Ghailani v. Sessions

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 21, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
AHMED KHALFAN GHAILANI,
Plaintiff - Appellant,
v. No. 15-1128
JEFFERSON B. SESSIONS, III, United
States Attorney General; UNITED
STATES ATTORNEY’S OFFICE FOR
THE SOUTHERN DISTRICT OF NEW
YORK; FEDERAL BUREAU OF
INVESTIGATION; OFFICE OF
ENFORCEMENT OPERATIONS;
FEDERAL BUREAU OF PRISONS;
DAVID BERKEBILE, ADX Warden,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-00041-CMA-BNB)
_________________________________
Sean Connelly, Zonies Law LLC, Denver, Colorado, for Plaintiff - Appellant.
Ahmed Khalfan Ghailani filed a brief pro se.
Joshua Waldman, Attorney, Appellate Staff (Benjamin C. Mizer, Acting Assistant
Attorney General, John F. Walsh, United States Attorney, and H. Thomas Byron, III,
Attorney, Appellate Staff, U.S. Department of Justice, Washington, D.C., with him on the
briefs), U.S. Department of Justice, Washington, D.C., for Defendants - Appellees.
_________________________________
*
Before PHILLIPS and SEYMOUR, Circuit Judges.
_________________________________
SEYMOUR, Circuit Judge.
_________________________________
Ahmed Khalfan Ghailani is a prisoner at the United States Penitentiary,
Administrative Maximum Facility in Florence, Colorado (“ADX Florence”). He was
subjected to Special Administrative Measures (“SAMs”) that limited his contact with the
outside world due to his past terrorist activities and his connections with terrorist groups.
One of the restrictions included a prohibition against participating in group prayer. Mr.
Ghailani, as a pro se plaintiff, challenged the legality of his numerous restrictions. He
requested a declaratory judgment proclaiming that the government’s imposition and
enforcement of the restrictions violated numerous constitutional provisions as well as the
Religious Freedom and Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. He also sought
an injunction ordering the government to permit his participation in group prayer. The
district court dismissed his suit for failure to state a claim. While his case was on appeal,
*
The Honorable Neil Gorsuch heard oral argument but did not participate in this opinion
due to his ascent to the United States Supreme Court. The practice of this court permits
the remaining two panel judges, if in agreement, to act as a quorum in resolving this
appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n*
(10th Cir. 1997) (noting this court allows remaining panel judges to act as a quorum to
resolve an appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2d Cir. 1994) (remaining
two judges of original three judge panel may decide petition for rehearing without third
judge), cert. denied, 513 U.S. 1082 (1995).
2
the government allowed Mr. Ghailani’s SAMs to expire. But he is still prohibited from
participating in group prayer due to the housing restrictions at ADX Florence, a high
security prison.
We reverse for the reasons set out below.
I.
This case has its origin in the 1998 United States embassy bombings in Kenya and
Tanzania, in which 224 people were killed and thousands were injured. United States v.
Ghailani, 733 F.3d 29, 39 (2d Cir. 2013). Mr. Ghailani was an Al-Queda operative and
part of the terror cell that perpetrated those bombings but, unlike several of his co-
conspirators, he eluded authorities for six years before he was finally captured in 2004.
Id. In 2006, he was transferred to Guantanamo Bay Detention Center and remained there
until 2009, when he was transferred to New York, arraigned, and held in the Metropolitan
Correctional Center while he awaited trial. Id. at 40.
Mr. Ghailani was first subjected to SAMs upon his arrival in New York. SAMs
are tools used to limit privileges for certain federal inmates. 28 C.F.R. § 501.3(a). They
may be imposed if there is a finding “of a substantial risk that a prisoner’s . . . contacts
with persons could result in death or serious bodily injury to persons, or substantial
damage to property that would entail the risk of death or serious bodily injury to
persons.” Id. The SAMs must be “reasonably necessary to protect persons against the
risk of acts of violence or terrorism.” Id. Moreover, they must be based on findings
specific to the inmate which demonstrate the risk posed by the inmate’s contacts and
communications. The Attorney General must first instruct the Director of the Bureau of
3
Prisons to issue the SAMs, and then the Director authorizes the prison warden to enforce
them. Id. SAMs have a one-year limit and the only way they may be extended is upon
written notification from the Attorney General stating that “there continues to be a
substantial risk that the inmate’s communications or contacts with other persons could
result in death or serious bodily injury to persons, or substantial damage to property that
would entail the risk of death or serious bodily injury to persons.” § 501.3(c). The
inmate must be provided written notification of the basis for the SAMs, § 501.3(b), and
an inmate subject to SAMs may seek administrative review of his restrictions, § 501.3(e).
After his conviction, Mr. Ghailani was transferred to ADX Florence, where he
remains today. His 2009 SAMs were extended every year through June 10, 2015.
Imposition of each of the SAMs was justified by the Attorney General on the basis of Mr.
Ghailani’s “central role” in the embassy bombing, his “connections to and proclivity for
terrorism,” and his “notoriety and ability to inspire and influence others to engage in acts
of violence and terrorism.” 2014 SAM, ROA, vol. I at 276-77.1 In light of those
concerns, the SAMs imposed limitations on Mr. Ghailani’s contacts and communications
that “could reasonably foreseeably result in [his] communicating information (sending or
receiving) that could circumvent the SAM’s intent of significantly limiting [his] ability to
communicate (send or receive) terrorism-related information.” Id. at 278. In addition to
numerous specified limitations on his contacts with others both inside and outside the
prison, the SAMs also specifically incorporated by reference all restrictive policies of the
1
Each of the SAMs were identical in relevant part. Hereinafter, we will cite to the 2014
SAM.
4
prison. Id. at 277. Most significantly for our present purposes, Mr. Ghailani was
prohibited from engaging in group prayer with other inmates in accordance with his
religion.
In January 2014, Mr. Ghailani filed a six-count complaint in the district court. He
challenged the SAMs on various grounds. He also challenged the prison’s “policy
created specifically to target plaintiff’s ability to freely exercise his religion.” Id. at 186.
His religious exercise challenge was brought under both the First Amendment and RFRA
and was based on the prohibition on his “participat[ing] in group prayer.” Id. at 183. Mr.
Ghailani sought to “pray Jumu’ah prayer”—which is a Muslim group prayer that occurs
once a week and involves “five daily prayers in group,” id. at 186—but he was forbidden
to do so. The remaining claims were all based solely on the SAMs and they included (1)
a First Amendment claim challenging the deprivation of his right to use the mail to
contact his friends, family, and sometimes his attorney; (2) a First Amendment claim
challenging a SAM provision that prohibited him from talking to the news media; (3) a
Fifth Amendment Due Process claim arguing that the SAMs constituted an atypical and
significant hardship and deprived him of a significant liberty interest without due process;
(4) an Eighth Amendment claim contending the SAMs provision that required his solitary
confinement was cruel and unusual punishment; and (5) a Fifth Amendment claim
arguing that the imposition and re-imposition of the SAMs violated the Fifth
Amendment’s prohibition of Double Jeopardy.
The government filed a motion to dismiss. On November 3, 2014, the magistrate
judge recommended dismissal of all of Mr. Ghailani’s First Amendment claims and his
5
RFRA claim because he failed to allege “sufficient facts to indicate the plausibility that
the actions of which he complains were not reasonably related to legitimate penological
interests.” ROA, vol. I at 425 (quoting Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir.
2010) (emphasis in original)). The judge recommended dismissal of Mr. Ghailani’s Fifth
Amendment claim because he “failed to allege facts demonstrating that the SAMs
implicate a liberty interest,” id. at 427, and dismissal of Mr. Ghailani’s Eighth
Amendment claim because his complaint “failed to allege an ‘unquestioned and serious
deprivation of basic human needs’ or ‘intolerable or shocking conditions,’” id. at 429
(quoting Hill v. Pugh, 75 F. App’x 715, 721 (10th Cir. 2003) (unpublished)). Finally, the
magistrate judge recommended dismissal of Mr. Ghailani’s Double Jeopardy claim
because the SAMs did not arise out of criminal proceedings and the “risk to which the
[Double Jeopardy] Clause refers is not present in proceedings that are not ‘essentially
criminal.’” Id. at 430 (alteration in original) (quoting Breed v. Jones, 421 U.S. 519, 528
(1975)).
On January 30, 2015, the district court determined that “Magistrate Judge
Boland’s Report and Recommendation is correct and is not called into question by
Plaintiff’s objection,” id. at 533, and granted the government’s motion to dismiss with
prejudice. Mr. Ghailani appeals.2
2
Although Mr. Ghailani started his appeal as a pro se plaintiff, we appointed counsel to
represent him and requested supplemental briefing on the following issue:
[T]o state a plausible claim under the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. § 2000bb-1, is a prisoner required to plead
facts tending to show that a substantial burden on his or her exercise
6
II.
A. Mootness
A majority of Mr. Ghailani’s request for relief focused on the SAMs. On June 10,
2015, however, Mr. Ghailani’s 2014 SAMs expired and they were not renewed. The
government therefore contends Mr. Ghailani’s claims are moot.
“We review mootness de novo as a legal question.” United States v. Fisher, 805
F.3d 982, 989 (10th Cir. 2015). In cases involving mootness, “[t]he starting point for
[our] analysis is the familiar proposition that ‘federal courts are without power to decide
questions that cannot affect the rights of litigants in the case before them.’” DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246,
(1971)). The mootness doctrine “derives from the requirement of Art. III of the
Constitution under which the exercise of judicial power depends upon the existence of a
case or controversy.” Id. The Supreme Court has described it as “the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence
(mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting
Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J.
of religion is not in furtherance of a compelling governmental
interest and is not the least restrictive means of furthering that
interest? Cf. Gee v. Pacheco, 627 F.3d 1178, 1187-88 (10th Cir.
2010) (requiring prisoner, with regard to First Amendment claim, to
“include sufficient facts to indicate the plausibility that the actions of
which he complains were not reasonably related to legitimate
penological interests”).
Order Appointing Counsel (10th Cir. Mar. 10, 2016).
7
1363, 1384 (1973)). “The crucial question is whether granting a present determination of
the issues offered will have some effect in the real world.” Wyoming v. U.S. Dep’t of
Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (quoting Citizens for Responsible Gov’t
State Political Action Comm. v. Davidson, 236 F.3d 1214, 1223 (10th Cir. 2001)). “Put
another way, a case becomes moot ‘when a plaintiff no longer suffers “actual injury that
can be redressed by a favorable judicial decision.’” Ind v. Colo. Dep’t of Corr., 801 F.3d
1209, 1213 (10th Cir. 2015) (quoting Rhodes v. Judiscak, 606 F.3d 931, 933(10th Cir.
2012)).
But there are certain exceptions to mootness where “a case remains subject to
federal court jurisdiction notwithstanding the seeming extinguishment of any live case or
controversy.” Brown v. Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016). Mr. Ghailani
argues that two of those exceptions are applicable in this case. We will address each in
turn.
1. Capable of Repetition Yet Evading Review
Courts will not find a case moot if the issue is deemed a wrong capable of
repetition yet evading review. This exception applies where “(1) the challenged action is
in its duration too short to be fully litigated prior to cessation or expiration; and (2) there
is a reasonable expectation that the same complaining party will be subject to the same
action again.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer
v. Kemna, 523 U.S. 1, 17 (1998)).
Mr. Ghailani contends this exception applies here, relying on our decision in Al-
Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012). In Al-Owhali, an inmate challenged
8
the constitutionality of a SAM that prevented him from subscribing to two Arabic-
language newspapers. Id. at 1239. By the time his case was on appeal, his SAMs had
been amended and no longer included the newspaper restriction. Id. at 1241-42. We
nevertheless held the issue was not moot because it was capable of repetition yet evading
review. Id. at 1242. We reasoned that “[i]f we prohibited any challenge to a lapsed
SAM, inmates would only have one year to litigate and appeal a case. This feat will
often be impossible, as this case illustrates: Years have elapsed since Al-Owhali first
brought his claim.” Id. As to whether there was a reasonable expectation that Mr. Al-
Owhali would be subjected to the same action again, we concluded that “there is nothing
preventing the government from introducing more restrictive SAMs in any given year”
and a “prisoner can reasonably expect SAMs to change from year to year and fluctuate in
severity.” Id.
Al-Owhali makes clear that SAMs are generally too short in duration to be fully
litigated before expiration. But there is a significant distinction between Mr. Al-Owhali’s
situation and the one here. Mr. Al-Owhali’s SAMs never completely expired. Instead,
they just changed somewhat from year to year. Id. at 1242. Accordingly, the factual
justification supporting imposition of the SAMs remained current. In the present case,
however, the Attorney General has allowed Mr. Ghailani’s SAMs to completely expire.
As the government explained at oral argument, the reason why Mr. Ghailani’s SAMs
were eliminated was because the majority of his co-conspirators involved in the embassy
bombings “have been either captured or killed,” Mr. Ghailani has exhibited “good
conduct” while in prison, “his notoriety and his ability to inspire others” has waned with
9
the passage of time, and he was the only conspirator who expressed remorse for his
actions. Oral Argument at 16:32-17:10. Accordingly, the Attorney General no longer
believes “that there continues to be a substantial risk that [his] communications or
contacts with other persons could result in death or serious bodily injury to persons.” 28
C.F.R. § 501.3(c).
To hold that there is a reasonable expectation the government will re-impose
SAMs on Mr. Ghailani would require us to find that it has withdrawn them for almost
two years while still believing that all the risks justifying the SAMs still exist, just to win
a case on mootness that it already won below on the merits. We decline to do so. In the
circumstances here, we are persuaded there is no reasonable expectation that Mr.
Ghailani will be subjected to SAMs again.
2. Voluntary Cessation
As we recognized in Ind, 801 F.3d at 1214:
A plaintiff’s claim is not rendered moot by the voluntary cessation of
a challenged practice which the defendant is free to resume at any
time. Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d
884, 892 (10th Cir. 2008). This exception to mootness “exists to
counteract the possibility of a defendant ceasing illegal action long
enough to render a lawsuit moot and then resuming the illegal
conduct.” Id.
“[A] defendant claiming that its voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 190 (2000) (quoting United States v. Concentrated Phosphate Export
Ass’n., 393 U.S. 199, 203 (1968)).
10
A defendant’s voluntary actions may nevertheless moot litigation if two conditions
are met: “(1) it can be said with assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979) (internal quotation marks, ellipsis, and citations
omitted). Significantly for our purposes, “[c]ourts are more apt to trust public officials
than private defendants to desist from future violations.” 13C CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE,
§ 3533.7 at 333(3d ed. 2008) (citing cases). Accordingly, we “have indicated that
government ‘self-correction provides a secure foundation for mootness so long as it
seems genuine.’” Buhman, 822 F.3d at 1167-68 (quoting Rio Grande Silvery Minnow v.
Bureau of Reclamation, 601 F.3d 1096, 1118 (10th Cir. 2010)).
We conclude here that the government’s voluntary cessation has met the
conditions listed in Davis. First, as we explained above, it is unlikely the government
suspended SAMs on a prisoner whom it thought posed a threat of serious bodily injury to
American citizens just to moot a case it won below on the merits. We have been given
no reason to question the good faith of the government in the explanation it gave us.
As to the second Davis condition, there is no evidence that any of the former SAM
restrictions are currently affecting Mr. Ghailani. While he is still being denied the ability
to pray Jumu’ah, that prohibition “is consistent with . . . the housing conditions at the
ADX,” Defendants’ Motion to Dismiss, ROA vol. I at 256, and it continues despite the
expiration of the SAMs.
11
We conclude that all of the claims Mr. Ghailani has raised relating to his SAM
restrictions are moot.3
B. Mr. Ghailani’s Claim That He is Not Allowed to Pray Jumu’ah
Even without the SAMs in place, Mr. Ghailani is still prohibited from praying
Jumu’ah in prison due to the ADX Florence housing conditions. “Jumu’ah is
commanded by the Koran and must be held every Friday after the sun reaches its zenith
and before the Asr, or afternoon prayer.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 345
(1987). The government asserts that we should dismiss this issue as insufficiently raised
and require that Mr. Ghailani bring a new action if he wants to challenge the prison
policies. Mr. Ghailani counters by arguing that his pro se complaint challenged not only
the SAMs but also “the policy created specifically to target [his] ability to freely exercise
his religion.” ROA, vol. I at 186. We agree.
First, while Mr. Ghailani asked the court to grant four different requests for relief,
only three mentioned the SAMs. One asked the court to review the constitutionality of
28 C.F.R. § 501.3; another one asked the court to issue multiple declaratory judgments
stating that the SAMs violated numerous constitutional provisions; and the third asked
3
If we are mistaken about the government’s intentions and it chooses to reinstate the
SAMs after this suit is over, Mr. Ghailani will be allowed to challenge the restrictions
regardless of any future revocation. See Jews for Jesus, Inc. v. Hillsborough Cty.
Aviation Auth., 162 F.3d 627, 630 (11th Cir. 1998) (“We may, of course, be mistaken
about the secret intentions of Tampa International Airport’s officials. If they choose to
reinstate their restrictive policies—or adopt similar ones—the courthouse door is open to
Jews for Jesus to reinstate its lawsuit. Under such circumstances, the case would not be
moot even if the airport again revoked its policies in response to the lawsuit, because
such ‘flip-flopping’ would create a reasonable expectation that the airport would reinstate
the challenged practice at the close of the lawsuit.”).
12
the court to issue a preliminary injunction ordering the government to refrain from
reimposing the SAMs until resolution of the case. In the last request, however, Mr.
Ghailani specifically asked the court to “issue an injunction ordering defendants to . . .
[a]llow Plaintiff to participate in group prayer” and to “[a]ccommodate plaintiff with a
place to exercise his religion.” Id. at 199. Second, “[a] pro se litigant’s pleadings are to
be construed liberally and held to a less stringent standard than formal pleadings drafted
by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). As Mr. Ghailani
points out on appeal, the government admitted in its brief to the district court that “the
group prayer ban is consistent with the other provisions in Ghailani’s SAMs and the
housing conditions at ADX . . . .” ROA, vol. I at 256. (emphasis added). We will
therefore review Mr. Ghailani’s claim that he is being denied his rights under the First
Amendment and RFRA by the prison’s group prayer ban.
We review a district court’s dismissal of a claim under the Federal Rules of Civil
Procedure, 12(b)(6) de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.
2012). A pleading that states a claim for relief must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). In a
pair of Supreme Court cases discussing the requirements of Rule 8, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545-46 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Court established a heightened pleading requirement for federal civil cases. The Court
stated that “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” would no longer suffice to “unlock the doors of discovery,” and
13
“only a complaint that states a plausible claim for relief [will] survive a motion to
dismiss.” Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555-57).
Interpreting the standard set forth in Twombly and Iqbal, we held in Gee, 627 F.3d
at 1188, that a prisoner alleging a violation of his First Amendment rights “must include
sufficient facts to indicate the plausibility that the actions of which he complains were not
reasonably related to legitimate penological interests.” The “legitimate penological
interests” language comes from Turner v. Safley, 482 U.S. 78, 89 (1987), where the
Supreme Court departed from its traditional First Amendment framework set forth in
Sherbert v. Verner, 374 U.S. 398, 403 (1963) (holding any incidental burden on
somebody’s free exercise of religion must be justified by a “compelling state interest”),
and held instead that “when a prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to legitimate penological
interests.”
The district court dismissed Mr. Ghailani’s religious freedom claim with prejudice
on the basis that he failed to meet the requirements of Gee in his complaint, i.e., that he
did not include facts showing the regulations restricting his ability to pray Jumu’ah were
not related to a legitimate penological interest. We agree with this analysis as applied to
Mr. Ghailani’s First Amendment claim. However, Mr. Ghailani also pled that the
restriction on his ability to pray was a violation of RFRA. The district court erred in
14
applying the same pleading requirement to the RFRA claim as it did to the constitutional
religious freedom claim.4
Some background on RFRA and the cases interpreting it is helpful to illustrate
why this is so. RFRA’s enactment was the direct result of the Supreme Court’s decision
in Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S.
872 (1990), where the Court introduced a new test for evaluating claims brought under
the Free Exercise Clause of the First Amendment. Instead of applying the strict scrutiny
standard that was introduced in Verner, the Court held in Smith that the First Amendment
does not “relieve an individual of the obligation to comply with a ‘valid and neutral law
of general applicability.’” Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3
(1982)).
Congress enacted RFRA to overturn Smith. Finding that “laws ‘neutral’ toward
religion may burden religious exercise as surely as laws intended to interfere with
religious exercise,” 42 U.S.C. § 2000bb(a)(2), Congress “restore[d] the compelling
4
We also note that the district court dismissed Mr. Ghailani’s pro se complaint with
prejudice. As we recognized in Gee v. Pacheco, 627 F.3d 1178, 1185-86 (10th Cir.
2010), however,
[a] pro se prisoner may fail to plead his allegations with the skill
necessary to state a plausible claim even when the facts would
support one. But ordinarily the dismissal of a pro se claim under
Rule 12(b)(6) should be without prejudice, see Oxendine v. Kaplan,
241 F.3d 1272, 1275 (10th Cir. 2001) (“[D]ismissal of a pro se
complaint for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has alleged
and it would be futile to give him an opportunity to amend”); . . . and
a careful judge will explain the pleading’s deficiencies so that a
prisoner with a meritorious claim can then submit an adequate
complaint.
15
interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v.
Yoder, 406 U.S. 205 (1972) and . . . guarantee[d] its application in all cases where free
exercise of religion is substantially burdened,” id. § 2000bb(b)(1). See also Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
Accordingly, RFRA’s main provision reads as follows:
(a) In general
Government shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability, except as
provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person’s exercise of religion only
if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
Id. § 2000bb-1(a)-(b) (emphasis added). 5
The text of RFRA left open the question whether the government’s compelling
interest burden would apply in the prisoner context, as opposed to the relaxed standard
introduced in Turner. We resolved that issue in Kikumara v. Hurley, 242 F.3d 950, 962
(10th Cir. 2001), where we held that “neither the text, nor the legislative history of RFRA
suggest that [the] relaxed standard [from Turner] applies to the government’s burden
when a prisoner makes a RFRA claim.” We explained the difference between a
prisoner’s religious freedom claim brought under the First Amendment versus one
brought under RFRA as follows:
5
RFRA originally applied to all federal and state laws, but in City of Boerne v. Flores,
521 U.S. 507, 536 (1997), the Supreme Court held that Congress had exceeded its
authority under Section 5 of the Fourteenth Amendment and concluded that RFRA was
unconstitutional as applied to the states.
16
Under the Turner analysis, a court is to consider whether the prison
regulation is “reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89. Under RFRA, however, a court is to
consider whether the “application of the burden” to the claimant “is
in furtherance of a compelling governmental interest” and “is the
least restrictive means of furthering that compelling governmental
interest.” 42 U.S.C. § 2000bb-1(b) (emphasis added). Thus, under
RFRA, a court does not consider the prison regulation in its general
application, but rather considers whether there is a compelling
government reason, advanced in the least restrictive means, to apply
the prison regulation to the individual claimant.
Id. Because the Turner standard does not apply to a RFRA claim, a prisoner-plaintiff
clearly need not plead facts showing “that the actions of which he complains were not
reasonably related to legitimate penological interests,” as Gee required for First
Amendment claims. Accordingly, while the district court properly dismissed Mr.
Ghailani’s First Amendment claim alleging that the prison violated his free exercise
rights by not allowing him to pray Jumu’ah, it erred in dismissing his RFRA claim.
Moreover, just as Mr. Ghailani did not need to plead facts showing the
government lacked a legitimate penological interest, he also did not need to plead facts
showing that the restrictions were not in “furtherance of a compelling governmental
interest” and were not “the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb-1(b)(1)-(2). Subsection (b) of RFRA is an
“affirmative defense,” and “the burden is placed squarely on the Government by RFRA.”
Gonzales, 546 U.S. at 429; see also Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“the
burden of pleading [affirmative defenses] rests with the defendant.” (citing FED. R. CIV.
P. 8(c)); Levin v. Miller, 763 F.3d 667, 671 (7th Cir. 2014) (“The Court held in Gomez . .
17
. that complaints need not anticipate affirmative defenses; neither Iqbal nor Twombly
suggests otherwise”).
Finally, the government argues that by attaching the SAMs to his complaint, Mr.
Ghailani provided the court with proof that the government had a compelling interest in
the free exercise limitation that it applied in the least restrictive way, thus setting out the
government’s affirmative defense which Mr. Ghailani should have then negated. We are
skeptical of the merits of this argument because the compelling interest test cannot “be
satisfied by the government’s bare say-so.” Yellowbear v. Lampert, 741 F.3d 48, 59
(10th Cir. 2014). Regardless, the government has admitted that the factual basis for the
SAMs, the risk that Mr. Ghailani imposed because of his terrorist activities in 1998, has
expired. The government’s argument thus expired with the SAMs and the burden
remains on it to affirmatively demonstrate that denying Mr. Ghailani the right to freely
exercise his religion by praying Jumu’ah once a week is in furtherance of a compelling
governmental interest in the least restrictive manner.
Accordingly, we REVERSE the decision of the district court granting the
government’s motion to dismiss Mr. Ghailani’s SAMs claims and REMAND with
instructions to dismiss those claims as moot. We also REVERSE the district court’s
dismissal of Mr. Ghailani’s RFRA claim and REMAND for further proceedings in
accordance with this opinion.
18