MANHATTAN (CN) – The Second Circuit revived a suit Wednesday involving three Muslims whose refusal to become FBI informants landed them on the no-fly list.
Queens-based Muhammad Tanvir brought the underlying suit with others in 2013, accusing FBI agents of violating the Religious Freedom Restoration Act by placing them on the no-fly list without an iota of evidence that they posed a threat to aviation safety.
All born abroad, each of the plaintiffs claim they were approached by the FBI about serving as informants to gather information about fellow Muslims. When they refused, decisions based at least in part on the men’s religious beliefs, each began running into trouble when they attempted airline travel.
The no-fly list was created after 9/11. Law enforcement and intelligence agencies are said to be able to nominate any individual for inclusion on the list, which has ten of thousands of names on it.
Among other problems that have plagued the list over the years, some members of Congress have found themselves included by mistake.
Tanvir and his co-plaintiffs all managed to clear their names but they claim that placement caused tangible damages, prohibiting them for years from seeing wives, children and other family members overseas. Their reputations in their communities also were harmed, they alleged.
Though a federal judge dismissed their claims against the individual FBI agents in 2015, the Second Circuit voted Wednesday to restore the suit.
Writing for a unanimous three-person panel, U.S. Circuit Judge Rosemary Pooler said that the “RFRA, by its plain terms, authorizes individual capacity suits against federal officers” for monetary damages.
Because the men seek monetary relief from individual agents personally, not from the federal or state government, Pooler said the suit presents no sovereign-immunity concern.
Pooler noted that the legislative history regarding the RFRA fails to clearly show that Congress intended to prevent litigants from seeking damages in individual capacity suits.
It was “at least possible at the time that Congress passed RFRA that an individual damages claim would have been available for a free exercise violation,” the 57-page opinion states.
Pooler declined to rule on whether the agents were entitled to qualified immunity — in which government employees acting in their official duties are immune from civil suits— noting that the lower court failed to address that point.
Tanvir’s lawyer Ramzi Kassem had noted last year at oral arguments before the Second Circuit that the lawsuit could fail on the grounds of qualified immunity, but he said the appeal to the Second Circuit served to put the FBI on notice.
Kassem did not immediately return an email seeking comment.
A spokesman for the U.S. Attorney for the Southern District declined to comment on the case.