5th Cir.: RLUIPA does not provide damages

The Fifth Circuit held that states waived immunity from suit but not immunity from damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Following the flawed approach of the Fourth Circuit, the panel held RLUIPA’s “appropriate relief” provision failed to unambiguously signal that states would be subjected to damages. By holding that RLUIPA’s clear waiver extends only to injunctive relief, the decision renders the Ex Parte Young doctrine nearly superfluous. The court also held that RLUIPA creates no individual liability. Sossamon v. Lone Star State of Texas, --- F.3d ----, 2009 WL 382260 (5th Cir. Feb. 17, 2009).

            RLUIPA, 42 U.S.C. § 2000cc-1 et seq., was passed by Congress after the invalidation of the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores, 521 U.S. 507 (1997). Among other things, RLUIPA imposes strict scrutiny on prison policies that burden religious expression, and permits prisoners to sue for “appropriate relief.” In this case, Sossamon claims he has been denied use of the prison chapel and the ability to attend Christian worship services. The court found his claim for injunctive relief regarding access to worship services moot, because following a change in statewide policy such denial would be unlikely to recur.

             Courts have generally agreed that Congress validly used its spending power to require waiver of state immunity under RLUIPA, but have split on the scope of that waiver.  Smith v. Allen, 502 F.3d 1255 (11th Cir.2007) (summary), held that RLUIPA’s remedial language clearly encompassed damages, while Madison v. Commonwealth of Virginia, 474 F.3d 118 (4th Cir. 2006), held that under the Spending Clause a damages remedy must be explicit. So far, most district courts have followed Madison, as did the panel here. It acknowledged that “RLUIPA is clear that states incur an obligation when they accept federal funds.” However, the court said while “appropriate relief” might typically encompass damages, in the context of a spending-based waiver of sovereign immunity damages must be “expressly provided.” (While the Fourth Circuit emphasized the Spending Clause in reaching this holding, the Fifth Circuit placed the emphasis on sovereign immunity; the Supreme Court has employed clear-statement rules to both.)

           Sossamon and Madison draw a very problematic distinction between waiver of immunity from suit and waiver of immunity from damages. A waiver of immunity that does not extend to damages will be redundant in nearly all cases, due to the Ex Parte Young exception to sovereign immunity. It does not make sense that Congress would require a waiver that is virtually redundant – nor that it would do so in language (“appropriate relief”) which has been sufficient to provide damages under other statutes, such as the Occupational Safety and Health Act, 29 U.S.C. § 660(c).

            Because of this holding, the court did not reach the application of the Prisoner Litigation Reform Act’s remedies limitations to RLUIPA, another subject on which courts have split. (Some have held that PLRA's bar on emotional damages applies to RLUIPA and First Amendment claims, while others say that it does not.) The court did hold, however, that as Spending Clause legislation, RLUIPA does not create remedies against individuals, who are not recipients of federal funds (a holding also reached by Smith). Finally, on the merits of Sossamon's injunctive relief claim relating to chapel use,, the court held that factual disputes precluded summary judgment.