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.
*
Honorable James L. Foreman, Senior U.S. District Judge for
the Southern District of Illinois, sitting by designation.
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
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
1
The City does not argue that RFRA is unconstitutional.
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" inGrosz
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
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.
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.