Supreme Court Hears Oral Argument on Whether the Religious Freedom Restoration Act Permits Money Damages as a Remedy
On October 6, 2020, the Supreme Court heard telephonic oral arguments for Tanzin v. Tavir, which poses the question of whether the Religious Freedom Restoration Act (RFRA), passed in 1993, allows suits seeking money damages against individual federal employees, here FBI agents.
The plaintiffs are three Muslim men (Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari), who claimed they were placed on the “no fly” list in retaliation for refusing to become FBI informants against fellow Muslims in violation of the RFRA. The RFRA prohibits the government from placing a “substantial” burden on a person’s exercise of religion unless that burden advances a compelling government interest and there is no less restrictive way to achieve that interest. It allowed persons to seek “appropriate relief against a government” for violation of the law. However, it does not explain what this phrase means.
The plaintiffs filed a complaint in the U.S. District Court for the Southern District of New York in October 2013 against multiple FBI agents. The district court dismissed the claims in February 2016, holding that the RFRA prohibits claims of money damages against individual federal officials. The plaintiffs appealed the holding, and the U.S. Court of Appeals for the Second Circuit reversed the district court’s holding in May 2018. The FBI agents then petitioned the Supreme Court, which granted certiorari on November 22, 2019.
At oral argument, Deputy U.S. Solicitor General Edwin Kneedler argued on behalf of FBI agents, represented by the government. He argued that Congress has hesitated to pass laws making federal employees personally liable for damages. Here, he contended that Congress explicitly did not subject federal employees to a new cause of action for damages in their personal capacity. He argued that the statute provides is appropriate relief against the government, and the relief requested is not against the government. Rather, he argued it is against “an individual employee in his personal capacity.”
Justice Stephen Breyer appeared to disagree. He asked Kneedler bluntly, “What is your best argument … against what I think is the other side’s argument” that “the statute authorizes appropriate relief against any official or other person acting under color of law?” He also stated that there are many cases that indicate that “appropriate relief” includes monetary relief.” Kneedler responded that “Government is the operative word.”
Justice Samuel Alito noted that the plaintiffs contended that if they prevailed, federal officials who are sued in a personal capacity would still be able to assert the defense of qualified immunity, and asked Kneedler how the federal government would then be harmed. Kneedler responded that qualified immunity is not “automatic.” He also noted the Supreme Court’s hesitation in recognizing new Bivens causes of action even though there would still be the possibility of qualified immunity.
Justice Sonia Sotomayor, looking at the legislative history the RFRA, told Kneedler that Congress, when it passed the law, was troubled by reports of families who had been autopsied in violation of religious beliefs, and injunctive relief was of no assistance to those families. She questioned Kneedler why Congress would have wanted to bar money damages against persons responsible for violations. Kneedler responded that Congress was focused not on the individual situations, but “lifting burdens imposed by generally applicable rules.” Justice Sotomayor appeared to disagree, asking, “isn’t the overall thrust to give a cause of action a claim and a remedy? That’s the stated purpose of the Act under the terms of the Act. Why would Congress take away from appropriate relief the only relief that could help some people for the … violation of their rights?”
Justice Elena Kagan noted that the original version of the RFRA, prior to the Court’s decision in Employment Division v. Smith, applied to state and local governments in addition to the federal government. She found it “odd” that Congress would pass a law with fewer remedies available against state and local officials than previously available.
Justice Brett Kavanaugh stated that the law does not say “appropriate injunctive relief.” What it says is “appropriate relief,” and he found it “hard to imagine” that if injunctive relief was Congress’s sole intent, it would have excluded these words. Kneedler turned the argument on its head, and stated that the missing words, “money damages,” are what is really critical here.
Ramzi Kassem presented oral argument on behalf of the plaintiffs. Kassem argued that leading up to the RFRA, Congress focused on autopsies performed on Hmong and Jewish people in violation of their religious beliefs, and that the government’s interpretation of the RFRA would leave those families with no claim. Kassem also argued that qualified immunity would also shield all those government actors, except those who defy clearly established law. Kassem argued the Court should not diminish the RFRA by taking away a claim that Congress provided.
Chief Justice John Roberts referenced the definition of “government” under the RFRA, and how it expressly includes, “a branch, department, agency, instrumentality, and official (or other person acting under color of law).” He stated that if the phrase “under color of law” were to be removed from the RFRA, then the “term being defined is ‘the government,’ and the list of entities you have there leading up to ‘official’ are all government entities.” He concluded, “there’s a very compelling case” that the FBI agents can be sued only in their official capacity.
Justice Alito hypothesized a scenario where the RFRA did not include the word “appropriate,” and asked Kassem whether anything would change. Kassem stated that the word “appropriate” is important as it bespeaks “wide discretion.”
Justice Kagan stated that Congress was not silent on the question of remedies here, and what the Court is questioning is how to interpret what Congress said about remedies. She told Kassem that the Court had not “interpreted any statutes with this little specificity to permit damages against federal employees personally.”
Justice Neil Gorsuch followed up on Justice Kagan’s questioning. He proffered if Kassem was saying that the text of the statute refers the Court to the law of remedies, and the law of remedies is unhinged from any particular form or cause of action “the way it used to be,” and “allows the courts discretion to form sufficient relief to make a person whole.” Kassem’s response was simply, “as long as that opinion concludes with ‘and we affirm,’ absolutely.”
Justice Kavanaugh told Kassem he saw a “mismatch” between the RFRA and the case now before the Court. The RFRA does not require mens rea, he stated, but under Kassem’s theory, a federal employee can be held personally liable for damages for “enforcing a generally applicable law.” He went on to state, “it’s very odd, I think, without a mens rea” for the law to subject “career FBI agents to life-altering damages remedies.” Kassem responded, pressing that FBI agents are “not ordinary individuals.” He said “they are officials, they’re FBI agents. And the law accounts for that difference” with qualified immunity.
FEDagent will post an update on Tanzin v. Tavir when the Supreme Court decides the case.
Read the oral argument transcript.
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.