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Ozinga v. Price

United States Court of Appeals, Seventh Circuit

April 28, 2017

Timothy Ozinga, et al., Plaintiffs-Appellants,
Thomas E. Price, Secretary of Health and Human Services, et al., Defendants-Appellees.

          Argued November 1, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:13-cv-03292 - Thomas M. Durkin, Judge.

          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 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 implementing 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); (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 enforcement 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 eligible for exemption); 45 C.RR. §147.131(a) & b(2)(i). However, 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 accommodation 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 burdened the religious rights of both the firms and their owners, see § 2000bb-l(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 contraceptives, see § 2000bb-l(b). Korte v. Sebelius, 528 R 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 enforcement of the mandate against Ozinga Brothers; it also stayed 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 whom the accommodation had been available from the start. These employers contested the adequacy of the accommodation, 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, ], vacated, & remanded, 136 S.Ct. 2010, 2011 (2016). Ultimately, when the Supreme Court tookup 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]

         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 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 objections 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 regulatory 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.

         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 complaint was that the accommodation was limited to not-for-profit employers and that for-profit employers, like Ozinga Brothers, were categorically excluded from the accommodation. 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 challenges. See R. 53 at 3 (district court's ...

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