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Justices Skeptical of Limiting Damages Against U.S. Workers (2)

Oct. 6, 2020, 4:44 PMUpdated: Oct. 6, 2020, 8:12 PM

The U.S. Supreme Court seemed likely to reinstate suits against FBI agents alleged to have retaliated against Muslim Americans by placing them on the “no-fly” list for refusing to act as informants against their religious community.

Many of the justices hearing oral arguments remotely on Tuesday in Tanzin v. Tanvir pushed back on the Trump administration’s claim that the men can only sue the government for injunctive relief.

Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are asking whether a federal law protecting religious liberty, the Religious Freedom and Restoration Act, allows them to sue members of the FBI for financial damages.

“In thinking about what the text means here, I look at the words but also look at the words that aren’t there. And when it says ‘appropriate relief,’ it does not, of course, say ‘appropriate injunctive relief,’” Justice Brett Kavanaugh said.

“End of case,” Justice Stephen Breyer said.

The three men said agents restricted their ability to fly commercially because they refused to become informants. They said spying on their communities would violate their beliefs as practicing Muslims.

The case is at the cross section of law enforcement accountability and religious liberty. While the justices have in the past been hesitant to allow individuals to sue federal officials in courts, they’ve also been particularly protective of religious freedom.

Protection for federal officials won out in the trial court, which found Tanvir and the others couldn’t sue the agents. The New York-based U.S. Court of Appeals for the Second Circuit reversed the district ruling, saying they could sue federal officials for violating the constitutional right to freely exercise their religion.

Chilling Workers

The case pitted Supreme Court veteran Edwin Kneedler, the Justice Department attorney making his 146th argument, against first-timer Ramzi Kassem, a law professor at the City University of New York.

Kassem represents Tanvir and other Muslim men who said often, like here, a monetary award would be the only way individuals can vindicate their free exercise rights.

After the men sued, the government eventually allowed them to fly. That made damages the remaining remedy.

“Without damages as a deterrent, Petitioners and other agents remain free to repeat what they did here—flout RFRA until challenged in court and then back off,” Kassem said.

But the government said making federal workers personally liable for money damages for violating an individual’s free exercise right would chill employees tasked with carrying out federal laws.

“The individual employee is in the position of deciding whether to create an exemption, maybe on the spot, from generally applicable law, and damage actions could put the employee in a difficult bind,” said Kneedler.

Several justices were wary of limiting the Religious Freedom Restoration Act in a way not explicit in the law’s language. The act, which creates a high bar when federal officials want to impinge on free exercise rights, allows for “appropriate relief” against an official or other person acting on behalf of the government.

Individual Capacity

Before the court can reach the issue of monetary relief, it will have to decide if plaintiffs suing under RFRA can even bring an action against officials in their “individual” capacity rather than the government. That’s because monetary damages against the government generally aren’t allowed.

Kneedler argued that the context of RFRA shows that officials can be personally sued.

The whole statute is about regulating government conduct, not that of individual officials, Kneedler said. “All the way through, the statute speaks to the government.”

The statute, though, defines “government” to include “officials” and “other persons acting under color of law,” Kassem said. The statutory text is clear, he said.

Moreover, Kassem added that federal officials would still be able to claim they were protected by qualified immunity, the doctrine that sets a high bar for individuals seeking to sue federal workers for constitutional violations.

These officials “come to court armed with a powerful shield of qualified immunity, which protects all but the plainly incompetent or those who flout clearly established law,” Kassem said.

Justice Sonia Sotomayor seemed skeptical. This would be the first time “’appropriate relief’ was interpreted to include a damages remedy against federal officials, absent some extra text making the availability of damages explicit.

Sotomayor asked what was unique about the statute.

“RFRA is no ordinary law,” Kassem said, noting that it has been referred to as a “super-statute.”

It had the ambitious goal to regulate numerous federal, state, and local actors, “and it did so with the most practical language it could think of,” Kassem said.

But Justice Elena Kagan didn’t seem to agree.

“So the question is, why shouldn’t we take [the lack of similar interpretations] as signaling what we should do here, that we should say, ‘you know, Congress really has to be clear to do this, and Congress hasn’t been so clear?’”

The case is Tanzin v. Tanvir, U.S., No. 19-71, argued 10/6/20.

(Updates with argument detail, comments from justices, attorneys.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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