Singh v. Carter

• Decision Date: 06 May 2016
• Docket Number: Civil Action No. 16-399 (BAH)
• Citation: 185 F.Supp.3d 11
• Parties: Simratpal Singh, Plaintiff, v. Ashton B. Carter, in his official capacity as Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Columbia

185 F.Supp.3d 11

Simratpal Singh, Plaintiff,

v.Ashton B. Carter, in his official capacity as Secretary of Defense, et al., Defendants.

Civil Action No. 16-399 (BAH)

United States District Court, District of Columbia.

Signed May 6, 2016

Amandeep S. Sidhu, Emre N. Ilter, McDermott Will & Emery, Eric S. Baxter, Diana Marie Verm, Eric Christopher Rassbach, The Becket Fund for Religious Liberty, Washington, DC, Daniel H. Blomberg, Becket Fund for Religious Liberty, Mt. Pleasant, SC, for Plaintiff.

Derrick Wayne Grace, Peter C. Pfaffenroth, Daniel James Everett, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

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

I. BACKGROUND

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, 168 F.Supp.3d 216, 218–23, 235–36, 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 applicable to Soldiers who have received a religious accommodation," which standards "the Army intends to develop." Id. ¶ 3.²

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 religious accommodation, see Pl.'s Notice Intent Resp. Defs.' Notice Army's Action ("Pl.'s Notice") at 1 n.1, ECF No. 34 ("Captain Singh has no objection to the specific interim standards set forth in Paragraph 3 of his Accommodation."), and to grant him a permanent religious accommodation that is not conditioned on the specific safety equipment provided by the military or any potential effect on military readiness and unit cohesion. Notably, this preliminary injunctive relief essentially encompasses all of the relief sought in the underlying complaint. See Compl. at 34 ¶ d, ECF No. 1.

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, 117 S.Ct. 1865, 138 L.Ed.2d 162 (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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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 the denial of the injunction." See, e.g., Elec. Privacy Info. Ctr. v. Dep't of Justice , 15 F.Supp.3d 32, 39 (D.D.C.2014) (" EPIC II ") (collecting cases); Veitch v. Danzig , 135 F.Supp.2d 32, 35 & n. 2 (D.D.C.2001) (holding that where "a ruling would alter, not preserve, the status quo ," the plaintiff "must meet a higher standard than were the injunction he sought merely prohibitory," in light of the Supreme Court's holding that " ‘[t]he purpose of a preliminary injunction is merely to preserve the relative position of the parties until a trial on the merits can be held’ " (alteration in original) (quoting Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) )); Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo – Mitsubishi Ltd. , 15 F.Supp.2d 1, 4 (D.D.C.1997), aff'd , 159 F.3d 636 (D.C.Cir.1998).³ Moreover, the D.C. Circuit has cautioned that a preliminary injunction generally "should not work to give a party essentially the...