Landor v. Louisiana Dept of Corr

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

___________ FILED

February 5, 2024

No. 22-30686 Lyle W. Cayce

___________ Clerk

Damon Landor,

Plaintiff—Appellant,

versus

Louisiana Department of Corrections and Public

Safety; James M. LeBlanc, in his official capacity as Secretary thereof,

and individually; Raymond Laborde Correctional Center;

Marcus Myers, in his official capacity as Warden thereof, and

individually; John Does 1-10; ABC Entities 1-10,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:21-CV-733

______________________________

ON PETITION FOR REHEARING EN BANC

Before Clement, Graves, and Higginson, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is

DENIED. The petition for rehearing en banc is DENIED because, at the

No. 22-30686

request of one of its members, the court was polled, and a majority did not

vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).

In the en banc poll, six judges voted in favor of rehearing (Smith,

Elrod, Willett, Ho, Duncan, and Oldham), and eleven voted

against rehearing (Richman, Jones, Stewart, Southwick,

Haynes, Graves, Higginson, Engelhardt, Wilson,

Douglas, and Ramirez).

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Edith Brown Clement, Circuit Judge, joined by Jones, Stewart,

Graves, Higginson, Engelhardt, Wilson, Douglas, and

Ramirez, Circuit Judges, concurring in the denial of rehearing en banc.

Officials at the Raymond Laborde Correctional Center knowingly

violated Damon Landor’s rights in a stark and egregious manner, literally

throwing in the trash our opinion holding that Louisiana’s policy of cutting

Rastafarians’ hair violated the Religious Land Use and Institutionalized

Persons Act before pinning Landor down and shaving his head. Landor

clearly suffered a grave legal wrong. The question is whether a damages

remedy is available to him under RLUIPA. That is a question only the

Supreme Court can answer.

***

In determining whether RLUIPA permits Landor to recover money

damages against state government officials in their individual capacities, the

panel was bound to follow Sossamon v. Lone Star State of Texas, which

answered that question in the negative. 560 F.3d 316, 328–29 (5th Cir. 2009)

(Sossamon I). The en banc court, of course, would have been free to overrule

that opinion.1 But overruling Sossamon I was only a necessary, not sufficient,

condition for affording Landor a cause of action.

1

Although doing so would have required us to determine that the Spending Clause

permits Congress to impose liability on the non-recipients of federal funds, not just the

recipients (i.e., the states) themselves when the Supreme Court—which often analyzes

Spending Clause legislation using a contract law analogy—has never stretched the analogy

that far. See Barnes v. Gorman, 536 U.S. 181, 187 (2002) (holding that a direct recipient of

federal funds may be held liable for intentional conduct that violates the clear terms of a

Spending Clause statute); Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219

(2022) (“[W]e employ the contract analogy only as a potential limitation on liability

compared to that which would exist under nonspending statutes.” (internal quotation

marks, citation, and emphasis omitted)).

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Had we overruled Sossamon I en banc, we would have then needed to

address the question that Sossamon I declined to answer—is RLUIPA’s

“appropriate relief” language sufficiently clear to put the state and/or its

employees on notice that the employees can personally be held liable for

monetary damages? There, we would have run into the Supreme Court’s

decision in Sossamon II, which held that, at least in the context of state

employees sued in their official capacities, RLUIPA did not clearly allow for

monetary damages. Sossamon v. Texas, 563 U.S. 277, 285–86 (2011). To be

sure, the Supreme Court has now made clear that, at least in the RFRA

context, “appropriate relief” includes monetary damages against federal

officials in their individual capacities. Tanzin v. Tanvir, 592 U.S. 43, 45

(2020). But threading the needle between Sossamon II and Tanzin is a task

best reserved for the court that wrote those opinions. Cf. Lefebure v.

D’Aquilla, 15 F.4th 650, 660 (5th Cir. 2021) (“[T]he only court that can

overturn a Supreme Court precedent is the Supreme Court itself.”).

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James C. Ho, Circuit Judge, joined by Elrod, Circuit Judge, dissenting

from denial of rehearing en banc:

Like the Religious Freedom Restoration Act, the Religious Land Use

and Institutionalized Persons Act of 2000 authorizes courts to grant

“appropriate relief against a government.” 42 U.S.C. § 2000cc–2(a). See

also 42 U.S.C. § 2000bb–1(c) (same).

Does “appropriate relief” mean that a person can sue under RLUIPA

for money damages against government officials? Before we can answer this

question, there are two Supreme Court precedents we must consider.

In Sossamon v. Texas, 563 U.S. 277 (2011), the Supreme Court held

that “appropriate relief” does not include actions for money damages under

RLUIPA—at least when it comes to suits against a State.

But the Court’s analysis made clear that that’s only because States

enjoy sovereign immunity.

As Sossamon explained, “RLUIPA’s authorization of ‘appropriate

relief against a government’ is not the unequivocal expression of state

consent that our precedents require. ‘Appropriate relief’ does not so clearly

and unambiguously waive sovereign immunity to private suits for damages

that we can be certain that the State in fact consents to such a suit.” Id. at

285–86 (cleaned up). “The requirement of a clear statement in the text of

the statute ensures that Congress has specifically considered state sovereign

immunity and has intentionally legislated on the matter. Without such a clear

statement from Congress and notice to the States, federal courts may not step

in and abrogate state sovereign immunity.” Id. at 290–91 (citation omitted).

Individuals, by contrast, do not enjoy sovereign immunity. So

Sossamon should have no bearing on suits against individual officers in their

individual capacities.

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Indeed, that’s precisely what the Court held in Tanzin v. Tanvir, 592

U.S. 43 (2020). In Tanzin, the Court concluded that “appropriate relief

against a government” includes actions for money damages under RFRA

against government officials in their individual capacities. See id. at 45 (“The

Religious Freedom Restoration Act of 1993 (RFRA) . . . gives a person whose

religious exercise has been unlawfully burdened the right to seek ‘appropriate

relief.’ The question here is whether ‘appropriate relief’ includes claims for

money damages against Government officials in their individual capacities.

We hold that it does.”); see also id. at 52 (“RFRA’s express remedies

provision permits litigants, when appropriate, to obtain money damages

against federal officials in their individual capacities.”).

In reaching this conclusion, the Court expressly distinguished

Sossamon. It held that Sossamon does not apply to suits against individuals,

because unlike States, individuals “do not enjoy sovereign immunity.” Id. at

52. As Tanzin explained, “Sossamon held that a State’s acceptance of federal

funding did not waive sovereign immunity to suits for damages under

[RLUIPA] which also permits ‘appropriate relief.’ The obvious difference is

that this case features a suit against individuals, who do not enjoy sovereign

immunity.” Id. at 51–52 (citation omitted, emphasis added).

Accordingly, I agree with Judge Oldham’s typically thoughtful dissent

that we should’ve reheard this case en banc.

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Andrew S. Oldham, Circuit Judge, joined by Smith, Elrod,

Willett, Ho*, and Duncan, Circuit Judges, dissenting from the denial

of rehearing en banc:

This case concerns remedies against state prison officials who

intentionally ignore federal protections for the free exercise of religion. In

Ware v. Louisiana Department of Corrections, 866 F.3d 263 (5th Cir. 2017), we

held the Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”) prevented Louisiana from forcing Rastafarians to cut their

dreadlocks. Damon Landor, a faithful Rastafarian, handed a copy of our Ware

decision to Louisiana state prison officials—who threw the opinion in the

trash and forcibly shaved Landor’s head. An injunction obviously would not

help the then-bald Landor. So he sued his abusers for money damages under

RLUIPA. Inexplicably, he lost. And doubly inexplicably, our en banc court

cannot be moved to rehear the case.

The panel held RLUIPA does not allow prisoners to sue state prison

officials in their individual capacities for money damages. With all due

respect to my esteemed and learned colleagues, that result cannot be squared

with Tanzin v. Tanvir, 592 U.S. 43 (2020). Tanzin held that individuals can

sue for money damages under the Religious Freedom Restoration Act of 1993

(“RFRA”). The operative provisions of RFRA and RLUIPA are in haec

verba, and both the Supreme Court and ours routinely interpret the statutes

in parallel. Today, unfortunately for Landor, our court pits the statutes

against one another. I respectfully dissent.

I.

Damon Landor is a faithful Rastafarian. In adherence to his religious

beliefs, he abides by the Nazarite Vow (the biblical oath also taken by Samson

*

Judge Ho concurs only in Parts I and II of this opinion.

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No. 22-30686

in the book of Judges). A man who takes the Nazarite Vow must abstain from

wine and other alcohol. See Numbers 6:2–4. He must also not cut his hair. See

Numbers 6:5. Landor did not cut his hair for almost two decades. At its

longest, Landor’s locks fell nearly to his knees.

Beginning in August 2020, Landor was incarcerated for five months

in three different Louisiana state prisons. State officials at the first two

prisons accommodated Landor’s religious beliefs, allowing him to wear a

rastacap over his long hair.

But on December 28, 2020, three weeks before his ultimate release

from prison, Landor was transferred to Raymond Laborde Correctional

Center (“RLCC”). Landor informed the intake guard that he was a

practicing Rastafarian and presented the guard with various legal materials

regarding his religious accommodations. Of note, Landor included in his

materials a copy of our RLUIPA decision in Ware.

The intake guard threw Landor’s materials, including the Ware

decision, in the trash. The guard then summoned the RLCC warden, who

asked Landor if he had documentation about his religious beliefs from his

sentencing judge. Landor lacked that specific documentation but offered to

contact his lawyer to obtain those materials. In response, the warden glibly

quipped that it was “[t]oo late for that.” The warden instructed prison

guards to escort Landor to another room, where Landor was forcibly

handcuffed to a chair. As two guards held Landor down, another individual

shaved his head to the scalp.

Upon release from prison, Landor sued several defendants, including

the Louisiana Department of Public Safety and Corrections, the

Department’s Secretary, RLCC, and the RLCC warden. As relevant to this

appeal, Landor brought claims under RLUIPA for money damages against

several Louisiana state officials in their individual capacities. The district

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court rejected his RLUIPA claims for money damages at the motion to

dismiss stage, Landor v. La. Dep’t of Corrs. & Pub. Safety, 2022 WL 4593085,

at *2 (M.D. La. Sept. 29, 2022), and a panel of this court affirmed that

decision, Landor v. La. Dep’t of Corrs. & Pub. Safety, 82 F.4th 337 (5th Cir.

2023).

II.

No one can reasonably debate that the prison officials violated

Landor’s rights under RLUIPA. We so held in Ware, and no one has

suggested we should revisit that decision. The only divide is over the scope

of remedies. In my view, (A) RLUIPA provides a cause of action for money

damages against state officials in their individual capacities. And (B) the

panel’s contrary arguments are unpersuasive.

A.

RLUIPA authorizes a person to “assert a violation of this chapter as

a claim . . . in a judicial proceeding and obtain appropriate relief against a

government.” 42 U.S.C. § 2000cc-2(a). A “violation of this chapter” refers

to RLUIPA’s prohibition against the government’s imposition of a

substantial burden on “the religious exercise of a person residing in or

confined to an institution,” unless the government demonstrates that the

burden is the least restrictive means of furthering a compelling state interest.

See ibid.; see also id. § 1997(1) (defining institution to include jails, prisons,

pretrial detention facilities, and government nursing homes). RLUIPA itself

defines the term “government” to include state officials. See id. § 2000cc-

5(4)(A)(ii).

As for obtaining “appropriate relief against a government,” the

Supreme Court recently clarified the meaning of that phrase. In Tanzin, the

Court interpreted the exact same phrase as it appears in RFRA. See 42 U.S.C.

§ 2000bb-1(c). The Tanzin Court held 8–0 that “appropriate relief against a

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government” includes damages actions against government officials in their

individual capacities. 592 U.S. at 52.

The Supreme Court’s interpretation of RFRA in Tanzin should be

dispositive of our interpretation of RLUIPA in this case. Over and over

again, the Court has called RLUIPA and RFRA “sister” or “twin”

statutes. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 730 (2014)

(“sister”); Holt v. Hobbs, 574 U.S. 352, 356 (2015) (“sister”); Ramirez v.

Collier, 595 U.S. 411, 424 (2022) (“sister”); see also Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020)

(Alito, J., joined by Gorsuch, J., concurring) (“twin”). And the Court has

repeatedly interpreted one statute by looking to its precedent interpreting the

other. See Hobby Lobby, 573 U.S. at 718, 730 (looking to RLUIPA to interpret

RFRA); Holt, 574 U.S. at 362–63, 364 (looking to RFRA precedents to

interpret RLUIPA); Ramirez, 595 U.S. at 425, 427 (looking to RFRA

precedents to interpret RLUIPA); see also Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006) (looking to

RLUIPA’s application to predict RFRA’s); Sossamon v. Texas (“Sossamon

I I ”), 563 U.S. 277, 286 n.5, 289 n.6 (2011) (weighing the lower courts’

interpretation of a parallel RFRA phrase to assess notice of monetary liability

in an RLUIPA case).

In short, not only is the relevant text in RLUIPA identical to that in

RFRA, but Supreme Court precedent also commands us to interpret the two

statutes in tandem. Given Tanzin, RLUIPA (like RFRA) authorizes

damages suits against state officials.

B.

Against this straightforward application of Supreme Court precedent,

the panel offered three counterarguments: (1) RLUIPA and RFRA are

different statutes with different constitutional justifications;

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(2) constitutional avoidance; and (3) precedent from our sister circuits. All

three are unpersuasive.

1.

First, the panel distinguished Tanzin by pointing to the different

constitutional justifications for RLUIPA and RFRA. See Landor, 82 F.4th

at 342–43 (“[A]fter all, [Sossamon v. Lone Star State of Texas (“Sossamon I ”),

560 F.3d 316 (5th Cir. 2009),] and Tanzin involve different laws.”). RFRA

applies to the federal government pursuant to Congress’s various

enumerated powers,1 whereas RLUIPA applies to the States under

Congress’s Spending and Commerce powers. The panel then focused on the

Spending Clause. “Spending Clause legislation ‘operates like a contract,’ so

‘only the grant recipient—the state—may be liable for its violation.’”

Landor, 82 F.4th at 341 (quoting Sossamon I, 560 F.3d at 328). Thus, the panel

held, RLUIPA cannot be used to hold non-grant-recipient state officials

personally liable for free-exercise violations.

This is incorrect for two reasons. First, it is true that Spending Clause

legislation is in a sense contractual: Congress agrees to pay if the recipient

performs. But it is not true that the Spending Clause prohibits regulating

1

The Supreme Court has never been clear about the justification for RFRA as

applied to the federal government. But Michael Stokes Paulsen provides this explanation:

Congress possesses the same power to pass RFRA, as RFRA concerns

federal statutes, as it had to pass those other federal statutes in the first

place. If Congress had power to pass a statute to begin with, Congress has

power to modify it by enacting RFRA . . . . RFRA operates as a sweeping

“super-statute,” cutting across all other federal statutes (now and future,

unless specifically exempted) and modifying their reach. RFRA qualifies

Congress’ regulations of commerce, of defense, of the post office, of

immigration, of bankruptcy, of federal lands, and so on.

Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56

Mont. L. Rev. 249, 253 (1995) (internal citations omitted).

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anyone beyond the recipient. That is presumably why the panel recognized

that Congress can regulate “individuals who aren’t party to the contract.”

Landor, 82 F.4th at 344 (citing Sabri v. United States, 541 U.S. 600, 608

(2004)). Otherwise, how could Congress have required the States receiving

federal highway funds to pass criminal laws regulating the behavior of

underage individuals? See South Dakota v. Dole, 483 U.S. 203 (1987). South

Dakotan 19-year-olds weren’t parties to the Spending Clause contract in

Dole. See 23 U.S.C. § 158 (1982 ed., Supp. III). If South Dakota can agree to

criminalize the behavior of its 19-year-old bourbon enthusiasts, it’s unclear

why Louisiana cannot agree to make its prison officials liable for forcibly

shaving Damon Landor’s head.2

Second, as best outlined in Dole, Congress’s spending power is subject

to four general restrictions: Spending Clause legislation must (1) be in pursuit

of the general welfare, (2) impose unambiguous conditions on the grant of

federal money, which (3) are related to the federal interest in particular

national projects or programs, and (4) do not violate other provisions of the

Constitution. See Dole, 483 U.S. at 207–08. RLUIPA’s provision for

individual official liability complies with these restrictions.

Courts generally defer to Congress on whether (1) a “particular

expenditure is intended to serve general public purposes.” Id. at 207 (citation

omitted). RLUIPA was broadly intended to protect prisoners’ religious

exercise rights. See Cutter v. Wilkinson, 544 U.S. 709, 716–17 (2005). And it

cannot be seriously disputed that making individual officials liable for

2

Nor would this provision of RLUIPA be unique in submitting such individuals

to liability. For example, the Emergency Medical Treatment and Active Labor Act of 1986

regulates activities in hospitals that accept federal funds. Doctors in those hospitals who

violate certain provisions related to patient treatment are subject to a civil penalty of not

more than $50,000, even though they did not agree to the Spending Clause “contract.”

See 42 U.S.C. § 1395dd(d)(1)(B).

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violating religious exercise rights serves the same general public purpose.

With respect to (2) unambiguous conditions, the States had “clear notice”

of this Spending Clause condition. Cf. Arlington Cent. Sch. Dist. Bd. of Educ.

v. Murphy, 548 U.S. 291, 295–96 (2006). Note that this is not a case where

the “statutes at issue are silent to available remedies.” Cf. Cummings v.

Premier Rehab Keller, PLLC, 596 U.S. 212, 220 (2022). The remedies are

discussed in RLUIPA’s text, which (again) is materially identical to

RFRA’s. As applied to suits against individual officials and as understood by

an ordinary person at the time of RFRA’s enactment, the remedy of

“appropriate relief” plainly encompassed money damages, as the Supreme

Court unanimously held. See Tanzin, 592 U.S. at 50–52. The condition of

personal liability is (3) reasonably related to the purpose of the expenditure.

Cf. New York v. United States, 505 U.S. 144, 172 (1992). If RLUIPA aims to

protect free exercise in prison, then monetary liability for state officials

should deter government misconduct and protect religious exercise.3 Finally,

RLUIPA’s provision for state official liability does not (4) violate other

provisions of the Constitution. The provision is not unduly coercive, nor is it

the kind of “economic dragooning that leaves the States with no real option

but to acquiesce.” See NFIB v. Sebelius, 567 U.S. 519, 582 (2012). Thus, as a

condition on Spending Clause legislation, this provision of RLUIPA is

constitutional.

3

As multiple amici discuss, money damages are often necessary to vindicate rights

under RLUIPA. Money damages “raise the price of unlawful conduct and make it less

attractive to potential wrongdoers,” see Brief of Amici Curiae 19 Religious Organizations

in Support of Appellant’s Petition for Rehearing En Banc at 6, and are particularly

important where prisons can moot claims for injunctive or declaratory relief through release

or transfer. See Brief of Amici Curiae Bruderhof, Clear, the Jewish Coalition for Religious

Liberty, and the Sikh Coalition in Support of Appellant’s Petition for Rehearing En Banc

at 4–6.

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The import of Tanzin in this case is undeniable. And RLUIPA’s

authorization under the Spending Clause does nothing to change that.

2.

But what about constitutional avoidance? In Sossamon I, the panel

chose a narrow reading of RLUIPA’s remedial provision to “avoid the

constitutional concerns that an alternative reading would entail.” 560 F.3d at

329.

Whatever its merits back in 2009, that choice is now foreclosed.

Tanzin unanimously held that “appropriate relief against a government”

includes money damages against individual officials. See 592 U.S. at 50–52.

This interpretation of RFRA was supported by the text, see id. at 48–49, the

historical context, see id. at 49–50, and policy reasons, see id. at 51. Tanzin

thus compels us to reject the argument that the relevant portion of RLUIPA

(a “sister” or “twin” statute to RFRA) is ambiguous. And while

constitutional avoidance is a powerful substantive canon, see, e.g., Bond v.

United States, 572 U.S. 844 (2014), it cannot be invoked where there is no

ambiguity. This is especially true where, as shown above, there are no

constitutional concerns with the correct reading of RLUIPA.

3.

But what about the reasoning of our sister circuits? The panel noted

that the approach in Sossamon I was consistent with other circuits’ decisions.

See Landor, 82 F.4th at 343 n.5 (listing authorities). But again, I am not sure

that works after Tanzin.

Few of these decisions applied the Dole four-part framework, relying

instead on constitutional avoidance (off the table after Tanzin), see, e.g.,

Washington v. Gonyea, 731 F.3d 143, 146 (2d Cir. 2013); Nelson v. Miller, 570

F.3d 868, 889 (7th Cir. 2009), or holding (incorrectly) that Congress cannot

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use the Spending Power to regulate individuals who were not party to the

imagined contract, see, e.g., Wood v. Yordy, 753 F.3d 899, 903–04 (9th Cir.

2014); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012). The circuits

that actually analyzed this RLUIPA provision under Dole held that there was

insufficiently clear notice of the condition. See Haight v. Thompson, 763 F.3d

554, 568–70 (6th Cir. 2014); Rendelman v. Rouse, 569 F.3d 182, 188–89 (4th

Cir. 2009). But those decisions came before Tanzin, which obviates any

argument about clear notice and the phrase “appropriate relief against a

government.” All of this is to say that no circuit has squarely considered the

impact of Tanzin within a comprehensive analysis of the Spending Clause

and Dole.

* * *

Last term, the Supreme Court decided a case about § 1983 and

Spending Clause legislation. See Health & Hosp. Corp. of Marion Cnty. v.

Talevski, 599 U.S. 166 (2023). The petitioners urged the Court to adopt a

kind of Spending Clause exceptionalism and to carve out statutes passed

under that Clause for disfavored treatment under § 1983. See id. at 177–78.

The Court rejected that argument, see id. at 178–80, choosing instead to

follow the traditional principles announced in Gonzaga v. Doe, 536 U.S. 273

(2002). See Talevski, 599 U.S. at 180–92.

Here too, the panel and the state officers advocate a kind of Spending

Clause exceptionalism. No matter that Tanzin interpreted the exact same

phrase in RFRA, the reasoning goes, because RLUIPA is a Spending Clause

statute, and Spending Clause statutes are somehow second-class laws.

Moreover, the thinking appears to be, we need not do the work required by

Dole because our sister circuits haven’t. And because if we’re wrong, the

Supreme Court can tell us.

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It is certainly true that the Supreme Court could fix the mistake we

made today. But the Court could also fix every mistake we attempt to fix

under Federal Rule of Appellate Procedure 35. We have the en banc process

to fix errors like the one we made in Sossamon I. I regret we chose not to do

so.

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