dissenting:
I do not agree that in 1990 the law was clearly established that the prison officials could not punish Malik for using his religious name on outgoing mail, and I respectfully dissent.
This appeal presents a purely legal question: Are the prison officials entitled to immunity from suit “insofar as their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known[?]” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Mitch*731ell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (“Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”). Addressing this legal question, we assume Malik’s version of the facts is accurate. See id. at 528, 105 S.Ct. at 2816-17 (stating that appellate court reviewing denial of claim for qualified immunity need not consider the correctness of plaintiffs version of the facts).
Malik claims that in July 1990 prison officials denied him use of mail and notary services because the materials he sought to mail and have notarized included his religious name. Malik bears the initial burden of showing that his right to use his religious name on outgoing mail and in conjunction with notary services was clearly established, after which the prison officials would bear the burden of proving that their conduct was reasonable. See Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1285 (9th Cir.1994). Malik has not met his burden.
In his brief, Malik principally relies on the Fifth Circuit’s analysis in Felix v. Rolan, 833 F.2d 517 (5th Cir.1987), to argue that the clearly established law at the time of the alleged violations prohibited the prison officials from denying him use of his religious name on outgoing mail. In Felix, the Fifth Circuit recognized that “[t]he adoption of Muslim names by inmates practicing that religion is generally recognized to be an exercise of both first amendment speech and religious freedom.” Id. at 518. Specifically, the Felix court stated that the “ ‘a/k/a’ designation for the receipt of privileges and record keeping is a reasonable middle ground between absolute recognition of the plaintiffs Muslim names and the prison interests in order, security and administrative efficiency.” Id. at 519 (internal quotation marks omitted). Malik’s reliance on Felix would be persuasive if the Fifth Circuit’s reasoning in Felix was still the final word on this subject.
After the Fifth Circuit announced the Felix opinion, however, the Supreme Court altered the test for evaluating the constitutionality of prison regulations. In O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987), the Supreme Court held that “prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than ordinarily applied to alleged infringements of fundamental constitutional rights.” See also Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-63, 96 L.Ed.2d 64 (1987). Because the Felix court relied on the old standard, rather than the new standard articulated by the Supreme Court in O’Lone, the Felix decision was not enough to clearly establish the law regarding prisoners’ religiously motivated name changes when prison officials’ conduct at issue in this case occurred. See Matthews v. Morales, 23 F.3d 118, 119 (5th Cir.1994) (declining to rely on Felix because of new test announced in O’Lone, and holding that under the new O’Lone test, prisoner’s rights were not violated by statute prohibiting inmate from changing his name); Muhammad v. Wainwright, 839 F.2d 1422, 1425 n. 6 (11th Cir.1987) (doubting that “at the present time [1987] ... such action by prison officials is obviously unconstitutional.”).
Since the relevant time period for this case, the law has again changed. In 1993, Congress passed the Religious Freedom Restoration Act (Act), which overruled O’Lone in part. See Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir.1995), cert. denied, — U.S. -, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995). The Act limits the government’s ability to substantially burden a person’s exercise of religion to cases in which the government demonstrates that the burden serves “a compelling governmental interest; and ... is the least restrictive means of furthering that compelling interest.” 42 U.S.C. § 2000bb to 2000bb-f (Supp.V 1993). This test applies to “all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(l) (emphasis added). See also Malik I, 16 F.3d 330 (9th Cir.1994), mandate recalled, 65 F.3d 148 (9th Cir.1995). Specifically, “[a]s applied in the prison and jail context, the intent of the act is to restore the traditional protection afforded to prisoners to observe their religions which was weakened *732[sic] by the decision in O’Lone v. Estate of Shabazz.” S.R. No. 111, 103d Cong., 1st Sess. 9-11 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898-1901. Since the Act was not passed until after the conduct at issue in this case occurred, however, it is not relevant to my analysis about whether the law was clearly established at that time.
The Act and the opinion in Malik I clearly establishes the law on this issue for future cases in the Ninth Circuit. However, in 1990, when Malik was denied the use of his religious name on outgoing mail, the law was not clearly established. I find the prison officials are entitled to qualified immunity as a matter of law and, accordingly, the district court erred by denying their summary judgment motion with regard to Malik’s claims that the officials refused to process mail and notarize documents on which Malik used his religious name.