O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft

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PER CURIAM.

I.

This matter is before the en banc court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir.2003). The panel affirmed a preliminary injunction, granted under the Religious Freedom Restoration Act (“RFRA”), which enjoined the United States from relying on the Controlled Substances Act (“CSA”) and the United Nations Convention on Psychotropic Substances (“Convention”) to prohibit the sac*975ramental use of hoasca by Uniao do Vege-tal and its members (collectively “UDV”). This court granted rehearing to review the different standards by which we evaluate the grant of preliminary injunctions, and to decide how those standards should be applied in this case.

II.

The underlying facts relating to the parties and the issues are fully described in the panel opinion and are therefore unnecessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-l, to obtain declaratory and injunctive relief which would prevent the government from prohibiting UDV’s importation, possession, and use of hoasca for religious purposes and from attempting to seize the substance or prosecute individual UDV members.1 After an evidentiary hearing, the district court granted UDV’s motion for a preliminary injunction pending a decision on the merits. The government appealed that decision, the panel affirmed, and we granted the en banc petition.2

III.

The en banc court is divided over the outcome of this case. Nevertheless, a majority of the court has voted to maintain a heightened standard for granting any of the three historically disfavored preliminary injunctions. A different majority has voted to affirm the district court’s entry of a preliminary injunction in this case.

A. Standards for Granting Disfavored Preliminary Injunctions

In SCFC ILC, Inc. v. Visa USA Inc., this court identified the following three types of specifically disfavored preliminary injunctions and concluded that a movant must “satisfy an even heavier burden of showing that the four [preliminary injunction] factors ... weigh heavily and compellingly in movant’s favor before such an injunction may be issued”: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir.1991). With one important alteration, a majority of the en banc court has voted to affirm the core holding of SCFC ILC. Part I of the Opinion of Murphy, J., joined by Ebel, Kelly, Hartz, O’Brien, McConnell, and Tymkovich, JJ.; Part I of the Opinion of McConnell, J, joined by Hartz, O’Brien, and Tymkovich, JJ. Thus, if a movant seeks a preliminary injunction that falls into one of the three categories identified in SCFC ILC, the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILC which describes the showing the mov-ant must make in such situations as “heavily and compellingly.” SCFC ILC, 936 F.2d at 1098. Instead, the en banc court holds that courts in this Circuit must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Furthermore, because a historically disfavored preliminary injunction operates outside of the normal parameters for interim *976relief, movants seeking such an injunction are not entitled to rely on this Circuit’s modified-likelihood-of-success-on-the-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard.

B. Grant of Preliminary Injunction in this Case

Although the reasons vary, a majority of the en banc court is of the view that the district court’s entry of a preliminary injunction in this case should be affirmed. Part II of Opinion of Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Bris-coe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.

IV.

The decision of the United States District Court for the District of New Mexico to grant UDV’s request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the district court’s preliminary injunction issued by this court pending resolution of this appeal is vacated.

. Hoasca is a liquid tea-like mixture made from the plants psychotria viridis and banist-eriposis caapi. These plants are indigenous to Brazil. Psychotria viridis contains dime-thyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention.

. This court granted an emergency stay of the preliminary injunction pending appeal. See O Centro Espirita v. Ashcroft, 314 F.3d 463 (10th Cir.2002).