Supreme Court Receptive to Damages Battle Over No-Fly List

Forecasting a win for four men whom the FBI put on the No Fly List after they refused to spy on fellow Muslims, several U.S. Supreme Court justices saw an implication of private damages in the Religious Freedom Restoration Act.

This Sept. 11, 2001, file photo shows smoke rising from the burning twin towers of the World Trade Center in New York City after hijacked planes crashed into them. (AP Photo/Richard Drew)

WASHINGTON (CN) — Several justices with the U.S. Supreme Court hinted Tuesday that a law protecting religious freedoms includes a subtext that would allow individuals to sue government agents for money damages. 

In the underlying 2013 suit, Muhammad Tanvir accused FBI agents of violating the Religious Freedom Restoration Act (RFRA) by placing him and two others on the No Fly List without any evidence they posed a threat to aviation safety. Tanvir says his inclusion on the list was payback from the FBI after he refused to serve as an informant about other Muslims.

A truck driver living in Queens, Tanvir learned of his inclusion on the list after completing a delivery in Atlanta and then trying to fly back to New York. He said agents told him he would be removed from the list if decided to cooperate.

Though each of the plaintiffs eventually got their name removed, Tanvir alleges his inclusion kept him from seeing his children and his ailing mother in Pakistan for years.

At the heart of the case is whether the more than two dozen FBI agent defendants could be liable for monetary damages.

Deputy Solicitor General Edwin Kneedler told the justices this morning that in other cases Congress has been very clear about when personal damages should be allowed against government officials. “We have nothing express here,” he said, referring to the RFRA.

But to some justices, the damages were implied under the law. Justice Sonia Sotomayor noted Congress originally drafted RFRA to give families some relief against burdensome federal actions, such as Jewish and Hmong families opposed to autopsies of their loved ones.

“In fact, there was a lot of legislative testimony before Congress about the fact that injunctive relief would not help those families,” she said. “Why would Congress take away, from appropriate relief, the only relief that would help some people?”

The text of the RFRA provides only for “appropriate relief” for those who sue. Interpreting this as meaning injunctive relief, the government notes that the Westfall Act of 1988 accords federal employees immunity from common-law torts. The plaintiffs say such an interpretation would allow federal agents to continue to violate the law without any real repercussions.

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

Kneedler insisted, however, that Congress would have included the words “money damages” if it wanted to.

The ambiguous legislative language of RFRA posed the clear problem in the case. Justice Elena Kagan hinted that RFRA is not a special “super statute,” and that Congress should have been very clear on whether private damages were allowed and has not included any special interpretive rules. She noted that “Congress really has to be clear to do this, and Congress hasn’t been so clear.” 

Kavanaugh added that, without a mens rea requirement for FBI special agents under the RFRA, such agents could be on the hook for huge damages. “We’re trying to find out what the term appropriate means … [and whether it] subjects FBI agents to life-altering damages,” Kavanaugh said. “I think this would be a first among a very small handful [of cases] where damages were awarded against federal officers in their individual capacities without the statute explicitly saying so.”

Ramzi Kassem, an attorney for Tanvir, said the FBI agents would be protected under qualified immunity, which seemed to satisfy Kavanaugh. 

Kassem also pointed to situations where damages are the only relief, such as when a gym teacher forbids a religious student from wearing immodest clothing or a corrections officer destroys an inmate’s personal Bible.

“Injunctive relief would be useless against these one-time harms,” Kassem argued, noting that such cases would remain hard to win but should still be allowed to pursue damages. “Without damages as a deterrent, [the FBI agents] remain free to do what they did here.”

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.

Though the federal government has since agreed to proactively inform flyers if they are on the list, rather than let them find out at the airport, the ACLU has said the process for getting removed from the No Fly List is a “Kafkaesque bureaucracy.”

A federal judge initially dismissed Tanvir’s claims in 2015, but the Second Circuit voted to restore the suit three years later, noting the RFRA allows lawsuits against individual officers for monetary damages and thus does not present sovereign immunity concerns.

As to whether FBI agents were entitled to qualified immunity, though, the Second Circuit ruling skirted the issue.

The Trump administration has argued Tanvir’s lawsuit would interfere with national security concerns. After the U.S. Supreme Court agreed to hear the case, a slew of amicus briefs poured in from various civil rights groups. Religious groups, including a number of Sikh and Muslim groups and The Beckett Fund for Religious Liberty, argued that allowing individual-capacity damages was “not only unambiguous” in the RFRA, “but also critical to achieving the statute’s goals.”

Humanist and groups advocating for the separation of religion and government argued the RFRA itself was unconstitutional, noting the statute “accords religious believers extreme religious liberty rights that yield a political and fiscal windfall in violation of the clearest commands of the Establishment Clause in a long line of cases.”

The RFRA, passed with bipartisan support in 1993, 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.

Oral arguments in the No Fly List case originally were scheduled for March but were postponed due to the Covid-19 pandemic. They were held via teleconference, continuing the safeguards introduced last spring.

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