UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID S. DAVIS,
Plaintiff-Appellant,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

                                                       No. 95-8579
v.

R. T. ANGELONE; W. P. ROGERS;
D. R. GUILLOURY; K. SUTTON, C/O;
M. ORNALAS,
Defendants-Appellees.

DAVID S. DAVIS,
Plaintiff-Appellee,

UNITED STATES OF AMERICA,
Plaintiff,

                                                       No. 96-6176
v.

R. T. ANGELONE; W. P. ROGERS;
D. R. GUILLOURY; K. SUTTON, C/O;
M. ORNALAS,
Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-599-AM)

Submitted: October 31, 1997

Decided: December 10, 1997
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

No. 95-8579 affirmed and No. 96-6176 dismissed by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

David S. Davis, Appellant Pro Se. Richard Parker, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia; Patricia Ann
Millett, Michael Jay Singer, UNITED STATES DEPARTMENT OF
JUSTICE, WASHINGTON, D.C., for Intervenor. Pamela Anne Sar-
gent, Assistant Attorney General, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David S. Davis appeals the district court's order denying his
renewed motion for a temporary restraining order to require Defen-
dants to return his religious necklace to him. Because Davis sought
the same relief in the restraining order as in his underlying civil suit,
we construe the order as denying a preliminary injunction. See
Virginia v. Tenneco, Inc., 538 F.2d 1026, 1029-30 (4th Cir. 1976).
However, our review of the record reveals no abuse of discretion in
the denial of relief. See South Carolina Dep't of Wildlife & Marine
Resources v. Marsh, 866 F.2d 97, 99-100 (4th Cir. 1989); Wetzel v.
Edwards, 635 F.2d 283, 286 (4th Cir. 1980). We therefore affirm the
district court's order denying Davis' renewed motion for injunctive
relief.

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The Defendants have cross appealed, asserting that the district
court erred in declining to address the constitutionality of the Reli-
gious Freedom Restoration Act, 42 U.S.C.A. #8E8E # 2000bb-2000bb-4
(West 1994). In light of the Supreme Court's decision in City of
Boerne v. Flores, ___ U.S. ___, 65 U.S.L.W. 4612 (U.S. June 25,
1997) (No. 95-2074), that Congress lacked authority under the Four-
teenth Amendment to apply the Religious Freedom Restoration Act
to the states, we dismiss the Defendants' cross appeal as moot. We
also deny as moot the Defendants' and the United States' motions to
file briefs addressing this issue.

Accordingly, we affirm the district court's order denying Davis'
motion for injunctive relief and dismiss as moot the Defendants'
appeal from the district court's judgment which declined to rule on
the constitutionality of the Religious Freedom Restoration Act. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

          No. 95-8579 - AFFIRMED
          No. 96-6176 - DISMISSED

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