First Circuit Opinion — Calvary Chapel of Bangor v. Mills, No. 20-1507 (Dec. 22, 2020) (1st Cir.)

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U.S. Court of Appeals for the First Circuit · No. 20-1507 · Doc. 00117684624 · 2020-12-22 · Docket on CourtListener

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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. 
 
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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 
 
 
 
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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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