Ghailani v. Sessions

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 21, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

AHMED KHALFAN GHAILANI,

Plaintiff - Appellant,

v. No. 15-1128

JEFFERSON B. SESSIONS, III, United
States Attorney General; UNITED
STATES ATTORNEY’S OFFICE FOR
THE SOUTHERN DISTRICT OF NEW
YORK; FEDERAL BUREAU OF
INVESTIGATION; OFFICE OF
ENFORCEMENT OPERATIONS;
FEDERAL BUREAU OF PRISONS;
DAVID BERKEBILE, ADX Warden,

Defendants - Appellees.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-00041-CMA-BNB)
_________________________________

Sean Connelly, Zonies Law LLC, Denver, Colorado, for Plaintiff - Appellant.

Ahmed Khalfan Ghailani filed a brief pro se.

Joshua Waldman, Attorney, Appellate Staff (Benjamin C. Mizer, Acting Assistant
Attorney General, John F. Walsh, United States Attorney, and H. Thomas Byron, III,
Attorney, Appellate Staff, U.S. Department of Justice, Washington, D.C., with him on the
briefs), U.S. Department of Justice, Washington, D.C., for Defendants - Appellees.

_________________________________
 *
Before PHILLIPS and SEYMOUR, Circuit Judges.
_________________________________

SEYMOUR, Circuit Judge.
_________________________________

Ahmed Khalfan Ghailani is a prisoner at the United States Penitentiary,

Administrative Maximum Facility in Florence, Colorado (“ADX Florence”). He was

subjected to Special Administrative Measures (“SAMs”) that limited his contact with the

outside world due to his past terrorist activities and his connections with terrorist groups.

One of the restrictions included a prohibition against participating in group prayer. Mr.

Ghailani, as a pro se plaintiff, challenged the legality of his numerous restrictions. He

requested a declaratory judgment proclaiming that the government’s imposition and

enforcement of the restrictions violated numerous constitutional provisions as well as the

Religious Freedom and Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. He also sought

an injunction ordering the government to permit his participation in group prayer. The

district court dismissed his suit for failure to state a claim. While his case was on appeal,

*
The Honorable Neil Gorsuch heard oral argument but did not participate in this opinion
due to his ascent to the United States Supreme Court. The practice of this court permits
the remaining two panel judges, if in agreement, to act as a quorum in resolving this
appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n*
(10th Cir. 1997) (noting this court allows remaining panel judges to act as a quorum to
resolve an appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2d Cir. 1994) (remaining
two judges of original three judge panel may decide petition for rehearing without third
judge), cert. denied, 513 U.S. 1082 (1995).

2
the government allowed Mr. Ghailani’s SAMs to expire. But he is still prohibited from

participating in group prayer due to the housing restrictions at ADX Florence, a high

security prison.

We reverse for the reasons set out below.

I.

This case has its origin in the 1998 United States embassy bombings in Kenya and

Tanzania, in which 224 people were killed and thousands were injured. United States v.

Ghailani, 733 F.3d 29, 39 (2d Cir. 2013). Mr. Ghailani was an Al-Queda operative and

part of the terror cell that perpetrated those bombings but, unlike several of his co-

conspirators, he eluded authorities for six years before he was finally captured in 2004.

Id. In 2006, he was transferred to Guantanamo Bay Detention Center and remained there

until 2009, when he was transferred to New York, arraigned, and held in the Metropolitan

Correctional Center while he awaited trial. Id. at 40.

Mr. Ghailani was first subjected to SAMs upon his arrival in New York. SAMs

are tools used to limit privileges for certain federal inmates. 28 C.F.R. § 501.3(a). They

may be imposed if there is a finding “of a substantial risk that a prisoner’s . . . contacts

with persons could result in death or serious bodily injury to persons, or substantial

damage to property that would entail the risk of death or serious bodily injury to

persons.” Id. The SAMs must be “reasonably necessary to protect persons against the

risk of acts of violence or terrorism.” Id. Moreover, they must be based on findings

specific to the inmate which demonstrate the risk posed by the inmate’s contacts and

communications. The Attorney General must first instruct the Director of the Bureau of

3
Prisons to issue the SAMs, and then the Director authorizes the prison warden to enforce

them. Id. SAMs have a one-year limit and the only way they may be extended is upon

written notification from the Attorney General stating that “there continues to be a

substantial risk that the inmate’s communications or contacts with other persons could

result in death or serious bodily injury to persons, or substantial damage to property that

would entail the risk of death or serious bodily injury to persons.” § 501.3(c). The

inmate must be provided written notification of the basis for the SAMs, § 501.3(b), and

an inmate subject to SAMs may seek administrative review of his restrictions, § 501.3(e).

After his conviction, Mr. Ghailani was transferred to ADX Florence, where he

remains today. His 2009 SAMs were extended every year through June 10, 2015.

Imposition of each of the SAMs was justified by the Attorney General on the basis of Mr.

Ghailani’s “central role” in the embassy bombing, his “connections to and proclivity for

terrorism,” and his “notoriety and ability to inspire and influence others to engage in acts

of violence and terrorism.” 2014 SAM, ROA, vol. I at 276-77.1 In light of those

concerns, the SAMs imposed limitations on Mr. Ghailani’s contacts and communications

that “could reasonably foreseeably result in [his] communicating information (sending or

receiving) that could circumvent the SAM’s intent of significantly limiting [his] ability to

communicate (send or receive) terrorism-related information.” Id. at 278. In addition to

numerous specified limitations on his contacts with others both inside and outside the

prison, the SAMs also specifically incorporated by reference all restrictive policies of the

1
Each of the SAMs were identical in relevant part. Hereinafter, we will cite to the 2014
SAM.
4
prison. Id. at 277. Most significantly for our present purposes, Mr. Ghailani was

prohibited from engaging in group prayer with other inmates in accordance with his

religion.

In January 2014, Mr. Ghailani filed a six-count complaint in the district court. He

challenged the SAMs on various grounds. He also challenged the prison’s “policy

created specifically to target plaintiff’s ability to freely exercise his religion.” Id. at 186.

His religious exercise challenge was brought under both the First Amendment and RFRA

and was based on the prohibition on his “participat[ing] in group prayer.” Id. at 183. Mr.

Ghailani sought to “pray Jumu’ah prayer”—which is a Muslim group prayer that occurs

once a week and involves “five daily prayers in group,” id. at 186—but he was forbidden

to do so. The remaining claims were all based solely on the SAMs and they included (1)

a First Amendment claim challenging the deprivation of his right to use the mail to

contact his friends, family, and sometimes his attorney; (2) a First Amendment claim

challenging a SAM provision that prohibited him from talking to the news media; (3) a

Fifth Amendment Due Process claim arguing that the SAMs constituted an atypical and

significant hardship and deprived him of a significant liberty interest without due process;

(4) an Eighth Amendment claim contending the SAMs provision that required his solitary

confinement was cruel and unusual punishment; and (5) a Fifth Amendment claim

arguing that the imposition and re-imposition of the SAMs violated the Fifth

Amendment’s prohibition of Double Jeopardy.

The government filed a motion to dismiss. On November 3, 2014, the magistrate

judge recommended dismissal of all of Mr. Ghailani’s First Amendment claims and his

5
RFRA claim because he failed to allege “sufficient facts to indicate the plausibility that

the actions of which he complains were not reasonably related to legitimate penological

interests.” ROA, vol. I at 425 (quoting Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir.

2010) (emphasis in original)). The judge recommended dismissal of Mr. Ghailani’s Fifth

Amendment claim because he “failed to allege facts demonstrating that the SAMs

implicate a liberty interest,” id. at 427, and dismissal of Mr. Ghailani’s Eighth

Amendment claim because his complaint “failed to allege an ‘unquestioned and serious

deprivation of basic human needs’ or ‘intolerable or shocking conditions,’” id. at 429

(quoting Hill v. Pugh, 75 F. App’x 715, 721 (10th Cir. 2003) (unpublished)). Finally, the

magistrate judge recommended dismissal of Mr. Ghailani’s Double Jeopardy claim

because the SAMs did not arise out of criminal proceedings and the “risk to which the

[Double Jeopardy] Clause refers is not present in proceedings that are not ‘essentially

criminal.’” Id. at 430 (alteration in original) (quoting Breed v. Jones, 421 U.S. 519, 528

(1975)).

On January 30, 2015, the district court determined that “Magistrate Judge

Boland’s Report and Recommendation is correct and is not called into question by

Plaintiff’s objection,” id. at 533, and granted the government’s motion to dismiss with

prejudice. Mr. Ghailani appeals.2

2
Although Mr. Ghailani started his appeal as a pro se plaintiff, we appointed counsel to
represent him and requested supplemental briefing on the following issue:

[T]o state a plausible claim under the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. § 2000bb-1, is a prisoner required to plead
facts tending to show that a substantial burden on his or her exercise
6
 II.

A. Mootness

A majority of Mr. Ghailani’s request for relief focused on the SAMs. On June 10,

2015, however, Mr. Ghailani’s 2014 SAMs expired and they were not renewed. The

government therefore contends Mr. Ghailani’s claims are moot.

“We review mootness de novo as a legal question.” United States v. Fisher, 805

F.3d 982, 989 (10th Cir. 2015). In cases involving mootness, “[t]he starting point for

[our] analysis is the familiar proposition that ‘federal courts are without power to decide

questions that cannot affect the rights of litigants in the case before them.’” DeFunis v.

Odegaard, 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246,

(1971)). The mootness doctrine “derives from the requirement of Art. III of the

Constitution under which the exercise of judicial power depends upon the existence of a

case or controversy.” Id. The Supreme Court has described it as “the doctrine of

standing set in a time frame: The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue throughout its existence

(mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting

Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J.

of religion is not in furtherance of a compelling governmental
interest and is not the least restrictive means of furthering that
interest? Cf. Gee v. Pacheco, 627 F.3d 1178, 1187-88 (10th Cir.
2010) (requiring prisoner, with regard to First Amendment claim, to
“include sufficient facts to indicate the plausibility that the actions of
which he complains were not reasonably related to legitimate
penological interests”).

Order Appointing Counsel (10th Cir. Mar. 10, 2016).
7
1363, 1384 (1973)). “The crucial question is whether granting a present determination of

the issues offered will have some effect in the real world.” Wyoming v. U.S. Dep’t of

Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (quoting Citizens for Responsible Gov’t

State Political Action Comm. v. Davidson, 236 F.3d 1214, 1223 (10th Cir. 2001)). “Put

another way, a case becomes moot ‘when a plaintiff no longer suffers “actual injury that

can be redressed by a favorable judicial decision.’” Ind v. Colo. Dep’t of Corr., 801 F.3d

1209, 1213 (10th Cir. 2015) (quoting Rhodes v. Judiscak, 606 F.3d 931, 933(10th Cir.

2012)).

But there are certain exceptions to mootness where “a case remains subject to

federal court jurisdiction notwithstanding the seeming extinguishment of any live case or

controversy.” Brown v. Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016). Mr. Ghailani

argues that two of those exceptions are applicable in this case. We will address each in

turn.

1. Capable of Repetition Yet Evading Review

Courts will not find a case moot if the issue is deemed a wrong capable of

repetition yet evading review. This exception applies where “(1) the challenged action is

in its duration too short to be fully litigated prior to cessation or expiration; and (2) there

is a reasonable expectation that the same complaining party will be subject to the same

action again.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer

v. Kemna, 523 U.S. 1, 17 (1998)).

Mr. Ghailani contends this exception applies here, relying on our decision in Al-

Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012). In Al-Owhali, an inmate challenged

8
the constitutionality of a SAM that prevented him from subscribing to two Arabic-

language newspapers. Id. at 1239. By the time his case was on appeal, his SAMs had

been amended and no longer included the newspaper restriction. Id. at 1241-42. We

nevertheless held the issue was not moot because it was capable of repetition yet evading

review. Id. at 1242. We reasoned that “[i]f we prohibited any challenge to a lapsed

SAM, inmates would only have one year to litigate and appeal a case. This feat will

often be impossible, as this case illustrates: Years have elapsed since Al-Owhali first

brought his claim.” Id. As to whether there was a reasonable expectation that Mr. Al-

Owhali would be subjected to the same action again, we concluded that “there is nothing

preventing the government from introducing more restrictive SAMs in any given year”

and a “prisoner can reasonably expect SAMs to change from year to year and fluctuate in

severity.” Id.

Al-Owhali makes clear that SAMs are generally too short in duration to be fully

litigated before expiration. But there is a significant distinction between Mr. Al-Owhali’s

situation and the one here. Mr. Al-Owhali’s SAMs never completely expired. Instead,

they just changed somewhat from year to year. Id. at 1242. Accordingly, the factual

justification supporting imposition of the SAMs remained current. In the present case,

however, the Attorney General has allowed Mr. Ghailani’s SAMs to completely expire.

As the government explained at oral argument, the reason why Mr. Ghailani’s SAMs

were eliminated was because the majority of his co-conspirators involved in the embassy

bombings “have been either captured or killed,” Mr. Ghailani has exhibited “good

conduct” while in prison, “his notoriety and his ability to inspire others” has waned with

9
the passage of time, and he was the only conspirator who expressed remorse for his

actions. Oral Argument at 16:32-17:10. Accordingly, the Attorney General no longer

believes “that there continues to be a substantial risk that [his] communications or

contacts with other persons could result in death or serious bodily injury to persons.” 28

C.F.R. § 501.3(c).

To hold that there is a reasonable expectation the government will re-impose

SAMs on Mr. Ghailani would require us to find that it has withdrawn them for almost

two years while still believing that all the risks justifying the SAMs still exist, just to win

a case on mootness that it already won below on the merits. We decline to do so. In the

circumstances here, we are persuaded there is no reasonable expectation that Mr.

Ghailani will be subjected to SAMs again.

2. Voluntary Cessation

As we recognized in Ind, 801 F.3d at 1214:

A plaintiff’s claim is not rendered moot by the voluntary cessation of
a challenged practice which the defendant is free to resume at any
time. Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d
884, 892 (10th Cir. 2008). This exception to mootness “exists to
counteract the possibility of a defendant ceasing illegal action long
enough to render a lawsuit moot and then resuming the illegal
conduct.” Id.

“[A] defendant claiming that its voluntary compliance moots a case bears the formidable

burden of showing that it is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

Inc., 528 U.S. 167, 190 (2000) (quoting United States v. Concentrated Phosphate Export

Ass’n., 393 U.S. 199, 203 (1968)).

10
 A defendant’s voluntary actions may nevertheless moot litigation if two conditions

are met: “(1) it can be said with assurance that there is no reasonable expectation that the

alleged violation will recur, and (2) interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v.

Davis, 440 U.S. 625, 631 (1979) (internal quotation marks, ellipsis, and citations

omitted). Significantly for our purposes, “[c]ourts are more apt to trust public officials

than private defendants to desist from future violations.” 13C CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE,

§ 3533.7 at 333(3d ed. 2008) (citing cases). Accordingly, we “have indicated that

government ‘self-correction provides a secure foundation for mootness so long as it

seems genuine.’” Buhman, 822 F.3d at 1167-68 (quoting Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1118 (10th Cir. 2010)).

We conclude here that the government’s voluntary cessation has met the

conditions listed in Davis. First, as we explained above, it is unlikely the government

suspended SAMs on a prisoner whom it thought posed a threat of serious bodily injury to

American citizens just to moot a case it won below on the merits. We have been given

no reason to question the good faith of the government in the explanation it gave us.

As to the second Davis condition, there is no evidence that any of the former SAM

restrictions are currently affecting Mr. Ghailani. While he is still being denied the ability

to pray Jumu’ah, that prohibition “is consistent with . . . the housing conditions at the

ADX,” Defendants’ Motion to Dismiss, ROA vol. I at 256, and it continues despite the

expiration of the SAMs.

11
 We conclude that all of the claims Mr. Ghailani has raised relating to his SAM

restrictions are moot.3

B. Mr. Ghailani’s Claim That He is Not Allowed to Pray Jumu’ah

Even without the SAMs in place, Mr. Ghailani is still prohibited from praying

Jumu’ah in prison due to the ADX Florence housing conditions. “Jumu’ah is

commanded by the Koran and must be held every Friday after the sun reaches its zenith

and before the Asr, or afternoon prayer.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 345

(1987). The government asserts that we should dismiss this issue as insufficiently raised

and require that Mr. Ghailani bring a new action if he wants to challenge the prison

policies. Mr. Ghailani counters by arguing that his pro se complaint challenged not only

the SAMs but also “the policy created specifically to target [his] ability to freely exercise

his religion.” ROA, vol. I at 186. We agree.

First, while Mr. Ghailani asked the court to grant four different requests for relief,

only three mentioned the SAMs. One asked the court to review the constitutionality of

28 C.F.R. § 501.3; another one asked the court to issue multiple declaratory judgments

stating that the SAMs violated numerous constitutional provisions; and the third asked

3
If we are mistaken about the government’s intentions and it chooses to reinstate the
SAMs after this suit is over, Mr. Ghailani will be allowed to challenge the restrictions
regardless of any future revocation. See Jews for Jesus, Inc. v. Hillsborough Cty.
Aviation Auth., 162 F.3d 627, 630 (11th Cir. 1998) (“We may, of course, be mistaken
about the secret intentions of Tampa International Airport’s officials. If they choose to
reinstate their restrictive policies—or adopt similar ones—the courthouse door is open to
Jews for Jesus to reinstate its lawsuit. Under such circumstances, the case would not be
moot even if the airport again revoked its policies in response to the lawsuit, because
such ‘flip-flopping’ would create a reasonable expectation that the airport would reinstate
the challenged practice at the close of the lawsuit.”).
12
the court to issue a preliminary injunction ordering the government to refrain from

reimposing the SAMs until resolution of the case. In the last request, however, Mr.

Ghailani specifically asked the court to “issue an injunction ordering defendants to . . .

[a]llow Plaintiff to participate in group prayer” and to “[a]ccommodate plaintiff with a

place to exercise his religion.” Id. at 199. Second, “[a] pro se litigant’s pleadings are to

be construed liberally and held to a less stringent standard than formal pleadings drafted

by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). As Mr. Ghailani

points out on appeal, the government admitted in its brief to the district court that “the

group prayer ban is consistent with the other provisions in Ghailani’s SAMs and the

housing conditions at ADX . . . .” ROA, vol. I at 256. (emphasis added). We will

therefore review Mr. Ghailani’s claim that he is being denied his rights under the First

Amendment and RFRA by the prison’s group prayer ban.

We review a district court’s dismissal of a claim under the Federal Rules of Civil

Procedure, 12(b)(6) de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.

2012). A pleading that states a claim for relief must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). In a

pair of Supreme Court cases discussing the requirements of Rule 8, Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 545-46 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the

Court established a heightened pleading requirement for federal civil cases. The Court

stated that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” would no longer suffice to “unlock the doors of discovery,” and

13
“only a complaint that states a plausible claim for relief [will] survive a motion to

dismiss.” Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555-57).

Interpreting the standard set forth in Twombly and Iqbal, we held in Gee, 627 F.3d

at 1188, that a prisoner alleging a violation of his First Amendment rights “must include

sufficient facts to indicate the plausibility that the actions of which he complains were not

reasonably related to legitimate penological interests.” The “legitimate penological

interests” language comes from Turner v. Safley, 482 U.S. 78, 89 (1987), where the

Supreme Court departed from its traditional First Amendment framework set forth in

Sherbert v. Verner, 374 U.S. 398, 403 (1963) (holding any incidental burden on

somebody’s free exercise of religion must be justified by a “compelling state interest”),

and held instead that “when a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate penological

interests.”

The district court dismissed Mr. Ghailani’s religious freedom claim with prejudice

on the basis that he failed to meet the requirements of Gee in his complaint, i.e., that he

did not include facts showing the regulations restricting his ability to pray Jumu’ah were

not related to a legitimate penological interest. We agree with this analysis as applied to

Mr. Ghailani’s First Amendment claim. However, Mr. Ghailani also pled that the

restriction on his ability to pray was a violation of RFRA. The district court erred in

14
applying the same pleading requirement to the RFRA claim as it did to the constitutional

religious freedom claim.4

Some background on RFRA and the cases interpreting it is helpful to illustrate

why this is so. RFRA’s enactment was the direct result of the Supreme Court’s decision

in Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S.

872 (1990), where the Court introduced a new test for evaluating claims brought under

the Free Exercise Clause of the First Amendment. Instead of applying the strict scrutiny

standard that was introduced in Verner, the Court held in Smith that the First Amendment

does not “relieve an individual of the obligation to comply with a ‘valid and neutral law

of general applicability.’” Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3

(1982)).

Congress enacted RFRA to overturn Smith. Finding that “laws ‘neutral’ toward

religion may burden religious exercise as surely as laws intended to interfere with

religious exercise,” 42 U.S.C. § 2000bb(a)(2), Congress “restore[d] the compelling

4
We also note that the district court dismissed Mr. Ghailani’s pro se complaint with
prejudice. As we recognized in Gee v. Pacheco, 627 F.3d 1178, 1185-86 (10th Cir.
2010), however,

[a] pro se prisoner may fail to plead his allegations with the skill
necessary to state a plausible claim even when the facts would
support one. But ordinarily the dismissal of a pro se claim under
Rule 12(b)(6) should be without prejudice, see Oxendine v. Kaplan,
241 F. 3d 1272, 1275 (10th Cir. 2001) (“[D]ismissal of a pro se
complaint for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has alleged
and it would be futile to give him an opportunity to amend”); . . . and
a careful judge will explain the pleading’s deficiencies so that a
prisoner with a meritorious claim can then submit an adequate
complaint.
15
interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.

Yoder, 406 U.S. 205 (1972) and . . . guarantee[d] its application in all cases where free

exercise of religion is substantially burdened,” id. § 2000bb(b)(1). See also Gonzales v.

O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).

Accordingly, RFRA’s main provision reads as follows:

(a) In general
Government shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability, except as
provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only
if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.

Id. § 2000bb-1(a)-(b) (emphasis added). 5

The text of RFRA left open the question whether the government’s compelling

interest burden would apply in the prisoner context, as opposed to the relaxed standard

introduced in Turner. We resolved that issue in Kikumara v. Hurley, 242 F.3d 950, 962

(10th Cir. 2001), where we held that “neither the text, nor the legislative history of RFRA

suggest that [the] relaxed standard [from Turner] applies to the government’s burden

when a prisoner makes a RFRA claim.” We explained the difference between a

prisoner’s religious freedom claim brought under the First Amendment versus one

brought under RFRA as follows:

5
RFRA originally applied to all federal and state laws, but in City of Boerne v. Flores,
521 U.S. 507, 536 (1997), the Supreme Court held that Congress had exceeded its
authority under Section 5 of the Fourteenth Amendment and concluded that RFRA was
unconstitutional as applied to the states.
16
 Under the Turner analysis, a court is to consider whether the prison
regulation is “reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89. Under RFRA, however, a court is to
consider whether the “application of the burden” to the claimant “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(b) (emphasis added). Thus, under
RFRA, a court does not consider the prison regulation in its general
application, but rather considers whether there is a compelling
government reason, advanced in the least restrictive means, to apply
the prison regulation to the individual claimant.

Id. Because the Turner standard does not apply to a RFRA claim, a prisoner-plaintiff

clearly need not plead facts showing “that the actions of which he complains were not

reasonably related to legitimate penological interests,” as Gee required for First

Amendment claims. Accordingly, while the district court properly dismissed Mr.

Ghailani’s First Amendment claim alleging that the prison violated his free exercise

rights by not allowing him to pray Jumu’ah, it erred in dismissing his RFRA claim.

Moreover, just as Mr. Ghailani did not need to plead facts showing the

government lacked a legitimate penological interest, he also did not need to plead facts

showing that the restrictions were not in “furtherance of a compelling governmental

interest” and were not “the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1(b)(1)-(2). Subsection (b) of RFRA is an

“affirmative defense,” and “the burden is placed squarely on the Government by RFRA.”

Gonzales, 546 U.S. at 429; see also Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“the

burden of pleading [affirmative defenses] rests with the defendant.” (citing FED. R. CIV.

P. 8(c)); Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014) (“The Court held in Gomez . .

17
. that complaints need not anticipate affirmative defenses; neither Iqbal nor Twombly

suggests otherwise”).

Finally, the government argues that by attaching the SAMs to his complaint, Mr.

Ghailani provided the court with proof that the government had a compelling interest in

the free exercise limitation that it applied in the least restrictive way, thus setting out the

government’s affirmative defense which Mr. Ghailani should have then negated. We are

skeptical of the merits of this argument because the compelling interest test cannot “be

satisfied by the government’s bare say-so.” Yellowbear v. Lampert, 741 F.3d 48, 59

(10th Cir. 2014). Regardless, the government has admitted that the factual basis for the

SAMs, the risk that Mr. Ghailani imposed because of his terrorist activities in 1998, has

expired. The government’s argument thus expired with the SAMs and the burden

remains on it to affirmatively demonstrate that denying Mr. Ghailani the right to freely

exercise his religion by praying Jumu’ah once a week is in furtherance of a compelling

governmental interest in the least restrictive manner.

Accordingly, we REVERSE the decision of the district court granting the

government’s motion to dismiss Mr. Ghailani’s SAMs claims and REMAND with

instructions to dismiss those claims as moot. We also REVERSE the district court’s

dismissal of Mr. Ghailani’s RFRA claim and REMAND for further proceedings in

accordance with this opinion.

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