First Circuit Refuses Appellate Jurisdiction Over Denial of TRO in a COVID-19 Closure Case

In Calvary Chapel of Bangor v. Mills, No. 20-1507 (1st Cir. Dec. 22, 2020), the panel denies appellate jurisdiction over the district court’s denial of a temporary restraining order (TRO), sought by a religious organization challenging the state’s emergency measures in response to the coronavirus pandemic.

On April 29, 2020, after implementing a statewide shutdown to arrest the spread of COVID-19, the Governor of Maine (Mills) ordered a phased return to public gatherings. Calvary Chapel, finding the plan too restrictive, filed a lawsuit on May 5 “contend[ing] that these [pandemic] orders violated several federal and state constitutional and statutory provisions, including, principally, the Free Speech, Free Exercise, Assembly, and Establishment protections of the First Amendment.” It moved for a TRO, and alternatively for a preliminary injunction. The state responded and on May 9, the district court denied the TRO. Rather than press for the preliminary injunction, the plaintiff appealed the TRO.

While both parties agreed that the panel had jurisdiction, the First Circuit holds that the appeal did not fit within any exception to the requirement for a final decision.

Courts of appeals may review nonfinal district court orders “granting, continuing, modifying, refusing or dissolving injunctions.” 42 U.S.C. § 1292(a)(1). This section does not apply to TROs. But if an appellant can make a three-part showing — demonstrating that the refusal of a temporary restraining order had the practical effect of denying injunctive relief, will likely cause serious (if not irreparable) harm, and can only be effectually challenged by means of an immediate appeal — section 1292(a)(1) may be invoked.”

For the first element, a ruling may have “the practical effect of denying injunctive relief either if it was issued after a full adversarial hearing or if no further interlocutory relief is available in the absence of immediate review.” Here, though, there was only a phone conversation with counsel and the court that wasn’t even transcribed. “[W]e see no reason to disregard the district court’s unambiguous description of itself as adjudicating only the Chapel’s motion for a temporary restraining order.”

Furthermore, the record was poorly developed. ‘[C]omments and gaps in the record suggest that a preliminary injunction hearing would not have been either a redundancy or an exercise in futility. And whether or not a better-informed proceeding would have yielded a different outcome — a matter that is left entirely to speculation on this truncated record — the intervening development of the record would have facilitated subsequent appellate review.”

For the second element, the panel holds that there was insufficient harm to justify review. Any injury to the right to worship had to be weighed against “the extraordinary epidemiological crisis that has engulfed Maine and every other part of the United States . . . . Given the gravity of the situation and the fact that events remained in flux, we discern no sufficient basis for finding that the Chapel can satisfy the second of the three requirements for immediate appealability of a temporary restraining order.”

As to the third element, the panel holds that the dispute could await further development before review. “The district court’s denial of the temporary restraining order did not herald an irreversible or meaningful shift in the relationship between the parties. Instead, the denial merely kept in place the same gathering restrictions under which the Chapel already was operating . . . . [M]oreover, the effect of the denial was of modest temporal duration.”

Concurring in the judgment, Judge Barron notes that he would have denied review solely on the basis that “this case did not have the practical effect of denying a preliminary injunction” and that he otherwise sees “little reason to speak more broadly than necessary.”

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