Second Circuit Judges recently traded strong language in opinions accompanying the denial of a petition for en banc review in Tanvir v. Tanzin.

In Tanvir, Plaintiffs alleged that, in retaliation for their refusal to serve as informants, federal officials improperly placed or retained plaintiffs’ names on the “No Fly List” in violation of the First Amendment and the Religious Freedom Restoration Act (RFRA). Plaintiffs asserted that they rebuffed these efforts based in part on their sincerely-held religious beliefs.

SDNY District Judge Abrams held that RFRA does not permit the recovery of money damages against federal officers sued as individuals, but a Second Circuit panel reversed, holding that RFRA permits individual capacity suits for money damages. In strong opinions accompanying the denial of a petition for en banc review, Judges Jacobs and Cabranes asserted that the panel decision was wrong, akin to the creation of a new Bivens remedy, and dangerous.

The Panel Decision

The appeal was argued before Judges Katzmann, Pooler and Lynch, and Judge Pooler wrote the decision for the Court. RFRA provides that the Government shall not substantially burden a person’s exercise of religion unless it can demonstrate the application of the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. In addition, RFRA provides a private right of action to assert the RFRA violation “as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”

Judge Pooler first determined that because the RFRA definition of “government” includes federal officials, RFRA authorizes individual capacity suits against government officials. Next, Judge Pooler found that “appropriate relief” against such individuals includes money damages. The Court acknowledged that the phrase was not defined in the statute. The Court resorted to canons of statutory interpretation and relied on Supreme Court precedent holding that that the availability of all appropriate remedies is presumed unless Congress expressly indicates otherwise.  The panel concluded that RFRA authorizes the recovery of money damages against federal officers sued in their individual capacities.

Judges Katzmann and Pooler Concur in Denial of En Banc Review

Defendants filed a petition for en banc review, which was denied because it lacked majority support. Judges Katzmann and Pooler filed an opinion concurring in the denial, and rejected the arguments from the dissenting Judges that the panel opinion improperly engaged in finding a new Bivens-like private right of action against individuals for money damages. They argued that RFRA contains an express private right of action with an express provision for “appropriate relief.” They drew the distinction that the panel decision did not imply a right of action, but instead interpreted the statute to provide a damages remedy. They viewed this as a “time-honored exercise of the judiciary’s power to grant relief where Congress has legislated liability,” and stated that they wrote separately “merely to expose the dissents’ Bivens accusations as a red herring.”

Judge Jacobs’s Dissent

Judge Jacobs would have granted en banc review to reverse “the panel’s erroneous creation of a right to money damages under RFRA.” Judge Jacobs pointed to Second Circuit and Supreme Court precedent under the Religious Land Use and Institutionalized Persons Act (RLUIPA), holding that the phrase “appropriate relief against a government” does not support a private right of action against individual state officials for money damages, and that RLUIPA does not authorize private suits for money damages against the states. Judge Jacobs also stated that if a statute imposed personal money damages liability against individual federal officers, “one would expect that to be done explicitly, rather than by indirection, hint, or negative pregnant.”

The language of Judge Jacobs’s dissent raised the alarm that the panel decision was wrong and dangerous.

• “The panel’s expansive conclusion can be viewed without alarm only by people (judges and law clerks) who enjoy absolute immunity from such suits.”
• “The panel has done what the Supreme Court has forbidden: it has created a new Bivens cause of action. The Supreme Court did not shut the Bivens door so that we could climb in a window.”
• “The safest course for a government employee in doubt would be to avoid doing one’s job, which is not a choice in need of encouragement.”
• “The panel opinion is quite wrong and actually dangerous.”

Judge Cabranes’s Dissent

Judge Cabranes, noting that Judge Jacobs had done the “heavy lifting” in his opinion, emphasized his view that the panel decision “represents a transparent attempt to evade, if not defy, the precedents of the Supreme Court.” He referenced two Supreme Court decisions that had reversed Second Circuit extensions of the Bivens remedy, Ashcroft v. Iqbal and Ziglar v. Abasi. Judge Cabranes rejected, also in strong language, what he saw as the panel decision’s presumption that “Congress legislated a Bivens-like remedy—sub silentio—in RFRA.”

• “It appears our Court is still incapable of learning this lesson.”
• “This rationalization is as flawed as it is transparent.”
• “When asked why he persisted in issuing decisions that the Supreme Court would predictably overturn, a prominent judge of another circuit once explained, ‘[t]hey can’t catch ‘em all.’ Such an attitude is not, and must not become, the approach of our Circuit.”

A Petition For Certiorari?

Whether the strong language from the dissenting opinions will interest the Supreme Court remains to be seen. The government has requested a stay of the mandate so the Solicitor General, or possibly private counsel, can determine whether to file a petition for certiorari to the Supreme Court. In any event, this debate is likely to continue.

[View source.]