SINGH v. CARTERSINGH v. CARTER
Pending before the Court are the plaintiff’s Application for Preliminary Injunction (“Pl.’s PI Mot.”), ECF No. 3, and Motion to Consolidate (“Pl.’s Mot. Consolidate”), ECF No. 39. Specifically, the plaintiff seeks “a preliminary injunction directing Defendants to grant him a permanent religious accommodation that would allow him to wear uncut hair, a beard, and turban, as required by his Sikh faith, while serving in the Army.” Pl.’s PI Mot. at 1; see also Pl.’s Proposed Order, ECF No. 3-1 (requesting that defendants be “preliminarily enjoined from enforcing against Plaintiff any Army regulations that would prohibit him from wearing unshorn hair, a beard, and turban as required by his Sikh faith”). The plaintiff also requests that this case be consolidated with Singh v. McConville, No. 16-cv-581, another case pending before this Court. For the reasons that follow, both motions are denied.1
The background in this case is laid out in considerable detail in the Court’s prior Memorandum Opinion granting the plaintiff’s motion for a temporary restraining order (“TRO”) and enjoining the defendants from “subjecting the plaintiff to any non-standard or discriminatory testing for his helmet and gas mask during the pendency of the litigation.” See Singh v. Carter, No. 16-cv-399, 2016 WL 837924, at *1–4, 16 (D.D.C. Mar. 3, 2016). Shortly after that decision, on March 30, 2016, Debra S. Wada, the Assistant Secretary of the Army (“ASA”) for Manpower and Reserve Affairs, granted the plaintiff’s then-pending “request for an exception to Army personal appearance and grooming standards,” subject to certain limitations. Defs.’ Notice Army’s Action (“Defs.’ Notice”), Ex. 1, Mem. Decision Regarding Request for Religious Accommodation – CPT Simratpal Singh (Mar. 30, 2016) (“Accommodation Decision”) ¶ 1, ECF No. 26-1.
As detailed in the Accommodation Decision, the plaintiff’s religious accommodation is limited in the following four ways. First, “[t]he bulk of [the plaintiff’s] hair, beard, or turban may not be such that it impairs [his] ability to wear the Army Combat Helmet (ACH) or other protective equipment or impedes [his] ability to operate [his] assigned weapon, military equipment, or machinery.” Id. ¶ 2. Relatedly, ASA Wada “may withdraw or limit the scope of [the plaintiff’s] accommodation for reasons of military necessity, including if [she] cannot confirm that Army protective equipment (to include ACH and protective mask) will provide [the plaintiff] the intended degree of protection against the hazards presented by the duties or areas to which [he] will be assigned.” Id. ¶ 6.
Second, the plaintiff must wear his articles of faith in a manner prescribed by the Accommodation Decision, until such time as the Army publishes “clear uniform standards
Third, the plaintiff’s accommodation may be suspended “during [his] assignment to hazardous duties or areas,” defined as those duties which would entitle the plaintiff to special “hazardous duty incentive pay.” Id. ¶ 5.
Lastly, the plaintiff’s religious accommodation is not “permanent” or unlimited. Instead, ASA Wada “intend[s] to re-evaluate” the plaintiff’s accommodation in one year, or earlier “based upon military necessity if [the plaintiff] must be assigned to another unit,” because the Army intends “to gather additional information and develop additional standards” for soldiers who have received religious accommodations. Id. ¶¶ 3, 6. As part of the information gathering process to support “the Army’s interest in mission accomplishment, which requires military readiness, unit cohesion, good order, discipline, health, and safety on both the individual and unit levels, [ASA Wada] ha[s] requested that [the plaintiff’s] command provide quarterly assessments of the effect of [his] accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness.” Id. ¶ 4.
The relief sought by the plaintiff in his motion for a preliminary injunction would require the defendants to withdraw all, except the second, of these enumerated limitations on his
II. LEGAL STANDARD
A. Preliminary Injunctive Relief
“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)); Abdullah v. Obama, 753 F.3d 193, 197–98 (D.C. Cir. 2014) (same). A preliminary injunction “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)).
The D.C. Circuit has, in the past, followed the “sliding scale” approach to evaluating preliminary injunctions, where “a court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant [preliminary relief] if the movant has made a substantial case on the merits.” Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Under the sliding scale approach, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
The continued viability of the sliding scale approach is highly questionable, however, in light of the Supreme Court’s holding in Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), that a court may not issue “a preliminary injunction based only on a possibility of irreparable harm [since] injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” See Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (noting that, after Winter, “the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is no longer controlling, or even viable” (internal quotations and citation omitted)); see also In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of preliminary injunction standard are met before injunctive relief can be granted). Thus, the plaintiff bears the burden of persuasion on all four preliminary injunction factors in order to secure such an “extraordinary remedy.”
The D.C. Circuit has expressly cautioned that “[t]he power to issue a preliminary injunction, especially a mandatory one, should be ‘sparingly exercised.’” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (citation omitted). Heeding this caution, where, as here, the plaintiff’s requested injunction is “mandatory—that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act,” Judges on this Court have required the moving party to “meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from
B. Case Consolidation
Pursuant to
Consolidation is generally appropriate where it “would promote convenience and judicial economy, simplify management of the cases, . . . facilitate global resolution of the . . . claims[,] and conserve judicial resources,” Steele v. United States, No. 14-cv-1523, 2015 WL 4121607, at *2 (D.D.C. June 30, 2015), and, thus, “particularly appropriate when the actions are likely to involve substantially the same witnesses and arise from the same series of events or facts,”
III. DISCUSSION
The plaintiff’s motion for a preliminary injunction is addressed first, before turning to the plaintiff’s pending request to consolidate this case with that of three other Sikh plaintiffs, who are also requesting religious accommodations from various military branches.
A. Motion for Preliminary Injunction
The plaintiff continues to request the extraordinary remedy of preliminary injunctive relief, despite the Army’s March 30, 2016 decision on his religious accommodation request, claiming that “he is entitled—at a minimum—to a preliminary injunction that adds legal force to his Accommodation and clarifies the RFRA [Religious Freedom Restoration Act] standards under which it may appropriately be limited.” Pl.’s Notice at 10; see also id. at 6 (“[A]n injunction is necessary to ensure that the Army implements the Accommodation appropriately.”). The defendants oppose this motion on grounds of mootness. Defs.’ Notice Army’s Action (“Defs.’ Notice”) at 3–4, ECF No. 26. The Court disagrees with both sides: while the plaintiff’s claims are not moot, he is nonetheless not entitled to the preliminary injunctive relief he seeks.
The defendants assert that ASA Wada’s decision “fully accommodates Plaintiff’s religious exercise by allowing him to wear a beard, turban, and unshorn hair while in uniform” and that, since the plaintiff’s accommodation request has been granted, a live case or controversy no longer exists for this Court to decide. Defs.’ Notice at 3–4. Under
“A case becomes moot . . . ‘only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Cambell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277, 2287 (2012)). Yet, “‘[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Id. (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)); see Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (explaining that a case is not moot where “the court has the ‘power to effectuate a partial remedy’” (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992))); Schnitzler v. United States, 761 F.3d 33, 39 (D.C. Cir. 2014) (holding a plaintiff’s “claim is not moot” where “he has not received all the relief he sought”); cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding
Here, though the plaintiff has, since filing the case and the pending motion for preliminary injunctive relief, received a “long-term” religious accommodation from the Army, see Defs.’ Opp’n Pl.’s Appl. PI (“Defs.’ Opp’n”) at 15, 27, ECF No. 35 (referring to plaintiff’s religious accommodation as “long-term”), he seeks a “permanent religious accommodation,” Pl.’s PI Mot. at 1 (emphasis added). “Long-term” does not equate to “permanent,” and the plaintiff’s accommodation is subject to reevaluation in one year’s time. See Accommodation Decision ¶ 6. Thus, the plaintiff has not obtained all the relief he seeks, and his claims are not moot.
Moreover, as the plaintiff notes, see Pl.’s Notice at 9–10, “[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed,” Knox, 132 S. Ct. at 2287. Accordingly, an exception to the mootness doctrine would apply here, where the defendants’ “voluntary cessation” of the challenged conduct—i.e., the defendants’ failure to grant the plaintiff a religious accommodation—is the basis for the mootness argument. Goings v. Court Servs. & Offender Supervision Agency for D.C., 786 F. Supp. 2d 48, 62 (D.D.C. 2011).
While the plaintiff’s claims are not moot, a preliminary injunction is nonetheless not warranted under these circumstances, where the plaintiff has not shown that he is likely to suffer irreparable harm without preliminary relief. As the defendants point out, “[t]he form requested of Plaintiff’s injunction, that the Court give the Accommodation the ‘force of law,’ demonstrates that Plaintiff is not facing imminent, substantial harm.” Defs.’ Opp’n at 43.
Though the D.C. Circuit continues, post-Winter, to charge district courts with weighing the four preliminary injunction factors, see, e.g., In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (“We review the district court’s ultimate decision to deny injunctive relief, as well as its weighing of the preliminary injunction factors, for abuse of discretion.”); Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011) (referring to the district court’s “charge to weigh the factors with on another”), the Supreme Court made clear in Winter that a plaintiff may not prevail without some showing on each factor, see 555 U.S. at 23–24, 31–32 (holding that “[a] proper consideration of” the balance of equities and public interests “alone requires denial of the requested injunctive relief” and, thus, finding no need to address the plaintiffs’ likelihood of success on the merits). Consequently, a plaintiff must show “that irreparable injury is likely in the absence of an injunction,” regardless of the plaintiff’s likelihood of success on the merits of his claims. Winter, 555 U.S. at 22 (emphasis in original); see id. (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”); Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (“Importantly, the Winter Court rejected the idea that a strong likelihood of success could make up for showing only a possibility (rather than a likelihood) of irreparable
In light of the long-term religious accommodation granted to the plaintiff after the issuance of the TRO, the plaintiff cannot now make the requisite showing of irreparable harm, particularly in light of the D.C. Circuit’s “‘high standard for irreparable injury’” to warrant preliminary injunctive relief. Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). In order to be considered “irreparable,” the injury “must be ‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’” Id. (emphasis in original) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297).
The plaintiff claims that he is entitled to a preliminary injunction because (1) “the relief granted by the Accommodation is incomplete and limited by standards that are inconsistent with the requirements of [RFRA] and the First Amendment,” and (2) “the Accommodation potentially exposes Captain Singh to discriminatory treatment similar to” that which this Court deemed unlawful in the TRO decision. Pl.’s Notice at 2. The Court addresses each argument seriatim below.
a. Limitations on the Plaintiff’s Religious Accommodation
First, the plaintiff takes issue with the fact that his accommodation is “not truly permanent.” Id. at 4. Indeed, as the plaintiff notes, the accommodation letter indicates that the Army will reevaluate the plaintiff’s accommodation in one year and leaves open the possibility that the plaintiff’s accommodation is reevaluated sooner if the plaintiff is assigned to another unit or hazardous duties, or if the defendants cannot confirm that the Army’s protective equipment
None of these harms that the plaintiff claims he will suffer from the limitations of his religious accommodation are “‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’” Mexichem Specialty Resins, Inc., 787 F.3d at 555 (emphasis in original) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). Indeed, by the plaintiff’s own account, the harm is “uncertain” and he is exposed only to the “risk” of, or
Accordingly, the Court agrees with the defendants that the plaintiff has failed to “demonstrate that any Army action will [likely] substantially burden his religious exercise during the [remainder of this] litigation.” Id.5
b. Potential Exposure to Discriminatory Treatment
Second, the plaintiff takes issue with ASA Wada’s request that the plaintiff’s “command provide quarterly assessments of the effect of [his] accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness,”
The quarterly-assessment requirement is troubling. As another decision from this Court has explained, “it is difficult to see how accommodating [the Sikh] plaintiff’s religious exercise would do greater damage to the Army’s compelling interests in uniformity, discipline, credibility, unit cohesion, and training than the tens of thousands of medical shaving profiles the Army has already granted,” and “it is undisputed that the Army’s own regulations permit soldiers to wear yarmulkes and other religious headgear.” Singh v. McHugh, 109 F. Supp. 3d 72, 96–97 (D.D.C. 2015). Indeed, four other religious Sikhs have served in the Army with exceptional distinction and their grooming and appearance accommodations have had only a positive effect,
Nonetheless, the plaintiff’s first criticism of the quarterly-assessment requirement fails for the same reason as his criticisms of his accommodation’s limitations: the plaintiff has failed to show that the quarterly-assessment requirement is likely to cause him irreparable harm during the remainder of this litigation. Significantly, in the plaintiff’s own words, the required quarterly assessments have merely the “potential” to subject him to discriminatory treatment. This risk is considerably undercut by the plaintiff’s own admission that he “has an outstanding working relationship with his immediate commander and has complete confidence that she will treat him fairly.” Pl.’s Notice at 8; see also Defs.’ Opp’n at 26 (“Plaintiff’s speculation is simply
The plaintiff’s second criticism also must fail. The plaintiff concedes that the Army has, in fact, previously assessed the effect “on unit morale, cohesion, good order, and discipline” of the religious accommodation granted to another Sikh soldier. Pl.’s Notice at 7 (quoting Singh v. McHugh, 109 F. Supp. 3d at 100). “The Army conducted an internal examination of the effect of Corp. Lamba’s religious accommodation on his service, and the study concluded that ‘the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,’” nor on any soldier’s health and safety. Singh v. McHugh, 109 F. Supp. 3d at 100–01 (citations omitted). Given that another soldier was subject to “an internal examination” or “study,” it is simply not true that the plaintiff’s accommodation subjects him “to a standard that no other soldier, including no other Sikh soldier, has been subjected to.” Pl.’s Notice at 7.
To the extent that the plaintiff argues that the quarterly-assessment requirement is per se discriminatory, see Pl.’s Reply at 22 (“[T]he standardless quarterly reporting is both discriminatory in itself and also permits Captain Singh to be subject to intentional discrimination in the future.”), and, as a result, that “no further showing of irreparable injury is necessary,” Singh v. Carter, 2016 WL 837924, at *13–14 (citing authority), the plaintiff has not established that the balance of equities tips in his favor. The Army has a compelling need to maintain unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness, and while “military interests do not always trump other considerations,” Winter, 555
* * *
In sum, the plaintiff fails to meet the high standard required for injunctive relief and resolution of the plaintiff’s claims is, thus, “a matter for the normal course of litigation.” Defs.’ Opp’n at 4. The Court is not persuaded that “[l]eaving the current Accommodation in place but unsecured by this Court’s action,” for the time being, “will effectively put Captain Singh in limbo for the remainder of his military service,” as the plaintiff warns, Pl.’s Reply at 1, when the merits of the plaintiff’s claims will be reviewed in the normal course of litigation.
B. Motion for Case Consolidation
The plaintiff also requests that this case be consolidated with Singh v. McConville, No. 16-cv-581, which was filed exactly one month after this case along with the plaintiff’s Notice of
The cases are certainly similar. As in this case, the plaintiffs in Singh v. McConville assert claims against the same defendants under RFRA and the First and Fifth Amendments of the U.S. Constitution pertaining to the Army’s allegedly unlawful grooming and personal appearance regulations and discriminatory treatment of religious Sikhs who wish to serve or are serving in different parts of the U.S. Army. See Compl. at 27–34, Case No. 16-cv-399, ECF No. 1; Compl. at 46–52, Case No. 16-cv-581, ECF No. 1; see also Defs.’ Objection Pls.’ Notice Related Case at 2, Case No. 16-cv-581, ECF No. 37 (“[B]oth cases involve followers of the Sikh faith who requested religious accommodations to deviate from the Army’s uniform and grooming standards.”).
The three plaintiffs in Singh v. McConville, however, are each distinguishable from the plaintiff in this case. As the defendants point out, the plaintiff in this case is a West Point graduate, “a commissioned officer, serving on active duty, assigned to a world-wide deployable unit,” whereas the plaintiffs in Singh v. McConville “recently enlisted into the reserve component of the Army” and “are awaiting the initial military training necessary to qualify for military assignment.” Defs.’ Opp’n Pls.’ Mot. Consolidation at 3–4, ECF No. 40. Specifically, the plaintiff Kanwar Bir Singh was admitted on August 6, 2015 to the Massachusetts National Guard
Additionally, unlike the plaintiff in this case, the plaintiffs in Singh v. McConville have not brought any claims related to specialized helmet and gas mask testing. Since the Court already opined on the merits of the plaintiff’s specialized testing claims in resolving the plaintiff’s TRO motion last month, see Singh v. Carter, 2016 WL 937924, at *8–13, and now resolves the plaintiff’s preliminary injunction motion, only the claims remaining in the plaintiff’s original complaint remain. This case is, thus, well on the way to complete resolution, while Singh v. McConville is in an earlier stage, and consolidation is likely to delay the final resolution of this case.
Given the factual distinctions between the plaintiff here and the plaintiffs in Singh v. McConville, the differing allegations, and the cases’ respective procedural postures, the Court finds that it would, aside from creating possible confusion, not simplify case management or conserve judicial resources to consolidate the cases and, accordingly, declines to exercise the discretion to do so.
For the foregoing reasons, the plaintiff’s Application for Preliminary Injunction, ECF No. 3, and Motion to Consolidate, ECF No. 39, are denied. The plaintiff’s Expedited Motion for Status Conference, ECF No. 43, is similarly denied.
An appropriate Order accompanies this Memorandum Opinion.
Date: May 6, 2016
BERYL A. HOWELL
Chief Judge