Second Circuit Denies En Banc Review of Decision Upholding Private Damages Remedy under the Religious Freedom Restoration Act

Case Name: Tanvir v. Tanzin

Date of Opinion: February 14, 2019

Opinion by: En banc. Judge Pooler and Chief Judge Katzmann Concur in Denial of Rehearing En Banc; Judges Jacobs, Cabranes, and Sullivan Dissent


In the underlying case, plaintiffs sued federal law enforcement officials and officers alleging that they were put on a national “No Fly” list, despite not posing an aviation threat, in retaliation for their declining to serve as FBI informants reporting on fellow Muslims. Plaintiffs alleged defendants’ actions constituted a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”).  The United States District Court for the Southern District of New York dismissed the complaint, in relevant part, on the ground that the RFRA does not permit private parties to recover monetary damages against federal officers sued in their individual capacities. Plaintiffs appealed and, on June 25, 2018, a Second Circuit panel consisting of Chief Judge Katzmann and Circuit Judges Pooler and Lynch reversed, holding that the RFRA does permit private recovery of money damages against federal officers sued in their individual capacities.

Following the June 2018 decision, an active judge of the Second Circuit requested a poll on whether to rehear the case en banc. A majority of the Second Circuit declined the en banc review, and Judge Pooler issued a written concurrence, joined by Chief Judge Katzmann, in support of the panel’s original ruling that the RFRA permits a private action for monetary damages.  Judges Jacobs and Cabranes each issued a written dissent to the denial of the en banc review and joined the other, and Judge Sullivan joined both dissents.

The concurring judges contend that, contrary to the position taken in the dissenting opinions, the holding that a private action for monetary damages exists in this case is grounded in the express provisions for relief set out in the RFRA, and is not a judicially implied right of action that represents an extension of the Supreme Courts’ 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics The RFRA states that: “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.  42 U.S.C. § 2000bb-1(c).”  The concurring judges assert that the Second Circuit’s decision that a private remedy for monetary relief exists under the RFRA was founded in the express statutory language “appropriate relief against a government.” The court’s interpretation of appropriate relief expressly prescribed in a right of action must not, they write, be mistaken with a Bivens action, where the right of action is implied. Instead, the decision here considers the scope of an express right of action provided by Congress. “Implying a right of action is a judicially constructed remedy, whereas interpreting a statute to provide a damages remedy is a time‐honored exercise of the judiciary’s power to grant relief where Congress has legislated liability.” Indeed, failing to recognize a remedy for express causes of action in the statute could, the concurring judges argue, harm the separation of powers.

In a three-part dissent from the denial of en banc review, Judge Jacobs argues adamantly that the RFRA does not provide a private action for monetary damages against officers sued in their individual capacity.  He contends that the RFRA should be interpreted consistently with the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which is applicable to state governments, as both the RLUIPA and RFRA forbid substantial burdens on religious freedoms.  In a prior decision, the Second Circuit held that the “appropriate relief” against a government under RLUIPA does not include a private right of action against state officials sued in their individual capacities. Jacobs thus argued that because the RLUIPA does not afford monetary remedies, the RFRA must not either. Jacobs emphasizes the ambiguity of the term “appropriate relief,” used in both statutes, and contends that it should be interpreted consistently. Given the similarity in the prohibited acts and wording of the statutes, he contends it would be implausible for the appropriate relief provisions of RLUIPA and RFRA to be interpreted contrarily.

Jacobs next argues that if a statute was “intended to impose personal damages liability against individual federal officers, one would expect that to be done explicitly, rather than by indirection, hint, or negative pregnant.” Jacobs maintains that, particularly in light of significant precedent limiting private actions for damages against government officials, “if such remedy was intended, Congress would have explicitly stated so.” By interpreting “appropriate relief” to include monetary damages against officials sued in their individual capacity, the dissenters argue that the Second Circuit panel has improperly created “a new Bivens cause of action . . . by other means.” Citing Supreme Court jurisprudence declining to extend implied liability under Bivens, Jacobs decries that “the Supreme Court did not shut the Bivens door so that we could climb in a window.” Finally, he criticizes the panel for not taking into account the attendant consequences of its decision including the potential liability to federal officers individually and harassing litigation. The dissenting judges collectively argue the panel opinion implies a right to monetary damages that is inconsistent with, and an attempt to evade, Supreme Court jurisprudence refusing to extend implied rights of actions under Bivens.

To read the full opinion, visit:

Summary by: Rachel Thanasoulis

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