What’s the Recourse Against Federal Officers Who Violate Your Religious Freedom?

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Argument	October 6, 2020
Decision	December 10, 2020
Petitioner Brief	FNU Tanzin, et al.
Respondent Brief	Muhammad Tanvir, et al.
Opinion Below	Second Circuit Court of Appeals

Argument Analysis

September 16, 2020

The plaintiffs in this case are American Muslim men who were approached by the FBI to act as informants. When asked, some of the men were threatened with deportation and arrest, and in other cases they were promised financial benefits. 

Each of the men rejected the offers, telling the federal agents they didn’t have any information and preferred not to spy on their communities. Spying, in fact, is against the Islamic moral code.

After saying no, the men were harassed and placed on the federal “No Fly List”, despite that none of them had a criminal record. 

The “No Fly List” is a terrorist watchlist administered by the FBI. A person on the list cannot board a plane that starts in, ends in, or flies over the United States. You don’t know that you’re on the list until you show up at the airport and can’t board.

The men could not fly for years because they were on the “No Fly List.” They wasted plane tickets, one quit his job that required him to fly; and they also suffered emotional distress and reputational harm from the harassment by federal officers and inability to fly. Read Tanvir’s account in the Second Circuit opinion (starting on page 10) to get an idea of the harassment.

Federal Complaints

The plaintiffs sought recourse by filing complaints with the DHS Traveler Redress Inquiry Program, the administrative mechanism for filing complaints about the “No Fly List.” Their complaints failed without explanation. Years passed before each was finally removed from the list and able to board a plane.

The men sued for damages under the Religious Freedom Restoration Act. They alleged the government and its officers violated their religious freedom by retaliating against them for refusing to become spies, or for upholding their religious beliefs. 

Suits Against the Government Versus Individual Officers

Since the early days of the nation, individuals could not sue the government without the government’s consent. Suits against the government violated an English legal principle of sovereignty and people believed it threatened the dignity of the government. 

We adopted the same rule in American jurisprudence. Over the years Congress has passed various laws where the government waives its immunity to suit. In some areas of law (like tort), individuals can get money damages from the government. 

When you sue the government with a civil rights complaint, you can get an injunction, but you can’t get money. In other words, you can get the government to stop harming you, but you can’t get money. If you want money in such a suit, you have to sue the government officers. It’s a work-around for government immunity. The money will come from the pockets of the individual officers.

Issue in the Case

In this case, Tanvir and co., sued under the Religious Freedom Restoration Act. They seek money damages because an injunction won’t do. They were already taken off the “No Fly List.” But what about the damage they suffered in the meantime? They want monetary relief from the individual officers.

A court must evaluate the RFRA to determine whether the government has waived immunity and what type of relief is available. The statute explicitly allows suits against the government, but the question in this case is whether the plaintiffs can get money damages. 

The Religious Freedom Restoration Act

Congress passed the RFRA to provide stronger protection for religious freedom than the First Amendment guarantees. It was passed in response to a Supreme Court case, Employment Division v. Smith (1990), which held that the First Amendment does not provide strict scrutiny review when a neutral law (one that applies generally, i.e. does not intentionally pick on a religious practice) restricts someone’s religious liberty. After Smith, Congress stepped in to mandate strict scrutiny review even for laws of general applicability. The RFRA provides:

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except [when the Government can show] 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.

The RFRA also determines who gets to sue; who can be sued; and what the plaintiff can get for relief. The relief question is important in this case.

The RFRA says that any “person whose religious exercise has been burdened in violation of [the statute]” can sue “in a judicial proceeding and obtain appropriate relief against a government.” And the term “government” includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”

The statute does not define the term “appropriate relief,” a term which is critical in resolving whether the plaintiffs in this case can get damages against the federal officers.

Rules of Statutory Construction

To determine the intention of a statute, a court will first look at the text of the statute. If the text is clear, the court will go with the textual reading. If the text is not clear, then the court will evaluate the context surrounding the text, both the surrounding language and the broader statutory context. 

The Lower Court Analysis

The lower court determined that “appropriate relief” in the RFRA includes money damages. The Second Circuit reviewed the context of the language as it was used in the statute because the statute did not define the term specifically.

First, the Second Circuit acknowledged that the term “appropriate relief” is entirely context dependent. It could include money damages or it could limit the damages to equitable remedies (like an injunction), depending on the context. 

To interpret the context, the court decided that Congress legislates in accordance with the existing legal rules, including judicial decisions of the time. Around a year before Congress enacted the RFRA, the Supreme Court decided a case that addressed which remedies are available in statutes that didn’t explicitly state the remedies. 

In Franklin v. Gwinnett Cty. Pub. Schs. (1992), the Supreme Court said a court should “presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise.” Because the RFRA doesn’t explicitly preclude money damages as a remedy and Congress chose to use the same “appropriate relief” language that the Supreme Court evaluated in Franklin, the Second Circuit determined that courts may award money damages.

Tanzin appealed, asking the Supreme Court to address the remedy question on appeal.

Tanzin’s Arguments

The government argues that the RFRA does not allow monetary relief against federal officers in their official capacities. The government makes four arguments.

First, it argues, the RFRA only allows suits against the government itself—not individual officers. So the plaintiffs cannot even sue federal officers individually, much less get money damages against them. 

Second, when a court evaluates the phrase “appropriate relief,” it must consider the term as it relates to relief against government employees. Generally, money damages are not appropriate relief against government officials. There is one statute that does allow monetary damage against government officials, and there is no indication the RFRA intended to create a similar remedy. 

Third, a court should refrain from implying a monetary damages remedy against federal officers when Congress did not explicitly state one. Such a remedy causes a big social impact, so Congress would state its intention specifically. The government rejects application of the Franklin presumption to imply that monetary damages are appropriate.

Fourth, the same term “appropriate relief” was used in the RFRA’s sister statute, the RLUIPA, and the Supreme Court determined the RLUIPA does not include monetary damages based on the term.

Tanvir’s Arguments

Tanvir and co. argue that the RFRA allows suits against federal officers in their individual capacities and allows money as an “appropriate remedy.”

The RFRA’s definition of government provides a list of who can be sued. The definition includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” According to Tanvir, the phrase “or other person acting under color of law” obviously refers to federal officers. That’s the exact phrase used to refer to federal officers in the other statute which allows suits against federal officers, and it makes sense that Congress would copy it. Also, if the phrase refers to one of the other government entities, it would be redundant because those are listed in the statute already.

Tanvir supports the Second Circuit’s use of the Franklin presumption, which presumes the availability of monetary relief unless expressly stated otherwise. 

Tanvir rebuts the government’s argument using the RLUIPA as a parallel by distinguishing the RLUIPA. Tanvir points out that in the case where the Supreme Court evaluated “appropriate relief” in the RLUIPA, Sossamon v. Texas (2010), the Court was deciding whether the phrase was enough to waive state immunity to suit, not what type of damages were available. Thus, the parallel doesn’t work, Tanvir argues, and the Court should stick with the Franklin presumption.

Lastly, Tanvir notes that allowing monetary damages accords with the broad intention of the RFRA. The statute meant to provide relief to people whose religious exercise is substantially burdened by the government, which the Supreme Court has acknowledged is a broad protection of religious liberty (Burwell v. Hobby Lobby (2014)). Without monetary damages against federal officials, the statute wouldn’t provide it. 

The Supreme Court will hear arguments on October 6, 2020.

Decision Analysis

December 10, 2020

On December 10, 2020, the Supreme Court ruled in Tanzin v. Tanvir. The Court held in favor of Tanvir and other American Muslim men who seek monetary relief against federal officers. The ruling allows Tanvir and the other plaintiffs to pursue damages under the Religious Freedom Restoration Act.

Case Background

Tanvir and other American Muslim men sued federal agents for monetary damages, alleging the agents illegally placed them on the “No Fly” list. The men alleged the agents were retaliating against them for their unwillingness to act as FBI informants. 

Tanvir, et al. brought the case under the Religious Freedom Restoration Act (RFRA). They had already been taken off the “No Fly” list and sought damages against the individual officers for having caused them harm. 

The question posed to the Supreme Court was whether the RFRA allows monetary damages against individual federal officials. 

The Supreme Court Ruling

The Supreme Court ruled in favor of Tanvir, holding that the plaintiffs could seek monetary relief against the individual federal officers. In evaluating the issue, the Court reviewed the text of the statute and evaluated the context of the phrasing used in the law’s damages provision.

The RFRA says that any “person whose religious exercise has been burdened in violation of [the statute]” can sue “in a judicial proceeding and obtain appropriate relief against a government.” And the term “government” includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”

The Court first evaluated whether government officials are included within the term “government” in the statute. The text defining “government” includes an “other person acting under color of law.” This phrase, the Court said, has long been held to include government officials. Thus, yes, officials are included.

Then, the Court evaluated whether plaintiffs can get damages under the phrasing “appropriate relief.” Appropriate relief, the Court said, is context-dependent. And: “In the context of suits against Government officials, damages have long been awarded as appropriate relief, and though more limited today, they remain an appropriate form of relief.” Further, Congress passed the RFRA to reinstate, or to mirror, the protections that people had in First Amendment claims. In First Amendment claims, under 42 U.S.C. §1983, plaintiffs can get damages. Thus, Congress intended the same with the RFRA. 

The ruling allows the plaintiffs’ case to continue in pursuit of damages against the FBI agents.