Agudath Isr. of Am. v. Cuomo, Docket Nos. 20-3572-cv

• Decision Date: 09 November 2020
• Docket Number: August Term, 2020,Docket Nos. 20-3572-cv,20-3590-cv
• Citation: 980 F.3d 222
• Parties: AGUDATH ISRAEL OF AMERICA, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein, Plaintiffs-Appellants, v. Andrew M. CUOMO, Governor of the State of New York, in His Official Capacity, Defendant-Appellee. The Roman Catholic Diocese of Brooklyn, New York, Plaintiff-Appellant, v. Governor Andrew M. Cuomo, in His Official Capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

980 F.3d 222

AGUDATH ISRAEL OF AMERICA, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein, Plaintiffs-Appellants,

v.Andrew M. CUOMO, Governor of the State of New York, in His Official Capacity, Defendant-Appellee.

The Roman Catholic Diocese of Brooklyn, New York, Plaintiff-Appellant,

v.Governor Andrew M. Cuomo, in His Official Capacity, Defendant-Appellee.

Docket Nos. 20-3572-cv

20-3590-cv

August Term, 2020

United States Court of Appeals, Second Circuit.

Motion argued: November 3, 2020

Decided: November 9, 2020

I

These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic. The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an emergency executive order to limit further spread of the virus in these COVID-19 "hotspots." No. 20 Civ. 4834 (KAM), doc. 12 ("Zucker Decl.") at 19; see No. 20 Civ. 4844 (NGG), doc. 20 ("Blog Decl.") at 20–24.

The executive order directs the New York State Department of Health to identify yellow, orange, and red "zones" based on the severity of outbreaks, and it imposes correspondingly severe restrictions on activity within each zone. See N.Y. Exec. Order No. 202.68. For example, the order provides that in "red zones," which have "extraordinarily high rates of positivity" for COVID-19, No. 20 Civ. 4844 (NGG), doc. 31-1 ("Backenson Tr.") at 66, non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, schools must be closed for in-person instruction, restaurants cannot seat any customers, and houses of worship may hold services but are subject to a capacity limit of 25 percent of their maximum occupancy or 10 people, whichever is fewer.

The record on appeal also justifies, based on epidemiological evidence, the distinction the executive order draws between essential and non-essential businesses in these zones. See, e.g. , Backenson Tr. at 89–90. During the district court proceedings the Appellants did not rebut that distinction with any scientific evidence to the contrary.

The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein (collectively, "Agudath Israel"), and The Roman Catholic Diocese of Brooklyn, New York (the "Diocese")—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. In each case, the district court denied the Appellants’ motion for a preliminary injunction against the enforcement of the order. The Appellants now move for emergency injunctions pending appeal and to expedite their appeals, after an applications Judge on our Court denied their requests for an administrative stay, No. 20-3572, doc. 30; No. 20-3590, doc. 29. To be clear, in this opinion we resolve only these motions for emergency relief, not the Appellants’ underlying appeals challenging the District Courts’ refusals to provide preliminary injunctive relief.¹

II

A

Preliminarily, we conclude that Agudath Israel did not "move first in the district court for" an order "granting an injunction while an appeal is pending" before filing with this Court its present motion for an injunction pending appeal. Fed. R. App. P. 8(a)(1)(C). Instead, Appellant moved for a preliminary injunction pending the district court's final judgment. In its briefs and at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel also has failed to demonstrate that "moving first in the district court would be impracticable," Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days elapsed after the district court's ruling before Agudath Israel sought relief from this Court. We deny Agudath Israel's motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in N.Y. , 984 F.2d 35, 38 (2d Cir. 1993).

B

We deny the Diocese's motion for an injunction pending appeal—and would deny the motion filed by Agudath Israel if it were properly before us—for the reasons that follow.

As an initial matter, an injunction is "an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To obtain an injunction from a district court, movants generally bear the burden of showing that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20, 129 S.Ct. 365. To obtain a stay of a district court's order pending appeal, more is required, including a "strong showing that [the movant] is likely to succeed on the merits." New York v. U.S. Dep't of Homeland Sec. , 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still more drastic than a stay: an injunction issued in the first instance by an appellate court. "Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts." Respect Maine PAC v. McKee , 562 U.S. 996, 996, 131 S.Ct. 445, 178 L.Ed.2d 346 (2010) (quotation marks omitted).

"The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status." Espinoza v. Mont. Dep't of Revenue , ––– U.S. ––––, 140 S. Ct. 2246, 2254, 207 L.Ed.2d 679 (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep't of Health & Mental Hygiene , 763 F.3d 183, 193 (2d Cir. 2014) ("[T]he Free Exercise Clause ... protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.") (quotation marks omitted). But the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," Emp't Div., Dep't of Human Res. v. Smith , 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (quotation marks omitted), "even if the law has the incidental effect of burdening a particular religious practice," Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

"A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny." Cent. Rabbinical , 763 F.3d at 193 (citing Lukumi , 508 U.S. at 531–32, 113 S.Ct. 2217 ). "A law is not neutral if it is specifically directed at a religious practice." Id. (cleaned up). Similarly, a law is "not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it." Id. at 197.

The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J. , concurring) (denying emergency injunctive relief to houses of worship that were subject to similar or less severe restrictions than those applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v. Pritzker , 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious gatherings at ten people where the most comparable activities—those "that occur in auditoriums, such as concerts and movies"— had been banned completely); cf. Commack Self-Serv. Kosher Meats, Inc. v. Hooker , 680 F.3d 194, 210–11 (2d Cir. 2012) (holding that a Kosher food labeling act was a neutral and generally applicable law subject to rational basis review because it applied to "food purchased by individuals of many different religious beliefs" and impacted consumers who purchased kosher products "for reasons unrelated to religious observance"). Gatherings at houses of worship in these zones, far from being relegated to a second tier, are favored over comparable secular gatherings.

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not "substantially underinclusive" given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo criticizing the order's policy of "clos[ing] every school" as "a policy being cut by a hatchet," not "a scalpel"). To the contrary, the executive order "extend[s] well beyond isolated groups of religious adherents" to "encompass[ ] both secular and religious conduct." Cent. Rabbinical , 763 F.3d at 195.

Before the District Courts, the State also explained why gatherings at certain large commercial stores...