Agents May Owe Damages for No-Fly-List Decisions, Supreme Court Says

A traveler with Global Entry or TSA PreCheck goes through security at John F. Kennedy International Airport in New York on Sept. 26, 2020. (Courthouse News photo/Barbara Leonard)

WASHINGTON (CN) — Muslims who were placed on the No Fly List can seek money damages from the FBI agents they accuse of bullying them to inform on fellow Muslims, the U.S. Supreme Court ruled Thursday.

Led by Muhammad Tanvir, a Queens truck driver, the case hinged on whether citizens could seek individual damages from federal agents for violating the Religious Freedom Restoration Act.

Tanvir claimed he was put on the No Fly List without any evidence that he posed any threat to aviation safety, but was assured he would be removed from the list if he cooperated with the FBI as a confidential informant. The New Yorker only learned he was on the list after trying to hop a flight home from Atlanta. Jameel Algibhah and Naveed Shinwari later joined the suit as plaintiffs.

While all three eventually had their names removed from the list, Tanvir alleges his inclusion forced him to quit his job, as well as kept him from seeing his children and his sick mother in Pakistan for years.

Tanvir’s claims were dismissed in 2015 but then revived three years later by the Second Circuit. The federal appeals court declined to address whether FBI agents were entitled to qualified immunity, which attorney Ramzi Kassem has conceded presents another, higher hurdle to his clients’ case.

The first issue to be decided by the high court in the case was whether the three men could sue government officials in their personal capacities.

“RFRA’s text provides a clear answer: they can,” according to the 11-page unanimous opinion.

Writing for the court, Justice Clarence Thomas noted that “a government” under the statute includes both individuals acting as officials and also nonofficials acting under the color of law.

During oral arguments in early October, the Justice Department argued that RFRA — which passed with bipartisan support in 1993 – did not clearly grant personal damages. “We have nothing express here,” Deputy Solicitor General Edwin Kneedler had said at the time.   

The lack of an expressly delineated right to damages irked some of the justices, however. “Why would Congress take away, from appropriate relief, the only relief that would help some people?” asked Justice Sonia Sotomayor, citing the intent of the law to help families targeted by one-time abuses, such as autopsies of their loved ones.

Justice Brett Kavanaugh seemed to agree. “In thinking about what the text means here, look at the words, but also look at the words that aren’t there,” Kavanaugh said, noting that the words “appropriate relief” in the statute does not specify only appropriate injunctive relief.

Ultimately, the Supreme Court found that appropriate relief for the three Muslim men meant money damages.

In the opinion, Thomas notes that government officials often faced money damages in lawsuits against them, noting “an array of writs” used against potential government official overreach during the late 1800s. “In the context of suits against Government officials, damages have long been awarded as appropriate relief,” he wrote.

More than 100 years later, the 1988 Westfall Act left open the possibility of damages for constitutional violations and other statutory violations, Thomas found. “There is no doubt that damages claims have always been available under §1983 for clearly established violations of the First Amendment,” he wrote.

“A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees,” Thomas continued. “It is also the only form of relief that can remedy some RFRA violations.” (Emphasis in original)

The ruling could be seen as a deterrent for future abuses by government agents, but it remains a long shot to actually obtain damages against the roughly two dozen FBI agents, given that qualified immunity will likely protect them.

In a footnote in the opinion, the court noted that “government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA.”

Regardless of whether damages ever materialize in this case, a number groups lauded the court’s decision as a win for religious liberty. 

“We’re glad the Supreme Court unanimously emphasized that the government can’t expect to be let off the hook by simply changing its tune at the last second,” said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which had filed an amicus brief in the case.

Others, however, said the ruling points to the failings with the RFRA itself. “This is further evidence that Congress and the federal government actually did not fully understand what they were unleashing when RFRA was re-enacted in 2000,” Marci Hamilton, a professor at the University of Pennsylvania, wrote in an email.

Patrick Elliot, senior counsel at the Freedom From Religion Foundation, said in an email that the decision was “a missed opportunity” by the high court. “The longer that the Supreme Court treats RFRA as a de facto constitutional amendment, the longer it is continuing to damage the Constitution,” he said. “The consequences of the decision are not yet known, but it could certainly help those who make extreme ‘religious liberty’ claims.”

The Bush administration created the No Fly List shortly after 9/11, prohibiting those on it from boarding planes landing in or departing from the United States. Law enforcement and intelligence agencies are said to be able to nominate any individual for inclusion on the list, which has tens of thousands of names on it.

The list has been far from perfect, over the years entangling a number of lawmakers and celebrities — including the recently deceased Representative John Lewis and the singer Cat Stevens, who now goes by Yusuf Islam.

The RFRA initially was designed to protect religious beliefs from infringing laws. Originally applied to Native Americans who wanted to use peyote and other hallucinogens without federal interference, the law has been cited in several other landmark cases.

Among them was the 2014 decision in Burwell v. Hobby Lobby Stores, where the court ruled 5-4 that Christian companies did not have to abide by mandates under the federal health care law’s requirement that companies provide insurance coverage for contraceptives.

The law has ambiguous language, however, providing only for “appropriate relief” for successful plaintiffs.

A spokeswoman for the Southern District of New York did not immediately return a call seeking comment.

Recent appointee Justice Amy Coney Barrett did not participate in the hearing or the opinion. 

Kassem, an attorney for the men and law professor at the City University of New York, did not return a request for comment.

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