Case 1:16-cv-00399-BAH Document 1 Filed 02/29/16 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIMRATPAL SINGH, 8818 Moverly Ct. Springfield, VA 22152
Plaintiff,
v.
ASHTON B. CARTER, in his official capacity as Secretary of Defense, 1400 Defense Pentagon Washington, DC 20301
THE UNITED STATES DEPARTMENT OF DEFENSE, 1400 Defense Pentagon Washington, DC 20301
PATRICK J. MURPHY, in his official capacity as Acting Secretary of the U.S. Army, 101 Army Pentagon Washington, DC 20310
LIEUTENANT GENERAL JAMES C. MCCONVILLE, in his official capacity as Deputy Chief of Staff, G-1, U.S. Army 300 Army Pentagon Washington, DC 20310
THE UNITED STATES DEPARTMENT OF THE ARMY, 101 Army Pentagon Washington, DC 20310
Defendants.

Civil Action No. __________
VERIFIED COMPLAINT (Jury Requested)

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Eric S. Baxter (D.C. Bar No. 479221) Eric C. Rassbach (D.C. Bar No. 493739) Daniel Blomberg (pro hac vice pending) Diana M. Verm (D.C. Bar No. 1811222) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC, 20036 (202) 955-0095 PHONE (202) 955-0090 FAX ebaxter@becketfund.org
Amandeep S. Sidhu (D.C. Bar No. 978142) Emre N. Ilter (D.C. Bar No. 984479) McDermott Will & Emery LLP 500 North Capitol Street, N.W. Washington , DC, 20001 (202) 756-8000 PHONE (202) 756-8087 FAX asidhu@mwe.com
Harsimran Kaur Dang (D.C. Bar No. 493428) Gurjot Kaur (pro hac vice pending) The Sikh Coalition 50 Broad Street, Suite 1537 New York, NY, 10004 (212) 655-3095 PHONE harsimran@sikhcoalition.org
Counsel for Plaintiff

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NATURE OF THE ACTION 1. Plaintiff Simratpal Singh is a Captain in the United States Army, in the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, where he is an Assistant Operations Officer. 2. Captain Singh is also a devout member of the Sikh faith. 3. A core tenet of Sikhism—mandated by the Sikh prophets and required by the Rehat Maryada, the official Sikh Code of Conduct—forbids Sikhs from shaving or cutting their hair, (including facial hair) which must be worn in the dastaar (turban). 4. For Captain Singh, being forced to shave, cut his hair, or not wear the daastar would be a severe violation of his conscience, yet under the Army’s grooming policies, he is subject to severe penalties—including dishonorable discharge—just for maintaining these articles of faith. 5. When general military rules burden a soldier’s faith, binding Department of Defense Instructions and Army regulations require the Army to accommodate the soldier’s religious exercise, so long as the “accommodation would not adversely affect mission accomplishment.” DoDI 1300.17(4)(f); AR 600-21 § 5-6. 6. There is no doubt that the Army can accomplish its mission while allowing Captain Singh to maintain his articles of faith while serving as an Assistant Operations Officer for the 249th Engineer Battalion at Fort Belvoir, Virginia. 7. Captain Singh’s immediate commander, Lieutenant Colonel Julie Balten, has recommended that he be allowed to serve without being forced to violate his conscience.
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8. Moreover, Sikhs have regularly served in the United States military with their articles of faith intact, including in combat beginning as early as World War I and continuing through the Vietnam War.
9. It was only in the early 1980s that the military began barring Sikhs from military service because of their faith.
10. But even then, Sikhs already serving were grandfathered in without being forced to violate their conscience. And in just the last six years, the Army has admitted at least three fully-observant Sikhs, all who have served with distinction—including in combat zones—with their articles of faith fully intact.
11. America’s allies around the world, including Canada, Great Britain, India, and Australia also allow observant Sikhs to serve in their militaries. Indeed, Canada’s new Defense Minister— a decorated military veteran who advised top U.S. generals in Afghanistan—is himself an observant member of the Sikh faith.1
12. This Court has already held that the Army lacks general justification for barring observant Sikhs from serving their country. Iknoor Singh v. McHugh, 109 F. Supp. 3d 72 (D.D.C. June 12, 2015).
13. Despite the long history of exemplary service by Sikhs in the United States military and utter lack of any justification for generally barring them, the Army has refused to fully grant
1 See Siobhán O’Grady, Canada’s New Defense Minister Made His Own Gas Mask to Work With His Sikh Beard, Foreign Policy, Nov. 5, 2015, http://foreignpolicy.com/2015/11/05/canadasnew-defense-minister-made-his-own-gas-mask-to-work-with-his-sikh-beard/ (last visited Nov. 24, 2015).
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Captain Singh’s formal request for a religious accommodation that would allow him to continue serving as an Army engineer without violating his deeply held religious convictions.
14. Captain Singh has been granted a temporary accommodation to wear unshorn hair, a beard, and a turban, as required by his faith. That accommodation ends on March 31.
15. On Wednesday, February 24, 2016, after months of suggesting his accommodation would likely be made permanent—as has routinely happened for Sikh soldiers in the past—Defendants abruptly informed Captain Singh that, because of his Sikh religion, he must immediately undergo extraordinary, targeted, repetitive testing ostensibly to ensure he can properly wear a combat helmet and safety mask. See Exhibit 16 (Memorandum from Debra S. Wada, Assistant Secretary of the Army (Manpower and Reserve Affairs) to Commanding General, U.S. Army Corps of Engineers (Feb. 23, 2016)) (“the Wada Memorandum”).
16. Captain Singh was initially instructed to schedule his own gas mask fit testing, which was scheduled to take place at Fort Belvoir (Captain Singh’s home base) consistent with the Army’s standard practices and procedures (as outlined in A.R. 350-1). Brushing aside this standard gas mask testing—which is applied to all Army soldiers—Captain Singh was informed on the afternoon of Friday, February 26, that he was under orders to report early the next week, on Tuesday, March 1, for the helmet testing contemplated in the Wada Memorandum. Then at 8:00 PM that same evening (Friday, February 26), Captain Singh was ordered to report to Aberdeen Proving Grounds in Maryland on Tuesday, March 1, following the helmet testing at Fort Belvoir, where he would be sequestered for three days for safety-mask testing.
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17. No other soldiers in the Army have been treated in this manner or subjected to similar tests as a condition for remaining in the Army.
18. This discriminatory treatment is unfounded and violates the Army’s own regulations. 19. Moreover, it infringes Captain Singh’s free exercise and free speech rights secured to him by the Religious Freedom Restoration Act (RFRA) and the United States Constitution. 20. Captain Singh thus seeks declaratory and injunctive relief protecting him from being forced to choose between serving his country and remaining true to the core tenets of his faith.
JURISDICTION AND VENUE 21. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. 22. Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1).
IDENTIFICATION OF PARTIES 23. The Plaintiff, Captain Singh, is a practicing Sikh and a decorated member of the United States Army stationed at Fort Belvoir, Virginia. 24. Defendants are appointed officials of the United States government and United States governmental agencies responsible for the United States military and its grooming policies. 25. Defendant Ashton B. Carter is the Secretary of the United States Department of Defense. In this capacity, he has responsibility for the operation and management of the armed forces. Secretary Carter is sued in his official capacity only. 26. Defendant United States Department of Defense is an executive agency of the United States government and is responsible for the maintenance of the United States military.
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27. Defendant Patrick J. Murphy is the Acting Secretary of the United States Army and is responsible for the operation and management of the United States Army. Secretary Murphy is sued in his official capacity only.
28. Defendant Lieutenant General James C. McConville is the Deputy Chief of Staff, G-1, U.S. Army. In this capacity, he has responsibility for religious accommodations in the Army, including Captain Singh’s accommodation. General McConville is sued in his official capacity only.
29. Defendant Department of the Army is a department of the United States military and is responsible for the promulgation and administration of its own grooming policies and regulations.
FACTUAL ALLEGATIONS Captain Singh’s Faith 30. Sikhism is a monotheistic religion that originated in the fifteenth century in the Punjab region of South Asia. 31. While relatively young compared to other major world religions, it is the world’s fifth largest faith tradition with nearly 25 million adherents.2 32. There are approximately 500,000 Sikhs in the United States.3 33. The founder of the Sikh faith, Guru Nanak, was born in 1469 in Punjab, India. 34. The Sikh religion is monotheistic, believing in one God who is all loving, all pervading, and eternal. This God of love is obtained through grace and sought by service to mankind.
2 See The Pew Forum on Religion and Public Life, The Global Religious Landscape: A Report on the Size and Distribution of the World’s Major Religious Groups as of 2010, at 9 n.1 (2012), http://www.pewforum.org/files/2014/01/global-religion-full.pdf. 3 See S. Con. Res. 74, 107th Cong. (2001).
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35. Guru Nanak rejected the caste system, and declared all human beings, including women, to be equal in rights and responsibilities and ability to reach God. He taught that God was universal to all—not limited to any religion, nation, race, color, or gender.
36. Consistent with the teachings of the Sikh gurus, Sikhs wear external articles of faith to bind them to the beliefs of the religion. Unlike some other faiths, where only the clergy maintain religious articles on their person, all Sikhs are required to wear external articles of faith.
37. These articles of faith, such as unshorn hair (kesh) and the turban, distinguish a Sikh and have deep spiritual significance.
38. Maintaining uncut hair (including a beard) is an essential part of the Sikh way of life—one cannot be a practicing Sikh without abiding by this tenet of faith.
39. Guru Nanak started the practice, regarding it as living in harmony with the will of God. The Sikh Code of Conduct, called the Rehat Maryada, outlines the requirements for practicing the Sikh way of life.4
40. All Sikhs must follow the guidelines set forth in the Rehat Maryada. 41. The Rehat Maryada explicitly instructs that Sikhs must “[h]ave, on your person, all the time . . . the keshas (unshorn hair).” Exhibit 1 (excerpt of Rehat Maryada). The Rehat Maryada prohibits the removal of hair from the body as one of four major taboos. One of the other taboos on this list is adultery. That cutting one’s hair is a moral transgression as serious as committing adultery speaks to the immense significance of uncut hair in the Sikh religion.
4 Sikh Rehat Maryada in English, SGPC.net, http://new.sgpc.net/sikh-rehat-maryada-inenglish/ (last visited Nov. 25, 2015)
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42. The Rehat Maryada also mandates that Sikhs wear a turban which must always cover a Sikh’s head. The turban reminds a Sikh of his or her duty to maintain and uphold the core beliefs of the Sikh faith, which include working hard and honestly, sharing with the needy, and promoting equality and justice for all. When a Sikh wears a turban, the turban ceases to be simply a piece of cloth and becomes one and the same with the Sikh’s head.
43. Historically, uncut hair and turbans have been central features of the Sikh identity. For example, in the 18th century, Sikhs in South Asia were persecuted and forced to convert from their religion by political leaders. The method of forcing conversions was to remove a Sikh’s turban and cut off his or her hair.
44. As resistance to such forced conversions, many Sikhs chose death over having their turbans removed and hair shorn.
45. Since then, denying a Sikh the right to wear a turban and maintain unshorn hair has symbolized denying that person the right to belong to the Sikh faith, and is perceived as the most humiliating and hurtful physical injury that can be inflicted upon a Sikh.
Captain Singh’s Commitment to the Sikh Faith 46. Captain Singh was born in the Punjab region of India into an observant Sikh family. 47. From the time of his early childhood in India and after moving to the United States at age nine, he maintained unshorn hair covered with a patka, a small turban often worn by Sikh children. 48. When Captain Singh’s beard came in, his father taught him how to properly wrap and wear the turban.
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49. Throughout high school, Captain Singh maintained the Sikh articles of faith, wearing the turban and never cutting his hair or shaving.
50. Growing up, Captain Singh regularly attended the Sikh temple or gurdwara to hear preaching and to partake in langar.
51. Langar means “open kitchen” and is a form of communal dining that takes place in the gurdwaras. Individuals of any faith or no faith at all may participate. The food is simple vegetarian fare so that all may partake regardless of religious or other dietary restrictions. It is prepared by volunteer members of the Sikh community and served by them to participants who sit intermingled in rows on the floor.
52. Langar serves as a continuous reminder of the Sikh ethics of equality, generosity, inclusiveness, and care for the poor.
53. Regular participation in langar helped instill in Captain Singh the importance of hard work, a recognition of the good in others, and a willingness to sacrifice for the larger good. It also influenced his commitment to be a vegetarian. Though not required of Sikhs universally, Captain Singh believes that it is morally wrong to take the life of another creature simply for pleasure.
54. On Sundays, Captain Singh enjoyed listening to the preaching about Sikh scripture and history, and the musical recitations of Sikh scripture.
55. Captain Singh frequently heard stories of Sikhs who chose to die rather than remove their turban when subjected to forced conversions, and this theme became particularly poignant to him.
56. While remaining deeply connected to his Sikh heritage, Captain Singh thrived in his high school in Bellevue, Washington, earning excellent grades and participating on the soccer team and
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wrestling squad. He participated in student government, serving as president of his sophomore class and as student-body treasurer the following year.
57. As a senior, he was selected from his class of nearly 400 students to serve on a teen advisory council for United States Congressman David Reichert.
58. Through that point in his life, he never experienced any negative repercussions from anyone because of his religion.
59. He never anticipated that the United States Army would be the first to pressure him to abandon his articles of faith.
Decision to Join the Military 60. Service in armed forces has always been—and continues to be—a central part of the Sikh identity. The Sikh martial tradition dates back to the late 17th century and Guru Gobind Singh’s creation of the Khalsa, a spiritual order and army comprised of initiated Sikhs, to resist persecution by the Mughal Empire. Tales of Sikh courage and valor, as documented by the British, date back at least as far as their defeat of the Afghan Pathans in 1813 at the Battle of Attock.5 61. Sikh soldiers famously defeated the British at the Battle of Chillianwala in 1849 before being overpowered six weeks later by superior British weapons.6 Sikh soldiers soon became
5 Pico Iyer, The Lions of Punjab, Time, Nov. 12 1984, at 53, discussed in Rajdeep Singh Jolly, The Application of the Religious Freedom Restoration Act to Appearance Regulations That Presumptively Prohibit Observant Sikh Lawyers From Joining the U.S. Army Judge Advocate General Corps, 11 Chap. L. Rev. 155, 157 n.13 (2007). 6 Id.
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“among the sturdiest and trustiest men of the British army,”7 with a group of twenty-one Sikhs famously repulsing an attack by thousands of Afghans for six hours at the Battle of Saragarhi in 18978 and with approximately 100,000 Sikhs—a disproportionately high number among Indian volunteer soldiers —fighting for the British in World War I.9
62. Today observant Sikhs proudly serve with their articles of faith intact in militaries around the world, most notably in India, Canada, Australia, and the United Kingdom, among others, and also as United Nations Peacekeepers, often working closely with American troops in troubled regions. In fact, Canada’s recently appointed Minister of Defense, Lieutenant Colonel Harjit Sajjan, supported the U.S.-led coalition in Afghanistan and served as a special advisor to U.S. Army Lieutenant General James Terry, commander of the 10th Mountain Division.10
63. Captain Singh’s own great grandfather fought with the British-Indian Army in World War I, battling through Kuwait and into Iraq, where he was injured by a gunshot to the leg. He later also participated in the struggle for India’s independence.
64. Captain Singh’s father, in his young adulthood, sought to join the Indian Navy, although he was kept out, presumably by anti-Sikh sentiment that was prevalent at that time.
7 Id. 8 Sikhs Prove Their Valor, Twenty-one Men Hold Sarhargarti Police Post Against 1,000 Orakzais Over Six Hours, New York Times, Sept. 14, 1897. 9 Jolly, supra note 5, at 157. 10 See Christopher Guly, Defense Minister Harjit Singh Sajjan: A Sikh Soldier's Climb to the Canadian Cabinet, L.A. Times, Feb. 22, 2016, http://www.latimes.com/world/mexicoamericas/la-fg-canada-sajjan-profile-20160222-story.html.
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65. Familiar with this religious and family history, Captain Singh long desired to serve in the military.
66. Upon immigrating, Captain Singh developed a deep gratitude to the United States for granting his father political asylum and providing his family opportunities they would not have enjoyed in Punjab. Joining the Army seemed like the natural way to repay his country.
67. Captain Singh always assumed he would enter the Army as an enlisted soldier until a friend on the student council who was one year ahead of him in high school applied to the military academies. Learning for the first time about this opportunity, Captain Singh set his mind on attending West Point.
68. He ultimately received endorsements from Congressman David Reichert and Senator Maria Cantwell.
69. Well into the application process, it still had never occurred to Captain Singh that the Army would have a problem with his unshorn hair, beard and turban. At a recruiting event at the Seattle Convention Center, an officer from West Point casually mentioned the beard, joking that Captain Singh must be trying to grow it all the way out before he had to shave it. Captain Singh explained that he wore his beard for religious reasons. The officer indicated that he would look into whether an accommodation would be possible. When he later called and conveyed that an accommodation was not possible, Captain Singh realized for the first time that he faced a real dilemma.
70. Still not comprehending that he would be barred from serving his country because of his articles of faith, Captain Singh pressed forward with his application. Considering all the countries where faithful Sikhs serve in militaries around the world with their articles of faith intact, Captain
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Singh believed that a way would open for him to both serve his country and remain true to his beliefs. Even on Reception Day, when entering West Point as a new cadet, Captain Singh continued to make inquiries about a religious accommodation. He separately approached two Majors, both who gave vague responses, saying they would inquire and get back to him.
71. As the induction process continued, however, and before Captain Singh fully understood what was happening, he found himself in the barbershop with the other cadets to be trimmed and shaved.
72. Forced into the untenable position of having to violate his Sikh religious requirements or lose the opportunity to attend West Point and serve his country, and believing he had no other option, Captain Singh succumbed under pressure and made the difficult decision to remove his turban, cut his hair, and shave his beard.
73. Despite the intense physical rigor of his first weeks at West Point, most excruciating for Captain Singh was looking at himself in the mirror each morning to shave. He constantly regretted not having pursued his religious rights more aggressively.
74. While the demands of West Point forced him to focus on his training, he always knew he was violating his conscience and lying about who he really was. Experiencing significant shame and disappointment in himself, he committed to return to his articles of faith whenever the opportunity first arose.
Military Service 75. Notwithstanding the weight of his decision to compromise his Sikh religious practices, Captain Singh went on to serve his country with a deep commitment to service and excellence.
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76. He graduated from West Point in 2010, receiving his Bachelor of Science degree in electrical engineering with Honors. Exhibit 2 (Academic Record, United States Military Academy at West Point).
77. After graduation, Captain Singh attended the Officer’s Basic Course at Fort Leonard Wood, Missouri. He was assigned to Military Occupational Specialty 12A for engineering and was posted to Fort Lewis, Washington, as Assistant Brigade Engineer on the Brigade Combat Team.
78. During this time, Captain Singh received high praise from his commanders. Exhibit 3 (Evaluation Report for Period of Feb. 15, 2011 through Jan. 3, 2012). In particular, Captain Singh was noted to be “the best lieutenant in the Brigade S3 section and one of the top 3 on the Brigade Staff.” Id. at 2. While posted at Fort Lewis, Captain Singh “seized the opportunity to attend and graduate Ranger School,” with his commander noting that “[h]e will be an extraordinary platoon leader” who should be promoted ahead of his peers. Id. At Ranger School, Captain Singh declined to request a special vegetarian diet to accommodate his religious beliefs because he wanted to survive on the same rations as everyone else. Instead, he gave away the meat in his rations to other soldiers. Though he lost thirty pounds, he never compromised his religious beliefs.
79. Upon successfully completing Ranger School, Captain Singh was assigned as platoon leader for a 24-soldier Route Clearance Platoon within the Stryker Brigade Combat Team. Exhibit 4 (Officer Evaluation Report for Period of Jan. 4, 2012 through Jan. 3, 2013). In that capacity, Captain Singh was forward-deployed to Operation Enduring Freedom in Kandahar Province from April 2012 to January 2013.
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80. During his deployment, Captain Singh continued to receive the highest evaluations from his commanders:
1 LT Singh is the strongest engineer platoon leader in the battalion. Simmer deployed his Sapper platoon in a route clearance mission during OPERATION ENDURING FREEDOM in support of multiple battlespaces in Regional Command South clearing over 10,000 miles of road. He is an aggressive and meticulous leader who maintained high standards to impressive effect in combat. 1 LT Singh is a solid, unflappable performer who can be counted on in tough positions and arduous missions. Id. 81. In a subsequent Officer Evaluation Report, Captain Singh was “ranked number one of out of seven Officers” by his Company Commander, who also noted that as a “top performer, Simratpal makes any team he is on better. I would fight to serve with Simratpal again.” Exhibit 5 (Officer Evaluation Report for Period of Jan. 4, 2013 through Sept. 15, 2013), at 2. His LTC went on to note that CPT Singh’s performance “has been nothing short of superb through this rating period,” noting that his “ability to thrive in a dynamic and fluid situation make[s] him a vital asset to any team.” Id. 82. Upon returning from his deployment, and as a result of his “exceptional and meritorious service,” Captain Singh was awarded a Bronze Star Medal (“BSM”). Exhibit 6 (Bronze Star Medal Awarded to then-1LT Simratpal Singh). Specifically, Captain Singh was nominated for the Bronze Star for his leadership as patrol leader on “over 170 route clearance patrols throughout Kandahar Province in support of Combined Task Force Lancer,” “defense of FOB Frontenac during a coordinated and sustained enemy attack,” including leading his platoon to “suppress[] and eventually counterattack[] the heavily armed insurgents.” Id. at 3.
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83. Captain Singh also received an Army Achievement Medal in November 2013 for his performance during a joint training exercise with the South Korean Army. Exhibit 7 (The Army Achievement Medal Awarded to then-1LT Simratpal Singh (Nov. 5, 2013)).
84. Captain Singh’s exceptional performance continued following his return stateside, where he served as a Brigade Assistant S-4 for a rapidly deployable 4,100 Soldier Stryker Brigade Combat Team. In this role, he was recognized as “easily the best of four captains” that “has proven himself an invaluable asset to the team.” Exhibit 8 (Officer Evaluation Report for Period of Sept. 15, 2013, through Sept. 14, 2014), at 1. Captain Singh is viewed as “a top 10% officer” who is a “fit, talented leader with unlimited potential and a bright future.” Id. at 2.
85. At the same time, Captain Singh received an Army Commendation Medal for his service. Exhibit 9 (Army Commendation Medal (Nov. 17, 2014)).
86. In January 2015, Captain Singh attended and completed the Engineer Captain’s Career Course at Fort Leonard Wood while simultaneously volunteering to obtain a Master’s Degree in engineering. Exhibit 10 (Certificate of Achievement, U.S. Army Engineer School, FT Leonard Wood, MO (June 26, 2015)).
87. During this time period, he was noted to be a “highly skilled officer” who “displayed great leadership.” Exhibit 11 (CPT Simratpal Singh Service School Academic Evaluation Report for Period of Jan. 14, 2015, through June 26, 2015 (June 24, 2015)). It was also noted that “his presence and intellect greatly influenced his peers” and that he is “ready to command a company and will excel in any position of responsibility.” Id.
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88. Last spring, Captain Singh attended the Pentagon’s Second Annual Vaisakhi Celebration Event.11 This event, which celebrated one of the most significant holidays for Sikhs, included Sikh soldiers from various branches of the U.S. military. Id. The Pentagon’s deputy chaplain, Lieutenant Colonel Claude Brittian, noted the need to “stand up for the rights of others to celebrate in regards to their faith” and stated that Sikh soldiers in the U.S. military “who practice their faith should have the opportunity to share their faith.” Id.
89. At the event, Captain Singh met several Sikh soldiers who maintain their uncut hair and beards and wear turbans. Further convicted by seeing his fellow U.S. Army soldiers fully practicing their Sikh faith, and for the first time seeing a viable path to obtaining an accommodation, Captain Singh began taking steps towards requesting an exception through his chain-of-command.
90. In mid-October, Captain Singh completed his Master’s program and commenced on onemonth’s leave with orders to report to the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, on November 16.
91. Realizing that he needed to return to being fully observant of his Sikh articles of faith, and after religious consideration and consultation, Captain Singh concluded that this was the right time.
92. On October 16, 2015, Captain Singh informed his new immediate commander, Lieutenant Colonel Julie Balten, that he intended to report on November 16 wearing a turban and maintain
11 Lisa Ferdinando, Pentagon celebrates Sikh new year, Vaisakhi, Army News Service, May 4, 2015, http://www.army.mil/article/147837/Pentagon_celebrates_Sikh_new_year__Vaisakhi/ (last visited Nov. 24, 2015)
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unshorn hair and a beard. She expressed her view that this would have no adverse impact on Captain Singh’s ability to fulfill his responsibilities and promised to recommend that he be granted an accommodation.
93. The following day, Captain Singh submitted a letter to then-Secretary of the Army, John McHugh, and to then-Acting General Counsel for the Army, Robert Park, seeking assurance that he would not face disciplinary action as a result of his decision to maintain the Sikh articles of faith.
Effort to Obtain an Accommodation 94. With the understanding that an accommodation was viewed favorably and was being expedited, Captain Singh twice used personal leave to extend his report date, first to November 30 and then to December 14, to give the Army adequate opportunity to respond to his request. 95. On December 8, Defendants issued a thirty-day accommodation, allowing Captain Singh to return to work while the permanent accommodation was presumably being finalized. 96. Then on January 8, Defendants extended the temporary accommodation until March 31. 97. Wishing to proceed in good faith and to avoid legal conflict, and having received no indication that the accommodation would not be made permanent, Captain Singh again agreed to the extension without pursuing a legal remedy. 98. Defendants were well aware that Captain Singh could not wait until the deadline for a final answer on his request for accommodation. Once the temporary accommodation expired, Captain Singh’s unshorn hair, turban, and beard would be in violation of the Uniform Code of Military Justice, exposing him to career-ending penalties for living his faith. Through his counsel, Captain
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Singh thus repeatedly made clear that he would need at least three weeks to seek injunctive relief should the accommodation be denied.
99. Then, on February 24, just over a month before his temporary accommodation expired, Defendants abruptly escalated matters by sending Captain Singh a letter stating he would have to undergo rigorous safety testing because of his religion. Exhibit 16.
100. With respect to his helmet, Captain Singh was told he would have to be “evaluated” by a “technical expert” to determine whether he could safely “wear a patka” (a religious head covering worn beneath the turban), or whether he must “modify the length” or “bulk” of his hair, which are acts forbidden by his religion. Id.
101. With respect to his safety mask, Captain Singh was told he would have to undergo a series of tests, over multiple days, until he could “achieve a protection factor (PF) greater than 6667 in three of five successive tests.” Id.
102. Captain Singh was initially provided contact information for scheduling the evaluations on his own. Id.
103. But on the afternoon of Friday, February 26, he was ordered to report to his normal post for helmet testing the morning of Tuesday, March 1.
104. Later that evening, around 8:00 PM, he received supplemental orders to report to the Aberdeen Proving Ground in Maryland after his helmet testing for several days of safety mask evaluations.
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105. No other soldiers in even remotely comparable circumstances have been treated in such a discriminatory fashion. No soldiers undergo evaluation for helmet fit. Kalsi Decl. ¶¶ 15-16; Lamba Decl. ¶¶ 21-23.
106. Rather, soldiers are left to freely try on different helmets and make their own assessment of fit. Kalsi Decl. ¶¶ 15-16; Lamba Decl. ¶¶ 21-23.
107. Soldiers frequently adjust, remove, or add padding to their helmets on their own, again with no external evaluation, to ensure a personally satisfying fit. Kalsi Decl. ¶ 15; Lamba Decl. ¶ 22.
108. Captain Singh and others who have served in the Army for years have never even heard of getting an “expert” evaluation of helmet fit. Khalsa Decl. ¶¶ 24-25; Lamba Decl. ¶¶ 22-24.
109. Even other Sikhs who have recently served in the Army with unshorn hair were never required to undergo evaluations to determine if they could safely wear their helmets. Kalsi Decl. ¶¶ 13-16; Lamba Decl. ¶¶ 21-23 Khalsa Decl. ¶¶ 24-25.
110. Similarly, with respect to safety masks, there are no hard-and-fast rules regarding how masks must “fit” for a soldier to be in the Army. The Army’s training guidance speaks only in terms of “protective mask confidence,” providing that commanders are required to conduct “a mask confidence exercise annually and prior to deployment.” AR 350-1, § G-27(i).
111. In reality, soldiers may go long periods of time without being subjected to mask-fit evaluations. Before the Wada memo, in his nearly ten years in the Army, Captain Singh had only undergone one mask exercise, and it was not a condition of his employment in the Army.
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112. That exercise comprised sealing his mask, entering a gas chamber, removing the mask for one minute, and then replacing it.
113. This is consistent with the experience of other soldiers. Lamba Decl. ¶¶ 11-12, 20-23; Kalsi Decl. ¶¶ 11-14; Khalsa Decl. ¶¶ 24-27.
114. None of the Sikh soldiers with fully grown beards have had any difficulty passing the standard safety mask exercises. Lamba Decl. ¶¶ 11-12, 20-23 (stating that he would go early into the gas chamber and stay longer in it to prove the effectiveness of his protective mask seal); Kalsi Decl. ¶¶ 11-14 (stating that he and other Sikh soldiers successfully passed standard protective mask testing); Khalsa Decl. ¶¶ 24-27 (stating that the Navy permitted sailors cruising at sea to wear beards as long as they were more than one inch, because such beards could maintain an oxygenmask seal).
115. None were ever subjected to extensive testing because of their religion. Lamba Decl. ¶¶ 21-23; Kalsi Decl. ¶¶ 11-14; Khalsa Decl. ¶¶ 24-26.
116. Similarly, soldiers who maintain beards for medical reasons are not subject to any special testing and are not restricted in their duties because of their beards. See, e.g., Kalsi Decl. ¶¶ 11-14 (stating that the Special Forces soldiers at his Forward Operating Base in Afghanistan grew out their hair and beards but were not subject to non-standard protective mask testing).
117. Indeed, the Technical Bulletin for medical specifically provides that a soldier with a medical beard cannot be required to shave, unless his “unit is in, or about to enter, a situation where use of a protective mask is required and where inability to safely use the mask could endanger the Soldier and the unit.” Technical Bulletin Med. 287 § 2-6c(2),
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http://armypubs.army.mil/med/DR_pubs/dr_a/pdf/tbmed287.pdf. The Bulletin emphasizes that the authority to force a shave cannot be used “for maneuvers and other tactical simulations. It should only be used when there is an actual need to wear the protective mask in a real tactical operation.” Id. § 2-6b(2), (emphasis added).
The Army’s regulations 118. The Army’s uniform regulations allow soldiers to wear religious headgear while in uniform if the headgear is (1) “subdued in color,” (2) “can be completely covered by standard military headgear,” (3) “bears no writing, symbols, or pictures,” and (4) “does not interfere with the wear or proper functioning of protective clothing or equipment.” Army Reg. 600-20, § 56h(4)(g), http://www.apd.army.mil/pdffiles/r600_20.pdf. 119. Captain Singh’s turban would comply with all these requirements except that a matching turban would replace his standard issue headgear. Captain Singh will wear his unshorn hair neatly wrapped into his turban, well above the edge of his collar. 120. With respect to facial hair, Army regulations allow sideburns and a mustache as long as they are “neatly trimmed, tapered, and tidy.” Army Reg. 670-1, § 3-2a(2)(a)-(b), http://www.apd.army.mil/pdffiles/r670_1.pdf. 121. Although Captain Singh’s sideburns, mustache, and beard cannot be trimmed, they would be kept neat and tidy, with his beard tied and tucked close to his face.
a. In non-field Garrison settings, Captain Singh will wear a turban made of ACU camouflage material to match his uniform.
b. In field settings, Captain Singh will wear a field turban made of ACU camouflage material to match his uniform.
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c. Captain Singh will wear his Kevlar helmet using the field turban or an ACU-pattern “patka” (small turban).

d. In settings where his Class A uniform is appropriate, Captain Singh will wear a black turban to match black standard-issue berets worn with Class A uniforms.

122. Department of Defense and Army regulations contemplate religious exceptions to the

grooming policy. Department of Defense Instruction 1300.17 expressly provides that “the DoD

places a high value on the rights of members of the Military Services to observe the tenets of their

respective

religions.”

Dep’t

of

Def.

Instruction

1300.17(4)(a),

http://www.dtic.mil/whs/directives/corres/pdf/130017p.pdf. Thus, it promises that “[r]equests for

religious accommodation will be resolved in a timely manner and will be approved,” so long as

they do not “adversely affect mission accomplishment, including military readiness, unit cohesion,

good order, discipline, and health and safety.” Dep’t of Def. Instruction 1300.17(4)(e).

123. The process for obtaining an accommodation, however, is onerous.

124. In the Army, only a Deputy Chief of Staff at the G-1 level can grant a religious

accommodation. Dep’t of Def. Instruction 1300.17(4)(f)(2)(a); AR 600-21, § 5-6i(1). The request,

however, must first be submitted to the soldier’s immediate commander, who has no authority to

grant or deny uniform and grooming requests, but has “ten working days” to make a

recommendation to the G-1. Army Reg. 600-20, § 5-6i(2). The soldier must then obtain review by

the unit chaplain and legal officer before appealing up through each level of command to the G-1.

§ 5-6i(5)-(7). Each officer up the chain can again make recommendations, but has no authority to

grant or deny the request. Id. § 5-6i(1). Once the first appeal of the chain is submitted, the

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regulations allow thirty days for request to make its way up to the G-1. Id. § 5-6i(11). The G-1 then has another thirty days to make a final decision. Id. § 5-6i(10).
125. Thus, depending on how long it takes to obtain the endorsements of unit chaplain and legal officer, it can easily take ninety days or more for the accommodation to be approved.
126. During this time, the person requesting the accommodation is required to comply with the uniform and grooming regulations, even if doing so violates their religious beliefs. Dep’t of Def. Instruction 1300.17(4)(g) (“Service members . . . will comply with the policy, practice, or duty from which they are requesting accommodation . . . unless and until the request is approved.”); Army Reg. 600-20, § 5-6i(1) (same). But Army policy and Congressional guidance has been trending toward eliminating the requirement that soldiers be forced to violate their faith while accommodation requests are pending. Exhibit 15 (USAREC Message 15-032) (policy allowing incoming soldiers and officers to maintain their articles of faith while awaiting accommodation determinations).
127. In contrast, soldiers who need a medical exception for a beard can get one by having their doctor enter a “permanent profile” in their file, which is only reassessed annually. Techincal Bulletin Med 287 § 2-6b(2), http://armypubs.army.mil/med/DR_pubs/dr_a/pdf/tbmed287.pdf.
128. The Technical Bulletin for medical exceptions acknowledges that “[t]he existence of a beard does not prevent performance of most military duties.” Id. § 2-6c(1).
129. Therefore, the Technical Bulletin continues, “the fact that a profile is awarded authorizing the growth of a beard should not ordinarily require any functional limitations requiring a change or limitation in the performance of military duties.” Id.
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130. A soldier with a medical beard exception cannot be required to shave, unless his “unit is in, or about to enter, a situation where use of a protective mask is required and where inability to safely use the mask could endanger the Soldier and the unit.” Id. § 2-6c(2). This authority cannot be used “for maneuvers and other tactical simulations. It should only be used when there is an actual need to wear the protective mask in a real tactical operation.” Id.
131. Since 2007, the Army has authorized “at least 49,690 permanent shaving profiles and 57,616 temporary shaving profiles.” Singh v. McHugh, 109 F. Supp. 3d 72, 78 (D.D.C. 2015). This includes “not only enlisted men but officers bound to ensure that the men who serve under them are clean-shaven.” Id.
132. In the Singh v. McHugh litigation, the Army did not “claim[] or show[] that even one of the more than 100,000 soldiers who have been permitted to grow a beard since 2007—including many who have served in deployed environments—have been ordered to shave it for any reason.” Singh, 109 F. Supp. 3d at 96.
133. Indeed, the Army admitted that it “does not always enforce grooming policies pertaining to beards” even “when operational necessity requires.” Id. at 95 n.17.
134. This flexible treatment is evident from the experience of many Special Forces soldiers who served in Afghanistan while growing full beards.
Other Sikhs in the Army 135. Captain Singh would not be the first observant Sikh to serve in the military. 136. Indeed, Sikhs proudly served in the U.S. Army without impediment during the Vietnam War and prior conflicts dating back to World War I.
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137. Around 1981, however, military policy was changed to prohibit exemptions to the uniform requirements for visible articles of faith. While some exceptions subsequently were made for the Jewish yarmulke, the general rule was that turban-wearing Sikhs maintaining unshorn hair and beards were disallowed from serving. See Dep’t of Def. Instruction of Feb, 3, 1988, 1330.17; Army Reg. 600-20 §§ 5-6 (4)(g) (2009) (“The Army does not accommodate exceptions to personal grooming standards for religious reasons . . . .”).
138. On information and belief, many Sikhs who were already in the Army were grandfathered under the 1981 policy change and allowed to continue their service.
139. One of these soldiers, Colonel Gopal S. Khalsa, served in the Special Forces Unit for ten years on Parachute Status and as a Battalion Commander overseeing an 800-person intelligence group. Khalsa Decl. ¶¶ 12-13, 17. He received a Meritorious Service Medal and Silver Oak Leaf Cluster Award, among many other honors, and in 2004, was inducted into the Officer Candidate School Hall of Fame. Khalsa Decl. ¶¶ 8, 21.
140. Another Sikh soldier, Sergeant Sevak Singh Kroesen, was attached to the Signal Company, 11th Special Forces Group, after which he successfully completed airborne (paratrooper) and Radio Teletype Transmission Operator training. He then completed his Special Forces Qualification Courses and became a Special Forces Communications Sergeant. Sergeant Kroesen subsequently completed his schooling, training, and missions around the world, all with honor and distinction. He was honorably discharged from active duty in 1991.
141. Sergeant Kirnbir Singh Grewal served in the U.S. Army from 1977 to 1984. Throughout his time in the military, he used the same standard-issue gas mask and helmet as other members
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of the Army. Indeed, his responsibilities included teaching other soldiers to use protective gear to survive nuclear and biological warfare.
142. These and other Sikh soldiers served with distinction, all while maintaining their Sikh articles of faith.
143. Over the last six years, three other Sikhs have been granted religious accommodations, allowing them to serve in the Army with their articles of faith intact.
144. The first, Corporal Simran Preet S. Lamba, enlisted in August 2010. Fluent in Punjabi and Hindi, he was recruited through the MAVNI program for his cultural and language skills. He served in a medical battalion as a Soldier Medic and was recognized as a “tremendous Soldier” who “had an amazing impact on his peers and supervisors.” In June 2014, he received an Army Commendation Medal for his selfless service and dedication to duty. He is currently in the Individual Ready Reserve. Exhibit 12; see also Lamba Decl.
145. Major Tejdeep S. Rattan, a dentist, entered active duty in January 2010 after receiving a religious accommodation. In 2011, he was deployed to Afghanistan where he volunteered to serve in a remote forward operating base. His superiors have noted that he “wears the uniform with pride”; has “[m]ilitary bearing” that is “beyond reproach”; is a “charismatic officer who leads from the front” and “serves as a great mentor for less experienced officers”; and “[i]nspires, motivates, and encourages subordinates.” Exhibit 13 (Major Rattan Officer Evaluation Report from 2014).
146. Finally, Major Kamaljeet S. Kalsi began active duty in June 2010. He was also deployed to Afghanistan in 2011 and was awarded a Bronze Star Medal upon his return for his exceptional service. His superiors have noted that he has “consistently demonstrated a strong commitment to
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improving Army Medicine,” “exceeded all expectations,” and “possesses absolutely unlimited potential as a leader.” Exhibit 14 at 2 (Major Kalsi Officer Evaluation Report from 2011). He is currently in the U.S. Army Reserve Officer Corps.
147. The Sikh articles of faith of these three recently accommodated U.S. Army soldiers in no way impeded their military service—even while deployed abroad in hostile territory.
148. The government thus has no interest in excluding Sikhs from the U.S. military, much less a compelling one.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 149. Captain Singh incorporates by reference all preceding paragraphs. 150. Captain Singh’s sincerely-held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these beliefs is a religious exercise. 151. The Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise. 152. The Army’s discriminatory testing and regulations create government-imposed coercive pressure on Captain Singh to change or violate his religious beliefs. 153. The Army’s discriminatory testing and regulations chill Captain Singh’s religious exercise.
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Case 1:16-cv-00399-BAH Document 1 Filed 02/29/16 Page 30 of 39
154. The Army’s discriminatory testing and regulations impose a substantial burden on Captain Singh’s religious exercise.
155. The Army’s discriminatory testing and regulations do not further a compelling governmental interest as applied to Captain Singh.
156. Applying the Army’s discriminatory testing and regulations to Captain Singh is not the least restrictive means of furthering any compelling governmental interest.
157. The Army’s discriminatory testing and enforcement of its grooming and personal appearance regulations thus violate rights secured to Captain Singh by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq.
158. Absent injunctive and declaratory relief, Captain Singh has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Burden on Religious Exercise 159. Captain Singh incorporates by reference all preceding paragraphs. 160. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 161. The Army’s grooming and personal appearance regulations are not neutral. 162. The heightened testing imposed on Captain Singh is not neutral. 163. The Army’s grooming and personal appearance regulations are not generally applicable.
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164. The heightened testing imposed on Captain Singh is not generally applicable. 165. Defendants have created categorical exemptions and individualized exemptions from its grooming and personal appearance regulations. 166. The Army’s discriminatory testing and grooming and personal appearance regulations create government-imposed coercive pressure on Captain Singh to change or violate his religious beliefs. 167. The Army’s discriminatory testing and regulations chill Captain Singh’s religious exercise. 168. The Army’s discriminatory testing and regulations expose Captain Singh to substantial consequences for his religious exercise, including military discipline and the loss of his career. 169. The Army’s discriminatory testing and regulations burden Captain Singh’s religious exercise. 170. The Army’s discriminatory testing and regulations further no compelling governmental interest. 171. The Army’s discriminatory testing and regulations do not further a compelling governmental interest and are not the least restrictive means of furthering Defendants’ stated interests. 172. The Army’s discriminatory testing and its enforcement of its grooming and personal appearance regulations thus violate Captain Singh’s rights as secured to him by the Free Exercise Clause of the First Amendment of the United States Constitution.
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173. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 174. Captain Singh incorporates by reference all preceding paragraphs. 175. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 176. Historically, the Army has allowed Sikhs to serve in the military with their articles of faith intact. 177. In the past six years the Army has admitted at least three other observant Sikhs, allowing them to serve in the military without violating their religious convictions. 178. Defendants subjected Captain Singh to rigorous testing that it has not subjected to any other soldiers, including other observant Sikhs instead of granting him an accommodation. 179. Despite being informed in detail of Captain Singh’s beliefs, Defendants declined to give him an accommodation that would allow him to comply both with his beliefs and the Army’s regulations. 180. Defendants have no legitimate basis for denying Captain Singh a religious accommodation. 181. Defendants denied Captain Singh an accommodation because of his religion.
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182. Defendants targeted Captain Singh for heightened scrutiny because he requested an accommodation for his religious beliefs.
183. The Army’s regulations and the threatened enforcement of the regulations against Captain Singh thus violate his rights under the Free Exercise Clause of the First Amendment of the United States Constitution.
184. Absent injunctive and declaratory relief against the Mandate, Captain Singh has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech 185. Captain Singh incorporates by reference all preceding paragraphs. 186. The Army’s regulations prohibit Captain Singh from expressing his faith through wearing his turban, wearing uncut hair, and maintaining a beard. 187. The Army’s discriminatory testing and regulations place a chilling effect on Captain Singh’s speech. 188. The Army’s discriminatory testing and regulations constitute content discrimination. 189. The Army’s discriminatory testing and regulations constitute viewpoint discrimination. 190. As applied to Captain Singh, the Army’s discriminatory testing and grooming and personal appearance regulations are not necessary for good order, discipline or national security and do not satisfy strict scrutiny.
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191. The Army’s discriminatory testing and its enforcement of its grooming and personal appearance regulations against Captain Singh thus his rights under the Free Speech Clause of the First Amendment of the United States Constitution.
192. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT V Violation of the Fifth Amendment to the United States Constitution
Due Process 193. Captain Singh incorporates by reference all preceding paragraphs. 194. Free exercise of religion is a fundamental right. 195. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 196. Captain Singh’s fundamental right to engage in religious exercise has been burdened by the Army’s regulations and its denial of a religious accommodation. 197. The Army’s discriminatory testing and enforcement of its grooming and personal appearance regulations against Captain Singh thus violate his rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. 198. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
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COUNT VI Violation of the Fifth Amendment to the United States Constitution
Equal Protection 199. Captain Singh incorporates by reference all preceding paragraphs. 200. Other military service members similarly situated to Captain Singh have been granted accommodations for their religious exercise. 201. The Army accommodates other types of personal expression of other service members. 202. The Army accommodates the grooming and attire preferences or needs of other service members. 203. The Army does not make these accommodations subject to heightened levels of testing. 204. The Army’s discriminatory testing and its enforcement of its grooming and personal appearance regulations against Captain Singh thus violate his rights under the Equal Protection Clause of the Fifth Amendment to the United States Constitution. 205. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT VII Violation of the Fifth Amendment to the United States Constitution
Procedural Due Process 206. Captain Singh incorporates by reference all preceding paragraphs. 207. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban or cutting his hair or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise.
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208. Enforcement of the Army’s regulations against Captain Singh would result in the loss of his livelihood as a soldier and violate his procedural due process rights by wrongfully impairing his property and liberty interests.
209. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Captain Singh requests that the Court:
a. Declare that the Religious Freedom Restoration Act requires the Army to cease discriminating against Captain Singh and accommodate his religious exercise in maintaining uncut hair and a beard and wearing a turban;
b. Declare that the First Amendment of the United States Constitution requires the Army to cease discriminating against Captain Singh and accommodate his religious exercise in maintaining uncut hair and a beard and wearing a turban.
c. Declare that the Fifth Amendment of the United States Constitution requires Defendants to cease discriminating against Captain Singh and accommodate Captain Singh’s religious exercise in maintaining uncut hair and a beard and wearing a turban.
d. Issue a permanent injunction (1) enjoining Defendants from subjecting Captain Singh to non-standard, discriminatory testing; (2) enjoining Defendants from enforcing the Army’s grooming and personal appearance regulations against Captain Singh insofar as they require him to cut his hair, shave his beard, or cease wearing his turban; (3) ordering Defendants to permit Captain Singh to continuing serving in the Army
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Case 1:16-cv-00399-BAH Document 1 Filed 02/29/16 Page 37 of 39 without regard to his unshorn hair and beard and a turban; and (4) ordering that the injunction will apply to all Army posts that Captain Singh will hold in the future, unless the Army makes an individualized showing of a compelling governmental interest that cannot be satisfied by less restrictive means;
e. Nominal damages. f. Award Captain Singh the costs of this action and reasonable attorney fees; and g. Award such other and further relief as it deems equitable and just.
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Case 1:16-cv-00399-BAH Document 1 Filed 02/29/16 Page 39 of 39

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIMRATPAL SINGH, Plaintiff, v.
ASHTON B. CARTER, in his official capacity as Secretary of Defense, et al.,
Defendants.

Civil Action No. 16-399 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION Pending before the Court is a motion for a temporary restraining order to enjoin an order from the United States Army’s senior command to the plaintiff, Captain Simratpal Singh, a decorated Sikh Army officer, requiring him to undergo several days of specialized testing, under expert supervision, at a cost of over $32,000, with his “army combat helmet” and “army protective mask” for the purpose of ensuring that his Sikh articles of faith, namely a cloth head covering and unshorn hair and beard, will not interfere with the helmet’s ability “to withstand ballistic and blunt forces” and the mask’s ability “to provide protection from toxic chemical and biological agents.” At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer. Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing. In fact, just this week, the plaintiff, who maintains the Sikh articles of faith, passed the standard
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gas mask test administered to his unit and given routinely to soldiers. Nonetheless, the plaintiff has been ordered to undergo additional specialized testing as part of the Army’s review of his request for a religious accommodation and exception to the Army’s regulations regarding grooming and appearance. As the Supreme Court has stressed, in evaluating claims of discriminatory governmental action implicating the important First Amendment right to the Free Exercise of religion, “context matters.” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)); see Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) (Sotomayor, J., concurring) (“Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson that ‘context matters’ in the application of [statutes protecting religious exercise] . . . .”).
Courts should be reluctant, as the defendants point out, “to interfere with legitimate Army matters,” Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (quoting Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953)), since “great deference” should be given “to the professional judgment of military authorities concerning the relative importance of a particular military interest,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Chappell v. Wallace, 462 U.S. 296, 300 (1983) (“Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment.”); New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997) (“[T]he military justice system must remain free from undue interference, because the military is a specialized society separate from civilian society with laws and traditions of its own developed during its long history.” (internal quotation omitted) (quoting Schlesinger v. Councilman, 420 U.S. 738,
2

757 (1975)). At the same time, the Supreme Court “has never held . . . that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service,” Chappell, 462 U.S. at 304, and “military interests do not always trump other considerations,” Winter, 555 U.S. at 26. The context of this case raises such significant questions about the lawfulness of the Army command’s order to the plaintiff to undergo specialized testing that, pursuant to the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq., judicial intervention is required. I. BACKGROUND
The plaintiff is an honors West Point graduate, with an advanced Master’s degree in engineering, a Ranger, and a Bronze Star recipient for his service while being forward-deployed to Operation Enduring Freedom in Kandahar Province, Afghanistan. Verified Compl. (“Compl.”) ¶¶ 76, 79, 82, 90, ECF No. 1; Compl. Ex. 2 (West Point academic record), ECF No. 1-1; Compl. Ex. 6 (Bronze Star Medal documentation), ECF No. 1-1. He is also a practicing Sikh, Compl. ¶¶ 46–56, a religion that requires him to wear external “articles of faith,” including unshorn hair (kesh), a beard, and a turban (dastaar) or smaller traditional cloth head covering (patka), id. ¶¶ 2–4, 36–42, 100. As a Captain in the United States Army, the plaintiff is bound by the Uniform Code of Military Justice, which requires hairstyle and grooming standards in conflict with his faith. See generally U.S. Dep’t of Army, Reg. 670–1, Wear and Appearance of Army Uniforms and Insignia (Apr. 10, 2015).
Throughout his youth, the plaintiff maintained the Sikh articles of faith, wearing a turban and never cutting his hair or shaving. Compl. ¶¶ 47–50. Upon graduation from high school, however, the plaintiff, who long desired to serve in the military, attained the opportunity to attend the United States Military Academy at West Point. Id. ¶¶ 67–70. Before his induction
3

into West Point, the plaintiff inquired about obtaining a religious accommodation for his articles of faith from Army personnel who “expressed doubt” and “gave vague responses.” Pl.’s Combined Mem. Supp. Appl. TRO & Appl. Prelim. Inj. (“Pl.’s Mem.”) at 8–9, ECF No. 2-1; see Compl. ¶¶ 69–70. During the induction process, “and before Captain Singh fully understood what was happening, he found himself in the barbershop with the other cadets to be trimmed and shaved.” Compl. ¶ 71. “[B]elieving he had no other option” but to risk losing the opportunity to attend West Point and serve this country, the plaintiff “succumbed under pressure and made the difficult decision to remove his turban, cut his hair, and shave his beard.” Id. ¶ 72.
Though “[e]xperiencing significant shame and disappointment in himself” for violating the Sikh religious requirements, id. ¶ 74, the plaintiff graduated from West Point in 2010 with a B.S. degree in electrical engineering with Honors, id. ¶ 76; see Compl. Ex. 2, and, thereafter, has continuously served this country with notable excellence. He has received high praise from his commanders, Compl. ¶¶ 78, 80–81, attended and graduated from Ranger School, id. ¶¶ 78–79, and served as platoon leader in a deployment to Afghanistan from April 2012 to January 2013, id. ¶¶ 79–80, for which “exceptional and meritorious service” the plaintiff was awarded a Bronze Star Medal, id. ¶ 82; see Compl. Ex. 6. In November 2013, the plaintiff received an Army Achievement Medal for his performance during a joint training exercise with the South Korean Army, Compl. ¶ 83; see Compl. Ex. 7 (Army Achievement Medal documentation), ECF No. 1-1, and, in November 2014, he received an Army Commendation Medal for his service as a Brigade Assistant for a “rapidly deployable . . . Combat Team,” Compl. ¶¶ 84–85; see Compl. Ex. 9 (Army Commendation Medal documentation), ECF No. 1-1.
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In the Spring of 2015, the plaintiff met several Sikh soldiers who maintain their articles of faith at a celebration of the Sikh New Year hosted by the Pentagon and, “for the first time,” saw “a viable path” to obtaining a religious accommodation. Compl. ¶¶ 88–89.
Later that year, on October 16, 2015, around the time the plaintiff completed a Master’s degree in engineering and began a one-month leave, the plaintiff informed his new immediate commander, Lieutenant Colonel (“LTC”) Julie Balten, that he intended to report to his nextordered post, the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, on the date ordered, November 16, 2015, donning his articles of faith—wearing a turban, unshorn hair, and a beard. Id. ¶¶ 90–92. LTC Balten represented to the plaintiff that his articles of faith “would have no adverse impact on [his] ability to fulfill his responsibilities and promised to recommend that he be granted an accommodation.” Id. ¶ 92. Shortly thereafter, on October 21, 2015, the plaintiff submitted a “Request for Religious Accommodation and Exception to Wear and Appearance Regulations Pursuant to AR 600-20 and AR 670-1” (“Pl.’s Request”), Defs.’ Opp’n to Pl.’s Mot. TRO (“Defs.’ Opp’n”), Appendix (“Defs.’ App.”) at A19, Pl.’s Request at 1, ECF No. 9-1, pursuant to Army Regulation 600-20, which provides that “[i]n accordance with [RFRA] . . . , the Army will approve requests for accommodation of religious practices unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, good order, discipline, safety, and/or health,” U.S. Dep’t of Army, Reg. 600– 20, Army Command Policy (Nov. 6, 2014), ch. 5–6(a). In his request, the plaintiff detailed how he would “conform [his] religious requirements in a way that ensures consistency with the Army’s need to maintain uniformity and safety standards,” including maintaining his “hair and beard in a neat and conservative manner at all times;” wearing a turban in non-field and field settings in a matching camouflage material to his uniform, or a “subdued black turban with the
5

Class A uniform whenever required;” and wearing a patka or small turban with his Kevlar helmet. Pl.’s Request at 2–3.
Due to delays in receiving any response to this religious accommodation request, the plaintiff twice used personal leave to extend his report date to December 14, 2015. Compl. ¶ 94. Finally, on or about December 9, 2015, Debra S. Wada, the Assistant Secretary of the Army (“ASA”) for Manpower and Reserve Affairs since October 2014, who is “responsible for overseeing the implementation and execution of the Army’s policy for accommodating religious practices and ensuring compliance with the law and DoD policy regarding religious practices,” Defs.’ App. at A1, Decl. of Debra S. Wada (Feb. 29, 2016) (“Wada Decl.”) ¶ 1, issued a temporary, “interim accommodation” to the plaintiff granting him permission to wear his articles of faith until January 8, 2016, at which time ASA Wada indicated she would provide the plaintiff with a final decision, Defs. App. at A18; see Compl. ¶ 95. On January 8, 2016, ASA Wada extended the plaintiff’s interim accommodation until March 31, 2016, “at which time [she] expect[s] to provide [the plaintiff] with [her] decision.” Defs.’ App. at A17; see Compl. ¶ 96.
On February 23, 2016, ASA Wada requested “additional information concerning the compatibility of [the plaintiff’s] turban, hair, and beard with U.S. Army protective equipment.” Defs.’ App. at A14, Mem. from Debra S. Wada (Feb. 23, 2016) (“Wada Mem.”) ¶ 2; Compl. Ex. 16 (Wada Mem.) ¶ 2, ECF No. 1-1. To gather the requested “additional information,” ASA Wada ordered the plaintiff, first, to be fitted with an Army Combat Helmet (“ACH”) “by a technical expert,” who “should evaluate whether CPT Singh can safely wear a patka under the ACH” and “determine whether and to what extent CPT Singh must modify the length, bulk, or placement of his hair in order to obtain a proper fit and to ensure the head protection coverage area is not reduced.” Wada Mem. ¶ 3. ASA Wada ordered the plaintiff then “to be fitted with a
6

protective mask by a technical expert” and evaluated using a corn oil aerosol test, id. ¶ 4(a), one of three types of mask evaluation procedures used by the Army, Defs.’ App. at A6, Decl. of Alex G. Pappas (Feb. 29, 2016) (“Pappas Decl.”) ¶ 3. ASA Wada ordered the plaintiff to undergo the corn oil aerosol test using four types of Army masks, each under two different types of conditions: first, “without any type of gel, oil, or lotion” in the plaintiff’s hair or beard and, if the plaintiff cannot achieve a certain level of protection “in three of five successive tests” with any mask, second, with “a personally-procured hair gel or product, such as Vaseline, to further conform his hair to the contours of his face.” Wada Mem. ¶ 4(a)–(b). ASA Wada requested the testing results be provided to her prior to March 15, 2016, “[t]o facilitate timely action” on the plaintiff’s religious accommodation request. Id. ¶ 6.
The plaintiff was advised of ASA Wada’s memorandum requiring him to undergo the specialized testing the following day. Decl. of Simratpal Singh Supp. TRO / Mot. Prelim. Inj. (Mar. 1, 2016) (“Pl.’s Decl.”) ¶ 3, ECF No. 16-2. On the afternoon of Friday, February 26, 2016, the plaintiff was ordered to report to his normal duty post for helmet testing on the morning of March 1, 2016, and for the “comprehensive individual gas mask testing” later this same week. Id. at ¶ 9; Compl. ¶ 103; Pl.’s Mem. at 13; Defs.’ Opp’n at 3. Later in the evening of February 26, 2016, the plaintiff was ordered by his immediate commanding officer, LTC Balten, to report, after the March 1, 2016 helmet testing, to Aberdeen Proving Ground in Maryland for three days of safety-mask testing, which LTC Balten indicated would cost approximately $33,000. Pl.’s Decl. ¶ 10; Defs.’ Notice, Ex. at 3, ECF No. 13 (Feb. 26, 2016 email from Colonel (“COL”) Michael Peloquin to COL Peter Helmlinger, stating that the gas mask test “[i]nvolves 3 days of testing at a cost of $32,925” and noting concern about completion date “if ECBC [the testing center] must conduct significant analysis in the
7

development of its test report”). She also told the plaintiff that her commanding officer wanted the plaintiff to be escorted to the Aberdeen Proving Ground from Fort Belvoir, a circumstance normally associated with “soldiers they mistrust.” Pl.’s Decl. ¶ 12; see Defs.’ Notice, Ex. at 2 (Feb. 26, 2016 email from COL Helmlinger to LTC Balten, stating “I recommend you also send a more senior escort from the 249th to travel with [plaintiff] and observe the training” and, if he is sent “on his own,” directing LTC Balten to “provide him with very clear written counseling/instructions as to the purpose of the protective mask testing and his requirements to comply with the experts”). LTC Balten was subsequently advised that her commanding officer had been advised by “USACE Chief Counsel” that verbal, rather than written instructions would be sufficient. Defs.’ Notice, Ex. at 1 (Feb. 26, 2016 email from COL Helmlinger to LTC Balten).
On the morning of February 29, 2016, the plaintiff participated with about 30 soldiers from his unit in a previously scheduled standard gas mask test, in which the soldiers put on their gas masks and then entered a chamber to perform exercises while noxious gas was released. Pl.’s Decl. ¶¶ 13–15. The plaintiff successfully completed the test with his gas mask sealed and resealed. Id. ¶¶ 16–17.
The same day that the plaintiff was participating in the standard gas mask test, he filed the Verified Complaint in this case along with an Application for Temporary Restraining Order (“TRO”), ECF No. 2, seeking to prohibit the defendants “from subjecting Captain Singh to the protective mask test or helmet test requirements set forth in the February 23, 2016 memorandum from Debra S. Wada or any other unusual or discriminatory testing,” Pl.’s Proposed TRO Order, ECF No. 2-5, and an Application for Preliminary Injunction, ECF No. 3, seeking to “direct Defendants to grant [plaintiff] a permanent religious accommodation that would allow him to
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wear uncut hair, a bear, and a turban, as required by his Sikh faith, while serving in the Army,” Pl.’s App. for Prelim. Inj., ECF No. 3; see also Pl.’s Proposed Prelim. Inj. Order, ECF No. 3-1 (seeking to enjoin defendants “from enforcing against Plaintiff any Army regulations that would prohibit him from wearing unshorn hair, a beard, and turban as required by his Sikh faith”). Given that the specialized testing ordered by ASA Wada was to begin the following morning, the Court promptly held a hearing on the TRO application that afternoon. See Minute Entry (Feb. 29, 2016). At the hearing, the defendants agreed to postpone the specialized testing until March 4, 2016. II. LEGAL STANDARD
The standard for a temporary restraining order is the same as that for preliminary injunction. Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); see Experience Works, Inc. v. Chao, 267 F.Supp.2d 93, 96 (D.D.C. 2003). Either type of injunctive relief “is an extraordinary and drastic remedy,” and “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted) (quoting 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)). The plaintiff is required to show clearly four things: (1) that he is “likely to succeed on the merits,” (2) that he is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in his favor,” and (4) “that an injunction is in the public interest.” Glossip v. Gross, 135 S. Ct. 2726, 2736–37 (2015) (quoting Winter, 555 U.S. at 20); see also Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). The plaintiff must “show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting
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Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). The Supreme Court in Winter made clear that a court may not issue “a preliminary injunction based only on a possibility of irreparable harm . . . [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 555 U.S. at 22. III. DISCUSSION
Two motions for injunctive relief are pending in this case, see Appl. for TRO, ECF No. 2; Appl. for Prelim. Inj., ECF No. 3, but only the motion for a temporary restraining order is fully briefed and, thus, ripe for review.1 After considering the defendants’ justiciability concerns, the

1

At the oral hearing held on February 29, 2016, and throughout their papers, the defendants argue that the

issue presented in the motion for preliminary injunction will not be justiciable until the defendants make a final

determination on the plaintiff’s request for religious accommodation which, if granted, would render that motion

moot. See, e.g., Defs.’ Proposed Briefing Schedule at 1, ECF No. 17; Tr. of Hr’g for TRO (Feb. 29, 2016) (“Hr’g

Tr.”) at 59–61, ECF No. 20. Additionally, the defendants argue that the specialized helmet and gas mask testing

must be conducted in order for ASA Wada to make a final decision on the plaintiff’s request. See, e.g., Defs.’

Opp’n at 10, ECF No. 9. The plaintiff, on the other hand, “strongly believes that this Court has the authority to

immediately decide his requests for both” a temporary restraining order barring the specialized testing and a

preliminary injunction granting the plaintiff’s request for a religious accommodation. Pl.’s Proposed Briefing

Schedule at 1–2, ECF No. 14. Accordingly, the plaintiff proposed an accelerated briefing schedule that would have

allowed the Court to resolve both motions this week. Id.

The defendants objected to the plaintiff’s proposed briefing schedule, proposing an alternative briefing

schedule for the preliminary injunction motion to take place in April 2016, see generally Defs.’ Proposed Briefing

Schedule, to which proposal the plaintiff does not object so long as “further emergency proceedings” are avoided,

Pl.’s Resp. Defs.’ Proposed Briefing Schedule (“Pl.’s Resp.”) at 1, ECF No. 19. In support of their alternative

proposed briefing schedule, and to address the Court’s concern expressed at the hearing about avoiding another

rushed “fire drill” consideration of the weighty First Amendment issues at stake, the defendants assured the Court

that, “should Plaintiff’s longer-term accommodation request not be granted when his temporary accommodation

expires on March 31, 2016, Plaintiff will initially receive a 21-day extension of his current accommodation, prior to

requiring Plaintiff to comply with Army grooming standards.” Defs.’ Proposed Briefing Schedule at 3. The

defendants’ assurance is notably silent as to whether the 21-day extension would be granted regardless of the

outcome of the TRO motion, raising the specter that the plaintiff’s request for religious accommodation may be

denied and his temporary accommodation withdrawn at any time after resolution of the TRO motion against the

defendants. Consequently, the plaintiff “agrees to extend the briefing schedule for the application for preliminary

injunction only on condition that (1) Defendants confirm in writing that Captain Singh’s temporary accommodation

is extended until a final decision is rendered on the pending application for preliminary injunction, including any

appeals; and (2) Defendants confirm in writing that they will issue a final decision on Captain Singh’s request for a

permanent accommodation by March 31, 2016, regardless of this Court’s ruling on the pending application for a

TRO.” Pl.’s Resp. at 2. Despite the defendants’ silence, the 21-day extension of the plaintiff’s current

accommodation is presumably not conditioned on the denial of TRO but would also apply if the TRO is granted,

since the same conditions would exist in either circumstance. Indeed, otherwise, the defendants’ risk the perception

that refusing to extend the plaintiff’s temporary accommodation, if the TRO is granted, during consideration of the

preliminary injunction application is in some way retaliatory, and thereby coercive, against the plaintiff for his

attempt to enforce his religious rights.

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Court turns to analysis of whether the plaintiff has satisfied the four requisite elements for the TRO he seeks.
A. Threshold Jurisdictional Question As a threshold matter, the defendants characterize the plaintiff’s challenge to the order for him to undergo specialized helmet and gas mask testing procedures as a “disagreement with the orders of his superiors.” Defs.’ Opp’n at 4; id. at 5 (“[This] is nothing more than Plaintiff’s disagreement about the wisdom of an order issued to him.”). As such, the defendants contend that the specialized testing order is “a purely internal military affair” that “is outside the bounds of this court’s jurisdiction,” for two inter-related reasons. Id. at 5–6. First, the defendants contend that the specialized testing order “implicates unique demands of military discipline – that an officer follow the lawful orders of his superiors.” Id. at 6. Any judicial interference that “allow[s] a Soldier to second guess an order of his superior” may, “by design[,] effect[] the goals of discipline and obedience.” Id. at 7 (internal quotation and citation omitted). Second, the defendants point out that, due to the potential adverse effect of judicial intervention on critical military discipline and order, “absent a clearly defined right enforceable in a proceeding other than a court-martial—for example, an administrative proceeding to address a service member’s conscientious objector status—the federal courts normally should not interfere with day-to-day operations of the military services as Plaintiff requests this Court to do.” Id. (citing New, 129 F.3d at 647). In other words, the defendants urge the Court to abstain from reviewing the legality of the specialized testing order, leaving the plaintiff with the choice “to disobey the order” and be “subject to discipline,” which would then enable him to “present
11

his arguments about the legality of his orders as a defense to the court-martial action” or bring claims in an administrative proceeding. Id. These arguments are not persuasive.
Indisputably, “‘the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force’” is vested “exclusively in the legislative and executive branches.” Kreis, 866 F.2d at 1511 (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). These other two branches of the federal government are plainly responsible “for setting up channels through which . . . grievances” for complaints of “discrimination, favoritism or other objectionable handling of men” in the military “can be considered and fairly settled.” Orloff, 345 U.S. at 93–95 (holding the military had exclusive jurisdiction to determine the propriety of an Army inductee’s “specific assignments to duty”); Kreis, 866 F.2d at 1511 (holding Air Force major’s “request for retroactive promotion” was a “nonjusticiable military personnel decision[]” because “Congress has vested in the Secretary alone the authority to determine” the propriety of promotion decisions).
Yet, despite the sound reasons for limits on judicial review and requirements of administrative exhaustion of military personnel decisions generally, “resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board.” Adair v. England, 183 F. Supp. 2d 31, 55 (D.D.C. 2002) (quoting Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)). Thus, in Adair, the Court rejected the military’s argument that plaintiffs, non-liturgical Naval chaplains, who brought claims “based on the First Amendment’s Establishment and Free Exercise Clauses and the Fifth Amendment’s Due Process Clause,” should have “first exhausted their administrative remedies by raising their personnel claims with the Board for Correction of Naval Records (‘BCNR’) before coming to federal court.” Id.
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Indeed, “the Supreme Court and [the D.C. Circuit] have heard numerous [constitutional] challenges to military policies.” Brannum v. Lake, 311 F.3d 1127, 1130 (D.C. Cir. 2002). The D.C. Circuit has explained that the logic underlying nonjusticiability in military cases is “wholly inappropriate . . . when a case presents an issue that is amenable to judicial resolution,” recognizing that “courts have shown no hesitation to review cases in which a violation of the Constitution, statutes, or regulations is alleged.” Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979); see id. (“It is a basic tenet of our legal system that a government agency is not at liberty to ignore its own laws and that agency action in contravention of applicable statutes and regulations is unlawful. . . . The military departments enjoy no immunity from this proscription.” (citation omitted)).2
The plaintiff here challenges whether the specialized testing order of his superiors is in fact “lawful,” Defs.’ Opp’n at 4, by pursuing his “clearly defined right enforceable in a proceeding other than a court-martial,” id. at 5, under RFRA. This statute was enacted “in 1993 in order to provide very broad protection for religious liberty,” in response to a 1990 Supreme Court decision—Employment Division v. Smith, 494 U.S. 872 (1990)—that limited religious liberty by “largely repudiat[ing]” the Court’s earlier “method of analyzing free-exercise claims.” Burwell v. Hobby Lobby Stores, Inc. (Hobby Lobby), 134 S. Ct. 2751, 2760 (2014); see Smith, 494 U.S. at 888 (expressing concern about “open[ing] the prospect of constitutionally required

2

The defendants’ reliance on New and Schlesinger is misplaced. Both of those cases involved Army

solders’ requests for collateral review, via a habeas petition, of a pending court-martial disciplinary proceeding. See

Schlesinger, 420 U.S. at 748–49; New, 129 F.3d at 643–44. New even recognized that when a soldier chooses to

obey an order he believes is unlawful, he can seek direct judicial review of the military’s policies. 129 F.3d at 647.

It is only when a soldier chooses to disobey the order that he must “challenge the[] validity in the subsequent

disciplinary proceedings.” Id. New further recognized that when a plaintiff has “a clearly defined right enforceable

in a proceeding other than a court-martial” proceeding, federal courts may intervene. Id. Cf. Schlesinger, 420 U.S.

at 758 (“hold[ing] that when a serviceman charged with crimes by military authorities can show no harm other than

that attendant to resolution of his case in the military court system, the federal district courts must refrain from

intervention, by way of injunction or otherwise”).

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religious exemptions from civic obligations of almost every conceivable kind”). In enacting RFRA, Congress found, inter alia, that “governments should not substantially burden religious exercise without compelling justification” and rejected the Supreme Court’s elimination in Smith of “the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” concluding that “the compelling interest test as set forth in prior Federal Court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a). Congress expressly stated that the “purposes” of RFRA are to “guarantee [the] application” of “the compelling interest test . . . in all cases where free exercise of religion is substantially burdened” and “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” 42 U.S.C. § 2000bb(b) (emphasis added). RFRA, in fact, “provided even broader protection for religious liberty than was available” under the decisions it sought to restore. Hobby Lobby, 134 S. Ct. at 2761 n.3.
Thus, RFRA provides both broad protection of the free exercise right and a broad right of action for judicial relief. See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”). Notably, Congress nowhere inserted any exception for the U.S. Armed Forces from RFRA’s application or any exhaustion requirement, as it did, for example, in RFRA’s “sister statute,” the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. See Holt, 135 S. Ct. at 859; Cutter, 544 U.S. at 723 n.12 (“[A] prisoner may not sue under RLUIPA without first exhausting all available administrative remedies.” (citing 42 U.S.C. §§ 1997e(a), 2000cc-2(e))); see also Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829,
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838 (9th Cir. 2012) (“We decline . . . to read an exhaustion requirement into RFRA where the statute contains no such condition, . . . and the Supreme Court has not imposed one.”). Consequently, RFRA certainly provides no textual support for the defendants’ position that the plaintiff is required to exhaust administrative remedies in a court-martial proceeding before bringing his constitutional and RFRA claims before this Court.
Accordingly, the Court is satisfied that jurisdiction over the plaintiff’s claims is properly exercised here.
B. Likelihood of Success on the Merits In his application for a TRO, the plaintiff contends that he has a likelihood of success on his claims that the specialized testing violates: (1) the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq., (2) the Free Exercise Clause of the First Amendment of the United States Constitution, and (3) the Equal Protection Clause of the Fifth Amendment of the United States Constitution. Pl.’s Mem. at 23, 37–40. For the following reasons, the Court finds that the plaintiff has demonstrated a likelihood of success on his RFRA claim and, thus, does not address his likelihood of success on the other claims. RFRA provides that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). At the preliminary injunction stage, the parties’ burdens of proof and persuasion under RFRA “track the burdens at trial.” Gonzales v. O Centro Espirita Benefiente Uniao do Vegetal, 546 U.S. 418, 429 (2006).
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Thus, the plaintiff bears the initial burden of showing that the government’s policy “implicates his religious exercise”—i.e., that “the relevant exercise of religion is grounded in a sincerely held religious belief”—and that the government’s policy substantially burdens that exercise of religion. Holt, 135 S. Ct. at 862; O Centro, 546 U.S. at 428 (noting that the plaintiff’s prima facie case under RFRA is to show that the application of the government’s policy “would (1) substantially burden (2) a sincere (3) religious exercise”). The burden then shifts to the defendants to show that the policy “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a); Holt, 135 S. Ct. at 863; see 42 U.S.C. § 2000bb-2(3) (“[T]he term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion.”); O Centro, 546 U.S. at 428–29 (explaining that it is the government’s burden (of proof and persuasion) at the preliminary injunction stage to “demonstrate that the application of the burden [of free exercise] to the [plaintiff] would, more likely than not, be justified by the asserted compelling interests” and that the plaintiff’s “proposed less restrictive alternatives are less effective” (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).
1. The Plaintiff Has Established A Prima Facie Case The defendants do not dispute the sincerity of the plaintiff’s exercise of his Sikh religious beliefs. See Tr. of Hr’g for TRO (Feb. 29, 2016) (“Hr’g Tr.”) at 34:15–16, ECF No. 20. The defendants dispute that the specialized helmet and gas mask testing required of the plaintiff poses any burden on his free exercise right because all of the “testing would be completed with CPT Singh’s articles of faith intact.” Defs.’ Opp’n at 8–9. This view of the burden on the plaintiff is too myopic and ignores both the fact that the plaintiff is required to take these tests when other
16

soldiers granted exceptions to the Army regulations regarding grooming and appearance are not, and the fact that these tests directly affect whether the plaintiff receives a religious accommodation and, if granted, the scope of the accommodation. See Wada Decl. ¶ 5 (asserting that the Army must conduct the “individualized testing” on the plaintiff to “understand [safety] risks to the greatest extent possible before making a final decision on CPT Singh’s religious accommodation and, if he is granted an accommodation, the scope of that accommodation”).
The issue before this Court on the TRO application is not whether compliance with the Army grooming and appearance regulations would substantially burden the plaintiff’s religious exercise rights. In that regard, the plaintiff’s prima facie case may be “easily satisfied” since, absent an accommodation, the plaintiff would face serious disciplinary action by maintaining the Sikh articles of faith, see Holt, 135 S.Ct. at 862 (concluding that prison grooming policy on beard length “substantially burdens [prisoner plaintiff’s] religious exercise” because if he “contravenes that policy and grows his beard, he will face serious disciplinary action”), a finding conceded by the defendants, see Hr’g Tr. at 34:17–35:5 (conceding that, should the Army revoke the plaintiff’s interim religious accommodation, he would be substantially burdened and have a right of action under RFRA). Rather, the issue now is whether conditioning the processing of the plaintiff’s request for a religious accommodation on the specialized helmet and gas mask testing itself presents a substantial burden.
Generally, “[a] substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 246 (D.C. Cir. 2014) (quoting Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008)). In considering whether the procedures for obtaining a religious accommodation are themselves burdens on the free exercise
17

rights, courts have looked to the precise nature of the procedures imposed. Mere inconveniences, inconsequential or de minimis government actions that burden religious exercise do not suffice to qualify as a “substantial burden.” See Priests for Life, 772 F.3d at 246 (“A burden does not rise to the level of being substantial when it places ‘[a]n inconsequential or de minimis burden’ on an adherent’s religious exercise.” (quoting Kaemmerling, 553 F.3d at 678)); id. at 248 (“Burdens that are only slight, negligible, or de minimis are not substantial.”); Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007) (“[A]t a minimum the substantial burden test requires that a RLUIPA plaintiff demonstrate that the government’s denial of a particular religious item or observance was more than an inconvenience to one’s religious practice.”), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“[A] ‘substantial burden’ must place more than an inconvenience on religious exercise.”). At the same time, procedures that render a requested religious accommodation virtually impossible to achieve have been found to be substantially burdensome. See, e.g., Nelson v. Miller, 570 F.3d 868, 878–79 (7th Cir. 2009) (requiring prisoner to show that religion compelled the practice in question and verify compelled practice with documentation imposed substantial burden by making desired religious exercise “effectively impracticable”); Koger v. Bryan, 523 F.3d 789, 797 (7th Cir. 2008) (requiring prisoner to show preferred diet was compelled by religion and religious belief to be verified by clergy for entitlement to religious accommodation was substantial burden and contrary to RLUIPA).
The D.C. Circuit recently addressed this issue in Priests for Life. There, the plaintiffs challenged the “regulatory accommodation for religious nonprofit organizations that permits them to opt out of the contraceptive coverage requirement under the Patient Protection and
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Affordable Care Act (‘ACA’), 42 U.S.C. § 300gg-13(a)(4)” on grounds that the procedure “itself imposes an unjustified substantial burden on Plaintiffs’ religious exercise in violation of” RFRA. 772 F.3d at 235; see id. at 245–46 (“Plaintiffs argue that a religious accommodation, designed to permit them to free themselves entirely from the contraceptive coverage requirement, itself imposes a substantial burden.”). The Court concluded that the challenged opt-out procedure did “not impose a substantial burden on Plaintiffs’ religious exercise under RFRA,” noting that “[a]ll Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” which amounted to a “bit of paperwork [that] is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Id. at 237.
The specialized helmet and gas mask testing challenged in the TRO application involves far more than a de minimis administrative obligation of completing a one or two-page document but falls short of constituting an “effectively impracticable” requirement for obtaining a religious accommodation in the military. This makes this a close case. Nevertheless, the Court is persuaded that requiring the plaintiff to undergo the specialized testing for further processing of his religious accommodation request is a substantial burden when such testing is not required for soldiers to obtain exceptions from the Army uniform and grooming regulations on grounds other than adherence to the Sikh religious articles of faith.
The testing ordered in this case is not required of any other soldier, including soldiers who “use relaxed grooming standards” on military missions. See Hr’g Tr. at 16–18. With respect to helmets, the defendants explained at oral argument that, “[u]nder normal circumstances, the average soldier is fitted” for a helmet only once, during basic training or initial schooling. Id. at 19. After that, “the soldier is responsible for ensuring a proper fit in
19

conjunction with his chain of command.” Id.; see also Pl.’s Mem., Ex. A, Decl. of Kamaljeet Singh Kalsi (Feb. 27, 2016) (“Kalsi Decl.”) ¶ 15, ECF No. 2-2 (attesting, from personal experience and observations as an Army soldier, that “soldiers do not undergo evaluation for helmet fit” but are instead “left to choose a helmet that fits them based primarily on their own assessment” and “frequently adjust, remove, or add padding . . . on their own, with no external evaluation or validation”); Pl.’s Mem., Ex. B, Decl. of Simran Preet Singh Lamba (Feb. 27, 2016) (“Lamba Decl.”) ¶¶ 20–22, ECF No. 2-3 (same); Pl.’s Decl. ¶ 6 (same). Though safety concerns might warrant testing to evaluate the helmet and mask safety of Special Forces soldiers “deployed into environments where they[] . . . use relaxed grooming standards,” no safety tests on these soldiers are required. Hr’g Tr. at 18; see also Kalsi Decl. ¶¶ 6, 11–12, 14 (attesting, from personal experience and observations as an active duty officer deployed to Afghanistan in 2011, who was required to have “enhanced familiarity with the use of the Army’s standard-issue M-40 protective mask and Kevlar helmet” for his assignment, that Special Forces soldiers who “had beards and long hair” and “did not have to undergo specialized fitting for protective masks or helmets”).
The defendants proffer that helmet testing, or “fitting,” for Special Forces soldiers is not necessary because “it’s the way their hairstyle operates. In other words, they don’t wear a bun of hair on top of their head or any . . . material on top of their head that would change the geometrical shape of their head.” Hr’g Tr. at 19; see also Defs.’ App. at A10, Decl. of James Q. Zheng (Feb. 29, 2016) (“Zheng Decl.”) ¶¶ 5–6 (“express[ing] concern” about “some Sikh soldiers, following a religious accommodation” and wearing a helmet “with unshorn hair tucked under the helmet and a cloth headcovering” because performance of the helmet could be “degraded to a level that could compromise a soldier’s safety” from a “geometry deviation”).
20

Testing the plaintiff right now, however, may not allow the defendants to evaluate the fit of the plaintiff’s helmet under the specific conditions that are the cause of concern. The plaintiff only received a religious accommodation this past October and, consequently, the unshorn hair on his head “is currently only about three inches long.” Pl.’s Decl. ¶ 4.
Moreover, the defendants have provided no explanation as to why the plaintiff’s beard is a potential safety hazard requiring specialized gas mask testing when the beards of Special Forces soldiers deployed in war zones with “relaxed grooming standards” are no such hazard and require no such testing. Similarly, the Army has granted medical exceptions to thousands of service members, allowing them to grow beards without any specialized gas mask testing. See Pl.’s Mem. at 34. The defendants contend that those medical exceptions are different because they allow for only a very small amount of facial hair growth. Hr’g Tr. at 23–24. An Army study conducted in 2009, however, indicated that even “the presence of facial hair . . . degrades the performance of protective masks.” Pappas Decl. ¶ 3.
Not even soldiers subject to the Army’s “Hard to Fit” protocol are subject to the level of specialized testing ordered for the plaintiff. The “Hard to Fit” protocol, which is used for individuals who have unusual “anthropomorphic features such as head size or facial feature composition” to ensure a “satisfactory fit with the standard issue protective mask,” requires a “M41 protective assessment test system (PATS).” Pappas Decl. ¶ 3. PATS testing is “used at the unit level” and requires soldiers merely to perform “five exercises.” Id. ¶ 4. While the Army deems this testing sufficient for “Hard to Fit” service members, the plaintiff is being required to undergo “corn oil aerosol” testing, “the most accurate of the three types of mask evaluation procedures used by the Army,” id. ¶¶ 3–4, which will require a series of exercises and “trials” that will take up to three days, id. ¶¶ 5–6. This level of specialized testing is generally unheard
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of, perhaps due to the costs. See Kalsi Decl. ¶ 13; Lamba Decl. ¶ 21; Khalsa Decl. ¶ 25; Pl.’s Decl. ¶¶ 5–7.
Lastly, despite the fact that the Army has “never tested the ACH [helmet] in the manner CPT Singh has requested to wear it,” Zheng Decl. ¶ 7, nor “evaluated whether the use of hair gels or Vaseline on an individual’s facial hair may affect the performance of the protective mask,” Pappas Decl. ¶ 3, the Army has granted permanent religious accommodations in the past to other Sikh soldiers without any specialized testing. See Kalsi Decl. ¶ 5; Lamba Decl. ¶¶ 8, 15; Khalsa Decl. ¶ 10. Each of these Sikh soldiers served with merit on active duty deployments, and one of them, like the plaintiff, was awarded a Bronze Star Medal, in part for his “coordination of five mass casualty exercises” in Afghanistan, which he performed adhering to his articles of faith. Kalsi Decl. ¶ 8.
Singling out the plaintiff for specialized testing due only to his Sikh articles of faith is, in this context, unfair and discriminatory. It is this singling out for special scrutiny—indeed, with the initial precaution of requiring an escort and observers for the plaintiff as he was subjected to the tests—that has a clear tendency to pressure the plaintiff, or other soldiers who may wish to seek a religious accommodation, to conform behavior and forego religious precepts. Even if not intended, such pressure and its concomitant coercive effects on a religious adherent amounts to a “substantial burden.” See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316 (10th Cir. 2010) (recognizing a “‘coercion’ aspect to substantial burden”) (“[The Supreme] Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.” (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988))). Consequently, the Court finds that the
22

plaintiff has met his burden to show a likelihood of success in establishing a prima facie case under RFRA.
2. Compelling Interest Test Given the plaintiff’s likelihood of success in making out a prima facie case that the specialized testing, in the context of this case, violates RFRA, the defendants must show that the testing furthers a compelling government interest and does so by the least restrictive means. The government unquestionably has a compelling interest in ensuring the health and safety of military personnel, including the plaintiff, and by conducting these specialized helmet fitting and gas mask tests on the plaintiff—or, as plaintiff’s counsel succinctly put it, using the plaintiff as a “lab rat for the military,” Hr’g Tr. at 51:23–24—the Army may obtain information useful to keeping soldiers safer, thereby furthering this compelling interest. The proposed restriction on the plaintiff’s right to free exercise by way of the individualized, intensive helmet and gas mask testing is not the least restrictive means of furthering the government’s interest in helmet and gas mask safety, however. Indeed, conducting or commissioning a study of the efficacy of helmets and gas masks for soldiers donning a variety of unshorn hair, beards, and/or head coverings, which does not target one particular Sikh soldier merely because of his request for a religious accommodation, would be more effective in furthering the government’s compelling interest in ensuring the health and safety of its soldiers. This is particularly true in light of the “relaxed grooming standards” and medical exceptions that the Army grants to thousands of soldiers. Conducting or commissioning such a study would not, unlike the testing ordered in this case, in-and-of-itself restrict or burden any one individual’s right to free exercise, and the results of the study would likely provide more value to the government in ensuring the health and safety of military personnel generally.
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The Supreme Court’s decision in Holt is instructive. That case involved a prisoner’s challenge under RFRA to the prison’s grooming policy limiting the length of beards. 135 S. Ct. at 859. The Supreme Court credited the prison’s compelling governmental interest in prison safety and security but concluded that the beard length policy at issue was not the least restrictive means of accomplishing those goals. Id. at 863 (finding it “hard to take seriously” that “staunching the flow of contraband . . . would be seriously compromised by allowing inmate to grow a ½–inch beard”). The Court bolstered this conclusion by finding, first, that the grooming policy was “substantially underinclusive” by permitting prisoners with dermatological conditions to grow longer beards and hair on their heads. Id. at 865–66. The fact that “‘[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,’ . . . suggests that ‘those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.’” Id. at 866 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993)). Second, the Court noted the fact that “many other prisons allow inmates to grow beards while ensuring prison safety and security,” which also suggests that less restrictive means than a denial of the exemption would satisfy prison security and safety concerns. Id.
Similarly, here, the Army’s policy of specialized testing for this plaintiff as a condition for granting his religious accommodation request, based solely on hair and beard growth required by Sikh articles of faith, is “substantially underinclusive.” The defendants warn that “without information concerning the fit of the Advanced Combat Helmet (ACH) and protective mask, Defendants cannot ensure that Plaintiff’s protective equipment provides appropriate protection” and that “[c]urrently available information indicates that the accommodation may present significant risks that the equipment would not work properly, and any such failure could place Plaintiff, his fellow soldiers, and the mission at risk.” Defs.’ Proposed Briefing Schedule at 2–3,
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ECF No. 17. As discussed above, however, medical exceptions and “relaxed grooming standards” are granted without such specialized information, and even the Army’s most “Hard to Fit” soldiers may serve without undergoing the level of specialized tests ordered of the plaintiff. Indeed, the existence of the “Hard to Fit” program undermines the defendants’ argument that the specialized testing of the plaintiff is necessary for a determination on his accommodation. Additionally, as the plaintiff notes, even were the plaintiff to fail all of the specialized testing, “that could have no legitimate bearing on his accommodation” request because “[i]f the Army treats him like every other soldier, as it must, it would simply work with him to find a satisfactory solution through the existing ‘hard to fit’ program.” Pl.’s Resp. to Defs.’ Proposed Briefing Schedule at 2, ECF No. 19. In sum, the fact that health and safety “are not pursued with respect to analogous nonreligious conduct” to the degree in which those compelling interests are being pursued with respect to religious conduct “suggests that those interests could be achieved” by less burdensome means. Holt, 135 S. Ct. at 866.
The defendants argue that they are in a “Catch 22 position” where, under RFRA and, specifically, Holt, they must do an “individualized assessment” for the plaintiff’s accommodation request, but an unfavorable ruling on the plaintiff’s TRO application will prohibit them from “conduct[ing] the tests that [they] believe are necessary” to determine whether the plaintiff’s helmet and gas mask fit properly. Hr’g Tr. at 62. The defendants misinterpret Holt. The emphasis in Holt on a “more focused” inquiry into the “application of the challenged law to . . . the particular claimant,” 135 S. Ct. at 863, relates to how the government must best respond to a person’s particular belief system.
The defendants are correct that, should they deny the plaintiff’s religious accommodation request, they may “not merely . . . explain why” they denied it, but also must “prove that denying
25

the exemption is the least restrictive means of furthering a compelling governmental interest.” Holt, 135 S. Ct. at 864. This does not mean, however, that the defendants may infringe upon the very right RFRA protects in order to meet their burden of proof. Otherwise, the government would be able to end-run around RFRA.
As Justice Sotomayor suggests in her concurrence in Holt, courts should defer to “officials’ reasoning when that deference is due—that is, when . . . officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them.” Holt, 135 S. Ct. at 867 (Sotomayor, J., concurring) (emphasis added). Here, where the defendants must obtain evidence by substantially burdening the plaintiff’s free exercise rights (i.e., as discussed supra in Part III.B.1, by subjecting him to testing required of no other soldier seeking a similar exemption from Army uniform and grooming rules) in order to support their policy that substantially burdens the plaintiff’s free exercise rights (i.e., by prohibiting the plaintiff from wearing his articles of faith) that evidence is, by no means, “reasonably available to them.” In short, the defendants may not violate RFRA in an attempt to justify another potential violation of RFRA.
* * * The Court concludes that even if the defendants have a compelling interest in the execution of the specialized testing order challenged in this TRO application, the defendants have not met their burden to show it is the least restrictive means available to further their interest. Thus, the plaintiff has shown a likelihood of success on the merits and met the first prong for his TRO application.
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C. Irreparable Harm The D.C. Circuit “has set a high standard for irreparable injury” to warrant preliminary injunctive relief. Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). In order to be considered “irreparable,” the injury “must be ‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’” Id. (emphasis in original) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). Generally, however, “[w]hen an alleged deprivation of a constitutional right is involved, such as the right to . . . freedom of religion, most courts hold that no further showing of irreparable injury is necessary.” 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1 (3d ed. 2013); see also Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (“It has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). The defendants argue that the plaintiff cannot show any harm for the same reason they argue the plaintiff cannot show substantial burden—because all of the “testing would be completed with CPT Singh’s articles of faith intact.” Defs.’ Opp’n at 8–9. The defendants ignore the fact that the plaintiff has been singled out to complete three days of helmet and gas mask testing simply because of his request for a religious accommodation. Whether intentional or not, this is discriminatory, and as the plaintiff notes, “being subjected to discrimination is by itself an irreparable harm.” Pl.’s Reply Mem. Supp. Appl. TRO at 13, ECF No. 16; see also Smith v. City of Jackson, 544 U.S. 228, 249 (2005) (O’Connor, J., concurring) (noting, in the
27

context of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), that “discriminating against” an individual is “inherently harmful to the targeted individual” (emphasis in original)). Thus, the plaintiff has met the irreparable harm prong for injunctive relief.
D. Balance of Equities The third factor for injunctive relief requires a showing that the balance of hardships warrants an equitable remedy. In making this assessment, the court may consider whether the requested injunctive relief would “substantially injure other interested parties.” Ark. Dairy Coop Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009) (framing the balance of harms factor as an inquiry into whether “an injunction would substantially injure other interested parties”); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (same). In this case, the balance of harms weighs in the plaintiff’s favor. Aside from the harm discussed above, see supra Part III.C, denial of the injunctive relief sought in the plaintiff’s pending motion would sanction the defendants’ imposition of targeted, specialized testing requirements on a decorated officer simply because he requested a religious accommodation to the Army’s grooming and appearance regulations. This would likely have, as the plaintiff points out, a chilling effect on religious minorities, not only Sikhs, who desire lawfully to practice their religion while serving this country in the Armed Forces. As the plaintiff explains, “[i]f there is a perception that soldiers from minority religions who apply for a religious accommodation will then be ‘given the third degree’ as a penalty just for asking, the Army’s promise to provide religious accommodations will prove entirely illusory.” Pl.’s Mem. at 42.
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The defendants make two arguments with respect to the equities.3 First, they argue, as they do with respect to the substantial burden, that they will be harmed by the granting of the instant temporary restraining order because they will be unable to obtain important information relevant to a final decision on the plaintiff’s accommodation request. See Defs.’ Opp’n at 10. The granting of this TRO application, however, will not prevent the defendants from obtaining important information about the safety of Army helmets or gas masks. If the defendants want information about the safety of helmets and gas masks, such studies may be conducted in a controlled environment where one particular individual’s religious freedom is not at stake.
Second, the defendants argue that a temporary restraining order “would be disruptive to affairs peculiarly within the jurisdiction of the military authorities,” Defs.’ Opp’n at 9 (citing Orloff, 345 U.S. at 94–95), and “interfere[] with the proper functioning of our military forces,” id. They urge the Court to “consider the precedential effect that granting the injunction would have on the military as a whole” and “not [to] focus narrowly on this single case,” warning the Court of the “harm to the Army from judicial intrusion into military affairs.” Id. at 10. The defendants further assert that “[a] temporary restraining order, in this case, could have farreaching effects on the military’s ability to maintain discretion on the composition of the force and discipline of its soldiers” which are “weighty considerations.” Defs.’ Opp’n at 11.
These dire warnings are not taken lightly, but they are misplaced. The Court must focus on the particular case or controversy pending before it, and this particular case poses no risk of “far-reaching effects” on military discipline. In this case, a decorated officer seeks relief from an

3

Though the defendants contend that the balance of equities and public interest factors “merge when the

Government is the opposing party,” Defs.’ Opp’n at 9 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)), the

authority cited for that proposition does not apply to temporary or preliminary injunctive relief, but rather to stays of

removal under the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 8 U.S.C. § 1252. Nken,

556 U.S. at 423–24. As the plaintiff notes in his reply, “[t]he Supreme Court’s latest examination of the preliminary

injunction factors in a case involving federal defendants treats the factors separately.” Pl.’s Reply at 16 (citing

Winter).

29

order to submit to nonstandard testing for which he has been singled out due to his request for the Army to accommodate his constitutional and statutory right to religious exercise. Thus, to the extent that the defendants claim harm from an injunction against application of an unlawful order that impinges upon a soldier’s free exercise right, the scale of equities falls squarely on the plaintiff’s side.
E. Public Interest The public interest in this case weighs strongly in favor of the plaintiff, despite the defendants’ argument to the contrary. The defendants argue that, “[t]he injunctive relief sought here would unduly interfere with the public’s recognized interest in efficient administration of military personnel matters,” and affect the public’s undisputed “interest in maintaining an effective military.” Defs.’ Opp’n at 11. Again, the defendants’ arguments are not taken lightly. “[C]ourts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction,” Winter, 555 U.S. at 24 (quoting Romero-Barcelo, 456 U.S. 305, 312 (1982)), and an injunction’s “adverse impact on the public interest in national defense” cannot be understated, id. Here, however, the granting of the requested injunctive relief would not have an impact on the national defense or the Army’s ability to protect our nation’s security. This case is distinguishable from those military cases which directly implicate public safety or national security. For example, in Winter, the Supreme Court reversed a court’s grant of “a preliminary injunction imposing restrictions on the Navy’s sonar training,” including “the use of modern sonar to detect and track enemy submarines.” 555 U.S. at 12. Noting that the training exercises only allegedly harmed marine mammals, and that the extent of the harm, if any, was disputed, the Court found “that the balance of equities and consideration of the overall public interest” weighed “strongly in favor of the Navy.” Id. at 14, 26. The Court explained that
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the injunction would “forc[e] the Navy to deploy an inadequately trained antisubmarine force,” “jeopardize[] the safety of the fleet,” and undermine the President’s “determin[ation] that training with active sonar is ‘essential to national security.’” Id. at 26. The Court also recognized that the injunction would “hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines.” Id. at 31. The Court thus concluded, “[t]he public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs.” Id. at 26.
This case is simply not analogous. The Court’s grant of injunctive relief would prohibit specialized, nonstandard testing of a single officer currently based in Virginia. It would in no way jeopardize Army training or safety, nor would it undercut an Executive branch national security determination. One decorated officer’s attempt to vindicate his constitutionally and statutorily-protected religious rights does not “unduly interfere” with the “efficient administration of personnel matters.”
On the other hand, the public has a significant interest in having a diverse military, reflective of the composition of our country and accepting of religious minorities. Indeed, the Army recognized this interest in creating the “Military Accessions Vital to the National Interest (MAVNI) program,” under which individuals may enlist where they “possess cultural and linguistic skills,” including fluency in certain languages, which “are considered vital to our national interest.” Lamba Decl. ¶ 4. The specialized testing the Army seeks to conduct in this case is perceived as “discriminatory and demeaning,” id. ¶ 24; Khalsa Decl. ¶ 28; Kalsi Decl. ¶ 18, and it is likely to discourage Sikhs and other minorities from military service. Therefore, in
31

these circumstances, the public’s best interest weighs heavily in favor of granting the plaintiff’s

TRO application.

IV. CONCLUSION

For the foregoing reasons, the plaintiff’s Application for Temporary Restraining Order,

ECF No. 2, is granted. Accordingly, the defendants are preliminarily enjoined from subjecting

the plaintiff to any non-standard or discriminatory testing for his helmet and gas mask during the

pendency of the litigation.

The parties are directed to confer and jointly submit, by 5:00 p.m. on March 4, 2016, a

proposed briefing schedule to govern further proceedings in this case.

An appropriate Order accompanies this Memorandum Opinion.

Date: March 3, 2016

Digitally signed by Hon. Beryl A. Howell DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=United States District Court Judge, email=howell_chambers@dcd.uscourts.go v, c=US
________________D_at_e: 2_01_6.0_3._03_19_:08_:19_-05'00'
BERYL A. HOWELL
United States District Judge

32

 
 Case 1:16-cv-00399-BAH Document 47 Filed 05/06/16 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIMRATPAL SINGH, Plaintiff, v.
ASHTON B. CARTER, in his official capacity as Secretary of Defense, et al.,
Defendants.

Civil Action No. 16-399 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION Pending before the Court are the plaintiff’s Application for Preliminary Injunction (“Pl.’s PI Mot.”), ECF No. 3, and Motion to Consolidate (“Pl.’s Mot. Consolidate”), ECF No. 39. Specifically, the plaintiff seeks “a preliminary injunction directing Defendants to grant him a permanent religious accommodation that would allow him to wear uncut hair, a beard, and turban, as required by his Sikh faith, while serving in the Army.” Pl.’s PI Mot. at 1; see also Pl.’s Proposed Order, ECF No. 3-1 (requesting that defendants be “preliminarily enjoined from enforcing against Plaintiff any Army regulations that would prohibit him from wearing unshorn hair, a beard, and turban as required by his Sikh faith”). The plaintiff also requests that this case be consolidated with Singh v. McConville, No. 16-cv-581, another case pending before this Court. For the reasons that follow, both motions are denied.1

1

The plaintiff has requested an additional oral argument on the pending motion, Pls.’ PI Mot. at 1; Pl.’s Mot.

Consolidate at 5, but a hearing was already held after the motion was filed, see Minute Entry (Feb. 29, 2016). In

addition, the Court finds, for the reasons stated in this Memorandum Opinion, that the facts of this case do not

warrant expedition. See LCvR 65.1(d). Accordingly, and given the sufficiency of the parties’ written submissions

to resolve the pending motions, this request is denied. See LCvR 7(f) (allowance of oral hearing is “within the

discretion of the court”). The plaintiff’s Expedited Motion for Status Conference, ECF No. 43, is similarly denied.

1

Case 1:16-cv-00399-BAH Document 47 Filed 05/06/16 Page 2 of 21
I. BACKGROUND The background in this case is laid out in considerable detail in the Court’s prior
Memorandum Opinion granting the plaintiff’s motion for a temporary restraining order (“TRO”) and enjoining the defendants from “subjecting the plaintiff to any non-standard or discriminatory testing for his helmet and gas mask during the pendency of the litigation.” See Singh v. Carter, No. 16-cv-399, 2016 WL 837924, at *1–4, 16 (D.D.C. Mar. 3, 2016). Shortly after that decision, on March 30, 2016, Debra S. Wada, the Assistant Secretary of the Army (“ASA”) for Manpower and Reserve Affairs, granted the plaintiff’s then-pending “request for an exception to Army personal appearance and grooming standards,” subject to certain limitations. Defs.’ Notice Army’s Action (“Defs.’ Notice”), Ex. 1, Mem. Decision Regarding Request for Religious Accommodation – CPT Simratpal Singh (Mar. 30, 2016) (“Accommodation Decision”) ¶ 1, ECF No. 26-1.
As detailed in the Accommodation Decision, the plaintiff’s religious accommodation is limited in the following four ways. First, “[t]he bulk of [the plaintiff’s] hair, beard, or turban may not be such that it impairs [his] ability to wear the Army Combat Helmet (ACH) or other protective equipment or impedes [his] ability to operate [his] assigned weapon, military equipment, or machinery.” Id. ¶ 2. Relatedly, ASA Wada “may withdraw or limit the scope of [the plaintiff’s] accommodation for reasons of military necessity, including if [she] cannot confirm that Army protective equipment (to include ACH and protective mask) will provide [the plaintiff] the intended degree of protection against the hazards presented by the duties or areas to which [he] will be assigned.” Id. ¶ 6.
Second, the plaintiff must wear his articles of faith in a manner prescribed by the Accommodation Decision, until such time as the Army publishes “clear uniform standards
2

Case 1:16-cv-00399-BAH Document 47 Filed 05/06/16 Page 3 of 21

applicable to Soldiers who have received a religious accommodation,” which standards “the Army intends to develop.” Id. ¶ 3.2
Third, the plaintiff’s accommodation may be suspended “during [his] assignment to hazardous duties or areas,” defined as those duties which would entitle the plaintiff to special “hazardous duty incentive pay.” Id. ¶ 5.
Lastly, the plaintiff’s religious accommodation is not “permanent” or unlimited. Instead, ASA Wada “intend[s] to re-evaluate” the plaintiff’s accommodation in one year, or earlier “based upon military necessity if [the plaintiff] must be assigned to another unit,” because the Army intends “to gather additional information and develop additional standards” for soldiers who have received religious accommodations. Id. ¶¶ 3, 6. As part of the information gathering process to support “the Army’s interest in mission accomplishment, which requires military readiness, unit cohesion, good order, discipline, health, and safety on both the individual and unit levels, [ASA Wada] ha[s] requested that [the plaintiff’s] command provide quarterly assessments of the effect of [his] accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness.” Id. ¶ 4.
The relief sought by the plaintiff in his motion for a preliminary injunction would require the defendants to withdraw all, except the second, of these enumerated limitations on his

2

The Accommodation Decision specifically instructs the plaintiff:

Until such standards are published, you may wear a black turban (or under turban, as appropriate)

with the Army Service Uniform (ASU), the Army Physical Fitness Uniform, and the Army

Combat Uniform (ACU). While wearing ACU outdoors, you may wear a turban (or under turban,

as appropriate) of a matching camouflage pattern. Unless your duties, position, or assignment

require you to wear the Army Combat Helmet (ACH) or other protective gear, you are not

required to wear military headgear in addition to your turban. Your beard must be rolled and tied

to a length not to exceed two inches while in garrison and a length not to exceed one inch while in

the field, during physical training, or in a deployed environment not covered by paragraph 5

below. Your hair may not fall over your ears or eyebrows or touch the collar of your uniform.

You may display your rank on your turban, provided you remove the rank in circumstances where

military headgear is not customarily worn.

Id.

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religious accommodation, see Pl.’s Notice Intent Resp. Defs.’ Notice Army’s Action (“Pl.’s Notice”) at 1 n.1, ECF No. 34 (“Captain Singh has no objection to the specific interim standards set forth in Paragraph 3 of his Accommodation.”), and to grant him a permanent religious accommodation that is not conditioned on the specific safety equipment provided by the military or any potential effect on military readiness and unit cohesion. Notably, this preliminary injunctive relief essentially encompasses all of the relief sought in the underlying complaint. See Compl. at 34 ¶ d, ECF No. 1. II. LEGAL STANDARD
A. Preliminary Injunctive Relief “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)); Abdullah v. Obama, 753 F.3d 193, 197–98 (D.C. Cir. 2014) (same). A preliminary injunction “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original) (quoting 11A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)). The D.C. Circuit has, in the past, followed the “sliding scale” approach to evaluating preliminary injunctions, where “a court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant [preliminary relief] if the movant has made a substantial case on the merits.” Wash. Metro. Area Transit Comm’n v.
4

Case 1:16-cv-00399-BAH Document 47 Filed 05/06/16 Page 5 of 21
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Under the sliding scale approach, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
The continued viability of the sliding scale approach is highly questionable, however, in light of the Supreme Court’s holding in Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), that a court may not issue “a preliminary injunction based only on a possibility of irreparable harm [since] injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” See Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (noting that, after Winter, “the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is no longer controlling, or even viable” (internal quotations and citation omitted)); see also In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of preliminary injunction standard are met before injunctive relief can be granted). Thus, the plaintiff bears the burden of persuasion on all four preliminary injunction factors in order to secure such an “extraordinary remedy.”
The D.C. Circuit has expressly cautioned that “[t]he power to issue a preliminary injunction, especially a mandatory one, should be ‘sparingly exercised.’” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (citation omitted). Heeding this caution, where, as here, the plaintiff’s requested injunction is “mandatory—that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act,” Judges on this Court have required the moving party to “meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from
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the denial of the injunction.” See, e.g., Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 39 (D.D.C. 2014) (“EPIC II”) (collecting cases); Veitch v. Danzig, 135 F. Supp. 2d 32, 35 & n.2 (D.D.C. 2001) (holding that where “a ruling would alter, not preserve, the status quo,” the plaintiff “must meet a higher standard than were the injunction he sought merely prohibitory,” in light of the Supreme Court’s holding that “‘[t]he purpose of a preliminary injunction is merely to preserve the relative position of the parties until a trial on the merits can be held’” (alteration in original) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981))); Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997), aff’d, 159 F.3d 636 (D.C. Cir. 1998).3 Moreover, the D.C. Circuit has cautioned that a preliminary injunction generally “should not work to give a party essentially the full relief he seeks on the merits.” Dorfmann, 414 F.2d at 1173 n.13 (citing Selchow & Righter Co. v. W. Printing & Lithographing Co., 112 F.2d 430 (7th Cir. 1940)); see also Diversified Mortgage Inv’rs v. U.S. Life Ins. Co. of N.Y., 544 F.2d 571, 576 (2d Cir. 1976) (collecting cases).
B. Case Consolidation Pursuant to Federal Rule of Civil Procedure 42(a), a district court has authority to order consolidation when actions involving “a common question of law or fact” are pending before the court. FED. R. CIV. P. 42(a). Consolidation pursuant to Rule 42(a) is permissive and vests a

3

The D.C. Circuit has not opined on the issue, but application of a heightened standard of review to requests

for mandatory preliminary injunctive relief has been adopted in other Circuits. See, e.g., Pashby v. Delia, 709 F.3d

307, 319–20 (4th Cir. 2013) (observing that “heightened standard of review” would apply to mandatory injunctions);

Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (noting

that, to obtain a “disfavored” mandatory preliminary injunction, “the movant has a heightened burden of showing

that the traditional four factors weigh heavily and compellingly in its favor” (citing Dominion Video Satellite, Inc. v.

EchoStar Satellite Corp., 269 F.3d 1149, 1154–55 (10th Cir. 2001))); Cacchillo v. Insmed, Inc., 638 F.3d 401, 406

(2d Cir. 2011) (holding that “‘a mandatory preliminary injunction that alters the status quo by commanding some

positive act . . . should issue only upon a clear showing that the moving party is entitled to the relief requested, or

where extreme or very serious damage will result from a denial of preliminary relief’” (quoting Citigroup Glob.

Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010))); cf. Friends for All

Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 834–35 & n.31 (D.C. Cir. 1984) (declining to express a

view on whether “a heightened showing should in fact be required” where plaintiff seeks “a mandatory preliminary

injunction”).

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purely discretionary power in the district court. See United Bhd. of Carpenters & Joiners v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n, 721 F.3d 678, 689–90 (D.C. Cir. 2013) (reviewing denial of motion to consolidate for abuse of discretion); Moten v. Bricklayers, Masons & Plasterers Int’l Union, 543 F.2d 224, 228 n.8 (D.C. Cir. 1976) (“[T]he question of consolidation . . . is ordinarily left to the sound discretion of the District Court.”); Santucci v. Pignatello, 188 F.2d 643, 645 (D.C. Cir. 1951) (holding that, since the actions were “pending before the court,” “the question of consolidation was . . . a matter within the sound discretion of the District Court”); Stewart v. O’Neill, 225 F. Supp. 2d 16, 21 (D.D.C. 2002) (“The decision whether to consolidate cases under Rule 42(a) is within the broad discretion of the trial court.”). In exercising that discretion, district courts weigh the risk of prejudice and confusion wrought by consolidation against the risk of inconsistent rulings on common factual and legal questions, the burden on the parties and the court, the length of time, and the relative expense of proceeding with separate lawsuits if they are not consolidated. See Hendrix v. Raybestos–Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985); Jackson v. Ford Consumer Fin. Co., 181 F.R.D. 537, 539 (N.D. Ga. 1998); Ohio ex rel. Montgomery v. Louis Trauth Dairy, Inc., 163 F.R.D. 500, 503 (S.D. Ohio 1995) (in determining whether consolidation is appropriate, “the court balances the value of time and effort saved by consolidation against the inconvenience, delay, or expense increased by it”).
Consolidation is generally appropriate where it “would promote convenience and judicial economy, simplify management of the cases, . . . facilitate global resolution of the . . . claims[,] and conserve judicial resources,” Steele v. United States, No. 14-cv-1523, 2015 WL 4121607, at *2 (D.D.C. June 30, 2015), and, thus, “particularly appropriate when the actions are likely to involve substantially the same witnesses and arise from the same series of events or facts,”
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Hanson v. District of Columbia, 257 F.R.D. 19, 21 (D.D.C. 2009); see also Vazquez Rivera v. Congar Int’l Corp., 241 F.R.D. 94, 95 (D.P.R. 2007) (explaining that consolidation is intended to avoid overlapping trials containing duplicative proof, excessive cost, and waste of valuable court time in the trial of repetitive claims, among other considerations). On the other hand, consolidation is not appropriate when “the parties at issue, the procedural posture and the allegations in each case are different.” Blasko v. Wash. Metro. Area Transit Auth., 243 F.R.D. 13, 15 (D.D.C. 2007); Stewart, 225 F. Supp. 2d at 21. III. DISCUSSION
The plaintiff’s motion for a preliminary injunction is addressed first, before turning to the plaintiff’s pending request to consolidate this case with that of three other Sikh plaintiffs, who are also requesting religious accommodations from various military branches.
A. Motion for Preliminary Injunction The plaintiff continues to request the extraordinary remedy of preliminary injunctive relief, despite the Army’s March 30, 2016 decision on his religious accommodation request, claiming that “he is entitled—at a minimum—to a preliminary injunction that adds legal force to his Accommodation and clarifies the RFRA [Religious Freedom Restoration Act] standards under which it may appropriately be limited.” Pl.’s Notice at 10; see also id. at 6 (“[A]n injunction is necessary to ensure that the Army implements the Accommodation appropriately.”). The defendants oppose this motion on grounds of mootness. Defs.’ Notice Army’s Action (“Defs.’ Notice”) at 3–4, ECF No. 26. The Court disagrees with both sides: while the plaintiff’s claims are not moot, he is nonetheless not entitled to the preliminary injunctive relief he seeks.
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1. Mootness The defendants assert that ASA Wada’s decision “fully accommodates Plaintiff’s religious exercise by allowing him to wear a beard, turban, and unshorn hair while in uniform” and that, since the plaintiff’s accommodation request has been granted, a live case or controversy no longer exists for this Court to decide. Defs.’ Notice at 3–4. Under Article III of the United States Constitution, this Court “may only adjudicate actual, ongoing controversies.” District of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). The mootness doctrine prohibits the court from deciding a case if “events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.” Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)); see Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 272 (D.C. Cir. 2015). “A case becomes moot . . . ‘only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Cambell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277, 2287 (2012)). Yet, “‘[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.’” Id. (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)); see Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 43 (D.C. Cir. 2015) (explaining that a case is not moot where “the court has the ‘power to effectuate a partial remedy’” (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992))); Schnitzler v. United States, 761 F.3d 33, 39 (D.C. Cir. 2014) (holding a plaintiff’s “claim is not moot” where “he has not received all the relief he sought”); cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding
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injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” (ellipsis in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))); Schnitzler, 761 F.3d at 37–39 (“A case is moot when ‘a party has already obtained all the relief that it has sought.’” (quoting Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013))). A party’s “‘prospects of success’ on . . . a claim are ‘not pertinent to the mootness inquiry.’” Schnitzler, 761 F.3d at 39 (quoting Chafin, 133 S. Ct. at 1024)).
Here, though the plaintiff has, since filing the case and the pending motion for preliminary injunctive relief, received a “long-term” religious accommodation from the Army, see Defs.’ Opp’n Pl.’s Appl. PI (“Defs.’ Opp’n”) at 15, 27, ECF No. 35 (referring to plaintiff’s religious accommodation as “long-term”), he seeks a “permanent religious accommodation,” Pl.’s PI Mot. at 1 (emphasis added). “Long-term” does not equate to “permanent,” and the plaintiff’s accommodation is subject to reevaluation in one year’s time. See Accommodation Decision ¶ 6. Thus, the plaintiff has not obtained all the relief he seeks, and his claims are not moot.
Moreover, as the plaintiff notes, see Pl.’s Notice at 9–10, “[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed,” Knox, 132 S. Ct. at 2287. Accordingly, an exception to the mootness doctrine would apply here, where the defendants’ “voluntary cessation” of the challenged conduct—i.e., the defendants’ failure to grant the plaintiff a religious accommodation—is the basis for the mootness argument. Goings v. Court Servs. & Offender Supervision Agency for D.C., 786 F. Supp. 2d 48, 62 (D.D.C. 2011).
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2. Merits While the plaintiff’s claims are not moot, a preliminary injunction is nonetheless not warranted under these circumstances, where the plaintiff has not shown that he is likely to suffer irreparable harm without preliminary relief. As the defendants point out, “[t]he form requested of Plaintiff’s injunction, that the Court give the Accommodation the ‘force of law,’ demonstrates that Plaintiff is not facing imminent, substantial harm.” Defs.’ Opp’n at 43. Though the D.C. Circuit continues, post-Winter, to charge district courts with weighing the four preliminary injunction factors, see, e.g., In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (“We review the district court’s ultimate decision to deny injunctive relief, as well as its weighing of the preliminary injunction factors, for abuse of discretion.”); Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011) (referring to the district court’s “charge to weigh the factors with on another”), the Supreme Court made clear in Winter that a plaintiff may not prevail without some showing on each factor, see 555 U.S. at 23–24, 31–32 (holding that “[a] proper consideration of” the balance of equities and public interests “alone requires denial of the requested injunctive relief” and, thus, finding no need to address the plaintiffs’ likelihood of success on the merits). Consequently, a plaintiff must show “that irreparable injury is likely in the absence of an injunction,” regardless of the plaintiff’s likelihood of success on the merits of his claims. Winter, 555 U.S. at 22 (emphasis in original); see id. (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”); Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring) (“Importantly, the Winter Court rejected the idea that a strong likelihood of success could make up for showing only a possibility (rather than a likelihood) of irreparable
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harm. In other words, the Court ruled that the movant always must show a likelihood of irreparable harm.”).
In light of the long-term religious accommodation granted to the plaintiff after the issuance of the TRO, the plaintiff cannot now make the requisite showing of irreparable harm, particularly in light of the D.C. Circuit’s “‘high standard for irreparable injury’” to warrant preliminary injunctive relief. Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). In order to be considered “irreparable,” the injury “must be ‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’” Id. (emphasis in original) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297).
The plaintiff claims that he is entitled to a preliminary injunction because (1) “the relief granted by the Accommodation is incomplete and limited by standards that are inconsistent with the requirements of [RFRA] and the First Amendment,” and (2) “the Accommodation potentially exposes Captain Singh to discriminatory treatment similar to” that which this Court deemed unlawful in the TRO decision. Pl.’s Notice at 2. The Court addresses each argument seriatim below.
a. Limitations on the Plaintiff’s Religious Accommodation First, the plaintiff takes issue with the fact that his accommodation is “not truly permanent.” Id. at 4. Indeed, as the plaintiff notes, the accommodation letter indicates that the Army will reevaluate the plaintiff’s accommodation in one year and leaves open the possibility that the plaintiff’s accommodation is reevaluated sooner if the plaintiff is assigned to another unit or hazardous duties, or if the defendants cannot confirm that the Army’s protective equipment
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will adequately protect him. Id. at 3–4; see Accommodation Decision ¶¶ 5–6. According to the plaintiff, these limitations “impose a substantial burden on [his] religious exercise” because they render his “ability to continue serving . . . uncertain,” “call[] into question” his career and retirement prospects, expose him to “[t]he risk of being subject to military discipline,” “stigmatize” him, “potentially discourage [his] commanders from fully investing in [him],” “essentially treat[]” him and other “American Sikhs as second-class citizens,” and “subject [him] to an apparent cloud of suspicion.” Pl.’s Notice at 3–4.4
None of these harms that the plaintiff claims he will suffer from the limitations of his religious accommodation are “‘both certain and great,’ ‘actual and not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.’” Mexichem Specialty Resins, Inc., 787 F.3d at 555 (emphasis in original) (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). Indeed, by the plaintiff’s own account, the harm is “uncertain” and he is exposed only to the “risk” of, or

4

To the extent that the plaintiff argues that the limitations of his accommodation affect “other Sikhs seeking

to serve in the military,” Pl.’s Notice at 3, any such affect is irrelevant to the determination of whether the plaintiff is

himself likely to suffer irreparable harm and, thus, the Court need not address it. Moreover, as the defendants note,

see Defs.’ Opp’n at 22–23 n.9, the plaintiff lacks standing to assert the legal rights or interests of third parties, see

Moses v. Howard Univ. Hosp., 606 F.3d 789, 794–95 (D.C. Cir. 2010) (“‘The Art. III judicial power exists only to

redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may

benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself

has suffered some threatened or actual injury resulting from the putatively illegal action, [and] . . . . [the Supreme]

Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to

relief on the legal rights or interests of third parties.’” (second alteration in original) (quoting Warth v. Seldin, 422

U.S. 490, 499 (1975))). The plaintiff yesterday filed a Notice of Supplemental Authority, ECF No. 45, addressing

this issue by quoting language in Heffernan v. City of Paterson, No. 14-1280, 2016 WL 1627953 (U.S. Apr. 26,

2016), in which the Supreme Court recognized that the constitutional harm from discharging or demoting an

employee for engaging in protected political activity would be the same, whether the employer’s action “does or

does not rest upon a factual mistake.” Id. at *5. In so doing, the Supreme Court acknowledged that “[t]he discharge

of one tells the others that they engage in protected activity at their peril.” Id. The Court also highlighted, however,

that “Heffernan [himself] was directly harmed, namely, demoted . . . .” Id. The language in Heffernan is, thus, of

limited utility in evaluating the pending motion for preliminary injunctive relief because, even if consideration is

given to the impact of the defendants’ conduct on the plaintiff’s “colleagues,” id., as the Heffernan Court did, the

end result would be the same: the long-term religious accommodation that has been granted to the plaintiff shields

him from imminent harm, and may, as a result, even encourage, rather than discourage, other Sikh soldiers or

aspiring soldiers to petition for similar religious accommodation.

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“potential,” harm. Pl.’s Notice at 3–4. The defendants highlight that any such risk is minimal since “[c]urrently, there are no pending requirements for Plaintiff to perform hazardous duty,” Defs.’ Notice at 3; Defs.’ Opp’n at 1, 17, and they “have provided notice to the Court that none of the circumstances identified by [ASA] Wada as reasons for her to reevaluate the Accommodation are scheduled to occur,” Defs.’ Opp’n at 4; see also id. at 43 (“[T]here is no indication that [the plaintiff’s] Accommodation will be reviewed any sooner than in a year.”). Moreover, the plaintiff has not shown with any reasonable certainty that, when reviewed, his accommodation will be revoked or limited.
Accordingly, the Court agrees with the defendants that the plaintiff has failed to “demonstrate that any Army action will [likely] substantially burden his religious exercise during the [remainder of this] litigation.” Id.5
b. Potential Exposure to Discriminatory Treatment Second, the plaintiff takes issue with ASA Wada’s request that the plaintiff’s “command provide quarterly assessments of the effect of [his] accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual unit readiness,”

5

In fact, as the defendants point out, the plaintiff has publicly acknowledged his appreciation for the

religious accommodation he has received, despite its limitations. See Defs.’ Opp’n at 1–2; Corey Dickstein, With

Beard, Turban Exemption Granted, Sikh Army Captain Plans to ‘Move Forward,’ STARS AND STRIPES (Apr. 1,

2016), Defs.’ Suppl. App’x at B59, ECF No. 35-1 (“The best thing about [the long-term accommodation] is I can

just go back to doing my job . . . . I can put all this stuff behind me and move forward and just go back to being a

regular soldier.” (quoting plaintiff)); Rebecca Kheel, Army Allows Sikh Soldier to Wear Turban, Beard, THE HILL

(Apr. 1, 2016, 9:37 AM), Defs.’ Suppl. App’x at B62 (“I am thankful that I no longer have to make the choice

between faith and service to our nation.” (quoting plaintiff)); id. at B63 (“Hooah to the Army for finally letting [the

plaintiff] enjoy his own religious freedom.” (quoting plaintiff’s counsel)); Bryant Jordan, Army Relents, Grants

Waiver to Let Sikh Officer Wear Beard, Turban, MILITARY.COM (Apr. 1, 2016), Defs.’ Suppl. App’x at B65 (“I’m

grateful the Army is allowing me to serve without being forced to compromise my religion.” (quoting plaintiff’s

statement released by plaintiff’s counsel)). The plaintiff also publicly expressed the sentiment that “From where I

stand, I don’t have any issues about being able to meet Army readiness and Army safety standards[.] . . . If I fail to

meet an Army performance standard then . . . please reexamine my accommodation, take another look at it. But, so

far, I have not, and do not plan on failing any Army performance standards.” Dickstein, supra, Defs.’ Suppl. App’x

at B60 (second ellipsis in original; quoting plaintiff). These public comments indicate that the plaintiff “is not

suffering any immediate harm of any sort—let alone imminent irreparable harm.” Defs.’ Opp’n at 1.

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Accommodation Decision ¶ 4, arguing that the quarterly reports “serve[] no legitimate purpose other than to burden [the plaintiff’s] religious exercise by pressuring him to give up his articles of faith.” Pl.’s Notice at 8. In the plaintiff’s view, the quarterly assessments (1) “potentially subject[] the plaintiff to discriminatory treatment” and give his “commanders ‘unbridled discretion’ to take potentially detrimental action against him because of his faith,” Pl.’s Notice at 6, 8–9 (emphasis added) (quoting Sanjour v. EPA, 56 F.3d 85, 96 (D.C. Cir. 1995) (en banc), which addressed a First Amendment challenge to regulations limiting government employee speech); and (2) are per se discriminatory because no other soldier, including other observant Sikh soldiers who have been granted religious accommodations, has ever been “subject to quarterly monitoring under any circumstances,” id. at 6–7; see also Pl.’s Reply Mem. Support Appl. PI (“Pl.’s Reply”) at 23, ECF No. 37 (“[N]o other soldiers are subject to standardless, career-chilling quarterly reporting on an individual basis.”).6
The quarterly-assessment requirement is troubling. As another decision from this Court has explained, “it is difficult to see how accommodating [the Sikh] plaintiff’s religious exercise would do greater damage to the Army’s compelling interests in uniformity, discipline, credibility, unit cohesion, and training than the tens of thousands of medical shaving profiles the Army has already granted,” and “it is undisputed that the Army’s own regulations permit soldiers to wear yarmulkes and other religious headgear.” Singh v. McHugh, 109 F. Supp. 3d 72, 96–97 (D.D.C. 2015). Indeed, four other religious Sikhs have served in the Army with exceptional distinction and their grooming and appearance accommodations have had only a positive effect,

6

The plaintiff cites as support the “‘indefinite’ religious accommodations” granted to three observant Sikh

soldiers in August 2013. Pl.’s Notice at 7. The “indefinite” accommodations granted to those three soldiers,

however, contain limiting language similar to the plaintiff’s long-term accommodation, providing that the

accommodations may be revoked or suspended for military necessity. See Pl.’s Notice, Ex. 1, Exception to Uniform

and Grooming Policy Based on Religious Belief – MAJ Kamaljeet Kalsi (Aug. 6, 2013) ¶ 3, ECF No. 34-1; id.,

Exception to Uniform and Grooming Policy Based on Religious Belief – CPT Tejdeep Rattan (Aug. 6, 2013) ¶ 3;

id., Exception to Uniform and Grooming Policy Based on Religious Belief – SPC Simran Lamba (date illegible) ¶ 3.

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if any, on unit cohesion and morale, good order and discipline, health and safety, and individual unit readiness. See id. at 98–100 (describing the soldiers’ significant contributions, military achievements and “praise heaped on each man’s service—including, in particular, for their discipline and leadership”). Still, as the plaintiff notes, “[i]t is certainly imaginable that the religious exemption could . . . be the trigger for another soldier’s [prejudicial] actions that could have an adverse impact on ‘unit cohesion and morale, good order and discipline,’” just as “presumably [occurred] . . . when the Army integrated minorities, women, or gays and lesbians.” Pl.’s Notice at 8 (emphasis added). While the routine evaluation of the effect of the plaintiff’s religious accommodation may potentially have adverse consequences for the plaintiff and other Sikhs, adverse consequences are not inevitable, however. As another court has recognized, “[t]he lessons of our constitutional history are clear: inclusion strengthens, rather than weakens our most important institutions,” and, thus, “[w]hen we integrated our schools, education improved. When we opened our juries to women, our democracy became more vital. When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion.” Latta v. Otter, 771 F.3d 456, 476 (9th Cir. 2014) (citations omitted).
Nonetheless, the plaintiff’s first criticism of the quarterly-assessment requirement fails for the same reason as his criticisms of his accommodation’s limitations: the plaintiff has failed to show that the quarterly-assessment requirement is likely to cause him irreparable harm during the remainder of this litigation. Significantly, in the plaintiff’s own words, the required quarterly assessments have merely the “potential” to subject him to discriminatory treatment. This risk is considerably undercut by the plaintiff’s own admission that he “has an outstanding working relationship with his immediate commander and has complete confidence that she will treat him fairly.” Pl.’s Notice at 8; see also Defs.’ Opp’n at 26 (“Plaintiff’s speculation is simply
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unwarranted given Plaintiff’s representations that his command recommended approval of his accommodation. . . . as well as the presumption of good faith by Government officials.”).7
The plaintiff’s second criticism also must fail. The plaintiff concedes that the Army has, in fact, previously assessed the effect “on unit morale, cohesion, good order, and discipline” of the religious accommodation granted to another Sikh soldier. Pl.’s Notice at 7 (quoting Singh v. McHugh, 109 F. Supp. 3d at 100). “The Army conducted an internal examination of the effect of Corp. Lamba’s religious accommodation on his service, and the study concluded that ‘the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,’” nor on any soldier’s health and safety. Singh v. McHugh, 109 F. Supp. 3d at 100–01 (citations omitted). Given that another soldier was subject to “an internal examination” or “study,” it is simply not true that the plaintiff’s accommodation subjects him “to a standard that no other soldier, including no other Sikh soldier, has been subjected to.” Pl.’s Notice at 7.
To the extent that the plaintiff argues that the quarterly-assessment requirement is per se discriminatory, see Pl.’s Reply at 22 (“[T]he standardless quarterly reporting is both discriminatory in itself and also permits Captain Singh to be subject to intentional discrimination in the future.”), and, as a result, that “no further showing of irreparable injury is necessary,” Singh v. Carter, 2016 WL 837924, at *13–14 (citing authority), the plaintiff has not established that the balance of equities tips in his favor. The Army has a compelling need to maintain unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness, and while “military interests do not always trump other considerations,” Winter, 555

7

The plaintiff has publicly “expressed no concerns” about the quarterly-assessment requirement, saying “he

has not received negative feedback from anyone in his battalion,” “‘it has been absolutely professional and there

have been zero issues.’” Dickstein, supra, Defs.’ Suppl. App’x at B61 (quoting plaintiff).

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U.S. at 26, here, the Court finds that they do. The quarterly-assessment requirement appears to fall into the realm of “‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,’ which are ‘essentially professional military judgments,’” id. at 24 (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)), and are afforded “great deference,” id. (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)). Given the procedural posture of this case and the preliminary nature of the relief that should be awarded, the Court is not, on this record, prepared to grant the plaintiff the extraordinary relief he seeks. See Dorfmann, 414 F.2d at 1173–74 (“The great equitable power to enjoin a party pendente lite should not be exercised unless it is manifest that the normal legal avenues are inadequate, that there is a compelling need to give the plaintiff the relief he seeks, and that the injunction will not wreak greater harm on the party enjoined.”).
* * * In sum, the plaintiff fails to meet the high standard required for injunctive relief and resolution of the plaintiff’s claims is, thus, “a matter for the normal course of litigation.” Defs.’ Opp’n at 4. The Court is not persuaded that “[l]eaving the current Accommodation in place but unsecured by this Court’s action,” for the time being, “will effectively put Captain Singh in limbo for the remainder of his military service,” as the plaintiff warns, Pl.’s Reply at 1, when the merits of the plaintiff’s claims will be reviewed in the normal course of litigation. B. Motion for Case Consolidation The plaintiff also requests that this case be consolidated with Singh v. McConville, No. 16-cv-581, which was filed exactly one month after this case along with the plaintiff’s Notice of
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Related Case, Case No. 16-cv-581, ECF No. 2. Based upon the plaintiff’s notice, the new case was assigned to this Court, pursuant to Local Civil Rule 40.5(c)(1).8
The cases are certainly similar. As in this case, the plaintiffs in Singh v. McConville assert claims against the same defendants under RFRA and the First and Fifth Amendments of the U.S. Constitution pertaining to the Army’s allegedly unlawful grooming and personal appearance regulations and discriminatory treatment of religious Sikhs who wish to serve or are serving in different parts of the U.S. Army. See Compl. at 27–34, Case No. 16-cv-399, ECF No. 1; Compl. at 46–52, Case No. 16-cv-581, ECF No. 1; see also Defs.’ Objection Pls.’ Notice Related Case at 2, Case No. 16-cv-581, ECF No. 37 (“[B]oth cases involve followers of the Sikh faith who requested religious accommodations to deviate from the Army’s uniform and grooming standards.”).
The three plaintiffs in Singh v. McConville, however, are each distinguishable from the plaintiff in this case. As the defendants point out, the plaintiff in this case is a West Point graduate, “a commissioned officer, serving on active duty, assigned to a world-wide deployable unit,” whereas the plaintiffs in Singh v. McConville “recently enlisted into the reserve component of the Army” and “are awaiting the initial military training necessary to qualify for military assignment.” Defs.’ Opp’n Pls.’ Mot. Consolidation at 3–4, ECF No. 40. Specifically, the plaintiff Kanwar Bir Singh was admitted on August 6, 2015 to the Massachusetts National Guard

8

The defendants have objected to the designation that the cases are related, pursuant to Local Civil Rule

40.5(c)(3). Defs.’ Objection Pls.’ Notice Related Case, Case No. 16-cv-581, ECF No. 37. When a party objects to a

related case designation, “the matter shall be determined by the judge to whom the case is assigned,” LCvR

40.5(c)(3), and the Court has yet to rule on the defendants’ objection in that case. The related case determination is

separate and distinct, however, from the resolution of a motion to consolidate. See Stewart, 225 F. Supp. 2d at 18–

21. The related-case assignment in this case has no bearing on the disposition of the plaintiff’s Motion to

Consolidate because “[m]otions to consolidate cases assigned to different judges of this Court shall be heard and

determined by the judge to whom the earlier-numbered case is assigned.” LCvR 40.5(d). Thus, the undersigned

Chief Judge, who is assigned the earlier-numbered case, would be tasked with deciding the plaintiff’s motion for

consolidation, regardless of whether the later-numbered case had been randomly assigned, as unrelated, to another

Judge.

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and is scheduled to begin Basic Combat Training (“BCT”) on May 31, 2016, Compl. ¶¶ 147, 151, 170, Case No. 16-cv-581; the plaintiff Harpal Singh signed a six-year contract in November 2015 to serve in the Army’s Military Accessions Vital to the National Interest (“MANVI”) program and is scheduled to begin BCT on May 9, 2016, id. ¶¶ 29, 34; and the plaintiff A.S.G., a minor, is currently a high school senior who enlisted on December 17, 2015 with the Virginia Army National Guard and is scheduled to begin BCT on May 23, 2016, id. ¶ 35. If the cases are consolidated, the factual differences may cause confusion.
Additionally, unlike the plaintiff in this case, the plaintiffs in Singh v. McConville have not brought any claims related to specialized helmet and gas mask testing. Since the Court already opined on the merits of the plaintiff’s specialized testing claims in resolving the plaintiff’s TRO motion last month, see Singh v. Carter, 2016 WL 937924, at *8–13, and now resolves the plaintiff’s preliminary injunction motion, only the claims remaining in the plaintiff’s original complaint remain. This case is, thus, well on the way to complete resolution, while Singh v. McConville is in an earlier stage, and consolidation is likely to delay the final resolution of this case.
Given the factual distinctions between the plaintiff here and the plaintiffs in Singh v. McConville, the differing allegations, and the cases’ respective procedural postures, the Court finds that it would, aside from creating possible confusion, not simplify case management or conserve judicial resources to consolidate the cases and, accordingly, declines to exercise the discretion to do so.
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IV. CONCLUSION

For the foregoing reasons, the plaintiff’s Application for Preliminary Injunction, ECF No.

3, and Motion to Consolidate, ECF No. 39, are denied. The plaintiff’s Expedited Motion for

Status Conference, ECF No. 43, is similarly denied.

An appropriate Order accompanies this Memorandum Opinion.

Date: May 6, 2016

Digitally signed by Hon. Beryl A. Howell DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=Chief Judge, email=Howell_Chambers@dcd.uscourts .gov, c=US
_____________D_at_e: 2_01_6.0_5.0_6 1_5:_09:_42_-04_'00_' _
BERYL A. HOWELL
Chief Judge

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 Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAPTAIN SIMRATPAL SINGH, 8818 Moverly Ct. Springfield, VA 22152
Plaintiff,
v.
ASHTON B. CARTER, in his official capacity as Secretary of Defense, 1400 Defense Pentagon Washington, DC 20301
THE UNITED STATES DEPARTMENT OF DEFENSE, 1400 Defense Pentagon Washington, DC 20301
ERIC K. FANNING, in his official capacity as Secretary of the U.S. Army, 101 Army Pentagon Washington, DC 20310
LIEUTENANT GENERAL JAMES C. MCCONVILLE, in his official capacity as Deputy Chief of Staff, G-1, U.S. Army 300 Army Pentagon Washington, DC 20310
THE UNITED STATES DEPARTMENT OF THE ARMY, 101 Army Pentagon Washington, DC 20310
Defendants.

Civil Action No. 1:16-cv-00399-BAH
FIRST AMENDED COMPLAINT (Jury Requested)

Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 2 of 41
Eric S. Baxter (D.C. Bar No. 479221) Eric C. Rassbach (D.C. Bar No. 493739) Daniel Blomberg (D.D.C. Bar No. SC0001) Diana M. Verm (D.C. Bar No. 1811222) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC, 20036 (202) 955-0095 PHONE (202) 955-0090 FAX ebaxter@becketfund.org
Amandeep S. Sidhu (D.C. Bar No. 978142) Emre N. Ilter (D.C. Bar No. 984479) McDermott Will & Emery LLP 500 North Capitol Street, N.W. Washington , DC, 20001 (202) 756-8000 PHONE (202) 756-8087 FAX asidhu@mwe.com
Harsimran Kaur Dang (D.C. Bar No. 493428) Gurjot Kaur (D.D.C. Bar No. NY0218) The Sikh Coalition 50 Broad Street, Suite 1537 New York, NY, 10004 (212) 655-3095 PHONE harsimran@sikhcoalition.org
Counsel for Plaintiff

Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 3 of 41
NATURE OF THE ACTION 1. Plaintiff Simratpal Singh is a Captain in the United States Army, in the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, where he is an Assistant Operations Officer. 2. Captain Singh is also a devout member of the Sikh faith. 3. A core tenet of Sikhism—mandated by the Sikh prophets and required by the Rehat Maryada, the official Sikh Code of Conduct—forbids Sikhs from shaving or cutting their hair, which must be worn in the dastaar (turban). 4. For Captain Singh, being forced to shave, cut his hair, or not wear the dastaar would be a severe violation of his conscience, yet under the Army’s grooming policies, he is subject to severe penalties—including dishonorable discharge—just for maintaining these articles of faith. 5. When general military rules burden a soldier’s faith, binding Department of Defense Instructions and Army regulations require the Army to accommodate the soldier’s religious exercise, so long as the “accommodation would not adversely affect mission accomplishment.” DoDI 1300.17(4)(f); AR 600-21 § 5-6. 6. There is no doubt that the Army can accomplish its mission while allowing Captain Singh to maintain his articles of faith while serving as an electrical engineer. 7. Captain Singh’s immediate commander, Lieutenant Colonel Julie Balten, has recommended that he be allowed to serve without being forced to violate his conscience. 8. Captain Singh has been serving with his beard and turban in place since December 8, 2015, without adverse impact on mission accomplishment.
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9. Moreover, Sikhs have regularly served in the United States military with their articles of faith intact, including in combat at least as early as World War I and continuing through the Vietnam War.
10. It was only in the early 1980s that the military began barring Sikhs from military service because of their faith.
11. But even then, Sikhs already serving were grandfathered in without being forced to violate their conscience. And in just the last six years, the Army has admitted at least six fully-observant Sikhs, all who have served with distinction—including in combat zones—with their articles of faith fully intact.
12. America’s allies around the world, including Canada, Great Britain, India, and Australia also allow observant Sikhs to serve in their militaries. Indeed, Canada’s new Defense Minister— a decorated military veteran who advised top U.S. generals in Afghanistan—is himself an observant member of the Sikh faith who wears a turban and beard.1
13. This Court has already held that the Army lacks general justification for barring observant Sikhs from serving their country. Iknoor Singh v. McHugh, 109 F. Supp. 3d 72 (D.D.C. June 12, 2015).
14. Despite the long history of exemplary service by Sikhs in the United States military and utter lack of any justification for generally barring them, the Army has refused to fully grant
1 See Siobhán O’Grady, Canada’s New Defense Minister Made His Own Gas Mask to Work With His Sikh Beard, Foreign Policy, Nov. 5, 2015, available at http://foreignpolicy.com/2015/11/05/canadas-new-defense-minister-made-his-own-gas-mask-towork-with-his-sikh-beard/ (last visited Nov. 24, 2015).
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Captain Singh’s formal request for a religious accommodation that would allow him to continue serving as an Army engineer without violating his deeply held religious convictions.
15. Captain Singh was initially granted a temporary accommodation to wear unshorn hair, a beard, and a turban, as required by his faith. That accommodation was set to end on March 31.
16. On Wednesday, February 24, 2016, after months of suggesting his accommodation would likely be made permanent—as has routinely happened for Sikh soldiers in the past—Defendants abruptly informed Captain Singh that, because of his Sikh religion, he must immediately undergo extraordinary, targeted, repetitive testing ostensibly to test whether he could properly wear a combat helmet and safety mask. See Exhibit 16 (Memorandum from Debra S. Wada, Assistant Secretary of the Army (Manpower and Reserve Affairs) to Commanding General, U.S. Army Corps of Engineers (Feb. 23, 2016)) (“the Wada Memorandum”).
17. Captain Singh has repeatedly worn a combat helmet and safety mask while wearing a beard, without any problems.
18. Captain Singh was initially instructed to schedule his own gas mask fit testing, which was scheduled to take place at Fort Belvoir (Captain Singh’s home base) consistent with the Army’s standard practices and procedures (as outlined in A.R. 350-1) on Monday, February 29.
19. Brushing aside this standard gas mask testing—which is applied to all Army soldiers— Captain Singh was informed on the afternoon of Friday, February 26, that he was under orders to report early the next week, on Tuesday, March 1, for the helmet testing contemplated in the Wada Memorandum.
20. Then at 8:00 PM that same evening, he was ordered that, following the helmet testing, he would be required to report to Aberdeen Proving Grounds in Maryland.
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21. He was told he would be sequestered there for three days for safety-mask testing. 22. No other soldiers in the Army have been treated in this manner or subjected to similar tests as a condition for remaining in the Army. 23. This discriminatory treatment is unfounded and violates the Army’s own regulations. 24. Moreover, such testing would infringe Captain Singh’s free exercise and free speech rights secured to him by the Religious Freedom Restoration Act (RFRA) and the United States Constitution. 25. On March 3, 2016, this Court entered a Preliminary Injunction agreeing that the proposed testing would be “unfair and discriminatory” and precluding the Army from conducting “any nonstandard or discriminatory testing for [Captain Singh’s] helmet and gas mask during the pendency of the litigation.” 03/03/16 Op. [Dkt. 23] at 22, 32. 26. On March 31, 2016, the Army extended Captain Singh’s temporary accommodation, allowing him to serve with his beard and turban in place for one year, or possibly less “based upon military necessity if [Captain Singh] must be assigned to another unit.” 03/31/16 Defs.’ Notice of Army’s Action [Dkt. 26], Ex. 1 at 2 ¶ 6. 27. The Army’s accommodation, however, is not legally binding and could be revoked at any time. 28. Also, the Army’s accommodation is subject to significant restrictions. 29. For example, the accommodation states that it may be withdrawn at any time, including any time Captain Singh is “assigned or directed to perform hazardous duties (duties for which [he] would be entitled to receive incentive hardship duty pay, special pay for service as a member of a
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Weapons of Mass Destruction Civil Support Team, or hazardous duty incentive pay for flying duty).” Id. ¶ 5.
30. These conditions are more restrictive than conditions imposed on other service members who are allowed to wear beards for medical or religious reasons.
31. Also, no such conditions were imposed on Sikhs who served in the military before the early 1980s when the military began strictly enforcing its beard ban against religious minorities.
32. Captain Singh’s accommodation also requires that his “command provide quarterly assessments of the effect of [his] accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness.” Id. ¶ 4.
33. No other service members are subject to such scrutiny based on the exercise of their civil rights while serving in the military.
34. Moreover, Captain Singh remains subject to Department of Defense and Army policies that would require him to re-apply for an accommodation every time he undergoes a transfer of duty station.
35. Those policies would also require him to abandon his religious beliefs and conform to military grooming policies during the pendency of any request for a renewed accommodation.
36. Captain Singh thus seeks declaratory and permanent injunctive relief protecting his religious exercise and barring the Army from (1) imposing unnecessary restrictions on his accommodation, (2) requiring him to resubmit for an accommodation with every transfer of duty station, (3) subjecting him to undue delay in considering his requests for a religious accommodation, or (4) requiring him to abandon his articles of faith during the pendency of any request for accommodation.
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JURISDICTION AND VENUE 37. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. 38. Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1).
IDENTIFICATION OF PARTIES 39. The Plaintiff, Captain Singh, is a practicing Sikh and a decorated member of the United States Army stationed at Fort Belvoir, Virginia. 40. Defendants are appointed officials of the United States government and United States governmental agencies responsible for the United States military and its grooming policies. 41. Defendant Ashton B. Carter is the Secretary of the United States Department of Defense. In this capacity, he has responsibility for the operation and management of the armed forces. Secretary Carter is sued in his official capacity only. 42. Defendant United States Department of Defense is an executive agency of the United States government and is responsible for the maintenance of the United States military. 43. Defendant Eric K. Fanning is the Secretary of the United States Army and is responsible for the operation and management of the United States Army. Secretary Fanning is sued in his official capacity only. 44. Defendant Lieutenant General James C. McConville is the Deputy Chief of Staff, G-1, U.S. Army. In this capacity, he has responsibility for religious accommodations in the Army, including Captain Singh’s accommodation. General McConville is sued in his official capacity only. 45. Defendant Department of the Army is a department of the United States military and is responsible for the promulgation and administration of its own grooming policies and regulations.
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FACTUAL ALLEGATIONS Captain Singh’s Faith 46. Sikhism is a monotheistic religion that originated in the fifteenth century in the Punjab region of South Asia. 47. While relatively young compared to other major world religions, it is the world’s fifth largest faith tradition with nearly 25 million adherents.2 48. There are approximately 500,000 Sikhs in the United States.3 49. The founder of the Sikh faith, Guru Nanak, was born in 1469 in Punjab, India. 50. The Sikh religion is monotheistic, believing in one God who is all loving, all pervading, and eternal. This God of love is obtained through grace and sought by service to mankind. 51. Guru Nanak rejected the caste system and declared all human beings, including women, to be equal in rights and responsibilities and ability to reach God. He taught that God was universal to all—not limited to any religion, nation, race, color, or gender. 52. Consistent with the teachings of the Sikh gurus, Sikhs wear external articles of faith to bind them to the beliefs of the religion. Unlike some other faiths, where only the clergy maintain religious articles on their person, all Sikhs are required to wear external articles of faith. 53. These articles of faith, such as unshorn hair (kesh) and the turban, distinguish a Sikh and have deep spiritual significance.
2 See The Pew Forum on Religion and Public Life, The Global Religious Landscape: A Report on the Size and Distribution of the World’s Major Religious Groups as of 2010 9 n.1 (2012). 3 See S. Con. Res. 74, 107th Cong. (2001).
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54. Maintaining uncut hair (including a beard) is an essential part of the Sikh way of life—one cannot be a practicing Sikh without abiding by this tenet of faith.
55. Guru Nanak started the practice, regarding it as living in harmony with the will of God. The Sikh Code of Conduct, called the Rehat Maryada, outlines the requirements for practicing the Sikh way of life.4
56. All Sikhs must follow the guidelines set forth in the Rehat Maryada. 57. The Rehat Maryada explicitly instructs that Sikhs must “[h]ave, on your person, all the time . . . the keshas (unshorn hair).” Exhibit 1 (excerpt of Rehat Maryada). The Rehat Maryada prohibits the removal of hair from the body as one of four major taboos. One of the other taboos on this list is adultery. That cutting one’s hair is a moral transgression as serious as committing adultery speaks to the immense significance of uncut hair in the Sikh religion. 58. The Rehat Maryada also mandates that Sikhs wear a turban which must always cover a Sikh’s head. The turban reminds a Sikh of his or her duty to maintain and uphold the core beliefs of the Sikh faith, which include working hard and honestly, sharing with the needy, and promoting equality and justice for all. When a Sikh wears a turban, the turban ceases to be simply a piece of cloth and becomes one and the same with the Sikh’s head. 59. Historically, uncut hair and turbans have been central features of the Sikh identity. For example, in the 18th century, Sikhs in South Asia were persecuted and forced to convert from their
4 Sikh Rehat Maryada in English, SGPC.net, http://new.sgpc.net/sikh-rehat-maryada-inenglish/ (last visited Nov. 25, 2015)
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religion by political leaders. The method of forcing conversions was to remove a Sikh’s turban and cut off his or her hair.
60. As resistance to such forced conversions, many Sikhs chose death over having their turbans removed and hair shorn.
61. Since then, denying a Sikh the right to wear a turban and maintain unshorn hair has symbolized denying that person the right to belong to the Sikh faith, and is perceived as the most humiliating and hurtful physical injury that can be inflicted upon a Sikh.
Captain Singh’s Commitment to the Sikh Faith 62. Captain Singh was born in the Punjab region of India into an observant Sikh family. 63. From the time of his early childhood in India and after moving to the United States at age nine, he maintained unshorn hair covered with a patka, a small turban often worn by Sikh children. 64. When Captain Singh’s beard came in, his father taught him how to properly wrap and wear the turban. 65. Throughout high school, Captain Singh maintained the Sikh articles of faith, wearing the turban and never cutting his hair or shaving. 66. Growing up, Captain Singh regularly attended the Sikh temple or gurdwara to hear preaching and to partake in langar. 67. Langar means “open kitchen” and is a form of communal dining that takes place in the gurdwaras. Individuals of any faith or no faith at all may participate. The food is simple vegetarian fare so that all may partake regardless of religious or other dietary restrictions. It is prepared by volunteer members of the Sikh community and served by them to participants who sit intermingled in rows on the floor.
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68. Langar serves as a continuous reminder of the Sikh ethics of equality, generosity, inclusiveness, and care for the poor.
69. Regular participation in langar helped instill in Captain Singh the importance of hard work, a recognition of the good in others, and a willingness to sacrifice for the larger good. It also influenced his commitment to be a vegetarian. Though not required of Sikhs universally, Captain Singh believes that it is morally wrong to take the life of another creature simply for pleasure.
70. On Sundays, Captain Singh enjoyed listening to the preaching about Sikh scripture and history, and the musical recitations of Sikh scripture.
71. Stories of Sikhs who chose to die rather than remove their turban when subjected to forced conversions was a common theme that became particularly poignant to him.
72. While remaining deeply connected to his Sikh heritage, Captain Singh thrived in his high school in Bellevue, Washington, earning excellent grades and participating on the soccer team and wrestling squad. He participated in student government, serving as president of his sophomore class and as student-body treasurer the following year.
73. As a senior, he was selected from his class of nearly 400 students to serve on a teen advisory council for United States Congressman David Reichert.
74. Through that point in his life, he never experienced any negative repercussions from anyone because of his religion.
75. He never anticipated that the United States Army would be the first to pressure him to abandon his articles of faith.
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Decision to Join the Military 76. Service in armed forces has always been—and continues to be—a central part of the Sikh identity. Tales of Sikh courage and valor date back at least as far as their defeat of the Afghan Pathans in 1813 at the Battle of Attock.5 77. Sikh soldiers famously defeated the British at the Battle of Chillianwala in 1849 before being overpowered six weeks later by superior British weapons.6 Sikh soldiers soon became “among the sturdiest and trustiest men of the British army,”7 with a group of twenty-one Sikhs famously repulsing an attack by thousands of Afghans for six hours at the Battle of Saragarhi in 18978 and with approximately 100,000 Sikhs—a disproportionately high number among Indian volunteer soldiers —fighting for the British in World War I.9 78. Today observant Sikhs proudly serve with their articles of faith intact in militaries around the world, most notably in India, Canada, Australia, and the United Kingdom, among others, and also as United Nations Peacekeepers, often working closely with American troops in troubled regions. In fact, Canada’s recently appointed Minister of Defense, Lieutenant Colonel Harjit
5 Pico Iyer, The Lions of Punjab, Time, Nov. 12 1984, at 53, discussed in Rajdeep Singh Jolly, The Application of the Religious Freedom Restoration Act to Appearance Regulations That Presumptively Prohibit Observant Sikh Lawyers From Joining the U.S. Army Judge Advocate General Corps, 11 Chap. L. Rev. 155, 157 n.13 (2007). 6 Id. 7 Id. 8 Sikhs Prove Their Valor, Twenty-one Men Hold Sarhargarti Police Post Against 1,000 Orakzais Over Six Hours, New York Times, Sept. 14, 1897. 9 Jolly, supra note 5, at 157.
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Sajjan, supported the U.S.-led coalition in Afghanistan and served as a special advisor to U.S. Army Lieutenant General James Terry, commander of the 10th Mountain Division.10
79. Captain Singh’s own great-grandfather fought with the British-Indian Army in World War I, battling through Kuwait and into Iraq, where he was injured by a gunshot to the leg. He later also participated in the struggle for India’s independence.
80. Captain Singh’s father, in his young adulthood, sought to join the Indian Navy, although he was kept out by anti-Sikh sentiment that was prevalent at that time.
81. Familiar with this religious and family history, Captain Singh long desired to serve in the military.
82. Upon immigrating, Captain Singh developed a deep gratitude to the United States for granting his father political asylum and providing his family opportunities they would not have enjoyed in Punjab. Joining the Army seemed like the natural way to repay his country.
83. Captain Singh always assumed he would enter the Army as an enlisted soldier until a friend on the student council who was one year ahead of him in high school applied to the military academies. Learning for the first time about this opportunity, Captain Singh set his mind on attending West Point.
84. He ultimately received endorsements from Congressman David Reichert and Senator Maria Cantwell.
10 See Christopher Guly, Defense Minister Harjit Singh Sajjan: A Sikh Soldier's Climb to the Canadian Cabinet, L.A. Times, Feb. 22, 2016, http://www.latimes.com/world/mexicoamericas/la-fg-canada-sajjan-profile-20160222-story.html.
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85. Well into the application process, it still had never occurred to Captain Singh that the Army would have a problem with his unshorn hair, beard, and turban. At a recruiting event at the Seattle Convention Center, an officer from West Point casually mentioned the beard, joking that Captain Singh must be trying to grow it all the way out before he had to shave it. Captain Singh explained that he wore his beard for religious reasons. The officer indicated that he would look into whether an accommodation would be possible. When he later called and conveyed that an accommodation was not possible, Captain Singh realized for the first time that he faced a real dilemma.
86. Still not comprehending that he would be barred from serving his country because of his articles of faith, Captain Singh pressed forward with his application. Considering all the countries where faithful Sikhs serve in militaries around the world with their articles of faith intact, Captain Singh believed that a way would open for him to both serve his country and remain true to his beliefs. Even on Reception Day, when entering West Point as a new cadet, Captain Singh continued to make inquiries about a religious accommodation. He separately approached two Majors, both of whom gave vague responses, saying they would inquire and get back to him.
87. As the induction process continued, however, and before Captain Singh fully understood what was happening, he found himself in the barbershop with the other cadets to be trimmed and shaved.
88. Forced into the untenable position of having to violate his Sikh religious requirements or lose the opportunity to attend West Point and serve his country, and believing he had no other option, Captain Singh succumbed under pressure and made the difficult decision to remove his turban, cut his hair, and shave his beard.
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89. Despite the intense physical rigor of his first weeks at West Point, most excruciating for Captain Singh was looking at himself in the mirror each morning to shave. He constantly regretted not having pursued his religious rights more aggressively.
90. While the demands of West Point forced him to focus on his training, he always knew he was violating his conscience and lying about who he really was. Experiencing significant shame and disappointment in himself, he committed to return to his articles of faith whenever the opportunity first arose.
Military Service 91. Notwithstanding the weight of his decision to compromise his Sikh religious practices, Captain Singh went on to serve his country with a deep commitment to service and excellence. 92. He graduated from West Point in 2010, receiving his Bachelor of Science degree in electrical engineering with Honors. Exhibit 2 (Academic Record, United States Military Academy at West Point). 93. After graduation, Captain Singh attended the Officer’s Basic Course at Fort Leonard Wood, Missouri. He was assigned to Military Occupational Specialty 12A for engineering and was posted to Fort Lewis, Washington, as Assistant Brigade Engineer on the Brigade Combat Team. 94. During this time, Captain Singh received high praise from his commanders. Exhibit 3 (Evaluation Report for Period of Feb. 15, 2011 through Jan. 3, 2012). In particular, Captain Singh was noted to be “the best lieutenant in the Brigade S3 section and one of the top 3 on the Brigade Staff.” Id. at 2. While posted at Fort Lewis, Captain Singh “seized the opportunity to attend and graduate Ranger School,” with his commander noting that “[h]e will be an extraordinary platoon leader” who should be promoted ahead of his peers. Id. At Ranger School, Captain Singh declined
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to request a special vegetarian diet to accommodate his religious beliefs because he wanted to survive on the same rations as everyone else. Instead, he gave away the meat in his rations to other soldiers. Though he lost thirty pounds, he never compromised his religious beliefs.
95. Upon successfully completing Ranger School, Captain Singh was assigned as platoon leader for a 24-soldier Route Clearance Platoon within the Stryker Brigade Combat Team. Exhibit 4 (Officer Evaluation Report for Period of Jan. 4, 2012 through Jan. 3, 2013). In that capacity, Captain Singh was forward-deployed to Operation Enduring Freedom in Kandahar Province from April 2012 to January 2013.
96. During his deployment, Captain Singh continued to receive the highest evaluations from his commanders:
1 LT Singh is the strongest engineer platoon leader in the battalion. Simmer deployed his Sapper platoon in a route clearance mission during OPERATION ENDURING FREEDOM in support of multiple battlespaces in Regional Command South clearing over 10,000 miles of road. He is an aggressive and meticulous leader who maintained high standards to impressive effect in combat. 1 LT Singh is a solid, unflappable performer who can be counted on in tough positions and arduous missions. Id. 97. In a subsequent Officer Evaluation Report, Captain Singh was “ranked number one of out of seven Officers” by his Company Commander, who also noted that as a “top performer, Simratpal makes any team he is on better. I would fight to serve with Simratpal again.” Exhibit 5 (Officer Evaluation Report for Period of Jan. 4, 2013 through Sept. 15, 2013), at 2. His LTC went on to note that CPT Singh’s performance “has been nothing short of superb through this rating period,” noting that his “ability to thrive in a dynamic and fluid situation make[s] him a vital asset to any team.” Id.
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98. Upon returning from his deployment, and as a result of his “exceptional and meritorious service,” Captain Singh was awarded a Bronze Star Medal (“BSM”). Exhibit 6 (Bronze Star Medal Awarded to then-1LT Simratpal Singh). Specifically, Captain Singh was nominated for the Bronze Star for his leadership as patrol leader on “over 170 route clearance patrols throughout Kandahar Province in support of Combined Task Force Lancer,” “defense of FOB Frontenac during a coordinated and sustained enemy attack,” including leading his platoon to “suppress[] and eventually counterattack[] the heavily armed insurgents.” Id. at 3.
99. Captain Singh also received an Army Achievement Medal in November 2013 for his performance during a joint training exercise with the South Korean Army. Exhibit 7 (The Army Achievement Medal Awarded to then-1LT Simratpal Singh (Nov. 5, 2013)).
100. Captain Singh’s exceptional performance continued following his return stateside, where he served as a Brigade Assistant S-4 for a rapidly deployable 4,100 Soldier Stryker Brigade Combat Team. In this role, he was recognized as “easily the best of four captains” that “has proven himself an invaluable asset to the team.” Exhibit 8 (Officer Evaluation Report for Period of Sept. 15, 2013, through Sept. 14, 2014), at 1. Captain Singh is viewed as “a top 10% officer” who is a “fit, talented leader with unlimited potential and a bright future.” Id. at 2.
101. During this time, Captain Singh received an Army Commendation Medal for his service. Exhibit 9 (Army Commendation Medal (Nov. 17, 2014)).
102. In January 2015, Captain Singh attended and completed the Engineer Captain’s Career Course at Fort Leonard Wood while simultaneously volunteering to obtain a Master’s Degree in engineering. Exhibit 10 (Certificate of Achievement, U.S. Army Engineer School, FT Leonard Wood, MO (June 26, 2015)).
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103. During this time period, he was noted to be a “highly skilled officer” who “displayed great leadership.” Exhibit 11 (CPT Simratpal Singh Service School Academic Evaluation Report for Period of Jan. 14, 2015, through June 26, 2015 (June 24, 2015)). It was also noted that “his presence and intellect greatly influenced his peers” and that he is “ready to command a company and will excel in any position of responsibility.” Id.
104. Last spring, Captain Singh attended the Pentagon’s Second Annual Vaisakhi Celebration Event. (Lisa Ferdinando, Pentagon celebrates Sikh new year, Vaisakhi, Army News Service, May 4, 2015, available at http://www.army.mil/article/147837/Pentagon_celebrates _Sikh_new_year__Vaisakhi/ (last visited Nov. 24, 2015)). This event, which celebrated one of the most significant holidays for Sikhs, included Sikh soldiers from various branches of the U.S. military. Id. The Pentagon’s deputy chaplain, Lieutenant Colonel Claude Brittian, noted the need to “stand up for the rights of others to celebrate in regards to their faith” and stated that Sikh soldiers in the U.S. military “who practice their faith should have the opportunity to share their faith.” Id.
105. At the event, Captain Singh met several Sikh soldiers who maintain their uncut hair and beards and wear turbans. Further convicted by seeing his fellow U.S. Army soldiers fully practicing their Sikh faith, and for the first time seeing a viable path to obtaining an accommodation, Captain Singh began taking steps towards requesting an exception through his chain-of-command.
106. In mid-October, Captain Singh completed his Master’s program and commenced on onemonth’s leave with orders to report to the 249th Engineer Battalion Prime Power at Fort Belvoir, Virginia, on November 16.
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107. Realizing that he needed to return to being fully observant of his Sikh articles of faith, and after religious consideration and consultation, Captain Singh concluded that this was the right time.
108. On October 16, 2015, Captain Singh informed his new immediate commander, Lieutenant Colonel Julie Balten, that he intended to report on November 16 wearing a turban and maintain unshorn hair and a beard. She expressed her view that this would have no adverse impact on Captain Singh’s ability to fulfill his responsibilities and promised to recommend that he be granted an accommodation.
109. The following day, Captain Singh submitted a letter to then-Secretary of the Army, John McHugh, and to then-Acting General Counsel for the Army, Robert Park, seeking assurance that he would not face disciplinary action as a result of his decision to maintain the Sikh articles of faith.
Effort to Obtain an Accommodation 110. With the understanding that an accommodation was viewed favorably and was being expedited, Captain Singh twice used personal leave to extend his report date, first to November 30 and then to December 14, to give the Army adequate opportunity to respond to his request. 111. On December 8, Defendants issued a thirty-day accommodation allowing Captain Singh to return to work while the permanent accommodation was presumably being finalized. 112. Then, on January 8, Defendants extended the temporary accommodation until March 31. 113. Wishing to proceed in good faith and to avoid legal conflict, and having received no indication that the accommodation would not be made permanent, Captain Singh again agreed to the extension without pursuing a legal remedy.
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114. Defendants were well aware that Captain Singh could not wait until the deadline for a final answer on his request for accommodation. Once the temporary accommodation expired, Captain Singh’s unshorn hair, turban, and beard would be in violation of the Uniform Code of Military Justice, exposing him to career-ending penalties for living his faith. Through his counsel, Captain Singh thus repeatedly made clear that he would need at least three weeks to seek injunctive relief should the accommodation be denied.
115. Then on February 24, just over a month before his temporary accommodation expired, Defendants abruptly escalated matters by sending Captain Singh a letter stating he would have to undergo rigorous safety testing because of his religion. Exhibit 16.
116. With respect to his helmet, Captain Singh was told he would have to be “evaluated” by a “technical expert” to determine whether he could safely “wear a patka” (a religious head covering worn beneath the turban), or whether he must “modify the length” or “bulk” of his hair, which are acts forbidden by his religion. Id.
117. With respect to his safety mask, Captain Singh was told he would have to undergo a series of tests, over multiple days, until he could “achieve a protection factor (PF) greater than 6667 in three of five successive tests.” Id.
118. Captain Singh was initially provided contact information for scheduling the evaluations on his own. Id.
119. But on the afternoon of Friday, February 26, he was ordered to report to his normal post for helmet testing the morning of Tuesday, March 1.
120. Later that evening, around 8:00 PM, he received supplemental orders to report to the Aberdeen Proving Ground in Maryland after his helmet testing for the safety mask evaluations.
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121. For no comprehensible reason, Captain Singh initially was going to be required to report and remain at the Proving Ground under escort.
122. Only after his immediate Commander provided assurances of his complete trustworthiness was he cleared to report on his own.
123. No other soldier in even remotely comparable circumstances has been treated in such a discriminatory fashion.
124. No soldiers undergo evaluation for helmet fit. Kalsi Decl. [Dkt. 2-2] ¶¶ 15-16; Lamba Decl. [Dkt. 2-3] ¶¶ 21-23.
125. Rather, soldiers are left to freely try on different helmets and make their own assessment of fit. Kalsi Decl. ¶¶ 15-16; Lamba Decl. ¶¶ 21-23.
126. Soldiers frequently adjust, remove, or add padding to their helmets on their own, again with no external evaluation, to ensure a personally satisfying fit. Kalsi Decl. ¶ 15; Lamba Decl. ¶ 22.
127. Captain Singh and others who have served in the Army for years have never even heard of getting an “expert” evaluation of helmet fit. Khalsa Decl. [Dkt. 2-4] ¶¶ 24-25; Lamba Decl. ¶¶ 22-24.
128. Even other Sikhs who have recently served in the Army with unshorn hair were never required to undergo evaluations to determine if they could safely wear their helmets. Kalsi Decl. ¶¶ 13-16; Lamba Decl. ¶¶ 21-23 Khalsa Decl. ¶¶ 24-25.
129. Similarly, with respect to safety masks, there are no hard-and-fast rules regarding how masks must “fit” for a soldier to be in the Army. The Army’s training guidance speaks only in
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terms of “protective mask confidence,” providing that commanders are required to conduct “a mask confidence exercise annually and prior to deployment.” AR 350-1, § G-27(i).
130. In reality, soldiers may go long periods of time without being subjected to mask-fit evaluations. Before the Wada memo, in his nearly ten years in the Army, Captain Singh had only undergone one mask exercise.
131. That exercise comprised sealing his mask, entering a gas chamber, removing the mask for one minute, and then replacing it.
132. On February 29, 2016, Captain Singh again successfully completed such a test along with his unit.
133. He donned a standard-issue gas mask and made a seal before entering a gas chamber with his unit. After the gas was released, they ran in place and did neck rotations to make sure the seal was maintained. He then used two fingers to break the seal on his mask before replacing it and recreating a seal. He completed the test without incident. Singh Decl. [Dkt. 16-2] ¶¶ 13-17.
134. This is consistent with the experience of other soldiers. Lamba Decl. ¶¶ 11-12, 20-23; Kalsi Decl. ¶¶ 11-14; Khalsa Decl. ¶¶ 24-27.
135. None of the Sikh soldiers with fully grown beards have had any difficulty passing the standard safety mask exercises. Lamba Decl. ¶¶ 11-12, 20-23 (stating that he would go early into the gas chamber and stay longer in it to prove the effectiveness of his protective mask seal); Kalsi Decl. ¶¶ 11-14 (stating that he and other Sikh soldiers successfully passed standard protective mask testing); Khalsa Decl. ¶¶ 24-27 (stating that the Navy permitted sailors cruising at sea to wear beards as long as they were more than one inch, because such beards could maintain an oxygenmask seal); see also Goldstein Decl. [Dkt. 37-6] ¶¶ 11-20, 24 (bearded Orthodox Jewish rabbi who
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served 38 years as a chaplain in the U.S. Army, successfully passed standard gas mask testing, and served in several deployed environments, including Granada, Iraq, Kuwait, Afghanistan, and Israel); Exhibit 17 (Dresin Decl. ¶¶ 8-11 (currently serving bearded Orthodox Jewish rabbi in U.S. Army; two deployments in Afghanistan)).
136. None were ever subjected to extensive testing because of their religion. Lamba Decl. ¶¶ 21-23; Kalsi Decl. ¶¶ 11-14; Khalsa Decl. ¶¶ 24-26; see also Goldstein Decl. [Dkt. 37-6], Ex. 1 (granting Rabbi Goldstein’s accommodation, which “remain[ed] in effect as long as Rabbi Goldstein remains a member of his current religious community”).
137. Similarly, soldiers who maintain beards for other reasons, such as medical issues or deployment, are not subject to any special testing and are not restricted in their duties because of their beards. See, e.g., Kalsi Decl. ¶¶ 11-14 (stating that the Special Forces soldiers at his Forward Operating Base in Afghanistan grew out their hair and beards but were not subject to non-standard protective mask testing).
138. Indeed, the Technical Bulletin for medical exceptions specifically provides that a soldier with a medical beard cannot be required to shave, unless his “unit is in, or about to enter, a situation where use of a protective mask is required and where inability to safely use the mask could endanger the Soldier and the unit.” Technical Bulletin Med. 287 § 2-6c(2), http://armypubs.army.mil/med/DR_pubs/dr_a/pdf/tbmed287.pdf (emphasis added).
139. The Bulletin emphasizes that the authority to force a shave cannot be used “for maneuvers and other tactical simulations. It should only be used when there is an actual need to wear the protective mask in a real tactical operation.” Id. § 2-6b(2).
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The Army’s regulations 140. The Army’s uniform regulations allow soldiers to wear religious headgear while in uniform if the headgear is (1) “subdued in color,” (2) “can be completely covered by standard military headgear,” (3) “bears no writing, symbols, or pictures,” and (4) “does not interfere with the wear or proper functioning of protective clothing or equipment.” Army Reg. 600-20, § 56h(4)(g) (http://www.apd.army.mil/pdffiles/r600_20.pdf). 141. Captain Singh’s turban would comply with all these requirements except that a matching turban would replace his standard issue headgear. Captain Singh will wear his unshorn hair neatly wrapped into his turban, well above the edge of his collar. 142. Allowing Captain Singh to wear his turban is consistent with Congressional intent as reflected in 10 U.S.C. § 774, which provides that “a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force” unless “the wearing of an item of religious apparel . . . would interfere with the performance of the member’s military duties; or . . . the item of apparel is not neat and conservative.” 143. In enacting this provision, Congress specifically contemplated protecting the right of Sikh service members to wear turbans. See, e.g., 133 Cong. Rec. 11851 (1987) (Statement of Rep. Schroeder); 133 Cong. Rec. 25250 (1987) (Statement of Sen. Lautenberg). 144. With respect to facial hair, Army regulations allow sideburns and a mustache as long as they are “neatly trimmed, tapered, and tidy.” Army Reg. 670-1, § 3-2a(2)(a)-(b), available at http://www.apd.army.mil/pdffiles/r670_1.pdf. 145. Although Captain Singh’s sideburns, mustache, and beard cannot be trimmed, they would be kept neat and tidy, with his beard tied and tucked close to his face:
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a. In non-field garrison settings, Captain Singh will wear a turban made of ACU camouflage material to match his uniform.
b. In field settings, Captain Singh will wear a field turban made of ACU camouflage material to match his uniform.
c. Captain Singh will wear his Kevlar helmet using the field turban or an ACU-pattern “patka” (small turban).
d. In settings where his Class A uniform is appropriate, Captain Singh will wear a black turban to match black standard-issue berets worn with Class A uniforms.
146. Department of Defense and Army regulations contemplate religious exceptions to the grooming policy. Department of Defense Instruction 1300.17 expressly provides that “the DoD places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” Dep’t of Def. Instruction 1300.17(4)(a), available at http://www.dtic.mil/whs/directives/corres/pdf/130017p.pdf.
147. Thus, it promises that “[r]equests for religious accommodation will be resolved in a timely manner and will be approved,” so long as they do not “adversely affect mission accomplishment, including military readiness, unit cohesion, good order, discipline, and health and safety.” Dep’t of Def. Instruction 1300.17(4)(e).
148. The actual process for obtaining an accommodation, however, is onerous. 149. In the Army, only a Deputy Chief of Staff at the G-1 level can grant a religious accommodation. Dep’t of Def. Instruction 1300.17(4)(f)(2)(a); AR 600-21, § 5-6i(1). The request, however, must first be submitted to the soldier’s immediate commander, who has no authority to grant or deny uniform and grooming requests, but has “ten working days” to make a recommendation to the G-1. Army Reg. 600-20, § 5-6i(2).
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150. The soldier must then obtain review by the unit chaplain and legal officer before appealing up through each level of command to the G-1. § 5-6i(5)-(7). Each officer up the chain can again make recommendations, but has no authority to grant or deny the request. § 5-6i(1). Once the first appeal of the chain is submitted, the regulations allow thirty days for request to make its way up to the G-1. § 5-6i(11). The G-1 then has another thirty days to make a final decision. § 5-6i(10).
151. Thus, depending on how long it takes to obtain the endorsements of unit chaplain and legal officer, it can easily take ninety days or more for the accommodation to be approved.
152. The governing regulations also provide that “new requests for the same accommodation are necessary upon new assignment, transfer of duty stations, or other significant changes in circumstances, including deployment.” DoDI 1300.17(4)(j).
153. During the time an accommodation is pending, the person requesting it is required to comply with the uniform and grooming regulations, even if doing so violates their religious beliefs. Dep’t of Def. Instruction 1300.17(4)(g) (“Service members . . . will comply with the policy, practice, or duty from which they are requesting accommodation . . . unless and until the request is approved.”); Army Reg. 600-20, § 5-6i(1) (same).
154. Army policy and Congressional guidance, however, are trending toward eliminating the requirement that soldiers be forced to violate their faith while accommodation requests are pending. Exhibit 15 (USAREC Message 15-032) (policy allowing incoming soldiers and officers to maintain their articles of faith while awaiting accommodation determinations).
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155. In contrast, soldiers who need a medical exception for a beard can get one by having their doctor enter a “permanent profile” in their file, which is only reassessed annually. Technical Bulletin Med 287 § 2-6b(2) (http://armypubs.army.mil/med/DR_pubs/dr_a/pdf/tbmed287.pdf).
156. The Technical Bulletin for medical exceptions acknowledges that “[t]he existence of a beard does not prevent performance of most military duties.” Id. § 2-6c(1).
157. Therefore, the Technical Bulletin continues, “the fact that a profile is awarded authorizing the growth of a beard should not ordinarily require any functional limitations requiring a change or limitation in the performance of military duties.” Id.
158. A soldier with a medical beard exception cannot be required to shave, unless his “unit is in, or about to enter, a situation where use of a protective mask is required and where inability to safely use the mask could endanger the Soldier and the unit.” Id. § 2-6c(2). This authority cannot be used “for maneuvers and other tactical simulations. It should only be used when there is an actual need to wear the protective mask in a real tactical operation.” Id.
159. Since 2007, the Army has authorized “at least 49,690 permanent shaving profiles and 57,616 temporary shaving profiles.” Singh v. McHugh, 109 F. Supp. 3d 72, 78 (D.D.C. 2015). This includes “not only enlisted men but officers bound to ensure that the men who serve under them are clean-shaven.” Id.
160. In the Singh v. McHugh litigation, the Army did not “claim[] or show[] that even one of the more than 100,000 soldiers who have been permitted to grow a beard since 2007—including many who have served in deployed environments—have been ordered to shave it for any reason.” Singh, 109 F. Supp. 3d at 96.
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161. Indeed, the Army admitted that it “does not always enforce grooming policies pertaining to beards” even “when operational necessity requires.” Id. at 95 n.17.
162. This flexible treatment is evident from the experience of many Special Forces soldiers who served in Afghanistan while growing and wearing full beards.
Other Sikhs in the Army 163. Captain Singh is not the first observant Sikh to serve in the military. 164. Indeed, Sikhs proudly served in the U.S. Army without impediment during the Vietnam War and prior conflicts dating back to World War I. 165. Around 1981, however, military policy was changed to prohibit exemptions to the uniform requirements for visible articles of faith. While some exceptions subsequently were made for the Jewish yarmulke, the general rule was that turban-wearing Sikhs maintaining unshorn hair and beards were disallowed from serving. See Dep’t of Def. Instruction of Feb, 3, 1988, 1330.17; Army Reg. 600-20 §§ 5-6 (4)(g) (2009) (“The Army does not accommodate exceptions to personal grooming standards for religious reasons . . . .”). 166. On information and belief, many Sikhs who were already in the Army were grandfathered under the 1981 policy change and allowed to continue their service. 167. One of these soldiers, Colonel Gopal S. Khalsa, served in the Special Forces Unit for ten years on Parachute Status and as a Battalion Commander overseeing an 800-person intelligence group. Khalsa Decl. ¶¶ 12-13, 17. He received a Meritorious Service Medal and Silver Oak Leaf Cluster Award, among many other honors, and in 2004, was inducted into the Officer Candidate School Hall of Fame. Khalsa Decl. ¶¶ 8, 21.
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168. Another Sikh soldier, Sergeant Sevak Singh Kroesen, was attached to the Signal Company, 11th Special Forces Group, after which he successfully completed airborne (paratrooper) and Radio Teletype Transmission Operator training. He then completed his Special Forces Qualification Courses and became a Special Forces Communications Sergeant. Sergeant Kroesen subsequently completed his schooling, training, and missions around the world, all with honor and distinction. He was honorably discharged from active duty in 1991.
169. Sergeant Kirnbir Singh Grewal served in the U.S. Army from 1977 to 1984. Throughout his time in the military, he used the same standard-issue gas mask and helmet as other members of the Army. Indeed, his responsibilities included teaching other soldiers to use protective gear to survive nuclear and biological warfare.
170. These and other Sikh soldiers served with distinction, all while maintaining their Sikh articles of faith.
171. In 2009 and 2010, three other Sikhs were granted religious accommodations, allowing them to serve in the Army with their articles of faith intact.
172. The first, Major Kamaljeet S. Kalsi received an accommodation in October 2009 and began active duty in June 2010. Kalsi Decl. ¶¶ 5-6. He was also deployed to Afghanistan in 2011 and was awarded a Bronze Star Medal upon his return for his exceptional service. Id. ¶ 6-8. His superiors have noted that he has “consistently demonstrated a strong commitment to improving Army Medicine,” “exceeded all expectations,” and “possesses absolutely unlimited potential as a leader.” Exhibit 14 at 2 (Major Kalsi Officer Evaluation Report from 2011). He is currently in the U.S. Army Reserve Officer Corps.
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173. Major Tejdeep S. Rattan, a dentist, received an accommodation in December 2009 and entered active duty in January 2010. Rattan Decl. [Dkt. 37-1] ¶¶ 8-9. In 2011, he was deployed to Afghanistan where he volunteered to serve in a remote forward operating base. His superiors have noted that he “wears the uniform with pride”; has “[m]ilitary bearing” that is “beyond reproach”; is a “charismatic officer who leads from the front” and “serves as a great mentor for less experienced officers”; and “[i]nspires, motivates, and encourages subordinates.” Exhibit 13 (Major Rattan Officer Evaluation Report from 2014).
174. Corporal Simran Preet S. Lamba, received an accommodation in August 2010 and began active duty in September 2010. Lamba Decl. ¶¶ 8, 3. Fluent in Punjabi and Hindi, he was recruited through the MAVNI program for his cultural and language skills. He served in a medical battalion as a Soldier Medic and was recognized as a “tremendous Soldier” who “had an amazing impact on his peers and supervisors.” In June 2014, he received an Army Commendation Medal for his selfless service and dedication to duty. He is currently in the Individual Ready Reserve. Exhibit 12; see also Lamba Decl.
175. The Sikh articles of faith of these three recently accommodated U.S. Army soldiers in no way impeded their military service—even while deployed abroad in hostile territory.
176. The government thus has no interest in excluding Sikhs from the U.S. military, much less a compelling one.
177. Nevertheless, after Corporal Lamba’s accommodation was granted in August 2010, Defendants rejected efforts by multiple other Sikhs to enlist in the military because of their articles of faith.
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178. Similarly, Sikh service members who had been granted accommodations were subjected to discriminatory treatment because of their articles of faith.
179. For example, after voluntarily serving in Afghanistan and receiving awards for exemplary performance, Major Rattan returned stateside to be relocated to a highly selective residency in dental surgery and an important training course. Rattan Decl. ¶¶ 13-17. But before he could relocate, the Army ordered him to reapply for the religious accommodation that he had already received in 2009. Id. ¶ 18. And even though relocations require lengthy preparations— finding and purchasing a new home, arranging household moving, arranging travel, and so forth— the Army took almost three months to re-grant the accommodation, finally issuing it just five days before the start of Major Rattan’s courses. Id. ¶¶ 19-20. This caused significant personal, financial, and familial hardship—and all for reasons never imposed on non-Sikhs. Id. ¶¶ 21-24.
180. Even after Defendants revised their regulations in January 2014 to make religious accommodations more accessible, Sikh enlistees continued to be subjected to onerous conditions for obtaining an accommodation for their turbans and beards.
181. For example, one service member’s request for accommodation was delayed for nearly 240 days and another’s for nearly 180 days before both were granted on April 8, 2016, after they filed suit against the Army.
182. Defendants’ existing regulations, Captain Singh’s accommodation, and the Army’s policies and practices with respect to religious accommodations for Sikhs impose a substantial burden on Captain Singh’s religious exercise.
CLAIMS COUNT I
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Violation of the Religious Freedom Restoration Act Substantial Burden
183. Captain Singh incorporates by reference all preceding paragraphs. 184. Captain Singh’s sincerely-held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these beliefs is a religious exercise. 185. The Army’s grooming and personal appearance regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise. 186. The Army’s accommodation regulations create government-imposed coercive pressure on Captain Singh to change or violate his religious beliefs by
(a) requiring him to re-apply for the same accommodation every time he has a “new assignment, transfer of duty stations, or other significant change in circumstances, including deployment”;
(b) providing no reasonable limit on the time for resolving requests for accommodation; and
(c) requiring him to comply with grooming and personal appearance regulations that violate his religious beliefs while any of his requests for accommodation are pending. 187. These regulations chill Captain Singh’s religious exercise. 188. The Army’s regulations impose a substantial burden on Captain Singh’s religious exercise. 189. The Army’s regulations do not further a compelling governmental interest as applied to Captain Singh.
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190. Applying the Army’s grooming and personal appearance regulations to Captain Singh is not the least restrictive means of furthering any compelling governmental interest.
191. The Army’s accommodation regulations in DoDI 1300.17 are not the least restrictive means of furthering any compelling governmental interest.
192. The temporary accommodation granted Captain Singh on March 31, 2016 is not the least restrictive means of furthering any compelling governmental interest.
193. The Army’s enforcement of its grooming and personal appearance regulations thus violate rights secured to Captain Singh by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq.
194. The Army’s extension of Captain Singh’s temporary accommodation does not negate the need for injunctive and declaratory relief, absent which Captain Singh has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Burden on Religious Exercise 195. Captain Singh incorporates by reference all preceding paragraphs. 196. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 197. The Army’s grooming and personal appearance regulations are not neutral. 198. The Army’s grooming and personal appearance regulations are not generally applicable.
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199. Defendants have created categorical exemptions and individualized exemptions from its grooming and personal appearance regulations.
200. The Army’s regulations create government-imposed coercive pressure on Captain Singh to change or violate his religious beliefs.
201. The Army’s regulations chill Captain Singh’s religious exercise. 202. The Army’s regulations expose Captain Singh to substantial consequences for his religious exercise, including military discipline and the loss of his career. 203. The Army’s regulations burden Captain Singh’s religious exercise. 204. The Army’s regulations further no compelling governmental interest. 205. The Army’s regulations do not further a compelling governmental interest and are not the least restrictive means of furthering Defendants’ stated interests. 206. The Army’s accommodation regulations in DoDI 1300.17 are not the least restrictive means of furthering any compelling governmental interest. 207. The temporary accommodation granted Captain Singh on March 31, 2016, is not the least restrictive means of furthering any compelling governmental interest. 208. The Army’s enforcement of its grooming and personal appearance regulations thus violate Captain Singh’s rights as secured to him by the Free Exercise Clause of the First Amendment of the United States Constitution. 209. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 33

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Intentional Discrimination 210. Captain Singh incorporates by reference all preceding paragraphs. 211. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 212. Historically, the Army has allowed Sikhs to serve in the military with their articles of faith intact. 213. In the past six years the Army has admitted at least three other observant Sikhs, allowing them to serve in the military without violating their religious convictions. 214. Defendants subjected Captain Singh to rigorous testing that it has not subjected to any other soldiers, including other observant Sikhs instead of granting him an accommodation. 215. Defendants’ written order granting Captain Singh an accommodation imposes conditions that are not imposed on other service members exercising protected civil rights while serving their country. 216. Defendants have no legitimate basis for denying Captain Singh a complete religious accommodation. 217. Defendants denied Captain Singh a complete accommodation because of his religion. 218. Defendants targeted Captain Singh for heightened scrutiny because he requested an accommodation for his religious beliefs. 219. The Army’s regulations and the threatened enforcement of the regulations against Captain Singh thus violate his rights under the Free Exercise Clause of the First Amendment of the United States Constitution.
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220. Absent injunctive and declaratory relief against the Mandate, Captain Singh has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech 221. Captain Singh incorporates by reference all preceding paragraphs. 222. The Army’s regulations prohibit Captain Singh from expressing his faith through wearing his turban, wearing uncut hair, and maintaining a beard. 223. The Army’s regulations place a chilling effect on Captain Singh’s speech. 224. The Army’s regulations constitute content discrimination. 225. The Army’s regulations constitute viewpoint discrimination. 226. As applied to Captain Singh, the Army’s grooming and personal appearance regulations are not necessary for good order, discipline or national security and do not satisfy strict scrutiny. 227. The Army’s enforcement of its grooming and personal appearance regulations against Captain Singh thus his rights under the Free Speech Clause of the First Amendment of the United States Constitution. 228. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT V Violation of the Fifth Amendment to the United States Constitution
Due Process 229. Captain Singh incorporates by reference all preceding paragraphs. 230. Free exercise of religion is a fundamental right.
35

Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 38 of 41
231. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban, cutting his hair, or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise.
232. Captain Singh’s fundamental right to engage in religious exercise has been burdened by the Army’s regulations and its denial of a religious accommodation.
233. The Army’s enforcement of its grooming and personal appearance regulations against Captain Singh thus violate his rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.
234. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT VI Violation of the Fifth Amendment to the United States Constitution
Equal Protection 235. Captain Singh incorporates by reference all preceding paragraphs. 236. Other military service members similarly situated to Captain Singh have been granted accommodations for their religious exercise. 237. The Army accommodates other types of personal expression of other service members. 238. The Army accommodates the grooming and attire preferences or needs of other service members. 239. The Army’s enforcement of its grooming and personal appearance regulations against Captain Singh thus violate his rights under the Equal Protection Clause of the Fifth Amendment to the United States Constitution.
36

Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 39 of 41
240. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
COUNT VII Violation of the Fifth Amendment to the United States Constitution
Procedural Due Process 241. Captain Singh incorporates by reference all preceding paragraphs. 242. Captain Singh’s sincerely held religious beliefs prohibit him from removing his turban or cutting his hair or shaving his beard. Captain Singh’s compliance with these religious beliefs is a religious exercise. 243. Enforcement of the Army’s regulations against Captain Singh would result in the loss of his livelihood as a soldier and violate his procedural due process rights by wrongfully impairing his property and liberty interests. 244. Absent injunctive and declaratory relief against the Army’s regulations, Captain Singh has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Captain Singh requests that the Court:
a. Declare that the Religious Freedom Restoration Act requires the Army to accommodate Captain Singh’s religious exercise in maintaining uncut hair and a beard and wearing a turban;
b. Declare that the First Amendment of the United States Constitution requires the Army to accommodate Captain Singh’s religious exercise in maintaining uncut hair and a beard and wearing a turban.
37

Case 1:16-cv-00399-BAH Document 49 Filed 05/23/16 Page 40 of 41
c. Declare that the Fifth Amendment of the United States Constitution requires Defendants to accommodate Captain Singh’s religious exercise in maintaining uncut hair and a beard and wearing a turban.
d. Issue a permanent injunction (1) enjoining Defendants from enforcing the Army’s grooming and personal appearance regulations against Captain Singh insofar as they require him to cut his hair, shave his beard, or cease wearing his turban; (2) ordering Defendants to permit Captain Singh to continuing serving in the Army without regard to his unshorn hair and beard and a turban; (3) ordering that the injunction will apply to all Army positions that Captain Singh will hold in the future, unless the Army makes an individualized showing with respect to a specific position that Captain Singh’s articles of faith would impede military readiness or mission accomplishment; and (4) ordering that—should the Army make such a showing—Captain Singh may not be subjected to the Uniform Code of Military Justice or other disciplinary proceedings for maintaining his articles of faith without first being offered an alternative position or an honorable discharge from the Army.
e. Nominal damages. f. Award Captain Singh the costs of this action and reasonable attorney fees; and g. Award such other and further relief as it deems equitable and just.
JURY DEMAND Captain Singh requests a trial by jury on all issues so triable.
Respectfully submitted this 23d day of May, 2016.
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s/ Eric S. Baxter Eric S. Baxter (D.C. Bar No. 479221) Eric C. Rassbach (D.C. Bar No. 493739) Diana M. Verm (D.C. Bar No. 1811222) Daniel Blomberg (D.D.C. Bar No. SC0001) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC 20036 (202) 955-0095 (202) 955-0090 ebaxter@becketfund.org Amandeep S. Sidhu (D.C. Bar No. 978142) Emre N. Ilter (D.C. Bar No. 984479) McDermott Will & Emery LLP 500 North Capitol Street, N.W. Washington , DC, 20001 (202) 756-8000 PHONE (202) 756-8087 FAX asidhu@mwe.com Harsimran Kaur Dang (D.C. Bar No. 493428) Gurjot Kaur (D.D.C. Bar No. NY0218) The Sikh Coalition 50 Broad Street, Suite 1537 New York, NY, 10004 (212) 655-3095 PHONE harsimran@sikhcoalition.org Counsel for Plaintiff
39

 
 Case 1:16-cv-00399-BAH Document 52 Filed 07/04/16 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIMRATPAL SINGH, Plaintiff, v.
ASHTON B. CARTER, et al., Defendants.

Civil Action No. 1:16-cv-00399-BAH
RULE 41(a)(1)(A) NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A), Plaintiff Captain Simratpal Singh files this notice voluntarily dismissing his claims without prejudice. Captain Singh’s dismissal is made with the hopeful expectation that the successful integration of Sikh Americans into the United States military will continue to advance outside the context of this legal proceeding. Captain Singh has reached this conclusion based on the following facts:
(1) In response to this lawsuit, Defendants granted Captain Singh a “long-term accommodation,” extending his earlier accommodation for at least one year from March 31, 2016. Dkt. 26-1 ¶ 6; Dkt. 51-1 at 7.
(2) Defendants have now provided repeated written assurances to both Captain Singh and this Court that Captain Singh will not be subjected to heightened, individualized testing concerning his helmet and safety mask. See Dkt. 35 at 30 n.11; Dkt. 51-1 at 7.
(3) Defendants have now provided repeated written assurances to Captain Singh and this Court that, although Assistant Secretary of the Army (Manpower & Reserve Affairs) Debra Wada “intends to re-evaluate Plaintiff’s accommodation in one year, this does

1

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not require Plaintiff to submit a new accommodation request at that time.” Dkt. 26 at 3; Dkt. 51-1 at 7. (4) Defendants have provided written assurances to Captain Singh and this Court that “the Army intends to gather information to develop uniform standards for religious accommodations,” Dkt. 26 at 1; see also Dkt 26-1 ¶ 3, presumably for the purpose of ensuring that other Sikhs are accommodated without undue burden on their religious exercise. (5) Defendants have now provided written assurances to Captain Singh and this Court that Assistant Secretary Debra Wada “has determined that Plaintiff is not required to submit a new accommodation request” with every new assignment, transfer of duty station, or other significant change in circumstances, including deployment, “as is her discretion under [DODI 1300.17(4)(j)].” Dkt. 51-1 at 15; see also id. at 14 (Captain Singh “will not have to re-apply for the same accommodation”). (6) The current accommodation provides assurance that no change will be made to Captain Singh’s accommodation without a careful evaluation by Captain Singh’s “chain of command,” and without that evaluation being “expeditiously forwarded” to Secretary Wada for a final determination. Dkt. 26-1 ¶ 2. (7) Further, Defendants have now provided clear written assurances to Captain Singh and this Court that any modification to Captain Singh’s accommodation “will be done in compliance with the RFRA standard.” See Dkt. 41-1 at 15; Dkt. 51-1 at 7, 14. Thus, a modification that substantially burdened Captain Singh’s religious exercise would only be permissible where Defendants can prove that, as applied to Captain Singh and his specific circumstances, they have a compelling interest to require modification, that

Case 1:16-cv-00399-BAH Document 52 Filed 07/04/16 Page 3 of 5
modification is in furtherance of that interest, and that there is no less restrictive means of furthering that interest. Singh v. Carter, ---F. Supp.3d---, 2016 WL 837924, at *8 (D.D.C. March 3, 2016). Because these facts indicate that for at least one year, Captain Singh will not be subjected to adverse treatment because of his Articles of Faith, by which time Captain Singh expects that the Army will have legally sufficient accommodation guidelines in place, Captain Singh voluntarily dismisses this action with the expectation that the Army will act in good faith. Should the Army fail to accommodate his religious exercise in the manner required by the Religious Freedom Restoration Act and the First and Fourteenth Amendments of the United States Constitution, Captain Singh reserves the right to renew this litigation. For example, were the Army to withdraw the accommodation simply because Captain Singh is “assigned or directed to perform hazardous duties . . . or to operate in a hazardous environment,” without first demonstrating that it had a compelling interest in doing so and no less restrictive measures, Dkt. 26-1 ¶ 2, then Captain Singh may seek legal redress. Similarly, should the Army burden Captain Singh’s religious exercise based on the “troubling” “quarterly assessments of the effect of the accommodation, if any, on unit cohesion and morale, good order and discipline, health and safety, and individual and unit readiness,” Captain Singh may also seek legal redress. Dkt. 26-1 ¶ 4; Dkt. 47 at 15. As the Army, however, has now promised to comply with its obligations under the Religious Freedom Restoration Act and the United States Constitution, Captain Singh dismisses this lawsuit without prejudice. Captain Singh looks forward to the day when all Sikh Americans will be able to serve their country while observing their faith.

Case 1:16-cv-00399-BAH Document 52 Filed 07/04/16 Page 4 of 5
Respectfully submitted this 4th day of July, 2016.
Eric S. Baxter (D.C. Bar No. 479221) Eric C. Rassbach (D.C. Bar No. 493739) Diana M. Verm (D.C. Bar No. 1811222) Daniel Blomberg (D.D.C. Bar No. SC0001) The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW, Suite 700 Washington, DC, 20036 (202) 955-0095 PHONE (202) 955-0090 FAX ebaxter@becketfund.org
Amandeep S. Sidhu (D.C. Bar No. 978142) Emre N. Ilter (D.C. Bar No. 984479) McDermott Will & Emery LLP 500 North Capitol Street, N.W. Washington , DC, 20001 (202) 756-8000 PHONE (202) 756-8087 FAX asidhu@mwe.com
Harsimran Kaur Dang (D.C. Bar No. 493428) Gurjot Kaur (D.D.C. Bar No. NY0218) The Sikh Coalition 50 Broad Street, Suite 1537 New York, NY, 10004 (212) 655-3095 PHONE harsimran@sikhcoalition.org
Counsel for Plaintiff

Case 1:16-cv-00399-BAH Document 52 Filed 07/04/16 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Court’s ECF system on July 4, 2016, and was thereby electronically served on counsel for Defendants.
Eric S. Baxter
5

 
 Case: 1:16-cv-399 As of: 12/14/2018 03:11 PM EST 1 of 8
CLOSED,JURY,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:16−cv−00399−BAH

SINGH v. CARTER et al Assigned to: Chief Judge Beryl A. Howell Case: 1:16−cv−00581−BAH Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 02/29/2016 Date Terminated: 07/05/2016 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

SIMRATPAL SINGH

represented by Amandeep S. Sidhu MCDERMOTT WILL & EMERY LLP McDermott Building 500 North Capitol Street, NW Washington, DC 20001 (202) 756−8380 Fax: (202) 591−2741 Email: asidhu@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emre N Ilter MCDERMOTT WILL & EMERY LLP McDermott Building 500 North Capitol Street, NW Washington, DC 20001 (202) 756−8395 Email: eilter@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S. Baxter THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036 (202) 349−7221 Fax: 202−955−0090 Email: ebaxter@becketlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel H. Blomberg BECKET FUND FOR RELIGIOUS LIBERTY 1124 Park West Blvd. Suite 204 Mt. Pleasant, SC 29466 (202) 349−7222 Email: dblomberg@becketfund.org ATTORNEY TO BE NOTICED

Diana Marie Verm BECKET FUND 1200 New Hampshire Ave., NW Ste. 700 Washington, DC 20036 (202) 349−7225 Email: dverm@becketfund.org ATTORNEY TO BE NOTICED

Case: 1:16-cv-399 As of: 12/14/2018 03:11 PM EST 2 of 8

Eric Christopher Rassbach THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 349−7214 Email: erassbach@becketlaw.org ATTORNEY TO BE NOTICED
Gurjot Kaur SIKH COALITION 50 Broad Street Suite 1637 New York, NY 10004 (212) 655−3095 ext 85 Email: gurjot@sikhcoalition.org ATTORNEY TO BE NOTICED

V. Defendant ASHTON B. CARTER in his official capacity as Secretary of Defense
Defendant UNITED STATES DEPARTMENT OF DEFENSE

represented by Derrick Wayne Grace U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2574 Fax: (202) 514−8780 Email: derrick.grace@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter C. Pfaffenroth U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2513 Fax: (202) 252−2599 Email: peter.pfaffenroth@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel James Everett U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Suite 4408 20530, DC (703) 693−1010 Email: daniel.j.everett4.mil@mail.mil ATTORNEY TO BE NOTICED
represented by Derrick Wayne Grace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter C. Pfaffenroth (See above for address)

Case: 1:16-cv-399 As of: 12/14/2018 03:11 PM EST 3 of 8

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel James Everett (See above for address) ATTORNEY TO BE NOTICED

Defendant
PATRICK J. MURPHY in his official capacity as Acting Secretary of the U.S. Army TERMINATED: 05/23/2016

represented by Derrick Wayne Grace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Pfaffenroth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel James Everett (See above for address) ATTORNEY TO BE NOTICED

Defendant
JAMES C. MCCONVILLE LIEUTENANT GENERAL, in his official capacity as Deputy Chief of Staff

represented by Derrick Wayne Grace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Pfaffenroth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel James Everett (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF THE ARMY

represented by Derrick Wayne Grace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Pfaffenroth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel James Everett (See above for address) ATTORNEY TO BE NOTICED

Defendant
ERIC K. FANNING in his official capacity as Secretary of the U.S. Army

represented by Derrick Wayne Grace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:16-cv-399 As of: 12/14/2018 03:11 PM EST 4 of 8

02/29/2016
02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016 02/29/2016
02/29/2016 02/29/2016
02/29/2016

1 COMPLAINT against ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY ( Filing fee $ 400, receipt number 4616076213) with Jury Demand filed by SIMRATPAL SINGH. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(zrdj) (Entered: 02/29/2016)
Summons (5) Issued as to ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY. (zrdj) (Entered: 02/29/2016)
2 MOTION for Temporary Restraining Order by SIMRATPAL SINGH (Attachments: # 1 Memorandum in Support, # 2 Exhibit A −− Kalsi Declaration, # 3 Exhibit B −− Lamba Declaration, # 4 Exhibit C −− Khalsa Declaration, # 5 Text of Proposed Order)(zrdj) (Entered: 02/29/2016)
3 MOTION for Preliminary Injunction by SIMRATPAL SINGH (Attachments: # 1 Text of Proposed Order)(See docket entry 2 for combined Memorandum and exhibits)(zrdj) (Entered: 02/29/2016)
NOTICE of Hearing: The parties shall take notice that a Hearing on a Motion for Temporary Restraining Order is scheduled for 2/29/2016 at 3:00 PM in Courtroom 15 before Judge Beryl A. Howell. (tg) (Entered: 02/29/2016)
4 NOTICE of Appearance by Derrick Wayne Grace on behalf of All Defendants (Grace, Derrick) (Entered: 02/29/2016)
5 NOTICE of Appearance by Emre Nizam Ilter on behalf of SIMRATPAL SINGH (Ilter, Emre) (Entered: 02/29/2016)
6 NOTICE of Appearance by Amandeep S. Sidhu on behalf of SIMRATPAL SINGH (Sidhu, Amandeep) (Entered: 02/29/2016)
7 NOTICE of Appearance by Eric S. Baxter on behalf of SIMRATPAL SINGH (Baxter, Eric) Modified on 3/1/2016 (zrdj). (Entered: 02/29/2016)
8 NOTICE of Appearance by Amandeep S. Sidhu on behalf of SIMRATPAL SINGH (Sidhu, Amandeep) (Entered: 02/29/2016)
9 Memorandum in opposition to re 2 MOTION for Temporary Restraining Order, 3 MOTION for Preliminary Injunction filed by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY. (Attachments: # 1 Appendix)(Grace, Derrick) (Entered: 02/29/2016)
Minute Entry for proceedings held before Judge Beryl A. Howell: Motion Hearing held on 2/29/2016 re: 2 Motion for Temporary Restraining Order filed by Plaintiff SIMRATPAL SINGH. (Court Reporter: Elizabeth Saint−Loth). (jth) (Entered: 02/29/2016)
MINUTE ORDER (paperless) DIRECTING, as ordered by the Court at the hearing held on February 29, 2016, (1) the defendant, by noon on March 1, 2016, to submit a response to the plaintiff's assertion that he was told, on February 26, 2016, that he would be "escorted" to required testing on March 1, 2016, including any verification of this communication to the plaintiff and, if this assertion is verified, an explanation for it; (2) the parties, by noon on March 1, 2016, to provide a proposed briefing schedule for the plaintiff's 3 Application for Preliminary Injunction, including any reasons why the plaintiff's motion for preliminary injunctive relief should not be resolved in conjunction with the plaintiff's 2 Application for Temporary Restraining Order, which due to the defendant's postponement of the testing order to the plaintiff must be resolved by March 3, 2016; and (3) the plaintiff, by 5:00 p.m. on March 1, 2016, to submit any reply to the defendant's 120−page 9 Opposition to Plaintiffs Motion for a Temporary Restraining Order. Signed by Judge Beryl A. Howell on February 29, 2016. (lcbah3) (Entered: 02/29/2016)
10 STANDING ORDER. Signed by Judge Beryl A. Howell on February 29, 2016. (lcbah3) (Entered: 02/29/2016)

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02/29/2016 03/01/2016 03/01/2016
03/01/2016
03/01/2016 03/01/2016
03/01/2016
03/01/2016
03/01/2016 03/01/2016 03/01/2016
03/02/2016 03/02/2016 03/03/2016

11 NOTICE of Appearance by Peter C. Pfaffenroth on behalf of All Defendants (Pfaffenroth, Peter) (Entered: 02/29/2016)
12 AFFIDAVIT re 2 MOTION for Temporary Restraining Order Declaration of Harsimran Kaur Dang by SIMRATPAL SINGH. (Sidhu, Amandeep) (Entered: 03/01/2016)
Set/Reset Deadlines: Defendant's Response to Order of the Court regarding testing on 3/1/2016 due by noon on 3/1/2016; Joint proposed briefing schedule due by noon on 3/1/2016; Plaintiff's Reply to Defendant's 9 Opposition to Plaintiff's Motion for Temporary Restraining Order due by 5:00 p.m. on 3/1/2016. (tg) (Entered: 03/01/2016)
13 NOTICE regarding allegation the Captain Singh was to be escorted to appointments by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Exhibit)(Grace, Derrick) (Entered: 03/01/2016)
14 PROPOSED BRIEFING SCHEDULE re 3 MOTION for Preliminary Injunction by SIMRATPAL SINGH. (Sidhu, Amandeep) (Entered: 03/01/2016)
15 Consent MOTION for Extension of Time to file proposed briefing schedule until 5:00 PM by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 03/01/2016)
ORDER granting the defendants' 15 Motion for Enlargement of Time Until 5:00 P.M. Today. The defendants shall, by 5:00 p.m. on March 1, 2016, file a proposed briefing schedule, as directed in the Court's February 29, 2016 Minute Order. Signed by Judge Beryl A. Howell on March 1, 2016. (lcbah3) (Entered: 03/01/2016)
NOTICE OF ERROR re 8 Notice of Appearance; emailed to asidhu@mwe.com, cc'd 5 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. Counsel is instructed to refile said pleading using their assigned password/login. (LCvR R 5.4(b)) (zrdj, ) (Entered: 03/01/2016)
Set/Reset Deadlines: Defendants' proposed briefing schedule due by 5:00 p.m. on 3/1/2016. (tg) (Entered: 03/01/2016)
16 REPLY to opposition to motion re 2 MOTION for Temporary Restraining Order filed by SIMRATPAL SINGH. (Attachments: # 1 Declaration Baxter Declaration, # 2 Declaration Singh Declaration)(Baxter, Eric) (Entered: 03/01/2016)
17 MOTION for Briefing Schedule for Preliminary Injunction by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 03/01/2016)
18 NOTICE of Appearance by Eric Christopher Rassbach on behalf of SIMRATPAL SINGH (Rassbach, Eric) Modified on 3/3/2016 (zrdj). (Entered: 03/02/2016)
19 RESPONSE re 17 MOTION for Briefing Schedule for Preliminary Injunction filed by SIMRATPAL SINGH. (Baxter, Eric) (Entered: 03/02/2016)
20 TRANSCRIPT OF HEARING for Temporary Restraining Order before Judge Beryl A. Howell held on 02−29−2016; Page Numbers: 1 − 78. Date of Issuance:03−03−2016. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202−354−3242, Transcripts may be ordered by submitting the <a href=http://www.dcd.uscourts.gov/dcd/node/2189>Transcript Order Form.</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90

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03/03/2016 03/03/2016 03/03/2016 03/04/2016 03/04/2016 03/04/2016
03/04/2016
03/31/2016 03/31/2016
04/01/2016 04/01/2016 04/01/2016

days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 3/24/2016. Redacted Transcript Deadline set for 4/3/2016. Release of Transcript Restriction set for 6/1/2016.(Saint−Loth, Elizabeth) (Entered: 03/03/2016)
21 NOTICE of Rescheduled Testing by SIMRATPAL SINGH (Attachments: # 1 Exhibit A)(Baxter, Eric) (Entered: 03/03/2016)
22 ORDER granting the plaintiff's 2 Application for Temporary Restraining Order. Accordingly, the parties shall, by 5:00 p.m. on March 4, 2016, jointly submit a proposed briefing schedule to govern further proceedings in this matter. See Order for further details. Signed by Judge Beryl A. Howell on March 3, 2016. (lcbah3) (Entered: 03/03/2016)
23 MEMORANDUM OPINION regarding the plaintiff's 2 Application for Temporary Restraining Order. Signed by Judge Beryl A. Howell on March 3, 2016. (lcbah3) (Entered: 03/03/2016)
Set/Reset Deadlines: Joint proposed briefing schedule due by 5:00 p.m. on 3/4/2016. (tg) (Entered: 03/04/2016)
24 Joint MOTION for Briefing Schedule for Plaintiff's Request for Preliminary Injunction by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 03/04/2016)
MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER to control the timing of proceedings in this matter, upon consideration of the parties' 24 Joint Proposed Briefing Schedule: (1) the defendants shall, by April 1, 2016, notify the Court regarding any action taken on the plaintiff's request for religious accommodation; (2) the plaintiff shall, by April 2, 2016, notify the Court whether he intends to withdraw his pending 3 Application for Preliminary Injunction, or amend the pleadings, which amendment shall be filed by April 5, 2016; (3) the defendants shall, by April 5, 2016, file any opposition to the plaintiff's 3 Application for Preliminary Injunction; (4) the plaintiff shall, by April 12, 2016, file any reply in support of his 3 Application for Preliminary Injunction; (5) the defendants shall, by April 29, 2016, respond to the plaintiff's operative complaint. Signed by Judge Beryl A. Howell on March 4, 2016. (lcbah3) (Entered: 03/04/2016)
Set/Reset Deadlines: Defendants' Notification to the Court regarding any action taken on the plaintiff's request for religious accommodation due by 4/1/2016; Plaintiff to notify the Court whether he intends to withdraw his pending 3 Application for Preliminary Injunction by 4/2/2016; Plaintiff's Amended Pleadings due by 4/5/2016; Defendants' Opposition to plaintiff's 3 Application for Preliminary Injunction due by 4/5/2016; Plaintiff's Reply due by 4/12/2016; Defendants' response to Plaintiff's operative complaint due by 4/29/2016. (tg) (Entered: 03/04/2016)
25 NOTICE of Appearance by Daniel James Everett on behalf of All Defendants (Everett, Daniel) (Entered: 03/31/2016)
26 NOTICE of Army's Action on Plaintiffs Request for Religious Accomodation by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Exhibit Exhibit 1 (Decision by Asst. Sec. of the Army Wada re: Plaintiff's Religious Accomodation))(Everett, Daniel) (Entered: 03/31/2016)
27 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/07/2016. (Baxter, Eric) (Entered: 04/01/2016)
28 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/7/2016. Answer due for ALL FEDERAL DEFENDANTS by 5/6/2016. (Baxter, Eric) (Entered: 04/01/2016)
29 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ASHTON B. CARTER served on 3/7/2016 (Baxter, Eric) (Entered: 04/01/2016)

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04/01/2016 04/01/2016 04/01/2016 04/01/2016 04/02/2016 04/05/2016
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04/29/2016
04/29/2016 05/02/2016 05/05/2016 05/05/2016 05/06/2016
05/06/2016

30 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE ARMY served on 3/11/2016 (Baxter, Eric) (Entered: 04/01/2016)
31 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF DEFENSE served on 3/9/2016 (Baxter, Eric) (Entered: 04/01/2016)
32 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JAMES C. MCCONVILLE served on 3/7/2016 (Baxter, Eric) (Entered: 04/01/2016)
33 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. PATRICK J. MURPHY served on 3/7/2016 (Baxter, Eric) (Entered: 04/01/2016)
34 NOTICE OF INTENT by SIMRATPAL SINGH re 26 Notice (Other), (Attachments: # 1 Exhibit 1)(Baxter, Eric) (Entered: 04/02/2016)
35 Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY. (Attachments: # 1 Appendix)(Grace, Derrick) (Entered: 04/05/2016)
36 NOTICE of Appearance by Diana Marie Verm on behalf of SIMRATPAL SINGH (Verm, Diana) Modified on 4/13/2016 (zrdj). (Entered: 04/12/2016)
37 REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by SIMRATPAL SINGH. (Attachments: # 1 Affidavit of Tejdeep S. Rattan, # 2 Affidavit of Taranbir Singh, # 3 Affidavit of Kanwar B. Singh, # 4 Affidavit of A.S.G. (a minor), # 5 Affidavit of Harpal Singh, # 6 Affidavit of Jacob Goldstein)(Baxter, Eric) (Entered: 04/12/2016)
38 NOTICE of Appearance by Daniel H. Blomberg on behalf of SIMRATPAL SINGH (Blomberg, Daniel) Modified on 4/13/2016 (zrdj). (Entered: 04/13/2016)
39 MOTION to Consolidate Cases by SIMRATPAL SINGH (Sidhu, Amandeep) (Entered: 04/13/2016)
40 Memorandum in opposition to re 39 MOTION to Consolidate Cases filed by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY. (Grace, Derrick) (Entered: 04/22/2016)
41 MOTION to Dismiss by ASHTON B. CARTER, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Memorandum in Support, # 2 Appendix C)(Grace, Derrick) (Entered: 04/29/2016)
42 REPLY to opposition to motion re 39 MOTION to Consolidate Cases filed by SIMRATPAL SINGH. (Baxter, Eric) (Entered: 04/29/2016)
43 MOTION for Order Setting Status Conference by SIMRATPAL SINGH (Baxter, Eric) (Entered: 05/02/2016)
44 Consent MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Dismiss by SIMRATPAL SINGH (Baxter, Eric) (Entered: 05/05/2016)
45 NOTICE OF SUPPLEMENTAL AUTHORITY by SIMRATPAL SINGH (Baxter, Eric) (Entered: 05/05/2016)
46 ORDER denying the plaintiff's 3 Application for Preliminary Injunction, 39 Motion to Consolidate, and 43 Expedited Motion for Status Conference. See Order for further details. Signed by Chief Judge Beryl A. Howell on May 6, 2016. (lcbah3) (Entered: 05/06/2016)
47 MEMORANDUM OPINION regarding the plaintiff's 3 Motion for Preliminary Injunction, 39 Motion to Consolidate, and 43 Expedited Motion for Status Conference. Signed by Chief Judge Beryl A. Howell on May 6, 2016. (lcbah3) (Entered: 05/06/2016)

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06/02/2016 06/20/2016
07/04/2016 07/05/2016

MINUTE ORDER (paperless) GRANTING the plaintiff's 44 Consent Motion for Extension of Time. The plaintiff shall, by May 27, 2016, file any opposition to the defendants' 41 Motion to Dismiss. Signed by Chief Judge Beryl A. Howell on May 6, 2016. (lcbah3) (Entered: 05/06/2016)
Set/Reset Deadlines: Plaintiff's Response to Defendants' 41 Dispositive Motion due by 5/27/2016. (tg) (Entered: 05/09/2016)
48 NOTICE of Appearance by Gurjot Kaur on behalf of All Plaintiffs (Kaur, Gurjot) (Entered: 05/11/2016)
49 AMENDED COMPLAINT against All Defendants with Jury Demand filed by SIMRATPAL SINGH. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Baxter, Eric) (Entered: 05/23/2016)
50 Consent MOTION for Extension of Time to File Answer or otherwise respond to Plaintiff's Amended Complaint by ASHTON B. CARTER, ERIC K. FANNING, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Grace, Derrick) (Entered: 06/01/2016)
MINUTE ORDER (paperless) DENYING as moot the defendants' 41 Motion to Dismiss, in light of the plaintiff's filing of the 49 First Amended Complaint, and GRANTING the defendants' 50 Consent Motion to Enlarge Time to File Defendants' Answer or Otherwise Respond to Plaintiff's Amended Complaint. The defendants shall, by June 20, 2016, answer or otherwise respond to the plaintiff's 49 First Amended Complaint. Signed by Chief Judge Beryl A. Howell on June 2, 2016. (lcbah3) (Entered: 06/02/2016)
Set/Reset Deadlines: Defendants' Answer to the Amended Complaint due by 6/20/2016. (tg) (Entered: 06/02/2016)
51 MOTION to Dismiss by ASHTON B. CARTER, ERIC K. FANNING, JAMES C. MCCONVILLE, PATRICK J. MURPHY, UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES DEPARTMENT OF THE ARMY (Attachments: # 1 Memorandum in Support, # 2 Appendix D)(Grace, Derrick). Added MOTION to Strike on 6/21/2016 (zrdj). (Entered: 06/20/2016)
52 NOTICE of Voluntary Dismissal by All Plaintiffs (Baxter, Eric) (Entered: 07/04/2016)
MINUTE ORDER (paperless) DENYING as moot the defendants' 51 Motion to Dismiss and Motion to Strike Plaintiff's Jury Demand and DIRECTING the Clerk to close this case in light of the plaintiff's 52 Rule 41(a)(1)(A) Notice of Voluntary Dismissal Without Prejudice. Federal Rule of Civil Procedure 41(a)(1)(A)(i) permits a plaintiff to dismiss voluntarily a civil suit without a court order by filing "a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Id. The defendants have not yet filed an answer or a motion for summary judgment in the instant suit. Accordingly, the case is dismissed without prejudice. Signed by Chief Judge Beryl A. Howell on July 5, 2016. (lcbah3) (Entered: 07/05/2016)