Potter v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2008 Decided March 6, 2009

No. 07-7163

CALVERT L. POTTER, ET AL.,
APPELLEES

v.

DISTRICT OF COLUMBIA,
APPELLANT

Consolidated with No. 07-7164

Appeals from the United States District Court
for the District of Columbia
(No. 01cv01189)

Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellant. With him on the briefs were Peter J.
Nickles, Interim Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.

Joshua A. Doan, argued the cause for appellees. With him
on the brief were William D. Iverson and Arthur B. Spitzer.
 2

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Judge WILLIAMS.

ROGERS, Circuit Judge: The District of Columbia requires
its firefighters and emergency medical service (“EMS”) workers
(together “firefighters”) to be clean shaven. A number of
firefighters who wear beards for religious reasons challenged
this requirement under the Religious Freedom Restoration Act,
42 U.S.C. § 2000bb et seq. (“RFRA”). The district court
granted summary judgment to the firefighters upon finding that
the District of Columbia had not shown a material issue as to
whether the requirement was narrowly tailored. Specifically, the
district court found the District of Columbia had conceded the
safety for bearded firefighters of one form of respirator (known
as a “SCBA”). We agree the District of Columbia failed to
satisfy its burden in opposing summary judgment by setting
forth specific evidence showing a triable issue of fact as to the
safety of the SCBA, and we affirm.

I.

Because this case centers on the efficacy of certain safety
equipment for bearded firefighters, it is helpful first to describe
the environments in which firefighters work and the protective
equipment they use. We then turn to the district court
proceedings, focusing particularly on the District of Columbia’s
position regarding the safety of the self-contained breathing
respirator. Upon setting forth our standard of review, RFRA
requirements, and the non-moving party’s burden in opposing
summary judgment, we review the record to determine whether
 3

the District of Columbia raised a material issue of disputed fact
about the safety of SCBAs for bearded firefighters.

A.
Firefighters encounter dangerous atmospheres. The most
dangerous areas, classified as “immediately dangerous to life
and health,” include all active fires, other oxygen-deprived
environments, and settings in which highly toxic contaminants
may be inhaled. Other areas pose a lesser threat, and still other
areas pose no threat at all. When firefighters do not know the
threat posed by an environment, they must treat it as
immediately dangerous to life and health.

Firefighters can protect themselves by using a number of
forms of respiratory equipment, all of which use the same tight-
fitting face mask. The most powerful, a self-contained breathing
apparatus, or SCBA, consists of an air tank, a regulator, and a
mask. A SCBA is designed to maintain “positive pressure” in
the face mask — that is, the atmospheric pressure is greater
inside the mask than outside. Testimony from both parties
indicates that, as a result, a leak in the seal of the face mask will
cause clean air to leak out of the mask into the outside
atmosphere, rather than allowing contaminated outside air to
leak in. The District of Columbia’s “respiratory protection plan”
requires firefighters to use SCBAs in environments that are
actually or potentially immediately dangerous to life and health,
although EMS workers are not trained at all in the use of
SCBAs.

Although this appeal focuses on the safety of SCBAs for
bearded firefighters, much of the district court proceeding
concerned the safety of two other systems: An air-purifying
filter, or APR, consists of a mask and a filter through which the
user breathes. An APR relies on the negative pressure created
by inhalation to draw outside air through the filter. A powered
 4

air-purifying filer, or PAPR, operates like an APR, but uses a
battery-powered fan to force air through its filter. It is thus
designed to create positive pressure inside the mask.

B.
In 2001, the D.C. Department of Fire and Emergency
Medical Services implemented a “grooming policy” that
prohibited beards. A number of firefighters challenged the
policy under RFRA, and the district court preliminarily enjoined
enforcement of the policy. The Department accommodated the
plaintiffs for a time but in 2005 issued a separate “safety
policy,” which forbade Department employees who use “tight-
fitting facepieces” to have “facial hair that comes between the
sealing surface of the facepiece and face.” The firefighters
sought various forms of relief including a permanent injunction
and clarification as to whether the 2001 injunction on the
grooming policy also applied to the new safety clean-shaven
policy. The District of Columbia moved for a judgment as a
matter of law declaring the new policy not in violation of RFRA.

On August 11, 2005, based on extensive briefing and a
daylong hearing, the district court modified the 2001 injunction
to allow the Department to assign to administrative duty
employees who could not pass “face-fit tests,” and also to
require the Department to afford the firefighters a reasonable
opportunity to demonstrate they could pass the tests. Potter v.
District of Columbia, 382 F. Supp. 2d 35 (D.D.C. 2005). In its
opinion, the district court stated:

It is undisputed that firefighters who wear beards can
safely operate the positive pressure self contained
breathing apparatus (SCBA) that firefighters use in
situations considered to be immediately dangerous to
life and health [in part because] any break in the seal
between a firefighter’s face and his SCBA mask will
 5

cause air from the tank to blow out, due to positive
pressure, preventing air from the surrounding
environment from entering the mask. The
disagreement in this case concerns the safe operation
of negative pressure masks by firefighters.

Id. at 39 (emphasis added). A month later, a group of EMS
workers sued to establish that the modified injunction applied to
them, and the district court consolidated the cases.
Considerable wrangling followed, as some plaintiffs passed the
fit tests, some failed subsequent tests, and both parties moved
for summary judgment — the District of Columbia on July 7,
2006, with the firefighters responding on October 13, 2006 and
cross-moving for summary judgment on October 16, 2006.

The district court granted summary judgment to the
firefighters. Potter v. District of Columbia, Nos. 01-1189, 05-
1792, Mem. Op. at 2 (D.D.C. Sept. 28, 2007) (“2007 Mem.
Op.”). As in the 2005 opinion, the district court reasoned that
because “the Department now apparently concedes that the
positive pressure in the SCBA system is adequate to protect the
bearded firefighter from any leakage that may be caused by
facial hair,” the case turned on whether bearded firefighters
could safely wear APRs, and whether they need to do be able to
do so. Id. at 13. The District of Columbia had argued that its
clean-shaven policy was necessary because firefighters must be
able to safely use APRs so that they could work for long periods
in an environment, such as the aftermath of a terrorist attack,
which is not imminently dangerous to life and health but still
poses a threat. Mem. in Opp’n to Pls’ Mot. for Summ. J. 10-11.
The district court concluded that the clean-shaven policy was
not sufficiently narrowly tailored, as required under RFRA,
because in such an environment the Department could redeploy
bearded firefighters out of the zone in which APRs would be
required, either “up” into areas in which SCBA systems were
 6

required, or “down” into areas in which no protection was
needed. 2007 Mem. Op. at 23. The district court denied the
District of Columbia’s motion for reconsideration, and the
District of Columbia appeals.

II.

On appeal, the District of Columbia does not challenge the
district court’s finding that bearded firefighters could be
redeployed away from areas in which a negative-air pressure
mask (ARP) is required. Instead it contends that it never
conceded bearded firefighters can safely use SCBAs and indeed
argued the opposite. Thus it maintains that summary judgment
was inappropriately granted because it raised a genuine issue of
material fact as to the safety for bearded firefighters to wear any
type of tight-fitting face mask, regardless of whether the mask
is used in a positive or negative configuration.

A.
This court reviews the grant of summary judgment de novo,
Royall v. Nat’l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137,
143 (D.C. Cir. 2008). The firefighters’ suggestion that our
review is confined to the lenient abuse of discretion standard
misconceives the issue before the court. They offer that the
district court’s denial of reconsideration — wherein the District
of Columbia first objected as it does on appeal that it had never
conceded SCBAs are safe for bearded firefighters — was “a
case-management ruling” disallowing an opportunity for the
District of Columbia to change its position, and as such
reviewable only for abuse of discretion, see, e.g., Nat’l
Westminister Bank, PLC v. United States, 512 F.3d 1347, 1363
(Fed. Cir. 2008); Berry v. Dist. of Columbia, 833 F.2d 1031,
1037 n.24 (D.C. Cir. 1987). As the firefighters see it, the
propriety of the rejection is “the only real issue” now.
Appellees’ Br. 24, 26. It is true that if this court agrees the
 7

District of Columbia conceded the safety of SCBAs for bearded
firefighters, then our review of the district court’s decision not
to allow the District of Columbia to raise the issue anew would
be for abuse of discretion. See Connors v. Hallmark & Son Coal
Co., 935 F.2d 336, 341 n.9 (D.C. Cir. 1991). This appeal turns
on a different question, however. This court must determine
whether the District of Columbia made an affirmative showing
of the opposite. Put differently, this court must decide whether
the District of Columbia’s contention that SCBA systems are not
safe really is a new argument. That issue, integral to the district
court’s ruling on the merits of summary judgment, must be
reviewed de novo. Id.

Under RFRA, the federal government and the District of
Columbia1 may not substantially burden a person’s exercise of
religion unless the government “demonstrates that application of
the burden to the person – (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C.
§ 2000bb-1; see Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 424 (2006). The statute makes
clear that “the term ‘demonstrates’ means meets the burdens of
going forward with the evidence and of persuasion.” 42 U.S.C.
§ 2000bb-2(3). The parties agree that the firefighters wear
beards because of sincere religious beliefs and that their safety
and the safety of those they assist is a compelling government
interest. The issue on which the appeal ultimately turns, then,
is whether the clean-shaven requirement is the least restrictive
means to protect the safety of firefighters.

1
After City of Boerne v. Flores, 521 U.S. 507 (1997), RFRA does not
apply to state governments. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1 (2006).
 8

Federal Rule of Civil Procedure 56(c) “mandates the entry
of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); see FED, R. CIV. P. 56(c). Because RFRA obliges the
government to show that a policy that burdens religious freedom
is the least restrictive means to further a compelling interest, the
District of Columbia can only survive a summary judgment
motion by showing that it has established a genuine issue as to
whether its clean-shaven requirement is narrowly tailored to
further the interest of protecting firefighters — that is, it must
demonstrate it argued and proffered evidence to show that
SCBAs are not safe for bearded firefighters. See FED, R. CIV.
P. 56(e). It will not suffice to make that argument for the first
time on appeal, NRM Corp. v. Hercules, Inc., 758 F.2d 676, 680
(D.C. Cir. 1985), for while review of the grant of summary
judgment is de novo, this court reviews only those arguments
that were made in the district court, absent exceptional
circumstances, see Singleton v. Wulff, 428 U.S. 106, 120 (1976);
Woodruff v. Peters, 482 F.3d 521, 525 (D.C. Cir. 2007);
Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419
n.5 (D.C. Cir. 1992); see also 10A CHARLES A. WRIGHT,
ARTHUR R. MILLER, & MARY K. KANE, FEDERAL PRACTICE AND
PROCEDURE § 2716 at 282-85 & nn.12-13 (3d ed. 1998).

B.
On appeal, the District of Columbia suggests two possible
reasons that SCBAs might be unsafe for bearded firefighters: (1)
a firefighter might “overbreathe” his respirator by inhaling so
vigorously that the regulator is unable to supply sufficient clean
air to maintain positive pressure, thus drawing in contaminated
air through a leak in the face mask seal, or (2) even if positive
pressure is maintained, a leak of clean air out of the mask will
 9

exhaust the air supply more quickly than would otherwise
happen. See Appellant’s Br. 13. However, the record shows the
District of Columbia never advanced, and in fact disavowed, any
arguments to that effect before the summary judgment stage.

In a motions hearing in 2005, the Assistant Attorney
General explicitly disavowed any claim that SCBAs were
dangerous for bearded firefighters either because any leaks
would shorten the tank life of SCBA gear or because there was
a low-level long-term risk associated with that gear. The
Assistant stated, “that’s not what we’re worried about,” and
clarified that the District of Columbia’s policy was instead
necessary for “a situation where [firefighters] have to go into a
contaminated area for an extended period of time, [like] the
World Trade Center,” — i.e., a situation that the District of
Columbia maintained would require the use of APRs. Mot.
Hr’g Tr. 6 (June 13, 2005). In the evidentiary hearing shortly
thereafter, Fire Safety Officer Captain William Flint described
the effect of the positive-pressure SCBA system this way: “[I]f
there is a leakage there, the air will then move out from the
inside of the face piece, protecting the wearer from toxic
atmospheres.” Mot. Hr’g Tr. 89 (Aug. 1, 2005). The
firefighters’ expert had declared in 2001 that SCBAs are safe for
bearded firefighters for the same reason. Decl. of Alexander
Santora (May 25, 2001).

Given these representations by the District of Columbia and
the evidence from the firefighters, it is little wonder that the
district court soon afterwards summarized the case as focused on
the safe operation of negative-pressure systems, i.e., APRs,
because it was “undisputed that firefighters who wear beards can
safely operate” positive-pressure SCBAs. Potter, 382 F. Supp.
2d at 39. Indeed, the District of Columbia affirmatively adopted
this framing of the issue in its 2006 motion for summary
judgment, arguing that the evidence showed that “None of the
 10

Plaintiffs Can Safely [Wear] Issued Negative Pressure
Face-Pieces.” Id. (emphasis added).

Of course, the District of Columbia was free to take a
different position in opposing the firefighters’ motion for
summary judgment, and it is its position in opposition that is
relevant here. See Hester v. District of Columbia, 505 F.3d
1283, 1287 (D.C. Cir. 2007). It could have done so in its
response to the firefighters’ statement of undisputed facts or in
its memorandum in opposition to summary judgment. It did not
meet its burden in either. Under Rule 7(h) of the district court’s
local rules, the moving party must submit a statement of
material facts as to which it asserts there is no genuine issue,
D.D.C. R. LCvR 7(h), and the district court may accept these
facts as true if the opposing party does not dispute them,
Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.
Cir. 2002); Jackson v. Finnegan, Henderson, Farabow, Garrett
& Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (construing
predecessor to local rule 7(h)); see FED. R. CIV. P. 56(e).

The firefighters asserted in paragraph 5 of their Rule 7(h)
statement that because a SCBA “supplies a continuous flow of
pressurized air,” any imperfection in the mask seal would result
in air flowing out of the mask, rather than in, and that “[i]t is
therefore not dangerous for a firefighter to work in a hazardous
environment using a[] SCBA.” Pls.’ Statement of Undisputed
Material Facts In Support of Pls.’ Mot. for Summ. J. at ¶ 5.
They cited their expert’s testimony to this effect as well as the
District of Columbia’s statement that SCBAs present no
imminent danger to bearded firefighters and that the clean-
shaven policy was not designed to address any problems arising
from SCBA devices. The firefighters thus offered evidence
showing an absence of a genuine dispute about SCBA safety.
 11

In response, the District of Columbia did not directly
address the assertion that it is safe for firefighters to use a
SCBA. Instead, its Rule 7(h) statement generally disputed “the
statements in paragraph 5” and went on to explain that a SCBA
does not supply “a continuous flow of pressurized air,” but only
supplies air when the pressure in the mask falls below a certain
level, presumably when the user inhales in a well-sealed mask.
Def.’s Resp. to Pls.’ Statement of Material Facts to Which There
Is No Genuine Issue at 3. The response clarified that “[i]f an
acceptable seal is not maintained, an inward flow of air comes
through the regulator during exhalation or during the pause
between breaths. This feature of the pressure-demand regulator
helps to conserve the supply of air carried on the wearers [sic]
back.” Id. The expert declaration supported these statements.

On appeal, the District of Columbia contends its Rule 7(h)
response suggested the possibility of pulling contaminated air
into the face mask through “overbreathing.” Fairly read, and
according all reasonable inferences to the District of Columbia
as the non-moving party, its response cannot support this
reading. Instead, the response simply addresses whether a
properly functioning SCBA system supplies air all the time or
only when a user inhales, pointing out that the firefighters had
incorrectly stated that SCBAs supply air continuously when in
fact they supply air only as needed. The response does not
contradict the fundamental notion that SCBAs can be worn
safely by bearded firefighters in hazardous environments.
Indeed, the last sentence of the Rule 7(h) statement — “[t]his
feature of the pressure-designed regulator helps to conserve the
supply of air carried on the wearer’s back” — renders the
response susceptible only to the interpretation that the District
of Columbia was explaining the mechanism by which clean air
enters the face mask from the tank. Further, the text cannot
support the District of Columbia’s reading as addressing
“overbreathing” because the response stated that an imperfect
 12

seal would cause air to come through “the regulator,” i.e., from
the air tank, through the regulator, into the mask, not from the
outside atmosphere into the mask. Given the opportunity and
the burden to dispute the safety of SCBAs, the District of
Columbia instead offered only a technical quibble that did not
reach the fundamental issue. On summary judgment, the district
court is to give credence to uncontradicted and unimpeached
evidence supporting the moving party, and so the district court
could properly take the firefighters’ assertion of SCBA safety as
true. See Jackson, 101 F.3d 145 at 154.

The District of Columbia also failed in its memorandum in
opposition to summary judgment to show that the safety of
SCBAs was a genuine disputed issue. On appeal, the District of
Columbia points out that its memorandum stated that “[e]ven
when used in a positive pressure configuration, use of a tight
fitting face-piece [with a beard] presents an unacceptable risk to
the wearer’s health.” In isolation this statement about positive-
pressure systems appears to support the District of Columbia’s
position that it contested the safety of SCBAs. Viewed in
context the more likely interpretation is that the response
focused on the “powered air-purifying respirator” (“PAPR”),
another positive-pressure system that was a primary point of
contention in the litigation, although the statement could
nonetheless plausibly have resuscitated an argument that SCBAs
were unsafe. But if this statement was intended as such an
assertion, it was unsupported by evidence because it is followed
by a citation to paragraphs 23 and 24 of Dr. McKay’s
declaration, which do not address SCBAs, or even positive-
pressure systems in general, but rather the possible long-term
health effects to which firefighters may be exposed through the
use of ill-fitting face masks — effects that would presumably
apply to both positive- and negative-pressure systems. Certainly
there is no trace of evidence regarding overbreathing or
premature air tank depletion, the pitfalls the District of
 13

Columbia now maintains it addressed. Thus, if in this single
sentence the District of Columbia was (1) recanting its earlier
representation that the clean-shaven policy was not designed to
address safety concerns related to SCBA use and that no such
concerns exist, (2) arguing that the clean-shaven policy was in
fact designed to address such concerns, and (3) contesting the
safety of SCBA devices specifically, the District of Columbia
offered only the kind of “merely colorable or not significantly
probative” evidence that is insufficient to defeat a summary
judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986) (citations omitted).

As regards other evidence referenced by the District of
Columbia on appeal, it was not cited in opposing the
firefighters’ motion for summary judgment. For example, the
testimony by Captain Flint that a tight face seal is important
because a face mask leak in a SCBA system could hasten the
exhaustion of the air supply: “[R]educed service life is an issue
as well, and we need to make sure that we’re maintaining as
much air as possible in the cylinder, which then gets in to the
firefighter’s lungs, instead of wasting it by letting creep outside
of the face piece.” Mot. Hr’g Tr. 102 (Aug. 1, 2005). None of
the District of Columbia’s pleadings or oral argument in the
district court cited this testimony or argued that cannister
depletion is a safety concern, or indeed a concern at all. “It is
well settled that issues and legal theories not asserted at the
District Court level ordinarily will not be heard on appeal.”
District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.
Cir. 1984); NRM Corp., 758 F.2d at 680. The District of
Columbia bore the burden of pointing to evidence that could
create an issue of material fact as to the safety of SCBAs and
arguing that the safety issue remained; evidence laying dormant
in the record is not enough, for the district court is not “obliged
to sift through hundreds of pages of depositions, affidavits, and
interrogatories in order to make [its] own analysis and
 14

determination of what may, or may not, be a genuine issue of
material disputed fact.” Twist v. Meese, 854 F.2d 1421, 1425
(D.C. Cir. 1988); see Jackson, 101 F.3d at 151. In any event, at
most, Captain Flint’s statement could be evidence that would
support an argument about safety, but the testimony alone is not
itself such an argument, especially given that shortly before the
testimony, the Assistant Attorney General disavowed any safety
concerns based on premature canister depletion. Mot. Hr’g Tr.
at 6 (June 13, 2005) (“Now you will have the lifetime that you
can spend in a fire reduced, because every time there’s a break
in the seal and the air has to blow, that’s air that’s not in your
tank, but maybe an hour tank will last 45 minutes. That’s not
what we’re worried about.”).

The District of Columbia also points to scientific articles,
federal safety regulations, and manufacturer directions
referenced by two declarations by Dr. McKay. All but one of
these sources (the NIOSH standards) were cited by Dr. McKay
in his first declaration in 2005 but not resubmitted or even
referenced in the District of Columbia’s opposition to summary
judgment. Moreover, Dr. McKay’s declaration appears to cite
these sources for the general proposition that beards may
compromise a face mask seal and therefore the efficacy of
respirators, without distinguishing between risks for negative-
and positive-pressure systems. See Decl. of Roy T. McKay,
Ph.D at ¶ 16 (Sept. 27, 2005) (“The scientific literature clearly
and consistently recognizes the fact that facial hair at the sealing
surface of a respirator causes increased respirator leakage. Such
leakage decreases the expected performance of the respirator .
. . .”); e.g., id. (quoting
article, “It is concluded that persons with excessive facial hair
. . . cannot expect to obtain as high a degree of respirator
performance as persons who are clean shaven”); id. at ¶ 19
(“Numerous standards and guidelines prohibit the presence of
facial hair at the sealing surface of a tight fitting respirator.”).
 15

In another context, this might suffice to create a genuine issue
of material fact as to the safety of SCBAs, because concerns as
to the greater category (all systems that use tight-fitting masks)
would include concerns as to the lesser (SCBA systems in
particular). However, throughout the litigation both parties and
the district court were careful to distinguish between negative-
and positive-pressure systems and their effects; witnesses for
both parties testified or declared that leaks in SCBAs did not
result in breathing contaminated air, Mot. Hr’g Tr. 89 (Aug. 1,
2005), and the district court and the summary judgment
pleadings expressed an understanding that the case turned on
the safety of negative-pressure APRs, not SCBAs, see Def.’s
Mem. in Support of Sum Judg. at 15 (July 7, 2006). Against this
background, the district court could only interpret Dr. McKay’s
declaration and the supporting information, both submitted
almost two years earlier, as expressing general concern about
the safety of tight-fitting face masks and thus relevant to the
safety of APRs, not SCBAs.

The District of Columbia notes that one scientific article
does discuss specific risks of SCBA systems for bearded users,
B.J. Held, Facial Hair and Breathing Protection, INT’L FIRE
CHIEF, Dec. 1980, at 25, 26-27, and that NIOSH standards
discourage the use of “pressure-demand respirators” with facial
hair, NANCY BOLLINGER, U.S. DEP’T OF HEALTH AND HUMAN
SERVS., NAT’L INST. FOR OCCUPATIONAL SAFETY & HEALTH,
NIOSH RESPIRATOR SELECTION LOGIC 48 (2004). Although
these two sources were attached to Dr. McKay’s 2005
declaration, he did not discuss the safety of SCBA systems or
point to that aspect of the article or report. See McKay Decl. at
¶ 16 (Sept. 27, 2005) (noting Held study “[r]eviewed the
variability in facial hair leakage with respect to” five factors).
At no point before or during the summary judgment
proceedings did the District of Columbia cite the portions of
either source that address SCBAs, nor argue that those sources
 16

demonstrated SCBAs are unsafe. Like the testimony of Captain
Flint, this information lay fallow in the record, and a reversal of
summary judgment cannot rest on arguments that the District of
Columbia could have, but did not, develop based on the factual
record it produced in the district court. Jackson, 101 F.3d at
151; Twist, 854 F.2d at 1425.

Under exceptional circumstances, a federal appellate court
will consider arguments against summary judgment not made
in the district court. See Singleton, 428 U.S. at 120; E.I. Du
Pont, 958 F.2d at 419 n.5. The District of Columbia has not
contended on appeal, much less demonstrated, that such
exceptional circumstances exist here. Nor has it contended that
the district court abused its discretion in not allowing this
objection to be raised for the first time in a motion for
reconsideration. Instead, the District of Columbia contends it
disputed the safety of SCBAs all along, including in its
opposition to summary judgment. The record shows otherwise.
Accordingly, because the District of Columbia did not carry its
burden in opposing summary judgment to establish an issue of
material issue regarding the safety of SCBAs, summary
judgment for the firefighters was appropriate and we affirm.
 WILLIAMS, Senior Circuit Judge, concurring: The record
here unequivocally discloses a disputed issue of material fact.
Yet the district court granted summary judgment. If the sole
aim of the law were an open search for truth, we would
plainly reverse.

The plaintiffs claim that a policy of the District of
Columbia requiring that firefighters be clean-shaven violates
their rights under the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb et seq. The District acknowledges that the
plaintiffs’ religious aversion to being clean-shaven is sincere,
and no one disputes the proposition that the District’s interest
in safety—that of the plaintiffs themselves, fellow workers
whose safety is linked to their performance, and the citizenry
at large—is compelling. For the reasons developed in the
court’s opinion, the case comes down to whether bearded
firefighters can safely rely on a self-contained breathing
apparatus (“SCBA”). Before us the District contends that it
should have had a chance to prove at trial that with a bearded
wearer the SCBA poses serious safety risks for which the
District’s policy is the least restrictive solution. Unfortunately
for the District, its own muddled litigation strategy rendered
summary judgment for the plaintiffs a legitimate outcome.

With their motion for summary judgment plaintiffs
submitted their “Statement of Material Facts,” describing a
SCBA as

suppl[ying] a continuous flow of pressurized air from
tanks worn by firefighters into their facemasks, so that
any minor imperfections in the facemask’s seal will result
in an outward flow of clean air from the mask, rather than
an inward flow of potentially dangerous gases or
particulates. It is therefore not dangerous for a firefighter
to work in a hazardous environment using an SCBA.
 2

Joint Appendix (“J.A.”) 110–11 ¶ 5. If this were undisputed,
the District’s safety claim (at least as they frame it here)
would dissolve. But the District disputed plaintiffs’
statement, saying,

The Defendant disputes the statements in paragraph 5. A
SCBA does not supply ‘a continuous flow of pressurized
air;’ rather, pressure-demand regulators are designed to
provide breathing air into the facepiece when the pressure
in the facepiece falls below a pre-defined (positive) value.
If an acceptable seal is not maintained, an inward flow of
air comes through the regulator during exhalation or
during the pause between breaths. This feature of the
pressure-demand regulator helps to conserve the supply
of air carried on the wearers [sic] back.

Id. at 111 ¶ 5. In support, the District relied on an expert
declaration, which labeled the plaintiffs’ assertion as
“incorrect” and explained that “[w]hen an acceptable seal is
maintained, no inward flow of air comes through the regulator
during exhalation or during the pause between breaths.” Id. at
120 ¶ 22.

The District’s response is susceptible of two
interpretations. On the one hand, the District could have been
simply correcting a rather inconsequential technical detail—
clarifying, in other words, that there are times when no air is
supplied through the regulator. On the other hand, the District
could have been saying that, absent an acceptable seal, the
user is at risk of breathing in contaminated outside air. The
references to air from the “regulator” and conservation of air
supply favor the first interpretation; but the pointlessness of
correcting plaintiffs’ technical error, prefaced by the claim to
“dispute[]” their contention, supports the second. The balance
favors the first interpretation, legitimating the grant of
summary judgment to the plaintiffs.
 3

But the record also contains scholarly work making the
second interpretation far more plausible. The District’s
expert, Roy T. McKay, in his first declaration identified a
number of articles on “the science of facial hair and the
negative performance it has on respiratory protection,” id. at
87, among them Bruce J. Held, Facial Hair and Breathing
Protection, Int’l Fire Chief, Dec. 1980, at 25, J.A. 90
(reporting on research at Lawrence Livermore National
Laboratory under contract W-7405-ENG-48). According to
Held, “a person doing moderately heavy to heavy work can
‘overbreathe’ the air supply if there is a leak, and suck or pull
in outside contaminated air through the leak.” J.A. 92.

McKay’s citation and provision of the Held article came,
to be sure, in a declaration that didn’t call attention to the
“overbreathing” problem. It would thus have required a good
deal of digging on the part of the district court to discover
Held’s expert conclusion on the matter. To avert the need for
such digging, the district court’s Local Rule 7(h) states:

An opposition to [a summary judgment] motion shall be
accompanied by a separate concise statement of genuine
issues setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be
litigated, which shall include references to the parts of the
record relied on to support the statement.

The rule embodies the thought that judges “are not like pigs,
hunting for truffles buried in briefs” or the record. United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

However buried the Held article may have been, though,
the record clearly alerted the court to the Occupational Safety
and Health Administration’s belief that facial hair poses risks
for the use of respirators generally. As the district court noted
 4

in its 2005 opinion, the District’s disputed order simply
requires firefighters to

comply with the face-fit requirements of 29 C.F.R.
§ 1910.134, which is the OSHA regulation for
“respiratory protection.” That regulation provides, at
§ 1910.134(g)(1)(i), that

The employer shall not permit respirators with tight-
fitting facepieces to be worn by employees who
have:

(A) Facial hair that comes between the sealing
surface of the facepiece and the face or that interferes
with valve function.

Potter v. District of Columbia, 382 F. Supp. 2d 35, 40 (D.D.C.
2005).

The OSHA regulation, to be sure, appears not to govern
the District’s firefighters. 29 U.S.C. § 652(5) excludes state
employees generally, and § 652(7) explains that the term
“state” includes the District. Although under some conditions
Environmental Protection Agency regulations may extend
coverage to otherwise exempt workers, see 40 C.F.R.
§§ 300.5, 300.150(d), the District has made no real effort to
show that those conditions are applicable to plaintiffs. The
regulation—on which the District’s own policy was based—
nonetheless plainly reflected OSHA’s judgment that facial
hair poses excessive risk.

Moreover, the OSHA regulation clearly rested on the
agency’s concern with “overbreathing.” Explaining its
decision to require fit testing with positive-pressure
respirators, OSHA observed:
 5

Even positive pressure respirators do not always maintain
positive pressure inside the facepiece, particularly when
facepiece fit is poor, strenuous work is being performed,
and overbreathing of the respirator occurs . . . . Leakage
must be minimized so that users consistently achieve the
high levels of protection they need.

63 Fed. Reg. 1152, 1223/2 (1998). OSHA’s explanation for
its decision went on at length, and its position was firm.

While a judge isn’t a pig hunting for truffles in the
parties’ papers, neither is he a potted plant. A judge on notice
of a contradiction between the plaintiffs’ position and the
views of a federal agency might hesitate to find the issue
wholly undisputed. And the district court in this case was not
passive across the board. In accepting the plaintiffs’ theory
that bearded firefighters could be quickly redeployed either to
areas requiring the use of SCBAs or to areas not requiring any
respirators, it reached back for evidence introduced over two
years earlier, in a different context, and not identified in the
plaintiffs’ summary judgment motion. See Tr. of Status
Conf., Nov. 29, 2007, at 4–5 (explaining that evidence
introduced in the August 1, 2005 hearing “is what informed
the plausibility of the reassignment plan that I talked about” in
the September 28, 2007 memorandum opinion). While this
variance in the court’s zeal is troubling, the District rests no
claim on the fact, and such a claim, even if made, would likely
not justify a different result. Departures from passivity are
almost always bound to give one side a net benefit, yet such
departures are not ipso facto error. Burdett v. Miller, 957 F.2d
1375, 1380 (7th Cir. 1992) (“[Judges] should not be criticized
when they point out to counsel a line of argument or inquiry
that he has overlooked, although they are not obligated to do
so. . . . When the unfolding evidence persuaded the district
judge that the plaintiff’s counsel had misidentified the RICO
enterprise, she could without impropriety have invited him to
 6

shift the line of his attack . . . .” (internal citations omitted));
cf. United States v. Carson, 455 F.3d 336, 355 (D.C. Cir.
2006) (explaining that the “threshold for a showing of bias is
high”—the judge’s conduct must “reveal such a high degree
of favoritism or antagonism as to make fair judgment
impossible” (quoting United States v. Edmond, 52 F.3d 1080,
1099 (D.C. Cir. 1995), and Liteky v. United States, 510 U.S.
540, 555 (1994))).

The outcome, nonetheless, seems extraordinarily
unsatisfactory. Looking on the bright side, one might see it as
constituting a semi-natural experiment, in which the District
of Columbia will fight calamities with some of its firefighters
bearded, while other firefighting entities adhere to OSHA’s
rule or its equivalent. Perhaps the difference will prove
inconsequential. The experiment is far from ideal, however.
Most obviously, the likelihood of acute calamity—and thus
the risk that response teams will be stretched to the breaking
point—seems greater in the District than almost any other
American city.

Of course even a permanent injunction is not
irredeemably permanent. The Federal Rules of Civil
Procedure allow judges to “relieve a party or its legal
representative from a final judgment, order, or proceeding” if,
among other things, “applying it prospectively is no longer
equitable.” Fed. R. Civ. P. 60(b)(5). The rule applies to a
permanent injunction as long as a party seeking relief “can
show ‘a significant change either in factual conditions or in
law.’” Agostini v. Felton, 521 U.S. 203, 215 (1997) (quoting
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384
(1992)). While the exact nature of such a change may be hard
to imagine, there is at least some comfort in the hope that the
experiment launched by this judgment will end without
having falsified the plaintiffs’ theory.