UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID S. DAVIS,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

No. 95-8579

v.

R. T. ANGELONE; W. P. ROGERS;

D. R. GUILLOURY; K. SUTTON, C/O;

M. ORNALAS,

Defendants-Appellees.

DAVID S. DAVIS,

Plaintiff-Appellee,

UNITED STATES OF AMERICA,

Plaintiff,

No. 96-6176

v.

R. T. ANGELONE; W. P. ROGERS;

D. R. GUILLOURY; K. SUTTON, C/O;

M. ORNALAS,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-95-599-AM)

Submitted: October 31, 1997

Decided: December 10, 1997
Before HAMILTON and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

No. 95-8579 affirmed and No. 96-6176 dismissed by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

David S. Davis, Appellant Pro Se. Richard Parker, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia; Patricia Ann

Millett, Michael Jay Singer, UNITED STATES DEPARTMENT OF

JUSTICE, WASHINGTON, D.C., for Intervenor. Pamela Anne Sargent, Assistant Attorney General, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David S. Davis appeals the district court's order denying his

renewed motion for a temporary restraining order to require Defendants to return his religious necklace to him. Because Davis sought

the same relief in the restraining order as in his underlying civil suit,

we construe the order as denying a preliminary injunction. See

Virginia v. Tenneco, Inc., 538 F.2d 1026, 1029-30 (4th Cir. 1976).

However, our review of the record reveals no abuse of discretion in

the denial of relief. See South Carolina Dep't of Wildlife & Marine

Resources v. Marsh, 866 F.2d 97, 99-100 (4th Cir. 1989); Wetzel v.

Edwards, 635 F.2d 283, 286 (4th Cir. 1980). We therefore affirm the

district court's order denying Davis' renewed motion for injunctive

relief.

 2
The Defendants have cross appealed, asserting that the district

court erred in declining to address the constitutionality of the Religious Freedom Restoration Act, 42 U.S.C.A. #8E8E # 2000bb-2000bb-4

(West 1994). In light of the Supreme Court's decision in City of

Boerne v. Flores, ___ U.S. ___, 65 U.S.L.W. 4612 (U.S. June 25,

1997) (No. 95-2074), that Congress lacked authority under the Fourteenth Amendment to apply the Religious Freedom Restoration Act

to the states, we dismiss the Defendants' cross appeal as moot. We

also deny as moot the Defendants' and the United States' motions to

file briefs addressing this issue.

Accordingly, we affirm the district court's order denying Davis'

motion for injunctive relief and dismiss as moot the Defendants'

appeal from the district court's judgment which declined to rule on

the constitutionality of the Religious Freedom Restoration Act. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

No. 95-8579 - AFFIRMED

No. 96-6176 - DISMISSED

 3