Tagore v. UNITED STATES OF AMERICA, No. 4:2009cv00027 - Document 127 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER denying 106 MOTION to Dismiss 1 Complaint for lack of subject matter jurisdiction, denying 121 MOTION Motion for Entry of Docket Control Order (Joint Pretrial Order due by 8/1/2014. Docket Call set for 8/8/2014 at 03:00 PM in Courtroom 9B before Judge Sim Lake.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION KAWALJEET KAUR TAGORE, § § § Plaintiff, v. THE UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY; FEDERAL PROTECTIVE SERVICE; JANET NAPOLITANO, Secretary of the United States Department of Homeland Security; WILLIAM A. CARMODY, III; DAVID HIEBERT; and DOES 1-25, Defendants. § § § § § § § § § § § § § § CIVIL ACTION NO. H-09-0027 MEMORANDUM OPINION AND ORDER Pending before the court are Defendant's Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b) (1) (Docket Entry No. 106), and Plaintiff's Motion for Entry of Docket Control Order (Docket Entry No. 121). For the reasons explained below, the pending motions will both be denied, and the court will enter an order directing the Joint Pretrial Order to be filed by August I, 2014, and Docket Call to be held on Friday, August 8, 2014, at 3:00 p.m. in Courtroom 9-B at Federal Courthouse, 515 Rusk Avenue, Houston, Texas 77002. the I. Background Plaintiff l Kawaljeet Kaur Tagore sued the United States and l various federal agencies and their employees alleging that she was subjected to religious discrimination and denied the freedom to practice her religion when the defendants refused to allow her to wear a kirpan - a ceremonial sword - with a 3-inch or longer blade into the federal building where she worked as a Revenue Agent for the Internal Revenue Service ("IRS II ) The court dismissed several of plaintiffls claims l and allowed two claims to proceed: a claim for religious discrimination in violation of Title VIII 42 U.S.C. §§ 2000e et seg. 1 against the Treasury Secretary and a claim for violation of the Religious Freedom Restoration Act U.S.C. 2000bb et seg. 1 Homeland Security ("DHS II ) DHS-FPS §§ Area Commander Commander David Hiebert I ("RFRAII) 42 I against the United States Department of I the Federal Protective Service ("FPS William Carmody III I DHS-FPS and 25 unidentified defendants. II ) I District The court later granted summary judgment in favor of all defendants on both claims (Docket Entry No. 88). The Fifth Circuit affirmed the grant of Title VII summary judgment on the remanded the "RFRA claim [s] concerning against the claim l but reversed and for further development of evidence governmentls compelling interest in enforcing this plaintiff the statutory ban on weapons with blades exceeding 2.5 inches. 18 U.S.C. United States l 735 F.3d 324 1 § 930 (a) I (g) (2) 326 (5th Cir. 2013). -2 - II Tagore v. II. Defendant's Motion to Dismiss FPS argues that plaintiff's RFRA claim is subject to dismissal under Federal Rule of Civil Procedure 12(b) (1) for lack of subject matter jurisdiction because plaintiff lacks standing to maintain her RFRA claim, plaintiff's RFRA claim challenging FPS's policy of enforcing 18 U.S.C. § 930 categorically is moot, and an RFRA claim challenging FPS' s new policy allowing individualized enforcement of 18 U.S.C. A. § 930 is not ripe. 1 Standard of Review "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adj udicate the case. II Home Builders Association of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998). "Lack of subject matter jurisdiction may be found in anyone of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002). of proof for a Rule 12(b) (1) asserting jurisdiction." "The burden motion to dismiss is on the party rd. lDefendant's Memorandum in Support of Motion to Dismiss ("Defendant's Memorandum in Support"), Docket Entry No. 107, p. 1. -3- B. Analysis 1. Plaintiff Has Standing to Prosecute RFRA Claims Asserting that RFRA does not waive sovereign immunity for money damages and that plaintiff's remedy under RFRA is limited to prospective injunctive relief, FPS argues that the court lacks subject matter jurisdiction over plaintiff's RFRA claims because "she cannot show the irreparable injury' relief.,,2 FPS likelihood of \ substantial and necessary to obtain prospective argues that plaintiff is unable immediate injunctive to show the likelihood of substantial and immediate irreparable injury required to obtain prospective injunctive relief because she is no longer a federal government employee and, therefore, has no need to choose on a daily basis between wearing a kirpan with a blade longer than 2.5 inches worked. 3 and entering the federal building Citing City of Los Angeles v. Lyons, where she once 103 S. Ct. 1660 (1983), and Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), defendants argue that federal employment, even if plaintiff would someday regain such a possibil i ty is too remote to confer standing in this case. 4 In support of her argument that she has standing to prosecute her RFRA claims plaintiff submits a declaration stating: 2Id. at 5 . 3Id. at 6-7. 4Id. at 1 and 7-8. -4- 30. It remains my primary intention and obj ecti ve to gain reinstatement to the IRS as a Revenue Agent and resume my career with that agency. Failing that, it is my intention and objective to gain reinstatement to another federal governmental agency in a position that - in terms of salary, benefits, status, duties, responsibilities, and promotability equals or exceeds the Revenue Agent position that I held at the IRS. 31. To that end, since the IRS terminated my employment in July, 2006 I have applied for over 300 jobs with federal governmental agencies, including the Department of Treasury and the IRS. 32. To date, I have not received a single job offer. 33. In fact, the Treasury Department has notified me that it considers me ineligible for reinstatement. 34. I currently work as an independent tax consultant to individuals and businesses. 35. In my capacity as a tax consultant, I continue to have need to visit IRS offices (as I have done on several occasions since July, 2006) to meet with IRS agents, to conduct research, and engage in other tax-related business. 36. When I visit the IRS offices, I will - as I have done continuously since mid-April, 2005 - wear my kirpan, which has an edge that is longer than 2.5 inches. 5 5Declaration of Kawalj eet Tagore, Exhibit A to Plaintiff's Response to Federal Protective Service's Motion to Dismiss ("Plaintiff's Response") ("Tagore Declaration, Ex. A to Plaintiff's Response") Docket Entry No. 113-1, pp. 5-6 ~~ 30-36. See also Declaration of Kawaljeet Tagore, Exhibit A to Plaintiff's Supplemental Response to Federal Protective Service's Motion to Dismiss ("Plaintiff's Supplemental Response") ("Tagore Declaration, Ex. A to Plaintiff's Supplemental Response"), Docket Entry No. 125, pp. 7-8 " 2-5 (stating that since November 16, 2013, she has applied for over 1,100 federal jobs, including approximately 440 IRS positions, but has not received a job offer and has been deemed "ineligible" for some positions) . -5- In a supplemental declaration plaintiff states that from January of 2006 to December of 2013, the only IRS offices she attempted to enter and, in fact, entered, had no security checkpoint, and that due to the FPS's categorical enforcement of 18 U.S.C. did not attempt checkpoints. 6 to enter federal buildings that § had 930, she security Plaintiff also states that on December 13, 2013, when she attempted to enter the Mickey Leland Federal Building in Houston, Texas, to obtain tax information at the IRS office, the security guards denied her entry because she was wearing a kirpan with a blade that exceeds 2.5 inches in length. 7 that "by virtue of the FPS' refusal to allow Leland building on December 13, 2013, [she] Plaintiff argues [her] to enter the has established a 'demonstrated probability' or 'reasonable expectation' that she has been and will continue to government action again.us (a) Article be subjected to the same unlawful The court agrees. Applicable Law III of the United States Constitution limits the judicial power of federal courts to the resolution of cases and 6Declaration of Kawalj eet Tagore, Exhibit A to Plaintiff's Surreply to Federal Protective Service's Motion to Dismiss ("Tagore Declaration, Ex. A to Plaintiff's Surreply"), Docket Entry No. 117-1, pp. 2-3 ~~ 2-5. 7Tagore Declaration, Ex. A to Plaintiff's Response, Docket Entry No. 113-1, pp. 2-5 ~~ 2-29; Tagore Declaration, Ex. A to Plaintiff's Surreply, Docket Entry No. 117-1, p. 3 ~~ 6-7. SPlaintiff's Response, Docket Entry No. 113, p. 8. -6- u.s. Const. art. III, controversies. S. Ct. § 2, cl. 1. See Lujan, 112 This limitation requires the party invoking at 2136-37. federal jurisdiction to have standing, i.e., the "personal interest that must exist at the commencement of the litigation" Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 120 S. Ct. 693, 709 (2000). that must exist throughout a commencement i.e., is concrete, causal defendants' Id . a case 709 and at of 722. constitutes standing consists of an injury-in-fact, interest that (2) the its existence. interest that (1) at Moreover, the requisite personal interest connection challenged must continue The personal three elements: an invasion of a legally protected particularized, between the behavior; and actual or imminent; injury-in-fact and the that the (3) likelihood injury-in-fact will be redressed by a favorable ruling. (citing Lujan, 112 S. Ct. at 2136-37). Id. at 704 To obtain injunctive relief plaintiff must show that defendant's challenged conduct is likely to cause her to suffer future injury and that the relief sought will prevent that future injury. 669, 676 (1974) O'Shea v. Littleton, 94 S. Ct. ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, adverse effects."); Lyons, 103 S. Ct. at 1667 present ("standing to seek the injunction requested depended on whether [plaintiff] was likely to suffer future injury from the [complained of conduct]"). -7- As the party invoking federal jurisdiction, plaintiff "bears the burden of showing that [s]he has standing for each type of relief sought." Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009). (b) Application of the Law to the Facts Although plaintiff is no longer employed by the IRS, in her declarations she presents undisputed evidence that her current work as a tax consultant and her on-going efforts to gain other government employment continue to take her to federal buildings for which FPS provides security services. Plaintiff has also presented undisputed evidence that security guards at federal buildings where FPS provides security services continue to enforce 18 U.S.C. categorically to ban all inches, weapons with blades longer § than 930 2.5 thus forcing her to choose between entering the federal building and practicing her religious belief that she wear a kirpan with a blade longer than 2.5 inches. Because plaintiff complains that having to choose between entering a federal building and wearing a kirpan with a blade longer than 2.5 inches substantially burdens the practice of her sincerely held religious belief, plaintiff's undisputed evidence is sufficient to establish not only that the defendants' allegedly illegal conduct has caused her to suffer an inj ury- in- fact in the past, but also that the same conduct is likely to cause her to suffer future injury. The Supreme Court's opinions in Lyons, 103 S. Ct. 1660, and Lujan, 112 S. Ct. 2130, on which the FPS bases -8- its motion to dismiss, do not weigh against standing in this case. In Lyons the Supreme court held that a plaintiff lacked standing to seek an injunction against the enforcement of a police choke-hold policy because he could not credibly allege that he faced a threat from the policy. Lyons, 103 S. Ct. at 1667 & realistic n.7. In reaching this holding the Court noted that "Lyons alleged that he feared he would be choked in any future encounter with the police. The reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct,1t id. at 1668 & n.8, i.e., that he was choked without provocation or legal excuse. Id. at 1667 & n.7. Concluding that his subjective apprehensions that such a recurrence would take place were not enough to support standing, the Court explained that [i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. Id. at 1668 & n.8. Here, in contrast, defendant's allegedly unlawful conduct categorically enforcing 18 U.S.C. blades longer than 2.5 inches was filed. § it is undisputed that i.e., violating RFRA by 930 to ban all weapons with was occurring when the complaint Under the Lyons analysis the only issue is "the reality of the threat of repeated injury." Plaintiff's undisputed declaration that her job and her job search continue to take her to federal buildings where FPS provides -9- securi ty services, and that as recently as security guards enforced 18 U.S.C. last December FPS 930 categorically to ban all § weapons with blades longer than 2.5 inches, including the kirpan that she was wearing when she attempted to enter the Leland Building on December 13, 2013, evidences "the reali ty of the threat of repeated injury. If That is, plaintiff's evidence shows that there is nothing improbable about the proposition that defendants' practice of enforcing 18 U. S. C. § 930 categorically to ban all weapons with blades longer than 2.5 inches will in the future force plaintiff to choose between entering a federal building for which FPS provides security services and practicing her religious belief of wearing a kirpan with a blade that is longer than 2.5 inches. Plaintiff's evidence injury-in-fact is, therefore, requirement Laidlaw, 120 S. Ct. at 706. (acknowledging that in a for sufficient constitutional to satisfy the standing. See See also Lujan, 112 S. Ct. at 2137 suit challenging the legality of government action where the plaintiff is the object of the action at issue and is likely to be the object of that action in the future, there is ordinarily little question that the action has caused the plaintiff injury sufficient to satisfy the injury-infact prong of the requirements for constitutional standing). Defendants do not dispute that a judicial order prohibiting them from categorically enforcing 18 U.S.C. § 930 against weapons with blades longer than 2.5 inches worn for religious purposes would remedy the threat of future injury to plaintiff by eliminating or -10- minimizing the risk that plaintiff's ability to practice her religious belief will be substantially burdened in the future. Because cognizable plaintiff has injury- in- fact, imposed by the that defendants' enforcing 18 U.S.C. § 930 sufficiently alleged a judicially is causally related to burdens on-going practice of categorically to ban from federal buildings for which FPS provides security services all weapons with blades longer than 2.5 inches, and because an injunction issued by the court barring the defendants from enforcing 18 U.S.C. § 930 categorically against the plaintiff for carrying a weapon worn for religious purposes would redress the plaintiff's alleged injury, the court concludes that plaintiff has carried her burden of establishing standing to continue prosecuting her RFRA claims in this action. 2. Plaintiff's RFRA Claim is Not Moot Asserting that "during the pendency of plaintiff's appeal, FPS issued a new policy requiring individualized consideration for entry of otherwise prohibited items into federal buildings, which would include plaintiff's kirpan,"9 and that "[t] his policy superseded FPS's initial blanket prohibition on knives with blade lengths of 2.5 inches or greater,HlO defendant FPS argues that its new policy "renders plaintiff's RFRA claim moot," 11 and provides 9Defendant's Memorandum in Support, Docket Entry No. 107, p. 1. lOId. 11Id. -11- ------------========= plaintiff with all the relief to which she would be entitled should she prevail in full. 12 FPS explains that [o]n December 10, 2012, while plaintiff's appeal was pending, FPS issued a policy directive concerning entry of otherwise prohibited items into federal buildings for which FPS provides security services. See "Prohibited Items Program," attached as Ex. A. This policy directive, among other things, sets out procedures by which individuals can request an exception (defined as being temporary in nature) or exemption (defined as being permanent in nature, or until rescinded) under certain statutes, including RFRA, in order to bring otherwise prohibited items into federal buildings for which FPS provides security services. Attachment 2 to FPS' s new policy sets forth the procedures for applying for such an exception or exemption. Ex. A. Att. 2, "Federal Protective Service Procedures for Exceptions and Exemptions to Otherwise Prohibited Items." Under those procedures, if an item is initially denied entry into the building by the FPS security guard or screener, there are a number of steps to ensure that the item recei ves careful and individualized consideration. Ex. A. Att. 2, at 2-3; see also Att. 2 flowchart. A final decision to deny an item entry into a building must be made by the Director of FPS, in conjunction with attorneys from DHS's Office of the General Counsel and Civil Rights and Civil Liberties. Id. The final page of the policy is a flyer that addresses kirpans. That flyer, entitled "Accommodating Sikh Articles of Faith," suggests that while a kirpan with a blade 2.5 inches or longer may qualify as a dangerous weapon under 18 U.S.C. § 930, an exception or exemption may be received that would allow such an article into the building. The new policy thus attempts to maintain the ability of FPS to balance the safety and security of the federal buildings against the rights of individuals to enter with items that might otherwise be prohibited. In addition, by requiring consideration of the denial of entry [of] an item by the highest levels of FPS, the policy attempts to ensure consistency in enforcement, while cabining the 12Defendant's Reply in Further Support of Motion to Dismiss ("Defendant's Further Support"), Docket Entry No. 116, p. 2. -12- discretion of individual security guards at the entrances to federal buildings. 13 Plaintiff argues that her RFRA claims are not moot because, as evidenced by her inability to enter the Leland Federal Building on December 13, 2013, the new policy has either not been implemented or not been implemented in a manner that does not cont inue to substantially burden Alternatively, the exercise citing Lyons, 103 S. of her Ct. at religious 1660, beliefs. 14 and Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009), plaintiff argues that her RFRA claims fall under the "capable of repetition but evading review" exception to mootness. 15 (a) Applicable Law The only basis for a finding of mootness in this case is FPS's voluntary adoption of a new policy calling for individualized as opposed to categorical enforcement of 18 U. S . C. § 930 I ban of S weapons with blades longer than 2.5 inches from federal buildings for which FPS provides security services. "'It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Laidlaw, 120 S. Ct. at 708 (quoting City of Mesquite v. Aladdin's Castle, Inc., 102 S. Ct. 1070, 1074 13Defendant's Memorandum in Support, pp. 2-3. Docket Entry No. 14Plaintiff's Response, Docket Entry No. 113, pp. 6-7. 15Id. at 7-8. -13- 107, (1982)). The Supreme Court has explained that "[s]uch abandonment is an important factor bearing on the question of whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power." 1074. City of Mesquite, 102 S. Ct. at In City of Mesquite the Court explained that [t] he test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave "[t] he defendant . . . free to return to his old ways". . A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur . . . . Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary . . . . This is a matter for the trial judge. Id. at 1075 n.10 (citations omitted). at 708 See also Laidlaw, 120 S. Ct. ("[T]he standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: 'A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be burden of expected to persua [ding]' recur.'"). the court Moreover, that the "[ t] he ' heavy challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness," Laidlaw, 120 S. Ct. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013) at 708. ("[AJ See K. P. v. defendant cannot automatically moot a case simply by ending its [challenged] conduct once sued." Instead, \\ 'a defendant claiming that its voluntary -14- compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'''). (b) Application of the Law to the Facts Plaintiff argues that "by virtue of the FPS' refusal to allow [her] to enter the Leland building on December 13, 2013, established a probability' 'demonstrated or [she] has 'reasonable expectation' that she has been and will continue to be subjected to the same unlawful government action again. ,,16 The court agrees. Al though defendants argue that "there is no indication that, should the plaintiff attempt to again enter a federal building with her kirpan, the policy will not be followed,,,17 the defendants' briefing suggests otherwise. Despite defendants' own assertion that the new policy was signed by the Director in December of 2012,18 defendants acknowledge that "the December 13, 2013, denial of entry was a applied. " 19 circumstance where the new policy was not Defendants acknowledge that the Fifth Circuit remanded plaintiff's RFRA claim for an examination of whether the plaintiff should receive an "individualized case-by-case determination" to determine 16Id. at 8. 17Defendant's Further Support, Docket Entry No. 116, p. 10 n. 7 . 18Id. 19Id. at 10. -15- whether the government has a compelling interest in enforcing 18 U.S.C. § 930 against her, and whether its means are the least restrictive to achieve its obj ections. 20 See Tagore, 735 F.3d at 331. Defendants also acknowledge that on December 13, 2013 - over a year after the Director signed the new policy - plaintiff did not receive an individualized case-by-case determination of whether there exists a enforcing 18 U.S.C. § 930 against her, compelling interest in and whether the means of categorical enforcement is the least restrictive to achieve the government's obj ecti ves. 21 Defendants have not submitted any evidence from which the court could conclude that this allegedly wrongful behavior could not reasonably be expected to recur, or that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Laidlaw, 120 S. Ct. at 708. Accordingly, defendants have not carried their burden of persuading the court that the new policy moots the plaintiff's RFRA claims. Id. (placing burden of persuasion on issue of mootness on the party asserting mootness); LeBlanc, 729 F.3d at 438 (same)) Alternatively, the court concludes that the plaintiff's RFRA claims are not moot because they fall under the repetition while evading review" exception to mootness. "capable of In Moore, 591 F.3d at 744, the Fifth Circuit stated that 2°Defendant's Further Support, Docket Entry No. 116, p. 8. 21Id. at 10 (describing plaintiff's attempt to enter the Leland Building on December 13, 2013, wearing her kirpan as a "circumstance where the new policy was not applied to her") . -16- [a]n important exception to the mootness doctrine. is "attacks on practices that no longer directly affect the attacking party, but are 'capable of repetition' while 'evading review'''. . To invoke that exception, a party must show that "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Because the defendants' practice of forcing plaintiff to choose between wearing a kirpan with a blade longer than 2.5 inches and entering a federal building for which FPS provides security services is a challenged action that is too short in duration to be fully litigated prior to cessation or expiration of the practice, and because there is a reasonable expectation that plaintiff will be subject to the same practice again in the future, the court concludes that the "capable of repetition while evading review" exception to mootness applies in this case. 3. Plaintiff's RFRA Claim Is Ripe for Review Asserting that "FPS's new policy has not yet been applied to [plaintiff] ,"22 FPS argues that "plaintiff's claim is not ripe for review. ,,23 This argument has no merit because as explained in the preceding section, FPS argues that the new policy was signed by the Director in December of 2012, but does not dispute that when a year later in December of 2013 plaintiff attempted to enter the Leland Building wearing her kirpan, the new policy was not applied to 22Defendant's Memorandum in Support, p. 1. 23rd. -17- Docket Entry No. 107, her.24 Moreover, challenge the the new claims policy, asserted practice of enforcing 18 U.S.C. § this challenge they in the action FPS's do not admitted 930 categorically to all weapons with blades longer than 2.5 inches without according blades worn for religious purposes determination" mandated by RFRA. case-by-case "individualized the Plaintiff's RFRA claim is thus ripe for review. III. Plaintiff's Motion for Entry of Docket Control Order Asserting that "[t] he Fifth Circuit's mandate - Court received on January 14, 2014 - which this effectively requires that Ms. Tagore be afforded a trial on her claim that various defendants (namely, the United States of America; the Department of Homeland Security ("DHS"); the Secretary of the Department of Homeland Security; and the Federal Protective Service ("FPS") violated her rights under the Religious Freedom Restoration Act ("RFRAI/), 1/25 plaintiff "requests that this Court enter a Docket Control Order setting a trial at the earliest possible date.,,26 For the reasons stated in the previous sections of this Memorandum Opinion and Order, and for the reasons stated by the Fifth Circuit in Tagore, 735 F. 3d at 324, the court concludes that defendants are not entitled to dismissal of plaintiff's RFRA claims and that this case 24Defendant's Further Support, 10 n.7. Docket Entry No. 116, pp. 2 and 25Plaintiff's Motion for Entry of Docket Control Order, Docket Entry No. 121, pp. 1-2. 26Id. at 2. -18- cannot be resolved absent a trial on the merits. Since, however, this case has been fully developed for trial, persuaded Instead, that a Docket Control Order the court is not needs the court will order the parties (1) to be entered. to submit a Joint Pretrial Order by August 1, 2014, and (2) to appear for Docket Call on August 8, The issues to be tried and the 2014, at 3:00 p.m. issues on which the parties should focus when preparing the Joint Pretrial Order are those that the Fifth Circuit identified in its (1) whether Tagore holds a sincere religious belief in opinion: wearing a kirpan with a blade exceeding prescribed maximum of 2.5 inches and, if so, enforcement of 18 U.S.C. burdened or burdens 18 U.S.C. 930's § (2) whether the FPS's 930's prescribed maximum substantially § Tagore's religious practice and, if so, (3) whether the government is able to prove that application of 18 U.S.C. § 930 to Tagore furthers a compelling government interest with the least restrictive means. Proof of this third element will require the defendants to explain why alternative policies would be unfeasible or less effective in maintaining institutional security, and will require "more evidence concerning [FPS's] application of Section 930(a) Statement on this case." id. at 331 (referencing asserted need for uniform and the impact of the new Policy See Tagore, 735 F.3d at 332. "Accommodations for See also Sikh Articles of Faith," Attachment 5 to the FPS Policy Statement promulgated during the pendency of plaintiff's appeal, instructing FPS officers that kirpans with blades longer than 2.5 inches require an exception or -19- ------,._-------------------------- exemption before being carried into federal buildings, and stating: "One must attachment ask, to why a refer document to \ accommodations' describing and procedures append for this obtaining exceptions or exemptions if, as FP8 contends against Tagore, caseby-case determinations maintaining security?"). are impractical or inconsistent with The parties' briefing reflects that they disagree as to the types of relief that RFRA would provide to the plaintiff should she prevail at trial, but is not adequate for the court to decide this issue. Accordingly, the parties are encouraged to address in the Joint Pretrial Order in greater depth than has been done in the current briefing the relief that RFRA would provide the plaintiff should she prevail at trial. IV. Conclusions and Order For the reasons explained above in Dismiss (Docket Entry explained above in § No. 106) is § II, Defendants' Motion to DENIED. For the reasons III, Plaintiff's Motion for Entry of Docket Control Order (Docket Entry No. 121) is DENIED. The parties shall file a Joint Pretrial Order by Friday, August I, 2014, and appear for Docket CalIon Friday, August 8, 2014, at 3:00 p.m. in Courtroom 9-B of the Federal Courthouse, 515 Rusk Avenue, Houston, Texas 77002. SIGNED at Houston, Texas, on this the 24th day of June, 2014. /~ ., 81M LAKE UNITED STATES DISTRICT JUDGE -20-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
