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FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`APR 2 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 21-70769
`
`
`D.C. No.
`3:20-cv-00865-BAS-AHG
`Southern District of California,
`San Diego
`
`
`ORDER
`
`
`
`
`
`
`
` Petitioners,
`
`In re: SOUTH BAY UNITED
`PENTECOSTAL CHURCH; BISHOP
`ARTHUR HODGES III,
`______________________________
`
`
`SOUTH BAY UNITED PENTECOSTAL
`CHURCH, a California nonprofit
`corporation; BISHOP ARTHUR HODGES
`III, an individual,
`
`
`
` v.
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF
`CALIFORNIA, SAN DIEGO,
`
`
`
`
`GAVIN NEWSOM, in his official capacity
`as the Governor of California; MATT
`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. WOOTEN, in her official capacity as
`Public Health Officer, County of San Diego;
`HELEN ROBBINS-MEYER, in her official
`capacity as Director of Emergency Services;
`WILLIAM D. GORE, in his official capacity
`as Sheriff of the County of San Diego,
`
`
`
`
`
`
`
`
` Respondent,
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`
`
`
` Real Parties in Interest.
`
`
`Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,* District
`Judge.
`
`
`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.
`
`
`
`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
`
`
`*
` The Honorable Timothy Hillman, United States District Judge for the
`
`
`District of Massachusetts, sitting by designation.
`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
`
`
`
`

`

`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 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,
`
`
`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.
`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.
`
`
`
`3
`
`
`
`

`

`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.
`
`
`
`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
`
`
`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.
`
`
`
`4
`
`
`
`

`

`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:
`
`(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
`
`
`
`5
`
`
`
`

`

`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 meaningful review. This was not an
`
`abuse of discretion, notwithstanding the unfortunate timing.
`
`
`
`
`
`Accordingly, we DENY without prejudice South Bay’s petition for this
`
`6
`
`
`
`

`

`extraordinary relief.
`
`IT IS SO ORDERED.
`
`
`
`7
`
`
`
`

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