Calvert L. Potter v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2024 Decided January 28, 2025
No. 23-7124
CALVERT L. POTTER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-01189)
(No. 1:05-cv-01792)
Lucas Moench argued the cause for appellants. With him
on the briefs were Kelly J. Shackelford, Jeffrey C. Mateer,
David J. Hacker, Rebecca R. Dummermuth, Robert K. Kelner,
Kevin B. Collins, and Eli Nachmany.
Dia Rasinariu, Assistant Attorney General, Office of the
Solicitor General at Office of the Attorney General for the
District of Columbia, argued the cause for appellee. With her
on the brief were Brian L. Schwalb, Attorney General, Caroline
S. Van Zile, Solicitor General, and Ashwin P. Phatak, Principal
Deputy Solicitor General. Carl J. Schifferle, Assistant Attorney
General, entered an appearance.

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Before: RAO and CHILDS, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: This case involves a civil contempt
motion to enforce an injunction protecting free exercise rights
under the Religious Freedom Restoration Act (RFRA). When
deciding this motion, the district court was required to
adjudicate whether there was a violation of the injunction, or
whether a recognized defense to contempt applied. Because the
district court denied the motion on other discretionary grounds,
we vacate and remand for application of the correct legal
framework.
I.
In 2005, the District of Columbia Fire and Emergency
Medical Services Department implemented a policy
prohibiting firefighters and first responders from wearing facial
hair that interferes with the sealing surface of a face mask—
effectively prohibiting beards. Under the policy, firefighters
who declined to shave were immediately moved to
administrative duty and, after four days of noncompliance,
were recommended for termination. The Department made no
exceptions for employees who wore beards for religious
reasons.
A group of bearded firefighters sued the Department,
arguing that the policy violated RFRA because it burdened
their religious practice of wearing facial hair. See Religious
Freedom Restoration Act of 1993, Pub. L. No. 103-141, § 3,
107 Stat. 1488, 1488–89 (codified at 42 U.S.C. § 2000bb–1)
(prohibiting the federal government from substantially

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burdening a person’s exercise of religion except when the
burden is the least restrictive means of furthering a compelling
government interest). The district court granted summary
judgment to the firefighters on their RFRA claim, holding the
Department failed to carry its burden of showing its policy was
the least restrictive means of furthering its interest in
operational effectiveness. See Potter v. District of Columbia,
2007 WL 2892685, at *7–9 (D.D.C. Sept. 28, 2007), aff’d, 558
F.3d 542 (D.C. Cir. 2009). The court ordered the Department
to restore the firefighters to field duty and permanently
enjoined the Department from enforcing the 2005 policy
against them (“2007 injunction”). For the next decade, the
firefighters were allowed to work in field operations while
maintaining their beards.
As COVID-19 spread in March 2020, the Department
implemented a new facial hair policy and mandated the use of
masks during patient contact. The Department transferred the
four bearded firefighters it still employed to administrative
roles “due to concerns about their ability to properly wear N95
respirators with facial hair.” The firefighters attest they
objected to the transfers and informed their supervisors that the
transfers violated the 2007 injunction, presumably because the
new policy similarly burdened their religious practice of
wearing beards.
Almost a year and a half after the 2020 policy went into
effect, the firefighters’ counsel requested that the Department
immediately cease enforcement of the policy against the
firefighters and restore them to field duty. The firefighters also
sought damages because the administrative reassignments
offered fewer opportunities for overtime pay, required a five-
day work week instead of the firefighters’ regular 24-hours-on,
72-hours-off schedule, and caused increased vehicle wear and
tear from daily commuting. In response, the Department

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restored three firefighters to field duty, while the fourth chose
to stay in his administrative role. Although the firefighters had
returned to their preferred assignments, settlement negotiations
over damages were unsuccessful, and the firefighters filed a
motion for civil contempt, alleging the Department had
violated the 2007 injunction.
The district court denied the motion for civil contempt.
Potter v. District of Columbia, 2023 WL 6403852, at *2
(D.D.C. Aug. 31, 2023). The court recognized that the
Department may have violated the 2007 injunction “by issuing
and enforcing a policy nearly identical to the enjoined [2005
policy] and by returning plaintiffs to administrative duty.” Id.
But the court asserted that “[w]hether to brand a party’s
noncompliance as contempt lies within a court’s discretion.”
Id. (cleaned up). The court declined to hold the Department in
contempt because it “acted in a reasonably cautious way, under
unprecedented and extraordinary circumstances, to keep
plaintiffs and the public it served as safe as it could.” Id.
Furthermore, any damages were likely de minimis because the
Department maintained the firefighters’ salaries and benefits
during the administrative transfers. Id.
II.
The firefighters appeal the district court’s denial of their
motion for civil contempt. We have jurisdiction because the
denial of a civil contempt motion brought to enforce a final
judgment is itself a final judgment. Serv. Emps. Int’l Union
Loc. 32BJ v. Preeminent Protective Servs. Inc., 997 F.3d 1217,
1221 (D.C. Cir. 2021); Sanders v. Monsanto Co., 574 F.2d 198,
199 (5th Cir. 1978); 28 U.S.C. § 1291. Furthermore, although
the alleged contempt in this case has ceased, the controversy is
not moot because the firefighters seek damages for past
violations of the 2007 injunction.

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III.
The firefighters argue the district court abused its
discretion by misapplying the legal standards for civil
contempt. We agree and remand for the district court to apply
the correct standards in the first instance.
A.
Federal courts possess “inherent power to enforce
compliance with their lawful orders through civil contempt.”
Shillitani v. United States, 384 U.S. 364, 370 (1966). Civil
contempt serves “to preserve and enforce the rights of private
parties to suits, and to compel obedience to orders and decrees
made to enforce the rights and administer the remedies to
which the court has found them to be entitled.” Bessette v. W.
B. Conkey Co., 194 U.S. 324, 328 (1904); see also Edward
Dangel, Contempt § 178 (1939) (“[T]he [civil] contemnor is
not really in contempt of the court; he is in contempt of the
party for whose benefit the court order was made.”). When
assessing a civil contempt motion, a court must ordinarily
determine whether the moving party has met his burden of
showing “by clear and convincing evidence” that the alleged
contemnor has violated a “clear and unambiguous” order of the
court. Armstrong v. Exec. Off. of the President, Off. of Admin.,
1 F.3d 1274, 1289 (D.C. Cir. 1993) (cleaned up). The party
moving for civil contempt “faces a heavy burden.” United
States v. Microsoft Corp., 147 F.3d 935, 940 (D.C. Cir. 1998).
We review a district court’s denial of a civil contempt
motion for abuse of discretion. Broderick v. Donaldson, 437
F.3d 1226, 1234 (D.C. Cir. 2006). District courts have
discretion when interpreting their orders and assessing
“whether an injunction has been violated.” Union Tool Co. v.
Wilson, 259 U.S. 107, 112 (1922); see also Washington-
Baltimore Newspaper Guild, Loc. 35, of Newspaper Guild,

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AFL-CIO-CLC v. Washington Post Co., 626 F.2d 1029, 1031
(D.C. Cir. 1980).
Because civil contempt vindicates the rights of private
parties, however, district courts do not have discretion to
overlook a proven violation, absent a recognized defense. See
Union Tool Co., 259 U.S. at 112 (explaining that “legal
discretion in [a civil contempt proceeding] does not extend to
a refusal to apply well-settled principles of law”). “[T]he grant
or withholding of remedial relief [through civil contempt] is
not wholly discretionary with the judge.” McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949). Injunctions
“creat[e] important legal rights,” and when those rights have
been violated, “the role of the court on a motion to hold
respondents in civil contempt is not to fix blame but to
ascertain how the violation occurred, how to prevent a
recurrence, and how to repair any damage that has been done.”
Doe v. Gen. Hosp. of Dist. of Columbia, 434 F.2d 427, 431
(D.C. Cir. 1970). In short, a party seeking civil contempt “ha[s]
a right to a judicial assessment as to whether the defendant [is]
in contempt of the court’s previous order.”1 Thompson v.
Cleland, 782 F.2d 719, 722 (7th Cir. 1986).
1 It is well established that a court does not have unfettered discretion
to excuse civil contempt. See, e.g., FTC v. BlueHippo Funding, LLC,
762 F.3d 238, 243 (2d Cir. 2014); Parker v. United States, 153 F.2d
66, 70 (1st Cir. 1946); L.E. Waterman Co. v. Standard Drug Co., 202
F. 167, 172 (6th Cir. 1913); Enoch Morgan’s Sons Co. v. Gibson,
122 F. 420, 423 (8th Cir. 1903). This principle also appears in early
state court decisions. See, e.g., Howard v. Durand, 36 Ga. 346, 359
(1867); Gates v. McDaniel, 3 Port. 356, 359–61 (Ala. 1836); see also
Red River Valley Brick Corp. v. City of Grand Forks, 146 N.W. 876,
877 (N.D. 1914); State v. N. Shore Boom & Driving Co., 103 P. 426,
430 (Wash. 1909), modified, 107 P. 196 (Wash. 1910).

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Even when a party has violated an injunction, contempt
may be avoided if a recognized defense applies. For example,
impossibility of performance is a recognized defense, at least
to coercive civil contempt. See Nat. Res. Def. Council, Inc. v.
Train, 510 F.2d 692, 713 (D.C. Cir. 1975) (“It would be
unreasonable and unjust to hold in contempt a defendant who
demonstrated that he was powerless to comply.”). Common
law equitable defenses, such as laches, may also apply. See,
e.g., Coffey v. Braddy, 834 F.3d 1184, 1189 (11th Cir. 2016).
It is well settled, however, that neither good faith nor lack
of willfulness is a defense to civil contempt. See, e.g., Doe, 434
F.2d at 431 (“The motion for civil contempt does not turn on
the question whether [the contemnor] acted in good faith. Its
purpose is not to punish intentional misconduct, but rather to
enforce compliance with an order of the court and to remedy
any harm inflicted on one party by the other party’s failure to
comply.”). Good-faith compliance may be relevant to
mitigation at the remedies stage, but the court lacks discretion
to excuse civil contempt based on the contemnor’s good faith.
McComb, 336 U.S. at 191 (“Since the purpose [of civil
contempt] is remedial, it matters not with what intent the
defendant did the prohibited act.”); Taggart v. Lorenzen, 587
U.S. 554, 562 (2019) (“[A] party’s good faith, even where it
does not bar civil contempt, may help to determine an
appropriate sanction.”).
B.
In denying the firefighters’ motion for contempt, the
district court asserted a general discretion to withhold contempt
because “courts need not impose the contempt sanction for
every violation.” Potter, 2023 WL 6403852, at *2 (quoting
Marshall v. Loc. Union No. 639, Int’l Bhd. of Teamsters,
Chauffeurs, Warehousemen & Helpers of Am., Inc., 593 F.2d

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1297, 1303 (D.C. Cir. 1979)). The court assumed without
deciding that the Department violated the 2007 injunction, but
then exercised its discretion to deny contempt because “the
Department acted in a reasonably cautious way, under
unprecedented and extraordinary circumstances, to keep
plaintiffs and the public it served as safe as it could.” Id. The
district court also noted that contempt was not appropriate
because any damages to the firefighters were likely de minimis.
Id.
The district court applied the wrong legal framework for
assessing civil contempt. The firefighters had a private right to
enforcement of the original injunction, which protected their
religious freedom and permanently forbade the Department
from enforcing the 2005 facial hair policy against them. The
district court had no general discretion to excuse civil
contempt. See McComb, 336 U.S. at 191; Doe, 434 F.2d at 431.
Instead, the court was required to determine whether the
Department violated the firefighters’ rights under the 2007
injunction. Alternatively, the court could have withheld
judgment on the alleged violation if it had concluded that a
recognized defense applied. Violating an injunction “in a
reasonably cautious way,” however, is not a recognized
defense to civil contempt. Even if the Department’s behavior
was reasonable in light of the pandemic, good faith and lack of
willfulness is not a defense to civil contempt. See Doe, 434
F.2d at 431.
To support denying the contempt motion, the district court
also relied on the fact that damages are likely minimal. The
extent of any damages, however, does not answer the threshold
question of whether the Department violated the 2007
injunction. Nor does the amount of damages provide a valid
defense against civil contempt.

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We recognize that the district court relied on our statement
that courts “need not impose the contempt sanction for every
violation.” Marshall, 593 F.2d at 1303. In context, however,
Marshall did not establish a free-floating discretion to excuse
civil contempt. Rather, Marshall stands for the proposition that
an alleged violation of an injunction will not warrant civil
contempt when the injunction “was not specific enough,” that
is, when the order was not clear and unambiguous. Id. Some
district courts have relied on Marshall when asserting a general
discretion to deny a civil contempt motion even when a clear
and unambiguous order has been violated and no defense to
contempt applies. But that interpretation is incorrect and
inconsistent with the longstanding legal framework outlined
above. See McComb, 336 U.S. at 191.
Furthermore, we emphasize that civil contempt differs in
important ways from criminal contempt. See Dan Dobbs, Law
of Remedies § 2.8(3) (2d ed. 1993). In the criminal contempt
context, district courts enjoy a broader discretion because
criminal contempt is “prosecuted to preserve the power and
vindicate the dignity of the courts and to punish for
disobedience of their orders.” Bessette, 194 U.S. at 328
(quoting In re Nevitt, 117 F. 448, 458 (8th Cir. 1902)). When
deciding whether to punish for criminal contempt, the district
court enjoys a discretion akin to the non-prosecution power in
the executive. See, e.g., Parker, 153 F.2d at 70 (contrasting
civil contempt power with “that of criminal contempt[,] where
the court in its discretion may withhold punishment for the past
act of disobedience”); cf. Marshall, 593 F.2d at 1303 n.22
(citing to criminal contempt cases recognizing discretion in the
district courts).
The firefighters here sought civil contempt, and in this
context, there is no general judicial discretion to excuse the
alleged violation. See Doe, 434 F.2d at 431; see also Bessette,

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194 U.S. at 328 (explaining that civil contempt proceedings are
“remedial and coercive in their nature, and the parties chiefly
in interest in their conduct and prosecution are the individuals
whose private rights and remedies they were instituted to
protect or enforce”). We therefore reject the Department’s
argument that district courts have “negative discretion” to deny
a civil contempt motion alleging the violation of an injunction
protecting private legal rights. See Union Tool Co., 259 U.S. at
112 (“[L]egal discretion in [a civil contempt proceeding] does
not extend to a refusal to apply well-settled principles of law.”).
C.
The Department urges this court to reach the merits of the
contempt action and affirmatively hold that the firefighters
have failed to carry their burden of establishing a violation of
the 2007 injunction. The parties, however, dispute the limited
facts in the record before us. Compare JA 208 (“At no point
did [the Department] instruct Plaintiffs to comply with the
[2020 policy] or indicate that to remain in their positions in
operations they would be required to remove their facial
hair.”), with JA 149 (“My supervisor told me that I could
remain on regular field duty if I shaved my facial hair as
required by [the 2020 policy].”). Any potential factual disputes
are best resolved by the district court. See Doe, 434 F.2d at
431–32. Moreover, it is appropriate for the district court to
decide the contempt motion under the correct legal standards
in the first instance.
On remand, the district court must first evaluate whether
the firefighters have met their burden of demonstrating “by
clear and convincing evidence” that the Department has
violated a “clear and unambiguous” order. Armstrong, 1 F.3d
at 1289 (cleaned up). Although there is no general discretion to
excuse violations of the 2007 injunction, the district court has

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discretion in assessing whether a violation has occurred.
Washington-Baltimore Newspaper Guild, 626 F.2d at 1031;
see also United States v. Burr, 25 F. Cas. 30, 35 (C.C.D. Va.
1807) (Marshall, C.J.) (explaining that “a motion to [the
court’s] discretion is a motion, not to its inclination, but to its
judgment; and its judgment is to be guided by sound legal
principles”). If the district court determines the Department
violated the 2007 injunction, it must then consider whether the
Department has established a recognized defense to contempt.
Alternatively, if a recognized defense applies, the district court
may decide on that ground and withhold judgment on whether
its order was violated.
As a defense to contempt, the Department maintains it
took “reasonable and diligent” steps “in good faith” over many
years. First, as we have already made clear, the court lacks
discretion to excuse civil contempt based on the contemnor’s
good faith. McComb, 336 U.S. at 191. So “reasonable and
diligent steps taken in good faith” is not a defense. Second, we
have yet to decide whether “substantial compliance” provides
a defense to civil contempt. In re Sealed Case, 77 F.4th 815,
834 (D.C. Cir. 2023); Food Lion, Inc. v. United Food & Com.
Workers Int’l Union, AFL-CIO-CLC, 103 F.3d 1007, 1017
(D.C. Cir. 1997). But we have consistently held that, if such a
defense applies, it requires the contemnor to show at least that
it “took all reasonable steps within its power to comply with
the court’s order.” In re Sealed Case, 77 F.4th at 835 (cleaned
up). Moreover, in discussing the defense, this circuit has
reinforced the longstanding principle that “good faith” alone is
not a recognized defense. Id. Indeed, the Department concedes
it cannot defend against contempt by relying merely on good
faith efforts at compliance. Guided by the framework
articulated here, we leave it to the district court to address the
applicability and scope of the Department’s asserted defenses.

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* * *
Firefighters who wear their beards for religious reasons
secured an injunction against the Department protecting their
rights under RFRA. The firefighters alleged the Department
was in contempt, and they are entitled to a legal determination
of their rights. For the foregoing reasons, we vacate the
dismissal order and remand for the district court to assess
whether the firefighters have established a violation of the 2007
injunction, or whether a recognized defense to contempt
applies.
So ordered.

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