United States v. Sec'y

• Decision Date: 27 February 2015
• Docket Number: No. 14–10086.,14–10086.
• Citation: 778 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

778 F.3d 1223

UNITED STATES of America, Plaintiff–Appellee,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Defendant–Appellant.

No. 14–10086.

United States Court of Appeals, Eleventh Circuit.

Feb. 27, 2015.

Christopher Chen–Hsin Wang, Dennis John Dimsey, Deena S. Fox, Mark L. Gross, Michael J. Songer, U.S. Department of Justice, Washington, DC, Wifredo A. Ferrer, Veronica Harrell–James, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Jamie Melissa Braun, Dean Clinton Kowalchyk, Susan Adams Maher, Lisa Kuhlman Tietig, Jason Vail, Office of the Attorney General, Tallahassee, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12–cv–22958–PAS.

Before ED CARNES, Chief Judge, RESTANI,^* Judge, and MERRYDAY, ^** District Judge.

ED CARNES, Chief Judge:

There is a vast amount of federal law. So much that no one can hope to keep it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.¹ But the Constitution begat Congress, and Congress begat statutes—lots and lots of statutes. The current version of them fills 45,000 pages of the United States Code.² Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations—lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.³ As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.

Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”⁴ Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.

I.

In August of 2012 the United States filed a civil suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., alleging that the failure of the State of Florida to provide a kosher diet program to all of its prisoners with sincere religious grounds for keeping kosher was a substantial burden on those prisoners' religious exercise. The complaint requested both injunctive and declaratory relief under the statute. See42 U.S.C. § 2000cc–2(a).

After the district court denied Florida's motion to dismiss the complaint, the State issued a new policy in March 2013, formally titled “Procedure 503.006” and informally referred to as “the Religious Diet Program.” That program would provide prisoners with kosher meals using a combination of “prepackaged, certified kosher entrees” and kosher items from each prison's “normal food service operations.” In addition to outlining the contents of the meals, Procedure 503.006 contains a number of provisions that determine a prisoner's eligibility for the program. Three of those provisions are at issue in this appeal. First is the “sincerity test,” which Florida uses as a mechanism for initially determining whether a prisoner should be eligible to receive kosher meals. The second and third contested provisions are part of what the district court labeled the “Zero Tolerance Rule.” Those two provisions mandate the removal from the program of any prisoner who (1) purchases, possesses, or consumes an item that is not listed as “kosher” by Florida's supply contractors, or (2) barters using a kosher food item.

When the United States learned about Procedure 503.006 in April 2013, it filed a motion for a preliminary injunction. It requested that the injunction: (1) require Florida “to provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher,” and (2) prohibit Florida from implementing its “new Religious Diet Program to the extent it violates RLUIPA.” After holding an evidentiary hearing, the district court granted the motion. The preliminary injunction the court entered required Florida to “provide a certified kosher diet to all prisoners with a sincere religious basis for keeping kosher” ⁵ and prevented the State from enforcing the eligibility provisions of Procedure 503.006 mentioned above.

The court's order did not, however, mention the need-narrowness-intrusiveness criteria for preliminary injunctions established by the Prison Litigation Reform Act (PLRA). See18 U.S.C. § 3626(a)(2). Nor did the court “make [ ] the order final before the expiration of the 90–day period” beginning on the entry of the order. See id. Florida filed a notice of interlocutory appeal in January 2014. While this interlocutory appeal has been pending, the district court has held monthly status conferences between the parties. But the court has not made any need-narrowness-intrusiveness findings regarding the preliminary injunction, nor has it issued an order finalizing the preliminary injunction. See18 U.S.C. § 3626(a)(2).

II.

Although the parties did not raise any question about mootness, we have an obligation to notice and decide mootness issues. See Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir.1994) (“It is incumbent upon this court to consider issues of mootness sua sponte....”). Mootness is a question of law that we consider de novo. See United States v. Logal, 106 F.3d 1547, 1551 (11th Cir.1997). We must address it at the outsetbecause we have no jurisdiction to decide moot questions. See United States v. Shenberg, 90 F.3d 438, 440 (11th Cir.1996). The mootness question is: If a preliminary injunction expires automatically by operation of statute, and none of the parties notice, does it moot the interlocutory appeal challenging that injunction? We conclude that, like the proverbial tree, if an issue falls in the forest of federal law, courts must take notice of the sound even if the parties did not hear it.⁶

A.

A suit challenging prison conditions under RLUIPA is governed by the PLRA.⁷See Cutter v. Wilkinson, 544 U.S. 709, 723 n. 12, 125 S.Ct. 2113, 2123 n. 12, 161 L.Ed.2d 1020 (2005) (citing 42 U.S.C. § 2000cc–2(e) for the proposition that “nothing in RLUIPA shall be construed to amend or repeal the Prison Litigation Reform Act of 1995”) (quotation marks omitted). The PLRA provides that “[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry” unless the district court does two things. 18 U.S.C. § 3626(a)(2). The first thing the district court must do to keep a preliminary injunction alive past the 90-day deadline is “make[ ] the findings required under subsection (a)(1) for the entry of prospective relief.” Id. The second is to “make[ ] the order final before the expiration of the 90-day period.” Id.

As for the findings required under subsection (a)(1), the statute directs that the district court “shall not grant or approve any prospective relief 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) (emphasis added). In Cason v. Seckinger, we interpreted the term “written findings” in § 3626(b)(3), which governs the termination of prospective relief by motion of a party, in the context of a motion to terminate a consent decree. 231 F.3d 777, 785 (11th Cir.2000). We held that a district court may not allow consent decrees to remain in effect despite a motion to terminate, unless it makes:

particularized findings ... that each requirement imposed by the consent decrees satisfies the need-narrowness-intrusiveness criteria.... It is not enough to simply state in conclusory fashion that the requirements of the consent decrees satisfy those criteria. Particularized findings, analysis, and explanations should be made as to the application of each criteri[on] to each requirement imposed by the consent decrees.

Id.⁸ We see no reason why the term “finds” in § 3626(a)(1) does not require the same particularity as the term “findings” in § 3626(b)(3). See Cason, 231 F.3d at 785; see also Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972) ( “[I]ndividual sections of a single statute should be construed together....”). We thus read § 3626(a)(1) to require particularized findings that each requirement imposed by the preliminary injunction satisfies each of the need-narrowness-intrusiveness criteria.

In this case the district court did not make those particularized findings or finalize its order. The court entered its preliminary injunction order on December 6, 2013. The 90-day clock began ticking the next day. See18 U.S.C. § 3626(a)(2); Fed.R.Civ.P. 6(a)(1). Neither the December 6 order nor any of the court's later orders contained specific findings that any of the preliminary injunction's requirements satisfied the need-narrowness-intrusiveness criteria in § 3626(a)(2), much less an explanation of how they did. The court also did not issue an order finalizing its December 6 order. As a result, the preliminary injunction expired by operation of law on Thursday, March 6, 2014.⁹See18 U.S.C. § 3626(a)(2); Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir.2001) (“Because the district court in the present case did not make either of the preliminary injunctions at issue final within 90 days, both injunctions expired pursuant to [ § 3626(a)(2) ].”). The question thus becomes whether the expiration of the preliminary injunction renders this appeal moot.

B.

An...