Kaemmerling v. Lappin

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2008 Decided December 30, 2008

No. 07-5065

RUSSELL KAEMMERLING,
APPELLANT

v.

HARLEY G. LAPPIN, DIRECTOR, FEDERAL BUREAU OF PRISONS
AND MICHAEL B. MUKASEY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 06cv01389)

Jeff Kosseff, Student Counsel, argued the cause as amicus
curiae in support of petitioner. With him on the briefs were
Steven H. Goldblatt, appointed by the court, and Cecily E.
Baskir, Damon C. Elder, and Elizabeth A. Rose, Student
Counsel.

Russell Kaemmerling, pro se, was on the brief for appellant.

Oliver W. McDaniel, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence and Michael J.
Ryan, Assistant U.S. Attorneys.
 2

Before: SENTELLE, Chief Judge, and HENDERSON and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Russell Kaemmerling, a federal
prisoner, appeals from the district court’s dismissal of his action
seeking to enjoin application of the DNA Analysis Backlog
Elimination Act of 2000 (“DNA Act” or “the Act”), 42 U.S.C.
§§ 14135–14135e. Kaemmerling alleged that the Act violated
his rights under the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb–2000bb-4, and the First,
Fourth, and Fifth Amendments of the United States Constitution.
The district court denied his request for a preliminary injunction
and then dismissed the action for his failure to exhaust
administrative remedies pursuant to the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e. Although we
conclude that the PLRA does not require Kaemmerling to
exhaust administrative remedies on his challenge to the DNA
Act, we nevertheless affirm the dismissal of the case because his
complaint fails to state a claim.

I

Pursuant to congressional authorization, the Federal Bureau
of Investigation (“FBI”) established the Combined DNA Index
System (“CODIS”), a national database containing electronic
DNA profiles of convicted offenders from the state and federal
systems, evidence from crime scenes, and unidentified human
remains that allows government officials to match an electronic
DNA profile to its donor’s identity for “law enforcement
identification purposes,” “judicial proceedings,” and “criminal
defense purposes.” 42 U.S.C. § 14132(a), (b)(3). Law
enforcement officers use the CODIS to match one forensic
crime scene sample to another, thereby connecting unsolved
 3

crimes through a common perpetrator, and to match evidence
from the scene of a crime to a particular offender’s profile,
thereby solving crimes committed by known offenders. See
United States v. Kincade, 379 F.3d 813, 819 (9th Cir. 2004).
Unauthorized uses or disclosures of DNA information stored in
the database are punishable by fines and imprisonment. 42
U.S.C. § 14133(c).

To facilitate the efficacy of the CODIS, the DNA Act
directs the Federal Bureau of Prisons (“BOP”) to collect “a
tissue, fluid, or other bodily sample . . . on which a[n] . . .
analysis of the deoxyribonucleic acid (DNA) identification
information” can be carried out, id. § 14135a(c), from “each
individual in the custody of the [BOP] who is, or has been,
convicted of a qualifying Federal offense,” which includes all
felonies, sexual abuse, and crimes of violence, id.
§ 14135a(a)(1)(B), (d). Failure to cooperate in the collection of
a sample is a misdemeanor offense. Id. § 14135a(a)(5). The
BOP turns an offender’s sample over to the FBI, where an
analyst extracts the DNA from cells in the sample and then uses
short tandem repeat (“STR”) technology to identify non-genic
variants known as alleles at thirteen specific loci on the DNA.
See Banks v. United States, 490 F.3d 1178, 1180 (10th Cir.
2007); Kincade, 379 F.3d at 818. After creating the donor’s
unique DNA profile, the FBI then records a copy of the profile
in the CODIS. See Johnson v. Quander, 440 F.3d 489, 498
(D.C. Cir. 2006).

Kaemmerling was convicted of conspiring to commit wire
fraud, a felony offense, and is currently incarcerated at the
Federal Correctional Institution in Seagoville, Texas. Because
he has committed a qualifying offense, the DNA Act requires
the BOP to take a fluid or tissue sample from Kaemmerling for
DNA analysis and inclusion in the CODIS. In August 2006,
Kaemmerling brought suit against the Director of the BOP and
 4

the Attorney General, seeking a declaratory judgment and
injunctive relief against enforcement of the DNA Act. He
alleged that, as an “Evangelical Christian,” submitting to DNA
“sampling, collection and storage with no clear limitations of
use” is repugnant to his strongly held religious beliefs about the
proper use of “the building blocks of life.” According to his
religious beliefs, the collection and retention of his DNA
information is “tantamount to laying the foundation for the rise
of the anti-Christ.” Kaemmerling protested that enforcing the
DNA Act against him would violate his rights under the RFRA
and the First Amendment, as well as under the Fourth and Fifth
Amendments.

Four other plaintiffs joined Kaemmerling in his suit and
filed, along with their joint complaint, a motion for class
certification and a motion for a temporary restraining order and
preliminary injunction to prevent the BOP from collecting their
DNA samples while the action was pending. The district court
denied the plaintiffs’ motion for a temporary restraining order
and a preliminary injunction, discerning no imminent irreparable
injury.

The district court subsequently dismissed the case without
prejudice for failure to exhaust administrative remedies under
the PLRA. The plaintiffs objected that the BOP “lacks any
authority to provide any relief or take any action whatsoever” in
response to their challenges to the DNA Act, leaving them with
no administrative remedy to exhaust. The district court
disagreed, concluding that the plaintiffs must comply with
PLRA procedures even if pursuing administrative remedies
might be futile, because collection of their DNA samples is a
prison circumstance or occurrence. In its final order, the court
denied all other pending motions as moot, including the motion
for class certification.
 5

Kaemmerling timely appealed the dismissal, and we
dismissed the plaintiffs’ earlier interlocutory appeal from denial
of the motion for a temporary restraining order. Although all
five plaintiffs pursued the interlocutory appeal, only
Kaemmerling seeks review in the present proceeding. See
December 28, 2007 Order, Case No. 07-5065 (denying plaintiff
Daniel Siler’s motion for injunction because he “failed to note
an appeal in this action”). On appeal, Kaemmerling argues that
the district court erred in dismissing his case because the
PLRA’s exhaustion requirement does not apply and that it erred
in denying his motion for a preliminary injunction. The BOP
defends the district court’s PLRA decision and further argues
that, even if Kaemmerling is not required to exhaust
administrative remedies, we should dismiss his complaint for
failure to state a claim.

II

The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a). The
exhaustion requirement affords prison officials time and
opportunity to resolve complaints concerning the exercise of
their responsibilities before allowing the initiation of a federal
case. Exhaustion thus “has the potential to reduce the number
of inmate suits” by resolving problems at the administrative
level and “to improve the quality of suits that are filed by
producing a useful administrative record.” Jones v. Bock, 549
U.S. 199 (2007); see Porter v. Nussle, 534 U.S. 516, 524-25
(2002).
 6

Exhaustion is the “general rule” for litigation within Section
1997e(a)’s compass. Porter, 534 U.S. at 525 n.4.1 Even if an
inmate believes that seeking administrative relief from the
prison would be futile and even if the grievance system cannot
offer the particular form of relief sought, the prisoner
nevertheless must exhaust the available administrative process.
Booth v. Churner, 532 U.S. 731, 739, 741 & n.6 (2001). But a
prisoner must exhaust only “such administrative remedies as are
available,” 42 U.S.C. § 1997e(a), that is, those prison grievance
procedures that provide “the possibility of some relief for the
action complained of,” Booth, 532 U.S. at 738. The statutory
requirement of an available remedy presupposes authority to
take some action in response to a complaint. Booth, 532 U.S. at
736. Thus, if “the relevant administrative procedure lacks
authority to provide any relief or to take any action whatsoever
in response to a complaint,” then a prisoner is left with nothing
to exhaust and the PLRA does not prevent the prisoner from
bringing his or her claim directly to the district court. Id.; see
Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir. 2001) (prisoner
must exhaust any prison administrative process that “was
empowered to consider his complaint and . . . could take some
action in response to it”); Snider v. Melindez, 199 F.3d 108, 113
n.2 (2d Cir. 1999) (“If . . . the inmate’s suit complains that he
was beaten by prison guards, and the institution provides a
grievance proceeding for inmate complaints about food . . . but
none for complaints about beatings,” the inmate would not be
required to pursue the grievance procedure having “no
application whatsoever to the subject matter of his complaint.”).

This case is the rare one in which there is no administrative
process to exhaust because the BOP lacks authority to provide

1
Footnote 4 of Porter makes it plain that the exhaustion
requirement of § 1997e(a) is quite encompassing enough to include
the litigation at bar.
 7

Kaemmerling any relief or to take any action whatsoever in
response to his complaint challenging enforcement of the DNA
Act. The BOP has no discretion not to collect Kaemmerling’s
DNA, as the statute’s mandatory language indicates and as the
BOP conceded at oral argument. See 42 U.S.C.
§ 14135a(a)(1)(B) (“[t]he Director of the [BOP] shall collect a
DNA sample from each individual” in BOP custody who has
been convicted of a qualifying offense), (b) (“the Director of the
Bureau of Prisons . . . shall furnish each DNA sample collected
. . . to the [FBI], who shall carry out a DNA analysis”); see also
United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003)
(the BOP “flouts the multiple layers of legal obligations placed
upon it” if it does not collect a DNA sample from felons while
in custody). Even under questioning from this court, counsel for
the BOP could not articulate a single possible way the prison’s
administrative system could provide relief or take any action at
all in response to Kaemmerling’s claim that collecting his DNA
would violate his statutory and constitutional rights. The BOP
has failed to carry its burden of showing an administrative
remedy available for Kaemmerling to exhaust. See Jones, 549
U.S. at 215-16 (failure to exhaust is an affirmative defense under
the PLRA).

This is not a situation like that in Booth, where the prison
grievance process cannot grant the exact type of relief the
inmate seeks or where the inmate believes pursuing the process
would be futile because it is unlikely to resolve his complaint.
Although the administrative process in Booth could not offer
money damages—the exclusive form of redress the inmate
sought—it did authorize at least some responsive action on the
inmate’s complaint of abuse, such as reassigning the abusive
guard. See Booth, 532 U.S. at 735-36. Here, the prison
grievance process cannot authorize any action on the subject of
Kaemmerling’s complaint because he challenges the statute’s
command that BOP collect his DNA sample. Kaemmerling
 8

does not complain about the method or timing of collecting the
sample, which counsel for the BOP suggested the prison might
have authority to change; he complains only about the fact that
the BOP will collect his DNA at all, a complaint for which the
BOP can offer no possible relief.

Requiring an inmate to exhaust an administrative grievance
process that cannot address the subject of his or her complaint
would serve none of the purposes of exhaustion of
administrative remedies. When the BOP cannot take any action
at all in response to a complaint, it has nothing to offer that
could possibly satisfy the prisoner and obviate the need for
litigation. See Porter, 534 U.S. at 525. Requiring exhaustion
when no relief is available “is more likely to inflame than to
mollify passions, and thus is unlikely to ‘filter out some
frivolous claims.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir.
2005) (quoting Porter, 534 U.S. at 525) (first quotation
omitted). And prison administrators are unlikely to spend
resources developing an administrative record when that process
cannot possibly lead to relief, nor would there be much record
to develop when the prisoner is challenging, as here, the
enforceability of a statute rather than the prison’s method of
enforcement. See Porter, 534 U.S. at 525; Brown, 422 F.3d at
936. Finally, requiring exhaustion in these circumstances is not
necessary for protection of administrative agency authority from
judicial interference, because no administrative program or
mistake is at issue, nor can an administrative solution resolve the
complaint.2 See Woodford v. Ngo, 548 U.S. 81, 89 (2006).

2
We reject the suggestion of the BOP that our holding
conflicts with United States v. Carmichael, 343 F.3d 756 (5th Cir.
2003). There, the Fifth Circuit decided that the collection of a federal
offender’s DNA sample during incarceration was not part of the
offender’s sentence, subject to challenge on direct appeal, but instead
was a prison condition that must be challenged through a separate civil
 9

III

We now turn to the BOP’s alternative ground for dismissal,
that the complaint fails to state a claim upon which relief can be
granted. The BOP raised this alternative basis for dismissal in
the district court, and both parties have fully briefed the merits
of the issue before us. We consider the sufficiency of a
complaint under Federal Rule of Civil Procedure 12(b)(6) de
novo; therefore, we may independently assess the complaint and
need not remand at this stage for the district court to evaluate its
sufficiency in the first instance. Henthorn v. Dep’t of Navy, 29
F.3d 682, 684 (D.C. Cir. 1994); Singleton v. Wulff, 428 U.S.
106, 121 (1976). Dismissal of Kaemmerling’s pro se complaint
at this stage is proper only “if, after construing the complaint
liberally in [Kaemmerling’s] favor and granting [him] the
benefit of all reasonable inferences to be derived from the facts
alleged, he could prove no set of facts in support of his claim
that would entitle him to relief.” Henthorn, 29 F.3d at 684.
Even given the special liberality with which we consider pro se
complaints, we need not accept inferences unsupported by the
facts alleged in the complaint or “legal conclusions cast in the
form of factual allegations.” Id. (quotation omitted).
Kaemmerling’s complaint alleges violations of his rights under
the RFRA and the First, Fourth, and Fifth Amendments. After
thoroughly considering each of these challenges, we conclude
that none of them state a claim upon which relief can be granted.

action in accordance with the strictures of the PLRA. See id. at 761.
The court had no occasion to consider, and did not consider, the
availability of administrative remedies on Carmichael’s challenge to
the collection of his DNA sample pursuant to the DNA Act. See id.
at 759-61.
 10

A

We begin with Kaemmerling’s religious claim, which fails
to allege a violation of the Free Exercise Clause. Kaemmerling
contends that mandatory collection and analysis of his DNA
under the DNA Act burdens the free exercise of his religious
belief that “DNA sampling, collection and storage” “defile[s]
God’s temple.” Even assuming this is true, it does not rise to the
level of a constitutional violation. The right of free exercise
protected by the First Amendment “does not relieve an
individual of the obligation to comply with a valid and neutral
law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).” Employment Div. v. Smith, 494 U.S. 872, 879
(1990) (quotation omitted). Kaemmerling does not suggest that
the DNA Act is not, in theory or practice, a religion-neutral,
generally applicable law, therefore he alleges no Free Exercise
violation, even if the Act incidentally affects religiously
motivated action. See id. at 878-81; Shaffer v. Saffle, 148 F.3d
1180, 1181-82 (10th Cir. 1998) (holding plaintiff failed to state
a claim for denial of First Amendment rights when he did not
contend that the DNA Act was not neutral or generally
applicable or that it was applied to him differently because of his
religious beliefs).

B

But the First Amendment is not the only potential refuge for
Kaemmerling’s religious claim—the RFRA offers religious
exercise greater protection from intrusion by religion-neutral
federal laws. The RFRA prohibits the federal government from
“substantially burden[ing]” a person’s exercise of religion even
if the burden results from a rule of general applicability unless
the government can demonstrate that “application of the burden
to the person– (1) is in furtherance of a compelling
 11

governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C.
§ 2000bb-1(b); see id. § 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.”). Congress instructs
us that, in analyzing a claim under the RFRA, we must return to
“the compelling interest test as set forth in Sherbert v. Verner,
374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972).” 42 U.S.C. § 2000bb(b)(1).

1

To apply this test, we first must determine if Kaemmerling
alleges a substantial burden on his religious exercise. The
RFRA defines “religious exercise” to include “any exercise of
religion, whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7). A
litigant’s claimed beliefs “must be sincere and the practice[] at
issue must be of a religious nature.” Levitan v. Ashcroft, 281
F.3d 1313, 1320 (D.C. Cir. 2002). Because the burdened
practice need not be compelled by the adherent’s religion to
merit statutory protection, we focus not on the centrality of the
particular activity to the adherent’s religion but rather on
whether the adherent’s sincere religious exercise is substantially
burdened. See id. at 1321. A substantial burden exists when
government action puts “substantial pressure on an adherent to
modify his behavior and to violate his beliefs,” Thomas v.
Review Bd., 450 U.S. 707, 718 (1981), as in Sherbert, where the
denial of unemployment benefits to a Sabbatarian who could not
find suitable non-Saturday employment forced her “to choose
between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand,”
Sherbert, 374 U.S. at 404. An inconsequential or de minimis
 12

burden on religious practice does not rise to this level, nor does
a burden on activity unimportant to the adherent’s religious
scheme. See Levitan, 281 F.3d at 1320-21.

In his complaint, Kaemmerling alleges that it is his sincere
religious belief that DNA is “a foundational aspect . . . of God’s
creative work” and that “DNA sampling, collection and storage
with no clear limitations of use, merely to satisfy the broadly
overreaching efforts of secular authorities, politicians and their
representatives” “defile[s] God’s temple, as represented by one’s
mortal body, filled with the Holy Spirit.” His complaint further
alleges harms arising from government possession and storage
of his DNA profile, including the potential that he could become
an unwilling participant in future activities that violate his
religious beliefs—including cloning experiments and stem-cell
research—and use of his DNA profile by the anti-Christ, who
according to Kaemmerling’s religious beliefs will in the future
rule the world and “make war against the saints,” “forc[ing]
everyone . . . to receive a mark . . . which is the . . . number of
his name.”

As a preliminary matter, we pause to discern
Kaemmerling’s alleged religious beliefs. Kaemmerling makes
abundantly clear that he does not challenge the collection of any
particular DNA carrier—such as blood, saliva, skin, or hair—but
rather that, regardless of the medium by which the government
acquires access to his DNA, he objects to the government
collecting his DNA information from any fluid or tissue sample
they may recover. At oral argument, counsel emphasized that
Kaemmerling objects to any collection of his DNA profile at all,
even collecting DNA information from hair and skin that he
naturally shed onto his clothes then turned over to prison
officials for washing. (Indeed, the fact that he does not object
to the means of the DNA collection is the very reason that the
BOP can offer no remedy for purposes of exhaustion.) These
 13

representations make clear that Kaemmerling does not object to
DNA collection on the basis of bodily violation. He also
certainly does not object to the BOP sweeping up his hair after
a haircut or wiping up dust that contains particles of his skin,
even though those are acts of collecting bodily specimens
containing DNA, if the BOP does not extract the DNA
information contained in those specimens. His objection to
“DNA sampling and collection,” then, must be a more specific
objection to collection of the DNA information contained within
any sample. It is not penetrating the body or collecting bodily
material that Kaemmerling alleges violates his beliefs but rather
collecting the “building block of life” specifically. Given these
representations, we understand Kaemmerling’s objection to
“DNA sampling and collection” not to be an objection to the
BOP collecting any bodily specimen that contains DNA material
such as blood, saliva, skin, or hair, but rather an objection to the
government extracting DNA information from the specimen.

Accepting as true the factual allegations that
Kaemmerling’s beliefs are sincere and of a religious nature—but
not the legal conclusion, cast as a factual allegation, that his
religious exercise is substantially burdened—we conclude that
Kaemmerling does not allege facts sufficient to state a
substantial burden on his religious exercise because he cannot
identify any “exercise” which is the subject of the burden to
which he objects. The extraction and storage of DNA
information are entirely activities of the FBI, in which
Kaemmerling plays no role and which occur after the BOP has
taken his fluid or tissue sample (to which he does not object).
The government’s extraction, analysis, and storage of
Kaemmerling’s DNA information does not call for
Kaemmerling to modify his religious behavior in any way—it
involves no action or forbearance on his part, nor does it
otherwise interfere with any religious act in which he engages.
Although the government’s activities with his fluid or tissue
 14

sample after the BOP takes it may offend Kaemmerling’s
religious beliefs, they cannot be said to hamper his religious
exercise because they do not “pressure [him] to modify his
behavior and to violate his beliefs.” Thomas, 450 U.S. at 718.

Kaemmerling alleges no religious observance that the DNA
Act impedes, or acts in violation of his religious beliefs that it
pressures him to perform. Religious exercise necessarily
involves an action or practice, as in Sherbert, where the denial
of unemployment benefits “impede[d] the observance” of the
plaintiff’s religion by pressuring her to work on Saturday in
violation of the tenets of her religion, 374 U.S. at 404, or in
Yoder, where the compulsory education law compelled the
Amish to “perform acts undeniably at odds with fundamental
tenets of their religious beliefs,” 406 U.S. at 218. Kaemmerling,
in contrast, alleges that the DNA Act’s requirement that the
federal government collect and store his DNA information
requires the government to act in ways that violate his religious
beliefs, but he suggests no way in which these governmental
acts pressure him to modify his own behavior in any way that
would violate his beliefs. See Appellant’s Br. at 21 (describing
alleged substantial burden as “knowing [his] strongly held
beliefs had been violated by a[n] unholy act of an oppressive
regime”).

Nor does the criminal penalty for “fail[ure] to cooperate,”
42 U.S.C. § 14135a(a)(5), in the collection of “a tissue, fluid, or
other bodily sample . . . on which a DNA analysis can be carried
out,” id. § 14135a(c)(1), substantially burden Kaemmerling’s
exercise of religion. He objects only to the collection of the
DNA information from his tissue or fluid sample, a process the
criminal statute does not address, and he does not allege that his
religion requires him not to cooperate with collection of a fluid
or tissue sample. Moreover, he alleges that even “involuntary
and/or forced collection” of his DNA would “violate[] [his]
 15

convictions.” The criminal statute is therefore no inducement
for Kaemmerling to cooperate and potentially violate his beliefs,
because he alleges that collection of his DNA sample would
violate his convictions whether or not he acquiesces in the
process. Thus, Kaemmerling does not allege that he is put to a
choice like the plaintiffs in Yoder, between criminal sanction
and personally violating his own religious beliefs. See Yoder,
406 U.S. at 218.

This case is instead more analogous to Bowen v. Roy, 476
U.S. 693 (1986), where the Supreme Court held that the state’s
use of a Native American child’s Social Security number in
determining eligibility for federal welfare benefit programs did
not impair her parents’ freedom to exercise their religious
beliefs, a tenet of which was that use of the number beyond her
control would “rob [her] spirit.” Id. at 696; see id. at 697, 699.
The parents objected to a statutory requirement that state
agencies “shall utilize” Social Security numbers “not because it
place[d] any restriction on what [they could] believe or what
[they could] do,” but because they believed use of the number,
an entirely governmental act, would harm the child’s spirit. Id.
at 699. The Court concluded that the government’s use of the
child’s Social Security number did not “in any degree” impair
her parents’ freedom to believe, express, or exercise their
religion, emphasizing that “[t]he Free Exercise Clause simply
cannot be understood to require the Government to conduct its
own internal affairs in ways that comport with the religious
beliefs of particular citizens. . . . [A]ppellees may not demand
that the Government join in their chosen religious practices by
refraining from using a number to identify their daughter.” Id.
at 699-700.

Similarly, Kaemmerling’s objection to the DNA Act centers
on the government’s act of extracting and analyzing his DNA to
collect its information and store an electronic DNA profile,
 16

without suggesting that the Act imposes any restriction on what
Kaemmerling can believe or do. Like the parents in Bowen,
Kaemmerling’s opposition to government collection and storage
of his DNA profile does not contend that any act of the
government pressures him to change his behavior and violate his
religion, but only seeks to require the government itself to
conduct its affairs in conformance with his religion.
Kaemmerling thus fails to allege a substantial burden on his
religious exercise that would be cognizable under the RFRA.

To the extent that Kaemmerling challenges storage of his
DNA profile or retention of the DNA sample itself based on fear
of specific future misuses that would conflict with his religious
beliefs, we emphasize that we must consider the statute as it
exists and is applied today, complete with its protections against
misuse, see 42 U.S.C. §§ 14132(b)(3) (limiting the permissible
uses of DNA profiles and stored samples), 14133(c) & 14135e
(providing criminal penalties for those who improperly disclose
or receive DNA information or samples), and we cannot pass on
hypothetical future harms. See Johnson, 440 F.3d at 499;
Kincade, 379 F.3d at 837-38.

2

Even if Kaemmerling did allege a substantial burden on his
exercise of religion, his complaint would still fail to state a
claim for relief because the burden “is in furtherance of a
compelling governmental interest” and “is the least restrictive
means of furthering that . . . interest,” satisfying the RFRA
exception. 42 U.S.C. § 2000bb-1(b).

The DNA Act serves the compelling governmental interest
in accurately and expeditiously solving past and future crimes in
order to protect the public and ensure conviction of the guilty
and exoneration of the innocent. See Schall v. Martin, 467 U.S.
 17

253, 264 (1984) (“The legitimate and compelling state interest
in protecting the community from crime cannot be doubted.” )
(quotation omitted); United States v. Weston, 255 F.3d 873, 880-
81 (D.C. Cir. 2001) (“The [Supreme] Court has repeatedly
adverted to the government’s ‘compelling interest in finding,
convicting, and punishing those who violate the law.’ Moran v.
Burbine, 475 U.S. 412, 426 (1986); accord Texas v. Cobb, 532
U.S. 162, [172-73] (2001); . . . McNeil v. Wisconsin, 501 U.S.
171, 181 (1991); Richardson v. Marsh, 481 U.S. 200, 210
(1987).”); United States v. Amerson, 483 F.3d 73, 87 (2d Cir.
2007) (“There can be little doubt that the government has a
compelling interest in rapidly and accurately solving crimes and
that having DNA-based records of the identity of . . . past
offenders . . . effectuates this interest.”). Courts have
consistently held that the Act furthers these compelling interests.
See Banks v. United States, 490 F.3d 1178, 1188-89 (10th Cir.
2007) (DNA Act provides “dramatically effective tool” for
solving crime and exonerating the innocent); United States v.
Conley, 453 F.3d 674, 678 (6th Cir. 2006) (Act serves
governmental interests in solving past and future crimes and
protecting communities where felons are released); Johnson,
440 F.3d at 497 (Act helps “solve past and future crimes,” in
furtherance of government’s “duty . . . to protect the public”);
United States v. Sczubelek, 402 F.3d 175, 185-86 (3d Cir. 2005)
(“The interest in accurate criminal investigations and
prosecutions is a compelling interest that the DNA Act can
reasonably be said to advance,” along with “protecting society
from future criminal violations.”); Kincade, 379 F.3d at 838-39
& n.38 (Act furthers the “undeniably compelling” interests of
ensuring parolee complies with requirements of release, solving
past crimes, sheltering society from future victimization,
prosecuting crimes accurately, and absolving the innocent
expeditiously); see also 42 U.S.C. § 14135 Note(a)(1)-(3) (DNA
testing is “the most reliable forensic technique for identifying
criminals when biological material is left at a crime scene” and
 18

“can, in some cases, conclusively establish . . . guilt or
innocence” and in others can “have significant probative
value”); id. (a)(6)-(7) (“DNA testing can and has resulted in the
post-conviction exoneration” of innocent people and in some of
those cases “also enhanced public safety by providing evidence
that led to the apprehension of the actual perpetrator”).

Fundamental to the Act is the government’s compelling
interest in accurately identifying convicted offenders. Banks,
490 F.3d at 1188 (“It is well settled that once an individual has
been convicted, his or her identity becomes a matter of
compelling interest to the government.”) (quotation and
alteration omitted); see Conley, 453 F.3d at 678 (government
interest in collecting DNA includes “the creation of a permanent
record of the identities of convicted felons”); Johnson, 440 F.3d
at 497 (“[T]he government is ‘quite justified’ in taking steps to
keep tabs on ex-convicts.”); Sczubelek, 402 F.3d at 185 (“[T]he
government . . . has a compelling interest in the collection of
identifying information of criminal offenders.”). DNA profiling
furthers this interest in a way no other identifying feature can,
because DNA is unique to each individual (excepting identical
twins) and cannot, within current scientific knowledge, be
altered or disguised. See Jones v. Murray, 962 F.2d 302, 307
(4th Cir. 1992).

Finally, courts also agree that the deterrent effect of
compulsory DNA profiling under the Act serves “society’s
enormous interest in reducing recidivism.” Kincade, 379 F.3d
at 838; see Johnson, 440 F.3d at 497 (“[T]he government is
‘quite justified’ in taking steps[, namely enforcing the DNA
Act,] . . . to deter recidivism.”); Banks, 490 F.3d at 1189
(“[C]ollecting DNA combats recidivism by solving crimes and
removing criminals from the streets and by deterring future
criminal acts by felons on release, presumably because the
felons know that they are more easily identifiable when the
 19

authorities have their DNA.”); Conley, 453 F.3d at 678
(government interest in collecting DNA for “deterrence of future
criminal acts by felons on release”); Sczubelek, 402 F.3d at 186
(“[C]ollection of [DNA] will indirectly promote the
rehabilitation of criminal offenders by deterring them from
committing crimes in the future.”).

Kaemmerling argues that the government has not
shown—and cannot show, at this pre-evidentiary stage of the
case—that the DNA Act serves a compelling interest as applied
to him, “a first-time offender convicted of a non-violent crime
that did not turn on DNA evidence.” The RFRA demands that
“the compelling interest test [be] satisfied through application of
the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially
burdened.” Gonzales v. O Centro Espirita Beneficente Uniao
Do Vegetal (“UDV”), 546 U.S. 418, 430-31 (2006) (quoting 42
U.S.C. § 2000bb-1(b)). We must look beyond the “broadly
formulated interests justifying the general applicability” of the
statute to examine the interests the government seeks to promote
as applied to Kaemmerling “and the impediment to those
objectives” that would flow from granting him a specific
exemption. Id. at 431; see Yoder, 406 U.S. at 213.

We first note that Congress specifically amended the DNA
Act in 2004 to expand the qualifying federal offenses that
subject an offender to DNA sampling to include “[a]ny felony.”
42 U.S.C. § 14135a(d)(1) (as amended by the Justice for All Act
of 2004, Pub. L. 108-405, 118 Stat. 2260, at 2270). The Act
previously only affected felons who had committed violent
crimes such as murder, sexual abuse, and kidnaping. See DNA
Analysis Backlog Elimination Act of 2000, Pub. L. 106-546,
114 Stat. 2726, at 2729-30. This amendment is definitive
evidence that nonviolent offenders were in fact the intended
object of the compelling interests Congress sought to advance
 20

through the Act.

Indeed, the interests served by the DNA Act are compelling
as to nonviolent first-time felons and violent recidivists alike.
Kaemmerling’s status as a nonviolent felon or first-time
offender in no way undermines DNA profiling as an effective
way to identify and “keep tabs on” him. See Banks, 490 F.3d at
1190. As unchangeable personal identifiers, DNA profiles can
do more than verify a suspect’s presence at the scene of a crime.
They can, for example, be used to identify a felon “who has
attempted to alter or conceal his or her identity.” See Jones, 962
F.2d at 308. The identification purpose therefore serves
interests aside from catching repeat offenders.

The government’s compelling interest in accurately and
expeditiously solving crime, by matching DNA evidence to an
offender profile and by quickly excluding innocent offenders,
also applies to felons previously convicted of nonviolent crimes
and those who are first-time offenders. DNA exists in numerous
parts of the body that even nonviolent criminals leave behind,
including hair, saliva, and skin cells, and modern technology can
generate a DNA profile from just thirty to fifty cells. See Banks,
490 F.3d at 1190 (citing studies documenting “identifiable
quantities of human DNA on doorknobs, coffee cups, and other
common items”); Kincade, 379 F.3d at 838 n.37 (“[A] new
crime lab planned for New York City expects to generate
profiles culled from as little as 6 cells’ worth of genetic material
collected at the scene of nearly every crime committed in the
city—including . . . property offenses like home burglaries and
auto thefts.” (citing Shalia K. Dewan, As Police Extend Use of
DNA, a Smudge Could Trap a Thief, N.Y. Times, May 26,
2004)). Although it may be true that law enforcement officers
currently use DNA evidence more often in solving violent
crimes than nonviolent ones, the even stronger interest in
collecting the DNA of violent offenders does not diminish the
 21

connection between taking and storing the DNA of nonviolent
offenders and the government’s crime-solving interest. See
Amerson, 483 F.3d at 88 n.15 (“DNA can be, and is
increasingly, being used to solve non-violent crimes.”).

In addition, Kaemmerling’s status as a first-time offender
does not diminish the government’s crime-solving interest as
related to him. Even if Kaemmerling never re-offends, his DNA
profile would still further this purpose because law enforcement
uses the CODIS not only to identify a perpetrator but also to
swiftly and efficiently eliminate countless potential suspects. Of
course, all recidivists were once first-time offenders, so the
government also has an interest in determining if Kaemmerling
will be such a case, given that he has already demonstrated a
willingness to commit a crime meriting imprisonment. Other
courts addressing this issue have observed that nonviolent
offenders not only have a higher recidivism rate than the general
population, but certain groups—such as property offenders—
have an even higher recidivism rate than violent offenders, and
a large percentage of the crimes nonviolent recidivists later
commit are violent. Ewing v. California, 538 U.S. 11, 26 (2003)
(citing U.S. Dept. of Justice, Bureau of Justice Statistics, P.
Langan & D. Levin, Special Report: Recidivism of Prisoners
Released in 1994, p.1 (June 2002)); Banks, 490 F.3d at 1191; see
Amerson, 483 F.3d at 89 n.15 (“[E]xperience indicates that
samples collected on the basis of convictions for nonviolent
offenses are actually among the most useful in solving crimes,
including violent crimes.” (quoting H.R. Rep. No. 106-900(I),
at *29 (letter from Dept. of Justice))). Even white-collar
criminals like Kaemmerling appear to show a high level of
recidivism, with fraud and larceny offenders demonstrating only
slightly lower rates of recidivism than other offenders.
Amerson, 483 F.3d at 88 n.15 (citing U.S. Sentencing Comm’n,
Measuring Recidivism: The Criminal History Computations of
the Federal Sentencing Guidelines, at 30, Exh. 11 (May 2004),
 22

and U.S. Dep’t of Justice, Profile of Nonviolent Offenders
Exiting State Prisons, at 2 (Oct. 2004)); see Conley, 453 F.3d at
679 (“[R]ecidivism in certain groups of white-collar criminals
is very close to the rate of recidivism in firearm offenders, and
is only slightly lower than felons convicted of robbery.” (citation
omitted)).

Finally, because law enforcement officials can find usable
DNA evidence related to both violent and nonviolent crimes, the
Act’s compelling interest in deterring recidivism applies
undiminished to Kaemmerling, who has already displayed his
need for a deterrent in his willingness, as mentioned before, to
commit a felony meriting imprisonment. Regardless of whether
a felon has been convicted of one or many offenses and
regardless of whether he is tempted to commit a violent or
nonviolent crime in the future, his knowledge that the
government has stored an unchangeable aspect of his identity
that can be used to ferret out his best attempts at concealing
future crime certainly furthers the government’s deterrence
interest.

3

Having concluded that the government has a compelling
interest in extracting and storing Kaemmerling’s DNA
information for identification, we have no trouble concluding
that application of the DNA Act to Kaemmerling “is the least
restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb-1(b). A statute or regulation is
the least restrictive means if “no alternative forms of regulation
would [accomplish the compelling interest] without infringing
[religious exercise] rights.” Sherbert, 374 U.S. at 407. While
we acknowledge the government’s argument that an intrusion
like drawing blood might be considered an acceptably minimal
invasion of privacy interests under the Fourth Amendment, it
 23

does not necessarily follow that it is the means least restrictive
of religious exercise under the RFRA.

It is not the method of collecting the tissue or fluid sample
for DNA analysis which Kaemmerling alleges burdens his
religious exercise, so this is not a case like United States v.
Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007), in which the
religious adherent’s beliefs prohibited him from giving blood,
but the court considered whether other methods of obtaining a
DNA sample would intrude less on his beliefs. Because
Kaemmerling alleges that collecting his DNA information at all
is what impedes his religious exercise, a less restrictive
alternative would exist only if some means of identification
other than DNA would accomplish the government’s compelling
purposes.

No less restrictive alternative exists. As Congress stated,
DNA profiling is currently “the most reliable forensic technique
for identifying criminals when biological material is left at a
crime scene.” 42 U.S.C. § 14135 Note(a)(1). Perhaps more
importantly, it is the one identifying characteristic that criminals
cannot change, disguise, or hide to avoid detection. As the
Fourth Circuit explained,

It is a well recognized aspect of criminal conduct that the
perpetrator will take unusual steps to conceal not only
his conduct, but also his identity. Disguises used while
committing a crime may be supplemented or replaced by
changed names, and even changed physical features.
Traditional methods of identification by photographs,
historical records, and fingerprints often prove
inadequate. The DNA, however, is claimed to be unique
to each individual and cannot, within current scientific
knowledge, be altered. The individuality of the DNA
provides a dramatic new tool for the law enforcement
 24

effort to match suspects and criminal conduct. Even a
suspect with altered physical features cannot escape the
match that his DNA might make with a sample
contained in a DNA bank, or left at the scene of a crime
within samples of blood, skin, semen or hair follicles.
The governmental justification for this form of
identification, therefore, relies on no argument different
in kind from that traditionally advanced for taking
fingerprints and photographs, but with additional force
because of the potentially greater precision of DNA
sampling and matching methods.

Jones, 962 F.2d at 307. Any alternative method of identification
would be less effective in identifying offenders and much more
easily capable of evasion, thus “adversely affect[ing]” the
government’s compelling interests. Yoder, 406 U.S. at 236
(asking how the state’s “admittedly strong interest in
compulsory education would be adversely affected by granting
an exemption to the Amish”); see UDV, 546 U.S. at 431
(discussing Yoder); cf. Sherbert, 374 U.S. at 408-09 (explaining
that providing Sabbatarian business owners an exception to
Sunday closing laws was not an adequate less restrictive
alternative in Braunfeld v. Brown, 366 U.S. 599 (1961), because
the exception appeared to present an administrative problem or
to afford the exempted class a competitive advantage rendering
the Sunday closing scheme unworkable).

C

Kaemmerling’s complaint also alleges violations of his
Fifth Amendment rights to equal protection and against self-
incrimination and his Fourth Amendment right to be free from
unreasonable searches and seizures.
 25

Kaemmerling argues that the DNA Act violates the equal
protection component of the Due Process Clause because it
requires collection of DNA from felons who are incarcerated or
on supervised release but does not mandate collection of DNA
from “free” felons, who are no longer under the supervision of
the BOP. Because prisoners are not a suspect class, we must
sustain the statute’s classification “if there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose.” Tucker v. Branker, 142 F.3d
1294, 1300 (D.C. Cir. 1998) (quoting Heller v. Doe by Doe, 509
U.S. 312, 320 (1993)). Even if Congress has not articulated the
purpose supporting the distinction, we must uphold it “if there
is any reasonably conceivable state of facts that could provide
a rational basis for the classification.” Heller, 509 U.S. at 320.
The DNA Act certainly passes the rational basis test. The BOP
exerts a measure of control over incarcerated felons and felons
on supervised release that it does not exert over felons who are
now out of the prison system, making it significantly easier for
the BOP to collect DNA samples from incarcerated and
supervised felons than from free felons. See Tucker, 142 F.3d
at 1300 (control over prisoner funds as compared to indigents at
large is rational basis for treating prisoners and non-prisoners
differently with respect to filing fees). Moreover, the statute’s
alleged underinclusiveness is not a basis for invalidating it,
because under rational basis review Congress may choose to
proceed “one step at a time,” applying remedies to “one phase
of one field [while] . . . neglecting the others.” Williamson v.
Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955); see United
States v. Holland, 810 F.2d 1215, 1219 (D.C. Cir. 1987); see
also Roe v. Carcotte, 193 F.3d 72, 82 (2d Cir. 1999) (concluding
state DNA statute does not violate equal protection by targeting
incarcerated sex offenders but not prior sex offenders currently
residing in the community).
 26

Regarding the privilege against compelled self-
incrimination, Kaemmerling argues that the DNA Act is
unconstitutional because it requires him to give the government
potentially incriminating evidence for later use against him in
court. The Fifth Amendment privilege bars only compelling
testimonial communications from an accused, not making the
accused a source of physical evidence. Schmerber v. California,
384 U.S. 757, 763-64 (1966). So the forced extraction of a
blood sample, to be chemically analyzed for alcohol content and
used against the accused, was not compelled self-incrimination
because “the blood test evidence, although an incriminating
product of compulsion, was neither [the accused’s] testimony
nor evidence relating to some communicative act or writing by
the [accused].” Id. at 765. For the same reason, a DNA sample
is not a testimonial communication subject to the protections of
the Fifth Amendment. See Wilson v. Collins, 517 F.3d 421, 431
(6th Cir. 2008) (extraction of DNA does not implicate the
privilege because DNA samples are physical, not testimonial,
evidence); United States v. Reynard, 473 F.3d 1008, 1021 (9th
Cir. 2007) (same); United States v. Hook, 471 F.3d 766, 773-74
(7th Cir. 2006) (same); Boling v. Romer, 101 F.3d 1336, 1340
(10th Cir. 1996) (same).

Kaemmerling’s complaint also asserts that collecting a
sample of his DNA pursuant to the Act violates his Fourth
Amendment right to be free from unreasonable searches and
seizures because the Act unconstitutionally authorizes a blanket,
suspicionless search for general law enforcement purposes. But
we have already held, in a previous challenge to the DNA Act,
that “the Fourth Amendment . . . certainly permits the collection
of a blood sample [for DNA analysis] from a convicted felon . . .
while he is still on probation,” much less from a currently
incarcerated felon. Johnson, 440 F.3d at 497; see id. (“[T]he
Fourth Amendment does not require an additional finding of
individualized suspicion before blood can be taken from
 27

incarcerated felons for the purpose of identifying them.”
(quotation omitted)); Hudson v. Palmer, 468 U.S. 517, 530
(1984) (no reasonable expectation of privacy in prison cell); Bell
v. Wolfish, 441 U.S. 520, 558-60 (1979) (body cavity
inspections after contact visits in prison are not unreasonable
under the Fourth Amendment). That decision, which accords
with the opinion of every court of appeals to consider the issue,
forecloses Kaemmerling’s claim. See Johnson, 440 F.3d at 496
(listing cases from the Second, Third, Fourth, Fifth, Seventh,
Ninth, Tenth, and Eleventh Circuits); United States v. Weikert,
504 F.3d 1, 14 (1st Cir. 2007); United States v. Conley, 453 F.3d
674, 680-81 (6th Cir. 2006); United States v. Kraklio, 451 F.3d
922, 924-25 (8th Cir. 2006).

IV

For the foregoing reasons, we conclude that Kaemmerling’s
complaint fails to state a claim upon which relief can be granted
and therefore should be dismissed. Dismissal of the case moots
Kaemmerling’s appeal from the district court’s denial of his
motion for a preliminary injunction, as he no longer has a
potential claim or continuing litigation and we have adjudged
him unsuccessful on the merits of his case. We affirm the
district court’s judgment dismissing Kaemmerling’s complaint,
but order that the dismissal be with prejudice.