Calvary Chapel of Bangor v. Mills ( 2020 )

United States Court of Appeals
For the First Circuit
No. 20-1507
CALVARY CHAPEL OF BANGOR,
Plaintiff, Appellant,
v.
JANET T. MILLS, in her official capacity as Governor of the
State of Maine,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Roger K. Gannam, with whom Mathew D. Staver, Horatio G. Mihet,
Daniel J. Schmid, and Liberty Counsel were on brief, for appellant.
Stephen M. Crampton and Thomas More Society on brief for
Emmanuel Bible Baptist Church, Grace Community Chapel, First
Church of Waterville, New Hope Evangelical Free Church, Athens
Church of the Open Bible, Faith Bible Church, Cherryfield Church
of the Open Bible, Calvary Chapel St. Croix Valley, Life Community
Church, Hosanna Church, First Baptist Church of Waldoboro,
Guilford Christian Fellowship, The Rock Church of Bangor, New Hope
Evangelical Free Church, Charleston Church, Centerpoint Community
Church, Clinton Baptist Church, St. Albans Union Church, New
Beginnings Church of God, Machias Valley Baptist, and Stetson Union
Church, amici curiae.
Stephen C. Whiting and The Whiting Law Firm on brief for
Adrienne Bennett, amicus curiae.
Christopher C. Taub, Deputy Attorney General, with whom Aaron
M. Frey, Attorney General, and Sarah A. Forster, Assistant Attorney
General, were on brief, for appellee.
Alex J. Luchenitser, Richard B. Katskee, Kenneth D. Upton,
Jr., Sarah R. Goetz, David A. Soley, James G. Monteleone, and
Bernstein Shur on brief for Americans United for Separation of
Church and State, amicus curiae.
Alex J. Luchenitser, Richard B. Katskee, Kenneth D. Upton,
Jr., Sarah R. Goetz, David A. Soley, James G. Monteleone, Bernstein
Shur, Steven M. Freeman, David L. Barkey, Amy E. Feinman, Jeffrey
I. Pasek, and Cozen O'Connor on brief for Americans United for
Separation of Church and State, Anti-Defamation League, Bend the
Arc, Central Conference of American Rabbis, Interfaith Alliance
Foundation, Jewish Social Policy Action Network, Maine Conference,
United Church of Christ, Men of Reform Judaism, Methodist
Federation for Social Action, National Council of the Churches of
Christ in the USA, Reconstructionist Rabbinical Association, Union
for Reform Judaism, and Women of Reform Judaism, amici curiae.
December 22, 2020
SELYA, Circuit Judge. This interlocutory appeal arises
out of the chaotic early weeks of the COVID-19 pandemic.
Defendant-appellee Janet T. Mills, the Governor of Maine,
responded to the growing threat of contagion by issuing a series
of executive orders limiting all "non-essential" activities and
gatherings, arguably including those by religious organizations.
In the court below, plaintiff-appellant Calvary Chapel of Bangor
(the Chapel) contended that these orders violated several federal
and state constitutional and statutory provisions, including,
principally, the Free Speech, Free Exercise, Assembly, and
Establishment protections of the First Amendment. See U.S. Const.
amend. I. The district court found the Chapel's contentions
wanting and refused its request for a temporary restraining order.
See Calvary Chapel of Bangor v. Mills, 459 F. Supp. 3d 273, 283-
288 (D. Me. 2020).
In this venue, the Chapel renews its substantive claims
and asserts that the district court abused its discretion by
denying the Chapel's request for immediate relief. But a
jurisdictional barrier looms at the threshold, which prevents us
from reaching the substance of the Chapel's contentions.
Consequently, we dismiss the appeal without prejudice for lack of
appellate jurisdiction.
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I. BACKGROUND
We draw the facts from the limited record available in
the district court, including the Chapel's verified complaint and
accompanying motion, the Governor's response, and the various
exhibits proffered by the parties. The Chapel is a nonprofit
religious organization that operates an approximately 10,000-
square-foot church facility in Orrington, Maine. By all accounts,
the onset of the COVID-19 pandemic in early 2020 significantly
disrupted the Chapel's usual routine of staging weekly worship
services and other in-person activities for its congregants.
COVID-19 is a respiratory illness caused by a novel (and
highly transmissible) coronavirus known as SARS-CoV-2. The first
outbreak of the disease was identified in Wuhan City, China, during
December of 2019. The virus spread worldwide with alarming speed.
The United States Department of Health and Human
Services declared the coronavirus a national public health
emergency on January 31, 2020, retroactive to January 27. Governor
Mills proclaimed a corresponding state of civil emergency in Maine
on March 15.
The Governor's emergency proclamation was the first in
a rapid-fire series of executive actions designed to prevent and/or
slow the spread of the virus among Maine residents. Early on, in-
person gatherings (particularly those involving dense crowds or
extended exposure to other persons) were identified as a major
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vector of transmission. Citing the need to limit the propagation
of the virus through such gatherings, Governor Mills issued a
series of four executive orders between March 18 and April 29,
2020, which imposed emergency regulations on assembly within the
state. We chronicle them briefly:
 Executive Order 14, issued on March 18, prohibited
gatherings of more than ten people for any "social,
personal, [or] discretionary events," including
"faith-based events."
 Executive Order 19, issued on March 24, authorized
"Essential Businesses and Operations" to exceed the
ten-person gathering limit; subject, however, to
social distancing and sanitation guidelines.
 Executive Order 28, issued on March 31, directed
all persons residing in Maine to "stay at their
homes or places of residence," except as needed to
engage in "essential" employment or activities.
This exception captured tasks deemed critical for
resident health and safety, including (as
illustrated in the order) accessing childcare,
shopping for household supplies, and obtaining
physical or behavioral medical treatment.
 Executive Order 49, issued on April 29, provided
for implementation of Governor Mills's plan to
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restart Maine's economy — a staggered (four-phase)
relaxation of the earlier restrictions.
For ease in exposition, we refer to this quartet of executive
orders as the "gathering orders" and to the April 29 order as
promulgating "the re-opening plan."
The dispute between the parties erupted at 8:30 p.m. on
May 4, at which time the Chapel e-mailed a communique to Governor
Mills, insisting that the gathering orders be revoked by 1:00 p.m.
the following day. Receiving no response within the stipulated
time frame, the Chapel sued Governor Mills in Maine's federal
district court on May 5. Its verified complaint alleged that the
gathering orders transgressed ten different provisions of federal
and state law, both constitutional and statutory.1 On the heels
of this filing, the Chapel moved for a temporary restraining order
or, in the alternative, a preliminary injunction.
Two days later, the district court convened a telephone
conference with the parties. We have no transcript of that
1 The Chapel claimed violations of the Free Exercise Clause
of the First Amendment (Count I); the First Amendment right to
peaceful assembly (Count II); the Free Speech Clause of the First
Amendment (Count III); the Establishment Clause of the First
Amendment (Count IV); the Equal Protection Clause of the Fourteenth
Amendment (Count V); the Guarantee Clause of Article IV (Count
VI); the Maine Constitution's guarantee of free exercise of
religion (Count VII); the Maine Constitution's freedom of speech
guarantee (Count VIII); legislative prerogatives (Count IX); and
the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§§ 2000cc-2000cc-5 (Count X).
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conference, but Governor Mills apparently agreed to file an
expedited response to the Chapel's request for some sort of interim
injunctive relief. The Governor submitted an opposition to the
Chapel's motion at the close of business the following day. On
May 9, the district court issued a thoughtful rescript, in which
it denied the Chapel's request for a temporary restraining order.
See Calvary Chapel, 459 F. Supp. 3d at 288. The Chapel did not
press for a hearing on preliminary injunction but, rather, filed
this appeal.
II. ANALYSIS
"[F]ederal courts have an omnipresent duty to take
notice of jurisdictional defects, on their own initiative if
necessary." Whitfield v. Mun. of Fajardo, 564 F.3d 40, 44 (1st
Cir. 2009). We start — and end — there.
The denial of a temporary restraining order is not
ordinarily appealable, save for certain "narrow exceptions."
Mass. Air Pollution & Noise Abatement Comm. v. Brinegar, 499 F.2d
125, 126 (1st Cir. 1974). The parties — who agree on little else
— urge us to find that the district court's denial of the temporary
restraining order in this case qualifies under one such exception.
In other words, they stand united in asking us to hold that we
have appellate jurisdiction. We are not so sanguine.
It is common ground that subject matter jurisdiction
cannot be conferred on a federal court by the parties' agreement
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alone. See Espinal-Domínguez v. Puerto Rico, 352 F.3d 490, 495
(1st Cir. 2003). We must, therefore, mount an independent inquiry
into the existence vel non of appellate jurisdiction.
As a general rule, the jurisdiction of the court of
appeals is limited to "appeals from . . . final decisions of the
district courts." 28 U.S.C. § 1291. Of course, this general rule
— like most general rules — admits of exceptions. As relevant
here, Congress has fashioned an exception that gives the courts of
appeals immediate appellate jurisdiction over appeals from non-
final district court orders "granting, continuing, modifying,
refusing or dissolving injunctions." Id. § 1292(a)(1). The
parties identify this exception as the hook upon which appellate
jurisdiction may be hung.
This is a heavy lift: the denial of a temporary
restraining order does not normally fall within the compass of
section 1292(a)(1). See S.F. Real Est. Inv'rs. v. Real Est. Inv.
Tr. of Am., 692 F.2d 814, 816 (1st Cir. 1982) (explaining that
"the term 'injunction' is understood not to encompass temporary
restraining orders"). Even so, if an appellant can make a three-
part showing — demonstrating that the refusal of a temporary
restraining order had the practical effect of denying injunctive
relief, will likely cause serious (if not irreparable) harm, and
can only be effectually challenged by means of an immediate appeal
— section 1292(a)(1) may be invoked. See Watchtower Bible & Tract
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Soc'y of N.Y., Inc. v. Colombani, 712 F.3d 6, 12 (1st Cir. 2013);
Fideicomiso De La Tierra Del Caño Martín Peña v. Fortuño, 582 F.3d
131, 133 (1st Cir. 2009) (per curiam). We examine the Chapel's
showing on each of these three parts separately, mindful that it
is the Chapel's burden to carry the devoir of persuasion on each
of them and that a failure to do so on any one part is fatal. See
Watchtower Bible, 712 F.3d at 12; Nwaubani v. Grossman, 806 F.3d
677, 680 (1st Cir. 2015).
The Chapel contends that the district court's decision
to deny it a temporary restraining order functionally precluded
any possibility of a preliminary injunction. This contention
elevates hope over reason.
We previously have held that we will deem a ruling to
have had the practical effect of denying injunctive relief either
if it was issued after a full adversarial hearing or if no further
interlocutory relief is available in the absence of immediate
review. See Fideicomiso De La Tierra, 582 F.3d at 133. It strains
credulity to call what happened below a "full adversarial hearing."
The district court heard the parties only in a telephone conference
of indeterminate length; no verbatim record was kept of what was
said during the conference; no discovery was conducted in advance
of the conference; no witnesses were called during the conference;
and the court did not ask to hear from the Chapel after the Governor
filed her opposition. To say that what happened was a "full"
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adversarial hearing would be like saying that a CliffsNotes version
of War and Peace was a "full" account of Tolstoy's original work.
What walks like a duck and squawks like a duck usually is a duck,
and we see no reason to disregard the district court's unambiguous
description of itself as adjudicating only the Chapel's motion for
a temporary restraining order.2 See, e.g., Calvary Chapel, 459 F.
Supp. 3d at 277 (describing issue sub judice as "[the Chapel's]
Motion for Temporary Restraining Order, which seeks emergency
relief before Sunday, May 10, 2020"). Indeed, we think that the
district court's cautious choice to limit its order solely to the
denial of a temporary restraint accurately reflected the absence
of a full adversarial hearing.
In addition, the sparseness of the record argues
powerfully in favor of a finding that pathways for further
interlocutory relief remained available in the district court.
See, e.g., id. at 281 n.11 (noting that record lacks "any
information about the number of members Calvary Chapel has or the
number of members who regularly attend its worship services"); id.
at 277 n.2 (declining to consider amicus brief "[b]ecause of the
tight timelines, and because [the Chapel] has not had time to file
2
Even if these circumstances qualified as a close call — and
we do not believe that they do — our settled practice when
confronted with borderline cases is to "resolve[] against
immediate appealability." Morales Feliciano v. Rullan, 303 F.3d
1, 7 (1st Cir. 2002).
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any opposition to the amicus motion"); id. at 287 (noting that the
Chapel failed to develop its argument "that the orders foster
government entanglement with religion"). These comments and gaps
in the record suggest that a preliminary injunction hearing would
not have been either a redundancy or an exercise in futility. And
whether or not a better-informed proceeding would have yielded a
different outcome — a matter that is left entirely to speculation
on this truncated record — the intervening development of the
record would have facilitated subsequent appellate review. As
matters now stand, the parties dispute key factual questions —
including whether Maine classified religious gatherings as
essential activity for purposes of Executive Order 28 or would
have permitted gatherings at essential businesses — that the
district court has not yet assessed. Finally, the denial of a
preliminary injunction would have been immediately appealable
under section 1292(a)(1), thus affording the Chapel an avenue for
timely appellate review.
To say more about the first requirement for immediate
appealability would be to paint the lily. The record makes
manifest that this case, in its present posture, does not display
the criteria that we previously have identified as characterizing
a de facto denial of injunctive relief. See Fideicomiso De La
Tierra, 582 F.3d at 133.
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The fact that the Chapel stumbles at the first step of
the tripartite inquiry is sufficient to defeat its claim of
appellate jurisdiction. See Watchtower Bible, 712 F.3d at 12;
Nwaubani, 806 F.3d at 680. For the sake of completeness, though,
we note that the remaining requirements for appealability are not
satisfied here.
To begin, we do not believe that the lack of immediate
appealability can be said to cause serious harm. Although we do
not gainsay that even a temporary restriction of traditional in-
person worship opportunities may represent a tangible hardship for
religious organizations and their members, the seriousness of any
given harm can only be assessed in context. Jumping from a second-
story window undoubtedly entails a risk of serious harm, but the
harm may seem less serious if the jumper's only other choice is to
remain in a burning building. Here, the need for context requires
that a significant countervailing factor must be included in the
mix: the harm of which the Chapel complains has its origins in
the extraordinary epidemiological crisis that has engulfed Maine
and every other part of the United States. This countervailing
factor necessarily informs our assessment of the severity of the
harm that the Chapel faced as a result of the district court's
denial of its motion for a temporary restraining order. See Carson
v. Am. Brands, Inc., 450 U.S. 79, 86 (1981).
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Let us be perfectly clear: public officials do not have
free rein to curtail individual constitutional liberties during a
public health emergency. See Roman Catholic Diocese of Brooklyn
v. Cuomo, No. 20A87, 2020 WL 6948354, at *3 (U.S. Nov. 25, 2020)
(per curiam) (stating that "even in a pandemic, the Constitution
cannot be put away and forgotten"); Jacobson v. Massachusetts, 197
U.S. 11, 31 (1905) (discussing courts' duty to intervene when
legislative action lacks "real or substantial relation" to public
health outcomes, or otherwise represents a "plain, palpable
invasion" of constitutional rights). Even so, the public interest
demands that public officials be accorded considerable latitude to
grapple with the "dynamic and fact-intensive" considerations
involved in mounting an effective response. S. Bay United
Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020)
(Roberts, C.J., concurring). Carefully balancing these
considerations against the encroachment on the rights of the Chapel
and its members, the district court determined that the gathering
restrictions would not inflict irreparable harm. See Calvary
Chapel, 459 F. Supp. 3d at 288.
This supportable determination helps to clarify that the
absence of immediate appealability — like the denial of the
temporary restraining order itself — will not cause serious harm.
Given the gravity of the situation and the fact that events
remained in flux, we discern no sufficient basis for finding that
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the Chapel can satisfy the second of the three requirements for
immediate appealability of a temporary restraining order. In this
regard, we deem it important that the Chapel retained other means
to organize worship services for its congregants, including the
sponsorship of online worship services, the holding of drive-in
services, and the hosting of gatherings of ten or fewer people.
See id. at 285. While these options are less than ideal, their
availability mitigated the harm to the Chapel and its worship
community during the short run.
Nor has the Chapel demonstrated that effective appellate
review of the constitutionality of the gathering orders, as those
orders affect the Chapel, will be thwarted if the Chapel's ability
to challenge them is confined to traditional litigation channels.
See, e.g., Navarro-Ayala v. Hernandez-Colon, 956 F.2d 348, 350
(1st Cir. 1992). We recognize, of course, that idiosyncratic
circumstances can render an attempted challenge to an
interlocutory order "insusceptible of effective vindication" when
subject to appreciable delay. Quiros Lopez v. Unanue Casal (In re
Unanue Casal), 998 F.2d 28, 32 (1st Cir. 1993). Examples of such
circumstances include an interlocutory order that would cause
"trade secrets [to] be revealed," Chronicle Publ'g Co. v. Hantzis,
902 F.2d 1028, 1031 (1st Cir. 1990), or one that would
"irretrievably" deprive a party of "an important tactical
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litigation advantage," Kartell v. Blue Shield of Mass., Inc., 687
F.2d 543, 552 (1st Cir. 1982).
The case at hand is woven from quite different cloth.
The district court's denial of the temporary restraining order did
not herald an irreversible or meaningful shift in the relationship
between the parties. Instead, the denial merely kept in place the
same gathering restrictions under which the Chapel already was
operating. Cf. Cobell v. Kempthorne, 455 F.3d 317, 322-23 (D.C.
Cir. 2006) (vacating injunctive order because it imposed new
obligations on a litigant that "[were] not correctable at the end
of the litigation").
Here, moreover, the effect of the denial was of modest
temporal duration. The Chapel had available to it the option of
pressing for a hearing on preliminary injunction — and there is
every reason to believe, especially given the district court's
prompt attention to the Chapel's request for a temporary
restraining order — that such a hearing would have been held
expeditiously. Had the Chapel prevailed in its quest for a
preliminary injunction, the harm of which it complains would have
been abated; and had the Chapel not prevailed, the order denying
a preliminary injunction would have been immediately reviewable.
See 28 U.S.C. § 1292(a)(1). Either way, the Chapel has failed to
make the third showing required for immediate appealability of
the denial of a temporary restraining order.
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We need go no further. "Federal courts are courts of
limited jurisdiction." Rhode Island v. EPA, 378 F.3d 19, 22 (1st
Cir. 2004). Thus, jurisdictional boundaries must be scrupulously
observed. See Sierra Club v. Marsh, 907 F.2d 210, 214 (1st Cir.
1990); In re Recticel Foam Corp., 859 F.2d 1000, 1006 (1st Cir.
1988). As a general rule, the denial of a temporary restraining
order is not immediately appealable, see S.F. Real Est. Inv'rs,
692 F.2d at 816, and thus falls outside the boundaries of our
appellate jurisdiction. This appeal comes within the sweep of
the general rule, not within the long-odds exception to it.
Although we appreciate the importance of the issues that the
Chapel seeks to raise, its appeal is premature, and there is no
principled way for us to reach the merits of the appeal.
III. CONCLUSION
For the reasons elucidated above, the Chapel's appeal is
dismissed without prejudice for lack of appellate jurisdiction.
The parties shall bear their own costs.
So Ordered.
— Concurring Opinion Follows —
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BARRON, Circuit Judge, concurring in part and concurring
in the judgment. I agree that the denial of the temporary
restraining order in this case did not have the practical effect
of denying a preliminary injunction. Because that conclusion
suffices to explain why the denial of the temporary restraining
order in this case is not appealable, I would not go on to address
the counterfactual question of whether the denial would have been
appealable if it did have the practical effect of denying a
preliminary injunction. Especially when we are explaining why we
lack jurisdiction over an appeal from an order denying relief from
an alleged violation of constitutional rights brought about by
emergency legislation, I see little reason to speak more broadly
than necessary.
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