Courthouse Steps Oral Argument Teleforum: Tanzin v. Tanvir

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This teleforum addresses the October 6, 2020, Supreme Court oral argument in FNU Tanzin v. Tanvir, which involves the sole question of whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb et seq., permits suits seeking money damages against individual federal employees. The underlying facts of the case involve RFRA claims brought by Muslim immigrants to the United States, now U.S. citizens or lawful permanent residents, who allege they were placed on the No Fly List in retaliation for refusing, on religious grounds, to serve as informants for the FBI. In a 2011 decision, Sossamon v. Texas, the Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), a companion statute to RFRA, did not authorize money damages against states. This case represents another look at the remedies available under RFRA and the statutory phrase “appropriate relief.”

This teleforum features Stephanie Taub, Senior Counsel for First Liberty Institute, which filed an amicus brief in support of Respondents.  

Featuring: 

Stephanie Taub, Senior Counsel, First Liberty Institute

 

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Event Transcript

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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.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a special Courthouse Steps Oral Argument episode on Tanzin v. Tanvir. My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Stephanie Taub, Senior Counsel at First Liberty Institute. After our speaker gives her opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Stephanie, the floor is yours.

 

Stephanie Taub:  Wonderful. Thank you so much, Greg and thank you to The Federalist Society for hosting this event. My name is Stephanie Taub, and I am Senior Counsel at First Liberty Institute. First Liberty is a nationwide law firm dedicated to defending religious liberties for all Americans.

 

      So as you mentioned, today we're here to talk about Tanzin v. Tanvir, a religious liberty case that was heard by the Supreme Court yesterday morning. My firm filed an amicus brief in the case in support of the plaintiff's respondents.

 

      Okay, so what was the issue in the case? The question before the Court is whether the Religious Freedom Restoration Act, or RFRA, authorizes claims for damages against federal officials who are sued in their personal capacities. As I'm sure you all know, RFRA is -- or the Religious Freedom Restoration Act is one of the main religious freedom laws used over the past few decades to prevent the federal government from infringing on religious liberty. It specifically provides a cause of action for people whose religious exercise has been burdened.

 

      So this case is a statutory interpretation case, and it turns on how to properly interpret the RFRA statute, and specifically, its remedies provision. So we're going to look at the text of RFRA, of that remedies provision. It allows lawsuits to "obtain appropriate relief against a government." So the question is, what does that mean? And RFRA defines government as including "a branch, department, agency, instrumentality, and official (or other person acting under color of law)." And that last portion is in a parenthetical.

 

      So putting those together, the question for this case is how to interpret the relevant terms, appropriate relief against an official or other person acting under color of law. The statute doesn't specifically mention damages or injunctive relief one way or the other. And the parties are agreed that appropriate relief at least includes injunctive relief. And they disagree about whether it also includes damages under any circumstances.

 

      So a 10,000 foot view of the arguments, on the one hand, you have the religious plaintiffs who argue that there is a general presumption in the law that when you have -- when a statute calls for appropriate relief, that includes all available relief, including damages, unless that form of relief is barred by something like sovereign immunity. And then the plaintiff respondents also argue that the statute must be read in light of the broad purpose of RFRA, which was to strengthen religious freedom protections and provide broad relief.

 

      On the other hand, you have the government arguments. And the government argues that the purpose of RFRA was to provide relief against a government. They focus on the phrase, against a government. And they argue that that shouldn't be read to encompass personal capacity suits against individual government employees. The government wants to treat a presumption that the personal capacity suits aren't authorized unless there is a clear affirmative statement in the statute. So because damages are mentioned, does that cut in favor of a presumption one way or the other? How should it be interpreted? That's the main issue in the case.

 

      So stepping back, let's take a look at the facts and -- upon which this case comes to the Court. So this case involves three Muslim men who are U.S. citizens, or lawful permanent residents. They allege that they were approached by FBI agents and asked to act as informants against their religious community, which would violate their religious beliefs. So they allege that they were placed in a difficult position where they -- oh, and when they refused, they were wrongly placed -- they allege that they were wrongly placed on the No-Fly list in retaliation for refusing to act as informants and barred from taking commercial flights.

 

      So essentially, they're placed in a difficult position, where they're either forced to act as informants against their community or be barred from flying on commercial flights. And so they brought a lawsuit in New York that included several causes of action, including causes of action under RFRA. They sought injunctive relief to be removed from the No-Fly list so that they would be able to fly again. And they also sought damages to recover the amount they lost for plane tickets and other economic damages. One of the plaintiffs had to quit his job, for example, because that job involved regularly taking some commercial flights.

 

      So after they filed their lawsuit, they were subsequently removed from the No-Fly list, so they were able to move again. And that mooted -- importantly, that mooted their claim for injunctive relief and leaving only a potential claim for damages. And so one of the main themes in this case is if you no longer have injunctive relief, and the only potential relief you have for violations of RFRA for infringement on your religious beliefs is a potential of damages claim, if the government is able to simply moot the claims for injunctive relief, they may never be held accountable for violating religious freedom. So here, when you have a situation where a plaintiff’s rights were violated in the past in some sort of -- or if you have someone whose rights were violated in a one-time incident, they wouldn't be able to be made whole if the damages relief isn't available.

 

      So here we have -- so looking at the procedural history of this case, the District Court dismissed the complaint. So after the injunctive relief claims were mooted, there were a few claims for damages, including the First Amendment claim and the RFRA claim, and the court dismissed those. And then the plaintiff appealed only the RFRA damages claim against federal officials in their personal capacity.

 

      So the Second Court of Appeals reversed and remanded, holding that RFRA does allow these kinds of claims to move forward. The federal government sought en banc review, which was denied. There are a few opinions issued in -- along with that denial of en banc review, which are worth the read. The dissenting opinion lays out very interesting arguments on the one hand. And then the panel decision from the Second Court of Appeals lays out good arguments on the other hand. So if you're looking for another source for the good arguments on this case, I would point you there.

     

      So now, the federal government is appealing this issue to the Supreme Court. So the only thing at issue here is whether RFRA, the Religious Freedom Restoration Act authorizes personal capacity damages lawsuits against federal officials.

 

      Before we turn more specifically to the party’s main arguments, it'd be helpful to take a step back and quickly go over the history of RFRA. This may be a refresher course for most of you. But just bear with me and I put it in helpful context for interpreting the statute.

 

      So in 1990, the Supreme Court issued a landmark opinion in Employment Division v. Smith written by Justice Scalia. It created a major shift in constitutional law, severely constraining what kind of religious freedom cases can be brought. And this essentially shielded neutral and generally applicable laws from free exercise challenges. So it didn't matter if a law happened to burden your religious beliefs or put you in a position where you're forced to act against your religious convictions.

 

      Previously, under pre-Smith law, if a law did burden your religious beliefs, you could go to court and seek relief. And the government would have the burden of proof and the courts would apply some form of heightened scrutiny to that -- to your claim. So Smith was widely seen to have gutted free exercise protections from the Constitution, especially at the expense of religious minorities who might not have the political influence of other groups.

 

      So in the wake of Smith, there was really this bipartisan outrage from both the left and the right. And in the wake of that, RFRA was passed with nearly unanimous support from Congress. And it was signed into law by President Clinton in 1993. And the intent of RFRA was to restore religious freedom laws to what it was before Smith and provide for very robust enforcement of religious liberty protection.

 

      So Congress wanted RFRA to apply to both the states and the federal government. But the Supreme Court, in City of Boerne v. Flores said you can't do that. You'd need a Constitutional Amendment if you're going to reinterpret the First Amendment. But you can bind the federal government. So RFRA applies only to the federal government and not to the states.

 

      And in response, Congress created a more narrow statute to protect religious freedom in certain -- in two specific contexts. And that statute is the Religious Land Use and Institutionalized Persons Act. And that is otherwise known as RLUIPA.

 

      And so now, with that background, we can turn to the government's main argument. So the government is relying on -- the main case that they rely on is a RLUIPA case. So this is RFRA's sister statue, the Religious Land Use and Institutionalized Persons Act. In 2011, the Court took a case called Sossamon v. Texas, which looks at the remedies provision of RLUIPA. And so here, we're looking at the remedies provision of RFRA.

 

      And so in the two statutes, if you take a look at them, they have very similar language. They have very similar purpose. They are considered to be sister statutes. So they're both construing what does appropriate relief against the government mean? And in Sossamon v. Texas, the Court -- the majority of the Court decided that appropriate relief against the government did not include damages against the states.

 

      So the government now argues that RFRA should be interpreted in the same way. But the respondents here argue that Sossamon doesn't necessarily affect the outcome because that case turned on sovereign immunity. If you read it, it's all about sovereign immunity. So here, there are no sovereign immunity concerns. Of course, if you're talking about officials sued in their personal capacity, they're not entitled to sovereign immunity. Whereas in Sossamon, the Court was considering sovereign immunity with respect to Texas. The states who do have sovereign immunity.

 

      So when you're looking at the phrase, you have to -- through the lens of sovereign immunity, the analysis is different. States are not construed to waive sovereign immunity in a particular context unless the statute is clear enough to put the states on notice that they're waiving that sovereign immunity. So in Sossamon, the Court held that the phrase -- if there's any ambiguity in the phrase, that it wasn't clear enough that damages against the states were authorized in light of presumptions in play due to sovereign immunity.

 

      So that's the main case that the government relies on. And then the respondents, the main case that they're relying on, is they think there should be an opposite presumption. They're relying on Franklin v. Gwinnett County Public Schools. That case establishes the presumption that appropriate relief includes damages unless otherwise specified. So the general rule of remedies is that courts are entitled to fashion appropriate relief and damages are usually included in that.

 

      So the government responds that Franklin doesn't apply here because Franklin was interpreting an implied cause of action, not an express cause of action. It was a very strange situation where the Court found an implied right of action in Title IX. There wasn't any sort of statutory language about a private right of action or any remedies provision that the Court was interpreting. So the government says Franklin only applies in that now this favored situation, an unusual situation, where the Court is interpreting an implied cause of action doesn't actually have statutory language to look at.

 

      So those are the two main cases that are relied on in this case. And so the other arguments on the table is the government, overall, wants a presumption against personal capacity damages in the absence of a clear statement. Because they say it isn't -- generally speaking when you look at other statutes, they are affirmatively authorizing personal capacity damages against government officials. They don't imply that. So the government asserts that what the respondents are trying to do here is create a Bivens implied cause of action against federal officers in their individual capacities, which is, as you all know, Bivens actions are disfavored these days, since Bivens was enacted in the late '70s.

 

       So pre-Smith weren't -- before Smith there weren't lawsuits against officials in their individual capacities, so free exercise violations, Bivens wasn't extended to that context. So the government argues that this interpretation, going beyond pre-Smith law to create a sort of Bivens type remedy. The response from the religious respondents, plaintiffs, is that the whole Bivens argument is a red herring. This isn't a Bivens case because we're not talking about any sort of implied cause of action. We're not talking about an implied cause of action from the text of the Constitution. We're talking about an expressed cause of action. The whole point of the Religious Freedom Restoration Act was to create a cause of action for private individuals to enforce their religious liberty rights. And so there's no question that RFRA grants a private right of action and the only question here is the scope of the remedies. So they say this isn't -- we're not talking about a Bivens case. This is purely a question about the scope of the remedies.

 

      So then there are a few other arguments that are raised. So let's take a look at the oral arguments yesterday and some of the interesting questions that the justices asked. So first of all, some of the justices, Alito, Gorsuch, Roberts, focused in on the language of one of the terms in the definition of who counts as a government actor who can be sued. The RFRA lists what counts -- the definition of government as including "another person acting under color of law." And that language is included in a parenthetical right after the term, official. And so the question is, so who is this person and what remedies are available for this person? So this seems to authorize lawsuits against some private individual who aren't government employees, such as some private government contractors. Both sides concede that this language applies to some private government contractors and such as private individuals who's on -- who run a prison, for example.

 

      So respondents point out that there is no such thing as an official capacity suit for a private person. So the only available relief against these individuals would be damages. But the government took the position that RFRA doesn't authorize damages at all, even for this private person. So the government's position is, yeah, no damages at all, even for a private person. And that -- the statute only authorizes injunctive relief, even against a private actor, and this seems to be a depriving position, to at least Justice Gorsuch.

 

      There's a very interesting exchange that happened in the oral argument. He pushed back on this point. Gorsuch asked why the government thought that only injunctive relief was authorized and whether -- what their justification was that whether their argument turns on the word appropriate in the phrase, appropriate relief, or whether it turns -- rather than the definition of who can be sued. Who counts as a government actor?

 

      And the government responded that both informed their argument that the definition of who the government actors also informs the decision because that emphasizes that the relief needs to be against a government. And they emphasize over and over again the phrase, against a government.

 

      But Gorsuch responds, the definitional section doesn't speak to the nature of relief, at all. And then after a little bit of push back, the government says, “well, not in so many words.” Then Gorsuch says, so it does turn on the phrase, appropriate relief with the merger of law and equities some time ago, "Court is allowed to provide any kind of relief available appropriate to the circumstances." So that's an interesting exchange which may show what issues Justice Gorsuch is grappling with, with respect to his form of textualism.

 

      Alito and Roberts also asked about how that parenthetical, person acting under color of law, interacts with their statutory interpretation arguments. But then, on the other hand, we have Thomas and Kavanaugh, who both brought up the issue of mens rea. They are concerned with the prospect of federal officials facing a personal capacity lawsuit for something that they did unintentionally. So maybe how the FBI agents -- and maybe they're unaware that they are incidentally burdening religious free exercise rights. Because if you look at RFRA, it was designed to go beyond Smith or pre-Smith to talk to -- prohibit government from even incidentally burdening -- placing a burden on a first and sincerely held religious beliefs, on their free exercise.

 

      And so Thomas asked, is there a mens rea requirement in this case? Do you need to intentionally burden free exercise rights in order for a lawsuit to be brought? And so the respondents say that RFRA only requires the burden is substantial. There isn't any sort of -- there isn't an intentional requirement. That in this case, under the facts of these circumstances -- the facts of the case, they believe that the agents knew, or should have known, that what they were doing was burdening religious freedom of the plaintiffs. And so Thomas asked a reasonable question, how would a person know that a burden is a least restrictive means of fulfilling a compelling government interest? How would that government employee know that? And so the respondents would say, these are the kinds of questions that would be decided on remand, in particular, under the qualified immunity standard.

 

      So the respondents, overall, they argue that qualified immunity is a very high bar. It will shield most government employees. So unless these employees are plainly incompetent and flouting clearly established law, qualified immunity will operate to protect them. And these issues can be worked out on remand through qualified immunity.

 

      So here, when we're talking about liability available against federal officers in their personal or individual capacities, we're really talking about those federal officers that are acting in such an outrageous way in disregard of religious freedom, such that they could overcome qualified immunity. So we're not talking about the standard government official that maybe happens to make a mistake and incidentally infringes on religious freedom. So qualified immunity is a high bar that should take into account those sorts of concerns.

 

      And then we have Justice Kagan ask some very interesting questions. So one of her questions, she was talking about pushing back on the government's interpretation that RFRA was not designed to authorize any sort of damages relief. She said, well before City of Boerne, Congress wanted RFRA to apply to the states. And prior to Smith, damages were available against state employees in their personal capacity under 1983. So she asked, did Congress intend to create fewer remedies against state and local officials than pre-Smith law did by intending to take away all available damages, which seems to be a little bit odd, if we have -- the whole point of RFRA was to expand protection for religious liberties and the government is saying that this provision contracted it, and took away what was -- what would have been damages remedies under 1983. So the response that the government gave was that we're focusing on -- the purpose of RFRA was to reinstitute a different substantive standard and not necessarily incorporate all of the same remedies that were pre-Smith.

 

      And finally turning to Sotomayor and Breyer. So Justice Sotomayor brought up legislative history. So she said that RFRA -- if you look at what Congress was discussing when RFRA was passed, they were concerned about families who's loved ones were subject to autopsies against their religious beliefs. So in circumstances like that and the damage is done, injunctive relief isn't available, and it wouldn't help those families. So the only potential for relief in circumstances like that is damages. And there was testimony about these sorts of circumstances that Congress was considering when it was enacting RFRA. And so the overall thrust is to give a cause of action a claim and a remedy for people in this sort of a circumstance. And so she asked why Congress would take away the only relief that could help some people.

 

      And so Sotomayor's question really reiterates her position in Sossamon. So Sotomayor and Breyer were dissenting in Sossamon, and Sotomayor wrote the dissenting opinion. They argued that RLUIPA -- available relief under RLUIPA did include damages. And they thought that it was clear that it should have pierced sovereign immunity in that case. So I think if we were to wager on what Sotomayor and Breyer would do in this case based on that Sossamon dissent and their questions here, it's pretty -- they might be the easiest ones to guess on where they might come out in this case. So they probably are likely to reiterate their points from the Sossamon dissent that appropriate relief generally does authorize damages for claims like this.

 

      And then I think what else might happen, where might the others fall, I think Thomas and Kavanaugh, from their questions today, were clearly, or more clearly, leaning toward the other side with their concern about the mens rea requirement for federal officials. And so they may lean that way. And the others, it's not clear which way they will break. This case does have the potential for an unusual coalition with Sotomayor and Breyer being in favor of stronger religious liberty protections and so it's possible that we could get some sort of an unusual combination of justices here. And so it'll be really interesting to see which way it does come out. And so that concludes my comments that I prepared, and I'm happy to accept any questions that you all may have.

 

Greg Walsh:  Perfect.  Let's go to audience Q&A. We'll now go to the first caller.

 

Bob Fitzpatrick:  Hi. This is Bob Fitzpatrick in D.C. Here's my question. The statute uses the phrase, under color of law. And so my question is, how can a government official not in their governmental capacity, but as an individual, be acting under color of law? It seems antithetical that when I am acting in my personal capacity, I am a renegade, and I am no longer acting under color of law. Quite the opposite, I am totally out of control and not acting, any longer, under color of law. I wonder if that issue came up at the oral argument or in the briefing. Thank you.

 

Stephanie Taub:  So that's a great question. Thank you so much for raising it. And it did come up. So we're talking about -- so the question is whether an individual acting under color of law can really be said to be operating in an official capacity, or if that always means, if they're operating under a personal capacity. So what the parties both would point to is Section 1983, which talks about under color of law as applied to state and local actors. And so they would say that, in that circumstance, state and local actors are -- you are able to get that sort of damages, personal capacity damages against those actors under Section 1983.

 

      So under color of law really means if they are -- even if they're not -- if they're flouting the law, they still tend to be appearing to or wearing the cloak of the law. They seem to be -- they are purportedly authorized by the law, even if they are flouting what's actually required by the law. And so that's how they can -- so by incorporating the same language as 1983, we would argue that we're trying to reach the same sort of circumstances, where you can reach someone in their personal capacity, who's misusing their office to basically be operating under what looks like legal authority, but actually is not. I don't know if that answers your question.

 

Greg Walsh:  Perfect, let's go to the next caller.

 

Caller 2:  Thanks for the presentation. As you know, there are a number of state RFRA statutes around the country. And I was wondering if you are aware of whether or not these issues have been litigated in -- under the state RFRAs in the state court systems, and if so, how have those cases come down? Thanks.

 

Stephanie Taub:  That was a great question there. About 21 states, I believe, almost half the states do have their own form of state RFRAs. And so the -- usually -- so after Sossamon, sovereign immunity bars claims for damages against -- so some courts of appeals have held that for RFRA, sovereign immunity bars claims for damages against the states. And then we're talking about state statutes with respect to personal capacity lawsuits. I'm not sure. I think it would have -- I don't know the answer to that offhand. I think that you'd have to take a look at the particular wording. Sometimes the state statutes are worded a little bit differently than the federal analogue. But that is a great question. And the briefs, surprisingly, they don't argue about that. So I'm not sure. That's a great question.

 

Greg Walsh:  Let's go to our next caller.

 

Caller 3:  Yeah, thanks very much. I'm definitely going to have to download the podcast for this one, because very intricate interplay of theories of law, which I'm not familiar. I actually have two questions, if maybe you can help tease out and parse some of the language for me. So the first one has to do with 1983 actions. And I'm curious why RFRA is sort of -- why isn't 1983, itself, an adequate remedy? I mean, the language there talks about depriving people of constitutional rights. And boy, there's the First Amendment.

 

      And then the second question has to do with the Bivens interplay you mentioned. I know there are certain exceptions to Bivens. And I guess I'm just -- I'm not entirely clear how Bivens is distinguished from 1983 and/or what the implication would be if this is construed as a Bivens action in the expectation that those exceptions would be imported in. Things like, you know, the President's immune. I understand certain judicial officers, or like ALJs and I guess Article II type agencies might be immunized from it and so forth. So anything you can clarify, that would be very helpful.

 

Stephanie Taub:  Great question. So I guess the short answer is, 1983 isn't adequate because that's only against the states and local government. And here, we're talking about a lawsuit that's brought against FBI agents. So it's brought against federal officers and in their individual capacities. And so there's -- 1983 is talking about free exercise claims against individuals -- or against state actors, or states.

 

      So the government argues here that this is more of a Bivens situation because Bivens is talking about -- that there is a Fourth Amendment -- authorizing a Fourth Amendment claim implied cause of action based directly on the Fourth Amendment, not based in any sort of statute like 1983 against federal officers in their individual capacities. And so here, they're trying to say that this is like a Bivens action because it doesn't use the word, damages. Even though we are talking about an expressed cause of action and not an implied cause of action, like we're talking about in Bivens.

 

      So I don't know if all of the -- the government doesn't say that this actually is -- would be a Bivens action. They said it's a Bivens-like action or Bivens -- a kind of Bivens action. So I don't think necessarily all of the same presumptions would apply. I mean, I don't think -- I think I agree with the respondents, that Bivens is a red herring because this is an express -- this is an express cause of action and we're not interpreting something based on anything that's implied in the Constitution where interpreting a cause of action that was specifically given in RFRA. And so the only question is what the scope of the remedies of that is. So I don't think you would need to go -- you could use normal rules of statutory interpretation, just to interpret what the remedy means here. I mean, it's not -- it's -- so I think that the Court should side-step the Bivens question.

 

Caller 3:  Great.  Thank you very much.

 

Stephanie Taub:  Thank you.

 

Greg Walsh:  Stephanie, we don't have any other callers in the queue. Are there any particular unusual makeups of the justices that you're foreseeing in this case?

 

Stephanie Taub:  Well, based on Gorsuch's question I think he -- it's possible he could break with Sotomayor and Breyer and potentially Kagan, although I don't have a read on Kagan. Kagan was actually, interesting enough, she was recused from the Sossamon case. So she didn't partake in it one way or the other. And then based on her questions, she asked very difficult questions of both sides. So it's hard to get a read on where she would fall out. But if that were the case, you could have a four/four split. And because there are only eight justices on the Court right now, for a four/four split, because Justice Barrett, as you know, has not been confirmed yet, so it's not clear what would happen in that case. So sometimes, when you have a four/four split, the Court has simply, basically affirmed, by divided Court and let what happened in the Second Circuit continue. Or it's possible they could order the case for rehearing with the new Justice.

 

      So if this is a close case, it's possible we could see it reheard and maybe Justice Barrett would decide the case.

 

Greg Walsh:  Interesting. Well, we have two callers in the queue. Let's go to them now.

 

Caller 4:  I'm all set. I think she just touched on one of the things I was going to ask. So thank you very much.

 

Stephanie Taub:  All right, great. Thank you.

 

Greg Walsh:  Okay, let's go to our next caller.

 

Caller 5:  Yeah, this isn't what the litigation is about, but I'm just curious if you know, is this FBI agent indemnified? Would he be personally paying the damages, or would the government be paying the damages?

 

Stephanie Taub:  Yeah, so that's a great question. They actually do talk a little bit about what would normally happen. So the government does say that oftentimes agents are indemnified. And so it would ultimately -- they wouldn't -- it wouldn't necessarily come out of their own pocket, even if they were found to be personally liable. So that is an option. But that's not always the case. I don't know with respect to these particular FBI agents if they are indemnified or not. But that is a great issue to raise.

 

Greg Walsh:  Okay, let's go to our next caller.

 

Caller 6:  Yeah, just a little quick follow-up. I don't know, maybe the Court didn't get this. Maybe the briefing didn't get to this. But I'm curious about the question of measure of damages. I mean, is it just sort of the usual panoply of anything from nominal to actual to punitive to consequential? Was there any discussion about that?

 

Stephanie Taub:  I don't think there was any discussion about that in the oral argument. And I don't know if even the brief touched on it. They might have touched a little bit on whether punitive damages are allowed. But essentially, the main question in this case is, damages, yes or no. What does appropriate relief mean? And so I assume that the respondents would argue that the normal forms of damages are all on the table, if damages is on the table at all.

 

Greg Walsh:  We have one caller left in the queue.

 

Caller 7:  Can you tell us what the circuit split entailed that caused the Court to grant cert? Or is there not a circuit split and there's some other rationale for granting cert in this particular case?

 

Stephanie Taub:  All right. That's a great question. So I know most of the cases that have -- I should know the answer to that one. But I don't know the answer to that one. I don't think that very many Court of Appeals have addressed this particular question. I think the D.C. Circuit might have also come out a similar way. I don't think there was a circuit split in this particular case. It's just a question of exceptional importance.

 

Greg Walsh:  We don't have anybody lined up right now. Stephanie, is there anything else that you want to conclude on or found particularly interesting about the argument?

 

Stephanie Taub:  Yeah, well I think I would just like to conclude by thanking you for hosting this event and for the wonderful work that you all do at The Federalist Society. And thank you all for listening. And we'll be certain to tune in and see what the Court does with this interesting case.

 

Greg Walsh:  Perfect. On behalf of The Federalist Society, I want to thank our speaker for the benefit of her valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. 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.