we'll hear argument next in case nine hundred and seventy one tangent versus tanveer for appropriate relief against the government that nugent's against an individual employee and his personal capacity are not really against the government at the same time whereas today is brought against the federal government including against a federal official  which adopted a broad bar to tort suits against federal employees to prevent a chilling effect for the executive branch from the prospect of personal liability and protracted litigation for its employees congress is only very rarely departed from that general rule and same time significantly apart from the established remedial scheme this court should not now read into the text of reference which provides only for relief against the government a sweeping new given style cause of action against federal employees and their present capacity for damages mr needler you rely in your in your brief on a clear statement rule about good liability that's at issue here but what it what is your best case for the proposition that a clear statement rule applies when the question is whether individuals can be liable in their personal capacity rather than in an official capacity done and because of respect for the executive branch congress and not lightly be taken to have intruded upon the executive branch by creating damage remedies against federal employees who are charged with  well suited to that sort of situation because an employee is in the position of having to decide maybe on the spot whether to create an exemption from the generally applicable rule or statute he's drugs with implementing i think i meant to anyway if i didn't ask for a precedent and i didn't hear a case name and your answer i'm sorry no i i don't think the court has specifically addressed it but it has done something analogous with respect to statutes against the state and the lower courts of uniformly not apply not allow dunnage actions against state employees under a loop as well and we think the respect for the executive branch that is reflected in the you chief justice mr kneedler let's assume you take this out of the context of the government and you simply have a private cause of action that provides for was dealing with a situation where the cause of action itself was implied by the court at a time when the courts were allowed to create cause of action under their general jurisdiction we say we include the statute authorizes money damages with all the other language remaining the same with that be enough   there would be i think a pretty good argument that it would be applicable to employees who are included in the government but here we are here we have the opposite no clear statement imposing damages against the government and  government officials are covered only to the extent they're included within the government expense or part of the government so historically and just curious have suits against postmasters or custom agents to specially appropriate under reference thank you com so justice brier one question what is your best argument your opinion against what i think is the other side's argument we're looking at the statute the relevant words since government is a defined term the statute authorizes appropriate relief against any official or other person acting under color of law or the relevant words and there is lots of cases that many cases that appropriate relief can in appropriate cases include monetary relief of course if the person has sovereign immunity of some kind and you can't sue them that's us and the but there is no sovereign immunity here and of case all right now what's your best and then the exception to that is if government demonstrates that application of the burden to the person that furthers the compelling interest all the way through to the statute speaks to the government government is the operative word it's reading the term official consistent with that in the definition we think that official is official capacity and again officials are are included only because they are included as part of the government and so they can fire w riffraff and be sued under referable only in so far as they are included within the government in their official capacity and there is no money damages against the government or its constituent official but also other person acting under color of law and you say that a person who is exercising a private entity or a private person exercising government authority would constitute a person acting under color of law such as the operator of a private company operating a prison so if a person acting under a person acting under color of law who is not a government official can only be sued in a personal capacity and if that person can be sued in a personal capacity why should we in that an official can only be sued in an official capacity and not a personal capacity or said to the basic point is that the statute calls for injunctive relief not damages and when you have refers to what government can do government shall not substantially burden and that it that that means that this private person would be acting in a governmentally conferred capacity in that sense an official capacity or or the functional equivalent of an official capacity for a government officer and then if such an entity institute we think it is likely likewise sued in the parallel official capacity that such a private person would have by the only proper relief against the government and one that one other question respondent emphasizes the fact that if it if it prevails of federal officials or soon in a personal capacity would be able to assert a defense of qualified immunity if if would if that is right if we say that in the opinion how will the federal government be harmed well qualified immunity is not i read the briefs on both sides each of you rely on legislative history to some extent and i know some of my colleagues don't believe in doing that but i assume humor me please you don't have to make a disclaimer about  e one of the things that concerns me greatly is that this guy was very concerned as congress was with the many families whose loved ones were being subjected to autopsies in violation of their religious beliefs and in fact there was a lot of testimony before congress about the fact that injunctive relief would not help those families so if that was one of the concerns of this legislation as it is many other actions by government officials that might violate religious beliefs why do you think congress would have been tended to preclude money damages against individual actions that violated religious  isn't the overall thrust to give the cause of action applying to remedy an action stated purpose of the act under the terms of the act why would congress take away from appropriate relief the only relief that could help them take from the bronx and if they are right i don't think and i don't think it's a matter of taking away if there was some room remedy available under some other scheme under nine hundred and eighty and i think nobody disputes that prior to smith private citizens could seek damages under nine hundred and eighty three against state and local officials in their personal capacity for violating the free exercise official or employer person acting under color of law so we think that a pro answer would follow so doesn't that seem odd to you mr nadler because now you're saying that congress passed this law that actually contained fewer remedies against state and local officials send the priest molested and i thought that the whole point of reference was essentially to expand protection for religious liberty now you're saying  i am a strong struggling with the language of the definitional provision that's most immediately before us as i understand it the government has agreed albeit on page forty one hundred and forty two dollars in footnote six  dollars of its brief that the phrase other person acting under color of law does permit suits for damages against private persons like the government contractor is that  right ok and if that's the case why wouldn't the same be true of fishel the last antecedent that that parent's ethical clause appears to modify i understand the government's argument that department agencies the earlier in in the line but of course none of those involves an individual who could even possibly be sued in individual capacity the only one that might is official and that's the one that's right before the modifying clause in the parent that ickle me with that you know when i said that the prison operator hine a contractor can be subject to suit if one uses the phrase personal of the statute but the sort of relief that is available that would be available against the government is only injunctive relief and because an official that's like an agency and also a contractor is included in the definition of other members with the operative term in the statute and the sort of relief available against the government mr nadler i'm sorry i just wish to redirect you back to the question which is as i understood it the government agrees that private injunctive relief and has to go so that that has nothing to do with the definitional phrase that argument as i understand it must hinge on on the word appropriate is that right well i think both both inform that but i don't i it does it does tie to the definition and this lay the operative term is government and then the definition is what's included in government but but but that definitional section doesn't speak to the nature of relief at all you agree  that i know i think and i think it does because when well i mean not in so many words but like all right sore back to appropriate and for there i guess i just want to follow up quickly on on justice briar's question which is i understand that back in the day when there were forms of action they came with limited kinds of relief but with the merger of law and equity some time ago courts have been allowed to provide  any kind of relief available appropriate to the circumstances and i don't think the government's arguing that congress meant to ever allow or might allow inappropriate relief to the circumstances so how does that word carry all the way you want  damages i also want to say that our point is not just limited to appropriate it's also limited to government this court has said that the meaning of the definitional phrase can take can be informed by the turn of being defined and here the term that's being defined it's government which we think lends to work to the conclusion that official means official and any person in the relief section thank you justice kavanagh thank you mr chief justice good morning mr kneedler in thinking about what the text means here look at the words but also look at the words that aren't there and this is a relatively short and heavily focused upon statute by congress at the time and when it says appropriate relief it does not of course a appropriate injunctive relief and it's hard to imagine that that didn't escape the attention of the members of congress who are focused on this w you say in response to that argument about the missing words after appropriate that would have limited it in the way that justice course which was just asking about as well why i think the the missing words as part of the government for purposes of this statute both the substantive provision and the remedial provision and also tellingly the provision that requires the government to demonstrate a compelling interest if there's operation and so that it's the government that should be coming forward with a compelling interest for example and the government that violates statute and therefore the government and relief appropriate to the government we think all the pertinent factors to look at here strongly indicate that for some time excess actions are not available the text is clear providing for relief only against the government which doesn't include monetary pannikins the context we think is significant because suits against the government for government employees for president tadic is only rarely been permitted the only time that they would have been permitted were and would have been under bends and this court has performed on mongan jewish people violation of their religious beliefs those were consummated injuries i'd only damages could remedy that petitioners interpretation of riffraff leave those families with no claim and there are other situations where  the only appropriate relief jewish student in a d c school who is compelled by a gym teacher to wear immodest clothing or a federal inmate whose hand annotated bible is destroyed by god actions would be useless against these onetime harms even damages as the only remedy to be sure such cases are hard to win all fight immunity will shield all but those who defy clearly established wall but there is no basis for categorically excluding damages where they are warranted and essential to providing other agents remain free to repeat what they did here was referring to were challenged in court and then back off the justice department's office of legal counsel concluded for the op to refresh passage of damages are available in personal capacity  what under the department's current interpretation this court would have to read appropriate relief i mean appropriate equitable relief although congress did not include that modifier as it did in a recess for example the court would have to hold that both the term official and the phrase othe r person acting under color of law exclude personal capacity suit although congress and acted no such limitation and although there is no such thing as an official capacity suit against a private person the court should not diminish by taking away a c congress provided i welcome your question counsel would you still have argument under the definition provision here if the parents article language wasn't in there if if the definitional provision and refer only stated official without including or other person acting under color of law then yes we would still have a claim because the time official using no surer th remote just statutory interpretation that the court is employed the ordinary meaning of the term official embraces both personal capacity soon as well as official capacity because of course an official is a person and a person can be sued personally and when that person happens official it can be sued in an official capacity as well well that's good just to interrupt you briefly there i think the argument against that again putting the parents article to one side is that the term being defined is the government and the list of entities you have there leading up to official are all d governmental entities branch department agency instrumentality so i think again without the parents article it's almost there's a very compelling case for the idea that the official there is subject to suit in his official capacity or your honor respectfully the real defining trait shared by all the words in the list is that these are all the ways in which government exercises power and might violate so you know it includes collective entities as well as individual official the common denominator here is not that they're all only capable of being sued for injunctive relief no more than it is that they're all collective entities an official under its ordinary dictionary meaning is individual person who holds an office and as a person they can be sued personally because they happen to be an official you can also be sued an official capacity that such a tory term races both possibilities and congress even though it knows how to exclude personal capacity since it did that in the i think that the two statutory examples you gave are pretty obscure if that's the strong basis you have for congress knowing how to make that distinction across the board what were they again the  refers to a civil action in which a defendant is an official acting in an official capacity and sort of food personal capacity to see your pollution act and either only two examples also says you know does not authorize a cause of action in a federal not there is any sort of mens rea a requirement and these cases and whether or not the officials have to intend to burden someone's free exercise rights  the motion to dismiss qualified immunity the qualified immunity defense but they made up a motion to dismiss a judge justice alito said they actually did present that defense and they will be able to argue not only that there was no burden that the burden was  insubstantial they'd be able to argue that there was a compelling government interest and they'd be able to say that whatever they did was the least restrictive mean and had petitioners accepted rematch from the nd circuit district court those are precisely the questions that would have been adjudicated on  you justice pryor i have one question about one of your opponent's arguments look at the phrase person acting under color of law this whole statute is really an absolute to put into statutory form a certain kind of constitutional interpretation that smith in fact rejected and there was a lot of concern in congress there would have been no personal action if they had maintained the older interpretation of the st amendment so why would congress want to have the personal action here when they never could have had it if what congress would have thought was the right view of the religious free exercise clause had been maintained in the constitution in other words this is like a constitutional statute congress with riffraff went beyond the constitutional baseline it did something more than merely restore free exercise claims as they existed under jurisprudence priest the court said that clearly and though the statute would authorize it would say that a person may assert that a via a claim or defense in a judicial proceeding and obtain relief against the government wouldn't talk about appropriate relief would that make a where you know the court of appeal of knowledge that damages are available remand for the turn a determination of appropriate relief including damages so i think you know without the phrase appropriate which he speaks the sort of wide discretion and the familiar traditional exercise species or combination of declaratory injunctive and monetary relief might be appropriate in any given case so that for the world who's exercising who is to exercise this discretion could the district court in in your case or in any other case say in the exercise of my discretion i think that damages should not be available in a case like this and therefore i'm not going to allow the jury i'm not going to submit that question to the jury punitive damages would be appropriate but that would be on a case by case and not a categorical basis there is no categorical who bases judicially exclude damages under this statute allows for appropriate relief without limitation allows for that relief against officials or other persons without limitations official capacity only and so this court and other courts should honor the statute that congress actually enacted and of course you know the defendants here are the petitioners they are individuals but they come to argue that you haven't identified any statute in which the phrase appropriate relief was interpreted to include a damages remedy against federal officials absent some extra text making to consider the question or because there just aren't that many statutes that authorize appropriate relief against federal government very ambitious goal a congress had to regulate a number of federal state and local actors and it did so with the most practical language it could think of if for example congress had said something along the lines of appropriate relief including money damages well that could have been mistaken for an intention of sovereign immunity of states and the federal government against abijah and no one contends that that was congress's goal w and so with appropriate relief against the government as defined in the statute congress chose the most practical terms to achieve its ambitious purpose i'm sorry are you taking the position that state of texas and officials prison officials of the state of texas in their official capacity not in their personal capacity the plaintiff and sauce and sued fishel in an official capacity for damages which is basically you sue for damages against the state itself these individual capacity position don't think that riffraff has any special interpretive rules attached to it that i think it should be interpreted the same way other statutes are and then i come back to what justice o the maior said which is that we don't see any statutes and certainly interpreted any statute with this little specificity to permit damages against federal employees personal light so the question is why shouldn't we take that as out whether what remedies are available for statute of silent to remedies or if it's ambiguous as to remedy well if i'd wanted to rescue on that point i mean i definitely the st but i thought the franklin was really limited  where congress to silence on the question of remedies and congress is not silent on the question of remedies here we have a question about how to interpret what it said about remedies and it's basically spoke to remedies so why is franklin at all  us i'd like to try to clarify that you know the question under the rule so the presumption is agreed all appropriate remedies unless congress frankly states otherwise the question under franklin is always whether congress intended to limit application of this general principle where you have an implied cause of action usual recourse to tax and history is not possible and so congress sorry the court looks to the state of the law but the prince hold even if the cause of action or the remedy implications and presumptions here congress expressly stated that appropriate relief may be awarded spoke directly to remedies and i would have thought there might have been an argument along the lines of that that language  refers courts to the law of remedies and since the merger of law and equity we don't have causes of action there are limited in the nature of the remedies to specific forms of relief could you comment on that your honor our position of course is that the text is clear and that the statute on it's own  judicially implied cause of action to enforce a constitutional provision that island or even a statutory provision that you know we have an express right we have an explicit right of action we have a provision for appropriate relief with no limitation against officials or other persons with no limitations and attack and when we're in that realm franklin actually noted that there is no expansion of judicial power here where the court is simply determining what remedies are available and judiciary cabin remedies and exclude or implied exclusion of damages so would be sufficient for your purposes took if we wrote an opinion simply saying we're not relying on any presumptions of any kind anywhere looking at the text the t refers to law remedies a lot of remedies today is a distinct area of trend substantive law on the interim any particular form or cause of action the way it used to be and it allows the courts justice kavanagh thank you mr chief justice and good morning mr k some morning the first problem i have your concern is just the mismatch subject to damages liability in their individual capacities that seems in just an odd mismatch no mens rea generally applicable wall damages in their individual capacities we're talking about  does not even say merely if the results right would they be covered and we're trying to figure out what the term appropriate means something about appropriate i think we think about one of the circumstances here and it's very odd i think without  encompasses generally applicable in subjects you know career f b i agents to life altering damages remedies and then just to be clear i know there are strong interest on both sides here i'm just trying to governmental function and what not and the court gets started erupt i think that's a i mean that's a good answer about qualified immunity i want to ask one other question which is going to the text it's not clear the tax on what some could compensate a compass with an appropriate relief the question is whether does that include damages or not include damages doesn't say appropriate injunctive relief doesn't refer specifically to damages so at the figure out what the means and i'm thinking about that not only do i think about the circumstances i just mentioned but every statute authorizing damages is actions against federal employees or officers in their personal is that if it's appropriate relief including money damages that could have been mistaken for an intention to pierce the sovereign immunity of the federal government itself the federal treasury or the government at the time preparing and so you know there's no contention that congress wanted to allow that and that may be why they left out an explicit mention of money damages and of course at the time there was no magic words requirement and so these were the most practical terms that congress parties referred to text that clearly by providing for appropriate relief against officials or other persons acting under color of law without limiting either the remedy or the capacity in which these defendants can be sued the result my clients seek would not give the statutory text two meanings the martinez itself explains that sovereign immunity relief in one circumstance is not remotely established that a statute has two meanings it just indicates that the single and unchanging meaning of the statute does not apply against sovereigns and petitioners concerns about damages potentially chilling executive function are identical to those raised and pay for view mello and what the court held there is true here qualified immunity properly addresses those concerns for the separation of powers your  honor that would only arise in this case of this court were to exclude damages where congress provided them if instead this court allows executive officials to be held to legislative command that would be the separation of powers at work fulfilling the constitutional design of reference remedies provision answers this question by providing for appropriate relief against the government and money damages are not appropriate relief against the government at least in the absence of something express so providing and we don't have that here justice course of action raised the question of whether the phrase appropriate relief refers to the general law of remedy that the court in franklin invoked  limitations including the sovereign immunity of the sovern which is what renders money damages not appropriate relief against the government and individual government officials are included only in so far as they are part of the government under the refers definition in addition as justice kagan pointed out there are reasons beyond that to expect congress to be especially clear if it was subjecting federal employees to personal money damages under statute after all that applies throughout the government any time there is a statute of general applicability for example that it employs charged with  g and fact we know that congress rarely provides or allows prog of damages actions against the federal government that's the background principle of of the westfall act and when congress has allow general concern about children government employees especially in this national security context that reference directed at statutes and rules of general applicability and yet and is designed to allow exemptions from that but this is putting a government employee in the position perhaps on the spot of deciding whether to create an exemption to a particular governmental interest and beyond that reference self provides that it's the government that must provide  furnish stablish that there is a compelling interest and these are the least restrictive means for doing it and often the individual government employee would have access even to the information necessary to make that defense and would need to discovery against against the government so even looking at what the appropriate remedies are they aren't available and referee contains nothing like the low action of law under nine hundred and ninety three