Living Water Baptist Church v. Yim

Filing 22

ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER by Magistrate Judge Paul Singh Grewal denying 11 (psglc2, COURT STAFF) (Filed on 2/9/2016) (Additional attachment(s) added on 2/9/2016: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LIVING WATER BAPTIST CHURCH,
Plaintiff,

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v.

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KYU BUM YIM,

United States District Court
Northern District of California

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(Re: Docket No. 11)

Ordinarily, “[a] church’s selection of its own clergy is a . . . core matter of ecclesiastical
self-governance with which the state may not constitutionally interfere.”1 In this unusual case,
however, Plaintiff Living Water Baptist Church asks the court to intervene against its own pastor.2
In particular, LWBC seeks a temporary restraining order barring Defendant Kyu Bum Yim from
continuing to serve as the church’s pastor for the most secular of reasons—LWBC’s fear of
violating immigration laws.3

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ORDER DENYING PLAINTIFF’S
MOTION FOR TEMPORARY
RESTRAINING ORDER

Defendant.

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Case No. 15-cv-05417-PSG

At the direction of a prior pastor, LWBC hired Yim in 2012.4 Sometime in 2015, several
of LWBC’s deacons became concerned that Yim did not have legal authorization to work in the
United States.5 In September 2015, the church’s Board of Deacons voted to remove Yim from his

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Bollard v. Cal. Province of the Society of Jesus, 196 F.3d 940, 946 (9th Cir. 1999).

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See Docket No. 1

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See Docket No. 11.

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See id. at ¶ 10; Docket No. 12 at 3; Docket No. 12-1 at ¶ 3.

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See Docket No. 1 at ¶¶ 9-12; Docket No. 12-1 at ¶¶ 4-5.
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Case No. 15-cv-05417-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

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position at the church, and they sent him a letter memorializing the decision and asking him to

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stop acting on behalf of the church.6

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Yim, however, has refused to leave.7 Instead, he still holds himself out as LWBC’s pastor,

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and he continues to conduct all church services.8 Yim claims that LWBC’s congregation supports

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him, to the point that two-thirds of its members have voted unanimously to expel the deacons who

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fired Yim and remove them from leadership positions.9 In fact, Yim believes that those two

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former deacons are prosecuting this case on behalf of the church without authority to do so.10

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The court does not need to resolve this last issue. Instead, after weighing the parties’
submissions and their arguments at yesterday’s hearing,11 the court finds that at this point LWBC

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has failed to show that it is likely to succeed on the merits of its present claims. The motion for a

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United States District Court
Northern District of California

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TRO is DENIED.

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I.
The parties consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and

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Fed. R. Civ. P. 72(a).12

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II.

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The standard for issuing a TRO is the same as that for a preliminary injunction.13 The

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latter is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff

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See Docket No. 1 at ¶ 12; Docket No. 12-1 at ¶ 4; Docket No. 19, Ex. A.

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See Docket No. 1 at ¶ 13; Docket No. 12-1 at ¶ 7.

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See Docket No. 12-1 at ¶ 9.

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See Docket No. 17 at ¶¶ 3-5; id., Ex. A (meeting minutes); id., Ex. C (letter from deacon).

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See Docket No. 17 at ¶ 4.

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See Docket No. 20.

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See Docket Nos. 7, 14.

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See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977).

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Case No. 15-cv-05417-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

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is entitled to such relief.”14 “The proper legal standard for preliminary injunctive relief requires a

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party to demonstrate [1] ‘that he is likely to succeed on the merits, [2] that he is likely to suffer

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irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his

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favor, and [4] that an injunction is in the public interest.’”15 Here, however, the likelihood of

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success on the merits is so low that the court need not reach the remaining factors.
LWBC’s complaint raises only two causes of action: (1) declaratory relief against Yim for

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violating the Immigration and Nationality Act16 and (2) a preliminary injunction pursuant to Fed.

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R. Civ. P. 65.17 LWBC argues that, by continuing to employ Yim, it subjects itself to liability for

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employing or harboring an unauthorized worker.18 But as drafted, the complaint effectively seeks
to enforce the INA against Yim. In particular, LWBC asks the court to grant “declaratory relief

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United States District Court
Northern District of California

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for enforcement of violations by [Yim] of the INA”19 and to “declare that [Yim] is in violation of

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INA Section 237(a)(1)(C)(i).”20
As Yim points out, LWBC has no power to enforce the INA in a civil proceeding. The

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statute provides for no express private right of action, and LWBC has not even argued that it

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implies such a right.21 Regardless of any injury that LWBC might suffer by continuing to employ

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Yim, it has not stated a cognizable cause of action against him. LWBC therefore has no likelihood

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of success on the merits of its current complaint. The “extraordinary remedy” of a temporary

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).

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8 U.S.C. §§ 1101, et seq.

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See Docket No. 1 at ¶¶ 15-31.

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See 8 U.S.C. § 1324a(a)(1)(B), (a)(2); id. § 1324(a)(1)(A).

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Docket No. 1 at 3.

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Id. at ¶ 25 (citing 8 U.S.C. § 1227(a)(1)(C)(i)).

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Cf. Nieto-Santos v. Fletcher Farms, 743 F.2d 638, 641 (9th Cir. 1984) (finding that 8 U.S.C.
§ 1101(a)(15)(H)(ii) did not grant an express or implied private right of action).
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Case No. 15-cv-05417-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

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restraining order is not warranted.22

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III.

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The motion for a TRO is DENIED. The court will hold a hearing on the motion for a

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preliminary injunction on April 5, 2016, at 10:00 AM. The parties also are referred to United

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States District Judge Lucy H. Koh for a settlement conference. The parties shall contact Judge

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Koh’s chambers as soon as possible and schedule a conference within the next 30 days.

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SO ORDERED.

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Dated: February 9, 2016
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
Northern District of California

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Winter, 555 U.S. at 22.

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Case No. 15-cv-05417-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER