[00:00:00] Speaker 04: Case number 23, Dutch 7124. [00:00:04] Speaker 04: Calvert L. Potter Edal, the balance. [00:00:06] Speaker 04: Terry A. Alley Edal versus District of Columbia. [00:00:10] Speaker 04: Mr. Munch for the balance. [00:00:11] Speaker 04: Ms. [00:00:12] Speaker 04: Rezinari for the appellee. [00:00:32] Speaker 03: Whenever you're ready. [00:00:34] Speaker 00: Good morning and may it please the court. [00:00:36] Speaker 00: I'm Lucas Munch on behalf of plaintiffs, Kellvert Potter, Steve Jason, Hassan Umrani and Jasper Sterling. [00:00:43] Speaker 00: Plaintiffs are Muslim and Jewish first responders who wear facial hair in accordance with their faiths. [00:00:49] Speaker 00: After extensive litigation, the district court entered a permanent injunction in 2007 that prohibits their employer, the DC Department of Fire and Emergency Medical Services, from enforcing against them a requirement that they may not have facial hair that comes between the ceiling surface of the facepiece of their masks and the face. [00:01:13] Speaker 00: Despite this permanent injunction, in March of 2020, the department enforced against them that precise requirement, ostensibly due to the onset of the COVID-19 pandemic. [00:01:26] Speaker 00: The department did not petition the district court to modify the permanent injunction, nor did the department consider less restrictive, viable alternatives. [00:01:37] Speaker 00: They simply disregarded the permanent injunction and plowed ahead. [00:01:42] Speaker 01: So we're supposed to look at this as to whether or not that permanent injunction was clear and unambiguous as to facial hair. [00:01:49] Speaker 01: And in the permanent injunction, it mentions special order 20. [00:01:54] Speaker 01: So why wouldn't we say that the plain text does not suggest that we're talking about any facial policy, but specifically instead, special order 20? [00:02:05] Speaker 00: Just to clarify, Your Honor, the permanent injunction prohibits enforcement of the facial hair provisions of special order 20. [00:02:14] Speaker 00: And if you do a side-by-side comparison of special order 20 and what the department enforced, bulletin number 10, they're identical. [00:02:22] Speaker 00: The department took the precise [00:02:25] Speaker 00: facial hair language from special order 20 and put it in the policy that they enforce against plaintiffs. [00:02:32] Speaker 00: So it's a clear violation of the permanent injunction because they enforce the precise provision that they were enjoying from enforcing. [00:02:38] Speaker 01: Well, those two special order and the bulletin 10 had different purposes, right? [00:02:43] Speaker 01: I mean, special order 20 was referring to fumes and vapors and sprays, et cetera, versus bulletin 10 was in response to COVID, as you indicated. [00:02:52] Speaker 00: Yes, the department's proper justifications for the two different policies differ, but that's immaterial on the question of contempt, because the language of the permanent injunction is clear. [00:03:02] Speaker 00: The permanent injunction does not distinguish purposes. [00:03:06] Speaker 00: It does not say the department is prohibited from enforcing Special Order [00:03:12] Speaker 00: insofar as it offers a safety justification. [00:03:15] Speaker 00: It speaks categorically. [00:03:17] Speaker 00: It enjoins the department from enforcing the facial hair provisions that I just discussed, full stop. [00:03:23] Speaker 03: Do you think those facial hair provisions also include the penalty, right? [00:03:28] Speaker 03: So the penalty is different in the 2020 policy, right? [00:03:33] Speaker 03: It's not termination, you know, it's a different consequence. [00:03:38] Speaker 03: of failing to shave, and it's not a requirement to shave, there is, you know, you're moved into an administrative position, which is a burden, but not the same type of burden as termination from your job. [00:03:51] Speaker 00: Two-part answer to your question, Your Honor. [00:03:53] Speaker 00: First, our position is that the enforcement mechanisms or penalty mechanisms are not part of the facial hair provisions of the order. [00:04:04] Speaker 00: So when the permanent injunction enjoins the department from enforcing [00:04:08] Speaker 00: the facial hair provisions, the penalty provisions are separate and apart from that. [00:04:13] Speaker 03: Secondly- But are the penalty provisions relevant insofar as the injunction refers back to the memorandum order finding a RFRA violation? [00:04:22] Speaker 03: And part of the analysis of the district court there was that the penalties were not the least restrictive means of addressing their safety concerns. [00:04:32] Speaker 03: And so when there's a different penalty in 2020, arguably the least restrictive means analysis would possibly be different. [00:04:40] Speaker 00: So this was going to be my second point, Your Honor, in that there really isn't a separate penalty in 2020 versus 2007. [00:04:47] Speaker 00: In 2007, what had happened during the pendency of that litigation is that plaintiffs had been put on administrative duty. [00:04:55] Speaker 00: And if Your Honor reads the permanent injunction language, it specifically orders the department to return them from administrative duty to field duty, which is exactly what happened in 2020. [00:05:07] Speaker 00: Plaintiffs were placed on administrative duty for a year and a half. [00:05:12] Speaker 00: So the idea that there are separate penalties doesn't withstand scrutiny. [00:05:19] Speaker 00: The exact same thing happened in 2007. [00:05:22] Speaker 00: They failed to comply with the facial hair orders they were put on administrative duty. [00:05:27] Speaker 00: 2020, same thing. [00:05:29] Speaker 00: Failed to comply with both number 10 due to their faiths, placed on administrative duty. [00:05:33] Speaker 00: It's part and parcel. [00:05:35] Speaker 01: Is there any policy that would comply for facial hair if the department wanted to exercise facial hair? [00:05:43] Speaker 01: Do you think any facial hair policy would be in violation of the injunction? [00:05:49] Speaker 00: The department, in theory, is not prohibited from doing anything it wants with respect to facial hair, so long as it petitions the district court for a modification of the permanent injunction and goes through the analysis that Riffer requires, that is, a least restrictive means analysis. [00:06:05] Speaker 00: The department has to make its case to the district court that it's [00:06:11] Speaker 00: proffered policy is the least restrictive means of fulfilling a compelling interest. [00:06:16] Speaker 00: And that's what the department did not do in this instance. [00:06:18] Speaker 01: Even in light of COVID, you would say? [00:06:21] Speaker 00: Even in light of COVID. [00:06:24] Speaker 00: COVID did not suspend individuals' rights under RFRA or any other law. [00:06:30] Speaker 00: The Federal Rule of Civil Procedure 60B provided the department with an opportunity, and they chose not to avail themselves of that opportunity so they should be held in contempt. [00:06:40] Speaker 03: Judge, can we just talk about what the district court in fact did in this case? [00:06:48] Speaker 03: The district court says plaintiffs may well have proven that the department violated a clear and unambiguous order by issuing and enforcing a policy. [00:06:57] Speaker 03: I mean, is that a finding that there was a violation of the injunction? [00:07:01] Speaker 03: I mean, it seems to be maybe that the district court is assuming there was a violation and then applying some sort of discretion to not find a violation. [00:07:14] Speaker 00: I think the best reading of that language is that he found that there was a violation, but I understand that reasonable minds can differ on that point. [00:07:21] Speaker 03: So if he say he did not find a violation, [00:07:26] Speaker 03: wouldn't the appropriate course for this court to be to remand for the district court to make such a finding? [00:07:32] Speaker 03: I mean, it seems that we have a number of cases suggesting that in the context of civil contempt, where there are private rights at stake, a court doesn't have discretion not to make a finding of whether there was a violation of the injunction. [00:07:50] Speaker 03: And so if such a finding wasn't made, [00:07:53] Speaker 03: wouldn't the proper course be to remand? [00:07:56] Speaker 00: Absolutely. [00:07:57] Speaker 00: Your Honor could absolutely remand to Judge Leon to make that finding. [00:08:02] Speaker 00: Alternatively, this court, if it wanted to, could make such a finding. [00:08:06] Speaker 00: As I've just explained, it's clear that there was a violation here, but a remand would absolutely be a proper course. [00:08:12] Speaker 03: And if we were to remand, these arguments, you know, does a district court have discretion [00:08:22] Speaker 03: to excuse the violation if a party is found in contempt. [00:08:29] Speaker 00: If the court has found a violation and in contempt, there is ample discretion. [00:08:36] Speaker 00: As we mentioned in our brief, there are several defenses to contempt in this circuit, substantial compliance and impossibility, neither of which apply, but they are viable defenses. [00:08:46] Speaker 00: But also there's significant discretion if the damage is faced. [00:08:49] Speaker 00: The cases are clear that much of the discretion that a district court judge has [00:08:54] Speaker 00: actually occurs at the phase after contempt has been found and the question is quantifying damages that are owed to the injured parties. [00:09:03] Speaker 02: Let me make sure I'm understanding what you're saying. [00:09:06] Speaker 02: I went through the cases to try and make sure I had a grasp of what we've held. [00:09:12] Speaker 02: I don't see any cases that say a district court has discretion in the sense that the district court says the action taken in violation [00:09:22] Speaker 02: of the injunction was reasonable and therefore I need not worry myself. [00:09:28] Speaker 02: I don't see that as an exception. [00:09:30] Speaker 02: If there's a violation of the injunction, my understanding is the fact that the violator acted reasonably is not a defense in the law. [00:09:42] Speaker 02: If there's an inability or an ambiguity in the original injunction, those are all reasonable defenses. [00:09:51] Speaker 02: But then there would be no violation because of those. [00:09:54] Speaker 02: But I don't see anything in the case law that says if the violator acted reasonably, that's the defense. [00:10:02] Speaker 00: That's absolutely right. [00:10:03] Speaker 00: Good faith is not a defense. [00:10:05] Speaker 00: This court has squarely held that in food lion. [00:10:09] Speaker 00: Acting reasonably is not a defense. [00:10:10] Speaker 00: Those are not categorical defenses to contempt that have been recognized in this circuit. [00:10:17] Speaker 00: And that is no excuse. [00:10:24] Speaker 00: I see I've gone into my rebuttal time, so I'm happy to continue to answer any of the questions. [00:10:30] Speaker 03: Did the plaintiffs here separately bring a new referral claim against the actions taken in 2020? [00:10:37] Speaker 00: In terms of a new lawsuit, no, they did not. [00:10:43] Speaker 00: They rested on the permanent injunction and did not bring a new original action. [00:10:49] Speaker 03: Any other questions? [00:10:50] Speaker 03: Okay, we'll give you some time on rebuttal. [00:11:17] Speaker 05: Good morning, Your Honors, and may I please the court? [00:11:19] Speaker 05: I'm Dia Roshinaria, and I'm here on behalf of the District of Columbia. [00:11:24] Speaker 05: In the March of 2020, the district and the D.C. [00:11:27] Speaker 05: Fire and Emergency Medical Services Department faced an unprecedented and imminent threat caused by the novel coronavirus that was rapidly spreading throughout the district. [00:11:36] Speaker 05: At the time, little was known about the virus. [00:11:39] Speaker 05: There was no cure, no effective treatment, certainly no vaccine. [00:11:43] Speaker 05: about 1% of the people who were infected died with case fatality rates that were much higher for vulnerable populations. [00:11:51] Speaker 05: But what was known at the time. [00:11:53] Speaker 03: So why did the district not go back for modification of the injunction. [00:11:57] Speaker 03: I mean these are you know arguably important interests that have been recognized by various courts. [00:12:02] Speaker 03: Perhaps they could have had a modification to the injunction. [00:12:04] Speaker 03: Why not go back to the court. [00:12:06] Speaker 05: So it is a 2020 and we certainly think looking back now from today's position that that would have been a more prudent and safer course of action. [00:12:15] Speaker 05: But there were two reasons for this. [00:12:17] Speaker 05: One was just the context of what was happening, how quickly the situation was changing, how unprecedented it was, the extraordinary circumstances. [00:12:26] Speaker 05: And the department was trying to figure out what was the best way to address this issue, what supplies it had, what methods would adequately protect its firefighter. [00:12:35] Speaker 03: We have many cases saying that in order to find contempt, a court doesn't have to conclude that the party being held in contempt acted in bad faith. [00:12:48] Speaker 03: These arguments all seem to be about the good faith of the government. [00:12:53] Speaker 05: It did have a belief that the 2007 injunction did not apply to these extraordinary circumstances. [00:12:59] Speaker 05: That's because even though the injunction might be superficially clear if read in isolation, [00:13:05] Speaker 05: of the context of the case, the claims raised, the evidence presented, the memorandum opinion. [00:13:11] Speaker 05: If you look at that context, you see that that injunction was addressing a very specific situation, and that was firefighters involved in remedying hazardous conditions, like fogs, gases, things like that. [00:13:25] Speaker 05: But it didn't contemplate, the parties didn't contemplate in the district, the courts didn't contemplate some sort of infectious disease. [00:13:32] Speaker 05: that would spread rapidly, that would place almost any medical professional, such as the plaintiffs who regularly dealt with patients in the course of their work, at risk in all of their interactions in the field. [00:13:47] Speaker 05: And so the injunction didn't contemplate the specific circumstances of this case. [00:13:52] Speaker 05: And of course, you know, I have said that when we look at clarity, we're not looking in some sort of general sense about whether the order is clear. [00:14:00] Speaker 05: We look at whether it's [00:14:01] Speaker 05: Uh, clearly prohibited the specific conduct. [00:14:06] Speaker 02: Um, so I mean, there's an absolute clear violation. [00:14:09] Speaker 02: I, I understand the bind that the city was in. [00:14:13] Speaker 02: But the simple answer is the one that's been raised. [00:14:16] Speaker 02: You go back to the court. [00:14:17] Speaker 02: That's really not hard or tricky or onerous. [00:14:20] Speaker 02: You go back to the court. [00:14:21] Speaker 02: The circumstances have changed. [00:14:23] Speaker 02: We want to modify the injunction. [00:14:25] Speaker 02: But you're not really suggesting, are you? [00:14:28] Speaker 02: I mean, I don't see this in the law. [00:14:29] Speaker 02: And if there is a case that says it, I'd like to know it. [00:14:32] Speaker 02: You must show there must be a showing of bad faith. [00:14:36] Speaker 02: I don't see that in the law, nor did I see anything about reasonableness or good faith being a defense. [00:14:43] Speaker 02: That's not what I understand. [00:14:45] Speaker 02: I went through this because it's a situation where the city has a compelling concern, totally legitimate, I understand, but the law is not really [00:14:57] Speaker 02: sympathetic here. [00:14:58] Speaker 02: The law is if you violate, and it's a clear violation here. [00:15:01] Speaker 02: The district court's not saying otherwise. [00:15:03] Speaker 02: District court's not saying this wasn't real. [00:15:05] Speaker 02: This is an absolute clear violation. [00:15:07] Speaker 02: It's the same provision that was in effect initially that's been violated subsequently. [00:15:14] Speaker 02: And so the answer normally is [00:15:19] Speaker 02: You go back to the court, you say we need a modification because we didn't anticipate this particular circumstance even though we know there's a facial violation. [00:15:28] Speaker 02: What about, I mean, you've got latches, you've got acquiescence, you've got substantial compliance arguments that can be made on remand, right? [00:15:37] Speaker 05: All right. [00:15:37] Speaker 05: So, Your Honor, we disagree that this was a clear violation, and that's because we believe that you have to look at- What was unclear? [00:15:42] Speaker 05: Because you have to look at it in the context. [00:15:44] Speaker 05: So for example, in the Washington Baltimore Newspaper Guild case that this court decided. [00:15:48] Speaker 02: Now tell me why in this case it was not clear. [00:15:52] Speaker 02: I don't need another context for you to tell me. [00:15:54] Speaker 02: Looking at what was prohibited initially, and then what happened subsequently, whether what happened subsequently violated what was prohibited initially. [00:16:06] Speaker 02: And to me, that looks as clear as anything I've seen recently. [00:16:10] Speaker 05: And this is because the initial context involved different types of harms. [00:16:15] Speaker 05: And at the time, in the memorandum of opinion, the district court had specifically contemplated looking at the plaintiff's ability to safely wear masks because of their facial hair in determining their assignments. [00:16:27] Speaker 05: And now that might be a least restrictive means of accommodating them by moving them to a different position. [00:16:34] Speaker 05: And so given that broader context, the types of claims that were dealt with in that case [00:16:39] Speaker 05: the district reasonably believe that that injunction did not apply. [00:16:43] Speaker 03: But I want to make another point. [00:16:44] Speaker 03: The district was enjoined from enforcing these facial hair provisions, which are basically identical in the 2020 provision. [00:16:52] Speaker 03: So I don't understand what context prevents this from being a clear violation of the injunction. [00:17:03] Speaker 02: You're saying it's sad. [00:17:04] Speaker 02: That's a different argument, though. [00:17:06] Speaker 02: It is absolutely clear. [00:17:08] Speaker 02: It really is not a compelling argument to say that this isn't a clear violation. [00:17:12] Speaker 02: How we address this, the easy way to address it is you go back to the court. [00:17:18] Speaker 02: That's your burden. [00:17:18] Speaker 02: That's what you should have done, not you personally. [00:17:21] Speaker 05: No, I understand, Your Honor. [00:17:23] Speaker 05: We do think that in hindsight that would have been the more prudent course of action. [00:17:26] Speaker 05: I do want to address one point though, which is that the plaintiffs were reassigned to their non-field operations right in the middle of March, so March 15th, 16th, and 17th. [00:17:36] Speaker 05: Two days later, on March 19th, the district's council and plaintiff's council had a phone call where the district explained that it had reassigned the plaintiffs and explained the reasons for doing so. [00:17:47] Speaker 05: And then they sent a letter the very next day memorializing that conversation. [00:17:52] Speaker 05: And then they've never heard anything from the plaintiffs again. [00:17:55] Speaker 02: Well, this is the Latchez acquiescence. [00:17:58] Speaker 05: Of course not, but if you're asking, you know, why did the district. [00:18:01] Speaker 02: But there's no findings on that. [00:18:02] Speaker 02: And that may be, those may be perfectly viable arguments, but they haven't been raised or addressed. [00:18:11] Speaker 02: All we were asking you about is how can you possibly say there's some kind of context which suggests [00:18:20] Speaker 02: This isn't a clear violation. [00:18:23] Speaker 02: It was absolutely a clear violation. [00:18:25] Speaker 05: I'm just providing an explanation for why the district didn't seek to modify the injunction. [00:18:30] Speaker 05: That's because they had had this conversation. [00:18:32] Speaker 02: I understand. [00:18:33] Speaker 02: I hear what you're saying and we're over that, but now you've started talking about potential laches and acquiescence and those are things that maybe the district court would have to consider because it hasn't been considered yet. [00:18:44] Speaker 05: Just taking a step back to context. [00:18:45] Speaker 05: In the Washington Baltimore newspaper guilt case, [00:18:48] Speaker 05: That case involved an order that ordered the employer to arbitrate all grievances. [00:18:53] Speaker 05: That was the text of the order. [00:18:55] Speaker 05: But the employer didn't arbitrate certain grievances holding the position that that order actually, read in context of the litigation, applied only to the type of employer discharges that had been at issue before the court. [00:19:06] Speaker 05: And when the civil contempt question was brought up, the district court agreed and this court affirmed. [00:19:13] Speaker 05: saying, you know, it's far more reasonable to conclude that that previous order only covered the grievances of the same character that were factually before the court at the time. [00:19:23] Speaker 02: It's not what the court here found. [00:19:26] Speaker 05: I'm sorry? [00:19:26] Speaker 02: That's not what the district court here said. [00:19:29] Speaker 05: The district court here didn't make a determination on whether the injunction was clear and unambiguous in terms of its application to the specific context. [00:19:37] Speaker 02: Well, but I mean, the case you just cited is not this case. [00:19:40] Speaker 02: There isn't a finding where the district court who issued the injunction in the first place said, no, no, we all understood. [00:19:48] Speaker 02: It didn't go that far. [00:19:49] Speaker 02: That's, that's not this case. [00:19:51] Speaker 02: So facially, what we're looking at is a case that is dead on point. [00:19:55] Speaker 02: You had an injunction that covered X and then you had a violation of X and now what do we do is the question. [00:20:02] Speaker 05: I mean, we think that this court can decide the question of what the previous injunction covered to de novo. [00:20:08] Speaker 02: We would do it on our own motion? [00:20:11] Speaker 05: If it's a question of law about what the previous injunction covered, if it's a question of the application of that law to the conference. [00:20:16] Speaker 02: That surely would be something, if that's a viable issue, that surely would be something that a district court should decide in the first instance, especially because the district court issued the injunction. [00:20:23] Speaker 05: But we would not oppose a remand on that issue if the court decides that the district court should consider in the first instance. [00:20:31] Speaker 02: No, you can, but that's not a reasonable position. [00:20:34] Speaker 05: But I did want to move briefly to the discretion aspect of this case. [00:20:40] Speaker 05: So the Seventh Circuit, in some of their cases, that is where the reasonably diligent and energetic standards comes from. [00:20:48] Speaker 05: And I agree with the court that there is some overlap between this first question of whether it's [00:20:53] Speaker 05: an order is ambiguous and the question of whether a contempt citation can be enforced when there is a reasonable belief about what that order covered. [00:21:06] Speaker 05: So I want to just draw the court's attention to integrity with the Supreme Court specifically adopted an objective standard and said that if there is a reasonable interpretation of the order or of the law and the party that is being sought to be kept in contempt of that order acts [00:21:23] Speaker 05: because of that reasonable interpretation, you could not have sanctions or you could not find them in civil contempt. [00:21:30] Speaker 03: Is that a defense to contempt or is that really about the inquiry, you know, the original inquiry about whether there was, you know, whether the injunction was clear and unambiguous and the violation was proved by clear and convincing evidence? [00:21:44] Speaker 05: I think they overlap, Your Honor, because I feel like you could have an order where on its face, if you're not looking at the broader context, might appear to be clear and ambiguous, [00:21:53] Speaker 05: but where a party still has a reasonable interpretation of the order or the statute at issue. [00:21:58] Speaker 03: Right, so the court has to make that first determination about whether the injunction is clear, not ambiguous, and whether there's been a clear violation. [00:22:09] Speaker 02: Clear violation, yeah. [00:22:10] Speaker 03: Yes, Your Honor. [00:22:11] Speaker 03: Which seems like a good issue on remand. [00:22:15] Speaker 03: Thank you, Your Honor. [00:22:17] Speaker 05: Anything further? [00:22:19] Speaker 05: No, I'm fine. [00:22:19] Speaker 05: Is there any further questions? [00:22:21] Speaker ?: Thank you. [00:22:32] Speaker 00: Just very briefly, Your Honors, a couple of points. [00:22:36] Speaker 00: First, to start off with the question of petitioning modification of the permanent injunction, I just wanted to emphasize the point that even in light of the pandemic, which was a sudden eventuality, the department chose not to go back to the district court at any point subsequent to March 2020. [00:22:57] Speaker 00: Even if Your Honors would want to say that March was a particularly tumultuous time, April 2020, May, June, July, and so on, they did not attempt to modify the permanent injunction in district court. [00:23:10] Speaker 00: Complete lack of diligence on their part. [00:23:13] Speaker 00: Secondly, I would like to... Cut him a little break. [00:23:16] Speaker 02: None of us knew what we were doing during the pandemic. [00:23:19] Speaker 00: No, that's absolutely correct, Your Honor, but the courts were still operating. [00:23:25] Speaker 02: That's what you normally would expect, but it was a pretty chaotic time. [00:23:29] Speaker 02: They may not have even remembered it. [00:23:32] Speaker 01: And you didn't pursue it as a merits issue. [00:23:36] Speaker 01: A riff or claim. [00:23:38] Speaker 00: Right, not as a standalone lawsuit. [00:23:40] Speaker 00: Correct. [00:23:41] Speaker 00: Correct. [00:23:42] Speaker 00: Secondly, on the point of context and injunctions, it just bears emphasizing that in their briefs to the district court, the department emphasized that an injunction has to be understood based on the four corners of the injunction of the court's order, which is exactly the standard that plaintiffs pass this court and the district court to apply. [00:24:07] Speaker 00: Looking at the permanent injunction on the four corners of the language, the violation is clear. [00:24:13] Speaker 00: For the department now to all of a sudden argue, all of a sudden context is important. [00:24:17] Speaker 00: First of all, there's no case law to support the theory that that's how you interpret an injunction. [00:24:23] Speaker 00: But secondly, that's contrary to the position that they took in the district court and therefore waived and inappropriate at this stage. [00:24:30] Speaker 00: Finally, on the point of acquiescence and latches, that can be decided on remand. [00:24:35] Speaker 00: Plaintiffs objected in the first instance immediately when they were removed from field duty, so that defense has no merit either. [00:24:43] Speaker 01: In light of what you stated, if this were to be a remand with respect to question one, the district court should also look at what the department's defenses were to all of this. [00:24:53] Speaker 00: Yes, that would be appropriate the department has raised defenses in the district court Which are still pending on the in the district court, which could be considered on remand for an analysis of damages Thank you