Singh v. Carter , 168 F. Supp. 3d 216 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIMRATPAL SINGH,
Plaintiff,
Civil Action No. 16-399 (BAH)
v.
Judge Beryl A. Howell
ASHTON B. CARTER, in his official
capacity as Secretary of Defense, et al.,
Defendants.
MEMORANDUM OPINION
Pending before the Court is a motion for a temporary restraining order to enjoin an order
from the United States Army’s senior command to the plaintiff, Captain Simratpal Singh, a
decorated Sikh Army officer, requiring him to undergo several days of specialized testing, under
expert supervision, at a cost of over $32,000, with his “army combat helmet” and “army
protective mask” for the purpose of ensuring that his Sikh articles of faith, namely a cloth head
covering and unshorn hair and beard, will not interfere with the helmet’s ability “to withstand
ballistic and blunt forces” and the mask’s ability “to provide protection from toxic chemical and
biological agents.” At first blush, the challenged order appears to reflect a reasonably thorough
and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of
this particular Sikh officer.
Yet, that is far from the complete picture. Thousands of other soldiers are permitted to
wear long hair and beards for medical or other reasons, without being subjected to such
specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh
soldiers have been permitted to maintain their articles of faith without such specialized testing.
In fact, just this week, the plaintiff, who maintains the Sikh articles of faith, passed the standard
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gas mask test administered to his unit and given routinely to soldiers. Nonetheless, the plaintiff
has been ordered to undergo additional specialized testing as part of the Army’s review of his
request for a religious accommodation and exception to the Army’s regulations regarding
grooming and appearance. As the Supreme Court has stressed, in evaluating claims of
discriminatory governmental action implicating the important First Amendment right to the Free
Exercise of religion, “context matters.” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (quoting
Grutter v. Bollinger, 539 U.S. 306, 327 (2003)); see Holt v. Hobbs, 135 S. Ct. 853, 867 (2015)
(Sotomayor, J., concurring) (“Nothing in the Court’s opinion calls into question our prior holding
in Cutter v. Wilkinson that ‘context matters’ in the application of [statutes protecting religious
exercise] . . . .”).
Courts should be reluctant, as the defendants point out, “to interfere with legitimate Army
matters,” Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (quoting Orloff v.
Willoughby, 345 U.S. 83, 93–94 (1953)), since “great deference” should be given “to the
professional judgment of military authorities concerning the relative importance of a particular
military interest,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting
Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Chappell v. Wallace, 462 U.S. 296,
300 (1983) (“Civilian courts must, at the very least, hesitate long before entertaining a suit which
asks the court to tamper with the established relationship between enlisted military personnel and
their superior officers; that relationship is at the heart of the necessarily unique structure of the
military establishment.”); New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997) (“[T]he military
justice system must remain free from undue interference, because the military is a specialized
society separate from civilian society with laws and traditions of its own developed during its
long history.” (internal quotation omitted) (quoting Schlesinger v. Councilman, 420 U.S. 738,
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757 (1975)). At the same time, the Supreme Court “has never held . . . that military personnel
are barred from all redress in civilian courts for constitutional wrongs suffered in the course of
military service,” Chappell, 462 U.S. at 304, and “military interests do not always trump other
considerations,” Winter, 555 U.S. at 26. The context of this case raises such significant
questions about the lawfulness of the Army command’s order to the plaintiff to undergo
specialized testing that, pursuant to the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§§ 2000bb, et seq., judicial intervention is required.
I. BACKGROUND
The plaintiff is an honors West Point graduate, with an advanced Master’s degree in
engineering, a Ranger, and a Bronze Star recipient for his service while being forward-deployed
to Operation Enduring Freedom in Kandahar Province, Afghanistan. Verified Compl.
(“Compl.”) ¶¶ 76, 79, 82, 90, ECF No. 1; Compl. Ex. 2 (West Point academic record), ECF No.
1-1; Compl. Ex. 6 (Bronze Star Medal documentation), ECF No. 1-1. He is also a practicing
Sikh, Compl. ¶¶ 46–56, a religion that requires him to wear external “articles of faith,” including
unshorn hair (kesh), a beard, and a turban (dastaar) or smaller traditional cloth head covering
(patka), id. ¶¶ 2–4, 36–42, 100. As a Captain in the United States Army, the plaintiff is bound
by the Uniform Code of Military Justice, which requires hairstyle and grooming standards in
conflict with his faith. See generally U.S. Dep’t of Army, Reg. 670–1, Wear and Appearance of
Army Uniforms and Insignia (Apr. 10, 2015).
Throughout his youth, the plaintiff maintained the Sikh articles of faith, wearing a turban
and never cutting his hair or shaving. Compl. ¶¶ 47–50. Upon graduation from high school,
however, the plaintiff, who long desired to serve in the military, attained the opportunity to
attend the United States Military Academy at West Point. Id. ¶¶ 67–70. Before his induction
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into West Point, the plaintiff inquired about obtaining a religious accommodation for his articles
of faith from Army personnel who “expressed doubt” and “gave vague responses.” Pl.’s
Combined Mem. Supp. Appl. TRO & Appl. Prelim. Inj. (“Pl.’s Mem.”) at 8–9, ECF No. 2-1; see
Compl. ¶¶ 69–70. During the induction process, “and before Captain Singh fully understood
what was happening, he found himself in the barbershop with the other cadets to be trimmed and
shaved.” Compl. ¶ 71. “[B]elieving he had no other option” but to risk losing the opportunity to
attend West Point and serve this country, the plaintiff “succumbed under pressure and made the
difficult decision to remove his turban, cut his hair, and shave his beard.” Id. ¶ 72.
Though “[e]xperiencing significant shame and disappointment in himself” for violating
the Sikh religious requirements, id. ¶ 74, the plaintiff graduated from West Point in 2010 with a
B.S. degree in electrical engineering with Honors, id. ¶ 76; see Compl. Ex. 2, and, thereafter, has
continuously served this country with notable excellence. He has received high praise from his
commanders, Compl. ¶¶ 78, 80–81, attended and graduated from Ranger School, id. ¶¶ 78–79,
and served as platoon leader in a deployment to Afghanistan from April 2012 to January 2013,
id. ¶¶ 79–80, for which “exceptional and meritorious service” the plaintiff was awarded a Bronze
Star Medal, id. ¶ 82; see Compl. Ex. 6. In November 2013, the plaintiff received an Army
Achievement Medal for his performance during a joint training exercise with the South Korean
Army, Compl. ¶ 83; see Compl. Ex. 7 (Army Achievement Medal documentation), ECF No. 1-1,
and, in November 2014, he received an Army Commendation Medal for his service as a Brigade
Assistant for a “rapidly deployable . . . Combat Team,” Compl. ¶¶ 84–85; see Compl. Ex. 9
(Army Commendation Medal documentation), ECF No. 1-1.
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In the Spring of 2015, the plaintiff met several Sikh soldiers who maintain their articles
of faith at a celebration of the Sikh New Year hosted by the Pentagon and, “for the first time,”
saw “a viable path” to obtaining a religious accommodation. Compl. ¶¶ 88–89.
Later that year, on October 16, 2015, around the time the plaintiff completed a Master’s
degree in engineering and began a one-month leave, the plaintiff informed his new immediate
commander, Lieutenant Colonel (“LTC”) Julie Balten, that he intended to report to his next-
ordered post, the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, on the date
ordered, November 16, 2015, donning his articles of faith—wearing a turban, unshorn hair, and a
beard. Id. ¶¶ 90–92. LTC Balten represented to the plaintiff that his articles of faith “would
have no adverse impact on [his] ability to fulfill his responsibilities and promised to recommend
that he be granted an accommodation.” Id. ¶ 92. Shortly thereafter, on October 21, 2015, the
plaintiff submitted a “Request for Religious Accommodation and Exception to Wear and
Appearance Regulations Pursuant to AR 600-20 and AR 670-1” (“Pl.’s Request”), Defs.’ Opp’n
to Pl.’s Mot. TRO (“Defs.’ Opp’n”), Appendix (“Defs.’ App.”) at A19, Pl.’s Request at 1, ECF
No. 9-1, pursuant to Army Regulation 600-20, which provides that “[i]n accordance with
[RFRA] . . . , the Army will approve requests for accommodation of religious practices unless
accommodation will have an adverse impact on unit readiness, individual readiness, unit
cohesion, morale, good order, discipline, safety, and/or health,” U.S. Dep’t of Army, Reg. 600–
20, Army Command Policy (Nov. 6, 2014), ch. 5–6(a). In his request, the plaintiff detailed how
he would “conform [his] religious requirements in a way that ensures consistency with the
Army’s need to maintain uniformity and safety standards,” including maintaining his “hair and
beard in a neat and conservative manner at all times;” wearing a turban in non-field and field
settings in a matching camouflage material to his uniform, or a “subdued black turban with the
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Class A uniform whenever required;” and wearing a patka or small turban with his Kevlar
helmet. Pl.’s Request at 2–3.
Due to delays in receiving any response to this religious accommodation request, the
plaintiff twice used personal leave to extend his report date to December 14, 2015. Compl. ¶ 94.
Finally, on or about December 9, 2015, Debra S. Wada, the Assistant Secretary of the Army
(“ASA”) for Manpower and Reserve Affairs since October 2014, who is “responsible for
overseeing the implementation and execution of the Army’s policy for accommodating religious
practices and ensuring compliance with the law and DoD policy regarding religious practices,”
Defs.’ App. at A1, Decl. of Debra S. Wada (Feb. 29, 2016) (“Wada Decl.”) ¶ 1, issued a
temporary, “interim accommodation” to the plaintiff granting him permission to wear his articles
of faith until January 8, 2016, at which time ASA Wada indicated she would provide the plaintiff
with a final decision, Defs. App. at A18; see Compl. ¶ 95. On January 8, 2016, ASA Wada
extended the plaintiff’s interim accommodation until March 31, 2016, “at which time [she]
expect[s] to provide [the plaintiff] with [her] decision.” Defs.’ App. at A17; see Compl. ¶ 96.
On February 23, 2016, ASA Wada requested “additional information concerning the
compatibility of [the plaintiff’s] turban, hair, and beard with U.S. Army protective equipment.”
Defs.’ App. at A14, Mem. from Debra S. Wada (Feb. 23, 2016) (“Wada Mem.”) ¶ 2; Compl. Ex.
16 (Wada Mem.) ¶ 2, ECF No. 1-1. To gather the requested “additional information,” ASA
Wada ordered the plaintiff, first, to be fitted with an Army Combat Helmet (“ACH”) “by a
technical expert,” who “should evaluate whether CPT Singh can safely wear a patka under the
ACH” and “determine whether and to what extent CPT Singh must modify the length, bulk, or
placement of his hair in order to obtain a proper fit and to ensure the head protection coverage
area is not reduced.” Wada Mem. ¶ 3. ASA Wada ordered the plaintiff then “to be fitted with a
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protective mask by a technical expert” and evaluated using a corn oil aerosol test, id. ¶ 4(a), one
of three types of mask evaluation procedures used by the Army, Defs.’ App. at A6, Decl. of Alex
G. Pappas (Feb. 29, 2016) (“Pappas Decl.”) ¶ 3. ASA Wada ordered the plaintiff to undergo the
corn oil aerosol test using four types of Army masks, each under two different types of
conditions: first, “without any type of gel, oil, or lotion” in the plaintiff’s hair or beard and, if
the plaintiff cannot achieve a certain level of protection “in three of five successive tests” with
any mask, second, with “a personally-procured hair gel or product, such as Vaseline, to further
conform his hair to the contours of his face.” Wada Mem. ¶ 4(a)–(b). ASA Wada requested the
testing results be provided to her prior to March 15, 2016, “[t]o facilitate timely action” on the
plaintiff’s religious accommodation request. Id. ¶ 6.
The plaintiff was advised of ASA Wada’s memorandum requiring him to undergo the
specialized testing the following day. Decl. of Simratpal Singh Supp. TRO / Mot. Prelim. Inj.
(Mar. 1, 2016) (“Pl.’s Decl.”) ¶ 3, ECF No. 16-2. On the afternoon of Friday, February 26,
2016, the plaintiff was ordered to report to his normal duty post for helmet testing on the
morning of March 1, 2016, and for the “comprehensive individual gas mask testing” later this
same week. Id. at ¶ 9; Compl. ¶ 103; Pl.’s Mem. at 13; Defs.’ Opp’n at 3. Later in the evening
of February 26, 2016, the plaintiff was ordered by his immediate commanding officer, LTC
Balten, to report, after the March 1, 2016 helmet testing, to Aberdeen Proving Ground in
Maryland for three days of safety-mask testing, which LTC Balten indicated would cost
approximately $33,000. Pl.’s Decl. ¶ 10; Defs.’ Notice, Ex. at 3, ECF No. 13 (Feb. 26, 2016
email from Colonel (“COL”) Michael Peloquin to COL Peter Helmlinger, stating that the gas
mask test “[i]nvolves 3 days of testing at a cost of $32,925” and noting concern about
completion date “if ECBC [the testing center] must conduct significant analysis in the
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development of its test report”). She also told the plaintiff that her commanding officer wanted
the plaintiff to be escorted to the Aberdeen Proving Ground from Fort Belvoir, a circumstance
normally associated with “soldiers they mistrust.” Pl.’s Decl. ¶ 12; see Defs.’ Notice, Ex. at 2
(Feb. 26, 2016 email from COL Helmlinger to LTC Balten, stating “I recommend you also send
a more senior escort from the 249th to travel with [plaintiff] and observe the training” and, if he
is sent “on his own,” directing LTC Balten to “provide him with very clear written
counseling/instructions as to the purpose of the protective mask testing and his requirements to
comply with the experts”). LTC Balten was subsequently advised that her commanding officer
had been advised by “USACE Chief Counsel” that verbal, rather than written instructions would
be sufficient. Defs.’ Notice, Ex. at 1 (Feb. 26, 2016 email from COL Helmlinger to LTC
Balten).
On the morning of February 29, 2016, the plaintiff participated with about 30 soldiers
from his unit in a previously scheduled standard gas mask test, in which the soldiers put on their
gas masks and then entered a chamber to perform exercises while noxious gas was released.
Pl.’s Decl. ¶¶ 13–15. The plaintiff successfully completed the test with his gas mask sealed and
resealed. Id. ¶¶ 16–17.
The same day that the plaintiff was participating in the standard gas mask test, he filed
the Verified Complaint in this case along with an Application for Temporary Restraining Order
(“TRO”), ECF No. 2, seeking to prohibit the defendants “from subjecting Captain Singh to the
protective mask test or helmet test requirements set forth in the February 23, 2016 memorandum
from Debra S. Wada or any other unusual or discriminatory testing,” Pl.’s Proposed TRO Order,
ECF No. 2-5, and an Application for Preliminary Injunction, ECF No. 3, seeking to “direct
Defendants to grant [plaintiff] a permanent religious accommodation that would allow him to
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wear uncut hair, a bear, and a turban, as required by his Sikh faith, while serving in the Army,”
Pl.’s App. for Prelim. Inj., ECF No. 3; see also Pl.’s Proposed Prelim. Inj. Order, ECF No. 3-1
(seeking to enjoin defendants “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”).
Given that the specialized testing ordered by ASA Wada was to begin the following morning, the
Court promptly held a hearing on the TRO application that afternoon. See Minute Entry (Feb.
29, 2016). At the hearing, the defendants agreed to postpone the specialized testing until March
4, 2016.
II. LEGAL STANDARD
The standard for a temporary restraining order is the same as that for preliminary
injunction. Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.
Cir. 1977); see Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003). Either
type of injunctive relief “is an extraordinary and drastic remedy,” and “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) (emphasis omitted) (quoting 11A CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)). The
plaintiff is required to show clearly four things: (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.”
Glossip v. Gross, 135 S. Ct. 2726, 2736–37 (2015) (quoting Winter, 555 U.S. at 20); see also
Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d
388, 392 (D.C. Cir. 2011)). The plaintiff must “show that all four factors, taken together, weigh
in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting
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Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). The Supreme
Court in Winter made clear that a court may not issue “a preliminary injunction based only on a
possibility of irreparable harm . . . [since] injunctive relief [i]s an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 555 U.S. at 22.
III. DISCUSSION
Two motions for injunctive relief are pending in this case, see Appl. for TRO, ECF No. 2;
Appl. for Prelim. Inj., ECF No. 3, but only the motion for a temporary restraining order is fully
briefed and, thus, ripe for review. 1 After considering the defendants’ justiciability concerns, the
1
At the oral hearing held on February 29, 2016, and throughout their papers, the defendants argue that the
issue presented in the motion for preliminary injunction will not be justiciable until the defendants make a final
determination on the plaintiff’s request for religious accommodation which, if granted, would render that motion
moot. See, e.g., Defs.’ Proposed Briefing Schedule at 1, ECF No. 17; Tr. of Hr’g for TRO (Feb. 29, 2016) (“Hr’g
Tr.”) at 59–61, ECF No. 20. Additionally, the defendants argue that the specialized helmet and gas mask testing
must be conducted in order for ASA Wada to make a final decision on the plaintiff’s request. See, e.g., Defs.’
Opp’n at 10, ECF No. 9. The plaintiff, on the other hand, “strongly believes that this Court has the authority to
immediately decide his requests for both” a temporary restraining order barring the specialized testing and a
preliminary injunction granting the plaintiff’s request for a religious accommodation. Pl.’s Proposed Briefing
Schedule at 1–2, ECF No. 14. Accordingly, the plaintiff proposed an accelerated briefing schedule that would have
allowed the Court to resolve both motions this week. Id.
The defendants objected to the plaintiff’s proposed briefing schedule, proposing an alternative briefing
schedule for the preliminary injunction motion to take place in April 2016, see generally Defs.’ Proposed Briefing
Schedule, to which proposal the plaintiff does not object so long as “further emergency proceedings” are avoided,
Pl.’s Resp. Defs.’ Proposed Briefing Schedule (“Pl.’s Resp.”) at 1, ECF No. 19. In support of their alternative
proposed briefing schedule, and to address the Court’s concern expressed at the hearing about avoiding another
rushed “fire drill” consideration of the weighty First Amendment issues at stake, the defendants assured the Court
that, “should Plaintiff’s longer-term accommodation request not be granted when his temporary accommodation
expires on March 31, 2016, Plaintiff will initially receive a 21-day extension of his current accommodation, prior to
requiring Plaintiff to comply with Army grooming standards.” Defs.’ Proposed Briefing Schedule at 3. The
defendants’ assurance is notably silent as to whether the 21-day extension would be granted regardless of the
outcome of the TRO motion, raising the specter that the plaintiff’s request for religious accommodation may be
denied and his temporary accommodation withdrawn at any time after resolution of the TRO motion against the
defendants. Consequently, the plaintiff “agrees to extend the briefing schedule for the application for preliminary
injunction only on condition that (1) Defendants confirm in writing that Captain Singh’s temporary accommodation
is extended until a final decision is rendered on the pending application for preliminary injunction, including any
appeals; and (2) Defendants confirm in writing that they will issue a final decision on Captain Singh’s request for a
permanent accommodation by March 31, 2016, regardless of this Court’s ruling on the pending application for a
TRO.” Pl.’s Resp. at 2. Despite the defendants’ silence, the 21-day extension of the plaintiff’s current
accommodation is presumably not conditioned on the denial of TRO but would also apply if the TRO is granted,
since the same conditions would exist in either circumstance. Indeed, otherwise, the defendants’ risk the perception
that refusing to extend the plaintiff’s temporary accommodation, if the TRO is granted, during consideration of the
preliminary injunction application is in some way retaliatory, and thereby coercive, against the plaintiff for his
attempt to enforce his religious rights.
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Court turns to analysis of whether the plaintiff has satisfied the four requisite elements for the
TRO he seeks.
A. Threshold Jurisdictional Question
As a threshold matter, the defendants characterize the plaintiff’s challenge to the order for
him to undergo specialized helmet and gas mask testing procedures as a “disagreement with the
orders of his superiors.” Defs.’ Opp’n at 4; id. at 5 (“[This] is nothing more than Plaintiff’s
disagreement about the wisdom of an order issued to him.”). As such, the defendants contend
that the specialized testing order is “a purely internal military affair” that “is outside the bounds
of this court’s jurisdiction,” for two inter-related reasons. Id. at 5–6.
First, the defendants contend that the specialized testing order “implicates unique
demands of military discipline – that an officer follow the lawful orders of his superiors.” Id. at
6. Any judicial interference that “allow[s] a Soldier to second guess an order of his superior”
may, “by design[,] effect[] the goals of discipline and obedience.” Id. at 7 (internal quotation
and citation omitted).
Second, the defendants point out that, due to the potential adverse effect of judicial
intervention on critical military discipline and order, “absent a clearly defined right enforceable
in a proceeding other than a court-martial—for example, an administrative proceeding to address
a service member’s conscientious objector status—the federal courts normally should not
interfere with day-to-day operations of the military services as Plaintiff requests this Court to
do.” Id. (citing New, 129 F.3d at 647). In other words, the defendants urge the Court to abstain
from reviewing the legality of the specialized testing order, leaving the plaintiff with the choice
“to disobey the order” and be “subject to discipline,” which would then enable him to “present
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his arguments about the legality of his orders as a defense to the court-martial action” or bring
claims in an administrative proceeding. Id. These arguments are not persuasive.
Indisputably, “‘the complex, subtle, and professional decisions as to the composition,
training, equipping, and control of a military force’” is vested “exclusively in the legislative and
executive branches.” Kreis, 866 F.2d at 1511 (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)). These other two branches of the federal government are plainly responsible “for setting
up channels through which . . . grievances” for complaints of “discrimination, favoritism or other
objectionable handling of men” in the military “can be considered and fairly settled.” Orloff,
345 U.S. at 93–95 (holding the military had exclusive jurisdiction to determine the propriety of
an Army inductee’s “specific assignments to duty”); Kreis, 866 F.2d at 1511 (holding Air Force
major’s “request for retroactive promotion” was a “nonjusticiable military personnel decision[]”
because “Congress has vested in the Secretary alone the authority to determine” the propriety of
promotion decisions).
Yet, despite the sound reasons for limits on judicial review and requirements of
administrative exhaustion of military personnel decisions generally, “resolving a claim founded
solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate
to an administrative board.” Adair v. England, 183 F. Supp. 2d 31, 55 (D.D.C. 2002) (quoting
Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)). Thus, in Adair, the Court rejected the
military’s argument that plaintiffs, non-liturgical Naval chaplains, who brought claims “based on
the First Amendment’s Establishment and Free Exercise Clauses and the Fifth Amendment’s
Due Process Clause,” should have “first exhausted their administrative remedies by raising their
personnel claims with the Board for Correction of Naval Records (‘BCNR’) before coming to
federal court.” Id.
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Indeed, “the Supreme Court and [the D.C. Circuit] have heard numerous [constitutional]
challenges to military policies.” Brannum v. Lake, 311 F.3d 1127, 1130 (D.C. Cir. 2002). The
D.C. Circuit has explained that the logic underlying nonjusticiability in military cases is “wholly
inappropriate . . . when a case presents an issue that is amenable to judicial resolution,”
recognizing that “courts have shown no hesitation to review cases in which a violation of the
Constitution, statutes, or regulations is alleged.” Dilley v. Alexander, 603 F.2d 914, 920 (D.C.
Cir. 1979); see id. (“It is a basic tenet of our legal system that a government agency is not at
liberty to ignore its own laws and that agency action in contravention of applicable statutes and
regulations is unlawful. . . . The military departments enjoy no immunity from this proscription.”
(citation omitted)). 2
The plaintiff here challenges whether the specialized testing order of his superiors is in
fact “lawful,” Defs.’ Opp’n at 4, by pursuing his “clearly defined right enforceable in a
proceeding other than a court-martial,” id. at 5, under RFRA. This statute was enacted “in 1993
in order to provide very broad protection for religious liberty,” in response to a 1990 Supreme
Court decision—Employment Division v. Smith, 494 U.S. 872 (1990)—that limited religious
liberty by “largely repudiat[ing]” the Court’s earlier “method of analyzing free-exercise claims.”
Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby), 134 S. Ct. 2751, 2760 (2014); see Smith,
494 U.S. at 888 (expressing concern about “open[ing] the prospect of constitutionally required
2
The defendants’ reliance on New and Schlesinger is misplaced. Both of those cases involved Army
solders’ requests for collateral review, via a habeas petition, of a pending court-martial disciplinary proceeding. See
Schlesinger, 420 U.S. at 748–49; New, 129 F.3d at 643–44. New even recognized that when a soldier chooses to
obey an order he believes is unlawful, he can seek direct judicial review of the military’s policies. 129 F.3d at 647.
It is only when a soldier chooses to disobey the order that he must “challenge the[] validity in the subsequent
disciplinary proceedings.” Id. New further recognized that when a plaintiff has “a clearly defined right enforceable
in a proceeding other than a court-martial” proceeding, federal courts may intervene. Id. Cf. Schlesinger, 420 U.S.
at 758 (“hold[ing] that when a serviceman charged with crimes by military authorities can show no harm other than
that attendant to resolution of his case in the military court system, the federal district courts must refrain from
intervention, by way of injunction or otherwise”).
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religious exemptions from civic obligations of almost every conceivable kind”). In enacting
RFRA, Congress found, inter alia, that “governments should not substantially burden religious
exercise without compelling justification” and rejected the Supreme Court’s elimination in Smith
of “the requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion,” concluding that “the compelling interest test as set forth in prior Federal
Court rulings is a workable test for striking sensible balances between religious liberty and
competing prior governmental interests.” 42 U.S.C. § 2000bb(a). Congress expressly stated that
the “purposes” of RFRA are to “guarantee [the] application” of “the compelling interest test . . .
in all cases where free exercise of religion is substantially burdened” and “to provide a claim or
defense to persons whose religious exercise is substantially burdened by government.” 42
U.S.C. § 2000bb(b) (emphasis added). RFRA, in fact, “provided even broader protection for
religious liberty than was available” under the decisions it sought to restore. Hobby Lobby, 134
S. Ct. at 2761 n.3.
Thus, RFRA provides both broad protection of the free exercise right and a broad right of
action for judicial relief. See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has
been burdened in violation of this section may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief against a government.”). Notably, Congress
nowhere inserted any exception for the U.S. Armed Forces from RFRA’s application or any
exhaustion requirement, as it did, for example, in RFRA’s “sister statute,” the Religious Land
Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. See
Holt, 135 S. Ct. at 859; Cutter, 544 U.S. at 723 n.12 (“[A] prisoner may not sue under RLUIPA
without first exhausting all available administrative remedies.” (citing 42 U.S.C. §§ 1997e(a),
2000cc-2(e))); see also Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829,
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838 (9th Cir. 2012) (“We decline . . . to read an exhaustion requirement into RFRA where the
statute contains no such condition, . . . and the Supreme Court has not imposed one.”).
Consequently, RFRA certainly provides no textual support for the defendants’ position that the
plaintiff is required to exhaust administrative remedies in a court-martial proceeding before
bringing his constitutional and RFRA claims before this Court.
Accordingly, the Court is satisfied that jurisdiction over the plaintiff’s claims is properly
exercised here.
B. Likelihood of Success on the Merits
In his application for a TRO, the plaintiff contends that he has a likelihood of success on
his claims that the specialized testing violates: (1) the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb, et seq., (2) the Free Exercise Clause of the First Amendment of
the United States Constitution, and (3) the Equal Protection Clause of the Fifth Amendment of
the United States Constitution. Pl.’s Mem. at 23, 37–40. For the following reasons, the Court
finds that the plaintiff has demonstrated a likelihood of success on his RFRA claim and, thus,
does not address his likelihood of success on the other claims.
RFRA provides that the “Government shall not substantially burden a person’s exercise
of religion even if the burden results from a rule of general applicability” unless “it 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(a), (b). At the preliminary injunction stage, the parties’ burdens
of proof and persuasion under RFRA “track the burdens at trial.” Gonzales v. O Centro Espirita
Benefiente Uniao do Vegetal, 546 U.S. 418, 429 (2006).
15
Thus, the plaintiff bears the initial burden of showing that the government’s policy
“implicates his religious exercise”—i.e., that “the relevant exercise of religion is grounded in a
sincerely held religious belief”—and that the government’s policy substantially burdens that
exercise of religion. Holt, 135 S. Ct. at 862; O Centro, 546 U.S. at 428 (noting that the
plaintiff’s prima facie case under RFRA is to show that the application of the government’s
policy “would (1) substantially burden (2) a sincere (3) religious exercise”). The burden then
shifts to the defendants to show that the policy “(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. § 2000cc-1(a); Holt, 135 S. Ct. at 863; see 42 U.S.C. §
2000bb-2(3) (“[T]he term ‘demonstrates’ means meets the burdens of going forward with the
evidence and of persuasion.”); O Centro, 546 U.S. at 428–29 (explaining that it is the
government’s burden (of proof and persuasion) at the preliminary injunction stage to
“demonstrate that the application of the burden [of free exercise] to the [plaintiff] would, more
likely than not, be justified by the asserted compelling interests” and that the plaintiff’s
“proposed less restrictive alternatives are less effective” (citing Ashcroft v. ACLU, 542 U.S. 656,
666 (2004)).
1. The Plaintiff Has Established A Prima Facie Case
The defendants do not dispute the sincerity of the plaintiff’s exercise of his Sikh religious
beliefs. See Tr. of Hr’g for TRO (Feb. 29, 2016) (“Hr’g Tr.”) at 34:15–16, ECF No. 20. The
defendants dispute that the specialized helmet and gas mask testing required of the plaintiff poses
any burden on his free exercise right because all of the “testing would be completed with CPT
Singh’s articles of faith intact.” Defs.’ Opp’n at 8–9. This view of the burden on the plaintiff is
too myopic and ignores both the fact that the plaintiff is required to take these tests when other
16
soldiers granted exceptions to the Army regulations regarding grooming and appearance are not,
and the fact that these tests directly affect whether the plaintiff receives a religious
accommodation and, if granted, the scope of the accommodation. See Wada Decl. ¶ 5 (asserting
that the Army must conduct the “individualized testing” on the plaintiff to “understand [safety]
risks to the greatest extent possible before making a final decision on CPT Singh’s religious
accommodation and, if he is granted an accommodation, the scope of that accommodation”).
The issue before this Court on the TRO application is not whether compliance with the
Army grooming and appearance regulations would substantially burden the plaintiff’s religious
exercise rights. In that regard, the plaintiff’s prima facie case may be “easily satisfied” since,
absent an accommodation, the plaintiff would face serious disciplinary action by maintaining the
Sikh articles of faith, see Holt, 135 S. Ct. at 862 (concluding that prison grooming policy on
beard length “substantially burdens [prisoner plaintiff’s] religious exercise” because if he
“contravenes that policy and grows his beard, he will face serious disciplinary action”), a finding
conceded by the defendants, see Hr’g Tr. at 34:17–35:5 (conceding that, should the Army revoke
the plaintiff’s interim religious accommodation, he would be substantially burdened and have a
right of action under RFRA). Rather, the issue now is whether conditioning the processing of the
plaintiff’s request for a religious accommodation on the specialized helmet and gas mask testing
itself presents a substantial burden.
Generally, “[a] substantial burden exists when government action puts ‘substantial
pressure on an adherent to modify his behavior and to violate his beliefs.’” Priests for Life v.
U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 246 (D.C. Cir. 2014) (quoting
Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008)). In considering whether the
procedures for obtaining a religious accommodation are themselves burdens on the free exercise
17
rights, courts have looked to the precise nature of the procedures imposed. Mere
inconveniences, inconsequential or de minimis government actions that burden religious exercise
do not suffice to qualify as a “substantial burden.” See Priests for Life, 772 F.3d at 246 (“A
burden does not rise to the level of being substantial when it places ‘[a]n inconsequential or de
minimis burden’ on an adherent’s religious exercise.” (quoting Kaemmerling, 553 F.3d at 678));
id. at 248 (“Burdens that are only slight, negligible, or de minimis are not substantial.”); Smith v.
Allen, 502 F.3d 1255, 1278 (11th Cir. 2007) (“[A]t a minimum the substantial burden test
requires that a RLUIPA plaintiff demonstrate that the government’s denial of a particular
religious item or observance was more than an inconvenience to one’s religious practice.”),
abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011); Midrash Sephardi, Inc.
v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“[A] ‘substantial burden’ must place
more than an inconvenience on religious exercise.”). At the same time, procedures that render a
requested religious accommodation virtually impossible to achieve have been found to be
substantially burdensome. See, e.g., Nelson v. Miller, 570 F.3d 868, 878–79 (7th Cir. 2009)
(requiring prisoner to show that religion compelled the practice in question and verify compelled
practice with documentation imposed substantial burden by making desired religious exercise
“effectively impracticable”); Koger v. Bryan, 523 F.3d 789, 797 (7th Cir. 2008) (requiring
prisoner to show preferred diet was compelled by religion and religious belief to be verified by
clergy for entitlement to religious accommodation was substantial burden and contrary to
RLUIPA).
The D.C. Circuit recently addressed this issue in Priests for Life. There, the plaintiffs
challenged the “regulatory accommodation for religious nonprofit organizations that permits
them to opt out of the contraceptive coverage requirement under the Patient Protection and
18
Affordable Care Act (‘ACA’), 42 U.S.C. § 300gg-13(a)(4)” on grounds that the procedure “itself
imposes an unjustified substantial burden on Plaintiffs’ religious exercise in violation of” RFRA.
772 F.3d at 235; see id. at 245–46 (“Plaintiffs argue that a religious accommodation, designed to
permit them to free themselves entirely from the contraceptive coverage requirement, itself
imposes a substantial burden.”). The Court concluded that the challenged opt-out procedure did
“not impose a substantial burden on Plaintiffs’ religious exercise under RFRA,” noting that “[a]ll
Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or
two-page form,” which amounted to a “bit of paperwork [that] is more straightforward and
minimal than many that are staples of nonprofit organizations’ compliance with law in the
modern administrative state.” Id. at 237.
The specialized helmet and gas mask testing challenged in the TRO application involves
far more than a de minimis administrative obligation of completing a one or two-page document
but falls short of constituting an “effectively impracticable” requirement for obtaining a religious
accommodation in the military. This makes this a close case. Nevertheless, the Court is
persuaded that requiring the plaintiff to undergo the specialized testing for further processing of
his religious accommodation request is a substantial burden when such testing is not required for
soldiers to obtain exceptions from the Army uniform and grooming regulations on grounds other
than adherence to the Sikh religious articles of faith.
The testing ordered in this case is not required of any other soldier, including soldiers
who “use relaxed grooming standards” on military missions. See Hr’g Tr. at 16–18. With
respect to helmets, the defendants explained at oral argument that, “[u]nder normal
circumstances, the average soldier is fitted” for a helmet only once, during basic training or
initial schooling. Id. at 19. After that, “the soldier is responsible for ensuring a proper fit in
19
conjunction with his chain of command.” Id.; see also Pl.’s Mem., Ex. A, Decl. of Kamaljeet
Singh Kalsi (Feb. 27, 2016) (“Kalsi Decl.”) ¶ 15, ECF No. 2-2 (attesting, from personal
experience and observations as an Army soldier, that “soldiers do not undergo evaluation for
helmet fit” but are instead “left to choose a helmet that fits them based primarily on their own
assessment” and “frequently adjust, remove, or add padding . . . on their own, with no external
evaluation or validation”); Pl.’s Mem., Ex. B, Decl. of Simran Preet Singh Lamba (Feb. 27,
2016) (“Lamba Decl.”) ¶¶ 20–22, ECF No. 2-3 (same); Pl.’s Decl. ¶ 6 (same). Though safety
concerns might warrant testing to evaluate the helmet and mask safety of Special Forces soldiers
“deployed into environments where they[] . . . use relaxed grooming standards,” no safety tests
on these soldiers are required. Hr’g Tr. at 18; see also Kalsi Decl. ¶¶ 6, 11–12, 14 (attesting,
from personal experience and observations as an active duty officer deployed to Afghanistan in
2011, who was required to have “enhanced familiarity with the use of the Army’s standard-issue
M-40 protective mask and Kevlar helmet” for his assignment, that Special Forces soldiers who
“had beards and long hair” and “did not have to undergo specialized fitting for protective masks
or helmets”).
The defendants proffer that helmet testing, or “fitting,” for Special Forces soldiers is not
necessary because “it’s the way their hairstyle operates. In other words, they don’t wear a bun of
hair on top of their head or any . . . material on top of their head that would change the
geometrical shape of their head.” Hr’g Tr. at 19; see also Defs.’ App. at A10, Decl. of James Q.
Zheng (Feb. 29, 2016) (“Zheng Decl.”) ¶¶ 5–6 (“express[ing] concern” about “some Sikh
soldiers, following a religious accommodation” and wearing a helmet “with unshorn hair tucked
under the helmet and a cloth headcovering” because performance of the helmet could be
“degraded to a level that could compromise a soldier’s safety” from a “geometry deviation”).
20
Testing the plaintiff right now, however, may not allow the defendants to evaluate the fit of the
plaintiff’s helmet under the specific conditions that are the cause of concern. The plaintiff only
received a religious accommodation this past October and, consequently, the unshorn hair on his
head “is currently only about three inches long.” Pl.’s Decl. ¶ 4.
Moreover, the defendants have provided no explanation as to why the plaintiff’s beard is
a potential safety hazard requiring specialized gas mask testing when the beards of Special
Forces soldiers deployed in war zones with “relaxed grooming standards” are no such hazard and
require no such testing. Similarly, the Army has granted medical exceptions to thousands of
service members, allowing them to grow beards without any specialized gas mask testing. See
Pl.’s Mem. at 34. The defendants contend that those medical exceptions are different because
they allow for only a very small amount of facial hair growth. Hr’g Tr. at 23–24. An Army
study conducted in 2009, however, indicated that even “the presence of facial hair . . . degrades
the performance of protective masks.” Pappas Decl. ¶ 3.
Not even soldiers subject to the Army’s “Hard to Fit” protocol are subject to the level of
specialized testing ordered for the plaintiff. The “Hard to Fit” protocol, which is used for
individuals who have unusual “anthropomorphic features such as head size or facial feature
composition” to ensure a “satisfactory fit with the standard issue protective mask,” requires a
“M41 protective assessment test system (PATS).” Pappas Decl. ¶ 3. PATS testing is “used at
the unit level” and requires soldiers merely to perform “five exercises.” Id. ¶ 4. While the Army
deems this testing sufficient for “Hard to Fit” service members, the plaintiff is being required to
undergo “corn oil aerosol” testing, “the most accurate of the three types of mask evaluation
procedures used by the Army,” id. ¶¶ 3–4, which will require a series of exercises and “trials”
that will take up to three days, id. ¶¶ 5–6. This level of specialized testing is generally unheard
21
of, perhaps due to the costs. See Kalsi Decl. ¶ 13; Lamba Decl. ¶ 21; Khalsa Decl. ¶ 25; Pl.’s
Decl. ¶¶ 5–7.
Lastly, despite the fact that the Army has “never tested the ACH [helmet] in the manner
CPT Singh has requested to wear it,” Zheng Decl. ¶ 7, nor “evaluated whether the use of hair
gels or Vaseline on an individual’s facial hair may affect the performance of the protective
mask,” Pappas Decl. ¶ 3, the Army has granted permanent religious accommodations in the past
to other Sikh soldiers without any specialized testing. See Kalsi Decl. ¶ 5; Lamba Decl. ¶¶ 8, 15;
Khalsa Decl. ¶ 10. Each of these Sikh soldiers served with merit on active duty deployments,
and one of them, like the plaintiff, was awarded a Bronze Star Medal, in part for his
“coordination of five mass casualty exercises” in Afghanistan, which he performed adhering to
his articles of faith. Kalsi Decl. ¶ 8.
Singling out the plaintiff for specialized testing due only to his Sikh articles of faith is, in
this context, unfair and discriminatory. It is this singling out for special scrutiny—indeed, with
the initial precaution of requiring an escort and observers for the plaintiff as he was subjected to
the tests—that has a clear tendency to pressure the plaintiff, or other soldiers who may wish to
seek a religious accommodation, to conform behavior and forego religious precepts. Even if not
intended, such pressure and its concomitant coercive effects on a religious adherent amounts to a
“substantial burden.” See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316 (10th Cir. 2010)
(recognizing a “‘coercion’ aspect to substantial burden”) (“[The Supreme] Court has repeatedly
held that indirect coercion or penalties on the free exercise of religion, not just outright
prohibitions, are subject to scrutiny under the First Amendment.” (quoting Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988))). Consequently, the Court finds that the
22
plaintiff has met his burden to show a likelihood of success in establishing a prima facie case
under RFRA.
2. Compelling Interest Test
Given the plaintiff’s likelihood of success in making out a prima facie case that the
specialized testing, in the context of this case, violates RFRA, the defendants must show that the
testing furthers a compelling government interest and does so by the least restrictive means. The
government unquestionably has a compelling interest in ensuring the health and safety of
military personnel, including the plaintiff, and by conducting these specialized helmet fitting and
gas mask tests on the plaintiff—or, as plaintiff’s counsel succinctly put it, using the plaintiff as a
“lab rat for the military,” Hr’g Tr. at 51:23–24—the Army may obtain information useful to
keeping soldiers safer, thereby furthering this compelling interest.
The proposed restriction on the plaintiff’s right to free exercise by way of the
individualized, intensive helmet and gas mask testing is not the least restrictive means of
furthering the government’s interest in helmet and gas mask safety, however. Indeed,
conducting or commissioning a study of the efficacy of helmets and gas masks for soldiers
donning a variety of unshorn hair, beards, and/or head coverings, which does not target one
particular Sikh soldier merely because of his request for a religious accommodation, would be
more effective in furthering the government’s compelling interest in ensuring the health and
safety of its soldiers. This is particularly true in light of the “relaxed grooming standards” and
medical exceptions that the Army grants to thousands of soldiers. Conducting or commissioning
such a study would not, unlike the testing ordered in this case, in-and-of-itself restrict or burden
any one individual’s right to free exercise, and the results of the study would likely provide more
value to the government in ensuring the health and safety of military personnel generally.
23
The Supreme Court’s decision in Holt is instructive. That case involved a prisoner’s
challenge under RFRA to the prison’s grooming policy limiting the length of beards. 135 S. Ct.
at 859. The Supreme Court credited the prison’s compelling governmental interest in prison
safety and security but concluded that the beard length policy at issue was not the least restrictive
means of accomplishing those goals. Id. at 863 (finding it “hard to take seriously” that
“staunching the flow of contraband . . . would be seriously compromised by allowing inmate to
grow a ½–inch beard”). The Court bolstered this conclusion by finding, first, that the grooming
policy was “substantially underinclusive” by permitting prisoners with dermatological conditions
to grow longer beards and hair on their heads. Id. at 865–66. The fact that “‘[t]he proffered
objectives are not pursued with respect to analogous nonreligious conduct,’ . . . suggests that
‘those interests could be achieved by narrower ordinances that burdened religion to a far lesser
degree.’” Id. at 866 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546
(1993)). Second, the Court noted the fact that “many other prisons allow inmates to grow beards
while ensuring prison safety and security,” which also suggests that less restrictive means than a
denial of the exemption would satisfy prison security and safety concerns. Id.
Similarly, here, the Army’s policy of specialized testing for this plaintiff as a condition
for granting his religious accommodation request, based solely on hair and beard growth required
by Sikh articles of faith, is “substantially underinclusive.” The defendants warn that “without
information concerning the fit of the Advanced Combat Helmet (ACH) and protective mask,
Defendants cannot ensure that Plaintiff’s protective equipment provides appropriate protection”
and that “[c]urrently available information indicates that the accommodation may present
significant risks that the equipment would not work properly, and any such failure could place
Plaintiff, his fellow soldiers, and the mission at risk.” Defs.’ Proposed Briefing Schedule at 2–3,
24
ECF No. 17. As discussed above, however, medical exceptions and “relaxed grooming
standards” are granted without such specialized information, and even the Army’s most “Hard to
Fit” soldiers may serve without undergoing the level of specialized tests ordered of the plaintiff.
Indeed, the existence of the “Hard to Fit” program undermines the defendants’ argument that the
specialized testing of the plaintiff is necessary for a determination on his accommodation.
Additionally, as the plaintiff notes, even were the plaintiff to fail all of the specialized testing,
“that could have no legitimate bearing on his accommodation” request because “[i]f the Army
treats him like every other soldier, as it must, it would simply work with him to find a
satisfactory solution through the existing ‘hard to fit’ program.” Pl.’s Resp. to Defs.’ Proposed
Briefing Schedule at 2, ECF No. 19. In sum, the fact that health and safety “are not pursued with
respect to analogous nonreligious conduct” to the degree in which those compelling interests are
being pursued with respect to religious conduct “suggests that those interests could be achieved”
by less burdensome means. Holt, 135 S. Ct. at 866.
The defendants argue that they are in a “Catch 22 position” where, under RFRA and,
specifically, Holt, they must do an “individualized assessment” for the plaintiff’s
accommodation request, but an unfavorable ruling on the plaintiff’s TRO application will
prohibit them from “conduct[ing] the tests that [they] believe are necessary” to determine
whether the plaintiff’s helmet and gas mask fit properly. Hr’g Tr. at 62. The defendants
misinterpret Holt. The emphasis in Holt on a “more focused” inquiry into the “application of the
challenged law to . . . the particular claimant,” 135 S. Ct. at 863, relates to how the government
must best respond to a person’s particular belief system.
The defendants are correct that, should they deny the plaintiff’s religious accommodation
request, they may “not merely . . . explain why” they denied it, but also must “prove that denying
25
the exemption is the least restrictive means of furthering a compelling governmental interest.”
Holt, 135 S. Ct. at 864. This does not mean, however, that the defendants may infringe upon the
very right RFRA protects in order to meet their burden of proof. Otherwise, the government
would be able to end-run around RFRA.
As Justice Sotomayor suggests in her concurrence in Holt, courts should defer to
“officials’ reasoning when that deference is due—that is, when . . . officials offer a plausible
explanation for their chosen policy that is supported by whatever evidence is reasonably
available to them.” Holt, 135 S. Ct. at 867 (Sotomayor, J., concurring) (emphasis added). Here,
where the defendants must obtain evidence by substantially burdening the plaintiff’s free
exercise rights (i.e., as discussed supra in Part III.B.1, by subjecting him to testing required of no
other soldier seeking a similar exemption from Army uniform and grooming rules) in order to
support their policy that substantially burdens the plaintiff’s free exercise rights (i.e., by
prohibiting the plaintiff from wearing his articles of faith) that evidence is, by no means,
“reasonably available to them.” In short, the defendants may not violate RFRA in an attempt to
justify another potential violation of RFRA.
* * *
The Court concludes that even if the defendants have a compelling interest in the
execution of the specialized testing order challenged in this TRO application, the defendants
have not met their burden to show it is the least restrictive means available to further their
interest. Thus, the plaintiff has shown a likelihood of success on the merits and met the first
prong for his TRO application.
26
C. Irreparable Harm
The D.C. Circuit “has set a 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). Generally, however, “[w]hen an alleged
deprivation of a constitutional right is involved, such as the right to . . . freedom of religion, most
courts hold that no further showing of irreparable injury is necessary.” 11A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1
(3d ed. 2013); see also Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It
has long been established that the loss of constitutional freedoms, ‘for even minimal periods of
time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976) (plurality opinion)).
The defendants argue that the plaintiff cannot show any harm for the same reason they
argue the plaintiff cannot show substantial burden—because all of the “testing would be
completed with CPT Singh’s articles of faith intact.” Defs.’ Opp’n at 8–9. The defendants
ignore the fact that the plaintiff has been singled out to complete three days of helmet and gas
mask testing simply because of his request for a religious accommodation. Whether intentional
or not, this is discriminatory, and as the plaintiff notes, “being subjected to discrimination is by
itself an irreparable harm.” Pl.’s Reply Mem. Supp. Appl. TRO at 13, ECF No. 16; see also
Smith v. City of Jackson, 544 U.S. 228, 249 (2005) (O’Connor, J., concurring) (noting, in the
27
context of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), that
“discriminating against” an individual is “inherently harmful to the targeted individual”
(emphasis in original)). Thus, the plaintiff has met the irreparable harm prong for injunctive
relief.
D. Balance of Equities
The third factor for injunctive relief requires a showing that the balance of hardships
warrants an equitable remedy. In making this assessment, the court may consider whether the
requested injunctive relief would “substantially injure other interested parties.” Ark. Dairy Co-
op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009) (framing the balance of
harms factor as an inquiry into whether “an injunction would substantially injure other interested
parties”); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (same).
In this case, the balance of harms weighs in the plaintiff’s favor. Aside from the harm
discussed above, see supra Part III.C, denial of the injunctive relief sought in the plaintiff’s
pending motion would sanction the defendants’ imposition of targeted, specialized testing
requirements on a decorated officer simply because he requested a religious accommodation to
the Army’s grooming and appearance regulations. This would likely have, as the plaintiff points
out, a chilling effect on religious minorities, not only Sikhs, who desire lawfully to practice their
religion while serving this country in the Armed Forces. As the plaintiff explains, “[i]f there is a
perception that soldiers from minority religions who apply for a religious accommodation will
then be ‘given the third degree’ as a penalty just for asking, the Army’s promise to provide
religious accommodations will prove entirely illusory.” Pl.’s Mem. at 42.
28
The defendants make two arguments with respect to the equities. 3 First, they argue, as
they do with respect to the substantial burden, that they will be harmed by the granting of the
instant temporary restraining order because they will be unable to obtain important information
relevant to a final decision on the plaintiff’s accommodation request. See Defs.’ Opp’n at 10.
The granting of this TRO application, however, will not prevent the defendants from obtaining
important information about the safety of Army helmets or gas masks. If the defendants want
information about the safety of helmets and gas masks, such studies may be conducted in a
controlled environment where one particular individual’s religious freedom is not at stake.
Second, the defendants argue that a temporary restraining order “would be disruptive to
affairs peculiarly within the jurisdiction of the military authorities,” Defs.’ Opp’n at 9 (citing
Orloff, 345 U.S. at 94–95), and “interfere[] with the proper functioning of our military forces,”
id. They urge the Court to “consider the precedential effect that granting the injunction would
have on the military as a whole” and “not [to] focus narrowly on this single case,” warning the
Court of the “harm to the Army from judicial intrusion into military affairs.” Id. at 10. The
defendants further assert that “[a] temporary restraining order, in this case, could have far-
reaching effects on the military’s ability to maintain discretion on the composition of the force
and discipline of its soldiers” which are “weighty considerations.” Defs.’ Opp’n at 11.
These dire warnings are not taken lightly, but they are misplaced. The Court must focus
on the particular case or controversy pending before it, and this particular case poses no risk of
“far-reaching effects” on military discipline. In this case, a decorated officer seeks relief from an
3
Though the defendants contend that the balance of equities and public interest factors “merge when the
Government is the opposing party,” Defs.’ Opp’n at 9 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)), the
authority cited for that proposition does not apply to temporary or preliminary injunctive relief, but rather to stays of
removal under the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 8 U.S.C. § 1252. Nken,
556 U.S. at 423–24. As the plaintiff notes in his reply, “[t]he Supreme Court’s latest examination of the preliminary
injunction factors in a case involving federal defendants treats the factors separately.” Pl.’s Reply at 16 (citing
Winter).
29
order to submit to nonstandard testing for which he has been singled out due to his request for
the Army to accommodate his constitutional and statutory right to religious exercise. Thus, to
the extent that the defendants claim harm from an injunction against application of an unlawful
order that impinges upon a soldier’s free exercise right, the scale of equities falls squarely on the
plaintiff’s side.
E. Public Interest
The public interest in this case weighs strongly in favor of the plaintiff, despite the
defendants’ argument to the contrary. The defendants argue that, “[t]he injunctive relief sought
here would unduly interfere with the public’s recognized interest in efficient administration of
military personnel matters,” and affect the public’s undisputed “interest in maintaining an
effective military.” Defs.’ Opp’n at 11. Again, the defendants’ arguments are not taken lightly.
“[C]ourts of equity should pay particular regard for the public consequences in employing the
extraordinary remedy of injunction,” Winter, 555 U.S. at 24 (quoting Romero-Barcelo, 456 U.S.
305, 312 (1982)), and an injunction’s “adverse impact on the public interest in national defense”
cannot be understated, id. Here, however, the granting of the requested injunctive relief would
not have an impact on the national defense or the Army’s ability to protect our nation’s security.
This case is distinguishable from those military cases which directly implicate public
safety or national security. For example, in Winter, the Supreme Court reversed a court’s grant
of “a preliminary injunction imposing restrictions on the Navy’s sonar training,” including “the
use of modern sonar to detect and track enemy submarines.” 555 U.S. at 12. Noting that the
training exercises only allegedly harmed marine mammals, and that the extent of the harm, if
any, was disputed, the Court found “that the balance of equities and consideration of the overall
public interest” weighed “strongly in favor of the Navy.” Id. at 14, 26. The Court explained that
30
the injunction would “forc[e] the Navy to deploy an inadequately trained antisubmarine force,”
“jeopardize[] the safety of the fleet,” and undermine the President’s “determin[ation] that
training with active sonar is ‘essential to national security.’” Id. at 26. The Court also
recognized that the injunction would “hinder efforts to train sonar operators under realistic
conditions, ultimately leaving strike groups more vulnerable to enemy submarines.” Id. at 31.
The Court thus concluded, “[t]he public interest in conducting training exercises with active
sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs.” Id. at
26.
This case is simply not analogous. The Court’s grant of injunctive relief would prohibit
specialized, nonstandard testing of a single officer currently based in Virginia. It would in no
way jeopardize Army training or safety, nor would it undercut an Executive branch national
security determination. One decorated officer’s attempt to vindicate his constitutionally and
statutorily-protected religious rights does not “unduly interfere” with the “efficient
administration of personnel matters.”
On the other hand, the public has a significant interest in having a diverse military,
reflective of the composition of our country and accepting of religious minorities. Indeed, the
Army recognized this interest in creating the “Military Accessions Vital to the National Interest
(MAVNI) program,” under which individuals may enlist where they “possess cultural and
linguistic skills,” including fluency in certain languages, which “are considered vital to our
national interest.” Lamba Decl. ¶ 4. The specialized testing the Army seeks to conduct in this
case is perceived as “discriminatory and demeaning,” id. ¶ 24; Khalsa Decl. ¶ 28; Kalsi Decl. ¶
18, and it is likely to discourage Sikhs and other minorities from military service. Therefore, in
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these circumstances, the public’s best interest weighs heavily in favor of granting the plaintiff’s
TRO application.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s Application for Temporary Restraining Order,
ECF No. 2, is granted. Accordingly, the defendants are preliminarily enjoined from subjecting
the plaintiff to any non-standard or discriminatory testing for his helmet and gas mask during the
pendency of the litigation.
The parties are directed to confer and jointly submit, by 5:00 p.m. on March 4, 2016, a
proposed briefing schedule to govern further proceedings in this case.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S. District
Date: March 3, 2016 Court for the District of Columbia,
ou=United States District Court Judge,
email=howell_chambers@dcd.uscourts.go
v, c=US
__________________________
Date: 2016.03.03 19:08:19 -05'00'
BERYL A. HOWELL
United States District Judge
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