FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: SOUTH BAY UNITED 

PENTECOSTAL CHURCH; BISHOP 

ARTHUR HODGES III, 

______________________________ 

SOUTH BAY UNITED PENTECOSTAL 

CHURCH, a California nonprofit 

corporation; BISHOP ARTHUR HODGES 

III, an individual, 

Petitioners, 

 v. 

UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA, SAN DIEGO, 

Respondent, 

GAVIN NEWSOM, in his official capacity 

as the Governor of California; MATT 

RODRIGUEZ, in his official capacity as the 

Acting Attorney General of California; 

TOMAS ARAGON, in his official capacity 

as California Public Health Officer; WILMA 

J. WOOTEN, in her official capacity as 

Public Health Officer, County of San Diego; 

HELEN ROBBINS-MEYER, in her official 

capacity as Director of Emergency Services; 

WILLIAM D. GORE, in his official capacity 

as Sheriff of the County of San Diego,

No. 21-70769 

D.C. No. 

3:20-cv-00865-BAS-AHG 

Southern District of California, 

San Diego 

ORDER

FILED

APR 2 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Real Parties in Interest.

Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,* District 

Judge.

On March 30, 2021, South Bay United Pentecostal Church and Bishop 

Arthur Hodges III (collectively, “South Bay”) filed an Urgent Petition for Writ of 

Mandamus under Circuit Rule 27-3(b) (ECF No. 1). That same day, we ordered an 

answer from the State of California (the “State”) (ECF No. 2). For the following 

reasons, we deny the petition without prejudice. 

On February 5, 2021, the Supreme Court issued South Bay United 

Pentecostal Church, et al. v. Newsom, et al., 141 S. Ct. 716 (2021) (“South Bay 

II”). The Court enjoined the State of California from “enforcing the Blueprint’s

[for a Safer Economy] Tier 1 prohibition on indoor worship services” against 

South Bay. Id. at 716. The Court denied South Bay’s request for injunctive relief

“with respect to the percentage capacity limitations,”1and specifically stated that

the State was “not enjoined from imposing a 25% capacity limitation on indoor 

worship services in Tier 1.” Id. at 716. The Court further explained that its “order 

* The Honorable Timothy Hillman, United States District Judge for the 

District of Massachusetts, sitting by designation.

1 South Bay’s emergency application in the Supreme Court had also 

requested that the percentage capacity limitations across all tiers of the Blueprint 

be enjoined. The Supreme Court declined to do so. See South Bay II, 141 S. Ct. at 

716. 
3 

is without prejudice to the applicants presenting new evidence to the District Court 

that the State is not applying the percentage capacity limitations . . . in a generally 

applicable manner.”2 Id. (emphasis added). In other words, the Court invited 

South Bay to present further evidence to the district court that the State’s 25% and 

50% capacity restrictions on indoor worship services are underinclusive because 

the same restrictions do not apply to secular activities that pose similar dangers of

spreading COVID-19, and thus violate the Free Exercise Clause.

The following day, February 6, the State revised the Blueprint to allow 

indoor worship at 25% capacity in Tier 1 and removed the numerical caps in Tiers 

2 and 3 (the latter of which we had previously ordered). The State retained the 

25% capacity limit in Tier 2 and the 50% capacity limit in Tiers 3 and 4. The State 

also loosened its ban on singing and chanting during worship services by 

permitting performers (but not congregants in the audience) to engage in singing, 

chanting, and similar vocalizations, subject to face-coverings, enhanced distancing, 

and other precautions.3 

Although it has long been known that Easter Sunday would be on April 4, 

2 South Bay’s urgent petition concedes that the Court’s reference to 

“percentage capacity limitations” is to Tiers 2 through 4, as Tier 1 prohibited 

indoor worship entirely and imposed no capacity limitation.

3 Heeding concerns expressed by members of the South Bay II Court, the 

State also clarified that performers in the entertainment industry are prohibited 

from singing before a live audience. 
4 

2021, with Palm Sunday falling on the prior Sunday, March 28, South Bay waited 

until March 11, more than a month after the State’s February 6 implementation of 

the revised restrictions, to move for a temporary restraining order (“TRO”) on an 

emergency basis in the district court. It sought an injunction against enforcement 

of the 25% capacity restriction before Holy Week commenced on March 28.4 

South Bay submitted no new evidence with its motion.

5

 In accordance with South 

Bay’s request, the district court set the TRO hearing for March 24, before Palm 

Sunday. But South Bay requested an extension of time for the briefing and hearing 

schedule so that it could file a reply. To accommodate this request, the district 

court reset the hearing date for March 29. 

At the TRO hearing, the district court determined that an evidentiary hearing 

was necessary before it could properly grant injunctive relief. The new evidence 

presented by both sides joined at least two questions: (1) Whether due to 

occupancy loads, notwithstanding the lower percentage caps for worship services 

as compared to certain secular activities, houses of worship were in actuality 

4 Although it is clear that South Bay seeks to enjoin Tier 2’s 25% capacity 

limitation, it is unclear precisely what relief South Bay seeks. In its petition, South 

Bay suggests that it should be treated both like nonessential retail (subject to a 50% 

capacity limitation in Tier 2) and like a grocery store (subject to no capacity 

restrictions in Tiers 2–4 but required to follow other stringent social distancing 

requirements). 

5

In response to the State’s expert declaration addressing occupancy rates 

and how they affect percentage of capacity limitations, South Bay submitted new 

declarations of its own for the first time on reply. 
5 

treated more favorably than those activities; and (2) whether the State took 

occupancy loads into consideration when determining the least restrictive means or 

whether this argument is a post hoc rationalization. The district court noted the 

understandable frustration of some members of the Court with the lack of a 

meaningful record, see, e.g., South Bay II, 141 S. Ct. at 717 (Barrett, J., 

concurring), so it determined that it could not grant immediate injunctive relief 

without holding an evidentiary hearing. After initially scheduling the hearing for 

April 7, the court pushed it back to accommodate South Bay’s discovery requests. 

South Bay then filed this urgent petition with our court, contending that the district 

court erred by denying the TRO pending an evidentiary hearing. 

“Mandamus ‘is a drastic and extraordinary remedy reserved for really 

extraordinary causes.’” In re Bundy, 840 F.3d 1034, 1040 (9th Cir. 2016) (quoting 

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (internal quotation 

marks omitted)). “[O]nly exceptional circumstances amounting to a judicial 

usurpation of power, or a clear abuse of discretion, will justify the invocation of” 

the remedy. Cheney, 542 U.S. at 380. Because “the writ is one of ‘the most potent 

weapons in the judicial arsenal,’” Bundy, 840 F.3d at 1040 (quoting Cheney, 542 

U.S. at 380), we consider five factors to determine whether relief is appropriate: 

(1) whether the petitioner has other adequate means, such as direct 

appeal, to attain the relief he or she desires; (2) whether the petitioner 

will be damaged or prejudiced in a way not correctable on appeal; (3) 

whether the district court’s order is clearly erroneous as a matter of 
6 

law; (4) whether the district court’s order makes an “oft-repeated 

error,” or “manifests a persistent disregard of the federal rules”; and 

(5) whether the district court’s order raises new an important 

problems, or legal issues first impression.

In re Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011) (citing Bauman v. United 

States Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 1977)). “[T]he absence of factor 

three—clear error as a matter of law—will always defeat a petition for 

mandamus.” Bundy, 840 F.3d at 1941 (quoting In re United States, 791 F.3d 945, 

955 (9th Cir. 2015)). 

We cannot conclude that the district court committed clear error as a matter 

of law. The Supreme Court permitted South Bay to present new evidence to show 

that the percentage capacity limitations are not generally applicable, but South Bay 

failed to do so until it filed its TRO reply papers. At the hearing, the district court 

considered both parties’ submitted declarations addressing the application of the 

percentage caps. The State contended that the percentage caps are applied in a way 

that favors places of worship. South Bay, on the other hand, averred that the 

State’s arguments constituted an impermissible post hoc rationalization. Both 

parties represented that additional evidence is forthcoming. The district court was 

unable to make findings on an adequate record and thus exercised its discretion to

continue the hearing to develop the record for meaningful review. This was not an 

abuse of discretion, notwithstanding the unfortunate timing. 

Accordingly, we DENY without prejudice South Bay’s petition for this 
7 

extraordinary relief. 

IT IS SO ORDERED.