United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 3, 2006 Decided March 28, 2006
No. 05-5031
RANDY WEBMAN AND
LARRY ROZEN,
APPELLANTS
v.
FEDERAL BUREAU OF PRISONS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00172)
Lee Boothby argued the cause and filed the briefs for
appellants.
Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
2
Concurring opinion filed by Circuit Judge TATEL.
SENTELLE, Circuit Judge: Appellants, former inmates of
the Federal Bureau of Prisons, sued the Bureau and several of its
personnel (collectively, “BOP”), alleging religion-based
discrimination in violation of the Religious Freedom Restoration
Act of 1993 (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488, 42
U.S.C. §§ 2000bb to 2000bb-4. The District Court dismissed
their damages claims as barred by sovereign immunity, and
plaintiffs brought this appeal. Agreeing that RFRA does not
provide the kind of clear and unequivocal waiver of sovereign
immunity governing precedent requires, we affirm.
I. Background
Randy Webman and Larry Rozen were imprisoned for fraud
and other offenses at the Federal Correctional Complex in
Coleman, Florida. Rozen was released in 2001, Webman in
2004. On February 3, 2003, they filed a complaint in the United
States District Court for the District of Columbia, alleging
violations of RFRA and the First Amendment’s Free Exercise
clause.
According to their complaint, Webman and Rozen “are
practicing Jews who adhere to the religious obligations and
dietary laws of their faith.” While imprisoned, they allegedly
suffered an array of religion-based discrimination. Inter alia,
the BOP allegedly denied Webman and Rozen access to rabbis,
served them non-kosher meals, refused to afford them an
opportunity to pray regularly, and countenanced or caused
sundry forms of religious harassment. The complaint sought
injunctive relief, compensatory damages, and reasonable costs
and attorney’s fees.
3
BOP responded to the complaint with a motion to dismiss,
styled in the alternative as a motion for summary judgment. On
March 21, 2004, the District Court granted the motion in part.
It dismissed all damages claims as barred by sovereign
immunity, and Rozen’s claims for injunctive relief because his
release from prison mooted them. Webman remained
incarcerated, however, and the court held that his equitable
claims raised genuine issues of material fact. These remaining
claims were short-lived, though: Soon after Webman was
released from prison in September 2004, the court found them
moot as well. Webman and Rozen now appeal only the District
Court’s judgment on the damages claim, arguing that the court
erred in its ruling on sovereign immunity under RFRA.
II. Analysis
A. RFRA
In Employment Division v. Smith, 494 U.S. 872 (1990), the
Supreme Court held that “neutral, generally applicable laws may
be applied to religious practices even when not supported by a
compelling government interest.” City of Boerne v. Flores, 521
U.S. 507, 514 (1997). In so doing, the Smith Court held that the
so-called Sherbert test does not govern such neutral, generally
applicable laws. That test, set forth in Sherbert v. Verner, 374
U.S. 398 (1963), involved a balancing process in which the court
would ask whether a statutory or regulatory prohibition
“substantially burdened a religious practice and, if it did,
whether the burden was justified by a compelling government
interest.” City of Boerne, 521 U.S. at 513.
After the Smith decision, Congress enacted RFRA for the
express purpose of restoring the Sherbert Free Exercise test. See
42 U.S.C. § 2000bb(b)(1); Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 2006 WL 386374, at *4 (U.S.
4
Feb. 21, 2006). Under RFRA, “[g]overnment shall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability,” unless the
government can demonstrate that the application of the burden
“is in furtherance of a compelling governmental interest” and “is
the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1(a), (b).
RFRA’s judicial relief provision is couched in broad terms:
“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 proceeding and obtain appropriate relief
against a government.” Id. § 2000bb-1(c) (emphasis added). In
its definition section, RFRA states: “[T]he term ‘government’
includes a branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United
States . . . .” Id. § 2000bb-2(1).
The Supreme Court ruled in City of Boerne that Congress
lacks the constitutional authority to enforce RFRA against the
states. 521 U.S. at 536. Congress does, however, have the
power to enforce RFRA against the federal government. See
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156,
167 (D.C. Cir. 2003) (“[W]e have held that without doubt ‘the
portion [of RFRA] applicable to the federal government . . .
survived the Supreme Court’s decision striking down the statute
as applied to the States.’”) (quoting Henderson v. Kennedy, 265
F.3d 1072, 1073 (D.C. Cir. 2001)), cert. denied, 540 U.S. 1218
(2004).
B. Sovereign Immunity
“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v. Mitchell, 463
5
U.S. 206, 212 (1983); see also United States v. Sherwood, 312
U.S. 584, 586 (1941) (“The United States, as sovereign, is
immune from suit save as it consents to be sued, and the terms
of its consent to be sued in any court define that court’s
jurisdiction to entertain suit.”) (citations omitted). The federal
government may waive its sovereign immunity by statute, but
that waiver “must be unequivocally expressed in statutory text.”
Lane v. Peña, 518 U.S. 187, 192 (1996) (citing United States v.
Nordic Village, Inc., 503 U.S. 30, 33-34, 37 (1992)); see also
United States v. Mitchell, 445 U.S. 535, 538 (1980); United
States v. King, 395 U.S. 1, 4 (1969). Waivers may not be
implied. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95
(1990); Soriano v. United States, 352 U.S. 270, 276 (1957).
And courts must “strictly construe[]” any waiver of sovereign
immunity, “in terms of its scope, in favor of the sovereign.”
Lane, 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.”) (citation omitted); Library of Cong. v. Shaw,
478 U.S. 310, 318 (1986); Lehman v. Nakshian, 453 U.S. 156,
161 (1981); McMahon v. United States, 342 U.S. 25, 27 (1951);
Sherwood, 312 U.S. at 590 (collecting cases).
C. Application to this Case
Webman and Rozen do not dispute that the BOP is
protected by sovereign immunity and therefore immune to suit
absent a waiver. Thus, the only issue before us is whether
RFRA’s waiver of sovereign immunity extends to monetary
damages.1 We review the matter de novo. Loughlin v. United
1
BOP’s brief—in addition to offering little beyond conclusory
assertions that RFRA did not waive sovereign immunity—lifts almost
an entire paragraph from Tinsley v. Pittari, 952 F. Supp. 384, 389
(N.D. Tex. 1996), reproducing it twice (with only minor alterations)
6
States, 393 F.3d 155, 162 (D.C. Cir. 2004).
Appellants attempt to find an unequivocal waiver in
RFRA’s reference to “government.” Appellants’ Br. at 12-13.
Because RFRA authorizes “appropriate relief against a
government,” 42 U.S.C. § 2000bb-1(c) (italics added), and
“government” includes instrumentalities of the federal
government, id. § 2000bb-2(1), Webman and Rozen claim that
RFRA waives the federal government’s sovereign immunity in
its entirety. Not so. No one disputes that BOP and other arms
of the federal government may be sued for at least some forms
of relief under RFRA. The question is whether permissible
forms include money damages. A waiver of sovereign
immunity for some type of remedy does not necessarily extend
to suits for damages. See Lane, 518 U.S. at 196 (“It is plain that
Congress is free to waive the Federal Government’s sovereign
immunity against liability without waiving its immunity from
monetary damages awards.”); Nordic Village, 503 U.S. at 34
(“Though [a bankruptcy statute], too, waives sovereign
immunity, it fails to establish unambiguously that the waiver
extends to monetary claims.”).
The dispositive question is whether RFRA’s reference to
“appropriate relief” includes monetary damages. On its face,
RFRA’s reference to “appropriate relief” is not the “sort of
unequivocal waiver that our precedents demand,” Lane, 518
U.S. at 198, because that broad term is susceptible to more than
one interpretation. In some contexts, “appropriate relief” might
include damages. Cf. West v. Gibson, 527 U.S. 212, 222-23
(1999) (holding that Title VII’s reference to “appropriate
remedies” contemplates compensatory damages where a
statutory cross-reference explicitly authorizes them). However,
in its brief, without attribution, in violation of Fed. R. App. P.
28(a)(9)(A) and D.C. Cir. R. 28(d). See Appellee’s Br. at 7, 10.
7
another plausible reading is that “appropriate relief” covers
equitable relief but not damages, given Congress’s awareness of
the importance of sovereign immunity and its silence in the
statute on the subject of damages. We cannot find an
unambiguous waiver in language this open-ended and equivocal.
Congress need not use magic words to waive sovereign
immunity, but the language it chooses must be unequivocal and
unambiguous. See Dep’t of Army v. Blue Fox, Inc., 525 U.S.
255, 261 (1999). RFRA’s text falls short on this standard.2 We
therefore hold that RFRA does not waive the federal
government’s sovereign immunity for damages.
III. Conclusion
For the reasons stated above, the District Court’s dismissal
of Appellants’ claims for lack of jurisdiction is therefore
Affirmed.
2
While no appellate courts have squarely addressed the issue
before us, at least five district courts have concluded that RFRA’s
textual reference to “appropriate relief” is not an unequivocal waiver
of sovereign immunity for damages. See Lepp v. Gonzales, 2005 WL
1867723, at *8 (N.D. Cal. Aug. 2, 2005); Pineda-Morales v. De Rosa,
2005 WL 1607276, at *13 (D.N.J. July 6, 2005); Jama v. INS, 343 F.
Supp. 2d 338, 372-73 (D.N.J. 2004); Tinsley, 952 F. Supp. at 389;
Meyer v. Fed. Bureau of Prisons, 929 F. Supp. 10, 13-14 (D.D.C.
1996); cf. Commack Self-Serv. Kosher Meats Inc. v. New York, 954 F.
Supp. 65, 68-70 (E.D.N.Y. 1997); Rust v. Clarke, 851 F. Supp. 377,
380-81 (D. Neb. 1994); see also Mack v. O’Leary, 80 F.3d 1175, 1177
(7th Cir. 1996) (dictum) (referencing the “appropriate relief” language
and mentioning that “there is no indication of congressional intent to
abrogate the states’ Eleventh Amendment immunity from suit”),
vacated sub nom. O’Leary v. Mack, 522 U.S. 801 (1997).
TATEL, Circuit Judge, concurring: Although I concur in the
court’s opinion, I write separately to explain why, even though
“[i]n some contexts, ‘appropriate relief’ might include
damages,” majority op. at 6, it does not when used in RFRA.
Of course, as the court points out, a critical factor in our
declining to read “appropriate relief” to include damages is our
obligation to construe waivers of sovereign immunity strictly,
and therefore to require Congress to authorize damages
unequivocally. See id. at 5. Thus, although appellants rightly
point out that the term “appropriate relief” ordinarily “confers
broad discretion on the Court” to fashion a remedy, Sch. Comm.
of the Town of Burlington, Mass. v. Dep’t of Educ., 471 U.S.
359, 369 (1985), such sweeping statements have no applicability
in the sovereign immunity context.
Turning to the statute before us, I believe that we cannot
rest on the general proposition that “appropriate relief” is
“susceptible to more than one interpretation.” Majority op. at 6.
Instead, because “Congress need not use magic words to waive
sovereign immunity,” id. at 7, we must determine whether the
term “appropriate relief” as used in this statute unequivocally
includes damages. In my view, it would if either (1) damages
would constitute the only appropriate remedy for the particular
harm at which the statute is aimed, or (2) Congress elsewhere
made clear that it considered damages to be the appropriate
remedy. Because RFRA falls into neither category, I agree that
its sovereign immunity waiver must be limited to equitable
relief.
To understand the first category, consider the following
hypothetical statute: “If a government official hits a person over
the head with a baseball bat, that person may file suit and obtain
appropriate relief against the government.” Interpreting such a
statute to authorize only equitable relief would make little sense:
what equitable relief could possibly remedy such a one-time
injury? It thus makes no difference that the hypothetical statute
2
does not expressly authorize damages, for the type of injury the
statute addresses makes clear that damages are “appropriate.”
RFRA violations, in contrast, will often be ongoing, making
injunctive relief “appropriate.” For example, in this case
appellants originally sought an injunction requiring the prison to
accommodate their religious needs by revising the menu and
implementing a training and monitoring program for prison
staff. See also Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, __ S. Ct. ___, 2006 WL 386374 (U.S. Feb. 21,
2006) (affirming grant of preliminary injunction under RFRA
for religious sect seeking to block enforcement of ban on use of
sacramental tea). The district court dismissed appellants’ claims
for injunctive relief only because those claims became moot
when appellants were released from prison. Webman v. Fed.
Bureau of Prisons, No. 03-172, slip op. at 11 (D.D.C. Mar. 21,
2004) (dismissing appellant Rozen’s claims as moot because he
was no longer incarcerated); Webman v. Fed. Bureau of Prisons,
No. 03-172, slip op. at 6-9 (D.D.C. Jan. 4, 2005) (dismissing
appellant Webman’s claims for same reason). Accordingly, I
see no indication that RFRA violations will ordinarily lend
themselves to monetary relief.
The Supreme Court invoked a version of the second
category referred to above in West v. Gibson, 527 U.S. 212
(1999). There, the Court considered the Equal Employment
Opportunity Commission’s authority to enforce Title VII of the
Civil Rights Act of 1964 against the federal government.
Enacted in 1972, the relevant provision authorized the EEOC to
enforce the prohibition on discrimination by the federal
government “through appropriate remedies, including
reinstatement or hiring of employees with or without back pay,
as will effectuate the policies of this section.” 42 U.S.C.
§ 2000e-16(b), quoted in West, 527 U.S. at 215. In 1991,
Congress amended Title VII to authorize awards of
3
compensatory damages in certain circumstances against both
private parties and the government. Civil Rights Act of 1991,
Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1072 (codified at 42
U.S.C. § 1981a). Although the 1991 amendment, the relevant
portion of which the Supreme Court labeled the “Compensatory
Damages Amendment (CDA),” West, 527 U.S. at 215, made
clear that courts could award compensatory damages, it made no
change to the provision authorizing the EEOC to enforce the
statute through “appropriate remedies.”
In West, the Supreme Court held that the EEOC had
authority to award compensatory damages against the
government. “After enactment of the 1991 CDA,” the Court
reasoned, “an award of compensatory damages is a ‘remedy’
that is ‘appropriate.’” Id. at 217. Recognizing that “ordinary
sovereign immunity presumptions may not apply” because
Congress made clear that courts (as distinguished from the
EEOC) could award damages, the Court nonetheless held that
“if we must apply a specially strict standard . . . , that standard
is met here.” Id. at 222. The Court went on to explain that “the
statutory language, taken together with statutory purposes,
history, and the absence of any convincing reason for denying
the EEOC the relevant power, produce evidence of a waiver that
satisfies the stricter standard.” Id. Again, although Title VII
contained no express authorization of damage awards, the
context made Congress’s intent apparent.
Unlike Title VII, RFRA nowhere makes clear that damages
are “appropriate” (at least when awarded against the
government, cf. 42 U.S.C. § 2000bb-2 (including government
officials as well as the government itself in the term
“government”)). Indeed, RFRA’s quite limited purpose
suggests the contrary. Congress passed RFRA to provide the
claims and defenses that the Supreme Court held in Employment
Division, Department of Human Resources v. Smith, 494 U.S.
4
872 (1990), were unavailable under the First Amendment’s Free
Exercise Clause. See 42 U.S.C. § 2000bb(b) (describing
RFRA’s purposes as “to restore the compelling interest test as
set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its
application in all cases where free exercise of religion is
substantially burdened” and “to provide a claim or defense to
persons whose religious exercise is substantially burdened by
government”). Appellants point to no pre-Smith waiver of
sovereign immunity that authorized damages against the
government in Free Exercise cases, nor am I aware of one.
Because Congress enacted RFRA to return to a pre-Smith world,
a world in which damages were unavailable against the
government, “appropriate relief” is most naturally read to
exclude damages against the government. Thus, unlike Title
VII’s purpose, RFRA’s purpose does not “produce evidence of
a waiver” of sovereign immunity for damages claims, West, 527
U.S. at 222, much less evidence unequivocal enough to satisfy
the strict standard for waivers of sovereign immunity.