               Case: 14-10086      Date Filed: 02/27/2015     Page: 1 of 12


                                                                       [PUBLISH]

                                   CORRECTED
                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-10086
                             ________________________

                         D.C. Docket No. 1:12-cv-22958-PAS



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,

                                          versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                    Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

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


   *
     Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
   **
      Honorable Steven D. Merryday, United States District Judge for the Middle District of
Florida, sitting by designation.
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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.


   1
     The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8
inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
   2
     This number is based on the 2012 edition of the United States Code, excluding volumes 35
through 41 (which contain conversion tables and indices) and annual supplements.
   3
     Those numbers are based on the latest official statistics from the Office of the Federal
Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938
Through 1949, and Total Volumes and Pages 1950 Through 2013,
https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-1-
2013.pdf (last visited Jan. 27, 2015).


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        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. See 42 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


   4
     Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye
315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front
of other lawyers called judges so that other judges can say the first judges were wrong and the
Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up
to our necks in it.”).


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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




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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). See 18 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. See 18

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

   5
     The district court’s original order required Florida to provide kosher meals on a statewide
basis “no later than July 1, 2014.” The court later vacated that July 1 deadline and adopted a
region-by-region timetable proposed by Florida.


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we consider de novo. See United States v. Logal, 106 F.3d 1547, 1551 (11th Cir.

1997). We must address it at the outset because 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. 7 See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S. Ct. 2113, 2123

n.12 (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

   6
     Apologies to Bishop Berkeley. See The History of Philosophy: Modern Philosophy from
1500 CE to the Present 113 (Brian Duignan ed., 2011) (explaining that George Berkeley’s
philosophy of phenomenalism was the inspiration for the “question of whether a tree falling in an
uninhabited forest makes a sound”).
   7
      That is true even though the plaintiff in this case is the United States and not an individual
prisoner. The PLRA provision at issue here states that it applies “[i]n any civil action with
respect to prison conditions.” 18 U.S.C. § 3626(a)(2) (emphasis added). And the subsection
defining “civil action with respect to prison conditions” states that it “means any civil proceeding
arising under Federal law with respect to the conditions of confinement or the effects of actions
by government officials on the lives of persons confined in prison, but does not include habeas
corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2)
(emphasis added). The provision’s plain language makes it applicable regardless of whether the
plaintiff is the government or a prisoner. Cf. United States v. Puerto Rico, 642 F.3d 103, 104
(1st Cir. 2011) (applying a separate provision of § 3626 to a suit brought by the United States).


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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



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       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

(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. See 18 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

   8
     In Cason, we interpreted the terms in § 3626(b)(3). See 231 F.3d at 785. That paragraph
provides:

       Prospective relief shall not terminate if the court makes written findings based on
       the record that prospective relief remains necessary to correct a current and
       ongoing violation of the Federal right, extends no further than necessary to correct
       the violation of the Federal right, and that the prospective relief is narrowly drawn
       and the least intrusive means to correct the violation.

18 U.S.C. § 3626(b)(3) (emphasis added). In comparison, § 3626(a)(1) states that a “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).


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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. 9 See 18

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 appeal is moot “when, by virtue of an intervening event, a court of

appeals cannot grant any effectual relief whatever in favor of the appellant.”

Calderon v. Moore, 518 U.S. 149, 150, 116 S. Ct. 2066, 2067 (1996) (quotation

marks omitted). One such intervening event is the expiration of a preliminary


   9
      In response to our request for supplemental briefing on the mootness issue, Florida argued
that the preliminary injunction did not expire on March 6 because, after entering the preliminary
injunction order, the district court issued several later orders clarifying the scope of the
injunction. None of the orders to which Florida points renewed the preliminary injunction. They
merely clarified the scope of the existing injunction. Clarification is not renewal. Cf.
Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001) (holding that § 3626(a)(2) permits a
district court to “enter[ a] second injunction after the first one expire[s]”). In any event, it does
not matter, because the last of the orders that Florida cites was entered on June 30, 2014. So
even if we accepted Florida’s renewal argument, the preliminary injunction would have expired
on Monday, September 29, 2014. Cf. Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of the next day that is not a
Saturday, Sunday, or legal holiday.”).


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injunction that is being challenged in an interlocutory appeal. See Local No. 8-6,

Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361 U.S. 363, 367, 80

S. Ct. 391, 394 (1960); Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1119

(11th Cir. 1995) (“[T]his court has consistently held that the appeal of a

preliminary injunction is moot where the effective time period of the injunction has

passed.”) (citing Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d

1581, 1582–83 (11th Cir. 1989) and Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d

1093, 1096 (11th Cir. 1994)). 10 If the preliminary injunction has expired, it no

longer has legal effect on the parties, and a decision by this court affirming or

vacating the defunct injunction “cannot affect the rights of [the] litigants.”

DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705 (1974).

        The preliminary injunction in the present case passed on to injunction

heaven on March 6, 2014. And with it died this appeal, unless some exception to

the mootness doctrine can save it. See Sierra Club v. Martin, 110 F.3d 1551, 1554

(11th Cir. 1997). The only one that could arguably apply here is the one for

disputes that are “capable of repetition, yet evading review.” See Strickland v.

Alexander, 772 F.3d 876, 887 (11th Cir. 2014). It applies where “(1) there [is] a


   10
      Earlier decisions by this Court recognized “the traditional rule that issues raised by an
expired injunction are not moot if one party was required to post an injunction bond.”
Medtronic, Inc. v. Janss, 729 F.2d 1395, 1398–99 (11th Cir. 1984) (quotation marks omitted).
Here, neither party claims to have posted an injunction bond, and our own review of the record
confirms that none was posted.


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reasonable expectation or a demonstrated probability that the same controversy

will recur involving the same complaining party, and (2) the challenged action is in

its duration too short to be fully litigated prior to its cessation or expiration.”

Martin, 110 F.3d at 1554.

      That exception does not apply here because Florida has not demonstrated a

probability that any additional injunction the district court enters will evade

review. In arguing about the government’s motion for a preliminary injunction,

the parties did not mention the PLRA in any of their briefs or during the hearing on

the motion. And the district court did not mention the statute in its order entering

the preliminary injunction or any of its later orders regarding the scope of that

injunction. It is apparent that the parties and the district court simply overlooked

the findings and finalization requirements of 18 U.S.C. § 3626(a)(2). There is no

basis for us to predict that if the United States seeks a new preliminary injunction,

the district court (assuming it grants the motion) will decline to make the required

need-narrowness-intrusiveness findings or will refrain from finalizing its order.

See 18 U.S.C. § 3626(a)(2). Or to put it in terms of the mootness exception, there

is no “reasonable expectation” that any new preliminary injunction would expire

before it reached this Court on appeal. See Martin, 110 F.3d at 1554. The issues

underlying the preliminary injunction the district court entered are capable of

repetition but we do not expect that they will evade review if they arise again.


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                                         III.

      When an issue becomes moot on appeal, we not only “dismiss as to the

mooted issue, but also vacate the portion of the district court’s order that addresses

it.” De La Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003); see United

States v. Ghandtchi (In re Ghandtchi), 705 F.2d 1315, 1316 (11th Cir. 1983)

(“Where a case becomes moot after the district court enters judgment but before

the appellate court has issued a decision, the appellate court must dismiss the

appeal, vacate the district court’s judgment, and remand with instructions to

dismiss the case as moot.”). We vacate the moot part of the order because “a party

who seeks review of the merits of an adverse ruling, but is frustrated by the

vagaries of circumstance, ought not in fairness to be forced to acquiesce in the

judgment.” De La Teja, 321 F.3d at 1364 (quotation marks omitted). Florida’s

appeal from the now expired preliminary injunction is therefore DISMISSED as

moot, but the district court’s orders entering and clarifying that preliminary

injunction are VACATED.




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