Retaliatory placement on the No Fly List: Are federal officers personally liable?

Retaliatory placement on the No Fly List: Are federal officers personally liable?

In this week’s travel law article, we examine the case of Tanvir v. Tanzin, Docket No. 16-1176 (2d. Cir. May 2, 2018) “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 capacity for various constitutional and statutory violations, and (2) compensatory and punitive damages from federal law enforcement officers in their official capacities for violations of their rights under the First Amendment and RFRA…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 the 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”.

In the Tanvir case, the Court noted that “Plaintiffs are Muslin men who reside in New York or Connecticut. Each was born abroad, immigrated to the United States early in his life, and is now lawfully present here as either a U.S. citizen or as a permanent resident. Each has family remaining overseas. Plaintiffs assert that they were approached by federal agents and asked to serve as informants for the FBI. Specifically, Plaintiffs were asked to gather information on members of Muslim communities and report that information to the FBI. In some instances, the FBI’s request was accompanied with severe pressure, including threats of deportation or arrest; in others, the request was accompanied by promises of financial and other assistance. Regardless, Plaintiffs rebuffed those repeated requests, at least in part based on their sincerely-held religious beliefs.

Punished For Not Informing

In response to these refusals, the federal agents maintained Plaintiffs on the national ‘No Fly List’ despite the fact that Plaintiffs ‘do[] not pose, ha[ve] never posed and ha[ve] never been accused of posing, a threat to aviation safety’. According to the Complaint, Defendants ‘forced Plaintiffs into an impermissible choice between, on the one hand, obeying their sincerely held religious beliefs and being subjected to the punishment of placement or retention on the No Fly List, or on the other hand, violating their sincerely held religious beliefs in order to avoid being placed on the No Fly List or to secure removal from the No Fly List’.

Damages Sustained

“Plaintiffs allege that this dilemma placed a substantial burden on their exercise of religion. Additionally, Defendants’ actions caused Plaintiffs to suffer emotional distress, reputational harm, and economic loss. As a result of Defendants’ actions placing and retaining Plaintiffs on the ‘No Fly List’, Plaintiffs were prohibited from flying for several years. Such prohibition prevented Plaintiffs from visiting family members overseas, caused Plaintiffs to lose money they pad paid for plane tickets, and hampered Plaintiffs’ ability to travel for work”.

The “No Fly List”

“In an effort to ensure aircraft security, Congress directed the Transportation Security Administration (TSA) to establish procedures for notifying appropriate officials of the identity of individuals ‘known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety’. TSA was further instructed to ‘utilize all appropriate records in the consolidated and integrated terrorist watchlist maintained by the Federal Government’ to perform a passenger pre-screening function…The ‘No Fly List’ is one such terrorist watchlist and is part of a broader database developed and maintained by the Terrorist Screening Center (TSC), which is administered by the FBI. The TSC’s database contains information about individuals who are known or reasonably suspected of being involved in terrorist activity. The TSC shares the names of individuals on the ‘No Fly List’ with federal and state law enforcement agencies, the TSA, airline representatives and cooperating foreign governments”.

Opaque & Ill-Defined Standards

“Plaintiffs claim that the federal agents named in the amended complaint ‘exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards, and its lack of procedural safeguards, in an attempt to coerce Plaintiffs into serving as informants within their American Muslim communities and places of worship. When rebuffed, the federal agents ‘retaliated against Plaintiffs by placing or retaining them on the No Fly List’”.

Religious Freedom Restoration Act

“RFRA provides that the ‘Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability’ unless the ‘Government’ can ‘demonstrate[] that application of the burden to the person-(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest’…RFRA permit’s plaintiffs to ‘obtain appropriate relief against a government…and includes no ‘express[] indicat[ion]’ that it proscribes the recovery of money damages…In light of RFRA’s purpose to provide broad protections for religious freedom…we hold that RFRA authorizes the recovery of money damages against federal officers sued in their individual capacities”.

Qualified Immunity

“Having held that RFRA authorizes a plaintiff to sue federal officers in their individual capacities for money damages, we consider whether those officers should be shielded by qualified immunity…Here, the district court decision below did not address whether Defendants were entitled to qualified immunity…In the absence of a more developed record, we decline to address in the first instance whether Defendants are entitled to qualified immunity. We remand to the district court to make such determination in the first instance”.

Patricia & Thomas DickersonPatricia & Thomas Dickerson

The author, Thomas A. Dickerson, passed away on July 26, 2018 at the age of 74. Through the graciousness of his family, eTurboNews is being allowed to share his articles that we have on file which he sent to us for future weekly publication.

The Hon. Dickerson retired as an Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and wrote about Travel Law for 42 years including his annually-updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018), and over 500 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml . For additional travel law news and developments, especially in the member states of the EU, see www.IFTTA.org

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