Opposition Brief — Reisch v. Sisney

2

No. 69-953

Jn the Supreme Court of the GQnited States

TIM REISCH, ET AL., PETITIONERS

2,

CHARLES E. SISNEY, ET AL.

ON CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicttor (se tera }

Counsel of Record

TONY WEST

Assistant Attorney Generul

MICHAELS RAAB

LOWELL V STURGILL JR

Attorneys

Department of Justice

Washington, DC 20530-0001

SupremeCtBrrefs@ usdo? Jor

Le

i 4

i

QUESTION PRESENTED

Whether Congress acted within its authority under

the Spending Clause of the Constitution, Art I, § 8, Cl.

1, when it enacted the institutionalized persons provi-

sions of the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. 2000cce et seq.

TABLE OF CONTENTS

Opinions below ae

Jumsdiction

Statement |

Argument es o

Conclusion er 10

TABLE OF AUTHORITIES

ms

( sases

Benning v Georgia, 391 F.3d 1299 (11th Cur 2004} ... 9

Charles vy Verhagen, 348 F.3d 601 (7th Cir.

2003) . gel PEG aren . 4,7,9,10

College Sav Bankyv Florida Prepaid Postsecondary

Educ Expense Bd , 527 US 666 (1999) 5

Cutter v Wilkinson, 423 F.3d 579 (6th Cir. 2005)

Fullilove v Klutznick, 448 US 448 (1980)

Lau v. Nichols, 414 U.S. 563 (1974)... S5 ye

~—

7)

Madison v. Virginia, 474 F 3d 118 (4th Cir 2006) 4,7

Massachusetts vy United States, 435 U.S. 444 (1978) 6

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir

2002), cert. denied, 440 U S. 815 (20038) 47,910

Pennhurst State Sch & Hosp v Halderman.,

451 US 1 (1981)

Printz vy United States, 521 U S. 898 (1997) 5

Sabri v. United States, 541 U 8S. 600 (2004) owe

South Dakota y Dole, 483 U.S 203 (1987) . 1, 5, 6, 10

Steward Mach Co v. Davis, 301 US 548 (1937) 6

United States vy Butler,297 US 1(1936) . 2)

Constitution and statute: Page

$8, Cl 1 (Spending Clause) 3,4.5, 6, 7, 8

Amend. X —

Amend XI %

Age Discrimination Act of 1975, 42 U.S C. 6101

Ct S¢ Gg ee wee

Civi] Rights Act of 1964, Tit. VI, 42 U.S C 2000d

et seq es a i,8

Education Amendments of 1972, Tit. IX, 20 USC

1681 etseg . . cari 7

Rehabilitation Act of 1973 § 504,29 USC 794

Religious Land Use and Institutionalized Persons Act

of 2000, 42 US C. 2000ce et seg . 3

42 US.C 2000cc-1 (§ 3) . a

12 U.S C. 2000ce-1(aX1) =

42 USC. 2000ce-1l(aK2) 2

2TISC 2000ce-1(b)1) LQ

In the Supreme Court of the Gnited States

No. (9-953

TIM REISCH, ET AL., PETITIONE!

IN CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEA

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet App. la-40a)

is reported at 581 F.3d 639.° The opinion of the district

court (Pet. App 41a-142a) is reported at 533 F. Supp 2d

G5?

JURISDIC™ION

The judgment of the court of appeals was entered on

september 10, 2009. On December 1, 2009, Justice Alto

extended the time within which to file a petition for

a writ of certiorari to and including January 8, 2010,

and the petition was filed on that date. Petitioner

Charles Sisney filed a petition for a writ of certiorari in

Ajl references to “Pet App” are to the appendix to the petition ft

rene tf — — - XT er)

iwrit of certioran in No O9-&82Z)

No. 09-821 on January 8, 2010. The conditional cross

petition for a writ of certiorari was filed on February 9,

2010 The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1)

STATEMENT

1. The underlying facts are fully set forth in the gov

ernment’s response to the petition for a writ of certio-

rari (09-821 Resp. 1-7) and will only be briefiy restated

here. Congress enacted the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), 42

U.S.C. 2000ce et seq., to provide statutory protection

against religious discrimination, unequal treatment of

religions in the provision of accommodations, and unjus-

tified infringement of the free exercise of religion. Sec

tion 3 of RLUIPA, 42 U.S.C. 2000ec-1, applies in the

institutionalization context and provides that “

njo gov

ernment shall impose a substantial burden on te reli-

gious exercise of a person residing in or confined to an

institution,” unless the burden “is in furtherance of a

compelling governmental interest,” and “is the least

restrictive means of furthering” that interest. 42 U S.C

2000cc-1(a)(1) and (2).

2. Petitioner in the underlying petition, Charle:

Sisney, is serving a life sentence in the South Dakota

State Penitentiary and filed suit alleyiny, enter alza, that

cross-petitioners violated his rights under RLUIPA in

Various respects. Pet. App 3a, 43a. The district court

granted summary judgment to cross-petitioners on peti

tioner’s individual-capacity damages claims under

RLUIPA, zd. at 58a-61a, and held that any recovery on

his official-eapacity damages claims would be limited to

nominal damages, 7d. at 6Za-78a. The court also granted

summary judgment to cross-petitioners on all but three

3

of petitioner’s official-capacity claims for injunctive re-

hef under RLUIPA, /d at 82a-102a, 112a-136a, Finally,

the court upheld the constitutionality of RLUIPA, re

jecting cross-petitioners’ contention that Congress ex-

ceeded its authority under the Spending Clause in enact-

ing the statute and that the statute violates the Tenth

Amendment of the Constitution and the separation of

powers doctrine. /d at 102a-112a.

3. Petitioner filed an interlocutory appeal, and the

court of appeals upheld the district court’s econelusion

that Congress validly enacted RLUIPA’s institutional-

ized persons provisions pursuant to its authority under

the Spending Clause. Pet. App. 3a, 14a-23a. The court

of appeals held, however, that private suits for money

damages under RLUJPA are barred by the Eleventh

Amendment of the Constitution. /d at 23a-380a. The

court of appeals further held that the district court

erred in refusing to dismiss some, but not all, of peta-

tioner’s official-capacity claims for injunctive rehef. /ad

at 538a-39a

ARGUMENT

Cross-petitioners ask this Court to review the court

of appeals’ determination that Congress enacted the

institutionalized persons provisions of RLUIPA, 42

U.S.C 2000cc et seg , pursuant to its authority under the

Spending Clause. That determination does not merit

further review because it 1s correct and because it does

not conflict with any decision from this Court or from

any other court of appeals.”

The petition for a writ of certiorari in Cardinal v Metrish, No

09-109 (filed July 22, 2009), asks this Court to remew the question

whether an individual may sue a State or a state official in her official

capacity for damages for a violation of RLUIPA At ths Court’s

4

1. To date, six courts of appeals, including the court

of appeals in this case, have held that Congress validly

enacted RLUIPA’s institutionalized persons provisions

pursuant to its authority under the Spending Clause.

See Madison v. Varginia, 474 F.3d 118, 125 (4th Cir.

2006); Cutter v Wilkinson, 423 F.3d 579, 584-590 (6th

Cir. 2005); Benning v Georgia, 391 F.3d 1299, 13805-1308

(11th Cir. 2004), Charles v. Verhagen, 348 F 3d 601, 606-

610 (7th Cir, 2008), Mayweathers v. Newland, 314 F.3d

1062, 1066-1070 (9th Cir. 2002), cert denied, 540 U.S.

815 (2003); Pet. App. 14a-c3a. No court of appeals has

held otherwise, and cross-petitioners do not assert that

the court of appeals’ decision conflicts with that of any

other circuit court. That alone is a sufficient reason for

this Court to deny the cross-petition for a writ of certio-

rari.

2. Further review of the court of appeals’ rejection

of cross-petitioners’ constitutional challenge to RLUIPA

is also not warranted beeause the court of appeals was

correct.

a. The Spending Clause authorizes Congress to “lay

and collect Taxes, Duties, Imposts and Excises, to pay

the Debts and provide for the common Defence and gen

eral Welfare of the United States.” U.S. Const. Art. I,

§ 8, Cl. 1. Pursuant to that authority, and within specific

limits, “Congress may attach conditions on the receipt of

federal funds,” South Dakota v. Dole, 483 U.S. 2038, 206

(1987) (citing F’ulizlove v. Klutznick, 448 U S. 448, 474

invitation, the United States filed a bref 4s amicus cure in Cardinal

urging that further review be granted on that question Because the

same question is presented by the petition for a wnt of certioran filed

in this case, the United States filed a bnef urging this Court to hold the

petition for a wnt of certrorar) in this case pending the Court’s dispo-

sition of the petition in Cardinal

D

(1980) (plurality opinion) (Burger, C.J )), thereby “fix-

[ing] the terms on which it shall disburse federal money

to the States,” Pennhurst State Sch & Hosp v Halder-

man, 451 US. 1, 17 (1981). This Court has held that the

spending power is “not limited by the direct grants of

legislative power found in the Constitution,” but can be

used to achieve broad policy objectives beyond Ar

ticle I’s “enumerated legislative fields.” Dole, 483 U.S.

at 207 (quoting United States v. Butler, 297 US 1, 65-66

(1936)); see Printz v United States, 521 U.S. 898, 936

(1997) (O’Connor, J., concurring) (contrasting impermis-

sible command and conditaon on acceptance of federal

funds). Thus, it 1s settled law that “Congress may, in

the exercise of its spending power, condition its grant of

funds to the States upon their taking certain actions that

Congress could not require them to take, and that accep-

tance of the funds entails an agreement to the actions.”

College Sav Bank vy. Florida Prepaid Postsecondary

Educ Eaupense Bd , 527 U.S. 666, 686 (1999).

To be sure, Congress's authority under the Spending

Clause 3s not unlimited, in Dole, this Court identified

four limitations on Congress’s use of that power. First,

the Spending Clause by its terms requires that Con-

gress legislate in pursuit of “the general welfare ” 483

U.S. at 207 (quoting U.S. Const Art. I, § &, Cl. 1). See-

ond, if Congress places conditions on the States’ receipt

of federal] funds, it “must do so unambiguously ... ,

enabl[ing] the States to exercise their choice knowingly,

cognizant of the consequences of their participation ”

Iind (brackets in original) (quoting Pennhwrst, 451 U.S.

at 17). Third, this Court’s cases “have suggested (with-

out significant elaboration) that conditions on federal

grants might be illegitimate if they are unrelated ‘to the

federal interest in particular national projects or pro-

6

grams.” /bid. (quoting Massachusetts v. Unrated States,

435 U.S 444, 461 (1978) (plurality opinion)). And fourth,

the obhgations imposed by Congress may not violate any

independent constitutional provisions. /d at 208 °

b Cross-petitioners do not challenge the validity of

RLUIPA under the second, third, or fourth prongs of

the Dole inquiry. Rather, cross-petitioners argue

(Cross-Pet. 8) only that RLUIPA “constitutes spending

that 1s not for the ‘general welfare’” (emphasis omitted).

Cross-petitioners are incorrect. They argue (Cross-Pet.

18) that “Congress may only spend money for national,

rather than local purposes” Of course, RLUIPA 1s

not itself a spending statute; it places conditions on

the receipt of al] federal funds, but does not appropri-

ate funds for any purpose. Even if cross-petitioners

were correct that Congress may exercise its authority

under the Spending Clause only for a purpose that is

national in scope, the purpose of RLUIPA—to prohibit

the use of any federal funds to subsidize discriminatory

or unreasonable restrictions on institutionalized per-

sons’ religious exercise—is national] in scope and bene

fits the general welfare. Indeed, all the courts of ap-

* The Court in Dole also observed that. “in some circumstances the

financial inducement offered by Congress might be so coercive as to

pass the point at which ‘pressure turns into compulsion’” 483 US at

211 (quoting Steward Mack Co v Davis, 301 U S 548, 590(1937)) The

Court did not, however, suggest that Congress lacks authonty to place

relevant conditions on the receipt of federal funds whenever the value

of the federal offer is too tempting to decline To the contrary, the

Court noted that every congressicnal spending statute “is in some mea-

sure a temptation,” 7¢ at 211 (quoting Steward Mach Co ,301 US at

589), and that “to hold that motive or temptation is equivalent to coer-

cion [would be] to plunge the law tn endless difficulties " Jb:d. (quoting

Steward Mach Co , 301 US at 589-590) RLUIPA is not unconstitu-

tionally coercive and cross-petitioners do not contend otherwise

é

peals to have addressed this issue have recognized that

RLUIPA’s institutionalized persons provisions are an

uncontroversial invocation of Congress’s spending pow-

er to “protect{] religious worship in institutions from

substantial and illegitimate burdens.” Mayweathers,

314 F.3d at 1066; see Madison, 474 F.3d at 125 (“[W]e

have no trouble concluding that RLUIPA’s ‘attempt

to protect prisoners’ religious mghts and to promote

the rehabilitation of prisoners falls squarely within Con-

gress’ pursuit of the general welfare.’’”) (quoting

Charles, 348 F.3d at 607); see also Cutter, 423 F.3d at

O85.

In Law v. Nichols, 414 U.S. 563 (1974), this Court

recognized that Congress validly exercised its authority

under the Spending Clause when it enacted Title VI of

the Civil Rights Act of 1964, 42 U.S.C 2000d et seq.,

which prohibits diserimination on the basis of race by

recipients of federal funds. The Court explained that

Congress may use its authority under the Spending

Clause to ensure that federal funds do not flow to gov-

ernmental entities that engage in discrimination because

such funding would tend to “eneouragel|], entrench{],

subsidizel |], or resultL] in racial discrimination.” Laz,

414 U.S. at 569 (citation omitted). Like the spending

conditions at issue in Lax, RLUIPA’s institutionalized

persons provisions ensure that federal funds will not be

used to subsidize state operations involving conduct that

Congress has no wish to support, including discrimina-

tion against religion and the unjustified imposition of

substantial burdens on an inmates’ religious exereise.

RLUIPA is one of many statutes enacted pursuant to

the Spending Clause that 1s designed to ensure that re-

cipients of federal funds do not engage in discriminatory

behavior. See,eg,20U.8S.C 1681 et seq (Title LX of

ra!

Education Amendments of 1972 prohibits discrimination

on the basis of sex in all education programs receiving

federal funds), 29 U.S.C 794 (Section 504 of the Reha-

bilitation Act of 1973 prohibits discrimination on the

basis of disability by all recipients of federal funds); 42

U.S.C. 6101 et seq. (Age Discrimination Act of 1975 pro-

hibits discrimination on the basis of age by recipients of

federal funds).

Cross-petitioners argue (Cross-Pet. 19) that the con-

ditions RLUIPA places on the receipt of federal funds

cannot bind the State of South Dakota in this case be-

cause “RLUIPA 1s based on spending that is for a

purely local rather than national purpose, and therefore

exceeds Congress’ power under the Spending Clause as

originally understood ” /hbad Cross-petitioners make no

attempt to identify the federal funds that South Dakota

applied for and received, nor do cross-petitioners sug-

gest that the receipt of such funds was in any way invol-

untary. Nevertheless, cross-petitioners assert (7d. at 18)

that any federal financial assistance that would be impli-

cated 1n this case cannot have been spent for the general

welfare because it was ultimately received by the State’s

correctional system and “(t]he funding of state prisons

is inherently local spending because state pmsons house

those individuals who have committed erimes against the

people of the State, as defined by the Legislature of the

State ”

By cross-petitioners’ logic, virtually no Spending

Clause legislation would be constitutional because such

legislation almost always provides for funding at a local

level, with conditions that ensure that federal money

does not subsidize activity Congress considers detrimen-

tal to the general welfare. For example, the application

of Title VI that this Court upheld in Lau involved fed-

Y

eral spending that was received by public schools. 414

U.S. at 568. Although cross-petitioner contends (Cross-

Pet. 7) that Congress may not use its spending power to

pursue objectives related to education, this Court had no

difficulty holding in Laz that Title VI is within Con-

gress’s spending clause power, noting that “|[wJhatever

may he the limits of that power, they have not been

reached here.” 414 US. at 569 (citation omitted).

Cross-petitioners have not offered any reason why a

State’s voluntary acceptance of federal funding for its

prison system should be subject to a different rule. The

fact that discriminatory conduct 1s effected through local

entities does not diminish either its harm to the general

welfare or Congress’s legitimate interest in ensuring

that federal funds do not subsidize such behavior * In-

deed, “Congress has a strong interest in making certain

that federal funds do not subsidize conduct that in-

fringes individual liberties, such as the free practice of

one’s religion,” and “[t]he federal government also has

a strong interest in monitoring the treatment of federal

inmates housed in state prisons and 1n contributing to

their rehabilitation.” Mayweathers, 314 F.3d at 1067;

see Benning, 391 F.3d at 1307, Charles, 348 F.3d at 608

RLUIPA’s institutionalized persons provisions thus

“follow[]1n the footsteps of a long-standing tradition of

federal legislation that seeks to eradicate discrimination

and is ‘designed to guard ayainst unfair bias and 1n-

Because money 1s fungible, that distinct federal interest exists re-

pardless of whether the funds directly finance the prosembed opera-

tions, or whether they make it possible by freeing up funds from other

operations Sabriv United States, 541 US 600, 605-606 (2004)

10

fringement on fundamental freedoms.’” Charles, 348

F.3d at 607 (quoting Mayweathers, 314 F.3d at 1067).°

CONCLUSION

The conditional cross-petition for a writ of eertiorari

should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

MICHAELS RAAB

LOWELL V STURGILL JR

Attorneys

APRIL 2010

In addition, as the courts of appeals that have considered the

question have unanimously held, RIL.UTPA satisfies the other elements

of the Dole inquiry—and cross-petitioners do not argue otherwise

RLUIPA’s institutionalized persons provisions unambiguously put

recipients of federal grants on notice that those provisions apply to any

“program or activity that receives Federal financial assistance ”

42USC 2000ec-1(b)(1) RILUIPA’s conditions on the receipt of federal

funds are directly related to the statute’s purpose of preventing

relugnous disecmmination tn institutions that accept those funds And

RILUTPA’s institutronalized persons provisions do not. “induce the

States to engage in activities that would themselves be unconstitu

tional” Dole, 4883 US at 210