389 F.3d 973 (10th Cir. 2004), 02-2323, O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft

Docket Nº:02-2323.
Citation:389 F.3d 973
Party Name:O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; Jeffrey Bronfman, individually and as President of UDV-USA; Daniel Tucker, individually and as Vice-President of UDV-USA; Christina Barreto, individually and a
Case Date:November 12, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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389 F.3d 973 (10th Cir. 2004)

O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; Jeffrey Bronfman, individually and as President of UDV-USA; Daniel Tucker, individually and as Vice-President of UDV-USA; Christina Barreto, individually and as Secretary of UDV-USA; Fernando Barreto, individually and as Treasurer of UDV-USA; Christine Berman; Mitchel Berman; Jussara De Almeida Dias, also known as Jussara Almeida Dias; Patricia Domingo; David Lenderts; David Martin; Maria Eugenia Pelaez; Bryan Rea; Don St. John; Carmen Tucker; Solar Law, individually and as members of UDV-USA, Plaintiffs-Appellees,

v.

John ASHCROFT, Attorney General of the United States; Asa Hutchinson, Administrator of the United States Drug, Enforcement Administration; Paul H. O'Neill, Secretary of the Department of Treasury of the United States; David C. Iglesias, United States Attorney for the District of New Mexico; David F. Fry, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico; all in their official capacities, Defendants-Appellants,

Christian Legal Society; The National Association of The Evangelicals; Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); Queens Federation of Churches, Amicus Curiae.

No. 02-2323.

United States Court of Appeals, Tenth Circuit

November 12, 2004

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Gregory G. Katsas, Deputy Assistant Attorney General (David C. Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General, Michael Jay Singer, Attorney, Department of Justice and Matthew M. Collette, Attorney, Department of Justice with him of the briefs), of the Department of Justice, Washington, DC, for Defendants-Appellants.

John W. Boyd (Nancy Hollander with him on the brief), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, NM, for Plaintiffs-Appellees.

Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and Religious Freedom, Christian Legal Society, Annandale, VA, filed an amicus curiae brief on behalf of Plaintiffs-Appellees.

Before TACHA, Chief Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

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 sacramental

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use of hoasca by Uniao do Vegetal 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-1, 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 movant 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

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relief, 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, Briscoe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.

VI.

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.

MURPHY, Circuit Judge, joined in full by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in part.

I agree with the per curiam opinion that a movant for a preliminary injunction must make a heightened showing when the requested injunction will alter the status quo. As set out more fully below, such an approach is completely consistent with the historic purpose of the preliminary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") has sufficiently shown its entitlement to a preliminary injunction prohibiting the United States from enforcing the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. As a direct result of the preliminary injunction embraced by the majority, the United States is placed in violation of the United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the "Convention"). I thus dissent from parts III.B and IV of the per curiam opinion.

I.

A. A Heightened Showing is Appropriate When the Requested Preliminary Injunction Would Alter the Status Quo

The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (quotation omitted); accord SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) ("As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). The Supreme Court has further indicated that the "limited purpose" of a preliminary injunction

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"is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Accordingly, courts should be hesitant to grant the extraordinary interim relief of a preliminary injunction in any particular case, but especially so when such an injunction would alter the status quo prior to a trial on the merits.

This court's precedents are in harmony with the sentiments expressed by the Supreme Court in Mazurek and Camenisch. In particular, this court has identified the following three types of disfavored...

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