Calvary Chapel of Bangor v. Mills

United States Court of Appeals
For the First Circuit
No. 21-1453

CALVARY CHAPEL OF BANGOR,

Plaintiff, Appellant,

v.

JANET 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

Barron, Chief Judge,
Lynch and Thompson, Circuit Judges.

Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam,
Daniel J. Schmid, and Liberty Counsel were on brief, for appellant.
Sarah A. Forster, Assistant Attorney General, with whom Aaron
M. Frey, Attorney General, and Christopher C. Taub, Chief Deputy
Attorney General, were on brief, for appellee.

October 31, 2022
 THOMPSON, Circuit Judge. COVID-19 cases often force

courts to decide difficult questions about how states use their

powers against others. Not so here, however. The case is moot,

as our de novo review of the matter shows, see Bos. Bit Labs, Inc.

v. Baker ("Bos. Bit Labs"), 11 F.4th 3, 8 (1st Cir. 2021) — and no

mootness exception can save it.

I

The parties — Calvary Chapel of Bangor ("Calvary") on

one side, Maine Governor Janet Mills ("the Governor") on the other

— do not really dispute the basic background events.

A

After the outbreak of COVID-19 in early 2020, the

Governor declared a state of emergency. And invoking her emergency

powers, she penned a series of orders to help slow the virus's

spread (fyi, she issued proclamations renewing the state of

emergency every 30 days — until, as we will see, the state of

emergency ended in June 2021). We summarize the most salient of

these.

Executive Order 14 FY 19/20, issued March 18, banned

"[g]atherings of more than 10 people" for any "social, personal,

[or] discretionary events" — including, for example, "community,

civic, public, leisure, and faith-based events" (emphasis ours).

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 Issued March 24, Executive Order 19 FY 19/20 allowed

"[e]ssential [b]usinesses and [o]perations" — "pharmacy and other

medical, psychiatric, and long-term care facilities," "grocery and

household goods," and "gas stations and laundromats" are just a

few examples — to go beyond the 10-person-gathering cap, subject

to social distancing and sanitation guidelines. "Non-essential

businesses" — among them "shopping malls, theaters, casinos,

fitness and exercise gyms" — could do limited activities that

"d[id] not allow customer, vendor or other visitor in-person

contact," "d[id] not require more than 10 workers to convene in

space where social distancing is not possible," and "[were]

facilitated to the maximum extent practicable by employees working

remotely." Of importance here, the exemption for "essential

businesses" did not (to quote Calvary's complaint) apply to "faith-

based gatherings of more than 10 people."

Executive Order 28 FY 19/20, issued March 31, instructed

"[a]ll persons" residing in Maine "to stay at their homes or places

of residence," except as needed "[t]o conduct or participate in

[e]ssential" employment or activities. This exception covered

activities considered critical to public "health and safety," like

"accessing child care, seeking medical or behavioral health or

emergency services," visiting "[f]ood [b]anks and [f]ood

[p]antries," and shopping for "household" necessities. The order

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also set customer limits based on the facilities' square footage

— 5 people for buildings less than 7,500 square feet, 15 people

for buildings between 7,500 and 25,000 square feet, 50 people for

buildings between 25,000 and 50,000 square feet, 75 people for

buildings between 50,000 and 75,000 square feet, and 100 people

for buildings more than 75,000 square feet. Also of importance

here, "[t]he exemption allowing 'essential' businesses to operate

subject to numerical limitations" (to again quote Calvary's

complaint) "was not applicable to faith-based gatherings or

churches, regardless of the size of the building in which such

worship services take place."1

Issued April 29, Executive Order 49 FY 19/20 directed

Maine's department of economic and community development to

implement a four-stage plan to re-open the economy — "identify[ing]

businesses and activities where current restrictions may be

adjusted" and granting "conditional approval consistent with" the

plan, though acknowledging that "[a]ny such approval is . . .

subject to suspension or revocation depending upon actual and

1 Back to food banks and pantries for a minute. Calvary's
brief tells us that the Governor's orders let Calvary's pastor,
members, and volunteers "travel to and from their homes to
Calvary['s] . . . facility . . . to provide food for those in need
of food, shelter, [and] counseling" but barred Calvary "from
offering" in the "same church building" the kind of "religious
worship services" necessary for congregants to celebrate their
faith (bold type omitted).
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consistent compliance with such conditions." Noting how the

"tireless efforts and decisive action by people across Maine"

seemed "to be flattening the curve against COVID-19," the plan (we

offer a few highlights) discarded the "essential v. non-essential"

labels and eased past restrictions. Envisioning a 10-person-

gathering limit, stage 1 (to start May 2020) allowed the re-opening

of certain businesses under industry-specific checklist standards.

Stage 1 anticipated "[l]imited drive-in, stay-in-your-vehicle

church services." Stage 2 (to start June 2020) contemplated a 50-

person-gathering limit and more businesses that could re-open.

Stage 3 (to start July or August 2020) foresaw keeping the 50-

person-gathering limit but allowing more businesses to re-open.

And stage 4 (to start at a date to be determined) expected "[a]ll

businesses" to re-open. The plan did say, though, that "[i]f the

COVID-19 situation worsens in Maine for any reason, the state will

move quickly to either halt progress or return to an earlier

stage."

Consistent with past practice, "we refer to this quartet

of executive orders as the 'gathering orders' and to the April 29

order as promulgating 'the re-opening plan.'" See Calvary Chapel

of Bangor v. Mills ("Calvary I"), 984 F.3d 21, 26 (1st Cir. 2020),

cert. denied, 142 S. Ct. 71 (2021).

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 B

Not long after in early May 2020, Calvary sued the

Governor in federal court. Simplifying slightly, the complaint —

raising many facial and as-applied constitutional and statutory

challenges — essentially claimed that the gathering orders

discriminated against Calvary by "prohibit[ing]" Calvary "from

hosting its in-person religious worship services" while letting

"businesses" run "without the onerous restrictions imposed on

Calvary." And the complaint (as relevant here) requested a

temporary restraining order, a preliminary injunction, a permanent

injunction, and a declaratory judgment.2

On the same day it filed the complaint, Calvary moved

for a temporary restraining order and ultimately a preliminary

2 As Calvary I helpfully explained, the complaint alleged

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).

See 984 F.3d at 26 n.1.
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injunction. The district judge, however, denied Calvary's bid for

a temporary restraining order. Rather than pushing for a hearing

on its preliminary-injunction request, Calvary immediately

appealed. But we later dismissed that appeal for lack of

jurisdiction. See id. at 25.

C

Meanwhile, the Governor issued more executive orders in

late spring and early fall of 2020. Of note are these.

Issued on May 29, Executive Order 55 FY 19/20 upped the

gathering limit from 10 to 50 effective June 1.

Executive Order 14 FY 20/21, issued October 6, set the

indoor-gathering limit for "establishments that provide and

require seating for all invitees" at "50% of the facility's

permitted occupancy limit or 100 persons, whichever is less." For

establishments that neither provide nor require seating, the order

put the indoor-gathering limit at 50. "Establishments" included

"houses of worship," the order read. And the order stated that

"Maine is now positioned to implement" the final stage of the re-

opening plan.

Issued November 4, Executive Order 16 FY 20/21 — after

mentioning "the upward trajectory" of Maine's COVID-19 "cases,

hospitalizations, and positivity rates" — returned the indoor-

gathering limit to 50.

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 D

The filings in the district court became a paper

blizzard, starting in February 2021. Without attempting to cover

everything the parties argued, we discuss the following.

On February 9, the Governor asked the judge to dismiss

Calvary's lawsuit. Reading Calvary's complaint as only contesting

the 10-person-gathering limit, the Governor called the suit moot

mainly because Executive Order 55 FY 19/20 had raised the limit to

50 roughly nine months earlier. Three days later, on February 12,

the Governor issued Executive Order 31 FY 20/21, which increased

"[t]he indoor gathering limit" for — and only for — "houses of

worship" to "5 persons per 1,000 square feet of functionally

available space, or 50 persons, whichever is greater." Within a

week after that, on February 18, Calvary moved the judge for a

preliminary injunction to stop the Governor from "enforcing her

unconstitutional and discriminatory COVID-19 restrictions on

Calvary['s] . . . religious worship services."

This brings us to March 2021. Opposing the Governor's

dismissal motion, Calvary's March 5 filing insisted that the

complaint challenged "the entire regime" as it exists "today" —

which, Calvary continued, meant that its claims were "not moot"

(bold type in original). Alternatively, Calvary argued that two

related exceptions to mootness — "voluntary cessation" and actions

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"capable of repetition yet evading review" (more on these shortly)

— applied. That same day, the Governor issued Executive Order 35

FY 20/21, which — effective March 26 — increased "[i]ndoor

gathering limits and in-store limits" to the greater of "50% of

permitted occupancy, 5 persons per 1,000 sq. ft., or 50 persons."

The Governor (to quote the order) took that step based on expert

advice driven by "new information and the best available science."

To no one's surprise, the Governor opposed Calvary's

preliminary-injunction request. According to her March 15 filing,

because she had "rescinded" the 10-person-gathering limit "nearly

nine months ago," no live controversy persisted. And stating that

she "had announced her intent to increase the gathering limit

before Calvary filed this lawsuit" and that "there is no reasonable

expectation that the challenged conduct will reoccur," the

Governor saw no way around mootness.

The parties exchanged replies and sur-replies.

E

With spring 2021 in full swing, the Governor issued

Executive Order 38 FY 20/21 on May 13. This order jettisoned all

"[i]ndoor gathering limits and in-store customer limits" — a result

(to quote that order) also driven by expert advice tied to

"decreasing COVID-19 case counts and positivity rates, and

increasing rates of vaccination in Maine and nationally," which

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made such limits "no longer necessary to protect the public

health."

The very next month, on June 4, the judge ruled on the

parties' motions. "None of the restrictions imposed by the

gathering orders is in effect today," the judge wrote

(capitalization removed). And, in the judge's words, even reading

Calvary's complaint as contesting "any restriction that allegedly

treated religious gatherings less favorably than certain

businesses or secular gatherings" would not change the outcome.

That was because "[r]eligious gatherings have not been subject to

such treatment for nearly four months" (i.e., since February 2021).

The judge also found no mootness exception helped Calvary, for two

related reasons — the Governor showed "that it is absolutely clear

that [she] cannot reasonably be expected to reinstate" the

challenged orders and "there [was] no 'reasonable expectation'"

that the Governor would subject Calvary to the same restrictions.

And so the judge granted the Governor's dismissal motion, denied

Calvary's preliminary-injunction bids, and entered a separate

judgment dismissing Calvary's complaint.

Calvary filed a notice of appeal that very day, on June

4. A few weeks later, on June 30, the Governor's final order

renewing the state of emergency expired — thus ending the state of

emergency (which makes it strange that Calvary's opening brief

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here says that even "now," i.e., "up to the present," it cannot

have "more than 50 people" at its religious services).

F

This is as good a place as any to recap the "regime"

(Calvary's word) of restrictions that supposedly treated religious

gatherings less favorably than other gatherings. First put in

place in March 2020, all gathering restrictions ended in May 2021.

The state of emergency — under which the Governor imposed the

restrictions — ended in June 2021. And the Governor has not since

either reinstated the state of emergency or imposed new

restrictions of the type challenged here.

II

Time for our say on this.

A

Federal judges can decide only "Cases" or

"Controversies" between adversaries. See U.S. Const. art. III,

§ 2. That means we decide only "live" disputes, not "moot" ones.

See, e.g., Bos. Bit Labs, 11 F.4th at 8. And this limitation

applies "at all stages of review, not merely at the time the

complaint is filed." See Arizonans for Off. Eng. v. Arizona, 520

U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401

(1975)); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021) (declaring that "[f]ederal courts do not possess a roving

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commission to publicly opine on every legal question"). A suit

remains viable if "the relief sought would, if granted, make a

difference to the legal interests of the parties (as distinct from

their psyches, which might remain deeply engaged with the merits

of the litigation)." See Bos. Bit Labs, 11 F.4th at 8 (quoting

Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1396

(7th Cir. 1990) (Posner, J., for the panel)); see also Aetna Life

Ins. v. Haworth, 300 U.S. 227, 241 (1937) (commenting that federal

courts may resolve only "real and substantial controvers[ies]

admitting of specific relief through a decree of a conclusive

character, as distinguished from an opinion advising what the law

would be upon a hypothetical state of facts"). So even if a suit

presented a live dispute when filed, if events change "such that

. . . the complaining party winds up with all the relief the

federal court could have given [it]," the case is "moot" and must

be dismissed. See Bos. Bit Labs, 11 F.4th at 8 n.3 (quoting

Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245, 1250 (10th Cir.

2009) (Gorsuch, J., for the panel) (quotations and citation

omitted)).

But as with most rules, exceptions exist. And two are

relevant here. One is the "voluntary cessation" exception. The

other is the "capable of repetition yet evading review" exception.

We give a quick tutorial on each.

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 The first exception — voluntary cessation — holds that

a defendant's voluntary change in conduct moots a case only if it

is "absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur." See Friends of the Earth,

Inc. v. Laidlaw Env't Servs. (TOC), Inc. ("Friends"), 528 U.S.

167, 189 (2000) (quotations omitted). Otherwise "a defendant could

engage in unlawful conduct, stop when sued to have the case

declared moot, then pick up where [she] left off, repeating the

cycle until [she] achieves all [her] unlawful ends." See Already,

LLC v. Nike, Inc., 568 U.S. 85, 91 (2013); accord Bos. Bit Labs,

11 F.4th at 10. But this exception "'does not apply' if the change

in conduct is 'unrelated to the litigation.'" See Bos. Bit Labs,

11 F.4th at 10 (quoting Town of Portsmouth v. Lewis ("Lewis"), 813

F.3d 54, 59 (1st Cir. 2016)).3

The second exception — capable of repetition yet evading

review — applies only if "(1) the challenged action [is] in its

duration too short to be fully litigated [before] its cessation or

3 Calvary tries at one point to misquote away the test, saying
that the Governor "must make it 'absolutely clear' that the conduct
will not recur" and then saying that she must "mak[e] the concrete
commitment that she will not return to her old ways" (emphasis
Calvary's). Contrary to Calvary's mischaracterization, the test
is — as we said — whether it is "absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur." See
Friends, 528 U.S. at 189 (emphasis ours). That Calvary bases its
"concrete commitment" claim on the wrong test sinks that
contention.
- 13 -
expiration, and (2) there [is] a reasonable expectation that the

same complaining party [will] be subjected to the same action

again." See Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per

curiam) (emphasis added); accord Harris v. Univ. of Mass. Lowell,

43 F.4th 187, 194 (1st Cir. 2022). Though often invoked, this

exception operates only in extraordinary situations. See

Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170

(2016).

To wrap up the schooling, the burden of showing mootness

is on the defendant. See Bos. Bit Labs, 11 F.4th at 8. So is

"the burden of showing that the voluntary-cessation [exception]

does not apply." See id. at 10 (citing Friends, 528 U.S. at 190).

But the burden of showing that the capable-of-repetition exception

does apply is on the plaintiff. See Harris, 43 F.4th at 194.

B

Bowing to reality, Calvary conceded at oral argument

here that the Governor has ended Maine's gathering restrictions

and Maine's state of emergency.4 But as Calvary sees things, with

4 Curiously (as intimated above), Calvary's opening brief
never mentions that the state of emergency wound down. Calvary's
reply brief does mention it, calling it a "temporar[y]" ending.
But labeling something "temporar[y]" does not make it so. See
generally Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 20 (1st Cir.
1999) (expressing the truism that statements by lawyers in their
briefs are not evidence).
- 14 -
the Governor's defense of the restrictions, the case is not moot

under the voluntary-cessation and the capable-of-repetition

exceptions. That, though, is not how we see things.5

1

Beginning with the voluntary-cessation exception, we

find for many reasons that the Governor has made it absolutely

clear that she cannot reasonably be expected to revert to her prior

behavior. But it suffices to focus on the following dispositive

ones.

For starters, and to borrow phrasing from a recent

sibling circuit opinion, "any future" COVID-19 restriction "likely

would not present substantially the same legal controversy as the

one originally presented here" because "[t]he Supreme Court and

other courts have since blocked any number of [restrictions],

thereby providing concrete examples of mandates and restrictions

that violate the Free Exercise Clause." See Resurrection Sch. v.

5 The Governor describes Calvary's complaint as focusing only
on the 10-person-gathering restriction — Calvary, for example (and
to quote the Governor's brief), "never amended its complaint to
challenge the 50-person limit, which was in effect for over eight
months." That description does not sit well with Calvary, which
claims its complaint focuses on the reinstatement of any of the
Governor's "old restrictions" that treat religious gatherings less
favorably than other secular gatherings. In law as in life, "the
simplest approach" is often "best." See United States v. Cruz-
Ramos, 987 F.3d 27, 39 (1st Cir. 2021). And that is true here:
we can assume Calvary's account is correct because it does not
affect the result.
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Hertel, 35 F.4th 524, 529 (6th Cir. 2022) (en banc), petition for

cert. filed, (U.S. Aug. 23, 2022) (No. 22-181). And given the

record, we see no reasonable likelihood that the Governor would —

as Calvary implies — ignore binding COVID-19-related

"pronouncements on equal treatment between religious exercise and

comparable secular activity." See Hawse v. Page, 7 F.4th 685, 693

(9th Cir. 2021).

Also critically, the governor has made it absolutely

clear through her actions that she did not ease and then end the

contested restrictions only to reimpose them once this litigation

is over — a conclusion based on the undisputed pattern of events

shown in the record. Remember how she boosted the "[i]ndoor

gathering limits" in March 2021 — to the greater of "50% of

permitted occupancy, 5 persons per 1,000 sq. ft., or 50 persons —

because of expert advice based on "new information and the best

available science." Remember too how she eliminated all gathering

restrictions in May 2021 because of expert advice based on

"decreasing COVID-19 case counts and positivity rates, and

increasing rates of vaccination in Maine and nationally," which

altogether made these restrictions "no longer necessary to protect

the public health." Remember as well how when she ended the state

of emergency in June 2021, the judge had already dismissed

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Calvary's suit.6 So not to put too fine a point on it, but we see

no hint that the Governor will "pick up where [she] left off" if

the case is declared moot. See Already, LLC, 568 U.S. at 91. Far

from it, for the Governor has shown that she changed course for

reasons unrelated to the litigation. See Bos. Bit Labs, 11 F.4th

at 10 (suggesting that events showed that the Governor changed

COVID-19 restrictions not to game the judicial system "but in

response to the progress made in battling the pandemic").7

And Calvary's top argument for why the judge erred in

not applying the voluntary-cessation exception does not move the

needle in its direction. A persistent theme in Calvary's briefs

is that the suit cannot be moot because "the Governor retains the

6 Allow us to say again — because it bears repeating — that
all of the just-made points in the three sentences beginning with
"Remember" are uncontested.
7 Hurting Calvary as well is a declaration by the Governor's
legal counsel written before the state of emergency ended (which
both parties mention). This declaration said that it is "highly
unlikely that the Governor will ever reimpose the 10-person limit
on gatherings . . ., at least with respect to religious gatherings"
— noting vaccine advances, increased vaccination rates, greater
knowledge of COVID-19, and recent Supreme Court caselaw in this
area. All of which bolsters our changes-unrelated-to-litigation
conclusion. Calvary thinks differently, stating that "[t]he
Governor does not make it 'absolutely clear' that she will not
return to her old ways." But Calvary's fixation on the "absolutely
clear" lingo misstates the test, as we have already explained in
footnote 3. Again, the test is whether it is "absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur." See Friends, 528 U.S. at 189 (emphasis ours).
And Calvary does not grapple with the italicized language here.
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authority to reinstate her restrictions at any time" — meaning,

the argument continues, Calvary faces a constant threat that she

will use that power to restore restrictions that (allegedly)

discriminate against religious services compared with other

secular activities. But this retain-authority contention is

essentially a rehash of an argument rejected in Bos. Bit Labs,

which held:

That the Governor has the power to issue
executive orders cannot itself be enough to
skirt mootness, because then no suit against
the government would ever be moot. And we
know some are.

See 11 F.4th at 10 (first citing N.Y. State Rifle & Pistol Ass'n,

Inc. v. City of N.Y., 140 S. Ct. 1525, 1526 (2020) (per curiam),

and then citing N.E. Reg'l Council of Carpenters v. Kinton, 284

F.3d 9, 18 (1st Cir. 2002)).

Calvary's cases do not change our thinking either. See

generally Bos. Bit Labs, 11 F.4th at 10 (noting that application

of the voluntary-cessation exception "turns on the circumstances

of the particular case" (emphasis added)). Take Roman Cath.

Diocese of Brooklyn v. Cuomo ("Roman Cath. Diocese"), 141 S. Ct.

63 (2020) (per curiam), S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) (mem.), Harvest Rock Church, Inc. v. Newsom,

141 S. Ct. 1289 (2021) (mem.), and Tandon v. Newsom, 141 S. Ct.

1294 (2021) (per curiam) — four Supreme Court cases that granted

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injunctions pending appeal of certain COVID-19 restrictions.

Unlike in those cases, the state of emergency is no longer in place

and the questioned restrictions have gone by the boards. Ditto

for Bayley's Campground, Inc. v. Mills, 985 F.3d 153 (1st Cir.

2021), a pandemic-related case of ours that Calvary discusses.

The state of emergency's ending is also a key difference between

this case and the out-of-circuit decisions Calvary cites — Agudath

Isr. of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020), Calvary Chapel

Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020), Calvary

Chapel Lone Mt. v. Sisolak, 831 F. App'x 317 (9th Cir. 2020)

(mem.), and Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d

341 (7th Cir. 2020), cert. denied, 141 S. Ct. 1753 (2021). And

unfortunately for Calvary, these differences distinguish away the

significance of those cases. See Bos. Bit Labs, 11 F.4th at 11

(making a similar point in a similar situation).

There is more too. Despite bumps in COVID-19 cases after

the state of emergency ended in June 2021, the Governor — as she

says, without contradiction — has not (repeat, not) tried to

reinstate it and impose anything like the complained-about

restrictions. That detail rebuts Calvary's claim that the Governor

has shown an "intent to reinstate" by her "moving the goalposts on

pandemic-related sacrifices for months" even after decisions like

Roman Cath. Diocese (emphasizing that governors cannot treat

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religious exercises worse than secular activities, even during a

pandemic) came down — "adopting new benchmarks that always seem to

put restoration of religious liberty just around the corner"

(Calvary based the first quote on its reading of United States v.

Sanchez-Gomez, 138 S. Ct. 1532 (2018), and pulled the second and

third quotes from Justice Gorsuch's statement in S. Bay United

Pentecostal Church). Ultimately again (as we have been at pains

to explain), the Governor's actions in response cut against

applying the voluntary-cessation exception. See Bos. Bit Labs, 11

F.4th at 11. See generally Eden, LLC v. Justice, 36 F.4th 166,

171 (4th Cir. 2022) (holding that the governor's decision not to

reinstitute certain COVID-19 policies during "deadly surges" is a

"powerful signal that whatever course the . . . pandemic takes, a

return to restrictions like those challenged here is highly

unlikely" and adding that "it has become clear" over time "that

there is 'no reasonable expectation' that COVID-19 restrictions

like the ones to which the plaintiffs object will be reimposed'"

(citing among other cases Bos. Bit Labs, 11 F.4th at 12, and Hawse,

7 F.4th at 693, and quoting Lighthouse Fellowship Church v.

Northam, 20 F.4th 157, 162 (4th Cir. 2021))).

That is a good segue to Calvary's next problem. Still

searching for a mic-drop moment, Calvary's opening brief argues

that the Governor — who "vigorously" opposes Calvary's position —

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"has laid the groundwork for imposing more, not fewer[,]

restrictions going forward" and so has not shown that she will

never resume the complained-about restrictions. But Calvary never

explains there how her "vigorous[]" opposition and "groundwork"-

laying (the key premises of this thesis) can hold up when (as we

keep saying) the Governor ended the state of emergency and has not

imposed restrictions similar to the old ones since (we repeat again

for emphasis that Calvary's lead brief fails to acknowledge — let

alone address — the state of emergency's ending). See generally

Eden, LLC, 36 F.4th at 171 (finding it "entirely speculative to

assert that the Governor suddenly will see a need to reinstate

COVID-19 restrictions that have not been in place for more than a

year," particularly since that period "has seen deadly surges in

COVID-19 cases caused by the Delta and Omicron variants," and "[i]f

there were any reasonable chance that the Governor might reimpose

the safety measures, . . . then those waves of increased infection

should have been the occasion for doing so" — "[b]ut they were

not") (quotations omitted)).

The net result is that given these particularities, "it

is unrealistically speculative" that the Governor would again

proclaim a state of emergency and then reimpose restrictions

similar enough to the prior restrictions to present essentially

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the same legal dispute as the one alleged in Calvary's complaint.

See Bos. Bit Labs, 11 F.4th at 11.

Perhaps in a last-ditch effort, Calvary protests that

Bos. Bit Labs's mootness analysis holds no sway here because that

case involved the First Amendment's free speech clause, while this

case involves the First Amendment's free exercise clause. But we

need only note (without delving into the merits) that because

Calvary debuted this contention at oral argument, we hold it waived

(and Calvary offers no sound basis for ignoring that deep-rooted

waiver rule). See, e.g., Conduragis v. Prospect Chartercare, LLC,

909 F.3d 516, 518 n.2 (1st Cir. 2018).

2

That takes us then to the capable-of-repetition

exception to mootness. As a refresher, a case "qualifies for that

exception only if "(1) the challenged action [is] in its duration

too short to be fully litigated [before] its cessation or

expiration, and (2) there [is] a reasonable expectation that the

same complaining party [will] be subjected to the same action

again." See Weinstein, 423 U.S. at 149. And because (for the

reasons just stated) the record discloses no reasonable

expectation that a similar controversy will recur between the same

litigants, Calvary flunks element (2) of the capable-of-repetition

exception. So the matter remains moot. See Resurrection Sch., 35

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F.4th at 530 (finding "[t]his exception is inapposite for largely

the same reasons the [voluntary-cessation] exception is"); see

also Doe v. Hopkinton Pub. Sch., 19 F.4th 493, 511 (1st Cir. 2021)

(holding that plaintiffs did not meet the capable-of-repetition

exception because they "fail[ed] to satisfy" the exception's

"second prong"). See generally Murphy v. Hunt, 455 U.S. 478, 482

(1982) (per curiam) (underscoring that a "theoretical possibility"

is not enough to bring this exception into play).

3

Two final points and we are done. First, Calvary thinks

that it can avoid mootness because of the complaint's as-applied

challenge, request for a permanent injunction, and allegation of

a guarantee-clause violation (alleging a denial of a republican

form of government). But all we need say (without getting into

the weeds) is that Calvary waived these arguments by not making

them in the district court when mootness concerns first took center

stage after the Governor moved to dismiss the suit (and Calvary

gives us no persuasive reason not to apply that familiar raise-

or-waive rule (as it is known)). See, e.g., Eldridge v. Gordon

Bros. Grp., LLC, 863 F.3d 65, 66 (1st Cir. 2017). And second,

even though this case is moot, "nothing prevents" Calvary from

"seeking" injunctive and declaratory relief "if" Calvary sees

anything like the allegedly offending restrictions again (we of

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course express no view on the likely outcome of such a suit). See

Lewis, 813 F.3d at 59.

III

We affirm the judge's dismissal of Calvary's suit as

moot and award the Governor her costs on appeal.

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