Supreme Court Opens Federal Officials to Damages in Their Individual Capacity

The Supreme Court recently held that federal agents who placed practicing Muslims on the No Fly List can be sued for damages in their individual capacity.

In Tanzin v Tanvir (U.S. Supreme Court No. 19-71, 12/10/20), the question before the Court was whether under RFRA (the Religious Freedom Restoration Act of 1993) plaintiffs had a right to sue federal officials in their individual capacity for alleged violations of the law. 

The RFRA was passed in 1993 and prohibits the Federal Government from placing “substantial burdens” on religious exercise without a compelling interest. Anyone whose religious freedom is unlawfully burdened may seek “appropriate relief.” 

The suit was brought by three practicing Muslims who asserted that agents of the FBI asked them to serve as informants against their Muslim communities. When they refused, they claim the FBI agents placed them on the No Fly List in retaliation, and this action cost them for airline tickets they could not use and income from jobs they lost. They sued agents in their official capacity asking the district court to remove them from the list. They also sued agents in their individual capacities asking for money damages. 

About a year later the Department of Homeland Security (DHS) took them off the No Fly List thus mooting the claim for injunctive relief. At that point the District Court dismissed their claims against both the Government and against agents in their individual capacity, holding that RFRA does not allow such claims. The Second Circuit Court of Appeals reversed, interpreting RFRA to permit claims for monetary damages against individual agents. The Government petitioned the U.S. Supreme Court to overturn the Circuit Court.

The issue before the Supreme Court was whether relief under RFRA includes money damages against individual federal officials. The Government argued that any relief must be against the Government and not the individual officials. Justice Thomas wrote the 8-0 unanimous opinion (Justice Barrett took no part in the case). In short, the court rejected the Government’s argument and held that it is clear that “appropriate relief” under RFRA includes money damage claims against Government officials in their individual capacities. 

As Justice Thomas opines, “To the extent the Government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so. Congress is best suited to create such a policy. Our task is simply to interpret the law as an ordinary person would. Although background presumptions can inform the understanding of a word or phrase, those presumptions must exist at the time of enactment. We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago.”

Most federal officials already face the potential of money damages if they are successfully accused of violating constitutional rights in the course of performing their duties. This is the so-called “constitutional tort.” Add to this the potential of being sued for money damages if they interfere unduly with exercise of religious rights as prohibited by RFRA. It remains to be seen whether Congress will address this situation to roll back the possibility of individual damages as the Court has squarely placed this back on the legislature.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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