FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
LEGACY CHURCH, INC.,
Plaintiff - Appellant,
v. No. 20-2117
(D.C. No. 1:20-CV-00327-JB-SCY)
TRACIE C. COLLINS; STATE OF NEW (D. N.M.)
MEXICO,
Defendants - Appellees.
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AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE; ANTI-DEFAMATION LEAGUE;
REV. TALITHA ARNOLD, Senior
Minister, United Church of Santa Fe;
BEND THE ARC: A JEWISH
PARTNERSHIP FOR JUSTICE;
COVENANT NETWORK OF
PRESBYTERIANS; DISCIPLES
CENTER FOR PUBLIC WITNESS;
EQUAL PARTNERS IN FAITH; FIRST
CONGREGATIONAL UNITED
CHURCH OF CHRIST ALBUQUERQUE;
INTERFAITH ALLIANCE
FOUNDATION; KANSAS-OKLAHOMA
CONFERENCE, UNITED CHURCH OF
CHRIST; METHODIST FEDERATION
FOR SOCIAL ACTION; NATIONAL
COUNCIL OF THE CHURCHES OF
CHRIST IN THE USA;
RECONSTRUCTIONIST RABBINICAL
ASSOCIATION; REVERAND DR.
MARC IAN STEWART, Conference
Minister, Montana-Northern Wyoming
Conference, United Church of Christ;
SOUTHWEST CONFERENCE OF THE
UNITED CHURCH OF CHRIST,
Amici Curiae.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, EBEL, and McHUGH, Circuit Judges.
_________________________________
Throughout the COVID-19 pandemic, the Secretary of the New Mexico
Department of Health issued public health orders aimed at mitigating the spread of
COVID by restricting mass gatherings as defined by those orders. These restrictions
applied broadly, including, as of April 11, 2020, to houses of worship. 1 In response,
Plaintiff-Appellant Legacy Church sued the State of New Mexico 2 and the Secretary,
challenging the occupancy limitations as violating Legacy Church’s constitutional
rights under the Free Exercise and Freedom of Assembly Clauses.
After filing suit, Legacy Church requested a preliminary injunction prohibiting
the Secretary from enforcing mass-gathering restrictions on places of worship. The
Secretary responded and moved to dismiss for failure to state a claim. The district
court denied Legacy Church’s request for a preliminary injunction and granted the
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
As of April 28, 2021, there are no longer any mandatory capacity restrictions
on houses of worship in New Mexico.
2
The district court previously dismissed New Mexico as a party under the
Eleventh Amendment and that dismissal is not challenged in this appeal.
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Secretary’s motion to dismiss the case. It also declined to grant Legacy Church leave
to amend its complaint on the grounds that amendment would be futile.
Legacy Church’s Notice of Appeal refers to the July 13, 2020, district court
order which both denied a preliminary injunction and dismissed the action. Although
that order was very lengthy, addressing a number of different arguments, in its
briefing and in oral argument, Legacy Church challenged only the district court’s
decision to deny its motion for a preliminary injunction, focusing almost entirely on
the June 30, 2020, public health order under the Free Exercise Clause. Though
Legacy Church briefly acknowledges the district court’s dismissal of the action in its
opening brief’s jurisdictional statement, it is never mentioned again. Legacy Church
does not argue that the dismissal was erroneous. Arguments not included in the
opening brief are waived. U.S. v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015) (“We
cannot rule on those issues the appellant does not bring to our attention.”). Further,
Legacy Church admitted in oral argument that it does not appeal the district court’s
dismissal of the case. Oral Argument at 11:54–58.
Regardless of the merits of Legacy Church’s arguments, a preliminary
injunction must terminate when the action is terminated. Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is
merely to preserve the relative positions of the parties until a trial on the merits can
be held.”). As any arguments challenging the dismissal of the action have been
waived, a discussion of the denial of a preliminary injunction would be purely
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academic. We therefore decline to address the merits of Legacy Church’s appeal in
light of the dismissal and AFFIRM.
Entered for the Court
David M. Ebel
Circuit Judge
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