United States Court of Appeals

For the First Circuit

Nos. 12-1466, 12-1658

AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS,

Plaintiff, Appellee,

v.

UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,

Defendant, Appellant,

KATHLEEN SEBELIUS, Secretary of the Department of Health and

Human Services; GEORGE SHELDON, Acting Assistant Secretary for

the Administration of Children and Families; ESKINDER NEGASH,

Director of the Office of Refugee Resettlement,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella, Circuit Judge,

and DiClerico, District Judge. *

Lowell V. Sturgill, Jr., Attorney, Appellate Staff Civil

Division, U.S. Department of Justice, with whom Stuart F. Delery,

Assistant Attorney General, Carmen Ortiz, United States Attorney,

Beth S. Brinkmann, Deputy Assistant Attorney General, and Matthew

M. Collette, Attorney, Appellate Staff Civil Division, U.S.

Department of Justice, were on brief, for defendants Kathleen

 of the District of New Hampshire, sitting by designation. *
Sebelius, et al.

Henry C. Dinger, with whom Catalina Azuero, Goodwin Procter

LLP, Anthony R. Picarello, Jr., and Jeffrey Hunter Moon, were on

brief, for defendant-appellant United States Conference of Catholic

Bishops. 

James L. Hirsen and Deborah J. Dewart on brief for Justice and

Freedom Fund, amicus curiae.

Eric Rassbach and S. Kyle Duncan on brief for The Becket Fund

for Religious Liberty et al., amicus curiae.

Brigitte Amiri, with whom Andrew D. Beck, Rose Ann Saxe,

Daniel Mach, Heather L. Weaver, and Sarah R. Wunsch, were on brief,

for plaintiff-appellee American Civil Liberties Union of

Massachusetts.

Alex J. Luchenitser, Ayesha N. Khan, Steven M. Freeman, David

L. Barkey, Robert O. Trestan, K. Hollyn Hollman, and Gretchen S.

Futrell on brief for Americans United for Separation of Church and

State et al., amicus curiae. 

Gabrielle Viator, Assistant Attorney General, Martha Coakley,

Attorney General of Massachusetts, and Genevieve C. Nadeau,

Assistant Attorney General, on brief for Commonwealth of

Massachusetts, amicus curiae.

Eliza M. Scheibel, Anne Harkavy, P. Patty Li, and Wilmer

Cutler Pickering Hale and Dorr LLP on brief for Organizations

Serving Trafficking Victims, amicus curiae. 

January 15, 2013

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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. 

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I. 

The problem of human trafficking, as all parties

recognize, is considerable and very serious. Human trafficking 1

"is a widespread form of modern-day slavery," U.S. Dep't of

Justice, Attorney General's Annual Report to Congress and

Assessment of U.S. Government Activities to Combat Trafficking in

Persons: Fiscal Year 2008, at 1 (2009), with an estimated 27

million victims worldwide, see U.S. Dep't of State, Trafficking in

Persons Report 7 (2012). This pandemic disproportionately affects

women and girls, who account for 98% of individuals trafficked to

perform commercial sex acts and 55% of those trafficked to provide

forced labor. Id. at 45; see also D. Banks & T. Kyckelhahn, U.S.

Dep't of Justice, Characteristics of Suspected Trafficking

Incidents, 2008-2010, at 6 (2011). These women and girls are

typically subject to a variety of abuses, including rape and other

forms of sexual assault, and they may seek abortions,

contraceptives, and other medical services.

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

 We express our appreciation to the amici on both sides. 1

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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.

No. 106-554, 114 Stat. 2763, 2763A-22 (2000); Consolidated

Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034,

3249-50 (2009).

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.2

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

For example, services for trafficking victims were limited 2

to the geographic locations of HHS's grantees and victims outside

of these areas were often unaware that services were available. 

Additionally, some grantees did not maintain a caseload of victims

sufficient in size to justify the resources made available by their

grants. As of February 25, 2005, only 711 victims had been served

through HHS's direct grants, less than ten percent of the estimated

number of victims who enter the U.S. each year.

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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.3

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: 

[A]s we are a Catholic organization, we need

to ensure that our victim services are not

used to refer or fund activities that would be

The agency anticipated that a "per capita" funding model 3

would ameliorate many of the problems associated with the direct

grant program. Because the contractor would receive funds in

proportion to the number of victims served, it had incentives to

identify as many trafficking victims and provide services in as

many regions as possible. 

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contrary to our moral convictions and

religious beliefs. Therefore, we would

explain to potential subcontractors our

disclaimer of the parameters within which we

can work. Specifically, subcontractors could

not provide or refer for abortion services or

contraceptive materials for our clients

pursuant to this 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 technical score of 71.75. Two of the panel

members raised concerns about USCCB's services restriction, which

they expressed through a series of written questionnaires to USCCB. 

In response, USCCB clarified that it would not agree to a "don't

ask, don't tell" policy on abortion and contraception, and that it

would not use, or permit to be used, any TVPA funds for activities

covered by the restriction. Id. at 477.

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. 

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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, USSCB'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,

-8-
HHS had no authority to obligate additional funding under the HHSUSCCB 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 and that HHS would give "strong 4

preference" to applicants willing to offer "the full range of

legally permissible gynecological and obstetric care." These terms

were markedly different from those in the 2005 RFP. 

On October 12, 2011, HHS awarded grants to three

organizations. Each grant has an expected term of 36 months,

subject to the continued availability of federal funds and

satisfactory progress by the grantee. Although USCCB applied to

receive a grant, its proposal was not selected. 

The Consolidated Appropriation Act, 2010, Pub. L. No. 111- 4

117, § 4, div. D, tit. V, secs. 507-508(a), 123 Stat. 3034, 3280

(2009), limited the use of TVPA funds for abortions to cases

involving rape, incest, or life endangerment.

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II.

On January 12, 2009, almost three years after the HHSUSCCB 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. The complaint 5

alleged that the federal defendants "violated and continue[d] to

violate the Establishment Clause of the First Amendment by

permitting USCCB to impose a religiously based restriction on the

use of taxpayer funds." The ACLUM sought: (1) a declaratory

judgment, pursuant to 28 U.S.C. § 2201, that the federal defendants

violated the Establishment Clause; (2) a permanent injunction

ordering the federal defendants "to ensure that the TVPA grant is

implemented without the imposition of religiously based

restrictions"; and (3) costs, fees, nominal damages, and any other

relief the court deemed appropriate. USCCB intervened as a

defendant in June of 2010.

On March 23, 2012, the district court resolved crossmotions 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 HHSUSCCB contract on Establishment Clause grounds, id. at 478-80; that

The named federal defendants were Michael O. Leavitt, 5

Secretary of HHS; Daniel Schneider, Acting Assistant Secretary for

the Administration for Children and Families; and David H. Siegel,

Acting Director of the Office of Refugee Resettlement. On appeal,

these defendants have been replaced by the successors to their

respective federal positions.

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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.

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III.

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 contract was in violation

of the Establishment Clause, and seek to vacate or reverse the

district court's grant of relief. USCCB appeals only as to

standing and the merits. The ACLUM argues that "this Court should 6

affirm the district court's decision in its entirety," and does not

request any alternative form of relief.

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 (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 (1982); Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 346-48 (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

USCCB did not address mootness until its reply brief, where 6

it stated that "USCCB opposed the government's arguments [on

mootness] below, and will not repeat its arguments here."

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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 (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

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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

(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 (1992)). And, "[i]f events have transpired to render a court

opinion merely advisory, Article III considerations require

dismissal of the case." Mangual, 317 F.3d at 60; Libertarian Party

of N.H. v. Gardner, 638 F.3d 6, 12 (1st Cir. 2011), cert. denied,

132 S. Ct. 402 (2011). Under any of these formulations, the

ACLUM's challenge to the HHS-USCCB contract is moot. 

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,

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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. 

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.7

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.

Although the federal complaint sought nominal damages, the 7

ACLUM has waived that request on appeal by not arguing the matter

in its brief. See, e.g., Child Evangelism Fellowship of Md., Inc.

v. Montgomery Cnty. Pub. Sch., 457 F.3d 376, 380 n.1 (4th Cir.

2006). Even if the argument were not waived, no nominal damages

are available. As the federal defendants argued before the trial

court, a claim for nominal damages is foreclosed by HHS's sovereign

immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); see also

County of Suffolk v. Sebelius, 605 F.3d 135, 141-42 (2d Cir. 2010).

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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

(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 (1974), it failed to apply

the appropriate test. For declaratory relief to withstand a

mootness challenge, the facts alleged must "show that there is a

substantial controversy . . . of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment." Preiser v.

Newkirk, 422 U.S. 395, 402 (1975) (quoting Md. Cas. Co. v. Pac.

Co., 312 U.S. 270, 273 (1941)) (internal quotation mark omitted). 

The controversy here is at this point neither immediate nor real. 

The HHS-USCCB contract has expired and the appropriated tax dollars

set aside for it have been spent.

Beyond that, HHS has awarded new grants to implement the

victim services mandate and these grants do not raise Establishment

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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 (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 (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 (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

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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.8

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 (2001). This is to avoid a manipulative litigant

immunizing itself from suit indefinitely, altering its behavior

long enough to secure a dismissal and then reinstating it

immediately after. See Already, LLC v. Nike, Inc., No. 11-982,

slip op. at 4 (U.S. Jan. 9, 2013); Brown, 613 F.3d at 49; see also

United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (noting

The federal defendants have largely staked their position 8

on the argument that there was no voluntary cessation so as to

invoke the exception at all. They do argue that whether there is

a likelihood of recurrence is mostly relevant to the exception to

mootness for cases capable of repetition yet likely to evade

review. We do not share their confidence that there is such

categorical neatness. To the extent the federal defendants may be

viewed as arguing there is an implied per se rule that contract and

payment obligation expiration causes mootness without any possible

exception, we do not agree.

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that if a court declares the case moot, "[t]he defendant is free to

return to his old ways"). As the Supreme Court stated last term,

"[s]uch . . . maneuvers designed to insulate a decision from review

. . . must be viewed with a critical eye" and, as a result, "[t]he

voluntary cessation of challenged conduct does not ordinarily

render a case moot." Knox v. Serv. Emps. Int'l Union, Local 1000,

132 S. Ct. 2277, 2287 (2012) (citation omitted). However, even in

circumstances where the voluntary cessation exception applies, a

case may still be found moot if the defendant meets "the formidable

burden[ ] of showing that it is absolutely clear the allegedly 9

wrongful behavior could not reasonably be expected to recur." 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 190 (2000) (citing United States v. Concentrated

Phosphate Exp. Ass'n, Inc., 393 U.S. 199, 203 (1968)); Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

720 (2007).

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[2]; see Jordan v. Sosa,

It is not a purpose of the doctrine to require an admission 9

from the defendant that the now ceased conduct was illegal.

"Mootness turns on future threats, not upon penance." Adams, 313

F.3d at 615.

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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 ACLU 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

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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. 

Under circuit precedent, the voluntary cessation exception can be

triggered only when there is a reasonable expectation that the

challenged conduct will be repeated following dismissal of the

case. See, e.g., Anderson ex rel. Dowd v. City of Boston, 375 F.3d

71, 93 (1st Cir. 2004); Council of Carpenters, 284 F.3d at 18;

D.H.L. Assocs., 199 F.3d at 55.

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 (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

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practice and adopted a concededly constitutional replacement. We 10

understand this exception to mootness to be highly sensitive to the

facts of a given case. See, e.g., Already, LLC, No. 11-982, slip

op. at 5-8. HHS' denial of USCCB's proposal is attributable, at

least in part, to HHS' shift in policy to a "strong preference"

that TVPA contractors provide abortion and contraception services

that USCCB was unwilling to provide. The change has come about in

part because of the different policy perspectives of a different

President (and a different HHS) than the administration which

originally granted the contract in 2006.

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; 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. 

In saying so, we do not join the line of cases holding that 10

when it is a government defendant which has altered the complained

of regulatory scheme, the voluntary cessation doctrine has less

application unless there is a clear declaration of intention to

re-engage. The Tenth Circuit in Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010), provided a

useful survey of this case law. Id. at 1116-20, 1116 n.15; see

also Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974,

981-82 (6th Cir. 2012); Mosley v. Hairston, 920 F.2d 409, 414-415

(6th Cir. 1990); Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.

1988); M. Redish, Moore's Fed. Practice, § 101.99[2].

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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.11

Had the exception been properly preserved, we would

conclude it does not apply to this case. "[T]he capable-ofrepetition doctrine applies only in exceptional situations," City

of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), where a plaintiff

can show that "'(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration,

and (2) there was a reasonable expectation that the same

complaining party would be subjected to the same action again.'" 

Gulf of Me. Fisherman's Alliance v. Daley, 292 F.3d 84, 89 (1st

Cir. 2002) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)

(per curiam)). Neither condition is met here.

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

Even there, the ACLUM argues "this action is not only

11

capable of repetition but it may evade review if this case is

dismissed as moot." (emphasis added).

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(1969) (elections); Roe v. Wade, 410 U.S. 113, 125 (1973)

(pregnancies); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 542 (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). The HHS-USCCB 12

contract was in effect for five and a half years, more than enough

time to litigate the case, Am. Rivers v. Nat'l Marine Fisheries

Serv., 126 F.3d 1118, 1124 (9th Cir. 1997) (finding future

challenges to superceded policy would not evade review where

revised policy in effect for three years); Ahmed v. Univ. of

Toledo, 822 F.2d 26, 28 (6th Cir. 1987) (finding challenged conduct

in effect for four to five years would not evade review); Valentino

v. Howlett, 528 F.2d 975, 980 (7th Cir. 1976) (same), and could

have been challenged much earlier than the date on which the ACLUM

filed suit.

On whether the HHS-USCCB contract is "capable of

repetition," the ACLUM bears the burden and must show a "reasonable

Federal defendants also argue that the "capable of 12

repetition, yet evading review" exception does not apply where, as

here, the party invoking the exception fails to seek preliminary

relief to ensure that its adversary's conduct does not render the

case moot. See Newdow v. Roberts, 603 F.3d 1002, 1009 (D.C. Cir.

2010), cert. denied, 131 S. Ct. 2441 (2011) ("The

capable-of-repetition doctrine is not meant to save mooted cases

that may have remained live but for the neglect of the

plaintiff."); see also Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C.

Cir. 2008) (collecting cases). Because there is a separate basis

for withholding the exception, we do not decide this issue. 

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expectation" or "demonstrated probability," Murphy v. Hunt, 455

U.S. 478, 483 (1982) (per curiam), that it "will again be subjected

to the alleged illegality," Lyons, 461 U.S. at 109 (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.

IV.

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, 131 S. Ct.

2020, 2034-35 (2011); Arizonans for Official English, 520 U.S. at

71; Reid, 369 F.3d at 627. "A party who seeks review of the merits

of an adverse ruling, but is frustrated by the vagaries of

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

judgment." U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S.

18, 25 (1994); cf. Overseas Military Sales Corp., Ltd. v.

Giralt-Armada, 503 F.3d 12, 17 (1st Cir. 2007) ("Where a settlement

occurs, or the losing party declines to pursue an appeal, no

vacatur is appropriate.") (citations omitted).

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.

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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 (1988), and "clear[] the path for

future relitigation" should it be necessary, United States v.

Munsingwear, 340 U.S. 36, 40 (1950). In short, "the rights of all

parties are preserved," and "none is prejudiced by a decision which

. . . was only preliminary." Id. at 40.

We vacate the district court's judgment and remand with

instructions to dismiss the case. Each party shall bear their own

costs. So ordered.

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