MANHATTAN (CN) – Unable to secure a rehearing of the case at the Second Circuit, three judges called it “quite wrong and actually dangerous” Thursday that FBI agents accused of abusing a terror watch list could owe damages.
“With or without qualified immunity, such liability would result in federal policy being made (or frozen) by the prospect of impact litigation,” wrote U.S. Circuit Judge Dennis Jacobs, who was appointed by George H.W. Bush in 1992. “The safest course for a government employee in doubt would be to avoid doing one’s job, which is not a choice in need of encouragement.”
Jacobs dissented today as the Second Circuit backed its 2018 decision to let Muhammad Tanvir sue over a no-fly list designation that kept him from visiting his sick mother.
A federal judge had initially found that FBI agents deserved immunity from Tanvir’s suit, but the Second Circuit revived the case under the Religious Freedom Restoration Act of 1993.
The government sought a rehearing, but the full court voted that fate down 7-3 today.
In a separate dissent, U.S. Circuit Judge Jose Cabranes, a Clinton appointee who also presides over the Foreign Intelligence Surveillance Court of Review, blasted his colleagues for a “transparent attempt to evade, if not defy, the precedents of the Supreme Court.”
The conservative wing of the Supreme Court has made it harder for victims of the post-9/11 government dragnet against Muslims to sue for compensation.
Two years ago in Ziglar v. Abbasi, a 4-2 high court majority snuffed out claims against ex-Attorney General John Ashcroft and other high-ranking officials associated with rounding up hundreds of South Asian and Arab immigrants after the Sept. 11 terrorist attacks.
For U.S. Circuit Judge Robert Katzmann, the Ziglar case was a “red herring” because it did not involve claims under the Religious Freedom Restoration Act.
“RFRA contains an express private right of action with an express provision for ‘appropriate relief,’” he wrote.
Cabranes characterized this distinction as an effort to pull a fast one by a Supreme Court on a rightward drift.
“When asked why he persisted in issuing decisions that the Supreme Court would predictably overturn, a prominent judge of another circuit once explained, ‘They can’t catch ’em all,’” Cabranes wrote, quoting the Ninth Circuit’s late Judge Stephen Reinhardt, known as a “liberal lion” of the court.
“Such an attitude is not, and must not become, the approach of our circuit,” Cabranes said.
The third dissenter, Trump-appointee Richard Sullivan, did not write a separate opinion.
The U.S. Attorney’s office for the Southern District of New York declined to comment.
The Center for Constitutional Rights, a New York-based advocacy group representing Tanvir, did not respond to a request for comment.