State's Opposition to Motion for Injunction Pending Appeal — Calvary Chapel v. Sisolak (D. Nev.)

Record facts

U.S. District Court for the District of Nevada · No. 3:20-cv-00303-RFB-VCF · Doc. 52 · 2020-06-17 · Docket on CourtListener

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AARON D. FORD 
Attorney General 
CRAIG A. NEWBY (Bar No. 8591) 
  Deputy Solicitor General 
State of Nevada 
Office of the Attorney General 
555 East Washington Avenue, Suite 3900 
Las Vegas, Nevada 89101 
(702) 486-3420 (phone) 
(702) 486-3768 (fax) 
Email: CNewby@ag.nv.gov 
  
Attorneys for State Defendants 
 
UNITED STATES DISTRICT COURT 
 
DISTRICT OF NEVADA 
 
 
CALVARY CHAPEL DAYTON VALLEY 
 
 
Plaintiff, 
 
vs. 
 
STEVE SISOLAK, in his official capacity 
as Governor of Nevada, et al., 
 
Defendants. 
Case No. 3:20-cv-00303-RFB-VCF 
 
 
DEFENDANTS’ OPPOSITION TO 
PLAINTIFF’S MOTION AND 
MEMORANDUM IN SUPPORT OF AN 
INJUNCTION PENDING APPEAL 
 
Pursuant to this Court’s minute order (ECF No. 48), Defendants Steve Sisolak, in 
his official capacity as the Governor of Nevada and Aaron D. Ford, in his official capacity 
as Attorney General of Nevada (collectively “Defendants”) hereby submit the following 
opposition to Plaintiff Calvary Chapel Dayton Valley’s (“Plaintiff” or “Calvary”) June 15, 
2020 “Motion and Memorandum in Support of an Injunction Pending Appeal” (the 
“Motion”).  ECF No. 47. 
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This response is made and based upon all matters of record herein, the 
Memorandum of Points and Authorities submitted herewith, and upon such oral 
arguments as the court may allow at the time of hearing of this matter    
DATED this 17th day of June, 2020. 
AARON D. FORD 
Attorney General 
 
By: /s/ Craig A. Newby 
 
 
 
CRAIG A. NEWBY (Bar No. 8591) 
Deputy Solicitor General 
State of Nevada 
Office of the Attorney General 
555 E. Washington Avenue, Suite 3900 
Las Vegas, NV  89101  
 
  
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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
INTRODUCTION 
This court previously denied Calvary’s motion for a preliminary injunction, following 
full briefing and argument.1  ECF No. 46.  Nothing set forth in this motion warrants this 
court changing its earlier order denying injunctive relief.   
II. 
STANDARD OF REVIEW 
Ordinarily, the filing of a notice of appeal divests a district court of jurisdiction over 
the matters being appealed.  Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 
(1982) (per curiam).  Federal Rule of Civil Procedure 62(c) codifies an exception to this basic 
principle: it allows a district court to “suspend, modify, restore, or grant an injunction on 
terms for bond or other terms that secure the opposing party's rights” while an appeal is 
pending. Fed. R. Civ. P. 62; Nat. Res. Def. Council, Inc. v. Sw. Marine, Inc., 242 F.3d 1163, 
1166 (9th Cir. 2001) (recognizing that a district court “retains jurisdiction during the 
pendency of an appeal to act to preserve the status quo”).   
“Rule 62(c) does not restore jurisdiction to the district court to adjudicate anew the 
merits of the case,” and the “district court's exercise of jurisdiction should not materially 
alter the status of the case on appeal.”  Mayweathers v. Newland, 258 F.3d 930, 935 (9th 
Cir. 2001) (emphasis added).  District courts consider four factors in ruling on Rule 62(c) 
motions: “(1) whether the stay applicant has made a strong showing that he is likely to 
succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; 
(3) whether issuance of the stay will substantially injure the other parties interested in the 
proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 
(1987).2 
 
                            
1 Defendants incorporate by reference their prior briefing on the original motion. 
2 Similarly, this court’s determination is entitled to deference by the Ninth Circuit, 
which reviews a district court's decision denying a request for a preliminary injunction for 
abuse of discretion. Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.2010). “A 
district court abuses its discretion if in denying [such] a request ... it bases its decision on 
an erroneous legal standard or clearly erroneous findings of fact.” Id. Thus, the Ninth 
Circuit's review is “limited and deferential.” Id. 
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Here, for the reasons set forth by this court in its order denying Calvary’s motion for 
preliminary injunction, Calvary will not be able to meet this standard for obtaining an 
injunction pending appeal.   
III. 
LEGAL ANALYSIS 
First, Calvary has not made a showing that they are likely to succeed on the merits, 
much less a strong showing that they are likely to succeed on the merits.  As set forth in 
the court’s order, Nevada’s emergency directives are neutral and generally applicable, such 
that they do not burden Calvary’s First Amendment right to free exercise.  ECF No. 43 at 
8:1. Certain secular activities comparable to in-person church services are subject to more 
stringent restrictions, such that there is not an attempt to specifically target places of 
worship.  Id. at 7:17-24.  There is no evidence in this record indicating selective enforcement 
of Nevada’s emergency directives against Calvary specifically or houses of worship more 
generally.   
Second, Calvary seeks to materially alter the status of the case on appeal by 
obtaining an injunction, in contradiction to the Mayweathers standard.  Calvary has the 
right to appeal this court’s order, subject to the appropriate standard of review.  However, 
it does not have the right to alter the status quo, which remains that the Nevada emergency 
directives are valid and enforceable during this public health emergency.   
Third, Calvary, given it cannot demonstrate a strong likelihood of success on the 
merits, cannot show that it has suffered irreparable harm.  As noted in prior briefing, 
Calvary is already allowed to conduct in-person church services for up to 50 people a 
service, while continuing virtual services.  Simply doubling the number of existing church 
services would allow Calvary to conduct in-person church services for its entire 
congregation.  Particularly where these mass gathering requirements are generally 
applicable, there is no factual basis for concluding that Calvary has or will suffer 
irreparable harm.   
Fourth, granting the injunction will substantially injure Nevada and its citizens 
during this public health emergency.  Here, Calvary presumes it should be treated the same 
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as a business operating in commerce, ignoring the difference between commerce and mass 
gatherings for purposes of COVID-19 risk.  The Supreme Court and the Ninth Circuit have 
rejected ignoring these differences.  In contrast, the Governor has an obligation to protect 
Nevadans’ health and well-being, based on the risk during a once-a-century pandemic.  
Consistent with White House guidelines for mass gatherings, the Governor has 
implemented directives to slowly reopen Nevada to ensure the curve stays flat and that 
there is not a need to revert back to earlier phases that required further sacrifices from all 
Nevadans to remain safe. 
Under such circumstances, the public interest and the harms to Nevada weigh 
against awarding Calvary injunctive relief.   
IV. 
CONCLUSION 
Calvary’s motion for injunction pending appeal should be summarily denied.   
Dated: June 17th, 2020. 
AARON D. FORD 
Attorney General 
 
By: /s/ Craig A. Newby 
 
 
 
CRAIG A. NEWBY (Bar No. 8591) 
Deputy Solicitor General 
State of Nevada 
Office of the Attorney General 
555 E. Washington Avenue, Suite 3900 
Las Vegas, NV  89101  
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CERTIFICATE OF SERVICE 
I certify that I am an employee of the State of Nevada, Office of the Attorney General, 
and that on this 17th day of June, 2020, I electronically filed the foregoing document, 
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION AND MEMORANDUM 
IN SUPPORT OF AN INJUNCTION PENDING APPEAL, with the Clerk of the Court 
by using the CM/ECF system. 
 
Participants in the case who are registered CM/ECF users will be served by the 
CM/ECF system. 
 
 
 
/s/ Kristalei Wolfe     
 
 
Kristalei Wolfe 
 
State of Nevada, 
 
Office of the Attorney General 
Case 3:20-cv-00303-RFB-VCF   Document 52   Filed 06/17/20   Page 6 of 6

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