76004 SDNY cv Tanvir Cv...16-1176 United States Court of Appeals FOR THE SECOND CIRCUIT Docket No....

16-1176United States Court of Appeals

FOR THE SECOND CIRCUITDocket No. 16-1176

MUHAMMAD TANVIR, JAMEEL ALGIBHAH, NAVEED SHINWARI,

Plaintiffs-Appellants,—v.—

FNU TANZIN, Special Agent, FBI; SANYA GARCIA, Special Agent,FBI; JOHN LNU, Special Agent, FBI; FRANCISCO ARTUSA, SpecialAgent, FBI; JOHN C. HARLEY III, Special Agent, FBI; STEVENLNU, Special Agent, FBI; MICHAEL LNU, Special Agent, FBI;

(Caption continued on inside cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

DEFENDANTS-APPELLEES’ PETITION FOR REHEARING EN BANC

ELLEN BLAIN,BENJAMIN H. TORRANCE,

Assistant United States Attorneys,

Of Counsel.

GEOFFREY S. BERMAN, United States Attorney for the

Southern District of New York,

Attorney for Defendants-Appellees.86 Chambers Street, 3rd FloorNew York, New York 10007(212) 637-2703

Case 16-1176, Document 123, 08/17/2018, 2371080, Page1 of 83

GREGG GROSSOEHMIG, Special Agent, FBI; WEYSAN DUN,Special Agent in Charge, FBI; JAMES C. LANGENBERG, AssistantSpecial Agent in Charge, FBI; JOHN DOE #1, Special Agent, FBI;JOHN DOE #2, Special Agent, FBI; JOHN DOE #3, Special Agent,FBI; JOHN DOE #4, Special Agent, FBI; JOHN DOE #5, SpecialAgent, FBI; JOHN DOE #6, Special Agent, FBI,

Defendants-Appellees.


TABLE OF CONTENTS PAGE

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Religious Freedom Restoration Act . . . 2

B. District Court Proceedings . . . . . . . . . . . . . . 3

C. The Panel Decision . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Absent Explicit Congressional Direction, RFRA Must Be Read to Exclude a Damages Remedy to Avoid Impeding Functions of the Executive Branch . . . . . . . 7

B. The Panel Misconstrued RFRA’s Text . . . . 9

1. “Against a Government” . . . . . . . . . . . . 9

2. “Appropriate Relief” . . . . . . . . . . . . . . . 13

C. Individual-Capacity Damages Suits Are Inconsistent with RFRA’s Purpose . . . . . . 16


ii PAGE

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . 8, 16

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Blum v. Yaretsky, 457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 12

Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 12

Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986) . . . . . . . . . . . . . . . . 17

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 13

Clark v. Martinez, 543 U.S. 371 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 15

Employment Division v. Smith, 494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 2

Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) . . . . . . . . . . . . . . . . . . 7


iii PAGE

Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jihaad v. O’Brien, 645 F.2d 556 (6th Cir. 1981) . . . . . . . . . . . . . . . . 17

Johnson v. United States, 559 U.S. 133 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 10

Kalina v. Fletcher, 522 U.S. 118 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 13

Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mack v. Warden, 839 F.3d 286 (3d Cir. 2016) . . . . . . . . . . . . . . . . . 15

Meeks v. Larsen, 611 F. App’x 277 (6th Cir. 2015) . . . . . . . . . . . . . 17

Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 16

Sossamon v. Texas, 563 U.S. 277 (2011) . . . . . . . . . . . . . . . . . . . . passim

Stafford v. Briggs, 444 U.S. 527 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 12

Stenberg v. Carhart, 530 U.S. 914 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 10

Sykes v. Bank of America, 723 F.3d 399 (2d Cir. 2013) . . . . . . . . . . . . . . . . . 12

United States v. Doe, 960 F.2d 221 (1st Cir. 1992) . . . . . . . . . . . . . . . . . 10


iv PAGE

United States v. Santos, 553 U.S. 507 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 16

Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556 (2d Cir. 2016) . . . . . . . . . . . . . . . . . 10

Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013) . . . . . . . . . . . . . . . . . 15

Webman v. Federal Bureau of Prisons, 441 F.3d 1022 (D.C. Cir. 2006) . . . . . . . . . . . . 15, 17

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) . . . . . . . . . . . . . . 7, 8, 14, 16

Statutes:

18 U.S.C. § 2520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 12

42 U.S.C. § 2000bb . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

42 U.S.C. § 2000bb-1 . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

42 U.S.C. § 2000bb-2 . . . . . . . . . . . . . . . . . . . . 3, 9, 11

42 U.S.C. § 2000cc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

50 U.S.C. § 1809-1810 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Pub. L. 99-508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


United States Court of Appeals FOR THE SECOND CIRCUIT

Docket No. 16-1176

MUHAMMAD TANVIR, JAMEEL ALGIBHAH, NAVEED SHINWARI,

Plaintiffs-Appellants, —v.—

FNU TANZIN, SPECIAL AGENT, FBI; SANYA GARCIA, SPECIAL AGENT, FBI; JOHN LNU, SPECIAL AGENT, FBI;

FRANCISCO ARTUSA, SPECIAL AGENT, FBI; JOHN C. HARLEY III, SPECIAL AGENT, FBI; STEVEN LNU,

SPECIAL AGENT, FBI; MICHAEL LNU, SPECIAL AGENT, FBI; GREGG GROSSOEHMIG, SPECIAL AGENT, FBI;

WEYSAN DUN, SPECIAL AGENT IN CHARGE, FBI; JAMES C. LANGENBERG, ASSISTANT SPECIAL AGENT IN

CHARGE, FBI; JOHN DOE #1, SPECIAL AGENT, FBI; JOHN DOE #2, SPECIAL AGENT, FBI; JOHN DOE #3,

SPECIAL AGENT, FBI; JOHN DOE #4, SPECIAL AGENT, FBI; JOHN DOE #5, SPECIAL AGENT, FBI; JOHN DOE #6,

SPECIAL AGENT, FBI, Defendants-Appellees.

DEFENDANTS-APPELLEES’ PETITION FOR

REHEARING EN BANC


2

Defendants-appellees petition this Court for re-hearing en banc to address whether the Religious Freedom Restoration Act (“RFRA”) permits actions for money damages against federal officers sued in their individual capacities. A panel of this Court held that it does. In doing so, the panel erroneously construed the statute’s language, misapplied the Supreme Court’s precedents, and broadened Congress’s chosen remedy in a manner that will impair the functioning of the Ex-ecutive. Rehearing en banc is required to address these exceptionally important questions.

Statement of the Case

A. The Religious Freedom Restoration Act

Congress enacted RFRA in response to the Su-preme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), which held that the First Amendment does not require generally applicable laws that substantially burden religious exercise to be justified by a compelling government interest. 42 U.S.C. § 2000bb (Congress’s findings and pur-poses). To restore the substantive protection for reli-gious exercise that existed before Smith, RFRA pro-vides that “Government shall not substantially burden a person’s exercise of religion even if the burden re-sults from a rule of general applicability,” unless that burden is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000bb-1.

Congress also stated its intent “to provide a claim or defense to persons whose religious exercise is sub-stantially burdened by government.” 42 U.S.C.


3 § 2000bb(b)(2). Accordingly, RFRA provides that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain ap-propriate relief against a government.” Id. § 2000bb-1(c).

Relevant to both the substantive prohibition and the relief provision, RFRA states that “[a]s used in this chapter . . . the term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States” or other federal possessions. 42 U.S.C. § 2000bb-2(1).

B. District Court Proceedings

Plaintiffs-appellants are Muslim immigrants, ei-ther U.S. citizens or lawful permanent residents, who claim they were asked by FBI agents to serve as in-formants for the government. When they refused, plaintiffs allege, the FBI agents retaliated by placing or retaining them on the No Fly List—a government-maintained list of persons known or suspected of pos-ing a risk of terrorism and therefore not permitted to board commercial aircraft in the United States. Plain-tiffs contend the forced choice between their sincerely held religious beliefs forbidding them to serve as in-formants and being placed on the No Fly List substan-tially burdened their exercise of religion. Plaintiffs sued, seeking, as relevant here, damages against the FBI agents under RFRA.


4

The district court dismissed the RFRA damages claim, holding RFRA does not provide for money dam-ages against federal officials in their personal capaci-ties. The court concluded Congress intended to restore, but not expand, the standards for adjudicating bur-dens on religious exercise that existed before Smith (SPA 27-28)—but before Smith, the Supreme Court had never recognized a First Amendment claim against individual federal officials for damages (SPA 30-32). The district court concluded that had Congress meant to provide that remedy, it would have used clearer language than “appropriate relief,” and indeed Congress had been explicit in other statutes where it intended to allow damages claims against in-dividual federal officials. (SPA 32-33, 37). The court further ruled that any presumption of a damages rem-edy under Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), does not apply to RFRA, as Franklin concerned an implied cause of action; the scope of RFRA’s express cause of action is instead de-termined by Congress’s intent. (SPA 35).

C. The Panel Decision

A panel of this Court reversed. The Court first examined the meaning of “against

a government.” Substituting the statutory definition of “government” into the text authorizing suit, the Court concluded RFRA allows plaintiffs to seek relief against either an “official” or an “other person acting under color of law.” The Court held that, “[t]herefore, RFRA, by its plain terms, authorizes individual capacity suits


5 against federal officers.” The Court noted that conclu-sion is consistent with RFRA’s “sweeping coverage,” as well as similar “color of law” language in 42 U.S.C. § 1983, which authorizes both individual- and official-capacity suits. (Op. 24-30).

The Court next determined that the phrase “appro-priate relief ” includes money damages against indi-vidual defendants. The Court acknowledged the phrase is ambiguous, as the Supreme Court has held regarding the same phrase in RFRA’s companion stat-ute, the Religious Land Use and Institutionalized Per-sons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”). The Court observed Congress enacted RFRA one year after Franklin, in which the Supreme Court stated “we presume the availability of all appro-priate remedies unless Congress has expressly indi-cated otherwise.” The Court concluded that because Congress used the phrase “appropriate relief ” in the statute, it intended the Franklin presumption to ap-ply. (Op. 30-34).

The Court next distinguished the Supreme Court’s holding in Sossamon v. Texas, 563 U.S. 277 (2011), that the same phrase in RLUIPA did not include dam-ages against a state, as well as other circuits’ decisions that RFRA does not allow damages against the federal government, reasoning those rulings were based on considerations of sovereign immunity that do not per-tain to individual-capacity suits. The Court also held that its own precedent holding RLUIPA does not per-mit individual-capacity damages suits against state of-ficers was distinguishable because when Congress acts under the Constitution’s spending clause, as it did in


6 RLUIPA, it may impose conditions on states that ac-cept the relevant funds, but not on those persons, in-cluding the state’s employees, who did not themselves receive the federal funds. Because RFRA was enacted under the authority of the Fourteenth Amendment and the Necessary and Proper Clause, that concern is not implicated. Although the Court recognized that its holding makes federal officials who violate RFRA the only class of defendants subject to monetary liability under either statute, the Court concluded the word “appropriate” “may well take on different meanings in different settings.” (Op. 34-43).

The Court further ruled that the Franklin pre-sumption applies, even though RFRA provides an ex-press right of action. Although Franklin itself consid-ered only an implied right of action, the panel stated that courts should be more cautious about expanding the remedies available under an implied right of action than an express one, particularly where Congress uses broad language such as “appropriate relief.” (Op. 43-46).

Next, the Court determined that RFRA’s legislative history demonstrated the statute’s dual purpose: to re-store the free-exercise test applied under the First Amendment before Smith, and to provide a claim or defense to those whose religious exercise is substan-tially burdened by government. The panel concluded that some courts of appeals had recognized Bivens claims against individuals for violations of the First Amendment, and because RFRA’s legislative history did not provide an “express direction” that Congress


7 intended to “exclude” a damages remedy, one must be presumed. (Op. 46-55).

A R G U M E N T

A. Absent Explicit Congressional Direction, RFRA Must Be Read to Exclude a Damages Remedy to Avoid Impeding Functions of the Executive Branch

As the Supreme Court recently emphasized, “sepa-ration-of-powers principles” are “central to the analy-sis” of whether a federal statute allows a damages remedy against individual federal officials. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). Creating such a remedy “requires an assessment of its impact on gov-ernmental operations systemwide.” Id. at 1858. That impact is significant: damages suits impose “burdens on Government employees who are sued personally,” preventing them from “devoting the time and effort re-quired for the proper discharge of their duties” and causing them to “second-guess difficult but necessary decisions” in matters constitutionally committed to the Executive Branch. Id. at 1858, 1860-61; accord Ander-son v. Creighton, 483 U.S. 635, 638 (1987) (“substan-tial social costs”); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (costs include “expenses of litigation, the di-version of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office,” and “ ‘dampen[ing] the ardor [of officials] . . . in the unflinching discharge of their duties’ ” (quot-ing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand, J.))). Damages remedies against officials


8 also impose “costs and consequences to the Govern-ment itself,” “in the form of defense and indemnifica-tion,” the impairment of policy-making, and intrusion on “sensitive functions of the Executive Branch.” Ab-basi, 137 S. Ct. at 1856, 1858, 1861.

It is Congress’s task—not the courts’—to balance these costs against the benefits of a damages remedy, and for that reason the Supreme Court expects Con-gress to be “explicit if it intends to create a private cause of action” in a statute. Id. at 1856. No matter “ ‘how desirable [a remedy] might be as a policy mat-ter, or how compatible with the statute’ ” or its pur-poses, courts should not create that remedy unless Congress “ ‘displays an intent’ ” to allow it. Id. at 1855-56 (quoting Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (alterations omitted)). Particularly given the constitutional separation-of-powers issues at stake, Congress “has a substantial responsibility to deter-mine whether, and the extent to which, monetary and other liabilities should be imposed upon individual of-ficers and employees of the Federal Government.” Id. at 1856.

Yet these concerns are absent from the panel’s de-cision, which allowed a damages remedy because it was not expressly excluded (op. 55), rather than reject-ing it because it was not “explicit.” RFRA creates an express private right of action, but one that is “ambig-uous” regarding the availability of damages (op. 31-32; see infra, Point B)—unlike other statutes where Con-gress clearly allows individual-capacity damages suits against government officials, e.g., 42 U.S.C. § 1983; 50 U.S.C. §§ 1809-1810 (“damages” against person acting


9 “under color of law”); 18 U.S.C. § 2520 (defining “ap-propriate relief ” to include “damages”). In light of the separation-of-powers concerns identified in Abbasi, as well as the courts’ more general reluctance to create private remedies absent clear instruction from Con-gress, RFRA should be read narrowly to exclude indi-vidual-capacity damages suits against federal officials.

B. The Panel Misconstrued RFRA’s Text

1. “Against a Government”

The panel erred in construing the statute’s words, “appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c). The panel considered each half of that phrase separately—but read as a whole or in parts, the provision does not permit damages suits against indi-vidual officials.

On its face, “appropriate relief against a govern-ment” suggests that only the government, not individ-uals, may be sued. To be sure, RFRA defines “govern-ment” to include an “official (or other person acting un-der color of law) of the United States.” 42 U.S.C. § 2000bb-2(1). The panel relied entirely on that defini-tion, simply substituting it into the “appropriate re-lief ” provision—thus reading the statute to provide for “ ‘appropriate relief against’ either a federal ‘official’ or ‘other person acting under color of [federal] law.’ ” (Op. 25 (alteration in original)). So read, the panel held, “RFRA, by its plain terms, authorizes individual ca-pacity suits against federal officers.” (Op. 25).

But that method of statutory interpretation erased Congress’s choice of the word “government” to describe


10 the object of its intended relief. Even when defined, a statutory term still has meaning on its own, meaning that is lost when that term is mechanically replaced by its definition. A court “cannot forget that we ultimately are determining the meaning of ” the defined term. Leocal v. Ashcroft, 543 U.S. 1, 8 (2004); accord Johnson v. United States, 559 U.S. 133, 140 (2010) (“in the con-text of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force”); United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (“we must read the definition in light of the term to be defined”).1 The natural meaning of “relief against a government” limits that relief to actions against the sovereign itself, rather than officers sued in their indi-vidual capacities. But that natural meaning is absent from the panel’s consideration.

Even if “official” or “other person acting under color of law” is substituted for “government,” that does not resolve whether they can be sued in their individual —————

1 Stenberg v. Carhart, on which the panel relied to say it must follow the statute’s explicit definition, does not contradict this principle. The term being de-fined there (“partial birth abortion”) was not an ordi-nary-use term like “government” with its own accepted meaning; and the Court still directed that the statute must be “read as a whole.” 530 U.S. 914, 942 (2000) (quotation marks omitted). Nor does Upstate Citizens for Equality, Inc. v. United States counsel otherwise, as the term “tribe” in that case was statutorily defined in a way fully consistent with its ordinary meaning. 841 F.3d 556, 575 (2d Cir. 2016).


11 capacities. Nothing in the statute’s text suggests Con-gress meant to allow anything other than relief against officials or other persons in their official capac-ities—meaning equitable relief that would halt the un-lawful behavior. To the contrary, “relief ” suggests eq-uitable relief. Black’s Law Dictionary (10th ed. 2014) (“Relief ” defined as “The redress or benefit, esp. equi-table in nature (such as an injunction or specific per-formance), that a party asks of a court.”); see Sossa-mon, 563 U.S. at 287-88 (noting that definition). Espe-cially construed in light of Congress’s chosen object of the relief, “government,” equitable relief is the more natural reading of the remedy and definition provi-sions taken together. At the least, the statute is am-biguous on this score, contradicting the panel’s conclu-sion that the answer is “clear.” (Op. 24-25).

The panel reasoned that Congress must have meant to allow individual-capacity suits by including “official[s]” or “other person[s]” in the definition of “government,” because “[t]here would be no need to permit” official-capacity suits since such suits are functionally the same as actions against the govern-ment itself. (Op. 26). But, first, that ignores the fact that the definition of “government” applies to both the remedial provision and the substantive prohibition—and Congress would certainly see a need to prohibit an “official” or “other person” acting on behalf of the gov-ernment from substantially burdening religious exer-cise. 42 U.S.C. § 2000bb-2(1). Second, there is nothing unusual about permitting plaintiffs to use the common mechanism of an official-capacity suit to obtain relief, making the inference that an individual-capacity suit


12 must have been intended ungrounded in the statute’s text.

The panel further reasoned that by including “other person[s] acting under color of law” besides “of-ficials” in the definition, Congress intended to author-ize individual-capacity suits because “persons who are not officials may be sued only in their individual ca-pacities.” (Op. 28 (quotation marks omitted)). But the Supreme Court has held that similar statutory lan-guage—“ ‘an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority’ ”—does not describe per-sonal-capacity suits. Stafford v. Briggs, 444 U.S. 527, 535-36 & n.6 (1980) (quoting 28 U.S.C. § 1391(e); some emphasis removed). Moreover, there was a good rea-son Congress would want to include “other person[s] acting under color of law” among those subject to RFRA’s prohibitions: that language covers “seemingly private behavior [that] may be fairly treated as that of the [government] itself,” Brentwood Academy v. Ten-nessee Secondary School Athletic Ass’n, 531 U.S. 288, 295 (2001), thus extending RFRA’s prohibition to non-officials whose “conduct has sufficiently received the imprimatur” of the government to make it the govern-ment’s action, Blum v. Yaretsky, 457 U.S. 991, 1003 (1982); accord Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013). Nor was the panel correct in justi-fying its conclusion that “color of law” suggests indi-vidual-capacity suits by comparing RFRA to 42 U.S.C. § 1983. (Op. 29-30). The language that brings individ-ual-capacity damages suits within § 1983 is that stat-ute’s authorization for “an action at law” against “[e]very person” who acts “under color of [state law]”—


13 language that, unlike RFRA’s ambiguous and vague provision, explicitly provides a damages remedy against an individual. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 751 (1999) (§ 1983 “provides . . . for actions at law with damages remedies”); Kalina v. Fletcher, 522 U.S. 118, 123 (1997) (“text of the statute purports to create a dam-ages remedy” against state officials).

2. “Appropriate Relief”

The panel also misconstrued “appropriate relief.” The panel correctly described the phrase as ambigu-ous: “ ‘Far from clearly identifying money damages, the word ‘appropriate’ is inherently context-depend-ent.’ ” (Op. 31-32 (quoting Sossamon, 563 U.S. at 286)). The panel resolved the ambiguity by observing that Congress’s use of “appropriate relief ” echoed the same phrase in Franklin, decided a year before RFRA was enacted. (Op. 33-34). But to begin with, nothing in Franklin suggests it meant to define “appropriate re-lief ” as a term of art that would carry the Franklin presumption if Congress were to use it later. To the contrary, the phrase is a generic one that has been used by Congress both before and after Franklin with no indication of legislative intent to adopt a presump-tion that it must include damages. E.g., Pub. L. 99-508, § 103, 100 Stat 1848 (1986) (adding “appropriate re-lief ” to 18 U.S.C. § 2520). Had the Supreme Court meant to suggest that “appropriate relief ” had ac-quired an accepted definition in Franklin, it would not have later described that phrase as “open-ended and ambiguous.” Sossamon, 563 U.S. at 286.


14

In any event, as the Supreme Court has made clear—in construing the same “appropriate relief ” phrase in RLUIPA—Franklin addressed remedies under an “implied right of action,” where there is “no statutory text to interpret.” Sossamon, 563 U.S. at 288. In con-trast, the Franklin presumption “is irrelevant to con-struing” the “appropriate relief ” clause in RLUIPA: “Whatever ‘appropriate relief ’ might have meant in [Franklin] does not translate to this context.” Id. at 288-89; see Abbasi, 137 S. Ct. at 1855-56 (“judicial task” in statutory case is “limited solely to determining whether Congress intended to create the private right of action asserted” (quotation marks omitted)). The panel disregarded that language, reasoning that courts should be “more cautious about expanding” remedies under an implied right of action than under an express one. (Op. 44). While that is sensible, it ig-nores the Supreme Court’s ruling that when Congress creates an express right of action, as it did in RLUIPA and RFRA, its scope is determined by the statute itself, not any judge-made presumption about the scope of judge-made remedies.

Sossamon went on to hold that “appropriate relief ” in RLUIPA does not include damages against a state. 563 U.S. at 285-86. That conclusion, as the panel pointed out, relied on considerations of sovereign im-munity. Id. at 283-84; (op. 35). But the Supreme Court did not simply hold that sovereign immunity barred damages in suits against a state; it interpreted the am-biguous phrase “appropriate relief,” and based its rul-ing about which of that phrase’s multiple possible meanings Congress intended on the implications for state immunity. 563 U.S. at 287-88. Similarly, when


15 this Court and others held that individual-capacity suits are not permitted under RLUIPA, they were in-fluenced by the limitations on Congress’s power under the Constitution’s spending clause, the source of Con-gress’s authority for that statute—but ultimately the meaning of “appropriate relief ” was a matter of “stat-utory interpretation.” Washington v. Gonyea, 731 F.3d 143, 145-46 (2d Cir. 2013). As the D.C. Circuit put it, the “dispositive question” in all these cases “is whether [the statutes’] reference to ‘appropriate relief ’ includes monetary damages.” Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006). And prior to the panel decision in this case and the Third Circuit’s similar decision in Mack v. Warden, 839 F.3d 286 (3d Cir. 2016), the courts of appeals and the Su-preme Court were unanimous in concluding that the meaning of “appropriate relief ” in RFRA and RLUIPA did not include damages.

That interpretation should apply in this case too. While the panel was correct that the word “appropri-ate” is flexible (op. 40), in context the word cannot bear the panel’s meaning. Of the four relevant situations—RLUIPA claims against a sovereign, RLUIPA claims against an individual, RFRA claims against a sover-eign, and RFRA claims against an individual—the Su-preme Court and courts of appeals have construed “ap-propriate relief ” to exclude money damages in three of them. To reach the opposite conclusion here and allow individual-capacity damages suits under RFRA would be to impermissibly “give the[ ] same words a different meaning” in different contexts. Clark v. Martinez, 543 U.S. 371, 378 (2005). The Supreme Court has “force-fully rejected” the “interpretive contortion” of “giving


16 the same word, in the same statutory provision, differ-ent meanings in different factual contexts.” United States v. Santos, 553 U.S. 507, 522 (2008) (plurality opinion); accord Reno v. Bossier Parish School Board, 528 U.S. 320, 329 (2000) (“we refuse to adopt a con-struction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying”). This Court should reject that interpretation here.

C. Individual-Capacity Damages Suits Are Inconsistent with RFRA’s Purpose

Finally, the panel found support for its conclusions in RFRA’s broad protection against governmental bur-dens on religious exercise. (Op. 28-29, 34). But the Su-preme Court has “abandoned” the approach of “provid[ing] such remedies as are necessary to make effective the congressional purpose expressed by a statute.” Alexander, 532 U.S. at 287 (quotation marks omitted); accord Abbasi, 137 S. Ct. at 1855-56. Indeed, the Court has specifically questioned that approach for RFRA’s companion statute. Sossamon, 563 U.S. at 287 (noting RLUIPA’s “broad protection of religious exer-cise” but concluding it was at least “plausible” that principle is best understood “as addressing the sub-stantive standards in the statute, not the scope of ‘ap-propriate relief ’ ” (quotation marks omitted)). Inter-preting “appropriate relief ” to exclude damages does nothing to diminish RFRA’s broad protection of reli-gious rights; it merely confines the available remedy as Congress intended.


17

Indeed, Congress’s stated purpose points the other direction: Congress meant to “ ‘turn the clock back’ to the day before Smith was decided.” H.R. Rep. 103-88, at 15. But before Smith, the Supreme Court had never allowed a Bivens claim for First Amendment viola-tions, and while the panel cited a footnote in a 1981 Sixth Circuit decision to suggest such a claim was via-ble, in light of the Supreme Court’s reluctance to ex-pand Bivens in the years before and after RFRA was enacted it is doubtful that decision—whose analysis was cursory, and whose conclusion has been ques-tioned by the Sixth Circuit itself 2—would stand. See Webman, 441 F.3d at 1028 (Tatel, J., concurring) (“Be-cause Congress enacted RFRA to return to a pre-Smith world, a world in which damages were unavailable against the government, ‘appropriate relief ’ is most naturally read to exclude damages against the govern-ment.”). As the Senate Report accompanying RFRA put it, “the act does not expand, contract or alter the ability of a claimant to obtain relief in a manner con-sistent with the Supreme Court’s free exercise juris-prudence under the compelling governmental interest test prior to Smith.” S. Rep. No. 103-111, at 12, 1993 U.S.C.C.A.N. at 1902. The panel’s decision contradicts

————— 2 Meeks v. Larsen, 611 F. App’x 277, 287 (6th Cir.

2015) (“dearth of precedent applying Bivens to free-ex-ercise claims”), contra Jihaad v. O’Brien, 645 F.2d 556, 558 n.1 (6th Cir. 1981). The panel also cited Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986), but that case is not clear that the plaintiff sought damages on First Amendment claims.


18 that intent, as well as Congress’s chosen words, and rehearing is needed to correct its error. Dated: New York, New York

August 17, 2018

Respectfully submitted,

GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York, Attorney for Defendants-Appellees.

ELLEN BLAIN, BENJAMIN H. TORRANCE,

Assistant United States Attorneys, Of Counsel.


CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of the Federal Rules of Appellate Procedure and this Court’s Local Rules. As measured by the word pro-cessing system used to prepare this brief, there are 3895 words in this brief.

GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York

By: BENJAMIN H. TORRANCE, Assistant United States Attorney


ADDENDUM


16 1176Tanvir v. Tanzin

UNITED STATES COURT OF APPEALS1

FOR THE SECOND CIRCUIT2

____________________3

4

August Term, 20165

6

(Argued: March 1, 2017 Decided: May 2, 20187

Amended: June 25, 2018)8

9

Docket No. 16 117610

____________________11

12

MUHAMMAD TANVIR, JAMEEL ALGIBHAH,13

NAVEED SHINWARI,14

15

Plaintiffs Appellants,16

17

v.18

19

FNU TANZIN, Special Agent, FBI; SANYA GARCIA, Special20

Agent, FBI; JOHN LNU, Special Agent, FBI; FRANCISCO21

ARTUSA, Special Agent, FBI; JOHN C. HARLEY III, Special22

Agent, FBI; STEVEN LNU, Special Agent, FBI; MICHAEL23

LNU, Special Agent, FBI; GREGG GROSSOEHMIG, Special24

Agent, FBI; WEYSAN DUN, Special Agent in Charge, FBI;25

JAMES C. LANGENBERG, Assistant Special Agent in Charge,26

FBI; JOHN DOE #1, Special Agent, FBI; JOHN DOE #2, Special27

Agent, FBI; JOHN DOE #3, Special Agent, FBI; JOHN DOE #4,28

Special Agent, FBI; JOHN DOE #5, Special Agent, FBI; JOHN29

DOE #6, Special Agent, FBI,30

31


Add. 1


2

Defendants Appellees.11

____________________2

Before: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges.3

Plaintiffs Appellants Muhammad Tanvir, Jameel Algibah, and Naveed4

Shinwari (“Plaintiffs”) appeal from a February 17, 2016 final judgment of the5

United States District Court for the Southern District of New York (Abrams, J.),6

dismissing their complaint against senior federal law enforcement officials and7

25 named and unnamed federal law enforcement officers. The complaint alleged,8

inter alia, that in retaliation for Plaintiffs’ refusal to serve as informants, federal9

officers improperly placed or retained Plaintiffs’ names on the “No Fly List,” in10

violation of Plaintiffs’ rights under the First Amendment and the Religious11

Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).12

The complaint sought (1) injunctive and declaratory relief against all13

defendants in their official capacities for various constitutional and statutory14

violations, and (2) compensatory and punitive damages from federal law15

enforcement officers in their individual capacities for violations of their rights16

under the First Amendment and RFRA. After the parties agreed to stay the17

1 The Clerk of Court is respectfully directed to amend the official caption in thiscase to conform with the caption above.


Add. 2


3

official capacity claims, the district court dismissed Plaintiffs’ individual capacity1

claims. As relevant here, the district court held that RFRA does not permit the2

recovery of money damages against federal officers sued in their individual3

capacities. Plaintiffs appeal that RFRA determination only.4

Because we disagree with the district court, and hold that RFRA permits a5

plaintiff to recover money damages against federal officers sued in their6

individual capacities for violations of RFRA’s substantive protections, we reverse7

the district court’s judgment and remand for further proceedings.8

REVERSED and REMANDED.9

____________________10

RAMZI KASSEM, CLEAR Project, Main Street Legal11

Services, Inc., City University of New York School of12

Law (Naz Ahmad, on the brief), Long Island City, NY, for13

Plaintiffs Appellants.14

Jennifer R. Cowan, Erol Gulay, Sandy Tomasik,15

Debevoise & Plimpton LLP, New York, NY, for16

Plaintiffs Appellants.17

Shayana D. Kadidal, Baher Azmy, Center for18

Constitutional Rights, New York, NY, for Plaintiffs19

Appellants.20


Add. 3


4

ELLEN BLAIN, Assistant United States Attorney (Sarah1

S. Normand, Benjamin H. Torrance, Assistant United2

States Attorneys, on the brief), for Joon H. Kim, Acting3

United States Attorney for the Southern District of New4

York, New York, NY, for Defendants Appellees.5

POOLER, Circuit Judge:6

Plaintiffs Appellants Muhammad Tanvir, Jameel Algibah, and Naveed7

Shinwari (“Plaintiffs”) appeal from a February 17, 2016 final judgment of the8

United States District Court for the Southern District of New York (Abrams, J.),9

dismissing their complaint against senior federal law enforcement officials and10

25 named and unnamed federal law enforcement officers. As relevant here, the11

complaint alleged that, in retaliation for Plaintiffs’ refusal to serve as informants,12

federal officers improperly placed or retained Plaintiffs’ names on the “No Fly13

List,” in violation of Plaintiffs’ rights under the First Amendment and the14

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”).15

The complaint sought (1) injunctive and declaratory relief against all16

defendants in their official capacities for various constitutional and statutory17

violations, and (2) compensatory and punitive damages from federal law18

enforcement officers in their individual capacities for violations of their rights19


Add. 4


5

under the First Amendment and RFRA. As relevant here, the district court held1

that RFRA does not permit the recovery of money damages against federal2

officers sued in their individual capacities. Plaintiffs appeal that RFRA3

determination only.4

Because we disagree with the district court, and hold that RFRA permits a5

plaintiff to recover money damages against federal officers sued in their6

individual capacities for violations of RFRA’s substantive protections, we reverse7

the district court’s judgment and remand for further proceedings.8

BACKGROUND9

10

On appeal from the district court’s dismissal of Plaintiffs’ complaint, we11

“accept[] as true factual allegations in the complaint, and draw[] all reasonable12

inferences in the favor of the plaintiffs.” Town of Babylon v. Fed. Hous. Fin. Agency,13

699 F.3d 221, 227 (2d Cir. 2012).14

I. Relevant Factual and Procedural Background15

16

Plaintiffs are Muslim men who reside in New York or Connecticut. Each17

was born abroad, immigrated to the United States early in his life, and is now18

lawfully present here as either a U.S. citizen or as a permanent resident. Each has19

family remaining overseas.20


Add. 5


6

Plaintiffs assert that they were each approached by federal agents and1

asked to serve as informants for the FBI. Specifically, Plaintiffs were asked to2

gather information on members of Muslim communities and report that3

information to the FBI.2 In some instances, the FBI’s request was accompanied4

with severe pressure, including threats of deportation or arrest; in others, the5

request was accompanied by promises of financial and other assistance.6

Regardless, Plaintiffs rebuffed those repeated requests, at least in part based on7

their sincerely held religious beliefs. In response to these refusals, the federal8

agents maintained Plaintiffs on the national “No Fly List,” despite the fact that9

Plaintiffs “do[] not pose, ha[ve] never posed, and ha[ve] never been accused of10

posing, a threat to aviation safety.” App’x at 74, 84, 92 ¶¶ 68, 118, 145.11

According to the complaint, Defendants “forced Plaintiffs into an12

impermissible choice between, on the one hand, obeying their sincerely held13

religious beliefs and being subjected to the punishment of placement or retention14

2 Plaintiffs assert that they were caught up in a broader web of federal lawenforcement mistreatment of American Muslims. They allege that, following thetragic attacks of September 11, 2001, “the FBI has engaged in widespreadtargeting of American Muslim communities for surveillance and intelligencegathering.” App’x at 66 ¶ 36. These law enforcement practices included “theaggressive recruitment and deployment of informants . . . in American Muslimcommunities, organizations, and houses of worship.” Id.


Add. 6


7

on the No Fly List, or, on the other hand, violating their sincerely held religious1

beliefs in order to avoid being placed on the No Fly List or to secure removal2

from the No Fly List.” App’x at 109 ¶ 210. Plaintiffs allege that this dilemma3

placed a substantial burden on their exercise of religion.4

Additionally, Defendants’ actions caused Plaintiffs to suffer emotional5

distress, reputational harm, and economic loss. As a result of Defendants’ actions6

placing and retaining Plaintiffs on the “No Fly List,” Plaintiffs were prohibited7

from flying for several years. Such prohibition prevented Plaintiffs from visiting8

family members overseas, caused Plaintiffs to lose money they had paid for9

plane tickets, and hampered Plaintiffs’ ability to travel for work.310

A. The “No Fly List”11

In an effort to ensure aircraft security, Congress directed the12

Transportation Security Administration (“TSA”) to establish procedures for13

notifying appropriate officials of the identity of individuals “known to pose, or14

3 One Plaintiff, for example, had to quit a job as a long haul trucker because thatjob required him to fly home after completing his route, while another declinedtemporary employment in Florida due to these travel restrictions. These samerestrictions barred another Plaintiff from traveling to Pakistan to visit his ailingmother, and rendered yet another Plaintiff unable to see his wife or daughter inYemen for many years.


Add. 7


8

suspected of posing, a risk of air piracy or terrorism or a threat to airline or1

passenger safety.” 49 U.S.C. § 114(h)(2). TSA was further instructed to “utilize all2

appropriate records in the consolidated and integrated terrorist watchlist3

maintained by the Federal Government” to perform a passenger prescreening4

function. 49 U.S.C. § 44903(j)(2)(C)(ii).5

The “No Fly List” is one such terrorist watchlist and is part of a broader6

database developed and maintained by the Terrorist Screening Center (“TSC”),7

which is administered by the FBI. The TSC’s database contains information about8

individuals who are known or reasonably suspected of being involved in9

terrorist activity. The TSC shares the names of individuals on the “No Fly List”10

with federal and state law enforcement agencies, the TSA, airline representatives,11

and cooperating foreign governments.12

Plaintiffs allege that federal law enforcement and intelligence agencies13

may “nominate” an individual for inclusion in the TSC’s database, including the14

“No Fly List,” if there is “reasonable suspicion” that the person is a “known or15

suspected terrorist.” App’x at 68 ¶ 41. In order for a nominated individual to be16

added to the “No Fly List,” there must be additional “derogatory information”17

showing that the individual “pose[s] a threat of committing a terrorist act with18


Add. 8


9

respect to an aircraft.” App’x at 68 ¶ 42. Any person placed on the “No Fly List”1

is barred from boarding a plane that starts in, ends in, or flies over the United2

States.43

Plaintiffs claim that the federal agents named in the amended complaint4

“exploited the significant burdens imposed by the No Fly List, its opaque nature5

and ill defined standards, and its lack of procedural safeguards, in an attempt to6

coerce Plaintiffs into serving as informants within their American Muslim7

communities and places of worship.” App’x at 59 ¶ 8. When rebuffed, the federal8

agents “retaliated against Plaintiffs by placing or retaining them on the No Fly9

List.” Id.10

4 In their amended complaint, Plaintiffs decry the secrecy around the “No FlyList,” alleging that there is little public information about its size, the criteria forinclusion, the standards for “derogatory information,” or the adequacy of itsprocedural safeguards. Upon information and belief, Plaintiffs assert that the“No Fly List” burgeoned from 3,400 individuals in 2009 to over 21,000individuals by February 2012.


Add. 9


10

B. Tanvir: An Illustrative Story1

As did the district court below, we present Tanvir’s story as illustrative of2

Plaintiffs’ experiences.3

At the time the complaint was filed, Tanvir was a lawful permanent4

resident living in Queens, New York. Tanvir’s wife, son, and parents remain in5

Pakistan. In February 2007, Tanvir alleged that FBI Special Agents FNU Tanzin6

and John Doe 1 approached him at work and questioned him for 30 minutes7

about an acquaintance who allegedly entered the United States illegally. Two8

days later, Agent Tanzin called Tanvir and asked whether he had anything he9

“could share” with the FBI about the American Muslim community. App’x at 7410

¶ 70. Tanvir said he told Agent Tanzin that he knew nothing relevant to law11

enforcement.12

In July 2008, after returning home from a trip to Pakistan to visit his13

family, Tanvir was detained by federal agents for five hours at JFK Airport. His14

passport was confiscated and he was told he could retrieve it on January 28,15

2009, nearly six months later. Two days prior to that appointment, Agent Tanzin16

and FBI Special Agent John Doe 2 visited Tanvir at his new workplace and asked17

him to come to the FBI’s Manhattan field office. Tanvir agreed.18


Add. 10


11

At the FBI field office, the federal agents questioned Tanvir for about an1

hour. The agents asked Tanvir whether he was aware of Taliban training camps2

near his home village in Pakistan and whether he had Taliban training. Tanvir3

denied knowledge of the camps or participation in such training.4

After the questioning, Agents Tanzin and John Doe 2 complimented5

Tanvir and asked him to work as an informant for the FBI in Pakistan or6

Afghanistan. Tanvir alleged that they offered him various incentives, including7

facilitating visits for his family to the United States and paying for his parents’8

religious pilgrimage. Despite the offer, Tanvir declined, stating that he did not9

want to be an informant. The agents persisted, threatening Tanvir that his10

passport would not be returned and he would be deported if he failed to11

cooperate. Tanvir implored the agents not to deport him. At the meeting’s end,12

the agents asked Tanvir to reconsider and to keep their conversation private.13

The next day, Agent Tanzin asked Tanvir if he had reconsidered and14

would become an informant. Agent Tanzin threatened Tanvir with deportation if15

he did not cooperate. Again, Tanvir declined.16

On January 28, 2009, Tanvir recovered his passport from Department of17

Homeland Security (“DHS”) officers at JFK Airport without incident. The DHS18


Add. 11


12

officers said his passport was withheld for an investigation, but that the1

investigation was complete. Nevertheless, the next day, Agent Tanzin called2

Tanvir and said that he asked for the release of Tanvir’s passport because Tanvir3

was “cooperative” with the FBI. App’x at 77 ¶ 81.4

The FBI agents continued to pressure Tanvir to work as an informant over5

the next few weeks. Tanvir received numerous calls and visits at his workplace6

from Agents Tanzin and John Doe 1. Tanvir stopped answering their phone calls7

and asked them to stop their visits. Later, the agents asked Tanvir to submit to a8

polygraph test, and when he declined, they threated to arrest him. When Tanvir9

flew to Pakistan in July 2009 to visit his family, Agents Tanzin and John Doe 310

questioned Tanvir’s sister at her workplace about Tanvir’s travel.11

After Tanvir returned to the United States in January 2010, he took a job as12

a long haul trucker. The job required him to drive across the country and fly13

back to New York after he had completed his route.14

In October 2010, Tanvir heard that his mother was visiting New York from15

Pakistan. Tanvir, who had been in Atlanta for work, booked a flight back to New16

York. When he arrived at the Atlanta airport, an airline employee told Tanvir17

that he could not fly. At that time, two FBI agents approached Tanvir and told18


Add. 12


13

him to call the agents who had previously spoken to him in New York. Tanvir1

contacted Agent Tanzin, who instructed that other agents would contact Tanvir2

and that he should “cooperate.” App’x at 79 ¶ 92. Unable to fly to New York,3

Tanvir traveled by bus—a 24 hour ride.4

Two days later, FBI Special Agent Sanya Garcia contacted Tanvir. She told5

him that if he met with her and answered her questions, she would help remove6

his name from the “No Fly List.” Tanvir declined, saying that he had already7

answered the FBI’s questions. Because Tanvir believed he could no longer fly,8

and therefore could not return to New York after completing his one way9

deliveries, he quit his job as a long haul trucker.10

On September 27, 2011, Tanvir filed a complaint with the DHS Traveler11

Redress Inquiry Program (“TRIP”), an administrative mechanism for filing a12

complaint about placement on the “No Fly List.”13

The next month, Tanvir purchased tickets to Pakistan for himself and his14

wife so that they could visit his ailing mother. The day before his flight, Agent15

Garcia told Tanvir that he would not be able to fly unless he met with her and16

answered her questions. Because of his urgent need to travel, Tanvir agreed to do17

so. After answering the same questions that the other agents asked him18


Add. 13


14

previously, Tanvir pleaded with Agent Garcia to allow him to fly to Pakistan the1

next day. The next day, Agent Garcia told Tanvir that he could not fly. Moreover,2

she stated that he could not fly in the future unless he submitted to a polygraph3

test. Tanvir cancelled his flight and received only a partial refund. His wife4

traveled alone to Pakistan.5

After this incident, Tanvir hired counsel. Tanvir’s counsel communicated6

with FBI lawyers. The FBI lawyers directed Tanvir’s counsel to the TRIP process,7

even though Tanvir had already submitted a TRIP complaint and not yet8

received any redress.9

Tanvir persisted, buying another plane ticket to Pakistan to visit his ailing10

mother. On December 11, 2011, however, he was denied boarding and told he11

was on the “No Fly List.” This was the third time Tanvir was barred from12

boarding a flight for which he had purchased a ticket.13

In April 2012, nearly six months after Tanvir filed his complaint with TRIP,14

he received a response. The response did not acknowledge that he was on the15

“No Fly List,” but noted that “no changes or corrections are warranted at this16

time.” App’x at 83 ¶ 110. Tanvir appealed this TRIP determination.17


Add. 14


15

In November 2012, Tanvir purchased another ticket to Pakistan in an effort1

to visit his ailing mother. Again, Tanvir was denied boarding when he arrived2

for his flight. An FBI agent approached Tanvir and his counsel at the airport and3

told them that Tanvir would not be removed from the “No Fly List” until he met4

with Agent Garcia.5

In March 2013, ten months after Tanvir appealed his TRIP determination,6

he received a letter from DHS overturning that earlier determination. The letter7

blamed Tanvir’s experience on probable “misidentification against a government8

record” or “random selection,” and stated that the government “made updates”9

to its records. App’x at 83 ¶ 114. Following this communication, Tanvir10

purchased a plane ticket to Pakistan for June 2013. On June 27, 2013, Tanvir11

successfully boarded a flight to Pakistan. By this time, over five years had passed12

since Tanvir was first contacted by the FBI.13

Tanvir asserts that because the federal agents wrongfully placed his name14

on the “No Fly List,” Tanvir could not fly to visit his family in Pakistan, quit his15

trucking job, lost money from unused airline tickets, and feared additional16

harassment by the FBI.17

18


Add. 15


16

C. Procedural History1

On October 1, 2013, Plaintiffs filed a complaint asserting that Defendants2

violated their constitutional and statutory rights by placing their names on the3

“No Fly List”—even though they posed no threat to aviation safety—in4

retaliation for their refusal to become informants for the government. On April5

22, 2014, Plaintiffs filed an amended complaint.6

Plaintiffs sued Defendants in their official capacities under the First7

Amendment, the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C.8

§§ 702, 706, and RFRA, 42 U.S.C. § 200bb et seq., seeking injunctive and9

declaratory relief. Plaintiffs also sued the federal agents in their individual10

capacities, seeking compensatory and punitive damages under the First11

Amendment and RFRA.512

On July 28, 2014, the Defendants filed two separate motions to dismiss the13

amended complaint. One motion sought to dismiss Plaintiffs’ official capacity14

claims; the other sought to dismiss Plaintiffs’ individual capacity claims.15

5 Plaintiffs and non appealing plaintiff Awais Sajjad asserted a First Amendmentretaliation claim against all 25 federal agents named as Defendants. Plaintiffs,excluding Sajjad, asserted a claim under RFRA against only the 16 federal agentsnamed as Defendants that allegedly interacted with Plaintiffs.


Add. 16


17

On June 1, 2015, the government moved to stay Plaintiffs’ official capacity1

claims, arguing that it had revised the redress procedures available to challenge2

one’s designation on the “No Fly List,” and that Plaintiffs had availed themselves3

of those procedures. On June 8, 2015, Plaintiffs received letters from DHS4

informing them that the government knows of no reason why they would be5

unable to fly. On June 10, 2015, Plaintiffs consented to a stay of their official6

capacity claims. The district court stayed those claims and terminated the7

government’s related motion to dismiss. The parties continued to dispute8

Plaintiffs’ individual capacity claims.9

D. District Court Opinion10

On September 3, 2015, the district court issued an opinion and order11

dismissing Plaintiffs’ individual capacity claims.12

First, the district court dismissed Plaintiffs’ First Amendment retaliation13

claims, stating that the Supreme Court and this Court have “declined to extend14

Bivens to a claim sounding in the First Amendment.” Tanvir v. Lynch, 128 F.15

Supp.3d 756, 769 (S.D.N.Y. 2015) (quoting Turkmen v. Hasty, 789 F.3d 218, 236 (2d16

Cir. 2015), rev’d in part and vacated and remanded in part sub nom. Ziglar v. Abbasi,17

137 S. Ct. 1843 (2017)). Plaintiffs do not appeal that determination here.18


Add. 17


18

Next, the district court held that RFRA does not permit the recovery of1

money damages from federal officers sued in their individual capacities. The2

district court determined that “Congress’ intent in enacting RFRA could not be3

clearer.” Tanvir, 128 F. Supp.3d at 780. Specifically, the court determined that4

Congress intended to restore the compelling interest test by which courts5

evaluated free exercise claims before the Supreme Court’s decision in6

Employment Division, Dept. of Human Res. of Or. v. Smith, 494 U.S. 872 (1990). In7

doing so, it held that Congress did not express an intention to expand the8

remedies available to those individuals who asserted that their free exercise of9

religion was substantially burdened by the government.10

The district court found this conclusion supported by the state of the law11

at the time RFRA was passed, and RFRA’s legislative history. With respect to the12

former, the district court stated that, at the time Smithwas decided, the Supreme13

Court had not recognized a Bivens remedy for claims under the Free Exercise14

Clause, and to allow damages in this case against federal employees would15

expand, rather than restore, the remedies available prior to Smith. With respect to16

the latter, the district court identified congressional reports stating that Congress17

in RFRA did not intend to “expand, contract or alter the ability of a claimant to18


Add. 18


19

obtain relief in a manner consistent” with the Supreme Court’s pre Smith free1

exercise jurisprudence. Tanvir, 128 F. Supp.3d at 778 (quoting S. Rep. No. 103 1112

at 12).3

Finally, the district court rejected Plaintiffs’ assertions with respect to4

Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60 (1992). In Franklin, the Supreme5

Court stated that “we presume the availability of all appropriate remedies unless6

Congress has expressly indicated otherwise.” Id. at 66. The district court7

nevertheless found that the traditional Franklin presumption did not apply here.8

In particular, the district court noted that “Franklin required the Supreme Court9

to interpret an implied statutory right of action,” and held that Franklin’s10

“ordinary convention” does not control where, as here, Congress created an11

express private right of action. Tanvir, 128 F. Supp.3d at 779.12

Plaintiffs appeal the district court’s ruling that RFRA does not permit the13

recovery of money damages from federal officers sued in their individual14

capacities.6 We agree with Plaintiffs, and reverse.15

16

6 Plaintiffs voluntarily dismissed their official capacity claims on December 28,2015, rendering the district court’s ruling on the individual claims a finalappealable order. See Tanvir v. Comey, No. 1:13 cv 06951 RA (docs. 109, 111).


Add. 19


20

DISCUSSION1

2

I. Standard of Review3

We review de novo a district court’s dismissal pursuant to Federal Rule of4

Civil Procedure 12(b)(6). Town of Babylon, 699 F.3d at 227. When reviewing the5

dismissal of a complaint for failure to state a claim, we accept as true the factual6

allegations in the complaint and draw all reasonable inferences in plaintiff’s7

favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). “To8

survive a motion to dismiss, a complaint must contain sufficient factual matter,9

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.10

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).11

The district court here held that RFRA does not permit a plaintiff to12

recover money damages against federal officers sued in their individual13

capacities. Tanvir, 128 F. Supp.3d at 775. Where, as here, the district court14

decision below “presents only a legal issue of statutory interpretation,” “[w]e15

review de novowhether the district court correctly interpreted the statute.”White16

v. Shalala, 7 F.3d 296, 299 (2d Cir. 1993).17

18

19


Add. 20


21

II. Official Capacity and Individual Capacity Suits1

2

The district court held that RFRA does not permit the recovery of money3

damages against federal officers sued in their individual capacities. To frame our4

discussion, we briefly address the difference between official capacity suits and5

individual capacity suits.6

The Supreme Court has stated that “official capacity suits generally7

represent only another way of pleading an action against an entity of which an8

officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citation and internal9

quotation marks omitted). In an official capacity suit, “the real party in interest10

… is the governmental entity and not the named official.” Id. By contrast,11

individual capacity suits “seek to impose individual liability upon a government12

officer for [her] actions under color of [] law.” Id. Any damages awarded in an13

individual capacity suit “will not be payable from the public fisc but rather will14

come from the pocket of the individual defendant.” Blackburn v. Goodwin, 60815

F.2d 919, 923 (2d Cir. 1979).716

7 Suits against public officers that seek damages are directed at the particularofficer whose allegedly unlawful actions are claimed to have caused damage toplaintiffs. In contrast, suits against officers in their official capacity, whichgenerally seek injunctive relief, are directed at the office itself. See Fed. R. Civ. P.


Add. 21


22

This distinction proves important with respect to the recovery of damages.1

“Absent a waiver, sovereign immunity shields the Federal Government and its2

agencies from suit.” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999)3

(citation omitted). Sovereign immunity does not, however, shield federal officials4

sued in their individual capacities. Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017)5

(“[S]overeign immunity does not erect a barrier against suits to impose6

individual and personal liability.”) (internal quotation marks omitted).7

III. Religious Freedom Restoration Act8

“As in any case of statutory construction, we start our analysis . . . with the9

language of the statute.” Chai v. Comm’r of Internal Revenue, 851 F.3d 190, 217 (2d10

Cir. 2017) (citation omitted). “Where the statutory language provides a clear11

answer, our analysis ends there.” Id. (citation and internal punctuation omitted).12

“[I]f the meaning of the statute is ambiguous, we may resort to canons of13

statutory interpretation to help resolve the ambiguity.” Id. (citation and brackets14

omitted). “The plainness or ambiguity of statutory language is determined by15

reference to the language itself, the specific context in which that language is16

17(d). As a result, if the defendant in an official capacity suit leaves office, thesuccessor to the office replaces the originally named defendant. See Fed. R. Civ.R. 25(d).


Add. 22


23

used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co.,1

519 U.S. 337, 341 (1997).2

A. Statutory Text3

4

In 1993, Congress passed RFRA. 42 U.S.C. § 2000bb, et seq. Congress stated5

that its purposes in enacting RFRA were “to restore the compelling interest test”6

that been applied in cases where free exercise of religion was substantially7

burdened and “to provide a claim or defense to persons whose religious exercise8

is substantially burdened by government.” 42 U.S.C. § 2000bb(b). Through9

RFRA, Congress sought “to provide very broad protection for religious liberty.”10

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014).11

RFRA provides that the “Government shall not substantially burden a12

person’s exercise of religion even if the burden results from a rule of general13

applicability” unless the “Government” can “demonstrate[] that application of14

the burden to the person—(1) is in furtherance of a compelling governmental15

interest; and (2) is the least restrictive means of furthering that compelling16

governmental interest.” 42 U.S.C. § 2000bb 1(a), (b).17

In order to protect this statutory right, RFRA created an explicit private18

right of action. Id. § 2000bb 1(c). That section permits any “person whose19


Add. 23


24

religious exercise has been burdened in violation of [the statute]” to “assert that1

violation as a claim or defense in a judicial proceeding and obtain appropriate2

relief against a government.” Id. § 2000bb 1(c) (emphasis added). RFRA defines the3

term “government,” to include “a branch, department, agency, instrumentality,4

and official (or other person acting under color of law) of the United States.” Id. §5

2000bb 2(1). RFRA does not define the term “appropriate relief.”6

In its decision below, the district court determined that the phrase7

“appropriate relief” did not include money damages from federal officials sued8

in their individual capacities. See Tanvir, 128 F. Supp.3d at 775. The district court9

did not address whether federal officers sued in their individual capacities are10

included within RFRA’s definition of “government” and therefore amenable to11

suit under RFRA. See id. at 774 n. 17.12

B. “Against a Government”13

14

On appeal, the parties disagree over whether RFRA authorizes individual15

capacity suits against government officials. In construing the meaning of the16

term “government” under RFRA, we begin by reviewing RFRA’s plain language.17

See Chai, 851 F.3d at 217. Because RFRA’s plain language “provides a clear18


Add. 24


25

answer,” we conclude that RFRA authorizes individual capacity claims against1

federal officers. Id.2

As discussed above, RFRA permits a plaintiff to assert a violation of the3

statute “as a claim or defense in a judicial proceeding and obtain relief against a4

government.” 42 U.S.C. § 2000bb 1(c). RFRA defines “government” to include “a5

branch, department, agency, instrumentality, and official (or other person acting6

under color of law) of the United States.” Id. § 2000bb 2(1). When we substitute7

that definition for the defined term, it is clear that a plaintiff may bring a claim8

for “appropriate relief against” either a federal “official” or “other person acting9

under color of [federal] law” whose actions substantially burden the plaintiff’s10

religious exercise. Therefore, RFRA, by its plain terms, authorizes individual11

capacity suits against federal officers.12

Defendants argue, to the contrary, that the plain text of RFRA permits suits13

only against officers in their official capacities and not suits against federal14

officers in their individual capacities. Defendants argue that we: (1) should give15

the term “government” its most natural reading; (2) should understand the16

phrase “official” in the statutory definition of “government” as suggesting that17

only official capacity suits are permitted; and (3) should conclude that the phrase18


Add. 25


26

“or other person acting under color of law” is not intended to permit1

government officers to be sued in their individual capacities. We disagree with2

each argument.3

First, we refuse Defendants’ request to apply a natural reading of the term4

“government” in this case where RFRA includes an explicit definition of5

“government.” 42 U.S.C. § 2000bb 2(1). “When a statute includes an explicit6

definition, we must follow that definition.” Stenberg v. Carhart, 530 U.S. 914, 9427

(2000); Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556, 575 (2d Cir.8

2016) (“In general, statutory definitions control the meaning of statutory9

words.”) (internal quotation marks omitted). Further, the statute specifically10

defines government to include officials and others acting under color of law.11

There would be no need to permit suits against government agents in their12

official capacity, since such a suit is simply a formal variant of an action that, in13

substance, runs against the government itself. See Hafer, 502 U.S. at 25.14

Second, RFRA’s use of the word “official” in the statutory definition of15

“government” does not mandate that a plaintiff may only obtain relief against16

federal officers in official capacity suits. In ordinary usage, an “official” is17

generally defined simply as “one who holds or is invested with an office” and is18


Add. 26


27

roughly synonymous with the term “officer.” Merriam Webster Unabridged,1

http:/unabridged.merriam webster.com/unabridged/official (noun definition).2

There is no reason to think that, in using this ordinary English word, Congress3

intended to invoke the technical legal concept of “official capacity,” rather than4

simply to state that government “officials” are amenable to suit. Moreover, the5

statute permits suits against “officials (or other person[s] acting under color of6

law).” 42 U.S.C.A. § 2000bb 2(1). The specific authorization of actions broadly7

against “other person[s] acting under color of law,” undercuts the assertion that8

the term “official”’ was intended to limit the scope of available actions.9

Further, a defendant’s status as a federal officer “is not controlling” in10

determining whether a suit is, in reality, against the government. Stafford v.11

Briggs, 444 U.S. 527, 542 n. 10 (1980) (citation omitted). Rather, “the dispositive12

inquiry is ‘who will pay the judgment?’” Id. A plaintiff may not sue a federal13

officer in her official capacity for money damages, because such suit seeks money14

from the federal government, and sovereign immunity would bar recovery from15

the federal government absent an explicit waiver. However, a plaintiff may sue a16

federal officer in her individual capacity without implicating sovereign17


Add. 27


28

immunity concerns. See Hafer, 502 U.S. at 25 28. RFRA’s use of the word “official”1

does not alter that rule.2

Third, we reject Defendants’ argument that the phrase “other person3

acting under color of law” authorizes only official capacity suits. Rather, that4

phrase “contemplates that persons ‘other’ than ‘officials’ may be sued under5

RFRA, and persons who are not officials may be sued only in their individual6

capacities.” Patel v. Bureau of Prisons, 125 F. Supp.3d 44, 50 (D.D.C. 2015) (citing7

Jama v. INS, 343 F. Supp.2d 338, 374 (D. N.J. 2004)) (emphasis added).8

“Defendants’ interpretation would render the entire phrase surplasage: once9

Congress authorized official capacity suits against ‘officials,’ adding another10

term that allowed only official capacity suits would have had no effect11

whatsoever.” Id.12

Our conclusion that RFRA authorizes individual capacity claims against13

federal officers is consistent with the Supreme Court’s recognition of RFRA’s14

“[s]weeping coverage,” City of Boerne v. Flores, 521 U.S. 507, 532 (1997), which15

“was designed to provide very broad protection for religious liberty,” Hobby16

Lobby, 134 S. Ct. at 2767. RFRA’s reach “ensures its intrusion at every level of17

government, displacing laws and prohibiting official actions of almost every18


Add. 28


29

description and regardless of subject matter.” City of Boerne, 521 U.S. at 5321

(further stating that RFRA’s restrictions “apply to every agency and official of the2

Federal … Government[]”).3

Moreover, we draw support for our conclusion from Congress’s use of4

comparable language in enacting 42 U.S.C. § 1983, which, long prior to RFRA’s5

enactment, had consistently been held to authorize individual and official6

capacity suits. See, e.g., Hafer, 502 U.S. at 25; Graham, 473 U.S. at7

166. Section 1983 creates a private right of action against “persons” who, acting8

“under color of [law],” violate a plaintiff’s constitutional rights—regardless of9

whether that person was acting pursuant to an unconstitutional state law,10

regulation, or policy. 42 U.S.C. § 1983.11

We, like several of our sister circuits before us, do not find “this word12

choice [] coincidental,” as “Congress intended for courts to borrow concepts from13

§ 1983 when construing RFRA.”Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d14

Cir. 2016); see also Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 73815

(7th Cir. 2015); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 35 (9th16

Cir. 1999). As these courts have explained, “[w]hen a legislature borrows an17

already judicially interpreted phrase from an old statute to use it in a new18


Add. 29


30

statute, it is presumed that the legislature intends to adopt not merely the old1

phrase but the judicial construction of that phrase.” Sutton, 192 F.3d at 834 352

(citation omitted);Mack, 839 F.3d at 302 (quoting same); see also Leonard v. Israel3

Discovery Bank, 199 F.3d 99, 104 (2d Cir. 1999) (“[R]epetition of the same language4

in a new statute indicates, as a general matter, the intent to incorporate its5

judicial interpretations as well.”) (citation and ellipses omitted).6

In light of this presumption, given both RFRA’s and Section 1983’s7

applicability to “person[s]” acting “under color of law,” we hold that RFRA, like8

Section 1983, authorizes a plaintiff to bring individual capacity claims against9

federal officials or other “person[s] acting under color of [federal] law.”10

C. “Appropriate Relief”11

12

Having determined that RFRA permits individual capacity suits against13

government officers acting under color of law, we now turn to whether14

“appropriate relief” in that context includes money damages. In its opinion15

below, the district court held that “appropriate relief” did not include money16

damages in suits against federal officers in their individual capacities. Tanvir, 12817

F. Supp.3d at 780 81. We disagree.18

19


Add. 30


31

a. Ambiguity and the Franklin Presumption1

2

Starting with RFRA’s statutory text, as we do in any case of statutory3

construction, we note that RFRA does not define the phrase “appropriate relief.”4

See Chai, 851 F.3d at 217. Unable to draw further insight from a plain reading of5

the statute, we turn to the context in which the language is used and the context6

of the statute more broadly. See Robinson, 519 U.S. at 341.7

In the context of RFRA’s companion statute, the Religious Land Use and8

Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., 8 the9

Supreme Court acknowledged that the phrase “‘appropriate relief’ is open ended10

and ambiguous about what types of relief it includes . . . Far from clearly11

identifying money damages, the word ‘appropriate’ is inherently context12

dependent.” Sossamon, 563 U.S. at 286. Indeed, “[i]n some contexts, ‘appropriate13

8 The district court opinion aptly notes that RFRA and RLUIPA are companionstatutes. See Tanvir, 128 F. Supp.3d at 775. After the Supreme Court in City ofBoerne, 521 U.S. 507, determined that RFRA was unconstitutional as applied tostate and local governments because it exceeded Congress’s power under Section5 of the Fourteenth Amendment, Congress passed RLUIPA pursuant to theSpending Clause and Commerce Clause. See Tanvir, 128 F. Supp.3d at 775 n. 18;Sossamon v. Texas, 563 U.S. 277, 281 (2011). “RLUIPA borrows important elementsfrom RFRA . . . includ[ing] an express private cause of action that is taken fromRFRA.” Sossamon, 563 U.S. at 281. As a result, courts commonly apply RFRA caselaw to issues arising under RLUIPA and vice versa. See Redd v. Wright, 597 F.3d532, 535 n. 2 (2d Cir. 2010).


Add. 31


32

relief’ might include damages.”Webman v. Fed. Bureau of Prisons, 441 F.3d 1022,1

1026 (D.C. Cir. 2006). But in other contexts, “another plausible reading is that2

‘appropriate relief’ covers equitable relief but not damages.” Id. As with the3

analogous phrase in RLUIPA, we agree that the phrase “appropriate relief” in4

RFRA’s statutory text is ambiguous.5

Having made that determination, “we resort to canons of statutory6

interpretation to help resolve the ambiguity.” Chai, 851 F.3d at 217. We turn to7

the “the venerable canon of construction that Congress is presumed to legislate8

with familiarity of the legal backdrop for its legislation.”Mobil Cerro Negro, Ltd. v.9

Bolivarian Republic of Venezuela, 863 F.3d 96, 115 (2d Cir. 2017); see also Ryan v.10

Gonzales, 568 U.S. 57, 66 (2013) (“We normally assume that, when Congress11

enacts statutes, it is aware of relevant judicial precedent.”). We have stated:12

Of course, Congress may depart from [our traditional legal13

concepts] . . . But when a statute does not provide clear direction, it14

is more likely that Congress was adopting, rather than departing15

from, established assumptions about how our legal . . . system16

works. We will not lightly assume a less conventional meaning17

absent a clear indication that such a meaning was intended.18

19

Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 760 F.3d 151, 166 (2d Cir.20

2014).21


Add. 32


33

Congress enacted RFRA in the wake of Franklin, 503 U.S. 60, a Supreme1

Court decision issued over a year prior to the enactment of the statute. In2

Franklin, the Supreme Court stated that when faced with “the question of what3

remedies are available under a statute that provides a private right of action,” it4

“presume[s] the availability of all appropriate remedies unless Congress has expressly5

indicated otherwise.” Id. at 65 66 (emphasis added); see also Carey v. Piphus, 435 U.S.6

247, 255 (1978) (upholding damages remedy under 42 U.S.C. § 1983, even though7

the enacting Congress did not “address directly the question of damages”). It8

based that presumption on a long standing rule that “has deep roots in our9

jurisprudence:” that “[w]here legal rights have been invaded, and a federal10

statute provides for a general right to sue for such invasion, federal courts may11

use any available remedy to make good the wrong done.” Franklin, 503 U.S. at 6612

(alterations omitted). Applying this traditional presumption in the context of an13

implied right of action to enforce Title IX, the Supreme Court held that a14

damages remedy was available. Id. at 76.15

RFRA permits plaintiffs to “obtain appropriate relief against a16

government,” 42 U.S.C. § 2000bb 1(c), and includes no “express[] indicat[ion]”17

that it proscribes the recovery of money damages, Franklin, 503 U.S. at 66.18


Add. 33


34

Because Congress enacted RFRA one year after the Supreme Court decided1

Franklin, and because Congress used the very same “appropriate relief” language2

in RFRA that was discussed in Franklin, the Franklin presumption applies to3

RFRA’s explicit private right of action. In light of RFRA’s purpose to provide4

broad protections for religious liberty, Hobby Lobby, 134 S.Ct. at 2760, and5

applying the Franklin presumption here, we hold that RFRA authorizes the6

recovery of money damages against federal officers sued in their individual7

capacities.98

b. Defendants’ Arguments to the Contrary9

10

i. Precedent Does Not Require a Different Outcome11

12

Defendants argue that our holding here is inconsistent with several13

decisions by the Supreme Court, our Court, and our sister circuits limiting the14

9 Indeed, the determination that RFRA permits individual capacity suits leadslogically to the conclusion that it permits a damages remedy against thoseindividuals. An individual capacity suit that is confined to injunctive relief haslimited value; official capacity suits for injunctive relief already supply injunctiverelief against the governmental entity as a whole. As a result, plaintiffs willrarely, if ever, prefer to enjoin the conduct of a single officer. In contrast, as notedabove, suits seeking compensation from officers in their official capacity, being inessence suits against the state or federal government itself, are generally barredby sovereign immunity. Thus, individual capacity suits tend to be associatedwith damages remedies, and official capacity suits with injunctive relief.


Add. 34


35

recovery of money damages in suits under RFRA and RLUIPA. See Sossamon, 5631

U.S. 277;Washington v. Gonyea, 731 F.3d 143, 145 (2d Cir. 2013);Webman, 441 F.3d2

at 1026; Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 840 413

(9th Cir. 2012); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015), cert. denied4

sub nom. Davila v. Haynes, 136 S.Ct. 78 (2015). Our holding, however, is not5

inconsistent with these decisions, each of which is based upon animating6

principles that are inapplicable here.7

In Sossamon, the Supreme Court held that the phrase “appropriate relief”8

in RLUIPA does not permit the recovery of money damages against a state or9

state officers sued in their official capacities. 563 U.S. at 288. The Supreme Court10

based its conclusion on considerations relating to state sovereign immunity.11

Namely, when determining whether an act of Congress waives sovereign12

immunity, the Court stated that such language “will be strictly construed, in13

terms of scope, in favor of the sovereign.” Id. at 285. Therefore, in that context,14

the Court’s relevant inquiry was the opposite of the one at issue here: “not15

whether Congress has given clear direction that it intends to exclude a damages16

remedy, see Franklin, [503 U.S.] at 70 71, but whether Congress ha[d] given clear17

direction that it intend[ed] to include a damages remedy.” Sossamon, 563 U.S. at18


Add. 35


36

289 (emphasis in original). Because the phrase “appropriate relief” in that context1

did not “unequivocally express[]” Congress’s intent to waive state sovereign2

immunity, the Supreme Court held that RLUIPA did not permit a suit for3

monetary damages against a state or state officials sued in their official4

capacities. Id. at 288.5

Like Sossamon, several of our sister circuits have determined that RFRA’s6

prescription for “appropriate relief” does not include damages against the7

federal government or its officers acting in their official capacities. See Webman,8

441 F.3d at 1026; Oklevueha Native Am. Church of Hawaii, 676 F.3d at 840 41; Davila9

777 F.3d at 1210. These courts so held because, in the context of suits against the10

federal government and its officers in their official capacities, the phrase11

“appropriate relief” similarly does not express an unambiguous waiver of the12

federal government’s sovereign immunity. See, e.g., Davila, 777 F.3d at 121013

(“Congress did not unequivocally waive its sovereign immunity in passing14

RFRA. RFRA does not therefore authorize suits for money damages against15

officers in their official capacities.”).16

The animating principles underlying Sossamon, Webman, Oklevueha Native17

Am. Church of Hawaii, and Davila, however, are absent from the instant case. Each18


Add. 36


37

of those cases involved a question of whether “appropriate relief” under RFRA1

or RLUIPA permitted suits against a sovereign or its officers in their official2

capacities. Although the Supreme Court and our sister circuits declined to3

construe the phrase “appropriate relief” to amount to an explicit waiver of4

sovereign immunity, Plaintiffs’ individual capacity suits against Defendants5

present no sovereign immunity concerns here. This is so because Plaintiffs seek6

monetary relief from those officers personally, not from the federal or state7

government. See Hafer, 502 U.S. at 25 28; Blackburn, 608 F.2d at 923. As we stated8

above, “Congress need not waive sovereign immunity to permit an individual9

capacity suit against a federal official.” Patel, 125 F. Supp.3d at 54 (citing Larson,10

337 U.S. at 686 87).11

Indeed, as the district court below acknowledged in its discussion of12

precedent, “[b]ecause these decisions . . . are grounded in principles of sovereign13

immunity, they are of limited assistance in addressing the question of damages14

against those who ‘come to court as individuals.’” Tanvir, 128 F. Supp.3d at 77515

n. 19 (quoting Hafer, 502 U.S. at 27). We agree and similarly find those cases16

inapplicable here where sovereign immunity concerns are not at play.17


Add. 37


38

Furthermore, our holding that RFRA permits the recovery of money1

damages against federal officers sued in their individual capacities does not2

conflict with our decision inWashington v. Gonyea. In Gonyea, we held that the3

phrase “appropriate relief” in RLUIPA prohibits both the recovery of money4

damages from state officers sued in their official capacities and in their individual5

capacities. Gonyea, 731 F.3d at 145. The conclusion that RLUIPA does not permit6

the recovery of money damages from state officers sued in their official capacities7

follows directly from the Supreme Court’s decision in Sossamon. 563 U.S. at 2938

(“States, in accepting federal funding, do not consent to waive their sovereign9

immunity to private suits for money damages under RLUIPA because no statute10

expressly and unequivocally includes such a waiver.”).11

Gonyea’s conclusion that RLUIPA does not permit the recovery of money12

damages from state officers sued in their individual capacities follows from13

another source: the constitutional basis upon which Congress relied in enacting14

RLUIPA. RLUIPA “was enacted pursuant to Congress’ spending power, which15

allows the imposition of conditions, such as individual liability, only on those16

parties actually receiving state funds.” 731 F.3d at 145 (citation omitted).17

“Applying restrictions created pursuant to the Spending Clause to persons or18


Add. 38


39

entities other than the recipients of the federal funds at issue would have the1

effect of binding non parties to the terms of the spending contract.” Patel, 125 F.2

Supp.3d at 52 (internal quotation marks omitted). “Indeed, to decide otherwise3

would create liability on the basis of a law never enacted by a sovereign with the4

power to affect the individual rights at issue—i.e., the state receiving the federal5

funds—and this would raise serious questions regarding whether Congress had6

exceeded its authority under the Spending Clause.” Gonyea, 731 F.3d at 1467

(emphasis in original; citations and internal punctuation omitted). As a result, in8

Gonyea, we held that RLUIPA did not permit a plaintiff to sue state officials in9

their individual capacities because the state prison, and not the state prison10

officials, was the ‘contracting party,’ which had “agree[d] to be amenable to suit11

as a condition to received funds.” Id. at 145.12

RFRA, by contrast, was enacted pursuant to Section 5 of the Fourteenth13

Amendment and the Necessary and Proper Clause. Hankins v. Lyght, 441 F.3d 96,14

105 (2d Cir. 2006). RFRA’s constitutional bases thus “do[] not implicate the same15

concerns” as those relevant to RLUIPA and the Spending Clause, which we16

addressed in Gonyea.Mack, 839 F.3d at 303 04; see also Tanvir, 128 F. Supp. 3d at17

775 n. 19. Because the animating principles underlying our decision in Gonyea are18


Add. 39


40

absent in the instant case, our holding here—that RFRA permits the recovery of1

money damages from federal officials sued in their individual capacities—and2

our holding in Gonyea—that RLUIPA does not permit the recovery of money3

damages from state officials sued in their individual capacities—are entirely4

consistent.5

Defendants complain that our holding in this case makes the phrase6

“appropriate relief” in RFRA into a chameleon. See United States v. Santos, 5537

U.S. 507, 522 (2008) (plurality op.) (stating that the Supreme Court has “forcefully8

rejected” the “interpretive contortion” of “giving the same word, in the same9

statutory provision, different meanings in different factual contexts”) (emphasis10

omitted). But that is incorrect. To the contrary, we are tasked with interpreting11

the meaning of RFRA’s phrase “appropriate relief,” an inquiry that is “inherently12

context dependent.” Sossamon, 563 U.S. at 286. Indeed, the word ‘appropriate’13

does not change its meaning; rather, the question addressed in each of these14

various contexts is what sort of relief is ‘appropriate’ in that particular situation.15

And, since the relevant animating principles vary appreciably across legal16

contexts, the meaning of ‘appropriate’ may well take on different meanings in17

different settings.18


Add. 40


41

At the time of the district court decision below, neither the Supreme Court1

nor any of our sister circuits had squarely addressed whether RFRA provides for2

money damages.10 Since then, however, the Third Circuit has held, as we do3

now, that RFRA authorizes individual capacity suits against federal officers for4

money damages. See Mack, 839 F.3d at 304.5

InMack, the Third Circuit reached that holding by applying the Franklin6

presumption—that any “appropriate relief” is available unless Congress7

expressly indicates otherwise. Id. at 302 03. The court found that its conclusion8

was buttressed by the fact that, in enacting RFRA, Congress used the exact9

language (“appropriate relief”) discussed by the Supreme Court in Franklin. Id. at10

303. “Congress enacted RFRA one year after Franklinwas decided and was11

therefore well aware that ‘appropriate relief’ means what it says, and that,12

10 The Seventh Circuit has previously decided that a plaintiff was entitled to suestate prison officials in their individual capacities for damages.Mack v. O’Leary,80 F.3d 1175, 1177 (7th Cir. 1996) (Posner, J.), vacated on other grounds, 522 U.S. 801(1997). Before reaching that conclusion, the court noted that RFRA “says nothingabout remedies except that a person whose rights under the Act are violated‘may assert that violation as a claim or defense in a judicial proceeding andobtain appropriate relief against a government.’” Id. (emphasis in original)(quoting 42 U.S.C. § 2000bb 1(c)). The court also acknowledged that thedefendants in that case did not contest the availability of damages as a remedyunder RFRA. Id.


Add. 41


42

without expressly stating otherwise, all appropriate relief would be available.”1

Id. at 303.11 In light of RFRA’s purpose of providing broad religious liberty2

protections, the Third Circuit concluded that it saw “no reason why a suit for3

money damages against a government official whose conduct violates RFRA4

would be inconsistent with” that purpose. Id.125

We agree with the Third Circuit’s reasoning inMack and adopt it here. In6

particular, we reject a strained reading of “appropriate relief” that would be less7

generous to plaintiffs under RFRA than under implied rights of action, and thus8

would undermine Congress’s intention to “provide broad religious liberty9

protections.” Id. Further, as one district court has pointed out, “[i]t seems10

11 Of note, the Third Circuit inMack stated that “[b]ecause Mack brings his RFRAclaim against only [two federal officers] in their individual capacities, the federalgovernment’s sovereign immunity to suits for damages is irrelevant here.” Id. at302 n. 92.12 The court inMack drew further support from the similarities between RFRAand 42 U.S.C. § 1983, which has long permitted money damages against stateofficials sued in their individual capacities. Id. By comparison, the courtdistinguished its earlier decision in Sharp v. Johnson, 669 F.3d 144, 154 55 (3d Cir.2012), in which it found that RLUIPA did not provide for money damagesagainst state officials sued in their individual capacities, by pointing out howCongress’s constitutional authorization for RLUIPA (Commerce Clause andSpending Clause) poses concerns not relevant to its analysis of RFRA (Necessaryand Proper Clause and Section 5 of Fourteenth Amendment).


Add. 42


43

unlikely that Congress would restrict the kind of remedies available to plaintiffs1

who challenge free exercise violations in the same statute it passed to elevate the2

kind of scrutiny to which such challenges would be entitled.” Jama, 343 F. Supp.2d3

at 374 75 (emphasis in original). Given that Congress has not specified that4

individual capacity suits for money damages should be barred under RFRA, and5

that, unlike in the RLIUPA context, no constitutional conflict prevents their6

application, we find that such suits are wholly appropriate under this statutory7

scheme.8

ii. The Franklin Presumption Is Not Confined to Statutes with9

Implied Rights of Action10

11

The district court below found that the Franklin presumption did not apply12

in the instant case. Tanvir, 128 F. Supp.3d at 779. In making that determination,13

the district court noted that Franklin “required the Supreme Court to interpret the14

scope of an implied statutory right of action.” Id. (emphasis in original). By15

comparison, Congress created an express private right of action in RFRA. See 4216

U.S.C. § 2000bb 1(c). The district court held that “the Franklin presumption is17

thus inapplicable” to RFRA “and the meaning of ‘appropriate relief’ must be18

discerned using the traditional tools of statutory construction.” Tanvir, 128 F.19


Add. 43


44

Supp.3d at 779. Applying those tools, the district court discerned that Congress1

lacked an intent to permit money damages under RFRA through its use of the2

phrase “appropriate relief.” Id.3

Although Franklin indeed considered the availability of damages under a4

statute with an implied private right of action, we are not convinced that the5

district court’s distinction is correct. The logical inference, in our view, runs the6

other way: one would expect a court to be more cautious about expanding the7

scope of remedies available for a private right of action that is not explicitly8

provided by Congress, than in determining what remedies are available for a9

right of action that Congress has expressly created. This is particularly true10

where, in creating the right of action, Congress has also explicitly authorized11

courts to provide any “appropriate relief,” without limitation. In fact, the Court12

in Franklin recounted its own case, Kendall v. United States ex rel. Stokes, in which13

it held that damages were available under a statute with an explicit private right14

of action where that statute failed to specify the remedies available. 37 U.S. (1215

Pet) 524, 624 (1838) (stating that to find otherwise would present “a monstrous16

absurdity in a well organized government, that there should be no remedy,17

although a clear and undeniable right should be shown to exist”).18


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45

As discussed above, the Third Circuit inMack applied the Franklin1

presumption in determining that RFRA’s express private right of action2

permitted the recovery of money damages against individuals sued in their3

individual capacities.Mack, 839 F.3d at 303 04; see also Patel, 125 F. Supp.3d at 534

n. 1 (“[T]he mere mention of remedies [in RFRA] does not rebut the [Franklin]5

presumption;” rather, the phrase “appropriate relief” “does nothing more than6

authorize what courts applying Franklin presume, and it falls far short of an7

express indication that damages are prohibited.”) (internal punctuation omitted).8

Other courts have applied the Franklin presumption in the context of statutes9

containing express private rights of action. See, e.g., Reich v. Cambridgeport Air.10

Sys., 26 F.3d 1187, 1191 (1st Cir. 1994) (applying Franklin presumption to11

conclude that “all appropriate relief” under Section 11 of the Occupational Safety12

and Health Act included money damages); Ditulio v. Boehm, 662 F.3d 1091, 109813

(9th Cir. 2011) (holding that punitive damages were available under the14

Trafficking Victims Protection Act, which permits the recovery of “damages,”15

because the court “follow[s] the ‘general rule’ that we should award ‘any16

appropriate relief in a cognizable cause of action brought pursuant to a federal17

statute’” (quoting Franklin, 503 U.S. at 71)).18


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46

We disagree with the district court’s decision to limit the application of the1

Franklin presumption in this case. The Franklin presumption need not be confined2

to only those cases interpreting the remedies available under an implied private3

right of action. To the contrary, “[t]he same presumption applies here—more so,4

we think, because Congress expressly stated that a claimant may obtain5

‘appropriate relief’ against a government—the exact language used in Franklin.”6

Mack, 839 F.3d at 303. Thus, we reject the district court’s position that the Franklin7

presumption does not apply in interpreting the meaning of “appropriate relief”8

under RFRA.9

iii. Legislative History10

Although we conclude that the Franklin presumption extends to express11

private rights of action, the presumption can be rebutted. Pursuant to Franklin,12

“we presume the availability of all appropriate remedies unless Congress has13

expressly indicated otherwise,” 503 U.S. at 66, and our analysis of whether14

Congress intended to limit the application of this general principle will vary15

depending on whether the right of action is implied or explicit.16

Where a statutory cause of action is implied, it is futile to resort to the17

statutory text and legislative history, because Congress usually has not spoken18


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47

about remedies applicable to a right that the federal courts, rather than Congress,1

created. See id. at 71 (“[T]he usual recourse to statutory text and legislative2

history. . . necessarily will not enlighten our analysis.”). Accordingly, our3

analysis of Congress’s intent in such contexts “is not basically a matter of4

statutory construction,” but rather a matter of “evaluat[ing] the state of the law5

when the Legislature passed [the statute].” Id. (emphasis in original).6

On the other hand, where the private right of action is express, the7

statutory text and legislative history may enlighten our understanding. The8

question thus becomes whether these interpretative sources exhibit a “clear9

direction” by Congress that the federal courts lack “the power to award any10

appropriate relief in a cognizable cause of action brought pursuant to a11

federal statute.” Id. at 70 71. We conclude that neither the statutory text nor the12

legislative history provides such a clear direction here.13

As noted above, the district court supported its conclusion in part by14

referencing legislative history indicating that RFRA was intended solely to15

reverse the Supreme Court’s decision in Smith. See Tanvir, 128 F. Supp. 3d at 77816

80. For instance, the Senate Committee Report, which discusses the background17

and purpose for RFRA, states that “the purpose of this act is only to overturn the18


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48

Supreme Court’s decision in Smith,” S. Rep. No. 103 111, at 12 (1993), and by1

doing so restore the compelling interest test to free exercise claims, id. at 8. The2

House Committee Report similarly focuses on the effect of the Smith decision and3

the resulting outcome that free exercise claims receive the “the lowest level of4

scrutiny employed by the courts.” H.R. Rep. No. 103 88, at 5 6 (1993).5

The Senate and House Committee Reports, however, are not conclusive as6

to the meaning of RFRA’s statutory text. The statutory text of RFRA reflects a7

dual purpose: “to restore the compelling interest test” applied by the Supreme8

Court in free exercise cases before Smith, and “to provide a claim or defense to9

persons whose religious exercise is substantially burdened by government.” 4210

U.S.C. § 2000bb(b). In accomplishing the latter purpose, Congress also codified a11

statutory cause of action to bring claims against officials in their individual12

capacities—a type of action never explicitly authorized (or foreclosed) by the13

Supreme Court’s free exercise jurisprudence. Congress accordingly went beyond14

merely restoring the compelling interest test. It removed ambiguity about who15

could be held liable for violations of religious exercise.1316

13 The Supreme Court also has indicated that RFRA’s least restrictive meansrequirement may well have gone beyond what was required by its pre Smith


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49

The legislative history further fails to provide an “express[]” and “clear1

direction” that Congress intended to preclude litigants from seeking damages in2

these individual capacity suits. Franklin, 503 U.S. at 66, 70. To be sure, the House3

and Senate Committee Reports each contain similar language stating, “[t]o be4

absolutely clear, the bill does not expand, contract or alter the ability of a5

claimant to obtain relief in a manner consistent with free exercise jurisprudence,6

including Supreme Court jurisprudence, under the compelling governmental7

interest test prior to Smith.” H.R. Rep. No. 103 88, at 8; see also S. Rep. No. 1038

decisions. See City of Boerne, 521 U.S. at 509 (“[T]he least restrictive meansrequirement was not used in the pre Smith jurisprudence RFRA purported tocodify.”); see also Hobby Lobby, 134 S. Ct. at 2761 n. 3 (observing that City of Boernereflects an understanding that RFRA’s least restrictive means requirement“provided even broader protection for religious liberty than was available underthose [pre Smith] decisions”); id. at 2767 n. 18 (declining to decide whetherRFRA’s least restrictive means requirement in fact “went beyond what wasrequired by our pre Smith decisions”); id. at 2793 (Ginsburg, J., dissenting) (“Ourdecision in City of Boerne, it is true, states that the least restrictive meansrequirement was not used in the pre Smith jurisprudence RFRA purported tocodify. As just indicated, however, that statement does not accurately convey theCourt s pre Smith jurisprudence.”) (internal quotation marks and citationomitted). If RFRA’s least restrictive means requirement in fact went beyond preSmith jurisprudence, such an extension further supports our holding that RFRAprovides an individual damages remedy. We need not decide this dispute today,however, because our holding remains the same in light of RFRA’s statutory textand legislative history.


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50

111, at 12 (“To be absolutely clear, the act does not expand, contract or alter the1

ability of a claimant to obtain relief in a manner consistent with the Supreme2

Court[‘]s[] free exercise jurisprudence under the compelling governmental3

interest test prior to Smith.”). It does not follow, however, that Congress therefore4

intended to limit the remedies available for RFRA violations.5

As an initial matter, the broader legislative history shows that the House6

and Senate Committee Reports were not using the term “relief” to refer to7

remedies. Rather, the reports were concerned with claimants bringing particular8

causes of action. See generally Douglas Laycock & Oliver S. Thomas, Interpreting9

the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 236 39 (1994). During the10

House and Senate hearings, several religious and social organizations raised11

concerns that claimants would use RFRA to challenge restrictions on abortion,12

tax exemptions, and government funding for religious organizations.14 These13

14 See Religious Freedom Restoration Act of 1991: Hearings on HR. 2797 Before theSubcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 102dCong. 33 35, 40 43 (1992) (statement of Mark E. Chopko, Gen. Counsel, UnitedStates Catholic Conference); id. at 270 301 (statement of James Bopp, Jr., Gen.Counsel, National Right to Life Committee, Inc.); The Religious FreedomRestoration Act: Hearing on S. 2969 Before the Sen. Comm. on the Judiciary, 102dCong., 99 115 (1992) (statement of Mark E. Chopko, Gen. Counsel, United States


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51

concerns were sufficiently serious that several key Republican representatives1

withdrew their support for the bill and introduced legislation that explicitly2

prohibited claimants from using the statute to affect those issues. Id.; see alsoH.R.3

4040, 102d Cong. § 3(c)(2) (1991).4

RFRA’s lead sponsors subsequently agreed to compromise language in the5

House and Senate Committee Reports addressing these concerns, and made clear6

that the act “does not expand, contract or alter the ability of a claimant to obtain7

relief” in accordance with the federal courts’ free exercise jurisprudence. Laycock8

& Thomas, supra, at 236 39; see also S. Rep. No. 103 111, at 12; H.R. Rep, No. 1039

88, at 8. The reports accordingly stated that claims challenging abortion10

restrictions should be adjudicated pursuant to the Supreme Court’s decision in11

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and12

that the bill does “not change the law” determining whether religious13

organizations may receive public funding or enjoy tax exemptions. S. Rep. No.14

103 111, at 12; HR, Rep. No. 103 88, at 8. Taken in context, it is thus clear that15

Congress was not concerned with limiting plaintiffs’ available remedies under16

Catholic Conference); id. at 203 37 (statement of James Bopp, Jr., Gen. Counsel,National Right to Life Committee, Inc.).


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52

the act—it was concerned with preventing plaintiffs from pursuing certain1

causes of action.152

Moreover, even if the compromise language in the House and Senate3

Committee Reports could be read as excluding certain remedies from RFRA’s4

scope, it does not clearly indicate that Congress intended to exclude an5

individual damages remedy. As previously noted, the Senate Committee Report6

states that the act does not “alter the ability of a claimant to obtain relief in a7

manner consistent with the Supreme Courts’[] free exercise jurisprudence …8

prior to Smith.” S. Rep. No. 103 111, at 12. The Supreme Court, in turn, never9

ruled out the possibility of plaintiffs’ bringing individual damages claims for free10

exercise violations before Smith was decided. To the contrary, in Bivens v. Six11

15 The floor debate likewise confirms that Congress intended to limit the causesof action that could be brought under the statute. Representative Henry Hydestated that he had offered amendments to RFRA because he was concerned thatthe legislation would “create an independent statutory basis” for individuals tochallenge restrictions on abortion, social service programs operated by religiousinstitutions with public funds, and the tax exempt status of religious institutions.139 Cong. Rec. 103, 9682 (1993). Representative Hyde further stated that hisconcerns were “resolved either through explicit statutory changes or throughcommittee report language,” which “ma[de] clear” that “such claims are not theappropriate subject of litigation” under RFRA, and that the “bill does notexpand, contract, or alter the ability of a claimant to obtain relief” consistent withfree exercise jurisprudence prior to Smith. Id.


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Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the1

Supreme Court held that victims of Fourth Amendment violations could pursue2

individual damages claims against officials, and it extended this principle in3

Carlson v. Green, 446 U.S. 14, (1980), to permit individual damages claims for4

constitutional violations unless the defendants could show that Congress5

“provided an alternative remedy which it explicitly declared to be a substitute6

for recovery directly under the Constitution,” or there are “special factors7

counseling hesitation in the absence of affirmative action by Congress,” id. at 188

19 (emphasis omitted). It was therefore at least possible at the time that Congress9

passed RFRA that an individual damages claim would have been available for a10

free exercise violation. Given this potential, we cannot say that the Senate11

Committee Report expressly intended to exclude such a remedy when it stated12

that it did not intend to “expand” or “alter” claimants’ ability to obtain relief. S.13

Rep. No. 103 111, at 12.1614

16 To be sure, the Supreme Court has subsequently shown “caution towardextending Bivens remedies into any new context,” Corr. Servs. Corp. v. Malesko,534 U.S. 61, 74 (2001), and “[s]ince Carlson in 1980, the Supreme Court hasdeclined to extend the Bivens remedy in any new direction at all,” Arar v.Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009). This trend, however, was not clearlyapparent at the time of RFRA’s passage because the Court had recognized Bivens


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Furthermore, even if the Senate Committee Report could be read to limit1

RFRA’s remedies to those explicitly authorized by the Supreme Court prior to2

Smith, the approach of the House Committee Report is not necessarily so narrow.3

Unlike the Senate Committee Report, which authorizes relief “consistent with the4

Supreme Courts’[] free exercise jurisprudence,” S. Rep. No. 103 111, at 12, the5

House Committee Report authorizes relief so long as it is “consistent with free6

exercise jurisprudence, including Supreme Court jurisprudence,” H.R. Rep. No.7

103 88, at 8. The House Committee Report therefore appears to have8

contemplated providing a broad array of relief consistent not only with Supreme9

Court jurisprudence but that of the lower courts as well. We thus find it highly10

relevant that at the time of RFRA’s passage, several Courts of Appeals had held11

that plaintiffs could pursue individual damages claims for violations of their free12

claims in three instances and denied such claims in four. See id. at 571 72.Additionally, although the Supreme Court in Bush v. Lucas, 462 U.S. 367, 368(1983), held that federal employees could not bring Bivens claims against theirsuperiors, the decision was narrow, and based on federal employees’ existingaccess to “an elaborate remedial system” that protected their constitutionalrights, id. at 388. That remedial framework is not applicable here, because theplaintiffs are not federal employees. Moreover, even if the trend away fromextending Bivenswere obvious when RFRA was passed, it still falls short of theSupreme Court’s clearly foreclosing an individual damages remedy for freeexercise violations. We therefore conclude that it would not be a basis for findingthe Franklin presumption inapplicable here.


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exercise rights. See Caldwell v. Miller, 790 F.2d 589, 607 608 (7th Cir. 1986); Jihaad v.1

O Brien, 645 F.2d 556, 558 n. 1 (6th Cir. 1981); see also Paton v. La Prade, 524 F.2d2

862, 870 (3d Cir. 1975) (holding that Bivens claims are broadly available for First3

Amendment violations); Scott v. Rosenberg, 702 F.2d 1263, 1271 (9th Cir. 1983)4

(assuming, without deciding, that the plaintiff could recover damages if his free5

exercise rights had been violated).6

Accordingly, we do not believe that the legislative history evinces a clear7

and express indication that Congress intended to exclude individual damages8

claims from the scope of RFRA’s available relief, and we therefore conclude that9

the Franklin presumption is applicable.10

VI. Qualified Immunity11

12

Having held that RFRA authorizes a plaintiff to sue federal officers in their13

individual capacities for money damages, we consider whether those officers14

should be shielded by qualified immunity.15

At the panel’s request, the parties submitted supplemental briefing16

addressing two questions: (1) “whether, assuming arguendo that RFRA authorizes17

suits against officers in their individual capacities, [Defendants] would be18

entitled to qualified immunity,” and (2) “whether Ziglar v. Abbasi, No. 15 1358,19


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2017 WL 2621317 (June 19, 2017), applies in any relevant way to this question or1

the other questions presented in this appeal.” Order, Tanvir v. Tanzin, No. 162

1176 (2d Cir. 2017), Dkt. No. 83; see also Post Argument Ltr. Brs., Tanvir v. Tanzin,3

No. 16 1176 (2d Cir. 2017), Dkt Nos. 89 90, 93 94.4

We are sensitive to the notion that qualified immunity should be resolved5

“at the earliest possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 2276

(1991). Indeed, we have, in some circumstances, “permitted the [qualified7

immunity] defense to be successfully asserted in a Rule 12(b)(6) motion.”8

McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004). Nevertheless, as a general9

matter, “[i]t is our practice in this Circuit when a district court fails to address the10

qualified immunity defense to remand for such a ruling.” Eng v. Coughlin, 85811

F.2d 889, 895 (2d Cir. 1988) (citing Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir.12

1988)).13

Here, the district court decision below did not address whether14

Defendants were entitled to qualified immunity. Similarly, until the panel15

prompted the parties at oral argument and in its post argument order, neither16

side fully addressed or briefed the issue of qualified immunity on appeal. In the17

absence of a more developed record, we decline to address in the first instance18


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whether the Defendants are entitled to qualified immunity. We remand to the1

district court to make such determination in the first instance.2

3

4

CONCLUSION5

6

For the foregoing reasons, we reverse the judgment of the district court7

and remand for further proceedings.8


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76004 SDNY cv Tanvir Cv...16-1176 United States Court of Appeals FOR THE SECOND CIRCUIT Docket No....

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