Ira W. Madison v. Commonwealth of Virginia

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 IRA W. MADISON,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-
Appellee,
v.
COMMONWEALTH OF VIRGINIA,
Defendant-Appellant,
and
R. RITER, a/k/a R. Ruter, CCS No. 06-6266 Chairman; KAREN POLINSKY; DUNCAN
MILLS; D. J. ARMSTRONG; GARY
BASS, Chief of Operations, CCS;
LEWIS B. CEI,
Defendants.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED; THE BECKET
FUND FOR RELIGIOUS LIBERTY;
COALITION OF PRISON CHAPLAIN
ASSOCIATIONS,
Amici Supporting Appellee. 

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 IRA W. MADISON,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-
Appellee,
v.
GARY L. BASS, in his official
capacity as Chief of Operations of
Offender Management Services for
the Virginia Department of
Corrections; LOUIS B. CEI, in his
official capacity as Special
Programs Manager for the Virginia No. 06-6296 
Department of Corrections; DUNCAN
MILLS, in his official capacity as
Central Classification Supervisor for
the Virginia Department of
Corrections; COMMONWEALTH OF
VIRGINIA,
Defendants-Appellants.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED; THE BECKET
FUND FOR RELIGIOUS LIBERTY;
COALITION OF PRISON CHAPLAIN
ASSOCIATIONS,
Amici Supporting Appellee. 
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(7:01-cv-00596-JCT)
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Argued: October 25, 2006
Decided: December 29, 2006
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Wilkinson wrote the opinion, in which Judge Michael and
Judge Duncan joined.
COUNSEL
ARGUED: William Eugene Thro, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.
Richard H. Menard, Jr., SIDLEY & AUSTIN, L.L.P., Washington,
D.C.; Michael Scott Raab, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Division, Appellate Section, Washington, D.C., for
Appellees. ON BRIEF: Robert F. McDonnell, Attorney General of
Virginia, Mark R. Davis, Senior Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellants. Jay T. Jorgensen, Tiffani C. Smith, Jeffrey I.
Shulman, Peter C. Pfaffenroth, SIDLEY & AUSTIN, L.L.P., Wash-
ington, D.C., for Appellee Ira W. Madison. Gregory G. Katsas, Act-
ing Assistant Attorney General, John L. Brownlee, United States
Attorney, Mark B. Stern, UNITED STATES DEPARTMENT OF
JUSTICE, Civil Division, Appellate Section, Washington, D.C., for
Appellee United States. Rebecca K. Glenberg, AMERICAN CIVIL
LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Rich-
mond, Virginia, for American Civil Liberties Union of Virginia,
Incorporated, Amicus Supporting Appellee. Anthony R. Picarello, Jr.,
Derek L. Gaubatz, Roger T. Severino, THE BECKET FUND FOR
RELIGIOUS LIBERTY, Washington, D.C., for The Becket Fund for
Religious Liberty and Coalition of Prison Chaplain Associations,
Amici Supporting Appellee.
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OPINION
WILKINSON, Circuit Judge:
Plaintiff Ira Madison, a Virginia state prisoner, sued the Common-
wealth of Virginia and various Virginia Department of Corrections
officials claiming, inter alia, that his requests for kosher meals were
denied in violation of section 3 of the Religious Land Use and Institu-
tionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1(a)
("RLUIPA"). On an earlier appeal, we held that RLUIPA did not
impermissibly advance religion in violation of the Establishment
Clause. Madison v. Riter, 355 F.3d 310 (4th Cir. 2003) [hereinafter
Madison I]. Virginia now argues that RLUIPA is unconstitutional
because it exceeds Congress’ authority under the Spending and Com-
merce Clauses and also that sovereign immunity bars its application
against the States. The district court upheld RLUIPA under the
Spending Clause and found that Virginia had waived its immunity.
We hold that RLUIPA is a valid exercise of Congress’ spending
power and that, because Virginia voluntarily accepted federal correc-
tional funds, it cannot avoid the substantive requirements of RLUIPA.
With respect to sovereign immunity, we find that Congress unam-
biguously conditioned federal funds on a State’s consent to suit.
Because that condition does not clearly and unequivocally indicate
that the waiver extends to money damages, however, the Eleventh
Amendment bars Madison’s claim for monetary relief against the
State. Accordingly, we affirm in part, reverse in part, and remand for
further proceedings.
I.
Plaintiff Madison is an inmate at a Virginia state correctional facil-
ity. He is a Hebrew Israelite and member of the Church of God and
Saints of Christ headquartered at Temple Beth El in Suffolk, Virginia.
Members of Temple Beth El are required to eat a kosher diet and to
celebrate Passover.
In July 2000 and again in March 2001, plaintiff informed Virginia
correctional officials that his religious beliefs directed him to eat a
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kosher or "Common Fare" diet. Local prison officials approved both
requests, but Central Classifications Services ("CCS"), a Richmond-
based agency of the Virginia Department of Corrections, overturned
the approval. CCS denied plaintiff’s request because it found that the
daily regular, vegetarian, and no-pork prison menus afforded plaintiff
adequate dietary alternatives. CCS administrators also questioned the
sincerity of Madison’s religious beliefs and considered Madison’s his-
tory of disciplinary problems.
In August 2001, Madison brought suit in federal district court
claiming that he was being denied kosher meals in violation of section
3 of RLUIPA. This section prohibits prison officials from substan-
tially burdening an inmate’s religious exercise unless doing so is the
least restrictive means of furthering a compelling government interest.
42 U.S.C. § 2000cc-1(a). Virginia argued that RLUIPA was unconsti-
tutional because it violated the Establishment Clause and because it
exceeded Congress’ authority under the Spending and Commerce
Clauses. Madison v. Riter, 240 F. Supp. 2d 566, 570 (W.D. Va. 2003).
The district court ruled that RLUIPA impermissibly advanced religion
in violation of the Establishment Clause and dismissed plaintiff’s
RLUIPA claims. Id. at 582. We reversed, finding that "Congress can
accommodate religion in section 3 of RLUIPA without violating the
Establishment Clause," and remanded for consideration of Virginia’s
other arguments. Madison I, 355 F.3d at 313.
On remand, the district court ruled that RLUIPA is a valid exercise
of Congress’ Spending Clause power. Madison v. Riter, 411 F. Supp.
2d 645, 650-54 (W.D. Va. 2006). Accordingly, the court declined to
reach Virginia’s Commerce Clause challenge. Id. at 657. Finally, the
district court concluded that, by accepting federal funds, Virginia had
waived its sovereign immunity for RLUIPA damages claims. Id. at
656.
Pursuant to 28 U.S.C. § 1292(b), the district court certified its rul-
ings on the constitutionality of RLUIPA for interlocutory appeal. Id.
at 657. Virginia requested and we granted discretionary interlocutory
review. See 28 U.S.C. § 1292(b) (2000). Virginia also appeals the dis-
trict court’s ruling that Virginia waived its sovereign immunity from
RLUIPA damages claims, a final order appealable under the collateral
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order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993).
II.
RLUIPA prohibits the States from imposing substantial and unjus-
tified burdens on the religious liberty of state prisoners. 42 U.S.C.
§ 2000cc-1(a). Congress enacted this statute in the wake of the
Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507
(1997). In that case, the Court ruled that the religious protections
mandated by the Religious Freedom Restoration Act of 1993, 42
U.S.C. § 2000bb et seq. ("RFRA"), exceeded Congress’ remedial
power under section 5 of the Fourteenth Amendment. Boerne, 521
U.S. at 532-36. Accordingly, RFRA could not be enforced against the
States. See id. Following Boerne, Congress made findings on the bur-
dens placed on inmates’ religious exercise, and "attempted to rein-
state" RFRA’s religious liberty protections, titling the new statute
RLUIPA. Madison I, 355 F.3d at 315. This time, Congress relied on
its Spending and Commerce Clause authority. Id.
The Spending Clause provision at issue in this case, section
3(b)(1), applies RLUIPA’s religious liberty provisions whenever a
"substantial burden is imposed in a program or activity that receives
Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). The term
"program or activity" includes "all of the operations of . . . a depart-
ment, agency, special purpose district, or other instrumentality of a
State or of a local government." Id. § 2000d-4a(1)(A). The Virginia
Department of Corrections is a state agency that receives federal
financial assistance. Virginia insists, however, that RLUIPA cannot
be applied to this case because the statute exceeds Congress’ Spend-
ing Clause authority.
The Spending Clause is a "permissible method of encouraging a
State to conform to federal policy choices," because "the ultimate
decision" of whether to conform is retained by the States — who can
always decline the federal grant. New York v. United States, 505 U.S.
144, 168 (1992). Congress has "broad power to set the terms on
which it disburses federal money to the States." Arlington Cent. Sch.
Dist. Bd. of Educ. v. Murphy, ___ U.S. ___, 126 S. Ct. 2455, 2459
(2006) (citation omitted). This power is, of course, not unlimited. See,
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e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, &
n.13 (1981). Because even those congressional directives imposed by
Spending Clause inducement shift the federal-state balance, the
Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987), placed
several restrictions upon Congress’ authority to persuade.
To be valid, Spending Clause legislation must meet several require-
ments: (1) "‘the exercise of the spending power must be for the gen-
eral welfare,’" (2) "the conditions must be stated unambiguously," (3)
"the conditions must ‘bear some relationship to the purpose of the
federal spending,’" (4) the conditions "must not violate some other
constitutional command," and (5) "‘the financial inducement offered
by Congress must not be so coercive as to pass the point at which
pressure turns into compulsion.’" Constantine v. Rectors & Visitors
of George Mason Univ., 411 F.3d 474, 491-92 (4th Cir. 2005) (quot-
ing Litman v. George Mason Univ., 186 F.3d 544, 552-53 (4th Cir.
1999)). We join four of our sister circuits and hold that, because
RLUIPA satisfies each of the Dole requirements, it fits comfortably
within Congress’ Spending Clause authority. See Cutter v. Wilkinson,
423 F.3d 579, 584-90 (6th Cir. 2005); Benning v. Georgia, 391 F.3d
1299, 1305-08 (11th Cir. 2004); Charles v. Verhagen, 348 F.3d 601,
606-11 (7th Cir. 2003); Mayweathers v. Newland, 314 F.3d 1062,
1066-70 (9th Cir. 2002).
A.
The first Dole restriction is derived from the plain text of the Con-
stitution: an exercise of the spending power must be in pursuit of "the
general welfare." U.S. Const. art. I, § 8, cl. 1. "In considering whether
a particular expenditure is intended to serve general public purposes,
courts should defer substantially to the judgment of Congress." Dole,
483 U.S. at 207 (citation omitted). Here, Congress sought to protect
prisoners’ religious liberty from unjustified and substantial burdens,
see Cutter v. Wilkinson, 544 U.S. 709, 716-17 (2005), and we have
no trouble concluding that RLUIPA’s "attempt to protect prisoners’
religious rights and to promote the rehabilitation of prisoners falls
squarely within Congress’ pursuit of the general welfare." Charles,
348 F.3d at 607.
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B.
The second restriction placed on Congress’ spending power — that
federally imposed conditions be stated unambiguously — emanates
from the very structure of our system of governance. It is a fundamen-
tal rule of statutory construction that where "Congress intends to alter
the ‘usual constitutional balance between the States and the Federal
Government,’ it must make its intention to do so ‘unmistakably clear
in the language of the statute.’" Will v. Mich. Dep’t of State Police,
491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242 (1985)); see also Gregory v. Ashcroft, 501 U.S.
452, 460-61 (1991). The clear statement rule is particularly appropri-
ate here because Spending Clause legislation is "much in the nature
of a contract." Arlington, 126 S. Ct. at 2459 (quoting Pennhurst, 451
U.S. at 17). "[T]o be bound by ‘federally imposed conditions,’ recipi-
ents of federal funds must accept them ‘voluntarily and knowingly.’"
Id. States cannot, of course, knowingly accept conditions of which
they are unaware or cannot reasonably ascertain. Id. Accordingly, it
is Congress’ burden to "affirmatively impos[e]" a "condition in clear
and unmistakable statutory terms." Va. Dep’t of Educ. v. Riley, 106
F.3d 559, 563 (4th Cir. 1997) (en banc).
To determine whether RLUIPA’s obligations apply to the States,
we must therefore ask whether the statute "furnishes clear notice
regarding the liability at issue in this case." Arlington, 126 S. Ct. at
2459. See also Riley, 106 F.3d at 563. Here, the plain language of sec-
tion 3 provides clear notice of RLUIPA’s religious liberty protections,
stating:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . unless the government demonstrates that
imposition of the burden on that person (1) is in furtherance
of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmen-
tal interest.
42 U.S.C. § 2000cc-1(a). Congress provided equally clear notice that
these conditions apply to State entities that accept federal prison
funds. The statutory definition of government includes States and
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their agencies and departments. Id. § 2000cc-5(4)(A). And section 3
applies to "any case in which the substantial burden is imposed in a
program or activity that receives Federal financial assistance." Id.
§ 2000cc-1(b)(1). Because RLUIPA "furnishes clear notice regarding
the liability at issue" here, Arlington, 126 S. Ct. at 2459, there is noth-
ing unfair about holding Virginia to its side of the bargain. Should the
conditions prove overly onerous, Virginia need only decline federal
correctional funds.
C.
The third Spending Clause restriction requires that conditions on
federal grants "bear some relationship to the purpose of the federal
spending." New York, 505 U.S. at 167; see also Dole, 483 U.S. at
207-08. This requirement is met here because section 3’s conditions
are not triggered by the acceptance of education, highway, or other
similarly unrelated funds. Instead, the section applies where a State
chooses to accept federal prison funding. See 42 U.S.C. § 2000cc-
1(b)(1).
The Commonwealth nonetheless maintains that "RLUIPA fails the
relatedness test" because "there is no apparent federal interest at stake
in the operations of state prisons." We disagree. Prisoner rehabilita-
tion and protection of religious liberties are legitimate congressional
aims related to federal funding of state prisons. See, e.g., Cutter, 423
F.3d at 587; Benning, 391 F.3d at 1308; Charles, 348 F.3d at 608;
Mayweathers, 314 F.3d at 1067. For "[s]incere faith and worship can
be an indispensable part of rehabilitation." Cutter, 423 F.3d at 587
(quoting 146 Cong. Rec. S6678-02, S6689 (statement of Sen. Ken-
nedy)). At bottom, RLUIPA’s religious liberty protections not only
"bear some relationship" to the federal government’s interest in pris-
oner rehabilitation, but are also "an important part of that process." Id.
Virginia takes a narrow view of relatedness. It asserts that while
Congress might "direc[t] how a specific appropriation is spent," by,
for example, "appropriating money for prison construction and then
dictating the size of each individual cell," Congress may not impose
program-wide restrictions. The Spending Clause, however, has never
required Congress to impose conditions on a grant-by-grant basis. See
Oklahoma v. U.S. Civil Serv. Comm’n, 330 U.S. 127, 129 n.1 (1947);
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see also Dole, 483 U.S. at 205. Needless to say, money is fungible,
and since federal funds may directly finance a proscribed activity —
here substantial and unnecessary burdens on religious exercise in state
prisons — or simply make that activity possible by freeing up other
funds, program-wide restraints are permissible. See Sabri v. United
States, 541 U.S. 600, 605-06 (2004). Indeed, we recently rejected a
similar Spending Clause challenge to the ADA’s "blanket condition"
on disability discrimination even though the ADA also applies on a
program-wide basis. See Constantine, 411 F.3d at 493-94.
D.
Dole’s fourth limitation recognizes that "other constitutional provi-
sions may provide an independent bar to the conditional grant of fed-
eral funds." 483 U.S. at 208. Virginia argues that RLUIPA’s religious
liberty protections are an "unconstitutional condition" because Con-
gress may not impose RLUIPA’s requirements on the States directly.1
It is well settled, however, that "objectives not thought to be within
Article I’s enumerated legislative fields, may nevertheless be attained
through the use of the spending power and the conditional grant of
federal funds." Dole, 483 U.S. at 207 (internal citation and quotation
omitted); New York, 505 U.S. at 167. The unconstitutional conditions
doctrine is not "a prohibition on the indirect achievement of objec-
tives which Congress is not empowered to achieve directly." Dole,
483 U.S. at 210. Instead, that bar stands for the "unexceptionable
proposition" that the Spending Clause "may not be used to induce the
States to engage in activities that would themselves be unconstitu-
tional." Id. Because RLUIPA does not induce the States to engage in
unconstitutional activities, it does not impose an unconstitutional con-
dition. See Charles, 348 F.3d at 609-11.
Virginia tries to avoid this long line of precedent by asserting that
the Supreme Court’s recent opinion in Rumsfeld v. Forum for Aca-
demic & Institutional Rights, Inc., ___ U.S. ___, 126 S. Ct. 1297
1Because we hold that the Spending Clause is a valid and sufficient
source of congressional power and because Virginia, pursuant to its
acceptance of federal prison funding, agreed to RLUIPA’s substantive
provisions, we need not decide whether RLUIPA exceeds Congress’
Commerce Clause power.
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(2006), adopted the Madisonian, rather than the Hamiltonian, view of
the Spending Clause. As we explained in Litman v. George Mason
University, 186 F.3d 544, 556 & n* (4th Cir. 1999), Alexander Ham-
ilton and James Madison took very different views of the scope of the
Spending Clause. Hamilton believed that the Clause embraced "a vast
variety of particulars, which are susceptible neither of specification
nor of definition," id. at n* (citing Alexander Hamilton, Report on
Manufacturers (Dec. 5, 1791), reprinted in 2 The Founders’ Constitu-
tion 446, 446 (Philip B. Kurland & Ralph Lerner eds., 1987)), while
Madison understood it to vest Congress with no additional authority,
id. (citing Letter from James Madison to Andrew Stevenson (Nov. 27,
1830), reprinted in 2 The Founders’ Constitution 453, 456). Virginia
argues, in effect, that Rumsfeld v. FAIR adopted Madison’s view that
the Framers intended to limit the scope of Congress’ Spending Clause
power to those powers "otherwise bestowed by the constitutional
charter." Id.
But Rumsfeld v. FAIR cannot be read to work such a sea change
in existing law. The case rejected a Spending Clause challenge. Plain-
tiff law schools argued that, because the Solomon Amendment’s con-
dition — requiring that military recruiters be provided with campus
access equal to that provided other recruiters — violated the schools’
First Amendment rights, it was an unconstitutional condition. Id. at
1303-04. The Court disagreed, finding that the equal access condition
did not violate the First Amendment and that, because Congress was
free to impose the Solomon Amendment directly pursuant to its Arti-
cle I powers, it necessarily could impose the condition under the
Spending Clause. Id. at 1307. The Court, far from limiting Congress’
spending authority, confirmed the Hamiltonian view that this power
is "arguably greater" than Congress’ power to achieve its goals
directly. Id. at 1306. In any event, we may not overlook decades of
clear directives in response to Virginia’s claim that the Supreme
Court has overruled sub silentio its prior precedents. See Tenet v. Doe,
544 U.S. 1, 10-11 (2005); State Oil Co. v. Khan, 522 U.S. 3, 20
(1997).
In somewhat the same vein, Virginia argues that RLUIPA is
unconstitutional because it requires the States to provide prisoners
with religious accommodations that are not compelled by the Consti-
tution. Nothing in the Spending Clause, however, forecloses Congress
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from placing conditions on federal funds that reach beyond what the
Constitution requires. See Dole, 483 U.S. at 205. In Dole, for exam-
ple, the Court rejected a Spending Clause challenge to a statute that
required the States to adopt a minimum drinking age of 21 — an age
limit wholly absent from constitutional text. Id.
E.
Dole’s final restriction bars coercive financial inducements. Of
course, every financial incentive "is in some measure a temptation."
Dole, 483 U.S. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S.
548, 589-90 (1937)). But hard choices do not alone amount to coer-
cion. Rather, the coercion analysis seeks to differentiate between
those choices that are truly voluntary and those that are illusory, pass-
ing the "point at which pressure turns into compulsion." Id. (internal
quotation omitted).
Virginia claims that RLUIPA is unconstitutionally coercive
because it conditions one hundred percent of federal funding for state
prisons on compliance with RLUIPA. But the Virginia Department of
Corrections received a mere 1.3% of prison funding from the federal
government in 2005. It is difficult to see how even one hundred per-
cent of this tiny fraction could leave the State without a real choice
regarding the funds and their conditions. Indeed, Virginia does not
even argue that it cannot operate its prisons without the federal
monies; instead, it argues a funding statute that threatens to withhold
the entirety of a federal grant is per se coercive.
To be sure, a Spending Clause statute that conditions an entire
block of federal funds on a State’s compliance with a federal directive
raises coercion concerns. "[F]ederal statutes that threaten the loss of
an entire block of federal funds upon a relatively minor failing by a
state are constitutionally suspect." West Virginia v. U.S. Dep’t of
Health & Human Servs., 289 F.3d 281, 291 (4th Cir. 2002). At its
most basic, however, "the coercion inquiry focuses on the ‘financial
inducement offered by Congress.’" Constantine, 411 F.3d at 494
(quoting Dole, 483 U.S. at 211). A small carrot does not, in other
words, "become a club" merely because the entire modest amount is
at stake. See, e.g., Oklahoma v. Schweiker, 655 F.2d 401, 414 (D.C.
Cir. 1981) (internal quotation omitted). Where, as here, "Congress has
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offered relatively mild encouragement to the States," the choice to
accept or reject federal funds "remains the prerogative of the States."
Dole, 483 U.S. at 211. We are, therefore, hard pressed to find that the
Commonwealth’s "capacity for free choice was overcome" by the
prospect of such limited financial assistance. See Constantine, 411
F.3d at 494.
Our discussion of the various Dole criteria should not obscure the
fact that resolution of Virginia’s Spending Clause challenge is
straightforward. Congress has a legitimate interest in seeing how fed-
eral funds are spent. Congress also has a legitimate interest in protect-
ing the religious freedoms of inmates and in not funding systems that
violate them. Congress has made it clear that States accepting its
money must conform to RLUIPA’s requirements. And, for their part,
States are perfectly free to decline funds that amount in their totality
to a small fraction of their corrections budgets.
Much of the Commonwealth’s argument is devoted to its sovereign
authority to operate state prisons and to set religious policies within
its borders to the extent not forbidden by the Constitution. That may
be true as a general matter, but the argument ignores the fact that one
attribute of State sovereignty is the ability to waive it in pursuit of
other objectives, in this case pursuit of federal funding. Taken to its
logical extreme, the Commonwealth’s argument would have us pro-
nounce that State sovereignty is so absolute as to be unwaivable and
that the Federal Government, notwithstanding the absence of a
waiver, must keep the funds flowing. This goes well beyond what we
can accept. In short, the spending program at issue here leaves intact
both the legitimate interests of the Federal and State governments. To
strike RLUIPA down on Spending Clause grounds would be an
extraordinary assertion of judicial authority.
III.
Virginia next argues that the district court erred by holding that
Virginia knowingly consented to damages actions against the State.
Although the conditions of compliance are clearly stated in RLUI-
PA’s text, see supra Part II.B, this fact in no way implies that a State
has consented to each and every remedy to which it conceivably
could be subjected. It is a fundamental construct of our federal system
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that "[t]he Eleventh Amendment restricts the judicial power under
Article III," and also that Article I cannot generally "circumvent the
constitutional limitations placed upon federal jurisdiction." Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996); see also Fed.
Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 767-68
(2002).2 Indeed, the Constitution "split the atom of sovereignty" into
Federal and State governments, U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 838 (1995) (Kennedy, J., concurring), thus ensuring
that, "[p]ower being almost always the rival of power," The Federalist
No. 28, at 149 (Alexander Hamilton) (Clinton Rossiter ed., 1961),
"[t]he different governments will control each other, at the same time
that each will be controlled by itself," The Federalist No. 51, at 291
(James Madison). Firmly embedded within the Framers’ design is the
principle that a private party may not file suit against an unconsenting
state. Fed. Maritime Comm’n, 535 U.S. at 767-68.
Although principles of dual sovereignty limit Congress’ authority
to abrogate State immunity, a State may consent to suit. Beers v.
Arkansas, 61 U.S. (20 How.) 527, 529 (1858). This "unremarkable"
proposition, Seminole Tribe, 517 U.S. at 65, reflects an exercise,
rather than a limitation of, State sovereignty. Thus, a State may waive
its immunity by voluntarily participating in a federal spending pro-
gram provided that Congress has expressed "‘a clear intent to condi-
tion participation . . . on a State’s consent to waive its constitutional
immunity.’" Litman, 186 F.3d at 550 (quoting Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 247 (1985)).
2Because the Eleventh Amendment not only prevents federal court
judgments, but also "the indignity of subjecting a State to the coercive
process of judicial tribunals," Puerto Rico Aqueduct, 506 U.S. at 146, the
Amendment is an immunity from suit and "effectively lost if a case is
erroneously permitted to go to trial," id. at 144. As a result, it is "impor-
tant to resolve Eleventh Amendment immunity questions as soon as pos-
sible after the State asserts its immunity." Constantine, 411 F.3d at 482.
In this case, the district court held that RLUIPA waived sovereign immu-
nity for damages suits. Madison, 411 F. Supp. 2d at 656. Virginia
appeals this final order under the collateral order doctrine. See Puerto
Rico Aqueduct, 506 U.S. at 147 (holding that the States may appeal a dis-
trict court order denying Eleventh Amendment immunity under the col-
lateral order doctrine). We must, therefore, determine whether and to
what extent RLUIPA waives sovereign immunity.
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Nevertheless, State sovereign immunity is among the Constitu-
tion’s most foundational principles, see, e.g., Brown v. N.C. Div. of
Motor Vehicles, 166 F.3d 698, 704 (4th Cir. 1999), and we may not
"infer that a State’s immunity from suit in the federal courts has been
negated," Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
99 (1984). "[T]here can be no consent by implication or by use of
ambiguous language." Library of Congress v. Shaw, 478 U.S. 310,
318 (1986) (quoting United States v. N.Y. Rayon Importing Co., 329
U.S. 654, 659 (1947)). A waiver must be "unequivocally expressed in
statutory text." See Lane v. Pena, 518 U.S. 187, 192 (1996). For this
reason, general participation in a federal program or the receipt of
federal funds is insufficient to waive sovereign immunity. See Atas-
cadero, 473 U.S. at 246-47. Rather, "Congress must make its inten-
tion unmistakably clear in the language of the statute." Hoffman v.
Conn. Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989) (plural-
ity) (internal quotation omitted). In this case we must determine
whether Congress, in enacting RLUIPA, expressly and unequivocally
conditioned federal prison funds on Virginia’s consent to suit, and, if
so, whether that waiver of sovereign immunity unambiguously
includes damages suits.3
3Although plaintiff sued various VDOC officials in their official and
individual capacities and requested both damages and injunctive relief,
the issue presented here is a narrow one. With respect to plaintiff’s
requested remedies, the district court decided and Virginia appeals only
the court’s ruling that Virginia waived its sovereign immunity for dam-
ages claims. The district court did not address nor have the parties
briefed or argued whether individual damages actions are authorized by
RLUIPA. Indeed, this question is not even ripe for appeal — it was nei-
ther certified for interlocutory review under 28 U.S.C. § 1292(b) by the
district court (like the Spending Clause challenge), see Madison, 411 F.
Supp. 2d at 657, nor the subject of a final order appealable under the col-
lateral order doctrine (like the sovereign immunity ruling), see Puerto
Rico Aqueduct, 506 U.S. at 147. The district court can address the ques-
tion of whether RLUIPA permits individual damages actions in the first
instance if the issue is presented on remand. As to that question, there is
a division of authority. Compare Gooden v. Crain, 405 F. Supp. 2d 714,
723 (E.D. Tex. 2005) (appearing to hold that RLUIPA does not authorize
individual money damages); Smith v. Haley, 401 F. Supp. 2d 1240, 1246
(M.D. Ala. 2005) (same); Boles v. Neet, 402 F. Supp. 2d 1237, 1241 (D.
Colo. 2005) (same); Chase v. City of Portsmouth, No. Civ. A.
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A.
We begin with the text of the statute. See, e.g., Arlington, 126
S. Ct. at 2459. Section 4(a) of RLUIPA provides that any person may
"assert a violation of this chapter as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government." 42
U.S.C. § 2000cc-2(a). The statute defines "government" to include
states, state agencies, and state departments. Id. § 2000cc-5. On its
face, RLUIPA thus creates a private cause of action against the State,
Madison I, 355 F.3d at 314, and Virginia cannot be heard to claim
that it was unaware of this condition. By voluntarily accepting federal
correctional funds, it consented to federal jurisdiction for at least
some form of relief. See Benning, 391 F.3d at 1306 ("[State] was on
clear notice that by accepting federal funds for its prisons, [it] waived
its immunity from suit under RLUIPA."). Because "appropriate relief"
ordinarily includes injunctive and declaratory relief, see, e.g., Shea v.
County of Rockland, 810 F.2d 27, 29 (2d Cir. 1987), Madison’s
claims for equitable relief are not barred by the Eleventh Amendment.
B.
That RLUIPA unambiguously conditions federal prison funds on a
State’s consent to suit, however, does not end our inquiry. Congress
is, of course, free to condition funds upon a waiver of "sovereign
immunity against liability without waiving [a State’s] immunity from
monetary damages awards." See Lane, 518 U.S. at 196; United States
v. Nordic Vill., Inc., 503 U.S. 30, 32-34 (1992). See also Administra-
tive Procedure Act, 5 U.S.C. § 702 (2000) (waiving Federal sovereign
immunity for "relief other than money damages"). And "[a] waiver of
sovereign immunity for some type of remedy does not necessarily
extend to suits for damages." Webman v. Fed. Bureau of Prisons, 441
F.3d 1022, 1025 (D.C. Cir. 2006).
2:05CF446, 2005 WL 3079065, at *5 (E.D. Va. Nov. 16, 2005) (same),
with Shidler v. Moore, 409 F. Supp. 2d 1060, 1071 (N.D. Ind. 2006) (rec-
ognizing RLUIPA claim for individual monetary relief); Charles v.
Verhagen, 220 F. Supp. 2d 937, 953 (W.D. Wis. 2002) (same); Daker v.
Ferrero, No. 1:03-CV-02481-RWI, 2006 WL 346440, at *8 (N.D. Ga.
Feb. 13, 2006) (same); Orafan v. Goord, No. 00CV2022, 2003 WL
21972735, at *9 (N.D.N.Y. August 11, 2003) (same).
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In analyzing whether a sovereign has waived its immunity, we
strictly construe the scope of any alleged waiver in favor of the sover-
eign. Lane, 518 U.S. at 192. We may "not enlarge the waiver beyond
what the language requires." Shaw, 478 U.S. at 318 (internal citations
and quotations omitted). Consent to suit is never implied. See Atas-
cadero, 473 U.S. at 247. And ambiguities are construed in favor of
immunity. Nordic Vill., 503 U.S. at 34. In short, "[t]o sustain a claim
that the Government is liable for awards of monetary damages, the
waiver of sovereign immunity must extend unambiguously to such
monetary claims." Lane, 518 U.S. at 192; see also Nordic Vill., 503
U.S. at 34. It is of no moment that some of the cases in this area
involve the question of whether Congress has waived federal sover-
eign immunity, because "[i]n considering whether the Eleventh
Amendment applies . . . cases involving the sovereign immunity of
the Federal Government . . . provide guidance." California v. Deep
Sea Research, Inc., 523 U.S. 491, 506 (1998).
The Supreme Court’s decision in United States v. Nordic Village,
Inc., 503 U.S. 30 (1992), is telling. At the time the case was decided,
Section 106(c) of the Bankruptcy Code provided, "[N]otwithstanding
any assertion of sovereign immunity . . . a determination by the court
of an issue arising under [a provision of the Bankruptcy Code that
applies to governmental units] binds governmental units." Id. at 32.
The Court held that section 106(c) of the Bankruptcy Code did not
waive federal sovereign immunity for monetary relief. Id. at 39. The
Court noted that although section 106(c) waived sovereign immunity
for some claims and could be interpreted to provide for money dam-
ages, it could also be read to preclude them. Id. at 34-37. As a result,
section 106(c) did not contain the "unequivocal textual waiver"
required to waive sovereign immunity for monetary relief. Id. at 39.
We conclude that RLUIPA’s "appropriate relief against a govern-
ment" language falls short of the unequivocal textual expression nec-
essary to waive State immunity from suits for damages. See id. The
statute makes no reference to monetary relief — or even to sovereign
immunity generally. And, like the Bankruptcy Code provision at issue
in Nordic Village, "appropriate relief" is "susceptible to more than
one interpretation." Webman, 441 F.3d at 1026. That is, although "ap-
propriate relief" might be read to include damages in some contexts,
it is at least equally plausible that, in other contexts, the term might
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be read to preclude them. See id. In Webman v. Federal Bureau of
Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006), the D.C. Circuit
recently held RFRA’s identical "appropriate relief" provision insuffi-
cient to waive federal sovereign immunity for damages suits. The
court noted that, "RFRA’s reference to ‘appropriate relief’ is not the
‘sort of unequivocal waiver that our precedents demand.’" Id. (quot-
ing Lane, 518 U.S. at 198). Rather, because the Webman court found
RFRA’s "appropriate relief against a government" text to be ambigu-
ous, "open-ended[,] and equivocal," it concluded that such language
could not effect a waiver of sovereign immunity. Id.
Had Congress wished to effect a State’s waiver of Eleventh
Amendment sovereign immunity from suit for damages as a conse-
quence of accepting federal funds, it could easily have expressed that
intention. In the Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(2)
(2000), for instance, Congress crafted a clear waiver of federal sover-
eign immunity from monetary relief. The Act provides for federal
jurisdiction and permits a "complaining party [to] recover compensa-
tory . . . damages" from, inter alia, government actors. Id.
While particular phrasing may not be necessary to waive sovereign
immunity for damages, an unequivocal textual waiver of immunity
that "extend[s] unambiguously to such monetary claims" is. See Lane,
518 U.S. at 192. Thus the fact that "appropriate relief" is open-ended
forecloses any argument that the statute waives immunity for mone-
tary relief. Nordic Vill., 503 U.S. at 37; see also Webman, 441 F.3d
at 1026; Riley, 106 F.3d at 566.
Plaintiff insists that, even if RLUIPA’s "appropriate relief" lan-
guage does not contain the requisite "unequivocal textual waiver," the
Civil Rights Remedies Equalization Act of 1986, 42 U.S.C. § 2000d-
7 ("CRREA"), does. That statute provides, in part:
A State shall not be immune under the Eleventh Amend-
ment of the Constitution of the United States from suit in
Federal court for a violation of section 504 of the Rehabili-
tation 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 Fed-
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eral statute prohibiting discrimination by recipients of Fed-
eral financial assistance.
42 U.S.C. § 2000d-7(a)(1). While plaintiff is correct that the CRREA
clearly and unambiguously conditions the receipt of federal funds on
a waiver of State sovereign immunity, Litman, 186 F.3d at 554, and
that this waiver sometimes includes damage remedies (where avail-
able against a private party), 42 U.S.C. § 2000d-7(a)(2), the CRREA
does not clearly and unambiguously apply to RLUIPA. Indeed, the
CRREA makes no mention of RLUIPA.
Nevertheless, plaintiff claims that the CRREA’s catch-all provision
waives sovereign immunity here. Again, we disagree. Even if a catch-
all provision could suffice as an "unequivocal textual waiver" (and we
do not decide that it does), the catch-all provision here — "any other
Federal statute prohibiting discrimination" — does not. Every statute
set out in the CRREA expressly prohibits discrimination. 29 U.S.C.
§ 794(a) (2000) (prohibiting "discrimination" on the basis of disabil-
ity); 20 U.S.C. § 1681(a) (2000) (prohibiting "discrimination" on the
basis of sex); 42 U.S.C. § 6102 (2000) (prohibiting "discrimination"
on the basis of age); 42 U.S.C. § 2000d (2000) (prohibiting "discrimi-
nation" on the basis of race, color, or national origin).
To fit within the CRREA’s sovereign immunity waiver pursuant to
its catch-all provision — "other Federal statute prohibiting discrimi-
nation" — RLUIPA must be like the statutes expressly listed. Under
the "established interpretative canons of noscitur a sociis and ejusdem
generis, where general words follow specific words in a statutory
enumeration, the general words are construed to embrace only objects
similar in nature to those objects enumerated by the preceding spe-
cific words." Washington State Dep’t of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (alteration
and internal quotation omitted). At a minimum, this would seem to
require that a statute be aimed at discrimination. But RLUIPA does
not speak in those terms. Instead, it forbids a state from imposing sub-
stantial and unjustified religious burdens on prisoners. And, in con-
trast to the non-discrimination statutes listed in the CRREA — which
require identical treatment of similarly situated individuals —
RLUIPA requires that States treat religious accommodation requests
more favorably than non-religious requests. In view of these differ-
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ences, we cannot say that the CRREA’s catch-all provision is a "clear,
unambiguous, and unequivocal" waiver. Litman, 186 F.3d at 554. In
sum, it is not clear that RLUIPA is a "Federal statute prohibiting dis-
crimination" and ambiguity again defeats plaintiff’s claim that Vir-
ginia, by accepting federal funds, knowingly consented for damages
actions to be brought against it.
IV.
Our analysis of Virginia’s challenge to RLUIPA begins and ends
with first principles. It is axiomatic that "a healthy balance of power
between the States and the Federal Government will reduce the risk
of tyranny and abuse from either front." Gregory, 501 U.S. at 458.
Because dual sovereignty plays a vital role in our federal system and
because the Spending Clause can alter the constitutional balance
between the Federal government and the States, courts have insisted
that "recipients of federal funds must accept them ‘voluntarily and
knowingly.’" Arlington, 126 S. Ct. at 2459 (quoting Pennhurst, 451
U.S. at 17).
Here, the plain language of RLUIPA provides "clear notice" of its
religious liberty protections — a condition that Virginia voluntarily
accepted by receiving federal correctional funds. Likewise, RLUIPA
plainly creates a cause of action against the States and we find that
Congress unambiguously conditioned federal funds on a State’s con-
sent to suit. However, nothing in the Supreme Court’s or this court’s
decisions afford any support for the proposition that language as
oblique as that in RLUIPA and the CRREA (as applied to RLUIPA)
is sufficient to effectuate a waiver of immunity from suit for money
damages from the State — indeed, the United States does not argue
the point. We thus conclude that the Eleventh Amendment bars plain-
tiff’s damages claim against the State. For the foregoing reasons, the
judgment of the district court is affirmed in part, reversed in part, and
the case is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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