The Supreme Court heard oral argument on Tuesday morning on whether a federal law passed in 1993 to protect religious freedom allows three Muslim men who allege that they were placed on the “no fly” list after they refused to become FBI informants to sue FBI agents for money damages. Although the format of the telephonic oral arguments makes the justices harder to read than usual, the court seemed divided – and not necessarily along ideological lines. With an eight-member court, that could favor the plaintiffs, because the lower court’s ruling allowing their lawsuit to go forward would stand if the justices were to divide 4-4.
The plaintiffs in the case, Tanzin v. Tanvir, are U.S. citizens or green card holders. Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari claimed that their placement on the “no fly” list in retaliation for their refusal to become informants against fellow Muslims violated the Religious Freedom Restoration Act. RFRA prohibits the government from placing a “substantial burden” on an individual’s exercise of religion unless that burden advances a compelling government interest and there is not a less restrictive way to achieve that interest.
RFRA allows people to seek “appropriate relief against a government” for a violation of the law. The meaning of that phrase is at the heart of the dispute now before the justices. A federal district court in New York ruled that RFRA does not allow claims for damages against officials who are sued in their personal capacity – that is, as individuals who would be personally responsible if held liable. On appeal, the U.S. Court of Appeals for the 2nd Circuit reversed that ruling.
Arguing on behalf of the FBI agents, which have been represented in the case by the federal government, Deputy U.S. Solicitor General Edwin Kneedler stressed that Congress has only rarely passed laws that made federal employees liable for personal damages, and when it has done so, it has done so explicitly. The Supreme Court should not read a sweeping new cause of action for damages against federal employees in their personal capacity into RFRA in this case, Kneedler told the justices.
Several justices focused on the text of RFRA. Justice Elena Kagan seemed to agree with Kneedler on the need for Congress to be very clear when it wants to create personal liability for money damages. She told Ramzi Kassem, who argued on behalf of the plaintiffs, that the justices hadn’t “interpreted any statutes with this little specificity to permit damages against federal employees personally.” Why shouldn’t we say, she asked, that “Congress really has to be clear to do this,” but it hasn’t been so here?
Justice Stephen Breyer was more skeptical. What is your best argument, he asked Kneedler, to counter the plaintiffs’ argument that RFRA authorizes “appropriate relief” against the government, which is in turn defined as “any official (or other person acting under color of law)”? Many cases, Breyer said, indicate that the phrase “appropriate relief” can include monetary relief.
Kneedler stressed the significance of RFRA’s repeated references to the term “government.” Although the definition of “government” includes government officials, he suggested, it includes them because they are part of the government, and they can only violate RFRA in their official capacity.
Chief Justice John Roberts seemed to agree. If the phrase “under color of law” is removed from RFRA, he told Kassem, then the “term being defined is ‘the government,’ and the list of entities you have there leading up to ‘official’ are all governmental entities.” As a result, he concluded, “there’s a very compelling case” that government officials can be sued only in their official capacity.
Justice Neil Gorsuch took a different approach, which would be more favorable to the plaintiffs. He proposed that Congress’ reference to “appropriate relief” directed courts to apply a separate area of law governing remedies, without necessarily prohibiting or providing for money damages. Would it be enough for your clients, Gorsuch asked, if the court wrote an opinion ruling that the law of remedies governs, and “it allows the courts discretion to form sufficient relief to make a person whole”?
Kassem provided one of the only lighter moments of the day, telling Gorsuch that “as long as that opinion concludes with ‘and we affirm’” the 2nd Circuit’s ruling, “absolutely.”
At least two justices seemed concerned that allowing federal employees to be sued personally for money damages might be too harsh a punishment for a violation of RFRA. Justice Clarence Thomas asked Kassem whether RFRA cases require proof that the government official intended to burden an individual’s religious rights. When Kassem responded that they do not, and that RFRA requires only that the burden be “substantial,” Thomas queried how an official would know whether the second half of RFRA’s test – that the burden is the least restrictive means of advancing the government’s interest – is met.
Justice Brett Kavanaugh voiced these concerns even more directly, telling Kassem that he saw a “mismatch” between RFRA and lawsuits like the one before the Supreme Court. RFRA does not require intentional wrongdoing, Kavanaugh observed, and a government employee can be held personally liable for damages “under RFRA under your theory for enforcing” a law that applies to everyone. That “seems just an odd mismatch,” Kavanaugh posited, for a statute that “subjects career FBI agents to life-altering damages remedies.”
Kneedler returned to this issue in his rebuttal, suggesting that RFRA would put government employees “on the spot” in deciding “whether to create an exemption to a particular governmental interest.” And it would do so, he added, even though the government employee often wouldn’t have access to the information needed to make such a decision.
Justice Samuel Alito appeared less sympathetic to these concerns. The plaintiffs emphasize that even if they win, the FBI agents will still be able to argue that they are immune from the lawsuit. “If we say that in the opinion,” Alito asked Kneedler, “how will the federal government be harmed?”
Other justices focused on the impact of the court’s decision on the people whose religious rights are infringed. Justice Sonia Sotomayor was one of the justices who was perhaps most sympathetic to the plaintiffs. She told Kneedler that one thing that “concerns me greatly is that” Congress, when it passed RFRA, was troubled by reports by the families of people who had been autopsied in violation of their religious beliefs. When there was “a lot of testimony before Congress about the fact that injunctive relief would not help those families,” Sotomayor noted, why would Congress have wanted to bar money damages against the people responsible for the violations?
Kassem later provided the justices with other illustrations of situations in which injunctions “would be useless against these one-time harms,” requiring money damages to provide a remedy for the people whose rights had been violated – for example, a Jewish student “who is compelled by a gym teacher to wear immodest clothing or a federal inmate whose hand-annotated Bible is destroyed by a guard.” In this case, he emphasized, his clients “lost precious years with loved ones, plus jobs and educational opportunities” as a result of being on the “no fly” list. However, they weren’t removed from the list until shortly before the oral argument on the government’s motion to dismiss, which meant that the plaintiffs would not have any claim for injunctive relief.
Kagan observed that the original version of RFRA applied to state and local governments in addition to the federal government. And until the Supreme Court’s decision in Employment Division v. Smith, holding that government actions do not violate the Constitution’s free exercise clause as long as they are neutral and apply to everyone, individuals could sue state and local government officials under federal civil rights laws for money damages for violating the free exercise clause. Wouldn’t it seem “odd,” Kagan asked, that Congress would pass a law – RFRA – that provided fewer remedies for lawsuits against state and local officials than had previously been available? “I thought that the whole point of RFRA was essentially to expand,” rather than contract, “protection for religious liberty,” Kagan concluded.
This post is also published on SCOTUSblog.