January 21, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1821

                  RALPH S. WEAVER, ETC., ET AL.,
                     Plaintiffs, Appellants,

                                v.

                 CHARLES HENDERSON, ETC., ET AL.,
                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Rya W. Zobel, U.S. District Judge]
                                                    

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                    and Stahl, Circuit Judge.
                                            

                                             

     Kathleen M. McCarthy for appellants.
                         
     James T. Masteralexis on brief for International Brotherhood
                          
of Police Officers, amicus curiae.
     Rosemary  S.  Gale, Assistant  Attorney  General,  with whom
                       
Scott Harshbarger, Attorney General, was on brief, for appellees.
                 

                                             

                                             

          SELYA, Circuit Judge.  In this case, the district court
          SELYA, Circuit Judge.
                              

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

          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
                                                      

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
           

rules and regulations" for  governance of, and discipline within,

the new department.   Id. at 991.  In  addition, the law directed
                         

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.
                                            

            Pursuant  to his newly conferred statutory authority,

                                2

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

                    

     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.

                                3

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
                                                          

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

          We   rehearse  the   criteria  applicable   to  interim

injunctive  relief  and then  assess  the  supportability of  the

ruling below.

                       A.  Legal Standards.
                                          

                                4

          Over time,  we have developed a  quadripartite test for

determining   whether  litigants  are   entitled  to  preliminary

injunctive redress.   See Narragansett Indian  Tribe v. Guilbert,
                                                                

934  F.2d  4, 5  (1st  Cir. 1991).    The  sine qua  non  of that
                                                        

formulation  is whether the  plaintiffs are likely  to succeed on

the merits.3   See id.  at 6 (labeling  this factor  "critical");
                      

Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st
                                         

Cir.  1981) (stating  that "the  probability-of-success component

has  loomed large"  in most  cases), cert.  denied, 455  U.S. 921
                                                  

(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.,
                                                                

LeBeau v. Spirito, 703  F.2d 639, 645 (1st Cir.  1983) (affirming
                 

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 &amp; Chem. Workers of Quincy, Inc. v.
                                                              

Procter &amp; Gamble  Mfg. Co.,  864 F.2d  927, 929  (1st Cir.  1988)
                          

                    

     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
                                                            
F.2d at 5.

                                5

(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. 
   

                         B.  Discussion.
                                        

          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
                                                  

(1976), compels a negative answer to that inquiry. 

          In   Kelley,   plaintiffs   brought  a   constitutional
                     

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.
                                                        

Acknowledging   the   deference   due   government   agencies  in

implementing their  chosen organizational modes, see  id. at 247,
                                                         

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
                           

rather   modest   hurdle  because   maintaining   "similarity  in

appearance,"  either to  abet  the public's  easy recognition  of

                                6

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.
                                                                 

          Kelley's grip on  the instant case is unrelenting.  The
                

Order at issue here is roughly comparable to that endorsed by the

Kelley Court.  It is, therefore, presumptively valid.  See id. at
                                                              

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
                                                 

that  the constitutional validity of an organizational structure,

with its implementing  regulations, "does not depend . . . on any

doctrine of historical prescription").

                    

     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.

                                7

          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
                                                      

consistently honored in later  cases.  See, e.g., Maciariello  v.
                                                             

Sumner, 973 F.2d 295, 300 (4th Cir. 1992); Egger v. Phillips, 710
                                                            

F.2d  292, 319 (7th  Cir.) (collecting cases),  cert. denied, 464
                                                            

U.S. 918 (1983); Waters v. Chaffin, 684 F.2d 833, 839  (11th Cir.
                                  

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

                                8

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  &amp; Chem.  Workers, 864  F.2d at  933.   The court
                                 

below appears to have followed this protocol faithfully.  No more

was exigible.

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
                                                         

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

                    

     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
                                                                 
Human Needs v.  King, 654 F.2d 838, 841 (1st  Cir. 1981) (holding
                    
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
                          
purposes of irreparable harm is not psychic harm, but whether the
mustachioed  officers' temporary  designations as  special police
officers will have lasting effects.

                                9

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
                                                                 

affirmed.  Costs to appellees.
                             

                                10
