I Nre South Bay United Pentecostal Church v. United States District Court for the Southern District of California , San Diego

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
I N RE SOUTH BAY UNITED
PENTECOSTAL CHURCH; BISHOP
ARTHUR HODGES III,
SOUTH BAY UNITED PENTECOSTAL
CHURCH, a California nonprofit
corporation; BISHOP A RTHUR HODGES
III, an individual,
Petitioners,
v.
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
CALIFORNIA , SAN DIEGO ,
Respondent,
GAVIN NEWSOM , in his official capacity
as the Governor of California; M ATT
RODRIGUEZ , in his official capacity as
the Acting Attorney General of
California; TOMAS ARAGON, in his
official capacity as California Public
Health Officer; WILMA J. W OOTEN , in
her official capacity as Public Health
Officer, County of San Diego; HELEN
ROBBINS -M EYER, in her official
capacity as Director of Emergency
No. 21-70769
D.C. No.
3:20-cv-00865-
BAS-AHG
ORDER

-- 1 of 10 --

2 I N RE SOUTH BAY PENTECOSTAL CHURCH
Services; WILLIAM D. GORE , in his
official capacity as Sheriff of the
County of San Diego,
Real Parties in Interest.
Petition for Writ of Mandamus
Submitted April 2, 2021*
Filed April 2, 2021
Before: Kim McLane Wardlaw and Richard R. Clifton,
Circuit Judges, and Timothy Hillman,** District Judge.
Order
SUMMARY***
Civil Rights
The panel denied, without prejudice, an Urgent Petition
for Writ of Mandamus under Circuit Rule 27-3(b), filed on
March 30, 2021 by South Bay United Pentecostal Church
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable Timothy Hillman, United States District Judge for
the District of Massachusetts, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

-- 2 of 10 --

I N RE SOUTH BAY PENTECOSTAL CHURCH 3
and Bishop Arthur Hodges III, which asserted that the
district court erred by denying a temporary restraining order
pending an evidentiary hearing.
South Bay Pentecostal Church and Bishop Arthur
Hodges (collectively, “South Bay”) sought an injunction
against enforcement of the State of California’s Covid-19
capacity restrictions on indoor worship before Easter Holy
Week commenced on March 28, 2021. On February 5, 2021,
the Supreme Court issued South Bay United Pentecostal
Church, et al. v. Newsom, et al., 141 S. Ct. 716 (2021), which
enjoined the State of California from enforcing the Blueprint
for a Safer Economy’s Tier 1 prohibition on indoor worship
services against South Bay. The Court nevertheless denied
South Bay’s request for injunctive relief with respect to the
percentage capacity limitations across all tiers of the
Blueprint, and specifically stated that the State was not
enjoined from imposing a 25% capacity limitation on indoor
worship services in Tier 1. The Court invited South Bay to
present further evidence to the district court that the State’s
25% and 50% capacity restrictions on indoor worship
services were underinclusive and thus violated the Free
Exercise Clause.
South Bay moved for a temporary restraining order
(“TRO”) on an emergency basis on March 11, 2021, more
than a month after the State’s February 6, implementation of
revised restrictions on indoor worship. In accordance with
South Bay’s request, the district court set the TRO hearing
for March 24, before Palm Sunday. But South Bay requested
an extension of time for the briefing and hearing schedule so
that it could file a reply. To accommodate this request, the
district court reset the hearing date for March 29. Although
the Supreme Court had permitted South Bay to present new
evidence to show that the percentage capacity limitations

-- 3 of 10 --

4 I N RE SOUTH BAY PENTECOSTAL CHURCH
were not generally applicable, South Bay failed to do so until
it filed the TRO reply papers.
At the March 29, 2021 TRO hearing, the district court
considered both parties’ submitted declarations addressing
the application of the percentage caps. The State contended
that the percentage caps were applied in a way that favored
places of worship. South Bay, on the other hand, averred
that the State’s arguments constituted an impermissible post
hoc rationalization. Both parties represented that additional
evidence was forthcoming. The district court was unable to
make findings on an adequate record and thus exercised its
discretion to further continue the hearing to develop the
record for meaningful review. The panel held that this was
not an abuse of discretion, notwithstanding the unfortunate
timing. The panel thus could not conclude that the district
court committed clear error as a matter of law, and
accordingly, denied without prejudice, South Bay’s petition
for this extraordinary relief.
COUNSEL
Charles S. LiMandri, Paul M. Jonna, and Jeffrey M. Trissell,
LiMandri & Jonna, LLP, Rancho Santa Fe, California;
Thomas Brejcha, Peter Breen, and Christopher A. Ferrara,
Thomas More Society, Chicago, Illinois; Harmeet K.
Dhillon and Mark P. Meuser, Dhillon Law Group Inc., San
Francisco, California; for Petitioners.
Todd Grabarsky, Lisa J. Plank, and Anna Ferrari, Deputy
Attorneys General, Paul Stein, Supervising Deputy Attorney
General; Thomas S. Patterson, Senior Assistant Attorney
General; Matthew Rodriquez, Acting Attorney General;
Office of the Attorney General of California, Los Angeles,

-- 4 of 10 --

I N RE SOUTH BAY PENTECOSTAL CHURCH 5
California; for Real Parties in Interest Governor Gavin
Newsom, Acting Attorney General, Matthew Rodriquez,
and Public Health Officer, Dr. Tomás Aragón.
Timothy M. White and Jeffrey P. Michalowski, Senior
Deputies, Office of County Counsel, San Diego, California;
for Real Parties in Interest Dr. Wilma J. Wooten, Helen
Robbins-Meyer, and William D. Gore.
Richard B. Katskee, Alex J. Luchenitser, and Adrianne M.
Spoto, Americans United for Separation of Church and
State, Washington, D.C., for Amici Curiae Americans
United for Separation of Church and State; Central
Conference of American Rabbis; Covenant Network of
Presbyterians; Disciples Center for Public Witness;
Disciples Justice Action Network; Equal Partners in Faith;
Interfaith Alliance Foundation; Men of Reform Judaism;
Methodist Federation for Social Action; National Council of
the Churches of Christ in the USA; Reconstructionist
Rabbinical Association; Southwest Conference of the
United Church of Christ; Union for Reform Judaism; and
Women of Reform Judaism.
ORDER
On March 30, 2021, South Bay United Pentecostal
Church and Bishop Arthur Hodges III (collectively, “South
Bay”) filed an Urgent Petition for Writ of Mandamus under
Circuit Rule 27-3(b) (ECF No. 1). That same day, we
ordered an answer from the State of California (the “State”)
(ECF No. 2). For the following reasons, we deny the petition
without prejudice.

-- 5 of 10 --

6 I N RE SOUTH BAY PENTECOSTAL CHURCH
On February 5, 2021, the Supreme Court issued South
Bay United Pentecostal Church, et al. v. Newsom, et al., 141
S. Ct. 716 (2021) (“South Bay II”). The Court enjoined the
State of California from “enforcing the Blueprint’s [for a
Safer Economy] Tier 1 prohibition on indoor worship
services” against South Bay. Id. at 716. The Court denied
South Bay’s request for injunctive relief “with respect to the
percentage capacity limitations,”1 and specifically stated that
the State was “not enjoined from imposing a 25% capacity
limitation on indoor worship services in Tier 1.” Id. at 716.
The Court further explained that its “order is without
prejudice to the applicants presenting new evidence to the
District Court that the State is not applying the percentage
capacity limitations . . . in a generally applicable manner.”2
Id. (emphasis added). In other words, the Court invited
South Bay to present further evidence to the district court
that the State’s 25% and 50% capacity restrictions on indoor
worship services are underinclusive because the same
restrictions do not apply to secular activities that pose similar
dangers of spreading COVID-19, and thus violate the Free
Exercise Clause.
The following day, February 6, the State revised the
Blueprint to allow indoor worship at 25% capacity in Tier 1
and removed the numerical caps in Tiers 2 and 3 (the latter
of which we had previously ordered). The State retained the
25% capacity limit in Tier 2 and the 50% capacity limit in
1 South Bay’s emergency application in the Supreme Court had also
requested that the percentage capacity limitations across all tiers of the
Blueprint be enjoined. The Supreme Court declined to do so. See South
Bay II, 141 S. Ct. at 716.
2 South Bay’s urgent petition concedes that the Court’s reference to
“percentage capacity limitations” is to Tiers 2 through 4, as Tier 1
prohibited indoor worship entirely and imposed no capacity limitation.

-- 6 of 10 --

I N RE SOUTH BAY PENTECOSTAL CHURCH 7
Tiers 3 and 4. The State also loosened its ban on singing and
chanting during worship services by permitting performers
(but not congregants in the audience) to engage in singing,
chanting, and similar vocalizations, subject to face-
coverings, enhanced distancing, and other precautions.3
Although it has long been known that Easter Sunday
would be on April 4, 2021, with Palm Sunday falling on the
prior Sunday, March 28, South Bay waited until March 11,
more than a month after the State’s February 6
implementation of the revised restrictions, to move for a
temporary restraining order (“TRO”) on an emergency basis
in the district court. It sought an injunction against
enforcement of the 25% capacity restriction before Holy
Week commenced on March 28.4 South Bay submitted no
new evidence with its motion.5 In accordance with South
Bay’s request, the district court set the TRO hearing for
March 24, before Palm Sunday. But South Bay requested an
extension of time for the briefing and hearing schedule so
that it could file a reply. To accommodate this request, the
district court reset the hearing date for March 29.
3 Heeding concerns expressed by members of the South Bay II
Court, the State also clarified that performers in the entertainment
industry are prohibited from singing before a live audience.
4 Although it is clear that South Bay seeks to enjoin Tier 2’s 25%
capacity limitation, it is unclear precisely what relief South Bay seeks.
In its petition, South Bay suggests that it should be treated both like
nonessential retail (subject to a 50% capacity limitation in Tier 2) and
like a grocery store (subject to no capacity restrictions in Tiers 2–4 but
required to follow other stringent social distancing requirements).
5 In response to the State’s expert declaration addressing occupancy
rates and how they affect percentage of capacity limitations, South Bay
submitted new declarations of its own for the first time on reply.

-- 7 of 10 --

8 I N RE SOUTH BAY PENTECOSTAL CHURCH
At the TRO hearing, the district court determined that an
evidentiary hearing was necessary before it could properly
grant injunctive relief. The new evidence presented by both
sides joined at least two questions: (1) Whether due to
occupancy loads, notwithstanding the lower percentage caps
for worship services as compared to certain secular
activities, houses of worship were in actuality treated more
favorably than those activities; and (2) whether the State
took occupancy loads into consideration when determining
the least restrictive means or whether this argument is a post
hoc rationalization. The district court noted the
understandable frustration of some members of the Court
with the lack of a meaningful record, see, e.g., South Bay II,
141 S. Ct. at 717 (Barrett, J., concurring), so it determined
that it could not grant immediate injunctive relief without
holding an evidentiary hearing. After initially scheduling
the hearing for April 7, the court pushed it back to
accommodate South Bay’s discovery requests. South Bay
then filed this urgent petition with our court, contending that
the district court erred by denying the TRO pending an
evidentiary hearing.
“Mandamus ‘is a drastic and extraordinary remedy
reserved for really extraordinary causes.’” In re Bundy, 840
F.3d 1034, 1040 (9th Cir. 2016) (quoting Cheney v. U.S.
Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (internal
quotation marks omitted)). “[O]nly exceptional
circumstances amounting to a judicial usurpation of power,
or a clear abuse of discretion, will justify the invocation of”
the remedy. Cheney, 542 U.S. at 380. Because “the writ is
one of ‘the most potent weapons in the judicial arsenal,’”
Bundy, 840 F.3d at 1040 (quoting Cheney, 542 U.S. at 380),
we consider five factors to determine whether relief is
appropriate:

-- 8 of 10 --

I N RE SOUTH BAY PENTECOSTAL CHURCH 9
(1) whether the petitioner has other adequate
means, such as direct appeal, to attain the
relief he or she desires; (2) whether the
petitioner will be damaged or prejudiced in a
way not correctable on appeal; (3) whether
the district court’s order is clearly erroneous
as a matter of law; (4) whether the district
court’s order makes an “oft-repeated error,”
or “manifests a persistent disregard of the
federal rules”; and (5) whether the district
court’s order raises new an important
problems, or legal issues first impression.
In re Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011) (citing
Bauman v. United States Dist. Ct., 557 F.2d 650, 654–55
(9th Cir. 1977)). “[T]he absence of factor three—clear error
as a matter of law—will always defeat a petition for
mandamus.” Bundy, 840 F.3d at 1941 (quoting In re United
States, 791 F.3d 945, 955 (9th Cir. 2015)).
We cannot conclude that the district court committed
clear error as a matter of law. The Supreme Court permitted
South Bay to present new evidence to show that the
percentage capacity limitations are not generally applicable,
but South Bay failed to do so until it filed its TRO reply
papers. At the hearing, the district court considered both
parties’ submitted declarations addressing the application of
the percentage caps. The State contended that the percentage
caps are applied in a way that favors places of worship.
South Bay, on the other hand, averred that the State’s
arguments constituted an impermissible post hoc
rationalization. Both parties represented that additional
evidence is forthcoming. The district court was unable to
make findings on an adequate record and thus exercised its
discretion to continue the hearing to develop the record for

-- 9 of 10 --

10 I N RE SOUTH BAY PENTECOSTAL CHURCH
meaningful review. This was not an abuse of discretion,
notwithstanding the unfortunate timing.
Accordingly, we DENY without prejudice South Bay’s
petition for this extraordinary relief.
IT IS SO ORDERED.

-- 10 of 10 --