UNITED STATES
DISTRICT COURT
FOR THE
Calvert L. Potter, et al.,
Plaintiffs,
v.
Defendant.
Civil Action No. 01-1189 (JR)
382 F. Supp. 2d 35
2005
96 FEP Cases (BNA) 1243
James Robertson
United States District Judge.
[*36]
MEMORANDUM
Calvert Potter, Tarick Ali, and Hassan Umrani are
The rather vague prohibitions of that
preliminary injunction (issued in the language proposed by the plaintiffs) have
remained in effect for more than four years. After an initial flurry of legal
activity, n1 the case seemed to put itself to sleep.
Procedural History
In September 2002, I ordered the parties to
report on the status of their litigation. A month later, I was advised (by a
joint report of the parties) that the Department was in the process of drafting
a new policy, that it would take at least 90 days to do so, and that the case
should be in abeyance until mid-January 2003. n2 When
I heard nothing after more than six months had passed, I dismissed the case for
want of prosecution in May 2003, reinstating it only after the parties assured
me that they were working on the new policy. Status reports (essentially, that
nothing much was happening) were then filed in August 2003, October 2003, December
2003, February 2004, and April 2004. In May 2004, I finally scheduled a status
conference, essentially to force the District to report its progress on
drafting a new policy. The District did not show up. I then ordered that the
District’s putative new policy be submitted to plaintiffs and to the Court by
Another six months passed (without any
response from plaintiffs to the suggestion of mootness).
I asked the parties on
That statement brought the case quickly to a
boil again. Plaintiffs moved for clarification [*38] of the preliminary
injunction and for a permanent injunction. The District moved for judgment as a
matter of law. On
Special Order 20
Special Order 20 prohibits firefighters who must wear tight-fitting
face pieces from having facial hair “that comes between the sealing surface of
the facepiece and the face or that interferes with
the valve function.”
On
The plaintiffs
Plaintiff Calvert Potter has worked for the D.C. Fire Department since
1992. He became a practicing Sunni Muslim in 1996 and grew a beard that reached
its natural length and density some time in 1997. Calvert Decl. P 3. He is a member of the HazMat
unit, and he took and passed a computerized face fit test on
Plaintiff Hassan Umrani
has worked for the D.C. Fire Department since 1989, at which time he was
already practicing Islam and wearing a beard as an expression of his religious
faith. Umrani Decl. PP 2-4.
He trimmed his beard in April 2001 to avoid termination under the Department’s
grooming code regulation “even though it [was] not in compliance with my
religious beliefs.”
Plaintiff Tarick Ali has worked for the D.C.
Fire Department since 1991 and has been certified as a HazMat
technician since 2005. Ali Decl. P 2. He has
practiced Islam and worn a beard as an expression of his religious faith
throughout his tenure as a D.C. firefighter.
[*39]
The three plaintiffs have fought hundreds of
fires. They have never caused injuries to themselves, other firefighters, or
members of the public on account of their beards. The parties have stipulated
that their belief in their religious obligation to wear beards is sincere. Tr. at 6.
The masks
It is undisputed that firefighters who wear beards can safely operated
the positive pressure self contained breathing apparatus (SCBA) that
firefighters use in situations considered to be immediately dangerous to life
and health (IDLH), such as oxygen-deficient atmospheres. It is undisputed that
the SCBA is the safest of all the available respiratory protection options,
because 1) when using an SCBA a firefighter breathes from a bottle filled with
air and does not inhale contaminants from his surroundings; and 2) any break in
the seal between a firefighter’s face and his SCBA mask will cause air from the tank to blow out, due
to positive pressure, preventing air from the surrounding environment from
entering the mask.
The disagreement in this case concerns the safe operation of negative
pressure masks by firefighters. The Department requires D.C. firefighters to be
able safely to wear the filter respirators issued to them in “Go-Bags” after
the 9/11 terrorist attacks. The Go-Bag filter attaches to the same facepiece a firefighter uses with an SCBA (instead of a
hose from an air bottle) and creates a negative pressure air purified
respirator (APR). The APR enables a firefighter to breathe filtered air from
his surrounding environment and does not use air from a tank. Its use is
therefore not limited to the time it takes to exhaust an air bottle, n4 and the
firefighter using an APR does not have to carry the extra weight of an air
bottle. Tr. at 112-13. A break in the seal, however,
allows air from the surrounding environment to enter the mask.
Analysis
RFRA was passed “to restore the compelling
interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790
(1963) and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526
(1972) and to guarantee its application in all cases where free exercise of
religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).
According to the RFRA:
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the person -
(1) is in furtherance of a
compelling governmental interest; and
(2) is the last restrictive means
of furthering that compelling governmental interest.
The burden now shifts to the government to
demonstrate 1) that Special Order 20 furthers a compelling interest, and 2)
that it is the least restrictive means of furthering that interest. 42 U.S.C. §
2000bb-1(b); see id. at § 2000bb-2(3) (“the term ‘demonstrates’
means meets the burden of going forward with the evidence and of persuasion”); Kikumura v. Hurley, 242 F.3d 950, 961-62 (D.C. Cir. 2001).
The Department asserts, and I find, that Special Order 20 furthers the
interest of preserving the respiratory health of firefighters, so that they can
help to protect other fellow firefighters and the public they serve, and that
this interest is compelling. n5
What the Department has yet to establish is that Special Order 20
embodies the least restrictive means of furthering its compelling interest.
Special Order 20 requires that firefighters
comply with the face-fit requirements of 29 C.F.R. § 1910.134, which is the
OSHA regulation for “respiratory protection.” That regulation provides, at §
1910.134(g)(1)(i)
The Department’s position is that the OSHA
standard, together with the mandatory fit-testing procedures that accompany it,
29 C.F.R. § 1910.134 App A, are inflexible; that face-fit testing must be done
on clean-shaven faces; that firefighters must report to work every day
clean-shaven; and that the contractor hired to administer face-fit testing for
the Department has indeed declined to perform the test except in strict
accordance with the OSHA procedures.
Plaintiffs argue that OSHA standards do not
apply to
The record remains unclear, however, on the question of whether these
three firefighters could actually operate safely with negative pressure APR’s.
It is unclear because of the District’s rigid refusal to allow the plaintiffs
to test their proposition that they can satisfy the negative pressure
requirements [*41] of the face-fit test. That rigidity is not acceptable, in
view of RFRA’s command that “governments should not
substantially burden religious exercise without compelling justification.”
Preliminary injunction standard
While the Department has the burden of
persuasion under RFRA, it is the
plaintiffs who have the burden of establishing their entitlement to a preliminary
injunction. The standard is well
established and has four parts, “(1) a substantial likelihood of success on the
merits, (2) that [plaintiffs] would suffer irreparable injury if the injunction
is not granted, (3) that an injunction would not substantially injure other
interested parties, and (4) that the public interest would be furthered by the
injunction.” MOVA Pharm. Corp. v. Shalala, 329
Likelihood of success on the merits. At this point, both
sides’ likelihood of success on the merits of the RFRA claim must be rated “uncertain.”
The less restrictive alternative question boils down to a dispute about beard
growth. The Department believes that the variability of beard length and
density from one day to the next makes face-fit tests of bearded firefighters
impractical, but nobody has tested that proposition on people with fully
mature, grown-out beards. The plaintiffs insist that they could pass the test
if only it were administered to them with their beards, but one of them has
failed the test, another’s passing score was achieved improperly, and none of
them has proven their hypothesis that beard growth stops after a while, so that
they could post repeatable test results month after month.
Irreparable injury to plaintiffs.
Special Order 20 provides that the Department would recommend firefighters for
termination if they are unable to pass OSHA’s face-fit test as written (P 3),
but it has undertaken to assign plaintiffs to administrative duty until “legal
issues are resolved.” Plaintiffs will suffer no irreparable injury, or their
injury will be slight enough that it is outweighed by another factor, if they
must be on administrative duty status during the time required to test the
competing hypotheses of the two sides as to beard growth and repeatable
face-fit tests.
Substantial injury to others. The question of whether
others would be injured if the requested injunction were to issue is impossible
to answer except with probabilities. The probability that any of these
plaintiffs would be called upon to use his Go-Bag canister in the next, say,
six months, seems vanishingly remote. The disaster scenarios
posited by the Department (nuclear fallout, chlorine gas, to name two) are IDLH
situations in which the Go-Bag canisters would be of no use. The only realistic
scenario presented by the record is that one or more of the plaintiffs might be
called upon to help decontaminate other responders in “white powder,” or
anthrax scare, situations. Nevertheless, as I have noted above, it is the
Department’s duty to assess risk. A court has no competence, nor does RFRA give
it the warrant, to second-guess that assessment.
Where lies the
public interest? The public interest favors both insuring the
safety of firefighters and the public and obeying the command of Congress under
the RFRA. In the present state of the record, it is impossible to say on
which side of the scale it rests.
Conclusion
The factors of likelihood of success on the merits and the public
interest are in [*42] equipoise. Plaintiffs’ success in sustaining their burden
must accordingly be measured weighing the risk of disaster against the
inconvenience and frustration to plaintiffs of sitting on the sidelines while
the parties’ competing hypotheses about beard growth are tested. The law may
not have a scale sensitive enough to be certain of that balance, but I believe
that it favors the District.
The accompanying order grants plaintiffs’
motion for clarification of the existing preliminary injunction, which remains
in effect, but which (i) does not prohibit the
District from requiring plaintiffs to pass an appropriate face-fit test if they
are to be assigned to field operations, (ii) does prohibit the District from
terminating the plaintiffs if they cannot pass an appropriate face-fit test,
but permits the District to place them in administrative duty status pending
further order of the Court, and (iii) requires the District to permit the
plaintiffs a reasonable opportunity to demonstrate that they can pass an
appropriate face-fit test. I cannot prescribe or decree the manner by which the
District must provide that opportunity and leave the details initially to the
parties, but I
have in mind a series of face-fit tests, perhaps monthly for three or four
months, that would either prove or disprove the contentions of the parties that
beard growth and density is too variable for reliable, repeatable testing of
bearded men.
* * *
An appropriate order accompanies this
memorandum.
James Robertson
United States District Judge
Notes:
1. In
late August 2001, the defendant moved for partial summary judgment and for
declaratory judgment, calling into question the constitutionality of applying
RFRA to the
2.
Note that more than a year had now passed since the terrorist attacks of
3.
William Fitzgerald, deputy fire chief in charge of risk management, testified
that Umrani did not in fact pass the facefit test. A score of 500 is required to pass the test.
The person who administered the test to Umrani “changed
the number of the fit factor, and when he changed the fit factor number, of
course it was down below 500.” Tr. at 78.
4. SCBA tanks only last 30 minutes
to an hour, depending on a firefighter’s level of activity, lung capacity,
weight, size, as well as other factors. See Tr. 91-92. An APR filter, on the
other hand, lasts considerably longer.
5.
This finding gives the District the benefit of the doubt as to the actual need
for its policy, which appears to be based entirely on concern about future
events that are very unlikely to occur. There is no record evidence that a
firefighter with a beard has sustained injuries due to face mask leaks when
wearing negative pressure masks, or run out of bottled air more quickly than
firefighters who do not have beards.
ORDER
For the reasons
stated in the accompanying memorandum, plaintiffs’ motion for clarification of
the existing preliminary injunction [# 62] is granted, as follows:
- The Department will not be required to assign the
plaintiffs to field operations until or unless they can pass an appropriate
face-fit test;
- Plaintiffs may be placed in administrative duty
status until or unless they can pass an appropriate face-fit test; and
- Defendant must afford plaintiffs the opportunity to
take and pass an appropriate face-fit test.
If is FURTHER ORDERED that plaintiffs’ motion for a
permanent injunction [# 63] is denied without prejudice; that the District’s
motion for judgment as a matter of law [# 67] is denied without prejudice; and
that plaintiffs’ emergency motion for order to show cause why the fire chief
should not be held in contempt, or, in the alternative, for an injunction
preserving the status quo [# 73, # 74] is denied.
James Robertson
United States District Judge
Case
UNITED STATES
DISTRICT COURT
FOR THE
Calvert L. Potter, et al.,
Plaintiffs,
v.
Defendant.
Civil Action No. 01-1189 (JR)
ORDER
The
District's construction of the words "a face fit test" to mean a
series of individual tests that will prove or disprove the assertion that
bearded firefighters can pass the test consistently is reasonable in the
context of this case. The motion for clarification [100] is therefore denied.
James
Robertson
United
States District Judge