January 21, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1821
RALPH S. WEAVER, ETC., ET AL.,
Plaintiffs, Appellants,
v.
CHARLES HENDERSON, ETC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Kathleen M. McCarthy for appellants.
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James T. Masteralexis on brief for International Brotherhood
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of Police Officers, amicus curiae.
Rosemary S. Gale, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, was on brief, for appellees.
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SELYA, Circuit Judge. In this case, the district court
SELYA, Circuit Judge.
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refused to issue a preliminary injunction suspending the
Massachusetts State Police Department's "no mustache" policy.
The plaintiffs, veteran police officers partial to their existing
mustaches, prosecute this appeal. Finding no legal error or
abuse of discretion, we affirm the denial of interim relief.
I. BACKGROUND
I. BACKGROUND
In 1991, Massachusetts decided to merge four state
police forces (the Division of State Police, the Metropolitan
District Commission Police, the Capitol Police, and the Division
of Law Enforcement of the Registry of Motor Vehicles) into a
single entity (the Department of State Police). See An Act to
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Consolidate Certain Police Forces in the Commonwealth, 1991 Mass.
Acts c. 412, at 985. When the enabling legislation was signed
into law, defendant-appellee Charles Henderson was the ranking
officer of the Division of State Police. Since the legislation
stipulated that Colonel Henderson, by virtue of his rank, would
serve as the "executive and administrative head" of the composite
force, id. at 990, he possessed power to "make all necessary
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rules and regulations" for governance of, and discipline within,
the new department. Id. at 991. In addition, the law directed
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him to establish a transition program to familiarize officers of
the component units with the new department's rules and practices
and to inculcate a unified mission. See id. at 1032.
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Pursuant to his newly conferred statutory authority,
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Colonel Henderson promulgated General Order 01 (the Order).1
The Order barred officers of the Department of State Police from
wearing mustaches on and after July 1, 1992, except for
undercover assignments or health reasons.2 In this respect, the
Order is substantially identical to a regulation that for
seventy-one years dictated the appearance of members of the
former Division of State Police, 1,213 strong as of 1991, who
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1General Order 01 provides in pertinent part:
4.5.5 Hair may be tapered or blocked at
the sides but will not touch the ears.
4.5.6 Wigs or hairpieces may be worn if
they conform to standards for natural hair.
4.5.7 Faces will be clean shaven. NO
mustaches, beards or goatees except:
o Undercover officers with approval
of the Bureau Commander;
o Medical problems verified by a
medical practitioner with
documentation forwarded, through
channels, to the State Surgeon for
review and recommendations to the
Office of the Colonel/Super-
intendent.
4.5.8 Sideburns will be neatly trimmed
and rectangular in shape. They will not be
longer than the midpoint of the tragus of the
ear and will be:
o Trimmed horizontally, at a right angle;
o Of even width.
2Notwithstanding the Order's effective date, Colonel
Henderson provided that those who refused to put blade to face by
July 1 would be sworn into the new department as special state
police officers, enjoying "full police powers" until July 1,
1993.
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comprise more than half the total membership of the 2,093-officer
consolidated force created by the 1991 legislation.
On May 21, 1992, six veteran officers of the former
Metropolitan and Registry police who had worn mustaches
throughout their law enforcement careers sued for declaratory and
injunctive relief, naming Colonel Henderson, the Commonwealth of
Massachusetts Department of Public Safety, and the Massachusetts
State Police as respondents. The plaintiffs simultaneously
sought a preliminary injunction to prevent the "no mustache" rule
from taking effect as scheduled. They claimed, inter alia, that
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the Order, if implemented, would abridge their First and
Fourteenth Amendment rights by forcing them to sacrifice an
integral aspect of their personal identities.
Following the submission of affidavits, the district
court held a hearing on the prayer for interim injunctive relief.
At the conclusion of the hearing, the court allowed the parties
to file supplemental affidavits. After considering the
cumulative record, the court refused to meddle with
implementation of the Order, finding that the plaintiffs were
unlikely to succeed on the merits of their constitutional
challenge. This appeal ensued.
II. ANALYSIS
II. ANALYSIS
We rehearse the criteria applicable to interim
injunctive relief and then assess the supportability of the
ruling below.
A. Legal Standards.
A. Legal Standards.
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Over time, we have developed a quadripartite test for
determining whether litigants are entitled to preliminary
injunctive redress. See Narragansett Indian Tribe v. Guilbert,
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934 F.2d 4, 5 (1st Cir. 1991). The sine qua non of that
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formulation is whether the plaintiffs are likely to succeed on
the merits.3 See id. at 6 (labeling this factor "critical");
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Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st
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Cir. 1981) (stating that "the probability-of-success component
has loomed large" in most cases), cert. denied, 455 U.S. 921
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(1982). In the ordinary course, plaintiffs who are unable to
convince the trial court that they will probably succeed on the
merits will not obtain interim injunctive relief. See, e.g.,
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LeBeau v. Spirito, 703 F.2d 639, 645 (1st Cir. 1983) (affirming
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denial of preliminary injunction and ending inquiry after
concluding that plaintiffs were unlikely to prevail on the
merits).
When the district court applies the correct legal
standard in evaluating a motion for a preliminary injunction, its
decision to grant or deny relief is subject to abuse-of-
discretion review and will, therefore, be afforded considerable
respect. See Independent Oil & Chem. Workers of Quincy, Inc. v.
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Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)
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3The remaining aspects of the four-part test involve (1) the
potential for irreparable injury, (2) the relevant balance of
hardships if the restrainer does or does not issue, and (3) the
effect on the public interest of granting or withholding
temporary injunctive relief. See Narragansett Indian Tribe, 934
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F.2d at 5.
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(collecting cases). The court of appeals will find an abuse of
discretion in this wise only "when a material factor deserving
significant weight is ignored, when an improper factor is relied
upon, or when all proper and no improper factors are assessed,
but the [trial] court makes a serious mistake in weighing them."
Id.
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B. Discussion.
B. Discussion.
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In this case, the lower court apprehended the correct
legal standard and rested its ruling explicitly on the absence of
probable success. Thus, we are left to ponder a single question:
did the court misuse its discretion in concluding that the
plaintiffs would likely lose their case because of their
inability to demonstrate that the ban on mustaches was arbitrary?
The Supreme Court's opinion in Kelley v. Johnson, 425 U.S. 238
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(1976), compels a negative answer to that inquiry.
In Kelley, plaintiffs brought a constitutional
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challenge to a grooming regulation that was part of a network of
rules emphasizing "the overall need for discipline, esprit de
corps, and uniformity" within a police department. Id. at 246.
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Acknowledging the deference due government agencies in
implementing their chosen organizational modes, see id. at 247,
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the Court held that the plaintiffs could defeat the grooming
regulation only by showing that it was so irrational as to verge
on the arbitrary. See id. at 248. The regulation cleared this
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rather modest hurdle because maintaining "similarity in
appearance," either to abet the public's easy recognition of
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police officers or to promote a sense of "esprit de corps" among
the troopers themselves, was "a sufficiently rational
justification" for requiring that gendarmes be clean shaven. Id.
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Kelley's grip on the instant case is unrelenting. The
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Order at issue here is roughly comparable to that endorsed by the
Kelley Court. It is, therefore, presumptively valid. See id. at
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247. The plaintiffs have not undermined this presumption in any
significant respect. They presented no evidence which would
compel a court to conclude that the Order is chimerical. To be
sure, they have argued that the "no mustache" rule lacks a
rational basis4 - but merely making such a claim does not prove
the point.
The sole factual support for plaintiffs' argument seems
to be the happenstance that other organizations, including the
United States Marine Corps and several state police forces, enjoy
a strong sense of camaraderie while permitting officers to sport
mustaches and other barbigerous adornments. Yet, rules are not
irrational simply because they differ from the rules employed by
other organizations with similar goals. See id. at 246 (holding
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that the constitutional validity of an organizational structure,
with its implementing regulations, "does not depend . . . on any
doctrine of historical prescription").
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4Appellants also asseverate that the "no mustache" rule is
arbitrary because it is the only grooming standard, of many
promulgated, that has been specifically enforced. However, the
record does not adequately support the asseveration. Even so, we
fail to see why a constitutionally valid rule would be rendered
invalid merely because other, similar rules are poorly enforced.
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The plaintiffs' failure to adduce meaningful proof of
arbitrariness stands in stark contrast to the defendants'
proffer. Colonel Henderson's affidavit makes pellucidly clear
that the justification behind the "no mustache" rule is very much
the same type of rationale accepted by the Kelley Court and
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consistently honored in later cases. See, e.g., Maciariello v.
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Sumner, 973 F.2d 295, 300 (4th Cir. 1992); Egger v. Phillips, 710
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F.2d 292, 319 (7th Cir.) (collecting cases), cert. denied, 464
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U.S. 918 (1983); Waters v. Chaffin, 684 F.2d 833, 839 (11th Cir.
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1982). Colonel Henderson explained that, when confronted with
the task of melding a cohesive unit instilled with a "common
purpose" and a "shared mission" from disparate parts, he thought
it highly desirable to begin from "a consistent starting point."
To that end, he concluded that "consistency in appearance" would
help to develop "shared pride" and "esprit de corps" among the
more than 2,000 men and women of the fledgling department. And,
inasmuch as the rule requiring officers to be clean shaven is the
same rule that previously governed the "old" State Police,
implementing a standard so closely identified with a majority of
the members of the "new" State Police would enhance the chances
of a successful consolidation.
Although the district court was not bound to accept the
Henderson affidavit at face value, it was certainly entitled to
credit the Colonel's assessment of the situation particularly
when, as in this instance, the Colonel's stated views were not
inherently implausible, internally inconsistent, or contradicted
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by other credible evidence. At the preliminary injunction stage,
it is, after all, "the district court's duty and its
prerogative to assess the facts, draw whatever reasonable
inferences it might favor, and decide the likely ramifications."
Independent Oil & Chem. Workers, 864 F.2d at 933. The court
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below appears to have followed this protocol faithfully. No more
was exigible.
III. CONCLUSION
III. CONCLUSION
We need go no further.5 "Likelihood of success cannot
be woven from the gossamer threads of speculation and surmise."
Narragansett Indian Tribe, 934 F.2d at 6. Here, Kelley cast a
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large shadow over plaintiffs' case. The district court,
evaluating the dimensions of this shadow, denied preliminary
injunctive relief. Because plaintiffs have not persuaded us that
the lower court overlooked pertinent factors, focused on
inappropriate factors, or made a serious error in weighing and
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5Given the weakness of plaintiffs' case on the merits, an
analysis of the other factors bearing on preliminary injunctive
relief would be supererogatory. See, e.g., Coalition for Basic
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Human Needs v. King, 654 F.2d 838, 841 (1st Cir. 1981) (holding
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that even "excruciatingly obvious" injury is irrelevant when a
plaintiff has not demonstrated likely success on the merits). We
pause, however, to note that, in their discussion of irreparable
harm, appellants mistakenly focus on the psychological damage an
altered facial appearance ostensibly creates. In light of
Colonel Henderson's decision delaying implementation of the
grooming rule, see supra note 2, the appropriate inquiry for
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purposes of irreparable harm is not psychic harm, but whether the
mustachioed officers' temporary designations as special police
officers will have lasting effects.
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balancing the relevant concerns, we cannot intervene. On this
jubate record, there is scant reason for suspending the "no
mustache" regulation.
The denial of the motion for preliminary injunction is
The denial of the motion for preliminary injunction is
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affirmed. Costs to appellees.
affirmed. Costs to appellees.
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