v. GAVIN NEWSOM; XAVIER BECERRA; SANDRA SHEWRY; ERICA PAN; JEFFREY V. SMITH; SARA H. CODY,

Defendants-Appellees. Before: M. SMITH, BADE, and BUMATAY, Circuit Judges. Order by Judges M. SMITH and BADE, Partial Dissent and Partial Concurrence by Judge BUMATAY

This appeal challenges the district court’s February 5, 2021 order denying Appellants’ motion for a preliminary injunction. Appellants now move for an emergency injunction pending appeal, seeking to prohibit the enforcement of California’s restrictions on private “gatherings” and various limitations on businesses as applied to Appellants’ in-home Bible studies, political activities, and business operations. We conclude that the Appellants have not satisfied the requirements for the extraordinary remedy of an injunction pending appeal. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (“[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”). Therefore, we deny the emergency motion.

I.

A.

In the district court, Appellants challenged the State’s and Santa Clara County’s restrictions on private “gatherings.” However, in this motion, Appellants limit their challenges to the State’s restrictions.1 These restrictions “appl[y] to private gatherings, and all other gatherings not covered by existing sector guidance are prohibited.” Cal. Dep’t of Pub. Health, Guidance for the Prevention of COVID- 19 Transmission for Gatherings, https://cdph.ca.gov/programs/cid/dcdc/pages/covid-19/guidance-for-the- prevention-of-covid-19-transmission-for-gatherings-november-2020.aspx (last visited Mar. 30, 2021). “Gatherings are defined as social situations that bring

1 The State restrictions assign counties to different tiers based on factors such as adjusted COVID-19 case rates, positivity rates, a health equity metric, and vaccination rates. See Cal. Dep’t of Pub. Health, Blueprint for a Safer Economy, https://covid19.ca.gov/safer-economy/#tier-assignments (last visited Mar. 30, 2021). These tiers are assigned number and color designations in descending order of risk: Widespread (Tier 1 or purple); Substantial (Tier 2 or red); Moderate (Tier 3 or orange); and Minimal (Tier 4 or yellow). See id. Appellants reside in Santa Clara County, which is currently a Tier 2 county.

2 together people from different households at the same time in a single space or place.” Id. Under these restrictions, indoor and outdoor gatherings are limited to three households, but indoor gatherings are prohibited in Tier 1 and “strongly discouraged” in the remaining tiers. Id. The gatherings restrictions also limit gatherings in public parks or other outdoor spaces to three households. Id. A gathering must be in a space that is “large enough” to allow physical distancing of six feet, should be two hours or less in duration, and attendees must wear face coverings. Id. Finally, singing, chanting, shouting, cheering, and similar activities are allowed at outdoor gatherings with restrictions, but singing and chanting are not allowed at indoor gatherings. Id.

Appellants assert that the State’s gatherings restrictions provide exemptions, which allow outdoor gatherings with social distancing, political protests and rallies, worship services, and cultural events such as weddings and funerals. Therefore, we also consider the restrictions that apply to these events. Under the State’s restrictions, outdoor services with social distancing are allowed at houses of worship, such as churches, mosques, temples, and synagogues. About COVID-19 Restrictions, https://covid19.ca.gov/stay-home-except-for-essential-needs (under “Can I Go to Church” tab) (last visited Mar. 30, 2021). Indoor serv