United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2001 Decided July 10, 2001
No. 00-5103
Louis Jackson, on behalf of himself and
others similarly situated, et al.,
Appellants
v.
District of Columbia, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv03276)
E. Desmond Hogan argued the cause for appellants. With
him on the briefs were Jonathan L. Abram, William S. Haft
and Arthur B. Spitzer.
Edward E. Schwab, Assistant Corporation Counsel, argued
the cause for appellee District of Columbia. With him on the
brief were Robert R. Rigsby, Corporation Counsel, Charles L.
Reischel, Deputy Corporation Counsel, and Lutz Alexander
Prager, Assistant Deputy Corporation Counsel.
Michael A. Humphreys, Assistant U.S. Attorney, argued
the cause for appellee Bureau of Prisons. With him on the
brief were Wilma A. Lewis, U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney.
Before: Henderson, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Rastafarian and Sunni Muslim pris-
oners challenge a prison grooming policy that forbids beards
and long hair, arguing that the policy violates the Free
Exercise Clause of the First Amendment and the Religious
Freedom Restoration Act. Although the district court found
that the prisoners failed to exhaust their administrative reme-
dies as required by the Prison Litigation Reform Act, the
court went on to hold that the policy violated neither the
First Amendment nor the Religious Freedom Restoration
Act. The prisoners appeal, arguing that for statutory, proce-
dural, and constitutional reasons, the exhaustion requirement
does not apply to them. Agreeing with the district court that
the prisoners failed to exhaust their administrative remedies,
we remand with instructions to vacate in part and dismiss the
complaint without prejudice.
I
The National Capital Revitalization and Government Im-
provement Act of 1997 requires the District of Columbia to
close the Lorton Correctional Complex by December 31, 2001.
D.C. Code s 24-1201(b). The Act instructs the District to
transfer its prisoners to facilities operated by the Federal
Bureau of Prisons ("BOP"). Id. Because BOP has insuffi-
cient space to accommodate all D.C. prisoners, the District
contracted to transfer over 1000 prisoners to Virginia Depart-
ment of Corrections ("VDOC") facilities. BOP also trans-
ferred an additional 900 District inmates in its custody to
VDOC prisons.
On November 15, 1999, VDOC announced new grooming
standards for all inmates in its prisons. For male inmates,
the policy prohibits beards and goatees, requires hair to be
cut above the shirt collar, and bans hairstyles "such as braids,
plaits, dreadlocks, cornrows, ponytails, buns, mohawks, par-
tially shaved heads, [or] designs cut into the hair." Inmate
Grooming Standards, Va. Dep't of Corr., Procedure No. DOP
864, at 2 (Nov. 15, 1999). The policy also imposes grooming
requirements on female prisoners, but permits their hair to
be shoulder-length. Penalties for violating the policy include
assignment to special housing; termination of most visitation,
telephone, and commissary privileges; and suspension from
work and other activities. Id. at 3. If on arrival a new
prisoner "refuses to cooperate, use of ... force/restraints is
authorized in order to bring the inmate into compliance with
grooming standards." Id.
Louis Jackson, Isadore Gartrell, Carl Wolfe, and Roddy
McDowell, appellants, are serving D.C. sentences at the
VDOC Sussex II prison in Waverly, Virginia. They brought
this action in the United States District Court for the District
of Columbia on behalf of themselves and other D.C. prisoners,
principally Sunni Muslims and Rastafarians, who are housed
in Virginia facilities and who believe their religious faiths
forbid them from cutting their hair, shaving their beards, or
both. In their complaint, the prisoners alleged that the
grooming policy violates the Free Exercise Clause of the
First Amendment and the Religious Freedom Restoration
Act ("RFRA"), 42 U.S.C. s 2000bb to 2000bb-4. RFRA
forbids the government from "substantially burden[ing] a
person's exercise of religion" unless the government can
"demonstrate[ ] that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that
compelling governmental interest." Id. s 2000bb-1(b). Con-
gress enacted RFRA to protect one of "the most treasured
birthrights of every American"--"the right to observe one's
faith, free from Government interference." S. Rep. No. 103-
111, at 4 (1993). Although the Supreme Court has declared
RFRA unconstitutional as applied to the states, City of
Boerne v. Flores, 521 U.S. 507 (1997), we have assumed,
without deciding, that "RFRA applies to the federal govern-
ment, notwithstanding the Supreme Court's decision in ...
Boerne." Alamo v. Clay, 137 F.3d 1366, 1368 (D.C. Cir.
1998); cf. Henderson v. Kennedy, No. 00-5070, slip op. at 5-6
(D.C. Cir. June 26, 2001). We shall continue that assumption
here.
The prisoners made two basic claims in the district court.
First, they contended that VDOC lacked a compelling interest
in the grooming policy and that the policy was not the least
restrictive means of achieving whatever interests VDOC had.
Alternatively, they argued that BOP and the District had a
less restrictive means of housing prisoners who believed that
the grooming policy required them to violate fundamental
religious tenets: transferring them to non-Virginia prison
facilities without such grooming policies.
On December 14, 1999, one day before the grooming poli-
cy's effective date, the district court issued a temporary
restraining order preventing the policy from being applied to
any District inmate with "sincerely held religious beliefs the
new grooming policy would compromise." Order Granting
T.R.O., Jackson v. District of Columbia, No. 99-03276
(D.D.C. Dec. 14, 1999). Shortly thereafter, BOP filed a
motion to intervene as a defendant, explaining that it has a
contract with VDOC to house former Lorton inmates now in
BOP's care. The district court granted BOP's motion, and
the prisoners filed an amended complaint to include BOP
prisoners in the class.
To comply with the TRO, BOP implemented a screening
procedure to identify prisoners' religious preferences before
assigning them to VDOC facilities. Sunni Muslim and Rasta-
farian prisoners were sent to facilities outside Virginia that
did not require them to cut their hair or shave their beards.
Following discovery and trial, the district court ruled that
the prisoners had failed to exhaust VDOC's grievance proce-
dures and had thus not complied with the Prison Litigation
Reform Act's ("PLRA") requirement that "[n]o action ... be
brought with respect to prison conditions under ... any ...
Federal law[ ] by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted," 42 U.S.C. s 1997e(a). See
Jackson v. District of Columbia, 89 F. Supp. 2d 48, 63
(D.D.C. 2000). Explaining, however, that "considerable re-
sources [had been] devoted to the presentation of evidence,"
and that appellate review was "certain," id. at 64, the court
went on to consider the merits of the case. Ruling against
the prisoners, the court concluded that although the prison-
ers' belief that they could not cut their hair was "heartfelt
and sincere," id. at 65, and although they had demonstrated
that the grooming policy "substantially burdens their exercise
of religion," id., the prison interests served by the policy were
compelling, and VDOC had no less restrictive alternatives, id.
at 66-69. The district court entered "judgment for defen-
dants." Id. at 50. In doing so, the court "decline[d] to
evaluate" the issue raised by the prisoners' alternative claim:
"whether defendants have compelling interests in keeping
plaintiffs incarcerated in Virginia Corrections facilities." Id.
at 66.
The prisoners appeal, arguing that: (1) the PLRA's ex-
haustion requirement does not apply to them; (2) the district
court erred in failing to read an irreparable harm exception
into the exhaustion requirement; and (3) in any event, two
class members successfully exhausted available administrative
remedies. On the merits, they press only their alternative
argument that BOP and the District could assign them to
prisons without grooming policies, as BOP did to comply with
the TRO.
II
In support of their claim that the district court erred in
applying the PLRA's exhaustion requirement to them, the
prisoners argue that the PLRA does not apply to RFRA
actions and that the District and BOP waived the exhaustion
defense by failing to include it in their answers. We address
each argument in turn.
The prisoners' first argument rests on two provisions of
RFRA. Entitled "Judicial relief," one provision establishes
that "[s]tanding to assert a claim or defense under this
section shall be governed by the general rules of standing
under Article III of the Constitution." 42 U.S.C. s 2000bb-
1(c). The second provision, entitled "Rule of construction,"
states that "[f]ederal statutory law adopted after November
16, 1993 is subject to this chapter unless such law explicitly
excludes such application by reference to this chapter." Id.
s 2000bb-3(b). According to the prisoners, these two provi-
sions allow them to pursue their RFRA action without first
complying with the PLRA's exhaustion requirement. They
argue that because nothing in the PLRA--a "Federal statuto-
ry law adopted after November 16, 1993"--"explicitly ex-
cludes ... application" of RFRA's "Judicial relief" provision,
courts may condition the filing of RFRA actions on nothing
more than "the general rules of standing under Article III of
the Constitution."
We disagree. The prisoners read the statute as if it said
"Article III standing is the only requirement for RFRA
suits." The statute actually says only that "[s]tanding ...
shall be governed by the general rules of standing under
Article III of the Constitution." Id. s 2000bb-1(c) (emphasis
added). Describing the purpose of the "Judicial relief" provi-
sion, the Senate Report on the bill refers only to standing,
saying nothing at all about other requirements for suit.
S. Rep. No. 103-111, at 13 ("Ordinary article III rules are to
be applied in determining whether a party has standing to
bring a claim pursuant to this act."). If the prisoners'
reading of the statute were correct, courts would have to
disregard not only the PLRA exhaustion requirement, but
also such basic matters as personal jurisdiction, venue, and
statutes of limitations. Neither the statute nor its legislative
history suggests that Congress intended such an astonishing
result.
The prisoners argue that because all federal court plaintiffs
must satisfy Article III standing, see Warth v. Seldin, 422
U.S. 490, 498 (1975), limiting the "Judicial relief" section to
standing would leave the section "utterly without effect[,]
contravening an elementary principle of statutory construc-
tion." Appellants' Reply Br. at 3 (internal quotation omitted).
Again, we disagree. The Senate Report makes clear that
Congress included the provision in order to emphasize that
RFRA should not "have [the] unintended consequence[ ]" of
"unsettl[ing]" standing law. S. Rep. No. 103-111, at 12-13.
"The committee intends that [standing] issues continue to be
resolved under Article III standing rules and establishment
clause jurisprudence. The Act would not provide a basis for
standing in situations where standing to bring a free exercise
claim is absent." Id. at 13 (emphasis added). Although it
may be unusual for Congress to include language in a statute
merely to emphasize its intention not to change a particular
aspect of existing law, that appears to be precisely what
Congress did here.
The prisoners' second argument is that even if the PLRA's
exhaustion requirement applies to RFRA suits, BOP and the
District waived the defense by failing to include it in their
answers to the original complaint. BOP did not raise its
exhaustion defense until it answered the first amended com-
plaint; the District raised the defense in a "notice" that it was
joining BOP's exhaustion defense. See Jackson, 89 F. Supp.
2d at 58 n.46. Treating the District's notice as a motion to
amend its answer to plaintiffs' first amended complaint, the
district court concluded that granting the motion would not
prejudice the prisoners because they had learned of the
defense two weeks earlier when BOP identified two witnesses
who would testify on the subject of exhaustion. Id.
Challenging the district court's decision, the prisoners cite
Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339
(D.C. Cir. 1997), for the principle that "affirmative defenses
must be raised in a responsive pleading." Id. at 341. But
Harris also emphasizes that district courts retain discretion
to grant leave to amend pleadings to include new defenses, id.
at 344-45, just as the district court did here. We review
district court decisions regarding amendments of pleadings
for abuse of discretion, see Material Supply Int'l, Inc. v.
Sunmatch Indus. Co., 146 F.3d 983, 991 (D.C. Cir. 1998),
recognizing that leave to amend should be "freely given when
justice so requires," Fed. R. Civ. P. 15(a), absent "any appar-
ent or declared reason--such as undue delay, bad faith[,] ...
[or] undue prejudice to the opposing party," Foman v. Davis,
371 U.S. 178, 182 (1962). Not until their reply brief did the
prisoners argue that any such reason existed in this case.
This argument came too late. See Corson & Gruman Co. v.
NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) ("We require
petitioners and appellants to raise all of their arguments in
the opening brief to prevent 'sandbagging' of appellees and
respondents and to provide opposing counsel the chance to
respond.").
III
The prisoners argue that the district court erred by refus-
ing to recognize an irreparable injury exception to the
PLRA's exhaustion requirement. "Under the district court's
interpretation [that the PLRA's exhaustion requirement lacks
an irreparable harm exception], the PLRA prevents a prison-
er who is subject to daily torture from seeking an injunction
until he exhausts a six-month (or longer) prison grievance
procedure." Appellants' Opening Br. at 15 n.3. Such an
exception is necessary, the prisoners argue, "in order to avoid
... serious constitutional questions." Id.
We think an irreparable injury exception is unnecessary.
The Supreme Court has long recognized that federal courts
possess a "traditional power to issue injunctions to preserve
the status quo while administrative proceedings are in prog-
ress and prevent impairment of the effective exercise of
appellate jurisdiction." FTC v. Dean Foods Co., 384 U.S. 597,
604 (1966). As we explained in Wagner v. Taylor, "[i]f [a]
court may eventually have jurisdiction of the substantive
claim, the court's incidental equitable jurisdiction, despite the
agency's primary jurisdiction, gives the court authority to
impose a temporary restraint in order to preserve the status
quo pending ripening of the claim for judicial review." 836
F.2d 566, 571 (D.C. Cir. 1987). In Wagner, we found that
although Title VII complainants must ordinarily exhaust ad-
ministrative remedies before seeking judicial relief, id. at 570
n.34, because Title VII does not expressly foreclose courts'
"inherent equitable power to issue ... injunctions to preserve
the status quo," id. at 572, district courts retain jurisdiction to
grant interim injunctive relief where plaintiffs face either
irreparable injury or imminent retaliation. Id. at 574-76; see
also Nat'l Treasury Employees Union v. King, 961 F.2d 240
(D.C. Cir. 1992) (responding to the union's argument that it
would suffer irreparable injury to its First Amendment rights
during the time that the Federal Labor Relations Authority
considered its unfair labor practice claim by ordering the
district court to hold the case in abeyance for three months or
until the FLRA decided the union's claim, and instructing the
district court, in order to prevent the union from suffering
irreparable injury, to hear the claim at the end of that period
if the FLRA had not acted on the claim); cf. Sampson v.
Murray, 415 U.S. 61, 84 (1974) (explaining that a showing of
irreparable injury would be necessary to justify preliminary
injunctive relief staying agency action during the agency's
appeals process).
Like Title VII, the PLRA contains nothing expressly fore-
closing courts from exercising their traditional equitable pow-
er to issue injunctions to prevent irreparable injury pending
exhaustion of administrative remedies. The district court
therefore had no need to recognize an irreparable injury
exception to the PLRA's exhaustion requirement; the court
had inherent power to protect the prisoners while they ex-
hausted prison grievance procedures. Of course, the district
court had no need to exercise that authority in this case, for
by the time BOP raised its exhaustion defense, the court had
issued a temporary restraining order that, by agreement of
the parties, remained in effect until the court ruled on the
merits.
IV
This brings us to the question of whether the prisoners
exhausted their administrative remedies as required by the
PLRA. VDOC's grievance procedures have four stages, but
only the first two relate to this case. A prisoner begins by
filing an informal complaint with prison staff. The staff must
respond in writing within fifteen days. If unsatisfied with the
response, the prisoner may file a Level I formal grievance
within thirty days of the occurrence, to which the prison must
respond within thirty days (or sixty days if the prison issues a
"continuance"). Inmates are notified of the grievance proce-
dures "during orientation at all reception centers and all
parole violator units," and copies are made available "in
locations accessible to both employees and inmates." Inmate
Grievance Procedure, Va. Dep't of Corr., Procedure No. DOP
866, at 3-4 (Nov. 20, 1998).
The prisoners argue that class members Louis Jackson and
Carl Wolfe exhausted their administrative remedies. See
Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981)
(explaining that each individual plaintiff in a class-action suit
need not have pursued the available administrative remedies
"if at least one member of the plaintiff class has met the filing
prerequisite"). Jackson filed an informal complaint on De-
cember 1, 1999, but never received a response. Relying on
their understanding that the response to an informal com-
plaint must be attached to a Level I grievance, the prisoners
argue that Jackson could not file a Level I formal grievance
since he had no response to attach. According to the district
court, however, even if the filing of an informal complaint to
which prison officials fail to respond satisfies the PLRA,
Jackson's filing did not. As the district court observed,
because prison officials have fifteen days to respond to an
informal complaint, Jackson's December 1 complaint was still
pending when the prisoners filed suit on December 10, 1999.
See Jackson, 89 F. Supp. 2d at 59-60.
In so ruling, the district court rejected the prisoners'
argument that the PLRA permits suit to be filed so long as
administrative remedies are exhausted before trial. "[T]he
statute means what it plainly says," the district court held;
"prisoners may only file actions under federal law concerning
their conditions of confinement after they have exhausted
their prison's administrative remedies." Id. at 59. We agree,
as do three other circuits. See Freeman v. Francis, 196 F.3d
641, 645 (6th Cir. 1999); Perez v. Wis. Dep't of Corr., 182 F.3d
532, 534-35 (7th Cir. 1999); Garrett v. Hawk, 127 F.3d 1263,
1265 (10th Cir. 1997). But see Williams v. Norris, 176 F.3d
1089, 1090 (8th Cir. 1999) (holding that it is sufficient for
prisoners to exhaust their remedies before trial). The PLRA
says that no action shall be "brought ... until such adminis-
trative remedies as are available are exhausted," not that no
action shall be tried until administrative remedies are ex-
hausted. 42 U.S.C. s 1997e(a) (emphasis added).
The prisoners next argue that Jackson satisfied their
PLRA exhaustion obligation because, by the date they filed
their amended complaint (January 18, 2000), the deadline for
the prison's response to Jackson's informal complaint had
passed. But if the PLRA meant only that prisoners had to
exhaust administrative remedies before filing an amended
complaint, they would have no incentive to exhaust those
remedies prior to filing suit. The prisoners could complete
the grievance process while suit was pending, avoiding dis-
missal by later amending their complaint. This would defeat
the very purpose of the PLRA exhaustion requirement: re-
lieving courts of the burden of lawsuits filed before prison
officials have had an opportunity to resolve prisoner griev-
ances on their own. See Alexander v. Hawk, 159 F.3d 1321,
1326 n.11 (11th Cir. 1998).
Class member Carl Wolfe's argument that he exhausted his
administrative remedies rests on his claim that he complained
about the grooming policy to three prison officials, one of
whom--the warden--told him "to file in the court." Trial Tr.
2/29/2000 at 62. Relying on Miller v. Tanner, 196 F.3d 1190
(11th Cir. 1999), the prisoners argue that "[t]he PLRA's
exhaustion requirement does not require a prisoner to pursue
an administrative procedure that prison officials have ex-
pressly told him is not available to cure the inmate's com-
plaint." Appellants' Opening Br. at 25.
In Miller, prison officials moved to dismiss a prisoner's
complaint for failure to comply with the PLRA's exhaustion
requirement because the prisoner did not appeal following the
rejection of his grievance. 196 F.3d at 1192, 1194. Yet the
letter the prisoner received from the grievance clerk denying
his grievance stated that "[w]hen any grievance is terminated
at the institutional level you do not have the right to appeal.
The above listed grievance[ ] is closed." Id. at 1192. The
Eleventh Circuit found that this letter "unambiguously told
[the prisoner] that an appeal was futile, even prohibited." Id.
at 1194. Observing that "appealing might be treated as
insubordination and there might be harmful consequences for
disobeying the rules," the court concluded that "[the prisoner]
was not required, in order to exhaust his administrative
remedies, to file an appeal after being told unequivocally that
appeal of an institutional level denial was precluded." Id.
This case differs from Miller in two significant respects.
To begin with, the record in this case contains no "unambigu-
ous" or "unequivocal" (the Eleventh Circuit's words) state-
ment that Wolfe had exhausted the prison's grievance proce-
dures. Indeed, we find nothing in the record to support the
prisoners' claim that Wolfe was told "that he had no recourse
through VDOC's grievance process," or that Wolfe's "only
option for challenging the policy was to file in court." Appel-
lants' Opening Br. at 25. The warden never even mentioned
the grievance procedures; he said only "there [was] nothing
he [could] do" and that Wolfe had to "file in the court," Trial
Tr. 2/29/2000 at 62. And under the PLRA, a prisoner must
exhaust his administrative remedies before going to court.
Moreover, as we read Wolfe's entire description of the war-
den's statement, which the prisoners fail to quote in their
brief, the warden seems to have meant only that Wolfe had to
file suit if he wanted a transfer to a District facility:
I asked him first if he could get me transferred back to
the District of Columbia being that I'm a Rastafarian and
this policy is totally against Rastafarian as far as cutting
my hair, shaving my face. I explained my whole reli-
gious policy to him. He said there is nothing he can do
for me. The only thing I can do, I got to file in the
court.
Id. at 62-63.
Second, the prisoners in this case never allege that Wolfe
risked discipline if he pursued a grievance. Quite to the
contrary, despite the warden's statement that Wolfe had "to
file in the court," Wolfe filed an informal complaint with his
unit manager, and, after receiving a negative response, filed a
Level I formal grievance. Id. at 66; Trial Tr. 3/1/2000 at 300.
When that grievance was rejected, he filed a Level II appeal.
He was still waiting for a response when trial in the district
court began. Trial Tr. 2/29/2000 at 66-67.
It is thus clear from the record that Wolfe had not exhaust-
ed his administrative remedies at the time of trial, let alone
when the prisoners filed their complaint. Mindful of the
Supreme Court's recent statement that Congress intended
the PLRA to broaden the exhaustion requirement for prison-
er suits, see Booth v. Churner, No. 99-1964, 2001 WL 567712,
at *5 (U.S. May 29, 2001), we agree with the district court
that Wolfe failed to comply with the PLRA.
V
Because the prisoners failed to exhaust their administrative
remedies, the district court should have dismissed the com-
plaint without prejudice, allowing the prisoners to refile once
they have completed the VDOC grievance procedures. See
Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1348
(D.C. Cir. 1999). Because the merits of the RFRA claim have
been fully briefed in this appeal, however, and because the
district court might have to consider this claim on remand, we
close with one observation. See id. at 1349 (commenting on
the merits of one of the issues on appeal despite this court's
dismissal of the appellant's complaint because of the possibili-
ty that "this issue [would] arise again in a new trial"). In
evaluating the merits of the prisoners' RFRA claim, the
district court expressly "decline[d]" to consider the issue
presented by the prisoners' alternative contention, the one
they appeal here. Therefore, should the prisoners refile after
exhausting their administrative remedies, the district court
will need to consider whether BOP and the District can
demonstrate that alternative placement in non-Virginia pris-
ons without grooming policies is infeasible. See, e.g., Jolly v.
Coughlin, 76 F.3d 468, 479 (2d Cir. 1996) (requiring a prison
sued under RFRA to prove that its treatment of the plaintiff
was "the least restrictive means to further [its] asserted
compelling interest").
The portions of the district court decision regarding the
merits (Sections IIE, IIF, and III) are vacated, and this
matter is remanded with instructions to dismiss the complaint
without prejudice.
So ordered.