Availability of Money Damages Under the
Religious Freedom Restoration Act
Section 3(c) o f the R eligious Freedom R estoration Act, w hich m akes available “appropriate r e lie f ’ in
ju d icial p ro ceed in g s against federal and state governm ent entities, does not w aive or abrogate the
so v ereig n im m unity o f federal and state governm ents against the aw ard o f money dam ages.
October 7, 1994
M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l
W e have considered whether the Religious Freedom Restoration Act of 1993
(“R FR A ”), Pub. L. No. 103-141, 107 Stat. 1488, authorizes the recovery of money
dam ages in suits against the United States or state governments. The specific
question we have addressed is whether section 3(c) of RFRA, which makes avail
able “appropriate re lie f’ in judicial proceedings against federal and state govern
ment entities,1 waives or abrogates the sovereign immunity that would otherwise
bar the award of m oney damages against the United States and state governments.
On this point, we are in agreement with the conclusion o f the Second W orking
Draft (“W orking D raft”) prepared by the D epartm ent’s RFRA Task Force:
R FR A ’s reference to “appropriate re lie f’ is not sufficiently unambiguous to abro
gate or w aive sovereign immunity for damages. S ee W orking Draft at 43-44.
“W aivers o f the Government’s sovereign immunity, to be effective, must be
unequivocally expressed.” United S tates v. N ord ic Village, Inc., 503 U.S. 30, 33
(1992) (internal quotation marks and citations omitted); see also U nited States v.
Idaho, ex rel. D ir., D e p ’t o f Water Resources, 508 U.S. 1, 6 (1993). Under this
“unequivocal expression” standard, a statutory provision waives sovereign immu
nity for m onetary claims only if there is unavailable any plausible reading o f the
provision that would not authorize m onetary relief. N ordic Village, 503 U.S. at 34,
37. It is not enough, in other words, that the provision in question can be read, and
even read naturally, to authorize m onetary recovery; so long as the provision also
is “susceptible” o f an interpretation that does not authorize monetary relief, there
has been no effective waiver. Id. The standard for finding congressional abroga
tion o f state Eleventh Amendment immunity from damages awards is substantially
the same. S ee id. at 37; see also H offm an v. Connecticut D e p ’t o f Income M ain te
* E d i to r s N ote. In C ity o f B oerne v F lores, 521 U.S. 507 (1 997), the Suprem e C ourt found the Religious
F reedo m R esto ratio n A ct to be unconstitutional as applied to state governm ents H ow ever, RFRA continues
to ap p ly to actio n s ag ain st the federal governm ent.
1 S e c tio n 3 (c) p ro v id es that “ [a] person w h o se religious ex ercise has been burdened in violation o f this
section m ay assert lhat v io latio n as a claim o r d efen se in a ju d ic ia l proceeding and obtain appropriate relief
ag ain st a g o v e rn m e n t.” “G o v ern m en t” is d e fin e d in section 5(1 ) o f R FR A to include both the U nited States
and state g o v ern m en ts.
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A va ilability o f M oney D am ages U nder the R eligious F reedom R estoration A ct
nance, 492 U.S. 96, 101-02 (1989) (plurality opinion) (analyzing provision at issue
in Nordic Village under Eleventh Amendment); Dellmuth v. Muth, 491 U .S. 223,
228 (1989) (abrogation of Eleventh Amendment immunity must be “unmistakably
clear in the language o f the statute”). This strict standard applies even to statutes
that are remedial in nature. See Library o f Congress v. Shaw, 478 U.S. 310, 318
(1986) (applying strict construction rule to find that Title VII does not waive im
munity with respect to recovery o f interest).
RFRA’s use o f the phrase “appropriate re lie f’ does not meet the “unequivocal
expression” standard. To be sure, “appropriate re lie f’ could be read broadly to
encompass monetary damages. But such language does not clearly and unequivo
cally reflect an intent to waive sovereign immunity for money damages. T he term
“appropriate re lie f’ inherently conveys the possibility that the nature and scope o f
the remedy for different conduct by different defendants could be subject to vari
ance. Accordingly, “appropriate re lie f’ against a sovereign defendant easily can be
interpreted to encompass only equitable, non-monetary relief. This narrower con
struction is further supportable on the ground that the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 701-706, already has waived the sovereign immunity of
the United States against non-monetary relief.2 See Authority o f USDA to Award
Monetary Relief fo r Discrimination, 18 Op. O.L.C. 52, 57-6 0 ,'6 5 -6 6 (1994)
(concluding that Fair Housing A ct and Rehabilitation Act do not waive federal
government’s immunity from monetary damages). This waiver applies to any suit
against the federal government, whether under the APA or under another statute.
See id. at 59.3 At least with respect to the federal government, then, RFRA ’s provi
sion for “appropriate re lie f’ may well have contemplated actions for non-monetary
relief based on the APA waiver. In any event, whether or not the narrow reading
of “appropriate re lie f’ is the best reading, it is certainly a “plausible” interpreta
tion. Under Nordic Village, this is enough to “establish that a reading im posing
monetary liability on the Governm ent [or state governments] is not ‘unam biguous’
and therefore should not be adopted.” 503 U.S. at 37.4
^The APA provides that
[a]n action in a court of the United States seeking relief other than money damages and stating a
claim that an agency or an officer or employee thereof acted or failed to act in an official capacity
or under color o f legal authority shall not be dismissed nor relief therein denied on the ground
that it is against the United States.
5 U S.C. § 702.
3See also Specter v. Garrett, 995 F.2d 404, 410 (3d Cir. 1993); Red Lake Band o f Chippewa Indians v.
Barlow, 846 F.2d 474, 476 (8th Cir. 1988); Alabama v. Bowsher, 734 F. Supp. 525, 533 (D.D.C. 1990)
(discussing D.C. Circuit case law).
4Although legislative history cannot supply the “unequivocal expression” that the Supreme Court re
quires, see Nordic Village, 503 U.S. at 37; Dellmuth, 491 U.S. at 230, legislative history may be relevant
where it reinforces a text-based conclusion that a statute does not waive or abrogate sovereign immunity.
RFRA’s legislative history is largely silent on this point. It may be o f some significance, however, that in
estimating the effect o f RFRA on direct spending by the federal and state governments, the Congressional
Budget Office anticipated awards o f attorney’s fees but made no mention of possible damages awards. See
S. Rep. No. 103-111, at 15-16 (1993); H.R. Rep. No. 103-88, at 11 (1993).
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Opinions o f th e O ffice o f L eg a l C ounsel
It was suggested at a RFRA T ask Force m eeting that this conclusion is in ten
sion with Franklin v. G winnett C ounty Pub. Schs., 503 U.S. 60 (1992), in which
the Suprem e Court held that a damages remedy is available under Title IX despite
the absence o f explicit congressional authorization. Franklin, however, is not on
point here. Franklin involved a suit against a school district, and school districts
generally are not treated as “arms o f the state” to which Eleventh Amendment im
munity extends. See Mt. Healthy C ity Sch. Dist. Bd. o f Educ. v. D oyle, 429 U.S.
274, 280-81 (1977); A m bus v. G ranite Bd. o f Educ., 995 F.2d 992, 995 (10th Cir.
1993). A ccordingly, the Court in Franklin was not faced with a sovereign immu
nity claim , and had no occasion to apply the “unequivocal expression” standard
that governs RFRA suits against the federal and state governments.
It should be noted that the conclusion reached here is hardly anomalous. Money
damages are sim ilarly unavailable in civil rights enforcement suits against the
states (or, more accurately, against state officers in their official capacities) under
42 U.S.C. § 1983. See W ill v. M ichigan D e p ’t o f State P o lic e , 491 U.S. 58, 70-71
& n.10 (1989); Q uern v. Jordan, 4 40 U.S. 332 (1979). Congress quite reasonably
could have chosen to limit RFRA plaintiffs to the same kind of equitable remedies
available in such § 1983 actions. Conversely, to the extent § 1983 allows recovery
of m oney dam ages against state officers in their personal capacities, see Scheuer v.
R hodes, 416 U.S. 232 (1974) (state executive officers personally liable for dam
ages under § 1983, subject to qualified immunity), a RFRA claimant also may re
cover dam ages against an officer in his or her personal capacity by asserting RFRA
in a § 1983 action.
Finally, it is im portant to recognize that the federal and state governments are
not the only potential defendants under RFRA. R FRA ’s definition of a
“governm ent” from which “appropriate re lie f’ may be obtained extends also to
state “subdivision[s],” to “official[s],” and to “other person[s] acting under color of
law.” RFRA § 5(1). Political subdivisions that cannot be characterized as “arms
of the state,” such as counties and municipal corporations, are not protected by
Eleventh Am endm ent immunity, se e Mt. H ealthy, 429 U.S. at 280; likewise, sover
eign im munity poses no bar to the recovery o f damages against officials sued in
their personal capacities or private parties acting under color of law, see H afer v.
M elo, 502 U.S. 21, 25-28 (1991). Accordingly, the “unequivocal expression”
standard that governs sovereign im m unity cases would not apply in RFRA suits
against such entities.
Rather, such cases would be governed by the traditional presumption that all
custom ary judicial relief, including damages, is available when Congress provides
a statutory right of action. See Franklin, 503 U.S. at 76 (damages available under
Title IX ’s im plied cause of action); C arey v. Piphus, 435 U.S. 247, 255 (1978)
(dam ages available under § 1983 though Congress did not “address directly the
question o f dam ages”); see gen erally Bell v. H ood, 327 U.S. 678, 684 (1946).
W hen sovereign im m unity concerns are removed from the equation, in other
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A va ila b ility o f M oney D am ages U nder the R eligious F reedom R estoration Act
words, the interpretive presumption is reversed: as against entities unprotected by
sovereign immunity, Congress must provide “clear direction to the contrary” if it
wishes to make money damages unavailable in a cause o f action under a federal
statute. See Franklin, 503 U.S. at 70-71 (“absent clear direction to the contrary by
Congress, the federal courts have the power to award any appropriate relief in a
cognizable cause of action brought pursuant to a federal statute”). Because
RFRA ’s reference to “appropriate re lie f’ does not clearly exclude money damages,
there is a strong argument that under the Franklin standard money damages should
be made available to RFRA plaintiffs in suits against non-sovereign entities. Cf.
Reich v. C am bridgeport A ir Sys., Inc., 26 F.3d 1187, 1190-94 (1st Cir. 1994)
(under Franklin presumption, statute providing for “all appropriate re lie f’ author
izes recovery of money damages).
W ALTER DELLINGER
A ssistan t A ttorney G eneral
Office o f L egal Counsel
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