254 F.3d 262 (D.C. Cir. 2001)
Louis Jackson, on behalf of himself and others similarly situated, et al., Appellantsv.District of Columbia, et al., Appellees
No. 00-5103
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2001Decided July 10, 2001

Appeal from the United States District Court  for the District of Columbia (No. 99cv03276)
E. Desmond Hogan argued the cause for appellants.  With  him on the briefs were Jonathan L. Abram, William S. Haft  and Arthur B. Spitzer.
Edward E. Schwab, Assistant Corporation Counsel, argued  the cause for appellee District of Columbia.  With him on the  brief were Robert R. Rigsby, Corporation Counsel, Charles L.  Reischel, Deputy Corporation Counsel, and Lutz Alexander  Prager, Assistant Deputy Corporation Counsel.
Michael A. Humphreys, Assistant U.S. Attorney, argued  the cause for appellee Bureau of Prisons.  With him on the  brief were Wilma A. Lewis, U.S. Attorney, and R. Craig  Lawrence, Assistant U.S. Attorney.
Before:  Henderson, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
Rastafarian and Sunni Muslim pris- oners challenge a prison grooming policy that forbids beards  and long hair, arguing that the policy violates the Free  Exercise Clause of the First Amendment and the Religious  Freedom Restoration Act.  Although the district court found  that the prisoners failed to exhaust their administrative reme- dies as required by the Prison Litigation Reform Act, the  court went on to hold that the policy violated neither the  First Amendment nor the Religious Freedom Restoration  Act.  The prisoners appeal, arguing that for statutory, proce- dural, and constitutional reasons, the exhaustion requirement  does not apply to them.  Agreeing with the district court that  the prisoners failed to exhaust their administrative remedies,  we remand with instructions to vacate in part and dismiss the  complaint without prejudice.


2
* The National Capital Revitalization and Government Im- provement Act of 1997 requires the District of Columbia to  close the Lorton Correctional Complex by December 31, 2001. D.C. Code 24-1201(b).  The Act instructs the District to  transfer its prisoners to facilities operated by the Federal  Bureau of Prisons ("BOP").  Id.  Because BOP has insuffi- cient space to accommodate all D.C. prisoners, the District  contracted to transfer over 1000 prisoners to Virginia Depart- ment of Corrections ("VDOC") facilities.  BOP also trans- ferred an additional 900 District inmates in its custody to  VDOC prisons.


3
On November 15, 1999, VDOC announced new grooming  standards for all inmates in its prisons.  For male inmates,  the policy prohibits beards and goatees, requires hair to be  cut above the shirt collar, and bans hairstyles "such as braids,  plaits, dreadlocks, cornrows, ponytails, buns, mohawks, par- tially shaved heads, [or] designs cut into the hair."  Inmate  Grooming Standards, Va. Dep't of Corr., Procedure No. DOP  864, at 2 (Nov. 15, 1999).  The policy also imposes grooming  requirements on female prisoners, but permits their hair to  be shoulder-length.  Penalties for violating the policy include  assignment to special housing;  termination of most visitation,  telephone, and commissary privileges;  and suspension from  work and other activities.  Id. at 3.  If on arrival a new  prisoner "refuses to cooperate, use of ... force/restraints is  authorized in order to bring the inmate into compliance with  grooming standards."  Id.


4
Louis Jackson, Isadore Gartrell, Carl Wolfe, and Roddy  McDowell, appellants, are serving D.C. sentences at the  VDOC Sussex II prison in Waverly, Virginia.  They brought  this action in the United States District Court for the District  of Columbia on behalf of themselves and other D.C. prisoners,  principally Sunni Muslims and Rastafarians, who are housed  in Virginia facilities and who believe their religious faiths  forbid them from cutting their hair, shaving their beards, or  both.  In their complaint, the prisoners alleged that the  grooming policy violates the Free Exercise Clause of the  First Amendment and the Religious Freedom Restoration  Act ("RFRA"), 42 U.S.C. 2000bb to 2000bb-4.  RFRA  forbids the government from "substantially burden[ing] a  person's exercise of religion" unless the government can  "demonstrate[ ] 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."  Id. 2000bb-1(b).  Con- gress enacted RFRA to protect one of "the most treasured  birthrights of every American"--"the right to observe one's  faith, free from Government interference."  S. Rep. No. 103- 111, at 4 (1993).  Although the Supreme Court has declared  RFRA unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507 (1997), we have assumed,  without deciding, that "RFRA applies to the federal govern- ment, notwithstanding the Supreme Court's decision in ...  Boerne."  Alamo v. Clay, 137 F.3d 1366, 1368 (D.C. Cir.  1998);  cf. Henderson v. Kennedy, 253 F.3d 12(D.C. Cir.2001).  We shall continue that assumption  here.


5
The prisoners made two basic claims in the district court. First, they contended that VDOC lacked a compelling interest  in the grooming policy and that the policy was not the least  restrictive means of achieving whatever interests VDOC had. Alternatively, they argued that BOP and the District had a  less restrictive means of housing prisoners who believed that  the grooming policy required them to violate fundamental  religious tenets:  transferring them to non-Virginia prison  facilities without such grooming policies.


6
On December 14, 1999, one day before the grooming poli- cy's effective date, the district court issued a temporary  restraining order preventing the policy from being applied to  any District inmate with "sincerely held religious beliefs the  new grooming policy would compromise."  Order Granting  T.R.O., Jackson v. District of Columbia, No. 99-03276  (D.D.C. Dec. 14, 1999).  Shortly thereafter, BOP filed a  motion to intervene as a defendant, explaining that it has a  contract with VDOC to house former Lorton inmates now in  BOP's care.  The district court granted BOP's motion, and  the prisoners filed an amended complaint to include BOP  prisoners in the class.


7
To comply with the TRO, BOP implemented a screening  procedure to identify prisoners' religious preferences before  assigning them to VDOC facilities.  Sunni Muslim and Rasta- farian prisoners were sent to facilities outside Virginia that  did not require them to cut their hair or shave their beards.


8
Following discovery and trial, the district court ruled that  the prisoners had failed to exhaust VDOC's grievance proce- dures and had thus not complied with the Prison Litigation  Reform Act's ("PLRA") requirement that "[n]o action ... be  brought with respect to prison conditions under ... any ...  Federal law[ ] by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies  as are available are exhausted," 42 U.S.C. 1997e(a).  See  Jackson v. District of Columbia, 89 F. Supp. 2d 48, 63  (D.D.C. 2000).  Explaining, however, that "considerable re- sources [had been] devoted to the presentation of evidence,"  and that appellate review was "certain," id. at 64, the court  went on to consider the merits of the case.  Ruling against  the prisoners, the court concluded that although the prison- ers' belief that they could not cut their hair was "heartfelt  and sincere," id. at 65, and although they had demonstrated  that the grooming policy "substantially burdens their exercise  of religion," id., the prison interests served by the policy were  compelling, and VDOC had no less restrictive alternatives, id.  at 66-69.  The district court entered "judgment for defen- dants."  Id. at 50.  In doing so, the court "decline[d] to  evaluate" the issue raised by the prisoners' alternative claim: "whether defendants have compelling interests in keeping  plaintiffs incarcerated in Virginia Corrections facilities."  Id.  at 66.


9
The prisoners appeal, arguing that:  (1) the PLRA's ex- haustion requirement does not apply to them;  (2) the district  court erred in failing to read an irreparable harm exception  into the exhaustion requirement;  and (3) in any event, two  class members successfully exhausted available administrative  remedies.  On the merits, they press only their alternative  argument that BOP and the District could assign them to  prisons without grooming policies, as BOP did to comply with  the TRO.

II

10
In support of their claim that the district court erred in  applying the PLRA's exhaustion requirement to them, the  prisoners argue that the PLRA does not apply to RFRA  actions and that the District and BOP waived the exhaustion  defense by failing to include it in their answers.  We address  each argument in turn.


11
The prisoners' first argument rests on two provisions of  RFRA.  Entitled "Judicial relief," one provision establishes that "[s]tanding to assert a claim or defense under this  section shall be governed by the general rules of standing  under Article III of the Constitution."  42 U.S.C. 2000bb- 1(c).  The second provision, entitled "Rule of construction,"  states that "[f]ederal statutory law adopted after November  16, 1993 is subject to this chapter unless such law explicitly  excludes such application by reference to this chapter."  Id.  2000bb-3(b).  According to the prisoners, these two provi- sions allow them to pursue their RFRA action without first  complying with the PLRA's exhaustion requirement.  They  argue that because nothing in the PLRA--a "Federal statuto- ry law adopted after November 16, 1993"--"explicitly ex- cludes ... application" of RFRA's "Judicial relief" provision,  courts may condition the filing of RFRA actions on nothing  more than "the general rules of standing under Article III of  the Constitution."


12
We disagree.  The prisoners read the statute as if it said  "Article III standing is the only requirement for RFRA  suits."  The statute actually says only that "[s]tanding ...  shall be governed by the general rules of standing under  Article III of the Constitution."  Id. 2000bb-1(c) (emphasis  added).  Describing the purpose of the "Judicial relief" provi- sion, the Senate Report on the bill refers only to standing,  saying nothing at all about other requirements for suit.  S. Rep. No. 103-111, at 13 ("Ordinary article III rules are to  be applied in determining whether a party has standing to  bring a claim pursuant to this act.").  If the prisoners'  reading of the statute were correct, courts would have to  disregard not only the PLRA exhaustion requirement, but  also such basic matters as personal jurisdiction, venue, and  statutes of limitations.  Neither the statute nor its legislative  history suggests that Congress intended such an astonishing  result.


13
The prisoners argue that because all federal court plaintiffs  must satisfy Article III standing, see Warth v. Seldin, 422  U.S. 490, 498 (1975), limiting the "Judicial relief" section to  standing would leave the section "utterly without effectcontravening an elementary principle of statutory construc- tion."  Appellants' Reply Br. at 3 (internal quotation omitted). Again, we disagree.  The Senate Report makes clear that Congress included the provision in order to emphasize that  RFRA should not "have [the] unintended consequence[ ]" of  "unsettl[ing]" standing law.  S. Rep. No. 103-111, at 12-13. "The committee intends that [standing] issues continue to be  resolved under Article III standing rules and establishment  clause jurisprudence.  The Act would not provide a basis for  standing in situations where standing to bring a free exercise  claim is absent."  Id. at 13 (emphasis added).  Although it  may be unusual for Congress to include language in a statute  merely to emphasize its intention not to change a particular  aspect of existing law, that appears to be precisely what  Congress did here.


14
The prisoners' second argument is that even if the PLRA's  exhaustion requirement applies to RFRA suits, BOP and the  District waived the defense by failing to include it in their  answers to the original complaint.  BOP did not raise its  exhaustion defense until it answered the first amended com- plaint;  the District raised the defense in a "notice" that it was  joining BOP's exhaustion defense.  See Jackson, 89 F. Supp.  2d at 58 n.46.  Treating the District's notice as a motion to  amend its answer to plaintiffs' first amended complaint, the  district court concluded that granting the motion would not  prejudice the prisoners because they had learned of the  defense two weeks earlier when BOP identified two witnesses  who would testify on the subject of exhaustion.  Id.


15
Challenging the district court's decision, the prisoners cite  Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339  (D.C. Cir. 1997), for the principle that "affirmative defenses  must be raised in a responsive pleading."  Id. at 341.  But  Harris also emphasizes that district courts retain discretion  to grant leave to amend pleadings to include new defenses, id.  at 344-45, just as the district court did here.  We review  district court decisions regarding amendments of pleadings  for abuse of discretion, see Material Supply Int'l, Inc. v.  Sunmatch Indus. Co., 146 F.3d 983, 991 (D.C. Cir. 1998),  recognizing that leave to amend should be "freely given when  justice so requires," Fed. R. Civ. P. 15(a), absent "any appar- ent or declared reason--such as undue delay, bad faith[,] ...  [or] undue prejudice to the opposing party," Foman v. Davis, 371 U.S. 178, 182 (1962).  Not until their reply brief did the  prisoners argue that any such reason existed in this case. This argument came too late.  See Corson & Gruman Co. v.  NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) ("We require  petitioners and appellants to raise all of their arguments in  the opening brief to prevent 'sandbagging' of appellees and  respondents and to provide opposing counsel the chance to  respond.").

III

16
The prisoners argue that the district court erred by refus- ing to recognize an irreparable injury exception to the  PLRA's exhaustion requirement.  "Under the district court's  interpretation [that the PLRA's exhaustion requirement lacks  an irreparable harm exception], the PLRA prevents a prison- er who is subject to daily torture from seeking an injunction  until he exhausts a six-month (or longer) prison grievance  procedure."  Appellants' Opening Br. at 15 n.3.  Such an  exception is necessary, the prisoners argue, "in order to avoid  ... serious constitutional questions."  Id.


17
We think an irreparable injury exception is unnecessary. The Supreme Court has long recognized that federal courts  possess a "traditional power to issue injunctions to preserve  the status quo while administrative proceedings are in prog- ress and prevent impairment of the effective exercise of  appellate jurisdiction."  FTC v. Dean Foods Co., 384 U.S. 597,  604 (1966).  As we explained in Wagner v. Taylor, "[i]f court may eventually have jurisdiction of the substantive  claim, the court's incidental equitable jurisdiction, despite the  agency's primary jurisdiction, gives the court authority to  impose a temporary restraint in order to preserve the status  quo pending ripening of the claim for judicial review."  836  F.2d 566, 571 (D.C. Cir. 1987).  In Wagner, we found that  although Title VII complainants must ordinarily exhaust ad- ministrative remedies before seeking judicial relief, id. at 570  n.34, because Title VII does not expressly foreclose courts'  "inherent equitable power to issue ... injunctions to preserve  the status quo," id. at 572, district courts retain jurisdiction to  grant interim injunctive relief where plaintiffs face either irreparable injury or imminent retaliation.  Id. at 574-76;  see  also Nat'l Treasury Employees Union v. King, 961 F.2d 240  (D.C. Cir. 1992) (responding to the union's argument that it  would suffer irreparable injury to its First Amendment rights  during the time that the Federal Labor Relations Authority  considered its unfair labor practice claim by ordering the  district court to hold the case in abeyance for three months or  until the FLRA decided the union's claim, and instructing the  district court, in order to prevent the union from suffering  irreparable injury, to hear the claim at the end of that period  if the FLRA had not acted on the claim);  cf. Sampson v.  Murray, 415 U.S. 61, 84 (1974) (explaining that a showing of  irreparable injury would be necessary to justify preliminary  injunctive relief staying agency action during the agency's  appeals process).


18
Like Title VII, the PLRA contains nothing expressly fore- closing courts from exercising their traditional equitable pow- er to issue injunctions to prevent irreparable injury pending  exhaustion of administrative remedies.  The district court  therefore had no need to recognize an irreparable injury  exception to the PLRA's exhaustion requirement;  the court  had inherent power to protect the prisoners while they ex- hausted prison grievance procedures.  Of course, the district  court had no need to exercise that authority in this case, for  by the time BOP raised its exhaustion defense, the court had  issued a temporary restraining order that, by agreement of  the parties, remained in effect until the court ruled on the  merits.

IV

19
This brings us to the question of whether the prisoners  exhausted their administrative remedies as required by the  PLRA.  VDOC's grievance procedures have four stages, but  only the first two relate to this case.  A prisoner begins by  filing an informal complaint with prison staff.  The staff must  respond in writing within fifteen days.  If unsatisfied with the  response, the prisoner may file a Level I formal grievance  within thirty days of the occurrence, to which the prison must respond within thirty days (or sixty days if the prison issues a  "continuance").  Inmates are notified of the grievance proce- dures "during orientation at all reception centers and all  parole violator units," and copies are made available "in  locations accessible to both employees and inmates."  Inmate  Grievance Procedure, Va. Dep't of Corr., Procedure No. DOP  866, at 3-4 (Nov. 20, 1998).


20
The prisoners argue that class members Louis Jackson and  Carl Wolfe exhausted their administrative remedies.  See  Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981)  (explaining that each individual plaintiff in a class-action suit  need not have pursued the available administrative remedies  "if at least one member of the plaintiff class has met the filing  prerequisite").  Jackson filed an informal complaint on De- cember 1, 1999, but never received a response.  Relying on  their understanding that the response to an informal com- plaint must be attached to a Level I grievance, the prisoners  argue that Jackson could not file a Level I formal grievance  since he had no response to attach.  According to the district  court, however, even if the filing of an informal complaint to  which prison officials fail to respond satisfies the PLRA,  Jackson's filing did not.  As the district court observed,  because prison officials have fifteen days to respond to an  informal complaint, Jackson's December 1 complaint was still  pending when the prisoners filed suit on December 10, 1999. See Jackson, 89 F. Supp. 2d at 59-60.


21
In so ruling, the district court rejected the prisoners'  argument that the PLRA permits suit to be filed so long as  administrative remedies are exhausted before trial.  "[T]he  statute means what it plainly says," the district court held; "prisoners may only file actions under federal law concerning  their conditions of confinement after they have exhausted  their prison's administrative remedies."  Id. at 59.  We agree,  as do three other circuits.  See Freeman v. Francis, 196 F.3d  641, 645 (6th Cir. 1999);  Perez v. Wis. Dep't of Corr., 182 F.3d  532, 534-35 (7th Cir. 1999);  Garrett v. Hawk, 127 F.3d 1263,  1265 (10th Cir. 1997).  But see Williams v. Norris, 176 F.3d  1089, 1090 (8th Cir. 1999) (holding that it is sufficient for  prisoners to exhaust their remedies before trial).  The PLRA


22
says that no action shall be "brought ... until such adminis- trative remedies as are available are exhausted," not that no  action shall be tried until administrative remedies are ex- hausted. 42 U.S.C. 1997e(a) (emphasis added).


23
The prisoners next argue that Jackson satisfied their  PLRA exhaustion obligation because, by the date they filed  their amended complaint (January 18, 2000), the deadline for  the prison's response to Jackson's informal complaint had  passed.  But if the PLRA meant only that prisoners had to  exhaust administrative remedies before filing an amended  complaint, they would have no incentive to exhaust those  remedies prior to filing suit.  The prisoners could complete  the grievance process while suit was pending, avoiding dis- missal by later amending their complaint.  This would defeat  the very purpose of the PLRA exhaustion requirement:  re- lieving courts of the burden of lawsuits filed before prison  officials have had an opportunity to resolve prisoner griev- ances on their own.  See Alexander v. Hawk, 159 F.3d 1321,  1326 n.11 (11th Cir. 1998).


24
Class member Carl Wolfe's argument that he exhausted his  administrative remedies rests on his claim that he complained  about the grooming policy to three prison officials, one of  whom--the warden--told him "to file in the court."  Trial Tr.  2/29/2000 at 62.  Relying on Miller v. Tanner, 196 F.3d 1190  (11th Cir. 1999), the prisoners argue that "[t]he PLRA's  exhaustion requirement does not require a prisoner to pursue  an administrative procedure that prison officials have ex- pressly told him is not available to cure the inmate's com- plaint."  Appellants' Opening Br. at 25.


25
In Miller, prison officials moved to dismiss a prisoner's  complaint for failure to comply with the PLRA's exhaustion  requirement because the prisoner did not appeal following the  rejection of his grievance.  196 F.3d at 1192, 1194.  Yet the  letter the prisoner received from the grievance clerk denying  his grievance stated that "[w]hen any grievance is terminated  at the institutional level you do not have the right to appeal. The above listed grievance[ ] is closed."  Id. at 1192.  The  Eleventh Circuit found that this letter "unambiguously told [the prisoner] that an appeal was futile, even prohibited."  Id.  at 1194.  Observing that "appealing might be treated as  insubordination and there might be harmful consequences for  disobeying the rules," the court concluded that "[the prisoner]  was not required, in order to exhaust his administrative  remedies, to file an appeal after being told unequivocally that  appeal of an institutional level denial was precluded."  Id.


26
This case differs from Miller in two significant respects. To begin with, the record in this case contains no "unambigu- ous" or "unequivocal" (the Eleventh Circuit's words) state- ment that Wolfe had exhausted the prison's grievance proce- dures.  Indeed, we find nothing in the record to support the  prisoners' claim that Wolfe was told "that he had no recourse  through VDOC's grievance process," or that Wolfe's "only  option for challenging the policy was to file in court."  Appel- lants' Opening Br. at 25.  The warden never even mentioned  the grievance procedures;  he said only "there [was] nothing  he [could] do" and that Wolfe had to "file in the court," Trial  Tr. 2/29/2000 at 62.  And under the PLRA, a prisoner must  exhaust his administrative remedies before going to court. Moreover, as we read Wolfe's entire description of the war- den's statement, which the prisoners fail to quote in their  brief, the warden seems to have meant only that Wolfe had to  file suit if he wanted a transfer to a District facility:


27
I asked him first if he could get me transferred back to the District of Columbia being that I'm a Rastafarian and this policy is totally against Rastafarian as far as cutting my hair, shaving my face.  I explained my whole reli- gious policy to him.  He said there is nothing he can do for me.  The only thing I can do, I got to file in the court.


28
Id. at 62-63.


29
Second, the prisoners in this case never allege that Wolfe  risked discipline if he pursued a grievance.  Quite to the  contrary, despite the warden's statement that Wolfe had "to  file in the court," Wolfe filed an informal complaint with his  unit manager, and, after receiving a negative response, filed a  Level I formal grievance.  Id. at 66;  Trial Tr. 3/1/2000 at 300. When that grievance was rejected, he filed a Level II appeal. He was still waiting for a response when trial in the district  court began.  Trial Tr. 2/29/2000 at 66-67.


30
It is thus clear from the record that Wolfe had not exhaust- ed his administrative remedies at the time of trial, let alone  when the prisoners filed their complaint.  Mindful of the  Supreme Court's recent statement that Congress intended  the PLRA to broaden the exhaustion requirement for prison- er suits, see Booth v. Churner, No. 99-1964, 2001 WL 567712,  at *5 (U.S. May 29, 2001), we agree with the district court  that Wolfe failed to comply with the PLRA.

V

31
Because the prisoners failed to exhaust their administrative  remedies, the district court should have dismissed the com- plaint without prejudice, allowing the prisoners to refile once  they have completed the VDOC grievance procedures.  See  Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1348  (D.C. Cir. 1999).  Because the merits of the RFRA claim have  been fully briefed in this appeal, however, and because the  district court might have to consider this claim on remand, we  close with one observation.  See id. at 1349 (commenting on  the merits of one of the issues on appeal despite this court's  dismissal of the appellant's complaint because of the possibili- ty that "this issue [would] arise again in a new trial").  In  evaluating the merits of the prisoners' RFRA claim, the  district court expressly "decline[d]" to consider the issue  presented by the prisoners' alternative contention, the one  they appeal here.  Therefore, should the prisoners refile after  exhausting their administrative remedies, the district court  will need to consider whether BOP and the District can  demonstrate that alternative placement in non-Virginia pris- ons without grooming policies is infeasible.  See, e.g., Jolly v.  Coughlin, 76 F.3d 468, 479 (2d Cir. 1996) (requiring a prison  sued under RFRA to prove that its treatment of the plaintiff  was "the least restrictive means to further [its] asserted  compelling interest").


32
The portions of the district court decision regarding the  merits (Sections IIE, IIF, and III) are vacated, and this  matter is remanded with instructions to dismiss the complaint  without prejudice.


33
So ordered.

