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«Argued October 7, 2008 Decided March 6, 2009 No. 07-7163 CALVERT L. POTTER, ET AL., APPELLEES v. DISTRICT OF COLUMBIA, APPELLANT Consolidated with ...»

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided March 6, 2009

No. 07-7163

CALVERT L. POTTER, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA,

APPELLANT

Consolidated with No. 07-7164

Appeals from the United States District Court for the District of Columbia (No. 01cv01189) Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellant. With him on the briefs were Peter J.

Nickles, Interim Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.

Joshua A. Doan, argued the cause for appellees. With him on the brief were William D. Iverson and Arthur B. Spitzer.

2 Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Judge WILLIAMS.

ROGERS, Circuit Judge: The District of Columbia requires its firefighters and emergency medical service (“EMS”) workers (together “firefighters”) to be clean shaven. A number of firefighters who wear beards for religious reasons challenged this requirement under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). The district court granted summary judgment to the firefighters upon finding that the District of Columbia had not shown a material issue as to whether the requirement was narrowly tailored. Specifically, the district court found the District of Columbia had conceded the safety for bearded firefighters of one form of respirator (known as a “SCBA”). We agree the District of Columbia failed to satisfy its burden in opposing summary judgment by setting forth specific evidence showing a triable issue of fact as to the safety of the SCBA, and we affirm.

I.

Because this case centers on the efficacy of certain safety equipment for bearded firefighters, it is helpful first to describe the environments in which firefighters work and the protective equipment they use. We then turn to the district court proceedings, focusing particularly on the District of Columbia’s position regarding the safety of the self-contained breathing respirator. Upon setting forth our standard of review, RFRA requirements, and the non-moving party’s burden in opposing summary judgment, we review the record to determine whether 3 the District of Columbia raised a material issue of disputed fact about the safety of SCBAs for bearded firefighters.

A.

Firefighters encounter dangerous atmospheres. The most dangerous areas, classified as “immediately dangerous to life and health,” include all active fires, other oxygen-deprived environments, and settings in which highly toxic contaminants may be inhaled. Other areas pose a lesser threat, and still other areas pose no threat at all. When firefighters do not know the threat posed by an environment, they must treat it as immediately dangerous to life and health.

Firefighters can protect themselves by using a number of forms of respiratory equipment, all of which use the same tightfitting face mask. The most powerful, a self-contained breathing apparatus, or SCBA, consists of an air tank, a regulator, and a mask. A SCBA is designed to maintain “positive pressure” in the face mask — that is, the atmospheric pressure is greater inside the mask than outside. Testimony from both parties indicates that, as a result, a leak in the seal of the face mask will cause clean air to leak out of the mask into the outside atmosphere, rather than allowing contaminated outside air to leak in. The District of Columbia’s “respiratory protection plan” requires firefighters to use SCBAs in environments that are actually or potentially immediately dangerous to life and health, although EMS workers are not trained at all in the use of SCBAs.

Although this appeal focuses on the safety of SCBAs for bearded firefighters, much of the district court proceeding concerned the safety of two other systems: An air-purifying filter, or APR, consists of a mask and a filter through which the user breathes. An APR relies on the negative pressure created by inhalation to draw outside air through the filter. A powered 4 air-purifying filer, or PAPR, operates like an APR, but uses a battery-powered fan to force air through its filter. It is thus designed to create positive pressure inside the mask.

B.

In 2001, the D.C. Department of Fire and Emergency Medical Services implemented a “grooming policy” that prohibited beards. A number of firefighters challenged the policy under RFRA, and the district court preliminarily enjoined enforcement of the policy. The Department accommodated the plaintiffs for a time but in 2005 issued a separate “safety policy,” which forbade Department employees who use “tightfitting facepieces” to have “facial hair that comes between the sealing surface of the facepiece and face.” The firefighters sought various forms of relief including a permanent injunction and clarification as to whether the 2001 injunction on the grooming policy also applied to the new safety clean-shaven policy. The District of Columbia moved for a judgment as a matter of law declaring the new policy not in violation of RFRA.





On August 11, 2005, based on extensive briefing and a daylong hearing, the district court modified the 2001 injunction to allow the Department to assign to administrative duty employees who could not pass “face-fit tests,” and also to require the Department to afford the firefighters a reasonable opportunity to demonstrate they could pass the tests. Potter v.

District of Columbia, 382 F. Supp. 2d 35 (D.D.C. 2005). In its

opinion, the district court stated:

–  –  –

Id. at 39 (emphasis added). A month later, a group of EMS workers sued to establish that the modified injunction applied to them, and the district court consolidated the cases.

Considerable wrangling followed, as some plaintiffs passed the fit tests, some failed subsequent tests, and both parties moved for summary judgment — the District of Columbia on July 7, 2006, with the firefighters responding on October 13, 2006 and cross-moving for summary judgment on October 16, 2006.

The district court granted summary judgment to the firefighters. Potter v. District of Columbia, Nos. 01-1189, 05Mem. Op. at 2 (D.D.C. Sept. 28, 2007) (“2007 Mem.

Op.”). As in the 2005 opinion, the district court reasoned that because “the Department now apparently concedes that the positive pressure in the SCBA system is adequate to protect the bearded firefighter from any leakage that may be caused by facial hair,” the case turned on whether bearded firefighters could safely wear APRs, and whether they need to do be able to do so. Id. at 13. The District of Columbia had argued that its clean-shaven policy was necessary because firefighters must be able to safely use APRs so that they could work for long periods in an environment, such as the aftermath of a terrorist attack, which is not imminently dangerous to life and health but still poses a threat. Mem. in Opp’n to Pls’ Mot. for Summ. J. 10-11.

The district court concluded that the clean-shaven policy was not sufficiently narrowly tailored, as required under RFRA, because in such an environment the Department could redeploy bearded firefighters out of the zone in which APRs would be required, either “up” into areas in which SCBA systems were 6 required, or “down” into areas in which no protection was needed. 2007 Mem. Op. at 23. The district court denied the District of Columbia’s motion for reconsideration, and the District of Columbia appeals.

–  –  –

On appeal, the District of Columbia does not challenge the district court’s finding that bearded firefighters could be redeployed away from areas in which a negative-air pressure mask (ARP) is required. Instead it contends that it never conceded bearded firefighters can safely use SCBAs and indeed argued the opposite. Thus it maintains that summary judgment was inappropriately granted because it raised a genuine issue of material fact as to the safety for bearded firefighters to wear any type of tight-fitting face mask, regardless of whether the mask is used in a positive or negative configuration.

A.

This court reviews the grant of summary judgment de novo, Royall v. Nat’l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 143 (D.C. Cir. 2008). The firefighters’ suggestion that our review is confined to the lenient abuse of discretion standard misconceives the issue before the court. They offer that the district court’s denial of reconsideration — wherein the District of Columbia first objected as it does on appeal that it had never conceded SCBAs are safe for bearded firefighters — was “a case-management ruling” disallowing an opportunity for the District of Columbia to change its position, and as such reviewable only for abuse of discretion, see, e.g., Nat’l Westminister Bank, PLC v. United States, 512 F.3d 1347, 1363 (Fed. Cir. 2008); Berry v. Dist. of Columbia, 833 F.2d 1031, 1037 n.24 (D.C. Cir. 1987). As the firefighters see it, the propriety of the rejection is “the only real issue” now.

Appellees’ Br. 24, 26. It is true that if this court agrees the 7 District of Columbia conceded the safety of SCBAs for bearded firefighters, then our review of the district court’s decision not to allow the District of Columbia to raise the issue anew would be for abuse of discretion. See Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 341 n.9 (D.C. Cir. 1991). This appeal turns on a different question, however. This court must determine whether the District of Columbia made an affirmative showing of the opposite. Put differently, this court must decide whether the District of Columbia’s contention that SCBA systems are not safe really is a new argument. That issue, integral to the district court’s ruling on the merits of summary judgment, must be reviewed de novo. Id.

Under RFRA, the federal government and the District of Columbia1 may not substantially burden a person’s exercise of religion unless the government “demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.

§ 2000bb-1; see Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006). The statute makes clear that “the term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion.” 42 U.S.C.

§ 2000bb-2(3). The parties agree that the firefighters wear beards because of sincere religious beliefs and that their safety and the safety of those they assist is a compelling government interest. The issue on which the appeal ultimately turns, then, is whether the clean-shaven requirement is the least restrictive means to protect the safety of firefighters.

1 After City of Boerne v. Flores, 521 U.S. 507 (1997), RFRA does not apply to state governments. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1 (2006).

8 Federal Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see FED, R. CIV. P. 56(c). Because RFRA obliges the government to show that a policy that burdens religious freedom is the least restrictive means to further a compelling interest, the District of Columbia can only survive a summary judgment motion by showing that it has established a genuine issue as to whether its clean-shaven requirement is narrowly tailored to further the interest of protecting firefighters — that is, it must demonstrate it argued and proffered evidence to show that SCBAs are not safe for bearded firefighters. See FED, R. CIV.

P. 56(e). It will not suffice to make that argument for the first time on appeal, NRM Corp. v. Hercules, Inc., 758 F.2d 676, 680 (D.C. Cir. 1985), for while review of the grant of summary judgment is de novo, this court reviews only those arguments that were made in the district court, absent exceptional circumstances, see Singleton v. Wulff, 428 U.S. 106, 120 (1976);

Woodruff v. Peters, 482 F.3d 521, 525 (D.C. Cir. 2007);

Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992); see also 10A CHARLES A. WRIGHT,

ARTHUR R. MILLER, & MARY K. KANE, FEDERAL PRACTICE AND

PROCEDURE § 2716 at 282-85 & nn.12-13 (3d ed. 1998).

B.

On appeal, the District of Columbia suggests two possible reasons that SCBAs might be unsafe for bearded firefighters: (1) a firefighter might “overbreathe” his respirator by inhaling so vigorously that the regulator is unable to supply sufficient clean air to maintain positive pressure, thus drawing in contaminated air through a leak in the face mask seal, or (2) even if positive pressure is maintained, a leak of clean air out of the mask will 9 exhaust the air supply more quickly than would otherwise happen. See Appellant’s Br. 13. However, the record shows the District of Columbia never advanced, and in fact disavowed, any arguments to that effect before the summary judgment stage.

In a motions hearing in 2005, the Assistant Attorney General explicitly disavowed any claim that SCBAs were dangerous for bearded firefighters either because any leaks would shorten the tank life of SCBA gear or because there was a low-level long-term risk associated with that gear. The Assistant stated, “that’s not what we’re worried about,” and clarified that the District of Columbia’s policy was instead necessary for “a situation where [firefighters] have to go into a contaminated area for an extended period of time, [like] the World Trade Center,” — i.e., a situation that the District of Columbia maintained would require the use of APRs. Mot.



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