Ajaj v. Federal Bureau of Prisons

Appellate Case: 19-1250 Document: 010110643021 Date Filed: 02/09/2022 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 9, 2022

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

AHMAD AJAJ,

Plaintiff - Appellant,

v.

No. 19-1250

FEDERAL BUREAU OF PRISONS;

CALVIN JOHNSON, Associate Warden,

in his individual capacity; D. PARRY,

Officer, in his individual capacity;

SAMANTHA MCCOIC, Medical Staff, in

her individual capacity; JOHN OLIVER,

Warden, in his individual capacity; DAVID

B. BERKEBILE, Warden, in his individual

capacity; TARA HALL, Associate

Warden, in her individual capacity;

GEORGE KNOX, Religious Counselor, in

his individual capacity; RONALD

CAMACHO, Physician Assistant, in his

individual capacity,

Defendants - Appellees,

and

BILL TRUE, Warden, in his official

capacity; CHRIS LAMB, Associate

Warden, in his official capacity; K.

MORROW, Medical Staff, in her official

capacity; MICHAEL CASTLE, Chaplain,

in his official capacity; JASON

HENDERSON, Chaplain, in his official

capacity; KENNETH CRANK, Inmate

Trust Fund Supervisor, in his official

capacity; ROGER HUDDLESTON, Nurse,

in his official capacity; D. PARRY,

Appellate Case: 19-1250 Document: 010110643021 Date Filed: 02/09/2022 Page: 2

Officer, in his official capacity; UNITED

STATES OF AMERICA,

Defendants.

------------------------------

MUSLIM ADVOCATES; RODERICK

AND SOLANGE MACARTTHUR

JUSTICE CENTER,

Amici Curiae.

_________________________________

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:15-CV-00992-RBJ-KLM)

_________________________________

Julieanne Buchanan (Nicole B. Godfrey, Danielle C. Jefferis, Aurora L. Randolph, Laura

Rovner and student attorneys Denver Donchez, Katie Heideman, Hunger Ross, Andrew

Shulman, and Zoë Williams, with her on the briefs), University of Denver Sturm College

of Law Civil Rights Clinic, Denver, Colorado, for the Appellant.

Karl L. Schock, Assistant United States Attorney (Matthew T. Kirsch, Acting United

States Attorney, with him on the brief), for the Appellee.

John J. Clarke, Jr., Caroline Fish, Micha Chavin, and Sean Newland, DLA Piper LLP

(US), New York, New York, and Sacramento, California, filed a brief for Amicus Curiae

Roderick and Solange MacArthur Justice Center.

Matthew W. Callahan filed a brief for Amicus Curiae Muslim Advocates, Washington,

D.C.

_________________________________

Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.

_________________________________

HARTZ, Circuit Judge.

_________________________________

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Ahmad Ajaj, a practicing Muslim, is a Bureau of Prisons (BOP) inmate

serving a 114-year sentence for terrorist acts connected with the 1993 World Trade

Center bombing. Mr. Ajaj sued to obtain injunctive relief against BOP and damages

from BOP officials on several grounds, including violations of his rights to free

exercise of religion under the Religious Freedom Restoration Act (RFRA), 42 U.S.C.

§ 2000bb et seq. The United States District Court for the District of Colorado

dismissed his claims, and Mr. Ajaj has appealed. He contends that the district court

erred by holding (1) that his claim against the BOP for denial of his right to group

prayer was moot and (2) that RFRA did not provide a claim for damages against

government officials in their individual capacities. Exercising jurisdiction under

28 U.S.C. § 1291, we agree with Mr. Ajaj and reverse the challenged rulings. The

mootness ruling was based on a misconception of the evidence of Mr. Ajaj’s prison

conditions. And the Supreme Court has now ruled in Tanzin v. Tanvir, 141 S. Ct.

486, 489 (2020), that damages claims are permissible under RFRA. The parties have

also asked us to consider, in light of Tanzin, whether the individual defendants can

escape liability through the defense of qualified immunity. We reject Mr. Ajaj’s

contention that the doctrine of qualified immunity is inapplicable to RFRA claims,

but we decline to resolve whether the individual defendants in this case have shown

entitlement to qualified immunity, leaving that matter to the district court in the first

instance.

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I. BACKGROUND

From 2012 to 2017 Mr. Ajaj was incarcerated at the United States Penitentiary,

Administrative Maximum (ADX) in Florence, Colorado. In 2012, ADX

accommodated Mr. Ajaj’s request to fast during the month of Ramadan by delivering

his medications outside of fasting hours. Ramadan is an Islamic holy month during

which Muslims refrain from ingesting anything—including medication—from sunrise

to sunset, provided there are no adverse health effects. Between 2013 and 2015, ADX

refused to provide Mr. Ajaj the same accommodation.

After ADX denied Mr. Ajaj’s request for adjusted medication delivery for

Ramadan in May 2015, Mr. Ajaj filed suit against the BOP and the then-ADX warden

John Oliver for violating his rights to free exercise of religion under the First

Amendment and RFRA. RFRA prohibits the federal government from substantially

burdening an individual’s exercise of religion unless the application of that burden is

the least restrictive means of furthering a compelling governmental interest. See

42 U.S.C. §§ 2000bb–1, 2000bb–2. Shortly after Mr. Ajaj filed suit, ADX amended

its policies to provide for medication distribution outside of Ramadan fasting hours

and moved to dismiss Mr. Ajaj’s claim as moot.

Later that year Mr. Ajaj filed an amended complaint, alleging that ADX’s

policy change on medications had been only temporary, naming additional officials

as defendants, and adding several other claims under the First and Fifth Amendments,

RFRA, and the Federal Tort Claims Act. Relevant to this appeal, he sought injunctive

relief against the BOP and monetary relief against BOP officials in their individual

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capacities based on the following alleged violations of RFRA: (1) failure to

accommodate religious fasts during Ramadan and additional fasts on certain other

days prescribed by Islamic tradition throughout the year, referred to as Sunnah fasts;

(2) failure to provide access to a religiously compliant halal 1 diet; (3) failure to

provide access to an Islamic religious leader (an imam); and (4) failure to

accommodate religiously mandated group prayer five times daily. Mr. Ajaj sought

injunctive relief relating not just to ADX but also against “BOP staff at all facilities

BOP places Mr. Ajaj in.” J. App., Vol. 1 at 153–54.

The defendants moved to dismiss on a variety of grounds. The only ones raised

by the BOP that we need mention are that the RFRA Ramadan medicine-

administration claim was moot in light of ADX’s policy change and that Mr. Ajaj

failed to make plausible allegations that its other conduct violated RFRA. And the

only ones raised by the individual defendants that we need mention are that RFRA

does not authorize money damages against officials sued in their individual

capacities and that even if it did, all the individual defendants would be entitled to

qualified immunity.

The district court agreed with the first ground raised by BOP, dismissing

Mr. Ajaj’s claims regarding his Ramadan fasts because ADX had updated its

medication-distribution policies to accommodate Ramadan. And it dismissed with

1

“‘[H]alal’ means ‘permitted.’ Fruits and vegetables are always permitted.

Items that are not permitted include[] pork, meat not slaughtered in an approved

manner, carrion and alcohol.” District Ct. Findings, Conclusions and Order of

Judgment, 9/13/18, J. App., Vol. 19 at 3706.

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prejudice all of Mr. Ajaj’s RFRA claims against the individual-capacity defendants

because it concluded that RFRA’s text and history suggest that money damages are

not available in individual-capacity suits. (It did not address the qualified-immunity

issue.) The case proceeded, however, on Mr. Ajaj’s claims for injunctive relief

against the BOP regarding medication distribution for his Sunnah fasts, access to a

halal diet, access to an imam, and participation in group prayer.

The parties engaged in settlement negotiations from May to July 2017. After

those negotiations failed, the BOP moved Mr. Ajaj into the final phase of ADX’s

Step-Down Program—a 24-month program for inmates to demonstrate they can

function in less restrictive prisons—at USP [United States Penitentiary]-Florence.

Mr. Ajaj was then transferred to a facility in Indiana, USP Terre Haute, in January

2018. He was placed in the Life Connections Program (LCP), “a faith-based life

skills program in which participants are taught to take their basic faith teachings and

integrate them into their lives so they can make healthy connections to their family

and their community.” District Ct. Findings, Conclusions, and Order of Judgment

9/13/18, J. App., Vol. 19 at 3708. After the transfer to Terre Haute, the BOP moved

to dismiss Mr. Ajaj’s remaining RFRA claims as moot because they were all directed

at ADX (where he was no longer housed) and the general practices, security needs,

and personnel at Terre Haute—and, in particular, the special treatment available in

the LCP—are substantially different from those at ADX. For example, inmates in the

LCP are allowed to pray together in a designated classroom when they are outside

their cells whereas Mr. Ajaj alleged that group prayer is prohibited at ADX.

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Mr. Ajaj opposed the motion on several grounds. First, he maintained that his

transfer did not resolve any of his RFRA claims: Medication delivery at Terre Haute

still did not accommodate his Sunnah fasts. Terre Haute did not provide a halal

menu; indeed Mr. Ajaj alleged that no BOP institution provided a halal-certified

menu. He still did not have access to an imam despite his requests to arrange

meetings, including with imams at other BOP facilities by video or telephone. And

although LCP allowed him to pray with others in a designated area when inmates

were outside their cells, he still was not able to pray with others five times daily.

Mr. Ajaj further argued that even if his claims were moot after his transfer, the

voluntary-cessation and capable-of-repetition-yet-evading-review exceptions to

mootness applied. He remained “confined to a BOP facility, subject to BOP policies,

and suffering violations of his religious rights.” Pl.’s Resp. to Summ. Judgment Mot.,

J. App., Vol. 14 at 2474. Although the LCP offered some relief by providing Mr. Ajaj

greater opportunity to exercise his religion, the BOP remained free to move him out

of the program, or transfer him to a different facility at any time; and the BOP had

not demonstrated that any system-wide policy changes would protect him from

similar deprivation at a future facility. Indeed, Mr. Ajaj argued that his transfer out of

the LCP was likely because it is typically an 18-month assignment for inmates with

24–36 months left in their sentence; it is, according to Mr. Ajaj, “never a permanent

home for any federal prisoner.” Id. at 2470. The BOP, however, represented that

inmates can stay in the LCP beyond 18 months if they continue to contribute to the

program.

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The district court rendered a split decision. It granted the BOP’s motion to

dismiss with respect to those injunction claims relating specifically to procedures at

ADX, explaining that Mr. Ajaj no longer “ha[d] standing” to enjoin practices at a

facility where he was not an inmate. J. App., Vol. 17 at 3358. And it dismissed his

group-prayer claim, ruling that he “no longer ha[d] standing to challenge BOP

policies regarding communal prayer” because he was apparently able to pray with

others five times daily in the LCP. Id. at 3359. But Mr. Ajaj’s claims regarding

Sunnah fasts, access to halal foods, and his ability to see an imam could proceed

because he alleged that he continued to be deprived of them in the LCP.

In September 2018, after dismissal of Mr. Ajaj’s Sunnah-fast claim for lack of

preservation, the only remaining claims—seeking injunctive relief against the BOP

based on lack of access to a halal diet and an imam—were set for bench trial on the

merits. In the days before trial, Terre Haute began offering Mr. Ajaj halal meals after

successfully contracting with a local vendor of halal-certified foods. After trial the

district court enjoined the BOP from discontinuing Mr. Ajaj’s halal diet “absent a

very good penological reason.” J. App., Vol. 19 at 3711. But it held that his access to

an imam had not been “substantially burden[ed]” under RFRA, 42 U.S.C. § 2000bb–

1, because Terre Haute had since hired a temporary imam, although not of his

denomination, and it was trying to hire a suitable full-time imam.

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Less than six months after the judgment, Mr. Ajaj was transferred to USP-

Allenwood in Pennsylvania. 2 Mr. Ajaj moved for relief from the order dismissing as

moot his group-prayer claim because Allenwood allowed group prayer only twice a

week. Shortly thereafter, Allenwood changed its policy to allow inmates to pray

together whenever they are outside their cells. As a result, the district court denied

Mr. Ajaj’s motion to revive his group-prayer claim.

On appeal Mr. Ajaj asks this court to reverse (1) the dismissal of his group-

prayer claim as moot and (2) the dismissal of his individual-capacity claims for

money damages. After the parties completed briefing in this court, Mr. Ajaj was

transferred to USP-Coleman I in Sumterville, Florida, which had a policy prohibiting

all group prayer. Mr. Ajaj moved to supplement the record on appeal with

information about his experience at Coleman I, as well as his lack of consistent

access to group prayer at Allenwood. The BOP opposes the motion and urges this

court to confine its review to the record before the district court at the time of

dismissal.

II. DISCUSSION

Mr. Ajaj first argues that the district court erred in dismissing his group-prayer

claim as moot after he was transferred to LCP at Terre Haute because any relief

offered by the transfer was inadequate and temporary. Next, he argues that the

district court’s decision to dismiss his individual-capacity claims must be reversed

2

BOP states that Mr. Ajaj was transferred for threatening a nurse. Mr. Ajaj

disputes this allegation.

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because the recent Supreme Court decision in Tanzin v. Tanvir, 141 S. Ct. 486

(2020)—handed down after the district court judgment—held that RFRA does

authorize money damages. He further urges this court to reject the BOP’s alternative

argument for affirmance on grounds of qualified immunity because qualified

immunity is inapplicable to RFRA suits. We begin by addressing mootness.

A. Mootness of the Group-Prayer Claim

We review questions of constitutional mootness de novo. See Rio Grande

Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). But

as is generally the case in matters of subject-matter jurisdiction, underlying findings

of fact are reviewed for clear error, viewing the evidence in the light most favorable

to the district court’s ruling. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th

Cir. 2008).

“Federal courts only have jurisdiction to consider live, concrete cases or

controversies.” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). The mootness

doctrine thus “focuses upon whether a definite controversy exists throughout the

litigation and whether conclusive relief may still be conferred by the court despite the

lapse of time and any change of circumstances that may have occurred since the

commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011)

(internal quotation marks omitted). “A case is not moot when there is some possible

remedy, even a partial remedy or one not requested by the plaintiff.” Rezaq, 677 F.3d

at 1010.

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After Mr. Ajaj was transferred from ADX to Terre Haute, the district court

dismissed his group-prayer claim as moot because the LCP allowed group prayer. It

explained:

Mr. Ajaj no longer has standing to challenge BOP policies regarding

communal prayer. Mr. Ajaj is apparently now able to pray communally at

Terre Haute. The Life Connections Program allows him special access to

religious activities including group prayer. Mr. Ajaj argues that the program

only lasts 18 months, and therefore, his “short-term access to the unique

opportunity” to participate in group prayer is not a reliable resolution of his

claim. However, BOP represents that “inmates often remain in the program

after their graduation, serving as a teacher or mentor to other inmates.” As

such, there is not an imminent risk that Mr. Ajaj’s ability to participate in

this program (and therefore group prayer) will end in the near future. The

only concrete fact is that Mr. Ajaj is currently allowed to pray five times

daily in a group setting at Terre Haute, and as such he suffers no injury-in-

fact with regard to this policy or procedure. He therefore does not have

standing to seek injunctive relief.

J. App., Vol. 17 at 3359 (citations omitted) (emphasis added).

Mr. Ajaj makes three arguments against dismissal. First, as a threshold matter,

he maintains that the district court erred by performing a standing, rather than

mootness, analysis. We agree with Mr. Ajaj that standing and mootness are distinct

concepts. It is true that they are quite similar. Indeed, mootness has often been

characterized as “standing set in a time frame: The requisite personal interest that

must exist at the commencement of the litigation (standing) must continue throughout

its existence (mootness).” Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d

868, 879 (10th Cir. 2019) (internal quotation marks omitted). But that

characterization is not totally accurate. As the Supreme Court has noted, (1) there is

at least one exception to mootness (when the terminated action is capable of

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repetition yet evading review) that has no counterpart in standing doctrine and (2) the

defendant has the burden of proving mootness while the plaintiff must establish

standing, and the likelihood of future action by the defendant may be too speculative

for standing but not to overcome mootness. See Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189–90 (2000).

We question whether the district court misconceived what it needed to

determine in resolving mootness. We need not answer that question, however,

because we must reverse the district court’s mootness ruling anyway on the ground

that it was based on a misunderstanding of the facts. Mr. Ajaj argues that his claim

was not rendered moot by his transfer to LCP because he still was not able to pray

with others five times daily, and the court could therefore grant him meaningful

relief. The district court rejected this argument below, stating that it was a “concrete

fact” that Mr. Ajaj was “allowed to pray five times daily in a group setting.” J. App.,

Vol. 17 at 3359. But the record is to the contrary.

First, the BOP never represented that Mr. Ajaj could pray with others five

times daily in the LCP. It said only that his access to group prayer was significantly

greater than it was at ADX. The thrust of the BOP’s motion to dismiss was that Terre

Haute should be the proper subject of a new claim (that first needed to be

administratively exhausted) for prospective relief after Mr. Ajaj’s transfer, and that

the differences between the practices and circumstances at the two facilities were

significant. Namely, whereas Mr. Ajaj alleged that he did not have access to any

group prayer at all at ADX, the LCP “allowed [him] to pray in congregation with

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other Muslim inmates multiple times a day, whenever he is outside his cell in his

housing unit.” J. App., Vol. 13 at 2051 (emphasis added). The BOP cited an internal

LCP memorandum stating that a designated classroom “may be used for group prayer

during times when inmates are out of their cells,” including the five Islamic prayers

“daily if possible” and Christian prayers from 8 to 9 PM “nightly.” J. App., Vol. 14

at 2431. In addition, the BOP said that even Mr. Ajaj himself acknowledged that he

could pray with others in the LCP and that his grievances now focused on the fact

that “he cannot pray as frequently as he wants.” J. App., Vol. 13 at 2052 (emphasis

added).

Opposing the BOP’s motion to dismiss, Mr. Ajaj submitted a declaration

stating that LCP inmates were usually able to pray together only about three times

per day because they could access the designated classroom only when it was not

being used for classes or other group prayers. Mr. Ajaj’s ability to pray with others

was further restricted by the limits on the hours that inmates were allowed outside

their cells. See J. App., Vol. 14 at 2419 (declaration of Terre Haute chaplain stating

that “[d]epending on schedules and the time of year, Muslim inmates can frequently

pray four of the five daily prayers of the Islamic faith in a group.”). As additional

support for Mr. Ajaj’s factual allegations, his motion for partial reconsideration—

which argued that the district court’s finding that he could pray with others five times

daily was “contrary to the record evidence presented by the parties,” J. App., Vol. 17

at 3366—included the following statement at the request of the BOP after the parties

conferred about the motion:

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The BOP opposes the motion for reconsideration because the Court

correctly recognized that Mr. Ajaj now has access to significant group

prayer opportunities in the Life Connections Program. As explained in the

BOP’s briefing, Mr. Ajaj can pray with others when he is outside of his

cell, up to five times per day depending on the time of year . . . . Mr. Ajaj

may not be able to pray the first or last of the five daily prayers at those

times of the year when the sun rises before inmates are released from their

cells at approximately 6 a.m., or sets after the inmates are returned to their

cells at approximately 9 p.m.

J. App., Vol. 17 at 3365. 3 And the BOP’s brief on appeal suggests that Mr. Ajaj could

pray with others at Terre Haute “typically for four of the five daily prayers of the

Islamic faith.” Aplee. Br. at 23.

Although missing one or two daily prayers might be considered a permissible

burden on Mr. Ajaj’s religious beliefs, that goes to the merits of his RFRA claim, not

its justiciability. Mr. Ajaj’s group-prayer claim has been founded on his belief that he

must pray with others five times daily; and the record does not support that it was a

“concrete fact” that he could do so in the LCP. District Ct. Order, J. App., Vol. 17

at 3359. We therefore must reverse the dismissal of Mr. Ajaj’s group-prayer claim as

moot because it was based on a clearly erroneous finding that Mr. Ajaj could pray

with others five times daily.

Accordingly, we need not address Mr. Ajaj’s third argument regarding

mootness, which claims an exception to mootness based on the alleged temporary

3

At a hearing during which Mr. Ajaj’s motion for partial reconsideration was

addressed at some length, the district court appeared to accept that Mr. Ajaj was not

always able to pray five times per day at Terre Haute; but neither at the hearing nor

in the order denying the motion did the court explain why it nevertheless denied the

motion.

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nature of his placement in the LCP. Also, we deny as moot his related motion to

supplement the record with evidence of interim events in support of his voluntary-

cessation arguments. 4

B. Individual-Capacity Suits Under RFRA

In addition to bringing claims for injunctive relief against the BOP, Mr. Ajaj

also sued several BOP officials in their individual capacities for money damages for

refusing to (1) accommodate his Ramadan and Sunnah fasting practices; (2) provide

access to a religiously compliant halal diet; (3) provide pastoral visitation with an

imam; and (4) allow him to pray with others.

4

After the parties completed briefing in this court, Mr. Ajaj was again

transferred to a new facility—Coleman I in Sumterville, Florida. Upon arrival he

received a handbook that contained an explicit prohibition against group prayer. He

moved to supplement the record on appeal with the handbook and his declaration that

he has not had consistent or reliable access to group prayer in any facility to which he

has been assigned since ADX. BOP represents that this policy has since been

rescinded and urges us to limit our review to the record before the district court at the

time of dismissal. There is precedent in our circuit indicating that postjudgment

supplementation for the purpose of showing that a case is not moot, rather than to

show that a case has become moot on appeal, may be improper. See Rio Grande

Silvery Minnow, 601 F.3d at 1110 n.11 (10th Cir. 2010) (“This court will not

consider material outside the record before the district court” where a party offered

supplemental evidence to support the district court’s determination that the case was

not moot and that the defendant’s injurious conduct was likely to recur. (internal

quotation marks omitted)). But see EEOC v. CollegeAmerica Denver, Inc., 869 F.3d

1171, 1174 n.6 (10th Cir. 2017) (considering postjudgment developments and

concluding that intervening events made clear that a live case or controversy

persisted without needing to “decide whether the district court was right to dismiss

the claim based on the record as it then existed”). On remand the district court is free

to consider Mr. Ajaj’s changed circumstances as it did when it continued proceedings

for some RFRA claims after he was transferred from ADX to Terre Haute.

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The district court dismissed all the RFRA claims against the individual-

capacity defendants, holding that RFRA did not authorize money damages. While

this appeal was pending, however, the Supreme Court held that money damages are

available under RFRA. See Tanzin, 141 S. Ct. at 489. Recognizing that they can no

longer defend the ground relied on by the district court in dismissing the individual-

capacity RFRA claims, the individual defendants now urge this court to affirm on the

alternative ground of qualified immunity—which the district court never reached but

both sides briefed below. Mr. Ajaj has submitted a supplemental brief arguing that

qualified immunity does not apply to RFRA claims.

We hold that qualified immunity can be invoked by officials sued in their

individual capacities for money damages under RFRA. We decline, however, to

opine on the merits of the defense in this case, leaving it to the district court in the

first instance to determine whether it defeats any of Mr. Ajaj’s claims. We proceed to

explain.

The defense of qualified immunity is a judicially recognized doctrine that

shields government officials “from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The doctrine represents a balance between two competing values: providing

an avenue to hold officials accountable for constitutional or statutory violations and

limiting the social costs arising from the threat of personal liability for official

conduct. See id. at 813–14. In addition to creating the expense of litigation,

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individual-capacity suits can raise several other concerns: They may divert officials’

energy from public matters and duties, they may deter individuals from pursuing

public office, and their prospect may induce excessive caution in “all but the most

resolute, or the most irresponsible” in carrying out official duties. Id. at 814 (internal

quotation marks omitted). Because these considerations are present regardless of the

cause of action against the official, qualified immunity “represents the norm” in suits

against public officials. Id. at 807. Accordingly, many circuits have applied qualified

immunity to individual-capacity suits under a variety of statutes, including RFRA.

See, e.g., Werner v. McCotter, 49 F.3d 1476, 1481–82 (10th Cir. 1995) (applying

qualified immunity to state officials sued under RFRA before RFRA was limited to

apply only to federal officials), superseded by statute on other grounds as stated in

Williams v. Wilkinson, 645 F. App’x 692 (10th Cir. 2016); Lebron v. Rumsfeld, 670

F.3d 540, 557 (4th Cir. 2012) (RFRA); Padilla v. Yoo, 678 F.3d 748, 756–57, 768

(9th Cir. 2012) (RFRA); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015)

(declining to address whether RFRA authorizes individual-capacity suits for money

damages because defendants would in any event be entitled to qualified immunity);

see also Gonzalez v. Lee Cnty. Hous. Auth., 161 F.3d 1290, 1299–1300, 1300 n.34

(11th Cir. 1998) (collecting 11 opinions from eight circuits recognizing qualified-

immunity defense under eight different federal statutes); Tapley v. Collins, 211 F.3d

1210, 1214–16, 1215 n.9 (11th Cir. 2000) (same; also deciding that good-faith

defense in Fair Housing Act did not abrogate qualified-immunity defense).

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Mr. Ajaj nevertheless contends that the analysis in Tanzin establishes that

RFRA does not recognize a qualified-immunity defense to damages liability. We beg

to differ. The very analysis that supported recognition of the damages claim also

compels recognition of qualified immunity.

To begin with, Tanzin stated that “[t]he legal backdrop against which Congress

enacted RFRA confirms the propriety of individual-capacity suits.” 141 S. Ct. at 490

(internal quotation marks omitted). It pointed out that the RFRA language persons

acting under color of law “draws on one of the most well-known civil rights statutes:

42 U.S.C. § 1983,” and the Court had “long interpreted it to permit suits against

officials in their individual capacities.” Id. For present purposes we should also note

that damages claims under § 1983 have also long been subject to the defense of

qualified immunity.

But there is much more. RFRA provides a right to seek “appropriate relief.”

42 U.S.C. § 2000bb–1(c). Tanzin said that the meaning of this “open-ended”

language is “inherently context dependent.” 141 S. Ct. at 491 (internal quotation

marks omitted). The relevant context was “suits against Government officials.” Id.

And “[b]y the time Congress enacted RFRA, [the Supreme] Court had interpreted the

modern version of § 1983 to permit monetary recovery against officials who violated

‘clearly established’ federal law.” Id. Thus, the same context that supported a RFRA

damages remedy also supported the application of qualified-immunity doctrine,

which limits individual liability to violations of clearly established law.

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Indeed, as the Court emphasized, the specific origin of RFRA makes even

more compelling the inference that the damages remedy under that statute was meant

to copy that under § 1983. RFRA was a response to the Supreme Court’s decision in

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.

872, 885–90 (1990), “which held that the First Amendment tolerates neutral,

generally applicable laws that burden or prohibit religious acts even when the laws

are unsupported by a narrowly tailored, compelling governmental interest.” Tanzin,

141 S. Ct. at 489. “RFRA made clear that it was reinstating both the pre-Smith

substantive protections of the First Amendment and the right to vindicate those

protections by a claim.” Id. at 492. Also, continued the Court, “[t]here is no doubt

that damages claims have always been available under § 1983 for clearly established

violations of the First Amendment.” Id. To be sure, Tanzin referenced this context

only to support recognition of the damages claim under RFRA; although the parties

before the Court agreed that there would be a qualified-immunity defense to a RFRA

damages claim, see id. n.*, the Court did not expressly endorse that agreement. But

the force of the Court’s analysis remains. When it is so clear that RFRA was intended

to reinstate what had been a pre-Smith damages action under § 1983, there is a strong

implication that as venerable and important a component of § 1983 as qualified

immunity was also incorporated. Tanzin observed that “[g]iven the textual cues [upon

which it relied], it would be odd to construe RFRA in a manner that prevents courts

from awarding [damages] relief.” Id. at 492; see id. (“Had Congress wished to limit

the remedy to that degree, it knew how to do so.”). For the same reasons, we think it

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would be equally odd to construe RFRA to preclude a qualified-immunity defense. In

short, we think our prior decision in Werner, 49 F.3d at 1481–82, got it right in

applying qualified immunity to RFRA damages claims, even though our decision

concerned a since-invalidated RFRA claim against state actors, see City of Boerne v.

Flores, 521 U.S. 507, 511 (1997) (holding that RFRA is unconstitutional in so far as

it permits suits against state actors).

We are unpersuaded by Mr. Ajaj’s two counterarguments. First, he contends

that Tanzin discouraged “judicial policymaking,” which this court would be engaged

in by attaching a defense to RFRA when Congress had not done so itself. Aplt. Supp.

Br. at 12. But Mr. Ajaj misconceives the point that the Court was making. Once it

had applied the tools of statutory interpretation to construe RFRA as providing a

damages remedy against individual officers, the Court refused to adopt policy

arguments made by the government against such a remedy. To be sure, when trying

to construe the vague term appropriate relief in RFRA, the Court looked to

“background presumptions” (such as the liability of individual government officials

for damages) that were themselves based on policy considerations. Tanzin, 141 S. Ct.

at 493. But for background presumptions to “inform the understanding of a word or

phrase [in a statute], those presumptions must exist at the time of enactment.” Id.

What the government was advocating was policy that had not been incorporated in

earlier relevant statutes, and the Court refused to “manufacture a new presumption

now and retroactively impose it on a Congress that acted 27 years ago.” Id. In

contrast, to recognize qualified immunity in damages cases under RFRA is not to

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create new policy but to construe statutory language in light of a background

presumption that was well-established when RFRA was enacted.

Second, Mr. Ajaj argues that Congress indicated its intent not to include a

qualified-immunity defense (or any other unstated defenses) when it included a

specific defense in the statute’s text, 42 U.S.C. § 2000bb–1(b). See United States v.

Brown, 529 F.3d 1260, 1265 (10th Cir. 2008) (“Under the doctrine of expressio unius

est exclusio alterius, to express or include one thing implies the exclusion of the

other.” (internal quotation marks omitted)). We have a different view.

The relevant provisions of 42 U.S.C. § 2000bb–1 state:

(a) In general—Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule of general

applicability, except as provided in subsection (b).

(b) Exception—Government may substantially burden a person’s exercise

of religion only if it demonstrates 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.

The exception stated in subsection (b) to the general rule stated in subsection (a) is

not confined to suits for damages. If the government action is the least restrictive

means of serving a compelling governmental interest, there is no violation of law.

This proposition was accepted both before and after the Supreme Court’s decision in

Smith. See, e.g., Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981)

(“The mere fact that the petitioner’s religious practice is burdened by a governmental

program does not mean that an exemption accommodating his practice must be

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granted. The state may justify an inroad on religious liberty by showing that it is the

least restrictive means of achieving some compelling state interest.”); Fulton v. City

of Philadelphia, 141 S. Ct. 1868, 1881 (2021) (“A government policy can survive

strict scrutiny only if it advances interests of the highest order and is narrowly

tailored to achieve those interests. Put another way, so long as the government can

achieve its interests in a manner that does not burden religion, it must do so.”

(citation and internal quotation marks omitted)). Such justification of an infringement

of free exercise not only precludes a damages award but would also preclude any

equitable relief.

In other words, subsection (b) is not just a means of protecting individuals

from inappropriate damages awards. The policies that must be considered in deciding

whether to recognize qualified immunity are not at play. We can think of no reason to

infer from that provision that Congress was expressing any disapproval of the

tradition of granting qualified immunity to public officials. “The [expressio unius]

doctrine properly applies only when the unius (or technically, unum, the thing

specified) can reasonably be thought to be an expression of all that shares in the grant

or prohibition involved.” A. Scalia & B. Garner, Reading Law: The Interpretation of

Legal Texts 107 (2012); see Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)

(The expressio unius canon “does not apply to every statutory listing or grouping; it

has force only when the items expressed are members of an associated group or

series, justifying the inference that items not mentioned were excluded by deliberate

choice, not inadvertence.” (internal quotation marks omitted)). For example, if a

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restaurant sign says “No dogs allowed,” does that mean that pet monkeys and baby

elephants are welcome? See Reading Law at 107. Here, it is reasonable to infer that

subsection (b) states the only justification for substantially burdening someone’s

exercise of religion. But it is not reasonable to view the subsection as stating the only

ground on which an official can defend against personal liability for such an

imposition. What if the official acted under a court order or because a gun was held

to the official’s head? In our view, Mr. Ajaj would have us stretch a useful canon of

construction beyond its limits.

We conclude that qualified immunity can be invoked by officials sued for

damages in their individual capacities under RFRA. We reverse the district court’s

dismissal of Mr. Ajaj’s individual-capacity claims and remand for the court to

determine whether the relevant defendants are entitled to immunity.

III. CONCLUSION

We REVERSE the district court’s order dismissing Mr. Ajaj’s group-prayer

claim as moot and its order dismissing all individual-capacity suits for monetary

relief and REMAND for further proceedings consistent with this opinion. We DENY

as moot Plaintiff-Appellant’s Motion to Supplement Record on Appeal.

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