UNITED STATES DISTRICT COURT
Calvert L. Potter, et al.,
Civil Action No. 01-1189 (JR)
382 F. Supp. 2d 35
96 FEP Cases (BNA) 1243
United States District Judge.
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.
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.”
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
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.
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.
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.
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.
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
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.
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.
United States District Judge
late August 2001, the defendant moved for partial summary judgment and for
declaratory judgment, calling into question the constitutionality of applying
RFRA to the
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.
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.
United States District Judge
Case -cv-01189-JR PACER Document 101 Filed
UNITED STATES DISTRICT COURT
Calvert L. Potter, et al.,
Civil Action No. 01-1189 (JR)
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  is therefore denied.
United States District Judge