NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HORIZON CHRISTIAN SCHOOL, an 

Oregon nonprofit corporation; et al., 

Plaintiffs-Appellants, 

 v. 

KATE BROWN, Governor, State of Oregon, 

Defendant-Appellee.

No. 21-35005 

D.C. No. 3:20-cv-01345-MO 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted July 7, 2021**

Portland, Oregon

Before: O’SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.

Plaintiffs-Appellants, religious K-12 schools in Oregon and parents of 

students who attend religious schools in Oregon, appeal from the district court’s 

denial of their renewed motion for a preliminary injunction enjoining Oregon’s 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

AUG 2 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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mandatory restrictions on in-person schooling in response to the COVID-19 

pandemic. We have jurisdiction to review the district court’s denial of a

preliminary injunction under 28 U.S.C. § 1292(a)(1). Reviewing for abuse of 

discretion, see Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 

(9th Cir. 2009), we affirm. 

To obtain a preliminary injunction, Plaintiffs were required to demonstrate that: 

(1) they would be “likely to succeed on the merits,” (2) they would be “likely to 

suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of 

equities tips in [their] favor,” and (4) “an injunction is in the public interest.” 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20–22 (2008). The district court 

did not abuse its discretion in denying Plaintiffs’ motion for a preliminary 

injunction, as it appropriately determined that Plaintiffs had not shown they were 

likely to suffer irreparable harm because, at the time of the district court’s decision 

on December 31, 2020, Gov. Brown had already announced that all restrictions on

in-school instruction would become advisory the next day.

Considering Gov. Brown’s announcement of a change in policy, Plaintiffs 

failed to demonstrate that they “‘remain[ed] under a constant threat’ that [Gov. 

Brown] will use [her] power to reinstate the challenged restrictions.” Tandon v. 

Newsom, 141 S. Ct. 1294, 1297 (2021) (quoting Roman Cath. Diocese of Brooklyn 

v. Cuomo, 141 S. Ct. 63, 68 (2020)). The circumstances here are unlike those in
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Roman Catholic Diocese of Brooklyn, where the Supreme Court held that the 

plaintiffs, churches and synagogues, remained likely to suffer irreparable harm 

despite a change in state executive action in response to the COVID-19 pandemic. 

There, the applicants challenged a provision of an executive order issued by the 

Governor of New York that capped attendance at worship services in certain 

geographic areas classified as “red” or “orange” zones. Roman Cath. Diocese, 141 

S. Ct. at 65-66. “After the [plaintiffs] asked [the Supreme Court] for relief, the 

Governor reclassified the areas in question from orange to yellow,” enabling the 

plaintiffs to “hold services at 50% of their maximum occupancy.” Id. at 68. The 

Court reasoned that the plaintiffs remained likely to suffer irreparable harm

because the overarching executive order capping attendance at worship services 

remained in effect, such that “[plaintiffs] remain under a constant threat that the 

area in question will be reclassified as red or orange.” Id. The Court explained that 

injury was likely to recur because the “Governor regularly changes the 

classification of particular areas without prior notice,” id., and cataloged eight 

instances of unilateral classification changes in the previous thirty-five days, id. at 

68 n.3.

By contrast, the factors that led the Supreme Court in Roman Catholic 

Diocese of Brooklyn to find irreparable injury remained likely—that the underlying 

mandatory restriction remained in effect and that there was evidence of the 
4 

Governor’s practice of unilaterally changing the classifications under the policy

without notice—are not present here. Instead, in the six months following Gov. 

Brown’s imposition of Executive Order 20-29’s health metrics policy restricting

in-school instruction, she issued just one change to the policy, with advance notice 

and backed by scientific and social science reasoning: to make the health metrics

and corresponding restrictions on in-person schooling advisory rather than 

mandatory. These circumstances demonstrate that Plaintiffs were not subject to a 

“constant threat” that Gov. Brown would prohibit them from holding in-person 

classes. Id. at 68. Thus, the district court did not err in determining that Plaintiffs 

failed to show they were likely to suffer irreparable harm or abuse its discretion in

denying Plaintiffs’ renewed motion for a preliminary injunction.

AFFIRMED.