United States Court of Appeals For the First Circuit

No. 22-1267

CAPTAIN ALBERT BROX; KIM FERNANDES; PAUL MENTON; SONIA SIMONEAU; MARK ANDERSON; ANDREA SHEEDY; JAMES BONDAREK; STEVEN ENNIS; CHRISTOPHER OVASKA; JEFFERY D'AMARIO; AND TIM RICHARDSON,

Plaintiffs, Appellants,

v.

WOODS HOLE, MARTHA'S VINEYARD AND NANTUCKET STEAMSHIP AUTHORITY; AND JANICE KENNEFICK,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Howard, Circuit Judges.

Patrick K. Daubert, with whom Daubert Law, PLLC was on brief, for appellants. Ryan W. Jaziri, with whom Keith H. McCown, Jeffrey T. Collins, and Morgan, Brown & Joy, LLP, were on brief, for appellees.

October 6, 2023 BARRON, Chief Judge. Current and former employees of

Woods Hole, Martha's Vineyard and Nantucket Steamship Authority

(the "Authority") appeal from the denial of their request for

preliminary injunctive relief from the Authority's COVID-19

vaccine policy. We affirm in part, vacate in part, and remand.

I.

On August 19, 2021, the Governor of the Commonwealth of

Massachusetts issued Executive Order No. 595 (the "Order"). The

Order provided "that all executive department employees shall be

required to demonstrate that they have received COVID-19

vaccination and maintain full COVID-19 vaccination as a condition

of continuing employment." The Order also "encouraged"

"[i]ndependent agencies and authorities, public institutions of

higher education, elected officials, other constitutional offices,

the Legislature, and the Judiciary . . . to adopt policies

consistent with this Executive Order."

The Authority is a "public instrumentality" of the

Commonwealth of Massachusetts that is charged with providing

"adequate transportation of persons and necessaries of life for

the islands of Nantucket and Martha's Vineyard." Chapter 701 of

the Acts of 1960, as amended, §§ 1, 3. The Authority issued its

own vaccine policy (the "Policy") modeled on the Order on January

3, 2022. The Policy requires all Authority employees to be "fully

vaccinated in accordance with the CDC definition on or before

- 2 - February 16, 2022," and, thereafter, "to demonstrate that they

continue to maintain COVID-19 vaccinations in accordance with the

CDC definition of fully vaccinated and as adopted by the

Massachusetts Department of Public Health."

The Policy allows for exemptions on certain specified

grounds. First, the Policy states that "[e]mployees who verify

and document that the vaccine is medically contraindicted [sic],

which means administration of the COVID-19 vaccine to that

individual would likely be detrimental to the individual's

health," can seek a medical exemption from the Policy, "provided

any such employee is able to perform their essential job functions

with a reasonable accommodation that is not an undue burden on the

Authority." Second, the Policy provides an exemption for employees

"who object to vaccination due to a sincerely held religious

belief, provided that any such employee is able to perform their

essential job functions with a reasonable accommodation that is

not an undue burden on the Authority."

The Authority's Human Resources Department is

responsible for "[r]eview[ing] requests for reasonable

accommodations to this [P]olicy and engag[ing] in the interactive

process and issu[ing] timely approvals or denials of accommodation

requests." The Policy reserves to the Authority the role and

responsibility of "[i]ssuing and maintain[ing] a current COVID-19

verification policy" and "[r]eview[ing] any approved exemptions."

- 3 - On February 11, 2022, the appellants filed a "verified

complaint" in Barnstable Superior Court that named the appellees

as the defendants. The complaint alleged the following facts.

Nine of the eleven appellants in this case submitted

timely requests for religious exemptions from the Policy. The

requests were denied through form letters signed by Janice

Kennefick, the Authority's Director of Human Resources. The

letters stated, in pertinent part:

After consideration and review of the information and documentation that you submitted, we are unable to approve your request due to the direct threat your unvaccinated status would pose to the health and well-being of your fellow employees, our customers and/or our vendors. Due to the nature of your position . . . , you are expected and required to interact daily in person with your fellow employees, our customers and/or our vendors. Accordingly, we determined that an exemption from the Policy would unreasonably risk their safety as well as your own.

(Emphases added.)

On January 28, 2022, the nine appellants whose religious

exemption requests had been rejected were placed on unpaid

suspension based on their failure to comply with the Policy. The

remaining two appellants submitted requests for religious

exemptions to Kennefick but were informed that the time for

submitting such requests had expired. These appellants were then

- 4 - placed on unpaid suspension for their failure to comply with the

Policy.

All eleven appellants were warned that failure to be

fully vaccinated in accordance with the Policy would eventually

result in termination. One of the appellants was subsequently

vaccinated on or around February 2, 2022.

The complaint pleaded claims under

,

that the appellees in administering the Policy had denied the

appellants their rights under the Free Exercise Clause of the First

Amendment of the United States Constitution, as incorporated

against the states by the Fourteenth Amendment, see Cantwell v.

Connecticut,

(1940), and to "[p]rivacy,

[p]ersonal [a]utonomy, and [p]ersonal [i]dentity" under the Due

Process Clause of the Fourteenth Amendment. The complaint also

pleaded state-law claims that the appellees in administering the

Policy had denied the appellants their rights to religious worship

under the Massachusetts Declaration of Rights and to be free from

religious discrimination under M.G.L. c. 151B, § 4.

In support of the free exercise claim, the complaint

further alleged that the appellees not only had denied all the

appellants' requests for religious exemptions but also had granted

a medical exemption to Greg Manchester, "a Captain, akin to

[appellant] Brox" who is not a party to this case. The complaint

alleged in addition that Manchester's medical exemption would

- 5 - expire in April 2022, at which point he would "likely be 'in the

same boat' as [appellants] with [appellees] 'unable to approve'

his request for religious exemption."

The complaint sought relief that included a declaration

that the Policy was invalid and unconstitutional and an ex-parte

temporary restraining order (TRO) that would enjoin the Authority

and Kennefick, in her official capacity, from terminating the

appellants. On the same day that the appellants filed their

complaint, they filed a motion in Barnstable Superior Court to

expedite consideration of their request for an ex-parte TRO, and

the court granted the motion.

On February 14, 2022, however, the appellees removed the

case to the United States District Court for the District of

Massachusetts. While the appellants' action was pending in the

District Court, three of the appellants, including Brox, agreed to

be vaccinated, joining the one appellant who already was. The

other seven appellants remained unvaccinated and on unpaid

suspension.

In the District Court, the appellants requested a

preliminary injunction. That "extraordinary form of relief" may

be granted only upon a showing that the plaintiff "is likely to

succeed on the merits, that he is likely to suffer irreparable

harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public

- 6 - interest." Winter v. Nat. Res. Def. Council, Inc.,

(2008).

The appellees filed a brief in opposition to the

appellants' request for the preliminary injunction. The appellees

contended in their brief in opposition that the appellants' federal

claims were barred by Will v. Michigan Department of State Police,

(1989), because neither the Authority, as "an

agency of State government," nor Kennefick, "in her official

capacity" at the Authority, are "'persons' within the meaning of

§ 1983 and cannot be sued in a § 1983 action." The appellees

further contended that the appellants' state-law claims were

barred by the Eleventh Amendment of the United States Constitution,

which prohibits federal courts from supervising state officials'

compliance with state law.

In a reply brief in support of the request for the

preliminary injunction, the appellants disputed the appellees'

contentions. The appellants also attached an affidavit and a copy

of a letter in support of the merits of their various claims.

The affidavit was by Manchester, and in it he attested

that he had requested a medical exemption based on a letter from

his health care provider that "advise[d] against COVID-19

vaccination for the next [three] months" due to Manchester's

"recent COVID-19 infection." He further attested that, while his

request for the medical exemption request was pending, he had

- 7 - submitted a request for a religious exemption that was subsequently

denied. He then attested that on February 16, 2022, he was briefly

put on "unpaid suspension" when he failed to become fully

vaccinated, but was "approved to continue to work under the medical

exemption" on February 21, 2022 and had "been back to work at [his]

usual post, duties and schedule ever since, under the reasonable

accommodations of masking and testing." The letter was from

Kennefick to Manchester, and it denied Manchester's request for a

religious exemption in the same manner and for the same reasons

that the appellants' religious exemption requests had been denied.

The appellants argued in their reply brief in support of

their request for the preliminary injunction that pursuant to the

medical exemption:

Mr. Manchester [was] working for [d]efendants on their vessels in close contact with colleagues, despite the purported direct threat (to paraphrase Defendant Kennefick) his unvaccinated status pose[d] to them, while wearing a mask and testing for COVID-19 at the start of each work week. Mr. Manchester, through his medical exemption, was able to attain the exact accommodations reasonably sought by [p]laintiffs on religious bases but wrongfully denied by [d]efendants.

(Emphasis added). The appellants went on to contend on that basis

that the medical exemption granted to Manchester demonstrated that

the appellees "enforc[ed] the mandate unequally, treating secular

(medical) exemption requests more favorably than religious

exemption requests."

- 8 - The District Court denied the appellants' request for a

preliminary injunction. See Brox v. Woods Hole, Martha's Vineyard,

and Nantucket S.S. Auth.,

, 364-69 (D. Mass.

2022). This appeal followed.

II.

The appellees concede that "on all the present facts and

circumstances, the [Authority] was not acting as an arm-of-the-

state" relative to this matter. Thus, Will poses no bar to the

appellants' § 1983 claims,

, and the Eleventh

Amendment poses no bar to their state-law claims, see Pennhurst

State Sch. & Hosp. v. Halderman,

(1984).

Moreover, because the appellants are suing Kennefick only in her

official capacity, the "real party in interest is the [Authority],"

see Kentucky v. Graham,

(1985), and so there

is no concern about Article III standing with respect to the

appellants' claims that name her as a defendant.1

1 We also note that this appeal is not moot. While seven of the original plaintiffs have been terminated from their employment after not receiving vaccinations, their injuries could still be redressed by an injunctive order that, as the appellants requested in their preliminary injunction briefing below, "reinstate[s them] to their respective employment statuses and positions as they existed prior to [the appellees]’ placement of [the appellants] on unpaid suspension on January 28, 2022." And the other four appellants -- Brox, Ennis, Ovaska, and Menton -- who are still employed by the Authority assert that they "remain party to this interlocutory appeal in order to enjoin their submission to an unknown number of future 'booster' doses of vaccine pursuant to the [Policy]."

- 9 - We turn, then, to the heart of the dispute on appeal,

which concerns the appellants' challenges to the District Court's

reasons for concluding that none of their claims provides a basis

for granting them the injunctive relief that they seek. We review

the denial of a preliminary injunction for abuse of discretion,

but we review embedded legal questions de novo. See Weaver v.

Henderson,

(1st Cir. 1993); Lanier Pro. Servs.,

Inc. v. Ricci,

(1st Cir. 1999).

A.

We begin where the District Court began, which is with

the question of whether the appellants can show that they are

entitled to the preliminary injunction based on their free exercise

claim. The appellants argue that the District Court erred in

concluding that they cannot make that showing, chiefly by arguing

that the District Court erred in holding that they failed to show

that they have a "likelihood of success" as to this claim.

To explain our assessment of this aspect of the

appellants' challenge, it is useful first to describe the legal

framework that applies to the free exercise claim. We then will

be positioned to explain both the appellants' arguments for

concluding that they can show that they have a likelihood of

succeeding on that claim and our reasons for concluding that, given

both the specific grounds that the District Court gave for its

ruling and the limited arguments that the appellees have made to

- 10 - us in arguing that the ruling must be affirmed, the District

Court's "likelihood of success" ruling is in error.

1.

The Free Exercise Clause of the First Amendment provides

that "Congress shall make no law . . . prohibiting the free

exercise" of religion, U.S. Const. amend. I. We review a law that

burdens religious exercise but that is neutral with respect to

religion and generally applicable only to ensure that it has a

rational basis. See Fulton v. City of Philadelphia,

, 1876 (2021). Such a neutral and generally applicable law

thus need not be narrowly tailored to serve a compelling

governmental interest, even if the law incidentally burdens

religious exercise. See Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah,

(1993).

By contrast, a law that does burden religious exercise

but is not either neutral or generally applicable must be narrowly

tailored to achieve a compelling government interest.

"To be

neutral, a law may not single out religion or religious

practices[,]" Does 1-6 v. Mills,

(1st Cir. 2021)

(citing Lukumi,

), as the government "fails to

act neutrally when it proceeds in a manner intolerant of religious

beliefs or restricts practices because of their religious nature."

Fulton, 141 S. Ct. at 1877. Moreover, a law is not generally

applicable if it either "'invite[s]' the government to consider

- 11 - the particular reasons for a person's conduct by providing 'a

mechanism for individualized exemptions,'" id. (cleaned up)

(quoting Emp. Div., Dep't of Hum. Res. of Oregon v. Smith,

(1990)), or "prohibits religious conduct while

permitting secular conduct that undermines the government's

asserted interests in a similar way,"

We have recently had occasion to apply this legal

framework in two cases that involved a free exercise challenge to

a COVID-19 vaccination mandate that included a medical exemption

but not a religious one. The first of those cases was Does 1-6 v.

Mills, which we decided in 2021.

Mills involved a free-exercise-based challenge to the

denial of a request for a preliminary injunction against the Maine

Center for Disease Control's emergency rule that required

healthcare workers in Maine to be vaccinated against COVID-19

unless they could show that vaccination was "medically

inadvisable." Mills,

. The rule "require[d]

healthcare facilities to 'exclude[] from the worksite' for the

rest of the public health emergency employees who ha[d] not been

vaccinated."

. But the requirement did "not extend to

those healthcare workers who [did] not work on-site at a designated

facility, for example those who work[ed] remotely."

Thus,

healthcare facilities could accommodate some workers with

religious objections to the COVID-19 vaccine "provided that the

- 12 - accommodations did not allow unvaccinated workers to enter

healthcare facilities."

In upholding the denial of the requested injunction, we

first concluded that the "likelihood of success" factor pointed

against granting the relief. We reasoned in doing so that the

rule was "facially neutral" and that "no argument ha[d] been

developed to us that the state singled out religious objections to

the vaccine 'because of their religious nature.'"

at 30

(quoting Fulton, 141 S. Ct. at 1877). We also explained that the

rule did "not require the state government to exercise discretion

in evaluating individual requests for exemptions" and that "[n]o

case in this circuit and no case of the Supreme Court holds that

a single objective exemption renders a rule not generally

applicable." Id.

We next held that, so far as the record revealed, the

rule was generally applicable even though it included a medical

but not a religious exemption. We explained that the record at

the preliminary injunction stage did not show that the rule would

"permit 'secular conduct that undermine[d] the government's

asserted interests in a similar way.'" Id. (quoting Fulton, 141

S. Ct. at 1877); see also Tandon v. Newsom,

(2021) ("[W]hether two activities are comparable for purposes of

the Free Exercise Clause must be judged against the asserted

government interest that justifies the regulation at issue.").

- 13 - In so concluding, we noted that the Maine CDC had

asserted three "mutually reinforcing" interests in providing only

medical exemptions under the rule:

(1) ensuring that healthcare workers remain healthy and able to provide the needed care to an overburdened healthcare system; (2) protecting the health of the those in the state most vulnerable to the virus -- including those who are vulnerable to it because they cannot be vaccinated for medical reasons; and (3) protecting the health and safety of all Mainers, patients and healthcare workers alike.

Mills,

. We then explained, following

Tandon, that the medical exemption at issue was "meaningfully

different from exemptions to other COVID-19-related restrictions

that the Supreme Court has considered," because in those cases

"the Supreme Court addressed whether a state could prohibit

religious gatherings while allowing secular activities involving

everyday commerce and entertainment and it concluded that those

activities posed a similar risk to physical health (by risking

spread of the virus) as the prohibited religious activities."

. By contrast, we explained, the Maine CDC's rule "offer[ed]

only one exemption, and that is because the rule itself poses a

physical health risk to some who are subject to it," and "carving

out an exception for those people to whom that physical health

risk applies" did not in and of itself necessarily undermine Maine

CDC's "asserted interests in a way that carving out an exemption

- 14 - for religious objectors would" because "providing healthcare

workers with medically contraindicated vaccines would threaten the

health of those workers and thus compromise both their own health

and their ability to provide care."

In addition, we concluded that the plaintiffs had not

shown their entitlement to a preliminary injunction, given our

conclusion that strict scrutiny did not apply, because the rule

"easily satisfie[d]" rational basis review.

. We did

note, however, that "even if [strict scrutiny] did [apply],

plaintiffs still ha[d] no likelihood of success,"

because the

rule was narrowly tailored to serve the Maine's CDC's compelling

interest in both stemming the spread of COVID-19, see

(citing

Roman Cath. Diocese of Brooklyn v. Cuomo,

(2020))

and "denying an exception" to the plaintiffs,

("If any

healthcare workers providing such services, including the

plaintiffs, were exempted from the policy for non-health-related

reasons, the most vulnerable Mainers would be threatened.").

Then, in May of 2023, while this case was pending, we

decided Lowe v. Mills,

(1st Cir. 2023), in which seven

former employees of various Maine healthcare facilities challenged

the same Maine CDC emergency rule partly on the ground that it

violated the Free Exercise Clause, as incorporated against the

states by the Fourteenth Amendment, by allowing medical but not

religious exemptions.

. The district court there

- 15 - had dismissed the appellants' free exercise claim on the ground

that the rule was a "religiously neutral law of general

applicability that [was] rationally related to Maine's legitimate

public health interests, and so [did] not violate the Free Exercise

[Clause]."

. But, notwithstanding our decision in Mills,

we reversed. See

.

We explained that our "decision on the plaintiffs'

preliminary injunction appeal [in Mills] does not control the

outcome in [Lowe] because the different procedural postures

implicate different burdens, standards of review, and factual

records."

at 712 n.10. Moreover, we noted, the appellees in

Lowe did not "contend that the result in Mills [was] binding" in

that appeal.

We then reviewed the dismissal of the Lowe appellants'

complaint de novo while "drawing all reasonable inferences in the

plaintiffs' favor."

And "we conclude[d] that it [was]

plausible, in the absence of any factual development," that the

rule was not generally applicable "based on the complaint's

allegations that the [m]andate allows some number of unvaccinated

individuals to continue working in healthcare facilities based on

medical exemptions while refusing to allow individuals to continue

working while unvaccinated for religious reasons."

.

We began our analysis by following Tandon and

identifying the interests that Maine had asserted for allowing

- 16 - only medical exemptions. We explained that Maine had cited "[a]s

its principal interest in permitting medical but not religious

exemptions" to the mandate "a goal of 'revers[ing] the trajectory

of falling vaccination rates in order to prevent communicable,

preventable diseases from spreading in . . . healthcare facilities

. . . so that all persons medically unable to be vaccinated [can]

be protected.'"

(second and third alterations in

original). We also noted, however, that Maine additionally

"cite[d] a more general interest in 'protecting the lives and

health of Maine people.'"

at 715 (quoting Lowe v. Mills, No.

1:21-CV-00242,

, at *14 (D. Me. Aug. 18, 2022),

aff'd in part, rev'd in part and remanded,

).

We then held that "it is plausible based on the

plaintiffs' allegations that the medical exemption undermines

these interests in a similar way to a hypothetical religious

exemption" as:

The availability of a medical exemption, like a religious exemption, could reduce vaccination rates among healthcare workers and increase the risk of disease spread in healthcare facilities, compared to a counterfactual in which the [m]andate contains no exceptions, all workers must be vaccinated, and neither religious objectors nor the medically ineligible can continue working in healthcare facilities.

Finally, we observed that Maine also had "reference[d]

in passing an interest in 'safeguarding Maine's healthcare

- 17 - capacity.'"

at 715 (quoting Lowe,

, at *14).

But we concluded that "[w]hile excusing some workers from

vaccination for medical reasons may protect Maine's 'healthcare

capacity' by making more workers available, authorizing a

religious exemption plausibly could have a similar effect."

We thus explained that we could not "conclude, at least without

more facts, that this interest renders the two exemptions

incomparable."

That said, we recognized that Maine also had contended

that a medical exemption is "fundamentally different" from a

religious exemption "because a medical exemption aligns with the

State's interest in protecting public health and, more

specifically, medically vulnerable individuals from illness and

infectious diseases, while non-medical exemptions do not."

(quoting Lowe,

, at *12) (alteration omitted).

However, we concluded that, drawing all reasonable inferences in

the plaintiffs' favor, it was plausible that "the inclusion of the

medical exemption undermines the State's interests in the same way

that a religious exemption would by introducing unvaccinated

individuals into healthcare facilities."

In all events, we emphasized the narrowness of our

ruling, as we stressed that it was "entirely possible that

additional facts might show that the two types of exemption are

not comparable."

. Indeed, we "reject[ed] the

- 18 - plaintiffs' apparent view that the only relevant comparison is

between the risks posed by any one individual who is unvaccinated

for religious reasons and one who is unvaccinated for medical

reasons" and agreed instead "with the Second Circuit that Supreme

Court precedent 'suggests the appropriateness of considering

aggregate data about transmission risks.'"

at 716 (quoting We

The Patriots USA, Inc. v. Hochul,

, 287 (2d Cir.),

opinion clarified,

(2d Cir. 2021), cert. denied sub

nom. Dr. A. v. Hochul,

(2022)). But, in the end,

we concluded that "absent factual development, dismissal [was]

unwarranted," as the State had not "establish[ed] that the

[m]andate satisfies strict scrutiny," and "drawing all reasonable

inferences from the complaint's factual allegations in the

plaintiffs' favor, the complaint state[d] a claim under the Free

Exercise Clause."

. As a consequence, we did not

"determine what standard of scrutiny should ultimately apply to

the free exercise claim. Nor [did] we decide whether the [m]andate

survives the applicable level of scrutiny."

.

2.

The appellants do not refer to either Mills or Lowe in

challenging the District Court's ruling that the appellants have

failed to show that they have a likelihood of success on the free

exercise claim. Moreover, although the appellants premise their

challenge to the District Court's "likelihood of success" ruling

- 19 - on the ground that the Policy, as administered, is subject to

struct scrutiny, they are less than clear in explaining why that

is so.

For example, the appellants at times appear to be arguing

that such demanding scrutiny applies because the Policy is "wrought

with only secular individualized exemptions." See Fulton, 141 S.

Ct. at 1877; see also Ward v. Polite,

(6th Cir.

2012) (finding an "exception-ridden" anti-discrimination policy

"[had taken] on the appearance and reality of a system of

individualized exemptions" that required strict scrutiny). But

that characterization of the Policy appears to be wrong, given

that a medical exemption is the only non-religious exemption that

the Policy permits, see Mills,

, and, we note, the

appellants develop no contrary argument, see United States v.

Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

The appellants do also appear, however, to be contending

(as they did below) that the Policy is subject to strict scrutiny

because, "in its implementation," it "treat[s] secular and

religious exemption requests unequally, favoring the former" and

so for that reason alone is not "generally applicable." Lukumi,

; see also Fulton, 141 S. Ct. at 1877 (citing

id.). The notion appears to be such demanding scrutiny applies

- 20 - because the Policy is administered to allow medical exemptions for

persons who pose no less risk of spreading COVID-19 than persons

who are denied religious exemptions.2

To support the contention, the appellants point to the

evidence of how the appellees treated Manchester's exemption

requests. That evidence shows, they argue, that Manchester was a

customer-facing employee with the same role and responsibilities

as appellant Brox; that he applied for a religious exemption under

the Policy but was denied it "due to the direct threat [his]

unvaccinated status would pose to the health and well-being of

. . . fellow employees, . . . customers and/or . . . vendors"; and

that he then was granted a medical exemption under the Policy that

allowed him to work in person (while masking and testing) without

vaccination, after he submitted a letter from his health care

provider that "advise[d] against COVID-19 vaccination for the next

[three] months" due to Manchester's "recent COVID-19 infection."

Based on this evidence, the appellants argue that the

Policy, as administered, provides medical exemptions that permit

unvaccinated employees to work "in close contact with colleagues,

despite the purported direct threat . . . [their] unvaccinated

2 Appellants make no argument in their opening brief on appeal that the Policy is not neutral. They do make this assertion in their reply brief, but arguments not made in an opening brief on appeal are deemed waived. United States v. Vanvliet,

, 265 n.3 (1st Cir. 2008) ("Arguments raised for the first time in a reply brief are waived.").

- 21 - status poses to them" but not religious exemptions that would

permit unvaccinated employees to do the same even though their

unvaccinated status poses no greater threat. And, according to

the appellants, the Policy, as administered, is therefore not

generally applicable -- and thus is subject to strict scrutiny --

because it "prohibits religious conduct while permitting secular

conduct that undermines the government's asserted interests in a

similar way," Fulton, 141 S. Ct. at 1877.

The appellants go on to contend that the appellees cannot

show that the Policy, as administered, survives strict scrutiny.

To support this contention, the appellants argue that even though

"the sole stated purpose" that the appellees have given for denying

their requests for religious exemptions is "preventing the spread

of COVID-19," the Policy as administered permits medical

exemptions to persons who pose the same risk of spreading COVID-

19 as "similarly situated" persons who are not eligible for medical

exemptions who seek exemptions on religious grounds.

3.

Against this backdrop, it is notable that, in ruling

that the appellants had no likelihood of succeeding on the free

exercise claim, the District Court did not address the possible

import of the Manchester evidence to the claim's merits. Nor did

the District Court engage with the question of the level of

- 22 - scrutiny to which the Policy should be subjected. Instead, the

District Court based its conclusion on the following grounds.

The District Court first observed that a religious

exemption is not required for a vaccine policy. But we do not

understand the appellants to base their free exercise claim on a

contention that a vaccine mandate must, as a general matter,

contain a religious exemption. So, even if the District Court is

right as a general matter in making the observation, that

observation does not itself provide a basis for concluding that

the free exercise claim that the appellants are bringing is not

likely to succeed.

Moreover, while the District Court did also cite in

support of its ruling a range of cases (though not from this court)

that had rejected challenges to vaccination mandates on free

exercise grounds, those precedents did not involve challenges to

vaccine mandates on the ground that they were subject to strict

scrutiny because they treated a medical exemption more favorably

than a religious one. So, it is hard to see how those precedents

provide a basis for concluding that the appellants are not likely

to succeed on their free exercise claim, given that the claim is

premised on the contention that the Policy is subject to strict

scrutiny precisely because it has been administered in a manner

that results in just such disfavored treatment of employees seeking

religious exemptions.

- 23 - Finally, the District Court explained in support of its

ruling that "where -- as here -- a state agency offers religious

exemptions, it must not administer them in an unconstitutional

way," but that the appellants did not "allege[] any facts that

suggest that the Authority has administered its religious

exemption policy in a way that burdens some religions but not

others, or that [it] has coerced [the appellants] in their

religious practices." Brox, 590 F. Supp. 3d at 366 (cleaned up).

But we do not understand the appellants to base their free exercise

claim on a contention that, in administering the Policy's religious

exemption, the appellees treated their religious beliefs less

favorably than the religious beliefs of others. We understand

them to be asserting only that the Policy violates their free

exercise rights because the record shows that the Policy's medical

exemption has been administered to treat comparably situated

persons differently based on whether their request for an exemption

is religious or medical in nature. Thus, here, too, we cannot

conclude that the District Court's reasoning supports the

conclusion that the free exercise claim is not likely to succeed.

Of course, we may affirm the District Court on an

independent ground if that ground is manifest in the record. Cf.

- 24 - Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist.,

(1st Cir. 2020). But we see no basis for doing so here.3

The appellees do argue that the Policy is generally

applicable -- and so not subject to strict scrutiny -- for reasons

having to do with the differing statutory liability that the

Authority would face in denying requests for exemption that are

medically rather than religiously based. The appellees assert in

that regard that an employer may show that an accommodation for

religious practice would constitute an "undue hardship" under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., more easily than an employer may show that an accommodation

for a disability would constitute an undue hardship under the

Americans with Disabilities Act ("ADA"),

et seq.

The appellees then contend that it follows that the fact that

Manchester was granted a medical exemption but not a religious one

fails to show that, as administered, the Policy "prohibits

religious conduct while permitting secular conduct that undermines

the government's asserted interests in a similar way." Fulton,

141 S. Ct. at 1877.

3 To the extent that the appellants argue that the District Court also made adverse findings with respect to the sincerity of their beliefs with respect to their free exercise claims, we do not understand the District Court to have denied the requested relief as to those claims on the basis of any such determination, and the appellees do not ask us to affirm the District Court on that ground.

- 25 - The argument depends, as an initial matter, on it being

true that an employer has more leeway under Title VII to deny an

exemption for an employee claiming religious discrimination under

that statute than an employer does under the ADA to deny an

exemption for an employee claiming discrimination based on a

disability under that statute. For, it is that premise that

grounds the further contention that, precisely because an employer

does have that greater leeway under Title VII, the Authority's

COVID-19 vaccine requirement is generally applicable as a matter

of law even if, as the Manchester evidence shows, it is

administered to deny religious exemptions to customer-facing

employees whose risk of spreading the virus is comparable to

customer-facing employees who are granted medical exemptions.

But even if we were to accept the appellees' contention

about the greater leeway that an employer has under Title VII, cf.

Groff v. DeJoy,

(2023), the appellees do not

develop any argument as to why we must conclude that, as a matter

of law, the greater federal statutory liability that an employer

faces for denying a medical exemption from a COVID-19 vaccine

mandate than for denying a religious exemption from one suffices

in and of itself to show that, for free exercise purposes, the

former exemption may be granted and the latter exemption may be

denied to employees who pose comparable risks of spreading the

virus without thereby rendering the mandate not generally

- 26 - applicable and so subject to strict scrutiny. Rather, the

appellees simply appear to assume that it follows from the prospect

of such greater federal statutory liability that granting medical

exemptions to such employees while denying them religious

exemptions would not trigger the application of strict scrutiny.

We thus do not see how we may rely on this ground to affirm the

District Court's "likelihood of success" ruling as to the

appellants' free exercise claim. See Zannino,

.

The appellees do advance one other argument for

affirming the District Court's "likelihood of success" ruling on

a ground on which the District Court did not itself rely. They

argue that the record shows that Manchester "was not provided any

type of long-term or permanent 'accommodation' as [the appellants]

suggest, and certainly not the type of permanent, personal,

exemption from the Policy that [the appellants] sought" through

their religious exemptions.

But, insofar as the appellees mean in drawing this

distinction to be arguing that Manchester's medical exemption is

not comparable to the appellants' request for a religious exemption

due to its limited duration, they make no attempt to explain how

the length of the medical exemption bears on any of the appellees'

asserted interests in the Policy such that granting the time-

limited exemption would not undermine the Policy in the same way.

Thus, once again we see no basis for affirming the ruling below on

- 27 - a ground independent of the grounds on which the District Court

relied. See Lowe,

("We thus cannot conclude, at

least without more facts, that this interest renders the two

exemptions incomparable."); Tandon,

.

Accordingly, we agree with the appellants that the

District Court's "likelihood of success" ruling on the free

exercise claim cannot be sustained, as the reasons that the

District Court gave for concluding that the appellants had no

likelihood of succeeding on that claim do not suffice to show as

much. Moreover, because the District Court's denial of preliminary

relief as to this claim rested heavily on its conclusion that the

appellants' claims failed to satisfy the likelihood of success

factor, it is not evident that the District Court reached a

similarly conclusive judgment as to any of the remaining factors.

And, given the minimal briefing from either side on these other

factors, as well as the District Court's recognition of the way

that those factors may be dependent on whether the appellants can

show a likelihood of success on the merits, we decline to resolve

this appeal based on these "issue[s] not passed on below."

Singleton v. Wulff,

(1976).

Thus, we vacate the District Court's ruling with respect

to its denial of the requested injunctive relief on the appellants'

free exercise claim. We leave it to the parties and to the District

Court on remand, therefore, to consider the appellants' request

- 28 - for that relief under the applicable legal framework that we have

set forth above, including by considering how our decisions in

Mills and Lowe bear on the appellants' request for such relief in

light of the record that has been developed.4

B.

We turn next to the appellants' challenge to the District

Court's ruling that they were not entitled to the preliminary

injunction based on their privacy-based claim under the Due Process

Clause of Fourteenth Amendment. Here, too, the District Court in

4 We note that although the appellees mention that Manchester's medical exemption request was granted only on a temporary basis "and based on a note from his health care provider that, pursuant to CDC guidelines, a COVID-19 vaccination was contraindicated for three months due to Mr. Manchester’s recent infection," the appellees do not develop an argument independent of the duration of the accommodation for concluding that the Policy, as administered, is generally applicable. For example, we do not understand them to argue that Manchester's medical status, in consequence of his prior infection, could provide such a basis on its own, due either to his own individual medical status or the relative volume of religious versus medical exemption requests. Cf. Hochul, 17 F.4th at 286 (holding that plaintiffs failed to establish that a vaccine mandate with a medical exemption but not a religious exemption was generally applicable in part due to the evidence in the record indicating "that medical exemptions are likely to be more limited in number than religious exemptions, and that high numbers of religious exemptions appear to be clustered in particular geographic areas"). Nor, we note, do the appellees argue that the fact the Authority was acting in a managerial capacity rather than as a regulator means we should apply a more deferential approach in determining whether the Policy is generally applicable. Cf. Fulton, 141 S. Ct. at 1878.

- 29 - so ruling determined that the plaintiffs had failed to show a

likelihood of success on the claim.

The District Court based its "likelihood of success"

determination on the analysis outlined in Jacobson v.

Massachusetts,

(1905). It then reasoned that the

Policy "does not violate any of the plaintiffs' fundamental rights

under the Fourteenth Amendment," that "[s]temming the spread of

COVID-19 is unquestionably a compelling interest," Brox, 590 F.

Supp. 3d at 369 (quoting Roman Cath. Diocese of Brooklyn, 141 S.

Ct. at 67), and that the Policy bears a "real or substantial

relation" to that interest, id. (quoting Jacobson,

).

The appellants contend on appeal, however, that the

District Court did not apply the correct standard of scrutiny.

The appellants argue that the District Court "ought to have

strictly scrutinized and enjoined" the Policy when confronted with

the appellants' "allegations and evidence" that the appellees

implemented the Policy in "a manner which violated their

fundamental constitutional and statutory rights." Cf. Roman Cath.

Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring)

("Although Jacobson pre-dated the modern tiers of scrutiny, this

Court essentially applied rational basis review.").

The appellants develop no argument, however, as to why

we must apply strict scrutiny in determining whether the Policy

- 30 - violates their claimed rights to privacy, personal autonomy, or

personal identity under the Fourteenth Amendment. Cf. id.

(Gorsuch, J., concurring) ("Rational basis review is the test this

Court normally applies to Fourteenth Amendment challenges, so long

as they do not involve suspect classifications based on race or

some other ground, or a claim of fundamental right."). Thus, any

such contention is waived for lack of development. See Zannino,

.5

The appellants do contend that even under rational basis

review they are likely to succeed on their privacy-based Fourteenth

Amendment claim. They chiefly do so on the ground that the

District Court abused its discretion by "[r]esting" its "decision"

on "contestable" judicially noticed facts regarding the number of

deaths "caused" by COVID-19 and whether the FDA "ha[d] given full

approval" to the Pfizer and Moderna vaccines. But even setting

aside those aspects of the District Court's ruling, the record

includes a CDC fact-sheet, to which the District Court referred,

which states that "people who are up to date on vaccines, including

booster doses when eligible are likely to have stronger protection

against COVID-19 variants, including Omicron." And regardless of

5 In their reply brief on appeal, the appellants argue that the Policy does not "[w]arrant [r]ational [b]asis [t]reatment" because the appellees are "not the legislature and [have] no delegation of [power] to implement the [Policy]." However, as explained, arguments not made in a party's opening brief on appeal are waived. See Vanvliet,

n.3.

- 31 - whether the statements in this document are in fact true, they are

more than sufficient to show the Authority had a "plausible

justification" for adopting the Policy, which is all that is

required to satisfy rational basis review. See A.C. by Waithe v.

McKee,

(1st Cir. 2022); see also Mills,

; Roman Cath. Dioceses of Brooklyn, 141 S. Ct. at 67

("Stemming the spread of COVID–19 is unquestionably a compelling

interest.").

Nor is our conclusion in this regard called into question

by the studies in the record that the appellants contend provide

"uncontroverted evidence" that the "vaccines confer no broad

public health or safety benefit in terms of reducing spread" and

thus demonstrate that the Policy bears "no relation to its stated

purpose, namely, preventing the viral spread of COVID-19." For,

in light of the CDC fact sheet, we do not see how we can conclude

that the Policy lacks "any plausible justification." See McKee,

.

C.

Finally, we come to the arguments that the appellants

make in challenging the District Court's ruling denying the

requested relief on their state-law claims. We begin with their

challenge to the District Court's determination that they were not

likely to succeed on the merits of their religious discrimination

claim under M.G.L. c. 151B, § 4.

- 32 - The appellants contend that the District Court abused

its discretion by "[m]aking [a]dverse [f]indings [r]egarding the

[s]incerity of [a]ppellants' [r]eligious [b]eliefs." The District

Court did state, in addressing the claim, that "the record suggests

that plaintiffs' opposition to receiving the COVID-19 vaccine is

based primarily on 'philosophical, medical, or scientific beliefs,

or personal fears or anxieties' rather than bona fide religious

practices." Brox, 590 F.Supp.3d at 366. But it is not clear that

the District Court meant to make an affirmative determination

regarding the sincerity of the appellants' beliefs for purposes of

their state-law claim. Moreover, the District Court independently

held that the appellants were unlikely to succeed on this claim,

"[e]ven assuming, arguendo that plaintiffs have established a

prima facie case of religious discrimination," because the

appellees had "readily demonstrated that accommodating [their]

religious obligations would impose an undue hardship." Id. at

366-67. And yet the appellants do not meaningfully challenge the

District Court's conclusion on that score. In particular, the

appellants do not engage with the de minimis standard for what

constitutes an undue hardship under M.G.L c. 151B, on which the

district court's conclusion rested. See id. Thus, any challenge

to this claim is waived for lack of development. See Zannino,

.

- 33 - That leaves only the appellants' challenge to the

District Court's ruling denying the requested injunctive relief

based on the appellants' claim under Article 2 of the Massachusetts

Declaration of Rights. There, the District Court determined that

the appellants were unlikely to succeed on the claim because they

failed to allege "that the Policy trenches on any religious

ritual." Brox, 590 F. Supp. 3d at 365. But, although the

appellants purport to be challenging on appeal the district court

ruling as to that claim, they advance no argument disputing the

District Court's reasoning. Thus, any challenge to that aspect of

the District Court's judgment is waived as well. See Zannino,

.

III.

For these reasons, the judgment of the District Court is

affirmed in part and vacated in part. We remand for further

proceedings not inconsistent with this opinion. Each party shall

bear their own costs.

- 34 -