Courthouse Steps Decision Teleforum: Tanzin v. Tanvir

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome all to The Federalist Society's Teleforum Conference call, as this afternoon, December 14, 2020, we have a "Courthouse Steps Decision Teleforum on the case Tanzin v. Tanvir." I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today's call are those of our expert. 

 

We're very fortunate to have joining us today Stephanie Taub. She's Senior Counsel at First Liberty, and she'll be covering the case today. Stephanie's going to give opening remarks. They'll go about a half hour. After that, we'll be looking to you, the audience, for questions. So be thinking of those, or maybe you came to the program with them, but be ready for that when we get to that portion of the call.

 

All right. Without much more delay, thanks for being with us, Stephanie. I'll hand the floor off to you.

 

Stephanie Taub:  Great. Thank you so much, Nick, and thank you to The Federalist Society for hosting this event. I'd like to thank everyone that's listening in on the call today.

 

      So my name is Stephanie Taub. I am a Senior Counsel at First Liberty Institute. First Liberty is a nationwide nonprofit law firm dedicated to defending religious liberty for all Americans. My firm filed an amicus brief in the case that we're going to be talking about today in support of the plaintiff's respondence.

 

      All right. So religious liberty cases can sometimes split the court into strange coalitions. Sometimes, we have unanimous opinions, sometimes 7-2, sometimes an establishment clause case in particular, you get very fractured opinions.  

 

But this past Thursday, December 10, the Supreme Court issued a unanimous religious liberty opinion. It was a case called Tanzin v. Tanvir. And so this is a very specific holding, but it's an important holding that makes it possible for the most egregious religious liberty violations in the federal government to be held -- or it's the most egregious religious liberty violators of the federal government, for federal employees to be held financially responsible for their actions.  So the victims can sue them personally for money damages.

 

It's good news that the Court was able to agree on this principle, mostly because it sends a warning to federal employees that they have to think twice before violating our religious freedom. So the vote here was 8-0. Justice Barrett was not on the court at the time that the case was argued, so she didn't take part in this opinion. The opinion was written by Justice Thomas, and there were no concurrences or dissents. So it is a short and sweet nine-page opinion. We're going to go through the opinion today, the issues that are involved in the case, point out a few interesting notes that are not in the opinion, and then touch on what we think will happen next.

 

This case was interpreting the remedies provision of the Religious Freedom Restoration Act, also called RFRA. RFRA is one of the most important statutes protecting religious liberty. I'd say it's the most important federal statute protecting religious liberty. As you probably know, it was put into place in 1993 in the wake of Employment Division v. Smith. Hence, Smith was the case that severely guided the First Amendment's free exercise clause, making it much more difficult for people whose religious liberty has been burdened to actually bring a successful lawsuit.

 

Smith held that for neutral and generally applicable laws, courts only have to rely -- or have to apply rational basis scrutiny, and it threw out the framework of strict scrutiny that had been in place for decades before that. And essentially, no one in Congress at the time liked that Smith decision. So everyone came together to restore the religious liberty standard that was previously in place, also sometimes known as the Sherbert-Yoder standard.

 

So RFRA provides that when the federal government substantially burdens religious exercise, that government action must face strict scrutiny. If the government cannot demonstrate that its actions actually furthered a compelling interest and was narrowly tailored to be as least restrictive as possible to furthering that interest, then the government action is unlawful.

 

So in other words, RFRA basically says that if the federal government is burdening your religious beliefs, whether they intend to or not, they have to have a very good reason for doing so. And the statute expressly provides a cause of action, allowing plaintiffs to recover appropriate relief against government.

 

So here, turning back to this case, this is Tanzin v. Tanvir, and the Court unanimously concluded that appropriate relief includes claims for money damages against federal employees in their personal capacity. So to be clear, we're only talking about monetary relief, so not injunctive relief. We're only talking about claims that are against federal employees, and this case doesn’t apply to state or local employees. And we're also only talking about personal capacity lawsuits. We're not talking about official capacity lawsuits.

 

So the only question is whether appropriate relief includes this kind of very specific relief. And so what's the story here? What are the facts of the case? How does this case come before the Court? So we have three individuals who are U.S. citizens or lawful permanent residents, and they're Muslim.

 

They allege that they were approached by FBI agents and put to a very difficult choice. They were asked to act as informants against a religious community, which would violate their religious beliefs. And when they refused, they were wrongly placed on the no-fly list in retaliation for that refusal and barred from taking any sort of commercial flight.

 

So they brought multiple claims in federal court, including RFRA claims. They sought injunctive relief, to be removed from the no-fly list so they would be able to fly again, and they also sought damages to recover the amount that they lost for plane tickets, other economic damages. One of the plaintiffs lost his job because it involved frequent travel, so he wasn't able to do that job anymore.

 

So the key here is after they filed that lawsuit, they were removed from the no-fly list. So they were able to fly again, and they no longer had a live claim for injunctive relief. So their claim for injunctive relief was mooted. So the only possible way that they could get their case heard, that they could get some sort of justice for what they endured was a claim for damages.

 

And so if you're bringing a claim for damages, you really have two options here. You could bring a claim for damages against the entity itself, so a claim against the state that the money would come out of the government coffers, or you could bring a claim against the individual, so which the damages would come out of that employee's own pocket.

 

And so here the issue, plaintiffs only focused their appeal on this second aspect on the individual bad actor on damages that would come from the personal capacity lawsuit. They decided not to go for the damages against the entity itself, against the government entity itself. So they didn't do the official capacity lawsuit. That's not on appeal.

 

And so one interesting question is why didn't they seek damages against the federal government itself when the money would come out of federal government coffers? So that would probably be because of the Supreme Court Sossamon v. Texas decision, which is a sovereign immunity decision. And so the federal government is, of course, a sovereign, and so in order for a sovereign to be sued for money damages, they have to have clearly and expressly waived sovereign immunity.

 

And so Sossamon was a case that was interpreting the remedies provision of RLUIPA, which is similar to RFRA. RLUIPA is the Religious Land Use and Institutionalized Persons Act, which is sometimes known as the sister statute to RFRA. So there, in the Sossamon case, they held that it was not clear enough to waive sovereign immunity. So you couldn't receive damages against the sovereign from that statute.

 

And so although it hasn't been expressly decided, it's likely that a decision on the RFRA could come out the same way. So the plaintiffs here decided to focus on personal capacity lawsuits. And so the district court held that RFRA did not authorize that sort of personal capacity lawsuit. The Second Circuit reversed, holding that it did. And then the Supreme Court now confirmed the second Circuit.

 

So as I mentioned, there's a few important notes about the scope here. So this is only about federal employees, not state or local employees. And that's because RFRA only applies to the federal government. So when RFRA was originally passed in 1993, the Congress wanted it to apply to the state and the federal government. It had language in there that defined government as including state and local in addition to federal and treating them all the same way.

 

But the Supreme Court held in City of Boerne v. Flores that RFRA didn't apply to the state governments. So basically, that it's up to the -- Congress, by statute, can't amend the Constitution because they can't amend the Constitution by changing Smith. They essentially had to -- and that would require a constitutional amendment, not just a statute. So RFRA could only bind the federal government.

 

So this case is only [inaudible 10:09], this in RFRA is not about state employees and whether they would be subject to personal capacity suits. It's only about federal employees and whether they would be subject to these suits. That said, it could have implications for state versions of RFRA.

 

So after the Court said that RFRA does not apply to the states, then several states, on their own initiative, decided to pass their own versions of RFRA. Some of them are very, very similar to the text of the federal Religious Freedom Restoration Act, and some are different. And so in order to see whether or not this Tanzin v. Tanvir decision applies or will guide you as to how the state version -- the state analog will be applied, you have to look at the text of those state decisions.

 

So Texas, for example, Texas's RFRA has its own remedies provision that's very specific and doesn't use the same language. So Tanzin v. Tanvir likely wouldn't apply to that. But on the other hand, Florida's RFRA has very similar language, so I'd argue that it does apply to the Florida State RFRA. And you have to look at each on a state by state basis.

 

All right. So then the next important thing to note is that this case is only about money damages. We're not talking about injunctive relief here. So it's clear everyone agrees that RFRA does allow injunctive relief. But here, the claim for injunctive relief is mooted, so the only remaining claims are damages claims.

 

And so one of the main features of this decision is that it closes a loophole that governments have sometimes used to avoid being held responsible for religious liberty violations. So some -- normally, when you're bringing a religious liberty lawsuit, you're seeking -- most religious liberty lawsuits seek injunctive relief. They seek to have the government end whatever unconstitutional action that the government is taking so that it won't apply in the future.

 

But sometimes, the relief is -- or the injury is only in the past. And so the only thing that can remedy that is damages or sometimes you bring a lawsuit and the very act of bringing the lawsuit, the government doesn't want to go to court about it so they just stop whatever action it is. That moots your injunctive relief, and if you don't have a claim for damages, then your case is essentially moot, and you can't go forward. So this closes that loophole and allows some cases that otherwise would not be allowed to continue.

 

And then finally, one more important thing to note is qualified immunity. So the parties here agreed that qualified immunity does apply to these personal capacity claims against the officers. So in the same way that if you're suing a state officer, a state employee, for a violation of the free exercise clause under the First Amendment and you're trying to seek damages from them, that you would -- they would argue that they're entitled to qualified immunity, which protects all but the most incompetent officers or makes it very difficult for plaintiffs to actually successfully bring claims for damages because you essentially have to argue that this is a -- that they are violating a law that's clearly established in order for them to be held liable in order for the claims to survive that qualified immunity. So, here, it aligns -- this decision aligns RFRA with the 1983 case law.

 

All right, turning to the actual structure of the opinion itself, so in Tanzin v. Tanvir, this is a statutory interpretation case. It's divided into two parts. So the first part is who can be sued, and the second part is for what relief. What can they be sued for?

 

And so it's a statutory interpretation case. It turns on the remedies provision, and it provides an express cause of action and it authorizes plaintiffs to recover "appropriate relief against a government." And it defines government as including -- in its list of who's included as the government, includes officers or other persons acting under color of law. And so the question is how to interpret that definition.

 

And so it's interesting, the structure it displayed, because who can be sued and for what relief is a very interrelated inquiry. So if you sue someone in their personal capacity, the only real relief that you can actually get against them is damages, so it didn't necessarily have to be structured this way, but it is a logical way to structure.

 

Okay, so part one: who can be sued? They have to determine if injured persons can sue government in their personal capacity. So they start with the definition of government which includes officials, and the government argues that the term officials is just referring to official capacity lawsuits. So when it says officials, it only means officials in their official capacity. That was the government's argument.

 

But RFRA -- and so they say a lawsuit seeking damages isn't really against a government if it comes out of the employee's pocket. But here, Thomas goes back, and he says but there is a statute-specific definition here that overrides any other definition. So you're not just looking at the ordinary meaning alone, you have to look at the statute-specific definition. So since the statute's specific definition includes official and the dictionary definition of that official includes not only the office but also the person that holds that office.

 

And then he also makes two other points to support that interpretation. So the first one is the parenthetical, which I think is the strongest argument. So it says official or other person acting under color of law, so other -- official or other person. So that other means that official is also a person and a person acting under color of law, that's borrowing a phrase from 1983. And it means that this person isn't necessarily a government employee. They might be a person that's -- they might be a contractor, or they might be someone that is somehow pretending to be operating as a government employee somehow but they're not actually a government employee.

 

So if they can be sued, they can't be sued for injunctive relief. They can't be sued to make the government do something. They can only be sued for damages. And so official or other person acting under color of law, it seems to be implying that you can sue both of these people as people in their personal capacity.

 

And Thomas also points out the government was arguing that relief only has run against the United States. It couldn't be run through only injunctive relief available, that you can't ever get damages against somebody. And that just ignores the person operating under color of law which seems to clearly imply that some other people can be sued in their personal capacity.

 

All right. So and then the second supporting point is just that we're talking about person under color of law, which is borrowing from Section 1983, which is the statute that allows you to sue state or local government actors in either their official capacity or in their individual capacity. So here, that just adds to support the fact that they wanted to include -- they wanted to be able to sue officers in their individual capacities as well.

 

Okay. So now that we've decided that, what relief is available? They turn -- so what is appropriate relief mean? And first, Thomas says basically, the dictionary definition of appropriate is of absolutely no help. It's very open-ended and context dependent. So they turn to -- next, they turn to historical evidence, which shows that suits for damages can -- there's a history of suits being available for government officials in their individual capacity.

 

And then they look at the context of RFRA itself. So what is the purpose of RFRA? How do we interpret the appropriate relief in context? And the Religious Freedom Restoration Act was meant, as the name suggests, to restore religious freedom to the pre-Smith standard. Congress wanted it to apply to both the state and the federal governments and used the same language for both.

 

So in pre-Smith times, damages were available against state actors in both capacities under 1983, so it's very unlikely that Congress meant to restore fewer remedies in light of that overall context and in light of the purpose of the statute. So they used the 1983 color of law language and this supports the fact that Congress wanted to hold actors to the same 1983 standards which included personal capacity damage claims for monetary relief.

 

And the Court cites two cases to hold that damages are available under 1983 for clearly established violations of the First Amendment, specifically for religious liberty in the religious liberty context. So the first case that the Court cites is a case that's actually by my firm, First Liberty Institute. It's a case that I worked on. It's called Sause v. Bauer. We won this case two years ago. We got a unanimous per curiam opinion that reversed a grant of qualified immunity.

 

As I'm sure you all know, it's very rare to reverse the grants of qualified immunity. Usually, the Supreme Court goes the other way, reversing denials of qualified immunity. So the Court unanimously remanded back down this case, and it allowed my client to make her case that state police officers infringed her clearly established First Amendment right to pray and also her Fourth Amendment rights, and they were intertwined in that case.

 

So the Court held, "There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the exercise of religion." And so the case stands for the proposition that you can get damages for violations of the free exercise clause in the 1983 context. And so it's possible to overcome qualified immunity because the Court remanded back down to address the issue of whether qualified immunity was overcome or not.

 

And there are essentially -- I guess, stepping back a second, there are two main ways to overcome qualified immunity. So you have to have and show that this law is clearly established. Your officer has to basically know or should have known that what they're doing is wrong, that what they're doing violates clearly established law. And so if you -- there are two ways to show that.

 

The first one is if you have another case that's on point, and they're presumed to be aware of all the other cases that are binding on them. And so if you can point to another case that shows it's clearly established, you should have known this situation violated the law. And the other way is if you have a situation that is just so absolutely outrageous, that any reasonable officer would've known that what they're doing is unconstitutional.

 

And so our Sause case falls in that category. Hope v. Pelzer falls in that category. And so this is another way that if -- so if you have a really egregious First Amendment violation, it's possible to overcome qualified immunity in those circumstances.

 

All right. The Court also cites another case for that proposition, Murphy v. Missouri Department of Corrections, which shows that appropriate relief could include damages for free exercise claim violations against officers in their personal capacity.

 

Okay, and turning back to the main question of what relief is available, the third supporting point is sometimes, injunctive relief is the only relief that can remedy these violations. Sometimes, it's the only relief that is appropriate. So for instance, if you have any sort of religious liberty violation or harm that occurred in the past, they cited a couple of cases about the destruction of religious property. So that's something that's happened in the past and can't be repeated. And then you also have the situation where some religious beliefs believe that autopsies are deep violations of their religious beliefs.

 

In those situations, the harm occurred in the past and the only way to make that family whole is damages. And so this is the sort of situation in which damages are the only kind of relief that’s available, so it's the only kind of relief that's appropriate. So overall, the conclusion is that yes, damages are available in personal capacity suits.

 

And overall, my overall impression of this opinion, I think it's well-reasoned. I did a Teleforum a couple of months ago right after this case was heard on oral arguments, and I thought it was somewhat more likely than not that the Court would come out the way it did. But I'm very surprised that it was unanimous. I thought it would be kind of a closer vote.

 

If you go back and listen to the Teleforum, I thought that Thomas and Kavanaugh seemed to be leaning the other way. But I'm surprised -- or that might be the reason why Thomas ended up writing this opinion. But I'm glad that he did. I think this is an important case that leaves the door open for some sort of outrageous violations of religious liberty that actually go to court for plaintiffs to have their chance to make their case and potentially be made whole. It'll be an uphill battle for anyone that's bringing these kinds of claims, but it's important that they have the right to do so. And it's good that the whole Supreme Court got behind that principle.

 

Okay. A couple of interesting points about what's not in the opinion. So the main case that each side relied on was not even cited once in this opinion. So the government relied a lot on Bivens and was arguing that this is -- that the plaintiffs are trying to get around the Bivens problem or basically were trying to extend Bivens into a new area.

 

So as you know, Bivens authorizes damages against federal officers based on the Constitution alone. So it's an implied cause of action, and it's very disfavored now to have implied causes of action. So the implied cause of action based on the Constitution that allows federal officers to be sued in their personal capacity.

 

But here, we're not talking about an implied cause of action. We have a statute, and it's a statute with an express cause of action and a statute with an expressed remedies provision. So the only question is what's the scope of that remedy's provision. So Bivens doesn’t really apply and it's a red herring. And the Supreme Court apparently agreed. I guess they didn't even address at all in their opinion.

 

And then on the other hand, the plaintiffs who were relying on Franklin v. Gwinnett County Public Schools, which was also not cited once in the Supreme Court's opinion. For the appropriate relief, they were arguing there should be a general rule or that Franklin stands for the general rule that appropriate relief always includes damages. But there, the Court was interpreting the proper remedy for an implied cause of action. So once you have an implied cause of action, what's the right remedy?

 

So there wasn't any sort of statutory basis for the cause of action. There wasn't a remedies provision they were interpreting, but they were like okay, now that we've decided that you can sue under the statute, what's the proper remedy? And so the default in that unusual situation is that it includes damages.

 

But here, we have an expressed cause of action. We have an expressed remedies provision, so we're not making up something out of thin air. We actually have to look at the statutory text. So the Court didn't cite that case either.

 

And then the other interesting points is a couple of things they only cited very, very briefly. So most of the parties' discussion was about the Sossamon v. Texas sovereign immunity case that applied the RLUIPA's remedy provision. And it took up a lot of the parties' briefing, and it was relegated to, I think, one line, maybe two, in this opinion.

 

It was essentially saying Sossamon was a sovereign immunity case. Here, we're not talking about sovereign immunity, so it’s not dispositive. And that was the extent of Sossamon, which is right because the case did entirely turn on sovereign immunity. So they're saying whatever -- so here, when sovereign immunity isn't on the table, how do you apply appropriate relief? So I think that was the right call as well.

 

And then finally, the last point is it doesn't talk much about qualified immunity. In the body, it doesn't talk at all about qualified immunity. It's only in one footnote that basically says the parties agree that qualified immunity applies to these claims. So the opinion essentially leaves it open for future challenges. It doesn't end -- and it might not be surprising that they did that because Thomas is the author of the opinion. And Thomas has not been shy about talking about his doubts about some of the court's qualified immunity cases, especially in the 1983 context.

 

So Thomas in the past, in Ziglar v. Abbasi and recently in Baxter v. Bracey, talks about how qualified immunity isn't found in the statutory text. It's a gloss. It's been around for a long time that's been interpreted into Section 1983.

 

So it's probably likely that -- so overall, the thrust of the Tanzin decision is it really more closely aligns RFRA with Section 1983 for Section 1983 authorizes personal capacity lawsuits against state and local actors in their individual capacity. And RFRA authorizes it against federal actors in their personal capacity now. And the qualified immunity applies in both situations, and so probably they would stand or fall together. Whatever happens in the 1983 context will probably also apply in the RFRA context.

 

All right. So what's going to happen next? What will be the next front for this sort of litigation? Where are we going to go? So now that we've determined that you can bring these kinds of lawsuits, which is probably going to be litigated on the qualified immunity front, so what kinds of -- when can qualified immunity be overcome? What counts as clearly established in the religious liberty context? When should officers have known that they're violating clearly established law?

 

So there haven't been a lot of cases in talking about seeking monetary damages for religious liberty violations. Sause is one, the Sause v. Bauer case, but we might see more. So it's probably still going to remain a rare situation in which you have such clearly established law that you can overcome qualified immunity. But, again, it's important to leave that door open.

 

So that concludes my remarks. And I'm happy to turn to the question and answer portion of today's call.

 

Nick Marr:  Great. Thanks very much, Stephanie. And, Stephanie, it doesn't look like we have any questions in the queue right now. Is there anything that you didn't cover in your remarks that you'd like to mention, maybe about how this might affect states or other -- I know you mentioned that a bit but --

 

Stephanie Taub:  Yeah. Let's see. I can talk a little bit -- oh, great.

 

Nick Marr:  We actually do -- yep. We do have a question. And we'll go to it now.

 

Caller 1:  Yes, hi. Thanks for the informative discussion. Question as to whether you see this decision having any effect on litigation on the land use side of RLUIPA cases. I haven't had a chance to read it yet, so I'm wondering if the Court spoke to that half of RLUIPA and just what you see the implications being for litigation, particularly as against local officials who are the usual defendants in those cases.

 

Stephanie Taub:  That's a fantastic question. The remedies provision of both of the statutes are very similar. So I think that the RLUIPA, it should have a similar reading in the RLUIPA context as well. So RLUIPA, I guess just going back, talking a little bit more about what RLUIPA is for our listeners, RLUIPA is the Religious Land Use and Institutionalized Persons Act.

 

      So after the Supreme Court held that RFRA did not apply to the state in City of Boerne, then Congress decided okay, we'll take a look at two situations in which religious freedom is often violated. And that's when we're talking about inmates in prison and when we're talking about land use, religious churches, synagogues, mosques, that want to use their property to further their religious beliefs, to actually exercise their religious beliefs, which if you don't have property, it's hard to really exercise any of your beliefs.

 

      And so the Court passed RLUIPA that applied to the states as well as the federal government, very similar language, authorizing appropriate relief. And so I think it would probably apply as well to the RLUIPA context.

 

Caller 1:  And if I could just ask a follow up, did the Court distinguish or limit Sossamon and the application to the prisoner side of RLUIPA?

 

Stephanie Taub:  No. There was only one line about Sossamon or one paragraph about Sossamon which was essentially saying that that was a sovereign immunity case. So in Sossamon, they weren't allowed to receive -- they were seeking damages against the state and against state actors in their official capacities. And you can only seek official capacity damages if sovereign immunity is waived. And they held that it was a little bit ambiguous, and any ambiguity is construed against waiving sovereign immunity in the Sossamon case. So they didn't make any distinction here about land use versus prisoner.

 

Caller 1:  Thank you.

 

Nick Marr:  So no questions in the queue right now, Stephanie. I'll hand the floor back to you if you want to wrap up a little early this afternoon or touch on anything you didn’t get to. And I'll let you know if we get a question in the meantime.

 

Stephanie Taub:  All right. Fantastic. Well, thank you again for this opportunity. It's really always good see the Supreme Court issuing unanimous religious liberty opinions to show that they're on the same side here, that these are our fundamental rights and if you really do have clear violations of religious freedom, that you should be able to bring those cases in Court. And that really accords with the whole overall purpose of the Religious Freedom Restoration Act, which was to restore religious freedom, to eliminate or to functionally reverse the Smith decision to go back to the pre-Smith era.

 

      So another case to watch is the Fulton case, which the Court is currently deciding whether to keep the Smith decision or whether just to clarify its contours. What does it mean to be a neutral and generally applicable rule? The Smith decision caused some issues in application. And so that'll be another important religious liberty case to decide that could have a really far-reaching ramification.

 

Nick Marr:  Great. Thank you very much, Stephanie, and we haven't gotten any questions in the meantime, so we'll wrap up. And thank you especially for the benefit of your valuable time and expertise today in covering this case. Thanks to our audience for calling in. As always, be checking your emails and our website for announcements about upcoming Teleforum calls and events.

 

We've just added a new one today. It'll be 2 p.m. It's a Capital Conversations with Ambassador Robert Lighthizer. He's United States Trade Representative, so that will be a Zoom event. Register online, and we hope to see you there. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.