*

Honorable James L. Foreman, Senior U.S. District Judge for

the Southern District of Illinois, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-5114.

Armin GROSZ, Sarah Grosz, Plaintiffs-Appellants,

v.

CITY OF MIAMI BEACH, FLORIDA, Defendant-Appellee.

May 9, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-2332-FAM), Federico A. Moreno, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN*

, Senior

District Judge.

EDMONDSON, Circuit Judge:

Armin and Sara Grosz appeal the Rule 12(b)(6) dismissal of

their Religious Freedom Restoration Act claim for declaratory and

injunctive relief. We vacate the order dismissing their complaint

and remand for further proceedings.

Armin Grosz is an Orthodox Jewish Rabbi who lives in the City

of Miami Beach with his wife, Sara. Both Armin and Sara Grosz are

plaintiffs below and are appellants here; for convenience we will

usually refer to Armin Grosz only when discussing these parties.

Members of Grosz's sect come to his home to pray because they

believe their prayers are more readily answered when their prayers

are recited with Grosz, who is known as a pious rabbi. Conducting

"organized, publicly attended, religious services" where the

Grosz's house is located is forbidden by the City's zoning

ordinances.
Over ten years ago, Grosz obtained—on First Amendment Free

Exercise grounds—summary judgment enjoining the operation of this

same zoning ordinance. But that judgment was overturned in Grosz

v. City of Miami Beach (Grosz I), 721 F.2d 729 (11th Cir.1983).

The Grosz I appeals court concluded that the burden on the City if

it allowed Grosz's conduct outweighed the burden on the Grosz's

free exercise interest. Grosz I, 721 F.2d at 741. Thus, the Grosz

I court concluded there was no Free Exercise violation. The City

did not—until 1993—see fit to enforce the ordinance against Grosz.

In 1990, the Supreme Court decided Employment Div., Dept. of

Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595,

108 L.Ed.2d 876 (1990). In Smith the Court held that

religion-neutral laws of general application do not violate the

Free Exercise Clause. Seemingly acting with intent to undo the

effect of Smith, Congress enacted the Religious Freedom Restoration

Act (RFRA), which—in pertinent part—provides:

Government shall not substantially burden a person's exercise

of religion even if the burden results from a rule of general

applicability, except ... if it demonstrates that application

of the burden to the person—(1) is in furtherance of a

compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental

interest.

42 U.S.C. § 2000bb-1(a)-(b).

In 1993, Miami Beach notified Grosz that the City intended to

enforce its zoning and to stop certain religious activity at

Grosz's house. In response, Grosz and his wife filed for

declaratory and injunctive relief under RFRA. At the pleadings

stage, the district court concluded that the Groszes were

collaterally estopped from making these claims due to their loss in
 1

The City does not argue that RFRA is unconstitutional. 

Grosz I and dismissed their complaint under Rule 12(b)(6). We

vacate and remand for further proceedings.

 Collateral estoppel can foreclose relitigation of an issue of

fact or law where that identical issue has been fully litigated and

decided in a prior suit. See I.A. Durbin, Inc. v. Jefferson Nat'l

Bank, 793 F.2d 1541, 1549 (11th Cir.1986) (listing elements of

collateral estoppel). The issue in this case that is said to have

been litigated in Grosz I is RFRA's threshold requirement that the

City "substantially burden a person's exercise of religion." See

42 U.S.C. 2000bb-1(a).

Miami Beach says this case is "textbook collateral estoppel"

because the Grosz I court evaluated the burden that the zoning

placed on Grosz's exercise of religion and necessarily concluded

the burden was not very great. See 721 F.2d at 739.1

 The Grosz I

court observed Miami Beach allowed religious services in all areas

except those zoned for single-family use and concluded the burden

imposed by the ordinance was that Grosz would have to conduct his

services in another part of the city. Id. at 739. And, while the

Grosz I court did not specifically term the burden "insubstantial,"

it did say "[i]n comparison to the religious infringements analyzed

in previous free exercise cases the burden here stands towards the

lower end of the spectrum." Id. & n. 9 (comparing burden on Grosz

to burden in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10

L.Ed.2d 965 (1963) and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct.

1144, 6 L.Ed.2d 563 (1961)).

Grosz I also agreed with the Sixth Circuit's characterization
in Lakewood Congregation of Jehovah's Witnesses, Inc. v. City of

Lakewood, 699 F.2d 303 (6th Cir.1983), of a similar zoning law as

an "inconvenient economic burden." Grosz I, 721 F.2d at 740. And,

Grosz I relied on American Communications Ass'n, C.I.O. v. Douds,

339 U.S. 382, 396, 70 S.Ct. 674, 683, 94 L.Ed. 925 (1950), where

the Supreme Court termed "relatively small" the burden on free

exercise created by an ordinance excluding churches from

residential areas.

Grosz responds that RFRA now requires litigation of a

statutory issue sufficiently different from the constitutional

issue actually litigated in Grosz I to prevent application of

collateral estoppel. He says this view is correct especially given

the confusion surrounding constitutional claims litigated before

Smith, see Grosz I, 721 F.2d at 741 (observing threat of "doctrinal

confusion" in free exercise cases), and the relative clarity of the

analysis commanded by RFRA.

 We agree with Grosz. The issue "actually litigated" in Grosz

I was whether the burden (whatever it might be) on Grosz's free

exercise rights outweighed the burden on the City if its zoning

ordinance was not enforced. Today, the issue which first must be

litigated is whether, under RFRA, the government has "substantially

burden[ed]" Grosz's exercise of religion. These issues are not

identical—even though pre- Smith cases may help interpret RFRA.

While the statute and legislative history indicate Congress

possibly wanted just to return to pre-Smith law through enacting

RFRA, Congress chose certain words to effectuate this intent.

Where Congress chooses certain words, these words govern our
 2

Because we conclude that this suit under RFRA presents an

issue different from the constitutional issue litigated in Grosz

I, we do not separately discuss whether RFRA is a "change in the

law" preventing the application of collateral estoppel where the

doctrine otherwise might apply. See generally, North Georgia

Elec. Membership Corp. v. City of Calhoun, 989 F.2d 429, 433-35

(11th Cir.1993).

Also, about 15 years now have passed since the events

giving rise to the Grosz I litigation occurred. Collateral

estoppel "is not meant to create vested rights in decisions

that have become obsolete or erroneous with time ..."

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591,

599, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948); see also

International Shoe Mach. Corp. v. United Shoe Machinery

Corp., 315 F.2d 449, 455 (1st Cir.1963) (observing "passage

of time may evoke change of circumstances which preclude the

creation of an estoppel.") Sometimes a litigant might

deserve an opportunity to develop facts showing a change in

circumstances. But, again, because the issues to be

litigated in this case are not the same as those in Grosz I,

we do not decide the case on this passage-of-time point. 

analysis.

 The present case involves largely a question of statutory

construction. And, the meaning of the words "substantially

burden," as those words were used by Congress in RFRA, was not

litigated in Grosz I. Cf. Third Nat'l. Bank of Louisville v.

Stone, 174 U.S. 432, 434, 19 S.Ct. 759, 760, 43 L.Ed. 1035 (1899)

("A question cannot be held to have been adjudged before an issue

on the subject could possibly have arisen.").2

The judgment of the district court dismissing this complaint

is vacated. The case is remanded for further proceedings.

VACATED and REMANDED.