Opinion analysis: Justices allow Muslim men placed on “no fly” list to sue FBI agents for money damages

The Supreme Court ruled unanimously on Thursday that three Muslim men who say that they were put on the “no fly” list after they refused to become FBI informants can sue the FBI agents who put them there for money damages. The decision was a significant one not only for the plaintiffs but also for cases involving violations of religious rights more broadly.

The three men – Muhummad Tanvir, Jameel Algibhah and Naveed Shinwari – are all U.S. citizens or green card holders. They filed the lawsuit that led to Thursday’s decision after they were placed on the “no fly” list, which barred them from boarding commercial flights in the United States. They claimed that their placement on the list violated the Religious Freedom Restoration Act, a federal law that prohibits the government from placing a “substantial burden” on an individual’s exercise of religion unless the burden advances a compelling government interest and there is not a less restrictive way to achieve that interest. They asked the court to order the government to remove their names from the “no fly” list, and they sought compensation for the violation of their rights, including money for airline tickets that they could not use and income that they lost when they were unavailable to take advantage of job opportunities.

After the lawsuit was filed, the Department of Homeland Security told the men that they were allowed to fly. A federal district court dismissed their remaining claims for financial relief, holding that RFRA did not allow the men to sue the FBI agents in their personal capacity for money damages. But the U.S. Court of Appeals for the 2nd Circuit reversed that ruling, prompting the federal government, which represented the FBI agents, to go to the Supreme Court.

In a brief and unanimous opinion by Justice Clarence Thomas, the Supreme Court upheld the 2nd Circuit’s ruling. Thomas pointed to the text of RFRA, which allows an individual whose exercise of religion has been burdened to “obtain appropriate relief against a government.” That phrase, Thomas explained, permits someone who has been injured to sue government officials in their personal capacities.

If government officials can be sued in their personal capacity, Thomas continued, the next question is whether money damages are “appropriate relief.” After surveying a variety of different lawsuits against government officials, at both the federal and state and local levels, Thomas concluded that money damages “have long been awarded as appropriate relief.” Indeed, Thomas noted, there will be some cases – like this one, involving plane tickets, or a 1990 case involving an autopsy that violated the plaintiffs’ religious beliefs – in which money damages will be the only way to provide the plaintiffs with a remedy. In light of the text, Thomas emphasized, “it would be odd to construe RFRA in a manner that prevents courts from awarding such relief.”

Thomas acknowledged that the Supreme Court had ruled in 2011 in Sossamon v. Texas that states could not be sued for money damages for violations of the Religious Land Use and Institutionalized Persons Act, a statute similar to RFRA that also allows plaintiffs to “obtain appropriate relief against a government” for violations. “The obvious difference,” Thomas explained, “is that this case features a suit against individuals, who do not enjoy sovereign immunity.”

Thomas also rejected the government’s suggestion that allowing government officials to be liable for monetary damages “could raise separation-of-powers concerns,” noting that “this exact remedy has coexisted with our constitutional system since the dawn of the Republic.” There may be reasons why government officials should not be held liable, Thomas acknowledged – but those are policy reasons for Congress, rather than the court.

The court’s newest justice, Amy Coney Barrett, did not participate in the case, which was argued before she was confirmed to fill the vacancy left open by the death of Justice Ruth Bader Ginsburg.

[Disclosure: The author of this post, and other attorneys who assist this blog in various capacities, were among counsel at Howe & Russell, P.C., and Akin, Gump, Srauss, Hauer & Feld, LLP, for the petitioner in Sossamon v. Texas.]

This post was originally published at Howe on the Court.