November 1, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:13-cv-03292 -
Thomas M. Durkin, Judge.
Easterbrook, Rovner, and Sykes, Circuit Judges.
ROVNER, Circuit Judge.
Brothers, Inc., 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 embodied in federal regulations implementing a
provision of the Patient Protection and Affordable Care Act
of 2010 that requires non-exempt and non-grandfathered group
health plans to provide specified preventative-health
services to plan participants without cost-sharing.
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. §
preventative service guidelines). Employers who refuse to
provide those 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.
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.F.R. §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. R. 111105-08, 112-16,
170-76, 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 their
religious objections to the mandate.
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 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 11") (holding plaintiff
companies were entitled to preliminary injunctive relief).
opposition from the government, and in light of our decisions
in Korte I and Grote, the district court
granted the Ozingas' motion for a preliminary injunction
against enforcement of the mandate against Ozinga Brothers;
it also stayed further proceedings pending our resolution of
the merits of the Korte and Grote appeals.
first wave of litigation culminated in the Supreme
Court's decision in Burwell v. Hobby Lobby Stores,
Inc., 134 S.Ct. 2751 (2014). The Court concluded that
the contraception mandate, as applied to closely-held private
firms whose owners objected on religious grounds to one or
more forms 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 they 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.
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).
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 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, ], 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
second wave of litigation challenging the sufficiency of the
accommodation was in full swing in September 2015 when the
district court in this case considered what form of permanent
injunctive relief to order in view of the Supreme Court's
decision in Hobby Lobby. The parties presented the
court with competing proposals: the plaintiffs sought a broad
injunction precluding enforcement of any regulation
promulgated in furtherance of the mandate, even one which
included the accommodation that had been extended to
not-for-profit employers. The government, by contrast, asked
the court to enter an injunction limited to the original
version of the mandate, which of course had made no
accommodation available to for-profit employers. The
government's proposal would leave open the option of
applying the mandate to a closely-held employer like Ozinga
Brothers, so long as it provided the company with the type of
accommodation it had made available to not-for-profit
religious employers. The court decided to adopt the
government's proposal and entered a permanent injunction
limited to the mandate as it existed prior to the Supreme
Court's decision in Hobby Lobby. 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. The court's
order accompanying the injunction set forth the court's
rationale for choosing the injunction proposed by the
government over the broader injunction proposed by Ozinga. R.
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.
Additionally, it contends that the district court's
injunction does not comply with Federal Rule of Procedure
65(d)(1)(A), in that it contains an insufficient recitation
of the factual and legal bases for the limited relief that
the court ordered. Ozinga adds that the court did not
meaningfully exercise its discretion in choosing the
government's proposed injunction over its own, as
evidenced by the lack of findings supporting its decision.
None of these objections is meritorious.
district court appropriately confined the injunctive relief
it ordered to the particular challenge presented by
Ozinga's complaint. See J.P. Morgan Chase Bank, N.A.
v. McDonald,760 F.3d 646, 653 (7th Cir. 2014).
Ozinga's suit was focused on the mandate as it was
originally adopted, with no accommodation addressed to
closely held f or-prof it employers like Ozinga Brothers who
object to the mandate on religious grounds. Once the Supreme
Court sustained the objections of Ozinga and
similarly-situated employers in Hobby Lobby, the
regulations challenged in the complaint were revised to
extend the accommodation previously available only to
objecting not-for-profit employers to objecting for-profit,
closely-held companies like Ozinga Brothers. At that point,
the plaintiffs had achieved the goal that their complaint
sought: the availability of an accommodation that
(ostensibly) removed them from the provision of objectionable
contraceptive services to their employees. As the plaintiffs
themselves would subsequently assert in their fee petition,
they were "wholly successful in obtaining all the relief
they sought" in the litigation. R. 82 at 21. Nothing in
their complaint presented any question as to the adequacy of
the accommodation itself. Nor at any time during the pendency
of the suit had the plaintiffs sought to amend their
complaint to challenge the accommodation, notwithstanding the
second wave of litigation by other employers presenting such
challenges. The court thus had no reason to broaden the
injunction to address a potential concern about the adequacy
of the accommodation when the plaintiffs themselves had not
presented such a concern to the court. It was enough that the
injunction preserved the ...