Potter v. District of Columbia

rigidly applied. the waiver rule is not uments and to eliminate relitiga- needless Rather, ap the court sometimes excuses through application tion equitable estop- parent extraordinary waivers based cir pel principles. Although the IRS did not cumstances, in recognition of the fact that produce 90 boxes of documents until after “although strongly FOIA favors prompt the California district court denied Stone- disclosure, exemptions its nine enumerated 60(b) motion, hill’s Rule stayed and then are to protect ‘legitimate those appeal pending administrative the dis- governmental private interests’ that trict discovery remand, court’s decision on by be ‘harmed release of certain suggest Stonehill does not the IRS ” types of August, information.’ 328 F.3d would have located the documents sooner at 699 (quoting Agency John Doe v. John proceeded without staying the FOIA 146, 152, Corp., Doe 493 U.S. 110 S.Ct. appeal had the FOIA waiver applied rule (1989)); 107 L.Ed.2d 462 see also EPA v. discovery. Any unfairness caused Mink, 410 U.S. release of requested documents after (1973). L.Ed.2d 119 Absent evidence of Stonehill’s death mitigated by his es- improper motives for obtaining a tactical vigorous pursuit tate’s of his claims. Con- advantage, developments interim including sidering whole, the circumstances as a development the factual of a case or then, persuaded we are not that the court changes applicable in an legal doctrine should link the two information-gathering allowing agency warrant an to invoke regimes through a waiver rale when doing exemption for the first time on appeal. necessarily so would not advance the poli- Implicit Id. at 700. in approach is the cy goals underlying Delays the rule. with- that, acknowledgment given the balance regime, the FOIA Stonehill’s FOIA, principal interests delays reflected some focus, provide are inevitable in do not litigation linking over rationale for the invoca statutory Here, tion of exemptions. its waiver discovery rule to where different discovery several proceedings and Stone- considerations are involved. Accordingly, appeal hill’s successful to the Ninth Circuit affirm grant we of summary judgment. production requirements that, led to extent, may

some have affected the IRS’s

approach in resisting discovery hardly

curtailed its protect privileges efforts to

the FOIA proceeding.

Congress has addressed concerns about

delays in civil proceedings in the Civil POTTER, al., Calvert L. Appellees et Justice Reform Act of see 28 U.S.C. 471-73, §§ and district court rules reflect v. efforts, see, e.g., (pre- D.D.C. R. 16.3 COLUMBIA, Appellant. DISTRICT OF requirement, trial conference mir- largely roring D.D.C. Civil Expense Justice 07-7163, Nos. 07-7164. Delay Plan, 1994). Reduction eff. Mar. United Appeals, States Court of delays But attendant information-gath- District of Columbia Circuit. ering regimes may simply often be the result of additional searches for documents Argued Oct. 2008. as well as additional document reviews. Decided March delay reduced, Some may be as occurred here, through the district court’s exercise

of discretion to production facilitate of doc- Attor- Love, Assistant

Richard S. Senior Attorney Gener- General, Office of ney argued al for the on the him With appellant. cause for At- Nickles, Interim Peter J. briefs were Kim, General, Solicitor S. torney Todd Murasky, Deputy General, and Donna M. General. Solicitor Doan, cause for argued the A. Joshua were on the brief With him appellees. Spitzer. B. Arthur D. Iverson and William TATEL, Circuit ROGERS Before: WILLIAMS, Circuit Senior Judges, and Judge.

Opinion for the Court Circuit Judge A. . ROGERS. Firefighters encounter atmo- spheres. areas, The most dangerous clas- Concurring opinion by Judge Senior sified as “immediately dangerous to life WILLIAMS. health,” and fires, include all active other ROGERS, Judge: Circuit oxygen-deprived environments, and set- The requires District of Columbia its tings in highly which toxic contaminants firefighters emergency and medical service may’be inhaled. Other pose areas a lesser (“EMS”) (together “firefighters”) workers threat, and still pose other areas no threat to be clean shaven. A number of firefight- at all. firefighters When do not know the religious ers who wear beards reasons threat posed by environment, an they must challenged requirement this under the Re- treat it as immediately dangerous to life ligious Act, Freedom Restoration 42 and health. (“RFRA”). § seq. et U.S.C. 2000bb Firefighters can protect themselves granted district court using a number of forms of respiratory firefighters upon finding that equipment, all of which use the tight- same District of Columbia had not shown a ma- fitting face mask. powerful, The most a terial issue as to requirement whether the breathing self-contained apparatus, or narrowly Specifically, tailored. SCBA, tank, consists of an air regulator, district court found the District of Colum- and a mask. A SCBA is to main- bia had conceded the for bearded “positive tain pressure” in the face mask— firefighters of one form of respirator is, atmospheric pressure great- (known “SCBA”). as a agree We the Dis- er inside the mask than outside. Testimony trict of Columbia satisfy failed to its bur- from both parties that, indicates aas re- den in opposing summary judgment by sult, a leak in the seal the face mask will setting specific forth evidence showing a cause clean air to leak out of the mask into triable issue of fact to the safety of the the outside atmosphere, rather than allow- SCBA, and we affirm. ing contaminated outside air to leak in. The District of “respiratory Columbia’s I. protection plan” requires firefighters Because this case centers on the efficacy use SCBAs in environments that are actu- certain equipment for bearded ally or potentially immediately firefighters, it is helpful first to describe health, to life and although EMS workers the environments in which are not trained at all in the use of SCBAs. work protective and the equipment Although appeal use. We then turn to the focuses on the district court safe- ty of proceedings, SCBAs for bearded focusing particularly firefighters, on the much of the district position Columbia’s regarding proceeding court con- cerned of the self-contained of two breathing systems: other respirator. An Upon filter, APR, setting air-purifying forth our stan- consists of review, dard of requirements, mask and a RFRA filter which the user the non-moving party’s burden in An opposing breathes. APR relies on the negative summary judgment, pressure we review the record created by inhalation to draw to determine whether the District of Co- outside air through powered the filter. A lumbia raised a disputed filer, material issue of air-purifying PAPR, operates like fact about the safety APR, of SCBAs for beard- battery-powered but uses a fan to ed firefighters. force air through filter. its It is thus disagreement this case concerns inside positive pressure create designed to negative operation safe the mask. by firefighters. masks B. added). la- (emphasis A month Id. Fire Department of the D.C. In ter, workers sued to group of EMS imple- Services Emergency Medical injunction ap- establish that the modified policy” prohibit- “grooming mented them, consol- and the district court plied chal- A number ed beards. wrangling Considerable idated the cases. RFRA, and the under lenged followed, fit plaintiffs passed the as some enjoined en- preliminarily district tests, tests, subsequent some failed policy. Department forcement summary judg- parties both moved for time but plaintiffs for a accommodated 7, July District of Columbia on ment —the “safety separate policy,” in 2005 issued a 2006, firefighters responding on with the employees who Department forbade which 13, cross-moving for 2006 and October to have “fa- facepieces” “tight-fitting use on October 2006. sealing that comes between cial hair granted court The district facepiece and face.” of the surface Potter v. judgment firefighters. to the forms of relief firefighters sought various 01-1189, 05- Nos. injunction and clari- including permanent 2007 WL 2892685 Op. Mem. injunction the 2001 fication as to whether (D.D.C. 2007) (“2007 Op.”). Sept. Mem. applied also grooming policy on the district court opinion, As in the 2005 policy. The Dis- safety clean-shaven new Department that because “the reasoned for a as trict of Columbia moved positive that the apparently now concedes declaring the new matter of law system adequate is pressure in the SCBA in violation of RFRA. not from firefighter protect to bearded 11, 2005, based on extensive August On hair,” may be facial leakage that caused hearing, the district briefing daylong fire bearded the case turned whether injunction to allow the 2001 court modified APRs, and safely wear fighters could to administrative Department assign to to be able to do so. they whether need do pass not “face- duty employees who could had District of Columbia Id. at 13. The tests,” require Depart fit and also policy was argued that its clean-shaven firefighters a reason ment to afford the firefighters must be necessary because they could opportunity able demonstrate so that could safely able to use APRs Co the tests. Potter v. pass environment, long periods work for (D.D.C.2005). lumbia, F.Supp.2d 35 attack, aftermath of a terrorist such as the court stated: opinion, the In its district to life dangerous imminently which is not firefighters who undisputed It is Mem. poses a threat. and health but still safely posi- operate beards can wear 10-11. Mot. Summ. J. Opp’n to Pis’ breathing self contained pressure tive that the clean- court concluded The district (SCBA) firefighters use apparatus narrowly sufficiently not policy was shaven to be immedi- in situations considered RFRA, because tailored, required under and health [in life ately Department in such an environment any break seal be- part because] out of firefighters redeploy could bearded firefighter’s face and his SCBA tween a required, would be the zone in which APRs tank to from the mask will cause air sys areas which SCBA “up” either into out, pressure, pre- positive due to blow into areas “down” required, tems were surrounding envi- venting air from the was needed. protection in which no the mask. The entering ronment from Mem. atOp. rejection 23. The district court denied only “the real Ap- issue” now. the District of Columbia’s motion for re- pellees’ Br. It is true that if this consideration, and the District of Columbia agrees the District of Columbia con- appeals. ceded the of SCBAs for bearded firefighters, then our review of the district

II. court’s decision not to allow the District of On appeal, the District of Columbia does Columbia to raise the issue anew would be challenge the district finding court’s for abuse of discretion. See Connors v. bearded could be rede- Co., Hallmark & Son Coal ployed away from areas in which nega- (D.C.Cir.1991). n. This appeal turns (ARP) tive-air required. mask on a question, different however. This Instead it that it contends never conceded court must determine whether the District safely can use SCBAs of Columbia made an affirmative showing argued opposite. indeed Thus it opposite. Put differently, this court that summary judgment maintains was in- must decide whether the District of Co- appropriately granted because it raised a lumbia’s contention systems that SCBA genuine issue of material fact as to the are not really safe is a argument. new firefighters for bearded any to wear issue, That integral to the district court’s mask, type of tight-fitting regardless face ruling on the merits summary of judg- of whether positive the mask is used in a ment, must be reviewed de novo. Id. negative or configuration. RFRA, Under the federal government and the District of Columbia1 A. substantially person’s burden a exercise of This court grant reviews the of sum religion government unless the “demon mary novo, judgment Royall de v. Nat’l strates that application of the burden to Carriers, AFL-CIO, Ass’n Letter 548 of person (1) inis furtherance of a com — (D.C.Cir.2008). 137, F.3d 143 The fire (2) pelling governmental interest; and is fighters’ suggestion that our review is con the least restrictive of furthering means fined to the lenient of abuse discretion that compelling governmental interest.” standard misconceives the issue before the 2000bb-1; 42 § U.S.C. see Gonzales v. O court. They offer that the district court’s Centro Espirita Uniao do Beneficente denial of reconsideration —wherein the Vegetal, 546 1211, U.S. objected Columbia first as it (2006). 163 L.Ed.2d 1017 The statute appeal does on that it had never conceded makes clear that “the term ‘demonstrates’ SCBAs are safe for firefighters bearded —(cid:127) means meets the burdens of going forward was “a case-management ruling” disallow with the evidence persuasion.” and of 42 ing opportunity for the District of Co 2000bb-2(3). § U.S.C. parties agree to change position, lumbia its and as such that firefighters wear beards because only discretion, reviewable for abuse of see, Bank, religious sincere e.g., Nat’l beliefs and that Westminster their PLC v. States, (Fed. 1347, United and the of those 1363 assist is Cir.2008); a Berry compelling government v. Dist. interest. The 1031, (D.C.Cir.1987). F.2d 1037 n. 24 issue turns, As on which the appeal ultimately it, the firefighters see propriety then, is whether the require- clean-shaven Flores, 507, City 1. After Boerne v. 521 U.S. Espirita v. O Centro Gonzales Un Beneficente 2157, (1997), S.Ct. 138 L.Ed.2d 624 Vegetal, iao do 546 U.S. 424 n. apply governments. RFRA (2006). does not to state S.Ct. 163 L.Ed.2d 1017 for bearded firefighters: be unsafe pro- means to restrictive the least ment is (1) might “overbreathe” his firefighter a firefighters. tect inhaling vigorously that by so respirator Rule of Civil Procedure Federal supply is unable to sufficient regulator summary 56(c) entry of “mandates pressure, positive to maintain clean air time for discov adequate after judgment, in contaminated air drawing thus motion, who against a party ery upon (2) seal, if face mask even leak estab showing sufficient fails to make maintained, a is leak positive pressure of an element essential the existence lish air of the mask will exhaust clean out case, and on which party’s than would other- quickly supply more proof at the burden of will bear party Br. Appellant’s happen. wise See Catrett, 477 U.S. Corp. v. trial.” Celotex However, the District of the record shows 322-23, 106 L.Ed.2d 265 S.Ct. advanced, and in fact disa- Columbia never 56(c). Because (1986); R. Civ. P. Fed, see vowed, that effect any arguments to before to show government obliges RFRA summary judgment stage. free religious that burdens that a to fur restrictive means least dom the Assis- hearing In a motions interest, compelling ther a explicitly Attorney tant General disavowed only can survive were any claim that SCBAs showing it has motion either because as to whether genuine issue established the tank life of SCBA would shorten leaks narrowly requirement its clean-shaven long- a low-level there was gear because protect the interest to further tailored gear. risk associated with term is, it demon must ing —that stated, “that’s not what we’re Assistant proffered argued it strate about,” Dis- and clarified the worried not safe for bearded are show that SCBAs nec- policy was instead trict of Columbia’s 56(e). P. It R. Civ. Fed, firefighters. See essary [firefighters] “a situation where for for argument to make will not suffice area for an a contaminated go have to into Corp. v. appeal, NRM the time on first time, the World period [like] extended (D.C.Cir. Hercules, Inc., 758 F.2d 680 Center,” i.e., situation that Trade — 1985), grant review of while for maintained re- would District Columbia novo, is de summary Tr. 6 Hr’g Mot. of APRs. quire use that were arguments those only reviews 2005). (June 13, evidentiary hear- In the court, excep made in the district absent thereafter, Safety Officer shortly Fire ing circumstances, v. Singleton see tional Flint described the effect Captain William 49 Wulff, 428 U.S. S.Ct. system this SCBA positive-pressure Peters, (1976); v. L.Ed.2d 826 Woodruff there, air leakage is a way: there “[I]f (D.C.Cir.2007); 521, 525 F.3d the inside of out from will then move & de Nemours v. E.I. Du Pont Roosevelt tox- the wearer from piece, face protecting (D.C.Cir.1992); Co., 419 n. 5 Hr’g (Aug. Tr. 89 atmospheres.” Mot. ic A. Wright, see also 10A Charles Arthur 2005). expert had de- firefighters’ Mary K. Kane, R. Miller, Prac Federal & for are that SCBAs safe clared & nn. § 2716 at 282-85 and Procedure tice the same reason. firefighters (3d ed.1998). 12-13 2001). (May Santora Decl. of Alexander B. Dis- representations Given these from and the evidence trict Columbia the District of Columbia appeal, On it little wonder that firefighters, reasons that SCBAs suggests possible two district court soon testimony afterwards summarized to this effect as well as the operation the case as focused the safe District of Columbia’s statement i.e., negative-pressure systems, APRs, present SCBAs no imminent danger it “undisputed firefight- because was bearded firefighters and that the clean- safely ers who wear beards can operate” shaven was not to address Potter, positive-pressure SCBAs. 382 any problems arising from SCBA devices. Indeed, F.Supp.2d at 39. thus offered evidence affirmatively Columbia adopted this fram- showing absence of genuine dispute ing of the issue in its 2006 motion for about safety. SCBA summary judgment, arguing that the evi- In response, the District of Columbia dence showed that “None of the Plaintiffs did not directly address the assertion that Safely Can Negative [Wear] Issued Pres- is safe for to use a SCBA. added). sure Face-Pieces.” Id. (emphasis 7(h) Instead, its Rule generally statement course, Of the District of disputed “the paragraph statements in 5” free to take a different position oppos explain and went on to that a SCBA does ing the firefighters’ summary motion for not supply “a pressur- continuous flow of judgment, and it position is its in opposi air,” only ized but supplies air when the tion that is relevant here. See Hester v. pressure in the mask falls below a certain level, presumably when the user inhales (D.C.Cir.2007). It could have so in its done Resp. well-sealed mask. Def.’s to Pis.’ firefighters’ statement of Statement of Material Facts to Which undisputed facts or in its memorandum in There Is Genuine No Issue 3. The re- judgment. It did sponse clarified that an acceptable “[i]f not meet its burden in either. Under Rule maintained, seal is not an inward flow 7(h) rules, of the district court’s local comes the regulator during moving party must submit a statement of exhalation or during pause between material facts as to which it asserts there breaths. This feature of the pressure- issue, genuine 7(h), no D.D.C. LCvR R. demand helps regulator to conserve the district court accept these supply of air carried on the wearers [sic] facts as true if the opposing party does not back.” expert Id. The declaration sup- them, dispute Waterhouse v. District of ported these statements. (D.C.Cir. 992 2002); Henderson, Jackson v. Finnegan, appeal, On the District of Columbia con- Farabow, Dunner, Garrett & 7(h) tends its response suggested Rule the (D.C.Cir.1996) 154 (construing predecessor possibility pulling of contaminated air into 7(h)); 56(e). to local rule see Fed. R. Civ. P. the face through mask “overbreathing.” Fairly read, according and all reasonable firefighters in paragraph asserted inferences the to 7(h) as Columbia of their Rule statement that a because the non-moving party, response its cannot “supplies SCBA pres- continuous of flow support reading. Instead, air,” the re- any imperfection surized in the mask sponse simply addresses whether a prop- seal would result in air out flowing of the mask, erly in, functioning system SCBA supplies rather than air and “[i]t that all the only inhales, therefore not time or when a firefighter for a user to work in a pointing hazardous out that using firefighters the in- ] environment had a[ SCBA.” Pis.’ Statement Undisputed correctly of that Ma- stated supply SCBAs terial Support Facts In of Pis.’ Mot. for when in continuously fact supply air ¶ They Summ. J. at 5. cited expert’s only their as The response needed. does not in liti- of contention the primary point that notion the fundamental contradict could safely by although the statement gation, worn be SCBAs can environments. in hazardous have resuscitated an plausibly nonetheless 7(h) Indeed, of the Rule last sentence the were unsafe. But argument that SCBAs pressure- feature “[t]his statement — an if was intended as such this statement the helps to conserve regulator designed assertion, by unsupported it was evidence on the wearer’s air carried supply of to it is followed a citation because susceptible response the back”—renders McKay’s and of Dr. paragraphs 23 that the District only interpretation SCBAs, declaration, do not address which the explaining was mechanism of Columbia systems gen- positive-pressure even in face mask air enters the by which clean eral, possible long-term but rather Further, cannot from the tank. text which health effects to reading of Columbia’s District support the ill-fitting exposed through the use be “overbreathing” because the addressing presum- face masks—effects that would imperfect seal stated that ably positive negative- both apply to reg- “the air to come would cause systems. Certainly there is no tank, ulator,” i.e., through the the air from overbreathing regarding trace of evidence mask, from the not regulator, into depletion, pit- air tank premature the mask. Given atmosphere into outside of Columbia now main- falls the District dispute opportunity and burden to Thus, single if in this tains addressed. SCBAs, the District of Co- safety (1) was District of Columbia sentence the technical only a lumbia instead offered representation that recanting its earlier did not reach the fundamental quibble that designed was clean-shaven summary judgment, the district issue. On to address concerns related give credence uncontradicted court is to ex- that no such concerns SCBA use and supporting unimpeached evidence (2) ist, poli- arguing clean-shaven and so the district moving party, firefighters’ asser- cy take the address properly could fact Jackson, (3) as true. See concerns, tion of contesting SCBA 101 F.3d 145 at 154. specifically, the District SCBA devices only the kind of “mere- Columbia offered also failed

The District Columbia significantly probative” ly colorable or not to sum- its memorandum insufficient to defeat that the mary judgment to show motion. Anderson v. On genuine disputed issue. SCBAs was 249-50, Inc., points Liberty Lobby, U.S. appeal, (1986) (ci- its memorandum stated L.Ed.2d 202 out positive pressure omitted). in a used “[e]ven when tations tight fitting a face- configuration, use of other evidence refer regards As presents an unac- beard] a piece [with ap of by District Columbia on enced the In the wearer’s health.” ceptable risk to in the fire opposing it not cited peal, was positive- this statement about isolation summary judgment. for fighters’ motion the systems appears support by Captain testimony example, For it con- position that District of Columbia’s important face seal is tight Flint that in safety of tested the SCBAs. Viewed sys leak in a SCBA mask because face likely interpretation is the more context of the exhaustion tem could hasten “pow- focused on is an issue service life supply: (“PAPR”), “[R]educed air-purifying respirator” ered well, make sure we need to system that was as and positive-pressure another maintaining possible by we’re as much air as referenced two by declarations Dr. cylinder, gets (the which then to the McKay. All but one of these sources firefighter’s lungs, wasting standards) instead of NIOSH were Dr. cited by letting creep piece.” outside of the face McKay in his first declaration 2005 but 2005). Hr’g (Aug. Mot. Tr. 102 None not resubmitted or even referenced in the pleadings of the District of Columbia’s or District of Columbia’s to sum- oral district court argument cited mary judgment. Likewise that first decla- testimony argued this that cannister ration itself was not referenced in the concern, depletion is a or indeed a Moreover, memorandum. McKay’s Dr. concern at all. “It is well settled that declaration appears to cite these sources legal issues and theories not asserted at general for the proposition that beards ordinarily the District will Court level not may compromise a face mask seal and appeal.” be heard on Colum efficacy respirators, therefore the with- Fla., Inc., bia v. Air distinguishing nega- out between risks for (D.C.Cir.1984); Corp., NRM 758 F.2d at positive-pressure systems. tive and See 680. The District of Columbia bore the ¶ Roy Decl. T. McKay, Ph.D at 16 (Sept. pointing burden of to evidence that could 2005) (“The clearly scientific literature create an issue of material fact as to the consistently recognizes the fact that arguing of SCBAs and sealing facial hair at the respi- surface of a remained; laying issue respirator leakage. rator causes increased dormant in enough, the record is not leakage Such expected per- decreases the not “obliged district to sift ....”); respirator formance of the e.g., id. pages depositions, hundreds of article, (quoting “It per- is concluded that affidavits, interrogatories in order to sons with excessive facial hair ... cannot analysis make own and determination [its] expect to obtain high degree respi- as not, may, genuine of what abe performance persons rator who are disputed issue of material fact.” Twist v. ¶ (“Numerous shaven”); clean id. at Meese, (D.C.Cir. 1421, 1425 guidelines standards and prohibit pres- Jackson, 1988); see 101 F.3d at 151. In ence of facial hair at the sealing surface of event, most, Captain Flint’s state tight fitting respirator.”). In another ment sup could be evidence that would context, gen- suffice to create a port safety, an argument about but uine testimony issue material fact as to the argu alone is itself such ment, SCBAs, especially given shortly before because concerns as to the testimony, (all Attorney Assistant greater category systems that use any safety General disavowed concerns masks) tight-fitting would include concerns premature depletion. based on canister (SCBA systems as to the lesser in particu- (June 2005) (“Now Mot. Hr’g Tr. at 6 lar). However, throughout litigation you will you have the lifetime that can parties both and the district court were reduced, spend in a every fire because distinguish careful negative between time there’s a in the seal break and the positive-pressure systems and their blow, air has to that’s air that’s not in effects; parties witnesses for both testified your tank, maybe but an hour tank will or declared that leaks in SCBAs did not last 45 minutes. That’s not what we’re air, result in breathing contaminated Mot. about.”). worried 1, 2005), Tr. Hr’g (Aug. and the district court and summary judgment plead-

The the District of Columbia also points articles, safety ings expressed to scientific federal an understanding that the regulations, and manufacturer directions safety negative-pres- case turned on the of appeal, has not contended on SCBAs, in Columbia APRs, Def.’s Mem. see sure 2006). demonstrated, excep- (July much less Judg. at 15 of Sum Support the district background, exist here. Nor has Against this tional circumstances declara- McKay’s Dr. only interpret could that the district court abused it contended information, both supporting the and objection tion allowing in not its discretion earlier, as ex- years almost two submitted in for the first time a motion to be raised safety concern about general pressing Instead, the District for reconsideration. rele- and thus face masks tight-fitting of the safe- disputed of contends APRs, safety not SCBAs. of vant in its ty along, including all of SCBAs summary judgment. notes that one of Columbia The District specific Accordingly, risks be- does discuss record shows otherwise. scientific article users, B.J. systems for bearded did not of the District of Columbia SCBA cause Protec Held, Breathing Hair and Facial carry opposing its burden at 26- tion, Dec. Chief, material judgment to establish an issue of Int’l Fire discourage that NIOSH standards SCBAs, of sum- regarding issue respirators” “pressure-demand the use for the mary judgment Nancy Bollinger, hair, U.S. facial with affirm. appropriate and we Dep’t Servs., Nat’l Health and Human Oocupational Safety Health, WILLIAMS, & Judge, Inst. for Senior Circuit Logic Respirator Selection concurring: Niosh (2004). these two sources were Although discloses unequivocally here The record declaration, McKay’s to Dr. attached fact. Yet disputed issue material SCBA he did not discuss summary judgment. granted district court aspect to that systems point or open the law were an If the sole aim of ¶at McKay Decl. report. See article truth, plainly reverse. we search would 2005) study (noting “[re Held (Sept. policy claim that a plaintiffs leakage hair variability in facial viewed the requiring that fire- of Columbia factors). point At no respect to” five with violates their be .clean-shaven fighters summary judgment during the before Resto- Religious Freedom rights under of Columbia did the District proceedings Act, seq. § et 42 U.S.C. 2000bb ration that ad portions of either source cite plain- that the acknowledges The District SCBAs, that those sources argue nor dress being clean-sha- aversion to religious tiffs’ Like are unsafe. demonstrated SCBAs sincere, disputes the Flint, and no one ven is this infor testimony Captain record, the District’s interest lay proposition fallow mation themselves, plaintiffs cannot rest reversal of —that of Colum linked to that the District 'whose arguments fellow workers have, not, develop citizenry based at but did bia could performance, their produced record it on the factual reasons de- compelling. For the large—is 151; Jackson, at 101 F.3d district court. case opinion, the in the court’s veloped Twist, at 1425. firefight- to whether bearded comes down safely rely on a self-contained can ers circumstances, a fed- exceptional Under (“SCBA”). Before us breathing apparatus argu- consider court will appellate eral have that it should District contends summary judgment not against ments trial that with at prove had a chance Singleton, in the district court. See made poses serious the SCBA wearer 2868; Du E.I. 428 U.S. District’s for which the safety risks Pont, at 419 n. 5. The restrictive solution. Unfortu- simply is least District could have been correcting District, nately for the its own muddled inconsequential rather technical detail— litigation strategy rendered clarifying, words, in other that there are plaintiffs a legitimate for the supplied through times when no is outcome. hand, regulator. On the other the District summary judg- that, their motion for could saying

With have been absent an plaintiffs ment submitted their “Statement acceptable seal, the user at risk of Facts,” describing Material SCBA as breathing in contaminated outside air. supplying] a continuous pressur- flow of The references to air “regulator” from the by firefighters ized air from tanks worn and conservation of air supply favor the facemasks, that any into their so minor first interpretation; but the pointlessness imperfections in the facemask’s seal will correcting error, plaintiffs’ technical result in an outward flow of clean air prefaced by “dispute[ the claim to their ]” mask, rather than an from the inward contention, supports the second. The bal- potentially dangerous gases flow of interpretation, ance favors the first legiti- It particulates. danger- is therefore not mating grant firefighter ous for a to work in a hazard- plaintiffs. using an ous environment SCBA. Joint ¶ (“J.A.”) But the record Appendix scholarly 110-11 If also contains undisputed, were work making District’s the second interpretation far (at here) claim least as frame it plausible. more expert, Roy The District’s would But disput- dissolve. the District McKay, T. in his first declaration identified statement, plaintiffs’ saying, ed a number of articles on “the science of The Defendant disputes the statements facial hair negative performance and the in paragraph 5. A SCBA does not supply on respiratory protection,” has id. at air”; “a pressurized continuous flow of Held, among them Bruce J. Facial Hair rather, pressure-demand regulators are Protection, and Breathing Chief, Int’l Fire provide breathing air into Dec. J.A. 90 (reporting on facepiece when the research at Lawrence Livermore National facepiece prerdefined (posi- falls below a Laboratory under contract W-7405-ENG- tive) acceptable value. If an seal is not 48). Held, According to person “a doing maintained, an inward flow of air comes moderately heavy heavy work can ‘over- through the regulator during exhalation leak, breathe’ the air if supply there is a or during pause between breaths. and suck or pull outside contaminated pressure-demand This feature of the air through the leak.” J.A. 92. regulator helps to conserve the supply of air earned on the wearers McKay’s [sic] back. citation and provision of the came, sure, ¶ Held article to be in a declara- Id. at support, 111 5. In the District tion offered at an stage; earlier declaration, and even expert relied on an which la- then the beled the declaration call plaintiffs’ assertion as itself didn’t atten- “incor- rect” explained tion to the “overbreathing” problem. an ac- “[w]hen It maintained, ceptable seal is no inward flow would thus required good have deal of of air regulator comes during digging part of the district court to or during pause exhalation between discover Held’s expert conclusion on the ¶ breaths.” Id. at 120 22. matter. To avert the need for dig- ging, 7(h) The District’s susceptible district court’s Local Rule interpretations. hand, two On the one states:

553 summary judgment] on which the District’s own An to was [a accompanied by sepa- plainly motion shall be based—nonetheless reflected of genuine rate concise statement issues poses OSHA’s that facial hair all material facts as to setting forth excessive risk. a gen- it is contended there exists which Moreover, regulation clearly the OSHA necessary litigated, to uine issue be agency’s rested on the concern with “over- include references to the which shall breathing.” Explaining to its decision re- support of the record relied on to parts quire testing positive-pressure fit with res- the statement. pirators, OSHA observed: thought judges

The rule embodies the positive respirators Even do pigs, hunting not like for truffles bur- “are always positive pressure not maintain ied briefs” or the record. United States facepiece, particularly inside the when (7th Cir.1991). Dunkel, v. 956 facepiece poor, fit is strenuous work is may buried the Held article However being overbreathing performed, and been, though, clearly the record have the respirator Leakage occurs.... must Occupational alerted the court to the Safe- consistently be minimized so that users ty and Health Administration’s belief high protection they achieve the levels of poses respi- facial hair risks for the use of need. generally. rators As the district court not- (1998). Fed.Reg. OSHA’s 1223/2 opinion, disput- ed in its 2005 the District’s explanation at for its decision went on simply requires firefighters ed order to length, firm. position and its the face-fit comply requirements with judge pig hunting While a isn’t a for 1910.134, § 29 C.F.R. which is the parties’ papers, truffles neither is he “respiratory pro- regulation OSHA A potted plant. judge on notice of a regulation That provides, tection.” plaintiffs’ posi- contradiction between the § 1910.134(g)(1)®,that agency tion and the views of a federal permit The employer respi- shall wholly hesitate to find the issue tight-fitting facepieces rators with to undisputed. And the district court in this by employees be worn who have: passive case was not across the board. In (A) Facial hair that comes between accepting plaintiffs’ theory that beard- sealing facepiece surface of the redeployed quickly ed could be and the face or that interferes with requiring either to areas the use of SCBAs function. valve requiring respirators, or to areas not Potter v. District it reached back for evidence introduced (D.D.C.2005). F.Supp.2d earlier, years in a different con- over two sure, regulation, ap- The OSHA to be text, plaintiffs’ and not identified pears govern firefight- not to the District’s summary judgment motion. See Tr. of 652(5) § ers. 29 U.S.C. excludes state em- (ex- Conf., 29, 2007, at Status Nov. 4-5 652(7) § ployees generally, explains plaining that introduced in the “state” includes the the term District. what informed August hearing “is Although under some conditions Environ- plan plausibility reassignment Agency regulations mental Protection September that I talked about” coverage exempt to otherwise extend opinion). 2007 memorandum While 300.5, workers, §§ see 40 C.F.R. troubling, the variance in the court’s zeal is 300.150(d), the District has made no real fact, no claim on the District rests those are effort show conditions made, claim, likely not regulation— such a even if would applicable plaintiffs. 60(b)(5). applies rule Departures from Fed.R.Civ.P. justify a result. different always give injunction long party as a permanent almost bound as passivity are benefit, yet departures significant one side a net ‘a seeking relief “can show v. Mil facto error. Burdett ipso are not in factual conditions or change either ” (7th Cir.1992) ler, 1375, 1380 957 F.2d Felton, Agostini v. 521 U.S. law.’ not criticized when (“[Judges] should be (1997) 1997, 138L.Ed.2d 391 argu to counsel a line of they point out v. Inmates Coun (quoting of Suffolk Rufo overlooked, that he has inquiry ment or 367, 384, Jail, ty 502 U.S. S.Ct. obligated not to do although they are (1992)). the exact 116 L.Ed.2d 867 While per unfolding so.... When hard to change nature of such a be plain judge the district suaded imagine, there is at least some comfort counsel had misidentified the RICO tiffs experiment launched hope impropriety could without enterprise, she fal judgment having will end without invited him to shift the line of his have plaintiffs’ theory. sified the (internal omitted)); ....” citations attack Carson, cf. States v. United (D.C.Cir.2006) (explaining that showing high”— for a of bias is

“threshold conduct must “reveal such a judge’s

high antagonism of favoritism or degree impossible” (quot

to make fair Edmond,

ing States v. United (D.C.Cir.1995), Liteky v. INCORPORATED, NETWORKS, M2Z States, United U.S. S.Ct. Appellant (1994))). 1147, 127L.Ed.2d 474 v. outcome, nonetheless, seems ex- The FEDERAL COMMUNICATIONS traordinarily unsatisfactory. Looking on COMMISSION, Appellee side, one see it as consti- bright experiment, in which tuting semi-natural Netfreeus, LLC, al., et Intervenors. fight the District of will calami- 07-1360, Nos. 07-1441. bearded, with some of its ties firefighting while other entities adhere to Appeals, United States Court equivalent. Perhaps OSHA’s rule or its District of Columbia Circuit. inconsequential. prove the difference will ideal, far experiment from however. March obviously, Most the likelihood of acute ca-

lamity thus the risk —and breaking

teams will be stretched to the

point greater in the District than —seems city. other American

almost injunction a permanent

Of course even irredeemably permanent. Feder- judges

al Rules of Civil Procedure allow party legal representative

“relieve a or its order, judgment, proceed-

from a final if,

ing” among things, “applying other longer equitable.” is no

prospectively

Case Details

Case Name: Potter v. District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 6, 2009

Citation: 558 F.3d 542

Docket Number: 07-7163, 07-7164

Court Abbreviation: D.C. Cir.