LYNCH, Chief Judge.
The American Civil Liberties Union of Massachusetts (ACLUM), asserting taxpayer standing on behalf of its members, brought suit in 2009 alleging that the U.S. Department of Health and Human Services (HHS) violated the Establishment Clause of the First Amendment. HHS had received funds appropriated by Congress under the Trafficking Victims Protection Act (TVPA) and, in 2006, contracted with the United States Conference of Catholic Bishops (USCCB) to provide services to trafficking victims. At the insistence of USCCB, the 2006 contract incorporated a restriction under which neither USCCB nor any of its subcontractors would use funding to counsel or provide abortions or contraceptive services and prescriptions to trafficking victims.
In March of 2012, the district court awarded relief to ACLUM issuing a declaratory judgment that HHS had violated the Establishment Clause "insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church." Am. Civil Liberties Union of Mass. v. Sebelius, 821 F.Supp.2d 474, 488 (D.Mass.2012). The 2006 contract, along with its extensions, expired in October of 2011.
We vacate on grounds of mootness and remand with instructions to dismiss.
The problem of human trafficking, as all parties recognize,
On October 28, 2000, Congress passed the TVPA, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified as amended at 22 U.S.C. § 7101 et seq.), to "combat trafficking in persons," "ensure just and effective punishment of traffickers," and "protect their victims," 22 U.S.C. § 7101(a). In its victim services mandate, the TVPA directs the Secretary of HHS, subject to the availability of congressional appropriations, to expand the benefits and services offered to human trafficking victims residing in the United States. Id. § 7105(b)(1)(B). Since fiscal year 2001, Congress has appropriated $5 to $10 million annually to HHS to carry out that mandate. See, e.g., Consolidated Appropriations — FY 2001, Pub. L.
Shortly after Congress passed the TVPA, HHS began implementing the victim services mandate through a series of competitively selected grants to direct service providers. See, e.g., ORR Announcement for Services To Victims of a Severe Form of Trafficking, 67 Fed. Reg. 36,622, 36,623 (May 24, 2002). HHS later determined that these grants were inefficient and ineffective, due to geographic and other limitations.
In November of 2005, these problems prompted HHS to alter its approach to the distribution of funds under the victim services mandate. Rather than issuing multiple grants to individual service providers, HHS decided to award a single contract to administer the agency's TVPA funds nationwide. HHS would then reimburse the organization selected, on a "per capita" basis, for the benefits and services it provided to trafficking victims.
On November 9, 2005, HHS published a Request for Proposals (RFP) for the nationwide contract. The RFP explained that the award recipient would furnish, either directly or through other organizations, "case management, benefits coordinating, and counseling services" to trafficking victims. The contractor would also expend TVPA funds on certain direct services, including medical care, therapy, and other forms of assistance. The TVPA did not require HHS to ensure that taxpayer funds were made available to provide abortions or contraceptive services to trafficking victims, and the RFP did not preclude organizations which refused to provide these services from submitting a proposal.
HHS received timely proposals from two organizations, both religiously affiliated: USCCB and the Salvation Army. Based upon its own religious and moral convictions, USCCB's proposal included a restriction on the services it would fund if awarded the nationwide contract:
Sebelius, 821 F.Supp.2d at 476-77 (emphasis omitted).
HHS convened a four-member "technical evaluation panel" to review the contract proposals. Based upon four criteria specified in the RFP — organizational profile, approach, staff and position data, and past experience — the panel gave USCCB's proposal a technical score of 89.00 (out of 100.00) and Salvation Army's proposal a
In February of 2006, HHS allowed both organizations to submit revised technical proposals. The panel gave USCCB's revised proposal a technical score of 93.75, noting the restriction as one of its weaknesses. Salvation Army's revised proposal received a technical score of 75.00. As to costs, the panel estimated that USCCB's proposal would require approximately $29 million in total funding as compared to $89 million for Salvation Army's proposal. HHS awarded the nationwide contract to USCCB on March 29, 2006 (HHS-USCCB contract).
The HHS-USCCB contract was signed on April 11, 2006. It had an initial term of one year, with options for four annual renewals thereafter, each of which HHS exercised. Throughout this contractual period, USCCB did not provide services directly to trafficking victims, but subcontracted with upwards of 100 other organizations that did so. USCCB's subcontracts specified what costs were and were not reimbursable. Non-reimbursable costs included, among others, "abortion counseling/services" and "abortive/contraceptive prescriptions." USCCB did not, however, exclude any organization from becoming a subcontractor on the basis of that organization's provision of abortion or contraception services, it simply forbade reimbursement for such services. Subcontractors were able to furnish these services at their own expense or through funding acquired from other sources. Over the first four years of this arrangement, USCCB's subcontractors served an estimated 2,254 trafficking victims at around one-fifth the cost per victim of the earlier grant program.
HHS exercised the fourth and final contract option in April of 2010, which expired on April 10, 2011. Before the option expired, HHS approved a six-month extension, called a "task order," pursuant to 48 C.F.R. § 52.217-8. That task order expired on October 10, 2011. Sebelius, 821 F.Supp.2d at 478. Thereafter, HHS had no authority to obligate additional funding under the HHS-USCCB contract, although it could reimburse USCCB for services which had been rendered before October 10, 2011. On April 17, 2012, one month after the district court issued its opinion, USCCB stated that it had completed all reimbursements under the contract. In sum, HHS awarded USCCB approximately $16 million under the contract over the course of five and a half years.
On May 27, 2011, HHS announced that it would return to a grant-based model to fulfill the victim services mandate. The Funding Opportunity Announcement (FOA) prepared for the new grants made clear that HHS funds could be expended for an abortion in certain limited circumstances
On October 12, 2011, HHS awarded grants to three organizations. Each grant
On January 12, 2009, almost three years after the HHS-USCCB contract was adopted, the ACLUM filed suit in the District of Massachusetts against the Secretary of HHS and two other federal officials in their official capacities alone.
On March 23, 2012, the district court resolved cross-motions for summary judgment in favor of the ACLUM. Sebelius, 821 F.Supp.2d at 488. The district court held that the ACLUM, on behalf of its members, had taxpayer standing to challenge the HHS-USCCB contract on Establishment Clause grounds, id. at 478-80; that the HHS-USCCB contract's expiration had not rendered the ACLUM's challenge moot, id. at 480-82; and that the federal defendants had violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, id. at 484-486, or by impermissibly delegating authority to USCCB to impose those views on others, id. at 486-88.
The district court concluded that the ACLUM's challenge was not moot because it fell under the "voluntary cessation" exception to the mootness doctrine. Having determined that HHS voluntarily ceased the challenged conduct, to prevail on mootness grounds, the federal defendants had to show that it was "absolutely clear" they would not resume that conduct. Relying on USCCB's contention that it would continue to seek HHS contracts and grants, and on a long history of partnership between HHS and USCCB, the district court determined that the federal defendants could not meet this burden. Id. at 481-82. Independently, the district court noted that the ACLUM sought a declaratory judgment, and concluded that it was obliged to reach the merits on the basis of this request. Id. at 482. Both rulings were in error. The district court went on to find that declaratory relief was appropriate and issued a judgment that the federal defendants had violated the Establishment Clause. Id. at 488.
On May 22, 2012, this timely appeal ensued.
On appeal, the federal defendants challenge the district court's conclusions that the case was not moot, that the ACLUM had taxpayer standing, and that the HHS-USCCB
We begin and end our analysis on the issue of mootness. Mootness is a ground which should ordinarily be decided in advance of any determination on the merits. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Further, we are obligated to follow the doctrine of constitutional avoidance, under which federal courts are not to reach constitutional issues where alternative grounds for resolution are available. See Mills v. Rogers, 457 U.S. 291, 305, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
The HHS-USCCB contract, and any use of taxpayer funds authorized by it, whether constitutional or not, has now ended, as of either October 10, 2011, when the contract expired, or at the latest on April 17, 2012, when USCCB announced that it had no outstanding invoices for services rendered prior to the contract's expiration. Moreover, HHS has awarded new grants to three different organizations, each for a term of 36 months. The ACLUM admits these grants do not raise Establishment Clause concerns. These new grants were made pursuant to HHS's new terms, which endorse a "strong preference" for organizations willing to provide abortion and contraceptive services. The federal defendants argue that these events have mooted the ACLUM's challenge. We agree.
"The doctrine of mootness enforces the mandate `that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.'" Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.2003) (quoting Steffel v. Thompson, 415 U.S. 452, 460 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). The burden of establishing mootness rests with the party invoking the doctrine, Conservation Law Found. v. Evans, 360 F.3d 21, 24 (1st Cir.2004), in this instance the federal defendants. Where, as here, there are no factual findings which bear on the matter, we review the trial court's mootness determination de novo. See Brown v. Colegio de Abogados de P.R., 613 F.3d 44, 48 (1st Cir.2010); Adams v. Bowater Inc., 313 F.3d 611, 613 (1st Cir.2002).
This court, employing the Supreme Court's terminology, has provided various formulations of what makes a case moot. "Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 54 (1st Cir. 1999) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)) (internal quotation marks omitted). "Another way of putting this is that a case is moot when the court cannot give any `effectual relief' to the potentially prevailing party." Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004) (citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). And, "[i]f events have transpired to render a court
It is ordinarily true that a challenge to a contract becomes moot upon that contract's expiration. See, e.g., Columbian Rope Co. v. West, 142 F.3d 1313, 1316-17 (D.C.Cir.1998); James Luterbach Constr. Co., Inc. v. Adamkus, 781 F.2d 599, 602 (7th Cir.1986); cf. Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1398 (7th Cir.1990) ("[W]e agree that if the expiration clause [made the contract expire]... last year, the case is moot and we are required to vacate [the trial court's] order...."). This is also the rule in challenges to expired or exhausted government grants, see, e.g., Maine v. U.S. Dep't of Labor, 770 F.2d 236, 239 (1st Cir.1985); Caldwell v. Caldwell, 545 F.3d 1126, 1130 (9th Cir.2008); Campesinos Unidos, Inc. v. U.S. Dep't of Labor, 803 F.2d 1063, 1068 (9th Cir.1986), and to government regulatory schemes which have expired or been effectively repealed, see, e.g., New Eng. Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir.2002).
These challenges are moot for a number of reasons. One is that there is literally no controversy left for the court to decide — the case is no longer "live." Powell, 395 U.S. at 496, 89 S.Ct. 1944. Once a contract has expired, and the obligations between its signatories have ended, and if no damages are sought, the parties usually do not have a legally cognizable interest in the case's outcome.
A second and independent reason for mootness is that a court cannot provide meaningful relief to the allegedly aggrieved party. This is clearest in cases where the only relief requested is an injunction. Once a contract has expired, there is no ongoing conduct left for the court to enjoin. Columbian Rope, 142 F.3d at 1316; Campesinos Unidos, 803 F.2d at 1068.
With limited exceptions, not present here, issuance of a declaratory judgment deeming past conduct illegal is also not permissible as it would be merely advisory. Maine, 770 F.2d at 239; O'Connor v. Washburn Univ., 416 F.3d 1216, 1221 (10th Cir.2005); James Luterbach, 781 F.2d at 602. The Supreme Court has admonished that federal courts "are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); see also United States v. Reid, 369 F.3d 619, 624 (1st Cir. 2004).
While the district court was correct to independently consider the availability of declaratory relief, see Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 121, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), it failed to apply the appropriate test. For declaratory relief to withstand a mootness challenge,
Beyond that, HHS has awarded new grants to implement the victim services mandate and these grants do not raise Establishment Clause concerns. "The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). As such, the claim for declaratory relief is moot. See Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 415, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972).
Since the controversy at issue is not live, and the requested relief is not available, the ACLUM must rely on an exception to the mootness doctrine. We consider these exceptions separately and explain why they do not apply here.
A. "Voluntary Cessation"
The district court found, and the ACLUM argues now, that this case falls into the "voluntary cessation" exception to mootness articulated in City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). As its name suggests, this exception arises in situations where "the defendant voluntary ceases the challenged practice," D.H.L. Assocs., 199 F.3d at 55, thereby mooting the plaintiff's case. Our review of the district court's finding is de novo. Id. at 54.
The ACLUM argues that this case qualifies as a voluntary cessation because HHS freely chose not to award a grant to USCCB under the new program. The federal defendants respond that what occurred here was not a voluntary cessation at all, and so the exception cannot be invoked. The HHS-USCCB contract expired in the ordinary course of events, not because of any actions taken by HHS. The fact that HHS chose to award a new set of grants to different organizations does not avoid mootness.
The voluntary cessation exception does not save the ACLUM's challenge. The purposes for which the exception exists are not met here. Further, even if the facts could be thought of in terms under which HHS has voluntarily ceased a challenged activity, the tests for application of the exception have not been satisfied.
The voluntary cessation exception "traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). This is to avoid a manipulative litigant immunizing itself from suit indefinitely, altering its behavior
This, in our view, is not a case of voluntary cessation so as to invoke the exception. "The voluntary cessation doctrine does not apply when the voluntary cessation of the challenged activity occurs because of reasons unrelated to the litigation." M. Redish, Moore's Fed. Practice, § 101.99; see Jordan v. Sosa, 654 F.3d 1012, 1037 (10th Cir.2011); Sze v. INS, 153 F.3d 1005, 1008-09 (9th Cir.1998). The HHS-USCCB contract expired according to its terms. HHS did nothing to hasten its expiration, much less do so to terminate litigation; indeed, HHS continued to exercise options even after the ACLUM filed suit. Moreover, the expiration date, options, and task order extension were all built into the contract's terms before this litigation began.
Circuit courts have routinely held that the voluntary cessation exception is not invoked when the challenged conduct ends because of an event that was scheduled before the initiation of the litigation, and is not brought about or hastened by any action of the defendant. For example, in O'Connor, 416 F.3d 1216, a challenge was brought to a temporary art exhibition, and the exhibition ended according to its predetermined schedule during the pendency of the litigation. Id. at 1221-22. The Tenth Circuit held that the claims for declaratory and injunctive relief were moot and that a voluntary cessation had not occurred because "the controversy has become moot through the normal course of events rather than through the unilateral action of the defendant." Id. at 1222; see also County of Suffolk, 605 F.3d at 139-42 (where plaintiff asserts claim it was entitled to HHS Comprehensive AIDS Resources Emergency Act funding because it had been wrongly classified, its claims were moot as to fiscal years where HHS had already distributed all appropriated funds). The purpose of the contract expiration here was not to moot the litigation. We have no basis for skepticism otherwise.
The exception, to be invoked, also requires some reasonable expectation of recurrences of the challenged conduct.
Here there is also no reasonable expectation of recurrence. HHS has altered the terms for awarding funds under the TVPA to give preference to organizations which provide the services that the ACLUM wishes to see provided. The new grants awarded under these terms have a three-year time period. Thus, unlike cases where the exception has been held to apply, here we can safely assume that for the foreseeable future the challenged contract terms will not recur. See Caldwell, 545 F.3d at 1130 (finding claim moot where challenged grant expired and no alternative source of funding was likely to emerge (citing Chandler v. Miller, 520 U.S. 305, 313 n. 2, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997))).
We give some weight in our analysis to the fact that the defendants are high-ranking federal officials, including a cabinet member, who have, as a matter of policy, abandoned the prior practice and adopted a concededly constitutional replacement.
For these reasons, we believe by its terms the voluntary cessation exception does not apply. We would, in any event, use our discretion not to exercise jurisdiction. See, e.g., City of Mesquite, 455 U.S. at 288, 102 S.Ct. 1070; Council of Carpenters, 284 F.3d at 18 n. 3. As in Council of Carpenters, under the circumstances of this case, "we think it wise to avoid an adjudication addressed to a policy that no longer applies." 284 F.3d at 18 n. 3.
B. "Capable of Repetition, Yet Evading Review"
The second exception, more commonly invoked in cases involving expired contracts, is for conduct "capable of repetition, yet evading review." See, e.g., Pub. Utils. Comm'n v. FERC, 236 F.3d 708, 714 (D.C.Cir.2001); James Luterbach, 781 F.2d at 602. The district court did not rely on this exception and the ACLUM's appellate brief has waived the issue, addressing the exception only once in a footnote.
As to the first, the ACLUM's challenge is not among the "inherently transitory" claims the Supreme Court has recognized as likely to evade review, e.g., Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) (elections); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (pregnancies); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 542, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (temporary restraining orders). Nor has the ACLUM shown on these particular facts "a realistic threat that no trial court ever will have enough time to decide the underlying issue." Cruz v. Farquharson, 252 F.3d 530, 535 (1st Cir.2001).
On whether the HHS-USCCB contract is "capable of repetition," the ACLUM bears the burden and must show a "reasonable expectation" or "demonstrated probability," Murphy v. Hunt, 455 U.S. 478, 483, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam), that it "will again be subjected to the alleged illegality," Lyons, 461 U.S. at 109, 103 S.Ct. 1660 (emphasis added). Our earlier discussion disposes of this point. The HHS-USCCB contract has expired, the terms for TVPA grants have changed, and HHS has committed itself for the next three years to new grants that fund the full range of legally permissible abortion and contraceptive services.
When a case becomes moot on appeal, the established practice is to vacate the judgment below and remand with instructions to dismiss. See, e.g., Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2034-35, 179 L.Ed.2d 1118 (2011); Arizonans for Official English, 520 U.S. at 71, 117 S.Ct. 1055; Reid, 369 F.3d at 627. "A party who seeks review of the merits of an adverse ruling, but is frustrated by the
The expiration of a contract on its own terms constitutes such a mooting event. See Columbian Rope, 142 F.3d at 1318; James Luterbach, 781 F.2d at 604; Dan Caputo Co. v. Russian River Cnty. Sanitation Dist., 749 F.2d 571, 574 (9th Cir.1984). By vacating the judgment below, we eliminate its "binding effect," Deakins v. Monaghan, 484 U.S. 193, 200, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988), and "clear the path for future relitigation" should it be necessary, United States v. Munsingwear, 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950). In short, "the rights of all parties are preserved," and "none is prejudiced by a decision which ... was only preliminary." Id. at 40, 71 S.Ct. 104.
We vacate the district court's judgment and remand with instructions to dismiss the case. Each party shall bear their own costs. So ordered.