Second Circuit order denying emergency injunction (Nov. 9, 2020) — Agudath Israel v. Cuomo (2d Cir.)

Record facts

U.S. Court of Appeals for the Second Circuit · No. 1:20-cv-04834-KAM-RML · Doc. 20 · 2020-11-09 · Docket on CourtListener

Full text

E.D.N.Y. – Bklyn.
20-cv-4834
Matsumoto, J.
20-cv-4844
Garaufis, J.
United States Court of Appeals
FOR THE
SECOND CIRCUIT 
_________________ 
At a stated term of the United States Court of Appeals for the Second 
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, 
in the City of New York, on the 9th day of November, two thousand twenty. 
Present: 
Raymond J. Lohier, Jr., 
Michael H. Park, 
Circuit Judges, 
Jed S. Rakoff,*
Judge. 
Agudath Israel of America, Agudath Israel of Kew Garden Hills, 
Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi 
Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein, 
Plaintiffs-Appellants, 
v. 
20-3572 
Andrew M. Cuomo, Governor of the State of New York, in his 
official capacity, 
Defendant-Appellee. 
The Roman Catholic Diocese of Brooklyn, New York, 
Plaintiff-Appellant, 
v. 
20-3590 
Governor Andrew M. Cuomo, in his official capacity, 
Defendant-Appellee. 
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
Case 1:20-cv-04834-KAM-RML   Document 20   Filed 11/10/20   Page 1 of 5 PageID #: 716

These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic. 
The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths 
in Brooklyn and Queens alone.  In response to a recent spike in cases concentrated in parts of 
Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit 
further spread of the virus in these COVID-19 “hotspots.”   
The executive order directs the New York State Department of Health to identify yellow, orange, 
and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe 
restrictions on activity within each zone.  For example, the order provides that in “red zones,” 
non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, 
schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of 
worship may hold services but are subject to a capacity limit of 25 percent of their maximum 
occupancy or 10 people, whichever is fewer. 
The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel 
of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, 
Steven Saphirstein (collectively, “Agudath Israel”), and The Roman Catholic Diocese of 
Brooklyn, New York (the “Diocese”)—each challenged the executive order as a violation of the 
Free Exercise Clause of the First Amendment.  In each case, the district court denied the 
Appellants’ motion for a preliminary injunction against the enforcement of the order.  The 
Appellants now move for emergency injunctions pending appeal and to expedite their appeals, 
after an applications Judge on our Court denied their requests for an administrative stay, 
No. 20-3572, doc. 30; No. 20-3590, doc. 29. 
Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an 
order “granting an injunction while an appeal is pending” before filing with this Court its present 
motion for an injunction pending appeal.  Fed. R. App. P. 8(a)(1)(C).  Instead, Appellant 
moved for a preliminary injunction pending the district court’s final judgment.  In its briefs and 
at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise 
justified its failure to comply with the straightforward requirement of Rule 8(a).  Agudath Israel 
also has failed to demonstrate that “moving first in the district court would be impracticable,” 
Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days 
elapsed after the district court’s ruling before Agudath Israel sought relief from this Court.  We 
deny Agudath Israel’s motion for these procedural reasons.  See Hirschfeld v. Bd. of Elections in 
N.Y., 984 F.2d 35, 38 (2d Cir. 1993).
We deny the Diocese’s motion for an injunction pending appeal—and would deny the motion 
filed by Agudath Israel if it were properly before us—for the reasons that follow. 
As an initial matter, an injunction is “an extraordinary remedy never awarded as of right.”  
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008).  To obtain an injunction from a district 
court, movants generally bear the burden of showing that (1) they are likely to succeed on the 
merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the 
balance of equities tips in their favor; and (4) an injunction is in the public interest.  Id. at 20.  
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To obtain a stay of a district court’s order pending appeal, more is required, including a “strong 
showing that [the movant] is likely to succeed on the merits.”  New York v. U.S. Dep’t of 
Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020).  The motions at issue here seek a remedy still 
more drastic than a stay: an injunction issued in the first instance by an appellate court.  “Such a 
request demands a significantly higher justification than a request for a stay because, unlike a 
stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial 
intervention that has been withheld by lower courts.”  Respect Maine PAC v. McKee, 562 U.S. 
996, 996 (2010) (quotation marks omitted). 
“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects 
religious observers against unequal treatment and against laws that impose special disabilities on 
the basis of religious status.”  Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) 
(quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health 
& Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects 
the performance of (or abstention from) physical acts that constitute the free exercise of religion: 
assembling with others for a worship service, participating in sacramental use of bread and wine, 
proselytizing, abstaining from certain foods or certain modes of transportation.”) (quotation marks 
omitted)).  But the Free Exercise Clause “does not relieve an individual of the obligation to 
comply with a valid and neutral law of general applicability,” Emp’t Div., Dep’t of Human Res. v. 
Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental 
effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City 
of Hialeah, 508 U.S. 520, 531 (1993). 
“A law burdening religious conduct that is not both neutral and generally applicable, however, is 
subject to strict scrutiny.”  Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531–32).  
“A law is not neutral if it is specifically directed at a religious practice.”  Id. (cleaned up).  
Similarly, a law is “not generally applicable if it is substantially underinclusive such that it 
regulates religious conduct while failing to regulate secular conduct that is at least as harmful to 
the legitimate government interests purportedly justifying it.”  Id. at 197. 
The Court fully understands the impact the executive order has had on houses of worship 
throughout the affected zones.  Nevertheless, the Appellants cannot clear the high bar necessary 
to obtain an injunction pending appeal.  The challenged executive order establishes zones based 
on the severity of the COVID-19 outbreaks in different parts of New York.  Within each zone, 
the order subjects religious services to restrictions that are similar to or, indeed, less severe than 
those imposed on comparable secular gatherings.  See S. Bay United Pentecostal Church v. 
Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive 
relief to houses of worship that were subject to similar or less severe restrictions than those 
applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v. 
Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious 
gatherings at ten people where the most comparable activities—those “that occur in auditoriums, 
such as concerts and movies”— had been banned completely); cf. Commack Self-Serv. Kosher 
Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling 
act was a neutral and generally applicable law subject to rational basis review because it applied 
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to “food purchased by individuals of many different religious beliefs” and impacted consumers 
who purchased kosher products “for reasons unrelated to religious observance”).   
Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the 
order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, 
and comparable secular public gatherings.  Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo 
criticizing the order’s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not 
“a scalpel”).  To the contrary, the executive order “extend[s] well beyond isolated groups of 
religious adherents” to “encompass[] both secular and religious conduct.”  Cent. Rabbinical, 
763 F.3d at 195. 
In a dissent from this Court’s order, our colleague asserts that the executive order is subject to 
strict scrutiny because it violates the minimum requirement of neutrality.  The fact that theaters, 
casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights 
the fact that the order is not neutral towards religion.”  But this view is undermined by recent 
precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with 
or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause. 
See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d] 
restrictions on places of worship” less severe than those on comparable gatherings “appear 
consistent with the Free Exercise Clause”); see also Elim, 962 F.3d at 347 (same). 
The dissent attempts to distinguish South Bay as having been decided during the early stages of 
the pandemic while local governments were actively shaping their response to changing facts on 
the ground.  But here, too, the executive order is a response to rapidly changing facts on the 
ground.  For several months, New York’s “limits and restrictions lessen[ed] and evolve[d] as the 
curve continue[d] to flatten,” and the State’s “limits and restrictions . . . increase[d]” only when 
“a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the] 
cluster areas” targeted by the challenged executive order.  No. 20 Civ. 4834 (KAM) (E.D.N.Y. 
2020), doc. 12 at 14, 18–19.  In any event, South Bay did not draw a distinction between the 
pandemic in its early or late stage.  Its central relevant facts exist in New York in November 
2020 just as they existed in California in May 2020:  There is no vaccine or known cure for 
COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people 
may be infected but asymptomatic, they may unwittingly infect others.”  S. Bay, 140 S. Ct. at 
1613 (Roberts, C.J., concurring). 
Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’ 
motions for injunctions pending appeal are DENIED.  Among other infirmities in their arguments, 
the Appellants have failed to meet the requisite standard for an injunction pending appeal.  See 
New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214.  It is further ORDERED that the 
motion to expedite the appeals is GRANTED.   
We address here only the Appellants’ motions for injunctions pending appeal and to expedite their 
appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary 
injunctive relief.  With respect to the underlying appeals, the parties have agreed to the following 
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5 
FOR THE COURT: 
Catherine O’Hagan Wolfe, Clerk of Court 
merits briefing schedule:  Appellants’ briefs are due Tuesday, November 17, 2020; Appellee’s 
brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14, 
2020, and the matter is to be calendared as early as the week of December 14, 2020. 
Judge Park dissents from the denial of the motions for injunctions pending appeal. 
Case 1:20-cv-04834-KAM-RML   Document 20   Filed 11/10/20   Page 5 of 5 PageID #: 720

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