The opinion of the court was delivered by: Kennedy, District Judge.
Plaintiffs represent a class of prisoners whose avowed
religious faiths have doctrines which plaintiffs believe forbid
them (or anyone else) from cutting their hair or shaving their
beards, or both. They were convicted in the Superior Court of the
District of Columbia or the United States District Court for the
District of Columbia, were committed to the custody of the
District of Columbia Department of Corrections
("D.C.Corrections") or the Federal Bureau of Prisons ("BOP"), and
are presently serving their sentences in facilities operated by
the Virginia Department of Corrections ("Virginia Corrections")
in the Commonwealth of Virginia. In this action, plaintiffs seek
declaratory and injunctive relief to prevent defendants, the
District of Columbia, Odie Washington, the Director of D.C.
Corrections (collectively "D.C. Defendants"), and BOP, from
subjecting them to a grooming policy recently instituted by
Virginia Corrections. Plaintiffs assert that the policy, which
requires inmates to be clean-shaven and to keep their head hair
short, violates their rights under the Religious Freedom
Restoration Act ("RFRA")*fn1 and the Free Exercise Clause of the
Following a hearing, the court, on December 14, 1999, granted
plaintiffs' application for a temporary restraining order.
Subsequently, following a three-day trial, the court, on March
13, 2000, entered judgment for defendants and dismissed
plaintiffs' complaint. This memorandum sets forth the findings of
fact and conclusions of law which constitute the grounds of this
court's decision pursuant to Rule 52 of the Federal Rules of
On August 26, 1998, D.C. Corrections entered into a contract
with Virginia Corrections to have the latter house D.C. prisoners
for whom D.C. Corrections lacked bed space ("D.C.Contract").*fn3
The named class plaintiffs all received their sentences in D.C.
Superior Court and are presently serving sentences in Virginia
Corrections' Sussex II prison. This facility only houses D.C.
prisoners and, as of February 22, 2000, held 1258 prisoners; an
additional 87 were held in Virginia Corrections' Red Onion
On October 1, 1999, BOP entered a similar contract with
Virginia Corrections ("BOP Contract").*fn5 As of February 22,
2000, about 913 BOP prisoners were held in Virginia Corrections'
On November 15, 1999, Virginia Corrections posted a notice
informing inmates in its facilities of Division of Operations
Procedure 864 ("grooming policy").*fn6 The notice informed
inmates that they were required to comply with the grooming
policy by December 15, 1999. The grooming policy requires male
inmates to cut their hair so it is no longer than one inch in
length or depth and prohibits beards and dreadlocks. Inmates who
do not comply with the policy upon their initial arrival at a
Virginia Corrections facility may be restrained and brought into
compliance. Noncompliance by inmates already housed in a Virginia
Corrections facility subjects them to a number of possible
sanctions, including solitary confinement, reduced commissary
access, and suspension of visitation
privileges and attendance at work programs.
The grooming policy states it was promulgated "to promote
safety, security and sanitation and to facilitate the
identification of inmates."*fn7 The policy includes an exemption
for prisoners with medical objections, however. Upon receipt of a
medical order, the afflicted inmate may grow facial hair up to
half an inch in length. These medical orders expire after 90 days
without a physician's extension. The policy also contains an
unwritten exemption for inmates seeking their cosmetology
certification. These inmates are allowed to dye other inmates'
hair within the "same color range."*fn8
Virginia Corrections has not enforced its grooming policy
against inmates from the State of Michigan. Edward Morris,
Virginia Correction's Deputy Director, explained that the
grooming policy has not been enforced against Michigan inmates
because the prisoners are in the process of returning to Michigan
from Virginia Corrections facilities. No other jurisdiction that
has raised the issue with Virginia Corrections has procured an
exception from the grooming policy for its inmates, including the
District of Columbia.
Plaintiffs' claims are easily stated and readily understood.
Plaintiffs state that the tenets of their religions forbid the
cutting of their beards or head hair or both. Given their
beliefs, plaintiffs, on their own behalf and as representatives
of similarly situated inmates, claim that Virginia Corrections'
grooming policy violates their rights under the RFRA and the
First Amendment. D.C. Corrections and BOP stoutly defend their
conduct and interpose procedural objections and substantive
defenses to this suit. Plaintiffs' claims and defendants'
objections and defenses are addressed below.
D.C. Defendants argue that plaintiffs have failed to establish
their standing to bring this suit. To establish constitutional
standing, plaintiffs must show that (1) they suffered an
injury-in-fact, (2) defendants' conduct caused the injury, and
(3) the relief sought would redress the injury alleged.*fn9 D.C.
Defendants assert that plaintiffs cannot show the "causation" or
"redressibility" elements of constitutional standing. D.C.
Defendants argue that such a showing cannot be made because a
fundamental premise of this suit — that Virginia Corrections is
an agent of D.C. Corrections — is untrue. D.C. Defendants press
the point that Virginia Corrections, not any person or entity
connected to the District of Columbia, instituted the grooming
policy about which plaintiffs complain. Consequently, D.C.
Defendants argue, it cannot be said that they caused plaintiffs'
alleged injury or that enjoining them would redress plaintiffs'
alleged injury. While these arguments have facial appeal, close
scrutiny reveals their lack of merit.
Plaintiffs offer two distinct theories to support their
standing to bring this case. First, they argue that Virginia
Corrections, at least insofar as the obligation to protect
plaintiffs' rights is concerned, is defendants' agent.
Consequently, plaintiffs maintain, defendants are responsible for
Virginia Corrections' actions. Second, plaintiffs claim
defendants have an independent responsibility not to sit idly by
as their inmates in Virginia Corrections' physical custody have
their rights violated. The court terms this second theory
"continuing responsibility." As appropriate in this memorandum,
the court differentiates between the two theories and analyzes
Plaintiffs must prove causation by "demonstrat[ing] a causal
link" between their injuries and defendants' conduct, such that
"the injurious conduct is fairly traceable to [defendants']
actions, as opposed to the independent action of a third party
not before the court."*fn10 Plaintiffs must demonstrate
redressibility by "establish[ing] that it is likely, as opposed
to merely speculative, that a favorable decision by this court
will redress the injury suffered."*fn11
As explained infra, the court finds that Virginia Corrections
is the agent of both D.C. Corrections and BOP, at least for
certain purposes. Plaintiffs, therefore, have standing to sue.
Moreover, plaintiffs have standing because defendants have a
"continuing responsibility" for certain purposes for the inmates
they placed in Virginia Corrections facilities.
This circuit has rejected the notion that causation only lies
when an agency is "the direct actor in the injurious
conduct."*fn12 Rather, causation is demonstrated on a showing of
"agency action which implicitly permits a third party to behave
in an injurious manner."*fn13 Defendants fall squarely within
this "implicit permission" standard. Indeed, plaintiffs would not
be subject to Virginia Corrections' grooming policy but for
defendants' decision to send them to Virginia. As the court has
recently held, defendants "cannot absolve themselves of their
duties to District prisoners simply by contracting for the
services of a third party."*fn14 This is particularly true
where, as here, defendants have the unconditional contractual
right to remove plaintiffs from Virginia Corrections'
Similarly, plaintiffs have demonstrated redressibility under
the "continuing responsibility" theory of their case. Virginia
Corrections, as described more fully infra, has agreed to
perform "extra obligations and duties" imposed by "any existing
or future court orders . . . which apply specifically to District
of Columbia inmates."*fn16 Though there was some testimony at
trial disputing this point, it is clear that the contracts
require Virginia Corrections to follow any order that changes
defendants' obligations to plaintiffs. Of course, whether
Virginia chooses to honor the contracts is irrelevant to this
Defendants strenuously argue that it is inappropriate for this
court to hear this case and moved to transfer this suit to the
Eastern District of Virginia, pursuant to 28 U.S.C. § 1404(a).
Defendants argue that the Eastern District of Virginia is the
appropriate forum given the centrality of Virginia Corrections'
grooming policy to this suit and the location of many witnesses
and documentary evidence in Virginia. These arguments are without
The convenience of the parties and witnesses in this case did
not favor transfer. The named plaintiffs had to travel from
Sussex II prison regardless of whether their case was heard in
the Eastern District of Virginia or before this court. Defendants
could hardly claim the Eastern District of Virginia was more
convenient for them, as they are located in the District of
Columbia. With respect to the convenience of witnesses, each
party's pre-trial witness list contains a number of witnesses who
reside in both the District and Virginia. Additionally, any
argument that Virginia Corrections officials would have been
inconvenienced by travel in this case was undermined by the
"happiness" of the director of Virginia Corrections "to provide
any witnesses or other information that [BOP and D.C. Defendants]
deem[ed] necessary to defend [their] lawsuit."*fn19
The interests of justice also did not weigh in favor of
transfer. Virginia certainly has an interest in providing the
forum for a case that addresses its government's policies. The
District of Columbia, however, has a similar interest: the
treatment of prisoners sentenced within its borders, many of whom
undoubtedly are its citizens.*fn20
Finally, a significant factor in the court's decision was the
strict time limit imposed on this court's consideration of this
case by 18 U.S.C. § 3626. Section 3626, in relevant part, states:
In any civil action with respect to prison
conditions, to the extent otherwise authorized by
law, the court may enter a temporary restraining
order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm
the court finds requires preliminary relief, and be
the least intrusive means necessary to correct that
harm. . . . Preliminary injunctive relief shall
automatically expire on the date that is 90 days
after its entry, unless the court makes the findings
required . . . for the entry of prospective relief
and makes the order final before the expiration of
the 90-day period.*fn21
Because of the 90-day limit imposed by 18 U.S.C. § 3626, the
court would have unreasonably burdened its counterpart in the
Eastern District of Virginia had it transferred this case.
By operation of 18 U.S.C. § 3626(a)(2), the court's preliminary
injunctive relief expired after March 13, 2000.*fn22 BOP filed
its motion for transfer on February 2, 2000, more than a month
after it intervened in the case. Plaintiffs' opposition and
defendants' replies were filed by February 17. Had the court
transferred the case on
February 17 and, by an administrative miracle, the case file was
delivered that very day to the Eastern District of Virginia, the
hapless new judge would have had 24 calendar days to resolve the
important issues this case presents. Within that 24-day period,
the judge would have had to meet with counsel, schedule the case
for trial, review the case file, prepare for and preside over a
trial, and rule on the merits. This court would not think well of
a judge who transferred such a case here and endeavors to comply
with the injunction to "[d]o unto others as you would have them
do unto you."*fn23
In sum, the convenience of the parties and witnesses,
consideration of the interests of justice, and the exceptional
time constraints imposed by 18 U.S.C. § 3626 rendered transfer a
thoroughly inappropriate option.
To reiterate, plaintiffs claim that Virginia Corrections is
defendants' agent, at least insofar as the duty to protect their
rights is concerned. Defendants argue that Virginia Corrections
is not their agent because, among other reasons, the BOP Contract
and D.C. Contract explicitly state otherwise and defendants lack
control over Virginia Corrections' actions. Plaintiffs reply that
the BOP Contract and D.C. Contract indicate by reference to the
Interstate Corrections Compact ("Compact") that Virginia
Corrections stands in an agency relationship with defendants.
The Compact, which the District of Columbia and Virginia have
both ratified,*fn24 provides that "[t]he terms and provisions of
this compact shall be part of any contract entered into by the
authority of or pursuant to the compact, and nothing in the
contract shall be inconsistent with the compact."*fn25 The BOP
Contract and D.C. Contract both indicate that they were formed
under the Compact. Specifically, the BOP Contract states "[t]his
Contract is entered into pursuant to the authority of Title 18,
U.S.Code, § 4002 and the Interstate Corrections Compact."*fn26
The D.C. Contract states "[t]his Contract is entered into
pursuant to the authority of the Interstate Corrections
Compact."*fn27 As a result, the Compact preempts any terms of
the BOP Contract or D.C. Contract which contradict it.
The BOP Contract provides that "[t]his Contract shall not be
construed as to make [Virginia Corrections] an agent of
BOP."*fn28 The D.C. Contract similarly states that "[t]his
Contract shall not be construed as to make [Virginia Corrections]
an agent of [D.C. Corrections]."*fn29 In contrast, the Compact,
in the primary article concerning procedures for prisoner
transfer from one jurisdiction to the other, states:
Whenever the appropriate officials in a state party
to this compact and which has entered into a contract
pursuant to Article III shall decide that confinement
in or transfer of an inmate to an institution within
the territory of another party state is necessary or
desirable in order to provide adequate quarters and
care or an appropriate program of rehabilitation or
treatment, the appropriate officials may direct that
the confinement be within an institution within the
territory of the other party state, the receiving
state to act in that regard solely as
agent for the sending state.*fn30
The Compact language dictates that Virginia acts as an agent for
defendants, the language in their contracts notwithstanding.
Defendants, of course, contest the Compact's preemption here.
D.C. Defendants argue that the agency language in the Compact is
limited to the inmates' transfer to and reception into Virginia
Corrections facilities. They claim the phrase "the receiving
state to act in that regard solely as agent for the sending
state"*fn31 is best construed as a discrete agency provision to
preclude inmates from challenging the legality of their transfer
and does not cover the entire contractual relationship between
D.C. Corrections and Virginia Corrections. This argument would be
persuasive if it were based on the actual text of the Compact. It
is not. If such a limitation was intended, surely the Compact
would read differently. As it in fact reads, the phrase "in that
regard" seems to refer to "confinement." Such a reading confirms
and is consistent with the proposition that Virginia Corrections
acts as an agent of defendants for the purposes of plaintiffs'
confinement in Virginia Corrections facilities.
BOP argues that since it is not a party to the Compact, it
cannot be bound by its dictates. This argument fails to
acknowledge the BOP Contract's language, which indicates
formation under the Compact. BOP argues that the reference to the
Compact is merely to indicate Virginia's authority to contract
with the federal government and that BOP itself entered the BOP
Contract per 18 U.S.C. § 4002, which is also referenced in the
BOP Contract. This is certainly true, and of no moment. As
described supra, the BOP Contract explicitly invokes the
Compact and, therefore, is governed by the Compact's preemption
provision. The agency language in the Compact applies to BOP.
Even if the Compact did not support the proposition that
Virginia Corrections is an agent of defendants, plaintiffs could
still proceed with their suit. As described infra, two theories
underlie plaintiffs' claims: agency and "continuing
responsibility." The BOP Contract and D.C. Contract both support
plaintiffs' suit under their "continuing responsibility" theory.
Both indicate that plaintiffs remain in the "legal custody" of
defendants while in Virginia Corrections facilities.*fn32
Further, the Compact states that "confinement in [Virginia] shall
not deprive any inmate so confined of any legal rights which the
inmate would have had if confined in an appropriate institution
[of defendants']."*fn33 Consequently, since defendants retain
legal custody over plaintiffs and plaintiffs retain any rights
they would have if held in defendants' facilities, plaintiffs'
suit is well grounded against defendants' agency challenge.
D. EXHAUSTION OF ADMINISTRATIVE REMEDIES