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POTTER v. DISTRICT OF COLUMBIA

August 11, 2005.

CALVERT L. POTTER, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: JAMES ROBERTSON, District Judge

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. MEMORANDUM

Calvert Potter, Tarick Ali, and Hassan Umrani are District of Columbia firefighters. They are Muslims who wear beards as a matter of religious observance. Their beards have been controversial. In May 2001, they sued to establish the proposition that a grooming policy of the fire department (now the Fire and Emergency Medical Service, or FEMS, hereinafter the "Department" or the "District) violated their rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment. On June 22, 2001, I granted a preliminary injunction in their favor, directing the Department not to subject them to any portions of the grooming policy that would require them to violate their religious beliefs, or to sanction them for failing to comply with the policy on religious grounds.

  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,*fn1 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.*fn2 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 June 15, 2004. The District did not file a new policy. Instead, it filed a suggestion of mootness, attaching a copy of a fire department special order issued three years previously (and four days after the preliminary injunction) providing that persons objecting on a religious basis to specific provisions of the Department's grooming regulations would be exempt from those provisions.

  Another six months passed (without any response from plaintiffs to the suggestion of mootness). I asked the parties on December 21, 2004, to report whether there was "anything left to litigate." The District responded in the negative, noting that it "intended to adopt a safety based policy that will mandate that all personnel required to wear face masks to perform their duties pass a `face-fit' test," but asserting that its new safety policy had nothing to do with the grooming policy that had been the basis of the complaint. Plaintiffs' answer was quite different. They had learned, they said, that the new policy "continues to prohibit facial hair even if a firefighter with facial hair can obtain a perfect fit on his breathing mask," a prohibition that, in their submission, would violate the preliminary injunction. That response prompted my order, issued on February 11, 2005, requiring that the District file "a plain statement of what its official policy is with respect to facial hair and a `face-fit' test for face masks." On February 28, 2005, the District finally did, stating its intent "to require that all employees required to wear protective masks comply with the `face-fit' requirements of 29 CFR 1910.134."

  That statement brought the case quickly to a boil again. Plaintiffs moved for clarification of the preliminary injunction and for a permanent injunction. The District moved for judgment as a matter of law. On June 7, 2005, the Fire and Emergency Medical Service (FEMS) issued its policy formally as Special Order 20, Series 2005, Pl. Pre-hearing Mem. Ex. 5-5. Plaintiffs immediately filed an emergency motion to hold the fire chief in contempt and to preserve the status quo.

  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." Id. Those who do not comply with the order are to be placed in administrative duty status, then penalized with a 12 hour suspension, then a 24 hour suspension, and finally, "recommended for termination for [sic] the fourth day for noncompliance." Id. In consideration of this litigation, the Department also notified firefighters that they may request religion-based exemptions from Special Order 20. A firefighter whose request for exemption is granted will not be disciplined for failing to comply with Special Order 20, but will be "assigned to administrative duties until the legal issues are resolved." Pl. Emergency Mot. to Show Cause, Second Sneed Decl., Ex. B.

  On June 13, 2005 I ruled ad interim that the Department could not place the plaintiffs on administrative duty status and that the preliminary injunction would remain in place until a merits hearing could be held on the plaintiffs' RFRA claim. At the close of that hearing, which took place on August 1, 2005, I extended the injunction for ten "real days." Tr. at 161.

  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. ¶ 3. He is a member of the HazMat unit, and he took and passed a computerized face fit test on July 19, 2002. Id. at ¶ 13, 17, Ex. A.

  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. ¶¶ 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." Id. at ¶ 4. He allowed his beard to grow again after the preliminary injunction was issued in 2001. Id. He failed the face test in 2002 and was transferred out of the HazMat unit. After being equipped with a different face piece ...


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