FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OKLEVUEHA NATIVE AMERICAN
CHURCH OF HAWAII, INC.; MICHAEL
REX MOONEY, AKA Raging Bear,
Plaintiffs-Appellants,
v. No. 10-17687
D.C. No.
ERIC H. HOLDER Jr., Attorney
General; MICHELE LEONHART, as 1:09-cv-00336-
Acting Administrator of the U.S. SOM-BMK
Drug Enforcement Administration; OPINION
FLORENCE T. NAKAKUNI, U.S.
Attorney for the District of
Hawaii,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
February 15, 2012—Honolulu, Hawaii
Filed April 9, 2012
Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
3797
3800 OKLEVUEHA NATIVE AMERICAN v. HOLDER
COUNSEL
Michael Andrew Glenn, Low Cost Legal Services, Honolulu,
Hawaii, for the appellants.
James C. Luh, Lowell V. Sturgill, Jr., and Mark Stern,
Department of Justice, Washington, DC, and Derrick K. Wat-
son, Office of the United States Attorney, Honolulu, Hawaii,
for the appellees.
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3801
OPINION
MURGUIA, Circuit Judge:
Plaintiffs Oklevueha Native American Church of Hawaii,
Inc. (“Oklevueha”) and Michael Rex Mooney a.k.a. Raging
Bear appeal the district court’s dismissal of their complaint
and judgment in favor of Defendants the U.S. Attorney Gen-
eral, the Administrator of the U.S. Drug Enforcement Admin-
istration (“DEA”), and the U.S. Attorney for the District of
Hawaii (collectively, “Government”). Plaintiffs’ action seeks
declaratory and injunctive relief barring the Government from
enforcing the Controlled Substances Act (“CSA”) against
them and for return or compensation for marijuana taken by
the Government. Plaintiffs allege that they consume mari-
juana as a “sacrament/eucharist” in their religious ceremonies,
and that their use is protected by the First Amendment and the
Religious Freedom Restoration Act (“RFRA”). The district
court dismissed the claims for declaratory and injunctive
relief on ripeness grounds. It also dismissed the claim for the
return of, or compensation for, the seized marijuana because
the marijuana had been destroyed and monetary damages are
not available under RFRA. We affirm in part and reverse and
remand in part.
I. Factual and Procedural Background
Plaintiff Oklevueha Native American Church of Hawaii,
Inc. is a 250-member independent chapter of the Native
American Church (“NAC”). NAC has an estimated 500,000
national members in 100 branches throughout 24 states. Plain-
tiff Michael Rex “Raging Bear” Mooney is the founder, presi-
dent, and medicine custodian of the Oklevueha chapter. He is
of Seminole Native American ancestry, and is an “authorized
Spiritual Leader,” or “medicine man.”
According to Plaintiffs, NAC is an earth-based healing reli-
gion, the primary purpose of which is to “administer Sacra-
3802 OKLEVUEHA NATIVE AMERICAN v. HOLDER
mental Ceremonies.” These ceremonies involve the
consumption of drugs; indeed, Plaintiffs explain that the
church “only exists to espouse the virtues of, and to consume,
entheogens.” NAC members’ religious use of peyote is
exempted from the prohibitions of the CSA, see 21 C.F.R.
§ 1307.31,1 but there is no such exemption for marijuana.
Plaintiffs explain that marijuana use is a crucial part of NAC
tradition and that members consume marijuana as a sacrament
and eucharist in their religious ceremonies and rites, in addi-
tion to or as a substitute for peyote, which is their “primary
sacrament/great-medicine of choice.” All 250 Oklevueha
members consume marijuana in religious ceremonies. Mem-
bers use marijuana to enhance spiritual awareness and facili-
tate direct experience of the divine. Mooney uses marijuana
daily, and other Oklevueha members use marijuana in
“sweat” ceremonies, which occur twice a month at various
private locations in Oahu and are only open to NAC mem-
bers.
In June 2009, federal law enforcement officers in Hawaii
seized from FedEx one pound of marijuana that was
addressed to Mooney and intended for Oklevueha use. The
marijuana was turned over to the Honolulu Police Department
and later destroyed. The seized marijuana was worth approxi-
mately $7,000. Plaintiffs do not allege that Mooney or any
Oklevueha member has been prosecuted or threatened with
prosecution in connection with the seizure or in relation to
any other procurement or use of marijuana.
Despite the nonexistence of any criminal charges, Plaintiffs
claim that they fear for their ability to continue to cultivate,
consume, possess, and distribute marijuana for religious pur-
poses without being branded criminals and made to face fines
and imprisonment. In support of this fear, they point to a DEA
1
In 1994, Congress extended the peyote exemption to all members of
every recognized Indian Tribe. See 42 U.S.C. § 1996a(b)(1).
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3803
raid in March 2010 on another Hawaii-based church that pur-
ports to use marijuana as a religious sacrament.
Plaintiffs assert seven claims: (1) violation of RFRA, 42
U.S.C. §§ 2000bb-2000bb-4; (2) violation of the American
Indian Religious Freedom Act, 42 U.S.C. § 1996; (3) viola-
tion of the right to equal protection under the Fifth and Four-
teenth Amendments; (4) violation of the First Amendment
right to freedom of religion; (5) theft and/or conversion of one
pound of marijuana; (6) declaratory judgment that the Gov-
ernment’s seizure of the marijuana was unlawful and that the
CSA may not be enforced against their possession, cultiva-
tion, provision, and distribution of marijuana for personal reli-
gious use; and (7) injunctive relief ordering the return of the
seized marijuana, or its monetary value, and prohibiting the
Government from arresting or prosecuting Oklevueha mem-
bers for marijuana use or seizing their marijuana.
The district court granted in part and denied in part the
Government’s first motion to dismiss Oklevueha’s First
Amended Complaint. It dismissed the claims for declaratory
and injunctive relief related to future use of marijuana (“the
preenforcement claims”) and the tort claims, but not the claim
for return of, or compensation for, the seized marijuana under
RFRA. The court dismissed the preenforcement claims on
ripeness grounds, concluding that Plaintiffs’ claims did not
satisfy the constitutional ripeness test for preenforcement
challenges and that even if they did, prudential considerations
also warranted dismissal. The court further held that Okle-
vueha lacked associational standing to assert the claims for
prospective relief. Plaintiffs’ claims for theft and conversion
of the marijuana were also dismissed because they are barred
by sovereign immunity. Then in a subsequent order, the dis-
trict court dismissed Plaintiffs’ remaining claims related to the
seizure of the marijuana. With respect to Plaintiffs’ request
for compensation, the court explained that it could not order
the Government to return something it does not have, and that
it could not award money damages because RFRA does not
3804 OKLEVUEHA NATIVE AMERICAN v. HOLDER
unambiguously waive sovereign immunity to authorize
money damages.
II. Discussionm
We review the district court’s grant of a motion to dismiss
de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
2005). We accept all factual allegations in the complaint as
true and construe the pleadings in the light most favorable to
Plaintiffs. Id. However, conclusory allegations and unwar-
ranted inferences are insufficient to defeat a motion to dis-
miss. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th
Cir. 2011).
A. The Preenforcement Claims
Plaintiffs challenge the district court’s determination that
their claims for prospective relief are not ripe. The Constitu-
tion limits Article III federal courts’ jurisdiction to deciding
“cases” and “controversies.” U.S. Const. art. III, § 2. Ripeness
is one component of the Article III case or controversy
requirement. The “basic rationale” of the ripeness requirement
is “to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagree-
ments.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
“The ripeness inquiry contains both a constitutional and a pru-
dential component.” Portman v. Cnty of Santa Clara, 995
F.2d 898, 902 (9th Cir. 1993). We consider each in turn.
1. Constitutional Ripeness
[1] The “Constitution mandates that prior to our exercise
of jurisdiction there exist a constitutional ‘case or contro-
versy,’ that the issues presented are ‘definite and concrete, not
hypothetical or abstract.’ ” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en
banc) (quoting Ry Mail Ass’n v. Corsi, 326 U.S. 88, 93
(1945)). However, arrest is not necessarily a prerequisite for
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3805
an individual to challenge the applicability of a criminal stat-
ute.
When the plaintiff has alleged an intention to engage
in a course of conduct arguably affected with a con-
stitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereun-
der, he should not be required to await and undergo
a criminal prosecution as the sole means of seeking
relief.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979) (internal quotation marks omitted).
[2] To bring such a “preenforcement claim,” we require
plaintiffs to allege a “genuine threat of imminent prosecu-
tion.” Thomas, 220 F.3d at 1139 (internal quotation marks
omitted). We consider: (1) whether the plaintiffs have articu-
lated a “concrete plan” to violate the law in question; (2)
whether the government has communicated a specific warn-
ing or threat to initiate proceedings; and (3) the history of past
prosecution or enforcement under the statute. Id.
In reviewing these factors, we find that they do not apply
easily to the unique circumstances of Plaintiffs’ claims. The
“genuine threat” analysis presumes that no enforcement has
previously occurred, and therefore ascertains the likelihood of
future enforcement. In contrast, the FedEx seizure was an
enforcement of the CSA against Plaintiffs, mitigating the rele-
vance of a hypothetical future-enforcement. Nonetheless,
because Plaintiffs’ claims are asserted for the first time in an
action for prospective relief (and not in a criminal proceed-
ing), we consider the familiar “preenforcement claim” ripe-
ness analysis, while acknowledging its strained applicability
to the unusual allegations before us.
The district court concluded that Plaintiffs failed to suffi-
ciently allege a “concrete plan” to violate the CSA because
3806 OKLEVUEHA NATIVE AMERICAN v. HOLDER
the complaint does not state exactly how, where, and in what
quantities Plaintiffs intend to consume marijuana, and does
not specify how they intend to cultivate or acquire, store, and
distribute marijuana. We disagree that the complaint must
contain these factual allegations and conclude that Plaintiffs
have sufficiently alleged a concrete plan.
[3] According to Plaintiffs, they have used marijuana in
violation of the CSA countless times, and plan to continue to
do so. We have explained that the “concrete plan” element of
the genuine threat inquiry is satisfied where plaintiffs had
“more than a ‘concrete plan’ ” to violate the laws at issue
because they “actually did violate them on a number of occa-
sions.” Sacks v. Office of Foreign Assets Control, 466 F.3d
764, 773 (9th Cir. 2006); see also Jacobus v. Alaska, 338 F.3d
1095, 1105 (9th Cir. 2003) (holding that challenge to validity
of campaign finance laws was ripe because “[p]laintiffs have
gone far beyond the requirement that they articulate a con-
crete plan to violate the law, and instead have actually
engaged in the illegal behavior at issue.”). Plaintiffs allege
that Mooney violates the CSA daily by consuming marijuana,
and that other members of Oklevueha violate the law at semi-
monthly sweats, in addition to any other usages. They further
allege that Mooney and Oklevueha members have no plan to
stop their consumption. Taking as true the facts alleged,
Plaintiffs are currently violating and plan to continue to vio-
late the CSA by purchasing and consuming marijuana.
Accordingly, Plaintiffs’ allegations satisfy the concrete plan
requirement.
The second component of a genuine threat is whether the
government has communicated a specific warning or threat to
initiate proceedings. The district court found that Plaintiffs
had not adequately alleged a specific threat of prosecution
because the complaint lacked allegations of any threat or
warning from federal authorities or that Plaintiffs intended to
continue to bring in marijuana in a way likely to be noticed
by federal drug authorities.
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3807
The district court is correct that Plaintiffs do not allege any
threat of prosecution related to Plaintiffs’ marijuana consump-
tion. Plaintiffs have never been arrested in connection with
their marijuana consumption, nor has there been another sei-
zure of their drugs in the more than two and a half years that
have elapsed since the 2009 FedEx seizure. Moreover, the
Government’s lawyer clarified at oral argument that the sei-
zure at issue was in a response to a call from FedEx regarding
Plaintiffs’ package, and was not the result of any active Gov-
ernment investigation. The Government’s lawyer further
explained that to his knowledge, neither Mooney nor Okle-
vueha is the target of any current investigation. Additionally,
the Government’s decision to destroy the marijuana seized in
2009 without further investigation may give some insight into
its enforcement priorities, which at this time apparently do not
include Plaintiffs.
[4] We conclude, however, that the district court’s focus
on future prosecution is inapposite. Plaintiffs need not allege
a threat of future prosecution because the statute has already
been enforced against them. When the Government seized
Plaintiffs’ marijuana pursuant to the CSA, a definite and con-
crete dispute regarding the lawfulness of that seizure came
into existence. See Ry Mail Ass’n, 326 U.S. at 93 (stating that
a justiciable case or controversy must present a definite and
concrete dispute). This case is unique in that unlike most
enforcements of criminal statutes, the seizure did not result in
a criminal proceeding that could have afforded Plaintiffs the
opportunity to assert their constitutional and statutory chal-
lenges to the enforcement of the CSA against them. But it
does not follow that because this enforcement and seizure of
property did not provide Plaintiffs a process in which to raise
their claims, those claims are not now ripe. We require a
“threat of prosecution” to ensure that the plaintiff challenging
a statute can “demonstrate a realistic danger of sustaining a
direct injury as a result of the statute’s operation or enforce-
ment.” Babbitt, 442 U.S. at 298. In this case, that injury has
3808 OKLEVUEHA NATIVE AMERICAN v. HOLDER
already occurred, thereby eliminating any concerns that Plain-
tiffs’ fear of enforcement is purely speculative.2
[5] For the same reason Plaintiffs need not demonstrate a
threat of future prosecution under these facts, we conclude
that Plaintiffs need not establish the third prong of the “genu-
ine threat of prosecution” inquiry, the history of enforcement
of the statute. In other words, we need not rely on enforce-
ment of the statute against other groups in determining
whether Plaintiffs are likely to suffer a similar fate in the
future, because the CSA has already been enforced against
Plaintiffs through the seizure of their marijuana. This is not
the kind of “abstract disagreement” that the ripeness doctrine
prevents courts from adjudicating. Plaintiffs’ “stake in the
legal issues is concrete rather than abstract.” Colwell v. Dep’t
of Health & Human Servs, 558 F.3d 1112, 1123 (9th Cir.
2009). A non-speculative case and controversy exists regard-
ing Plaintiffs’ entitlement to possess and consume marijuana
for religious reasons.
2. Prudential Ripeness
[6] “The ripeness doctrine is ‘drawn both from Article III
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.’ ” Nat’l Park Hospitality
Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (quoting
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18
(1993)). The question of prudential ripeness requires us to
first consider the fitness of the issues for judicial review, fol-
2
We are also cognizant of the possibility that further seizures from a pri-
vate shipping service could occur at any time, without ever resulting in a
criminal prosecution. The Government maintains it is not investigating
Plaintiffs, but a shipping company could again alert the Government of
what it deems to be a suspicious package, and the Government might
again dispose of its contents. We do not think Plaintiffs should be forced
to accept the possibility of continued seizure of marijuana to which they
believe they are constitutionally entitled because they cannot show a threat
of criminal prosecution.
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3809
lowed by the hardship to the parties of withholding court con-
sideration. Colwell, 558 F.3d at 1124. The district court held
that the case is not fit for judicial review because the com-
plaint contains no factual allegations describing how mari-
juana is consumed or acquired and, “for all the court knows,”
Plaintiffs might be planning to import thousands of pounds of
marijuana to sell to anyone claiming a religious need. We dis-
agree and conclude that Plaintiffs’ preenforcement claims are
fit for review.
[7] Courts have regularly declined on prudential grounds
to review challenges to recently promulgated laws or regula-
tions in favor of awaiting an actual application of the new
rule. See, e.g., Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.
158, 164 (1967) (“We believe that judicial appraisal of these
factors is likely to stand on a much surer footing in the con-
text of a specific application of this regulation than could be
the case in the framework of the generalized challenge made
here.”); Nat’l Park Hospitality Ass’n, 538 U.S. at 812
(“[J]udicial resolution of the question presented here should
await a concrete dispute about a particular concession con-
tract.”); Colwell, 558 F.3d at 1128 (“If and when the parties
are able to provide examples of the manner in which the HHS
has used the Policy Guidance . . . we will be in a better posi-
tion to determine whether the 2003 Policy Guidance functions
as a substantive rule or as a general statement of policy.”).
This is not such a case. In contrast to cases in which the courts
are left to hypothesize about how the law might be applied,
Plaintiffs’ claims arise from an enforcement action that has
already occurred. The seizure of Plaintiffs’ marijuana presents
a “concrete factual scenario that demonstrates how the laws,
as applied, infringe [Plaintiffs’] constitutional rights.”
Thomas, 220 F.3d at 1141.
We also disagree with the district court’s conclusion that to
present a case fit for review, Plaintiffs need to frame the scope
of the injunctive relief they seek through allegations about
Oklevueha’s members’ use, possession, cultivation, and dis-
3810 OKLEVUEHA NATIVE AMERICAN v. HOLDER
tribution of marijuana. Such specific pleadings are not
required to establish fitness for review, which requires only
the existence of a “concrete factual situation.” San Diego Cnty
Gun Rights Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir.
1996). The scope of any injunctive relief to which Plaintiffs
might ultimately be entitled may be determined at a later
phase of the litigation. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992) (holding that justiciability must be sup-
ported “with the manner and degree of evidence required at
the successive stages of the litigation.”).
Likewise, we are unpersuaded by the Government’s asser-
tion that Plaintiffs’ request for prospective relief is unripe
because Plaintiffs did not request an exception to the CSA
from the DEA. See 21 C.F.R. § 1307.03 (“Any person may
apply for an exception to the application of any provision of
this chapter by filing a written request with the Office of
Diversion Control, Drug Enforcement Administration, stating
the reasons for such exception.”). The Government argues
that we should require Plaintiffs to exhaust this administrative
remedy, because doing so would allow the DEA to apply its
expertise to Plaintiffs’ claim, possibly moot the case if the
claim is granted, and help build a record for judicial review.
[8] We decline, however, to read an exhaustion require-
ment into RFRA where the statute contains no such condition,
see 42 U.S.C. §§ 2000bb-2000bb-4, and the Supreme Court
has not imposed one. Indeed, the Supreme Court has reviewed
a RFRA-based challenge to the CSA without requiring that
the plaintiffs first seek a religious use exemption from the
DEA. Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418 (2006). In so doing, it recognized that
RFRA “plainly contemplates that courts would recognize
exceptions [to the CSA] — that is how the law works.” Id. at
434.
[9] Because this is not an abstract disagreement but rather
involves the application of well-developed law (including the
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3811
First Amendment right to religious freedom, RFRA and the
CSA) to an existing case and controversy (the seizure of
Plaintiffs’ marijuana), we conclude Plaintiffs’ claims are fit
for review.
[10] As Plaintiffs’ claims are fit for review now, we do not
reach the second factor of the prudential ripeness inquiry —
hardship to the parties in delaying review. Hardship serves as
a counterbalance to any interest the judiciary has in delaying
consideration of a case. See Colwell, 558 F.3d at 1129
(“[T]his hardship is insufficient to overcome the uncertainty
of the legal issue presented in the case in its current pos-
ture.”); Municipality of Anchorage v. United States, 980 F.2d
1320, 1326 (9th Cir. 1992) (“[M]ere potential for future injury
does not overcome the interest of the judiciary in delaying
review.” (internal quotation marks omitted)). Because we can
identify no interest in delaying review of Plaintiffs’ claims,
the hardship that would be imposed by any delay is not rele-
vant. Accordingly, we find that Plaintiffs’ claims should not
be dismissed on prudential ripeness grounds.
3. Associational Standing
We turn next to the issue of associational standing. Okle-
vueha may bring suit on its members’ behalf when: “(a) its
members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977). The district court con-
cluded that Oklevueha does not have associational standing to
seek injunctive relief because the complaint does not allege
details regarding each member’s use of marijuana. We dis-
agree.
[11] First, the members of Oklevueha would have standing
to sue in their own right because, according to the complaint,
3812 OKLEVUEHA NATIVE AMERICAN v. HOLDER
they all use marijuana as a regular and integral part of their
religious practice. Therefore, the members are suffering “im-
mediate or threatened injury as a result of the challenged
action of the sort that would make out a justiciable case had
the members themselves brought suit.” Id. at 342. Second, the
suit seeks to protect Oklevueha’s members’ use of marijuana
in religious ceremonies, the administration of which Plaintiffs
allege is the “sole purpose” of Oklevueha. Finally, the pro-
spective relief that Plaintiffs seek does not require that indi-
vidual Oklevueha members participate in this action. “If in a
proper case the association seeks a declaration, injunction, or
some other form of prospective relief, it can reasonably be
supposed that the remedy, if granted, will inure to the benefit
of those members of the association actually injured.” Warth
v. Seldin, 422 U.S. 490, 515 (1975). The district court’s con-
cerns about the details of injunctive relief may be addressed
if the court ultimately awards Plaintiffs such a remedy. At this
stage, what matters is that Plaintiffs’ allegations are sufficient
to establish Oklevueha’s associational standing.
[12] Plaintiffs’ claims for prospective relief arising from
the Government’s seizure of marijuana meet the constitutional
requirements and prudential factors for ripeness, and Okle-
vueha has associational standing to assert the claims. The sei-
zure of Plaintiffs’ marijuana that has already occurred creates
a justiciable case and controversy about Plaintiffs’ constitu-
tional and statutory entitlement to use marijuana for religious
purposes. Adjudication of Plaintiffs’ claims does not require
that the court entangle itself in hypothetical scenarios or “ab-
stract disagreements.” Abbott Labs., 387 U.S. at 148. Accord-
ingly, we reverse the district court’s dismissal of Plaintiffs’
“preenforcement claims.” Nothing in this opinion addresses
the merits of the underlying claims. We remand the claims for
prospective relief to the district court to consider the merits in
the first instance.
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3813
B. Claims for Return or Compensation for the
Marijuana
Appellants seek return of, or compensation for, the seized
marijuana under RFRA.3 The district court denied this
request, correctly observing that the marijuana was destroyed
prior to Plaintiffs’ request for its return in their First Amended
Complaint, and the court cannot order the government to
return something it does not have. The issue then is whether
Plaintiffs may, pursuant to RFRA, obtain “compensation” for
the destroyed drugs — i.e. money damages. The district court
concluded that the government is immune from claims for
money damages because RFRA does not unambiguously
waive sovereign immunity to authorize money damages. We
agree and hold that RFRA does not waive the federal govern-
ment’s sovereign immunity from damages.
[13] RFRA waives immunity from some forms of relief.
Its judicial relief provision states: “A person whose religious
exercise has been burdened in violation of this section may
assert that violation as a claim or defense in a judicial pro-
ceeding and obtain appropriate relief against a government.”
42 U.S.C. § 2000bb-1(c). This provision, however, does not
define “relief,” so the issue is whether the waiver extends to
relief in the form of money damages. The United States may
not be sued without its consent, and we strictly construe waiv-
ers of sovereign immunity, which must be “unequivocally
expressed in the statutory text.” Dep’t of Army v. Blue Fox,
Inc., 525 U.S. 255, 261 (1999) (internal citations omitted). To
3
Plaintiffs also asserted tort claims for theft and conversion related to
the seizure of the marijuana. The district court dismissed the tort claims,
explaining that the Federal Tort Claims Act’s waiver of immunity
excludes claims related to the detention of property by law enforcement
officers. Appellants do not raise their torts claims before this Court, and
we therefore do not consider them. See Farmer v. McDaniel, 666 F.3d
1228, 1233 (9th Cir. 2012) (“[T]his court reviews only issues which are
argued specifically and distinctly in a party’s opening brief. . . .” (internal
quotation marks and alterations omitted)).
3814 OKLEVUEHA NATIVE AMERICAN v. HOLDER
show that the government is liable for awards of monetary
damages, “the waiver of sovereign immunity must extend
unambiguously to such monetary claims.” Lane v. Pena, 518
U.S. 187, 192 (1996).
[14] The D.C. Circuit is the only other circuit court to have
considered whether RFRA waives sovereign immunity for
monetary damages. In Webman v. Fed. Bureau of Prisons, it
held that RFRA does not authorize money damages. 441 F.3d
1022 (D.C. Cir. 2006). The Court explained that it is plausible
to read RFRA’s “appropriate relief” provision as covering
money damages or, alternatively, as applying only to “equita-
ble relief but not damages, given Congress’s awareness of the
importance of sovereign immunity and its silence in the stat-
ute on the subject of damages.” Id. at 1026. Because the relief
provision is susceptible to more than one interpretation, the
Court could not “find an unambiguous waiver in language this
open-ended and equivocal.” Id.
Further, the Supreme Court recently interpreted identical
“appropriate relief” language in the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc-2(a). In Sossamon v. Texas, the Supreme Court held
that by accepting federal funds, states do not consent to waive
their immunity to suits for monetary damages under RLUIPA.
131 S. Ct. 1651 (2011). It explained that RLUIPA’s express
private cause of action, which is identical to the judicial relief
provision in RFRA, “is not the unequivocal expression of
state consent that our precedents require.” Id. at 1658. The
Supreme Court explained that “appropriate relief” does not
clearly include money damages, but rather that the word “ap-
propriate” “is inherently context-dependent.” Id. at 1659 (cita-
tions omitted). The Court stated that “[t]he context here—
where the defendant is a sovereign—suggests, if anything,
that monetary damages are not ‘suitable’ or ‘proper.’ ” Id.
(citing Fed. Mar. Comm’n v. S.C., State Ports Auth., 535 U.S.
743, 765 (2002)).
OKLEVUEHA NATIVE AMERICAN v. HOLDER 3815
Although the Supreme Court in Sossamon considered
claims against a state, rather than federal actors,4 and was
therefore guided by the Eleventh Amendment, the Court’s
interpretation of “appropriate relief” is also applicable to
actions against federal defendants under RFRA. See Sossa-
mon, 131 S.Ct at 1658 n.4 (explaining the overlapping analy-
sis of state and federal sovereign immunity). Just like the
identical language in RLUIPA, RFRA’s authorization of “ap-
propriate relief” is not an “unequivocal expression” of the
waiver of sovereign immunity to monetary claims. Lane, 518
U.S. at 192. The provision could be read as authorizing only
injunctive relief, and therefore “does not so clearly and unam-
biguously waive sovereign immunity to private suits for dam-
ages that we can ‘be certain that the State in fact consents’ to
such a suit.” Sossamon, 131 S. Ct. at 1658-59 (quoting Coll.
Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 680 (1999)).
[15] Strictly construing the “appropriate relief” provision
in favor of the government, we conclude that RFRA does not
authorize suits for money damages. We therefore affirm the
district court’s dismissal of Plaintiffs’ claims for compensa-
tion for the seized marijuana.5
III. Conclusion
We AFFIRM IN PART and REVERSE IN PART the dis-
4
The Supreme Court held RFRA unconstitutional as applied to state and
local governments because it exceeds Congress’ power under § 5 of the
Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507 (1997). In
contrast, RLUIPA, which was enacted pursuant to Congress’ Spending
Clause and Commerce Clause authority, does apply to the states. Sossa-
mon, 131 S.Ct. at 1656 n.1 (declining to address whether the Commerce
Clause or Spending Clause authorize Congress to address the alleged reli-
gious burden at issue in the case).
5
We also agree with the district court that it cannot order the Govern-
ment to purchase substitute marijuana because doing so would be an end
run around the prohibition on money damages.
3816 OKLEVUEHA NATIVE AMERICAN v. HOLDER
trict court’s dismissal of Plaintiffs’ claims. We AFFIRM the
dismissal of the claims for return of, or compensation for, the
seized marijuana. We REVERSE the dismissal of Plaintiffs’
claims for declaratory and injunctive relief and REMAND for
further proceedings consistent with this opinion.
The parties shall bear their own costs of appeal.
AFFIRMED IN PART, REVERSED and REMANDED
IN PART.