the requisite findings”); Alloway v. Hodge, 72 F. App’x
812, 817 (10th Cir. 2003) (adopting Mayweathers’s conclusion
with no independent reasoning); Monroe v. Bowman, 122 F.4th
688, 697 (7th Cir. 2024) (same).
If Congress intended merely to impose on plaintiffs a
continuing burden to demonstrate that preliminary relief
remains warranted, § 3626(a)(2) would be an oddly circuitous
way of doing so. Congress could instead have permitted
preliminary relief to persist unless the district court failed to
renew findings at ninety-day intervals, rather than compelling
automatic dissolution of relief followed by reissuance upon the
same showing. Congress’s handiwork elsewhere in the same

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16
section exposes the implausibility of a reading that would
require such a convoluted approach to maintaining preliminary
relief for some indefinite period. In a neighboring provision,
Congress authorized termination of final “prospective relief”
after specified time periods unless the court makes written
findings that the relief remains necessary. See 18 U.S.C.
§ 3626(b). That provision imposes precisely the continuing
burden the Ninth Circuit attributes to § 3626(a)(2), but without
the peculiar requirement that relief expire regardless of its
continued justification. It strains credulity to conclude Congress
adopted a more tortuous framework for preliminary injunctions
without any discernible justification. See Azar v. Allina Health
Servs., 587 U.S. 566, 577 (2019) (explaining that courts should
not rely on “the doubtful proposition that Congress sought to
accomplish in a ‘surpassingly strange manner’ what it could
have accomplished in a much more straightforward way”
(quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639, 647 (2012))).
Properly construed, § 3626(a)(2) operates exactly as the
Eleventh Circuit has explained: it recasts preliminary
injunctions in prison-conditions litigation into a form of short-
lived relief that is far closer in function to a temporary
restraining order. Georgia Advocacy Office, 4 F.4th at 1209-10.
Ordinarily, a preliminary injunction remains “effective until a
decision has been reached at a trial on the merits.” Wright &
Miller, 11A Fed. Prac. & Proc. Civ. § 2941 (3d ed. 2025)
(Wright & Miller). A TRO, by contrast, is sharply
constrained—fourteen days, with at most a single fourteen-day
extension—designed to preserve the status quo only long
enough for a court to conduct a prompt hearing on whether
more enduring relief is warranted. See Fed. R. Civ. P. 65(b)(2);
11A Wright & Miller § 2951. Often, it does not endure even
that long. This brevity of TROs is intentional, reflecting the
deliberate “design[] to restrict the possible adverse effect of an

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17
order that is granted without a hearing and to ensure a prompt
hearing on the application for a preliminary injunction.” 11A
Wright & Miller § 2953. The caselaw reveals no effort to evade
those time limits through serial reissuance, and the PLRA’s
ninety-day ceiling on preliminary injunctions reflects the same
settled understanding. By imposing a firm temporal boundary
on preliminary relief, Congress curtailed the harms of
potentially unjustified or overbroad injunctions and expedited
final judgments in prison cases.
This constraint of the remedial power of the federal district
courts accords precisely with a statutory scheme crafted to
curtail the intrusive, open-ended judicial supervision that had
come to characterize prison-conditions litigation. See Woodford
v. Ngo, 548 U.S. 81, 93 (2006). As Judge Calabresi aptly5
observed, “Congress meant to get the federal courts out of the
business of running jails.” Benjamin v. Jacobson, 172 F.3d 144,
182 (2d Cir. 1999) (en banc) (Calabresi, J., concurring).
Permitting district courts to perpetually reissue preliminary
injunctions is wholly “inconsistent” and “out of step” with that
design. Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S.
221, 227-28 (2012). The consolidated cases before us illustrate
the point starkly. They have languished. The district court has
taken no meaningful steps toward final resolution, despite
having jurisdiction to do so during the pendency of this appeal.
See 11A Wright & Miller § 2962 (“An appeal from the grant or
denial of a preliminary injunction does not divest the trial court
“As a result of prisoner litigation, by 1995” when the PLRA 5
was enacted, “thirty-nine states were under [federal] court order or
consent decree to improve prison conditions and control population
in their entire state system or at least in their major facilities.”
Thomas Julian Butler, Commentary, The Prison Litigation Reform
Act: A Separation of Powers Dilemma, 50 ALA. L. REV. 585, 589
(1999).

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18
of jurisdiction or prevent it from taking other steps in the
litigation while the appeal is pending.”).
To accept the notion that district courts may perpetually
reissue preliminary injunctions is therefore to disregard the very
reform on which “Congress trained its attention.” Yates v.
United States, 574 U.S. 528, 532 (2015). It would require one
to assume that Congress enacted a strict temporal limitation as
part of a broader scheme to curb courts’ intrusive oversight of
prisons, only to invite routine circumvention through a sub
silentio loophole, invoked by nothing more than a perfunctory
order every ninety days. That reading cannot be reconciled with
settled principles of statutory construction. See Rake v. Wade,
508 U.S. 464, 471 (1993) (“To avoid denying effect to a part of
a statute, we accord significance and effect to every word.”
(cleaned up)). Congress specified one—and only one—path by
which a preliminary injunction may persist: conversion to final
prospective relief supported by the requisite findings. See Banks
v. Booth, 3 F.4th 445, 449 (D.C. Cir. 2021).
This conclusion is confirmed by other features of the
statute. Section 3626(a)(2) opens by providing that “[i]n any
civil action with respect to prison conditions, to the extent
otherwise authorized by law, the court may enter a temporary
restraining order or an order for preliminary injunctive relief.”
The singular phrasing—“an order for preliminary injunctive
relief”—conveys authorization to issue one such order, not a
renewable succession of them. See Niz-Chavez v. Garland, 593
U.S. 155, 161 (2021). A contrary reading strips this sentence of
any operative force, reducing it to a superfluous restatement of
existing equitable authority. SW General, Inc. v. NLRB, 796
F.3d 67, 76 (D.C. Cir. 2015) (“It is a cardinal principle of
statutory construction that a statute ought, upon the whole, to
be so construed that, if it can be prevented, no clause, sentence,

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19
or word shall be superfluous, void, or insignificant.” (quoting
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))).
True, “[t]he canon against surplusage is not an absolute
rule.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013).
But it carries particular force here, where Congress departed
from an otherwise parallel structure. Section 3626(a)(1)(A),
governing prospective relief, begins immediately with
substantive limitations, requiring that such relief “extend no
further than necessary,” be “narrowly drawn,” and be “the least
intrusive means necessary to correct” the violation.
Section 3626(a)(2) ultimately adopts those same limitations for
preliminary relief, but only after it opens by authorizing the
entry of “an order for preliminary injunctive relief.” If that
initial authorization were merely ornamental, its inclusion in
§ 3626(a)(2)—and its omission from § 3626(a)(1)(A), where
Congress could equally have restated courts’ authority to grant
prospective relief—would be inexplicable. See Overdevest
Nurseries, L.P. v. Walsh, 2 F.4th 977, 983 (D.C. Cir. 2021)
(“[W]hen Congress includes particular language in one section
of a statute but omits it in another—let alone in the very next
provision—[the reviewing court] presumes that Congress
intended a difference in meaning.”); Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. 338, 353 (2013) (“Just as Congress’ choice
of words is presumed to be deliberate, so too are its structural
choices.”).
The statutory text resolves the issue, and the inquiry can
end there. But looking beyond the text only reinforces the
conclusion. The legislative history confirms that Congress
understood—and accepted—the precise consequence of the
provision it enacted. See Green v. Bock Laundry Mach. Co.,
490 U.S. 504, 527 (1989) (Scalia, J., concurring) (observing
that it is “entirely appropriate to consult . . . the legislative
history” to determine whether a particular result was

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unconsidered by the legislature). When the PLRA, then
contained in H.R. 2076, first passed both Houses of Congress,
it contained the very same automatic-expiration provision at
issue here. See H.R. 2076, 104th Cong. § 801(a) (1995). During
floor debate, Representative Conyers, then the ranking member
of the House Judiciary Committee, expressly acknowledged the
effect of that design:
[T]he provisions would render emergency relief
ineffective. Preliminary injunctions would mandatorily
terminate 90 days after entry unless the court made the
injunction final within the 90-day period. It is virtually
impossible for the parties to complete discovery and for
the court to complete a trial and issue a decision within
90 days. . . . Termination of a preliminary injunction,
without attention to whether there is good cause for the
injunction to remain in effect, and without allowing
adequate time for the parties to conduct discovery and
the court to hold a trial would deprive a court of the
power to prevent a defendant from returning to life
threatening practices. Federal courts would be prevented
from issuing any relief in prison or jail conditions cases
without a finding of a violation of law, effectively
prohibiting court-enforceable settlement agreements.
141 Cong. Rec. H14106 (1995). The debate reflects no
disagreement that the provision would operate in exactly this
manner. Although President Clinton ultimately vetoed that
version of the PLRA for reasons unrelated to its prison-
litigation provisions, see 141 Cong. Rec. H15166-67 (1995),
Congress returned to the matter only months later. In enacting
the PLRA in its final form, Congress retained the preliminary-
injunction provision verbatim, notwithstanding the concerns
Representative Conyers had articulated, and without any further
discussion suggesting a retreat from its acknowledged effect.
See Act of April 26, 1996, Pub. L. No. 104-134, 110 Stat. 1321;
see also Hikvision USA, Inc. v. FCC, 97 F.4th 938, 946 (D.C.

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Cir. 2024) (noting that legislative history demonstrating
legislative awareness of a given interpretation supports an
inference of affirmative ratification upon enactment).
When the text, structure, and contemporaneous legislative
understanding align so completely, § 3626 admits of only one
meaning.
One final point bears emphasis. The majority suggests that
this issue—whether the district court lacked authority to renew
the preliminary injunctions—has been forfeited because the
government did not raise it. That is mistaken. The restriction on
successive preliminary injunctions reflects congressional
concerns regarding judicial efficiency and the appropriate limits
of judicial authority in litigation concerning conditions in both
state and federal prisons—matters that “implicat[e] values
beyond the concerns of the parties.” Day v. McDonough, 547
U.S. 198, 205 (2006) (alteration in original) (quoting Acosta v.
Artuz, 221 F.3d 117, 123 (2d Cir. 2000)); see also Chicago &
N.W. Transp. Co. v. Ry. Labor Executives’ Ass’n, 908 F.2d 144,
149 (7th Cir. 1990) (Posner, J.) (“An injunction imposes
burdens on the court that issues it and potentially affects the
rights of third parties; on both grounds the court has a duty
independent of the desires of the parties to assure that the
injunction is proper.”). Thus, “[i]t is of no moment that the
government has not made this argument.” United States v.
Rashad, 396 F.3d 398, 404 (D.C. Cir. 2005) (Randolph, J.,
dissenting). The restriction “is meant to conserve judicial
resources, not to confer some right on the government that it
may waive by not arguing the point.” Id.

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