Timothy Ozinga v. Thomas E. Price , 855 F.3d 730 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-3648
TIMOTHY OZINGA, et al.,
Plaintiffs-Appellants,
v.
THOMAS E. PRICE, Secretary of Health
and Human Services, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-03292 — Thomas M. Durkin, Judge.
ARGUED NOVEMBER 1, 2016 — DECIDED APRIL 28, 2017
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Ozinga Brothers, Inc. (“Ozinga
Brothers”) is a family-owned firm supplying ready-mix
concrete products and services to builders primarily in the
Chicago metropolitan area. The company, along with its
owners and senior managers (collectively, “Ozinga”) filed this
2 No. 15-3648
suit in 2013, challenging the so-called contraception mandate
emanating from the Patient Protection and Affordable Care Act
of 2010 (the “Affordable Care Act”), 124 Stat. 119 (Mar. 23,
2010). The mandate is embodied in federal regulations imple-
menting a requirement of the Affordable Care Act that non-
exempt and non-grandfathered group health plans provide
specified preventative-health services to plan participants
without cost-sharing; among those services are contraceptives
approved by the Food and Drug Administration. See 42 U.S.C.
§ 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R.
§ 2590.715-2713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv);
http://hrsa.gov/womensguidelines2016/index.html (women’s
preventative service guidelines) (visited April 26, 2017).
Employers who refuse to provide such services are subject to
substantial fines. See 26 U.S.C. § 4980H. Ozinga regards certain
of the contraceptives covered by the mandate as potential
abortifacients, the use of which is proscribed by the firm
owners’ and managers’ religious tenets. Invoking the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq.,
among other statutory and constitutional provisions, Ozinga
sought declaratory and injunctive relief barring the enforce-
ment of the mandate.
By the time Ozinga filed suit in 2013, the government had
established an accommodation for certain religious employers
that provided for alternate means of ensuring employee access
to the contraceptive services specified by the mandate without
payment or direct involvement by an objecting employer.
76 Fed. Reg. 46,621, at 46,623 (Aug. 3, 2011); 77 Fed. Reg. 8725
(Feb. 15, 2012); see also 78 Fed. Reg. 39,870, at 39,873–882 (July 2,
2013) (simplifying and clarifying criteria identifying employers
No. 15-3648 3
eligible for exemption); 45 C.F.R. §147.131(a) & b(2)(i). How-
ever, the accommodation was not then available to any for-
profit employers like Ozinga Brothers. Ozinga’s complaint
highlighted the discrepancy. See R. 1 ¶¶ 105–08, 112–16,
170–76, 206, 227–28, 245. At the same time, the complaint made
no allegation suggesting that an extension of the accommoda-
tion to for-profit firms would be insufficient to resolve
Ozinga’s religious objections to the mandate.
Ozinga’s suit was part of an initial wave of lawsuits
challenging the application of the contraception mandate to
for-profit firms. In the first such cases to reach this court, we
held that the objecting closely-held firms were entitled to
preliminary injunctions barring enforcement of the mandate.
We concluded that the firms were likely to prevail on their
claims under the RFRA that the mandate substantially bur-
dened the religious rights of both the firms and their owners,
see § 2000bb-1(a), and that the government was unlikely to
show that it had employed the least restrictive means of
furthering its asserted interest in increasing access to contra-
ceptives, see § 2000bb-1(b). Korte v. Sebelius, 528 F. App’x 583
(7th Cir. 2012) (non-precedential decision) (“Korte I”) (granting
interim relief pending appeal); Grote v. Sebelius, 708 F.3d 850
(7th Cir. 2013) (same); Korte v. Sebelius, 735 F.3d 654 (7th Cir.
2013) (“Korte II”) (holding plaintiff companies were entitled to
preliminary injunctive relief).
Without opposition from the government, and in light of
our decisions in Korte I and Grote, the district court granted
Ozinga’s motion for a preliminary injunction barring enforce-
ment of the mandate against Ozinga Brothers; it also stayed
4 No. 15-3648
further proceedings pending our resolution of the merits of the
Korte and Grote appeals.
This first wave of litigation culminated in the Supreme
Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (2014). Hobby Lobby concluded that the contraception
mandate, as applied to closely-held private firms whose
owners objected on religious grounds to one or more types of
contraceptives covered by the mandate, substantially burdened
the exercise of religion by those owners—and by extension,
their companies—in view of the fines to which the firms were
subject if they did not comply with the mandate. Id. at 2768–79.
The Court reasoned that the mandate was not the least
restrictive means of furthering the government’s interest in
making contraceptives widely available, given that the
government could (among other alternatives), extend the
existing accommodation for religiously-affiliated, not-for-profit
employers to closely-held for-profit employers. Id. at 2782–83.
The Court left open the question whether that accommodation
in its particulars “complies with RFRA for purposes of all
religious claims.” Id. at 2782; see also id. at 2763 n.9.
In the wake of the Hobby Lobby decision, the government in
July 2015 extended the accommodation to closely held for-
profit employers who object to the mandate on religious
grounds. 80 Fed. Reg. 41,318, at 41,322–328 (July 14, 2015); see
45 C.F.R. § 147.131(b)(2)(ii).
In the meantime, a second wave of litigation challenging
the contraception mandate had commenced in federal courts
around the country. This round of litigation was instigated by
various not-for-profit, religiously-affiliated employers to
No. 15-3648 5
whom the accommodation had been available from the start.
These employers contested the adequacy of the accommoda-
tion, which imposes certain procedural requirements on an
objecting employer, to protect their religious interests. This
court rejected the challenges brought by these not-for-profit
employers in multiple decisions. See Univ. of Notre Dame v.
Burwell, 786 F.3d 606 (7th Cir. 2015), cert. granted, j. vacated, &
remanded, 136 S. Ct. 2007 (2016); Wheaton Coll. v. Burwell,
791 F.3d 792 (7th Cir. 2015); Grace Schools v. Burwell, 801 F.3d
788 (7th Cir. 2015), cert. granted, j. vacated, & remanded, 136 S. Ct.
2010, 2011 (2016). Ultimately, when the Supreme Court took up
this line of challenges in Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(per curiam), the Court declined to reach the merits of the
issues presented. Instead, the Court remanded these cases to
the lower courts in order to afford the parties an opportunity
to see if the accommodation could be modified in such a way
as to address the religious concerns of the objecting employers
while continuing to meet the government’s interest in making
contraceptive services available to employees. The government
solicited public comments on possible modifications, 81 Fed.
Reg. 47,741 (July 22, 2016); the period for such comments has
closed, and potential revisions to the accommodation are
under advisement.1
1
Earlier this year, in the waning days of President Obama’s administra-
tion, the government indicated that no further revisions to the regulatory
accommodation would be made at that time. See FAQs About Affordable Care
Act Implementation Part 36, at 4, 5 (January 9, 2017), https://www.cms.gov/
CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/ACA-FAQs-Par36_
1-9-17-Final.pdf (visited April 26, 2017). However, when President Trump
(continued...)
6 No. 15-3648
This second wave of litigation challenging the sufficiency
of the accommodation was in full swing in September 2015
when the parties in this case came before the district court with
competing proposals as to what form of permanent injunctive
relief they viewed as appropriate in view of the Supreme
Court’s decision in Hobby Lobby. Notwithstanding the fact that
the regulatory accommodation had by this time been expanded
to include closely held for-profit employers, Ozinga believed
1
(...continued)
assumed office, he immediately issued an executive order directing the
Secretary of Health and Human Services and the heads of all other
executive departments and agencies with authorities and responsibilities
under the Patient Protection and Affordable Care Act to “exercise all
authority and discretion available to them to waive, defer, grant exemptions
from, or delay the implementation of any provision or requirement of the
Act that would impose … a cost, fee, tax, penalty, or regulatory burden on
… health insurers, … [or] purchasers of health insurance … .” Exec. Order
No. 13,765 of Jan. 20, 2017, Minimizing the Economic Burden of the Patient
Protection and Affordable Care Act Pending Repeal § 2, 82 Fed. Reg. 8351 (publ.
Jan. 24, 2017). Post-Zubik status updates submitted to this court in cases
challenging the sufficiency of the accommodation indicate that the parties
have not yet ruled out the possibility of a mutually-agreeable settlement of
those disputes. See, e.g., Grace Schools, et al. v. Price, et al., Nos. 14-1430 &
14-1431, Doc. 132 at 2 (Status Report of Plaintiffs-Appellees) (“On February
13, 2017, counsel for Plaintiffs-Appellees submitted a letter to the Attorney
General to reinitiate discussions concerning a resolution of these cases, as
was contemplated by the Supreme Court’s order in Zubik. Plaintiffs-
Appellees are awaiting the Government’s response.”); Doc. 131 (Status
Report of Appellants) (“The Departments respectfully request that they be
permitted to file another status report in 60 days on May 15, 2017, to allow
incoming leadership personnel adequate time to consider the issues.”). We
take it then, that further revision of the accommodation remains a
possibility.
No. 15-3648 7
it was entitled to a broad injunction precluding enforcement of
any regulation promulgated in furtherance of the mandate,
including the newly-revised accommodation. The government,
by contrast, asked the court to enter an injunction limited to the
original version of the contraception mandate, which of course
had made no accommodation available to for-profit employers.
The court decided to adopt the government’s proposal (R. 53)
and entered a permanent injunction limited to the mandate as
it existed prior to the Supreme Court’s decision in Hobby Lobby
(R. 54). But the injunction provided that “nothing herein
prevents plaintiffs from filing a new civil action to challenge
the accommodations or any other post-Hobby Lobby changes in
statute or regulation.” R. 54 at 2–3.
Ozinga contends on appeal that the district court abused its
discretion and otherwise erred in entering the more limited
injunction proposed by the government rather than the
injunction that Ozinga itself proposed. Ozinga reasons that the
injunction as entered provides no lasting relief to the plaintiffs
because it is limited to a state of affairs pre-dating Hobby
Lobby—one that no longer exists. Ozinga makes other objec-
tions to the injunction, but we need not reach the merits of
these challenges. We agree with Ozinga that it was error for the
court to enter an injunction directed to a version of the regula-
tory framework that has been superseded—although not on
the grounds that Ozinga has advanced. In fact, for the reasons
that follow, we conclude that it was error for the court to enter
any injunctive relief at all once the regulatory accommodation
was revised to include for-profit employers like Ozinga
Brothers. At that point, the case was moot.
8 No. 15-3648
Ozinga’s suit was focused exclusively on the mandate as it
was originally adopted, with no accommodation addressed to
closely held for-profit employers like Ozinga Brothers that
object to the mandate on religious grounds. Ozinga’s com-
plaint was that the accommodation was limited to not-for-
profit employers and that for-profit employers, like Ozinga
Brothers, were categorically excluded from the accommoda-
tion. Nothing in the complaint presented any question as to the
adequacy of the accommodation itself, nor at any time during
the pendency of the suit did the plaintiffs seek to amend their
complaint to challenge the particulars of the accommodation
(beyond who could invoke it), notwithstanding the second
wave of litigation by other employers presenting such chal-
lenges. See R. 53 at 3 (district court’s order adopting govern-
ment’s proposed injunction) (“Whether the post-Hobby Lobby
regulations are valid is beyond the scope of Plaintiffs’ current
complaint, and they have not sought to amend it.”).
Our jurisdiction as a federal court is limited by Article III to
live cases and controversies, U.S. CONST. art. III, § 2, and “an
actual controversy must exist not only at the time the com-
plaint is filed, but through all stages of the litigation.” Kingdom-
ware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1975
(2016) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S. Ct.
721, 726 (2013)); see also Campbell-Ewald Co. v. Gomez, 136 S. Ct.
663, 669 (2016). When a plaintiff’s complaint is focused on a
particular statute, regulation, or rule and seeks only prospec-
tive relief, the case becomes moot when the government
repeals, revises, or replaces the challenged law and thereby
removes the complained-of defect. See, e.g., Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 474, 478, 110 S. Ct. 1249, 1252, 1254 (1990)
No. 15-3648 9
(amendments to statute); Princeton Univ. v. Schmid, 455 U.S.
100, 103, 102 S. Ct. 867, 869 (1982) (per curiam) (amendment of
regulations). At that point, there is no longer an ongoing
controversy: the source of the plaintiff’s prospective injury has
been removed, and there is no “effectual relief whatever” that
the court can order. Church of Scientology of Cal. v. United States,
506 U.S. 9, 12, 113 S. Ct. 447, 449 (1992) (quoting Mills v. Green,
159 U.S. 651, 653, 16 S. Ct. 132, 133 (1895)); see, e.g., Fed’n of
Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924,
930 (7th Cir. 2003) (repeal of challenged statute) (collecting
cases); City of Milwaukee v. Block, 823 F.2d 1158, 1163–64 (7th
Cir. 1987) (repeal of regulations that plaintiff alleged defen-
dants were ignoring). Only when there is a substantial likeli-
hood that the offending policy will be reinstated if the suit is
terminated will a court recognize that the controversy remains
live. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,
289 & n.11, 102 S. Ct. 1070, 1074–75 & n.11 (1982) (case not
moot despite repeal of challenged statute where city had
announced its intent to reenact the statute if district court’s
judgment were vacated). Otherwise, we presume that govern-
ment officials have acted in good faith in repealing the chal-
lenged law or policy. See, e.g., Fed’n of Adver. Indus. Representa-
tives, 326 F.3d at 929.
In this case, the revision of the regulatory framework in
July 2015 rendered moot Ozinga’s challenge to the contracep-
tion mandate. As we have said, that challenge was focused
solely on the exclusion of for-profit companies from the
regulatory accommodation for employers with religious
objections to the mandate. Ozinga had enjoyed the benefit of
preliminary injunctive relief during the litigation, so it had
10 No. 15-3648
suffered no injury as a result of the mandate; what it sought
was prospective relief. Once the government, in response to the
Hobby Lobby decision, re-wrote the regulations to permit closely
held for-profit firms to invoke the accommodation (and there
was no dispute that Ozinga Brothers had become eligible for
and entitled to invoke the revised accommodation), the
mandate no longer posed a prospective harm to the company,
and there was no longer any action for the court to take on
Ozinga’s behalf. Any injunction directed to the prior regula-
tions foreclosing the accommodation to Ozinga Brothers
(which is the very sort of injunction that the district court
entered here) necessarily would be meaningless, as those
regulations no longer exist. See N.E. Fla. Chapter of Assoc’d Gen.
Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670,
113 S. Ct. 2297, 2305 (1993) (O’Connor, J., dissenting) (collecting
cases). True, regulations are transitory, see Chicago Observer,
Inc. v. City of Chicago, 929 F.2d 325, 328 (7th Cir. 1991), and in
light of the second-wave challenges to the sufficiency of the
accommodation and Zubik’s directive to see if those challenges
can be accommodated, further revisions to the regulatory
framework may be in the offing. But we have no reason to
think that any such revisions might result in the renewed
exclusion of corporations like Ozinga Brothers from the
accommodation, given the Supreme Court’s holding in Hobby
Lobby that such corporations otherwise have a valid First
Amendment objection to the mandate. In short, “the issue of
the validity of the old regulation[s] is moot, [and] this case has
‘lost its character as a present, live controversy of the kind that
must exist if we are to avoid advisory opinions on abstract
questions of law.’” Princeton Univ., 455 U.S. at 103, 102 S. Ct. at
No. 15-3648 11
869 (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S. Ct. 200, 201–02
(1969) (per curiam)).
The parties’ shared belief that there remains a live contro-
versy2—because the plaintiffs have asked for a broad injunc-
tion permanently barring any enforcement of the mandate
against Ozinga Brothers—mistakenly presumes that Ozinga
has made a case that might plausibly support such relief. But
as we have said, Ozinga’s complaint focused on its exclusion
from the accommodation made available to not-for-profit
entities, and at no time in the litigation has Ozinga alleged that
the accommodation itself is inadequate to address its religious
concerns. Its briefing on the subject of mootness merely hints
at the possibility that the accommodation may be insufficient
(by referencing the Zubik line of challenges), without bothering
to explain why the accommodation as presently constructed
may pose a problem for Ozinga Brothers or its principals. If,
indeed, Ozinga continues to face the threat of injury notwith-
standing the fact that closely held for-profit firms may now
invoke the accommodation, it has made no such showing in
any form. See Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 108–09, 118 S. Ct. 1003, 1019–20 (1998). It could
have sought leave to amend its complaint to pursue such
allegations and did not; it is free to file a new suit if it believes
the existing accommodation is flawed in some way.
To be sure, the revised regulations do not alter Ozinga’s
status as a prevailing party in this case. The change occurred
2
Following oral argument, we asked the parties to submit supplemental
briefs as to whether this case became moot after the accommodation was
revised in July 2015.
12 No. 15-3648
after Ozinga sought and obtained preliminary injunctive relief
and after Hobby Lobby validated the legal theory that Ozinga
and other employers had pursued in this and similar suits. See
Cerajeski v. Zoeller, 794 F.3d 828, 830–31 (7th Cir. 2015). Conse-
quently, nothing prevents the district court from entering an
appropriate award of fees to Ozinga pursuant to 42 U.S.C.
§ 1988(b).
We therefore VACATE the judgment and REMAND with
directions to dismiss the case as moot. The district court retains
the authority to entertain Ozinga’s request for an award of
costs and attorney’s fees. The parties shall bear their own costs
of appeal.