United States District Court, S.D. Illinois
AHMAD M. AJAJ, Plaintiff,
UNITED STATES OF AMERICA, et. al., Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT, U.S. DISTRICT JUDGE
the Government violates your First Amendment rights to freely
practice your religion, the courts can enter an injunction
and stop what the Government is doing. But in the same
scenario, when are you entitled to money damages from the
individual official who harmed you? In this case, plaintiff
Ahmad Ajaj sued a number of defendants in their individual
capacity for money damages under the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. § 2000bb- 1(c)-which
states that “[a] person whose religious exercise has
been burdened in violation of this section may assert that
violation as a claim or defense in a judicial proceeding and
obtain appropriate relief against a government.” Ajaj
says that these defendants burdened his Islamic religious
practices in a few ways, including delivering his medications
at times that violated what he can do during Ramadan and by
burdening his ability to pray, among other things. But are
money damages against those officials the “appropriate
relief”? The Second and Third Circuits think so.
Tanvir v. Tanzin, 894 F.3d 449, 463 (2d Cir. 2018)
(petition for writ of certiorari pending); Mack v. Warden
Loretto FCI, 839 F.3d 286, 304 (3d Cir. 2016). Other
courts have expressed doubts, Davila v. Gladden, 777
F.3d 1198, 1210 (11th Cir. 2015).
Court will join a slew of other district courts in holding
that monetary damages are not appropriate relief under RFRA.
The first hurdle is the plain text of the statute: RFRA
allows for “appropriate relief against a
government.” 42 U.S.C. §
2000bb-1(c) (emphasis added). And the Act further defines a
“government” as a “branch, department,
agency, instrumentality, and official (or other person acting
under color of law) of the United States....” 42 U.S.C.
§ 2000bb-2(1). Money damages against a federal official
in their individual capacity, like Ajaj is
attempting here-as opposed to their official
capacity-come out of their personal checking accounts (absent
a discretionary reimbursement from the Government). Not the
federal treasury. That is very important: the text says that
the relief must against the “[G]overnment, ”
which indicates that the Government must be the one paying
the bill. That is plainly contrasted with 42 U.S.C. §
1983-which does, of course, provide for damages against
defendants in their individual capacities. That statute
states “[e]very person” acting under color of
state law who deprives another of federal rights “shall
be liable to the party injured in an action at law.”
The text of the two statutes are not alike.
the Supreme Court has already warned the lower courts that
they should not recognize damages remedies against government
officials without explicit authorization from Congress.
“In most instances…the Legislature is in the
better position to consider if the public interest would be
served by imposing a new substantive legal liability.”
Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)
(quoting Schweiker v. Chilicky, 487 U.S. 412, 426-27
(1988)). While Ziglar dealt with damages in the
Bivens context rather than RFRA, the message is
still the same: Congress is in the best situation to decide
“whether to provide for a damages remedy, ”
especially given the massive costs that such a new remedy
would incur on the Government. Id. And here, we do
not have explicit authorization from Congress. Instead, we
have a statute where nobody knows for sure if Congress meant
to provide for individual damages-though according to the
textual analysis above, this Court believes that Congress did
not. To the contrary, Congress has shown the ability to
provide for damages remedies in similar statutes-like §
the Religious Land Use and Institutionalized Persons Act
(RLIUPA)-RFRA's “sister statute” that applies
against the states, Holt v. Hobbs, 135 S.Ct. 853,
859 (2015)-contains nearly the exact same operative language
as RFRA. 42 U.S.C. 2000cc-2(a); 42 U.S.C. 2000cc-5(4)(A)(ii).
But the Supreme Court has already held that damages against
the states were not “appropriate relief” under
that statute because Congress must “give clear
direction that it intends to include a damages remedy”
against a State for one to be available. Sossamon v.
Texas, 563 U.S. 277, 288-89 (2011). And every appellate
court has also held that the message from Sossamon
applies to state officials sued in their individual
capacities-not just their official capacities. See, e.g.,
Haight v. Thompson, 763 F.3d 554, 567-570 (6th Cir.
2014); Washington v. Gonyea, 731 F.3d 143, 145 (2d
Cir. 2013) (per curiam); Sharp v. Johnson, 669 F.3d
144, 153-155 (3d Cir.), cert. denied, 567 U.S. 937 (2012). We
are in a nearly identical situation here: the appellate
courts have also been unanimous that RFRA does not provide
for damages against federal officials in their official
capacities. See, e.g., Webman v. Federal Bureau
of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006);
Oklevueha Native Am. Church of Haw., Inc. v.
Holder, 676 F.3d 829, 840-841 (9th Cir. 2012). So why
would it be any different for RFRA defendants in their
Ajaj says that the Court should treat RLIUPA and RFRA
differently because Congress enacted RLIUPA under the
Spending Clause, that looks like a red herring. “Given
that RFRA and RLUIPA attack the same wrong, in the same way,
in the same words, it is implausible that ‘appropriate
relief against a government' means something different in
RFRA, and includes money damages.” Tanvir v.
Tanzin, 915 F.3d 898, 901 (2d Cir. 2019) (Jacobs,
dissenting from denial of rehearing en banc). For
that reason, the Court will hold that Ajaj cannot sue the
defendants here for money damages under RFRA, and the Court
rejects the portion of Magistrate Judge Daly's Report and
Recommendation that held otherwise. The Court does note
however, that it may be forced to change its ruling depending
on what the Supreme Court does with the petition for a writ
of certiorari in Tanvir.
other portions of Magistrate Judge Daly's Report are
correct and survive a de novo review, despite
Ajaj's objections. Fed.R.Civ.P. 72(b)(3); Johnson v.
Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
First, Ajaj did not name Robert Roloff as a defendant in his
amended complaint-despite doing so in his original
complaint-so Magistrate Judge Daly construed that as,
effectively, a dismissal of Roloff. Beck v. Caterpillar
Inc., 50 F.3d 405, 407 (7th Cir. 1995). The Court
agrees. This case has now dragged on for five years and is
barely past the pleading stage. Because of Ajaj's
extremely haphazard approach in his pleadings, the Court has
had to warn him again and again about what he can and cannot
do when filing new complaints. (See, e.g., ECF No.
137, 140.) The Court will not grant him any further leniency.
Ajaj says that his First Amendment Bivens claims are
not precluded by Ziglar v. Abassi, 137 S.Ct. 1843
(2017). That is incorrect. Even though district courts used
to routinely adjudicate First Amendment Bivens
actions, the Supreme Court changed the game in
Ziglar. In that case-a prisoner Bivens
action dealing with the Fourth and Fifth Amendments-the
Supreme Court held that federal courts should not expand
Bivens actions to reach contexts that the Supreme
Court has not officially recognized unless “special
factors” counsel otherwise. 137 S.Ct. at 1859-60. The
idea is that since Bivens is an implied remedy for
damages under Constitutional principles rather than a
legislatively-created remedy like 42 U.S.C. § 1983,
courts should not expand that remedy unless there are special
circumstances at hand. Id. at 1854-55.
Supreme Court then explained that they have only officially
recognized Bivens theories in three scenarios: (1)
Fourth Amendment unreasonable searches and seizures; (2)
Fifth Amendment gender discrimination; and (3) Eighth
Amendment deliberate indifference to medical needs.
Id. at 1855-56 (citing Bivens, 403 U.S. at
397; Davis v. Passman, 442 U.S. 228 (1979);
Carlson v. Green, 446 U.S. 14 (1980)). The claims at
issue here-First Amendment Free Exercise and Retaliation-are
none of those things. And even though federal courts used to
adjudicate First Amendment Bivens actions all the
time, the Court may no longer do so according to
Ziglar. That is especially true considering that the
Supreme Court said just a few years before Ziglar:
“We have never held that Bivens extends to First
Amendment claims”-making it quite clear that the
Supreme Court has not yet “officially recognized”
the theory yet. Reichle v. Howards, 566 U.S. at 663
n. 4 (2012). And the Court does not believe that any special
factors here caution otherwise.
those reasons, the Court:
• ADOPTS IN PART and REJECTS IN
PART Magistrate Judge Daly's Report (ECF No.
225), as now modified by this order;
• DENIES the motion to strike
paragraphs 24-34 of the operative complaint (ECF No. 200);
• DENIES the motion to dismiss
regarding the Federal Bureau of ...