SOSSAMON v. TEXAS

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 08–1438

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HARVEY LEROY SOSSAMON, III, PETITIONER v.

TEXAS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 20, 2011]

JUSTICE THOMAS delivered the opinion of the Court.

This case presents the question whether the States, by accepting federal funds, consent to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. We hold that they do not. Sovereign immunity therefore bars this suit for damages against the State of Texas.

I

A

RLUIPA is Congress’ second attempt to accord heightened statutory protection to religious exercise in the wake of this Court’s decision in Employment Division, Depart­ ment of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990). Congress first enacted the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., with which it intended 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) . . . in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1). See generally Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006). We held RFRA unconstitutional as applied to state and local governments because it exceeded Congress’ power under §5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507 (1997).

Congress responded by enacting RLUIPA pursuant to its Spending Clause and Commerce Clause authority. RLUIPA borrows important elements from RFRA—which continues to apply to the Federal Government—but RLUIPA is less sweeping in scope. See Cutter v. Wilkin ­ son, 544 U. S. 709, 715 (2005). It targets two areas of state and local action: land-use regulation, 42 U. S. C. §2000cc (RLUIPA §2), and restrictions on the religious exercise of institutionalized persons, §2000cc–1 (RLUIPA §3).

Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise” of an institutionalized person unless, as in RFRA, the government demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest. §2000cc–1(a); cf. §§2000bb–1(a), (b). As relevant here, §3 applies “in any case” in which “the substantial burden is imposed in a program or activity that receives Federal financial assistance.”1 §2000cc–1(b)(1).

RLUIPA also includes an express private cause of action that is taken from RFRA: “A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” §2000cc–2(a); cf. §2000bb–1(c). For purposes of this provision, “government” includes, inter alia, States, counties, municipalities, their instrumentalities and officers, and persons acting under color of state law. §2000cc–5(4)(A).

B

Petitioner Harvey Leroy Sossamon III is an inmate in the Robertson Unit of the Texas Department of Criminal Justice, Correctional Institutions Division. In 2006, Sossamon sued the State of Texas and various prison officials in their official capacities under RLUIPA’s private cause of action, seeking injunctive and monetary relief. Sossamon alleged that two prison policies violated RLUIPA: (1) a policy preventing inmates from attending religious services while on cell restriction for disciplinary infractions; and (2) a policy barring use of the prison chapel for religious worship. The District Court granted summary judgment in favor of respondents and held, as relevant here, that sovereign immunity barred Sossamon’s claims for monetary relief.2 See 713 F. Supp. 2d 657, 662–663 (WD Tex. 2007).

The Court of Appeals for the Fifth Circuit affirmed. 560 F. 3d 316, 329 (2009). Acknowledging that Congress enacted RLUIPA pursuant to the Spending Clause, the court determined that Texas had not waived its sovereign immunity by accepting federal funds. The Court of Appeals strictly construed the text of RLUIPA’s cause of action in favor of the State and concluded that the statutory phrase “appropriate relief against a government” did not “unambiguously notif[y]” Texas that its acceptance of funds was conditioned on a waiver of immunity from claims for money damages. Id., at 330–331. We granted certiorari to resolve a division of authority among the courts of appeals on this question.3 560 U. S. ___ (2010).

II

“Dual sovereignty is a defining feature of our Nation’s constitutional blueprint.” Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 751 (2002). Upon ratification of the Constitution, the States entered the Union “with their sovereignty intact.” Ibid. (internal quotation marks omitted).

Immunity from private suits has long been considered “central to sovereign dignity.” Alden v. Maine, 527 U. S. 706, 715 (1999). As was widely understood at the time the Constitution was drafted:

“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its con ­ sent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.” The Federalist No. 81, p. 511 (Wright ed. 1961) (A. Hamilton). Indeed, when this Court threatened state immunity from private suits early in our Nation’s history, the people responded swiftly to reiterate that fundamental principle. See Hans v. Louisiana, 134 U. S. 1, 11 (1890) (discussing Chisholm v. Georgia, 2 Dall. 419 (1793), and the Eleventh Amendment).

Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts. See Pennhurst State School and Hospital v. Hal ­ derman, 465 U. S. 89, 98 (1984). For over a century now, this Court has consistently made clear that “federal jurisdiction over suits against unconsenting States ‘was not contemplated by the Constitution when establishing the judicial power of the United States.’ ” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996) (quoting Hans, supra, at 15); see Seminole Tribe, supra, at 54–55, n. 7 (collecting cases). A State, however, may choose to waive its immunity in federal court at its pleasure. Clark v. Barnard, 108 U. S. 436, 447–448 (1883).

Accordingly, “our test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675 (1999) (internal quotation marks omitted). A State’s consent to suit must be “unequivocally expressed” in the text of the relevant statute. Pennhurst State School and Hospital, supra, at 99; see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238, n. 1, 239–240 (1985). Only by requiring this “clear declaration” by the State can we be “certain that the State in fact consents to suit.” College Savings Bank, 527 U. S., at 680. Waiver may not be implied. Id., at 682.

For these reasons, a waiver of sovereign immunity “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U. S. 187, 192 (1996).4 So, for example, a State’s consent to suit in its own courts is not a waiver of its immunity from suit in federal court. College Savings Bank, supra, at 676. Similarly, a waiver of sovereign immunity to other types of relief does not waive immunity to damages: “[T]he waiver of sovereign immunity must extend unambiguously to such monetary claims.” Lane, supra, at 192; cf. United States v. Nordic Village, 503 U. S. 30, 34 (1992) (construing an ambiguous waiver of sovereign immunity to permit equitable but not monetary claims); Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 101–102 (1989) (construing a statute to authorize injunctive relief but not “monetary recovery from the States” because intent to abrogate immunity to monetary recovery was not “ ‘unmistakably clear in the language of the statute’ ” (quoting Atascadero, su ­ pra, at 242)).

III

A

RLUIPA’s authorization of “appropriate relief against a government,” §2000cc–2(a), is not the unequivocal expression of state consent that our precedents require. “Appropriate relief ” does not so clearly and unambiguously waive sovereign immunity to private suits for damages that we can “be certain that the State in fact consents” to such a suit. College Savings Bank, 527 U. S., at 680.

1 “Appropriate relief ” is open-ended and ambiguous about what types of relief it includes, as many lower courts have recognized. See, e.g., 560 F. 3d, at 330–331.5 Far from clearly identifying money damages, the word “appropriate” is inherently context-dependent. See Webster’s Third New International Dictionary 106 (1993) (defining “appropriate” as “specially suitable: FIT, PROPER”). The context here—where the defendant is a sovereign—suggests, if anything, that monetary damages are not “suitable” or “proper.” See Federal Maritime Comm’n, 535 U. S., at 765 (“[S]tate sovereign immunity serves the important function of shielding state treasuries . . .”).

Indeed, both the Court and dissent appeared to agree in West v. Gibson, 527 U. S. 212 (1999), that “appropriate” relief, by itself, does not unambiguously include damages against a sovereign. The question was whether the Equal Employment Opportunity Commission, which has authority to enforce Title VII of the Civil Rights Act against the Federal Government “through appropriate remedies,” could require the Federal Government to pay damages. 42 U. S. C. §2000e–16(b). The dissent argued that the phrase “appropriate remedies” did not authorize damages “in express and unequivocal terms.” Gibson, 527 U. S., at 226 (opinion of KENNEDY, J.). The Court apparently did not disagree but reasoned that “appropriate remedies” had a flexible meaning that had expanded to include money damages after a related statute was amended to explicitly allow damages in actions under Title VII. See id., at 217– 218.

Further, where a statute is susceptible of multiple plausible interpretations, including one preserving immunity, we will not consider a State to have waived its sovereign immunity. See Dellmuth v. Muth, 491 U. S. 223, 232 (1989) (holding that “a permissible inference” is not the necessary “unequivocal declaration” that States were intended to be subject to damages actions); Nordic Village, supra, at 37 (holding that the existence of “plausible” interpretations that would not permit recovery “is enough to establish that a reading imposing monetary liability on the Government is not ‘unambiguous’ and therefore should not be adopted”). That is the case here.

Sossamon argues that, because RLUIPA expressly limits the United States to “injunctive or declaratory relief ” to enforce the statute, the phrase “appropriate relief ” in the private cause of action necessarily must be broader. 42 U. S. C. §2000cc–2(f). Texas responds that, because the State has no immunity defense to a suit brought by the Federal Government, Congress needed to exclude damages affirmatively in that context but not in the context of private suits. Further, the private cause of action provides that a person may assert a violation of the statute “as a claim or defense.” §2000cc–2(a) (emphasis added). Because an injunction or declaratory judgment is not “appropriate relief ” for a successful defense, Texas explains, explicitly limiting the private cause of action to those forms of relief would make no sense.

Sossamon also emphasizes that the statute requires that it be “construed in favor of a broad protection of religious exercise.” §2000cc–3(g). Texas responds that this provision is best read as addressing the substantive standards in the statute, not the scope of “appropriate relief.” Texas also highlights Congress’ choice of the word “relief,” which it argues primarily connotes equitable relief. See Black’s Law Dictionary 1295 (7th ed. 1999) (defining “relief ” as “[t]he redress or benefit, esp. equitable in nature . . . , that a party asks of a court”).

These plausible arguments demonstrate that the phrase “appropriate relief ” in RLUIPA is not so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity to suits for damages. Strictly construing that phrase in favor of the sovereign— as we must, see Lane, 518 U. S., at 192—we conclude that it does not include suits for damages against a State.

2

The Court’s use of the phrase “appropriate relief ” in Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992), and Barnes v. Gorman, 536 U. S. 181 (2002), does not compel a contrary conclusion. In those cases, the Court addressed what remedies are available against municipal entities under the implied right of action to enforce Title IX of the Education Amendments of 1972, §202 of the Americans with Disabilities Act of 1990, and §504 of the Rehabilitation Act of 1973. With no statutory text to interpret, the Court “presume[d] the availability of all appropriate remedies unless Congress ha[d] expressly indicated otherwise.” Franklin, 503 U. S., at 66. The Court described the presumption as “[t]he general rule” that “the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Id., at 70–71 (emphasis added); see Barnes, supra, at 185 (quoting Franklin, su ­ pra, at 73). Finding no express congressional intent to limit the remedies available under the implied right of action, the Court held that compensatory damages were available. Franklin, supra, at 73.

The presumption in Franklin and Barnes is irrelevant to construing the scope of an express waiver of sovereign immunity. See Lane, supra, at 196 (“[R]eliance on Frank ­ lin . . . is misplaced” in determining whether damages are available against the Federal Government). The question here is not whether Congress has given clear direction that it intends to exclude a damages remedy, see Franklin, supra, at 70–71, but whether Congress has given clear direction that it intends to include a damages remedy. The text must “establish unambiguously that the waiver extends to monetary claims.” Nordic Village, 503 U. S., at 34. In Franklin and Barnes, congressional silence had an entirely different implication than it does here. Whatever “appropriate relief ” might have meant in those cases does not translate to this context.6

B

Sossamon contends that, because Congress enacted §3 of RLUIPA pursuant to the Spending Clause, the States were necessarily on notice that they would be liable for damages. He argues that Spending Clause legislation operates as a contract and damages are always available relief for a breach of contract, whether the contract explicitly includes a damages remedy or not. Relying on Barnes and Franklin, he asserts that all recipients of federal funding are “ ‘generally on notice that [they are] subject . . . to those remedies traditionally available in suits for breach of contract,’ ” including compensatory damages. Brief for Petitioner 27 (quoting Barnes, 536 U. S., at 187).

We have acknowledged the contract-law analogy, but we have been clear “not [to] imply . . . that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.” Barnes, supra, at 189, n. 2. We have not relied on the Spending Clause contract analogy to expand liability beyond what would exist under non-spending statutes, much less to extend monetary liability against the States, as Sossamon would have us do. In fact, in Barnes and Franklin, the Court discussed the Spending Clause context only as a potential limitation on liability. See Barnes, supra, at 187–188; Franklin, supra, at 74–75.

In any event, applying ordinary contract principles here would make little sense because contracts with a sovereign are unique. They do not traditionally confer a right of action for damages to enforce compliance: “ ‘The contracts between a Nation and an individual are only binding on the conscience of the sovereign and have no pretensions to compulsive force. They confer no right of action independent of the sovereign will.’ ” Lynch v. United States, 292 U. S. 571, 580–581 (1934) (quoting The Federalist, No. 81, at 511 (A. Hamilton)).7

More implied-contractfundamentally, Sossamon’s remedies proposal cannot be squared with our longstanding rule that a waiver of sovereign immunity must be expressly and unequivocally stated in the text of the relevant statute. It would be bizarre to create an “unequivocal statement” rule and then find that every Spending Clause enactment, no matter what its text, satisfies that rule because it includes unexpressed, implied remedies against the States. The requirement of a clear statement in the text of the statute ensures that Congress has specifically considered state sovereign immunity and has intentionally legislated on the matter. Cf. Spector v. Norwegian Cruise Line Ltd., 545 U. S. 119, 139 (2005) (plurality opinion) (“[C]lear statement rules ensure Congress does not, by broad or general language, legislate on a sensitive topic inadvertently or without due deliberation”). Without such a clear statement from Congress and notice to the States, federal courts may not step in and abrogate state sovereign immunity.8

IV

Sossamon also argues that §1003 of the Rehabilitation Act Amendments of 1986, 42 U. S. C. §2000d–7, independently put the State on notice that it could be sued for damages under RLUIPA. That provision expressly waives state sovereign immunity for violations of “section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” §2000d–7(a)(1) (emphasis added). Section 1003 makes “remedies (including remedies both at law and in equity) . . . available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.” §2000d–7(a)(2). Sossamon contends that §3 of RLUIPA falls within the residual clause of §1003 and therefore §1003 waives Texas’ sovereign immunity to RLUIPA suits for damages. Even assuming that a residual clause like the one in §1003 could constitute an unequivocal textual waiver, §3 is not unequivocally a “statute prohibiting discrimination” within the meaning of §1003.9 The text of §3 does not prohibit “discrimination”; rather, it prohibits “substantial burden[s]” on religious exercise. This distinction is especially conspicuous in light of §2 of RLUIPA, in which Congress expressly prohibited “land use regulation[s] that discriminat[e] . . . on the basis of religion.” §2000cc(b)(2). A waiver of sovereign immunity must be “strictly construed, in terms of its scope, in favor of the sovereign.” Lane, 518 U. S., at 192. We cannot say that the residual clause clearly extends to §3; a State might reasonably conclude that the clause covers only provisions using the term “discrimination.”

The statutory provisions specifically listed in §1003 confirm that §3 does not unequivocally come within the scope of the residual clause. “[G]eneral words,” such as the residual clause here, “are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffe­ ler, 537 U. S. 371, 384 (2003) (internal quotation marks omitted); see also Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961) (noting that this maxim “is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress”). Unlike §3, each of the statutes specifically enumerated in §1003 explicitly prohibits “discrimination.” See 29 U. S. C. §794(a); 20 U. S. C. §1681(a); 42 U. S. C. §§6101, 6102; 42 U. S. C. §2000d.10 * * *

We conclude that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver. The judgment of the United States Court of Appeals for the Fifth Circuit is affirmed. It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

1 No party contends that the Commerce Clause permitted Congress to address the alleged burden on religious exercise at issue in this case. See 42 U. S. C. §2000cc–1(b)(2). Nor is Congress’ authority to enact RLUIPA under the Spending Clause challenged here. We therefore do not address those issues.

2 The District Court also denied injunctive relief. 713 F. Supp. 2d 657, 668 (WD Tex. 2007). The Court of Appeals subsequently held that Sossamon’s claim for injunctive relief with respect to the cell-restriction policy was moot because the State had abandoned that policy after Sossamon filed a prison grievance. 560 F. 3d 316, 326 (CA5 2009). The Court of Appeals reversed the District Court with respect to Sossamon’s chapel-use policy claim, id., at 331–335, although the Robertson Unit later amended that policy also and now permits inmates to attend scheduled worship services in the chapel subject to certain safety precautions.

3 Compare Madison v. Virginia, 474 F. 3d 118, 131 (CA4 2006); 560 F. 3d, at 331 (case below); Cardinal v. Metrish, 564 F. 3d 794, 801 (CA6 2009); Nelson v. Miller, 570 F. 3d 868, 885 (CA7 2009); Van Wyhe v. Reisch, 581 F. 3d 639, 655 (CA8 2009); and Holley v. California Dept. of Corrections, 599 F. 3d 1108, 1112 (CA9 2010), with Smith v. Allen, 502 F. 3d 1255, 1276, n. 12 (CA11 2007) (citing Benning v. Georgia, 391 F. 3d 1299, 1305–1306 (CA11 2004)).

4 Although Lane concerned the Federal Government, the strict construction principle, which flows logically from the requirement that consent be “unequivocally expressed,” applies to the sovereign immunity of the States as well. Cf. United States v. Nordic Village, Inc., 503 U. S. 30, 37 (1992) (equating the “unequivocal expression” principle from “the Eleventh Amendment context” with the principle applicable to federal sovereign immunity); College Savings Bank v. Florida Pre­ paid Postsecondary Ed. Expense Bd., 527 U. S. 666, 682 (1999) (noting the “clos[e] analogy” between federal and state sovereign immunity); Belknap v. Schild, 161 U. S. 10, 18 (1896) (“[A] State . . . is as exempt as the United States [is] from private suit”).

5 See also Holley, supra, at 1112; Nelson, supra, at 884; Van Wyhe, supra, at 654; Cardinal, supra, at 801; Madison, supra, at 131–132; cf. Webman v. Federal Bur. of Prisons, 441 F. 3d 1022, 1023 (CADC 2006) (interpreting the “appropriate relief ” provision of RFRA).

6 Nor can it be said that this Court’s use of the phrase “appropriate relief ” in Franklin and Barnes somehow put the States on notice that the same phrase in RLUIPA subjected them to suits for monetary relief. Those cases did not involve sovereign defendants, so the Court had no occasion to consider sovereign immunity. Liability against nonsovereigns could not put the States on notice that they would be liable in the same manner, absent an unequivocal textual waiver. Moreover, the same phrase in RFRA had been interpreted not to include damages relief against the Federal Government or the States and so could have signaled to the States that damages are not “appropriate relief ” under RLUIPA. See, e.g., Tinsley v. Pittari, 952 F. Supp. 384, 389 (ND Tex. 1996); Commack Self-Service Kosher Meats Inc. v. New York, 954 F. Supp. 65, 69 (EDNY 1997).

7 Of course, the Federal Government has, by statute, waived its sovereign immunity to damages for breach of contract in certain contexts. See, e.g., 28 U. S. C. §1491(a)(1).

8 The dissent finds our decision “difficult to understand,” post, at 6 (opinion of SOTOMAYOR, J.), but it follows naturally from this Court’s precedents regarding waiver of sovereign immunity, which the dissent gives astonishingly short shrift. The dissent instead concerns itself primarily with “general remedies principles.” Post, at 1. The essence of sovereign immunity, however, is that remedies against the government differ from “general remedies principles” applicable to private litigants. See, e.g., Lane v. Peña, 518 U. S. 187, 196 (1996) (calling it a “crucial point that, when it comes to an award of money damages, sovereign immunity places the . . . Government on an entirely different footing than private parties”).

9 Every Court of Appeals to consider the question has so held. See Holley, 599 F. 3d, at 1113–1114; Van Wyhe, 581 F. 3d, at 654–655; Madison, 474 F. 3d, at 132–133.

10 Sossamon argues that §3 resembles §504 of the Rehabilitation Act, one of the statutes listed in §1003, because both require special accommodations for particular people or activities. By Sossamon’s reasoning, every Spending Clause statute that arguably provides a benefit to a class of people or activities would become a federal statute “prohibiting discrimination,” thereby waiving sovereign immunity. Such an interpretation cannot be squared with the foundational rule that waiver of sovereign immunity must be unequivocally expressed and strictly construed.

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
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No. 08–1438

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HARVEY LEROY SOSSAMON, III, PETITIONER v.

TEXAS ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 20, 2011]

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins, dissenting.

The Court holds that the term “appropriate relief ” is too ambiguous to provide States with clear notice that they will be liable for monetary damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. I disagree. No one disputes that, in accepting federal funds, the States consent to suit for violations of RLUIPA’s substantive provisions; the only question is what relief is available to plaintiffs asserting injury from such violations. That monetary damages are “appropriate relief ” is, in my view, self-evident. Under general remedies principles, the usual remedy for a violation of a legal right is damages. Consistent with these principles, our precedents make clear that the phrase “appropriate relief ” includes monetary relief. By adopting a contrary reading of the term, the majority severely undermines the “broad protection of religious exercise” Congress intended the statute to provide. §2000cc–3(g). For these reasons, I respectfully dissent.

I

A As the Court acknowledges, the proposition that “States may waive their sovereign immunity” is an “unremarkable” one. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 65 (1996); see also Alden v. Maine, 527 U. S. 706, 737 (1999) (“[W]e have not questioned the general proposition that a State may waive its sovereign immunity and consent to suit”); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985) (noting the “well-established” principle that “if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action”); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276 (1959) (noting that a State may waive sovereign immunity “at its pleasure”).

Neither the majority nor respondents (hereinafter Texas) dispute that, pursuant to its power under the Spending Clause, U. S. Const., Art. I, §8, cl. 1, Congress may secure a State’s consent to suit as a condition of the State’s receipt of federal funding.1 See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999) (“Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and . . . acceptance of the funds entails an agreement to the actions”); Atascadero, 473 U. S., at 247 (suggesting that a federal statute can “condition participation in the programs funded under the [statute] on a State’s consent to waive its constitutional immunity”). As with all waivers of sovereign immunity, the question is whether the State has unequivocally consented to suit in federal court. See College Savings Bank, 527 U. S., at 680; Atascadero, 473 U. S., at 238, n. 1. Thus, in order to attach a waiver of sovereign immunity to federal funds, Congress “must do so unambiguously,” so as to “enable the States to exercise their choice knowingly.” Pennhurst State School and Hospital v. Halder ­ man, 451 U. S. 1, 17 (1981). In other words, the State must have notice of the condition it is accepting. See Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 298 (2006) (“[C]lear notice . . . is required under the Spending Clause”). The reason for requiring notice is simple: “States cannot knowingly accept conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.’ ” Id., at 296 (quoting Pennhurst, 451 U. S., at 17). In assessing whether a federal statute provides clear notice of the conditions attached, “we must view the [statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds and the obligations that go with those funds.” Arlington Central, 548 U. S., at 296.

There is also no dispute that RLUIPA clearly conditions a State’s receipt of federal funding on its consent to suit for violations of the statute’s substantive provisions. The statute states that “program[s] or activit[ies] that receiv[e] Federal financial assistance” may not impose a “substantial burden on the religious exercise of a person residing in or confined to an institution.” §2000cc–1. When such a burden has been imposed, the victim “may assert a violation of [RLUIPA] as a claim . . . in a judicial proceeding and obtain appropriate relief against a government,” §2000cc–2(a), which the statute defines, as relevant, as “a State, county, municipality, or other governmental entity created under the authority of a State,” §2000cc–5(4)(A)(i). Accordingly, it is evident that Texas had notice that, in accepting federal funds, it waived its sovereign immunity to suit by institutionalized persons upon whom it has imposed an unlawful substantial burden. See Madison v. Virginia, 474 F. 3d 118, 130 (CA4 2006) (“On its face, RLUIPA . . . creates a private cause of action against the State, and Virginia cannot be heard to claim that it was unaware of this condition” (citations omitted)); Benning v. Georgia, 391 F. 3d 1299, 1305 (CA11 2004) (“Congress unambiguously required states to waive their sovereign immunity from suits filed by prisoners to enforce RLUIPA”).

B

The Court holds that the phrase “appropriate relief ” does not provide state officials clear notice that monetary relief will be available against the States, meaning that they could not have waived their immunity with respect to that particular type of liability. This holding is contrary to general remedies principles and our precedents.

RLUIPA straightforwardly provides a private right of action to “obtain appropriate relief against a government.” §2000cc–2(a). Under “our traditional approach to deciding what remedies are available for violation of a federal right,” damages are the default—and equitable relief the exception—for “it is axiomatic that a court should determine the adequacy of a remedy in law before resorting to equitable relief.” Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 75–76 (1992); see also Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982) (“The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been . . . the inadequacy of legal remedies”); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 395 (1971) (“Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty”); cf. Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 24) (“An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course”). It is unsurprising, therefore, that on more than one occasion Congress has felt it necessary to clarify in the text of a statute that it meant the terms “relief ” and “appropriate relief ” to exclude damages. See 5 U. S. C. §702 (providing that, under the Administrative Procedure Act, “relief other than money damages” is available against a federal agency to remedy a “legal wrong”); see also 42 U. S. C. §6395(e)(1) (providing a cause of action for “appropriate relief,” but specifying that “[n]othing in this subsection shall authorize any person to recover damages”); 15 U. S. C. §797(b)(5) (similar).

If, despite the clarity of this background principle, state officials reading RLUIPA were somehow still uncertain as to whether the phrase “appropriate relief ” encompasses monetary damages, our precedents would relieve any doubt. In Franklin we made clear that, “absent clear direction to the contrary by Congress,” federal statutes providing a private right of action authorize all “appropriate relief,” including damages, against violators of its substantive terms. 503 U. S., at 70–71, 75–76. We reiterated this principle in Barnes v. Gorman, 536 U. S. 181, 185, 187 (2002), affirming that “the scope of ‘appropriate relief ’ ” includes compensatory damages.2 The holdings in these cases are fully consistent with the general principle that monetary relief is available for violations of the substantive conditions Congress attaches, through Spending Clause legislation, to the acceptance of federal funding. See Davis v. Monroe County Bd. of Ed., 526 U. S. 629, 640 (1999) (“[P]ursuant to Congress’ authority under the Spending Clause . . . private damages actions are available”); Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 287 (1998) (noting that “[w]hen Congress attaches conditions to the award of federal funds under its spending power . . . private actions holding the recipient liable in monetary damages” are permissible). It would be an odd derogation of the normal rules of statutory construction for state officials reading RLUIPA to assume that Congress drafted the statute in ignorance of these unambiguous precedents. See Merck & Co. v. Reynolds, 559 U. S. ___, ___ (2010) (slip op., at 12) (“We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent”).3

C

Accordingly, it is difficult to understand the basis for the Court’s position that the phrase “appropriate relief ” in §2000cc–2(a) fails to provide state officials with clear notice that waiving sovereign immunity to monetary relief is a condition of accepting federal funds. In arguing that “a waiver of sovereign immunity to other types of relief does not waive immunity to damages,” ante, at 6 (emphasis added), the majority appears to accept that equitable relief is available to RLUIPA plaintiffs. See Madison, 474 F. 3d, at 131 (holding that a RLUIPA plaintiff ’s “claims for equitable relief are not barred by the Eleventh Amendment”); cf. 560 F. 3d 316, 331, 336 (CA5 2009) (reversing the District Court’s grant of summary judgment to Texas on one of petitioner’s RLUIPA claims for declaratory and injunctive relief ). The explanation for the majority’s implicit acceptance of suits for injunctive and declaratory relief is obvious enough: It would be a particularly curious reading of the statute to conclude that Congress’ express provision of a private right of action to seek “appropriate relief ” against “a State” nonetheless left plaintiffs suing for state violations of RLUIPA with no available relief.

It is not apparent, however, why the phrase “appropriate relief ” is too ambiguous to secure a waiver of state sovereign immunity with respect to damages but is clear enough as to injunctive and other forms of equitable relief. The majority appears to believe that equitable relief is a “suitable” or “proper” remedy for a state violation of RLUIPA’s substantive provisions but monetary relief is not; therefore, a state official reading the “open-ended and ambiguous” phrase “appropriate relief ” will be unaware that it includes damages but fully apprised that it makes equitable relief available. See ante, at 6–7. But sovereign immunity is not simply a defense against certain classes of remedies—it is a defense against being sued at all. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U. S. 743, 766 (2002). As a result, there is no inherent reason why the phrase “appropriate relief ” would provide adequate notice as to equitable remedies but not as to monetary ones. In fact, as discussed earlier, in light of general remedies principles the presumption arguably should be the reverse. See supra, at 4–6.

The majority suggests that equitable relief is the sole “appropriate relief ” for statutory violations “where the defendant is a sovereign.” Ante, at 6–7. There can be little doubt, however, that the “appropriateness” of relief to be afforded a civil plaintiff is generally determined by the nature of the injury to his legal rights. See Franklin, 503 U. S., at 76 (concluding that monetary damages were “appropriate” because equitable relief offered no redress for the injury suffered); see also Milliken v. Bradley, 433 U. S. 267, 280 (1977) (“[T]he nature of the . . . remedy is to be determined by the nature and scope of the . . . violation”); Bell v. Hood, 327 U. S. 678, 684 (1946) (“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief ” ). In support of its proposition the majority cites only to a case in which we expressly rejected the argument that state sovereign immunity operates differently according to what type of relief is sought. See Federal Maritime, 535 U. S., at 765 (“[S]overeign immunity applies regardless of whether a private plaintiff ’s suit is for monetary damages or some other type of relief ” ); cf. id., at 769 (“[T]he primary function of sovereign immunity is not to protect state treasuries, but to afford the States the dignity and respect due sovereign entities” (citation omitted)). Nor is the basis for the majority’s view apparent from the other cases that it cites.4 The majority’s additional arguments in support of its holding also fail to persuade. The majority contends that the use of a “context-dependent” word like “appropriate” necessarily renders the provision ambiguous. Ante, at 7. But the fact that the precise relief afforded by a court may vary depending on the particular injury to be addressed in a given case does not render §2000cc–2(a) ambiguous; it simply means that Congress meant for that provision to be comprehensive. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (internal quotation marks omitted)); cf. West v. Gibson, 527 U. S. 212, 217–218 (1999) (holding that the phrase “appropriate remedies” in 42 U. S. C. §2000e–16(b) includes remedies not expressly enumerated).

Next, the majority repeats Texas’s dictionary-based contention that in using the word “relief ” Congress meant to “connot[e] equitable relief.” Ante, at 8. This proposition suffers from three flaws. First, it is not established by the dictionary to which the majority cites. See Black’s Law Dictionary 1293 (7th ed. 1999) (“relief: . . . Also termed remedy”); id., at 1296 (“remedy: . . . The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief ” (emphasis added)). Second, it is inconsistent with our precedent. See Barnes, 536 U. S., at 185– 187 (noting that “appropriate relief ” includes monetary and injunctive relief ). Third, it is undermined by the fact that, on numerous occasions, Congress has deemed it necessary to specify that “relief ” includes injunctive and other equitable relief. See 16 U. S. C. §973i(e) (authorizing the Attorney General to “commence a civil action for appropriate relief, including permanent or temporary injunction”); see also 2 U. S. C. §437g(a)(6)(A); 8 U. S. C. §1324a(f)(2); 12 U. S. C. §1715z–4a(b); 15 U. S. C. §6309(a). If the term “relief ” already connotes equitable relief—and only equitable relief—additional explication is redundant.

Finally, the majority asserts that because the parties to this case advance opposing “plausible arguments” regarding the correct interpretation of RLUIPA’s text, we must conclude that the statute is ambiguous. Ante, at 8–9. This view of how we adjudicate cases is incorrect as a descriptive matter. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 390 (2009) (reviewing the parties’ conflicting textual interpretations of a statute but concluding that it was unambiguous nonetheless). Moreover, I cannot agree with the majority that our capacity to interpret authoritatively the text of a federal statute is held hostage to the litigants’ strategic arguments. If this were true, there would be few cases in which we would be able to decide that a statute was unambiguous.

In sum, the majority’s conclusion that States accepting federal funds have not consented to suit for monetary relief cannot be reconciled with the fact that the availability of such relief is evident in light of RLUIPA’s plain terms and the principles animating our relevant precedents. In so holding, the majority discovers ambiguity where none is to be found.

II

There is another reason to question the soundness of today’s decision. The Court’s reading of §2000cc–2(a) severely undermines Congress’ unmistakably stated intent in passing the statute: to afford “broad protection of religious exercise, to the maximum extent permitted by the terms of [the statute] and the Constitution.” §2000cc–3(g). I find it improbable that, in light of this express statutory purpose and the history of “long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens,” Cutter v. Wilkinson, 544 U. S. 709, 714 (2005), state officials would read RLUIPA’s relief provision in the same limited manner the majority does.5

As the majority acknowledges, RLUIPA was Congress’ second attempt to guarantee by statute the “broad protection” of religious exercise that we found to be unwarranted as a constitutional matter in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). As we have previously recognized, in passing RLUIPA Congress was clearly concerned that state institutions regularly imposed “frivolous or arbitrary barriers imped[ing] institutionalized persons’ religious exercise.” Cutter, 544 U. S., at 716 (internal quotation marks omitted); see also 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways”); ibid. (“Institutional residents’ rights to practice their faith is at the mercy of those running the institution . . .”). It is difficult to believe that Congress would have devoted such care and effort to establishing significant statutory protections for religious exercise and specifically extended those protections to persons in state institutions, yet withheld from plaintiffs a crucial tool for securing the rights the statute guarantees.

By depriving prisoners of a damages remedy for violations of their statutory rights, the majority ensures that plaintiffs suing state defendants under RLUIPA will be forced to seek enforcement of those rights with one hand tied behind their backs. Most obviously, the majority’s categorical denial of monetary relief means that a plaintiff who prevails on the merits of his claim that a State has substantially burdened his religious exercise will often be denied redress for the injury he has suffered, because in many instances “prospective relief accords . . . no remedy at all.” Franklin, 503 U. S., at 76; see H. R. Rep. No. 102– 40, pt. 2, p. 25 (1991) (Report of Committee on the Judiciary on the Civil Rights Act of 1991) (“The limitation of relief under Title VII to equitable remedies often means that victims . . . may not recover for the very real effects of the [statutory violation]”). Injunctive relief from a federal court may address a violation going forward, but this fact will be of cold comfort to the victims of serious, nonrecurring violations for which equitable relief may be inappropriate.

In addition, the unavailability of monetary relief will effectively shield unlawful policies and practices from judicial review in many cases. Under state law, discretion to transfer prisoners “in a wide variety of circumstances is vested in prison officials.” Meachum v. Fano, 427 U. S. 215, 227 (1976). A number of RLUIPA suits seeking injunctive relief have been dismissed as moot because the plaintiff was transferred from the institution where the alleged violation took place prior to adjudication on the merits. See, e.g., Colvin v. Caruso, 605 F. 3d 282, 287, 289 (CA6 2010); Simmons v. Herrera, No. C 09–0318 JSW (PR), 2010 WL 1233815, *3 (ND Cal., Mar. 26, 2010); see generally Brief for American Civil Liberties Union et al. as Amici Curiae 8–11. Absent a damages remedy, longstanding RLUIPA challenges may well be dismissed for lack of a case or controversy conferring Article III jurisdiction on the federal court. Cf. Moussazadeh v. Texas Dept. of Crim. Justice, Civ. Action No. G–07–574, 2009 WL 819497, *9 (SD Tex., Mar. 26, 2009) (dismissing as moot plaintiff ’s RLUIPA claim because he had been transferred to a facility that provided kosher food), remanded, 364 Fed. Appx. 110 (CA5 2010); Opening Brief for Plaintiff-Appellant in Moussazadeh v. Texas Dept. of Crim. Justice, No. 09– 40400 (CA5), p. 11 (noting that transfer to a special facility took place 19 months after the plaintiff filed suit and just before discovery—which had been stayed 12 months for negotiation—was scheduled to recommence). Or, as happened in this case, officials may change the policy while litigation is pending. The fact of “voluntary cessation” may allow some of these claims to go forward, but many will nonetheless be dismissed as moot (as happened in this case).6 Of course, under the rule the majority announces, Congress can revise RLUIPA to provide specifically for monetary relief against the States, perhaps by inserting the phrase “including monetary relief ” into the text of §2000cc–2(a). But we have never demanded that a waiver be presented in a particular formulation to be effective; we only require that it be clear. See, e.g., Edelman v. Jordan, 415 U. S. 651, 673 (1974) (holding that waiver may be found in “express language” or by “overwhelming implications from the text” (internal quotation marks omitted)). In holding to the contrary, the majority erects a formalistic barrier to the vindication of statutory rights deliberately provided for by Congress.

More problematically, because there is no apparent reason why the term “appropriate relief ” is sufficiently clear as to equitable relief but not as to monetary relief, we are left with the very real possibility that, in order to secure a waiver of immunity under the majority’s new rule, Congress must now itemize in the statutory text every type of relief meant to be available against sovereign defendants. I, for one, do not relish the prospect of federal courts being presented with endless state challenges to all manner of federal statutes, on the ground that Congress failed to predict that a laundry list of terms must be included to waive sovereign immunity to all forms of relief. I would avoid the problems the majority’s decision invites and hold instead that, as is the case here, when a general statutory term like “appropriate relief ” is used, clear notice has been provided and a State’s acceptance of federal funds constitutes a waiver of sovereign immunity to all relief, equitable and monetary. As explained above, nothing in our precedent demands the result the majority reaches today. The conclusion that RLUIPA fails to provide States with sufficient notice that they are liable for monetary relief cannot be squared with the straightforward terms of the statute and the general principles evident in our prior cases. For these reasons, and because the majority’s decision significantly undermines Congress’ ability to provide needed redress for violations of individuals’ rights under federal law, I respectfully dissent.

1 Though the Court reserves the general question whether RLUIPA is a valid exercise of Congress’ power under the Spending Clause, see ante, at 2, n. 1, there is apparently no disagreement among the Federal Courts of Appeals, see 560 F. 3d 316, 328, n. 34 (CA5 2009) (“Every circuit to consider whether RLUIPA is Spending Clause legislation has concluded that it is constitutional under at least that power”).

2 The majority suggests that our use of the phrase “appropriate relief ” in Franklin and Barnes did not “put the States on notice that the same phrase in RLUIPA subjected them to suits for monetary relief,” because “[t]hose cases did not involve sovereign defendants.” Ante, at 10, n. 6. The majority misperceives the point. Franklin and Barnes simply confirmed what otherwise would have been already apparent to any informed reader of RLUIPA—when it comes to remedying injuries to legal rights, monetary damages are “appropriate relief.” Moreover, as noted in the text, see supra, at 4–5, the Administrative Procedure Act expressly excludes “money damages” from the “relief ” available against the United States, suggesting that Congress understands the term normally to encompass monetary relief even when the defendant enjoys sovereign immunity. See 5 U. S. C. §702; Bowen v. Massachusetts, 487 U. S. 879, 891–892 (1988) (noting that §702 waives the United States’ sovereign immunity to suit).

3 Curiously, the majority appears to believe that it would be appropriate for state officials to read the statutory phrase “appropriate relief ” without reference to general remedies principles. See ante, at 12, n. 8. It is well-established, however, that “Congress is understood to legislate against a background of common-law . . . principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991), and there can be no doubt that general legal principles necessarily inform judicial determinations as to what remedies are available to civil plaintiffs, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U. S. ___, ___ (2009) (slip op., at 15) (concluding that, in light of “general principles of maritime tort law” punitive damages were a remedy available to the plaintiff (internal quotation marks omitted)). Why Texas’s sovereign immunity defense renders this approach improper is a mystery the majority opinion leaves unsolved.

4 In Lane v. Peña, 518 U. S. 187 (1996), United States v. Nordic Vil ­ lage, Inc., 503 U. S. 30 (1992), and Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989), we simply reaffirmed the principle that a sovereign’s liability for damages must be unambiguously expressed in the statute purporting to waive immunity; as demonstrated above, RLUIPA satisfies this requirement. The majority tellingly relies on the dissent’s assertion in West v. Gibson, 527 U. S. 212 (1999), that the phrase “appropriate remedies” was too ambiguous to waive sovereign immunity to monetary relief. See id., at 226 (opinion of KENNEDY, J.). Accordingly, the cases the majority cites do not mandate the conclusion it draws today.

5 I agree with the majority’s conclusion that, because Section 3 of RLUIPA, addressing the rights of institutionalized persons, is not a “provisio[n] of [a] . . . Federal statute prohibiting discrimination” within the meaning of the Rehabilitation Act Amendments of 1986, 42 U. S. C. §2000d–7(a)(1), the latter statute’s waiver provision does not put the States on notice that they can be sued for damages under RLUIPA. See ante, at 12–14. It bears noting, however, that Section 2 of RLUIPA explicitly prohibits discrimination in land use regulation. See §2000cc(b)(2) (“No government shall impose or implement a land use regulation that discriminates . . . on the basis of religion or religious denomination”). As a result, the majority’s decision in this case means that some RLUIPA plaintiffs will be able to seek monetary damages against a State and others will not, even though RLUIPA’s provision of “appropriate relief ” applies equally to suits for violations of the terms of both Section 2 and Section 3.

6 See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719 (2007) (“Voluntary cessation does not moot a case or controversy unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” (internal quotation marks and alterations omitted)). The Fifth Circuit declined to apply the “voluntary cessation” doctrine in this case and instead granted Texas’s motion that the court dismiss as moot petitioner’s claim for injunctive relief with respect to the prison’s cellrestriction policy. Because the prison director averred that the policy was no longer in force, and “absent evidence that the voluntary cessation [wa]s a sham,” the court held that the “good faith nature” of Texas’s change in policy rendered moot petitioner’s claim for injunctive relief. See 560 F. 3d, at 324–326; see also Nelson v. Miller, 570 F. 3d 868, 882–883 (CA7 2009) (affirming the District Court’s dismissal as moot of a RLUIPA claim because there was no evidence that the prison intended to revoke the plaintiff ’s religious diet); El v. Evans, 694 F. Supp. 2d 1009, 1012–1013 (SD Ill. 2010) (similar).

Print this transcript Transcript: 

ORAL ARGUMENT OF KEVIN K. RUSSELL ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument in 08-1438, Sossamon v. Texas.

You don't look like Mr. Schnapper.

Mr. Russell.

Mr. Russell: Mr. Chief Justice and may it please the Court: By accepting Federal funds for its prisons, Texas consented to suit for appropriate relief for violations of the Religious Land Use and Institutionalized Persons Act.

The question in this case is whether that appropriate relief encompasses damages.

If you simply asked what kind of relief is generally appropriate against a State, the answer would be no relief, not even an injunction, because States ordinarily are not subject even to suit without their consent.

And so RLUIPA necessarily asks a more precise question, and that is what relief is appropriate against a State that has consented to be sued for violations of this sort.

Damages, for example, are perfectly appropriate against a State that has consented to be sued for breach of contract.

Justice Ruth Bader Ginsburg: Now, what would it be, Mr. Russell, if there were a suit under RFRA because a Federal penal institution was not allowing for the religious practices that the act protects?

Mr. Russell: In--

Justice Ruth Bader Ginsburg: In a suit under RFRA, could there be -- would damages be an appropriate remedy?

Mr. Russell: --In our view they are, although it's a different context, and we recognize that the government disagrees with us on that.

We can't point to the Spending Clause-contract analogy that applies with respect to Spending Clause legislation as RFRA applies to the Federal Government.

But there are other indications, including for example the long tradition of damages being appropriate relief for the violation of civil rights.

Justice Ruth Bader Ginsburg: Well, could we back up.

You are saying you could get them against the Federal Government too, but the government doesn't think so?

Mr. Russell: That is our view, although we recognize that RLUIPA is different in this respect, in that it's a Spending Clause statute under which -- and this Court's decision in Barnes v. Gorman makes clear that damages are traditionally appropriate relief for the violation of any Spending Clause statute.

Of course, there is also a tradition that damages are for the violation of civil rights.

Take statutes like Title VI, Title VII, Title IX, section 504 of the ADA, the list goes on and on, where Congress has created damages as the quintessential remedy to enforce civil rights, and when Congress has subjected States to suits under such statutes, it has always put them on equal footing with other defendants and subjected them to damages as well.

But even beyond that--

Justice Antonin Scalia: But did it use such language as "appropriate relief"?

Mr. Russell: --Well, for example--

Justice Antonin Scalia: I mean, that's the question.

Our cases say it has to be clear to the State when they go into one of these schemes, it has to be clear what liability they are subjecting themselves to.

And in these other cases I think it was clear.

I don't think it's clear with simply the word "appropriate relief".

Mr. Russell: --No, we are not saying that the word "appropriate relief" in itself supplies the clarity.

It's looking at that language and the way the court interprets statutes generally, among other things, looking at the tradition of what constitutes appropriate relief for a violation of this sort.

We do think that Barnes v. Gorman is appropriate precedent in telling the court -- in telling Texas what kind of relief is generally thought appropriate to satisfy Congress's desire to remedy violations of a Spending Clause statute.

We recognize, of course, that Barnes didn't involve sovereign defendants, but the local governments in that case had the same rights as a State would.

It just comes out of the Spending Clause rather than the Eleventh Amendment.

That is, both constitutional provisions prohibit Congress from subjecting defendants to damages suits under Spending Clause legislation without their consent.

And this Court has enforced that identical constitutional right with the same clear statement test derived from Pennhurst v. Halderman.

Even more, the contract analogy the Court relied on in Barnes is no less apt simply because one of the recipients is a State.

Chief Justice John G. Roberts: The contract analogy, I suppose, would provide that the meaning of the contract is interpreted against the drafter.

Right?

Mr. Russell: That would have been true in Barnes as well.

Chief Justice John G. Roberts: Yes.

So to the extent the State is arguing for a restrictive interpretation, it gets at least a little help from the fact that the Federal Government wrote the statute.

Mr. Russell: Well, it gets the same amount of help that the local governments got in Barnes, which wasn't enough.

And Not only does the analogy, I think, apply; so does the remedy.

Damages are a quintessential appropriate remedy for breach of contract by a State so long as the State has agreed to be sued for violation of a contract.

Justice Ruth Bader Ginsburg: Mr. Russell, the State looks at this statute and says, oh, this statute preserves the PLRA, and under the PLRA there are no damages without having a physical injury.

So putting the PLRA together with PLRA is telling us it's not appropriate relief when there is no physical injury.

Mr. Russell: Well, I would say two things about that.

One, keep in mind that the PLRA limitations only apply to incarcerated individuals.

It doesn't apply to the people RLUIPA protects in State-run nursing homes or mental health facilities.

So Congress wouldn't have been thinking that appropriate relief is defined in some sense by the scope of the PLRA.

In addition, we think that the fact that Congress expressly said that the PLRA applies to limit the relief that's otherwise available under RLUIPA shows that Congress didn't think that the PLRA itself made the relief inappropriate.

It's simply that there is some relief that is otherwise appropriate that will be limited in some circumstances by the PLRA.

Justice Ruth Bader Ginsburg: But in the prison setting, then, isn't it an academic question, because there are not going to be damages anyway?

Mr. Russell: No, that's not true, for a couple of reasons.

One, there are many cases involving pecuniary damages.

There is destruction of religious items that won't be subject to the PLRA limitation.

There are -- there are cases that give rise to pecuniary claims.

So there is destruction of a religious item, a Bible or something like that.

There are also cases in which the violation will result in a physical injury.

There are cases where people are deprived of food for long periods of time.

There is a case where a prison refused to transport an inmate for medical treatment outside the facility because he wouldn't take off his yarmulke.

Congress, I don't think would have thought that the PLRA limitations rendered a damages remedy unimportant.

And at the very least--

Justice Sonia Sotomayor: Does it include punitive damages?

Mr. Russell: --Excuse me?

Justice Sonia Sotomayor: Does it include punitive damages?

Mr. Russell: The statute, I think, does not in light of Barnes, because Barnes said that you get traditional contract remedies and punitive damages are not a traditional contract remedy.

Beyond that tradition, though, there's also textual cues in the statue itself.

There are three of them that I would like to focus on.

I'll list them and then discuss them.

One is the definitions section, which lumps States in together with local governments in the definition of "government".

The second is the Federal enforcement provision, which specifically allows suits by the United States, but only for the equitable and declaratory relief that the State says is the only thing that's available under appropriate relief.

And finally is the fact that the statute separately already authorizes suits for injunctive relief against State officials, making the addition of suits against States effectively surplusage unless some other kind of relief is available against the State.

Beginning with the definitions section, this Court recognized in the United States v. Nordic Village that where Congress, in the Bankruptcy Act, defined "governmental unit" to include both the United States and a State, that Congress was making clear, quote, that

"States and Federal sovereigns are to be treated the same for immunity purposes. "

I think the same lesson comes out of the fact that RLUIPA defines "governments" to include not only States, but local governments, and subjects all governments to the same cause of action for the same appropriate relief.

Congress was expressing there as clear as it could that there was a definitional equivalence between States and local government.

Justice Antonin Scalia: Yeah, but -- but, I mean, that means either that the Federal Government -- that the State government is liable for damages just as municipalities are, or that municipalities are immune to suit for damages just as the States are.

I mean, that -- you don't know which way that cuts, do you?

Mr. Russell: Well, I will point you to other provisions of the statute.

Justice Antonin Scalia: Well, maybe let's talk about them, then.

Mr. Russell: Okay.

One is the fact that, as I mentioned before, the statute -- and I think the State agrees -- already allows suits for injunctive relief against State officials in their official capacity.

The only thing that adding States as defendant would accomplish in light of that would simply be a change in the caption of the lawsuit, unless States are subject to some relief that State officials under Ex parte Young are not.

Justice Sonia Sotomayor: Well, except this would be a violation of a statute, not a violation of a constitutional right.

So under Ex parte Young they couldn't necessarily get an injunction.

Mr. Russell: Well, I would set aside the question of whether Ex parte Young applies of its own force.

I think by defining "officials" as a form of government and authorizing suits for appropriate relief against officials, I think everybody agrees that that authorizes suits against the officials for at least injunctive relief.

And then the question is, well, what does it accomplish to also authorize suits against States?

And I think the obvious answer is it authorizes a damages claim against the State.

And even in light of Barnes, the State seems to acknowledge that damages are appropriate relief against local governments under this statute.

Justice Antonin Scalia: Well, I can conceive of a case where -- where the State's violation of RLUIPA consists of a State statute that simply deprives the individual of his rights under RLUIPA.

What State official would you -- would you sue?

It seems to me you couldn't sue the State legislature, so it would make sense to have an injunction against the State.

Mr. Russell: I think it's common in that circumstance to sue the State attorney general for Ex parte Young relief, for example, if you have a constitutional claim against the statute, as may very well have happened in the California case, or the governor, I guess.

So I don't think that naming -- having a State as a defendant is necessary for that purpose here.

In addition, as I mentioned before, I think even the State acknowledges that damages are appropriate relief against local governments, but Congress made clear that when it intended the identity of a party to result in a dramatically different scope of relief, it did so expressly, and you can see that in the U.S. enforcement provision.

There, Congress specially authorized suits by the United States and had its own remedial provision which provides only for declaratory and injunctive relief.

And that shows both that Congress didn't expect courts to simply figure out that different kinds of defendants would be subject to different appropriate relief, but also--

Justice Samuel Alito: Isn't it argued that a possible purpose of that was to make it clear that the Federal Government couldn't sue a State to recover money that had been given to it?

Mr. Russell: --Well, the fact -- I would say two things about that.

One is Congress didn't limit that provision to suits against States.

It's anybody who gets sued by the United States is limited to equitable injunctive relief.

And that's, again, an example of Congress treating States the same as everybody else.

Whether they are sued by the United States or sued by a private party, it is the same relief.

It's the same remedial provision and we think that suggests the same relief.

That provision also kind of -- the language of that provision, "injunctive or declaratory relief", stands in pretty stark contrast to the facially broader phrase "appropriate relief" in the general provision.

In addition to RLUIPA itself, I think it's also worth pointing out that the State had independent notice under section 2000(d)(7) -- this is the Rehabilitation Act Amendments of 1986, where Congress made clear to Texas that it would be subject to suit for damages under any statute that -- under a section of any statute that prohibits discrimination by Federal funding recipients.

And I think the question here boils down to whether RLUIPA is materially distinguishable from section 504, which is listed in section 2000(d)(7) as an example of a statute prohibiting discrimination.

And if -- I think that means that the catch-all has to at least be broad enough to encompass section 504, and in our view, the two statutes are not distinguishable.

Both prohibit both the kind of disparate treatment of similarly-situated individuals that the State acknowledges constitutes discrimination and requires accommodations in some circumstances.

Justice Samuel Alito: You addressed the -- the effect of the issue here on persons who are in State institutions other than penal institutions.

What would be -- what's the effect of the issue here on land use restrictions?

Are there many cases in which issues involving land use restrictions are -- are raised in litigation against the State as opposed to a municipality?

Mr. Russell: It's quite rare.

I am aware of one pending case in Vermont where there is a challenge to a -- a State environmental regulation, but for the most part it isn't.

But if this Court were to, you know, section -- the provision that we are talking about here applies to land use as well as to institutionalized persons, and one would ordinarily think that the statute would have the same meaning depending on context.

I recognize that the State's basic argument is that the meaning changes depending on who the defendant is, and I suppose if you accept that it could also depend on -- on what provision is being applied.

But that's not normally how statutes work.

Justice Ruth Bader Ginsburg: But the answer to Justice Alito's question is that in the land use area, zoning for example, those are mostly cases against municipalities or counties?

Mr. Russell: That is correct.

Justice Ruth Bader Ginsburg: Not against the State.

Mr. Russell: That is correct.

Justice Anthony Kennedy: The government is going to tell us that the standard for waiver with respect to the Federal Government is different from the standard with respect to the State.

Do you -- I think that's what they are going to tell us.

Do you agree with that?

Mr. Russell: No.

I actually don't understand them to be making that argument, either.

But I know for sure that that's not our position.

And the Court's decision in Barnes I think, for example, is entirely consistent with the Court's recent decisions, including for example in Richlin, where it's made clear that when you are considering the scope of waiver of sovereign immunity, you engage in ordinary statutory interpretation and then the sovereign is respected.

If at the end of that interpretation the statute remains unclear, you know, certainly the sovereign wins.

But--

Justice Anthony Kennedy: But it seems to me that the States are in need of special protection.

With -- with the Congress, if it's a Federal immunity, the Congress can always -- always change its law.

Mr. Russell: --Well--

Justice Anthony Kennedy: That just can't happen with the State.

Mr. Russell: --I don't know that this Court's cases support the idea that -- that heightened clear statement rule for States versus the Federal Government.

If anything, I think they suggest the opposite, but so long as the statute is clear.

Justice Anthony Kennedy: It's the suggestion of the opposite that -- that I am trying -- I am trying to explore.

You have your white light on.

Mr. Russell: Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Russell.

Ms. Harrington.

ORAL ARGUMENT OF SARAH E. HARRINGTON, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ms Harrington: Mr. Chief Justice, and may it please the Court:

The Respondent in this case agrees that when it accepts Federal funds for its correctional system it voluntarily waives its sovereign immunity to private suits in Federal court to enforce RLUIPA, and it is clear under this Court's decisions in cases such as Franklin and Barnes that that voluntary waiver encompasses a waiver to suits for money damages.

Justice Samuel Alito: Suppose Congress passes a statute that creates a private right of action against both the Federal Government and against the States and in both instances authorizes all appropriate relief.

Are damages available in the action against the Federal Government as well as the State government?

Ms Harrington: Well, it would depend on the context to answer both questions.

Justice Samuel Alito: Well, the State -- the State provision is a Spending Clause provision.

Ms Harrington: Then the answer would be yes as to the States.

This Court has been clear in cases such as Franklin and Barnes that in the Spending Clause context, unless Congress indicates an intent to rebut the presumption somehow--

Justice Samuel Alito: And what about the Federal Government?

Ms Harrington: --In the Federal Government probably not, although this Court has looked to background principles in interpreting words such as "appropriate".

Justice Samuel Alito: What sense does that make?

Other than -- I know you are representing a client and so special pleading for your client is -- is to be expected, but I find that very difficult to accept.

If "all appropriate relief" includes damages as against the State that accepts Federal money, then you know, what's good for the State should be good for the Federal Government.

Ms Harrington: Well, I would say two things.

First, in both cases what you want is a clear statement of an intent to waive the sovereign's immunity, either by the Federal Government or the State government.

And also that it's important to keep in mind that in cases such as Franklin and Barnes, this Court was construing statutes that did not say anything about what remedies were appropriate, didn't mention remedies whatsoever.

And so we don't rely so much on RLUIPA's use of the phrase "appropriate relief" as we do on the Spending Clause context.

Justice Ruth Bader Ginsburg: But those cases did not involve States, right?

Ms Harrington: Those cases did not involve States, that's true.

But--

Justice Ruth Bader Ginsburg: And I think that the -- the core question here is the State -- and Justice Alito just posed it: the State is being treated with less dignity than the Federal Government, because your position is that the Federal Government is shielded by its sovereign immunity, and you say the State is not.

Ms Harrington: --On the contrary, as to the dignity point, Your Honor, if -- the State voluntarily waives its immunity when it accepts Federal funds that clearly condition the acceptance of the funds on the waiver of its immunity.

The State in this case doesn't contest that it has waived its sovereign immunity voluntarily to some universe of suits to enforce RLUIPA--

Justice Anthony Kennedy: But we are talking about general principles of interpretation and the proposition that we are suggesting is that the State surely should be entitled to the same dignity, the same protection against suits as the Federal Government, and you suggest just the opposite.

Ms Harrington: --No, Your Honor.

Justice Anthony Kennedy: And it seems to me that's contrary to standard principles of the Federal -- of protecting the Federal balance.

Ms Harrington: If you were construing a State statute that voluntarily waived its own immunity, then you might -- we might say the use of appropriate relief in that statute should be construed the same as the use of appropriate relief in RFRA.

But in this case you are not talking about a State's waiver of its immunity through its -- through statutory language.

The Court said in College Savings Bank that when a -- when a State takes Federal funds that are conditioned on a waiver of immunity, it is the act of accepting the funds that is the waiver and it waives its immunity to suits to the extent that it has noticed that it is doing so.

Justice Anthony Kennedy: But it's -- but it's only because they accept the funds at all that the Spending -- that the Spending Clause is even operative.

Ms Harrington: That's right.

But again, it's -- it's the act of accepting the funds that are clearly conditioned that constitutes the waiver.

So that the waiver--

Justice Ruth Bader Ginsburg: But the waiver -- I mean, on the State side they can say it says "appropriate relief".

All right; we accept that we are going to be vulnerable to an injunction suit.

But we're the State and it's our treasury, and it is not appropriate relief.

We didn't waive it.

It's not -- doesn't say in the Spending Clause legislation that we open up our treasury.

Ms Harrington: --But there is no basis in either the Eleventh Amendment or the statutory provisions in RLUIPA for distinguishing relief of an injunctive nature from relief in damages against the State.

The Eleventh Amendment talks about suits in law and in equity, and there is nothing in RLUIPA that would give the States notice that they are waiving their immunity to suits for injunctive relief, but not give them notice that they are waiving their immunity to suits for money damages.

This Court--

Justice Antonin Scalia: The word "appropriate" -- the word "appropriate" would -- would suggest that to me.

If -- if I'm a State attorney general, and I -- I know that the rule is sovereign immunity and -- and especially with regard to raids on the State treasury, I think it would be at least plausible that I would -- I would read "appropriate relief" not to include monetary relief.

And we have said -- the language from our cases -- Lane says a waiver of sovereign immunity must be unequivocally expressed in the statutory text and will be strictly construed in terms of its scope in favor of the sovereign.

That's -- that's a high test.

Ms Harrington: --But even--

Justice Antonin Scalia: And -- and although I might sit down and come out with a conclusion after intensive study that yes, maybe the best reading of this statute is that it allows money damages, I find it hard to say that it is unequivocally expressed in the statutory text.

Ms Harrington: --Well, two things if I could, Your Honor.

In Lane v. Pena, the question before the Court was it wasn't -- it was outside the Spending Clause context, because the question was whether section 504 of the Rehabilitation Act applied to the Federal Government, and when the Federal Government applies, even in the Spending Clause context, conditions on itself there is no contract-like relationship.

But the second thing this Court said in Barnes--

Justice Antonin Scalia: You -- you deny that it has to be unequivocal?

Ms Harrington: --It has to be unequivocal, but -- but the context in which you are construing whether -- whether the sovereign is expressing its intent to waive its immunity is different when you are talking about the Federal Government applying obligations on itself than when you are talking about the Federal Government offering money to a State in -- in exchange for its agreeing to comply with--

Justice Sonia Sotomayor: But that has nothing to do with whether the language is clear or not to constitute a waiver.

There is no principle of law that you are articulating that says it -- it has to be -- this is not clear enough for the Federal Government, but it is clear enough for the State.

"Appropriate relief" either has a meaning or it doesn't.

Ms Harrington: --Right.

And again, we are not relying so much on the use of the phrase "appropriate relief" in the statute.

What that -- the work that does is it affirms that the background presumption of the Bell v. Hood cases applies to proper defendants under RLUIPA, which include State governments.

But as this Court said in Barnes, when a -- when a recipient of Federal funds takes the funds, it is on notice that it is going to be subject not only to the remedies explicitly provided in the text of the relevant legislation, but also to remedies that are traditionally available in suits for breach of contract, and those include compensatory damages and injunctive relief.

Now the State would have this Court turn that presumption, in terms of traditional contract rules, on its head by saying that this -- that this Court should hold that the State presumptively waived its immunity to suits for injunctive relief but not for damages.

Justice Stephen G. Breyer: What do you say about -- I think I read in one of these briefs that what I think is the most relevant similar statute, RFRA, has been held not to encompass the same word -- not to encompass the monetary relief, and also there was some legislative history where people testified and told Congress at the time that the word "appropriate" won't encompass monetary relief.

Am I remembering that correctly?

Ms Harrington: Well, I would give you the same answer I just gave, which is that we are not pointing so much to the use of the -- using the phrase "appropriate relief" in the statute as we are to the Spending Clause context.

And this Court has held that when there is these conditions placed on Federal funds, the recipient of the funds understands when it takes the money that when it intentionally violates the conditions to which it has agreed it will be subject to suit for money damages.

Justice Ruth Bader Ginsburg: But then you're bracketing the State with counties and municipalities.

It really comes down to a question -- who decides whether the state fisc is touched.

And why isn't it most appropriate for this Court to say, Congress can call it either way, but our rule is, Congress, if you want to reach the State treasury, you have to say so explicitly.

And then there is no doubt when the State enters a contract that it's going to be subject to money damages as well as injunctive relief.

Ms Harrington: Well, this Court has consistently applied a clear notice requirement to conditions that Congress places on Federal funds.

That clear notice requirement arose out of cases like Pennhurst and South Dakota v. Dole, in which there were State recipients of Federal funds.

And the Court said that the validity of Congress's constitutional action in exercising its Spending Clause authority depends on it giving the recipients of the funds clear notice of the conditions that they are agreeing to because of the contract-like nature of Spending Clause legislation.

Now, that same rule was applied in Franklin and Gebser and Davis and Dole, even though the defendants in those cases were not sovereigns.

It's still the same notice requirement and there is no reason to think that a county government would be able to understand, would be on notice that it would be subject to compensatory damages suits, and a State government would not.

To be sure, the State government has more to give up.

It might be a harder choice for the State about whether to take the money or not.

But the choice is the State's, and when it says yes, I'm going to take this money, it agrees to the conditions that are attached to the money.

Chief Justice John G. Roberts: Thank you, counsel.

Ms Harrington: Thank you.

Chief Justice John G. Roberts: Mr. Ho.

ORAL ARGUMENT OF JAMES C. HO ON BEHALF OF THE RESPONDENTS

Mr. Ho: Mr. Chief Justice and may it please the Court: the phrase "appropriate relief" is a textbook example of ambiguity, not unmistakable clarity.

And that should end the inquiry.

Justice Sonia Sotomayor: If it is, why is injunctive relief included at all?

Meaning, what you seem to be saying to me is that no relief should be appropriate, because no relief is clear whether it's injunctive relief or damages?

Mr. Ho: We agree with the U.S.'s reading of RFRA.

The same should attach here.

There is an express cause of action.

So that cause of action has to do something and we are applying to that express cause of action the narrowest reading, which is--

Justice Sonia Sotomayor: Some would say that injunctive relief attaches more to the public FISC then compensatory relief.

Because future conduct or change of conduct can have an enormous intrusion on the public FISC, so why do we draw the line between saying one is more intrusive than the other?

Mr. Ho: --Two answers, Your Honor.

The traditional line drawing that you see in sovereign immunity is injunctive relief.

Any prospective relief is less intrusive on sovereign immunity than any form of retrospective relief, damages and that sort of thing.

But especially true in this context, because when you talk about the Spending Clause, we can walk away from injunctive relief, from an injunction at any time.

We can simply stop receiving the funds and stop accepting the funds and the injunction evaporates, but we can't walk away from a damage remedy.

So we are construing the express cause of action in RLUIPA, like in RFRA, to do the judicial minimum.

Which is that judicial relief which requires states to do what we are already required to do, which is to comply with the substantial burden mandatory under RLUIPA.

So the fact that appropriate relief is essentially inherently ambiguous should end the analysis, because after all, the Court is required unmistakably clear text and rejected merely permissible inferences for two reasons, to ensure both careful, robust deliberation by Congress before disturbing the federal state balance of power, as well as to ensure clear notice.

Justice Stephen G. Breyer: I was looking at the cases the best I can at the moment.

I think you might say that there are a lot of cases which interpret the word "appropriate relief" to include monetary relief.

And then there is some that don't.

And to get a rule out of them, you would have to say, well, they are looking to context.

And in context it sometimes is clear, sometimes occasionally not.

But here, isn't this and maybe this was asked, but I want your answer.

The context here, the words appropriate relief, govern both the prison situation and the land use situation, don't they?

You are given an action when the government through a general land use regulation infringes somebody's right to build, for example.

Now, wouldn't that kind of interference with the use of property quite often and normally require some kind of monetary compensation?

This isn't just the odd thing in a prison, where it's talking about it might be called building a religious building or building some kind of parking, all kinds of things that have monetary compensation.

Do you see my question?

Mr. Ho: I think I do, Your Honor.

First of all, we certainly agree that your premise, which is that context matters, the Court has said specifically appropriate relief can enlarge or contract, it could be mean monetary or it could mean not monetary, so it does depend on context.

I confess that your land use question is interesting, we are obviously focused on section 3.

Justice Stephen G. Breyer: I know, but isn't it the same word that governs both?

Mr. Ho: It is the same word.

Justice Stephen G. Breyer: If it's the same word that governs both and if land cases very often involve claims for money, I would think that would cut against you.

But that's why I ask.

I want to get your response.

Mr. Ho: Well, we are still looking for express language in the text.

Justice Stephen G. Breyer: But there are loads of cases that have nothing more than appropriate relief and in those cases context makes it clear.

The only one really I thought strongly -- your strongest case seems to me to be RFRA.

Mr. Ho: RFRA certainly is the direct context from which the words appropriate relief in this statute are drawn.

And RFRA, of course, is land use, it's prisons, it's anything, RFRA applies to the federal government or any activity under the sun.

Justice Stephen G. Breyer: Uh-huh.

Mr. Ho: So for that reason alone, I think we might resist the notion that the specific uses of appropriate relief in RLUIPA would somehow provide any sort of change or certainly any expectation that we would have or that Congress would have, for that matter, that the words appropriate relief would take on a new meaning just because it's land use.

Justice Stephen G. Breyer: I mean, so often, what I'm thinking of, a church wands to build, and they can't because of a land restriction.

And it turns out that that land restriction violates this statute.

And in the meantime they have had to rent buildings, they have had to maybe build somewhere else and they have had to do all kinds of things that cost money.

And that's why I would think in that context money would be a natural thing.

Mr. Ho: I'm not sure though--

Justice Stephen G. Breyer: To fulfill appropriateness.

Mr. Ho: --I'm actually not sure that that would be true even in that context.

Certainly anybody might want money, but when it comes to what Congress has indicated and what states would expect, I would imagine that the federal government's biggest interest is in making sure that states and other recipients use the money for what it's supposed to be for, comply with the substantial burden mandate.

And a local government is not doing so with regard to a church, then they should be enjoined so that they would be required to comply with it.

If anything, damages might exacerbate the problem just in the sense that we are now taking federal money and applying damages to it.

Justice Ruth Bader Ginsburg: I thought a local government would be subject to damages.

We are talking about the state.

Mr. Ho: We are talking about the state, Your Honor.

To be clear, we do not actually concede that damages would even be available against a local government.

Our point here is that simply it doesn't matter for us, because we obviously are treated very differently from local governments.

I think they have, both the Petitioner and U.S. have indicated that the statute should treat state and locals the same way.

The problem with that is the Constitution obviously treats states and locals very differently.

The Constitution treats the state and federal government in the same way, in that both enjoy sovereign immunity and included in that are the principles of sovereign immunity, the need for specific waiver, not just a clear waiver, but specific as to the scope of the waiver, and specific as to the remedies.

Justice Sonia Sotomayor: So now we have three distinctions.

With respect to land use discrimination, the Rehab Act would presumably apply.

So the Rehab Act says compensatory damages are permissible for that kind of discriminatory claim, so now we have compensatory damages for that.

We have, potentially, compensatory damages for local governments, but not for State or Federal level.

We are chopping up the statute at each stage, correct?

We are treating different defendants differently and different claims differently with respect to the relief that's permissible?

Mr. Ho: That would not be our submission, Your Honor.

If we are talking about the 2000d(7) language, all that 2000(d)(7) says if you are a provision prohibiting discrimination, then you get the same remedies against a State that you would get against any other nonsovereign defendant.

And if we were representing the City of Austin, we actually would argue -- we think we have good arguments -- that damages would not be available even against the City of Austin.

Our point here is simply that--

Justice Sonia Sotomayor: Could you explain why?

Mr. Ho: --Sure.

I think if I were the City of Austin, I would make three arguments.

One, the words "appropriate relief" are in the statute.

I think they -- the other one wants to read this as surplusage.

We would think that the words v. Gibson, noting that the words "appropriate relief" seemed to indicate equitable discretion, or discretion, and therefore equitable relief.

In addition, we will note that the words (4)(A)--

Justice Sonia Sotomayor: But equity permits money as well.

Equity permits money as well.

Mr. Ho: --In some limited formats, but it wouldn't be compensatory damages in the sense that we are talking about in this case.

An additional indication would be the fact that the words "appropriate relief" aren't just attached to the claim.

It's attached to both claim or defense.

And of course it makes no sense to say that you can get money damages by asserting RLUIPA as a defense.

So for all those reasons, the City of Austin might actually have a good case that damages aren't available even against them.

Of course, it doesn't matter for our case, because the whole point is if the City of Austin were to lose due to Barnes and Franklin, what we know for sure here is that Barnes and Franklin have nothing, nothing whatsoever, to do with the States.

If I may, I would like to spend a little bit of time on that issue.

Justice Samuel Alito: Before you do that, Barnes and Franklin were cases involving implied rights of action; isn't that right?

Mr. Ho: Yes.

With the 2000d(7) backdrop, but yes, Your Honor.

Justice Samuel Alito: Okay.

Justice Anthony Kennedy: And I'm -- this one question may be covered, but can you give me any examples where States have turned down money under the Spending Clause, say we don't want it, the restrictions are too great?

Does this happen all the time, or ever?

Mr. Ho: Where States turn down money?

Justice Anthony Kennedy: Where States tell the Federal Government: No, thank you, we don't want the money.

Mr. Ho: It's starting to happen in Texas.

Justice Anthony Kennedy: Under programs like this?

Mr. Ho: I don't -- I can't think of a situation where Texas has turned down RLUIPA Federal prison money.

But there--

Justice Anthony Kennedy: I mean other States -- they say, oh, the liabilities are just too great, we don't want it?

Mr. Ho: --I'm not aware of any State in the country that has turned down Federal prison funds.

Of course, if damages were somehow inflicted, if Congress changed the law, perhaps States would start to recalibrate that decision.

Their core argument is that we should just extend Franklin and Barnes to States.

The fatal flaw with that argument is that the very principle on which Franklin and Barnes apply -- are premised, that principle does not apply to sovereigns.

When Congress passes a cause of action and is silent or ambiguous with respect to the remedies, there is a traditional presumption that we apply.

Non-sovereigns now expect to be subject to any possible remedy under the sun.

Precisely the opposite rule applies to sovereigns.

We know that for sure as a matter of precedent in Lane, which rejected Franklin as applied to a sovereign.

We also know this as a more fundamental basic principle of sovereign immunity, because when it comes to sovereigns, we have to have not only a clear waiver, but also a waiver that is specific to the remedy that is being sought.

These two rules can't be reconciled.

You either can apply the traditional presumption of all remedies, or you apply the other rule that sovereigns benefit from.

Petitioner claims that maybe a special rule should apply that is unique to the Spending Clause, that maybe that's a way to get around the sovereign immunity problem, but we submit that fundamentally misreads Franklin and Barnes, because what's doing the work in Franklin and Barnes isn't the Spending Clause.

It's actually quite the opposite.

The Spending Clause is cutting back against the traditional presumption.

In Franklin -- I will take each case in turn.

In Franklin, you see pages and pages of analysis in section 2 of the opinion, where there is exhaustive research about Bell v. Hood and the traditional presumptions that the Court has applied for decades under any thought of Federal power.

The Spending Clause makes an appearance in Franklin only at the very end in section 4, invoked by the defense as a potential reason not to apply the traditional presumption.

The court, you know, gets past that on the grounds that the traditional presumption is so strong that it does provide the clarity for non-sovereigns.

It doesn't indisputably apply to non-sovereigns; why not apply it under the Spending Clause as well?

The point, though, is it's not the Spending Clause that does the work.

It is -- it is the traditional presumption.

That has even more dramatic force in Barnes v. Gorman.

Mr. Gorman would have had a $1.2 million punitive damage award that he would have been entitled to, except for the fact that this was a Spending Clause case, and that's precisely why he lost that punitive damage award.

So put simply, yes, it could be that under Barnes and Franklin, remedies would be clear enough in that one context.

The problem is it's not clear enough in this context, because sovereigns present a completely different constitutional context.

I want to address very quickly Justice Sotomayor's question about Ex parte Young.

I think you were exactly right that Ex parte -- that our reading isn't in any way redundant with Ex parte Young, but I want to note an additional reason why we are not redundant.

We need to confirm, Congress needed to confirm, that there was in fact a privately enforceable right, and that's why our reading in no way renders the Ex parte Young concept redundant.

Justice Ruth Bader Ginsburg: What do you do with the practical problem that's been brought up that if a State is sued, it can release the prisoner, it can transfer the prisoner, and then no relief is appropriate?

That the only way that the State is going to take its obligation seriously is if it's exposed to compensatory damages?

Mr. Ho: If a prisoner is transferred, released, or the State simply changes its mind and gives up and provides the accommodation, in all those situations, the prisoner is no longer suffering from the complaint of condition.

That's why this Court's mootness doctrines would apply.

Put another way, mootness is really just another word for settlement, and we would think that settlement, the State essentially capitulating and saying: Our bad, we should have complied, we should have provided the accommodation, that actually vindicates the purpose of RLUIPA, and indeed, it avoids the need for costly litigation to do so.

I want to mention briefly the U.S.--

Justice Sonia Sotomayor: What's the inducement to do it more quickly rather than to delay, to remedy the wrong faster rather than to delay?

Mr. Ho: --The reason to do it?

Justice Sonia Sotomayor: Uh-huh.

Mr. Ho: Simply to avoid litigation.

I mean, the way this works practically on the ground, prisons obviously have a lot to deal with, a lot of security concerns.

They set general policies.

They may not be aware that their policy might have an implication for a certain individual of a particular faith.

If that's brought to their attention and--

Justice Sonia Sotomayor: That's an ideal world, that they'll respond, but there is an allegation that some prisons wait until the eve of the trial after onerous discovery on the plaintiff and after enormous harm to plaintiffs, physical and otherwise, before they capitulate.

So what's the inducement?

Mr. Ho: --Well, the inducement is to--

Justice Sonia Sotomayor: To move faster.

Mr. Ho: --States are -- States are suffering the litigation costs as well.

We are not in the business to litigate just because we want to.

We have plenty of other suits to deal with.

This very case, I think, is a good example.

Once the prisoner -- once Mr. Sossamon agreed with respect to the salt restriction policy, we immediately abandoned that policy, before litigation was even filed.

With respect to the U.S. cause of action provision, there was an argument that appropriate relief has to mean damages, because otherwise just take that declaratory or injunctive relief language and put it into the private cause of action.

The reason that argument doesn't work is because these are two fundamentally different provisions.

There is (4)(F) of RFRA, which is the U.S. cause of action, and there was (4)(A) of -- I'm sorry, of RLUIPA -- and there is (4)(A) of RLUIPA, which is not just a private cause of action, but also a defense.

So again, if you can imagine sticking in the words (4)(A), it doesn't work.

It doesn't make any sense, because what person asserting a defense would seek an injunctive relief?

If you take what's--

Justice Stephen G. Breyer: Let me ask -- get this information from you.

As I understand it, there are some cases that find the words "appropriate relief" in a statute to include damages and there's some that don't.

Let's look at the ones that don't.

There is some where it's pretty hard to do it because it's in a heading called "injunction", and that's obvious.

But there are only two statutes, really, where the courts have ever held in significant numbers that the word "appropriate relief" does not include money damages.

One is the IDEA, the Disabilities Act, and the other is RFRA.

Is there anything else that you've come across?

Mr. Ho: --Those are two great examples.

Justice Stephen G. Breyer: Yes, but are there any others?

I mean, I just want to get down on a piece of paper what I have to look at.

Mr. Ho: Sure.

I think there are two -- two great examples.

I would note--

Justice Stephen G. Breyer: All right.

So you don't have any others, I'm judging from your hesitation.

Mr. Ho: --No, no -- I would actually -- I would note there are two other cases--

Justice Stephen G. Breyer: What?

Mr. Ho: --that I would refer you to, and of course discussed in the briefs.

West v. Gibson which talks about how the words appropriate relief, remedies in that context, by definition have no fixed meaning; they can't possibly have fixed meaning.

So it has to enlarge or contract.

And prior to 1991 -- prior to 1991 amendment at issue in that case -- the Court would unanimously agreed that appropriate relief would not have included money damages.

Ruckelshaus provides similar guidance, in that I think the phrase was, there was no possible -- no comprehensible or principled meaning to the phrase "appropriate" as attached to a remedy.

I will briefly touch on the 2000d-7 issue unless there are questions about that.

Assuming the issue is even preserved for this Court's consideration, 2000d-7 doesn't allow relief, either.

I think there are a lot of reasons why that would be so, but I think the simplest is simply to acknowledge the difference between section 2 of RLUIPA and section 3.

Section 2 of RLUIPA is much like the four provisions expressly enumerated in 2000d-7, in that all of them have the word discrimination and more importantly turn on the concept of discrimination.

A discrimination is an element of a cause of action under section 2, or under any of the four provisions enumerated.

By contrast section 3 is not.

You can have discrimination as -- as part of your fact background if you want but it will have nothing whatsoever to do with whether have you a valid section 3 claim or not.

Justice Anthony Kennedy: You -- you have already addressed this but I think it's their -- the position of your friend on the other side of the case is that with the Spending Clause you have a contract.

The State has some extra protection, and therefore we need not be quite so strict in -- in construing waivers -- waivers of immunity, because you have the contract.

Can you comment on that argument?

And -- and you might want to say that the Spending Clause is potentially so sweeping that the State should have special protection and we should be particularly careful about the clear statement rule.

Or do you think the clear statement rule applies with equal force whether it's a Spending Clause or a direct regulation under say, the Fourteenth Amendment?

Mr. Ho: I'll try to take each of those points in turn.

We don't see anything in the law that suggests that sometimes there is a clear statement rule and sometimes there is a super-duper clear statement rule.

I think there has been some suggestion -- or maybe there has not been any more; I'm not sure; I read the briefs the same way, I think the same way that the Justices did.

But they seem not to be arguing that any more.

So it should be the same standard.

I -- I certainly acknowledge that when it comes to the Spending Clause as you wrote in your dissent in Davis v. Monroe, that the Spending Clause if anything does raise special constitutional considerations as a general matter, inasmuch as the Spending Clause could be used to impose Federal restrictions on States that they could never dream of under Article I otherwise.

RLUIPA of course is a prime example of that.

But at the end of the day, the Spending Clause is not doing any work with regard to providing an assumption or presumption of remedies.

Again, it's exactly precisely the opposite.

Franklin and Barnes both articulate that it's the traditional presumption that applies to any exercise of Federal power.

That traditional presumption is what's doing the work.

The Spending Clause if anything is a cut back.

So the notion that just invoking the Spending Clause suddenly puts States on this fabulously clear notice, I think just does not work.

If there are no further questions, Your Honor?

Chief Justice John G. Roberts: Thank you, Mr. Ho.

Mr. Ho: Thank you.

Chief Justice John G. Roberts: Mr. Russell, you have four minutes remaining.

REBUTTAL ARGUMENT OF KEVIN K. RUSSELL ON BEHALF OF THE PETITIONER

Mr. Russell: Thank you.

Nearly every argument the state made here today could have been made by the local governments in Barnes.

Ranging from the complaint that the language like appropriate relief is too unclear, to the assertion that they were not on notice, that by accepting federal funds they were subjecting themselves to suits.

And that's because the local government, like any other state, had the same right to the same clear statement rule.

Unless this Court is, in fact, going to create a proliferation or hierarchy of clear statement rules, the Pennhurst rule that applies in the Spending Clause context of local governments applies in exactly the same way to a state government under the Eleventh Amendment and Barnes' Court construed the express private right of action under section 504, which incorporated by reference the remedies available under Title XI, which this Court construed to authorize appropriate relief.

Exactly the same remedy that RLUIPA authorizes.

And so the state for the first time today has suggested that the city of Austin is not bound by Barnes.

I don't see how they can reach that conclusion.

Barnes quite clearly says that the local government is subject to -- and is on notice that it has clear, there is a clear statement in every Spending Clause statute that they are subject to a damages remedy so long as they accept the funds because of the contractual nature of the obligation.

That applies.

Justice Antonin Scalia: Was that contested in Barnes?

Mr. Russell: Which part, I'm sorry.

Justice Antonin Scalia: Was the liability for compensatory damages contested in Barnes?

Mr. Russell: No.

The question in Barnes is punitive.

Justice Antonin Scalia: Just punitive.

And there is a lot of discussion, the assumption that they were liable for compensatory, but it really wasn't litigated, was it?

Mr. Russell: Well, the legal principle this Court adopted to resolve that issue was one that, I take it, was not just a principle for that case, but that in general, funding recipients are on notice that they are subject to contract remedies and unless this Court is going to back away from that as a general matter, unless the Court is going to say that Pennhurst applies differently in the Spending Clause context than it does in the sovereign immunity context, I don't see how you can come to a different result in this case.

Justice Breyer, with respect to RFRA, as far as I know, there is only one court of appeals case that says the United States is not subject to suits and that was decided six years after RLUIPA was enacted.

With respect to the IDEA, there are a handful of lower courts decisions that say damages are unavailable.

Those -- they give reasons that are specific to the IDEA and the fact that that remedial provision is part of the due process hearing process there.

In general, damages are the quintessential appropriate relief for violations of civil rights, and there is no reason to think that Congress was creating in RLUIPA a second class civil right that wasn't deserving of a remedy that Congress has provided even against states in every other context.

With respect to the state's belief that the Eleventh Amendment somehow prefers injunctions over damages remedies, as counsel for the United States pointed out, the Eleventh Amendment is no basis for that.

It treats injunctions and damages as equally offensive to state sovereignty, and in fact, particularly in RLUIPA, where damages are often capped significantly by the PLRA, the concern really ought to be on the states by injunctive relief, which will frequently have a much more significant effect on the public FISC than a small damages award.

And finally with the state's argument that the words appropriate relief are too inherently ambiguous to meet any clear statement.

Well, this Court rejected that kind of argument in West where it construed appropriate remedy to encompass a damages remedy by engaging an ordinary statutory interpretation, which is entirely appropriate in this context.

This Court has repeatedly in cases like Ruckelshaus, for example, like Richlin, relied on how statutes apply with respect to private parties to give meaning to the otherwise ambiguous word "appropriate" in the federal statute waiving the federal government's sovereign immunity.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Clarence Thomas: This case comes to us on the writ of certiorari to the United States Court of Appeals from the Fifth Circuit.

According to the Religious Land Use and Institutionalized Persons Act of 2000, prisons that received that received federal funding may not impose a substantial burden on prisoner's religious exercise unless that burden is in furtherance of a compelling governmental interest.

An issue in this case is the Act's private cause of action which allows a plaintiff to obtain "an appropriate relief against a Government."

Petitioner Harvey Sossamon is a Texas inmate.

He sued State of Texas and various prisoner officials under this private cause of action and sought money damages.

The District Court granted some rejudgement for the defendants, holding that sovereign immunity barred Sossamon's claims for damages against the State and its officials.

The Court of Appeals for the Fifth Circuit affirmed.

And an opinion filed with the clerk today, we affirm the judgment of the Court of Appeals. And accepting federal funding, Texas did not consent to waive its sovereign immunity to suits for money damages under the Act.

Our precedents require that waivers of sovereign immunity be unequivocally expressed in the text of the relevant statute and strictly construed in favor of the sovereign.

The Act's authorization of appropriate relief against a Government is not being equivocal expressed -- unequivocal expression of state consent to monetary claims that our precedents require, nor does Section 1003 of the Rehabilitation Act Amendments of 1986, independently put the State on notice that it could be sued for the damages under the Act.

Justice Sotomayor has filed a dissenting opinion in which Justice Breyer joins.

Justice Kagan took no part in the consideration or decision of this case.