Case 1:13-cv-06951-RA Document 1 Filed 10/01/13 Page 1 of 30

'JUDGE ABRAMS.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK'

MUHAMMAD TANVIR, Plaintiff,

n51 13 6 CV. ',~' '::1 ..

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v.

JAMES COMEY, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER M. PIEHOTA, DIRECTOR, TERRORIST SCREENING CENTER; RAND BEERS, ACTING SECRETARY, DEPARTMENT OF HOMELAND SECURITY; JOHN S. PISTOLE, ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION; "JOHN" TANZIN, SPECIAL AGENT, FBI; SANYA GARCIA, SPECIAL AGENT, FBI; JOHN "LNU", SPECIAL AGENT, FBI; "JOHN DOE", SPECIAL AGENT, FBI

COMPLAINT Civil Action No.

Defendants.

INTRODUCTION 1. This is an action for declaratory relief, injunctive relief, and damages under Bivens, seeking
to remove Muhammad Tanvir, a lawful permanent resident of the United States, from the federal government's No Fly List, and to challenge the FBI's practice of abusing this U.S. government watch list to force American Muslims into serving as informants against their own communities. Mr. Tanvir is one of many individuals whom Federal Bureau of Investigation (FBI) agents have placed on the No Fly List in retaliation for their refusal to work as informants against their communities and to submit to questioning. FBI agents have also unlawfully coerced individuals into cooperating and serving as informants by promising to take them off the No Fly List.

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2. Defendants create, maintain and implement a blacklist that prevents individuals named on it from boarding a flight to, from or over the United States under any circumstances (barring waiver from the government). The No Fly List—one among several government watch lists—purports to be filled with the names of individuals too dangerous to fly under any circumstances, with any degree of additional search and scrutiny, but not worthy of arrest and criminal process.
3. Plaintiff Muhammad Tanvir, a lawful permanent resident, was denied the right to board flights, deprived of his right to travel, and wrongly stigmatized as a security threat. Yet the government did not inform him of any reason why he presented a risk to civil aviation, and continues to deny him any after-the-fact explanation for his listing, and any meaningful assurance that his name is definitively cleared from the No Fly List.
4. Mr. Tanvir was placed on the No Fly List after he was approached by FBI agents and asked to serve as an informant in his predominantly Muslim community. He refused. Subsequently, he was suddenly and without notice banned from flying. After his listing, he reached out to those same FBI agents to clear up what he presumed was an error that led to his placement on the No Fly List. Instead of providing that explanation or opportunity, FBI agents offered to help him get off the No Fly List—but only in exchange for relaying information about his community. Mr. Tanvir again refused.
5. Mr. Tanvir has been prevented from flying despite the fact that he does not present any threat to aviation security. Instead, defendants sought to exploit the draconian burden posed by the No Fly List—including the inability to travel for work, or to visit family overseas—in order to coerce him into serving the FBI as a spy within American Muslim communities and places of worship.
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JURISDICTION AND VENUE 6. This court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702. Declaratory relief is
available pursuant to the Declaratory Judgments Act, 28 U.S.C. § 2201. 7. This Court is a proper venue for this action pursuant to 28 U.S.C. § 1391(e)(1) because
defendants are officers and employees of the United States or its agencies operating under color of law, and a substantial part of the events or omissions giving rise to the claims have occurred and are occurring in this judicial district.
PARTIES 8. Plaintiff Muhammad Tanvir is a lawful permanent resident who resides in Queens, New
York. He has lived in the United States since 2002 and has been married since March 2, 2006. Because of his placement on the No Fly List, Mr. Tanvir was unable to visit his ailing mother for over two years. Mr. Tanvir has never been convicted of a crime nor does he pose any threat to aviation safety. 9. Defendant James B. Comey is the Director of the Federal Bureau of Investigation (FBI). The FBI is one of the agencies responsible for nominating individuals to government watch lists, known collectively as the Terrorist Screening Database (TSDB), and which includes the No Fly List. The FBI oversees the Terrorist Screening Center (TSC), which maintains the TSDB. When an individual on the No Fly List participates in the limited redress process known as Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”) to challenge his inclusion on the No Fly List, if that individual was nominated by the FBI, then the FBI coordinates with TSC in determining whether an individual should remain on the watch lists. Defendant Comey is sued in his official capacity.
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10. Defendant Christopher M. Piehota is the Director of the TSC. The TSC is responsible for maintaining the No Fly List and for reviewing and accepting nominations from originating agencies such as the FBI. The TSC is also responsible for removing individuals from the No Fly List when requested by the nominating agency. In addition, in the redress process, the TSC is responsible for making the final determination whether to remove an individual from a watch list. Defendant Piehota is sued in his official capacity.
11. Defendant Rand Beers is the Acting Secretary of the Department of Homeland Security (DHS). The DHS maintains and administers the TRIP program and is the point of contact for individuals seeking redress for being unable to fly. The DHS is also responsible for overseeing the establishment of a timely and fair redress process for individuals who believe they were wrongly identified as a threat. Defendant Beers is sued in his official capacity.
12. Defendant John S. Pistole is the Administrator of the Transportation Security Administration (TSA). The TSA is a screening agency responsible for implementing the No Fly List at airports. The TSA receives the List from the TSC without the underlying, classified intelligence, and it in turn implements the List at the airport, determining whether an individual should be denied boarding. The TSA is responsible for implementing the results of the DHS TRIP process and for taking corrective action if a traveler has been misidentified. See 49 U.S.C. § 44903(j)(2)(G)(i). Defendant Pistole is sued in his official capacity.
13. Defendant “John” Tanzin (first name unknown) is a Special Agent with the FBI.1 He is sued in his individual and official capacity.
14. Defendant Sanya Garcia is a Special Agent with the FBI.2 She is sued in her individual and official capacity.
1 Possible alternative spellings could include “Tanzen,” “Tenzin,” or “Tenzen.” Also, it is unclear whether Tanzin is the agent’s first or last name.
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15. Defendant “John LNU” (last name unknown) is a Special Agent with the FBI. He is sued in his individual and official capacity.
16. Defendant “John Doe” is a Special Agent with the FBI. He is sued in his individual and official capacity. FACTUAL ALLEGATIONS Background on the FBI’s Use of Informants in American Muslim Communities
17. In the past decade, the FBI has engaged in a policy and practice of targeting American Muslim communities for suspicionless surveillance and intelligence-gathering, without any factual basis to believe that specific violations or threats to national security exist. These law enforcement policies and practices have included the aggressive recruitment of and deployment of informants in Muslim communities, organizations, and houses of worship.
18. The identification and recruitment of informants, known in FBI parlance as Confidential Human Sources, is an important part of FBI agents’ intelligence collection duties. The FBI maintains over 15,000 informants, a number that excludes unofficial informants. Many of them are tasked with infiltrating American Muslim communities.
19. Over the past decade, FBI recruitment of informants has significantly expanded. A November 2004 Presidential Directive required an increase in “human source development and management.” In a 2007 statement before the Senate Select Committee on Intelligence, Defendant Pistole described the FBI response to this directive, which includes changes to the policies intended to “enhance the FBI's ability to share human intelligence information within its organization and will encourage [Special Agents] to open and operate new Human Sources.” The FBI’s 2008 fiscal year budget authorization request includes funding for a
2 Possible alternative spellings could include “Sania,” “Sonya,” or “Sonia.”
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program to track and manage the growing number of informants. Many of these informants are recruited from and placed among Muslim communities. 20. FBI informants are often tasked with infiltrating mosques and participating in religious-based activities. For example, in Orange County, FBI agents sent an informant, Craig Monteilh, to various Southern California mosques to pose as a convert to Islam. Court documents and sworn testimony describe how he was tasked to infiltrate religious activities and to record religious lectures, discussion groups and classes, and other religious and cultural events occurring in mosques. In order to accomplish this, Mr. Monteilh publicly converted to Islam in front of a crowd of hundreds. Another FBI informer was asked to secretly tape conversations of the Muslim community and to go into a mosque in Lodi, California. 21. FBI agents have a number of investigative techniques at their disposal as they identify and recruit informants. Some of these are laid out in the FBI’s 2011 Domestic Investigations and Operations Guide (“DIOG”), which implement the 2008 Attorney General’s Guidelines for Domestic FBI Operations, which govern the FBI’s conduct in criminal, national security, and counter-intelligence assessments and investigations. See Fed. Bureau of Investigation, Domestic Intelligence Operations Guide § 4.3(C)(2), available at http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide% 20(DIOG). 22. The DIOG allows for six types of “assessments” of individuals or groups. An assessment is a low-level investigation that does not require factual predication, or a factual indication of criminal wrongdoing. According to data obtained by investigative journalists through Freedom of Information Act requests, from 2009 to 2011, FBI agents opened 42,888
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assessments of people or groups to see whether they were terrorists or spies;41,056 of the assessments yielded no indication of terrorist activity. 23. According to the DIOGs, an FBI agent opens a “Type 5” assessment when determining whether or not an individual is suited to become an informant. Agents may conduct investigations on a particular individual to determine whether he is suitable as a Confidential Human Source (“CHS”); they may also conduct investigations without any specific individual in mind, in order to identify individuals with “placement and access to particular information.” 24. A Type 5 assessment may be based in part on religion or activities protected by the First Amendment. 25. Once an individual is identified, the DIOGs allow the FBI agent to evaluate the “background, authenticity, and suitability of a particular potential” informant, and to recruit a suitable informant. If the recruitment is successful, the Type 5 Assessment must be closed. If it is not successful, “either because the individual declines to become a CHS or a determination is made not to continue the recruitment,” the assessment must also be closed. But unless such a determination is reached, the assessment may remain open. 26. A 2005 FBI Office of Investigator General Report evaluating FBI compliance with the Attorney General’s Guidelines on the Use of Confidential Informants has found one or more compliance errors in 87 percent of the informant files the Inspector General examined.3 The Report also found serious compliance deficiencies with provisions in the Guidelines relating to approval, monitoring, documentation, and notification of confidential informants. The
3 OFFICE OF INSPECTOR GEN., DEP’T OF JUSTICE, THE FEDERAL BUREAU OF INVESTIGATION’S COMPLIANCE WITH THE ATTORNEY GENERAL’S INVESTIGATIVE GUIDELINES 7 (2005), available at http://www.justice.gov/oig/special/0509/final.pdf.
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Report noted that FBI personnel felt that the Guidelines’ requirements were cumbersome and onerous. 27. To recruit informants, FBI agents often resort to exploiting Muslim individuals’ vulnerabilities. Civil rights organizations have documented instances where FBI agents have threatened Muslim individuals with withholding their immigration benefits, or to facilitate immigration benefits – a practice that is not allowed under the Attorney General’s Guidelines Regarding the Use of Confidential Human Sources.4 One FBI training presentation obtained by civil liberties organizations on recruiting informants in the Muslim community suggested that agents exploit “immigration vulnerabilities” because Muslims in the U.S. are “an immigrant community.” 28. Civil rights organizations have also reported that a wide variety of government interactions with Muslim individuals, such as interactions with Customs and Border Patrol upon entering the United States, will lead to subsequent and unrelated attempts to recruit those individuals as informants. 29. Muslim individuals have also been threatened with prosecution, often on minor, nondangerous charges, if they refuse to become informants.
The No Fly List 30. The Terrorist Screening Center (TSC), which is administered by the FBI, develops and
maintains the federal government’s consolidated Terrorist Screening Database (TSDB), the federal government’s terrorist watch list. In September 2003, Attorney General John Ashcroft established the TSC to consolidate the federal government’s approach to terrorism screening. Although the TSA, Customs and Border Patrol, and various other front-line
4 DEP’T. OF JUSTICE, THE ATTORNEY GENERAL’S GUIDELINES REGARDING THE USE OF CONFIDENTIAL HUMAN SOURCES 245, available at https://www.fas.org/irp/agency/doj/fbi/chs-guidelines.pdf.
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agencies that engage in screening of individuals for varied purposes may use records provided by the TSC, it is the TSC that maintains and controls the TSDB. 31. The No Fly List is a subset of this master watch list. Individuals named on the No Fly List will be categorically barred from boarding an aircraft for (at minimum) flights that originate, terminate, or pass over the United States, absent a specific waiver from the government. The No Fly List is thus distinct from another list—known as the Selectee List—used to identify passengers who will be subject to a higher level of scrutiny at TSA security screening checkpoints and at customs on return from international travel. Individuals on the Selectee List are not barred from boarding but are forced to submit to additional searches before doing so. 32. A number of federal agencies may nominate individuals to the TSC for inclusion on the consolidated TSDB watch list. The FBI and the National Counterterrorism Center are the primary agencies responsible for making nominations to the TSDB. When the FBI nominates an individual for inclusion, the TSC makes the final decision on whether the nominated individual purportedly meets the minimum requirements for inclusion on the watch list as a “known or suspected terrorist,” based on a summary of underlying information provided by an FBI case agent. 33. Nominations to the TSDB are supposed to be based on a “reasonable suspicion” that the individual is a known or suspected terrorist derived from the totality of the information reviewed. According to TSC, the nominator’s “[m]ere guesses or ‘hunches’” are insufficient, as are race, ethnicity, nationality, religion, or protected First Amendment speech or association; instead, “reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual ‘is known or
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suspected to be, or has been engaged in conduct constituting, in preparation for, in aid of or related to, terrorism and terrorist activities.’” As of 2007, TSC rejected only approximately one percent of nominations to the TSDB. 34. The FBI also nominates individuals to be included specifically on the No Fly List. Additional underlying “derogatory information” is required if a nominator suggests the inclusion of an individual not only on the TSDB but on the No Fly List as well. Although the operation of the No Fly List suggests that individuals placed on it must somehow present threats to aviation security that cannot be mitigated if allowed to board an airplane, the government has not specified publicly what standards or criteria are applied to determine whether an individual on the consolidated TSDB watch list will additionally be placed on the No Fly List. The TSDB reportedly contains 875,000 names as of May 2013. Data provided to Congress in 2009 indicated that 1600 names were added to the watch list every day. The No Fly List contained approximately 21,000 individuals as of February 2012, including approximately 500 United States citizens. 35. The TSC disseminates watch list data in a variety of forms to a variety of agencies including the Transportation Security Administration, which uses TSC-provided data to screen travelers for commercial flights. Such information is also disseminated to cooperating governments for use by their agencies. 36. The TSC provides the No Fly List to the TSA for use in pre-screening airline passengers. Because the data disseminated to the TSA is unclassified, the list provided includes only identifiers such as name, date of birth, etc. and not the underlying information provided by the nominator to purportedly justify inclusion.
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37. The TSA screens travelers by conducting a name-based search of a passenger prior to boarding. If that person has been placed on the No Fly List by the TSC, he or she will be denied boarding. Abuse of the No Fly List to Pressure Individuals to Become Informants
38. FBI agents have used placement on the No Fly List as a way to pressure individuals to work as informants. According to publicly available information, the FBI has placed individuals on the No Fly List as a way to pressure them to submit to questioning by government agents. The FBI has also conditioned removal from the No Fly List upon agreeing to work for or submit to questioning by government agents.
39. Mr. Yonas Fikre, a United States Citizen, has filed a lawsuit in federal court alleging that FBI agents placed him on the No Fly List in order to coerce him into becoming a government informant. According to the complaint, on or about April 21, 2010, his wife called him in Sudan, where he was pursuing a business opportunity, and told him that she received a call from the U.S. Embassy in Khartoum asking that Mr. Fikre contact a United States Embassy official, Mr. Noordeloos. Mr. Fikre called Mr. Noordeloos, who invited him to the U.S. Embassy in Khartoum. When Mr. Fikre arrived at the Embassy he was subjected to an interrogation and prevented from leaving the room. FBI Agent Noordeloos also told Fikre that he wanted him to work with the Agents on a “case” that was developing. Agent Noordeloos asked Fikre to come in the next day. Fikre agreed because he wanted to leave. The next day, Fikre called Agent Noordeloos to tell him that he was not interested in serving as an informant. Agent Noordeloos was upset, and told Fikre that when he wanted to travel back to the United States, he would have to go to the U.S. embassy. On June 15, 2010, Mr. Fikre traveled to the United Arab Emirates, where he was stripped of his passport and
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tortured. Ultimately, he was unable to return to the United States because he had been placed on the No Fly List. 40. Michael Migliore, a dual citizen of the USA and Italy, had traveled by ship to Europe because he was on the U.S. government’s No Fly List. Mr. Migliore believes he was placed on the List after he refused to be interviewed by the FBI without an attorney present. 41. In June 2012, Mr. Kevin Iraniha was boarding a flight home to San Diego on Frontier Airlines with his two brothers and father when he was informed that he was on the No Fly List. Mr. Iraniha went to the U.S. Embassy in Costa Rica. Once there, he was questioned extensively by FBI agents about his religious beliefs, his attendance and contacts at mosques in Costa Rica. Mr. Iraniha states that he felt pressured to speak to the FBI agents. 42. In June 2009, Mr. Amir Meshal was denied boarding at Newark International Airport and was informed that he was on the No Fly list. In October 2010, an FBI agent offered to remove Mr. Meshal from the No Fly list if he agreed to serve as a government informant. Mr. Abe Mashal, an Illinois resident, was prevented from boarding a flight from Chicago, and told that he was on the No Fly List. Later that same day, FBI agents came to his home and questioned him. A few months later, the same agents asked him to become an undercover informant, promising to remove him from the No Fly List if he agreed to spy for the government. 43. Mr. Nagib Alo Ghaleb, a naturalized U.S. Citizen residing in San Francisco, traveled to Yemen in 2010 to visit his wife and children. Upon his return to the U.S., an FBI agent informed him at the Frankfurt airport in Germany that he would not be allowed back into the U.S. As a result, Mr. Ghaleb returned to Yemen and sought assistance from the U.S. Embassy. The U.S. officials in Yemen pressured him to submit to questioning by the FBI
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agents. The FBI agents offered to help Mr. Ghaleb if he would work with them. They offered to arrange for him to fly back to the United States immediately if he would agree to tell them who the “bad guys” were in Yemen and in San Francisco, and provide names of individuals from his mosque and his community. Mr. Ghaleb declined to work as a government informant. When he again attempted to board a flight to the U.S. and was refused boarding, an FBI agent again informed him that he would be taken off the No Fly List if he would agree to become an FBI informant in the California Yemeni community
The Redress Process 44. Individuals, even U.S. citizens and LPRs, receive no notice that they have been placed in the
TSDB or on the No Fly List. 45. An individual who has been barred from boarding an aircraft due to apparent placement on
the No Fly List has no avenue for redress with the TSC, the government entity responsible for adding individuals to the list, maintaining their inclusion on the list, or removing them from the list. TSC does not accept redress inquiries directly from the public, nor does it provide final orders or disposition letters to individuals who have submitted redress inquiries. 46. The only avenue of relief available to individuals who find themselves unable to fly is the TRIP program, which is administered by DHS. DHS is responsible for establishing and implementing the redress procedures for individuals who are denied boarding, as well as for establishing the administrative appeals process for redress determinations. The TSA is responsible for implementing the results of the TRIP process. 47. Individuals may submit a DHS TRIP Traveler Inquiry Form by mail, e-mail or by submitting an online form. When the inquiry is filed electronically, the system automatically provides a
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Redress Control Number to help monitor the progress of the inquiry (and to serve as additional identifying information for any future travel). When filing is done via hard-copy, the traveler receives a Redress Control Number at the conclusion of the DHS TRIP review. 48. If the inquiring individual’s name is an exact or near match to an identity in the TSDB, DHS TRIP submits redress inquiries to the TSC, which makes the final decision as to whether any action should be taken (including removal from the list). The TSC has provided no public information about how it makes such decisions, other than to state that TSC “coordinates with” the agency that originally nominated the individual to be included in the TSDB during its review of whether the individual should continue to remain in the TSDB. However, the TSC is the final arbiter of whether an individual’s name will be retained or removed from the list. 49. TSC’s process for making this determination is entirely closed. There is no hearing or other further opportunity for the complaining individual to participate. Once the TSC makes a final determination regarding a particular individual’s status on the watch lists, including the No Fly List, the TSC advises DHS that it has completed its process. DHS TRIP then responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The letter does not set forth any basis for inclusion in a terrorist watch list, does not state how the government has resolved the complaint at issue, and does not specify whether an individual will be permitted to fly in the future. Thus, the only “process” available to individuals who are prevented from boarding commercial flights is to submit their names and other identifying information to a government entity that has no authority to provide redress and to hope that an unspecified government agency corrects an error or changes its mind.
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50. As a general matter of policy, the government provides no confirmation of whether or not a person is on the No Fly List, at any stage of the nomination or redress processes, even where presence on the no Fly List has already been confirmed by individual federal officers or airline employees. Plaintiff Muhammad Tanvir
51. Plaintiff Muhammad Tanvir is a lawful permanent resident who resides in Queens, New York. He has lived in the United States since 2002 and has been married since March 2, 2006.
52. Mr. Tanvir was first questioned by FBI special agents in approximately February 2007 at his workplace, a “99 Cents” store in the Bronx. There, Defendants FBI Special Agent “John” Tanzin and another FBI agent questioned him about an old acquaintance who they believed had attempted to enter the United States illegally through Mexico. After the FBI agents finished questioning Mr. Tanvir, they asked him if he would be willing to relay information to them about the American Muslim community.
53. Two days later, Mr. Tanvir received a phone call from Agent Tanzin, and again asked if there was anything about the American Muslim community that Mr. Tanvir could share with the FBI. Mr. Tanvir replied that he did not know of anything that would concern law enforcement.
54. In 2008, Mr. Tanvir visited his wife and family in Pakistan. 55. On his return flight in late 2008, U.S. government officials escorted Mr. Tanvir off the
airplane, led him to a private investigation room, searched his baggage, and questioned him for five (5) hours before confiscating his passport. The officials ultimately allowed Mr.
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Tanvir to enter the United States, but they held onto Mr. Tanvir’s passport and told him to pick it up a month later. 56. Shortly after this trip, FBI agents began aggressively attempting to recruit Mr. Tanvir to work for them as a government informant. 57. On January 26, 2009, Defendants Tanzin and another FBI agent, Defendant “John Doe” came to see Mr. Tanvir at his workplace, a “99 Cents” store in Queens. The FBI agents asked Mr. Tanvir to come with them to Manhattan. 58. Mr. Tanvir agreed to accompany Defendants, and was driven from Queens to the FBI’s New York offices at 26 Federal Plaza in Manhattan. 59. At 26 Federal Plaza, Defendants informed Mr. Tanvir that they had been following him. They even showed him surveillance photos of himself standing on a New York City subway platform. The FBI agents then told Mr. Tanvir that he was special, hardworking, and that they wanted him to work for them. 60. The Defendant FBI agents offered Mr. Tanvir incentives, such as facilitating his wife’s and family’s visits from Pakistan to the United States and helping his aging parents in Pakistan go on religious pilgrimage to Saudi Arabia. 61. The FBI agents also threatened Mr. Tanvir by stating that if he did not work for them, they would not give him back his passport and that if he tried to pick up his passport at the airport, he would be deported to Pakistan. 62. Mr. Tanvir was terrified by the agents’ threats and cried at the meeting. He pleaded with them. He asked them to not deport him because his family depends on him financially. He told the agents that he believed working as an informant would be dangerous. The Defendant FBI agents told him to not repeat their discussion with anyone.
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63. During that same FBI interview, the FBI agents also asked Mr. Tanvir whether he had attended any Taliban training camps, and whether he knew of any training camps near the village where he was raised. Mr. Tanvir responded that he never attended any training camps and didn’t know of the whereabouts of any such camps.
64. The next day, Agent Tanzin called Mr. Tanvir and told him that he was authorizing the release of his passport since Mr. Tanvir was cooperating with the agents.
65. On January 28, 2009, Mr. Tanvir picked up his passport from John F. Kennedy airport. Mr. Tanvir asked the DHS officials why they withheld his passport, and they replied that it was due to an investigation that has since been cleared.
66. Two days later, Agent Tanzin informed Mr. Tanvir that DHS was able to return his passport because he ordered its release. During this call, Agent Tanzin again asked Mr. Tanvir to work as an informant for the government.
67. Over the course of the next few weeks, Mr. Tanvir received multiple phone calls and visits from Defendants Tanzin and John Doe at his workplace. The FBI agents repeatedly asked Mr. Tanvir whether he had decided to work for them as a confidential informant.
68. Defendants told Mr. Tanvir that they wanted him to gather information on criminal activities. Further, the agents stated that they were generally interested in people from the “Desi” (South Asian) communities. Mr. Tanvir repeatedly told the FBI agents that if he knew of any criminal activities he would tell them but that he did not want to proactively seek out such information nor spy on any communities generally.
69. Mr. Tanvir did not want to work as an informant because he felt that it was a dangerous job not only for himself, but for his entire community. He was concerned about the dangers of prolonged and repeated interactions with federal government agents, and his resulting
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vulnerability to potential criminal or immigration retaliatory acts. Based on the way the agents pressured Mr. Tanvir to tell them about criminal activity that he knew nothing about, or even that did not exist, he was also worried that if he agreed to be an informant, he would be required to monitor and potentially entrap innocent individuals in his community. For Mr. Tanvir, spying and eavesdropping on others, especially when they have done nothing wrong, is fundamentally incompatible with his moral and religious beliefs. 70. Due to these repeated visits and calls, Mr. Tanvir felt intimidated and harassed. Mr. Tanvir spoke to a relative who had been in the United States longer than he had, and was told that he was under no obligation to continue speaking with the FBI agents, and that in fact it would be safer for him not to engage with them. Based on his relative’s advice, he stopped answering Defendants’ phone calls. 71. Eventually, Defendants again visited Mr. Tanvir at his workplace and asked him why he was no longer answering their phone calls. Mr. Tanvir explained that he had answered all of their questions on multiple occasions and that he no longer had anything to tell them. The FBI agents then asked him to take a polygraph test. When Mr. Tanvir declined to take the test, the FBI agents threatened to arrest him. Mr. Tanvir responded that if they arrested him, he would obtain an attorney.. After this encounter, Defendants Tanzin and John Doe ceased attempting to recruit Mr. Tanvir. 72. In January 2010, Mr. Tanvir traveled to Pakistan to visit his wife and parents. During this time, Agent Tanzin visited Mr. Tanvir’s sister at her workplace and questioned her about Mr. Tanvir’s travel. 73. The FBI agents had Mr. Tanvir’s itinerary and wanted to know why Mr. Tanvir had flown on Kuwait Airways instead of Pakistan International Airlines.
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74. Mr. Tanvir’s sister replied that Mr. Tanvir had found a cheaper airfare on the Kuwaiti airline. She also told the FBI agents that she was not comfortable speaking with them.
75. Mr. Tanvir returned to the United States and took a job as a truck driver, as this work generated more income even though it required significant travel.
76. In October 2010, while Mr. Tanvir was in Atlanta for work, he received word that his mother was visiting New York from Pakistan. Mr. Tanvir planned to fly from Atlanta to New York City. When he arrived at the check-in counter at the airport, airline officials told him that he was not allowed to fly.
77. Two unknown FBI agents approached Mr. Tanvir at the airport and told him to call the New York FBI agents he had originally been in touch with.
78. The two unknown FBI agents then drove Mr. Tanvir to the nearby bus station where he could take a New York-bound bus.
79. Mr. Tanvir called Defendant Tanzin while waiting at the bus station. However, Agent Tanzin told Mr. Tanvir that he was no longer assigned to his case, but that he should cooperate with the FBI agent who would be contacting him.
80. Two days after Mr. Tanvir arrived in New York City by bus, Defendant FBI agent Sanya Garcia called him and told him that she wanted to speak with him and ask him some more questions.
81. Upon information and belief, Agent Garcia knew about Agent Tanzin’s prior failed attempts to recruit Mr. Tanvir as an informant, and his subsequent placement of Mr. Tanvir on the No Fly List in retaliation for his refusal to become an informant.
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82. Frustrated, Mr. Tanvir told Agent Garcia that he had answered the FBI’s questions on multiple occasions and that he was not interested in further questioning, and hung up the phone.
83. Almost a year later, Mr. Tanvir reached out to the Department of Homeland Security (DHS) to see whether he would be allowed to board a plane. DHS instructed Mr. Tanvir to file a DHS TRIP complaint.
84. Mr. Tanvir filed a TRIP complaint on September 27, 2011. 85. In October 2011, Mr. Tanvir purchased plane tickets to Pakistan for himself and his wife.
The date of travel was booked for November 3, 2011. On November 2, 2011, the day before Mr. Tanvir and his wife were set to fly, Defendant Garcia called Mr. Tanvir. She told him that he would not be allowed to fly the next day. 86. When Mr. Tanvir asked why, Agent Garcia told him that it was because he hung up on her the last time she had tried to question him. 87. Agent Garcia again demanded that Mr. Tanvir meet with her as a precondition before she could allow him to fly out the following day. Because Mr. Tanvir wanted to fly to visit his ailing mother, he agreed to meet with her and another FBI agent, Defendant “John LNU,” at a restaurant. 88. At that meeting, Defendants Garcia and Roe subjected Mr. Tanvir to the same questions Defendant Tanzin had repeatedly asked on multiple occasions, including questions about his family, his religious and political beliefs, and whether he had any military training, 89. After the meeting, Defendants Garcia and Roe advised Mr. Tanvir that they would try to permit him to fly again by obtaining a one-time waiver to enable him to visit his ailing
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mother, but that it would take some weeks. As a condition, Mr. Tanvir had to agree to meet with the agents upon his return. 90. Mr. Tanvir begged Agent Garcia to let him fly the next day with his wife. 91. Agent Garcia stated that she might be able to do so, but an FBI agent would have to accompany him. 92. The next day, Agent Garcia called Mr. Tanvir and told him that he would not be permitted to fly on that day. She wanted him to come to the FBI headquarters to take a polygraph test. When Mr. Tanvir’s cousin asked if he could accompany Mr. Tanvir to the polygraph test, Agent Garcia refused. 93. At that point, Mr. Tanvir contacted the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services, Inc., at CUNY School of Law to represent him in connection with his interactions with the FBI. 94. Mr. Tanvir’s attorneys reached out to the FBI agents, but the agents did not want to speak to his attorneys. Mr. Tanvir’s attorneys offered to meet with the FBI agents to resolve his placement on the No Fly List, but the agents rejected their proposals. The agents directed the attorneys to the FBI legal counsel’s office, which in turn directed them to the TRIP process. Mr. Tanvir had already tried TRIP and it had not provided him with any redress. 95. The FBI agents no longer contacted Mr. Tanvir after he obtained legal representation, and no longer sought to recruit him to work as an informant for them. 96. This confirmed Mr. Tanvir’s suspicion that the FBI had placed him on the No Fly List in retaliation for his refusal to work for them as an informant, and as a way to coerce him to agree to work as an informant with promises of permanent, or even temporary, removal from the No Fly List.
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97. On December 10, 2011, Mr. Tanvir again attempted to visit his mother, whose health continued to deteriorate.
98. At John F. Kennedy (JFK) Airport, Mr. Tanvir was informed by the airline carrier’s employees that they could not issue him a boarding pass because he was on the No Fly List.
99. On April 16, 2012, Mr. Tanvir received a response to his TRIP complaint. The letter noted that “no changes or corrections are warranted at this time.”
100. On May 17, 2012, Mr Tanvir’s attorneys wrote a letter to the FBI’s legal counsel. The letter described Mr. Tanvir’s predicament and the FBI’s retaliatory actions, and it also stated that Mr. Tanvir was prepared to take legal action. Neither Mr. Tanvir nor his attorneys have heard back from the FBI in response to that letter.
101. On May 23, 2012, Mr. Tanvir appealed his TRIP determination. Mr. Tanvir also requested the releasable materials upon which the TRIP determination was based.
102. In November 2012, Mr. Tanvir again purchased a ticket to visit his sick mother in Pakistan.
103. On November 28, 2012, Mr. Tanvir arrived at JFK airport and was not allowed to board. 104. An FBI agent who introduced herself as Janet Ambrisco approached Mr. Tanvir and his
attorney from CLEAR at the check-in area and informed them that in order to be removed from the No Fly List, Mr. Tanvir would have to meet with Defendant Garcia. 105. Mr. Tanvir’s attorney attempted to speak with Agent Garcia but she did not return their calls. Eventually, Ms. Dawn Bruno from the FBI’s legal counsel office in New York informed Mr. Tanvir’s attorneys that Ms. Garcia was no longer interested in speaking with Mr. Tanvir.
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106. On March 28, 2013, Mr. Tanvir received a letter from DHS which noted that it supersedes the April 16, 2012 TRIP response. The letter stated that Mr. Tanvir’s experience “was most likely caused by a misidentification against a government record or by random selection,” and that the Government has “made updates” to records. As a result, the letter stated, Mr. Tanvir’s request for releasable materials was moot and would not be processed by DHS.
107. The DHS letter did not state whether Mr. Tanvir had previously been placed on the No Fly List, whether he had been granted a temporary waiver permitting his travel on a single occasion, or whether Mr. Tanvir would be now permitted to board flights. As a result, Mr. Tanvir purchased another ticket and attempted to travel again. On June 27, 2013, Mr. Tanvir was allowed to board a flight to Pakistan.
108. Mr. Tanvir’s placement on the No Fly List prevented him from visiting his sick mother in Pakistan, causing him great distress.
109. Mr. Tanvir also suffered economic loss because of his placement on the No Fly List, including but not limited to loss of income and expenses and fees related to the purchase of airline tickets.
110. Upon information and belief, Defendants Comey, Piehota, Beers, and Pistole knew about, should have known of, or willfully or recklessly ignored U.S. government agents’ misuse of the No Fly List for purposes other than ensuring aviation safety.
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CAUSES OF ACTION FIRST CLAIM FOR RELIEF Violation of the First Amendment: Retaliation
(Against all Defendants) 111. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above. 112. By placing Mr. Tanvir on the No Fly List because of his refusal to work for or speak to
Defendants, to disclose his political affiliations, and to associate with others, Defendants retaliated against Mr. Tanvir for exercising his protected rights in violation of the First Amendment to the United States Constitution. 113. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to retaliate against Mr. Tanvir when he refused to work as an informant or to submit to interrogation. 114. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss.
SECOND CLAIM FOR RELIEF Violation of the Fifth Amendment: Retaliation
(Against all Defendants) 115. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above. 116. By placing Mr. Tanvir on the No Fly List because of his refusal to be questioned by
Defendants about his own religious and political beliefs and activities, and his refusal to
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continue to submit to repeated questioning by agents, Defendants retaliated against Plaintiff for exercising his privilege against self-incrimination, in violation of the Fifth Amendment to the United States Constitution. 117. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to retaliate against Mr. Tanvir when he refused to work as an informant or to submit to interrogation. 118. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss.
THIRD CLAIM FOR RELIEF Violation of the First Amendment: Right to Associate
(Against all Defendants) 119. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above. 120. By conditioning Mr. Tanvir’s removal from the No Fly List on becoming an informant,
associating with others, and disclosing his political and religious affiliations, Defendants impermissibly coerced Mr. Tanvir to associate in violation of the First Amendment to the United States Constitution. 121. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to coerce Mr. Tanvir into working as an informant or submitting to questioning in violation of his right not to associate.
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122. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss.
FOURTH CLAIM FOR RELIEF Violation of the First Amendment: Freedom of Speech
(Against all Defendants) 123. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above. 124. By conditioning Mr. Tanvir’s removal from the No Fly List on becoming an informant
and on regularly speaking with U.S. government officials, Defendants impermissibly coerced Mr. Tanvir to speak in violation of the First Amendment to the United States Constitution. 125. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to coerce Mr. Tanvir into working as an informant or submitting to questioning in violation of his right not to speak. 126. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss.
FIFTH CLAIM FOR RELIEF Violation of the First Amendment: Establishment Clause
(Against all Defendants) 127. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above.
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128. By instructing Mr. Tanvir to report on activity and opinions within predominantly Muslim communities after learning about Mr. Tanvir’s religious beliefs and practices, and conditioning Mr. Tanvir’s removal from the No Fly List on his accession to those demands, Defendants impermissibly endorsed or promoted religion and coerced Mr. Tanvir to engage in religious activity in violation of the Establishment Clause of the First Amendment to the United States Constitution.
129. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to coerce Mr. Tanvir into working as an informant or submitting to questioning, such that they impermissibly endorsed or promoted religion and coerced Mr. Tanvir to engage in religious activity in violation of the Establishment Clause.
130. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss. SIXTH CLAIM FOR RELIEF Violation of the First Amendment: Free Exercise of Religion (Against all Defendants)
131. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation contained in the paragraphs above.
132. By instructing Mr. Tanvir to report on activity and opinions within predominantly Muslim communities after learning about Mr. Tanvir’s religious beliefs and practices, and conditioning Mr. Tanvir’s removal from the No Fly List on his accession to those demands, Defendants placed a substantial burden on Mr. Tanvir’s practice of Islam without rational
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basis in violation of the Free Exercise Clause of the First Amendment to the United States Constitution. 133. Defendants Comey, Piehota, Beers and Pistole supervised, willfully or recklessly disregarded, or failed to remedy FBI agents’ policy and practice of using the No Fly List to coerce Mr. Tanvir into working as an informant or submitting to questioning, such that they placed a substantial burden on Mr. Tanvir’s practice of Islam without rational basis in violation of the Free Exercise Clause. 134. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss.
SEVENTH CLAIM FOR RELIEF Violation of the Fifth Amendment: Procedural Due Process
(Against all Defendants) 135. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation
contained in the paragraphs above. 136. Mr. Tanvir has a liberty interest in travel free from unreasonable burdens within, to, and
from the United States. 137. Mr. Tanvir has a right to be free from being falsely stigmatized as an individual
associated with terrorist activity. 138. Mr. Tanvir has a liberty interest in non-attainder. Defendants singled out Mr. Tanvir for
punishment by restricting his ability to travel by air and falsely associating him with individuals known or suspected to be involved in terrorism. The burdens placed on Mr. Tanvir were disproportionate to any legitimate government purpose.
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139. By failing to inform Mr. Tanvir of his placement on the list and the bases for being on the list, and failing to provide Mr. Tanvir with a meaningful opportunity to contest his placement on the list, Defendants deprived Mr. Tanvir of protected liberty interests without affording him due process of law in violation of the Fifth Amendment to the United States Constitution.
140. Defendants’ unlawful actions caused Mr. Tanvir emotional distress, deprivation of his constitutional rights, damage to his reputation, and material loss. EIGHTH CLAIM FOR RELIEF Unlawful Agency Action in Violation of the Administrative Procedure Act, 5 U.S.C. §§ 702, 706 (Against all Defendants)
141. Plaintiff MUHAMMAD TANVIR incorporates by reference each and every allegation contained in the paragraphs above.
142. Defendants’ placement of Mr. Tanvir on the No Fly List when Mr. Tanvir does not present a threat to aviation security, and Defendants’ failure to provide Mr. Tanvir with meaningful notice of his placement on the No Fly List and the bases for being on the list, and a meaningful opportunity to challenge his placement on the No Fly List is arbitrary, capricious, an abuse of discretion, and contrary to constitutional rights, power, privilege or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests judgment against Defendants as follows:
1. Declaring that the policies, practices, acts, and omissions of Defendants described here are unlawful and violate Plaintiff’s rights under the Constitution of the United States and the Administrative Procedure Act;
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2. Ordering Defendants to remove Plaintiff's name from the No Fly List and other U.S. government watch lists, and to provide Plaintiff with notice that his name has been removed;
3. Enjoining Defendants and their agents, employees, successors, and all others acting in concert with them, from subjecting Plaintiff to the unconstitutional and unlawful practices described here;
4. Ordering Defendants sued in their official capacity to provide a constitutionally adequate legal mechanism affording Plaintiff with meaningful notice of his placement on the No Fly List and of the grounds for his inclusion on the No Fly List, and a meaningful opportunity to contest his placement on the No Fly List before a neutral decision-maker;
5. Requiring the promulgation of guidelines prohibiting the abuse of the No Fly List for purposes other than the promotion of aviation safety, including for the unlawful purpose of pressuring individuals to become informants;
6. Awarding Plaintiff compensatory and punitive damages;
7. Awarding Plaintiff's counsel reasonable attorneys' fees and litigation costs, including but not limited to fees, costs, and disbursements pursuant to 28 U.S.C. § 2412; and
8. Granting such other and further relief as the Court deems just and proper.
Dated: October 1, 2013
Respectfully submitted,

Ramzi Kassem [RK-3567] Supervising Attorney Diala Shamas StaffAttorney Nasrin Moznu Versely Rosales Law Student Interns CLEAR project Main Street Legal Services, Inc. City University of New York School of Law 2 Court Square Long Island City, NY 11101 (718) 340-4558 rarnzi.kassem@law.cuny.edu

Susan Hu, Esq. Shayana Kadidal, Esq. [SK-I278] Baher Azmy, Esq. Center for Constitutional Rights
666 Broadway, i h Floor
New York, NY 10012 (212)614-6491 kadidal@ccrjustice.org
Attorneys for Plaintiff

30

 
 Case 1:13-cv-06951-RA Document 16 Filed 04/23/14 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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MUHAMMAD TANVIR,

tSDC-SDNY

DOCUMENT ·

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FILED

. DflO\ TCF#F:i-l.-E-D--: ,.L.-i I.-i-:-~/..l.y..---

Plaintiff,
-v-
JAMES COMEY, Director, Federal Bureau of Investigation, et al .,

No. 13 Civ. 6951 (RA) ORDER

Defendants.

-----------------------------------------------------------){
RONNIE ABRAMS, United States District Judge:

Plaintiff filed his Amended Complaint in this action on April 22, 2014, and by stipulation

of the parties, Defendants have until June 23 , 2014, to answer or otherwise respond. It is hereby:

ORDERED that an initial pretrial conference is scheduled for 4 p.m. on July 11 , 2014, in

Courtroom 1506 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New

York, New York. The parties' joint preconference submissions, described in the Court's October

3, 2013 Order, shall be due by July 3, 2014.

SO ORDERED.

Dated:

April 23 , 2014 New York, New York

onnie Abrams United States District Judge

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MUHAMMAD TANVIR, JAMEEL ALGIBHAH, NAVEED SHINWARI, and AWAIS SAJJAD,
Plaintiffs,
v.
LORETTA E. LYNCH, Attorney General, JEH C. JOHNSON, Secretary of Homeland Security, JAMES COMEY, Director, Federal Bureau of Investigation, CHRISTOPHER M. PIEHOTA, Director, Terrorist Screening Center, FNU TANZIN, SANYA GARCIA, FRANCISCO ARTUSA, JOHN LNU, MICHAEL RUTOWSKI, WILLIAM GALE, JOHN C. HARLEY III, STEVEN LNU, MICHAEL LNU, GREGG GROSSOEHMIG, WEYSAN DUN, JAMES C. LANGENBERG, and JOHN DOES 1–13
Defendants.

USDC-SDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATE FILED: 09/03/2015
No. 13-CV-6951 (RA) OPINION & ORDER

RONNIE ABRAMS, United States District Judge: Plaintiffs Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad bring
this suit to remedy alleged violations of their constitutional and statutory rights. Each is either a lawful permanent resident or citizen of the United States, and each is Muslim. They claim that as part of the U.S. Government’s efforts to bolster its intelligence gathering in the aftermath of the terrorist attacks of September 11, 2001, they were asked to become informants by agents of the Federal Bureau of Investigation (FBI). When they refused because, among other things, serving as informants would contradict their sincerely held religious beliefs, they say the Government retaliated against them by placing or maintaining their names on its “No Fly List,” even though

they posed no threat to aviation security. Since then, each Plaintiff claims to have been denied a boarding pass on at least one occasion, leaving him unable to visit loved ones who live abroad. To redress this alleged violation of their rights, Plaintiffs filed a Complaint against numerous federal officials, including Attorney General Loretta E. Lynch, Secretary of Homeland Security Jeh C. Johnson, FBI Director James B. Comey, and 25 named and unnamed FBI and Homeland Security agents.
Plaintiffs seek relief on two bases. First, they seek injunctive and declaratory relief against all of the defendants in their official capacities. These claims arise under the First and Fifth Amendments of the Constitution, the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 706, and the Religious Freedom Restoration Act (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. Plaintiffs assert that these constitutional and statutory provisions entitle them to an order from this Court requiring the Government to halt its alleged investigative tactics and to create fair procedures governing who is placed on the No Fly List and how such individuals may contest their inclusion. Second, Plaintiffs also seek compensatory and punitive damages from each of the individual agent defendants in their personal capacities. They argue that they are entitled to such monetary relief under the First Amendment and RFRA.
As explained in further detail below, the official capacity claims were stayed at the request of the parties on June 10, 2015, two days after the Government advised Plaintiffs that it knew of “no reason” why they would be unable to fly in the future. The personal capacity claims, however, remain active. This opinion concerns only those claims and, more specifically, resolves a motion bought by all but two of the individual agents (“Agents”), who seek to dismiss the personal capacity claims against them.1 The Agents argue, among other things, that the remedy Plaintiffs
1 Pursuant to the Stipulation and Order filed July 24, 2014, see Dkt. 30, Defendants FNU (i.e., first name unknown) Tanzin, John LNU (i.e., last name unknown), Steven LNU, Michael LNU and John Does 1–6 and 9–13 are
2

seek from them—money damages from each of the agents personally—is unavailable as a matter of law. For the reasons that follow, the Court agrees and will grant the Agents’ motion.
BACKGROUND2
A. Plaintiffs’ Factual Allegations Plaintiffs claim that they are “among the many innocent people” who have been “swept
up” in the years since 9/11 by the U.S. Government’s “secretive watch list dragnet.” ¶ 4. Although they acknowledge that the No Fly List is a critical national security tool meant to ensure that individuals believed to be threats to aviation security are not allowed to board airplanes, ¶¶ 2, 40, Plaintiffs argue that the process for placing individuals on the No Fly List is “shrouded in secrecy and [thus] ripe for abuse,” ¶ 63. Plaintiffs contend their names are on the No Fly List only because they are the victims of abusive—and illegal—investigative tactics. And they say that they were unable to do anything about their unjust inclusion because of the pervasive secrecy surrounding the List.
The No Fly List is a database compiled and maintained by the Terrorist Screening Center (TSC), an agency within the FBI. ¶ 40. Federal agencies may “nominate” individuals for inclusion in the Government’s various terrorist databases, including the No Fly List, if there is a “reasonable suspicion” that they are “known or suspected terrorist[s].” ¶ 41. An individual should only be placed on the No Fly List if there is additional “derogatory information” showing that he “pose[s]
currently proceeding under the pseudonyms specified in the First Amended Complaint, Dkt. 15. John Doe 2 is currently proceeding as John Doe 2/3. This motion is not brought by John Does 7 and 8 because the Government to date has not been able to identify those Defendants and, accordingly, they have not been served. On December 18, 2014, the Court extended Plaintiffs’ time to serve John Does 7 and 8 through 30 days after a decision on this motion. See Dkt. 78.
2 The facts as alleged by Plaintiffs are drawn from their Complaint. All citations in this opinion preceded by “¶ ” or “¶¶ ” refer to paragraphs of the Complaint. For purposes of this motion, the Court must accept Plaintiffs’ allegations as true. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
3

a threat of committing a terrorist act with respect to an aircraft.” ¶ 42. Anyone whose name is on the list is barred from boarding a flight that starts or ends in the United States, or flies over any part of the country. ¶ 44. Beyond this, however, little is known about the No Fly List. ¶ 43. Although they do not have information about its exact size, Plaintiffs assert that the List has grown more than six times over from roughly 3,400 names in 2009 to over 21,000 in 2012. ¶ 47. The TSC itself has found that “many” of these thousands of individuals were placed on the No Fly List even though they did not qualify. ¶ 48. For example, a federal district court in California recently concluded that a Muslim doctoral student at Stanford was placed on the No Fly List because an FBI agent checked the wrong boxes on a nominating form. ¶ 49 (citing Ibrahim v. Dep’t of Homeland Sec., 62 F.Supp.3d 909, 916 (N.D. Cal. 2014)).
Plaintiffs claim that each of the federal agents named in this suit, instead of utilizing the No Fly List based on legitimate information for legitimate purposes, have “exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards, as well as its lack of procedural safeguards, in an attempt to coerce Plaintiffs into serving as informants within their American Muslim communities and places of worship.” ¶ 8. Plaintiffs further allege that higher-level officials—including the Attorney General, Secretary of Homeland Security, and Director of the FBI—“promulgated, encouraged and tolerated a pattern and practice of aggressively recruiting and deploying informants in American Muslim communities.” ¶ 67.
Although the details of each of the four Plaintiffs’ experiences with the No Fly List are different, they follow the same broad contours. Each man was born into the Islamic faith in a foreign country where at least some of his family members remain. Each legally immigrated to this country and is now lawfully present here, either as a citizen or permanent resident. Each claims he was asked to become an informant for the FBI and to share what he learned by, for
4

example, traveling abroad to Pakistan or Afghanistan, participating in online Islamic forums, or attending certain mosques. Each declined to do so. Each was placed or kept on the No Fly List and thus was unable to fly for sustained periods over several years, unable to see loved ones. Yet each asserts that he does not—and has never—posed a threat to aviation security. Rather, each maintains that the Agents worked together to add or keep his name on the No Fly List because he refused to serve as an informant for the FBI.
In light of the manner in which the Court resolves this motion, the specific details of each Plaintiff’s claims need not be discussed in detail. Some discussion, however, is warranted, and Tanvir’s story is illustrative. He is a lawful permanent resident who presently lives in Queens, New York. ¶ 68. His wife, son, and parents remain in Pakistan. Id. In February 2007, Tanvir alleges that FBI Special Agents FNU Tanzin and John Doe 1 approached him at the dollar store in the Bronx where he then worked. ¶ 69. He was questioned for roughly 30 minutes about an old acquaintance whom the agents believed had entered the country illegally. Id. Nothing else about that interaction appears to have been remarkable. Two days later, however, Tanvir heard again from Agent Tanzin, who asked whether there was anything he “could share” with the FBI concerning the American Muslim community. ¶ 70. Tanvir alleges that he told Tanzin that he knew nothing that would be relevant to law enforcement. Id.
Fast-forward more than a year later to July 2008. After returning from a trip in Pakistan to visit his family, Tanvir asserts that he was detained for five hours by federal agents at John F. Kennedy International Airport in New York. ¶ 71. Although he was not interviewed, his passport was confiscated and he was given an appointment to pick it up on January 28, 2009, nearly six months later. Id. Two days before that appointment—and almost two years since they had last been in contact—Tanvir heard again from Agent Tanzin, this time joined by FBI Special Agent
5

John Doe 2/3,3 who visited him at his new workplace. ¶ 73. The agents asked him to accompany them to the FBI’s New York field office in Manhattan. Id. Tanvir agreed, and once there, he was questioned for about an hour. ¶¶ 74–75. Among other things, he was asked about terrorist training camps near the village in Pakistan where he was raised and whether he had any Taliban training. ¶ 75. Tanvir denied knowledge of or attendance at any such training camps. Id.
Toward the end of the hour, Agents Tanzin and John Doe 2/3 told Tanvir that they recognized he was “special,” “honest,” and “hardworking,” and that they wanted him to work as an informant for the FBI. ¶ 76. Specifically, he asserts that they asked him to travel to Pakistan and report on what he learned. Id. They offered to facilitate visits to the United States for his family, and to provide financial assistance for his parents in Pakistan to travel to Saudi Arabia for a religious pilgrimage. Id. Tanvir reiterated his earlier position: He did not want to work as an informant. ¶ 77. But the agents purportedly persisted, warning him that he would not receive his passport and that he would be deported to Pakistan if he failed to cooperate. Id.
Tanvir claims to have pleaded with the agents not to deport him because his family depended on him financially. ¶ 78. He also said that he feared for his safety in Pakistan if he went there as an American informant. Id. When the agents suggested he could work in Afghanistan instead, he responded that that too would be dangerous. Id. (Although Tanvir also asserts that serving as a government informant would violate the tenets of his Muslim faith, ¶ 84, he does not appear to assert that he said as much to the agents.) At the conclusion of the meeting, the agents advised Tanvir to keep thinking, and cautioned him not to discuss their conversation with anyone. ¶ 78. The next day, Agent Tanzin called Tanvir to ask whether he had changed his mind. ¶ 79.
3 With respect to John Doe 2/3’s pseudonym, see supra note 1.
6

Tanvir claims that Agent Tanzin reiterated that he would be deported if he failed to cooperate. Id. Tanvir again declined. Id.
On January 28, 2009, Tanvir went to JFK Airport to retrieve his passport, as previously instructed. ¶ 80. Department of Homeland Security (DHS) officials advised him that his passport had been withheld for an investigation that had since been completed, and they returned the document to him without incident. Id. The next day, however, Agent Tanzin called Tanvir and told him that his passport had been returned to him because he—Agent Tanzin—had instructed DHS officials to release the passport in recognition of the fact that Tanvir was being “cooperative” with the FBI. ¶ 81.
The Complaint alleges that the FBI agents’ attempts to persuade Tanvir to become an informant continued over the next three weeks. He received multiple telephone calls and visits from Agent Tanzin and John Doe 2/3 at his workplace. ¶¶ 82–83.4 Eventually, Tanvir stopped answering their calls, and when Agents Tanzin and John Doe 2/3 visited him at his workplace to ask why, he told them that he no longer wished to speak with them. ¶ 86. They then asked him to take a polygraph. ¶ 87. When he refused, they threatened to arrest him, but did not do so once Tanvir said he would hire an attorney if they did. Id. Roughly six months later, in July 2009, Tanvir traveled to Pakistan to visit his wife and parents. ¶ 88. While he was abroad, Agents Tanzin and John Doe 2/3 visited his sister at her workplace in Queens and inquired about Tanvir’s travel plans. Id. She was uncomfortable talking to the agents. Id.
Tanvir returned to the United States in January 2010, at which time he took a job as a longhaul trucker. ¶ 89. His new job involved driving across the country and then taking a return flight to New York. Id. In October 2010, while Tanvir was in Atlanta for work, he received word that
4 Plaintiffs advise that the Complaint “may” have incorrectly identified John Doe 2/3 as John Doe 1 in these paragraphs of the Complaint. See Pls. Mem. at 10 n.6.
7

his mother was visiting New York from Pakistan. ¶ 91. He booked a flight back to New York, but was advised by an airline agent at the check-in counter in Atlanta that he was not allowed to fly. Id. Two unknown FBI agents approached Tanvir at the airport and advised him to contact the agents who had spoken to him in New York. Id. They then drove him to a nearby bus station. Id. While waiting for a bus to New York, Tanvir called Agent Tanzin, who advised Tanvir that he was no longer assigned to Tanvir. ¶ 92. Agent Tanzin told him, however, that other agents would be contacting him soon and that he should “cooperate.” Id. These interactions led Tanvir to believe that Agents Tanzin and John Doe 1–3 placed him on the No Fly List “at some time during or before October 2010 because he refused to become an informant against his community and refused to speak or associate further with the agents.” ¶ 90. His bus trip home to New York took approximately 24 hours. ¶ 93.
Two days after he returned to New York from Atlanta, the Complaint alleges that FBI Special Agent Sanya Garcia contacted Tanvir, telling him that she would assist him in getting off the No Fly List if he met with her and answered her questions. ¶ 94. Tanvir told Garcia that he had already answered the FBI’s questions and declined to meet with her. Id. Recognizing that he was still unable to fly, Tanvir eventually quit his job as a truck driver because he could no longer take a flight back to New York after completing his deliveries. ¶ 95. On September 27, 2011, he filed a complaint with the DHS Traveler Redress Inquiry Program (TRIP). ¶ 97. This program provides an administrative mechanism for removing one’s name from the No Fly List. ¶¶ 21, 57– 61.
The month after filing his TRIP complaint, Tanvir purchased tickets for a flight to Pakistan in November 2011. ¶ 98. The day before his flight, Agent Garcia called Tanvir and told him he would not be allowed to fly unless he met with her. ¶ 99. Tanvir agreed because he needed to
8

return to Pakistan to visit his ailing mother. ¶ 100. At that meeting, he was asked the same questions that Agents Tanzin and John Doe 2/3 had asked previously. ¶ 101. He answered them because he wanted to see his mother. Id. After the meeting, the agents told him that they would obtain a one-time waiver for him to fly, but that it would take several weeks to process. ¶ 102. Tanvir begged Agent Garcia to let him fly the next day. ¶ 103. She said it might be possible, but she changed her mind the next day. ¶¶ 103–104. When they spoke the next day, Agent Garcia told Tanvir that he would not be able to fly until he submitted to a polygraph. ¶ 104. Tanvir cancelled his flight, obtaining only a partial refund from the airline. Id. He also hired a lawyer, whom the agents referred to the FBI’s lawyers, who in turn told Tanvir’s lawyer to contact TRIP. ¶¶ 105, 107. Tanvir again purchased a flight to Pakistan for travel in December 2011 in the hopes of visiting his mother, whose health continued to deteriorate. ¶ 109. He was denied boarding at the airport—the third time he was unable to fly. Id.
On April 16, 2012, Tanvir received a response to his TRIP complaint, about six months after having filed it. ¶ 110. The letter did not confirm that he was on the No Fly List, but stated only that “no changes or corrections are warranted at this time.” Id. On May 23, 2012, he appealed that determination and asked the Government to provide him with the information on which it had based the determination that he could not be allowed to fly. ¶ 112.
In November 2012, Tanvir purchased another ticket to Pakistan and was again denied boarding at JFK Airport—the fourth time he was unable to fly. ¶ 113. The Complaint alleges that Tanvir and his lawyer, who had accompanied him to the airport, were approached by an FBI agent at the check-in counter, who informed them that Tanvir would not be removed from the No Fly List until he met with Agent Garcia. Id.
9

On March 28, 2013, ten months after he had filed his TRIP appeal—and well over two years after he was first denied boarding in October 2010—Tanvir received a letter from DHS superseding its initial determination of April 16, 2012. ¶ 114. The letter stated, in part, that Tanvir’s experience “was most likely caused by a misidentification against a government record or by random selection,” and that the Government had “made updates” to its records. Id. Tanvir decided to try flying again and purchased another ticket. Id.
On June 27, 2013, in what was his fifth attempt to fly since being denied boarding in October 2010, Tanvir successfully boarded a flight and flew to Pakistan. ¶ 115. He does not know whether he was able to fly as a result of a one-time waiver provided by the agents or whether he had been removed from the No Fly List. Id. Tanvir asserts that his placement on the No Fly List forced him to quit his job as a truck driver, prevented him from visiting his sick mother in Pakistan when he wished to, and resulted in financial losses, including lost income and expenses related to airline tickets. ¶¶ 116–17. He says that he also continues to fear harassment by the FBI, which causes him and his family great distress. ¶ 116.
As noted previously, Algibhah’s, Shinwari’s, and Sajjad’s allegations, including the nature of their interactions with the FBI, largely track those of Tanvir. See generally ¶¶ 118–96. As of the time this action was commenced, Algibhah had not flown since the spring of 2009, which was then the last time he saw his wife and daughters, who live in Yemen. ¶ 143. He has attempted to fly home twice since then and was denied boarding each time. Id. Algibhah asserts that several of the Agents kept his name on the No Fly List even after they determined he posed no threat to aviation security so they could retaliate against him for his refusal to become an informant. ¶ 135. Shinwari was able to fly domestically in March 2014 after first being denied boarding in March 2012 while returning from Afghanistan, although he believed his name was still on the No Fly List
10

until he was advised otherwise in June 2015. ¶ 169. He too claims that he was denied the ability to fly because he refused to become an informant. ¶ 159. Sajjad was first denied boarding in September 2012 while attempting to visit his family in Pakistan and, as of the time this motion was briefed, had not attempted to fly again since, believing his name remained on the No Fly List. ¶¶ 173, 196. Sajjad asserts that his name was kept on the No Fly List even after several of the Agents determined he had been wrongfully included as retaliation for his refusal to serve as an informant. ¶ 195.
B. Procedural History Plaintiffs brought this action on October 1, 2013 and filed their operative Complaint on
April 22, 2014. See Dkt. 15. On July 28, 2014, two separate motions to dismiss were filed. The first, on behalf of the Government, sought to dismiss all official capacity claims. See Dkt. 34.5 The second, on behalf of the Agents, sought to dismiss all personal capacity claims. See Dkt. 38. After briefing was completed, oral argument was scheduled for June 12, 2015.
On June 1, 2015, the Government moved to stay the official capacity claims. See Dkt. 89. As the Government explained, it had revised the redress procedures available through TRIP as a result of the decision in Latif v. Holder, 28 F.Supp.3d 1134 (D. Or. 2014), which held various aspects of the TRIP process inadequate under the Fifth Amendment’s Due Process Clause and the APA. See also Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958 (E.D. Va. July 16, 2015) (same); Dkt. 85 (notice from Government describing revised TRIP procedures). Plaintiffs elected to avail themselves of these revised procedures. And because Plaintiffs did so, the Government argued a stay of Plaintiffs’ official capacity claims was warranted, as those claims,
5 In light of the discussion below regarding the distinction between official and personal capacity claims, see infra at 12–14, the Court refers to the defendants sued in their official capacity as “the Government.”
11

which primarily challenge the original TRIP procedures, were or were likely to become moot in light of the revised TRIP procedures.
Plaintiffs initially resisted the Government’s request for a stay. See Pls. Letter of June 3, 2015, Dkt. 91. But on June 8, 2015—less than a week before oral argument—Plaintiffs each received a letter from DHS advising them that: “At this time the U.S. Government knows of no reason you should be unable to fly. This determination, based on the totality of available information, closes your DHS TRIP inquiry.” See Pls. Letter of June 10, 2015, Dkt. 92. In light of that development—apparently indicating that Plaintiffs are not now on the No Fly List— Plaintiffs consented to a stay of their official capacity claims. Id. The Court ordered such a stay and administratively terminated the official capacity motion to dismiss. See Dkt. 93. Only Plaintiffs’ claims against the Agents in their personal capacities remain active at this time.
DISCUSSION
A. Introduction The difference between official capacity claims, which are not at issue in this motion, and
personal capacity (sometimes called “individual” capacity claims), which are, has long been a source of confusion, see generally Kentucky v. Graham, 473 U.S. 159, 163–68 (1985), and some background is appropriate given the centrality of those distinctions to the claims made here. The starting point is that “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). In other words, the Government cannot be sued without its consent. That rule may bar a suit even when an action is commenced against an individual government official instead of a governmental agency “if the decree would operate against the latter,” Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam), as is usually the case when a plaintiff seeks an order in the form of an injunction commanding or
12

preventing some action. Such a suit is known as an “official” capacity claim because it is
effectively a suit against the Government, regardless of the named party.6
In 1976, Congress amended the APA to include a formal waiver of the United States’
sovereign immunity from claims “seeking relief other than money damages” against “an agency
or an officer or employee thereof … in an official capacity or under color of legal authority.” 5
U.S.C. § 702; see also B.K. Instrument, Inc. v. United States, 715 F.2d 713, 723–25 (2d Cir. 1983)
(describing Congress’s intention with the APA amendments to “eliminate the sovereign immunity
defense in all equitable actions for specific relief against a Federal agency or officer acting in an
official capacity”) (quotation omitted). As a result, sovereign immunity does not pose a barrier to
claims seeking injunctive or declaratory relief against the Government and its officers when they
are sued in their official capacities.
Significant for present purposes, however, neither the APA nor any other statute relevant
in this context waives the Government’s immunity (or the immunity of its officers sued in their
official capacity) from damages claims.7 There is no disagreement among the parties on this point.
See Pls. Mem. at 84; Defs. Reply at 1 n.1. But this is the significance of suits against government
officials in their “personal” capacities: Where an official is sued in his or her personal capacity,
6 The Supreme Court has explained that the Government is the real party in interest “if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620 (1963) (quotations omitted). That approach reflects the commonsensical observation that the Government can act only through agents and thus, for example, “when the agents’ actions are restrained, the sovereign itself may, through [the agents], be restrained.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688 (1949). As a result, where the effect of a judgment would operate against the Government, a suit against a named federal officer “is not a suit against the official [personally] but rather is a suit against the official’s office.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Because these suits are really suits against the Government, when officials sued in their official capacity die or leave office, their successors automatically assume their roles in the litigation, as Attorney General Loretta E. Lynch did in this case for former Attorney General Eric J. Holder. See Fed. R. Civ. P. 25(d)(1); Dkt. 93 (order substituting Lynch for Holder).
7 The United States has, however, waived its immunity from damages in other contexts. See, e.g., the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491 (certain contracts claims); see also United States v. Mitchell, 463 U.S. 206, 212– 16 (1983) (recounting history of the Federal Government’s waiver of immunity from suits for damages).
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sovereign immunity does not apply. Unlike official capacity suits, “[p]ersonal-capacity suits … seek to impose individual liability upon a government officer for actions taken under color of [federal] law.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (emphasis added). Because any award of money damages in such a suit (theoretically) comes from the official’s own pocket, there is no concern about sovereign immunity.8 The common-law cause of action first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983 are two mechanisms that may provide for personal capacity damages actions in the constitutional context against federal and state officers, respectively, while several federal statutes may provide for such damages in other contexts.9
Here, Plaintiffs seek injunctive and declaratory relief against Defendants sued in their official capacities and money damages from a subset of Defendants—namely, the Agents—in their personal capacities. See Pls. Mem. at 49 n.24. As resolution of the official capacity claims has been left for another day by consent of the parties, this opinion addresses only whether the specific theories by which Plaintiffs seek to recover damages from the Agents in their personal capacities are legally viable. Plaintiffs advance arguments under both Bivens and RFRA, a federal statute that provides for “appropriate relief” in certain situations where an individual’s ability to freely exercise his faith has been substantially burdened by the Government or its agents. 42 U.S.C. § 2000bb-1(c). For the reasons that follow, neither of these two arguments ultimately succeeds.10
8 As a practical matter, the Government almost always indemnifies its officials from such suits and provides representation through lawyers from the Department of Justice. See 28 C.F.R. § 50.15. Indeed, that is true for the Agents’ representation in this case.
9 For examples of such statutes, see infra at 32. 10 The Agents also argue pursuant to Fed. R. Civ. P. 12(b)(2) that the Court lacks personal jurisdiction over multiple Agents. See Defs. Mem. at 61–66. After submissions from the parties concerning Plaintiffs’ request for limited jurisdictional discovery in order to oppose that aspect of the Agents’ motion, the Court accepted the Agents’ suggestion to defer consideration of that aspect of their motion to dismiss until the balance of the motion was resolved. See 09/16/2014 Tr. 36, Dkt. 69. Given the holdings in this opinion, the personal jurisdiction arguments are now moot.
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B. Bivens Is Unavailable in This Context In Bivens, the Supreme Court “recognized for the first time an implied private action for
damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Although initially predicated on the traditional understanding that the existence of a right must imply a remedy, see Bivens, 403 U.S. at 397 (citing Marbury v. Madison, 1 Cranch 137, 163 (1803)), the Supreme Court has since “rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court,” Malesko, 534 U.S. at 69. Thus, although sometimes described as “the federal analog to suits brought against state officials under [42 U.S.C. § 1983],” Hartman v. Moore, 547 U.S. 250, 2545 n.2 (2006), Bivens is far more limited than § 1983 because “a Bivens remedy is not available for all who allege injury from a federal officer’s violation of their constitutional rights,” Turkmen v. Hasty, 789 F.3d 218, 234 (2d Cir. 2015). Indeed, a Bivens action “is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances … a Bivens remedy [is] unjustified.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
A federal court asked to imply a Bivens remedy in 2015 must approach that task with circumspection. Although the Supreme Court has twice implied Bivens actions since Bivens itself was decided, see Davis v. Passman, 442 U.S. 228 (1979) (employment discrimination in violation of Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment violation by prison officials), in the more than three decades since the last of the Bivens trilogy was decided, the Supreme Court has “consistently refused to extend Bivens liability to any new context or new category of defendants,” Malesko, 534 U.S. at 68; accord Arar v. Ashcroft, 585 F.3d 559, 571 (2d
Finally, the Agents have argued that the claims against John Does 1 and 2/3 are time-barred. See Defs. Mem. at 66– 69. The Court need not reach that argument in light of its conclusion that no relief is available against them.
15

Cir. 2009) (en banc) (“[T]he Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts.”) (internal quotation marks omitted).
The Supreme Court’s refusal to recognize a new Bivens action since 1980 is not for want of opportunity. See, e.g., Bush v. Lucas, 462 U.S. 367 (1983) (federal employee’s claim that his federal employer dismissed him in violation of the First Amendment); Chappell v. Wallace, 462 U.S. 296 (1983) (claim by military personnel that military superiors violated various constitutional provisions); United States v. Stanley, 483 U.S. 669 (1987) (similar); Schweiker v. Chilicky, 487 U.S. 412 (1988) (claim by recipients of Social Security disability benefits that benefits had been denied in violation of the Fifth Amendment); Meyer, 510 U.S. 471 (former bank employee’s suit against a federal banking agency, claiming that he lost his job due to agency action that violated the Fifth Amendment’s Due Process Clause); Malesko, 534 U.S. 61 (prisoner’s Eighth Amendment-based suit against a private corporation that managed a federal prison); Wilkie, 551 U.S. 537 (ranch owner’s claim for harassment and intimidation against federal land management officials under Fourth and Fifth Amendments); Minneci v. Pollard, 132 S. Ct. 617 (2012) (prisoner’s Eighth Amendment-based claim against employees of privately-operated federal prison).
Although the Court has on each of these occasions explained its refusal to extend Bivens with reasons specific to the particular context, this generation of Bivens jurisprudence appears rooted in the more fundamental judgment that “‘Congress is in a far better position than a court to evaluate the impact of a new species of litigation’ against those who act on the public’s behalf.” Wilkie, 551 U.S. at 562 (quoting Bush, 462 U.S. at 389); see also E. Chemerinsky, Federal Jurisdiction § 9.1, p. 633 (6th ed. 2011) (“There is no way to understand the law concerning Bivens suits except in the context of how the Court’s attitudes toward such claims has changed.”). Indeed,
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one Justice has observed that it is “doubtless correct that a broad interpretation of [Bivens’] rationale would logically produce [its] application [in more contexts],” but noted that he was “not inclined (and the Court has not been inclined) to construe Bivens broadly.” Malesko, 534 U.S. at 75 (Scalia, J., concurring) (emphasis in original). As a consequence, “[w]hatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated.” Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (en banc).
Against that background, the Second Circuit’s recent decision in Turkmen, which was handed down only days after oral argument on this motion, is instructive—and, indeed, dispositive. As in this case, Turkmen raised “a difficult and delicate set of legal issues concerning individuals who were caught up in the post–9/11 investigation even though they were unquestionably never involved in terrorist activity.” 789 F.3d at 224. The plaintiffs in Turkmen were eight Muslim or Arab non-citizens who were detained by the federal government in the aftermath of 9/11. Id. While detained, they were, among other things, allegedly subjected to frequent physical and verbal abuse, denied copies of the Koran for weeks or months after requesting them, denied the Halal food required by their Muslim faith, and mocked by prison officials while they prayed. Id. at 227– 28. For these alleged injuries, the plaintiffs sought, among other things, a Bivens remedy against various government officials under the First, Fourth, and Fifth Amendments. Id. at 225.
In light of the Supreme Court’s—and the Second Circuit’s—repeated admonitions against extending Bivens to new contexts, Turkmen carefully analyzed the context of the claims asserted by the plaintiffs there. The panel majority looked to “both the rights injured and the mechanism of the injury.” Id. at 234; accord Arar, 585 F.3d at 572 (defining context as “a potentially recurring scenario that has similar legal and factual components”). It explained that the rights injured were those secured by the First Amendment’s Free Exercise Clause, the Fifth Amendment’s Due
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Process Clause, and the Fourth Amendment’s prohibition against unreasonable searches, id. at 235–37, while the mechanism of injury involved “punitive conditions [of confinement in a federal facility in the custody of federal officials] without sufficient cause,” id. at 235. Significant for present purposes, although the panel determined that the combination of rights injured and mechanism of injury “st[ood] firmly within a familiar Bivens context” with respect to the Turkmen plaintiffs’ Fourth and Fifth Amendment claims, see id. at 235, 237 (collecting cases), that was not so with respect to their First Amendment claim. With respect to that claim, “it [was] the right injured—Plaintiffs’ free exercise right—and not the mechanism of injury that place[d] Plaintiffs’ claims in a new Bivens context.” Id. at 236. As the panel majority explained, “the Supreme Court has ‘not found an implied damages remedy under the Free Exercise Clause’ and has ‘declined to extend Bivens to a claim sounding in the First Amendment.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); accord id. at 268 n.3 (Raggi, J., concurring in part and dissenting in part) (“[T]he Supreme Court [has] consistently declined to extend a Bivens remedy to a First Amendment claim in any context.”) (emphasis in original); Reichle v. Howards, 132 S. Ct. 2088, 2093, n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”). Indeed, Turkmen leaves no doubt that recognizing a “free exercise claim would require extending Bivens to a new context”—“a move [the panel] decline[d] to make absent guidance from the Supreme Court.” 789 F.3d at 237. In so concluding, the panel explicitly reversed the holding of the district court. See Turkmen v. Ashcroft, 915 F.Supp.2d 314, 352 (E.D.N.Y. 2013) (“Bivens should be extended to afford the plaintiffs a damages remedy if they prove the alleged violation of their free exercise rights.”).
In supplemental briefing, Plaintiffs seek to distinguish Turkmen by arguing that its holding is limited to free exercise claims, not the panoply of other rights under the First Amendment. See
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Pls. Letter of July 14, 2015 at 1–2, Dkt. 97. To that end, Plaintiffs assert that their Bivens claim is
grounded not merely in the Free Exercise Clause, but in several other First Amendment rights,
including “the freedom of speech … and the closely-intertwined right of free association.” Id. at
2.11 Although Plaintiffs are no doubt correct that the Turkmen plaintiffs’ First Amendment claim
was limited to the Free Exercise Clause, they overlook the fact that Turkmen itself is
unambiguously predicated on the understanding that the Supreme Court has never recognized a
Bivens claim in the First Amendment context at all. See 789 F.3d at 236 (noting the Supreme
Court has “‘declined to extend Bivens to a claim sounding in the First Amendment’” (quoting
Iqbal, 556 U.S. at 675). That understanding is sufficient to conclude that the relief Plaintiffs seek
here requires extending Bivens to a new context, whether the right injured is freedom of speech,
religion, or association. In other words, while Turkmen plainly forecloses a Bivens remedy for
free exercise claims, the decision at a minimum also reiterates the Supreme Court’s own
pronouncements that any claim sounding in the First Amendment would require extending Bivens
to a new context.12
11 Although the First Amendment’s text explicitly safeguards the freedom to speak and to worship (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech …”), the Supreme Court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Whether Plaintiffs’ allegations sufficiently make out a First Amendment retaliation claim—under free exercise, speech, or association theories, see ¶¶ 200–01, 203—is an important question that the Court need not, and does not, reach in light of its conclusion that Bivens is unavailable in this context and the fact that the Agents have not raised the issue here. Indeed, the Agents do not argue that Plaintiffs fail to state a First Amendment claim because, for example, Plaintiffs’ refusal to cooperate is not protected speech or protected associational activity under the First Amendment, or that the Agents’ alleged conduct could not infringe Plaintiffs’ free exercise rights. Rather, their argument appears to be limited to the claim that “Plaintiffs fail to allege that each Agent defendant was a proximate cause of, or personally involved in, Plaintiffs’ alleged inclusion on the No Fly List,” Defs. Mem. at 39, and that “the alleged First Amendment rights at issue were not clearly established,” id. at 51; see also Defs. Reply at 34–37. But see Ayala v. Harden, No. 1:12-CV-00281-AWI, 2012 WL 4981269, at *2 (E.D. Cal. Oct. 17, 2012) (concluding in summary fashion that “[r]efusal to become an informant is not a protected First Amendment activity”).
12 Although Plaintiffs cannot be faulted for pointing to a sentence in the Supreme Court’s decision in Hartman suggesting the availability of a Bivens remedy in the anti-retaliation context, see Pls. Mem. at 39–40, the Court has resolved any ambiguity created by Hartman in subsequent decisions by at least twice reiterating that it has never recognized a Bivens claim in the First Amendment context. See Iqbal, 556 U.S. at 675 (“[W]e have declined to extend
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Even assuming, however, that the right at issue did not place Plaintiffs’ claims in a new
context, the mechanism of injury in this case surely does. Although Plaintiffs argue that the FBI
agents’ use of the No Fly List to retaliate against them merely represents “a new tool [that] does
not transform a familiar pattern of misconduct into a novel context for purposes of recognizing a
Bivens claim,” Pls. Mem. at 43, Turkmen makes plain that this view is mistaken. A distinct
mechanism of injury—such as the extraordinary rendition alleged in Arar—can “present[] a new
Bivens to a claim sounding in the First Amendment.”); Reichle, 132 S. Ct. at 2093 n.4 (“We have never held that Bivens extends to First Amendment claims.”)
The Supreme Court granted certiorari in Hartman to determine whether plaintiffs in retaliatory-prosecution suits bear the burden of showing a lack of probable cause. See 547 U.S. at 255–56. At the time, the D.C. Circuit, from where Hartman emerged, had long recognized a Bivens action in the First Amendment context, see, e.g., Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (Bivens available for false arrest of Vietnam War protestors on U.S. Capitol steps), and specifically for retaliatory prosecution, see, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1274 (D.C. Cir. 1987). The petitioners in Hartman did not seek review—nor did the Supreme Court grant review—on the predicate question of whether Bivens was available for First Amendment retaliation. It was against that background that Justice Souter, in an introductory paragraph of his opinion, observed that “[w]hen the vengeful [prosecutor] is [a] federal [officer], he is subject to an action for damages on the authority of Bivens,” and cited Bivens without further analysis. Id. at 256.
But in light of Hartman’s posture—and the careful consideration that the Supreme Court has given to the availability of Bivens in each context where it has recognized Bivens’ availability—that single sentence simply cannot bear the weight Plaintiffs would put on it. Bivens’ availability “was not at issue” in Hartman, “the point … was not then fully argued,” and the Court “did not canvas the considerations” it invariably does in such cases. Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1368 (2013). As such, Hartman is better read as assuming—not deciding— the question of Bivens’ availability in the First Amendment retaliation context. See, e.g., Wood v. Moss, 134 S. Ct. 2056, 2066 (2014) (observing eight years after Hartman was decided that “we have several times assumed without deciding that Bivens extends to First Amendment claims”). Indeed, Iqbal explicitly noted that “[t]he legal issue decided in Hartman concerned the elements a plaintiff ‘must plead and prove in order to win’ a First Amendment retaliation claim.” Iqbal, 556 U.S. at 673 (quoting Hartman, 547 U.S. at 257 n.5). And while the Court has cited Hartman on five occasions—including significant discussions in Iqbal and Reichle—not once has it suggested Hartman decided the availability of a Bivens remedy for First Amendment retaliation.
Plaintiffs also correctly note that the Second Circuit once described Hartman as “reiterat[ing] the general availability of a Bivens action to sue federal officials for First Amendment retaliation.” See M.E.S., Inc. v. Snell, 712 F.3d 666, 675 (2d Cir. 2013). But even assuming that is a fair characterization of Hartman, Snell distinguished Hartman and declined to imply a Bivens remedy for alleged First Amendment retaliation, id.; no other decision of the Second Circuit has relied on Snell or Hartman for the proposition that Bivens is available for a First Amendment antiretaliation claim; and the author of the Snell opinion was a member of the more recent Turkmen panel and agreed with the panel majority that “the Supreme Court [has] consistently declined to extend a Bivens remedy to a First Amendment claim in any context,” 789 F.3d at 268 n.3 (Raggi, J., concurring in part and dissenting in part) (emphasis in original). As such, Snell offers Plaintiffs little support for the proposition that a Bivens claim already exists for antiretaliation claims. The other out-of-circuit cases cited by Plaintiffs overread Hartman for the reasons discussed above. See, e.g., George v. Rehiel, 738 F.3d 562, 585 n.24 (3d Cir. 2013).
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context for Bivens-based claims.” Turkmen, 789 F.3d at 234.13 Here, Plaintiffs cannot point to
any case recognizing a Bivens remedy for a federal officer’s retaliation against an individual by
placing or maintaining that individual’s name on the No Fly List or, more generally, any
government watch list. Nor can Plaintiffs point to a case recognizing a Bivens action where the
mechanism of injury was the imposition of a substantial burden on an individual’s ability to travel.
Thus, whether viewed through the lens of the rights injured or the mechanism of injury, Plaintiffs
ask this Court to extend Bivens to a new context.
Given the current state of Bivens jurisprudence, the conclusion that Plaintiffs seek to extend
Bivens to a new context could end the inquiry. Indeed, in Turkmen, the court declined to “extend[]
Bivens to a new context … absent guidance from the Supreme Court,” without undertaking any
additional analysis of whether Bivens might be appropriate in that context. Id. at 237; see also
Iqbal, 556 U.S. at 675 (observing that the Court’s “reluctance [to extend Bivens since 1980] might
well have disposed of respondent’s First Amendment claim of religious discrimination”). That
said, after concluding a given claim involves extending Bivens to a new context, a court should
generally consider “(a) whether there is an alternative remedial scheme available to the plaintiff,
and, even if there is not, (b) whether special factors counsel hesitation in creating a Bivens
remedy.” Turkmen, 789 F.3d at 234 (quotations omitted). The Court will do so here.
13 Turkmen emphasizes the right at issue and the mechanism of injury in determining whether a claim presents a new context. When confronted with a new Bivens context, a court must assess whether an alternative remedial scheme exists before recognizing a Bivens remedy. Turkmen, 789 F.3d at 234 (citing Arar, 585 F.3d. at 572). That inquiry ensures, among other things, that a court does not imply a remedy for an injury when an alternative scheme to remedy that injury already exists. A court need not consider alternative remedial schemes, however, where a claim arises in an existing context, since the determination of whether or not Bivens is available in that context—and whether an alternate remedial scheme is available—has already been made. Id. at 237 n.17. Taking these two rules together makes clear that a failure to also consider the injury in determining whether a claim presents a new context would short-circuit the Bivens analysis because it risks ignoring a remedial scheme addressing that very injury. Thus, the upshot of Plaintiffs’ favored approach, which would appear to ignore the particular form of injury as nothing more than a “new tool,” would be the expansion of Bivens based solely on the right at issue without regard for remedial schemes that may exist—a result plainly contrary to the Supreme Court’s contemporary Bivens jurisprudence.
21

The existence of a system of administrative and judicial remedies for individuals who have been improperly included on the No Fly List—the precise mechanism of injury in this case—is sufficient to conclude that Bivens should not be extended to this context. Specifically, Congress has directed the TSA to “establish a timely and fair process for individuals identified [under the TSA’s passenger prescreening function] to appeal to the [TSA] and correct any erroneous information.” 49 U.S.C. § 44903(j)(2)(G)(i). The TSA is also required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” § 44903(j)(2)(C)(iii)(I). Congress also mandated that “[t]he Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by the [TSA],” § 44926(a), and that the Secretary “shall establish” procedures “to implement, coordinate, and execute the process” for redress, § 44926(b)(1). These legislative directives have resulted in the DHS TRIP program. See 49 C.F.R. § 1560.201 et seq. The TSA is also required to maintain records for individuals whose information has been corrected through its redress process. See §§ 44903(j)(2)(G)(ii), 44926(b)(2). Finally, Congress has provided for judicial review of orders pertaining “to security duties and powers designated to be carried out by” the TSA. § 46110(a). The bottom line, then, is that Congress has crafted a remedial scheme for individuals to challenge their inclusion on the No Fly List and to judicially appeal an adverse determination.14
14 In their official capacity claims, Plaintiffs argue that this scheme of judicial review is not exclusive and that they have recourse in this Court under the APA for their claims concerning “the constitutional ‘adequacy’ of No Fly List placement, redress, and removal procedures.” Pls. Mem. at 25. Two courts of appeal have agreed with this argument, albeit in the context of the original TRIP regime, not the revised one. See Ibrahim v. Dep’t of Homeland
22

Plaintiffs respond that this remedial scheme does not provide for damages from the Agents
personally and, “[a]s such, TRIP and § 46110 are incapable of providing remedies for the
constitutional violations that the Special Agent Defendants committed.” Pls. Mem. at 45. The
remedies Congress has chosen to provide, however, “need not be perfectly congruent,” Minneci,
132 S. Ct. at 625, and they need not even “provide complete relief,” Bush, 462 U.S. at 388. Indeed,
although there can be no dispute here that the scheme created by Congress does not provide relief
in the form of compensatory or punitive damages from the Government or the Agents, “[i]t does
not matter that the creation of a Bivens remedy would obviously offer the prospect of relief for
injuries that must now go unredressed.” Hudson Valley Black Press v. I.R.S., 409 F.3d 106, 110
(2d Cir. 2005) (quotation marks and alterations omitted). “That a particular plaintiff might suffer
‘unredressed’ injuries were a court not to recognize a new type of Bivens action may be a hard
truth but it is a truth nonetheless and one to which the Supreme Court has alerted potential
litigants.” Aryai v. Forfeiture Support Associates, 25 F.Supp.3d 376, 395 (S.D.N.Y. 2012)
(Preska, C.J.). The Court’s jurisprudence instructs that the salient point, rather, is that Congress
has provided “what it considers adequate” for the relevant injury. Chilicky, 487 U.S. at 431 (1988)
(emphasis added).15 “So long as the plaintiff[s] ha[ve] an avenue for some redress, bedrock
Sec., 538 F.3d 1250 (9th Cir. 2008); Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012); Arjmand v. U.S. Dep’t of Homeland Sec., 745 F.3d 1300 (9th Cir. 2014); Ege v. U.S. Dep’t of Homeland Sec., 784 F.3d 791 (D.C. Cir. 2015). The Fourth Circuit has also adopted that reasoning in an unpublished opinion. See Mohamed v. Holder, No. 11-1924, slip op. at 4–6 (4th Cir. May 28, 2013). Were the official capacity claims to proceed and were this Court to accept Plaintiffs’ argument, Plaintiffs would thus have a further remedial path that may be sufficient to preclude the availability of a Bivens remedy. See, e.g., Western Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) (“[T]he APA leaves no room for Bivens claims based on agency action or inaction.”); Sinclair v. Hawke, 314 F.3d 934, 940 (8th Cir. 2003) (“[T]he existence of a right to judicial review under the Administrative Procedure Act is sufficient to preclude a Bivens action.”); Miller v. U.S. Dep’t of Agr. Farm Servs. Agency, 143 F.3d 1413, 1416 (11th Cir. 1998) (“[T]he existence of a right to judicial review under the APA is, alone, sufficient to preclude a federal employee from bringing a Bivens action.”).
15 Analysis at this stage “include[s] an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Chilicky, 487 U.S. at 423. And as Plaintiffs’ themselves concede, “[t]he legislative history of the No Fly List remedial scheme shows that Congress considered, and struck down, an amendment that would create a civil remedy against the Government if, following the TRIP review process, the TSC decided not to remove the complainant from the No Fly List.” Pls. Mem. at 47 n.3. See H.R. Rep. No. 108-724, pt. 5, at 270–71
23

principles of separation of powers foreclose[] judicial imposition of a new substantive liability.” Malesko, 534 U.S. at 69 (emphasis added). Indeed, it appears that the alternative remedial scheme here is far more comprehensive—and effective—than that available to the Turkmen plaintiffs. Cf. Turkmen, 915 F.Supp.2d at 353.
Nor is it relevant that Congress may not have had constitutional violations of the sort alleged here—as opposed to administrative errors—in mind when crafting the administrative and judicial review scheme it did. See Pls. Mem. at 44. The Supreme Court has explicitly rejected the argument that a remedy is inadequate because claimants “merely received that to which they would have been entitled had there been no constitutional violation.” Chilicky, 487 U.S. at 427. In both Bush and Chilicky, the Court rejected claims that a Bivens remedy was necessary because the statutory schemes did not provide for relief specifically intended to compensate a constitutional violation (First Amendment retaliation and Due Process violations, respectively) as opposed to the denial of a statutory right. “In neither case … [did] the presence of alleged unconstitutional conduct that is not separately remedied under the statutory scheme imply that the statute has provided ‘no remedy’ for the constitutional wrong at issue.” Id. at 427–28 (emphasis in original). As Justice O’Connor explained in Chilicky, “the harm resulting from the alleged constitutional violation can in neither case be separated from the harm resulting from the denial of the statutory right.” Id. at 428. The same is true here. The crux of Plaintiffs’ injury is their improper inclusion on the No Fly List as a result of the Agents’ alleged retaliation. And whether that injury resulted
(2004). Plaintiffs seek to sidestep this legislative history because it concerns “a remedy against the Government, not individual nominating agents.” Pls. Mem. at 47 n.3. But nowhere has the Supreme Court suggested that courts should look only to whether Congress has considered the specific question of damages against federal officers in their personal capacity. Here, Plaintiffs agree that Congress considered the question of what remedies would be appropriate in the context of the No Fly List and specifically rejected the option of a civil remedy. “Congress’s pronouncements in the relevant context [thus] signal that it would not support … a damages claim,” Lebron v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012) (Wilkerson, J.), and reinforce the conclusion that a Bivens remedy is inappropriate here.
24

from administrative error, a constitutional violation, or both, the dispositive point is that Congress’ remedial scheme addresses precisely that injury.
In concluding that the remedial scheme crafted by Congress forecloses the recognition of a Bivens action, the Court does not overlook the fact that Plaintiffs in their official capacity claims challenge the procedural adequacy of that scheme. This Court does not today consider whether the TRIP process is constitutionally or otherwise deficient. Because the official capacity claims are now stayed, the procedural adequacy of that scheme, including the TRIP process, is a question for another day. For purposes of assessing the viability of a Bivens claim, however, it is enough to recognize that an alternative remedial process is available. Indeed, Plaintiffs have availed themselves of that process and now have assurances from the Government that they are not presently on the No Fly List. That is more than enough to conclude that the creation of a Bivens remedy is inappropriate in these circumstances. 16
C. RFRA Does Not Provide for Damages Against The Agents Plaintiffs also seek damages against the Agents pursuant to RFRA. Section 3 of that
statute, which creates a private right of action and provides for judicial remedies to enforce that right, states, in pertinent part, 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 appropriate relief against a government.
16 Because an alternative remedial scheme is available in this context, the Court need not proceed to the second stage of inquiry and consider the applicability of any additional special factors, including the parties’ divergent arguments concerning the national security implications of recognizing a Bivens action in this context. See Defs. Mem. at 18–22; Pls. Mem. at 48–52.
25

42 U.S.C. § 2000bb-1(c). The principal question that divides the parties here is the meaning of
“appropriate relief.” Specifically, does the notion of “appropriate relief” encompass money
damages against government officials in their personal capacities?17
“Statutory construction begins with the plain text and, if that text is unambiguous, it usually
ends there as well.” United States v. Gayle, 342 F.3d 89, 92 (2d Cir. 2003). This is not the usual
case, however, because the plain text of RFRA merely raises, rather than answers, the critical
question. As the Supreme Court has recognized with respect to RFRA’s companion statute, which
includes identical language in this respect, the phrase “‘appropriate relief’ is open-ended and
ambiguous about what types of relief it includes.” Sossamon v. Texas, 131 S. Ct. 1651 (2011).18
Indeed, “[f]ar from clearly identifying money damages, the word ‘appropriate’ is inherently
context-dependent.” Id. “In some contexts, ‘appropriate relief’ might include damages.” Webman
v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006). But “another plausible reading
is that ‘appropriate relief’ covers equitable relief but not damages.” Id. While the Supreme Court
has acknowledged the availability of injunctive relief under RFRA, see Gonzales v. O Centro
17 The parties also dispute whether federal officials in their personal capacities are included within RFRA’s definition of “government” and thus amenable to suit under the statute at all. At least two courts appear to have concluded that RFRA applies to personal capacity claims against federal officials. See United Elmaghraby v. Ashcroft, No. 04-CV-1809 (JG), 2005 WL 2375202, at *30 n.27 (E.D.N.Y. Sept. 27, 2005), aff’d in part, rev’d in part and remanded sub nom., Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), rev’d and remanded sub nom., Ashcroft v. Iqbal, 556 U.S. 662 (2009); Solomon v. Chin, No. 96-CIV-2619 (DC), 1997 WL 160643, at *5 (S.D.N.Y. Apr. 7, 1997). At least one other court, however, has expressed some doubts about such a conclusion, at least in the national security context. See Lebron, 670 F.3d at 557. This Court need not address the issue, however, in light of its conclusion that money damages are unavailable under RFRA because, even assuming the Agents may be sued in their personal capacities, Plaintiffs’ RFRA claim against the Agents in their personal capacities here is limited to money damages. See Pls. Mem. at 49 n.24.
18 When the Supreme Court held RFRA unconstitutional as applied to state and local governments because it exceeded Congress’ power under § 5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (“Congress does not enforce a constitutional right by changing what that right is.”), Congress responded by enacting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq., pursuant to its Spending Clause and Commerce Clause authority. See Sossamon, 131 S. Ct. at 1656. “RLUIPA borrows important elements from RFRA … includ[ing] an express private cause of action that is taken from RFRA.” Id. at 1656. For that reason, courts often apply “case law decided under RFRA to issues that arise under RLUIPA” and vice-versa. Redd v. Wright, 597 F.3d 532, 535 n.2 (2d Cir. 2010).
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Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425–30 (2006), neither the Supreme Court
nor any of the thirteen courts of appeals has held that RFRA provides for money damages.19 The
question, then, remains: Does “appropriate relief” in the context of RFRA encompass such
damages? The answer is no.
Although the statute’s plain text is wanting in clarity, “[t]he purpose and history of the
statute elucidate the meaning of this ambiguous phrase.” United States v. Tohono O’Odham
Nation, 131 S. Ct. 1723, 1736 (2011) (Sotomayor, J., concurring); see also King v. Burwell, 135
S. Ct. 2480, 2496 (2015) (“A fair reading of legislation demands a fair understanding of the
legislative plan.”). Indeed, Congress included detailed findings and an unambiguous statement of
the law’s purpose in the statute itself. Section 2 of RFRA, codified at § 2000bb(b), provides that:
The purposes of this Act are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
19 Three courts of appeals have held that RFRA does not provide for money damages against the United States (or its agents acting in their official capacities) on the basis that “appropriate relief” cannot include damages because the language does not amount to an unambiguous waiver of sovereign immunity. See Webman, 441 F.3d at 1026; Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 841 (9th Cir. 2012); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015). Although the Second Circuit has not addressed the issue, Plaintiffs agree with that conclusion, see Pls. Mem. at 84, and instead bring this case focusing on the remaining gap in the RFRA jurisprudence: whether a damages action exists against federal officials in their personal capacities. Because these decisions (and Sossamon) are grounded in principles of sovereign immunity, they are of limited assistance in addressing the question of damages against those who “come to court as individuals,” Hafer, 502 U.S. at 27. At most, they may counsel caution in concluding that the same term—even one as malleable as “appropriate relief”—can include damages as applied to one class of defendants but not another.
The Court has also considered the Agents’ argument concerning Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013), which held that RLUIPA does not provide for damages against state officials in their personal capacities. As the panel explained, RLUIPA “was enacted pursuant to Congress’ spending power, see 42 U.S.C. § 2000cc– 1(b)(1), which allows the imposition of conditions, such as individual liability, only on those parties actually receiving the state funds.” Id. at 145. Because the parties receiving the federal funds were state prison institutions, not state prison officials, Gonyea concluded “as a matter of statutory interpretation and following the principle of constitutional avoidance” that RLUIPA did not create a personal capacity damages action. Id. at 146. RFRA, by contrast, “was authorized by the Necessary and Proper Clause.” Hankins v. Lyght, 441 F.3d 96, 106 (2d Cir. 2006). As such, the doctrinal concerns underlying the conclusion in Gonyea do not assist here.
27

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. RFRA was enacted three years after the Supreme Court’s watershed decision in Employment Division v. Smith, 494 U.S. 872 (1990), which, as the Act itself recounts, “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” § 2000bb(a)(4). Prior to Smith, the Supreme Court had employed a balancing test that took into account whether the challenged state action imposed a substantial burden on the right to free exercise of religion, and if it did, whether that action was necessary to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U.S. at 408–409. And applying a similar approach, the Court held in Yoder that Amish children could not be required by state law to remain in school until the age of 16 over the objection of their parents, who viewed such education “as an impermissible exposure of their children to a ‘wordly’ influence in conflict with their beliefs.” 406 U.S. at 210–211, 234–236. The plaintiffs in Smith were two individuals who had been fired from their jobs at a drug rehabilitation center because they had ingested peyote as part of a religious ceremony of the Native American Church, of which they were both members. 494 U.S. at 874. They were subsequently denied state unemployment benefits after being found ineligible because of their discharge for work-related “misconduct.” Id. Citing Supreme Court precedent, including Sherbert, the Oregon Supreme Court concluded that “the state could not, consistent with the First Amendment, deny unemployment compensation to petitioners.” Smith v. Employment Div., 307 Or. 68, 71 (1988). The Supreme Court reversed. In his opinion for the closely divided Court, Justice Scalia noted that its decisions “have consistently held that the right of free exercise does not relieve an individual of the obligation to
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comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (quotation omitted). Indeed, Smith cautioned that “a private right to ignore generally applicable laws” would prove “a constitutional anomaly.” Id. at 886. In so concluding, Smith distinguished the Court’s earlier decisions in Sherbert and Yoder, confining the former to its facts, see id. at 884– 85, and holding that the latter involved more than just the free exercise of religion, see id. at 881 (discussing “the Free Exercise Clause in conjunction with other constitutional protections,” such as the right of parents to direct the education of their children). Notable for present purposes, Smith did not change the remedies available for a successful claim under the Free Exercise Clause. Indeed, it says nothing about remedies at all.
Congress responded to Smith by affording greater statutory protection than the Court in Smith had held the Constitution offered.20 Specifically, it concluded that “the compelling interest test as set forth in prior Federal court rulings”—that is, in Sherbert and Yoder—offered “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” § 2000bb(a)(5). As a result, in enacting RFRA, Congress sought “to restore the compelling interest test as set forth” in those earlier cases. § 2000bb(b). The Act thus
20 While some have spoken of RFRA “overturning” Smith, “a statute cannot either enlarge or contract the Constitution.” Mack v. O’Leary, 80 F.3d 1175, 1181 (7th Cir. 1996), vacated on other grounds, 522 U.S. 801 (1997). That Congress would seek to create a new statutory right that exceeded constitutional baselines, however, is not remarkable. “Indeed, Congress has often provided statutory protection of individual liberties that exceed the Supreme Court’s interpretation of constitutional protection.” Hankins, 441 F.3d at 107 (quotation omitted). In that respect, one aspect of RFRA’s test is significant. As noted in City of Boerne, “the Act imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify.” 521 U.S. at 535. “On this understanding of [the Supreme Court’s] pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 n.3 (2014). As discussed below, however, that breadth did not include expanding the scope of remedies available as compared with those previously available for constitutional violations.
29

created a new statutory right beyond the constitutional baseline articulated in Smith by providing that:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
§ 2000bb–1. In order to ensure that this new statutory right (albeit one based in erstwhile constitutional doctrine) could be vindicated in the courts, Congress also created a private right of action in § 3 providing for “appropriate relief” against the Government.
Plaintiffs, however, see something more ambitious in RFRA. In addition to restoring the standard by which free exercise claims were adjudicated, Plaintiffs appear to argue the language in § 3 demonstrates Congress’ intent to expand the scope of remedies available where an individual’s religious freedom is abridged. But as Judge Posner persuasively noted shortly after RFRA became law, since the statute “says very little about remedies … it is unlikely that Congress intended it to displace the existing remedial system for constitutional violations.” Mack v. O’Leary, 80 F.3d 1175, 1181 (7th Cir. 1996), vacated on other grounds, 522 U.S. 801 (1997). Indeed, nothing in the Act’s Congressional findings or statements of purpose says anything about changing the remedial scheme applicable to free exercise claims. And nothing on the face of the Act’s substantive provisions outwardly suggests they do anything other than carry out the law’s stated purpose—namely, restoring the compelling interest test as it existed before Smith. As noted in the discussion of official and personal capacity claims above, see supra 12–14, a Bivens action would have provided the only potential path for an individual seeking personal capacity damages
30

from a federal official for violation of the Free Exercise Clause at the time of RFRA’s enactment. And as also discussed at length above, the Supreme Court has never recognized a Bivens remedy for violations of the Free Exercise Clause. See supra at 17–20. As a consequence, to interpret RFRA’s reference to “appropriate relief” as contemplating a remedy then unknown to the law is, at the least, a stretch. Rather, the plain language of the statute read in the light of its stated purpose suggests the law changed the standard applicable to free exercise claims while retaining all remedies that were understood as “appropriate” for claims under the Free Exercise Clause—and nothing more.
The conclusion that RFRA did not displace the existing remedial scheme—whether by adding to or removing from it—is reinforced by the statute’s legislative history. Indeed, both House and Senate committee reports, which are regarded as “the most authoritative and reliable materials of legislative history,” Disabled in Action of Metro. New York v. Hammons, 202 F.3d 110, 124 (2d Cir. 2000), evidence concern about the potential misinterpretation of RFRA’s impact on existing law. For example, the Senate Judiciary Committee’s report states that “[a]lthough the purpose of this act is only to overturn the Supreme Court’s decision in Smith, concerns have been raised that the act could have unintended consequences and unsettle other areas of the law.” S. Rep. No. 103–111 (“S. Rep.”) at 12; see also H.R. Rep. No. 103–88 (“H.R. Rep.”) at 8 (including essentially identical language). In particular, the legislative history includes discussion of the bill’s potential impact on abortion rights, the ability of religious organizations to participate in publicly funded social welfare and educational programs, and the availability of tax emptions for such organizations. See S. Rep. at 12; H.R. Rep. at 8. Thus, the Senate Judiciary Committee’s report states that:
To be absolutely clear, the act does not expand, contract or alter the ability of a claimant to obtain relief in a manner consistent with the
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Supreme Courts’s [sic] free exercise jurisprudence under the compelling governmental interest test prior to Smith.
S. Rep. at 12; see also H.R. Rep. at 8 (including essentially identical language). In view of such an understanding—and against a backdrop where the Supreme Court has never recognized a Bivens remedy under the Free Exercise Clause, whether before or after Smith—it would seem strange indeed for Congress to have employed a phrase as ambiguous as “appropriate relief” to create such a remedy where one was not previously recognized.
The contrast between the language in RFRA’s remedial provision and every other federal statute identified by Plaintiffs as recognizing a personal capacity damages action against federal officers also points away from the conclusion they urge. Indeed, each of these four statutes includes specific reference to the availability of damages. Section 1985’s remedial clause speaks of “an action for the recovery of damages.” 42 U.S.C. § 1985. The Foreign Intelligence Surveillance Act permits “recover[y] … [of] actual damages … [and] punitive damages.” 50 U.S.C. § 1810. The Telecommunication Acts provides that a court “may award damages.” 47 U.S.C. § 605(e)(3). And although the Federal Wiretap Act provides for “appropriate relief,” that term is specifically defined to include “damages … and punitive damages in appropriate cases.” 18 U.S.C. § 2520(b). Because Congress knows how to create a personal capacity damages remedy (and because Plaintiffs have not pointed to a single statute where “appropriate relief” was interpreted to include such a remedy without an explicit definition to that effect), one might reasonably expect such language if Congress in fact intended to depart from the pre-Smith world in such a significant way.21
21 Plaintiffs correctly observe that 42 U.S.C. § 1983, although usually concerned with the activities of state officials, also provides for damages against a federal official in his personal capacity where “state and federal defendants conspire[] under color of state law to deprive plaintiff[s] of federally guaranteed rights.” See Kletschka v. Driver, 411 F.2d 436, 442, 448–49 (2d Cir. 1969). Even § 1983, however, is clear that appropriate relief under that
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Nonetheless, Plaintiffs contend that Congress’s reference to “appropriate relief” in RFRA’s private right of action triggers the “ordinary convention” recognized in Franklin v. Gwinnett Cnty. Pub. Sch., whereby courts “presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise.” 503 U.S. 60, 76, 66 (1992); see also Bell v. Hood, 327 U.S. 678, 684 (1946) (“[W]here legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.”). But whatever force of that rule in some contexts, it lacks any here. As noted in Sossamon, which interpreted this very statutory provision as borrowed in RFRA’s companion statute,22 Franklin required the Supreme Court to interpret the scope of an implied statutory right of action. “With no statutory text to interpret, the Court ‘presume[d] the availability of all appropriate remedies unless Congress ha[d] expressly indicated otherwise.’” Sossamon, 131 S. Ct. at 1660 (quoting Franklin, 503 U.S. at 66); accord Landgraf v. USI Film Products, 511 U.S. 244, 285 n.38 (1994). That is not the case here, however, as Congress has created “an express private cause of action” that provides for “appropriate relief.” Sossamon, 131 S. Ct. at 1656. The Franklin presumption is thus inapplicable, and the meaning of “appropriate relief” must be discerned using the traditional tools of statutory construction. Those tools, as noted above, point
statute includes “an action at law,” which is to say, damages. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710–11 (1999).
Plaintiffs also note that Congress has sometimes specifically excluded damages from their definitions of “appropriate relief” and that “numerous” federal statutes specifically include injunctive and other equitable relief within their definitions of “appropriate relief.” See Pls. Mem. at 83–84 (citing 5 U.S.C. § 702; 42 U.S.C. § 6395(e)(1); 15 U.S.C. § 797(b)(5); 16 U.S.C. § 973i(e); 2 U.S.C. § 437g(a)(6)(A); 8 U.S.C. § 1324a(f)(2); 12 U.S.C. § 1715z– 4a(b); 15 U.S.C. § 6309(a)). None of these statutes, however, concerns the creation of a damages remedy against federal officers in their personal capacities and, as such, the value of Plaintiffs’ analogy is diminished. In any event, the Supreme Court has “several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute.” Yates v. United States, 135 S. Ct. 1074, 1082 (2015) (collecting cases).
22 See supra note 18.
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to the conclusion that Congress did not intend to create a Bivens-type action with the language of
“appropriate relief.”
Plaintiffs also seek support in Jama v. U.S.I.N.S., 343 F.Supp.2d 338 (D.N.J. 2004), where
the court determined that RFRA provides for personal capacity damages against federal officers.
But that decision, and subsequent district court opinions adopting its reasoning,23 rest on a crucial
yet flawed premise—that “[c]ourts have always recognized § 1983 and Bivens claims for money
damages against officials for violation of the Free Exercise Clause.” Id. at 374 (emphasis added).
Setting aside the § 1983 cases, which have no bearing on whether a claim exists under Bivens,
there is no question—in light of Iqbal, Reichle, and, most recently, Turkmen—that the Supreme
Court has never recognized a Bivens remedy for violations of the Free Exercise Clause. See supra
at 17–21.24 Indeed, before RFRA was enacted in 1993, the Supreme Court’s only Bivens case in
the First Amendment context came in the form of its refusal to recognize such an action in Bush—
decided a full decade before RFRA became law.
23 See Lepp v. Gonzales, No. C-05-0566 (VRW), 2005 WL 1867723, at *8 (N.D. Cal. Aug. 2, 2005); Padilla v. Yoo, 633 F.Supp.2d 1005, 1039 (N.D. Cal. 2009), as amended, (June 18, 2009), rev’d on other grounds, 678 F.3d 748 (9th Cir. 2012);
24 Jama’s (and Plaintiffs’) sole citation to contrary authority is a single decision of the Sixth Circuit concerning a prisoner’s free exercise claim. In that case, Jihaad v. O’Brien, 645 F.2d 556 (6th Cir. 1981), the court adopted the holding of an earlier panel extending Bivens to the First Amendment as a whole—not merely to Free Exercise Clause, see id. at 558 n.1. That prior panel’s reasoning on this point was as follows: “We recognize that Bivens dealt with a Fourth Amendment violation, but its logic appears to us to be equally applicable to a First Amendment violation.” Yiamouyiannis v. Chem. Abstracts Serv., 521 F.2d 1392, 1393 (6th Cir. 1975). Although such reasoning may have seemed perfectly reasonable in 1975 (shortly after Bivens was decided), it has become untenable in the years after 1980, as cases such as Turkmen ably demonstrate. Indeed, the Sixth Circuit itself recently expressed doubts about the availability of Bivens in the free exercise context, notwithstanding its earlier holdings in Yiamouyiannis and Jihaad. See Meeks v. Larsen, No. 14-1381, ___ F.App’x. ___, 2015 WL 2056346, at *9 (6th Cir. May 5, 2015) (observing that “there is a dearth of precedent applying Bivens to free-exercise claims” and quoting the Eighth Circuit’s conclusion that Bivens’ availability in such contexts is “doubtful”).
Plaintiffs also point to Mack for the proposition that at least one court of appeal has concluded that “appropriate relief” includes personal capacity damages. See Pls. Mem. at 85. But such reliance is difficult to justify because defendants there did not contest the availability of damages. As Judge Posner’s opinion in that case observed, they “d[id] not question the propriety of damages as a remedy for violations of the Act, even though [RFRA] says nothing about 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 and obtain appropriate relief against a government.’” 80 F.3d at 1177 (citing § 2000bb–1(c), emphasis added in Mack).
34

In the end, “the fundamental task for the judge is to determine what Congress was trying
to do in passing the law.” R. Katzmann, Judging Statutes 31 (2014); see also Lehigh Valley Coal
Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914) (Hand, J.) (“[S]tatutes … should be construed,
not as theorems of Euclid, but with some imagination of the purposes which lie behind them.”) As
explained, Congress’ intent in enacting RFRA could not be clearer: It was to restore Congress’
understanding of the compelling interest test as it existed before Smith—no more, no less. And
“[b]ecause 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 government.” Webman, 441 F.3d at 1028 (Tatel, J., concurring).25 Plaintiffs’ argument to the contrary thus fails.26
CONCLUSION
Although federal law imposes limits on the investigative tactics federal officials may
employ in seeking to keep this nation safe, it also establishes limits on the manner in which an
individual may vindicate his rights should those tactics cross the line. For the reasons stated, the
law does not permit Plaintiffs to seek damages against the Agents in their personal capacities either
under Bivens or RFRA. Accordingly, the Agents’ motion to dismiss is GRANTED and the claims
25 RFRA provides only for relief “against the government,” which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity.” 42 U.S.C. § 2000bb–2(1). As noted above, see supra note 17, the Court need not address the predicate question of whether “the government” includes federal officials sued in their personal capacity in light of its conclusion that “appropriate relief” does not encompass damages in any event.
26 Plaintiffs’ argument might carry more weight were the Supreme Court eventually to recognize a Bivens remedy in the First Amendment context. The Supreme Court has observed, in a related context, that “[t]he meaning of the word ‘appropriate’ permits its scope to expand to include … remedies that were not appropriate before …, but in light of legal change … are appropriate now.” West v. Gibson, 527 U.S. 212, 218 (1999) (holding that Title VII’s reference to “appropriate remedies” as passed in 1972 should be interpreted to include compensatory damages in light of subsequent legal developments in 1991). Thus, were the Supreme Court to recognize a Bivens remedy under the Free Exercise Clause, it might well be that “appropriate relief” under RFRA would be held to encompass personal capacity damages.
35

against FNU Tanzin, Sanya Garcia, Francisco Artusa, John LNU, Michael Rutowski, William

Gale, John C. Harley III, Steven LNU, Michael LNU, Gregg Grossochmig, Weysan Dun, James

C. Langenberg, John Does 1-6 and 9-13 in their personal capacities are dismissed. The Court on

its own motion also dismisses all personal capacity claims against John Does 7 and 8. See Hecht

v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n.6 (2d Cir. 1990). As previously noted, this

opinion does not address the viability of Plaintiffs' official capacity claims and thus expresses no

opinion on the merits of their arguments concerning the manner in which individuals are added to

the No Fly List or the mechanisms for challenging such inclusion. The parties are directed to

submit a joint letter to the Court within 30 days advising how they wish to proceed with respect to

those claims.

SO ORDERED.
Dated: September 3, 2015 New York, New York

__,.
___•. . ~~~· """~----

--;:;1/"~~:;:::::;:::::;:;=-----
nme rams

-~~~~~~~~-

l nited States District Judge

36

 
 Case 1:13-cv-06951-RA Document 109 Filed 12/28/15 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATE FILED: 12/28/2015

MUHAMMAD TANVIR, JAMEEL ALGIBHAH, AWAIS SAJJAD, and NAVEED SHINWARI,
Plaintiffs,
v.
LORETTA E. LYNCH, Attorney General of the United States, et al.,
Defendants.

No. 13-CV-6951 (RA) ORDER

RONNIE ABRAMS, United States District Judge: On September 3, 2015, the Court issued an Opinion and Order dismissing Plaintiffs'
individual capacity claims against Defendants FNU Tanzin, Sanya Garcia, Francisco Artusa, John LNU, Michael Rutkowski, William Gale, John C. Harley III, Steven LNU, Michael LNU, Gregg Grossoehmig, Weysan Dun, James C. Langenberg, and John Does 1-13. See Dkt. 104. The Opinion also directed the parties to advise the Court as to how they wish to proceed with respect to Plaintiffs' official capacity claims against Defendants. See id. at 36.
On October 5, 2015, the parties submitted a joint letter in which they agreed "that Plaintiffs' official capacity claims for relief against Defendants should be dismissed without prejudice and entry of final judgment is appropriate." Dkt. 105. The letter indicated that the parties would submit a proposed order and judgment to the Court.
On December 18, 2015, the parties informed the Court that they could not agree to the language in a proposed order. See Dkt. 108. The parties submitted two proposed orders for the Court's review, one drafted by Plaintiffs and one drafted by Defendants. The only significant

Case 1:13-cv-06951-RA Document 109 Filed 12/28/15 Page 2 of 3
difference between them is that Plaintiffs' proposed order recites what Plaintiffs describe as "basic procedural facts that led to the dismissal." Id. at 1. Plaintiffs seek to have "these facts be set forth in a judicially-issued document." Id. at 2. Plaintiffs also "advise the Court that, while they do not presently intend to seek attorneys' fees and costs, they do not wish to rule out the possibility of any such application entirely at this time." Id.
Defendants contend that Plaintiffs' proposed order "goes substantially beyond the terms agreed to by the parties" in their October 5 letter and that there is no need to include the additional information in that proposed order because "the chronology that Plaintiffs assert led to their withdrawing their claims will now be a matter of public record by virtue of [the December 18 letter]." Id. Defendants also argue that Plaintiffs "seek to transform an on-consent voluntary dismissal of their claims into a document intended to support a potential [attorneys'] fee application." Id. at 3. The parties do not appear to dispute that Defendants' proposed order "accurately reflects the terms that Plaintiffs outlined to the Court in their October 5, 2015 letter." Id.
The Court agrees with Defendants that Plaintiffs' proposed order is unnecessarily overinclusive. To the extent members of the public seek information regarding why Plaintiffs agreed to voluntarily dismiss their official capacity claims without prejudice, they may review the December 18 letter and other filings made in this lawsuit. The Court currently takes no position regarding the viability of Plaintiffs' possible motion for attorneys' fees and costs.
2

Case 1:13-cv-06951-RA Document 109 Filed 12/28/15 Page 3 of 3 Because the parties agree that Plaintiffs' official capacity claims against Defendants may be dismissed without prejudice, the Court so dismisses them. The Clerk of Court is respectfully directed to enter final judgment in favor of Defendants. Plaintiffs may have until January 29, 2016 to move for attorneys' fees and costs. If no motion is filed by that date, this action will be terminated on the docket. SO ORDERED. Dated: December 28, 2015
New York, New York Ronnie Abrams United States District Judge
3

 
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16‐1176 Tanvir v. Tanzin

N.Y.S.D. Case # 13-cv-6951(RA)

UNITED STATES COURT OF APPEALS

1

2

FOR THE SECOND CIRCUIT

3

____________________

4

5

August Term, 2016

6

7 (Argued: March 1, 2017

Decided: May 2, 2018

8

Amended: June 25, 2018)

9

10

Docket No. 16‐1176

11

____________________

USDC SDNY DOCUMENT

12

ELECTRONICALLY FILED

13 MUHAMMAD TANVIR, JAMEEL ALGIBHAH, 14 NAVEED SHINWARI,

DOC #: _________________ DATE FILED: J_u_n_e__2_5_, _20_1_8____

15

16

Plaintiffs‐Appellants,

17

18

v.

19

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

21 Agent, FBI; JOHN LNU, Special Agent, FBI; FRANCISCO

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

23 Agent, FBI; STEVEN LNU, Special Agent, FBI; MICHAEL

24 LNU, Special Agent, FBI; GREGG GROSSOEHMIG, Special

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

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

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

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

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

30 DOE #6, Special Agent, FBI,

31

CERTIFIED COPY ISSUED ON 06/25/2018

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1

Defendants‐Appellees.1

2

____________________

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

4

Plaintiffs‐Appellants Muhammad Tanvir, Jameel Algibah, and Naveed

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

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

7 dismissing their complaint against senior federal law enforcement officials and

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

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

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

11 violation of Plaintiffs’ rights under the First Amendment and the Religious

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

13

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

14 defendants in their official capacities for various constitutional and statutory

15 violations, and (2) compensatory and punitive damages from federal law

16 enforcement officers in their individual capacities for violations of their rights

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

1 The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
2

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

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

3 recovery of money damages against federal officers sued in their individual

4 capacities. Plaintiffs appeal that RFRA determination only.

5

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

6 plaintiff to recover money damages against federal officers sued in their

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

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

9

REVERSED and REMANDED.

10

____________________

11

RAMZI KASSEM, CLEAR Project, Main Street Legal

12

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

13

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

14

Plaintiffs‐Appellants.

15

Jennifer R. Cowan, Erol Gulay, Sandy Tomasik,

16

Debevoise & Plimpton LLP, New York, NY, for

17

Plaintiffs‐Appellants.

18

Shayana D. Kadidal, Baher Azmy, Center for

19

Constitutional Rights, New York, NY, for Plaintiffs‐

20

Appellants.

3

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1

ELLEN BLAIN, Assistant United States Attorney (Sarah

2

S. Normand, Benjamin H. Torrance, Assistant United

3

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

4

United States Attorney for the Southern District of New

5

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

6 POOLER, Circuit Judge:

7

Plaintiffs‐Appellants Muhammad Tanvir, Jameel Algibah, and Naveed

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

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

10 dismissing their complaint against senior federal law enforcement officials and

11 25 named and unnamed federal law enforcement officers. As relevant here, the

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

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

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

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

16

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

17 defendants in their official capacities for various constitutional and statutory

18 violations, and (2) compensatory and punitive damages from federal law

19 enforcement officers in their individual capacities for violations of their rights

4

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

2 that RFRA does not permit the recovery of money damages against federal

3 officers sued in their individual capacities. Plaintiffs appeal that RFRA

4 determination only.

5

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

6 plaintiff to recover money damages against federal officers sued in their

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

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

9

BACKGROUND

10

11

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

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

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

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

15 I.
16 17

Relevant Factual and Procedural Background Plaintiffs are Muslim men who reside in New York or Connecticut. Each

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

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

20 family remaining overseas. 5

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1

Plaintiffs assert that they were each approached by federal agents and

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

3 gather information on members of Muslim communities and report that

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

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

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

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

8 their sincerely‐held religious beliefs. In response to these refusals, the federal

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

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

11 posing, a threat to aviation safety.” App’x at 74, 84, 92 ¶¶ 68, 118, 145.

12

According to the complaint, Defendants “forced Plaintiffs into an

13 impermissible choice between, on the one hand, obeying their sincerely held

14 religious beliefs and being subjected to the punishment of placement or retention

2 Plaintiffs assert that they were caught up in a broader web of federal law enforcement mistreatment of American Muslims. They allege that, following the tragic attacks of September 11, 2001, “the FBI has engaged in widespread targeting of American Muslim communities for surveillance and intelligence‐ gathering.” App’x at 66 ¶ 36. These law enforcement practices included “the aggressive recruitment and deployment of informants . . . in American Muslim communities, organizations, and houses of worship.” Id.
6

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

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

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

4 placed a substantial burden on their exercise of religion.

5

Additionally, Defendants’ actions caused Plaintiffs to suffer emotional

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

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

8 from flying for several years. Such prohibition prevented Plaintiffs from visiting

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

10 plane tickets, and hampered Plaintiffs’ ability to travel for work.3

11

A. The “No Fly List”

12

In an effort to ensure aircraft security, Congress directed the

13 Transportation Security Administration (“TSA”) to establish procedures for

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

3 One Plaintiff, for example, had to quit a job as a long‐haul trucker because that job required him to fly home after completing his route, while another declined temporary employment in Florida due to these travel restrictions. These same restrictions barred another Plaintiff from traveling to Pakistan to visit his ailing mother, and rendered yet another Plaintiff unable to see his wife or daughter in Yemen for many years.
7

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

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

3 appropriate records in the consolidated and integrated terrorist watchlist

4 maintained by the Federal Government” to perform a passenger prescreening

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

6

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

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

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

9 individuals who are known or reasonably suspected of being involved in

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

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

12 and cooperating foreign governments.

13

Plaintiffs allege that federal law enforcement and intelligence agencies

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

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

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

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

18 showing that the individual “pose[s] a threat of committing a terrorist act with 8

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

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

3 States.4

4

Plaintiffs claim that the federal agents named in the amended complaint

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

6 and ill‐defined standards, and its lack of procedural safeguards, in an attempt to

7 coerce Plaintiffs into serving as informants within their American Muslim

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

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

10 List.” Id.

4 In their amended complaint, Plaintiffs decry the secrecy around the “No Fly List,” alleging that there is little public information about its size, the criteria for inclusion, the standards for “derogatory information,” or the adequacy of its procedural safeguards. Upon information and belief, Plaintiffs assert that the “No Fly List” burgeoned from 3,400 individuals in 2009 to over 21,000 individuals by February 2012.
9

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1

B. Tanvir: An Illustrative Story

2

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

3 Plaintiffs’ experiences.

4

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

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

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

7 and John Doe 1 approached him at work and questioned him for 30 minutes

8 about an acquaintance who allegedly entered the United States illegally. Two

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

10 “could share” with the FBI about the American Muslim community. App’x at 74

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

12 enforcement.

13

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

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

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

16 2009, nearly six months later. Two days prior to that appointment, Agent Tanzin

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

18 him to come to the FBI’s Manhattan field office. Tanvir agreed. 10

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1

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

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

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

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

5

After the questioning, Agents Tanzin and John Doe 2 complimented

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

7 Afghanistan. Tanvir alleged that they offered him various incentives, including

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

9 religious pilgrimage. Despite the offer, Tanvir declined, stating that he did not

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

11 passport would not be returned and he would be deported if he failed to

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

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

14

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

15 would become an informant. Agent Tanzin threatened Tanvir with deportation if

16 he did not cooperate. Again, Tanvir declined.

17

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

18 Homeland Security (“DHS”) officers at JFK Airport without incident. The DHS 11

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

2 investigation was complete. Nevertheless, the next day, Agent Tanzin called

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

4 was “cooperative” with the FBI. App’x at 77 ¶ 81.

5

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

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

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

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

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

10 flew to Pakistan in July 2009 to visit his family, Agents Tanzin and John Doe 3

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

12

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

13 a long‐haul trucker. The job required him to drive across the country and fly

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

15

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

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

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

18 that he could not fly. At that time, two FBI agents approached Tanvir and told 12

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

2 contacted Agent Tanzin, who instructed that other agents would contact Tanvir

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

4 Tanvir traveled by bus—a 24‐hour ride.

5

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

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

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

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

9 and therefore could not return to New York after completing his one‐way

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

11

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

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

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

14

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

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

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

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

18 so. After answering the same questions that the other agents asked him 13

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

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

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

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

5 traveled alone to Pakistan.

6

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

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

8 even though Tanvir had already submitted a TRIP complaint and not yet

9 received any redress.

10

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

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

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

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

14

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

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

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

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

14

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1

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

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

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

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

5 with Agent Garcia.

6

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

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

8 blamed Tanvir’s experience on probable “misidentification against a government

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

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

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

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

13 since Tanvir was first contacted by the FBI.

14

Tanvir asserts that because the federal agents wrongfully placed his name

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

16 trucking job, lost money from unused airline tickets, and feared additional

17 harassment by the FBI.

18
15

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1

C. Procedural History

2

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

3 violated their constitutional and statutory rights by placing their names on the

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

5 retaliation for their refusal to become informants for the government. On April

6 22, 2014, Plaintiffs filed an amended complaint.

7

Plaintiffs sued Defendants in their official capacities under the First

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

9 §§ 702, 706, and RFRA, 42 U.S.C. § 200bb et seq., seeking injunctive and

10 declaratory relief. Plaintiffs also sued the federal agents in their individual

11 capacities, seeking compensatory and punitive damages under the First

12 Amendment and RFRA.5

13

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

14 amended complaint. One motion sought to dismiss Plaintiffs’ official capacity

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

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

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1

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

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

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

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

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

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

7 capacity claims. The district court stayed those claims and terminated the

8 government’s related motion to dismiss. The parties continued to dispute

9 Plaintiffs’ individual capacity claims.

10

D. District Court Opinion

11

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

12 dismissing Plaintiffs’ individual capacity claims.

13

First, the district court dismissed Plaintiffs’ First Amendment retaliation

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

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

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

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

18 137 S. Ct. 1843 (2017)). Plaintiffs do not appeal that determination here. 17

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1

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

2 money damages from federal officers sued in their individual capacities. The

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

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

5 Congress intended to restore the compelling interest test by which courts

6 evaluated free exercise claims before the Supreme Court’s decision in

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

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

9 remedies available to those individuals who asserted that their free exercise of

10 religion was substantially burdened by the government.

11

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

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

13 former, the district court stated that, at the time Smith was decided, the Supreme

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

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

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

17 the latter, the district court identified congressional reports stating that Congress

18 in RFRA did not intend to “expand, contract or alter the ability of a claimant to 18

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1 obtain relief in a manner consistent” with the Supreme Court’s pre‐Smith free

2 exercise jurisprudence. Tanvir, 128 F. Supp.3d at 778 (quoting S. Rep. No. 103‐111

3 at 12).

4

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

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

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

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

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

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

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

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

12 express private right of action. Tanvir, 128 F. Supp.3d at 779.

13

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

14 recovery of money damages from federal officers sued in their individual

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

16

6 Plaintiffs voluntarily dismissed their official capacity claims on December 28, 2015, rendering the district court’s ruling on the individual claims a final appealable order. See Tanvir v. Comey, No. 1:13‐cv‐06951‐RA (docs. 109, 111).
19

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1 2
3 I.

Standard of Review

DISCUSSION

4

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

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

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

7 allegations in the complaint and draw all reasonable inferences in plaintiff’s

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

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

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

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

12

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

13 recover money damages against federal officers sued in their individual

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

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

16 review de novo whether the district court correctly interpreted the statute.” White

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

18

19
20

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1 II. Official Capacity and Individual Capacity Suits

2

3

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

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

5 discussion, we briefly address the difference between official capacity suits and

6 individual capacity suits.

7

The Supreme Court has stated that “official‐capacity suits generally

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

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

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

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

12 individual capacity suits “seek to impose individual liability upon a government

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

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

15 come from the pocket of the individual defendant.” Blackburn v. Goodwin, 608

16 F.2d 919, 923 (2d Cir. 1979).7

7 Suits against public officers that seek damages are directed at the particular officer whose allegedly unlawful actions are claimed to have caused damage to plaintiffs. In contrast, suits against officers in their official capacity, which generally seek injunctive relief, are directed at the office itself. See Fed. R. Civ. P.
21

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1

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

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

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

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

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

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

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

8 III. Religious Freedom Restoration Act

9

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

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

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

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

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

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

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

16 reference to the language itself, the specific context in which that language is

17(d). As a result, if the defendant in an official capacity suit leaves office, the successor to the office replaces the originally named defendant. See Fed. R. Civ. R. 25(d).
22

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

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

3

A.

Statutory Text

4

5

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

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

7 that been applied in cases where free exercise of religion was substantially

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

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

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

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

12

RFRA provides that the “Government shall not substantially burden a

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

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

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

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

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

18

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

19 right of action. Id. § 2000bb‐1(c). That section permits any “person whose 23

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

2 violation as a claim or defense in a judicial proceeding and obtain appropriate

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

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

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

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

7

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

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

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

10 did not address whether federal officers sued in their individual capacities are

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

12 suit under RFRA. See id. at 774 n. 17.

13

B.

“Against a Government”

14

15

On appeal, the parties disagree over whether RFRA authorizes individual

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

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

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

24

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1 answer,” we conclude that RFRA authorizes individual capacity claims against

2 federal officers. Id.

3

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

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

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

6 branch, department, agency, instrumentality, and official (or other person acting

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

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

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

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

11 religious exercise. Therefore, RFRA, by its plain terms, authorizes individual

12 capacity suits against federal officers.

13

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

14 only against officers in their official capacities and not suits against federal

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

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

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

18 only official capacity suits are permitted; and (3) should conclude that the phrase 25

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

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

3 each argument.

4

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

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

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

7 definition, we must follow that definition.” Stenberg v. Carhart, 530 U.S. 914, 942

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

9 2016) (“In general, statutory definitions control the meaning of statutory

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

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

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

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

14 substance, runs against the government itself. See Hafer, 502 U.S. at 25.

15

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

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

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

18 generally defined simply as “one who holds or is invested with an office” and is 26

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

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

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

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

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

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

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

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

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

10

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

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

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

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

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

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

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

17 federal officer in her individual capacity without implicating sovereign

27

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

2 does not alter that rule.

3

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

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

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

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

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

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

9 “Defendants’ interpretation would render the entire phrase surplasage: once

10 Congress authorized official‐capacity suits against ‘officials,’ adding another

11 term that allowed only official‐capacity suits would have had no effect

12 whatsoever.” Id.

13

Our conclusion that RFRA authorizes individual capacity claims against

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

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

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

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

18 government, displacing laws and prohibiting official actions of almost every 28

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1 description and regardless of subject matter.” City of Boerne, 521 U.S. at 532

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

3 Federal … Government[]”).

4

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

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

6 enactment, had consistently been held to authorize individual and official

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

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

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

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

11 regulation, or policy. 42 U.S.C. § 1983.

12

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

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

14 § 1983 when construing RFRA.” Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d

15 Cir. 2016); see also Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 738

16 (7th Cir. 2015); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834‐35 (9th

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

18 already judicially interpreted phrase from an old statute to use it in a new 29

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

2 phrase but the judicial construction of that phrase.” Sutton, 192 F.3d at 834‐35

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

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

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

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

7

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

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

9 Section 1983, authorizes a plaintiff to bring individual capacity claims against

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

11

C.

“Appropriate Relief”

12

13

Having determined that RFRA permits individual capacity suits against

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

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

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

17 damages in suits against federal officers in their individual capacities. Tanvir, 128

18 F. Supp.3d at 780‐81. We disagree.

19
30

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1

a. Ambiguity and the Franklin Presumption

2

3

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

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

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

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

7 of the statute more broadly. See Robinson, 519 U.S. at 341.

8

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

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

10 Supreme Court acknowledged that the phrase “‘appropriate relief’ is open‐ended

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

12 identifying money damages, the word ‘appropriate’ is inherently context‐

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

8 The district court opinion aptly notes that RFRA and RLUIPA are companion statutes. See Tanvir, 128 F. Supp.3d at 775. After the Supreme Court in City of Boerne, 521 U.S. 507, determined that RFRA was unconstitutional as applied to state and local governments because it exceeded Congress’s power under Section 5 of the Fourteenth Amendment, Congress passed RLUIPA pursuant to the Spending 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 elements from RFRA . . . includ[ing] an express private cause of action that is taken from RFRA.” Sossamon, 563 U.S. at 281. As a result, courts commonly apply RFRA case law to issues arising under RLUIPA and vice versa. See Redd v. Wright, 597 F.3d 532, 535 n. 2 (2d Cir. 2010).
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1 relief’ might include damages.” Webman v. Fed. Bureau of Prisons, 441 F.3d 1022,

2 1026 (D.C. Cir. 2006). But in other contexts, “another plausible reading is that

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

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

5 RFRA’s statutory text is ambiguous.

6

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

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

8 the “the venerable canon of construction that Congress is presumed to legislate

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

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

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

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

13

Of course, Congress may depart from [our traditional legal

14

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

15

is more likely that Congress was adopting, rather than departing

16

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

17

works. We will not lightly assume a less conventional meaning

18

absent a clear indication that such a meaning was intended.

19

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

21 2014).

32

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1

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

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

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

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

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

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

7 247, 255 (1978) (upholding damages remedy under 42 U.S.C. § 1983, even though

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

9 based that presumption on a long‐standing rule that “has deep roots in our

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

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

12 use any available remedy to make good the wrong done.” Franklin, 503 U.S. at 66

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

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

15 damages remedy was available. Id. at 76.

16

RFRA permits plaintiffs to “obtain appropriate relief against a

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

18 that it proscribes the recovery of money damages, Franklin, 503 U.S. at 66. 33

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1 Because Congress enacted RFRA one year after the Supreme Court decided

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

3 in RFRA that was discussed in Franklin, the Franklin presumption applies to

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

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

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

7 recovery of money damages against federal officers sued in their individual

8 capacities.9

9

b. Defendants’ Arguments to the Contrary

10

11

i. Precedent Does Not Require a Different Outcome

12

13

Defendants argue that our holding here is inconsistent with several

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

9 Indeed, the determination that RFRA permits individual capacity suits leads logically to the conclusion that it permits a damages remedy against those individuals. An individual capacity suit that is confined to injunctive relief has limited value; official capacity suits for injunctive relief already supply injunctive relief against the governmental entity as a whole. As a result, plaintiffs will rarely, if ever, prefer to enjoin the conduct of a single officer. In contrast, as noted above, suits seeking compensation from officers in their official capacity, being in essence suits against the state or federal government itself, are generally barred by sovereign immunity. Thus, individual capacity suits tend to be associated with damages remedies, and official capacity suits with injunctive relief.
34

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1 recovery of money damages in suits under RFRA and RLUIPA. See Sossamon, 563

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

3 at 1026; Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 840‐41

4 (9th Cir. 2012); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015), cert. denied

5 sub nom. Davila v. Haynes, 136 S.Ct. 78 (2015). Our holding, however, is not

6 inconsistent with these decisions, each of which is based upon animating

7 principles that are inapplicable here.

8

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

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

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

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

12 Namely, when determining whether an act of Congress waives sovereign

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

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

15 the Court’s relevant inquiry was the opposite of the one at issue here: “not

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

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

18 direction that it intend[ed] to include a damages remedy.” Sossamon, 563 U.S. at 35

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1 289 (emphasis in original). Because the phrase “appropriate relief” in that context

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

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

4 monetary damages against a state or state officials sued in their official

5 capacities. Id. at 288.

6

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

7 prescription for “appropriate relief” does not include damages against the

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

9 441 F.3d at 1026; Oklevueha Native Am. Church of Hawaii, 676 F.3d at 840‐41; Davila

10 777 F.3d at 1210. These courts so held because, in the context of suits against the

11 federal government and its officers in their official capacities, the phrase

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

13 federal government’s sovereign immunity. See, e.g., Davila, 777 F.3d at 1210

14 (“Congress did not unequivocally waive its sovereign immunity in passing

15 RFRA. RFRA does not therefore authorize suits for money damages against

16 officers in their official capacities.”).

17

The animating principles underlying Sossamon, Webman, Oklevueha Native

18 Am. Church of Hawaii, and Davila, however, are absent from the instant case. Each 36

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

2 or RLUIPA permitted suits against a sovereign or its officers in their official

3 capacities. Although the Supreme Court and our sister circuits declined to

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

5 sovereign immunity, Plaintiffs’ individual capacity suits against Defendants

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

7 monetary relief from those officers personally, not from the federal or state

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

9 above, “Congress need not waive sovereign immunity to permit an individual‐

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

11 337 U.S. at 686‐87).

12

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

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

14 immunity, they are of limited assistance in addressing the question of damages

15 against those who ‘come to court as individuals.’” Tanvir, 128 F. Supp.3d at 775

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

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

37

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1

Furthermore, our holding that RFRA permits the recovery of money

2 damages against federal officers sued in their individual capacities does not

3 conflict with our decision in Washington v. Gonyea. In Gonyea, we held that the

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

5 damages from state officers sued in their official capacities and in their individual

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

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

8 follows directly from the Supreme Court’s decision in Sossamon. 563 U.S. at 293

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

10 immunity to private suits for money damages under RLUIPA because no statute

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

12

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

13 damages from state officers sued in their individual capacities follows from

14 another source: the constitutional basis upon which Congress relied in enacting

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

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

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

18 “Applying restrictions created pursuant to the Spending Clause to persons or 38

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

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

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

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

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

6 funds—and this would raise serious questions regarding whether Congress had

7 exceeded its authority under the Spending Clause.” Gonyea, 731 F.3d at 146

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

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

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

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

12 as a condition to received funds.” Id. at 145.

13

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

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

15 105 (2d Cir. 2006). RFRA’s constitutional bases thus “do[] not implicate the same

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

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

18 775 n. 19. Because the animating principles underlying our decision in Gonyea are 39

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

2 money damages from federal officials sued in their individual capacities—and

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

4 damages from state officials sued in their individual capacities—are entirely

5 consistent.

6

Defendants complain that our holding in this case makes the phrase

7 “appropriate relief” in RFRA into a chameleon. See United States v. Santos, 553

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

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

10 statutory provision, different meanings in different factual contexts”) (emphasis

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

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

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

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

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

16 And, since the relevant animating principles vary appreciably across legal

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

18 different settings. 40

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1

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

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

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

4 now, that RFRA authorizes individual capacity suits against federal officers for

5 money damages. See Mack, 839 F.3d at 304.

6

In Mack, the Third Circuit reached that holding by applying the Franklin

7 presumption—that any “appropriate relief” is available unless Congress

8 expressly indicates otherwise. Id. at 302‐03. The court found that its conclusion

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

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

11 303. “Congress enacted RFRA one year after Franklin was decided and was

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

10 The Seventh Circuit has previously decided that a plaintiff was entitled to sue state 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 nothing about 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 and obtain appropriate relief against a government.’” Id. (emphasis in original) (quoting 42 U.S.C. § 2000bb‐1(c)). The court also acknowledged that the defendants in that case did not contest the availability of damages as a remedy under RFRA. Id.
41

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

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

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

4 money damages against a government official whose conduct violates RFRA

5 would be inconsistent with” that purpose. Id.12

6

We agree with the Third Circuit’s reasoning in Mack and adopt it here. In

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

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

9 would undermine Congress’s intention to “provide broad religious liberty

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

11 Of note, the Third Circuit in Mack stated that “[b]ecause Mack brings his RFRA claim against only [two federal officers] in their individual capacities, the federal government’s sovereign immunity to suits for damages is irrelevant here.” Id. at 302 n. 92. 12 The court in Mack drew further support from the similarities between RFRA and 42 U.S.C. § 1983, which has long permitted money damages against state officials sued in their individual capacities. Id. By comparison, the court distinguished 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 damages against state officials sued in their individual capacities, by pointing out how Congress’s constitutional authorization for RLUIPA (Commerce Clause and Spending Clause) poses concerns not relevant to its analysis of RFRA (Necessary and Proper Clause and Section 5 of Fourteenth Amendment).
42

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1 unlikely that Congress would restrict the kind of remedies available to plaintiffs

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

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

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

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

6 that, unlike in the RLIUPA context, no constitutional conflict prevents their

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

8 scheme.

9

ii. The Franklin Presumption Is Not Confined to Statutes with

10

Implied Rights of Action

11

12

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

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

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

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

16 comparison, Congress created an express private right of action in RFRA. See 42

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

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

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

43

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

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

3 phrase “appropriate relief.” Id.

4

Although Franklin indeed considered the availability of damages under a

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

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

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

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

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

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

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

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

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

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

15 of action where that statute failed to specify the remedies available. 37 U.S. (12

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

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

18 although a clear and undeniable right should be shown to exist”). 44

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1

As discussed above, the Third Circuit in Mack applied the Franklin

2 presumption in determining that RFRA’s express private right of action

3 permitted the recovery of money damages against individuals sued in their

4 individual capacities. Mack, 839 F.3d at 303‐04; see also Patel, 125 F. Supp.3d at 53

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

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

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

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

9 Other courts have applied the Franklin presumption in the context of statutes

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

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

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

13 and Health Act included money damages); Ditulio v. Boehm, 662 F.3d 1091, 1098

14 (9th Cir. 2011) (holding that punitive damages were available under the

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

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

17 appropriate relief in a cognizable cause of action brought pursuant to a federal

18 statute’” (quoting Franklin, 503 U.S. at 71)). 45

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1

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

2 Franklin presumption in this case. The Franklin presumption need not be confined

3 to only those cases interpreting the remedies available under an implied private

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

5 we think, because Congress expressly stated that a claimant may obtain

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

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

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

9 under RFRA.

10

iii. Legislative History

11

Although we conclude that the Franklin presumption extends to express

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

13 “we presume the availability of all appropriate remedies unless Congress has

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

15 Congress intended to limit the application of this general principle will vary

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

17

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

18 statutory text and legislative history, because Congress usually has not spoken 46

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

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

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

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

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

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

7

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

8 statutory text and legislative history may enlighten our understanding. The

9 question thus becomes whether these interpretative sources exhibit a “clear

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

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

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

13 legislative history provides such a clear direction here.

14

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

15 referencing legislative history indicating that RFRA was intended solely to

16 reverse the Supreme Court’s decision in Smith. See Tanvir, 128 F. Supp. 3d at 778‐

17 80. For instance, the Senate Committee Report, which discusses the background

18 and purpose for RFRA, states that “the purpose of this act is only to overturn the 47

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

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

3 House Committee Report similarly focuses on the effect of the Smith decision and

4 the resulting outcome that free exercise claims receive the “the lowest level of

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

6

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

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

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

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

10 persons whose religious exercise is substantially burdened by government.” 42

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

12 statutory cause of action to bring claims against officials in their individual

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

14 Supreme Court’s free exercise jurisprudence. Congress accordingly went beyond

15 merely restoring the compelling interest test. It removed ambiguity about who

16 could be held liable for violations of religious exercise.13

13 The Supreme Court also has indicated that RFRA’s least restrictive means requirement may well have gone beyond what was required by its pre‐Smith
48

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1

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

2 direction” that Congress intended to preclude litigants from seeking damages in

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

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

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

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

7 including Supreme Court jurisprudence, under the compelling governmental

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

decisions. See City of Boerne, 521 U.S. at 509 (“[T]he least restrictive means requirement was not used in the pre‐Smith jurisprudence RFRA purported to codify.”); see also Hobby Lobby, 134 S. Ct. at 2761 n. 3 (observing that City of Boerne reflects an understanding that RFRA’s least restrictive means requirement “provided even broader protection for religious liberty than was available under those [pre‐Smith] decisions”); id. at 2767 n. 18 (declining to decide whether RFRA’s least restrictive means requirement in fact “went beyond what was required by our pre‐Smith decisions”); id. at 2793 (Ginsburg, J., dissenting) (“Our decision in City of Boerne, it is true, states that the least restrictive means requirement was not used in the pre‐Smith jurisprudence RFRA purported to codify. As just indicated, however, that statement does not accurately convey the Courtʹs pre‐Smith jurisprudence.”) (internal quotation marks and citation omitted). If RFRA’s least restrictive means requirement in fact went beyond pre‐ Smith jurisprudence, such an extension further supports our holding that RFRA provides an individual damages remedy. We need not decide this dispute today, however, because our holding remains the same in light of RFRA’s statutory text and legislative history.
49

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1 111, at 12 (“To be absolutely clear, the act does not expand, contract or alter the

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

3 Court[‘]s[] free exercise jurisprudence under the compelling governmental

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

5 intended to limit the remedies available for RFRA violations.

6

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

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

8 remedies. Rather, the reports were concerned with claimants bringing particular

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

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

11 House and Senate hearings, several religious and social organizations raised

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

13 tax exemptions, and government funding for religious organizations.14 These

14 See Religious Freedom Restoration Act of 1991: Hearings on HR. 2797 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 102d Cong. 33‐35, 40‐43 (1992) (statement of Mark E. Chopko, Gen. Counsel, United States Catholic Conference); id. at 270‐301 (statement of James Bopp, Jr., Gen. Counsel, National Right to Life Committee, Inc.); The Religious Freedom Restoration Act: Hearing on S. 2969 Before the Sen. Comm. on the Judiciary, 102d Cong., 99‐115 (1992) (statement of Mark E. Chopko, Gen. Counsel, United States
50

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1 concerns were sufficiently serious that several key Republican representatives

2 withdrew their support for the bill and introduced legislation that explicitly

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

4 4040, 102d Cong. § 3(c)(2) (1991).

5

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

6 House and Senate Committee Reports addressing these concerns, and made clear

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

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

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

10 88, at 8. The reports accordingly stated that claims challenging abortion

11 restrictions should be adjudicated pursuant to the Supreme Court’s decision in

12 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and

13 that the bill does “not change the law” determining whether religious

14 organizations may receive public funding or enjoy tax exemptions. S. Rep. No.

15 103‐111, at 12; HR, Rep. No. 103‐88, at 8. Taken in context, it is thus clear that

16 Congress was not concerned with limiting plaintiffs’ available remedies under

Catholic Conference); id. at 203‐37 (statement of James Bopp, Jr., Gen. Counsel, National Right to Life Committee, Inc.).
51

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1 the act—it was concerned with preventing plaintiffs from pursuing certain

2 causes of action.15

3

Moreover, even if the compromise language in the House and Senate

4 Committee Reports could be read as excluding certain remedies from RFRA’s

5 scope, it does not clearly indicate that Congress intended to exclude an

6 individual damages remedy. As previously noted, the Senate Committee Report

7 states that the act does not “alter the ability of a claimant to obtain relief in a

8 manner consistent with the Supreme Courts’[] free exercise jurisprudence …

9 prior to Smith.” S. Rep. No. 103‐111, at 12. The Supreme Court, in turn, never

10 ruled out the possibility of plaintiffs’ bringing individual damages claims for free

11 exercise violations before Smith was decided. To the contrary, in Bivens v. Six

15 The floor debate likewise confirms that Congress intended to limit the causes of action that could be brought under the statute. Representative Henry Hyde stated that he had offered amendments to RFRA because he was concerned that the legislation would “create an independent statutory basis” for individuals to challenge restrictions on abortion, social service programs operated by religious institutions with public funds, and the tax‐exempt status of religious institutions. 139 Cong. Rec. 103, 9682 (1993). Representative Hyde further stated that his concerns were “resolved either through explicit statutory changes or through committee report language,” which “ma[de] clear” that “such claims are not the appropriate subject of litigation” under RFRA, and that the “bill does not expand, contract, or alter the ability of a claimant to obtain relief” consistent with free exercise jurisprudence prior to Smith. Id.
52

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1 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the 2 Supreme Court held that victims of Fourth Amendment violations could pursue 3 individual damages claims against officials, and it extended this principle in 4 Carlson v. Green, 446 U.S. 14, (1980), to permit individual damages claims for 5 constitutional violations unless the defendants could show that Congress 6 “provided an alternative remedy which it explicitly declared to be a substitute 7 for recovery directly under the Constitution,” or there are “special factors 8 counseling hesitation in the absence of affirmative action by Congress,” id. at 18‐ 9 19 (emphasis omitted). It was therefore at least possible at the time that Congress 10 passed RFRA that an individual damages claim would have been available for a 11 free exercise violation. Given this potential, we cannot say that the Senate 12 Committee Report expressly intended to exclude such a remedy when it stated 13 that it did not intend to “expand” or “alter” claimants’ ability to obtain relief. S. 14 Rep. No. 103‐111, at 12.16
16 To be sure, the Supreme Court has subsequently shown “caution toward extending 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 has declined 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 clearly apparent at the time of RFRA’s passage because the Court had recognized Bivens
53

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1

Furthermore, even if the Senate Committee Report could be read to limit

2 RFRA’s remedies to those explicitly authorized by the Supreme Court prior to

3 Smith, the approach of the House Committee Report is not necessarily so narrow.

4 Unlike the Senate Committee Report, which authorizes relief “consistent with the

5 Supreme Courts’[] free exercise jurisprudence,” S. Rep. No. 103‐111, at 12, the

6 House Committee Report authorizes relief so long as it is “consistent with free

7 exercise jurisprudence, including Supreme Court jurisprudence,” H.R. Rep. No.

8 103‐88, at 8. The House Committee Report therefore appears to have

9 contemplated providing a broad array of relief consistent not only with Supreme

10 Court jurisprudence but that of the lower courts as well. We thus find it highly

11 relevant that at the time of RFRA’s passage, several Courts of Appeals had held

12 that plaintiffs could pursue individual damages claims for violations of their free

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 their superiors, the decision was narrow, and based on federal employees’ existing access to “an elaborate remedial system” that protected their constitutional rights, id. at 388. That remedial framework is not applicable here, because the plaintiffs are not federal employees. Moreover, even if the trend away from extending Bivens were obvious when RFRA was passed, it still falls short of the Supreme Court’s clearly foreclosing an individual damages remedy for free exercise violations. We therefore conclude that it would not be a basis for finding the Franklin presumption inapplicable here.
54

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1 exercise rights. See Caldwell v. Miller, 790 F.2d 589, 607‐608 (7th Cir. 1986); Jihaad v.

2 OʹBrien, 645 F.2d 556, 558 n. 1 (6th Cir. 1981); see also Paton v. La Prade, 524 F.2d

3 862, 870 (3d Cir. 1975) (holding that Bivens claims are broadly available for First

4 Amendment violations); Scott v. Rosenberg, 702 F.2d 1263, 1271 (9th Cir. 1983)

5 (assuming, without deciding, that the plaintiff could recover damages if his free

6 exercise rights had been violated).

7

Accordingly, we do not believe that the legislative history evinces a clear

8 and express indication that Congress intended to exclude individual damages

9 claims from the scope of RFRA’s available relief, and we therefore conclude that

10 the Franklin presumption is applicable.

11 VI. Qualified Immunity

12

13

Having held that RFRA authorizes a plaintiff to sue federal officers in their

14 individual capacities for money damages, we consider whether those officers

15 should be shielded by qualified immunity.

16

At the panel’s request, the parties submitted supplemental briefing

17 addressing two questions: (1) “whether, assuming arguendo that RFRA authorizes

18 suits against officers in their individual capacities, [Defendants] would be

19 entitled to qualified immunity,” and (2) “whether Ziglar v. Abbasi, No. 15‐1358, 55

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1 2017 WL 2621317 (June 19, 2017), applies in any relevant way to this question or

2 the other questions presented in this appeal.” Order, Tanvir v. Tanzin, No. 16‐

3 1176 (2d Cir. 2017), Dkt. No. 83; see also Post‐Argument Ltr. Brs., Tanvir v. Tanzin,

4 No. 16‐1176 (2d Cir. 2017), Dkt Nos. 89‐90, 93‐94.

5

We are sensitive to the notion that qualified immunity should be resolved

6 “at the earliest possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 227

7 (1991). Indeed, we have, in some circumstances, “permitted the [qualified

8 immunity] defense to be successfully asserted in a Rule 12(b)(6) motion.”

9 McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004). Nevertheless, as a general

10 matter, “[i]t is our practice in this Circuit when a district court fails to address the

11 qualified immunity defense to remand for such a ruling.” Eng v. Coughlin, 858

12 F.2d 889, 895 (2d Cir. 1988) (citing Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir.

13 1988)).

14

Here, the district court decision below did not address whether

15 Defendants were entitled to qualified immunity. Similarly, until the panel

16 prompted the parties at oral argument and in its post‐argument order, neither

17 side fully addressed or briefed the issue of qualified immunity on appeal. In the

18 absence of a more developed record, we decline to address in the first instance 56

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1 whether the Defendants are entitled to qualified immunity. We remand to the

2 district court to make such determination in the first instance.

3

4

5

CONCLUSION

6

7

For the foregoing reasons, we reverse the judgment of the district court

8 and remand for further proceedings.

57

 
 Tanzin v. Tanvir, 141 S.Ct. 486 (2020) 20 Cal. Daily Op. Serv. 12,499, 2020 Daily Journal D.A.R. 13,107

141 S.Ct. 486 Supreme Court of the United States.
FNU TANZIN, et al., Petitioners v.
Muhammad TANVIR, et al.
No. 19-71 |
Argued October 6, 2020 |
Decided December 10, 2020
Synopsis Background: Individuals who are practicing Muslims brought action under the Religious Freedom Restoration Act (RFRA) against Federal Bureau of Investigation agents in their official and individual capacities, alleging that the agents placed them on the “No Fly List” in retaliation for their refusal to act as informants against their religious communities and seeking removal from the “No Fly List” and money damages. The United States District Court for the Southern District of New York, Ronnie Abrams, J., 128 F.Supp.3d 756, dismissed the individual-capacity claims for money damages. Individuals appealed. The United States Court of Appeals for the Second Circuit, Pooler, Circuit Judge, 894 F.3d 449, reversed. Certiorari was granted.
The Supreme Court, Justice Thomas, held that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.
Affirmed.
Justice Barrett took no part in the consideration or decision of the case.
Procedural Posture(s): Petition for Writ of Certiorari; On Appeal; Motion to Dismiss.
West Codenotes
Prior Version Recognized as Invalid

Religious Freedom Restoration Act of 1993 § 5, 42 U.S.C.A. § 2000bb-2(1)
*487 Syllabus*
The Religious Freedom Restoration Act of 1993 (RFRA) was enacted in the wake of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, to provide a remedy to redress Federal Government violations of the right to free exercise under the First Amendment. Respondents are practicing Muslims who sued under RFRA, claiming that federal agents placed them on the No Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities. As relevant here, the District Court found that RFRA does not permit monetary relief and dismissed their individual-capacity claims. The Second Circuit reversed, holding that RFRA’s remedies provision encompasses money damages against Government officials.
Held: RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. Pp. –––– – ––––.
(a) RFRA’s text provides that persons may sue and “obtain appropriate relief against a government,” 42 U.S.C. § 2000bb–1(c), including an “official (or other person acting under color of law) of the United States,” § 2000bb–2(1). RFRA supplants the ordinary meaning of “government” with a different, express definition that includes “official[s].” It then underscores that “official[s]” are “person[s].” Under RFRA’s definition, relief that can be executed against an “official ... of the Unites States” is “relief against a government.” This reading is confirmed by RFRA’s use of the phrase “persons acting under color of law,” which has long been interpreted by this Court in the 42 U.S.C. § 1983 context to permit suits against officials in their individual capacities. See, e.g., Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305–306, 106 S.Ct. 2537, 91 L.Ed.2d 249. Pp. –––– – ––––.
(b) RFRA’s term “appropriate relief” is “open-ended” on its face; thus, what relief is “ ‘appropriate’ ” is “inherently context dependent.” Sossamon v. Texas, 563 U.S. 277,
1

Tanzin v. Tanvir, 141 S.Ct. 486 (2020) 20 Cal. Daily Op. Serv. 12,499, 2020 Daily Journal D.A.R. 13,107

286, 131 S.Ct. 1651, 179 L.Ed.2d 700. In the context of suits against Government officials, damages have long been awarded as appropriate relief, and though more limited today, they remain an appropriate form of relief. The availability of damages under § 1983 is particularly salient here. When Congress first enacted RFRA, the definition of “government” included state and local officials. In order to reinstate the pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim, § 2000bb(b), the remedies provision must have encompassed at least the same forms of relief authorized by § 1983. Because damages claims have always been available under § 1983 for clearly established violations of the First Amendment, that means RFRA provides, as one avenue for relief, a right to seek damages against Government employees. The presumption in Sossamon, 563 U.S. 277, 131 S.Ct. 1651, 179 L.Ed.2d 700, is inapplicable because this case does not involve sovereign immunity. Pp. –––– – ––––.

*489 The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek “appropriate relief.” The question here is whether “appropriate relief ” includes claims for money damages against Government officials in their individual capacities. We hold that it does.
I

894 F.3d 449, affirmed.

THOMAS, J., delivered the opinion of the Court, in which all other Members joined, except BARRETT, J., who took no part in the consideration or decision of the case.
Attorneys and Law Firms
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Jeffrey B. Wall, Edwin S. Kneedler, Deputy Solicitors General, Hashim M. Mooppan, Deputy Assistant Attorney, General, Austin L. Raynor, Assistant to the Solicitor, General, Benjamin H. Torrance, Sarah S. Normand, Ellen Blain, Mary Hampton Mason, Reginald M. Skinner, Attorneys, Department of Justice, Washington, D.C., for petitioners.
Shayana Kadidal, Diala Shamas, Baher Azmy, Center for Constitutional Rights, New York, NY, Jennifer R. Cowan, Erol Gulay, Christopher S. Ford, Sandy Tomasik, William C. Mattessich, Ryan C. Mullally, Omar Debs, Debevoise & Plimpton LLP, New York, NY, Ramzi Kassem, Naz Ahmad, CLEAR Project, Main Street Legal Services, Inc., City University of New, York School of Law, Long Island City, NY, for respondents.
Opinion

A
RFRA secures Congress’ view of the right to free exercise under the First Amendment, and it provides a remedy to redress violations of that right. Congress passed the Act in the wake of this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 885–890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that the First Amendment tolerates neutral, generally applicable laws that burden or prohibit religious acts even when the laws are unsupported by a narrowly tailored, compelling governmental interest. See § 2000bb(a). RFRA sought to counter the effect of that holding and restore the pre-Smith “compelling interest test” by “provid[ing] a claim ... to persons whose religious exercise is substantially burdened by government.” §§ 2000bb(b)(1)–(2). That right of action enables a person to “obtain appropriate relief against a government.” § 2000bb–1(c). A “ ‘government’ ” is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” § 2000bb–2(1).

Justice THOMAS delivered the opinion of the Court.

B 2

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Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost.
More than a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief. The District Court then dismissed the individual-capacity claims for money damages, ruling that RFRA does not permit monetary relief.
The Second Circuit reversed. 894 F.3d 449 (2018). It determined that RFRA’s express remedies provision, combined with the statutory definition of “Government,” authorizes claims against federal officials in their individual capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended phrase “appropriate relief ” encompasses money damages against officials. We granted certiorari, 589 U. S. ––––, 140 S.Ct. 550, 205 L.Ed.2d 353 (2019), and now affirm.
II
As usual, we start with the statutory text. E.g., *490 Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U. S. ––––, ––––, 139 S.Ct. 1652, 1661, 203 L.Ed.2d 876 (2019). A person whose exercise of religion has been unlawfully burdened may “obtain appropriate relief against a government.” 42 U.S.C. § 2000bb–1(c).
A
We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA’s

text provides a clear answer: They can. Persons may sue and obtain relief “against a government,” § 2000bb–1(c), which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” § 2000bb–2(1) (emphasis added).
The Government urges us to limit lawsuits against officials to suits against them in their official, not personal, capacities. A lawsuit seeking damages from employees in their individual capacities, the Government argues, is not really “against a government” because relief “can be executed only against the official’s personal assets.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
The problem with this otherwise plausible argument is that Congress supplanted the ordinary meaning of “government” with a different, express definition. “ ‘When a statute includes an explicit definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning.” Digital Realty Trust, Inc. v. Somers, 583 U. S. ––––, ––––, 138 S.Ct. 767, 776, 200 L.Ed.2d 15 (2018) (quoting Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008)). For example, if a statute defines a “State” to include territories and districts, that addition to the plain meaning controls. See, e.g., 15 U.S.C. § 267. So too here. A “government,” under RFRA, extends beyond the term’s plain meaning to include officials. And the term “official” does not refer solely to an office, but rather to the actual person “who is invested with an office.” 10 Oxford English Dictionary 733 (2d ed. 1989). Under RFRA’s definition, relief that can be executed against an “official ... of the United States” is “relief against a government.” 42 U.S.C. §§ 2000bb–1(c), 2000bb–2(1).
Not only does the term “government” encompass officials, it also authorizes suits against “other person[s] acting under color of law.” § 2000bb–2(1). The right to obtain relief against “a person” cannot be squared with the Government’s reading that relief must always run against the United States. Moreover, the use of the phrase “official (or other person ...)” underscores that “official[s]” are treated like “person[s].” Ibid. (emphasis added). In other words, the parenthetical clarifies that “a government” includes both individuals who are officials acting under color of law and other, additional individuals who are nonofficials acting under color of law. Here, respondents sued the former.
The legal “backdrop against which Congress enacted”
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RFRA confirms the propriety of individual-capacity suits. Stewart v. Dutra Constr. Co., 543 U.S. 481, 487, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005). The phrase “persons acting under color of law” draws on one of the most well-known civil rights statutes: 42 U.S.C. § 1983. That statute applies to “person[s] ... under color of any statute,” and this Court has long interpreted it to permit suits against officials in their individual capacities. See, e.g., Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305–306, and n. 8, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Because RFRA uses the same terminology as § 1983 in the very same field of civil rights law, “it is reasonable to believe that the terminology *491 bears a consistent meaning.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 323 (2012). A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against “a government,” as defined under RFRA. § 2000bb–1(c).
B
The question then becomes what “appropriate relief ” entails. Without a statutory definition, we turn to the phrase’s plain meaning at the time of enactment. See FCC v. AT&T Inc., 562 U.S. 397, 403, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011). “Appropriate” means “[s]pecially fitted or suitable, proper.” 1 Oxford English Dictionary, at 586; see also Merriam-Webster’s Collegiate Dictionary 57 (10th ed. 1996) (“especially suitable or compatible”). Because this language is “open-ended” on its face, what relief is “ ‘appropriate’ ” is “inherently context dependent.” Sossamon v. Texas, 563 U.S. 277, 286, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011) (interpreting identical language).
In the context of suits against Government officials, damages have long been awarded as appropriate relief. In the early Republic, “an array of writs ... allowed individuals to test the legality of government conduct by filing suit against government officials” for money damages “payable by the officer.” Pfander & Hunt, Public Wrongs and Private Bills: Indemnification and Govt Accountability in the Early Republic, 85 N. Y. U. L. Rev. 1862, 1871–1875 (2010); see id., at 1875, n. 52 (collecting cases). These common-law causes of action remained available through the 19th century and into the

20th. See, e.g., Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243 (1804); Elliott v. Swartwout, 10 Pet. 137, 9 L.Ed. 373 (1836); Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75 (1852); Buck v. Colbath, 3 Wall. 334, 18 L.Ed. 257 (1866); Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599 (1896); Philadelphia Co. v. Stimson, 223 U.S. 605, 619–620, 32 S.Ct. 340, 56 L.Ed. 570 (1912) (“The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded”).
Though more limited, damages against federal officials remain an appropriate form of relief today. In 1988 the Westfall Act foreclosed common-law claims for damages against federal officials, 28 U.S.C. § 2679, but it left open claims for constitutional violations and certain statutory violations. §§ 2679(b)(2)(A)–(B). Indeed, the Act expressly contemplates that a statute could authorize an action for damages against Government employees. § 2679(b)(2)(B) (explaining that the displacement of remedies “does not extend or apply to a civil action against an employee of the Government ... which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized”).
Damages are also commonly available against state and local government officials. In 1871, for example, Congress passed the precursor to § 1983, imposing liability on any person who, under color of state law, deprived another of a constitutional right. 17 Stat. 13; see also Myers v. Anderson, 238 U.S. 368, 379, 383, 35 S.Ct. 932, 59 L.Ed. 1349 (1915) (affirming award of damages against state election officials). By the time Congress enacted RFRA, this Court had interpreted the modern version of § 1983 to permit monetary recovery against officials who violated “clearly established” federal law. E.g., Procunier v. Navarette, 434 U.S. 555, 561–562, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); *492 Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).
This availability of damages under § 1983 is particularly salient in light of RFRA’s origins. When first enacted, RFRA defined “ ‘government’ ” to include an “official (or other person acting under color of law) of the United States, a State, or a subdivision of a State.” 107 Stat. 1489 (emphasis added). It made no distinction between state and federal officials. After this Court held that RFRA could not be enforced against the States, see City of Boerne v. Flores, 521 U.S. 507, 511, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), Congress narrowly amended the
4

Tanzin v. Tanvir, 141 S.Ct. 486 (2020) 20 Cal. Daily Op. Serv. 12,499, 2020 Daily Journal D.A.R. 13,107

definition “by striking ‘a State, or a subdivision of a State.’ ” 114 Stat. 806. That context is important because RFRA made clear that it was reinstating both the pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim. § 2000bb(b). There is no doubt that damages claims have always been available under § 1983 for clearly established violations of the First Amendment. See, e.g., Sause v. Bauer, 585 U. S. ––––, 138 S.Ct. 2561, 201 L.Ed.2d 982 (2018) (per curiam) (reversing grant of qualified immunity in a case seeking damages under § 1983 based on alleged violations of free exercise rights and Fourth Amendment rights); Murphy v. Missouri Dept. of Corrections, 814 F.2d 1252, 1259 (CA8 1987) (remanding to enter judgment for plaintiffs on a § 1983 free speech and free exercise claims and to determine and order “appropriate relief, which ... may, if appropriate, include an award” of damages). Given that RFRA reinstated pre-Smith protections and rights, parties suing under RFRA must have at least the same avenues for relief against officials that they would have had before Smith. That means RFRA provides, as one avenue for relief, a right to seek damages against Government employees.
A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction. See, e.g., DeMarco v. Davis, 914 F.3d 383, 390 (CA5 2019) (destruction of religious property); Yang v. Sturner, 728 F.Supp. 845 (DRI 1990), opinion withdrawn 750 F.Supp. 558 (DRI 1990) (autopsy of son that violated Hmong beliefs). Given the textual cues just noted, it would be odd to construe RFRA in a manner that prevents courts from awarding such relief. Had Congress wished to limit the remedy to that degree, it knew how to do so. See, e.g., 29 U.S.C. § 1132(a)(3) (providing for “appropriate equitable relief ”); 42 U.S.C. § 2000e–5(g)(1) (providing for “equitable relief as the court deems appropriate”); 15 U.S.C. § 78u(d)(5) (providing for “any equitable relief that may be appropriate or necessary”).*

and Institutionalized Persons Act of 2000—which also permits “ ‘appropriate relief.’ ” *493 563 U.S. at 280, 282, 131 S.Ct. 1651. The obvious difference is that this case features a suit against individuals, who do not enjoy sovereign immunity.
The Government also posits that we should be wary of damages against government officials because these awards could raise separation-of-powers concerns. But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead.
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.
* * *
We conclude that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. The judgment of the United States Court of Appeals for the Second Circuit is affirmed.
It is so ordered.
Justice BARRETT took no part in the consideration or decision of this case.
All Citations

Our opinion in Sossamon does not change this analysis. Sossamon held that a State’s acceptance of federal

141 S.Ct. 486, 20 Cal. Daily Op. Serv. 12,499, 2020 Daily Journal D.A.R. 13,107

funding did not waive sovereign immunity to suits for

damages under a related statute—the Religious Land Use

Footnotes

5

Tanzin v. Tanvir, 141 S.Ct. 486 (2020) 20 Cal. Daily Op. Serv. 12,499, 2020 Daily Journal D.A.R. 13,107

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50

L.Ed. 499.

*

Both the Government and respondents agree that government officials are entitled to assert a qualified immunity

defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize

that the “qualified immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and

is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law,” Tr.

of Oral Arg. 42; see District of Columbia v. Wesby, 583 U. S. ––––, –––– – ––––, 138 S.Ct. 577, 589–591, 199 L.Ed.2d

453 (2018).

6

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:13-cv-06951-RA

Tanvir v. Comey et al Assigned to: Judge Ronnie Abrams Cause: 28:1331cv Fed. Question: Other Civil Rights

Date Filed: 10/01/2013 Date Terminated: 02/01/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Muhammad Tanvir

represented by Ramzi Kassem Main Street Legal Services, Inc. 2 Court Square, 5th Floor Long Island City, NY 11101 718-340-4558 Fax: 718-340-4478 Email: ramzi.kassem@law.cuny.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Baher Azmy Seton Hall Law School Center For Social Justice 833 Mccarter Highway Newark, NJ 07102 (973)-642-8700 Fax: (973)-642-8295 Email: bazmy@ccrjustice.org ATTORNEY TO BE NOTICED

Christopher Sean Ford Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 (212)-909-6161 Email: csford@debevoise.com TERMINATED: 08/18/2015

Diala Shamas Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6426

Email: dshamas@ccrjustice.org ATTORNEY TO BE NOTICED
Erol Nazim Gulay Debevoise & Plimpton LLP(919 Third Ave) 919 Third Avenue New York, NY 10022 (212)-909-6549 Email: egulay@debevoise.com ATTORNEY TO BE NOTICED
Jennifer R. Cowan Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 2129097445 Fax: 2129096836 Email: jrcowan@debevoise.com ATTORNEY TO BE NOTICED
Naz Ahmad Main Street Legal Services, Inc Cuny School of Law 2 Court Square Long Island City, NY 10026 (718)-340-4630 Email: naz.ahmad@law.cuny.edu ATTORNEY TO BE NOTICED
Rebecca Sue Hekman Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 (212)-909-6219 Fax: (212)-521-7417 Email: rshekman@debevoise.com TERMINATED: 07/31/2015
Robert N. Shwartz Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 (212) 909 6000 Fax: (212) 909-6836 Email: rnshwartz@debevoise.com ATTORNEY TO BE NOTICED

Plaintiff Jameel Algibhah

Rushmi Bhaskaran Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 (212) 909-6905 Fax: (212) 521-7116 Email: rbhaskaran@debevoise.com TERMINATED: 01/17/2019
Shayana Devendra Kadidal Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212)614-6438 Fax: (212)614-6499 Email: shanek@ccr-ny.org ATTORNEY TO BE NOTICED
Susan Shanke Hu Center For Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 (212)-614-6491 Fax: (212)-614-6499 Email: shu@ccrjustice.org TERMINATED: 09/05/2014
represented by Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Christopher Sean Ford (See above for address) TERMINATED: 08/18/2015
Erol Nazim Gulay (See above for address) ATTORNEY TO BE NOTICED
Jennifer R. Cowan (See above for address) ATTORNEY TO BE NOTICED
Naz Ahmad

Plaintiff Awais Sajjad

(See above for address) ATTORNEY TO BE NOTICED
Rebecca Sue Hekman (See above for address) TERMINATED: 07/31/2015
Robert N. Shwartz (See above for address) ATTORNEY TO BE NOTICED
Rushmi Bhaskaran (See above for address) TERMINATED: 01/17/2019
represented by Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Christopher Sean Ford (See above for address) TERMINATED: 08/18/2015
Erol Nazim Gulay (See above for address) ATTORNEY TO BE NOTICED
Jennifer R. Cowan (See above for address) ATTORNEY TO BE NOTICED
Naz Ahmad (See above for address) ATTORNEY TO BE NOTICED
Rebecca Sue Hekman (See above for address) TERMINATED: 07/31/2015
Robert N. Shwartz (See above for address) ATTORNEY TO BE NOTICED
Rushmi Bhaskaran

Plaintiff Naveed Shinwari
V. Defendant James Comey Director, Federal Bureau of Investigation

(See above for address) TERMINATED: 01/17/2019
represented by Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Christopher Sean Ford (See above for address) TERMINATED: 08/18/2015
Erol Nazim Gulay (See above for address) ATTORNEY TO BE NOTICED
Jennifer R. Cowan (See above for address) ATTORNEY TO BE NOTICED
Naz Ahmad (See above for address) ATTORNEY TO BE NOTICED
Rebecca Sue Hekman (See above for address) TERMINATED: 07/31/2015
Robert N. Shwartz (See above for address) ATTORNEY TO BE NOTICED
Rushmi Bhaskaran (See above for address) TERMINATED: 01/17/2019
represented by Sarah Sheive Normand U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 (212) 637-2200 Fax: (212) 637-2686

Defendant Christopher M. Piehota Director, Terrorist Screening Center
Defendant Rand Beers Acting Secretary, Department of Homeland Security TERMINATED: 06/10/2015
Defendant John S. Pistole Administrator, Transportation Security Administration TERMINATED: 04/22/2014
Defendant "John" Tanzin Special Agent, FBI

Email: sarah.normand@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ellen Blain United States Attorney Office, SDNY One Saint Andrew's Plaza New York, NY 10007 (212)637-2743 Fax: (212) 637-2730 Email: Ellen.Blain@usdoj.gov ATTORNEY TO BE NOTICED
represented by Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah Sheive Normand (See above for address) LEAD ATTORNEY
Jennifer Ellen Blain (See above for address)
represented by Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Sanya Garcia Special Agent FBI
Defendant John LNU Special Agent, FBI
Defendant John Doe Special Agent, FBI
Defendant Eric H. Holder TERMINATED: 06/10/2015
Defendant Jeh C. Johnson

Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address)
Sarah Sheive Normand (See above for address)
represented by Jennifer Ellen Blain (See above for address)

Defendant Francisco Artousa
Defendant Michael Rutkowski
Defendant William Gale
Defendant John C. Harley III
Defendant Steven LNU

ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael LNU
Defendant Gregg Grossoehmig
Defendant Weysan Dun
Defendant James C. Langenberg
Defendant John Does 1-9, 11-13

Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address)

Defendant John Doe 10
Defendant Loretta E. Lynch

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer Ellen Blain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Sheive Normand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/01/2013
10/01/2013
10/01/2013 10/01/2013 10/03/2013

# Docket Text

COMPLAINT against Rand Beers, James Comey, John Doe, Sanya

1

Garcia, John LNU, Christopher M. Piehota, John S. Pistole, "John"

Tanzin. (Filing Fee $ 350.00, Receipt Number

465401078011)Document filed by Muhammad Tanvir.(cde)

(Entered: 10/02/2013)

SUMMONS ISSUED as to Rand Beers, James Comey, John Doe, Sanya Garcia, John LNU, Christopher M. Piehota, John S. Pistole, "John" Tanzin. (cde) (Entered: 10/02/2013)

Magistrate Judge Ronald L. Ellis is so designated. (cde) (Entered: 10/02/2013)

Case Designated ECF. (cde) (Entered: 10/02/2013)

2 ORDER AND NOTICE OF INITIAL CONFERENCE: Initial Conference set for 12/13/2013 at 03:45 PM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams. By December 6, 2013, the parties are ordered to submit a joint letter, not to exceed 5 pages, providing the information further set forth in this Order. By December 6, 2013, the parties are ordered to jointly submit to the Court a proposed case management plan and scheduling order. Plaintiff is ordered to serve Defendants with a copy of this order and to file an affidavit on ECF certifying that such

10/05/2013 10/17/2013 12/03/2013 12/03/2013
12/05/2013
12/05/2013 03/07/2014 03/21/2014 03/24/2014

service has been effectuated. (Signed by Judge Ronnie Abrams on 10/3/2013) (tn) (Entered: 10/04/2013)

3 NOTICE OF APPEARANCE by Ramzi Kassem on behalf of Muhammad Tanvir. (Kassem, Ramzi) (Entered: 10/05/2013)

4 NOTICE OF APPEARANCE by Susan Shanke Hu on behalf of Muhammad Tanvir. (Hu, Susan) (Entered: 10/17/2013)

NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf

5

of Rand Beers, James Comey, John Doe, Sanya Garcia, John LNU,

Christopher M. Piehota, John S. Pistole, "John" Tanzin. (Normand,

Sarah) (Entered: 12/03/2013)

LETTER MOTION to Adjourn Conference addressed to Judge

6

Ronnie Abrams from AUSA Sarah S. Normand dated 12/03/2013.,

LETTER MOTION for Extension of Time to File Answer addressed

to Judge Ronnie Abrams from AUSA Sarah S. Normand dated

12/03/2013. Document filed by Rand Beers, James Comey, John

Doe, Sanya Garcia, John LNU, Christopher M. Piehota, John S.

Pistole, "John" Tanzin.(Normand, Sarah) (Entered: 12/03/2013)

7

ORDER granting 6 Letter Motion to Adjourn Conference;

granting 6 Letter Motion for Extension of Time to Answer re 1

Complaint. Application granted. The conference scheduled for December 13, 2013, is adjourned. After Plaintiff files his amended complaint, the parties shall submit a proposed Revised Scheduling Order as described above. Rand Beers answer due 3/31/2014; James Comey answer due 3/31/2014; Christopher M. Piehota answer due 3/31/2014. (Signed by Judge Ronnie Abrams on 12/5/2013) (cd) (Entered: 12/05/2013)

NOTICE OF APPEARANCE by Diala Shamas on behalf of

8

Muhammad Tanvir. (Shamas, Diala) (Entered: 12/05/2013)

9 ORDER. The parties shall submit a joint status letter by March 21, 2014. That letter shall state a date by which Plaintiff seeks to file an amended complaint. (Signed by Judge Ronnie Abrams on 3/7/2014) (rjm) (Entered: 03/10/2014)

10 STATUS REPORT. Joint Document filed by Rand Beers, James Comey, John Doe, Sanya Garcia, John LNU, Christopher M. Piehota, John S. Pistole, Muhammad Tanvir, "John" Tanzin.(Kassem, Ramzi) (Entered: 03/21/2014)

11 MEMO ENDORSEMENT on re: 10 Status Report filed by James Comey, John LNU, Rand Beers, John Doe, Sanya Garcia, John S. Pistole, "John" Tanzin, Muhammad Tanvir, Christopher M. Piehota.

04/22/2014 04/22/2014 04/22/2014 04/22/2014
04/23/2014

ENDORSEMENT: Plaintiff shall file an amended complaint by April 22, 2014, and Defendants will have sixty days from the filing of any amended complaint to respond. An initial pretrial conference is scheduled for 10:15 a.m. on June 27, 2014. By June 20, 2014, the parties shall file their pre conference submissions, which are described in theCourt's October 3, 2013 Order. So ordered. (Amended Pleadings due by 4/22/2014.), (Initial Conference set for 6/27/2014 at 10:15 AM before Judge Ronnie Abrams.) (Signed by Judge Ronnie Abrams on 3/24/2014) (rjm) (Entered: 03/25/2014)
12 NOTICE OF APPEARANCE by Robert N. Shwartz on behalf of Muhammad Tanvir, Jameel Algibhah, Naveed Shiwnari, Awais Sajjad. (Shwartz, Robert) (Entered: 04/22/2014)
13 NOTICE OF APPEARANCE by Jennifer R. Cowan on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Cowan, Jennifer) (Entered: 04/22/2014)
14 NOTICE OF APPEARANCE by Rushmi Bhaskaran on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Bhaskaran, Rushmi) (Entered: 04/22/2014)

15

FIRST AMENDED COMPLAINT amending 1 Complaint

against James Comey, Sanya Garcia, John LNU, Christopher M.

Piehota, "John" Tanzin, Eric H. Holder, Jeh C. Johnson, Francisco

Artousa, Michael Rutkowski, William Gale, John C. Harley III,

Steven LNU, Michael LNU, Gregg Grossoehmig, Weysan Dun,

James C. Langenberg, John Does 1-9, 11-13, John Doe

10.Document filed by Naveed Shiwnari, Jameel Algibhah,

Muhammad Tanvir, Awais Sajjad. Related document: 1

Complaint filed by Muhammad Tanvir.(Shwartz, Robert) (Entered: 04/22/2014)
16 ORDER. Plaintiff filed his Amended Complaint in this action on April 22, 2014, and by stipulation of the parties, Defendants have until June 23, 2014, to answer or otherwise respond. It is hereby: ORDERED that an initial pretrial conference is scheduled for 4:00 p.m. on July 11, 2014, in Courtroom 1506 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York. The parties' joint preconference submissions, described in the Court's October 3, 2013 Order, shall be due by July 3, 2014. Francisco Artousa answer due 6/23/2014; Rand Beers answer due 6/23/2014; James Comey answer due 6/23/2014; John Doe answer due 6/23/2014; John Doe 10 answer due 6/23/2014; John Does 1-9, 11-13 answer due 6/23/2014; Weysan Dun answer due 6/23/2014; William Gale answer due 6/23/2014; Sanya Garcia answer due 6/23/2014; Gregg Grossoehmig answer due 6/23/2014; John C.

06/02/2014
06/02/2014 06/11/2014 06/12/2014 06/19/2014

Harley III answer due 6/23/2014; Eric H. Holder answer due 6/23/2014; Jeh C. Johnson answer due 6/23/2014; John LNU answer due 6/23/2014; Michael LNU answer due 6/23/2014; Steven LNU answer due 6/23/2014; James C. Langenberg answer due 6/23/2014; Christopher M. Piehota answer due 6/23/2014; John S. Pistole answer due 6/23/2014; Michael Rutkowski answer due 6/23/2014; "John" Tanzin answer due 6/23/2014. (Initial Conference set for 7/11/2014 at 04:00 PM in Courtroom 1506, U.S. Courthouse, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams.) (Signed by Judge Ronnie Abrams on 4/23/2014) (rjm) (Entered: 04/23/2014)
17 REQUEST FOR ISSUANCE OF SUMMONS as to The United States of America; Eric H. Holder, Attorney General of the United States; Jeh C. Johnson, Secretary, Department of Homeland Security; Francisco Artousa, Special Agent, FBI; Michael Rutkowski, Special Agent, FBI; William Gale, Supervisory Special Agent, FBI; Gregg Grossoehmig, Special Agent, FBI; Weysan Dun, Special Agent In Charge, FBI; James C. Langenberg, Assistant
Special Agent In Charge, FBI, re: 15 Amended Complaint,,. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Shwartz, Robert) (Entered: 06/02/2014)
18 ELECTRONIC SUMMONS ISSUED as to Francisco Artousa, Weysan Dun, William Gale, Gregg Grossoehmig, Eric H. Holder, Jeh C. Johnson, James C. Langenberg, Michael Rutkowski, U.S. Attorney and U.S. Attorney General. (jom) (Entered: 06/03/2014)
19 REQUEST FOR ISSUANCE OF SUMMONS as to John C. Harley
III, c/o Sarah S. Normand, re: 15 Amended Complaint,,. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Shwartz, Robert) (Entered: 06/11/2014)
20 ELECTRONIC SUMMONS ISSUED as to John C. Harley III. (lcu) (Entered: 06/12/2014)
21 LETTER MOTION for Extension of Time addressed to Judge Ronnie Abrams from AUSA Sarah S. Normand dated 06/19/14. Document filed by Francisco Artousa, Rand Beers, James Comey, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Normand, Sarah) (Entered: 06/19/2014)

06/20/2014 06/20/2014
06/20/2014
06/20/2014 06/20/2014 07/03/2014
07/08/2014 07/23/2014 07/23/2014

22 NOTICE OF APPEARANCE by Erol Nazim Gulay on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Gulay, Erol) (Entered: 06/20/2014)
23 LETTER MOTION to Adjourn Conference Regarding Initial Pretrial Conference and in Response to Sarah S. Normand's Letter of June 19, 2014 addressed to Judge Ronnie Abrams from Robert N. Shwartz dated June 20, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 06/20/2014)
24 ORDER granting 21 Letter Motion for Extension of Time: Application granted. The proposed briefing schedule is approved, and the pretrial conference scheduled for July 11, 2014 is adjourned to August 6, 2014 at 1:00 p.m. The parties' joint preconference submissions described in the Court's October 3, 2013 Order, shall be due by July 30, 2014. (Signed by Judge Ronnie Abrams on 6/20/2014) (tn) (Entered: 06/23/2014)
Set/Reset Deadlines: Motions due by 7/28/2014. Responses due by 9/29/2014. Replies due by 10/27/2014. (tn) (Entered: 06/23/2014)
Set/Reset Hearings: Initial Conference set for 8/6/2014 at 01:00 PM before Judge Ronnie Abrams. (tn) (Entered: 06/23/2014)
25 FIRST LETTER MOTION to Adjourn Conference / Initial Pretrial Conference to July 31, 2014 or such other date convenient to the Court / addressed to Judge Ronnie Abrams from Rushmi Bhaskaran, et al. dated July 3, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. Return Date set for 8/6/2014 at 01:00 PM.(Bhaskaran, Rushmi) (Entered: 07/03/2014)
26 ORDER granting 25 Letter Motion to Adjourn Conference. The conference is rescheduled to 5:15 p.m. on July 31, 2014. Submissions are due by 5 p.m. on July 30, 2014. Initial Conference set for 7/31/2014 at 05:15 PM before Judge Ronnie Abrams. (Signed by Judge Ronnie Abrams on 7/8/2014) (lmb) (Entered: 07/08/2014)
27 NOTICE OF APPEARANCE by Baher Azmy on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Azmy, Baher) (Entered: 07/23/2014)
28 LETTER MOTION for Leave to File Excess Pages and Providing Status Update addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated July 23, 2014. Document filed by Francisco Artousa, Rand Beers, James Comey, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Blain, Jennifer) (Entered: 07/23/2014)

07/24/2014 07/24/2014
07/25/2014 07/28/2014 07/28/2014 07/28/2014

29 ORDER granting 28 Letter Motion for Leave to File Excess Pages. Application granted. So ordered. (Signed by Judge Ronnie Abrams on 7/24/2014) (rjm) (Entered: 07/25/2014)
30 STIPULATION AND ORDER REGARDING JOHN DOE DEFENDANTS. Plaintiffs and Defendants, by their undersigned counsel, stipulate and agree as follows: The U.S. Attorney's Office shall accept service of process and file a Notice of Appearance as counsel for each of the following Defendants: a. "FNU" (first name unknown) Tanzin; b. John "LNU" (last name unknown); c. Steven "LNU" (last name unknown); d. Michael "LNU" (last name unknown); e. John Doe 1; f. John Doe 2 (who shall proceed for the next phase of this litigation as "John Doe 2/3"); g. John Doe 4; h. John Doe 5; i. John Doe 6; j. John Doe 9; k. John Doe 10; l. John Doe 11; m. John Doe 12; and n. John Doe 13, and as further set forth in this Stipulation and Order. (Signed by Judge Ronnie Abrams on 7/24/2014) (rjm) (Entered: 07/25/2014)
31 REQUEST FOR ISSUANCE OF SUMMONS as to "FNU" Tanzin; John "LNU"; Steven "LNU"; Michael "LNU"; John Doe 1; John Doe 2/3; John Doe 4; John Doe 5; John Doe 6; John Doe 9; John Doe 10; John Doe 11; John Doe 12; John Doe 13, re: 15
Amended Complaint,,. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Shwartz, Robert) (Entered: 07/25/2014)
32 ELECTRONIC SUMMONS ISSUED as to John Doe, John Doe 10, John Does 1-9, 11-13, John LNU, Michael LNU, Steven LNU, "John" Tanzin. (laq) (Entered: 07/28/2014)
33 NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Normand, Sarah) (Entered: 07/28/2014)
34 MOTION to Dismiss for Lack of Jurisdiction . Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. Responses due by 9/29/2014(Normand, Sarah) (Entered: 07/28/2014)

07/28/2014 07/28/2014
07/28/2014 07/28/2014 07/28/2014 07/28/2014

35 NOTICE OF APPEARANCE by Jennifer Ellen Blain on behalf of Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
36 DECLARATION of Deborah Moore in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction .. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Normand, Sarah) (Entered: 07/28/2014)
37 MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction . . Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Normand, Sarah) (Entered: 07/28/2014)
38 MOTION to Dismiss . Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin.(Blain, Jennifer) (Entered: 07/28/2014)
39 MEMORANDUM OF LAW in Support re: 38 MOTION to Dismiss . . Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
40 DECLARATION of Deborah Moore in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Blain, Jennifer) (Entered: 07/28/2014)

07/28/2014 07/28/2014 07/28/2014 07/28/2014 07/28/2014 07/28/2014 07/28/2014

41 DECLARATION of Sarah S. Normand in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
42 DECLARATION of John Doe 1 in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
43 DECLARATION of John Doe 6 in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
44 DECLARATION of Weysan Dun in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
45 DECLARATION of Gregg Grossoehmig in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
46 DECLARATION of John C. Harley, III in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
47 DECLARATION of James Langenberg in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)

07/28/2014 07/28/2014 07/28/2014 07/30/2014 07/30/2014
07/31/2014 08/11/2014 08/19/2014

48 DECLARATION of Michael LNU in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
49 DECLARATION of Steven LNU in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
50 DECLARATION of John Doe 12 in Support re: 38 MOTION to Dismiss .. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 07/28/2014)
51 LETTER addressed to Judge Ronnie Abrams from Robert N. Shwartz and Sarah S. Normand dated July 30, 2014 re: Joint Status Letter. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 07/30/2014)
52 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,. John Doe 10 served on 7/28/2014, answer due 6/23/2014; John Does 1-9, 11-13 served on 7/28/2014, answer due 6/23/2014; John LNU served on 7/28/2014, answer due 6/23/2014; Michael LNU served on 7/28/2014, answer due 6/23/2014; Steven LNU served on 7/28/2014, answer due 6/23/2014; "John" Tanzin served on 7/28/2014, answer due 6/23/2014. Service was accepted by Lisa Ahearn, Civil Clerk at the U.S. Attorney's Office. Document filed by Naveed Shiwnari; Muhammad Tanvir; Awais Sajjad; Jameel Algibhah. (Shwartz, Robert) (Entered: 07/30/2014)
Minute Entry for proceedings held before Judge Ronnie Abrams: Initial Pretrial Conference held on 7/31/2014. (arc) (Entered: 08/01/2014)
53 LETTER addressed to Judge Ronnie Abrams from Rushmi Bhaskaran dated 08/11/2014 re: Plaintiffs write to inform the Court that they will not, at this time, seek leave to amend the First Amended Complaint. Document filed by Muhammad Tanvir.(Bhaskaran, Rushmi) (Entered: 08/11/2014)
54 LETTER MOTION for Extension of Time to Serve Defendants John Doe 7 and John Doe 8 addressed to Judge Ronnie Abrams from

08/20/2014 08/25/2014
08/26/2014
08/26/2014
08/29/2014 08/29/2014 08/29/2014 09/02/2014 09/04/2014

Robert N. Shwartz dated August 19th, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 08/19/2014)
55 ORDER granting 54 Letter Motion for Extension of Time: APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 8/20/2014) (tn) (Entered: 08/20/2014)
56 LETTER MOTION for Local Rule 37.2 Conference and Order permitting Plaintiffs to take limited jurisdictional discovery from eight Defendants addressed to Judge Ronnie Abrams from Robert N. Shwartz dated August 25, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 08/25/2014)
57 LETTER MOTION for Extension of Time to File Response/Reply to Plaintiff's August 25, 2014, Letter-Motion addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated August 26, 2014. Document filed by John Does 1-9, 11-13, Weysan Dun, Gregg Grossoehmig, John C. Harley III, Michael LNU, Steven LNU, James C. Langenberg.(Blain, Jennifer) (Entered: 08/26/2014)
58 ORDER granting 57 Letter Motion for Extension of Time to File Response/Reply re 57 LETTER MOTION for Extension of Time to File Response/Reply to Plaintiff's August 25, 2014, LetterMotion addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated August 26, 2014. Application Granted. SO ORDERED. Responses due by 9/2/2014. (Signed by Judge Ronnie Abrams on 8/26/2014) (ama) (Entered: 08/26/2014)
59 NOTICE OF APPEARANCE by Christopher Sean Ford on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Ford, Christopher) (Entered: 08/29/2014)
60 NOTICE OF APPEARANCE by Rebecca Sue Hekman on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Hekman, Rebecca) (Entered: 08/29/2014)
61 NOTICE of Withdrawal of Representation. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Hu, Susan) (Entered: 08/29/2014)
62 LETTER addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated September 2, 2014 re: Plaintiffs' August 25, 2014, Letter-motion. Document filed by John Does 1-9, 11-13, Weysan Dun, Gregg Grossoehmig, John C. Harley III, Michael LNU, Steven LNU, James C. Langenberg.(Blain, Jennifer) (Entered: 09/02/2014)
63 LETTER addressed to Judge Ronnie Abrams from Robert N. Shwartz of Debevoise & Plimpton LLP dated 9/4/14 re: jurisdictional discovery. Document filed by Jameel Algibhah, Awais

09/05/2014 09/05/2014
09/09/2014
09/16/2014 09/22/2014 09/23/2014 09/23/2014 09/24/2014

Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 09/04/2014)
64 MEMO ENDORSEMENT on re: 61 Notice (Other) filed by Awais Sajjad, Muhammad Tanvir, Naveed Shiwnari, Jameel Algibhah. ENDORSEMENT: The Clerk of Court is respectfully requested to remove Ms. Hu as counsel of record in this case. SO ORDERED. Attorney Susan Shanke Hu terminated. (Signed by Judge Ronnie Abrams on 9/5/2014) (ajs) (Entered: 09/05/2014)
65 LETTER RESPONSE in Opposition to Motion addressed to Judge Ronnie Abrams from AUSAs Sarah S. Normand and Ellen Blain dated 09/05/14 re: 56 LETTER MOTION for Local Rule 37.2 Conference and Order permitting Plaintiffs to take limited jurisdictional discovery from eight Defendants addressed to Judge Ronnie Abrams from Robert N. Shwartz dated August 25, 2014. . Document filed by John Does 1-9, 11-13, Weysan Dun, Gregg Grossoehmig, John C. Harley III, Michael LNU, Steven LNU, James C. Langenberg. (Normand, Sarah) (Entered: 09/05/2014)
66 ORDER granting 56 Letter Motion for Local Rule 37.2 Conference. As set forth within, it is hereby ORDERED that a conference is scheduled for 11 a.m. on September 16, 2014 in Courtroom 1506 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. SO ORDERED. Status Conference set for 9/16/2014 at 11:00 AM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams. (Signed by Judge Ronnie Abrams on 9/9/2014) (ajs) (Entered: 09/10/2014)
Minute Entry for proceedings held before Judge Ronnie Abrams: Status Conference held on 9/16/2014. (Court Reporter Sam Mauro) (arc) (Entered: 09/16/2014)
67 LETTER MOTION for Extension of Time re Defendants' Motion to Dismiss addressed to Judge Ronnie Abrams from Robert N. Shwartz dated September 22, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 09/22/2014)
68 MEMO ENDORSED ORDER granting 67 Letter Motion for Extension of Time. ENDORSEMENT: SO ORDERED. (Signed by Judge Ronnie Abrams on 9/23/2014) (ajs) (Entered: 09/23/2014)
Set/Reset Deadlines: Responses due by 11/13/2014. Replies due by 12/18/2014. (ajs) (Entered: 09/23/2014)
69 TRANSCRIPT of Proceedings re: ARGUMENT held on 9/16/2014 before Judge Ronnie Abrams. Court Reporter/Transcriber: Samuel Mauro, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber

09/24/2014
11/12/2014 11/13/2014 11/13/2014 11/13/2014

before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/20/2014. Redacted Transcript Deadline set for 10/30/2014. Release of Transcript Restriction set for 12/29/2014.(McGuirk, Kelly) (Entered: 09/24/2014)
70 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 9/16/2014 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/24/2014)
71 LETTER MOTION for Leave to File Excess Pages re Plaintiffs' opposition to Defendants' two motions to dismiss addressed to Judge Ronnie Abrams from Rushmi Bhaskaran dated November 12, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Bhaskaran, Rushmi) (Entered: 11/12/2014)
72 ORDER granting 71 Letter Motion for Leave to File Excess Pages. APPLICATION GRANTED. SO ORDERED. (Signed by Judge Ronnie Abrams on 11/13/2014) (ajs) (Entered: 11/13/2014)
73 MEMORANDUM OF LAW in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction ., 38 MOTION to Dismiss . Plaintiffs' Memorandum of Law In Opposition to Defendants' Motions to Dismiss. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Shwartz, Robert) (Entered: 11/13/2014)
74 DECLARATION of Rushmi Bhaskaran in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction ., 38 MOTION to Dismiss .. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir. (Attachments: # 1 Exhibit A, # 2 Exhibit B (Part 1 of 5), # 3 Exhibit B (Part 2 of 5), # 4 Exhibit B (Part 3 of 5), # 5 Exhibit B (Part 4 of 5), # 6 Exhibit B (Part 5 of 5), # 7 Exhibit C, # 8 Exhibit D (Part 1 of 6), # 9 Exhibit D (Part 2 of 6), # 10 Exhibit D (Part 3 of 6), # 11 Exhibit D (Part 4 of 6), # 12 Exhibit D (Part 5 of 6), # 13 Exhibit D (Part 6 of 6), # 14 Exhibit E, # 15 Exhibit F, # 16 Exhibit G, # 17 Exhibit H, # 18 Exhibit I (Part 1 of 4), # 19 Exhibit I (Part 2 of 4), # 20 Exhibit I (Part 3 of 4), # 21 Exhibit I (Part 4 of 4), # 22 Exhibit J, # 23 Exhibit K, # 24 Exhibit L, # 25 Exhibit M)(Bhaskaran, Rushmi) (Entered: 11/13/2014)

12/03/2014
12/03/2014 12/17/2014 12/18/2014 01/21/2015
01/21/2015 01/22/2015

75 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Ronnie Abrams from AUSA Sarah S. Normand dated 12/03/2014. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Normand, Sarah) (Entered: 12/03/2014)
76 ORDER granting 75 Letter Motion for Extension of Time to File Response/Reply. APPLICATION GRANTED. SO ORDERED. Replies due by 1/22/2015. (Signed by Judge Ronnie Abrams on 12/3/2014) (ajs) (Entered: 12/03/2014)
77 LETTER MOTION for Extension of Time to serve Defendants John Doe 7 and John Doe 8 addressed to Judge Ronnie Abrams from Erol N. Gulay dated December 17, 2014. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Gulay, Erol) (Entered: 12/17/2014)
78 ORDER granting 77 Letter Motion for Extension of Time. The deadline to serve John Does 7 and 8 is extended through 30 days after the pending motions to dismiss. SO ORDERED. (Signed by Judge Ronnie Abrams on 12/18/2014) (ajs) (Entered: 12/19/2014)
79 LETTER MOTION for Leave to File Excess Pages in Support of Motions to Dismiss addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated January 21, 2015. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Blain, Jennifer) (Entered: 01/21/2015)
80 ORDER granting 79 Letter Motion for Leave to File Excess Pages for Defendants' respective reply memoranda of law in further support of their coordinated motions to dismiss the amended complaint. APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 1/21/2015) (spo) (Entered: 01/21/2015)
81 REPLY MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction . . Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg,

01/22/2015 01/29/2015
04/08/2015 04/13/2015 04/16/2015
04/16/2015

Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Normand, Sarah) (Entered: 01/22/2015)
82 REPLY MEMORANDUM OF LAW in Support re: 38 MOTION to Dismiss . . Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin. (Blain, Jennifer) (Entered: 01/22/2015)
83 LETTER MOTION for Conference re: 34 MOTION to Dismiss for Lack of Jurisdiction ., 38 MOTION to Dismiss . //Letter from Robert N. Shwartz of Debevoise & Plimpton LLP to the Honorable Judge Abrams requesting that the Court schedule oral argument on the Defendants' motions to dismiss addressed to Judge Ronnie Abrams from Robert N. Shwartz dated 1/29/15. Document filed by Jameel Algibhah, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 01/29/2015)
84 ORDER granting 83 Letter Motion for Conference. Application granted. Oral argument is scheduled for May 14, 2015 at 10:30 a.m. SO ORDERED. Oral Argument set for 5/14/2015 at 10:30 AM before Judge Ronnie Abrams. (Signed by Judge Ronnie Abrams on 4/8/2015) (ajs) (Entered: 04/09/2015)
85 NOTICE of Revised Redress Procedures. Document filed by James Comey, Eric H. Holder, Jeh C. Johnson, Christopher M. Piehota. (Normand, Sarah) (Entered: 04/13/2015)
86 LETTER MOTION to Adjourn Conference /Oral Argument addressed to Judge Ronnie Abrams from AUSA Sarah S. Normand dated 04/16/15. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Normand, Sarah) (Entered: 04/16/2015)
87 ORDER granting 86 LETTER MOTION to Adjourn Conference/Oral Argument addressed to Judge Ronnie Abrams from AUSA Sarah S. Normand dated 04/16/15. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. Application granted. Oral argument is adjourned until June 12, 2015 at 2:00 p.m. So ordered. (Oral

05/04/2015 06/01/2015 06/01/2015
06/03/2015 06/10/2015 06/10/2015

Argument set for 6/12/2015 at 02:00 PM before Judge Ronnie Abrams). (Signed by Judge Ronnie Abrams on 4/16/2015) (rjm) (Entered: 04/17/2015)
88 LETTER addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated May 4, 2015 re: Status Update. Document filed by James Comey, Eric H. Holder, Jeh C. Johnson, Christopher M. Piehota, John S. Pistole. (Attachments: # 1 Supplement Courtesy Copy)(Blain, Jennifer) (Entered: 05/04/2015)
89 MOTION to Stay Official Capacity Claims. Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin.(Normand, Sarah) (Entered: 06/01/2015)
90 MEMORANDUM OF LAW in Support re: 89 MOTION to Stay Official Capacity Claims. . Document filed by Francisco Artousa, Rand Beers, James Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Christopher M. Piehota, John S. Pistole, Michael Rutkowski, "John" Tanzin. (Normand, Sarah) (Entered: 06/01/2015)
91 LETTER addressed to Judge Ronnie Abrams from Rushmi Bhaskaran dated June 3, 2015 re: Response to the Government's June 1, 2015 Motion for a Limited Stay of Proceedings with Regard to Plaintiffs' Official Capacity Claims. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Bhaskaran, Rushmi) (Entered: 06/03/2015)
92 LETTER addressed to Judge Ronnie Abrams from Robert N. Shwartz dated June 10, 2015 re: withdrawing Plaintiffs' opposition to the Government's Motion for a Limited Stay of Proceedings, and consenting to a stay. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 06/10/2015)
93 ORDER deferring ruling on 34 Motion to Dismiss for Lack of Jurisdiction; granting 89 Motion to Stay. In view of the foregoing, Defendant's motion for a stay of the Official Capacity Claims is GRANTED. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 89 and stay the motion pending at Dkt. 34. Oral argument on Defendants' motion to dismiss the claims made against them in their personal capacities, see Dkt. 39, will proceed as scheduled on June 12, 2015 at 2 p.m. in Courtroom 1506, 40 Foley

06/12/2015 06/29/2015
06/29/2015 07/06/2015 07/14/2015 07/14/2015

Square. SO ORDERED. (Signed by Judge Ronnie Abrams on 6/10/2015) (ajs) (Entered: 06/10/2015)
Minute Entry for proceedings held before Judge Ronnie Abrams: Oral Argument held on 6/12/2015 re: 38 MOTION to Dismiss . filed by John LNU, John Doe, John Does 1-9, 11-13, James C. Langenberg, Weysan Dun, Gregg Grossoehmig, John C. Harley III, John Doe 10, Sanya Garcia, "John" Tanzin, William Gale, Francisco Artousa, Steven LNU, Michael LNU, Michael Rutkowski. (Court Reporter Sabrina Demidio) (arc) (Entered: 06/12/2015)
94 TRANSCRIPT of Proceedings re: hearing held on 6/12/2015 before Judge Ronnie Abrams. Court Reporter/Transcriber: Sabrina D'Emidio, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/23/2015. Redacted Transcript Deadline set for 8/3/2015. Release of Transcript Restriction set for 10/1/2015.(McGuirk, Kelly) (Entered: 06/29/2015)
95 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 6/12/2015 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/29/2015)
96 LETTER addressed to Judge Ronnie Abrams from AUSA Sarah S. Normand dated 07/06/15 re: Second Circuit's Decision in Turkmen v. Hasty. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, Eric H. Holder, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin.(Normand, Sarah) (Entered: 07/06/2015)
97 LETTER addressed to Judge Ronnie Abrams from Diala Shamas dated July 14, 2015 re: Second Circuit's Decision in Turkmen v. Hasty. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shamas, Diala) (Entered: 07/14/2015)
98 LETTER addressed to Judge Ronnie Abrams from Robert N. Shwartz dated 7/14/15 re: Post Argument Letter. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 07/14/2015)

07/31/2015 07/31/2015
07/31/2015 08/14/2015 08/18/2015 09/03/2015

99 LETTER addressed to Judge Ronnie Abrams from Rebecca S. Hekman dated July 31, 2015 re: Withdrawal of RSHekman from case. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Hekman, Rebecca) (Entered: 07/31/2015)

100 LETTER addressed to Judge Ronnie Abrams from AUSA Ellen Blain dated July 31, 2015 re: Plaintiffs' July 14, 2015, Letters. Document filed by Francisco Artousa, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C. Harley III, John LNU, Michael LNU, Steven LNU, James C. Langenberg, Michael Rutkowski, "John" Tanzin.(Blain, Jennifer) (Entered: 07/31/2015)

101 MEMO ENDORSEMENT on re: 99 Letter filed by Awais Sajjad, Muhammad Tanvir, Naveed Shiwnari, Jameel Algibhah, re: Withdrawal of RS Hekman from case. ENDORSEMENT: SO ORDERED. Attorney Rebecca Sue Hekman terminated. (Signed by Judge Ronnie Abrams on 7/31/2015) (ajs) (Entered: 07/31/2015)

102 LETTER addressed to Judge Ronnie Abrams from Christopher S. Ford dated August 14, 2015 re: Withdrawal of Christopher S. Ford. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shiwnari, Muhammad Tanvir.(Ford, Christopher) (Entered: 08/14/2015)

103 MEMO ENDORSEMENT on re: 102 Letter filed by Awais Sajjad, Muhammad Tanvir, Naveed Shiwnari, Jameel Algibhah, re: Withdrawal of Christopher S. Ford. ENDORSEMENT: SO ORDERED. Attorney Christopher Sean Ford terminated. (Signed by Judge Ronnie Abrams on 8/18/2015) (ajs) (Entered: 08/18/2015)

OPINION & ORDER #105808 re: 38 MOTION to Dismiss filed by

104

John LNU, John Doe, John Does 1-9, 11-13, James C. Langenberg,

Weysan Dun, Gregg Grossoehmig, John C. Harley III, John Doe 10,

Sanya Garcia, "John" Tanzin, William Gale, Francisco Artousa,

Steven LNU, Michael LNU, Michael Rutkowski. Although federal

law imposes limits on the investigative tactics federal officials may

employ in seeking to keep this nation safe, it also establishes limits

on the manner in which an individual may vindicate his rights should

those tactics cross the line. For the reasons stated, the law does not

permit Plaintiffs to seek damages against the Agents in their

personal capacities either under Bivens or RFRA. Accordingly, the

Agents' motion to dismiss is GRANTED and the claims against FNU

Tanzin, Sanya Garcia, Francisco Artusa, John LNU, Michael

Rutowski, William Gale, John C. Harley III, Steven LNU, Michael

LNU, Gregg Grossochmig, Weysan Dun, James C. Langenberg,

John Does 1-6 and 9-13 in their personal capacities are dismissed.

The Court on its own motion also dismisses all personal capacity

10/05/2015 12/14/2015
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claims against John Does 7 and 8. See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n.6 (2d Cir. 1990). As previously noted, this opinion does not address the viability of Plaintiffs' official capacity claims and thus expresses no opinion on the merits of their arguments concerning the manner in which individuals are added to the No Fly List or the mechanisms for challenging such inclusion. The parties are directed to submit a joint letter to the Court within 30 days advising how they wish to proceed with respect to those claims. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 9/3/2015) (kko) Modified on 9/3/2015 (soh). (Entered: 09/03/2015)

105 LETTER addressed to Judge Ronnie Abrams from Robert N. Shwartz dated October 5, 2015 re: official capacity claims. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shinwari, Muhammad Tanvir.(Shwartz, Robert) (Entered: 10/05/2015)

106 MEMO ENDORSEMENT on re: 105 Letter re: Official capacity claims, filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah. ENDORSEMENT: On December 11, 2015, the Second Circuit Court of Appeals denied a petition to rehear en bane the panel decision in Turkmen v. Hasty, on which this Court relied in its September 3, 2015 Opinion & Order. In light of this development, the parties shall submit a joint letter no later than December 18, 2015 indicating whether they still plan to submit a proposed order and judgment to the Court and, if so, when they expect to make such a submission. So ordered. (Signed by Judge Ronnie Abrams on 12/14/2015) (spo) (Entered: 12/15/2015)

107 NOTICE OF APPEARANCE by Naz Ahmad on behalf of Jameel Algibhah, Awais Sajjad, Naveed Shinwari, Muhammad Tanvir. (Ahmad, Naz) (Entered: 12/18/2015)

LETTER addressed to Judge Ronnie Abrams from Shayana Kadidal

108

dated 12/18/2015 re: Joint letter submitting competing proposed

orders and judgments from Plaintiffs and Defendants. Document

filed by Jameel Algibhah, Francisco Artousa, Rand Beers, James

Comey, John Doe, John Doe 10, John Does 1-9, 11-13, Weysan

Dun, William Gale, Sanya Garcia, Gregg Grossoehmig, John C.

Harley III, Eric H. Holder, Jeh C. Johnson, John LNU, Michael

LNU, Steven LNU, James C. Langenberg, Loretta E. Lynch,

Christopher M. Piehota, John S. Pistole, Michael Rutkowski, Awais

Sajjad, Naveed Shinwari, Muhammad Tanvir, "John" Tanzin.

(Attachments: # 1 Plaintiffs' proposed order, # 2 Government's proposed order)(Kadidal, Shayana) (Entered: 12/18/2015)

12/28/2015
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109 ORDER: The Court agrees with Defendants that Plaintiffs' proposed order is unnecessarily overinclusive. To the extent members of the public seek information regarding why Plaintiffs agreed to voluntarily dismiss their official capacity claims without prejudice, they may review the December 18 letter and other filings made in this lawsuit. The Court currently takes no position regarding the viability of Plaintiffs' possible motion for attorneys' fees and costs. Because the parties agree that Plaintiffs' official capacity claims against Defendants may be dismissed without prejudice, the Court so dismisses them. The Clerk of Court is respectfully directed to enter final judgment in favor of Defendants. Plaintiffs may have until January 29, 2016 to move for attorneys' fees and costs. If no motion is filed by that date, this action will be terminated on the docket. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 12/28/2015) (spo) (Entered: 12/28/2015)
110 NOTICE of (letter responding to Dec. 28, 2015 order of Court setting deadline for Plaintiffs to move for attorneys' fees and costs). Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shinwari, Muhammad Tanvir. (Kadidal, Shayana) (Entered: 01/29/2016)
111 ORDER: On September 3, 2015, the Court dismissed Plaintiffs' individual capacity claims against Defendants FNU Tanzin, Sanya Garcia, Francisco Artusa, John LNU, Michael Rutkowski, William Gale, John C. Harley III, Steven LNU, Michael LNU, Gregg Grossoehmig, Weysan Dun, James C. Langenberg, and John Does 113. See Dkt. 104. On December 28, 2015, the Court-on consent of the parties-dismissed without prejudice Plaintiffs' remaining official capacity claims. See Dkt. 109. The December 28 Order noted that unless Plaintiffs moved for attorneys'fees and costs by January 29, 2016, "this action will be terminated on the docket." Id. at 3. On January 29, 2016, Plaintiffs informed the Court that they "will not seek an award of fees and costs at this stage of the litigation." Dkt. 110. The Clerk of Court is accordingly respectfully directed to enter final judgment in favor of Defendants and to terminate this action. (Signed by Judge Ronnie Abrams on 2/1/2016) (cf) (Entered: 02/01/2016)
Terminate Transcript Deadlines (cf) (Entered: 02/01/2016)
Transmission to Judgments and Orders Clerk. Transmitted re: 111 Order to the Judgments and Orders Clerk. (cf) (Entered: 02/16/2016)
112 CLERK'S JUDGMENT: That for the reasons stated in the Court's Order dated February 1, 2016, final judgment is hereby entered in favor of Defendants and the action is terminated. (Signed by Clerk of Court Ruby Krajick on 2/17/2016) (Attachments: # 1 Notice ofr

04/18/2016
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05/02/2018 06/25/2018

Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 02/17/2016)
113 NOTICE OF APPEAL from 112 Clerk's Judgment,. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shinwari, Muhammad Tanvir. Filing fee $ 505.00, receipt number 0208-12196892. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A - 2-17-16 Judgment)(Cowan, Jennifer) (Entered: 04/18/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 113 Notice of Appeal,. (nd) (Entered: 04/18/2016)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 113 Notice of Appeal, filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah were transmitted to the U.S. Court of Appeals. (nd) (Entered: 04/18/2016)
114 OPINION of USCA (Certified) as to 113 Notice of Appeal, filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah. USCA Case Number 16-1176. For the reasons stated in the attached opinion, we reverse the judgment of the District Court and remand for further proceedings. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 05/02/2018. (nd) (Entered: 05/02/2018)
Transmission of USCA Opinion to the District Judge re: 114 USCA Opinion. (nd) (Entered: 05/02/2018)
115 AMENDED OPINION of USCA (Certified) as to 113 Notice of Appeal, filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah. USCA Case Number 16-1176. PlaintiffsAppellants Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari ("Plaintiffs") appeal from a February 17, 2016 final judgment of the United States District Court for the Southern District of New York (Abrams, J.), dismissing their complaint against senior federal law enforcement officials and 25 named and unnamed federal law enforcement officers. The complaint alleged, inter alia, that in retaliation for Plaintiffs' refusal to serve as informants, federal officers improperly placed or retained Plaintiffs' names on the "No Fly List," in violation of Plaintiffs' rights under the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"). The complaint sought (1) injunctive and declaratory relief against all defendants in their official capacities for various constitutional and statutory violations, and (2) compensatory and punitive damages from federal law enforcement officers in their individual capacities for violations of

01/16/2019 01/17/2019 02/19/2020 02/20/2020

their rights under the First Amendment and RFRA. After the parties agreed to stay the official capacity claims, the district court dismissed Plaintiffs' individual capacity claims. As relevant here, the district court held that RFRA does not permit the recovery of money damages against federal officers sued in their individual capacities. Plaintiffs appeal that RFRA determination only. Because we disagree with the district court, and hold that RFRA permits a plaintiff to recover money damages against federal officers sued in their individual capacities for violations of RFRA's substantive protections, we reverse the district court's judgment and remand for further proceedings. REVERSED and REMANDED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 06/25/2018. (nd) (Entered: 06/25/2018)
116 LETTER addressed to Judge Ronnie Abrams from Rushmi Bhaskaran dated January 16, 2019 re: withdrawal as counsel for Plaintiffs. Document filed by Jameel Algibhah, Awais Sajjad, Naveed Shinwari, Muhammad Tanvir.(Bhaskaran, Rushmi) (Entered: 01/16/2019)
117 MEMO ENDORSEMENT on re: 116 Letter filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah. ENDORSEMENT: SO ORDERED. (Attorney Rushmi Bhaskaran terminated.) (Signed by Judge Ronnie Abrams on 1/17/2019) (rro) (Entered: 01/17/2019)
118 Supreme Court Record Request as to 113 Notice of Appeal, filed by Awais Sajjad, Muhammad Tanvir, Naveed Shinwari, Jameel Algibhah. USCA Case Number 16-1176; SCUS Case Number 190071. (tp) (Entered: 02/20/2020)
Appeal Record Sent to SCUS (Electronic File). Certified Indexed record on Appeal Electronic Files for 118 Appeal Remark USCA Case Number 16-1176; SCUS Case Number 19-0071, were transmitted to the Supreme Court of the United States. (tp) Modified on 2/20/2020 (tp). (Entered: 02/20/2020)

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