Calvary Chapel of Bangor v. Mills

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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