FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court LEGACY CHURCH, INC.,

Plaintiff - Appellant,

v. No. 20-2117 (D.C. No. 1:20-CV-00327-JB-SCY) TRACIE C. COLLINS; STATE OF NEW (D. N.M.) MEXICO,

Defendants - Appellees.

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AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ANTI-DEFAMATION LEAGUE; REV. TALITHA ARNOLD, Senior Minister, United Church of Santa Fe; BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE; COVENANT NETWORK OF PRESBYTERIANS; DISCIPLES CENTER FOR PUBLIC WITNESS; EQUAL PARTNERS IN FAITH; FIRST CONGREGATIONAL UNITED CHURCH OF CHRIST ALBUQUERQUE; INTERFAITH ALLIANCE FOUNDATION; KANSAS-OKLAHOMA CONFERENCE, UNITED CHURCH OF CHRIST; METHODIST FEDERATION FOR SOCIAL ACTION; NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE USA; RECONSTRUCTIONIST RABBINICAL ASSOCIATION; REVERAND DR. MARC IAN STEWART, Conference Minister, Montana-Northern Wyoming Conference, United Church of Christ; SOUTHWEST CONFERENCE OF THE UNITED CHURCH OF CHRIST,

Amici Curiae. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, EBEL, and McHUGH, Circuit Judges. _________________________________

Throughout the COVID-19 pandemic, the Secretary of the New Mexico

Department of Health issued public health orders aimed at mitigating the spread of

COVID by restricting mass gatherings as defined by those orders. These restrictions

applied broadly, including, as of April 11, 2020, to houses of worship. 1 In response,

Plaintiff-Appellant Legacy Church sued the State of New Mexico 2 and the Secretary,

challenging the occupancy limitations as violating Legacy Church’s constitutional

rights under the Free Exercise and Freedom of Assembly Clauses.

After filing suit, Legacy Church requested a preliminary injunction prohibiting

the Secretary from enforcing mass-gathering restrictions on places of worship. The

Secretary responded and moved to dismiss for failure to state a claim. The district

court denied Legacy Church’s request for a preliminary injunction and granted the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 As of April 28, 2021, there are no longer any mandatory capacity restrictions on houses of worship in New Mexico. 2 The district court previously dismissed New Mexico as a party under the Eleventh Amendment and that dismissal is not challenged in this appeal. 2 Secretary’s motion to dismiss the case. It also declined to grant Legacy Church leave

to amend its complaint on the grounds that amendment would be futile.

Legacy Church’s Notice of Appeal refers to the July 13, 2020, district court

order which both denied a preliminary injunction and dismissed the action. Although

that order was very lengthy, addressing a number of different arguments, in its

briefing and in oral argument, Legacy Church challenged only the district court’s

decision to deny its motion for a preliminary injunction, focusing almost entirely on

the June 30, 2020, public health order under the Free Exercise Clause. Though

Legacy Church briefly acknowledges the district court’s dismissal of the action in its

opening brief’s jurisdictional statement, it is never mentioned again. Legacy Church

does not argue that the dismissal was erroneous. Arguments not included in the

opening brief are waived. U.S. v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015) (“We

cannot rule on those issues the appellant does not bring to our attention.”). Further,

Legacy Church admitted in oral argument that it does not appeal the district court’s

dismissal of the case. Oral Argument at 11:54–58.

Regardless of the merits of Legacy Church’s arguments, a preliminary

injunction must terminate when the action is terminated. Univ. of Tex. v.

Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is

merely to preserve the relative positions of the parties until a trial on the merits can

be held.”). As any arguments challenging the dismissal of the action have been

waived, a discussion of the denial of a preliminary injunction would be purely

3 academic. We therefore decline to address the merits of Legacy Church’s appeal in

light of the dismissal and AFFIRM.

Entered for the Court

David M. Ebel Circuit Judge

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