The Supreme Court will hear argument on Tuesday in a lawsuit filed by three Muslim men who contend that they were placed on the “no fly” list after they refused to become FBI informants. At issue in the case, known as Tanzin v. Tanvir, is whether a federal law passed in 1993 to protect religious freedom allows the men to sue FBI agents for money damages. Defending the FBI agents, the federal government argues that it does not; a contrary ruling, the government says, could open the floodgates to countless lawsuits against government officials. But the men’s supporters contend that money damages should be available as a check against egregious government misconduct.

The law at the heart of Tuesday’s case is the Religious Freedom Restoration Act, which bars the government from placing a “substantial burden” on an individual’s exercise of religion unless the burden advances a compelling government interest and there is not a less restrictive way to achieve that interest. RFRA also allows people to seek “appropriate relief against a government” for a violation of the law.

Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari are U.S. citizens or green card holders who allege that FBI agents put them on the “no fly” list, which prevented them from boarding commercial flights in the United States, after they refused to become informants against fellow Muslims in terrorism-related investigations. The men argued that their placement on the list violated RFRA, and they filed a lawsuit in federal district court in New York against the FBI agents in their personal capacity – that is, as individuals who would be personally responsible if held liable.

The district court dismissed the claims, ruling that RFRA does not allow claims for damages against officials who are sued in their personal capacity. When the U.S. Court of Appeals for the 2nd Circuit reversed, the federal government – representing the FBI agents – asked the Supreme Court to weigh in. The justices agreed to do so nearly a year ago and set the case for oral argument in late March of this year, but the argument was postponed because of the COVID-19 pandemic.

The men argued in a brief to the justices that the text of RFRA allows lawsuits for money damages against federal officials sued in their personal capacities. They reasoned that RFRA allows a plaintiff to seek “appropriate relief against a government,” and the statute in turn defines “government” to include both federal officials and agencies. If RFRA only allowed lawsuits against government officials in their official capacity, they suggested, Congress wouldn’t need to refer to “officials” at all, because a lawsuit against someone in her official capacity is effectively the same as a lawsuit against the agency.

Moreover, the men continued, the term “appropriate relief” includes money damages. One year before Congress passed RFRA, the Supreme Court made clear that there is a presumption that “all appropriate relief,” including money damages, will be available for violations of federal rights unless Congress has specifically said otherwise or the Constitution prohibits it. Congress would have been aware of that decision when it wrote the RFRA statute, but it did not include any limitations in RFRA – nor are there any limitations in the Constitution.

The federal government countered that RFRA does not allow federal government employees to be personally sued for money damages. The Supreme Court has made clear, the government stressed, that the term “appropriate relief” should be interpreted in context, and RFRA specifies that a person whose religious liberty is violated can get “appropriate” relief only “against a government.” An order that requires a government employee to personally pay for a violation of religious liberty would not be an award “against a government,” the federal government said.

It’s noteworthy, the government added, that when Congress enacted RFRA — including the phrase “appropriate relief” — the general rule was that you couldn’t sue individual federal employees for damages based on violations of the Constitution’s free exercise clause. There is no reason to believe that Congress intended to depart from that general rule. Instead, the government argued, Congress enacted RFRA to push back against the court’s decision in Employment Division v. Smith, which held that government actions do not violate the free exercise clause as long as they are neutral and apply to everyone.

The term “appropriate relief” is also vague, the government observed. The Supreme Court should not read a right to sue individual government employees for damages into the term when Congress has failed to make clear that such a right is available. This is particularly true because of the toll that allowing damages would take on the employees – distracting them from their jobs and creating the risk that they might second-guess themselves – and, by extension, the government itself. “Even well-intentioned federal employees,” the government contended, would be “forced to navigate a minefield of liability that would be difficult to predict or avoid.”

The government’s more limited interpretation of the term “appropriate relief” is also supported by the Supreme Court’s 2011 decision in Sossamon v. Texas. In that case, involving the Religious Land Use and Institutionalized Persons Act – which (among other things) protects the rights of state inmates to freely exercise their religion – the Supreme Court ruled that the phrase “appropriate relief” does not allow awards of money damages against a state. The parallels between RFRA and RLUIPA, the government told the justices, lead to the conclusion that money damages are also not available in lawsuits against government officials sued in their personal capacity.

The plaintiffs responded that, in Sossamon, the Supreme Court said that the phrase “appropriate relief” was “open ended”; it then simply held that Congress’ use of the phrase was not sufficiently clear to overcome states’ immunity from lawsuits seeking damages. An interpretation of RFRA that allows money damages against government officials, they suggested, “would be faithful to its enacted statement of purpose” of allowing lawsuits by people whose religious freedoms are infringed by the government.

A “friend of the court” brief filed by the American-Arab Anti-Discrimination Committee reiterated that Muslims have been the target of government misconduct for decades, which suggests that injunctive relief does not do enough to prevent such wrongdoing. Money damages should be available for RFRA violations by federal employees, the committee contended, “both to compensate … for violations already suffered and deter future violations through financial accountability.”

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

Posted in Tanzin v. Tanvir, Featured, Merits Cases

Recommended Citation: Amy Howe, Case preview: Justices to consider availability of money damages in religious freedom lawsuits, SCOTUSblog (Oct. 5, 2020, 12:46 PM), https://www.scotusblog.com/2020/10/case-preview-justices-to-consider-availability-of-money-damages-in-religious-freedom-lawsuits/