by Douglas Ankney

A unanimous Supreme Court of the United States (“SCOTUS”) held that the express remedies provision of the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. (“RFRA”), permits litigants, when appropriate, to obtain money damages from federal officials sued in their individual capacities.

The case arose when FBI agents (“Defendants”) placed Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari (“Plaintiffs”) on the NO FLY LIST. The Plaintiffs are practicing Muslims, and they filed suit under the RFRA, alleging that the Defendants placed them on the NO FLY LIST in retaliation for their refusal to act as informants within the Muslim community. The suit alleged, inter alia, that the Plaintiffs lost substantial money from plane tickets they couldn’t use and from missed employment opportunities. The Plaintiffs sought both injunctive and monetary relief.

More than a year after the suit was filed, the Department of Homeland Security informed the Plaintiffs they could now fly, making the requested injunctive relief moot. The U.S. District Court for the Southern District of New York then dismissed the individual claims for monetary damages on the grounds that the RFRA doesn’t permit monetary relief. The U.S. Court of Appeals for the Second Circuit reversed, holding that the RFRA does permit money damages. SCOTUS then granted certiorari.

SCOTUS observed that Congress passed the RFRA after SCOTUS had held that generally applicable laws could burden religious liberties even when those laws were unsupported by a compelling government interest. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). The RFRA restored the “compelling interest test” by “provid[ing] a claim ... to persons whose religious exercise is substantially burdened by government,” permitting persons to “obtain appropriate relief against a government.” 42 U.S.C. §§ 2000bb(b)(1)-(2) & 2000bb-1(c).

SCOTUS first determined that the Plaintiffs could sue the FBI agents in their personal capacities under the RFRA. 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). While the definition of a suit “against a government” ordinarily doesn’t encompass suits against officials in their individual capacities, Kentucky v. Graham, 473 U.S. 159 (1985), the RFRA’s definition supplanted the ordinary definition, SCOTUS explained. When a statute includes an explicit definition, courts must follow that definition even if it varies from a term’s ordinary meaning. Burgess v. United States, 553 U.S. 124 (2008). The RFRA’s definition of “government” includes “officials.” And an “official” is the “person who is invested with an office.” 10 Oxford English Dictionary 733 (2d ed. 1989) (“OED”).

Furthermore, the RFRA’s use of the phrase “official (or other person acting under color of law)” underscores the fact that the named officials are to be treated as persons. And this language of RFRA parallels that of 42 U.S.C. § 1983 – which had long been held to permit suits against officials in their individual capacities. Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986). When one statute within a field of law (in this case, civil rights) uses the same terminology found in a similar statute, “it is reasonable to believe the terminology bears a consistent meaning.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts (2012). Consequently, under the RFRA’s definition, relief executed against an “official ... of the United States” is “relief against a government.” 42 U.S.C. §§ 2000bb-1(c) & 2000bb-2(1).

But are monetary damages from an individual “appropriate relief?” Courts look to the plain meaning of words at the time of a statute’s enactment. FCC v. AT&T Inc., 562 U.S. 397 (2011). “Appropriate” is defined as “specifically fitted or suitable, proper.” OED. Because the language of the RFRA is open-ended, “appropriate relief” is “inherently context dependent.” Sossaman v. Texas, 563 U.S. 277 (2011). In the context of suits against government officials, damages have been awarded as appropriate relief since the days of our early Republic. Pfander & Hunt, Public Wrongs and Private Bills: Indemnification and Govt. Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862 (2010).

Although the Westfall Act of 1988 curtailed common-law claims against federal officials, the Act “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.” 28 U.S.C. § 2679(b)(2)(B). Significantly, monetary damages against state government officials in their individual capacities are permitted under 42 U.S.C. § 1983.

Finally, in some cases, monetary damages aren’t only “appropriate,” but they are the only form of relief that can remedy some RFRA violations. For example, effective relief for the Plaintiffs’ wasted plane tickets requires an award of damages, not an injunction. Thus, SCOTUS concluded that the RFRA permits an award of monetary damages from Government officials.

Accordingly, SCOTUS affirmed. See: Tanzin v. Tanvir, 141 S. Ct. 486 (2020).

Writer’s note: SCOTUS distinguished RFRA from RLUIPA. The RLUIPA is applicable to state prisoners claiming violations of religious rights. Generally speaking, under the RLUIPA, state prisoners cannot obtain monetary damages. And the RFRA doesn’t apply to state agencies. 

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