1. Introduction

This appeal arises from a challenge by eleven current and former employees of the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (the “Authority”) to a COVID-19 vaccination policy adopted in January 2022. The policy required employees to receive at least one vaccination immediately and to become “fully vaccinated” within six weeks, subject to limited medical and religious exemptions where an employee could still perform essential functions with a reasonable accommodation that was not an undue burden.

Thirteen employees sought religious exemptions; the Authority denied twelve (granting only a fully remote employee’s request). One employee obtained a temporary three-month medical exemption based on a healthcare provider note recommending delayed vaccination after a recent COVID-19 infection, but that employee’s requested permanent religious exemption was denied. Some plaintiffs later became vaccinated but remained in the case to enjoin potential future booster requirements.

The litigation has been before the First Circuit once already. In Brox v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 83 F.4th 87 (1st Cir. 2023), the court remanded the First Amendment Free Exercise claim for further consideration, including the relevance of the granted medical exemption and the proper level of scrutiny. On remand, the district court again denied preliminary injunctive relief; this appeal followed.

The central issues on this second appeal were (i) whether the plaintiffs preserved an argument that the policy created an impermissible “individualized exemptions” scheme, (ii) whether the policy was “generally applicable” notwithstanding the medical exemption, and therefore (iii) what level of scrutiny applied and whether the plaintiffs were likely to succeed on the merits for preliminary injunction purposes.

2. Summary of the Opinion

The First Circuit affirmed the denial of a preliminary injunction. It held:

• The plaintiffs’ argument that the policy “invited” discretionary, individualized exemptions was waived because it was not timely raised in the district court and appeared only in a reply brief on remand.
• The policy remained generally applicable because the sole granted medical exemption was not comparable to the denied religious exemptions in relation to the Authority’s interests; medical exemptions can further health-and-safety interests and, on this record, were rarer and time-limited versus numerous permanent religious requests.
• Because the policy was neutral and generally applicable, rational basis review applied, and the policy was rationally related to legitimate interests in limiting COVID-19 infection and transmission and protecting health and safety.
• With no likelihood of success on the merits, the court did not reach the remaining preliminary injunction factors.

3. Analysis

3.1 Precedents Cited

The decision is a synthesis of three doctrinal strands: (a) preliminary injunction standards, (b) Free Exercise general-applicability doctrine, and (c) appellate preservation/waiver rules.

A. Preliminary injunction framework

• Capen v. Campbell, 134 F.4th 660 (1st Cir. 2025) — set the appellate standard of review for preliminary injunction denials (abuse of discretion; legal issues de novo; factfinding clear error, echoing Does 1-6 v. Mills, 16 F.4th 20 (1st Cir. 2021)).
• Charlesbank Equity Fund II, LP v. Blinds to Go, Inc., 370 F.3d 151 (1st Cir. 2004), quoting Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1st Cir. 1996) — supplied the familiar four-factor test.
• New Comm Wireless Servs., Inc. v. Sprintcom, Inc., 287 F.3d 1 (1st Cir. 2002) — reinforced that likelihood of success is often dispositive.
• Pharma. Rsch. & Mfrs. of Am. v. Concannon, 249 F.3d 66 (1st Cir. 2001), aff’d, 538 U.S. 644 (2003), and Weaver v. Henderson, 984 F.2d 11 (1st Cir. 1993) — supported the court’s choice to stop once likelihood of success failed.

B. Free Exercise: neutrality, general applicability, and comparability

• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) — provided the governing test: neutral and generally applicable laws receive rational basis; laws not neutral or not generally applicable trigger strict scrutiny. Fulton also identified two routes to non-general applicability: “individualized exemptions” and secular comparators that similarly undermine the asserted interest.
• Emp. Div., Dep't of Hum. Res. v. Smith, 494 U.S. 872 (1990) — quoted via Fulton for the individualized-exemptions concept.
• Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) — cited for the strict scrutiny formulation when neutrality/general applicability fails.
• Does 1-6 v. Mills, 16 F.4th 20 (1st Cir. 2021), and Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023) — were the First Circuit’s principal analogues. The court relied on Mills to treat medical exemptions as potentially interest-advancing (because vaccinating medically contraindicated workers threatens their health), and on Lowe to stress the relevance of aggregate-risk considerations (rarity, time-limitation, and distribution).
• Tandon v. Newsom, 593 U.S. 61 (2021) (per curiam), and Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam) — supplied the “comparability” methodology: compare secular and religious conduct against the government’s asserted interest, including the risks posed by the activities (and, as read by this opinion, risks in the aggregate).
• Spivack v. City of Philadelphia, 109 F.4th 158 (3d Cir. 2024), We the Patriots U.S., Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130 (2d Cir. 2023), and Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173 (9th Cir. 2021) — were used as persuasive support for treating medical exemptions as non-comparable to religious exemptions when medical exemptions are objectively defined, rarer, and often time-limited, and when they promote health-and-safety interests rather than undermining them.
• The opinion also cited Hochul, 17 F.4th (as referenced in the text), to support considering aggregate transmission-risk data and to illustrate that “prevent” language in pandemic measures does not require 100% elimination to be a legitimate public-health aim.

C. Waiver/preservation doctrine

• Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006) — provided the baseline rule that theories not squarely and timely raised below cannot be raised on appeal.
• District of Massachusetts authorities — Noonan v. Wonderland Greyhound Park Realty LLC, 723 F. Supp. 2d 298 (D. Mass. 2010); Aiello v. Signature Com. Sols., LLC, No. 23-cv-11930, 2025 WL 1424621 (D. Mass. May 16, 2025); and Napert v. Gov. Emp. Ins., No. 13-cv-10530, 2013 WL 3989645 (D. Mass. Aug. 1, 2013) — were invoked to validate the district court’s refusal to entertain new arguments raised for the first time in a reply.
• United States ex rel. Lovell v. AthenaHealth, Inc., 56 F.4th 152 (1st Cir. 2022) — reinforced deference to a district court’s finding that an argument was waived for inadequate briefing.
• Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32 (1st Cir. 2018), and McCoy v. Mass. Inst. of Tech., 950 F.2d 13 (1st Cir. 1991) — supported the principle that cryptic or passing references do not preserve an argument.

D. Rational basis and deference

• Waithe ex rel. A.C. v. McKee, 23 F.4th 37 (1st Cir. 2022) — was used to emphasize the “plausible justification” nature of rational basis review.
• Norris v. Stanley, 73 F.4th 431 (6th Cir. 2023) — cited for the proposition that public health and safety are legitimate interests.

3.2 Legal Reasoning

A. The court narrowed the appeal: waiver disposed of the “individualized exemptions” theory

The plaintiffs argued that the policy’s case-by-case review of religious exemptions “invited” discretionary judgments, allegedly creating the kind of “mechanism for individualized exemptions” that triggers strict scrutiny under Fulton v. City of Philadelphia. The First Circuit never reached the merits because it concluded the theory was not preserved: it was not raised in the original preliminary injunction briefing and appeared only in a reply brief on remand. Applying Iverson v. City of Boston and related authority, the court treated the issue as waived.

Significance: the opinion underscores that, in expedited preliminary injunction litigation, preservation rules remain fully operative; litigants must front-load Free Exercise theories rather than “refashioning” them late.

B. General applicability turned on “comparability” between medical and religious exemptions

The remaining Free Exercise dispute was whether the medical exemption made the policy not “generally applicable” because it allowed secular conduct that undermined the Authority’s interests in a similar way as religious exemptions would. Applying Tandon v. Newsom and Roman Cath. Diocese of Brooklyn v. Cuomo, the court required a comparison “against the asserted government interest.”

The court rejected the plaintiffs’ attempt to define the Authority’s interest as absolute, “100%” prevention of transmission based on the policy’s use of the word “prevent.” It construed “prevent” in context to include hindering, limiting, or making infection/transmission less likely, consistent with how the Authority consistently described its purpose: limiting infection and transmission to protect employees and customers.

C. Two independent reasons the exemptions were not comparable

1. Medical exemptions can further (not undermine) health-and-safety interests. Following Does 1-6 v. Mills, the court reasoned that excusing employees for whom vaccination is medically contraindicated advances an employer’s health-and-safety objectives, while a religious exemption does not.
2. Aggregate-risk differences mattered on this record. Citing Lowe v. Mills and the Supreme Court’s group-risk comparisons, the court evaluated risk in the aggregate: thirteen religious requests (eleven at issue) were permanent; only one medical request was granted and it was time-limited (three months). In a close-quarters workplace like ferry operations, the court found it plausible that a single, short medical accommodation posed materially different risks than numerous indefinite religious exemptions.

D. Resulting scrutiny and outcome: rational basis satisfied

Because the policy was neutral and generally applicable, rational basis review applied under Fulton v. City of Philadelphia. The court held the mandate rationally related to legitimate interests in limiting COVID-19 infection/transmission and protecting health and safety. The court also rejected the argument that evidence of “breakthrough infections” made the policy irrational, emphasizing rational basis’ “plausible justification” threshold (citing Waithe ex rel. A.C. v. McKee).

The court additionally dismissed an evidentiary skirmish over a CDC webpage referenced in the district court’s background section, finding no meaningful indication it influenced the actual legal analysis.

3.3 Impact

• Strengthening the Mills/Lowe framework beyond healthcare mandates. While Does 1-6 v. Mills and Lowe v. Mills involved Maine’s healthcare context, this opinion applies the same logic to a transportation authority: medical exemptions are not automatically “comparable” to religious exemptions for general-applicability purposes.
• Aggregate-risk analysis is explicitly endorsed. The court’s insistence on assessing “groups of different sizes,” duration, and workplace conditions provides government employers a litigation roadmap: document why medical accommodations are rare, objective, and time-limited, and why broader religious exemptions would affect operational and transmission risks differently.
• Procedural discipline in constitutional litigation. By holding the “individualized exemptions” theory waived, the court signals that even constitutional claims in fast-moving public-health disputes are bounded by standard preservation rules.
• Semantic narrowing arguments (“prevent means 100%”) are unlikely to succeed. The court’s treatment of “prevent” as including “limit/hinder/make less likely” reduces the force of challenges that attempt to convert public-health objectives into absolute guarantees.

4. Complex Concepts Simplified

• Preliminary injunction: an early, temporary court order. To get it, plaintiffs must show (among other things) they are likely to win on the merits. If they cannot, courts often deny relief without weighing everything else.
• Neutral and generally applicable (Free Exercise): a rule that does not target religion and applies across the board. Such rules usually face only rational basis review.
• Strict scrutiny vs. rational basis:
  • Strict scrutiny: the government must show a compelling interest and that the policy is narrowly tailored (hard to satisfy).
  • Rational basis: the policy must be reasonably related to a legitimate interest (easy to satisfy).
• General applicability and “comparability”: if the government allows secular exceptions that undermine its stated goal in the same way as religious conduct would, the rule may not be generally applicable. Courts compare the exceptions to the religious claim in light of the government’s asserted interest.
• Waiver/preservation: appellate courts usually will not consider arguments not clearly presented to the trial court in time. Raising a new theory in a reply brief is commonly treated as too late.

5. Conclusion

The First Circuit’s decision in Brox v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth. reinforces two durable lessons. Substantively, a COVID-19 vaccine mandate can remain “generally applicable” despite a medical exemption when the medical exemption is objectively grounded, can advance health-and-safety interests, and—on the record—poses materially different aggregate risks than multiple permanent religious exemptions. Procedurally, Free Exercise challenges must be litigated with conventional rigor: late-blooming “individualized exemptions” theories raised in reply risk waiver, even in high-stakes constitutional disputes.