Supreme Court Puts Agents on Financial Hook for Religious Freedom Violations

US Supreme Court / Getty Images
December 10, 2020

The Supreme Court said Thursday that federal agents can be forced to pay out of their own pocket for religious liberty violations.

The decision allows three Muslim men to seek monetary damages from FBI agents who allegedly placed them on the no-fly list as retaliation for turning down requests to become informants. Justice Clarence Thomas delivered the opinion for a unanimous Court.

"This is a good decision that makes it easier to hold the government accountable when it violates Americans' religious liberties," said Lori Windham of the Becket Fund for Religious Liberty, which filed a brief supporting the plaintiffs.

The plaintiffs in Thursday's case, Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari, are Muslim citizens or green card holders who say FBI special agents attempted to recruit them as informants in the New York City area and abroad. For example, Algibhah alleges that agents asked him to attend particular mosques, behave like an extremist, and engage on online Islamic forums.

All three men refused, citing their Muslim faith. They said informing amounts to bearing false witness, worshiping under false pretenses, and betraying the trust of fellow Muslims. A short time later, the agents added them to the no-fly list.

"The agents relied upon what they assumed would be the irresistible coercion of the no fly list—causing each [plaintiff] to be placed on the list and then either threatening to keep him on the list for refusing to accede to the FBI's demands, or offering the incentive of being removed from the list in exchange for services as an FBI informant," the plaintiffs' lawyers wrote in a brief to the justices.

In turn, the plaintiffs filed a lawsuit under the Religious Freedom Restoration Act (RFRA). Though their names have since been removed from the list, they are still seeking monetary compensation directly from the agents responsible. The men want to recoup the cost of wasted plane tickets or job opportunities lost due to their inability to travel. Tanvir couldn't obtain a full refund from his airline after he had to cancel a trip to visit his ailing mother in Pakistan.

The Trump administration opposed the plaintiffs before the justices. In court papers, the Justice Department said the plaintiffs can only sue the agents in their official capacities, meaning the government would cover the cost of any financial judgment against them. RFRA says plaintiffs can seek damages "against a government," not individuals, the DOJ argued. They also warned that putting agents on the hook for their mistakes or abuses would badly affect split-second national security decisions.

In his opinion for the Court, Thomas said RFRA's text creates an expansive definition of "government" that covers individual officials.

"A 'government,' under RFRA, extends beyond the term's plain meaning to include officials," Thomas wrote. "And the term 'official' does not refer solely to an office, but rather to the actual person 'who is invested with an office.'"

The decision also noted that qualified immunity is available as a defense against such lawsuits, which could blunt the practical impact of Thursday's decision.

The case is No. 19-71 Tanzin v. Tanvir.

Tanzin v. Tanvir Supreme Co... by Washington Free Beacon