Reisch v. Sisney - Opposition

No. 09-953

In the Supreme Court of the United States

TIM REISCH, ET AL., PETITIONERS

v.

CHARLES E. SISNEY, ET AL.

ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MICHAEL S. RAAB
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

QUESTION PRESENTED

Whether Congress acted within its authority under the Spending Clause of the Constitution, Art. I, § 8, Cl. 1, when it enacted the institutionalized persons provi sions of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq.

In the Supreme Court of the United States

No. 09-953

TIM REISCH, ET AL., PETITIONERS

v.

CHARLES E. SISNEY, ET AL.

ON CONDITIONAL CROSS-PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-40a) is reported at 581 F.3d 639.1 The opinion of the district court (Pet. App. 41a-142a) is reported at 533 F. Supp. 2d 952.

JURISDICTION

The judgment of the court of appeals was entered on September 10, 2009. On December 1, 2009, Justice Alito extended the time within which to file a petition for a writ of certiorari to and including January 8, 2010, and the petition was filed on that date. Petitioner Charles Sisney filed a petition for a writ of certiorari in >No. 09-821 on January 8, 2010. The conditional cross- petition for a writ of certiorari was filed on February 9, 2010. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The underlying facts are fully set forth in the gov ernment's response to the petition for a writ of certio rari (09-821 Resp. 1-7) and will only be briefly restated here. Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq., to provide statutory protection against religious discrimination, unequal treatment of religions in the provision of accommodations, and unjus tified infringement of the free exercise of religion. Sec tion 3 of RLUIPA, 42 U.S.C. 2000cc-1, applies in the institutionalization context and provides that "[n]o gov ernment shall impose a substantial burden on the reli gious exercise of a person residing in or confined to an institution," unless the burden "is in furtherance of a compelling governmental interest," and "is the least restrictive means of furthering" that interest. 42 U.S.C. 2000cc-1(a)(1) and (2).

2. Petitioner in the underlying petition, Charles Sisney, is serving a life sentence in the South Dakota State Penitentiary and filed suit alleging, inter alia, that cross-petitioners violated his rights under RLUIPA in various respects. Pet. App. 3a, 43a. The district court granted summary judgment to cross-petitioners on peti tioner's individual-capacity damages claims under RLUIPA, id. at 58a-61a, and held that any recovery on his official-capacity damages claims would be limited to nominal damages, id. at 62a-78a. The court also granted summary judgment to cross-petitioners on all but three of petitioner's official-capacity claims for injunctive re lief under RLUIPA. Id. at 82a-102a, 112a-136a. Finally, the court upheld the constitutionality of RLUIPA, re jecting cross-petitioners' contention that Congress ex ceeded its authority under the Spending Clause in enact ing the statute and that the statute violates the Tenth Amendment of the Constitution and the separation of powers doctrine. Id. at 102a-112a.

3. Petitioner filed an interlocutory appeal, and the court of appeals upheld the district court's conclusion that Congress validly enacted RLUIPA's institutional ized persons provisions pursuant to its authority under the Spending Clause. Pet. App. 3a, 14a-23a. The court of appeals held, however, that private suits for money damages under RLUIPA are barred by the Eleventh Amendment of the Constitution. Id. at 23a-30a. The court of appeals further held that the district court erred in refusing to dismiss some, but not all, of peti tioner's official-capacity claims for injunctive relief. Id. at 33a-39a.

ARGUMENT

Cross-petitioners ask this Court to review the court of appeals' determination that Congress enacted the institutionalized persons provisions of RLUIPA, 42 U.S.C. 2000cc et seq., pursuant to its authority under the Spending Clause. That determination does not merit further review because it is correct and because it does not conflict with any decision from this Court or from any other court of appeals.2

1. To date, six courts of appeals, including the court of appeals in this case, have held that Congress validly enacted RLUIPA's institutionalized persons provisions pursuant to its authority under the Spending Clause. See Madison v. Virginia, 474 F.3d 118, 125 (4th Cir. 2006); Cutter v. Wilkinson, 423 F.3d 579, 584-590 (6th Cir. 2005); Benning v. Georgia, 391 F.3d 1299, 1305-1308 (11th Cir. 2004); Charles v. Verhagen, 348 F.3d 601, 606- 610 (7th Cir. 2003); Mayweathers v. Newland, 314 F.3d 1062, 1066-1070 (9th Cir. 2002), cert. denied, 540 U.S. 815 (2003); Pet. App. 14a-23a. No court of appeals has held otherwise, and cross-petitioners do not assert that the court of appeals' decision conflicts with that of any other circuit court. That alone is a sufficient reason for this Court to deny the cross-petition for a writ of certio rari.

2. Further review of the court of appeals' rejection of cross-petitioners' constitutional challenge to RLUIPA is also not warranted because the court of appeals was correct.

a. The Spending Clause authorizes Congress to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and gen eral Welfare of the United States." U.S. Const. Art. I, § 8, Cl. 1. Pursuant to that authority, and within specific limits, "Congress may attach conditions on the receipt of federal funds," South Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (plurality opinion) (Burger, C.J.)), thereby "fix [ing] the terms on which it shall disburse federal money to the States," Pennhurst State Sch. & Hosp. v. Halder man, 451 U.S. 1, 17 (1981). This Court has held that the spending power is "not limited by the direct grants of legislative power found in the Constitution," but can be used to achieve broad policy objectives beyond Ar ticle I's "enumerated legislative fields." Dole, 483 U.S. at 207 (quoting United States v. Butler, 297 U.S. 1, 65-66 (1936)); see Printz v. United States, 521 U.S. 898, 936 (1997) (O'Connor, J., concurring) (contrasting impermis sible command and condition on acceptance of federal funds). Thus, it is settled law that "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 that accep tance of the funds entails an agreement to the actions." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999).

To be sure, Congress's authority under the Spending Clause is not unlimited; in Dole, this Court identified four limitations on Congress's use of that power. First, the Spending Clause by its terms requires that Con gress legislate in pursuit of "the general welfare." 483 U.S. at 207 (quoting U.S. Const. Art. I, § 8, Cl. 1). Sec ond, if Congress places conditions on the States' receipt of federal funds, it "must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Ibid. (brackets in original) (quoting Pennhurst, 451 U.S. at 17). Third, this Court's cases "have suggested (with out significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or pro grams.'" Ibid. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). And fourth, the obligations imposed by Congress may not violate any independent constitutional provisions. Id. at 208.3

b. Cross-petitioners do not challenge the validity of RLUIPA under the second, third, or fourth prongs of the Dole inquiry. Rather, cross-petitioners argue (Cross-Pet. 8) only that RLUIPA "constitutes spending that is not for the 'general welfare'" (emphasis omitted). Cross-petitioners are incorrect. They argue (Cross-Pet. 18) that "Congress may only spend money for national, rather than local purposes." Of course, RLUIPA is not itself a spending statute; it places conditions on the receipt of all federal funds, but does not appropri ate funds for any purpose. Even if cross-petitioners were correct that Congress may exercise its authority under the Spending Clause only for a purpose that is national in scope, the purpose of RLUIPA-to prohibit the use of any federal funds to subsidize discriminatory or unreasonable restrictions on institutionalized per sons' religious exercise-is national in scope and bene fits the general welfare. Indeed, all the courts of ap peals to have addressed this issue have recognized that RLUIPA's institutionalized persons provisions are an uncontroversial invocation of Congress's spending pow er to "protect[] religious worship in institutions from substantial and illegitimate burdens." Mayweathers, 314 F.3d at 1066; see Madison, 474 F.3d at 125 ("[W]e have no trouble concluding that RLUIPA's 'attempt to protect prisoners' religious rights and to promote the rehabilitation of prisoners falls squarely within Con gress' pursuit of the general welfare.'") (quoting Charles, 348 F.3d at 607); see also Cutter, 423 F.3d at 585.

In Lau v. Nichols, 414 U.S. 563 (1974), this Court recognized that Congress validly exercised its authority under the Spending Clause when it enacted Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., which prohibits discrimination on the basis of race by recipients of federal funds. The Court explained that Congress may use its authority under the Spending Clause to ensure that federal funds do not flow to gov ernmental entities that engage in discrimination because such funding would tend to "encourage[], entrench[], subsidize[], or result[] in racial discrimination." Lau, 414 U.S. at 569 (citation omitted). Like the spending conditions at issue in Lau, RLUIPA's institutionalized persons provisions ensure that federal funds will not be used to subsidize state operations involving conduct that Congress has no wish to support, including discrimina tion against religion and the unjustified imposition of substantial burdens on an inmates' religious exercise. RLUIPA is one of many statutes enacted pursuant to the Spending Clause that is designed to ensure that re cipients of federal funds do not engage in discriminatory behavior. See, e.g., 20 U.S.C. 1681 et seq. (Title IX of Education Amendments of 1972 prohibits discrimination on the basis of sex in all education programs receiving federal funds); 29 U.S.C. 794 (Section 504 of the Reha bilitation Act of 1973 prohibits discrimination on the basis of disability by all recipients of federal funds); 42 U.S.C. 6101 et seq. (Age Discrimination Act of 1975 pro hibits discrimination on the basis of age by recipients of federal funds).

Cross-petitioners argue (Cross-Pet. 19) that the con ditions RLUIPA places on the receipt of federal funds cannot bind the State of South Dakota in this case be cause "RLUIPA is based on spending that is for a purely local rather than national purpose, and therefore exceeds Congress' power under the Spending Clause as originally understood." Ibid. Cross-petitioners make no attempt to identify the federal funds that South Dakota applied for and received; nor do cross-petitioners sug gest that the receipt of such funds was in any way invol untary. Nevertheless, cross-petitioners assert (id. at 18) that any federal financial assistance that would be impli cated in this case cannot have been spent for the general welfare because it was ultimately received by the State's correctional system and "[t]he funding of state prisons is inherently local spending because state prisons house those individuals who have committed crimes against the people of the State, as defined by the Legislature of the State."

By cross-petitioners' logic, virtually no Spending Clause legislation would be constitutional because such legislation almost always provides for funding at a local level, with conditions that ensure that federal money does not subsidize activity Congress considers detrimen tal to the general welfare. For example, the application of Title VI that this Court upheld in Lau involved fed eral spending that was received by public schools. 414 U.S. at 568. Although cross-petitioner contends (Cross- Pet. 7) that Congress may not use its spending power to pursue objectives related to education, this Court had no difficulty holding in Lau that Title VI is within Con gress's spending clause power, noting that "[w]hatever may be the limits of that power, they have not been reached here." 414 U.S. at 569 (citation omitted). Cross-petitioners have not offered any reason why a State's voluntary acceptance of federal funding for its prison system should be subject to a different rule. The fact that discriminatory conduct is effected through local entities does not diminish either its harm to the general welfare or Congress's legitimate interest in ensuring that federal funds do not subsidize such behavior.4 In deed, "Congress has a strong interest in making certain that federal funds do not subsidize conduct that in fringes individual liberties, such as the free practice of one's religion," and "[t]he federal government also has a strong interest in monitoring the treatment of federal inmates housed in state prisons and in contributing to their rehabilitation." Mayweathers, 314 F.3d at 1067; see Benning, 391 F.3d at 1307; Charles, 348 F.3d at 608. RLUIPA's institutionalized persons provisions thus "follow[] in the footsteps of a long-standing tradition of federal legislation that seeks to eradicate discrimination and is 'designed to guard against unfair bias and in fringement on fundamental freedoms.'" Charles, 348 F.3d at 607 (quoting Mayweathers, 314 F.3d at 1067).5

CONCLUSION

The conditional cross-petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
MICHAEL S. RAAB
LOWELL V. STURGILL JR.
Attorneys

APRIL 2010

1 All references to "Pet. App." are to the appendix to the petition for a writ of certiorari in No. 09-821.

2 The petition for a writ of certiorari in Cardinal v. Metrish, No. 09-109 (filed July 22, 2009), asks this Court to review the question whether an individual may sue a State or a state official in her official capacity for damages for a violation of RLUIPA. At this Court's invitation, the United States filed a brief as amicus curiae in Cardinal urging that further review be granted on that question. Because the same question is presented by the petition for a writ of certiorari filed in this case, the United States filed a brief urging this Court to hold the petition for a writ of certiorari in this case pending the Court's dispo sition of the petition in Cardinal.

3 The Court in Dole also observed that "in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" 483 U.S. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)). The Court did not, however, suggest that Congress lacks authority to place relevant conditions on the receipt of federal funds whenever the value of the federal offer is too tempting to decline. To the contrary, the Court noted that every congressional spending statute "is in some mea sure a temptation," id. at 211 (quoting Steward Mach. Co., 301 U.S. at 589), and that "to hold that motive or temptation is equivalent to coer cion [would be] to plunge the law in endless difficulties." Ibid. (quoting Steward Mach.Co., 301 U.S. at 589-590). RLUIPA is not unconstitu tionally coercive and cross-petitioners do not contend otherwise.

4 Because money is fungible, that distinct federal interest exists re gardless of whether the funds directly finance the proscribed opera tions, or whether they make it possible by freeing up funds from other operations. Sabri v. United States, 541 U.S. 600, 605-606 (2004).

5 In addition, as the courts of appeals that have considered the question have unanimously held, RLUIPA satisfies the other elements of the Dole inquiry-and cross-petitioners do not argue otherwise. RLUIPA's institutionalized persons provisions unambiguously put recipients of federal grants on notice that those provisions apply to any "program or activity that receives Federal financial assistance." 42 U.S.C. 2000cc-1(b)(1). RLUIPA's conditions on the receipt of federal funds are directly related to the statute's purpose of preventing religious discrimination in institutions that accept those funds. And RLUIPA's institutionalized persons provisions do not "induce the States to engage in activities that would themselves be unconstitu tional." Dole, 483 U.S. at 210.