Lawyers apologize for alleged judge-shopping in gender-affirming care case

A sign outside the Frank M. Johnson Jr. Federal Building and United States Courthouse in Montgomery, Alabama seen on January 24, 2023. (Brian Lyman/Alabama Reflector)

Two lawyers accused of judge-shopping in a gender-affirming care lawsuit Friday apologized for potentially offending U.S. District Judge Liles C. Burke  for withdrawing and refiling their original complaint.

Facing questions from Burke, Melody Eagan and Jeffrey Doss, attorneys for families challenging a ban on medical gender-affirming care for transgender youth, acknowledged that they had concerns about how Burke, nominated to the federal court by then-President Donald Trump in 2018, might rule in making their decision, but said it was the least significant factor in their decision to dismiss their first filing, known as Ladinsky.

The state of Alabama in 2022 made it a felony, punishable by up to 10 years in prison, for physicians to prescribe puberty blockers and hormones for gender-affirming care to youth under 19. Two lawsuits challenging the ban, titled Walker and Ladinsky, were filed shortly after. The cases were reassigned multiple times before being linked and assigned to Burke.

The attorneys then moved to dismiss the suits. The Walker lawsuit was dismissed and not refiled, while Ladinsky’s was refiled as Eknes-Tucker, also assigned to Burke.

Burke claims the original cases were dismissed to avoid being assigned to him. A three-judge panel reported in October that there was evidence of the plaintiffs’ counsel’s efforts to steer their cases to a more favorable judge, a move that has raised questions of misconduct.

The attorneys said Friday a significant factor in asking for the dismissal was a concern that the case was transferred to Burke outside of the procedures they were familiar with and said that was the reason for their alarm at the time.

Eagan said “it was that this case had been treated differently than every case” she had worked on before. Burke said it is normal procedure for judges to transfer cases when they have conflicting commitments, and that is not uncommon procedure.

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“What about a transfer makes you nervous?” Burke asked.

“Our sensitivities were heightened with the nature of this nature,” Eagan said.

Burke asked Doss the same questions.

“Do you feel entitled to an explanation?” Burke asked.

“Looking back, maybe I did overreact,” Doss responded.

Eagan and Doss said the second major concern in their decision to dismiss was about coordinating legal strategy with the Walker team and losing status as the lead case. Having the lead role would allow them “to better craft the legal argument,” Eagan said.

Both Eagan and Doss apologized to Burke under questioning. 

“I am truly sorry. I am very sorry. I’m sorry if I did anything to offend your honor or your dignity,” Eagan said.

“Today, I am sorry, and I apologize. I’m sorry I let you down,” Doss said.

Burke blocked the law in May 2022, citing parents’ rights and lack of evidence of harm from the drugs.

“On this particular case, I did not think you were a good draw. I was wrong,” Eagan said.

A three-judge panel of the U.S. 11th Circuit Court of Appeals last year overturned Burke’s ruling, stating there was no “fundamental right” to gender-affirming care. The plaintiffs and the U.S. Department of Justice are seeking a stay in the proceedings as the Supreme Court reviews a similar ban in Tennessee.

Burke also questioned Carl Charles, an attorney who made a call to U.S. District Judge Myron Thompson after the Walker case had been filed. At the time of the three-judge panel questioning, he did not remember making that call until a few minutes later when one of the judges asked if his phone number was the same as the one that called one of Myron’s law clerks. A few minutes later, Charles remembered that he made the call to alert the chamber that they had filed the Walker lawsuit, that it was related to another lawsuit Thompson was assigned, correcting his statement to the panel.

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“I respectfully and wholeheartedly disagree with the panel,” Charles said regarding the panel’s assertion that he was being untruthful, adding that “my memory failed.”

Charles said he was unprepared to be questioned and was not expecting to answer questions at the hearing since he wasn’t one of the lead lawyers on the case.

In his closing statement, Barry Ragsdale, an attorney for Charles, said he felt responsible for putting Charles in this position. 

“I’m pretty emotional right now,” he said, adding, “I do a very good job of hiding my feelings, but today is hard.”

He said he interpreted that he would be speaking at the panel’s hearing and didn’t think he needed to prepare Charles to be questioned.

“This call has taken a lot more significance than I had imagined,” Ragsdale said.

In a discussion about the ethics of using Rule 41, which allows the filing party the ability to dismiss without giving the court an explanation, Burke proposed several different scenarios to Eagan and asked her after each whether she thought they were ethical or permissable.

Scenarios ranged from a lawyer hypothetically dismissing the same case and refiling with a different plaintiff 20 times until reaching a favorable judge, to having a lawyer dismiss a case each time it was assigned to a Black, female judge over a white, male judge over a 30-year career.

Eagan said that each of those scenarios would be permissible under Rule 41, but that she would not pursue any of them because she found them “distasteful.”

“If you can dismiss for any purpose, I’m not sure there is an improper purpose,” she said.

Burke completed the hearings on Friday afternoon. He did not say when he might make a decision on the case, which could potentially include sanctions for the attorneys.

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