A Texas prison inmate’s claim that the warden’s staff has illegally interfered with the practice of his Christian faith offers the Supreme Court a significant opportunity to spell out how much power Congress has when it attaches strings to the money it provides to states — that is, when it uses its core authority under the Constitution’s Spending Clause and states get the money.  The lower courts are divided over whether one of the strings Congress may attach is a requirement that state officials submit to damage claims if they violate an individual’s federal rights.

At 11 a.m. on Tuesday, the Court will hear one-hour of oral argument on that issue in Sossamon v. Texas (08-1438).  Specifically, the case tests what remedies are available to state prisoners under a civil rights law passed by Congress in 2000 — the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Arguing for inmate Harvey Leroy Sossamon III will be Kevin K. Russell of Howe & Russell in Bethesda, MD, sharing 10 minutes of time with a federal government lawyer, Assistant to the Solicitor General Sarah E. Harrington.  The state of Texas will be represented by state Solicitor General James C. Ho.   (Justice Elena Kagan will not participate; she had filed a brief in the case in her former role as U.S. Solicitor General.)  (Disclaimer: The firm of Howe & Russell is affiliated with this blog, but the author of this post is independent of any legal practice.)

Background

Congress has power, under the Constitution, to pass broad or even sweeping laws that directly control how state government officials carry out their duties when those duties have an effect on federal government programs or policies.  The Constitution’s Supremacy Clause protects that power over states, even while accepting that, in many ways, states are themselves “sovereign” governments.

But it is not an unlimited power, and the Court in modern times has been energetic in enforcing limits — especially by narrowing what Congress can require of states when it passes laws to control economic activity that moves across state lines (that is, its authority under the Commerce Clause).  The Court has spent considerably less time on the scope of Congress’s power when it enacts laws under the Spending Clause.  The Sossamon case focuses on the use of that power to mandate how states and state officials may carry out their duties. There is a broad question, and a narrow question, about Spending Clause authority, and both of those are at least in the background of the new case before the Justices.

The broad issue is just what Congress can do when it uses its authority to spend federal funds — that is, can it create specific new obligations or duties in order to implement a federal program, or can it only approve the use of money and attach specific conditions to those who actually get the money as if it were provided by a legal contract?

When the entity receiving federal funds under a Spending Clause law is a state, the broad issue becomes whether Congress can compel the state and all who work for it to conform to the federal program, or can it only attach conditions that apply to the state itself, and not to any “third party” state official or employee, because the grant of money is a legal contract only with the state?  Because of the way the Sossamon case has developed before the Supreme Court, the Justices probably will not make any attempt to sort out the broad question looming in the background.  It was in the case earlier, but apparently no more.

The narrow question is, assuming that state officials can be given a duty under federal law, and assuming that they violate that duty, can those who are harmed by that violation sue those officials for money damages — is that, in other words, one of the available remedies?  As Sossamon has unfolded in the Court, this issue is the one that will be addressed, at some level.

Both the broad and narrow background questions are constitutional in nature. And, when states are involved, this further question always arises: How far can Congress go, using its own power, before it intrudes on the sovereignty of the states and thus violates their legal immunity under the Eleventh Amendment?  The Court, interpreting the Eleventh Amendment, has been quite protective of states when someone suing a state seeks money damages, because that is considered to be a claim against a state’s treasury and thus a threat to its existence as a sovereign government.

So, the Court has said that, if Congress intends to provide money damages as a remedy under some federal program, it must say very explicitly that it is imposing that remedy, taking away the states’ Eleventh Amendment immunity to damage claims in order to assure success of a federal program.  This is what is called the “clear statement” rule.

There is no question, in the Sossamon case, that, in passing the 2000 civil rights law to protect the religious rights of individuals kept in state institutions like prisons, Congress had the constitutional authority to pass such a law.  It had found, after a three-year investigation, that indifference, ignorance, bigotry or simple lack of resources had led to sometimes serious restrictions on the religious practices of prisoners or patients in state institutions.  Congress, in the RLUIPA law, linked the duty to protect religious freedom and practices to states’ receipt of federal funds.  The Spending Clause was thus one source of its authority to pass that law..

Congress also decided that, in addition to federal government enforcement of those rights, it would allow private individuals — prisoners and patients, as examples — to file lawsuits claiming violation of their RLUIPA rights.  Again, creating that right is a power that Congress has.   And, in allowing such lawsuits against states or state officials, and local governments and local officials, Congress said that the remedies for violations could include “appropriate relief.”  It did not define that phrase explicitly, however.

And out of that lack of definition has emerged the Sossamon case.

Harvey Leroy Sossamon III is a prisoner in the Robertson Unit of Texas state prison system, in Abilene.  He is a Christian, and he sued the state and various prison officials under RLUIPA. The challenge was aimed at a prison policy barring inmates who were being held in disciplinary confinement from leaving their cells to attend religious worship (they could be released for other purposes, such as work), and a separate policy barring inmates from using the prison chapel for services, shunting those activities to a multi-purpose room with no religious insignia or symbols and with disturbances from outside noises.  His lawsuit sought court orders to correct the denials, and it asked for money damages — both compensatory and punitive.

A federal District Court ruled for the state on all points, including a ruling that the Eleventh Amendment gave the state and state officials immunity to the damages claim.  The Fifth Circuit Court, on the damages issue, assumed that RLUIPA created a right to sue state officials for damages, but ruled that the state’s sovereign immunity under the Eleventh Amendment barred that remedy.   The law was clear enough, the Circuit Court said, in creating a right to sue for damages, but not clear enough to take away the state’s immunity to such claims.

In addition, the Circuit Court ruled that Congress’s authority under the Spending Clause did not extend to providing a damages claim against state officials in their individual capacities — that is, against them personally – since those prison officials did not themselves get the federal funds; only the state was the recipient.

Petition for Certiorari

Lawyers for Harvey Sossamon took the case on to the Supreme Court on May 18 of last year, one of several reaching the Court on the RLUIPA law’s scope. In the petition for review, Sossamon’s counsel sought a chance to move forward on the religious services attendance issue; the chapel-use question has been sent back to a trial court.

The petition compressed the controversy into a single question: whether states and state officials could be sued for money damages if they violated the RLUIPA law. Within the body of the petition, however, Sossamon’s lawyers targeted both aspects of the Circuit Court’s ruling on the damages issue: whether state officials could be sued in their official capacities with damages as a remedy, and whether they could be sued in their individual capacities — again, with a damages remedy.  Both parts of the Circuit Court ruling, the document said, amounted to striking down “a key enforcement provision of a federal civil rights law.”

Congress, it argued, had clearly authorized private lawsuits and included a broad assurance of remedies in the phrase “appropriate relief.”  That phrase, it asserted, has long been understood to include a claim for money damages against state officials, in either their official or their individual capacities.  The lower courts, the filing said, are in disagreement on both aspects of the damages issue.

The state of Texas answered that the Supreme Court should not review the case, arguing that the case was still moving forward in lower courts, that the lower court split on the damages issue against officials in their official capacities was not a deep one, and that there was no split on the issue of damages against officials as individuals.  The state thus argued that Sossamon was trying to raise two issues, not one — a question about damages in the official capacity context, and a separate one about damages in the individual capacity context.

The case was ready for the Justices by the opening of the last Term, but the Court opted to ask for the views of the federal government before acting on the Sossamon case and a related one filed by the same lawyers and involving a Michigan prison inmate (Cardinal v. Metrish, 09-109).  U.S. Solicitor General Kagan urged the Court to grant review, but to limit the grant to issues involving suits against state officials in their official roles, rather than in their personal capacity.

The Court mostly took Kagan’s advice, and on May 24 granted review of the question — as composed by the Solicitor General — on whether RLUIPA allowed a lawsuit for damages against a state or a state official in his official capacity.  (The Court took the Sossamon case, not the Cardinal case that Kagan had said was the better one to test that issue.)

The Solicitor General’s brief put new emphasis on an additional point — first raised by Texas in opposing Supreme Court review — that would pose a potential complication in the case.  In fact, the point led the state to suggest that the Court simply dismiss the case without deciding it.

One of the reasons that the Solicitor General had given for the suggestion that the Court take the other case instead of Sossamon’s was that there was “a substantial question” whether prisoner Sossamon is entitled to any money damages, since another federal law — the Prison Litigation Reform Act — restricts a prison inmate’s recovery of such damages.  The Cardinal case, she suggested, did not have that complication.

Merits Briefs

Because the Court restricted the question it would answer, the broad question of how far Congress’s spendiing powers give it authority to reach down into a state’s governmental hierarchy and regulate what officials do  has been put aside in the briefing on the merits.

The question that remains is, in part, an interpretation of what Congress meant in RLUIPA in allowing private lawsuits to seek “appropriate relief — a statutory issue, and, in part, an interpretation of Congress’s authority to impose a damages remedy in private lawsuits against states — a constitutional issue implicating the Spending Clause.

Sossamon’s merits brief, filed August 3, focused mainly on the issue of whether the state of Texas has had adequate notice from Congress that it and its officials could be sued for money damages under RLUIPA.  Since that law was passed in 2000, the brief noted, Texas has received millions in federal funds every year for its prison system, knowing that in doing so it had waived its Eleventh Amendment immunity to “appropriate relief” and knowing that that phrase routinely has embraced money damages, too.

Moreover, the inmate’s brief put new emphasis on a claim that another federal law — a 1986 amendment to the Rehabiliation Act, a civil rights law for the disabled — had put Texas on notice years earlier that accepting federal money exposed it to a damages remedy.  Congress need not have chosen any particular formulation to convey that notice, the brief said, but did all that it needed to do in choosing the phrase “appropriate relief.”

Not only has Congress expressed to Texas a “clear statement” about the damages remedy, the brief contended, but the lawmakers actually need not have said anything at all about it in enacting RLUIPA because a 2002 Supreme Court decision (Barnes v. Gorman) made clear that damages were routinely in the range of remedies in such cases.

A week after Sossamon’s brief was filed, the Justice Department filed its own brief supporting Sossamon’s right to pursue a damages remedy.  In using the phrase “appropriate relief,” the government contended, Congress was sufficiently clear, given the accepted meaning of that phrase.  Congress, it added, need not have used different wording.

The federal brief, too, relied upon Congress’s enactment of the 1986 law allowing a damages remedy for lawsuits claiming violations of anti-discrimination laws that Congress has passed under its Spending Clause authority.  “RLUIPA is a federal statute prohibiting discrimination in programs that accept federal funds,” putting it within the scope of that 1986 law, according to the brief.

The state of Texas, in its merits brief filed September 27, stressed its view that the phrase, “appropriate relief,” is “a textbook example of ambiguity” — far from the “unmistakably clear” language that Congress constitutionally must adopt to give a state accepting federal funds notice that it is going to face a potential damages remedy. What Sossamon and the federal government have argued, according to the state, is that Congress has authority to impose a damages remedy tied to federal funds to states if it merely “presumes” that such a remedy will be available.  A presumption is not enough, it asserted.

Since the Court’s precedents demand that Congress make its withdrawal of states’ Eleventh Amendment immunity in “explicit” terms, the state contended, RLUIPA fails because “it says nothing explicitly about damages.”

In the course of addressing Sossamon’s new argument that the 1986 civil rights law provided the basis for a damages remedy under RLUIPA,  the state suggested that that cannot be so, because that law only applies to “provisions prohibiting discrimination,” and RLUIPA does not fit under that provision because it is not an anti-discrimination law.   RLUIPA, the state insisted, “requires favorable — not equal — treatment” in state institutions.

In the closing pages of its brief, the state picked up eagerly on the Solicitor General’s suggestion, made first in replying to the Court’s invitation for government views, that Sossamon cannot qualify for money damages because such damages are available — under the Prison Litigation Reform Act lof 1995– only for physical injuries that inmates suffer.  Sossamon’s claim of harm to his religious freedom does not qualify, the state argued.

In light of what it interpreted to be “concessions” by both Sossamon and the federal government, Texas suggested that “this case was effectively over before it began.”  The case has always been about compensatory damages, and the Prison Litigation law bars them for inmates, the state noted.  Thus, it summed up, Sossamon is raising an issue “in only an academic sense,” so “the Court may wish to consider dismissing the writ as improvidently granted.”

Sossamon’s counsel, in a reply brief, do not take seriously the state’s suggestion that the case should be dismissed as unworthy of the Court’s time.  Sossamon’s claimed injury, the final brief asserted, is not one for mental or emotional injuries; it is for “violation of religious freedom,” and it is for that that he is seeking damages — even if the only damages that might be available would be nominal, or a token amount that would not provide full compensation.

The case, for all of its obvious importance, has not drawn a heavy outpouring of amicus briefs.  Only one supports Texas, but it is a plea by 30 other states to respect the sovereignty of the states as fully as the federal government expects its own sovereignty to be respected.  The phrase “appropriate relief” is too ambiguous to be dignified as full notice to the states that they were giving up their sovereignty by taking RLUIPA funds, the other states contended.

The amici filings in support of Sossamon — six in all — are predominantly from religious organizations or advocacy groups, along with civil liberties groups.  The Becket Fund for Religious Liberty undertook to calm any fears that the Justices might have that damages awards against states under RLUIPA would threaten their treasuries.   RLUIPA, in operation, is largely going to be limited to nominal damages, that brief said.  Texas, it noted, has already agreed to be summoned to court by accepting funds under RLUIPA, so “it adds no indignity to add one dollar of nominal damages.”

Analysis

If the Court wishes to avoid large constitutional questions — such as a clear definition of Congress’s Spending Clause authority — it likely will put its focus on interpreting the meaning of the phrase “appropriate relief” in RLUIPA.  The merits briefing has drawn the Court more toward that less daunting issue.

That inquiry, of course, could divide the eight Justices taking part, because reading a statute to some Justices means reading only the language Congress chose, while to other Justices the inquiry leads into an examination of legislative history and the judicial overlay that has been added to the plain language.

Texas has chosen to put its focus primarily on RLUIPA’s actual language, and thus suggested to the Court that the phrase is quite open-ended and thus could hardly serve as fair warning to the states of what they were getting into in taking RLUIPA money.   Sossamon has chosen to put his emphasis on a wide array of judicial interpretations of that same phrase, all of which, he suggested, leads to the same conclusion: that Texas has, indeed, had more than ample notice.

The current majority of the Court is not particularly fond of private lawsuits as a mode of enforcing federal laws, so at least some Justices may well be inclined to read the grant of that litigating opportunity more narrowly.  Those same Justices may well be, in addition, the most sympathetic to threats to the dignity of the states.

It would be entirely likely, perhaps even predictable, that some of the Justices will pick up on the question of whether Sossamon has anything really at stake in the dispute over his access to money damages, because of the limitations that loom in the Prison Litigation Reform Act.  And their reaction may well depend upon whether they think that (1)  the possibility of nominal damages — say, of $1 — would keep his claim to damages alive, and (2) that such damages are not an insult to state sovereignty.

The prospect of a 4-4 split, which would leave intact Sossamon’s defeat on the damages issue, might at some point loom large enough that the Court could be looking for a way to put that issue off until another day.  The state of Texas’s suggestion of an outright dismissal is an available alternative, although the Court generally does not like to throw out a case on which considerable effort has been expended.


Posted in Sossamon v. Texas, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: Reach of Congress’s powers, SCOTUSblog (Oct. 27, 2010, 9:33 PM), http://www.scotusblog.com/2010/10/argument-preview-scope-of-congresss-powers/