# Petition for Writ of Certiorari — Sisney v. Reisch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 969

## Text

Supreme ( us.

09-821 JAN 8- 2010
No. _
OFFICE OF THE CLERK

In the
Supreme Court of the United States

CHARLES E. SISNEY, Petitioner,
v.

TIM REISCH, ET AL., Respondents,
AND

UNITED STATES OF AMERICA, Intervenor.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

PETITION FoR A WRIT OF CERTIORARI

Richard L. Johnson Kathryn M. Davis
300 North Dakota Avenue Counsel of Record
Suite 406 Peter R. Afrasiabi
Sioux Falls, SD 57104 c/o CHAPMAN UNIVERSITY
Telephone: (605) 338-2626 SCHOOL OF LAW
APPELLATE LITIGATION CLINIC
One University Drive
Orange, CA 92866
Telephone: (714) 628-2504

i
QUESTIONS PRESENTED

Section 3 of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §
2000cc-1, prohibits state governments from imposing
substantial burdens on prisoners’ rights of free
religious exercise, even if such burdens result from a
rule of general applicability. Section 3 of RLUIPA was
enacted pursuant to the Spending Clause, U.S. CONST.
art. I, § 8, cl. 1, and RLUIPA creates an express
private cause of action to “obtain appropriate relief
against a government.” 42 U.S.C. § 2000cc-2. In
imposing that condition, Congress expressly defined
the term “government” to include the states, state
agencies and instrumentalities and state officials. 42
U.S.C. § 2000cc-5(4)(A)(i),Gi). The Fourth, Fifth,
Eighth and Eleventh Circuits have concluded that by
accepting federal correctional funds, states consent to
federal court jurisdiction for at least some form of
relief. The difficult and divisive question is whether
RLUIPA’s express cause of action for appropriate
relief effectuates a waiver of the states’ Eleventh
Amendment immunity against suits for monetary
damages arising under Section 3.

The Civil Rights Remedies Equalization Act
(CRREA), 42 U.S.C. § 2000d-7, expressly provides that
states shall not be immune under the Eleventh
Amendment from suits in federal court for violations of
four enumerated antidiscrimination statutes, as well as
the “provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial
assistance.” 42 U.S.C. § 2000d-7(a)(1). This Court has
observed that CRREA, which expressly provides for

remedies both at law and in equity, 42 U.S.C. § 2000d-
7(aX(2), is an unambiguous waiver of the states’ Eleventh
Amendment immunity.

The questions presented are:

1. Whether RLUIPA’s express cause of
action coupled with CRREA’s explicit waiver language
is sufficient to permit monetary awards against states.
Put differently, do RLUIPA and CRREA furnish clear
notice that states accepting federal funds could be
subjected to private damages or, instead, as the Kighth
Circuit held, is Congress constitutionally required to
expressly and unequivocally impose liability for
damages in the text of its Spending Clause legislation?

2. Whether CRREA’s unambiguous waiver
of Eleventh Amendment immunity extends to
government-imposed substantial burdens on religious
exercise pursuant to Section 3 of RLUIPA or, instead,
as the Eighth Circuit held, is CRREA limited to
provisions that expressly and unequivocally reference
the term “discrimination” in the statutory text?

3. Whether this Court’s requirement that a
waiver of federal sovereign immunity expressly and
unambiguously extend to include monetary damages
applies with equal force to determine whether a state
federal funding recipient has knowingly and voluntarily
waived its Eleventh Amendment immunity in the face
of settled law and clearly expressed conditions?

4. Whether the Eleventh Amendment
requires Congress to expressly specify each and every
form of discrimination in Spending Clause legislation in
order to effectuate a waiver pursuant to CRREA?

111

LIST OF PARTIES

Petitioner is Charles E. Sisney, an inmate at the
South Dakota State Penitentiary.

Respondents, in their individual and officia!
capacities, are Tim Reisch, Secretary of Corrections for
South Dakota; Douglas L. Weber, Chief Warden for the
Department of Corrections of South Dakota; Dennis
Block, Associate Warden for the South Dakota State
Penitentiary; Jennifer Wagner a/k/a Jennifer Lane,
Cultural Activities Coordinator for the South Dakota
State Penitentiary; and, Daryl Slykhuis, Interim
Warden for the South Dakota State Penitentiary.

Intervenor is the United States of America.

James Dean Van Wyhe, an appellee in the

circuit court proceedings, is not a petitioner here.

OPINIONS BELOW
JURISDICTION

1V

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..........::cccsseesesseees

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STATEMENT OF THE CASE,Q.u0.w.... cece ceceeeeesseeeeeee

REASONS FOR GRANTING THE WRIT

a

Il.

ITT.

CONCLUSION

THERE IS A DIRECT AND
IRRECONCILABLE CONFLICT
AMONG THE CIRCUITS ON
WHETHER RLUIPA
CONSTITUTIONALLY

EFFECTUATES A WAIVER OF
ELEVENTH AMENDMENT
IMMUNITY FROM MONETARY

IIE sriiscisssesuindinsvnctensienninaneiapaibiasninslbetebinin

THE EIGHTH CIRCUIT'S DECISION
CONTRAVENES BARNES AND
FRANKLIN, AND OTHER

DECISIONS OF THIS COURT....................

THE EIGHTH CIRCUIT
CONTRAVENES THIS COURT'S
DECISIONS GOVERNING FREE
EXERCISE AND DISCRIMINATION,
AND OTHER CIRCUIT COURT

SII sais cnteshininviscniinsssindsisbamansadstnaniniiaanes

SPSS SHCH SHES SESSEHSEH ESET SHE SET AeESEEEHEEeeeeeeeeaees

adie 21

V

PETITIONER’S APPENDIX

COURT OF APPEALS’ OPINION...... Pet. App. la
DISTRICT COURT'S OPINION...... ..Pet. App. 41a

V1
TABLE OF AUTHORITIES
Page(s)
CASES

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

is eseseusnebisbonninniel 30
Atascadero State Hosp. v. Scanlon,

| TER eee 29
Barbour v. Washington Metro. Area Transit Auth.,

Be AL, UII, BIE Pacocssissscesnsscssesssecsecoszccssces 33
Barnes v. Gorman,

I inane aradeenicenanansanenninin passim
Benning v. Georgia,

391 F.3d 1299 (11th Cir, 2004)............eceeseesees 22, 25, 38
Cardinal v. Metrish,

564 F.3d 794 (6th Cir. 2009)..........cccscsscessceseeseceeees 21, 26
Charles v. Verhagen,

BES Fe SOE CIE Cir, BOOB) .....ccrrcrrcescccscecccscccsceneee 13, 38

Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah,

LS EE
City of Boerne v. Flores,

RE WIT IED s,s csncnschansestndcinkenohsecsacnonensonsosvnnsndily OO
Cruz v. Beto,

LS. eT
Cutter v. Wilkinson,

BE Fe en Car, DDB) vccscnccesccesecseerssescosecsscovesveseees 38

Cutter v. Wilkinson,
i IID cissscsnninrerssrsconncscenssnscessesesasiinece passim

Vil
TABLE OF AUTHORITIES (continued)

Page(s)

Davis v, Monree County Ba. of Educ.,
Ey Tae SU ITI sisi ccseieistieeseinetesinatesisininnceninndadeniaineaten 32, 39

Employment Div., Dep’t of Human Resources of Or. v.
Smith,

rE TINIE, ET ATID cicoecnumscchesisniinipbedtnennucsedeikesurassennanasae
Franklin v. Gwinnett County Pub. Sch.,

ets tte aD sccosatinsinissisniiianithentatabeseiiansaeinenntons passim
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,

344 F.3d 1288 (11th Cir. 2008).................ccsccsscscsescseeeees 25
Gomez-Perez v. Potter,

ces eas ME ls ie NE GPE wcinensscccnsciscossccsssaccncsons 38
Griggs v. Duke Power Co.,

fT an eee ne RRC 38
Jackson v. Birmingham Bd. of. Educ.,

I i ac len esc abialeonnuaes 38
Koger v. Bryan,

Be Fe PL PERE GU, IOI seccinscnnsccsencicsosessosetesanccecsones 37
Lane v. Pena,

laa passim
Lovelace v. Lee,

Oe re Fe ee Gai SUED cecenevecsenscnnecscocesonsoonnnctanenies 37
Madison v. Virginia,

AT4 FB 118 (GEN Cir. BOOG),..ccccccccccccscccccccccccccccceee passim

Mayfield v. Texas Dep't of Crim. Just.,
529 F.3d 599 (5th Cir. 2008) .............. ART OS 37

Vill

TABLE OF AUTHORITIES (continued)

Page(s)

Mayweathers v. Newland,

314 F.2d 1062 (9th Cit. 2002) ..........c.cccssssscsssssseseees 13, 38
Pennhurst State Sch. & Hosp. v. Halderman,

acetal sesseeDDy BL, BB, BD
Ricci v. DeStefano,

eg Ey is Be COD wecececscececcecenencsensscnesense 36
Shea v. County of Rockland,

Be OE I IIIT P sccsncessnctsneccocnesnscssnaseossonecseesons 23
Sherbert v. Verner,

ns scaenpeseunnsnnenl 36
Smith v. Allen,

502 F.8d 1255 (11th Cir. 2007) .........scccccssrsserscsees passim
Sossamon v. Texas,

560 F.3d 316 (5th Cir. 2009)..................c-cscsseeeeee 21, 25, 26
Sullivan v. Little Hunting Park, Inc.,
Truth v. Kent Sch. Dist.,

542 F.3d 684 (Sth Cir. 2008) ........cccccsscoscrssccesscsceseccseees 37
Turner v. Safley,

I ic cetsstiictabane 34, 37
United States v. Nordic Village,

ian onacanesiesannbaneniennesian 22, 26
Warsoldier v. Woodford,

SES Fe See CG CAL. BO0D) crccccccccccccovceccssoncccesvosoresesces 37

Webman v. Fed. Bureau of Prisons,
Be re ee eG i icneriecsesinssencsscscsesscesccnsnsees 23

1X

TABLE OF AUTHORITIES (continued)

Page(s)
STATUTES
BO USEC, © BG scecaee i ieittastesroarsnesocecccercecccccce 24
OU Ta, FR ei cccccsccncccccecevccccccece l
4S UG, © aaa tassccesecseccscrccccececccces 35
GB UG, Feat taictserrtcsevesecceceeccosecccceet
4B U AL, Fe tiitttatttesesascecsececeecocccecceees 35
4B UB. © ee ee eitantteinceseceessvececccecencee 35
UR saekananule
43 UBL, © Bes ae eaicternrccncscoveccsocecccccececeee 2
4 U BA, 5 i eateetettacccassoceseerecececccces passim
4B UA, © ita teattatnsacsecesseeecovsecevccocccccens 6
42 UBC. © Bee acerieteratetaneastnsnsansscccscoccocccsoese 3, 6, 7, 23
4B U BAL, 5 ee ti itattestensnceceessecrec0000-8, 6, 7
4B UAL, Fe ee aiatateatsnrseevsonseeerceee passim
CONSTITUTIONAL PROVISIONS
U.S. COORG. Ge nn... ccccccccccsoncees l

U.S. CONST. art. I, § &, Gl. 1. ccccccccsesccevescovsccsescvsccsscsessceese, 6

l
OPINIONS BELOW

The court of appeals’ opinion is reported at 581
F.3d 689. Pet. App. la. The district court’s opinion is
reported at 533 F. Supp. 2d 952. Pet. App. 4ia.

JURISDICTION

The court of appeals’ judgment was entered on
September 10, 2009. On December 1, 2009, Justice
Samuel A. Alito extended the time to file the petition
for writ of certiorari until January 8, 2010. This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

@ Constitutional Provisions

The Eleventh Amendment to the United States
Constitution provides:

The Judicial power of the United States
shall not be construed to extend to any
suit in law or equity, commenced or
prosecuted against one of the United
States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI.

The Spending Clause in Article I of the United
States Constitution provides, in part: “The Congress
shall have the Power To .. . provide for the common
Defence and general Welfare of the United States.”
U.S. Const. art. I, § 8, cl. 1.

2

II. Statutory Provisions

Section 3 of the Religious Land Use and
Institutionalized Person Act (RLUIPA), 42 U.S.C. §
2000cc-1, titled “Protection of religious exercise of
institutionalized persons” provides:

(a) General rule

No government shall impose a substantial
burden on the religious exercise of a
person residing in or confined to an
institution, as defined in section 1997 of
this title, even if the burden results from
a rule of general applicability, unless the
government demonstrates that.
imposition of the burden on that person—

(1) is in furtherance of a compelling
governmental interest; and

(2) is the least restrictive means of
furthering that compelling
governmental interest.

(b) Scope of application

This section applies in any case in

which—
(1) the substantial burden is
imposed in a program or activity
that receives Federal financial
assistance. . . .

‘ee * *

3

Section 4 of RLUIPA, 42 U.S.C. § 2000cc-2,
titled “Judicial relief’ provides, in part:

(a) Cause of action

A person may assert a violation of this
chapter as a claim or defense in a judicial
proceeding and obtain appropriate relief
against a government. Standing to assert

a claim or defense under this section shall

be governed by the general rules of

standing under article III of the
Constitution.

**e ee &

Section 8 of RLUIPA, 42 U.S.C. § 2000cc-5,
titled “Definitions” provides, in part:

(4) Government
The term “government”
(A) means—

(i) a State, county,
municipality, or other

governmental! entity
created under the authority
of a State;

(ii) any branch, department,
agency, instrumentality, or
official of an entity listed in
clause (i); and

(iii) any other person acting
under color of State law. ...

x“ ee

4

The Civil Rights Remedies Equalization Act
(CRREA), 42 U.S.C. § 2000d-7, provides, in part:
(a) General provision

(1) A State shall not be immune
under the Eleventh Amendment of
the Constitution of the United
States from suit in Federal court
for a violation of section 504 of the
Rehabilitation Act of 19738 [29
U.S.C.A. § 794], title IX of the
Education Amendments of 1972
[20 U.S.C.A. §§ 1681 et seq.], the
Age Discrimination Act of 1975 [42
U.S.C.A. §§ 6101 et seq.], title VI
of the Civil Rights Act of 1964 [42
U.S.C.A. §§ 2000d et seq.], or the
provisions of any other Federal
statute prohibiting discrimination
by recipients of Federal financial
assistance.

(2) In a suit against a State for a
violation of a statute referred to in
paragraph (1), remedies (including
remedies both at law and in
equity) are available for such a
violation to the same extent as
such remedies are available for
such a violation in the suit against
any public or private entity other
than a State.

see 6

5
STATEMENT OF THE CASE

Factual Background

Enacted in September 2000 for the express
purpose of protecting religious liberty, the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, represents
“the latest of long-running congressional efforts to
accord religious exercise heightened protection from
government-imposed burdens.” Cutter v. Wilkinson,
544 U.S. 709, 714 (2005). By its terms, RLUIPA
broadly protects fundamental rights of free religious
exercise to the greatest extent the Constitution allows,
and categorically prohibits the imposition of
government-imposed substantial burdens on religious
liberty. 42 U.S.C. § 2000cc-3(g), § 2000cc-1(a)(1)-(2).
The only exception to RLUIPA’s expansive protective
reach is when the government demonstrates that the
burden it has imposed furthers a_ compelling
governmental interest, and does so by the least
restrictive means. 42 U.S.C. § 2000cc-1(a)(1)-(2).

Section 3 of RLUIPA protects fundamental
rights of religious exercise of institutionalized persons:
“No government shall impose a substantial burden on
the religious exercise of a person residing in or
confined to an institution, ... even if the burden results
from a rule of general applicability,” unless the
government proves that the burden furthers a
“compelling governmental interest” and does so by the
least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).

By its terms, Section 3 of RLUIPA applies with
equal force to prohibit substantially burdensome

6

discrimination and disparate treatment, as well as
government-imposed substantial burdens resulting
from rules of general applicability. Jd. Substantial
burdens on the religious exercise of institutionalized
persons must therefore withstand the most rigorous of
scrutiny, even if they result from facially neutral rules.

As this Court has recognized, Section 3 governs
state-run institutions “in which the government exerts
a degree of control unparalleled in civilian society and
severely disabling to private religious exercise.”
Cutter, 544 U.S. at 720-21; 146 Cong. Rec. S7774, S7775
(“Institutionalized residents’ right to practice their
faith is at the mercy of those running the institution.”)
RLUIPA thus “alleviates exceptional government-
created burdens on private religious exercise” and
protects persons who, “unable freely to attend to their
religious needs” are “dependent on the government’s
permission and accommodation for exercise of their
religion.” Cutter, 544 U.S. at 720-21.

Enacted pursuant to the Spending Clause, U.S.
Const. art. I, § 8, cl. 1, and in response to this Court’s
decision in City of Boerne v. Flores, 521 U.S. 507, 532-
36 (1997), Section 3 prohibits the imposition of a
substantial burden on religious exercise by the
government “in a program or activity that receives
Federal assistance.” 42 U.S.C. § 2000cc-1(b)(1).
RLUIPA provides a broad, express private right of
action to enforce its substantive protections, and “to
obtain appropriate relief against a government.” 42
U.S.C. § 2000cc-2(a). The term “government” is
broadly defined to include:

J

(i) a State, county, municipality or other
governmental entity created under the
authority of a State;

(ii) any branch, department, agency,
instrumentality, or official of an entity
listed in clause (i); and

(ii) any other person acting under State law.

Id. § 2000cc-5(4)(A).

RLUIPA expressly contemplates that private
enforcement actions may be brought in federal court.
42 U.S.C. § 2000cc-2(a) (standing to bring private cause
of action governed by article III of the Constitution);
Id. § 2000cc-2(c) (restricting full faith and credit for
adjudication of some claims in non-federal forum).

Since RLUIPA’s enactment, institutionalized
persons across the country have invoked Section 3 in
private enforcement actions, seeking redress for
government-imposed burdens on their fundamental
rights of free exercise. Several circuit courts of
appeals have construed RLUIPA’s broadly-crafted,
express remedial provision, and the constitutional
scope of RLUIPA’s substantive protections. Every
circuit court to have considered the question has
concluded that Section 3 constitutes a valid exercise of
Congress’ Spending Clause power, and several circuits
have determined that, by voluntarily accepting federal
correctional funds in light of RLUIPA’s clearly
expressed conditions, the states have consented to
federal jurisdiction for at least some form of relief.

The difficult and divisive question has been
whether RLUIPA’s express cause of action for

8

appropriate relief against the states is sufficiently clear
to effectuate a knowing waiver of Eleventh
Amendment immunity from monetary damages. On
this fundamental question of constitutional and federal
law, the circuit courts are deeply and profoundly split,
on both the answer and doctrinal approach. The
Fourth, Fifth, Sixth, Seventh and Eighth Circuits have
declined to find consent absent an express textual
waiver of immunity that unambiguously extends to
monetary damages. The Eleventh Circuit, employing
traditional rules ‘of construction derived from this
Court’s Spending Clause jurisprudence, has _ not
required an explicit reference to money damages,
instead finding knowing consent to all appropriate
remedies based on the voluntary acceptance of federal
funds in the face of RLUIPA’s broad provision for
private enforcement and settled presumptions of law.

The Eighth Circuit, here, rejected the Eleventh
Circuit’s approach, concluding that nothing short of an
unequivocal expression of elimination of immunity from
private damages in the statutory text could effectuate
waiver. The court further refused to find waiver under
the Civil Rights Remedies Equalization Act (CRREA),
42 U.S.C. § 2000d-7(a), concluding that absent an express
textual reference to “discrimination,” Section 3 was not a
federal statute prohibiting discrimination by recipients
of federal funds within the scope of that Act. In so
finding, the Eighth Circuit solidified a direct and
irreconcilable circuit split, and departed from this
Court’s jurisprudence in profoundly consequential ways.

9

Petitioner Charles Sisney (Sisney) is an inmate
at the South Dakota State Penitentiary, where he is
confined for life and practices the Jewish faith. Sisney
brought this action against South Dakota prison
officials in their individual and official capacities
asserting claims of governmental interference with his
rights of free religious exercise under RLUIPA and
the Constitution.! Pet. App. 48a46a. Sisney invoked
Section 3 of RLUIPA, challenging the prison officials’
repeated denials of his requests for religious
accommodation on the basis that the unjustified denials
substantially burdened his fundamental rights of free
religious exercise. Over a period of years, Sisney made
several formal requests, which were denied.

Of relevance here, Sisney sought to celebrate

the seven-day Jewish festival of Sukkot, in accordance
with the dictates of his faith, by taking his meals
outdoors in a succah booth. Pet. App. 82a-88a. Sisney
did not have a succah booth, and he did not ask the
prison to acquire one. Rather, inmates at another
South Dakota prison donated a small booth for Sisney
and other Jewish inmates to use.2 Pet. App. 82a.

—_—

Sisney also claimed retaliation and constitutional
violations, which are not at issue here. Pet. App. 38a-39a.

2 A succah is a three-sided covered booth, in which
individuals who practice Judaism eat their meals during Sukkot, a
religious festival of thanksgiving commemorating the temporary
shelter of the Jews during their wandering in the wilderness. Pet.
App. 33a, 82a.

10

Sisney requested to use the booth during the
week of Sukkot in 2003, but his request was denied.
Pet. App. 82a-83a.

In 2004, Sisney renewed his request, and again
asked to celebrate Sukkot by taking his lunch meals
outdoors in the succah for seven days. Pet. App. 88a.
The prison refused on grounds of security, and that
prison policy prohibits the transfer of property
between inmates. Pet. App. 83a-85a. In denying
Sisney’s request, the associate warden compared the
succah to the prison’s Native American sweatlodge,
which is maintained in the recreation yard and used
year-round by hundreds of Native American inmates.
According to the warden, the succah posed a security
risk, in part, because inmates are shielded from view
and, unlike the sweatlodge (a fully-enclosed, permanent
structure), the succah is temporary and can be easily
destroyed. Pet. App. 84a. In lieu of allowing the
succah, the prison granted the Jewish inmates 30
minutes during each day of Sukkot to gather in the
Phone Room to recite blessings. Pet. App. 85a.

Sisney also requested to celebrate in the succah
during the week of Sukkot in 2005, and again in 2006.
Pet. App. 85a. Both requests were denied.

Independently, Sisney sought additional time to
gather with other Jewish inmates for group Torah,
Kabalistic and Hebrew language studies. Pet. App.
9la-92a. Sisney requested more time for his religious
studies because, he asserted, the regularly scheduled
twice-weekly services were inadequate because they
were dedicated to worship, and left no time for group
study of religious texts. Pet. App. 9la. Sisney’s

LI

request noted that other religious groups were allowed
significantly more time for weekly services, including 6
periods per week for Native Americans, 10 periods per
week for Catholics and 8 periods per week for
Christians. Pet. App. 91a. When the associate warden
denied Sisney’s request, he did so by stating: “You
have ample time during Shabbat Service to study
Torah.” Pet. App. 92a.

Finally, Sisney sought to use and possess a tape
player so that he could study Hebrew in his cell.? Pet.
App. 97a-98a. Sisney’s request was denied on the basis
that no inmates of any faith are permitted to possess
tape players in their cells. /d.

Sisney engaged the prison grievance process,
and informed prison policymakers about the
discriminatory and burdensome treatment Sisney
believed he received. Pet. App. 50a. Sisney’s requests
for administrative remedy were denied, and no formal
action was taken to ensure his religious rights were not
unlawfully restricted. Pet. App. 50a-5la.

In response, Sisney brought this action in the
United States District Court for the District of South
Dakota challenging the denials as discriminatory and
substantially burdensome in violation of RLUIPA, and
seeking injunctive and monetary relief. Pet. App. 46a.
IT. District Court’s Opinion

The prison officials sought summary judgment
asserting qualified immunity and _ Eleventh

3 Sisney advanced other RLUIPA challenges, which are not
at issue here. Pet. App. 89a-102a.

12

Amendment immunity, and_ challenging the
constitutionality of RLUIPA on various grounds. Pet.
App. 42a-43a. The United States intervened for the
purpose of opposing the constitutional challenge. The
district court denied summary judgment, upholding the
constitutionality of RLUIPA as a valid exercise of
Congress’ Spending Clause power, and rejecting the
balance of the officials’ constitutional claims.‘ Pet.
App. 102a-112a. The court granted summary judgment
on the individual capacity claims, finding that RLUIPA
was enacted pursuant to the Spending Clause; thus,
Congress was precluded from subjecting non-recipients
of federal funds to private liability. Pet. App. 58a-61a.
On the Eleventh Amendment question, the
district court denied sur~ary judgment, concluding
that RLUIPA’s remedial provision for Na
relief” expressly permits recovery of monetary
damages and, that by accepting federal correctional
funds, South Dakota waived its immunity from suits for
monetary damages under CRREA. Pet. App. 57a-58a.
In a comprehensive and detailed opinion, the
district court examined this Court’s Spending Clause
jurisprudence and considered the split in authority
between the Fourth and Eleventh Circuits on the
question whether the text of RLUIPA’s private right
of action is sufficiently clear to effectuate a waiver of
Eleventh Amendment immunity from suits for
damages. The court weighed the Fourth Circuit’s
approach, and agreed that mere participation in a
federal funding program is insufficient to waive

4 The district court upheld RLUIPA against other
constitutional challenges not relevant here. Pet. App. 112a

13

immunity. Pet. App. 64a-66a. The court concluded that
RLUIPA’s reference to “appropriate relief’ failed to
unambiguously require waiver of Eleventh
Amendment immunity for monetary damages as a
condition of accepting funds. Pet. App. 67a-70a.
Finding the absence of an unequivocal waiver in
the text of RLUIPA was not dispositive on the
question of immunity, the district court considered
whether RLUIPA falls within the scope of CRREA -a
statute, which explicitly declares that a State shall not
be immune under the Eleventh Amendment from suits
for violations of a federal statute prohibiting
discrimination by federal funding recipients. In
rejecting the Fourth Circuit’s strict construction
requiring an express’ textual reference’ to
“discrimination,” the district court found RLUIPA was
a statute prohibiting discrimination by federal funding
recipients under CRREA. Pet. App. 70a-72a.
Recognizing that “(t]he right to exercise one’s
religion is clearly a fundamental freedom,” and
observing that Congress found “prison officials were
discriminating against prisoners who sought to
exercise their religious beliefs,” the district court
concluded that RLUIPA: was enacted, in part, “to
prohibit discrimination by prison officials against
prisoners who desire to exercise their religious
beliefs.” Pet. App. 7la. In so finding, the court
invoked the Seventh Circuit’s observation that:
“RLUIPA follows in the footsteps of a long-standing
tradition of federal legislation that seeks to eradicate
discrimination and is ‘designed to guard against unfair
bias and infringement of fundamental freedoms.” Pet.
App. 7la (quoting Charles v. Verhagen, 348 F.3d 601,
607 (7th Cir. 2003) (quoting Mayweathers v. Newland,

14

314 F.2d 1062, 1066-67 (9th Cir. 2002)). Thus, according
to the court, South Dakota waived its immunity from
monetary damages under CRREA by accepting federal
funds. Pet. App. 72a.

Turning to the scope of the waiver, the district
court examined whether RLUIPA authorizes
monetary damages. Acknowledging that the Fourth
and District of Columbia Circuits have recognized that
RLUIPA could be read to extend to damages, the
court agreed with the Eleventh Circuit’s decision in
Smith v. Allen, 502 F.3d 1255, 1270 (11th Cir. 2007),
that in light of the presumption this Court accords such
remedial language, RLUIPA’s express right of action
“to obtain appropriate relief against a government” is
broad enough to encompass the right to recover
monetary damages for statutory violations. Pet. App.
72a-78a. In so doing, the court adopted the Eleventh
Circuit’s reasoning that in using the broad, general
language of “appropriate relief’ in RLUIPA, Congress
was aware of the “presumption in favor of making all
appropriate remedies available to the prevailing
party,” established by this Court in Franklin v.
Gwinnett County Pub. Sch., 03 U.S. 60, 73 (1992), and
its progeny. Pet. App. 73a (citing Smith, 602 F.3d at
1270-71). Congress could have, but chose not to, limit
remedies to injunctive relief. In light of the Frank/in
presumption, and absent an expressed contrary intent,
the court concluded that RLUIPA encompasses claims
for monetary relief. Pet. App. 73a.

The court further concluded that even if
RLUIPA lacked an express, broad remedial provision,
this Court’s decision in Barnes v. Gorman, 536 U.S. 181,
187 (2002), authorizes recovery of compensatory
damages. According the district court, RLUIPA was

| ‘

enacted under Congress’ Spending Clause power and,
in discussing the permissible scope of remedies for
which funding recipients may be held liable in
Spending Clause legislation, this Court observed:

A funding recipient is generally on notice
that it is subject to those remedies
traditionally available in suits for breach
of contract. Thus we have held that
under Title [X, which contains no express
remedies, a recipient of federal funds is
nevertheless subject to suit for
compensatory damages and injunction,
forms of relief traditionally available in
suits for breach of contract.

Pet. App. 73a-74a (quoting Barnes, 536 U.S. at 187).

Following Barnes, the district court concluded
that where Congress did not expressly preclude
monetary damages in RLUIPA, South Dakota was on
notice that it is subject to that remedy “because an
award of compensatory damages is a form of relief
traditionally available in suits for breach of contract.”
Pet. App. 74a.

Turning to the merits of the RLUIPA claims,
the court denied summary judgment in relevant part,
finding Sisney demonstrated a substantial burden on
his free exercise rights regarding the prison officials’
denial of his requests to celebrate Sukkot in the succah,
engage in group religious text studies, and use a tape
player in his cell for Hebrew language studies. Pet.
App. 85a-98a. In rejecting the prison officials’
proffered justifications, the district court questioned
the neutrality of the stated interest and noted evidence

16

of unequal treatment. Pet. App. 86a-88a (questioning
legitimacy of security concerns asserted as grounds for
denying succah where Native American sweatlodge
posed similar, or greater threat); id. 92a-94a (factual
issues where non-Jewish religions were provided more
worship time than Jewish inmates, and were allocated
separate time for group religious text studies).

Regarding the tape player, the court rejected
the contention that the facially neutral policy justified
the denial because RLUIPA prohibits substantial
burdens on religious exercise, even if they result from
rules of general applicability. Pet. App. 97a-98a.

III. Eighth Circuit’s Opinion

The Eighth Circuit affirmed the district court’s
conclusion that RLUIPA is a constitutional exercise of
Congress’ Spending Clause power, but reversed the
denial of summary judgment on Eleventh Amendment
grounds. Pet. App. 22a-30a. The United States
intervened to support RLUIPA’s constitutionality.

In finding Section 3 constitutional, the Eighth
Circuit determined that a state pnson receiving funds
under RLUIPA does so on two conditions: (1) that
prison officials not impose a substantial burden on an
inmate’s free exercise unless the burden is justified by a
compelling state interest achieved through the least
restrictive means, and (2) that the state must submit to
judicial proceedings for “appropriate relief’ to enforce
RLUIPA. Pet. App. 16a. In so concluding, the Eighth
Circuit found that RLUIPA unambiguously conditions
federal funds on the states’ consent to provide
heightened religious protection to inmates, and to submit.
to private enforcement actions. Pet. App. 17a-19a.

17

Recognizing Congress’ interest in protecting inmates’
religious exercise and power under the Spending Clause
provide greater protection for religious exercise beyond
what the Constitution requires, the Eighth Circuit
joined the Fourth, Fifth, Sixth, Seventh, Ninth and
Eleventh Circuits in upholding the constitutionality of
RLUIPA. Pet. App. 22a-23a.

In considering the Eleventh Amendment
challenge, the Eighth Circuit expressly acknowledged
Congress’ power under the Spending Clause to condition
federal funds on the states’ waiver of sovereiyn
immunity, and again recognized that, in RLUIPA,
Congress conditioned the acceptance of funds on the
states’ consent to “appropriate relief.” Pet. App. 23a
25a. In so finding, the court reiterated that RLUIPA
expressly creates a private right of action “for at least
some form of relief” (Pet. App. 25a (quoting Madison v.
Virginia, 474 F.3d 118, 130 (4th Cir. 2006)), and that the
phrase “appropriate relicf,” is “broad enough to include
both injunctive relief and compensatory damages.” /d.

But while these conditions are suff..cntly clear to
overcome a Spending Clause challenge, the court
required that such language must also “unambiguously
extend|] to monetary claims” in order to effectuate a
waiver of Eleventh Amendment immunity. Pet. App.
25a. In adopting this rule, the Fighth Circuit relied on
Lane v. Pena, 518 U.S. 187, 192 (1996), a case in which
this Court, construing the sufficiency of Congress’
abrogation of the federal government’s sovercign
immunity stated: “Io sustain a claim that the
Government is liable for awards of monetary damages,
the waiver of sovereign immunity must extend

18

unambiguously to such monetary claims.” Jd The
Eighth Circuit did not purport to consider Barnes, or
this Court’s related Spending Clause jurisprudence.

Instead, the court relied exclusively on Lane — a
decision, which did not involve Spending Clause power
or the states’ knowing consent to statutory conditions,
and which the Eighth Circuit categorically characterized

as “reject{ing] any idea that sovereign immunity could
be waived by anything other than the ‘unequivocal
expression of elimination of sovereign immunity .. . in
statutory text.”” Pet. App. 26a-27a (quoting Lane, 518
US. at 192 (internal citations omitted). Thus, according
to the Eighth Circuit, notwithstanding that a state has
voluntarily consented to ‘adhere to RLUIPA’s
heightened substantive requirements and to submit to
private enforcement actions for appropriate relief, which
could include compensatory damages, (and
notwithstanding that such conditions are constitutionally
imposed), absent an unequivocal express textual
reference to monetary damages, that state’s consent
extends solely to injunctive relief.

In so finding, the Eighth Circuit acknowledged a
direct conflict among the circuit courts of appeals, which
has now become deeply entrenched, with the Fifth,
Sixth, Seventh and Eighth Circuits following the Fourth
Circuit’s decision in Madison v. Virginia, 474 F.3d at 130,
which, like the Eighth Circuit here, imported this
Court’s rule in Lane governing statutory abrogation of
the federal government’s sovereign immunity to
conclude that RLUIPA’s “appropriate relief’ language
“falls short of the unequivocal textual expression
necessary to waive the State immunity from suits for

19

damages.” Pet. App. 25a-26a (quoting Madison, 474
F.3d at 130 and citing circuit cases).

In further solidifying the circuit split, the Eighth
Circuit categorically rejected the Eleventh Circuit’s
decision in Smith v. Allen, 502 F.3d at 1271, which held
“that, absent an intent to the contrary, the phrase
‘appropriate relief in RLUIPA encompasses monetary
as well as injunctive relief,” and its concomitant reliance
on this Court’s decision in Franklin, 503 U.S. 60. Pet.
App. 26a. The Eighth Circuit acknowledged Frankiin’s
articulation of a presumption in favor of making a//
appropriate remedies available when Congress employs
broad remedial language in a Spending Clause statute,
but refused to extend that rule to the remedial language
in RLUIPA. According to the Eighth Circuit, Franklin
does not apply because it did not involve the question of
state sovereign immunity, and this Court had no
occasion to squarely consider whether statutory
language at issue was specific enough to effectuate a
knowing waiver. Pet. App. 26a-27a.

The Eighth Circuit, again following Madison,
applied the same rationale to conclude that Section 3 of
RLUIPA is not a “Federal statute prohibiting
discrimination by recipients of Federal financial
assistance” within the meaning of CRREA. Pet. App.
28a. Requiring an express textual reference to the word
“discrimination,” the court found that Section 3 does not
“unambiguously prohibit discrimination — it prohibits
substantial burdens on religious exercise, without regard
to discriminatory intent.” Jd. The court noted that
Section 2 of RLUIPA, in contrast to Section 3, expressly
prohibits discrimination and unequal treatment, and that

20

all the civil rights statutes enumerated in CRREA (Title
IX, Title VI, the Age Discrimination Act and the
Rehabilitation Act) reference discrimination as well.
Again, without considering Barnes or the clear notice
requirement applicable to Spending Clause legislation,
and without construing the substantive text of Section 3
and its strict scrutiny standard, the Eighth Circuit
concluded that “[aJbsent an unequivocal textual
indication that CRREA applies to Section 3,” CRREA
does not “effectuate a knowing waiver of sovereign
immunity from money damages on those claims.” Pet.
App. 29a-30a.

On the merits of the RLUIPA claims, the court of
appeals affirmed the district court’s denial of summary
judgment, finding that Sisney established that the denial
of his request to use a succah — “‘a mandatory part of the
Sukkot Festival’ and essential to the practice of
[Sisney’s] Jewish faith” imposed a substantial burden on
his religious exercise under RLUIPA. Pet. App. 33a-
34a. The court of appeals reversed summary judgment
on the two surviving claims for injunctive relief and
remanded for judgment in favor of the prison officials.
Pet. App. 34a-37a.

21

REASONS FOR GRANTING THE WRIT

I THERE IS A DIRECT AND
IRRECONCILABLE CONFLICT AMONG
THE CIRCUITS ON WHETHER RLUIPA
CONSTITUTIONALLY EFFECTUATES A
WAIVER OF ELEVENTH AMENDMENT
IMMUNITY FROM MONETARY DAMAGES

The Eighth Circuit’s sweeping conclusion that
Congress cannot constitutionally exercise its Spending
Clause power to condition federal funds on consent to
suits for monetary damages absent anything other than
an unequivocal expression of elimination of immunity
from damages solidifies an _ intractable and
irreconcilable conflict among the circuit courts of
appeals, which only this Court can resolve. In limiting
the scope of RLUIPA’s remedial provision, the Eighth
Circuit acknowledged the deeply entrenched split
among the circuits on this critical question, with the
Fourth, Fifth, Sixth and Seventh Circuits holding that
RLUIPA does not effectuate a waiver of immunity
against suits for monetary damages, and the Eleventh
Circuit holding that RLUIPA does effectuate a waiver.
Compare Cardinal v. Metrish, 564 F.3d 794 (6th Cir.
2009), Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009),
and Madison, 474 F.3d 118, with Smith, 502 F.3d 1255.5

5 Petitions for writ of certiorari are pending in two of these
cases — Sassamon v. Texas, Docket No. 08-1438, and Cardinal v.
Metrish, Docket No. 09-109. This Court invited briefing from the
Solicitor General to express the United States’ views in both cases.

22

In Madison, 474 F.3d at 129-32, the Fourth Circuit
construed RLUIPA to create an express private right of
action to obtain appropriate relief against the
government, including states, and determined that
because Virginia had clear notice of this condition, “(bly
voluntarily accepting federal correctional funds, it
consented to federal jurisdiction for at least some form of
relief.” Jd. at 130 (citing Benning v. Georgia, 391 F.3d
1299, 1306 (1ith Cir. 2004) (“[State] was on clear notice
that by accepting federal funds for its prisons, [it] waived
its immunity from suit under RLUIPA.”)). According to
the Fourth Circuit, however, that RLUIPA
unambiguously conditions federal funds on consent to
suit in federal court is insufficient to waive full immunity
absent an express textual reference to monetary relief.

The Fourth Circuit did not purport to consider
this Court’s decisional law governing Congress’ power to
effectuate a waiver a Eleventh Amendment immunity
from suit through clearly noticed conditions in Spending
Clause legislation, and it failed to expressly consider this
Court’s decisions in Franklin and Barnes. Instead,
relying exclusively on the rules that apply when
Congress waives the federal government’s sovereign
immunity, the Fourth Circuit required an unequivocal
textual waiver that extends unambiguously to monetary
claims. See id. at 131-82 (citing Zane, 518 U.S. at 192
(“To sustain a claim that the Government is liable for
awards of monetary damages, the waiver of sovereign
immunity must extend unambiguously to such monetary
claims.”); United States v. Nordic Village, 503 U.S. 30, 34
(1992) (refusing to imply waiver of federal immunity
from money damages absent an “unequivocal

23

expression” in text where statute could be read either to
include, or preclude damages); Webman v. Fed. Bureau
of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006) (finding
“appropriate relief’ provision of RFRA insufficient to
waive federal immunity from damages suits because the
“broad term” might include damages, or, plausibly,
might not)). The court concluded that because
“appropriate relief’ is susceptible of more than one
interpretation, it failed to constitute an unequivocal
textual waiver of immunity extending unambiguously to
money damages.§ Jd. at 132.

In Smith, 502 F.3d at 1269-71, the Eleventh
Circuit, noting the division of authority took an entirely
different approach and reached the opposite conclusion.
Following the rule in Frank/m, 503 U.S. at 68-69, that
absent express congressional intent to the contrary,
federal courts should presume the availability of a//
appropriate remedies, the Eleventh Circuit found
RLUIPA’s “appropriate relief’ provision broad enough
to encompass monetary damages and effectuate waiver.
The question presented in Franklin was whether the

6 Madison’s reliance on Shea v. County of Rockland, 810
F.2d 27, 29-30 (2d Cir. 1987) for the proposition that “appropriate
relief’ ordinarily includes injunctive and equitable relief,
contravenes the presumptions accorded by Franklin and Barnes,
and it could be misleading. The provision at issue in Shea
referenced “appropriate relief’ exclusively in terms of injunction
and reinstatement. In contrast, RLUIPA broadly authorizes,
without express or implied limitation, the private right to obtain
“appropriate relief’ against the states. The only limitations run
against the United States, whose remedies are expressly limited
to declaratory and injunctive relief. 42 U.S.C. § 2000cc-2(f).

24

implied right of action under Title 1X of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq., supported
a claim for monetary damages in light of the
longstanding rule that absent clear direction to the
contrary by Congress, federal courts have the power to
award any appropriate relief in a cognizable cause of
action brought pursuant to a federal statute. In finding a
right to damages, this Court noted the traditional rule
that “if a right of action exists to enforce a federal right
and Congress is silent on the question of remedies, a
federal court may order any appropriate relief.”
Franklin, 503 U.S. at 69.

Of particular significance in Franklin (although
not noted in Smith), was the fact that Congress enacted
CRREA (which expressly waived Eleventh Amendment
immunity from suits arising under Title IX) after this
Court implied a private right of action, but Congress
failed to expressiy limit the available remedies. Having
failed in the face of an implied right of action to abrogate
the traditional presumption in favor of any appropriate
relief, this Court presumed that Congress enacted
CRREA with the traditional presumption in mind.’
Franklin, 503 U.S. at 72-73; id. at 78 (Scalia, J.,
concurring) (stating CRREA was an “implicit
acknowledgement that damages are available.”).

Following Franklin, the Eleventh Circuit thus
presumed Congress was aware of the traditional
presumption when, in enacting RLUIPA, Congress

7 Notably, while CRREA references “remedies both at law
and in equity,” it does not unequivocally, or even expressly,
reference compensatory damages. 42 U.S.C. § 2000d-7(a)(2).

25

expressed no intent to limit the remedies for statutory
violations and, instead, employed broad language
authorizing private enforcement actions with the right to
obtain “appropriate relief.” Smith, 502 F.3d at 1270-71;
id. at 1276 n.12; see also Benning, 391 F.3d at 1305-06
(noting RLUIPA expressly defines “government” to
include states and state agencies; thus, “Georgia was on
clear notice that by accepting federal funds for its
prisons, Georgia waived its immunity from suit under
RLUIPA.”); id. at 1806 (quoting Garrett v. Univ. of Ala.
at Birmingham Bd. of Trs., 344 F.3d 1288, 1293 (11th Cir.
2003) (“Where Congress has unambiguously conditioned
the receipt of federal funds on a waiver of immunity, .. .
a state can [not] continue to accept federal funds without
knowingly waiving its immunity.”)).

In Sossamon, 560 F.3d 316, the Fifth Circuit,
noting the split in authority, sided with the Fourth
Circuit and concluded that “RLUIPA is clear enough to
create a right for damages on the cause-of-action
analysis, but, not clear enough to do so in a manner that
abrogates state sovereign immunity from suits for
monetary relief.” Jd. at 331. In finding that RLUIPA
was unclear regarding the scome of states’ liability for
violations, the Fifth Circuit adopted the rule in Madison
that waiver must textually and unambiguously extend to
monetary claims. In rejecting the Eleventh Circuit’s
rule, the Fifth Circuit summarily concluded that the
Franklin presumption “disappear[s}’ in the face of an
ambiguous provision involving immunity: “We may not
presume the [traditional rule] when we ask whether a
state knowingly waived its immunity from damages
when damages are not expressly provided.” Id. at 331.

26

The Fifth Circuit cited no decision from this Court, or
any other, limiting the scope and reach of F’ranklin.

In Cardinal, 564 F.3d 794, the Sixth Circuit,
noting the lack of consensus among the circuit courts,
surveyed the holdings of Madison, Smith and Sossamon
and ultimately sided with the Fourth Circuit to require
an “unequivocal expression” of liability for damages. Jd.
at 799-801. Invoking Lane and Nordic Village, the Sixth
Circuit required an unequivocal expression of waiver
against suits for monetary damages. In declining to
follow Frankiin, the Sixth Circuit stated: “The Supreme
Court has recognized that Franklin is not per se
applicable to all claims against a State, but only to claims
in which a State has expressly waived its sovereign
immunity.” Jd. at 800-01 (citing Lane, 518 US. at 196-
97). But Lane created no such rule as against states in
the Eleventh Amendment context, and it did not purport
to limit Franklin in cases where Congress creates an
express right of action to enforce a federal statute. See
id, at 197-98. Lane did not involve state defendants, or a
challenge to the scope of appropriate remedies. In
considering when the federal government expressly
consents to damages in a federal statute, Lane held:
“Where a cause of action is authorized against the
federal government, the available remedies are not those
that are ‘appropriate,’ but only those for which sovereign
immunity has been expressly waived.” Jd. at 196-97.

In Nelson, 570 F.3d 868, the Seventh Circuit,
noting the division of authority, sided with the Fourth
and Fifth Circuits. Turning Franklin on its head, the
Seventh Circuit agreed that by employing the phrase
“appropriate relief,” Congress necessarily foreclosed any

27

argument that RLUIPA waives immunity from
damages, and that the F’rank/in presumption simply does
not apply in the Eleventh Amendment context. The
Seventh Circuit summarily concluded: “damages must
be ‘expressly provided’ in the statute in order for a court
to find that a state has waived immunity to such suits.”
Id. at 884 (quoting Sossamon, 560 F.3d at 331). In
importing the express waiver requirement, the Seventh
Circuit, like its predecessors, failed to consider Barnes,
or this Court’s Spending Clause jurisprudence.

This Court should not tolerate a split among the
circuit courts on such a critical issue as the Eleventh
Amendment - particularly, where, as here, the
enforcement of a federal civil rights statute involving
fundamental rights of religious freedom is at issue.

The Eighth Circuit, here, in adopting Madison,
rejecting Smith and Franklin, and importing Lane to
create a categorical rule that Congress cannot effectuate
a waiver of monetary relief in Spending Clause
legislation absent an express unequivocal reference to
damages solidifies an entrenched and intractable conflict
among the circuit courts of appeals. This split in circuit
authority reflects profoundly disparate approaches on
the fundamental question of state sovereignty, and the
intersection between the Eleventh Amendment and
Congress’ Spending Clause power. The conflict is
irreconcilable, and cannot be _ resolved’ without
intervention by this Court. Uniformity and clarity on
the question of immunity are critical, particularly, given
RLUIPA’s long history and Congress’ repeated
attempts to constitutionally effectuate RLUIPA’s
intended purpose to broadly protect religious liberty.

28

The Eighth Circuit’s categorical rule requiring
express waivers for damages substantially limits the
scope of RLUIPA’s private right of enforcement and
potentially implicates all remedial Spending Clause
legislation that seeks to condition federal funding on
consent to private suits. This Court has not required
that Congress expressly reference monetary relief when
conditioning federal funds, nor expressed that a textual
reference to damages is necessary to secure states’
voluntary and knowing consent to suit. This Court has
not imported Lane to limit Congress’ Spending Clause
power vis-a-vis the states, or to alter its Eleventh
Amendment jurisprudence. -Nor has it repudiated
Franklin when construing the scope of the states’
consent to suit in Spending Clause programs. Yet,
circuit courts continue to adopt Madison and its progeny
without independent scrutiny or reservation.

The Eighth Circuit’s rule precludes damages for
any violation of RLUIPA, whether it arises under
Section 2 or Section 3, and regardless of whether an
intentional discriminatory violation of RLUIPA has been
established. If, too, individual capacity suits are indeed
foreclosed by the Spending Clause, institutionalized
persons subjected to discriminatory deprivations of
religious liberty, whose right to practice their faith is at
the mercy of the state, have no meaningful recourse
against state officials who, undeterred until the eleventh
hour, unilaterally render an inmate’s action moot.

Five circuits have acknowledged the division in
authority on this critical question, and this Court should
not tolerate continuing disparity and uncertainty. This
petition joins two others pending before the Court, each

29

seeking resolution on this important federal question.
This Court should heal the breach, and clarify whether
Congress is constitutionally required to expressly
reference damages in effectuating a waiver pursuant to
the Spending Clause, so that the lower federal courts
and, if necessary, Congress, can respond accordingly.

1. THE EIGHTH CIRCUITS DECISION
CONTRAVENES BARNES AND FRANKLIN,
AND OTHER DECISIONS OF THIS COURT

In requiring an unequivocal express textual
reference to monetary damages, the Eighth Circuit
directly contravened Barnes v. Gorman, 536 U.S. 181
(2002), and other decisions of this Court. It is true that a
state does not automatically waive its immunity merely
by accepting federal funds. But it is equally true that a
state’s acceptance of federal financial assistance in the
face of a condition clearly expressed by Congress may
give rise to a waiver of Eleventh Amendment immunity,
even in the absence of any express statement of waiver
by the state or its legislature. See Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).

This Court has long recognized Congress’ power
to impose conditions on states when it legislates
pursuant to the Spending Clause and, that unlike
legislation enacted under the Fourteenth Amendment,
Spending Clause legislation is much in the nature of a
contract. Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 17 (1981). “The legitimacy of Congress’
power to legislate under the spending power thus rests
on whether the State voluntarily and knowingly accepts”

30

the contract’s terms. Jd. When Congress imposes a
condition it must, of course, do so unambiguously. Jd.

The question in determining whether Congress
has unambiguously conditioned federal funds is whether
the statute “furnishes clear notice regarding the liability
at issue.” Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 296 (2006). While states cannot
consent to conditions for which they are unaware or
unable to ascertain, liability will attach if, the state
official engaged in the funding process “would clearly
understand” the scope of the state’s obligations.’ Jd.

Still, this Court has routinely applied a contract-
law analogy in defining the scope of conduct for which
state funding recipients may be liable for monetary
awards, and in finding a damages remedy for private
enforcement actions under Spending Clause legislation.
See, e.g., Barnes, 536 U.S. at 186 (“We have repeatedly
characterized [Title VI] and other Spending Clause
legislation as ‘much in the nature of a contract: in return

8 This notice requirement, which applies where states
voluntarily participate in federal funding programs, requires
Congress to “manifest{] a clear intent to condition participation in
the programs funded under the [statute] on a State’s consent to
waive its constitutional immunity.” Atascadero, 473 U.S. at 247.
This is distinct from the “unequivocal expression” of an
“unmistakable congressional purpose” this Court requires when
Congress abrogates immunity of non-consenting states under the
Fourteenth Amendment, jd. at 239, 242-47, and from the test this
Court applies when states voluntarily through constitutional or
statutory provisions waive their immunity by “‘the most express
language or by such overwhelming implications from the text as
[will] leave no room for any other reasonable construction,” /d. at
239-40 (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)).

3]

for federal funds, the [recipients] agree to comply with
federally imposed conditions.” (quoting Pennhurst, 451
U.S. at 17)). The touchstone is notice: funding recipients
must have clear notice that they could be held liable.

In Barnes, this Court considered the general rule
stated in Franklin that “absent clear direction to the
contrary by Congress, the federal courts have the power
to award any appropriate relief” for violation of a federal
right, and F’anklin’s finding of a private damages
remedy. 536 U.S. at 184 (quoting Franklin, 503 U.S. at
70-71). Applying the contract-law analogy to determine
the proper scope of that remedy, this Court held that a
remedy is appropriate relief under Frank/in, “only if the
funding recipient is on notice that, by accepting federal!
funding, it exposes itself to liability of that nature.” /d.
at 187 (emphasis in original). The Court stated:

A funding recipient is generally on notice
that it is subject... to those remedies
traditionally available in suits for breach
of contract. ‘Thus we have held that
under Title IX, which contains no express
remedies, a recipient of federal funds is
nevertheless subject to suit for
compensatory damages, and injunction,
forms of relief traditionally available in
suits for breach of contract.

/d. (citations omitted) (emphasis added).

Here, the Eighth Circuit recognized that
RLUIPA unambiguously conditions federal funds on the
state’s consent to provide heightened religious
protection to inmates, and to submit to private
enforcement actions in federal court, and that the phrase

32

“appropriate relief,” is “broad enough to include both
injunctive relief and compensatory damages.” Pet. App.
25a. Based on this construction, and under #arnes,
Franklin and Pennhurst, a state has adequate notice that
it could be liable for damages for, af /east, an intentional
violation of RLUIPA. See, e.g., Davis v. Monroe County
Bd. of Educ., 526 U.S. 629, 642 (1999) (“Pennhurst does
not bar a private damages action under Title IX where
the funding recipient engages in intentional conduct that
violates the clear terms of the statute.”). In requiring an
express textual reference to monetary damages, the
Eighth Circuit contravened this Court’s Spending
Clause jurisprudence.

ii. THE EIGHTH CIRCUIT CONTRAVENES
THIS COURT’S DECISIONS GOVERNING
FREE EXERCISE AND DISCRIMINATION,
AND OTHER CIRCUIT COURT DECISIONS

CRREA provides, in part:

A State shall not be immune under the
Eleventh Amendment of the Constitution
of the United States from suit in Federal
court for a violation of section 504 of the
Rehabilitation Act of 1973, title IX of the

9 Lane, 518 U.S. 187, does not mandate otherwise. That case
involved an express statutory waiver of /federa/ sovereign
immunity and did not purport to repudiate Pennhurst, Franklin or
Atascadero in the Eleventh Amendment context. Zane did not
involve a challenge to the scope of a private remedy - rather, this
Court refused to find waiver because the respondent (an executive
agency) was not a “Federal provider of financial assistance” within
the meaning of the Rehabilitation Act. Jd. at 195.

33

Education Amendments of 1972, the Age
Discrimination Act of 1975, title VI of the
Civil Rights Act of 1964, or the provisions
of any other Federa/ statute prohibiting
discrimination by recipients of Federal
financial assistance.

42 U.S.C. § 2000d-7(a)(1) (emphasis added).

Every circuit that has considered the question
has held that CRREA “unambiguously conditions a state
agency’s acceptance of federal funds on its waiver of
Eleventh Amendment immunity.” Barbour v.
Washington Metro. Area Transit Auth., 374 F.3d 1161,
1164 & n.1 (D.C. Cir. 2004). This Court, too, albeit in
dictum, has concluded the same. Lane, 518 U.S. at 200.

Patterned after longstanding federal anti-
discrimination legislation enacted pursuant to the
Spending Clause, RLUIPA, by its plain terms, is a
“Federal statute prohibiting discrimination by recipients
of Federal financial assistance.” 42 U.S.C. § 2000d-7(a).

In requiring that Section 3 contain an express
reference to the term “discrimination” as a condition of
finding a clear statement of waiver, the Eighth Circuit
contravened this Court’s decisions construing the Free
Exercise Clause, antidiscrimination law and RLUIPA.

This Court has recognized that Section 3 of
RLUIPA prohibits discrimination by prison officials
against prisoners on the basis of their religion, and that
RLUIPA affords even greater protections to
institutionalized persons than what the Constitution
requires. Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)
(“RLUIPA is the latest of long-running congressional

34

efforts to accord religious exercise heightened
protection from government-imposed burdens”).
RLUIPA protects the religious liberty of those
confined to state-run institutions in which, as this
Court observed: “the government exerts a degree of
contro] unparalleled in civilian society and severely
disabling to private religious exercise.” Jd. at 720-21
(RLUIPA “alleviates exceptional government-created
burdens on private religious exercise” and protects
persons who, “unable freely to attend to their religious
needs” are “dependent on the government’s permission
and accommodation for exercise of their religion.”).

In hearings spanning three years, Congress
documented that “frivolous or arbitrary” barriers
impeded the religious exercise of institutionalized
persons. See 146 Cong. Ree. S7774, 87775 (2000) Goint
statement of Sen. Hatch and Sen. Kennedy on
RLUIPA) (“Whether from indifference, ignorance,
bigotry, or lack of resources, some institutions restrict
religious liberty in egregious and unnecessary ways.”);
Cutter, 544 U.S. at 716 & n.5 (reciting instances of
nationwide disparate treatment by state prison officials
of inmates on the basis of their religion).

Thus, “[t]o secure redress for inmates who
encountered undue barriers to their religious
observances, Congress carried over from [the Religious
Restoration Freedom Act] the ‘compelling
governmental interest’/least restrictive means’
standard.” Cutter, 544 U.S. at 716-17. In so doing,
Congress through RLUIPA mandated a more
searching standard of review for free exercise burdens
than the Constitution itself affords. Cf Turner v.

35

Safley, 482 U.S. 78, 89 (1987) (prison rules of general
applicability upheld against free exercise challenge if
reasonably related to legitimate penological interest).

Indeed, the entire purpose of RLUIPA was to
provide heightened protection against government-
imposed burdens on free religious exercise, and to
require the government to satisfy strict scrutiny to
justify such burdens — regardless of whether they result
from intentional discrimination or facially neutral rules
of general applicability. See generally Cutter, 544 U.S.
at 714-17 (discussing Employment Div., Dep’t of Human
Resources of Or. v. Smith, 494 U.S. 872, 878-87 (1990),
42 U.S.C. § 2000bb et seg., and City of Boerne v.
Flores, 521 U.S. 507, 532-36 (1997)); see also 42 U.S.C. §
2000bb(a)(2) (“laws ‘neutral’ toward religion may
burden religious exercise as surely as laws intended to
interfere with religious exercise.”); id. § 2000bb(b)(1)
(restoring pre-Smith compelling interest test and “to
guarantee its application in all cases where free
exercise of religion is substantially burdened”).!°

By its terms, Section 3 categorically prohibits the
imposition of substantial burdens on religious exercise:

No government shall impose a substantial
burden on the religious exercise of a
person residing in or confined to an
institution, as defined in section 1997 of
[title 42], even if the burden results from

10 While no longer applicable against the states, the
substantive provisions in 42 U.S.C. § 2000bb-1 mirror those in
Section 3 and were incorporated therein. Cutter, 544 U.S. at 717.

36

a rule of general applicability, un\ess the
government demonstrates that
imposition of the burden on that person—

(1) is in furtherance of a compelling
governmental interest; and

(2) is the least restrictive means of
furthering that compelling
governmental interest.

42 U.S.C. § 2000cc-1(a)(1),(2) (emphasis added).

By its terms, Section 3 bans a// substantial
burdens, whether they result from intentional
discrimination or general rules of applicability. The
only exception to this broad prohibition applies when
strict scrutiny is satisfied. That Section 2 expressly
references discrimination does not narrow the
categorical scope of Section 3. Indeed, it reinforces the
plain fact that Section 3 bans all burdens, whether
discriminatory in purpose, or in effect.

In recognizing that RLUIPA provides
heightened protection, this Court has_ implicitly
acknowledged what the plain text of Section 3 makes
clear — namely, that the Free Exercise Clause is a
constitutional floor, not a ceiling. See Cutter, 544 U.S.
at 714. To be sure, the Constitution unequivocally
prohibits intentional government-imposed discrimination
on the basis of religion or religious exercise. See Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531-84, 542-48, 546 (1993); Sherbert v. Verner,
374 U.S. 398, 402-06 (1963); Cruz v. Beto, 405 U.S. 319,
322 (1972). And, in requiring all government-imposed

37

substantial burdens to withstand strict scrutiny,
Congress plainly raised the constitutional floor to treat
any burden on the fundamental right of free exercise as
discrimination. See, e.g., Church of the Lukumi Babalu,
508 U.S. at 546; Smith, 494 U.S. at 885-86 & n.3.

Circuit courts, too, recognize that RLUIPA
provides greater protection than the Constitution
requires, and that Section 3 prohibits, at /east,
discrimination. See Lovelace v. Lee, 472 F.3d 174, 185-
88, 194-95 (4th Cir. 2006); Warsoldier v. Woodford, 418
F.3d 989, 994-97 (9th Cir. 2005); see also Truth v. Kent
Sch. Dist., 542 F.3d 634, 646 (9th Cir. 2008); Koger v.
Bryan, 523 F.3d 789, 796 (7th Cir. 2008); but see
Madison, 474 F.3d at 185 («0 CRREA waiver where no
express ban on discrimination). Even under 7urner’s
deferential standard, neutrality is constitutionally
required. Turner, 482 U.S. at 90-91; Mayfield v. Texas
Dep't of Crim. Just., 529 F.3d 599, 610 (5th Cir. 2008).

The Eighth Circuit’s decision further conflicts
with the Sixth, Seventh and Ninth Circuits, which, in
upholding RLUIPA as a constitutional exercise of
Congress’ Spending Clause power, expressly
characterize RLUIPA as antidiscrimination legislation.
The Ninth Circuit held:

The First Amendment, by prohibiting laws

that proscribe the free exercise of religion,

demonstrates the great value placed on

protecting religious worship from
impermissible government intrusion. By
ensuring that governments do not act to
burden the exercise of religion in
institutions, RLUIPA is clearly in line

38

with this positive constitutional value.
Moreover, by fostering non-discrimination,
RLUIPA follows a long tradition of federal
legislation designed to guard against unfair
bias and infringement on fundamental
freedoms.

Mayweathers v. Newland, 314 F.3d 1062, 1066-67 (9th
Cir. 2002) (citing Titles VI, VII, IX) (emphasis added).

Following the Ninth, the Seventh Circuit
observed that Titles VI and VII of the Civil Rights Act
of 1964 “protect against numerous forms of
discrimination,” and that Title IX sought to “eliminate
gender inequities in education,’ and _ ultimately
concluded that in RLUIPA, “Congress has an interest in
allocating federal funds to institutions that do not engage
in discriminatory behavior or in conduct that infringes
impermissibly upon individual liberties.” Charles v.
Verhagen, 348 F.3d 601, 607-09 (7th Cir. 2003); accord
Cutter v. Wilkinson, 423 F.3d 579, 587 (6th Cir. 2005);
Benning, 391 F.3d at 1306-07.

Finally, this Court has’ recognized that
discrimination manifests in many forms, even if only in
effect. See Ricci v. DeStefano, __ US. _, 129 S. Ct.
2658, 2672-75 (2009); Griggs v. Duke Power Co., 401 US.
492A, 432 (1971). This Court has not required Congress to
use magic words in analogous antidiscrimination
statutes, or to specify every form of discrimination a
statute prohibits, before states will be charged with clear
notice of potential liability. See Jackson v. Birmingham
Bd. of. Educ., 544 U.S. 167, 171-84 (2005); id. at 173-75
(“discrimination” covers a wide range of intentional
unequal treatment; thus, retaliation is discrimination

39

because person is “subjected to differential treatment”);
Davis, 526 U.S. at 635-45, 649-51 (sexual harassment is
discrimination under Title IX and satisfies Pennhurs?).

In so doing, this Court has rejected overly
formalistic constructions and has looked instead to the
plain meaning of a statute’s broad prohibition. See
Gomez-Perez v. Potter, _ U.S. __, 128 S. Ct. 1931, 1935-
39 (2008) (finding broad antidiscrimination ban plainly
included retaliation, and relying on Sullivan v. Little
Hunting Park, Inc., 396 U.S. 229 (1969) (finding cause of
action for retaliation based on plain meaning of 42 U.S.C.
§ 1982, despite absence of term “discrimination”)).

In requiring an express' reference to
“discrimination,” the Eighth Circuit imposed a higher
burden than clear notice requires and created an
anomalous and uncertain rule. RLUIPA’s broad
proscription plainly includes intentional infringement of
religious freedom. If the antidiscrimination purpose of
RLUIPA is sufficiently clear to support a constitutional
exercis® of Congress’ power, then it should be
sufficiently clear to constitute a statute prohibiting
discrimination by federal funding recipients. If it is not,
then this Court should resolve this important question
for Congress, the lower courts and the states to follow.

CONCLUSION

For the reasons set forth above, the petition for
a writ of certiorari should be granted.

40

Dated: January 8, 2010

Respectfully submitted,

Richard L. Johnson Kathryn M. Davis

300 North Dakota Avenue Counsel/ of Record

Suite 406 Peter R. Afrasiabi

Sioux Falls, SD 57104 c/o CHAPMAN UNIVERSITY
Telephone: (605) 338-2626 SCHOOL OF LAW

APPELLATE LITIGATION CLINIC
One University Drive

Orange, CA 92866

Telephone: (714) 628-2504

APPENDIX

Pet. App. la

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 08-1409

James Dean Van Wyhe,

Appellee,

Tim Reisch; Douglas Weber;
Jennifer Wagner,

i i i i i ee ee ee ee ee es

Appellants.

Appeals from

No. 08-1413 the United |
States District
Court, for the

District of
South Dakota

[PUBLISHED|}

Charles E. Sisney, :
¥

.

Appellee, .
-

+

Vv +
*

a

a

*

Tim Reizeech, in both his

Pet. App. 2a

Individual ang official
capacities as ecreary
of Vorrestion ror © Soy
pas ota; D ugias | 4 wep er,
in} poth his 4 eitieg as Chi p
officia capactt ies as Chie
Warden for the fepatpment
of Corrections of South
Dakota; Dennis Block, in
both his in ividual and
ficial capacities as
ssociate Warden for the
outh Dakota tate
Penitentia Jennifer
Wagner, in both her
Individual and official
Keli acities as Cultural
iyities oordinator for
he South Dakota State
Penit ntiary, also known as
Jennifer Lane; Dar
Slykhuis, Interim Warden of
the South Da ota State
Penitentiary, in his
ndividual and official
yapacity,

Appellants.

United States of America,

** ne 2eesrtzstse#eseseeseeteeeeemUcP et eRe RRR HReHReORCERrCU RR Fe HHS SE CS CUS

Intervenor below
Appellee

Submitted: November 13, 2008
Filed: September 10, 2009

Pet. App. 3a

Before MURPHY, HANSEN, and RILEY, Circuit
Judges.

HANSEN, Circuit Judge.

James Dean Van Wyhe and Charles E.
Sisney, prisoners at the South Dakota State
Penitentiary (“SDSP”), each brought a _ suit
against South Dakota prison officials, asserting
various claims of interference with their free
exercise of religion under the First Amendment
and Section 3 of the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA),
114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2). Sisney
added two claims of retaliation. The prison
officials bring this interlocutory appeal of the
district court’s summary judgment rulings. See

Van Wyhe vy. Reisch, 536 F.. Supp. 2d 1110 (D.S. D.
2008); Sisney v. Reisch, 533 F. Supp. 2d 952
(D.8.D. 2008). They challenge the

constitutionality of RLUIPA, the district court’s
conclusion that the state waived its Eleventh
Amendment sovereign immunity from suit for
monetary damages, the denial of summary
judgment on the RLUIPA and First Amendment
claims, and the denial of qualified immunity and
summary judgment on the retaliation claims. The
United States intervenes in this appeal for the
purpose of arguing that RLUIPA is constitutional.
We affirm in part, reverse in part, and dismiss
some claims for lack of interlocutory jurisdiction.

Pet. App. 4a

I
A. Sisney’s Claims

sisney, a SDSP inmate who practices the
Jewish faith, brought suit pursuant to 42 U.S.C. §
1983 and RLUIPA for the violation of his free
exercise of religion rights, naming as defendants
Tim Reisch, Secretary of the South Dakota
Department of Corrections (“DOC”); Douglas
»ber, Chief Warden for the DOC; Dennis Block,
Associate Warden for the SDSP; Jennifer Wagner,
Cultural Activities Coordinator for the SDSP;
Doug Loen, Policy Analyst for the SDSP; Dary!
Slykhuis, Interim Warden of the SDSP; and others
(collectively, “the prison officials”). Sisney
claimed that the prison officials violated his right
to the free exercise of religion under RLUIPA and
the First Amendment by denying (among other
things not relevant to this appeal) his request to
possess and use a succah, his request to have a
tape player in his cell to study the Hebrew
language, and his request for additional group
religious and language study time

Sisney asserted that his religion requires
him to celebrate the week-long Jewish festival of
Sukkot by eating meals outside in a succah and
reciting a special benediction before sundown. A
succah is a three-sided booth or tent constructed
of a tarp and metal poles. The succah is not a
permanent structure, and it is large enough to

accommodate only one person at a time. Sisney’s

Pet. App. 5a

project application suggested that if he is not
allowed to eat meals in the succah, he could
alternatively eat meals as normal, as long as he
is provided extra time for the recitation of the
special benediction, but he asserted that he
included this suggested accommodation only
because he had been told that his request for a
succah would be denied. The group of Jewish
prisoners at SDSP did not possess a succah, but
Jewish inmates at South Dakota’s low- to medium-
security prison tried to donate one to the SDSP
Jewish inmates. The prison officials denied
Sisney’s request for a succah on the grounds that
prison policy prohibits inmate-to-inmate transfer
of property and that the succah presents a safety
and security concern. Instead, they permitted
Sisney the extra time each evening during the
festival to recite the benediction.

The prison officials denied Sisney’s request
for additional group meeting time to study the
Torah, Kabbalah, and the Hebrew language. The
Jewish group is permitted three hours of group
meeting and service time per week in addition to
group worship on special religious holidays. Prior
to 2000, the group met for 90 minutes per week,
but in response to Sisney’s request for additional
group time for Torah study and prayer, the time
was increased to three hours. The prison officials
stated that Sisney’s new application did not
explain why the group now needed yet more time
for the same activities. Sisney is allowed to study

Pet. App. 6a

on his own in his free time.

- Additionally, the prison officials denied
Sisney’s request to have a tape player in his cell to
aid in his study of the Hebrew language. Sisney
does not currently have access to any Hebrew
language tapes but claims that he needs the tape
player because the group meeting times provided
are insufficient to facilitate his language studies.
The prison does not allow any inmate to have a
tape player in a cell because it is a safety and
security concern. Sisney has access to a tape
player during the weekly group meeting times,
and he may practice Hebrew in his cell without the
tape player.

Sisney also claimed that, in retaliation for
filing this suit, Interim Warden Slykhuis denied
immediate delivery to Sisney of The Jailhouse
Lawyer’s Handbook, a publication that arrived as
unsolicited mail from the Center for Constitutional
Rights. Sisney claimed that Warden Slykhuis
knew of this lawsuit and refused to immeuiately
deliver the handbook without asking Sisney if he
had ordered it. Sisney asserted that the same
handbook was immediately delivered to other
inmates, that prison policy did not require the
immediate rejection of the entire correspondence,
and that he later received the handbook. Warden
Slykhuis asserted that he acted reasonably
pursuant to a prison operational memorandum.

Pet. App. 7a

Sisney claimed that Cultural Activities
Coordinator Wagner retaliated against him by
engaging in a pattern of religious discrimination
and harassment and by interfering with his
relationship with the Aleph Institute, an
organization that was providing him materials
helpful to the practice of his religion. According
to Sisney, Wagner had inquired as to why the
Aleph Institute was assisting Sisney, who was not
born of a Jewish mother, and that this inquiry
caused the Aleph Institute to stop sending him
materials. Wagner said she repeatedly contacted
the Aleph Institute asking for free educational
materials, food, and other items for Sisney and the
other members of the Jewish group, but Aleph has
refused to aid Sisney because it does not deem him
to be Jewish under Jewish law.

In a lengthy opinion, the district court
concluded that RLUIPA is constitutional under
the Spending Clause and permits only official-
capacity suits. The district court concluded that
the state had waived its Eleventh Amendment
sovereign immunity from suit for monetary
damages by accepting federal funds under the
terms of RLUIPA and the Civil Rights Remedies
Equalization Act of 1986 (CRREA), 42 U.S.C. §
2000d-7, and therefore, the court denied sovereign
immunity from monetary damages on the official-
capacity RLUIPA claims. But, the district court
noted that any monetary relief necessarily would
be limited to nominal damages as required by the

Pet. App. 8a

Prison Litigation Reform Act of 1995 (PLRA), 42
U.S.C. § 1997e(e). Injunctive relief was also held
to be available on the RLUIPA and the First
Amendment official-capacity claims. On the
merits of those claims, the district court granted
summary judgment on some claims and denied
summary judgment on others. Specifically, the
court held that Sisney had demonstrated a
substantial burden on his free exercise rights
regarding the denial of a succah, the denial of
additional group religious study time, and the
denial of a tape player, but the court concluded
that material questions of fact remained on
whether Sisney’s beliefs were sincere and whether
the denial of these requests was the least
restrictive means of furthering the _ state’s
compelling interests.

As to the § 1983 First Amendment claims
against prison officials in their individual
capacities, the district court granted qualified
immunity. On the retaliation claims, the district
court denied summary judgment, finding material
questions of fact existing on the issue of the intent
to retaliate.

B. Van Wyhe’s Claims

Van Wyhe is also an inmate at the SDSP. In
relevant part, he brought suit against several
South Dakota prison officials claiming that they
violated his free exercise of religion rights under

Pet. App. 9a

RLUIPA and the First Amendment by
implementing a prison policy, SDDOC Policy
1.5.F.2, which was in effect when his suit was filed.
Pursuant to this policy, prison officials deprived
Van Wyhe of kosher meals for a period of time as a
sanction for violating the prisor rules governing
religious diets. Effective February 14, 2007, this
policy was changed, eliminating the sanction of
removal from the religious diet program for a
prison rules violation. Van Wyhe is currently
receiving a kosher diet. He sought monetary,
injunctive, and declaratory relief based upon the
policy as it existed prior to February 14, 2007, but
he did not challenge the amended policy.

In ruling on the prison officials’ motion for
summary judgment, the district court relied on the
legal conclusions made in Sisney’s case regarding
sovereign immunity, the availability of monetary
damages under RLUIPA as limited by the PLRA,
and the constitutionality of RLUIPA. Because the
policy changed as of February 14, 2007, the
district court concluded that Van Wyhe was not
entitled to injunctive or declaratory relief
regarding the original version of the policy but
permitted the official-capacity RLUIPA claim for
monetary damages to proceed against the officials
involved in enforcing the original Policy-secretary
Reisch, Warden Weber, and Cultural Activities
Coordinator Wagner. The district court granted
qualified immunity on the § 1983 First
Amendment individual capacity claims.

Pet. App. 10a

In these consolidated interlocutory appeals,
the prison officials appeal the district court’s
denials of summary judgment. We are also called
upon to consider the constitutionality of RLUIPA,
as well as the availability of monetary damages
against the state government under RLUIPA.

Il.
A. Jurisdiction

Ordinarily, we lack jurisdiction over an
interlocutory appeal challenging the denial of
summary judgment, but an immediate appeal
is appropriate where summary judgment is
denied on the grounds of sovereign immunity
or qualified immunity, because immunity “‘is
effectively lost if a case is erroneously
permitted to go to trial.’” Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985));
see also Monroe v. Ark. State Univ., 495 F.3d
591, 5938-94 (8th Cir. 2007). However,
immediate appeal is appropriate only “‘to the
extent that it turns on an issue of law.’”
Powell v. Johnson, 405 F.3d 652, 654 (8th Cir.
2005) (quoting Mitchell, 472 U.S. at 530). Our
limited ability to reach the merits of the
underlying dispute extends only to legal issues
that are “inextricably intertwined” with the
district court’s denial of immunity, Swint v.
Chambers County Comm’n, 514 U.S. 35, 51

(1995), and not to claims where the denial of

Pet. App. lla

summary judgment was based on disputes over
the sufficiency of the evidence, that is, “which
facts a party may, or may not, be able to prove
at trial,” Johnson v. Jones, 515 U.S. 304, 3138.
(1995). The district court’s determination that
the summary judgment record raises a genuine
issue of fact as to a government official’s
involvement in the alleged constitutional
violation is not a final decision subject to
immediate appeal. Id.

We conclude that we have jurisdiction to
consider the legal issues of whether Section 3
of RLUIPA is constitutional under Congress’s
Spending Clause authority and whether the
state waived its Eleventh Amendment
immunity from monetary damages. by
accepting federal funds under RLUIPA,
because the issues are intertwined with the
district court’s denial of sovereign immunity.
We have jurisdiction to consider the merits of
the RLUIPA and First Amendment claims
regarding the succah, the tape player, the
additional group time, and the retaliation
claims only to the extent that they turn on
issues of law, which we will address separately
below.

We apply de novo review to the district
court’s denial of summary judgment on the
grounds of sovereign and qualified immunity,
considering the evidence and all reasonable

Pet. App. l2a

inferences from the evidence in the light most
favorable to the nonmoving parties. McLean
v. Gordon, 548 F.3d 613, 616 (8th Cir. 2008).
We take as true those facts asserted by Sisney
and Van Wyhe “that are properly supported
by the record.” Monroe, 495 F.3d at 594.
“Summary judgment is appropriate where
‘there is no genuine issue as to any material
fact and ... the movant[s are] entitled to
judgment as a matter of law.’” McLean, 548
F.3d at 616 (quoting Fed. R. Civ. P. 56(c)
(ellipsis in original)).

B. RLUIPA

We begin with the language of the
statute, which provides prison inmates the
following protection:

No government shall impose a
substantial burden on the religious exercise of
a person residing in or confined to an
institution, ... even if the burden results
from a rule of general applicability, unless the
government demonstrates that imposition of
the burden on that person-

(1) is in furtherance of a compelling
governmental interest; and

(2) is the least restrictive means of
furthering that compelling governmental
interest.

Pet. App. l38a

42 U.S.C. § 2000cc-1(a) (1)-(2) (“Section 3”).
Section 3 of RLUIPA protects inmate
religious exercise! in this manner “when the
substantial burden is imposed in a program or
activity? that receives Federal financial
assistance.” Id. § 2000cc-1(b)(1).2 RLUIPA
defines the term “religious exercise” as
“including the exercise of religion, whether or
not compelled by, or central to, a system of
religious belief.” Id. § 2000cc-5(7)(A).

RLUIPA explicitly provides for a cause
of action to enforce the heightened free
exercise right it creates. Id. § 2000cc-2(a)-(g)
(“Section 4”) (stating a person may assert a
RLUIPA violation as “a claim or defense in a
judicial proceeding and obtain appropriate
relief against a government”). In such a suit,
if the institutionalized person “produces prima
facie evidence to support a claim,” by showing
that the government practice substantially
burdens the person’s exercise of religion, then
the government bears the burden of

1 RLUIPA also contains a separate protection of
land use as religious exercise in Section 2, but that
provision is not implicated by this appeal.

Z The parties do not dispute that RLUIPA
applies to South Dakota’s prisons.
3 The statute also purports to apply to a

substantial burden that affects commerce, id. $
2000cce-1(b)(2), but because the undisputed facts of
this case do not affect commerce, this appeal reaches
only RLUIPA’s federal funding underpinnings.

Pet. App. l4a

persuasion on every other element of the
claim. Id. § 2000cc-2(b).

1. Constitutionality of RLUIPA

The prison officials challenge the district
court’s conclusion that Section 3 of RLUIPA is
a constitutional exercise of Congress’s
Spending Clause authority. For the reasons
that follow, consistent with the reasons set
forth by every other circuit court of appeals to
address the question, we conclude that Section
3 of RLUIPA is a constitutional exercise of
legislative authority under the Spending
Clause. See Madison v. Virginia, 474 F.3d 118,
124 (4th Cir. 2006); Cutter v. Wilkinson, 423
F.3d 579, 584-90 (6th Cir. 2005); Benning v.
Georgia, 391 F.3d 1299, 1305-08 (llth Cir.
2004); Charles v. Verhagen, 348 F.3d 601, 606-
11 (7th Cir. 2003); Mayweathers v. Newland,
314 F.8d 1062, 1066-70 (9th Cir. 2002), cert.
denied, 540 U.S. 815 (2003); see also Sossamon
v. Texas, 560 F.3d 316, 328-29 (5th Cir. 2009)
(concluding that RLUIPA “was _ passed
pursuant to the Spending Clause”); Smith v.
Allen, 502 F.8d 1255, 1270, 1274 n.9 (11th Cir.

2007) (agreeing that RLUIPA “hinges on
Congress’ Spending Power”). We adopt the
reasoning set forth in those cases with little to
add, addressing only the specific arguments
raised by the prison officials.

Pet. App. 15a

Under the Spending Clause, Congress
has the power, among other things, to provide
for the “general Welfare of the United
States.” U.S. Const. art. I, § 8, cl. 1. This
provides Congress with incidental authority to
“attach conditions on the receipt of federal
funds, and [Congress] has_ repeatedly
employed the power to further broad policy
objectives by conditioning receipt of federal
money[] upon compliance by the recipient with
federal statutory and administrative
directives.” South Dakota v. Dole, 483 U.S.
203, 206 (1987) (internal marks omitted).
Thus, consistent with the Spending Clause,
Congress may use conditional grants of federal
funds to achieve objectives that are not within
the scope of Article I, id., such as requiring a
state to waive its “sovereign immunity as a
condition for receiving federal funds, even
though Congress could not order the waiver
directly,” Jim C. v. United States, 235 F.3d
1079, 1081 (8th Cir. 2000) (en bane), cert.
denied, 533 U.S. 949 (2001).

Determining whether legislation is a
permissible use of Congress’s spending power
requires a consideration of several limiting
factors as set forth by the Supreme Court in
Dole: (1) the legislation must be in pursuit of
the general welfare, (2) conditions on the
state’s receipt of federal funds must be set out
unambiguously SO that the state’s

Pet. App. l6a

participation is the result of a knowing and
informed choice, (8) conditions on federal
funds must be related to the federal interest
in particular national projects or programs, (4)
conditions must not be prohibited by other
constitutional provisions, and finally, (5) the
circumstances must not be so coercive that
“pressure turns into compulsion.” 483 U.S. at
207-11 (internal marks omitted).

Under the terms of RLUIPA, a state
prison that receives federal funding does so on
two conditions: (1) that the prison officials
not impose a substantial burden on an inmate’s
religious exercise unless that burden is
justified by a compelling government interest
and is the least restrictive means of furthering
that compelling interest, 42 U.S.C. § 2000cc-
l(a); and (2) that the state must submit to
judicial proceedings for “appropriate relief” to
enforce RLUIPA, id. § 2000cc-2(a).

The first Dole factor, which requires
that the legislation must be in pursuit of the
general welfare, is satisfied by RLUIPA’s
protection of an inmate’s religious exercise.
The state prison officials argue that RLUIPA
interferes with prison administration and
improperly encroaches on a_ purely local
concern-the operation of state correctional
facilities. We respectfully disagree. As a
general matter, “the concept of welfare or the

Pet. App. 17a

opposite is shaped by Congress” in the first
instance. Dole, 483 U.S. at 208 (internal
marks omitted). Congress has determined
that encouraging greater’ protecticn of
religious worship within prisons promotes the
general welfare, and we find it to be beyond
serious dispute that this protection furthers
society’s larger goal of rehabilitating inmates
as well as simply respecting’ individual
religious worship. Purely local matters of
prison administration are not jeopardized
because RLUIPA permits even substantial
burdens on religious exercise to be imposed
when the state uses the least restrictive
means of pursuing its compelling government
interests. RLUIPA allows courts to give “due
deference” to the expertise of prison officials
in achieving the compelling government
interests involved in prison operations, and
“Congress did not intend to overly burden
prison operations” but to provide heightened
religious protection “without undermining the
security, discipline, and order of those
institutions.” Murphy v. Mo. Dep’t of Corr.,
372 F.3d 979, 987-88 (8th Cir.), cert. denied,
543 U.S. 991 (2004). RLUIPA respects the
compelling local concerns while enhancing the
general welfare.

Second, the statutory language of
RLUIPA is sufficiently clear to satisfy Dole’s
second factor-that the conditions on_ the

Pet. App. 18a

receipt of federal funds be set _ forth
unambiguously. Section 3 and Section 4 of
RLUIPA together plainly condition the state’s
receipt of federal funds on the requirement
that the state provide RLUIPA’s heightened
religious protection to inmates and that the
state submit to a cause of action to enforce
that right. The prison officials argue that
RLUIPA does not clearly indicate that by
accepting federal funding for prisons, the
state is required to provide an inmate with
kosher meals or a succah, but this level of
specificity is not required. RLUIPA provides
a pliable standard, permitting prison officials
the freedom to make judgment calls by
granting the states “wide latitude in applying
its provisions, but this flexibility does not
make the conditions of RLUIPA opaque.”
Benning, 391 F.3d at 1306. The circuit courts
of appeals agree that setting forth every
conceivable variation in the statute is neither
feasible nor required and that RLUIPA
appropriately provides the state “the freedom
to tailor compliance according to its particular
penological interests and _ circumstances.”
Charles, 348 F.3d at 608 (relying on Pennhurst
State Sch. & Hosp. v, Halderman, 451 U.S. 1,
24-25 (1981)). See also Benning, 391 F.3d at
1306; Mayweathers, 314 F.3d at 1067. As

always, the devil is in the details, but
Congress has deemed the prison officials to be
best suited to deal with those details on a
case-by- case basis in their ordinary prison

Pet. App. 19a

operations. We conclude that RLUIPA sets
forth the general right to heightened
protection of religious exercise with sufficient
clarity, and unambiguously conditions the
state’s acceptance of federal funding on its
agreement to enforce that protection.

The third Dole factor is satisfied because
the condition on which the state receives the
federal funding, that is, protecting inmates’
religious exercise against substantial burdens
that are not justified by compelling state
interests, is reasonably related to the funding
of‘prison programs. See Cutter, 423 F.3d at
586 (stating Dole “suggests that a condition
on federal funding is constitutional so long
as it is reasonably calculated to address the
federal interest” (internal marks omitted)).
“Both the protection of the religious exercise
of prisoners and their rehabilitation are
rational goals of Congress, and those goals are
related to the use of federal funds for state
prisons.” Benning, 391 F.3d at 1308. The
prison officials’ assertion otherwise is simply
without merit.

The fourth Dole factor requires a
consideration of whether other constitutional
provisions prohibit these particular conditions
on federal funding. The prison officials argue
that RLUIPA violates the doctrine of the
separation of powers because the statute

Pet. App. 20a

improperly overturns the more deferential
constitutional standard set forth by the
Supreme Court for evaluating prisoners’ free
exercise of religion claims, see Turner v.
Safley, 482 U.S. 78, 89 (1987) (holding that
prison regulations must be reasonably related
to legitimate penological interests’ to
withstand a constitutional challenge), and
improperly substitutes a standard of strict
scrutiny. We disagree. RLUIPA does not
attempt to change the standard of review for
First Amendment claims, but it “‘establishe[s]
a statutory free exercise claim encompassing a
higher standard of review than that which
applies to constitutional free exercise claims.’”
See Gladson v. Iowa Dep’t of Corr., 551 F.3d
825, 832 (8th Cir. 2009) (quoting Murphy, 372
F.3d at 987). Context remains important. The
application of this statutory compelling
interest standard “does not ‘elevate
accommodation of religious observances
over an institutions need to maintain order
and safety.’” Fegans v. Norris, 537 F.3d 897,
902 (8th Cir. 2008) (quoting Cutter v.

Wilkinson, 544 U.S. 709, 722 (2005)). Instead,
RLUIPA appropriately views the
constitutional standard as a floor, not a
ceiling, and provides additional statutory
protection for religious worship in a particular
context. See Mayweathers, 314 F.3d at 1070
(stating the Court in Employment Div. v.

Smith,494 U.S. 872, 890 (1990), “explicitly left
[the question of whether to _ provide]

Pet. App. 2la

heightened legislative protection for religious
worship to the political branches”).
Congress’s policy decision to provide this
heightened protection is well within
Congress’s appropriate legislative role.
“Nothing in the Spending Clause . . .forecloses
Congress from placing conditions on federal
funds that reach beyond what the Constitution
requires.” Madison, 474 F.3d at 127.

Finally, the state prison officials assert
that the amount of federal funding provided to
the state prison renders the statutory
conditions unconstitutionally coercive. We
agree with the district court’s conclusion that,
although the federal funding amount involved
here is not insubstantial, it does not render
the statute unconstitutionally coercive in light
of our prior case law. In Jim C., we rejected a
Spending Clause challenge in which the
state argued that Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 974,
was unconstitutionally coercive. 235 F.3d at
1082. We concluded that the state’s potential
loss of $250 million dollars in federal funding,
which amounted to 100% of the state’s federal
education funding and approximately 12% of
the state’s annual education budget, “would be
politically painful” but was not impermissibly
coercive. Id. We found no reason to deviate
from that authority in Doe v. Nebraska,
involving a challenge to the state’s waiver of

Pet. App. 22a

immunity under’ Section 504 of _ the
Rehabilitation Act. 345 F.3d 598, 599 (8th Cir.
2003). Relying on Jim C., we held that there
was no coercion, even though the state would
potentially lose approximately $557 million
per year and the federal funding totaled 60%
of the state agency’s operating budget. Id.

Here, South Dakota received over $64
million from federal funding over the period
from 2001 through 2006, amounting to between
9.5% and 17.35% of the DOC’s annual budget
during those years. Our prior cases lead us to
conclude that this is not so great an amount as
to render the statute unduly coercive. While a
potential loss of 100% of the federal funding
for state prisons would indeed be painful, the
statute is intended as an inducement, and the

final choice is left to each state. “[Hlard
choices do not alone amount to coercion.”
Madison, 474 F.3d at 128. “If a State’s

citizens view federal policy as sufficiently
contrary to local interests, they may elect to
decline a federal grant.’” Jim C., 235 F.3d at
1082 (quoting New York v. United States, 505
U.S. 144, 168 (1992)). We conclude that “the
Spending Clause allows Congress to present
States with this sort of choice,” id., and that
RLUIPA is not unduly coercive.

We therefore affirm the district court’s
conclusion that RLUIPA is constitutional

Pet. App. 23a

under the Spending Clause. Because of this
conclusion and the fact that this case presents
no facts implicating any connection to
commerce, we decline to address the state
prison officials’ arguments regarding the
constitutionality of RLUIPA under the
Commerce Clause.

2. Eleventh Amendment Immunity under
RLUIPA

The prison officials challenge the district
court’s conclusion that RLUIPA, coupled with
the explicit language of CRREA, permits
monetary damage claims against the state
subject to the limitations imposed by the
PLRA. Our conclusion above that RLUIPA is
sufficiently clear to be a valid exercise of
Spending Clause power does not foreclose our
consideration of whether RLUIPA is
sufficiently clear to effectuate a knowing
waiver of the state’s Eleventh Amendment
sovereign immunity from a suit for monetary
damages.4 See Sossamon, 560 F.3d at 330-331

4 The Supreme Court has' recognized two
circumstances in which an individual may bring suit in
federal court against a state. First, Congress may
abrogate a state’s sovereign immunity through
legislation enacted pursuant to its Section 5
enforcement power of the Fourteenth Amendment,
which was “enacted after the Eleventh Amendment
and specifically designed to alter the federal-state
balance.” Coll. Sav. Bank v. FJ]. Prepaid Postsecondary

Pet. App. 24a

(considering the issue of sovereign immunity
separately from the Dole factors); Madison,
474 F.3d at 129 (same).

There can be no constructive waiver of
sovereign immunity, and we “indulge every
reasonable presumption against waiver.” Coll.
Sav. Bank, 527 U.S. at 682 (internal marks
omitted). The Supreme Court, construing the
federal government’s waiver of sovereign
immunity, has stated that “[t]o sustain a claim
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) citing United States v. Nordic
Village, Inc., 5038 U.S. 30, 34 (1992)).
Additionally, waivers are to be “construed
strictly in favor of the sovereign and not
enlarged beyond what the language requires.”
See Nordic Village, Inc., 508 U.S. at 34

Educ. Expense Bd,, 527 U.S. 666, 670 (1999). “Second,

a State may waive its sovereign immunity by
consenting to. suit.” Id. (emphasis supplied.)

RLUIPA, as an exercise of Congress’s Spending
Clause power, “is therefore not an attempt by
Congress to abrogate [the state’s] sovereign
immunity, but to goad [the state] to waive its
sovereign immunity by accepting federal funds
conditioned on accepting liability.” Sossamon, 560
F.3d at 329. The two distinct methods should not be
confused. One requires only action by the Congress;
the other requires knowing action by the state.

Pet. App. 25a

(internal marks and citations omitted).

RLUIPA conditions the state’s
acceptance of federal funds, in part, on its
consent to suit for “appropriate relief.” 42
U.S.C. § 2000cc-2(a). As we concluded above,
this phrase plainly creates a private cause of
action against the state “for at least some
form of relief.” Madison, 474 F.3d at 130. The
phrase, “appropriate relief,” is broad enough
to include both injunctive’ relief and
compensatory damages, but the question is
whether the language unambiguously extends
to monetary claims. There is a split of circuit
authority on this issue. In Madison v.
Virginia, the Fourth Circuit held that in the
sovereign immunity waiver context, the
“appropriate relief” language “falls short of
the unequivocal textual expression necessary
to waive the State immunity from suits for
damages.” Id. See also Sossamon, 560 F.3d at
331 (holding “RLUIPA is clear enough to
create a right for damages on the cause- of-
action analysis, but not clear enough to do so
in a manner that abrogates state sovereign
immunity from suits for monetary relief”);
Cardinal v. Metrish, 564 F.3d 794, 801 (6th

Cir. 2009) (“RLUIPA does not contain a clear
indication that Congress unambiguously
conditioned receipt of federal prison funds on
a state’s consent to suit for money damages.”);

Nelson v. Miller, 570 F.3d 868, 884 (7th Cir.

Pet. App. 26a

2009) (statutory reference to “‘appropriate
relief’. . . does not provide the ‘unequivocal
textual expression’ necessary to effect”
waiver of state sovereign immunity for money
damages). Accord Webman v. Fed. Bureau of
Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir.
2006) (construing the identical language in
RFRA as not conveying an unambiguous
waiver of sovereign immunity from money
damages).

In contrast, the Eleventh Circuit
concluded in Smith v. Allen “that, absent an
intent to the contrary, the phrase ‘appropriate
relief’ in RLUIPA encompasses monetary as
well as injunctive relief.” 502 F.3d at 1271. In
reaching this conclusion, the court relied on
Franklin v. Gwinnett County Pub. Schs., 503
U.S. 60 (1992), which = articulates a
presumption in favor of making a// appropriate
remedies available when Congress uses broad
language in crafting remedies. See Smith, 502
F.3d at 1270. In Franklin, however, the
Supreme Court was dealing with an implied
cause of action for intentional discrimination
and had no occasion to discuss whether any
statutory language was specific enough to
effectuate a knowing waiver of state sovereign
immunity by its acceptance of the federal
benefit. Franklin did not involve a question of
state sovereign immunity. Cardinal, 564 F.3d

at 800-801. In a case decided after Franklin,

Pet. App. 27a

the Supreme Court itself rejected any idea
that sovereign immunity could be waived by

anything other than the “unequivocal
expression of elimination of sovereign
immunity ... in statutory text.” Lane, 518

U.S. at 192 (internal marks omitted). For
these reasons, we decline to follow the
analysis set forth by the Eleventh Circuit in
Smith. We agree, instead, with the analysis of
the Fourth, Fifth, Sixth, and Seventh Circuits
that RLUIPA’s “appropriate relief” language
does not unambiguously encompass monetary
damages so as to effect a waiver of sovereign
immunity from suit for monetary claims under
Section 3 by acceptance of the federal money.
See, e.g., Madison, 474 F.3d at 131 (quoting
Lane, 518 U.S. at 196, for the proposition that
“Congress is, of course free to condition funds
upon a waiver of ‘sovereign immunity against
liability without waiving [a State’s] immunity
from monetary damages awards’” (alteration
in original)).

The district court reached this same
conclusion but then reasoned that, although
RLUIPA does not waive sovereign immunity
from monetary damages, the waiver is
nevertheless accomplished by the
unambiguous language of CRREA. The prison
officials argue that this conclusion is in error.
CRREA explicitly provides that a state does
not retain its Eleventh Amendment immunity

Pet. App. 28a

with regard to the violation of certain named
civil rights statutes (namely, the
Rehabilitation Act, Title IX, the Age
Discrimination Act, and Title VI of the Civil
Rights Act), or “the provisions of any other
Federal statute prohibiting discrimination by
recipients of Federal financial assistance.” 42
U.S.C. § 2000d-7(a)(1). The district court
concluded that, although RLUIPA is not listed
specifically in CRREA, RLUIPA is within its
catch-all phrase as a _ federal statute
“prohibiting discrimination,” id., and thus,
CRREA’s’ explicit waiver of sovereign
immunity applies equally to RLUIPA. We
respectfully disagree with that analysis.

The institutionalized persons section of
RLUIPA at issue in this suit (Section 3), does
not unambiguously prohibit discrimination-it
prohibits substantial burdens on religious
exercise, without regard to discriminatory
intent. Congress understands how to create a

5 The district court cited the Seventh Circuit’s
statement that “RLUIPA follows in the footsteps of a
long-standing tradition of federal legislation that
seeks to eradicate discrimination and is ‘designed to
guard against unfair bias and infringement on
fundamental freedoms.’” Charles, 348 F.8d at 607
(quoting Mayweathers, 314 F.3d at 1067). Context
demonstrates, however, that this statement was not
made within a textual analysis of the scope of
appropriate relief under RLUIPA but in the distinct
and different discussion of whether RLUIPA is valid
Spending Clause legislation in pursuit of the general

Pet. App. 29a

federal statute prohibiting discrimination, and
it did so within RLUIPA’s separate section
(Section 2) dealing with land use regulations.
Section 2 of RLUIPA prohibits
“discrimination” against religious institutions
“on the basis of religion” with regard to land
use regulations and prohibits land use
regulations that treat a religious institution
“on less than equal terms with a nonreligious
assembly or institution.” 42 U.S.C. §
2000cc(b)(1), (2). Similar language,
prohibiting discrimination or requiring equa!
treatment, is conspicuously omitted from the
RLUIPA protections afforded to
institutionalized persons under Section 3. It
is appropriate to consider these sections
independently of one another. See Cutter, 544
U.S. at 715 n.3 (declining to address the land
use section of RLUIPA, and independently
considering the constitutional validity of the
institutionalized persons section under the
Establishment Clause).

The antidiscrimination statutes listed in
CRREA all explicitly prohibit discrimination,
and the institutionalized persons section of
RLUIPA does not fit neatly within that genre.
See Madison, 474 F.3d at 1383. Absent an
unequivocal textual indication that CRREA

welfare. As such, this statement is not authoritative
in determining the scope of the state’s waiver of
immunity.

Pet. App. 30a

applies to Section 3 institutionalized-person
RLUIPA claims, we will not rely on CRREA
to effectuate a knowing waiver of sovereign
immunity from money damages on those
claims.

Because the state did not waive its
immunity from suit for monetary damages by
accepting federal funds on the conditions set
forth in the institutionalized persons section
of RLUIPA (Section 3), we reverse the
district court’s denial of summary judgment to
the prison officials in Van Wyhe’s suit, and
remand for entry of judgment in favor of Tim
Reisch, Douglas Weber, and Jennifer Wagner
on the RLUIPA official- capacity claims.
Similarly, this conclusion requires the entry of
summary judgment in favor of the prison
officials on Sisney’s official-capacity RLUIPA
claims for money damages against Tim Reisch,
Douglas Weber, Dennis Block, and Jennifer
Wagner.

3. Surviving KLUIPA Claims

We next consider the surviving official
capacity RLUIPA claims.® No claims survive

6 The district court concluded that RLUIPA does
not permit suit against state officials in their
individual capacity because the Spending Clause
authority by which RLUIPA was enacted will not
support an action against an official in his or her

Pet. App. 3la

in Van Wyhe’s suit. In Sisney’s suit, three
claims for injunctive relief survive the denial
of the succah, the denial of additional group
religious study time, and the denial of a tape
player in his cell. On each of these, the
district court found questions of material fact
existing on the issue of whether the prison
officials had used the least restrictive means
of achieving the compelling governmental
interests. As already noted, our jurisdiction
in this interlocutory appeal extends only to
the extent the denial of summary judgment
turns on an issue of law and not disputes of
fact. To make out a prima facie RLUIPA
claim against a state official, an inmate “must
‘show, as a threshold matter, that there is a
substantial burden on his ability to exercise
his religion.’” Singson v. Norris, 553 F.3d 660,
662 (8th Cir. 2009) (quoting Murphy, 372 F.3d
at 988). Absent this showing, the state retains
its sovereign immunity. The district court did
not identify any material questions of fact in
dispute on this threshold issue. We therefore
have interlocutory jurisdiction to consider this
threshold legal issue on each claim, construing
the facts in the light most favorable to Sisney.
See Prescott v. Little Six, Inc., 387 F.3d 753,
765-56 (8th Cir. 2004) (noting we have

“jurisdiction to decide closely related issues of

individua: capacity. See Kinman v, Omaha Pub, Sch.
Dist., 171 F.3d 607, 610-11 (8th Cir. 1999) That

conclusion is not at issue in this appeal

Pet. App. 32a

law, i.e., claims that are inextricably
intertwined with or necessary to ensure
meaningful review of the sovereign immunity
issue” (internal marks omitted)), cert. denied,
544 U.S. 1032 (2005).

RLUIPA “defines ‘religious exercise’ to
include ‘any exercise of religion, whether or
not compelled by, or central to, a system of
religious belief.’” Cutter, 544 U.S. at 715
(quoting § 2000cc-5(7)(A)). We have held,
largely consistent with our First Amendment
cases, that to demonstrate a_ substantial
burden on the exercise of religion, a

government policy or action ““must
significantly inhibit or constrain [religious]
conduct or [religious] expression .. .; must

meaningfully curtail a person’s ability to
express adherence to his or her faith; or must
deny a person reasonable opportunities to
engage in those activities that are
fundamental to a person’s religion.’” Patel v.
U. S. Bureau of Prisons, 515 F.3d 807, 813 &
n.7 (8th Cir. 2008) (quoting Murphy, 372 I'.3d
at 988). We alter this definition somewhat in
the RLUIPA context, mindful that RLUIPA’s
broad protection of “religious exercise”
extends even to religious practices that are
not “compelled by, or central to” a certain
belief system. Id. at 813 n.7; see Gladson, 551
F.3d at 882-33 (acknowledging that we apply
the definition of substantial burden set forth

Pet. App. 33a

in Murphy and as subsequently clarified by the
Supreme Court in Cutter, 544 U.S. at 725 n.13,
to “bar[{] inquiry into whether a particular
belief or practice is ‘central’ to a prisoner’s
religion”).

a. The Suceah: The officials argue that
Sisney failed to make a sufficient threshold
showing of a substantial burden because he
submitted only his own conclusory statement
as evidence. In response to the summary
judgment motion, Sisney explained the
religious significance of the succah (or tent),
and he described it as being “a mandatory part
of the Sukkot Festival” and essential to the
practice of his Jewish faith.? (Appellants’
App. at 807.) This assertion is not devoid of
the necessary factual allegations—the succah is
an expression of Sisney’s faith during this
religious festival and this expression of his
faith is significantly inhibited, constrained, or
altered by the denial of his request to use the
succah during the Festival of Sukkot. Sisney
provided some explanation of his faith and the
religious exercise at issue. He did not rest on
a conclusory allegation that his religious

7 Sukkot is “a Jewish religious festival of
thanksgiving celebrated originally as an autumn
harvest festival that is commemorative of the
temporary shelters of the Jews during their
wandering in the wilderness.” Webster’s Third New

International Dictionary 2287 (1986). It is also called
the Feast of Booths and the Feast of Tabernacles. Id.

Pet. App. 34a

exercise was “substantially burdened,” but
there is evidence from which such a conclusion
could be drawn. Whether Sisney can establish
the truth or sincerity of this belief is a matter
to be decided at trial, but we cannot say that
his evidence is insufficient as a matter of law
to withstand summary judgment. See Murphy,
372 F.3d at 988 (relying on the inmate’s
assertions to reverse a grant of summary
judgment). The district court did not err as a
matter of law by concluding that Sisney met
his threshold burden with regard to the succah
request. We lack jurisdiction to consider
further issues on which the district court
found material questions of fact.

b. Group Study Time: The prison
officials argue that Sisney did not meet the
threshold showing of a substantial burden on
his religious exercise with regard to his
request for additional weekly meeting time for
Torah, Kabbala, and Hebrew language studies.
The three-hour group worship and study time
currently allotted resulted from Sisney’s prior
application for an additional 90 minutes each
week to study the Torah. Now, Sisney asserts
that the three hours currently provided is
inadequate for group religious study because
the time is consumed with Jewish worship
services and Torah studies, leaving not enough
time to study the Hebrew language. Sisney
states that while Torah study is foremost and

Pet. App. 35a

cannot be exchanged for the Hebrew study, his
religion considers learning Hebrew to be a
“mikvah,” or “good deed.” (Appellants’ App.
at 117.)

The prison must permit a reasonable
opportunity for an inmate to engage in
religious activities but need not provide
unlimited opportunities. In Gladson, Wiccan
inmates argued that a three-hour limitation on
their celebration of a religious. holiday
substantially burdened their religious exercise
under RLUIPA. 551 F.3d at 834. We held
that the inmates “failed to offer any evidence”
that three hours for their religious holiday
celebration “significantly inhibits or
constrains their conduct or _ expression;
meaningfully curtails their ability to express
adherence to their faith; or denies them
reasonable opportunities to engage in those
activities that are fundamental to _ their
religion.” Id. Additionally, we have held in
the First Amendment context that, where an
inmate was permitted three hours of group
worship time, the denial of one extra hour per
week did nut substantially burden the inmate’s
religious exercise: “three hours of group
worship per week provided [the inmate] with a
reasonable opportunity to exercise’ his
religious freedom.” Wier v. Nix, 114 F.3d 817,

821 (8th Cir. 1997). We do not demand
doctrinal justification to support the desired

Pet. App. 36a

religious exercise, but the inmate does hear
the burden of establishing a suwstantial
burden on a religious exercise. Gladson, 551
F.3d 833.

The record does not support a conclusion
that Sisney’s religious exercise of group study
has been substantially burdened. He is
permitted three hours of group study and
worship time with other Jewish inmates and is
additionally permitted to study the language
and the religion individually in his cell. His
explanation that the time is “inadequate” does
not indicate how the denial of extra group
study time significantly inhibits or curtails
his religious expression or deprives him of
a meaningful opportunity to engage in his
religious activities. We do not question his
assertion that learning to speak Hebrew is a
“good deed” that will make his religious
exercise more meaningful, but he has not
asserted facts from which a juror could
conclude that the denial of additional group
time to study the language places a
substantial burden on his religious exercise.
The prison officials (Weber, Block, and
Wagner) are therefore entitled to summary
judgment on this claim.

ec. The Tape Player: The prison officials

denied Sisney’s request to have and use a
tape player in his cell for religious language

Pet. App. 37a

studies. Although Sisney’s religion deems it
a “good deed” to speak Hebrew, he does not
assert that the tape player itself is a religious
item or that having one in his cell is the only
way he can learn the language necessary to
his religious conduct. The record indicates
that Sisney has reasonable access to a tape
player during the group meeting times
(though he has no tapes) and that he is
permitted to study the language in his cell
with books. RLUIPA does not require the
prison to permit an inmate to possess every
tangential item of property that could aid the
inmate’s religious exercise or _ learning.
Depriving Sisney of a tape player in his cell
does not significantly inhibit his religious
expression, meaningfully curtail his ability to
adhere to his faith, or deprive him of a
reasonable opportunity to engage in that
religious activity. Sisney has not set forth
sufficient evidence to demonstrate that his
religious exercise is substantially burdened
by the denial of a tape player in his cell, and
accordingly, the prison officials (Weber, Block
and Wagner) are entitled to summary
judgment on this claim.

C. First Amendment Free Exercise

Where an inmate has not put forth
sufficient evidence under RLUIPA to
demonstrate a substantial burden on his

Pet. App. 38a

religious exercise, his claim fails under the
Free Exercise Clause of the First Amendment
as well. See Patel, 515 F.3d at 813. Thus, for
the reasons stated above, the prison officials
are also entitled to summary judgment on
Sisney’s official-capacity First Amendment
claims for extra group study time and for a
tape player in his cell.

As to the request for a succah, the
district court appropriately considered this
claim under the First Amendment standard
set forth in Turner, 482 U.S. at 89-90. and
found material questions of fact in dispute.
For this reason, we lack jurisdiction in this
interlocutory appeal to consider this issue
further.

D. Retaliation

Interim Warden Slykhuis and Cultural
Activities Coordinator Wagner appeal the
district court’s denial of summary judgment
and qualified immunity on Sisney’s official-
capacity and individual-capacity retaliation
claims against them. We have held that
conduct that retaliates against the exercise of
a constitutionally protected right, such as
access to the courts, is actionable even if the
alleged retaliatory conduct does not itself rise
to the level of a constitutional violation. Cody
v. Weber, 256 F.3d 764, 771 (8th Cir. 2001).

Pet. App. 39a

“The violation lies in the intent to impede access
to the courts. Id. (internal marks omitted).

The district court concluded that genuine
issues of material fact exist on Sisney’s retaliation
claims. Slykhuis and Wagner do not argue that
Sisney’s right against retaliation is not clearly
established but that their conduct was reasonable
and justified, or did not occur as Sisney alleges.
On this, the district court found the existence of
material questions of fact. These arguments
present the type of factual disputes that

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1468%3A1. Public record. Not legal advice.