Jackson v. District of Columbia

• Decision Date: 10 July 2001
• Docket Number: No. 00-5103,00-5103
• Parties: (D.C. Cir. 2001) Louis Jackson, on behalf of himself and others similarly situated, et al., Appellants v. District of Columbia, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 262

254 F.3d 262 (D.C. Cir. 2001)

Louis Jackson, on behalf of himself and others similarly situated, et al., Appellants v. District of Columbia, et al., Appellees

No. 00-5103

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2001

Decided July 10, 2001

Appeal from the United States District Court for the District of Columbia (No. 99cv03276)

E. Desmond Hogan argued the cause for appellants. With him on the briefs were Jonathan L. Abram, William S. Haft and Arthur B. Spitzer.

Edward E. Schwab, Assistant Corporation Counsel, argued the cause for appellee District of Columbia. With him on the brief were Robert R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz Alexander Prager, Assistant Deputy Corporation Counsel.

Michael A. Humphreys, Assistant U.S. Attorney, argued the cause for appellee Bureau of Prisons. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Henderson, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

Rastafarian and Sunni Muslim pris- oners challenge a prison grooming policy that forbids beards and long hair, arguing that the policy violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act. Although the district court found that the prisoners failed to exhaust their administrative reme- dies as required by the Prison Litigation Reform Act, the court went on to hold that the policy violated neither the First Amendment nor the Religious Freedom Restoration Act. The prisoners appeal, arguing that for statutory, proce- dural, and constitutional reasons, the exhaustion requirement does not apply to them. Agreeing with the district court that the prisoners failed to exhaust their administrative remedies, we remand with instructions to vacate in part and dismiss the complaint without prejudice.

I

The National Capital Revitalization and Government Im- provement Act of 1997 requires the District of Columbia to close the Lorton Correctional Complex by December 31, 2001. D.C. Code 24-1201(b). The Act instructs the District to transfer its prisoners to facilities operated by the Federal Bureau of Prisons ("BOP"). Id. Because BOP has insuffi- cient space to accommodate all D.C. prisoners, the District contracted to transfer over 1000 prisoners to Virginia Depart- ment of Corrections ("VDOC") facilities. BOP also trans- ferred an additional 900 District inmates in its custody to VDOC prisons.

On November 15, 1999, VDOC announced new grooming standards for all inmates in its prisons. For male inmates, the policy prohibits beards and goatees, requires hair to be cut above the shirt collar, and bans hairstyles "such as braids, plaits, dreadlocks, cornrows, ponytails, buns, mohawks, par- tially shaved heads, [or] designs cut into the hair." Inmate Grooming Standards, Va. Dep't of Corr., Procedure No. DOP 864, at 2 (Nov. 15, 1999). The policy also imposes grooming requirements on female prisoners, but permits their hair to be shoulder-length. Penalties for violating the policy include assignment to special housing; termination of most visitation, telephone, and commissary privileges; and suspension from work and other activities. Id. at 3. If on arrival a new prisoner "refuses to cooperate, use of ... force/restraints is authorized in order to bring the inmate into compliance with grooming standards." Id.

Louis Jackson, Isadore Gartrell, Carl Wolfe, and Roddy McDowell, appellants, are serving D.C. sentences at the VDOC Sussex II prison in Waverly, Virginia. They brought this action in the United States District Court for the District of Columbia on behalf of themselves and other D.C. prisoners, principally Sunni Muslims and Rastafarians, who are housed in Virginia facilities and who believe their religious faiths forbid them from cutting their hair, shaving their beards, or both. In their complaint, the prisoners alleged that the grooming policy violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. 2000bb to 2000bb-4. RFRA forbids the government from "substantially burden[ing] a person's exercise of religion" unless the government can "demonstrate[ ] 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." Id. 2000bb-1(b). Con- gress enacted RFRA to protect one of "the most treasured birthrights of every American"--"the right to observe one's faith, free from Government interference." S. Rep. No. 103- 111, at 4 (1993). Although the Supreme Court has declared RFRA unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507 (1997), we have assumed, without deciding, that "RFRA applies to the federal govern- ment, notwithstanding the Supreme Court's decision in ... Boerne." Alamo v. Clay, 137 F.3d 1366, 1368 (D.C. Cir. 1998); cf. Henderson v. Kennedy, 253 F.3d 12(D.C. Cir.2001). We shall continue that assumption here.

The prisoners made two basic claims in the district court. First, they contended that VDOC lacked a compelling interest in the grooming policy and that the policy was not the least restrictive means of achieving whatever interests VDOC had. Alternatively, they argued that BOP and the District had a less restrictive means of housing prisoners who believed that the grooming policy required them to violate fundamental religious tenets: transferring them to non-Virginia prison facilities without such grooming policies.

On December 14, 1999, one day before the grooming poli- cy's effective date, the district court issued a temporary restraining order preventing the policy from being applied to any District inmate with "sincerely held religious beliefs the new grooming policy would compromise." Order Granting T.R.O., Jackson v. District of Columbia, No. 99-03276 (D.D.C. Dec. 14, 1999). Shortly thereafter, BOP filed a motion to intervene as a defendant, explaining that it has a contract with VDOC to house former Lorton inmates now in BOP's care. The district court granted BOP's motion, and the prisoners filed an amended complaint to include BOP prisoners in the class.

To comply with the TRO, BOP implemented a screening procedure to identify prisoners' religious preferences before assigning them to VDOC facilities. Sunni Muslim and Rasta- farian prisoners were sent to facilities outside Virginia that did not require them to cut their hair or shave their beards.

Following discovery and trial, the district court ruled that the prisoners had failed to exhaust VDOC's grievance proce- dures and had thus not complied with the Prison Litigation Reform Act's ("PLRA") requirement that "[n]o action ... be brought with respect to prison conditions under ... any ... Federal law[ ] by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted," 42 U.S.C. 1997e(a). See Jackson v. District of Columbia, 89 F. Supp. 2d 48, 63 (D.D.C. 2000). Explaining, however, that "considerable re- sources [had been] devoted to the presentation of evidence," and that appellate review was "certain," id. at 64, the court went on to consider the merits of the case. Ruling against the prisoners, the court concluded that although the prison- ers' belief that they could not cut their hair was "heartfelt and sincere," id. at 65, and although they had demonstrated that the grooming policy "substantially burdens their exercise of religion," id., the prison interests served by the policy were compelling, and VDOC had no less restrictive alternatives, id. at 66-69. The district court entered "judgment for defen- dants." Id. at 50. In doing so, the court "decline[d] to evaluate" the issue raised by the prisoners' alternative claim: "whether defendants have compelling interests in keeping plaintiffs incarcerated in Virginia Corrections facilities." Id. at 66.

The prisoners appeal, arguing that: (1) the PLRA's ex- haustion requirement does not apply to them; (2) the district court erred in failing to read an irreparable harm exception into the exhaustion requirement; and (3) in any event, two class members successfully exhausted available administrative remedies. On the merits, they press only their alternative argument that BOP and the District could assign them to prisons without grooming policies, as BOP did to comply with the TRO.

II

In support of their claim that the district court erred in applying the PLRA's exhaustion requirement to them, the prisoners argue that the PLRA does not apply to RFRA actions and that the District and BOP waived the exhaustion defense by failing to include it in their answers. We address each argument in turn.

The prisoners' first argument rests on two provisions of RFRA. Entitled "Judicial relief," one provision establishes that "[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the Constitution." 42 U.S.C. 2000bb- 1(c). The second provision, entitled "Rule of construction," states that "[f]ederal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter." Id. 2000bb-3(b). According to the prisoners, these two provi- sions allow them to pursue their RFRA action without first complying with the PLRA's exhaustion requirement. They argue that because nothing in the PLRA--a "Federal statuto- ry law adopted after November 16, 1993"--"explicitly ex- cludes ... application" of RFRA's "Judicial relief" provision, courts may condition the filing of RFRA actions on nothing more than "the general rules of standing under Article III of the Constitution."

We disagree. The prisoners...