HARVEST ROCK CHURCH, INC., itself et al. v. GAVIN NEWSOM, in his official capacity as Governor of the State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HARVEST ROCK CHURCH, INC., itself
and on behalf of its member
churches in California; H
ARVEST
INTERNATIONAL MINISTRY, INC.,
itself and on behalf of its member
churches in California,
Plaintiffs-Appellants,

v.

GAVIN NEWSOM, in his official
capacity as Governor of the State of
California,
Defendant-Appellee.
No. 20-56357

D.C. No.
2:20-cv-06414-
JGB-KK

ORDER

Filed December 23, 2020

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Morgan Christen, Circuit Judges.

Order;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain

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SUMMARY
*

Civil Rights
Having received appellants’ emergency motion for
injunction pending appeal, the panel ordered the response to
the motion due at 9:00 a.m. Pacific Time on December 28,
2020. The optional reply in support of the motion is due at
9:00 a.m. Pacific Time on December 29, 2020.
Concurring in part and dissenting in part, Judge
O’Scannlain stated that although he had no objection to the
briefing schedule set forth in the court’s order, he strongly
object to the panel’s failure to accommodate, even in a
temporary fashion, Harvest Rock Church’s request for relief
from California’s severe restrictions on indoor worship
services by December 24. Judge O’Scannlain wrote that
even if the panel needed more time to consider the pending
motion in full, it should have granted the church at least the
temporary relief it needs to ensure that its members can
exercise freely the fundamental right to practice their
Christian religion on one of the most sacred Christian days
of the year.

*
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.

HARVEST ROCK CHURCH V. NEWSOM 3

ORDER
The court has received appellants’ emergency motion for
injunction pending appeal. The response to the motion is
due at 9:00 a.m. Pacific Time on December 28, 2020. The
optional reply in support of the motion is due at 9:00 a.m.
Pacific Time on December 29, 2020.

O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:
Although I have no objection to the briefing schedule set
forth in the court’s order, I strongly object to our failure to
accommodate, even in a temporary fashion, Harvest Rock
Church’s request for relief from California’s severe
restrictions on indoor worship services by December 24.
The requested deadline is hardly arbitrary: The church
seeks immediate action from our court so that its members
can worship on Christmas Day, one of the most sacred holy
days in the Christian calendar. And it is not the church’s
fault that it finds itself in this predicament. The church
moved for a temporary restraining order against California’s
worship-related restrictions as soon as this case was
remanded following a decision by the Supreme Court—yet
it had to wait more than two weeks before the district court
ruled on that motion. When the district court finally denied
its motion two days ago, Harvest Rock Church filed a notice
of appeal the same day. The next day, yesterday, the church
moved for an emergency injunction from our court.
Our General Orders provide that, in exactly such a
scenario, we may treat an emergency motion seeking action
within 48 hours as a request for temporary relief until the

4 HARVEST ROCK CHURCH V. NEWSOM

panel “can more fully consider the merits of the motion.” 9th
Cir. Gen. Order 6.4.b. At this point—and as we are already
familiar with many of the issues presented in this case—
Harvest Rock Church’s claims against California’s
restrictions appear strong. See generally Roman Catholic
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam) (enjoining similar COVID-19 related restrictions in
New York); Calvary Chapel Dayton Valley v. Sisolak,
— F.3d — , 2020 WL 7350247 (9th Cir. 2020) (enjoining
similar COVID-19 related restrictions in Nevada); Harvest
Rock Church, Inc. v. Newsom, 977 F.3d 728, 732–37 (9th
Cir. 2020) (O’Scannlain, J., dissenting) (concluding that
Harvest Rock Church was likely to prevail on its previous
appeal from the district court’s denial of a preliminary
injunction), vacated 981 F.3d 764 (9th Cir. 2020).
Nonetheless, I do not object to the panel’s determination that
more time is needed to evaluate the merits of Harvest Rock
Church’s motion. But we should not deprive the church of
any hope of relief during the period of time it takes our court
to do so.
Even if we need more time to consider the pending
motion in full, we should have granted the church at least the
temporary relief it needs to ensure that its members can
exercise freely the fundamental right to practice their
Christian religion on one of the most sacred Christian days
of the year. U.S. Const. amend. I.