OKLEVUEHA NATIVE AMERICAN CHURCH v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OKLEVUEHA NATIVE AMERICAN 

CHURCH OF HAWAII, INC.; MICHAEL

REX MOONEY, AKA Raging Bear,

Plaintiffs-Appellants,

v. No. 10-17687

D.C. No.

ERIC H. HOLDER Jr., Attorney

General; MICHELE LEONHART, as  1:09-cv-00336-

Acting Administrator of the U.S. SOM-BMK

Drug Enforcement Administration; OPINION

FLORENCE T. NAKAKUNI, U.S.

Attorney for the District of

Hawaii,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted

February 15, 2012—Honolulu, Hawaii

Filed April 9, 2012

Before: Alfred T. Goodwin, Stephen S. Trott, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

3797

3800 OKLEVUEHA NATIVE AMERICAN v. HOLDER

COUNSEL

Michael Andrew Glenn, Low Cost Legal Services, Honolulu,

Hawaii, for the appellants.

James C. Luh, Lowell V. Sturgill, Jr., and Mark Stern,

Department of Justice, Washington, DC, and Derrick K. Wat-

son, Office of the United States Attorney, Honolulu, Hawaii,

for the appellees.

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3801

OPINION

MURGUIA, Circuit Judge:

Plaintiffs Oklevueha Native American Church of Hawaii,

Inc. (“Oklevueha”) and Michael Rex Mooney a.k.a. Raging

Bear appeal the district court’s dismissal of their complaint

and judgment in favor of Defendants the U.S. Attorney Gen-

eral, the Administrator of the U.S. Drug Enforcement Admin-

istration (“DEA”), and the U.S. Attorney for the District of

Hawaii (collectively, “Government”). Plaintiffs’ action seeks

declaratory and injunctive relief barring the Government from

enforcing the Controlled Substances Act (“CSA”) against

them and for return or compensation for marijuana taken by

the Government. Plaintiffs allege that they consume mari-

juana as a “sacrament/eucharist” in their religious ceremonies,

and that their use is protected by the First Amendment and the

Religious Freedom Restoration Act (“RFRA”). The district

court dismissed the claims for declaratory and injunctive

relief on ripeness grounds. It also dismissed the claim for the

return of, or compensation for, the seized marijuana because

the marijuana had been destroyed and monetary damages are

not available under RFRA. We affirm in part and reverse and

remand in part.

I. Factual and Procedural Background

Plaintiff Oklevueha Native American Church of Hawaii,

Inc. is a 250-member independent chapter of the Native

American Church (“NAC”). NAC has an estimated 500,000

national members in 100 branches throughout 24 states. Plain-

tiff Michael Rex “Raging Bear” Mooney is the founder, presi-

dent, and medicine custodian of the Oklevueha chapter. He is

of Seminole Native American ancestry, and is an “authorized

Spiritual Leader,” or “medicine man.”

According to Plaintiffs, NAC is an earth-based healing reli-

gion, the primary purpose of which is to “administer Sacra-

3802 OKLEVUEHA NATIVE AMERICAN v. HOLDER

mental Ceremonies.” These ceremonies involve the

consumption of drugs; indeed, Plaintiffs explain that the

church “only exists to espouse the virtues of, and to consume,

entheogens.” NAC members’ religious use of peyote is

exempted from the prohibitions of the CSA, see 21 C.F.R.

§ 1307.31,1 but there is no such exemption for marijuana.

Plaintiffs explain that marijuana use is a crucial part of NAC

tradition and that members consume marijuana as a sacrament

and eucharist in their religious ceremonies and rites, in addi-

tion to or as a substitute for peyote, which is their “primary

sacrament/great-medicine of choice.” All 250 Oklevueha

members consume marijuana in religious ceremonies. Mem-

bers use marijuana to enhance spiritual awareness and facili-

tate direct experience of the divine. Mooney uses marijuana

daily, and other Oklevueha members use marijuana in

“sweat” ceremonies, which occur twice a month at various

private locations in Oahu and are only open to NAC mem-

bers.

In June 2009, federal law enforcement officers in Hawaii

seized from FedEx one pound of marijuana that was

addressed to Mooney and intended for Oklevueha use. The

marijuana was turned over to the Honolulu Police Department

and later destroyed. The seized marijuana was worth approxi-

mately $7,000. Plaintiffs do not allege that Mooney or any

Oklevueha member has been prosecuted or threatened with

prosecution in connection with the seizure or in relation to

any other procurement or use of marijuana.

Despite the nonexistence of any criminal charges, Plaintiffs

claim that they fear for their ability to continue to cultivate,

consume, possess, and distribute marijuana for religious pur-

poses without being branded criminals and made to face fines

and imprisonment. In support of this fear, they point to a DEA

1

In 1994, Congress extended the peyote exemption to all members of

every recognized Indian Tribe. See 42 U.S.C. § 1996a(b)(1).

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3803

raid in March 2010 on another Hawaii-based church that pur-

ports to use marijuana as a religious sacrament.

Plaintiffs assert seven claims: (1) violation of RFRA, 42

U.S.C. §§ 2000bb-2000bb-4; (2) violation of the American

Indian Religious Freedom Act, 42 U.S.C. § 1996; (3) viola-

tion of the right to equal protection under the Fifth and Four-

teenth Amendments; (4) violation of the First Amendment

right to freedom of religion; (5) theft and/or conversion of one

pound of marijuana; (6) declaratory judgment that the Gov-

ernment’s seizure of the marijuana was unlawful and that the

CSA may not be enforced against their possession, cultiva-

tion, provision, and distribution of marijuana for personal reli-

gious use; and (7) injunctive relief ordering the return of the

seized marijuana, or its monetary value, and prohibiting the

Government from arresting or prosecuting Oklevueha mem-

bers for marijuana use or seizing their marijuana.

The district court granted in part and denied in part the

Government’s first motion to dismiss Oklevueha’s First

Amended Complaint. It dismissed the claims for declaratory

and injunctive relief related to future use of marijuana (“the

preenforcement claims”) and the tort claims, but not the claim

for return of, or compensation for, the seized marijuana under

RFRA. The court dismissed the preenforcement claims on

ripeness grounds, concluding that Plaintiffs’ claims did not

satisfy the constitutional ripeness test for preenforcement

challenges and that even if they did, prudential considerations

also warranted dismissal. The court further held that Okle-

vueha lacked associational standing to assert the claims for

prospective relief. Plaintiffs’ claims for theft and conversion

of the marijuana were also dismissed because they are barred

by sovereign immunity. Then in a subsequent order, the dis-

trict court dismissed Plaintiffs’ remaining claims related to the

seizure of the marijuana. With respect to Plaintiffs’ request

for compensation, the court explained that it could not order

the Government to return something it does not have, and that

it could not award money damages because RFRA does not

3804 OKLEVUEHA NATIVE AMERICAN v. HOLDER

unambiguously waive sovereign immunity to authorize

money damages.

II. Discussionm

We review the district court’s grant of a motion to dismiss

de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.

2005). We accept all factual allegations in the complaint as

true and construe the pleadings in the light most favorable to

Plaintiffs. Id. However, conclusory allegations and unwar-

ranted inferences are insufficient to defeat a motion to dis-

miss. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th

Cir. 2011).

A. The Preenforcement Claims

Plaintiffs challenge the district court’s determination that

their claims for prospective relief are not ripe. The Constitu-

tion limits Article III federal courts’ jurisdiction to deciding

“cases” and “controversies.” U.S. Const. art. III, § 2. Ripeness

is one component of the Article III case or controversy

requirement. The “basic rationale” of the ripeness requirement

is “to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagree-

ments.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).

“The ripeness inquiry contains both a constitutional and a pru-

dential component.” Portman v. Cnty of Santa Clara, 995

F.2d 898, 902 (9th Cir. 1993). We consider each in turn.

1. Constitutional Ripeness

[1] The “Constitution mandates that prior to our exercise

of jurisdiction there exist a constitutional ‘case or contro-

versy,’ that the issues presented are ‘definite and concrete, not

hypothetical or abstract.’ ” Thomas v. Anchorage Equal

Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en

banc) (quoting Ry Mail Ass’n v. Corsi, 326 U.S. 88, 93

(1945)). However, arrest is not necessarily a prerequisite for

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3805

an individual to challenge the applicability of a criminal stat-

ute.

When the plaintiff has alleged an intention to engage

in a course of conduct arguably affected with a con-

stitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereun-

der, he should not be required to await and undergo

a criminal prosecution as the sole means of seeking

relief.

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

298 (1979) (internal quotation marks omitted).

[2] To bring such a “preenforcement claim,” we require

plaintiffs to allege a “genuine threat of imminent prosecu-

tion.” Thomas, 220 F.3d at 1139 (internal quotation marks

omitted). We consider: (1) whether the plaintiffs have articu-

lated a “concrete plan” to violate the law in question; (2)

whether the government has communicated a specific warn-

ing or threat to initiate proceedings; and (3) the history of past

prosecution or enforcement under the statute. Id.

In reviewing these factors, we find that they do not apply

easily to the unique circumstances of Plaintiffs’ claims. The

“genuine threat” analysis presumes that no enforcement has

previously occurred, and therefore ascertains the likelihood of

future enforcement. In contrast, the FedEx seizure was an

enforcement of the CSA against Plaintiffs, mitigating the rele-

vance of a hypothetical future-enforcement. Nonetheless,

because Plaintiffs’ claims are asserted for the first time in an

action for prospective relief (and not in a criminal proceed-

ing), we consider the familiar “preenforcement claim” ripe-

ness analysis, while acknowledging its strained applicability

to the unusual allegations before us.

The district court concluded that Plaintiffs failed to suffi-

ciently allege a “concrete plan” to violate the CSA because

3806 OKLEVUEHA NATIVE AMERICAN v. HOLDER

the complaint does not state exactly how, where, and in what

quantities Plaintiffs intend to consume marijuana, and does

not specify how they intend to cultivate or acquire, store, and

distribute marijuana. We disagree that the complaint must

contain these factual allegations and conclude that Plaintiffs

have sufficiently alleged a concrete plan.

[3] According to Plaintiffs, they have used marijuana in

violation of the CSA countless times, and plan to continue to

do so. We have explained that the “concrete plan” element of

the genuine threat inquiry is satisfied where plaintiffs had

“more than a ‘concrete plan’ ” to violate the laws at issue

because they “actually did violate them on a number of occa-

sions.” Sacks v. Office of Foreign Assets Control, 466 F.3d

764, 773 (9th Cir. 2006); see also Jacobus v. Alaska, 338 F.3d

1095, 1105 (9th Cir. 2003) (holding that challenge to validity

of campaign finance laws was ripe because “[p]laintiffs have

gone far beyond the requirement that they articulate a con-

crete plan to violate the law, and instead have actually

engaged in the illegal behavior at issue.”). Plaintiffs allege

that Mooney violates the CSA daily by consuming marijuana,

and that other members of Oklevueha violate the law at semi-

monthly sweats, in addition to any other usages. They further

allege that Mooney and Oklevueha members have no plan to

stop their consumption. Taking as true the facts alleged,

Plaintiffs are currently violating and plan to continue to vio-

late the CSA by purchasing and consuming marijuana.

Accordingly, Plaintiffs’ allegations satisfy the concrete plan

requirement.

The second component of a genuine threat is whether the

government has communicated a specific warning or threat to

initiate proceedings. The district court found that Plaintiffs

had not adequately alleged a specific threat of prosecution

because the complaint lacked allegations of any threat or

warning from federal authorities or that Plaintiffs intended to

continue to bring in marijuana in a way likely to be noticed

by federal drug authorities.

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3807

The district court is correct that Plaintiffs do not allege any

threat of prosecution related to Plaintiffs’ marijuana consump-

tion. Plaintiffs have never been arrested in connection with

their marijuana consumption, nor has there been another sei-

zure of their drugs in the more than two and a half years that

have elapsed since the 2009 FedEx seizure. Moreover, the

Government’s lawyer clarified at oral argument that the sei-

zure at issue was in a response to a call from FedEx regarding

Plaintiffs’ package, and was not the result of any active Gov-

ernment investigation. The Government’s lawyer further

explained that to his knowledge, neither Mooney nor Okle-

vueha is the target of any current investigation. Additionally,

the Government’s decision to destroy the marijuana seized in

2009 without further investigation may give some insight into

its enforcement priorities, which at this time apparently do not

include Plaintiffs.

[4] We conclude, however, that the district court’s focus

on future prosecution is inapposite. Plaintiffs need not allege

a threat of future prosecution because the statute has already

been enforced against them. When the Government seized

Plaintiffs’ marijuana pursuant to the CSA, a definite and con-

crete dispute regarding the lawfulness of that seizure came

into existence. See Ry Mail Ass’n, 326 U.S. at 93 (stating that

a justiciable case or controversy must present a definite and

concrete dispute). This case is unique in that unlike most

enforcements of criminal statutes, the seizure did not result in

a criminal proceeding that could have afforded Plaintiffs the

opportunity to assert their constitutional and statutory chal-

lenges to the enforcement of the CSA against them. But it

does not follow that because this enforcement and seizure of

property did not provide Plaintiffs a process in which to raise

their claims, those claims are not now ripe. We require a

“threat of prosecution” to ensure that the plaintiff challenging

a statute can “demonstrate a realistic danger of sustaining a

direct injury as a result of the statute’s operation or enforce-

ment.” Babbitt, 442 U.S. at 298. In this case, that injury has

3808 OKLEVUEHA NATIVE AMERICAN v. HOLDER

already occurred, thereby eliminating any concerns that Plain-

tiffs’ fear of enforcement is purely speculative.2

[5] For the same reason Plaintiffs need not demonstrate a

threat of future prosecution under these facts, we conclude

that Plaintiffs need not establish the third prong of the “genu-

ine threat of prosecution” inquiry, the history of enforcement

of the statute. In other words, we need not rely on enforce-

ment of the statute against other groups in determining

whether Plaintiffs are likely to suffer a similar fate in the

future, because the CSA has already been enforced against

Plaintiffs through the seizure of their marijuana. This is not

the kind of “abstract disagreement” that the ripeness doctrine

prevents courts from adjudicating. Plaintiffs’ “stake in the

legal issues is concrete rather than abstract.” Colwell v. Dep’t

of Health & Human Servs, 558 F.3d 1112, 1123 (9th Cir.

2009). A non-speculative case and controversy exists regard-

ing Plaintiffs’ entitlement to possess and consume marijuana

for religious reasons.

2. Prudential Ripeness

[6] “The ripeness doctrine is ‘drawn both from Article III

limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction.’ ” Nat’l Park Hospitality

Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (quoting

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18

(1993)). The question of prudential ripeness requires us to

first consider the fitness of the issues for judicial review, fol-

2

We are also cognizant of the possibility that further seizures from a pri-

vate shipping service could occur at any time, without ever resulting in a

criminal prosecution. The Government maintains it is not investigating

Plaintiffs, but a shipping company could again alert the Government of

what it deems to be a suspicious package, and the Government might

again dispose of its contents. We do not think Plaintiffs should be forced

to accept the possibility of continued seizure of marijuana to which they

believe they are constitutionally entitled because they cannot show a threat

of criminal prosecution.

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3809

lowed by the hardship to the parties of withholding court con-

sideration. Colwell, 558 F.3d at 1124. The district court held

that the case is not fit for judicial review because the com-

plaint contains no factual allegations describing how mari-

juana is consumed or acquired and, “for all the court knows,”

Plaintiffs might be planning to import thousands of pounds of

marijuana to sell to anyone claiming a religious need. We dis-

agree and conclude that Plaintiffs’ preenforcement claims are

fit for review.

[7] Courts have regularly declined on prudential grounds

to review challenges to recently promulgated laws or regula-

tions in favor of awaiting an actual application of the new

rule. See, e.g., Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.

158, 164 (1967) (“We believe that judicial appraisal of these

factors is likely to stand on a much surer footing in the con-

text of a specific application of this regulation than could be

the case in the framework of the generalized challenge made

here.”); Nat’l Park Hospitality Ass’n, 538 U.S. at 812

(“[J]udicial resolution of the question presented here should

await a concrete dispute about a particular concession con-

tract.”); Colwell, 558 F.3d at 1128 (“If and when the parties

are able to provide examples of the manner in which the HHS

has used the Policy Guidance . . . we will be in a better posi-

tion to determine whether the 2003 Policy Guidance functions

as a substantive rule or as a general statement of policy.”).

This is not such a case. In contrast to cases in which the courts

are left to hypothesize about how the law might be applied,

Plaintiffs’ claims arise from an enforcement action that has

already occurred. The seizure of Plaintiffs’ marijuana presents

a “concrete factual scenario that demonstrates how the laws,

as applied, infringe [Plaintiffs’] constitutional rights.”

Thomas, 220 F.3d at 1141.

We also disagree with the district court’s conclusion that to

present a case fit for review, Plaintiffs need to frame the scope

of the injunctive relief they seek through allegations about

Oklevueha’s members’ use, possession, cultivation, and dis-

3810 OKLEVUEHA NATIVE AMERICAN v. HOLDER

tribution of marijuana. Such specific pleadings are not

required to establish fitness for review, which requires only

the existence of a “concrete factual situation.” San Diego Cnty

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir.

1996). The scope of any injunctive relief to which Plaintiffs

might ultimately be entitled may be determined at a later

phase of the litigation. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992) (holding that justiciability must be sup-

ported “with the manner and degree of evidence required at

the successive stages of the litigation.”).

Likewise, we are unpersuaded by the Government’s asser-

tion that Plaintiffs’ request for prospective relief is unripe

because Plaintiffs did not request an exception to the CSA

from the DEA. See 21 C.F.R. § 1307.03 (“Any person may

apply for an exception to the application of any provision of

this chapter by filing a written request with the Office of

Diversion Control, Drug Enforcement Administration, stating

the reasons for such exception.”). The Government argues

that we should require Plaintiffs to exhaust this administrative

remedy, because doing so would allow the DEA to apply its

expertise to Plaintiffs’ claim, possibly moot the case if the

claim is granted, and help build a record for judicial review.

[8] We decline, however, to read an exhaustion require-

ment into RFRA where the statute contains no such condition,

see 42 U.S.C. §§ 2000bb-2000bb-4, and the Supreme Court

has not imposed one. Indeed, the Supreme Court has reviewed

a RFRA-based challenge to the CSA without requiring that

the plaintiffs first seek a religious use exemption from the

DEA. Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006). In so doing, it recognized that

RFRA “plainly contemplates that courts would recognize

exceptions [to the CSA] — that is how the law works.” Id. at

434.

[9] Because this is not an abstract disagreement but rather

involves the application of well-developed law (including the

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3811

First Amendment right to religious freedom, RFRA and the

CSA) to an existing case and controversy (the seizure of

Plaintiffs’ marijuana), we conclude Plaintiffs’ claims are fit

for review.

[10] As Plaintiffs’ claims are fit for review now, we do not

reach the second factor of the prudential ripeness inquiry —

hardship to the parties in delaying review. Hardship serves as

a counterbalance to any interest the judiciary has in delaying

consideration of a case. See Colwell, 558 F.3d at 1129

(“[T]his hardship is insufficient to overcome the uncertainty

of the legal issue presented in the case in its current pos-

ture.”); Municipality of Anchorage v. United States, 980 F.2d

1320, 1326 (9th Cir. 1992) (“[M]ere potential for future injury

does not overcome the interest of the judiciary in delaying

review.” (internal quotation marks omitted)). Because we can

identify no interest in delaying review of Plaintiffs’ claims,

the hardship that would be imposed by any delay is not rele-

vant. Accordingly, we find that Plaintiffs’ claims should not

be dismissed on prudential ripeness grounds.

3. Associational Standing

We turn next to the issue of associational standing. Okle-

vueha may bring suit on its members’ behalf when: “(a) its

members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor

the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Wash. State Apple Adver.

Comm’n, 432 U.S. 333, 343 (1977). The district court con-

cluded that Oklevueha does not have associational standing to

seek injunctive relief because the complaint does not allege

details regarding each member’s use of marijuana. We dis-

agree.

[11] First, the members of Oklevueha would have standing

to sue in their own right because, according to the complaint,

3812 OKLEVUEHA NATIVE AMERICAN v. HOLDER

they all use marijuana as a regular and integral part of their

religious practice. Therefore, the members are suffering “im-

mediate or threatened injury as a result of the challenged

action of the sort that would make out a justiciable case had

the members themselves brought suit.” Id. at 342. Second, the

suit seeks to protect Oklevueha’s members’ use of marijuana

in religious ceremonies, the administration of which Plaintiffs

allege is the “sole purpose” of Oklevueha. Finally, the pro-

spective relief that Plaintiffs seek does not require that indi-

vidual Oklevueha members participate in this action. “If in a

proper case the association seeks a declaration, injunction, or

some other form of prospective relief, it can reasonably be

supposed that the remedy, if granted, will inure to the benefit

of those members of the association actually injured.” Warth

v. Seldin, 422 U.S. 490, 515 (1975). The district court’s con-

cerns about the details of injunctive relief may be addressed

if the court ultimately awards Plaintiffs such a remedy. At this

stage, what matters is that Plaintiffs’ allegations are sufficient

to establish Oklevueha’s associational standing.

[12] Plaintiffs’ claims for prospective relief arising from

the Government’s seizure of marijuana meet the constitutional

requirements and prudential factors for ripeness, and Okle-

vueha has associational standing to assert the claims. The sei-

zure of Plaintiffs’ marijuana that has already occurred creates

a justiciable case and controversy about Plaintiffs’ constitu-

tional and statutory entitlement to use marijuana for religious

purposes. Adjudication of Plaintiffs’ claims does not require

that the court entangle itself in hypothetical scenarios or “ab-

stract disagreements.” Abbott Labs., 387 U.S. at 148. Accord-

ingly, we reverse the district court’s dismissal of Plaintiffs’

“preenforcement claims.” Nothing in this opinion addresses

the merits of the underlying claims. We remand the claims for

prospective relief to the district court to consider the merits in

the first instance.

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3813

B. Claims for Return or Compensation for the

Marijuana

Appellants seek return of, or compensation for, the seized

marijuana under RFRA.3 The district court denied this

request, correctly observing that the marijuana was destroyed

prior to Plaintiffs’ request for its return in their First Amended

Complaint, and the court cannot order the government to

return something it does not have. The issue then is whether

Plaintiffs may, pursuant to RFRA, obtain “compensation” for

the destroyed drugs — i.e. money damages. The district court

concluded that the government is immune from claims for

money damages because RFRA does not unambiguously

waive sovereign immunity to authorize money damages. We

agree and hold that RFRA does not waive the federal govern-

ment’s sovereign immunity from damages.

[13] RFRA waives immunity from some forms of relief.

Its judicial relief provision states: “A person whose religious

exercise has been burdened in violation of this section may

assert that violation as a claim or defense in a judicial pro-

ceeding and obtain appropriate relief against a government.”

42 U.S.C. § 2000bb-1(c). This provision, however, does not

define “relief,” so the issue is whether the waiver extends to

relief in the form of money damages. The United States may

not be sued without its consent, and we strictly construe waiv-

ers of sovereign immunity, which must be “unequivocally

expressed in the statutory text.” Dep’t of Army v. Blue Fox,

Inc., 525 U.S. 255, 261 (1999) (internal citations omitted). To

3

Plaintiffs also asserted tort claims for theft and conversion related to

the seizure of the marijuana. The district court dismissed the tort claims,

explaining that the Federal Tort Claims Act’s waiver of immunity

excludes claims related to the detention of property by law enforcement

officers. Appellants do not raise their torts claims before this Court, and

we therefore do not consider them. See Farmer v. McDaniel, 666 F.3d

1228, 1233 (9th Cir. 2012) (“[T]his court reviews only issues which are

argued specifically and distinctly in a party’s opening brief. . . .” (internal

quotation marks and alterations omitted)).

3814 OKLEVUEHA NATIVE AMERICAN v. HOLDER

show that the government is liable for awards of monetary

damages, “the waiver of sovereign immunity must extend

unambiguously to such monetary claims.” Lane v. Pena, 518

U.S. 187, 192 (1996).

[14] The D.C. Circuit is the only other circuit court to have

considered whether RFRA waives sovereign immunity for

monetary damages. In Webman v. Fed. Bureau of Prisons, it

held that RFRA does not authorize money damages. 441 F.3d

1022 (D.C. Cir. 2006). The Court explained that it is plausible

to read RFRA’s “appropriate relief” provision as covering

money damages or, alternatively, as applying only to “equita-

ble relief but not damages, given Congress’s awareness of the

importance of sovereign immunity and its silence in the stat-

ute on the subject of damages.” Id. at 1026. Because the relief

provision is susceptible to more than one interpretation, the

Court could not “find an unambiguous waiver in language this

open-ended and equivocal.” Id.

Further, the Supreme Court recently interpreted identical

“appropriate relief” language in the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc-2(a). In Sossamon v. Texas, the Supreme Court held

that by accepting federal funds, states do not consent to waive

their immunity to suits for monetary damages under RLUIPA.

131 S. Ct. 1651 (2011). It explained that RLUIPA’s express

private cause of action, which is identical to the judicial relief

provision in RFRA, “is not the unequivocal expression of

state consent that our precedents require.” Id. at 1658. The

Supreme Court explained that “appropriate relief” does not

clearly include money damages, but rather that the word “ap-

propriate” “is inherently context-dependent.” Id. at 1659 (cita-

tions omitted). The Court stated that “[t]he context here—

where the defendant is a sovereign—suggests, if anything,

that monetary damages are not ‘suitable’ or ‘proper.’ ” Id.

(citing Fed. Mar. Comm’n v. S.C., State Ports Auth., 535 U.S.

743, 765 (2002)).

OKLEVUEHA NATIVE AMERICAN v. HOLDER 3815

Although the Supreme Court in Sossamon considered

claims against a state, rather than federal actors,4 and was

therefore guided by the Eleventh Amendment, the Court’s

interpretation of “appropriate relief” is also applicable to

actions against federal defendants under RFRA. See Sossa-

mon, 131 S.Ct at 1658 n.4 (explaining the overlapping analy-

sis of state and federal sovereign immunity). Just like the

identical language in RLUIPA, RFRA’s authorization of “ap-

propriate relief” is not an “unequivocal expression” of the

waiver of sovereign immunity to monetary claims. Lane, 518

U.S. at 192. The provision could be read as authorizing only

injunctive relief, and therefore “does not so clearly and unam-

biguously waive sovereign immunity to private suits for dam-

ages that we can ‘be certain that the State in fact consents’ to

such a suit.” Sossamon, 131 S. Ct. at 1658-59 (quoting Coll.

Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 680 (1999)).

[15] Strictly construing the “appropriate relief” provision

in favor of the government, we conclude that RFRA does not

authorize suits for money damages. We therefore affirm the

district court’s dismissal of Plaintiffs’ claims for compensa-

tion for the seized marijuana.5

III. Conclusion

We AFFIRM IN PART and REVERSE IN PART the dis-

4

The Supreme Court held RFRA unconstitutional as applied to state and

local governments because it exceeds Congress’ power under § 5 of the

Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507 (1997). In

contrast, RLUIPA, which was enacted pursuant to Congress’ Spending

Clause and Commerce Clause authority, does apply to the states. Sossa-

mon, 131 S.Ct. at 1656 n.1 (declining to address whether the Commerce

Clause or Spending Clause authorize Congress to address the alleged reli-

gious burden at issue in the case).

5

We also agree with the district court that it cannot order the Govern-

ment to purchase substitute marijuana because doing so would be an end

run around the prohibition on money damages.

3816 OKLEVUEHA NATIVE AMERICAN v. HOLDER

trict court’s dismissal of Plaintiffs’ claims. We AFFIRM the

dismissal of the claims for return of, or compensation for, the

seized marijuana. We REVERSE the dismissal of Plaintiffs’

claims for declaratory and injunctive relief and REMAND for

further proceedings consistent with this opinion.

The parties shall bear their own costs of appeal.

AFFIRMED IN PART, REVERSED and REMANDED

IN PART.