United States Court of Appeals
For the First Circuit
No. 22-1267
CAPTAIN ALBERT BROX; KIM FERNANDES; PAUL MENTON; SONIA SIMONEAU;
MARK ANDERSON; ANDREA SHEEDY; JAMES BONDAREK; STEVEN ENNIS;
CHRISTOPHER OVASKA; JEFFERY D'AMARIO; AND TIM RICHARDSON,
Plaintiffs, Appellants,
v.
WOODS HOLE, MARTHA'S VINEYARD AND NANTUCKET STEAMSHIP AUTHORITY;
AND JANICE KENNEFICK,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Howard, Circuit Judges.
Patrick K. Daubert, with whom Daubert Law, PLLC was on brief,
for appellants.
Ryan W. Jaziri, with whom Keith H. McCown, Jeffrey T. Collins,
and Morgan, Brown & Joy, LLP, were on brief, for appellees.
October 6, 2023
BARRON, Chief Judge. Current and former employees of
Woods Hole, Martha's Vineyard and Nantucket Steamship Authority
(the "Authority") appeal from the denial of their request for
preliminary injunctive relief from the Authority's COVID-19
vaccine policy. We affirm in part, vacate in part, and remand.
I.
On August 19, 2021, the Governor of the Commonwealth of
Massachusetts issued Executive Order No. 595 (the "Order"). The
Order provided "that all executive department employees shall be
required to demonstrate that they have received COVID-19
vaccination and maintain full COVID-19 vaccination as a condition
of continuing employment." The Order also "encouraged"
"[i]ndependent agencies and authorities, public institutions of
higher education, elected officials, other constitutional offices,
the Legislature, and the Judiciary . . . to adopt policies
consistent with this Executive Order."
The Authority is a "public instrumentality" of the
Commonwealth of Massachusetts that is charged with providing
"adequate transportation of persons and necessaries of life for
the islands of Nantucket and Martha's Vineyard." Chapter 701 of
the Acts of 1960, as amended, §§ 1, 3. The Authority issued its
own vaccine policy (the "Policy") modeled on the Order on January
3, 2022. The Policy requires all Authority employees to be "fully
vaccinated in accordance with the CDC definition on or before
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February 16, 2022," and, thereafter, "to demonstrate that they
continue to maintain COVID-19 vaccinations in accordance with the
CDC definition of fully vaccinated and as adopted by the
Massachusetts Department of Public Health."
The Policy allows for exemptions on certain specified
grounds. First, the Policy states that "[e]mployees who verify
and document that the vaccine is medically contraindicted [sic],
which means administration of the COVID-19 vaccine to that
individual would likely be detrimental to the individual's
health," can seek a medical exemption from the Policy, "provided
any such employee is able to perform their essential job functions
with a reasonable accommodation that is not an undue burden on the
Authority." Second, the Policy provides an exemption for employees
"who object to vaccination due to a sincerely held religious
belief, provided that any such employee is able to perform their
essential job functions with a reasonable accommodation that is
not an undue burden on the Authority."
The Authority's Human Resources Department is
responsible for "[r]eview[ing] requests for reasonable
accommodations to this [P]olicy and engag[ing] in the interactive
process and issu[ing] timely approvals or denials of accommodation
requests." The Policy reserves to the Authority the role and
responsibility of "[i]ssuing and maintain[ing] a current COVID-19
verification policy" and "[r]eview[ing] any approved exemptions."
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On February 11, 2022, the appellants filed a "verified
complaint" in Barnstable Superior Court that named the appellees
as the defendants. The complaint alleged the following facts.
Nine of the eleven appellants in this case submitted
timely requests for religious exemptions from the Policy. The
requests were denied through form letters signed by Janice
Kennefick, the Authority's Director of Human Resources. The
letters stated, in pertinent part:
After consideration and review of the
information and documentation that you
submitted, we are unable to approve your
request due to the direct threat your
unvaccinated status would pose to the health
and well-being of your fellow employees, our
customers and/or our vendors. Due to the
nature of your position . . . , you are
expected and required to interact daily in
person with your fellow employees, our
customers and/or our vendors. Accordingly, we
determined that an exemption from the Policy
would unreasonably risk their safety as well
as your own.
(Emphases added.)
On January 28, 2022, the nine appellants whose religious
exemption requests had been rejected were placed on unpaid
suspension based on their failure to comply with the Policy. The
remaining two appellants submitted requests for religious
exemptions to Kennefick but were informed that the time for
submitting such requests had expired. These appellants were then
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placed on unpaid suspension for their failure to comply with the
Policy.
All eleven appellants were warned that failure to be
fully vaccinated in accordance with the Policy would eventually
result in termination. One of the appellants was subsequently
vaccinated on or around February 2, 2022.
The complaint pleaded claims under 42 U.S.C. § 1983,
that the appellees in administering the Policy had denied the
appellants their rights under the Free Exercise Clause of the First
Amendment of the United States Constitution, as incorporated
against the states by the Fourteenth Amendment, see Cantwell v.
Connecticut, 310 U.S. 296, 303-05 (1940), and to "[p]rivacy,
[p]ersonal [a]utonomy, and [p]ersonal [i]dentity" under the Due
Process Clause of the Fourteenth Amendment. The complaint also
pleaded state-law claims that the appellees in administering the
Policy had denied the appellants their rights to religious worship
under the Massachusetts Declaration of Rights and to be free from
religious discrimination under M.G.L. c. 151B, § 4.
In support of the free exercise claim, the complaint
further alleged that the appellees not only had denied all the
appellants' requests for religious exemptions but also had granted
a medical exemption to Greg Manchester, "a Captain, akin to
[appellant] Brox" who is not a party to this case. The complaint
alleged in addition that Manchester's medical exemption would
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expire in April 2022, at which point he would "likely be 'in the
same boat' as [appellants] with [appellees] 'unable to approve'
his request for religious exemption."
The complaint sought relief that included a declaration
that the Policy was invalid and unconstitutional and an ex-parte
temporary restraining order (TRO) that would enjoin the Authority
and Kennefick, in her official capacity, from terminating the
appellants. On the same day that the appellants filed their
complaint, they filed a motion in Barnstable Superior Court to
expedite consideration of their request for an ex-parte TRO, and
the court granted the motion.
On February 14, 2022, however, the appellees removed the
case to the United States District Court for the District of
Massachusetts. While the appellants' action was pending in the
District Court, three of the appellants, including Brox, agreed to
be vaccinated, joining the one appellant who already was. The
other seven appellants remained unvaccinated and on unpaid
suspension.
In the District Court, the appellants requested a
preliminary injunction. That "extraordinary form of relief" may
be granted only upon a showing that the plaintiff "is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public
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interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
The appellees filed a brief in opposition to the
appellants' request for the preliminary injunction. The appellees
contended in their brief in opposition that the appellants' federal
claims were barred by Will v. Michigan Department of State Police,
491 U.S. 58, 71 (1989), because neither the Authority, as "an
agency of State government," nor Kennefick, "in her official
capacity" at the Authority, are "'persons' within the meaning of
§ 1983 and cannot be sued in a § 1983 action." The appellees
further contended that the appellants' state-law claims were
barred by the Eleventh Amendment of the United States Constitution,
which prohibits federal courts from supervising state officials'
compliance with state law.
In a reply brief in support of the request for the
preliminary injunction, the appellants disputed the appellees'
contentions. The appellants also attached an affidavit and a copy
of a letter in support of the merits of their various claims.
The affidavit was by Manchester, and in it he attested
that he had requested a medical exemption based on a letter from
his health care provider that "advise[d] against COVID-19
vaccination for the next [three] months" due to Manchester's
"recent COVID-19 infection." He further attested that, while his
request for the medical exemption request was pending, he had
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submitted a request for a religious exemption that was subsequently
denied. He then attested that on February 16, 2022, he was briefly
put on "unpaid suspension" when he failed to become fully
vaccinated, but was "approved to continue to work under the medical
exemption" on February 21, 2022 and had "been back to work at [his]
usual post, duties and schedule ever since, under the reasonable
accommodations of masking and testing." The letter was from
Kennefick to Manchester, and it denied Manchester's request for a
religious exemption in the same manner and for the same reasons
that the appellants' religious exemption requests had been denied.
The appellants argued in their reply brief in support of
their request for the preliminary injunction that pursuant to the
medical exemption:
Mr. Manchester [was] working for [d]efendants
on their vessels in close contact with
colleagues, despite the purported direct
threat (to paraphrase Defendant Kennefick) his
unvaccinated status pose[d] to them, while
wearing a mask and testing for COVID-19 at the
start of each work week. Mr. Manchester,
through his medical exemption, was able to
attain the exact accommodations reasonably
sought by [p]laintiffs on religious bases but
wrongfully denied by [d]efendants.
(Emphasis added). The appellants went on to contend on that basis
that the medical exemption granted to Manchester demonstrated that
the appellees "enforc[ed] the mandate unequally, treating secular
(medical) exemption requests more favorably than religious
exemption requests."
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The District Court denied the appellants' request for a
preliminary injunction. See Brox v. Woods Hole, Martha's Vineyard,
and Nantucket S.S. Auth., 590 F. Supp. 3d 359, 364-69 (D. Mass.
2022). This appeal followed.
II.
The appellees concede that "on all the present facts and
circumstances, the [Authority] was not acting as an arm-of-the-
state" relative to this matter. Thus, Will poses no bar to the
appellants' § 1983 claims, 491 U.S. at 70-71, and the Eleventh
Amendment poses no bar to their state-law claims, see Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).
Moreover, because the appellants are suing Kennefick only in her
official capacity, the "real party in interest is the [Authority],"
see Kentucky v. Graham, 473 U.S. 159, 166-67 (1985), and so there
is no concern about Article III standing with respect to the
appellants' claims that name her as a defendant.1
1 We also note that this appeal is not moot. While seven of
the original plaintiffs have been terminated from their employment
after not receiving vaccinations, their injuries could still be
redressed by an injunctive order that, as the appellants requested
in their preliminary injunction briefing below, "reinstate[s them]
to their respective employment statuses and positions as they
existed prior to [the appellees]’ placement of [the appellants] on
unpaid suspension on January 28, 2022." And the other four
appellants -- Brox, Ennis, Ovaska, and Menton -- who are still
employed by the Authority assert that they "remain party to this
interlocutory appeal in order to enjoin their submission to an
unknown number of future 'booster' doses of vaccine pursuant to
the [Policy]."
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We turn, then, to the heart of the dispute on appeal,
which concerns the appellants' challenges to the District Court's
reasons for concluding that none of their claims provides a basis
for granting them the injunctive relief that they seek. We review
the denial of a preliminary injunction for abuse of discretion,
but we review embedded legal questions de novo. See Weaver v.
Henderson, 984 F.2d 11, 13 (1st Cir. 1993); Lanier Pro. Servs.,
Inc. v. Ricci, 192 F.3d 1, 3 (1st Cir. 1999).
A.
We begin where the District Court began, which is with
the question of whether the appellants can show that they are
entitled to the preliminary injunction based on their free exercise
claim. The appellants argue that the District Court erred in
concluding that they cannot make that showing, chiefly by arguing
that the District Court erred in holding that they failed to show
that they have a "likelihood of success" as to this claim.
To explain our assessment of this aspect of the
appellants' challenge, it is useful first to describe the legal
framework that applies to the free exercise claim. We then will
be positioned to explain both the appellants' arguments for
concluding that they can show that they have a likelihood of
succeeding on that claim and our reasons for concluding that, given
both the specific grounds that the District Court gave for its
ruling and the limited arguments that the appellees have made to
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us in arguing that the ruling must be affirmed, the District
Court's "likelihood of success" ruling is in error.
1.
The Free Exercise Clause of the First Amendment provides
that "Congress shall make no law . . . prohibiting the free
exercise" of religion, U.S. Const. amend. I. We review a law that
burdens religious exercise but that is neutral with respect to
religion and generally applicable only to ensure that it has a
rational basis. See Fulton v. City of Philadelphia, 141 S. Ct.
1868, 1876 (2021). Such a neutral and generally applicable law
thus need not be narrowly tailored to serve a compelling
governmental interest, even if the law incidentally burdens
religious exercise. See Church of Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 531-32 (1993).
By contrast, a law that does burden religious exercise
but is not either neutral or generally applicable must be narrowly
tailored to achieve a compelling government interest. Id. "To be
neutral, a law may not single out religion or religious
practices[,]" Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir. 2021)
(citing Lukumi, 508 U.S. at 532-34), as the government "fails to
act neutrally when it proceeds in a manner intolerant of religious
beliefs or restricts practices because of their religious nature."
Fulton, 141 S. Ct. at 1877. Moreover, a law is not generally
applicable if it either "'invite[s]' the government to consider
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the particular reasons for a person's conduct by providing 'a
mechanism for individualized exemptions,'" id. (cleaned up)
(quoting Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494
U.S. 872, 884 (1990)), or "prohibits religious conduct while
permitting secular conduct that undermines the government's
asserted interests in a similar way," id.
We have recently had occasion to apply this legal
framework in two cases that involved a free exercise challenge to
a COVID-19 vaccination mandate that included a medical exemption
but not a religious one. The first of those cases was Does 1-6 v.
Mills, which we decided in 2021.
Mills involved a free-exercise-based challenge to the
denial of a request for a preliminary injunction against the Maine
Center for Disease Control's emergency rule that required
healthcare workers in Maine to be vaccinated against COVID-19
unless they could show that vaccination was "medically
inadvisable." Mills, 16 F.4th at 24-29. The rule "require[d]
healthcare facilities to 'exclude[] from the worksite' for the
rest of the public health emergency employees who ha[d] not been
vaccinated." Id. at 28. But the requirement did "not extend to
those healthcare workers who [did] not work on-site at a designated
facility, for example those who work[ed] remotely." Id. Thus,
healthcare facilities could accommodate some workers with
religious objections to the COVID-19 vaccine "provided that the
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accommodations did not allow unvaccinated workers to enter
healthcare facilities." Id.
In upholding the denial of the requested injunction, we
first concluded that the "likelihood of success" factor pointed
against granting the relief. We reasoned in doing so that the
rule was "facially neutral" and that "no argument ha[d] been
developed to us that the state singled out religious objections to
the vaccine 'because of their religious nature.'" Id. at 30
(quoting Fulton, 141 S. Ct. at 1877). We also explained that the
rule did "not require the state government to exercise discretion
in evaluating individual requests for exemptions" and that "[n]o
case in this circuit and no case of the Supreme Court holds that
a single objective exemption renders a rule not generally
applicable." Id.
We next held that, so far as the record revealed, the
rule was generally applicable even though it included a medical
but not a religious exemption. We explained that the record at
the preliminary injunction stage did not show that the rule would
"permit 'secular conduct that undermine[d] the government's
asserted interests in a similar way.'" Id. (quoting Fulton, 141
S. Ct. at 1877); see also Tandon v. Newsom, 141 S. Ct. 1294, 1296
(2021) ("[W]hether two activities are comparable for purposes of
the Free Exercise Clause must be judged against the asserted
government interest that justifies the regulation at issue.").
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In so concluding, we noted that the Maine CDC had
asserted three "mutually reinforcing" interests in providing only
medical exemptions under the rule:
(1) ensuring that healthcare workers remain
healthy and able to provide the needed care to
an overburdened healthcare system; (2)
protecting the health of the those in the
state most vulnerable to the virus --
including those who are vulnerable to it
because they cannot be vaccinated for medical
reasons; and (3) protecting the health and
safety of all Mainers, patients and healthcare
workers alike.
Mills, 16 F.4th at 30-31. We then explained, following
Tandon, that the medical exemption at issue was "meaningfully
different from exemptions to other COVID-19-related restrictions
that the Supreme Court has considered," because in those cases
"the Supreme Court addressed whether a state could prohibit
religious gatherings while allowing secular activities involving
everyday commerce and entertainment and it concluded that those
activities posed a similar risk to physical health (by risking
spread of the virus) as the prohibited religious activities." Id.
at 31. By contrast, we explained, the Maine CDC's rule "offer[ed]
only one exemption, and that is because the rule itself poses a
physical health risk to some who are subject to it," and "carving
out an exception for those people to whom that physical health
risk applies" did not in and of itself necessarily undermine Maine
CDC's "asserted interests in a way that carving out an exemption
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for religious objectors would" because "providing healthcare
workers with medically contraindicated vaccines would threaten the
health of those workers and thus compromise both their own health
and their ability to provide care." Id.
In addition, we concluded that the plaintiffs had not
shown their entitlement to a preliminary injunction, given our
conclusion that strict scrutiny did not apply, because the rule
"easily satisfie[d]" rational basis review. Id. at 32. We did
note, however, that "even if [strict scrutiny] did [apply],
plaintiffs still ha[d] no likelihood of success," id., because the
rule was narrowly tailored to serve the Maine's CDC's compelling
interest in both stemming the spread of COVID-19, see id. (citing
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020))
and "denying an exception" to the plaintiffs, id. ("If any
healthcare workers providing such services, including the
plaintiffs, were exempted from the policy for non-health-related
reasons, the most vulnerable Mainers would be threatened.").
Then, in May of 2023, while this case was pending, we
decided Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023), in which seven
former employees of various Maine healthcare facilities challenged
the same Maine CDC emergency rule partly on the ground that it
violated the Free Exercise Clause, as incorporated against the
states by the Fourteenth Amendment, by allowing medical but not
religious exemptions. Id. at 709-13. The district court there
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had dismissed the appellants' free exercise claim on the ground
that the rule was a "religiously neutral law of general
applicability that [was] rationally related to Maine's legitimate
public health interests, and so [did] not violate the Free Exercise
[Clause]." Id. at 713. But, notwithstanding our decision in Mills,
we reversed. See id. at 709.
We explained that our "decision on the plaintiffs'
preliminary injunction appeal [in Mills] does not control the
outcome in [Lowe] because the different procedural postures
implicate different burdens, standards of review, and factual
records." Id. at 712 n.10. Moreover, we noted, the appellees in
Lowe did not "contend that the result in Mills [was] binding" in
that appeal. Id.
We then reviewed the dismissal of the Lowe appellants'
complaint de novo while "drawing all reasonable inferences in the
plaintiffs' favor." Id. And "we conclude[d] that it [was]
plausible, in the absence of any factual development," that the
rule was not generally applicable "based on the complaint's
allegations that the [m]andate allows some number of unvaccinated
individuals to continue working in healthcare facilities based on
medical exemptions while refusing to allow individuals to continue
working while unvaccinated for religious reasons." Id. at 714.
We began our analysis by following Tandon and
identifying the interests that Maine had asserted for allowing
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only medical exemptions. We explained that Maine had cited "[a]s
its principal interest in permitting medical but not religious
exemptions" to the mandate "a goal of 'revers[ing] the trajectory
of falling vaccination rates in order to prevent communicable,
preventable diseases from spreading in . . . healthcare facilities
. . . so that all persons medically unable to be vaccinated [can]
be protected.'" Id. at 714-15 (second and third alterations in
original). We also noted, however, that Maine additionally
"cite[d] a more general interest in 'protecting the lives and
health of Maine people.'" Id. at 715 (quoting Lowe v. Mills, No.
1:21-CV-00242, 2022 WL 3542187, at *14 (D. Me. Aug. 18, 2022),
aff'd in part, rev'd in part and remanded, 68 F.4th at 725).
We then held that "it is plausible based on the
plaintiffs' allegations that the medical exemption undermines
these interests in a similar way to a hypothetical religious
exemption" as:
The availability of a medical exemption, like
a religious exemption, could reduce
vaccination rates among healthcare workers and
increase the risk of disease spread in
healthcare facilities, compared to a
counterfactual in which the [m]andate contains
no exceptions, all workers must be vaccinated,
and neither religious objectors nor the
medically ineligible can continue working in
healthcare facilities.
Id.
Finally, we observed that Maine also had "reference[d]
in passing an interest in 'safeguarding Maine's healthcare
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capacity.'" Id. at 715 (quoting Lowe, 2022 WL 3542187, at *14).
But we concluded that "[w]hile excusing some workers from
vaccination for medical reasons may protect Maine's 'healthcare
capacity' by making more workers available, authorizing a
religious exemption plausibly could have a similar effect." Id.
We thus explained that we could not "conclude, at least without
more facts, that this interest renders the two exemptions
incomparable." Id.
That said, we recognized that Maine also had contended
that a medical exemption is "fundamentally different" from a
religious exemption "because a medical exemption aligns with the
State's interest in protecting public health and, more
specifically, medically vulnerable individuals from illness and
infectious diseases, while non-medical exemptions do not." Id.
(quoting Lowe, 2022 WL 3542187, at *12) (alteration omitted).
However, we concluded that, drawing all reasonable inferences in
the plaintiffs' favor, it was plausible that "the inclusion of the
medical exemption undermines the State's interests in the same way
that a religious exemption would by introducing unvaccinated
individuals into healthcare facilities." Id.
In all events, we emphasized the narrowness of our
ruling, as we stressed that it was "entirely possible that
additional facts might show that the two types of exemption are
not comparable." Id. at 715. Indeed, we "reject[ed] the
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plaintiffs' apparent view that the only relevant comparison is
between the risks posed by any one individual who is unvaccinated
for religious reasons and one who is unvaccinated for medical
reasons" and agreed instead "with the Second Circuit that Supreme
Court precedent 'suggests the appropriateness of considering
aggregate data about transmission risks.'" Id. at 716 (quoting We
The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 287 (2d Cir.),
opinion clarified, 17 F.4th 368 (2d Cir. 2021), cert. denied sub
nom. Dr. A. v. Hochul, 142 S. Ct. 2569 (2022)). But, in the end,
we concluded that "absent factual development, dismissal [was]
unwarranted," as the State had not "establish[ed] that the
[m]andate satisfies strict scrutiny," and "drawing all reasonable
inferences from the complaint's factual allegations in the
plaintiffs' favor, the complaint state[d] a claim under the Free
Exercise Clause." Id. 715-18. As a consequence, we did not
"determine what standard of scrutiny should ultimately apply to
the free exercise claim. Nor [did] we decide whether the [m]andate
survives the applicable level of scrutiny." Id. at 718.
2.
The appellants do not refer to either Mills or Lowe in
challenging the District Court's ruling that the appellants have
failed to show that they have a likelihood of success on the free
exercise claim. Moreover, although the appellants premise their
challenge to the District Court's "likelihood of success" ruling
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on the ground that the Policy, as administered, is subject to
struct scrutiny, they are less than clear in explaining why that
is so.
For example, the appellants at times appear to be arguing
that such demanding scrutiny applies because the Policy is "wrought
with only secular individualized exemptions." See Fulton, 141 S.
Ct. at 1877; see also Ward v. Polite, 667 F.3d 727, 740 (6th Cir.
2012) (finding an "exception-ridden" anti-discrimination policy
"[had taken] on the appearance and reality of a system of
individualized exemptions" that required strict scrutiny). But
that characterization of the Policy appears to be wrong, given
that a medical exemption is the only non-religious exemption that
the Policy permits, see Mills, 16 F.4th at 30, and, we note, the
appellants develop no contrary argument, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
The appellants do also appear, however, to be contending
(as they did below) that the Policy is subject to strict scrutiny
because, "in its implementation," it "treat[s] secular and
religious exemption requests unequally, favoring the former" and
so for that reason alone is not "generally applicable." Lukumi,
508 U.S. at 542-46; see also Fulton, 141 S. Ct. at 1877 (citing
id.). The notion appears to be such demanding scrutiny applies
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because the Policy is administered to allow medical exemptions for
persons who pose no less risk of spreading COVID-19 than persons
who are denied religious exemptions.2
To support the contention, the appellants point to the
evidence of how the appellees treated Manchester's exemption
requests. That evidence shows, they argue, that Manchester was a
customer-facing employee with the same role and responsibilities
as appellant Brox; that he applied for a religious exemption under
the Policy but was denied it "due to the direct threat [his]
unvaccinated status would pose to the health and well-being of
. . . fellow employees, . . . customers and/or . . . vendors"; and
that he then was granted a medical exemption under the Policy that
allowed him to work in person (while masking and testing) without
vaccination, after he submitted a letter from his health care
provider that "advise[d] against COVID-19 vaccination for the next
[three] months" due to Manchester's "recent COVID-19 infection."
Based on this evidence, the appellants argue that the
Policy, as administered, provides medical exemptions that permit
unvaccinated employees to work "in close contact with colleagues,
despite the purported direct threat . . . [their] unvaccinated
2 Appellants make no argument in their opening brief on appeal
that the Policy is not neutral. They do make this assertion in
their reply brief, but arguments not made in an opening brief on
appeal are deemed waived. United States v. Vanvliet, 542 F.3d
259, 265 n.3 (1st Cir. 2008) ("Arguments raised for the first time
in a reply brief are waived.").
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status poses to them" but not religious exemptions that would
permit unvaccinated employees to do the same even though their
unvaccinated status poses no greater threat. And, according to
the appellants, the Policy, as administered, is therefore not
generally applicable -- and thus is subject to strict scrutiny --
because it "prohibits religious conduct while permitting secular
conduct that undermines the government's asserted interests in a
similar way," Fulton, 141 S. Ct. at 1877.
The appellants go on to contend that the appellees cannot
show that the Policy, as administered, survives strict scrutiny.
To support this contention, the appellants argue that even though
"the sole stated purpose" that the appellees have given for denying
their requests for religious exemptions is "preventing the spread
of COVID-19," the Policy as administered permits medical
exemptions to persons who pose the same risk of spreading COVID-
19 as "similarly situated" persons who are not eligible for medical
exemptions who seek exemptions on religious grounds.
3.
Against this backdrop, it is notable that, in ruling
that the appellants had no likelihood of succeeding on the free
exercise claim, the District Court did not address the possible
import of the Manchester evidence to the claim's merits. Nor did
the District Court engage with the question of the level of
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scrutiny to which the Policy should be subjected. Instead, the
District Court based its conclusion on the following grounds.
The District Court first observed that a religious
exemption is not required for a vaccine policy. But we do not
understand the appellants to base their free exercise claim on a
contention that a vaccine mandate must, as a general matter,
contain a religious exemption. So, even if the District Court is
right as a general matter in making the observation, that
observation does not itself provide a basis for concluding that
the free exercise claim that the appellants are bringing is not
likely to succeed.
Moreover, while the District Court did also cite in
support of its ruling a range of cases (though not from this court)
that had rejected challenges to vaccination mandates on free
exercise grounds, those precedents did not involve challenges to
vaccine mandates on the ground that they were subject to strict
scrutiny because they treated a medical exemption more favorably
than a religious one. So, it is hard to see how those precedents
provide a basis for concluding that the appellants are not likely
to succeed on their free exercise claim, given that the claim is
premised on the contention that the Policy is subject to strict
scrutiny precisely because it has been administered in a manner
that results in just such disfavored treatment of employees seeking
religious exemptions.
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Finally, the District Court explained in support of its
ruling that "where -- as here -- a state agency offers religious
exemptions, it must not administer them in an unconstitutional
way," but that the appellants did not "allege[] any facts that
suggest that the Authority has administered its religious
exemption policy in a way that burdens some religions but not
others, or that [it] has coerced [the appellants] in their
religious practices." Brox, 590 F. Supp. 3d at 366 (cleaned up).
But we do not understand the appellants to base their free exercise
claim on a contention that, in administering the Policy's religious
exemption, the appellees treated their religious beliefs less
favorably than the religious beliefs of others. We understand
them to be asserting only that the Policy violates their free
exercise rights because the record shows that the Policy's medical
exemption has been administered to treat comparably situated
persons differently based on whether their request for an exemption
is religious or medical in nature. Thus, here, too, we cannot
conclude that the District Court's reasoning supports the
conclusion that the free exercise claim is not likely to succeed.
Of course, we may affirm the District Court on an
independent ground if that ground is manifest in the record. Cf.
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Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d
12, 28 (1st Cir. 2020). But we see no basis for doing so here.3
The appellees do argue that the Policy is generally
applicable -- and so not subject to strict scrutiny -- for reasons
having to do with the differing statutory liability that the
Authority would face in denying requests for exemption that are
medically rather than religiously based. The appellees assert in
that regard that an employer may show that an accommodation for
religious practice would constitute an "undue hardship" under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., more easily than an employer may show that an accommodation
for a disability would constitute an undue hardship under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.
The appellees then contend that it follows that the fact that
Manchester was granted a medical exemption but not a religious one
fails to show that, as administered, the Policy "prohibits
religious conduct while permitting secular conduct that undermines
the government's asserted interests in a similar way." Fulton,
141 S. Ct. at 1877.
3 To the extent that the appellants argue that the District
Court also made adverse findings with respect to the sincerity of
their beliefs with respect to their free exercise claims, we do
not understand the District Court to have denied the requested
relief as to those claims on the basis of any such determination,
and the appellees do not ask us to affirm the District Court on
that ground.
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The argument depends, as an initial matter, on it being
true that an employer has more leeway under Title VII to deny an
exemption for an employee claiming religious discrimination under
that statute than an employer does under the ADA to deny an
exemption for an employee claiming discrimination based on a
disability under that statute. For, it is that premise that
grounds the further contention that, precisely because an employer
does have that greater leeway under Title VII, the Authority's
COVID-19 vaccine requirement is generally applicable as a matter
of law even if, as the Manchester evidence shows, it is
administered to deny religious exemptions to customer-facing
employees whose risk of spreading the virus is comparable to
customer-facing employees who are granted medical exemptions.
But even if we were to accept the appellees' contention
about the greater leeway that an employer has under Title VII, cf.
Groff v. DeJoy, 600 U.S. 447, 470-71 (2023), the appellees do not
develop any argument as to why we must conclude that, as a matter
of law, the greater federal statutory liability that an employer
faces for denying a medical exemption from a COVID-19 vaccine
mandate than for denying a religious exemption from one suffices
in and of itself to show that, for free exercise purposes, the
former exemption may be granted and the latter exemption may be
denied to employees who pose comparable risks of spreading the
virus without thereby rendering the mandate not generally
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applicable and so subject to strict scrutiny. Rather, the
appellees simply appear to assume that it follows from the prospect
of such greater federal statutory liability that granting medical
exemptions to such employees while denying them religious
exemptions would not trigger the application of strict scrutiny.
We thus do not see how we may rely on this ground to affirm the
District Court's "likelihood of success" ruling as to the
appellants' free exercise claim. See Zannino, 895 F.2d at 17.
The appellees do advance one other argument for
affirming the District Court's "likelihood of success" ruling on
a ground on which the District Court did not itself rely. They
argue that the record shows that Manchester "was not provided any
type of long-term or permanent 'accommodation' as [the appellants]
suggest, and certainly not the type of permanent, personal,
exemption from the Policy that [the appellants] sought" through
their religious exemptions.
But, insofar as the appellees mean in drawing this
distinction to be arguing that Manchester's medical exemption is
not comparable to the appellants' request for a religious exemption
due to its limited duration, they make no attempt to explain how
the length of the medical exemption bears on any of the appellees'
asserted interests in the Policy such that granting the time-
limited exemption would not undermine the Policy in the same way.
Thus, once again we see no basis for affirming the ruling below on
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a ground independent of the grounds on which the District Court
relied. See Lowe, 68 F.4th at 715 ("We thus cannot conclude, at
least without more facts, that this interest renders the two
exemptions incomparable."); Tandon, 141 S. Ct. at 1296.
Accordingly, we agree with the appellants that the
District Court's "likelihood of success" ruling on the free
exercise claim cannot be sustained, as the reasons that the
District Court gave for concluding that the appellants had no
likelihood of succeeding on that claim do not suffice to show as
much. Moreover, because the District Court's denial of preliminary
relief as to this claim rested heavily on its conclusion that the
appellants' claims failed to satisfy the likelihood of success
factor, it is not evident that the District Court reached a
similarly conclusive judgment as to any of the remaining factors.
And, given the minimal briefing from either side on these other
factors, as well as the District Court's recognition of the way
that those factors may be dependent on whether the appellants can
show a likelihood of success on the merits, we decline to resolve
this appeal based on these "issue[s] not passed on below."
Singleton v. Wulff, 428 U.S. 106, 121 (1976).
Thus, we vacate the District Court's ruling with respect
to its denial of the requested injunctive relief on the appellants'
free exercise claim. We leave it to the parties and to the District
Court on remand, therefore, to consider the appellants' request
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for that relief under the applicable legal framework that we have
set forth above, including by considering how our decisions in
Mills and Lowe bear on the appellants' request for such relief in
light of the record that has been developed.4
B.
We turn next to the appellants' challenge to the District
Court's ruling that they were not entitled to the preliminary
injunction based on their privacy-based claim under the Due Process
Clause of Fourteenth Amendment. Here, too, the District Court in
4 We note that although the appellees mention that
Manchester's medical exemption request was granted only on a
temporary basis "and based on a note from his health care provider
that, pursuant to CDC guidelines, a COVID-19 vaccination was
contraindicated for three months due to Mr. Manchester’s recent
infection," the appellees do not develop an argument independent
of the duration of the accommodation for concluding that the
Policy, as administered, is generally applicable. For example, we
do not understand them to argue that Manchester's medical status,
in consequence of his prior infection, could provide such a basis
on its own, due either to his own individual medical status or the
relative volume of religious versus medical exemption requests.
Cf. Hochul, 17 F.4th at 286 (holding that plaintiffs failed to
establish that a vaccine mandate with a medical exemption but not
a religious exemption was generally applicable in part due to the
evidence in the record indicating "that medical exemptions are
likely to be more limited in number than religious exemptions, and
that high numbers of religious exemptions appear to be clustered
in particular geographic areas").
Nor, we note, do the appellees argue that the fact the
Authority was acting in a managerial capacity rather than as a
regulator means we should apply a more deferential approach in
determining whether the Policy is generally applicable. Cf.
Fulton, 141 S. Ct. at 1878.
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so ruling determined that the plaintiffs had failed to show a
likelihood of success on the claim.
The District Court based its "likelihood of success"
determination on the analysis outlined in Jacobson v.
Massachusetts, 197 U.S. 11 (1905). It then reasoned that the
Policy "does not violate any of the plaintiffs' fundamental rights
under the Fourteenth Amendment," that "[s]temming the spread of
COVID-19 is unquestionably a compelling interest," Brox, 590 F.
Supp. 3d at 369 (quoting Roman Cath. Diocese of Brooklyn, 141 S.
Ct. at 67), and that the Policy bears a "real or substantial
relation" to that interest, id. (quoting Jacobson, 197 U.S. at
31).
The appellants contend on appeal, however, that the
District Court did not apply the correct standard of scrutiny.
The appellants argue that the District Court "ought to have
strictly scrutinized and enjoined" the Policy when confronted with
the appellants' "allegations and evidence" that the appellees
implemented the Policy in "a manner which violated their
fundamental constitutional and statutory rights." Cf. Roman Cath.
Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring)
("Although Jacobson pre-dated the modern tiers of scrutiny, this
Court essentially applied rational basis review.").
The appellants develop no argument, however, as to why
we must apply strict scrutiny in determining whether the Policy
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violates their claimed rights to privacy, personal autonomy, or
personal identity under the Fourteenth Amendment. Cf. id.
(Gorsuch, J., concurring) ("Rational basis review is the test this
Court normally applies to Fourteenth Amendment challenges, so long
as they do not involve suspect classifications based on race or
some other ground, or a claim of fundamental right."). Thus, any
such contention is waived for lack of development. See Zannino,
895 F.2d at 17.5
The appellants do contend that even under rational basis
review they are likely to succeed on their privacy-based Fourteenth
Amendment claim. They chiefly do so on the ground that the
District Court abused its discretion by "[r]esting" its "decision"
on "contestable" judicially noticed facts regarding the number of
deaths "caused" by COVID-19 and whether the FDA "ha[d] given full
approval" to the Pfizer and Moderna vaccines. But even setting
aside those aspects of the District Court's ruling, the record
includes a CDC fact-sheet, to which the District Court referred,
which states that "people who are up to date on vaccines, including
booster doses when eligible are likely to have stronger protection
against COVID-19 variants, including Omicron." And regardless of
5 In their reply brief on appeal, the appellants argue that
the Policy does not "[w]arrant [r]ational [b]asis [t]reatment"
because the appellees are "not the legislature and [have] no
delegation of [power] to implement the [Policy]." However, as
explained, arguments not made in a party's opening brief on appeal
are waived. See Vanvliet, 542 F.3d at 265 n.3.
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whether the statements in this document are in fact true, they are
more than sufficient to show the Authority had a "plausible
justification" for adopting the Policy, which is all that is
required to satisfy rational basis review. See A.C. by Waithe v.
McKee, 23 F.4th 37, 46 (1st Cir. 2022); see also Mills, 16 F.4th
at 32; Roman Cath. Dioceses of Brooklyn, 141 S. Ct. at 67
("Stemming the spread of COVID–19 is unquestionably a compelling
interest.").
Nor is our conclusion in this regard called into question
by the studies in the record that the appellants contend provide
"uncontroverted evidence" that the "vaccines confer no broad
public health or safety benefit in terms of reducing spread" and
thus demonstrate that the Policy bears "no relation to its stated
purpose, namely, preventing the viral spread of COVID-19." For,
in light of the CDC fact sheet, we do not see how we can conclude
that the Policy lacks "any plausible justification." See McKee,
23 F.4th at 47.
C.
Finally, we come to the arguments that the appellants
make in challenging the District Court's ruling denying the
requested relief on their state-law claims. We begin with their
challenge to the District Court's determination that they were not
likely to succeed on the merits of their religious discrimination
claim under M.G.L. c. 151B, § 4.
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The appellants contend that the District Court abused
its discretion by "[m]aking [a]dverse [f]indings [r]egarding the
[s]incerity of [a]ppellants' [r]eligious [b]eliefs." The District
Court did state, in addressing the claim, that "the record suggests
that plaintiffs' opposition to receiving the COVID-19 vaccine is
based primarily on 'philosophical, medical, or scientific beliefs,
or personal fears or anxieties' rather than bona fide religious
practices." Brox, 590 F.Supp.3d at 366. But it is not clear that
the District Court meant to make an affirmative determination
regarding the sincerity of the appellants' beliefs for purposes of
their state-law claim. Moreover, the District Court independently
held that the appellants were unlikely to succeed on this claim,
"[e]ven assuming, arguendo that plaintiffs have established a
prima facie case of religious discrimination," because the
appellees had "readily demonstrated that accommodating [their]
religious obligations would impose an undue hardship." Id. at
366-67. And yet the appellants do not meaningfully challenge the
District Court's conclusion on that score. In particular, the
appellants do not engage with the de minimis standard for what
constitutes an undue hardship under M.G.L c. 151B, on which the
district court's conclusion rested. See id. Thus, any challenge
to this claim is waived for lack of development. See Zannino, 895
F.2d at 17.
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That leaves only the appellants' challenge to the
District Court's ruling denying the requested injunctive relief
based on the appellants' claim under Article 2 of the Massachusetts
Declaration of Rights. There, the District Court determined that
the appellants were unlikely to succeed on the claim because they
failed to allege "that the Policy trenches on any religious
ritual." Brox, 590 F. Supp. 3d at 365. But, although the
appellants purport to be challenging on appeal the district court
ruling as to that claim, they advance no argument disputing the
District Court's reasoning. Thus, any challenge to that aspect of
the District Court's judgment is waived as well. See Zannino, 895
F.2d at 17.
III.
For these reasons, the judgment of the District Court is
affirmed in part and vacated in part. We remand for further
proceedings not inconsistent with this opinion. Each party shall
bear their own costs.
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