
USCA1 Opinion

	




          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          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          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.                                     _______________                                          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 & Chem. Workers of Quincy, Inc. v.                    ___  _______________________________________________          Procter & 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.                                   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  & Chem.  Workers, 864  F.2d at  933.   The court          _________________________________          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          _________________________                          ______          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                    The denial of the  motion for preliminary injunction is                    _______________________________________________________          affirmed.  Costs to appellees.          affirmed.  Costs to appellees.          ________   __________________                                          10
