Can individual federal agents be sued for money damages for violating the Religious Freedom Restoration Act?
This case asks the Supreme Court to decide whether, under the Religious Freedom Restoration Act (“RFRA”), individual federal employees can be sued for money damages. Petitioners Tanzin and other government agents argue that money damages against individuals in their personal capacities are unavailable unless Congress clearly indicates otherwise, which Congress has not done in RFRA. Tanzin also argues that RFRA authorizes relief “against a government,” which does not include individual officials. Tanzin further claims that money damages fall beyond RFRA’s authorization of “appropriate” relief. Respondents Tanvir and others counter that Congress need not expressly authorize money damages, but that rather, money damages are available unless Congress clearly says otherwise. Additionally, Tanvir claims that RFRA authorizes suits against officials, even separate from their official capacity, and that money damages are “appropriate” and even necessary to enforce RFRA. The outcome of this case could affect the separation of powers between the judicial and the executive branches, the financial and operational burdens on the federal government, and the interests of third parties, including religious minority groups.
Questions as Framed for the Court by the Parties
Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, permits suits seeking money damages against individual federal employees.
Plaintiffs Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari (“Tanvir”) are Muslim men born abroad but are now either a permanent resident or a citizen of the United States. Tanvir v. FNU Tanzin at 452.
In February 2007, two Federal Bureau of Investigations (“FBI”) agents, including Tanzin, approached and questioned Tanvir, a New York resident, about an acquaintance who entered the United States unlawfully. Id. at 454. Days later, Tanzin asked Tanvir to provide the FBI with information about the American Muslim community. Id. Tanvir responded that he did not have any relevant information to offer. Id. at 454–55. After visiting family in Pakistan in July 2008, the FBI detained Tanvir at a U.S. airport for hours and withheld his passport for over five months. Id. at 455. Days before Tanvir was scheduled to collect his passport, FBI agents interrogated him about the Taliban training camps near his village in Pakistan, and Tanvir denied knowing about the camps or having participated in those trainings. Id. When the interrogation ended, Tanvir was asked to consider working as an informant for the FBI in Pakistan or Afghanistan and was offered various incentives, including arranging for his family to visit the United States. Id. When Tanvir refused, the FBI agents threatened to deport him. Id. Tanzin asked Tanvir the next day whether he reconsidered serving as an FBI informant, and Tanvir again refused. Id. On January 28, 2009, Tanvir collected his passport. Id. Over the following weeks, FBI agents continued to pressure Tanvir to become an informant by calling and visiting him at work repeatedly. Id. The FBI agents also told Tanvir to take a polygraph test and threatened to arrest him if he refused. Id.
When Tanvir traveled to Pakistan in July 2009, FBI agents questioned Tanvir’s sister about his travel. Id. Upon returning to the United States in January 2010, Tanvir accepted a position as a long-haul trucker that required him to drive across the country and then fly back to New York at the end of the drive. Id. In October 2010, when Tanvir worked in Atlanta and tried to fly back to New York, he was told that he could not board the plane. Id. Tanzin later told Tanvir that he should cooperate with the FBI. Id. FBI agent Garcia also told Tanvir that his name would remain on the “No Fly List” until he answered some questions; Tanvir refused, believing that he had already answered the FBI’s questions. Id. Tanvir subsequently quit his job as a trucker because he could no longer fly. Id.
On September 27, 2011, Tanvir filed a complaint with the Department of Homeland Security’s (“DHS”) Traveler Redress Inquiry Program (“TRIP”) about his placement on the “No Fly List.” Id. at 456. In October 2011, when Tanvir and his wife tried to travel to Pakistan, he was told that he could not fly even after he had answered the FBI’s questions. Id. He was further told that he would not be allowed to fly in the future unless he took a polygraph test. Id. As a result, Tanvir was forced to cancel his flight, leaving his wife to fly alone. Id. In December 2011, Tanvir again tried to fly to Pakistan but was denied boarding. Id. Then in April 2012, Tanvir received a response from TRIP, indicating that further action was not warranted at that time; Tanvir appealed TRIP’s determination. Id. In November 2012, Tanvir was denied boarding again when he tried to fly to Pakistan and was told his name would remain on the “No Fly List” until he met with Garcia. Id. In March 2013, the DHS reversed TRIP’s earlier determination, citing misidentification against government records as a possible reason for Tanvir’s placement on the “No Fly List.” Id. In June 2013, Tanvir was allowed to board a plane to travel to Pakistan. Id. Algibah and Shinwari’s experiences were similar to Tanvir’s. Id. at 453.
On October 1, 2013, Tanvir, Algibah, and Shinwari (collectively, “Tanvir”) filed a complaint before the United States District Court for the Southern District of New York (the “District Court”) against multiple federal law enforcement agents, including 25 named and unnamed officials (collectively, “Tanzin”), alleging that these officials retaliated by placing their names on the “No Fly List” when they refused to serve as FBI informants. Id. at 452. Claiming that these officials’ actions violated their rights under the First Amendment and the Religious Freedom Restoration Act (“RFRA”), Tanvir sought (i) an injunction and declaratory judgment, and (ii) compensatory and punitive damages from the individual federal officials. Id.
The District Court dismissed Tanvir’s claims against Tanzin on February 17, 2016, holding that RFRA prohibited claims of money damages against individual federal officials. Id. Tanvir appealed the RFRA holding, and the United States Court of Appeals for the Second Circuit reversed the District Court’s RFRA holding on May 2, 2018. Id. at 453. Tanzin petitioned the United States Supreme Court, which granted certiorari on November 22, 2019. Id.
IS EXPRESS AUTHORIZATION REQUIRED?
Petitioner Tanzin argues that damage awards against federal officials in their personal capacities should not be available unless clearly authorized by a congressional statute. Brief of Petitioner, FNU Tanzin et al. at 26. Although RFRA authorizes “appropriate” relief, Tanzin notes that the Court previously held that such language was insufficient to “clearly identify” money damages. Id. Tanzin further highlights that several other federal statutes that authorize personal-capacity damage claims against federal officials specifically refer to the availability of damages; in that same spirit, no federal statute that lacks such an explicit reference has been recognized to authorize such a remedy. See id. at 27. Furthermore, Tanzin points to the Federal Employees Liability Reform and Tort Compensation Act of 1988 as an example of Congress’s adverse reaction to courts’ recognition of money damages against federal officials in the absence of statutory authorization. Id. at 27. Congress passed the Act to deter a “crisis” of personal liability for federal officials; as such, Tanzin contends, courts should be reluctant to recognize money damages against federal officials absent a congressional directive. Id. Finally, Tanzin quotes Sossamon v. Texas for the Court’s statement that the word “appropriate” in a statute does not necessarily authorize personal-capacity money damages. See id. at 26.
Respondent Tanvir disputes Tanzin’s contention that an explicit statutory authorization of money damages is necessary and instead argues that there is a longstanding presumption in favor of such damages. Brief of Respondent, Muhammad Tanzir et al. at 23. RFRA’s authorization of “appropriate” relief, Tanvir argues, is wide enough to encompass money damages against federal officials. Id. Additionally, Tanvir posits that a long line of cases demonstrates that when Congress is silent on the question of remedies, courts may grant whatever relief is appropriate. Id. Tanvir highlights that in Franklin v. Gwinnett County Public Schools, the Court held that all appropriate remedies, including damages, were presumed to be available unless Congress clearly indicates otherwise. Id. at 25. Because Congress enacted RFRA one year after the Franklin decision, Tanvir concludes, Congress must have purposefully left open the availability of damages under the Act. Id. at 25–26. Finally, Tanvir counters Tanzin’s invocation of Sossamon, explaining that the Court there held that the word “appropriate” was insufficient to abrogate state sovereign immunity, not that the word could never authorize personal-capacity damages. See id. at 32–33.
DOES “AGAINST A GOVERNMENT” INCLUDE FEDERAL OFFICIALS IN THEIR INDIVIDUAL CAPACITIES?
Tanzin contends that damage awards are unavailable against federal officials in their personal capacities because they are not “the government” as contemplated by RFRA. Brief of Petitioner at 18. RFRA authorizes “appropriate relief against a government,” Tanzin explains, and that appropriate relief must therefore be against the government, rather than against officials in their personal capacities. Id. Damages against federal officials in their individual capacities, Tanzin thus argues, would be counter to this understanding. Id. Tanzin acknowledges that RFRA defines “government” to include an “official (or other person acting under color of law) of the United States.” Id. Tanzin contends, however, in reading this definition in context of the preceding definition of “government” that includes “branch, department, agency [and] instrumentality,” the word “official” must be understood to contemplate only official capacity, rather than individual capacity. Id. Tanzin also points to RFRA’s substantive provision, which forbids a “branch, department, agency, instrumentality, and official” from “substantially burden[ing] a person’s exercise of religion,” noting that the law does not restrict any government official’s private conduct, the remedial provision too should not extend to a person’s private or individual capacity. Id. at 19.
Tanvir disputes Tanzin’s interpretation of RFRA’s text and argues that the word “official” authorizes claims against officials in their individual capacities. Brief of Respondent at 16. Tanvir contends that because RFRA already allows for claims against an “agency” where an official belongs, which the Court has long understood to be equivalent to official capacity, RFRA’s use of the word “official” must therefore refer to an individual capacity, distinct from an agency or official capacity. Id. at 16–17. Interpreting “official” to contemplate only official-capacity claims, Tanvir argues, would thus render the word itself redundant since RFRA already allows suits against federal agencies. Id. at 20–21. Furthermore, Tanvir points to RFRA’s reference to an “official (or other person acting under color of law),” noting that the parenthetical clarifies that “official” must be understood as a person against whom relief may be appropriate. Id. at 19.
ARE MONEY DAMAGES “APPROPRIATE RELIEF” UNDER RFRA?
Tanzin contends that money damages are not a form of “appropriate relief” authorized by RFRA. Brief of Petitioner at 20. For Free Exercise Clause violations prior to RFRA, Tanzin notes, the Court recognized injunctive relief against officials in their official capacities, but never recognized damages liability against officials in their personal capacities. Id. Tanzin thus argues that Congress, by authorizing “appropriate relief,” did not seek to upend this traditional approach by enacting RFRA. Id. Prior to RFRA, Tanzin notes, the only potential basis for damages against federal officials in their personal capacities for Free Exercise Clause violations would be through a Bivens action. Id. Tanzin points out that the Court has never recognized a Bivens claim for Free Exercise Clause violations, however, and is increasingly wary of expanding the availability of Bivens claims to new circumstances. Id. at 22. Given this historical practice against money damages for Free Exercise Clause violations, Tanzin argues, Congress would have surely been explicit if it wanted RFRA to authorize money damages. Id. at 22. Tanzin also points to RFRA’s legislative history, where Congress expressed its intent to simply restore everything to the way it was before the Court’s decision in Employment Division v. Smith, a case holding that religious beliefs cannot excuse individuals of their obligation to comply with valid and neutral laws of general applicability. Id. at 23. Finally, Tanzin argues that money damages are inappropriate under RFRA because the Court held as such in Sossamon with respect to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), RFRA’s companion statute. Id. at 35–36.
Tanvir counters that it is up to federal courts to determine what form of relief is “appropriate.” Brief of Respondent at 25. Furthermore, Tanvir disputes Tanzin’s argument that RFRA’s scope of remedies is limited to what was available in the pre-Smith era, noting that the Court has already held that RFRA’s scope is broader than the law prior to Smith. See id. at 30–31. Tanvir also points to RFRA’s legislative history, highlighting that RFRA’s statement of purpose was to “provide a claim or defense to persons whose religious exercise is burdened by government,” and not merely to restore RFRA to the pre-Smith era. Id. at 31. This goal can be achieved, Tanvir argues, only if money damages are permitted; for cases such as the one at hand, where prospective relief cannot remedy the injury, awarding damages is necessary if any relief is to be afforded at all. Id. Tanvir further disputes Tanzin’s interpretation of RLUIPA and Sossamon, explaining that although the Court in Sossamon held that money damages were not “appropriate relief” under RLUIPA, the Court did so only on the grounds that it was an issue of state sovereign immunity—an issue absent in this case. See id. at 32–33. Quoting Sossamon, Tanvir argues that what constitutes “appropriate relief” is “open-ended” and “inherently context dependent.” Id. at 33.
THREATS TO SEPARATION OF POWERS
Tanzin argues that permitting money damages against federal officials under RFRA without explicit congressional authorization would amount to judicial interference with the Executive Branch’s rights and duties. Brief of Petitioners at 26. Specifically, Tanzin claims that the risk of money damages would seriously impede the federal government’s ability to enforce important federal policies and regulations because federal officials would constantly doubt their determinations out of fear of personal liability. Id. at 30–31, 33. American Atheists and others, in support of Tanzin, point out that concern for personal liability would incentivize federal officials to grant religious exemptions broadly under RFRA, including in cases where exemption is not warranted. Brief of Amici Curiae American Atheists, et al., in support of Petitioners at 12–13. Tanzin also argues that the potential harm to the Executive Branch’s operations is especially significant in matters involving national security, like in this case, because the determination of whether a belief is considered religious and thus deserving protection is not always straightforward. Brief of Petitioners at 31–32.
The Rutherford Institute, in support of Tanvir, contends that recognizing damages remedy under RFRA would raise no separation-of-powers concerns because it would result from the court’s faithful interpretation of RFRA as Congress had intended. Brief of Amicus Curiae the Rutherford Institute, in support of Respondents at 10–12. Also in support of Tanvir, 67 Religious Organizations argue that allowing damages remedy under RFRA would not undermine the Executive Branch’s decision-making authority because qualified immunity sufficiently protects federal officials from frivolous claims under RFRA. Brief of Amicus Curiae 67 Religious Organizations, in support of Respondents at 19–20. Additionally, American-Arab Anti-Discrimination Committee (“AAADC”), in support of Tanvir, argues that data derived from the Federal Bureau of Prisons (“BOP”) indicate that federal officials found liable for damages for violating prisoners’ constitutional rights do not tend to contribute personal financial resources to satisfy related judgments or settlements. Brief of Amicus Curiae American-Arab Anti-Discrimination Committee (“AAADC”), in support of Respondents at 14–15. Noting that these findings are not unique to the BOP, AAADC thus argues that the concern that federal officials would modify their conduct when performing their duties due to fear of personal liability is unfounded. Id. at 14–16.
BURDEN TO THE FEDERAL GOVERNMENT
Tanzin argues that the threat of money damages against federal agents would significantly burden the federal government’s functioning when individual agents are forced to divert time and efforts from discharging their duties to defending litigations. Brief of Petitioners at 27, 30. Moreover, Tanzin argues that personal liability against federal officials would result in serious financial burden to the government given the potential costs involved in defending and indemnifying the individual officials if they are found liable for money damages. Id. at 30. Additionally, contending that neither RFRA’s text nor legislative history shows that Congress intended money damages to be an available remedy against federal officials, Tanzin points to the Congressional Budget Office’s findings that it does not expect RFRA to create any significant financial burden on the federal government because RFRA would incur only attorney’s fees and not damages. Id. at 23.
AAADC, in support of Tanvir, counters that empirical data shows that a vast majority of money damages for which federal officials are found liable were neither paid by the officials themselves nor the employing agencies, but rather by the U.S. Judgment Fund. Brief of AAADC at 15. As such, AAADC argues that imposing personal liability against federal officials would not strain the agencies’ federal budgets. Id. at 15. Moreover, AAADC claims that the federal government’s indemnification practice through its Judgement Fund was purposefully established to deter officials’ misconduct and to compensate victims. Id. at 18. Additionally, 67 Religious Organizations, in support of Tanvir, argue that possible diversion of government time and efforts to defend claims against federal officials should not be a basis to deprive victims of money damages because the government routinely participates in litigation to defend against RFRA claims, including those seeking injunctions. Brief of 67 Religious Organizations at 20–21.
POTENTIAL HARM TO FEDERAL OFFICIALS AND THIRD PARTIES
American Atheists and others, in support of Tanzin, argue that imposing personal liability against federal officials under RFRA would make it virtually impossible for any official to be given fair notice as to whether his or her conduct violates RFRA because there is no clear standard as to when a plaintiff’s right is violated. Brief of American Atheists, et al. at 17–19. Additionally, American Atheists and others assert that fear of lawsuits would encourage federal officials to broaden religious exemptions under RFRA, and such exemptions could benefit the protected party to the detriment of a third party. Id. at 13–14. For example, they add that when a government employee refuses to work with a homosexual individual for religious reasons, the employee’s supervisor would likely accommodate the employee’s request for fear of personal liability under RFRA, thereby harming a third party’s rights in the process. Id. at 13–14. American Atheists and others also argue that limiting money damages to harm tied to religious beliefs under RFRA would not only incentivize victims to frame their harm in religious context so as to increase their chances of recovery, but also unfairly preclude recovery to non-religious individuals who experienced identical harm under identical acts. Id. at 14–15, 19–20.
Muslim Advocates, in support of Tanvir, argue that denying compensatory damages to victims under RFRA would harm members of the Muslim community, who are disproportionately targeted by the U.S. government’s watchlist practices. Brief of Amicus Curiae Muslim Advocates, in support of Respondents at 15–16. Muslim Advocates further claim that the Muslim community is susceptible to harm by being mistakenly placed on the government’s watchlist because many of their names are similar and because they are quickly rendered suspicious based on their religion. Id. at 16–17, 19. Thus, to deny damages remedy under RFRA, Muslim Advocates maintain, would be to punish religious minority groups in the United States and to infringe their religious freedom guaranteed by the First Amendment. Id. at 3–5. Additionally, the Rutherford Institute, in support of Tanvir, contends that the American Atheists and others’ argument that RFRA should be interpreted to apply to non-religious individuals because it would otherwise be unconstitutional must fail because it falls outside the scope of the grant of certiorari in this case. Brief of the Rutherford Institute at 15–16.
- Debra Cassens Weiss, Supreme Court to Consider Whether FBI Agents Can Be Sued for Money Damages for Religious Freedom Violation, ABA Journal (Nov. 25, 2019).
- Kimberly Strawbridge Robinson, No-Fly Case Could Curtail Religious Freedom Suits, Bloomberg Law (Nov. 22, 2019).
- John Kruzel, Supreme Court to Take Up Trump Appeal over Muslims Put on "No Fly List" for Refusing to Spy, The Hill (Nov. 22, 2019).