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
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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 
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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." 
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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 
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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 42 U.S.C. § 1983, 

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, 310 U.S. 296, 303-05 (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
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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 
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interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 

(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,

491 U.S. 58, 71 (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 
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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." 
- 9 -

The District Court denied the appellants' request for a 

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

and Nantucket S.S. Auth., 590 F. Supp. 3d 359, 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-thestate" relative to this matter. Thus, Will poses no bar to the 

appellants' § 1983 claims, 491 U.S. at 70-71, and the Eleventh 

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

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (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, 473 U.S. 159, 166-67 (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]." 
- 10 -

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, 984 F.2d 11, 13 (1st Cir. 1993); Lanier Pro. Servs., 

Inc. v. Ricci, 192 F.3d 1, 3 (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 
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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, 141 S. Ct. 

1868, 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, 508 U.S. 520, 531-32 (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. Id. "To be 

neutral, a law may not single out religion or religious 

practices[,]" Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir. 2021)

(citing Lukumi, 508 U.S. at 532-34), 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 
- 12 -

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, 494 

U.S. 872, 884 (1990)), or "prohibits religious conduct while 

permitting secular conduct that undermines the government's 

asserted interests in a similar way," id.

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, 16 F.4th at 24-29. 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." Id. at 28. 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." Id. Thus, 

healthcare facilities could accommodate some workers with 

religious objections to the COVID-19 vaccine "provided that the 
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accommodations did not allow unvaccinated workers to enter 

healthcare facilities." Id.

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.'" Id. 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, 141 S. Ct. 1294, 1296 

(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."). 
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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, 16 F.4th at 30-31. 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." Id.

at 31. 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 
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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." Id. 

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. Id. at 32. We did 

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

plaintiffs still ha[d] no likelihood of success," id., because the 

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

interest in both stemming the spread of COVID-19, see id. (citing

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)) 

and "denying an exception" to the plaintiffs, id. ("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, 68 F.4th 706 (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. Id. at 709-13. The district court there 
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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]." Id. at 713. But, notwithstanding our decision in Mills,

we reversed. See id. at 709.

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

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

that appeal. Id. 

We then reviewed the dismissal of the Lowe appellants' 

complaint de novo while "drawing all reasonable inferences in the 

plaintiffs' favor." Id. 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." Id. at 714.

We began our analysis by following Tandon and 

identifying the interests that Maine had asserted for allowing 
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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.'" Id. at 714-15 (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.'" Id. at 715 (quoting Lowe v. Mills, No. 

1:21-CV-00242, 2022 WL 3542187, at *14 (D. Me. Aug. 18, 2022), 

aff'd in part, rev'd in part and remanded, 68 F.4th at 725). 

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.

Id.

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

in passing an interest in 'safeguarding Maine's healthcare 
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capacity.'" Id. at 715 (quoting Lowe, 2022 WL 3542187, 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." Id.

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

more facts, that this interest renders the two exemptions 

incomparable." Id.

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." Id.

(quoting Lowe, 2022 WL 3542187, 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." Id. 

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." Id. at 715. Indeed, we "reject[ed] the 
- 19 -

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.'" Id. at 716 (quoting We 

The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 287 (2d Cir.), 

opinion clarified, 17 F.4th 368 (2d Cir. 2021), cert. denied sub 

nom. Dr. A. v. Hochul, 142 S. Ct. 2569 (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." Id. 715-18. 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." Id. at 718.

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 
- 20 -

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, 667 F.3d 727, 740 (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, 16 F.4th at 30, and, we note, the 

appellants develop no contrary argument, see United States v.

Zannino, 895 F.2d 1, 17 (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, 

508 U.S. at 542-46; see also Fulton, 141 S. Ct. at 1877 (citing 

id.). The notion appears to be such demanding scrutiny applies 
- 21 -

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, 542 F.3d 

259, 265 n.3 (1st Cir. 2008) ("Arguments raised for the first time 

in a reply brief are waived.").
- 22 -

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 COVID19 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 
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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.
- 24 -

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.
- 25 -

Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 

12, 28 (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"), 42 U.S.C. § 12101 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.
- 26 -

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, 600 U.S. 447, 470-71 (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 
- 27 -

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, 895 F.2d at 17.

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

Thus, once again we see no basis for affirming the ruling below on 
- 28 -

a ground independent of the grounds on which the District Court 

relied. See Lowe, 68 F.4th at 715 ("We thus cannot conclude, at 

least without more facts, that this interest renders the two 

exemptions incomparable."); Tandon, 141 S. Ct. at 1296.

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, 428 U.S. 106, 121 (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 
- 29 -

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.
- 30 -

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, 197 U.S. 11 (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, 197 U.S. at 

31). 

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 
- 31 -

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, 

895 F.2d at 17.5

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, 542 F.3d at 265 n.3.
- 32 -

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, 23 F.4th 37, 46 (1st Cir. 2022); see also Mills, 16 F.4th 

at 32; 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, 

23 F.4th at 47.

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. 
- 33 -

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, 895 

F.2d at 17.
- 34 -

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, 895 

F.2d at 17.

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.