Tanvir v. Tanzin, No. 16-1176 (2d Cir. 2018)Annotate this Case
This opinion or order relates to an opinion or order originally issued on May 2, 2018.
16 1176 Tanvir v. Tanzin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ August Term, 2016 (Argued: March 1, 2017 Decided: May 2, 2018 Amended: June 25, 2018) Docket No. 16 1176 ____________________ MUHAMMAD TANVIR, JAMEEL ALGIBHAH, NAVEED SHINWARI, Plaintiffs Appellants, v. FNU TANZIN, Special Agent, FBI; SANYA GARCIA, Special Agent, FBI; JOHN LNU, Special Agent, FBI; FRANCISCO ARTUSA, Special Agent, FBI; JOHN C. HARLEY III, Special Agent, FBI; STEVEN LNU, Special Agent, FBI; MICHAEL LNU, Special Agent, FBI; GREGG GROSSOEHMIG, Special Agent, FBI; WEYSAN DUN, Special Agent in Charge, FBI; JAMES C. LANGENBERG, Assistant Special Agent in Charge, FBI; JOHN DOE #1, Special Agent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN DOE #3, Special Agent, FBI; JOHN DOE #4, Special Agent, FBI; JOHN DOE #5, Special Agent, FBI; JOHN DOE #6, Special Agent, FBI, 1 2 Defendants Appellees.1 ____________________ 3 Before: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges. 4 5 Shinwari (“Plaintiffs”) appeal from a February 17, 2016 final judgment of the 6 United States District Court for the Southern District of New York (Abrams, J.), 7 dismissing their complaint against senior federal law enforcement officials and 8 25 named and unnamed federal law enforcement officers. The complaint alleged, 9 inter alia, that in retaliation for Plaintiffs’ refusal to serve as informants, federal 10 officers improperly placed or retained Plaintiffs’ names on the “No Fly List,” in 11 violation of Plaintiffs’ rights under the First Amendment and the Religious 12 Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). Plaintiffs Appellants Muhammad Tanvir, Jameel Algibah, and Naveed The complaint sought (1) injunctive and declaratory relief against all 13 14 defendants in their official capacities for various constitutional and statutory 15 violations, and (2) compensatory and punitive damages from federal law 16 enforcement officers in their individual capacities for violations of their rights 17 under the First Amendment and RFRA. After the parties agreed to stay the The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. 2 1 1 official capacity claims, the district court dismissed Plaintiffs’ individual capacity 2 claims. As relevant here, the district court held that RFRA does not permit the 3 recovery of money damages against federal officers sued in their individual 4 capacities. Plaintiffs appeal that RFRA determination only. 5 6 plaintiff to recover money damages against federal officers sued in their 7 individual capacities for violations of RFRA’s substantive protections, we reverse 8 the district court’s judgment and remand for further proceedings. 9 10 Because we disagree with the district court, and hold that RFRA permits a REVERSED and REMANDED. ____________________ 11 RAMZI KASSEM, CLEAR Project, Main Street Legal 12 Services, Inc., City University of New York School of 13 Law (Naz Ahmad, on the brief), Long Island City, NY, for 14 Plaintiffs Appellants. 15 Jennifer R. Cowan, Erol Gulay, Sandy Tomasik, 16 Debevoise & Plimpton LLP, New York, NY, for 17 Plaintiffs Appellants. 18 Shayana D. Kadidal, Baher Azmy, Center for 19 Constitutional Rights, New York, NY, for Plaintiffs 20 Appellants. 3 1 ELLEN BLAIN, Assistant United States Attorney (Sarah 2 S. Normand, Benjamin H. Torrance, Assistant United 3 States Attorneys, on the brief), for Joon H. Kim, Acting 4 United States Attorney for the Southern District of New 5 York, New York, NY, for Defendants Appellees. 6 POOLER, Circuit Judge: 7 Plaintiffs Appellants Muhammad Tanvir, Jameel Algibah, and Naveed 8 Shinwari (“Plaintiffs”) appeal from a February 17, 2016 final judgment of the 9 United States District Court for the Southern District of New York (Abrams, J.), 10 dismissing their complaint against senior federal law enforcement officials and 11 25 named and unnamed federal law enforcement officers. As relevant here, the 12 complaint alleged that, in retaliation for Plaintiffs’ refusal to serve as informants, 13 federal officers improperly placed or retained Plaintiffs’ names on the “No Fly 14 List,” in violation of Plaintiffs’ rights under the First Amendment and the 15 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). 16 The complaint sought (1) injunctive and declaratory relief against all 17 defendants in their official capacities for various constitutional and statutory 18 violations, and (2) compensatory and punitive damages from federal law 19 enforcement officers in their individual capacities for violations of their rights 4 1 under the First Amendment and RFRA. As relevant here, the district court held 2 that RFRA does not permit the recovery of money damages against federal 3 officers sued in their individual capacities. Plaintiffs appeal that RFRA 4 determination only. 5 6 plaintiff to recover money damages against federal officers sued in their 7 individual capacities for violations of RFRA’s substantive protections, we reverse 8 the district court’s judgment and remand for further proceedings. 9 10 Because we disagree with the district court, and hold that RFRA permits a BACKGROUND On appeal from the district court’s dismissal of Plaintiffs’ complaint, we 11 12 “accept as true factual allegations in the complaint, and draw all reasonable 13 inferences in the favor of the plaintiffs.” Town of Babylon v. Fed. Hous. Fin. Agency, 14 699 F.3d 221, 227 (2d Cir. 2012). 15 17 I. 18 was born abroad, immigrated to the United States early in his life, and is now 19 lawfully present here as either a U.S. citizen or as a permanent resident. Each has 20 family remaining overseas. 16 Relevant Factual and Procedural Background Plaintiffs are Muslim men who reside in New York or Connecticut. Each 5 1 Plaintiffs assert that they were each approached by federal agents and 2 asked to serve as informants for the FBI. Specifically, Plaintiffs were asked to 3 gather information on members of Muslim communities and report that 4 information to the FBI.2 In some instances, the FBI’s request was accompanied 5 with severe pressure, including threats of deportation or arrest; in others, the 6 request was accompanied by promises of financial and other assistance. 7 Regardless, Plaintiffs rebuffed those repeated requests, at least in part based on 8 their sincerely held religious beliefs. In response to these refusals, the federal 9 agents maintained Plaintiffs on the national “No Fly List,” despite the fact that 10 Plaintiffs “do not pose, ha[ve] never posed, and ha[ve] never been accused of 11 posing, a threat to aviation safety.” App’x at 74, 84, 92 ¶¶ 68, 118, 145. 12 13 impermissible choice between, on the one hand, obeying their sincerely held 14 religious beliefs and being subjected to the punishment of placement or retention According to the complaint, Defendants “forced Plaintiffs into an Plaintiffs assert that they were caught up in a broader web of federal law enforcement mistreatment of American Muslims. They allege that, following the tragic attacks of September 11, 2001, “the FBI has engaged in widespread targeting of American Muslim communities for surveillance and intelligence gathering.” App’x at 66 ¶ 36. These law enforcement practices included “the aggressive recruitment and deployment of informants . . . in American Muslim communities, organizations, and houses of worship.” Id. 6 2 1 on the No Fly List, or, on the other hand, violating their sincerely held religious 2 beliefs in order to avoid being placed on the No Fly List or to secure removal 3 from the No Fly List.” App’x at 109 ¶ 210. Plaintiffs allege that this dilemma 4 placed a substantial burden on their exercise of religion. 5 6 distress, reputational harm, and economic loss. As a result of Defendants’ actions 7 placing and retaining Plaintiffs on the “No Fly List,” Plaintiffs were prohibited 8 from flying for several years. Such prohibition prevented Plaintiffs from visiting 9 family members overseas, caused Plaintiffs to lose money they had paid for Additionally, Defendants’ actions caused Plaintiffs to suffer emotional 10 plane tickets, and hampered Plaintiffs’ ability to travel for work.3 11 A. 12 In an effort to ensure aircraft security, Congress directed the 13 Transportation Security Administration (“TSA”) to establish procedures for 14 notifying appropriate officials of the identity of individuals “known to pose, or The “No Fly List” One Plaintiff, for example, had to quit a job as a long haul trucker because that job required him to fly home after completing his route, while another declined temporary employment in Florida due to these travel restrictions. These same restrictions barred another Plaintiff from traveling to Pakistan to visit his ailing mother, and rendered yet another Plaintiff unable to see his wife or daughter in Yemen for many years. 7 3 1 suspected of posing, a risk of air piracy or terrorism or a threat to airline or 2 passenger safety.” 49 U.S.C. § 114(h)(2). TSA was further instructed to “utilize all 3 appropriate records in the consolidated and integrated terrorist watchlist 4 maintained by the Federal Government” to perform a passenger prescreening 5 function. 49 U.S.C. § 44903(j)(2)(C)(ii). 6 7 database developed and maintained by the Terrorist Screening Center (“TSC”), 8 which is administered by the FBI. The TSC’s database contains information about 9 individuals who are known or reasonably suspected of being involved in The “No Fly List” is one such terrorist watchlist and is part of a broader 10 terrorist activity. The TSC shares the names of individuals on the “No Fly List” 11 with federal and state law enforcement agencies, the TSA, airline representatives, 12 and cooperating foreign governments. 13 14 may “nominate” an individual for inclusion in the TSC’s database, including the 15 “No Fly List,” if there is “reasonable suspicion” that the person is a “known or 16 suspected terrorist.” App’x at 68 ¶ 41. In order for a nominated individual to be 17 added to the “No Fly List,” there must be additional “derogatory information” 18 showing that the individual “pose[s] a threat of committing a terrorist act with Plaintiffs allege that federal law enforcement and intelligence agencies 8 1 respect to an aircraft.” App’x at 68 ¶ 42. Any person placed on the “No Fly List” 2 is barred from boarding a plane that starts in, ends in, or flies over the United 3 States.4 4 5 “exploited the significant burdens imposed by the No Fly List, its opaque nature 6 and ill defined standards, and its lack of procedural safeguards, in an attempt to 7 coerce Plaintiffs into serving as informants within their American Muslim 8 communities and places of worship.” App’x at 59 ¶ 8. When rebuffed, the federal 9 agents “retaliated against Plaintiffs by placing or retaining them on the No Fly 10 Plaintiffs claim that the federal agents named in the amended complaint List.” Id. In their amended complaint, Plaintiffs decry the secrecy around the “No Fly List,” alleging that there is little public information about its size, the criteria for inclusion, the standards for “derogatory information,” or the adequacy of its procedural safeguards. Upon information and belief, Plaintiffs assert that the “No Fly List” burgeoned from 3,400 individuals in 2009 to over 21,000 individuals by February 2012. 9 4 1 B. Tanvir: An Illustrative Story 2 As did the district court below, we present Tanvir’s story as illustrative of 3 Plaintiffs’ experiences. 4 5 resident living in Queens, New York. Tanvir’s wife, son, and parents remain in 6 Pakistan. In February 2007, Tanvir alleged that FBI Special Agents FNU Tanzin 7 and John Doe 1 approached him at work and questioned him for 30 minutes 8 about an acquaintance who allegedly entered the United States illegally. Two 9 days later, Agent Tanzin called Tanvir and asked whether he had anything he At the time the complaint was filed, Tanvir was a lawful permanent 10 “could share” with the FBI about the American Muslim community. App’x at 74 11 ¶ 70. Tanvir said he told Agent Tanzin that he knew nothing relevant to law 12 enforcement. 13 14 family, Tanvir was detained by federal agents for five hours at JFK Airport. His 15 passport was confiscated and he was told he could retrieve it on January 28, 16 2009, nearly six months later. Two days prior to that appointment, Agent Tanzin 17 and FBI Special Agent John Doe 2 visited Tanvir at his new workplace and asked 18 him to come to the FBI’s Manhattan field office. Tanvir agreed. In July 2008, after returning home from a trip to Pakistan to visit his 10 1 At the FBI field office, the federal agents questioned Tanvir for about an 2 hour. The agents asked Tanvir whether he was aware of Taliban training camps 3 near his home village in Pakistan and whether he had Taliban training. Tanvir 4 denied knowledge of the camps or participation in such training. 5 6 Tanvir and asked him to work as an informant for the FBI in Pakistan or 7 Afghanistan. Tanvir alleged that they offered him various incentives, including 8 facilitating visits for his family to the United States and paying for his parents’ 9 religious pilgrimage. Despite the offer, Tanvir declined, stating that he did not After the questioning, Agents Tanzin and John Doe 2 complimented 10 want to be an informant. The agents persisted, threatening Tanvir that his 11 passport would not be returned and he would be deported if he failed to 12 cooperate. Tanvir implored the agents not to deport him. At the meeting’s end, 13 the agents asked Tanvir to reconsider and to keep their conversation private. 14 15 would become an informant. Agent Tanzin threatened Tanvir with deportation if 16 he did not cooperate. Again, Tanvir declined. 17 18 Homeland Security (“DHS”) officers at JFK Airport without incident. The DHS The next day, Agent Tanzin asked Tanvir if he had reconsidered and On January 28, 2009, Tanvir recovered his passport from Department of 11 1 officers said his passport was withheld for an investigation, but that the 2 investigation was complete. Nevertheless, the next day, Agent Tanzin called 3 Tanvir and said that he asked for the release of Tanvir’s passport because Tanvir 4 was “cooperative” with the FBI. App’x at 77 ¶ 81. 5 6 the next few weeks. Tanvir received numerous calls and visits at his workplace 7 from Agents Tanzin and John Doe 1. Tanvir stopped answering their phone calls 8 and asked them to stop their visits. Later, the agents asked Tanvir to submit to a 9 polygraph test, and when he declined, they threated to arrest him. When Tanvir The FBI agents continued to pressure Tanvir to work as an informant over 10 flew to Pakistan in July 2009 to visit his family, Agents Tanzin and John Doe 3 11 questioned Tanvir’s sister at her workplace about Tanvir’s travel. 12 13 a long haul trucker. The job required him to drive across the country and fly 14 back to New York after he had completed his route. 15 16 Pakistan. Tanvir, who had been in Atlanta for work, booked a flight back to New 17 York. When he arrived at the Atlanta airport, an airline employee told Tanvir 18 that he could not fly. At that time, two FBI agents approached Tanvir and told After Tanvir returned to the United States in January 2010, he took a job as In October 2010, Tanvir heard that his mother was visiting New York from 12 1 him to call the agents who had previously spoken to him in New York. Tanvir 2 contacted Agent Tanzin, who instructed that other agents would contact Tanvir 3 and that he should “cooperate.” App’x at 79 ¶ 92. Unable to fly to New York, 4 Tanvir traveled by bus—a 24 hour ride. 5 6 him that if he met with her and answered her questions, she would help remove 7 his name from the “No Fly List.” Tanvir declined, saying that he had already 8 answered the FBI’s questions. Because Tanvir believed he could no longer fly, 9 and therefore could not return to New York after completing his one way Two days later, FBI Special Agent Sanya Garcia contacted Tanvir. She told 10 deliveries, he quit his job as a long haul trucker. 11 12 Redress Inquiry Program (“TRIP”), an administrative mechanism for filing a 13 complaint about placement on the “No Fly List.” 14 15 wife so that they could visit his ailing mother. The day before his flight, Agent 16 Garcia told Tanvir that he would not be able to fly unless he met with her and 17 answered her questions. Because of his urgent need to travel, Tanvir agreed to do 18 so. After answering the same questions that the other agents asked him On September 27, 2011, Tanvir filed a complaint with the DHS Traveler The next month, Tanvir purchased tickets to Pakistan for himself and his 13 1 previously, Tanvir pleaded with Agent Garcia to allow him to fly to Pakistan the 2 next day. The next day, Agent Garcia told Tanvir that he could not fly. Moreover, 3 she stated that he could not fly in the future unless he submitted to a polygraph 4 test. Tanvir cancelled his flight and received only a partial refund. His wife 5 traveled alone to Pakistan. 6 7 with FBI lawyers. The FBI lawyers directed Tanvir’s counsel to the TRIP process, 8 even though Tanvir had already submitted a TRIP complaint and not yet 9 received any redress. After this incident, Tanvir hired counsel. Tanvir’s counsel communicated 10 Tanvir persisted, buying another plane ticket to Pakistan to visit his ailing 11 mother. On December 11, 2011, however, he was denied boarding and told he 12 was on the “No Fly List.” This was the third time Tanvir was barred from 13 boarding a flight for which he had purchased a ticket. 14 15 he received a response. The response did not acknowledge that he was on the 16 “No Fly List,” but noted that “no changes or corrections are warranted at this 17 time.” App’x at 83 ¶ 110. Tanvir appealed this TRIP determination. In April 2012, nearly six months after Tanvir filed his complaint with TRIP, 14 1 In November 2012, Tanvir purchased another ticket to Pakistan in an effort 2 to visit his ailing mother. Again, Tanvir was denied boarding when he arrived 3 for his flight. An FBI agent approached Tanvir and his counsel at the airport and 4 told them that Tanvir would not be removed from the “No Fly List” until he met 5 with Agent Garcia. 6 7 he received a letter from DHS overturning that earlier determination. The letter 8 blamed Tanvir’s experience on probable “misidentification against a government 9 record” or “random selection,” and stated that the government “made updates” In March 2013, ten months after Tanvir appealed his TRIP determination, 10 to its records. App’x at 83 ¶ 114. Following this communication, Tanvir 11 purchased a plane ticket to Pakistan for June 2013. On June 27, 2013, Tanvir 12 successfully boarded a flight to Pakistan. By this time, over five years had passed 13 since Tanvir was first contacted by the FBI. 14 15 on the “No Fly List,” Tanvir could not fly to visit his family in Pakistan, quit his 16 trucking job, lost money from unused airline tickets, and feared additional 17 harassment by the FBI. 18 Tanvir asserts that because the federal agents wrongfully placed his name 15 1 C. Procedural History 2 On October 1, 2013, Plaintiffs filed a complaint asserting that Defendants 3 violated their constitutional and statutory rights by placing their names on the 4 “No Fly List”—even though they posed no threat to aviation safety—in 5 retaliation for their refusal to become informants for the government. On April 6 22, 2014, Plaintiffs filed an amended complaint. 7 8 Amendment, the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C. 9 §§ 702, 706, and RFRA, 42 U.S.C. § 200bb et seq., seeking injunctive and Plaintiffs sued Defendants in their official capacities under the First 10 declaratory relief. Plaintiffs also sued the federal agents in their individual 11 capacities, seeking compensatory and punitive damages under the First 12 Amendment and RFRA.5 13 14 amended complaint. One motion sought to dismiss Plaintiffs’ official capacity 15 claims; the other sought to dismiss Plaintiffs’ individual capacity claims. On July 28, 2014, the Defendants filed two separate motions to dismiss the Plaintiffs and non appealing plaintiff Awais Sajjad asserted a First Amendment retaliation claim against all 25 federal agents named as Defendants. Plaintiffs, excluding Sajjad, asserted a claim under RFRA against only the 16 federal agents named as Defendants that allegedly interacted with Plaintiffs. 16 5 1 On June 1, 2015, the government moved to stay Plaintiffs’ official capacity 2 claims, arguing that it had revised the redress procedures available to challenge 3 one’s designation on the “No Fly List,” and that Plaintiffs had availed themselves 4 of those procedures. On June 8, 2015, Plaintiffs received letters from DHS 5 informing them that the government knows of no reason why they would be 6 unable to fly. On June 10, 2015, Plaintiffs consented to a stay of their official 7 capacity claims. The district court stayed those claims and terminated the 8 government’s related motion to dismiss. The parties continued to dispute 9 Plaintiffs’ individual capacity claims. 10 D. District Court Opinion 11 On September 3, 2015, the district court issued an opinion and order 12 dismissing Plaintiffs’ individual capacity claims. 13 14 claims, stating that the Supreme Court and this Court have “declined to extend 15 Bivens to a claim sounding in the First Amendment.” Tanvir v. Lynch, 128 F. 16 Supp.3d 756, 769 (S.D.N.Y. 2015) (quoting Turkmen v. Hasty, 789 F.3d 218, 236 (2d 17 Cir. 2015), rev’d in part and vacated and remanded in part sub nom. Ziglar v. Abbasi, 18 137 S. Ct. 1843 (2017)). Plaintiffs do not appeal that determination here. First, the district court dismissed Plaintiffs’ First Amendment retaliation 17 1 Next, the district court held that RFRA does not permit the recovery of 2 money damages from federal officers sued in their individual capacities. The 3 district court determined that “Congress’ intent in enacting RFRA could not be 4 clearer.” Tanvir, 128 F. Supp.3d at 780. Specifically, the court determined that 5 Congress intended to restore the compelling interest test by which courts 6 evaluated free exercise claims before the Supreme Court’s decision in 7 Employment Division, Dept. of Human Res. of Or. v. Smith, 494 U.S. 872 (1990). In 8 doing so, it held that Congress did not express an intention to expand the 9 remedies available to those individuals who asserted that their free exercise of 10 religion was substantially burdened by the government. 11 12 at the time RFRA was passed, and RFRA’s legislative history. With respect to the 13 former, the district court stated that, at the time Smith was decided, the Supreme 14 Court had not recognized a Bivens remedy for claims under the Free Exercise 15 Clause, and to allow damages in this case against federal employees would 16 expand, rather than restore, the remedies available prior to Smith. With respect to 17 the latter, the district court identified congressional reports stating that Congress 18 in RFRA did not intend to “expand, contract or alter the ability of a claimant to The district court found this conclusion supported by the state of the law 18 1 obtain relief in a manner consistent” with the Supreme Court’s pre Smith free 2 exercise jurisprudence. Tanvir, 128 F. Supp.3d at 778 (quoting S. Rep. No. 103 111 3 at 12). 4 5 Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60 (1992). In Franklin, the Supreme 6 Court stated that “we presume the availability of all appropriate remedies unless 7 Congress has expressly indicated otherwise.” Id. at 66. The district court 8 nevertheless found that the traditional Franklin presumption did not apply here. 9 In particular, the district court noted that “Franklin required the Supreme Court Finally, the district court rejected Plaintiffs’ assertions with respect to 10 to interpret an implied statutory right of action,” and held that Franklin’s 11 “ordinary convention” does not control where, as here, Congress created an 12 express private right of action. Tanvir, 128 F. Supp.3d at 779. 13 14 recovery of money damages from federal officers sued in their individual 15 capacities.6 We agree with Plaintiffs, and reverse. 16 Plaintiffs appeal the district court’s ruling that RFRA does not permit the Plaintiffs voluntarily dismissed their official capacity claims on December 28, 2015, rendering the district court’s ruling on the individual claims a final appealable order. See Tanvir v. Comey, No. 1:13 cv 06951 RA (docs. 109, 111). 19 6 DISCUSSION 1 2 3 I. Standard of Review 4 We review de novo a district court’s dismissal pursuant to Federal Rule of 5 Civil Procedure 12(b)(6). Town of Babylon, 699 F.3d at 227. When reviewing the 6 dismissal of a complaint for failure to state a claim, we accept as true the factual 7 allegations in the complaint and draw all reasonable inferences in plaintiff’s 8 favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). “To 9 survive a motion to dismiss, a complaint must contain sufficient factual matter, 10 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 12 13 recover money damages against federal officers sued in their individual 14 capacities. Tanvir, 128 F. Supp.3d at 775. Where, as here, the district court 15 decision below “presents only a legal issue of statutory interpretation,” “[w]e 16 review de novo whether the district court correctly interpreted the statute.” White 17 v. Shalala, 7 F.3d 296, 299 (2d Cir. 1993). 18 19 The district court here held that RFRA does not permit a plaintiff to 20 3 II. Official Capacity and Individual Capacity Suits The district court held that RFRA does not permit the recovery of money 4 damages against federal officers sued in their individual capacities. To frame our 5 discussion, we briefly address the difference between official capacity suits and 6 individual capacity suits. 7 8 represent only another way of pleading an action against an entity of which an 9 officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citation and internal 1 2 The Supreme Court has stated that “official capacity suits generally 10 quotation marks omitted). In an official capacity suit, “the real party in interest 11 … is the governmental entity and not the named official.” Id. By contrast, 12 individual capacity suits “seek to impose individual liability upon a government 13 officer for [her] actions under color of  law.” Id. Any damages awarded in an 14 individual capacity suit “will not be payable from the public fisc but rather will 15 come from the pocket of the individual defendant.” Blackburn v. Goodwin, 608 16 F.2d 919, 923 (2d Cir. 1979).7 Suits against public officers that seek damages are directed at the particular officer whose allegedly unlawful actions are claimed to have caused damage to plaintiffs. In contrast, suits against officers in their official capacity, which generally seek injunctive relief, are directed at the office itself. See Fed. R. Civ. P. 21 7 1 This distinction proves important with respect to the recovery of damages. 2 “Absent a waiver, sovereign immunity shields the Federal Government and its 3 agencies from suit.” Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) 4 (citation omitted). Sovereign immunity does not, however, shield federal officials 5 sued in their individual capacities. Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017) 6 (“[S]overeign immunity does not erect a barrier against suits to impose 7 individual and personal liability.”) (internal quotation marks omitted). 8 III. Religious Freedom Restoration Act 9 “As in any case of statutory construction, we start our analysis . . . with the 10 language of the statute.” Chai v. Comm’r of Internal Revenue, 851 F.3d 190, 217 (2d 11 Cir. 2017) (citation omitted). “Where the statutory language provides a clear 12 answer, our analysis ends there.” Id. (citation and internal punctuation omitted). 13 “[I]f the meaning of the statute is ambiguous, we may resort to canons of 14 statutory interpretation to help resolve the ambiguity.” Id. (citation and brackets 15 omitted). “The plainness or ambiguity of statutory language is determined by 16 reference to the language itself, the specific context in which that language is 17(d). As a result, if the defendant in an official capacity suit leaves office, the successor to the office replaces the originally named defendant. See Fed. R. Civ. R. 25(d). 22 1 used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 2 519 U.S. 337, 341 (1997). A. 3 4 Statutory Text In 1993, Congress passed RFRA. 42 U.S.C. § 2000bb, et seq. Congress stated 5 6 that its purposes in enacting RFRA were “to restore the compelling interest test” 7 that been applied in cases where free exercise of religion was substantially 8 burdened and “to provide a claim or defense to persons whose religious exercise 9 is substantially burdened by government.” 42 U.S.C. § 2000bb(b). Through 10 RFRA, Congress sought “to provide very broad protection for religious liberty.” 11 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2760 (2014). 12 13 person’s exercise of religion even if the burden results from a rule of general 14 applicability” unless the “Government” can “demonstrate that application of 15 the burden to the person—(1) is in furtherance of a compelling governmental 16 interest; and (2) is the least restrictive means of furthering that compelling 17 governmental interest.” 42 U.S.C. § 2000bb 1(a), (b). 18 19 right of action. Id. § 2000bb 1(c). That section permits any “person whose RFRA provides that the “Government shall not substantially burden a In order to protect this statutory right, RFRA created an explicit private 23 1 religious exercise has been burdened in violation of [the statute]” to “assert that 2 violation as a claim or defense in a judicial proceeding and obtain appropriate 3 relief against a government.” Id. § 2000bb 1(c) (emphasis added). RFRA defines the 4 term “government,” to include “a branch, department, agency, instrumentality, 5 and official (or other person acting under color of law) of the United States.” Id. § 6 2000bb 2(1). RFRA does not define the term “appropriate relief.” 7 8 “appropriate relief” did not include money damages from federal officials sued 9 in their individual capacities. See Tanvir, 128 F. Supp.3d at 775. The district court In its decision below, the district court determined that the phrase 10 did not address whether federal officers sued in their individual capacities are 11 included within RFRA’s definition of “government” and therefore amenable to 12 suit under RFRA. See id. at 774 n. 17. B. 13 “Against a Government” 15 16 capacity suits against government officials. In construing the meaning of the 17 term “government” under RFRA, we begin by reviewing RFRA’s plain language. 18 See Chai, 851 F.3d at 217. Because RFRA’s plain language “provides a clear 14 On appeal, the parties disagree over whether RFRA authorizes individual 24 1 answer,” we conclude that RFRA authorizes individual capacity claims against 2 federal officers. Id. 3 4 statute “as a claim or defense in a judicial proceeding and obtain relief against a 5 government.” 42 U.S.C. § 2000bb 1(c). RFRA defines “government” to include “a 6 branch, department, agency, instrumentality, and official (or other person acting 7 under color of law) of the United States.” Id. § 2000bb 2(1). When we substitute 8 that definition for the defined term, it is clear that a plaintiff may bring a claim 9 for “appropriate relief against” either a federal “official” or “other person acting As discussed above, RFRA permits a plaintiff to assert a violation of the 10 under color of [federal] law” whose actions substantially burden the plaintiff’s 11 religious exercise. Therefore, RFRA, by its plain terms, authorizes individual 12 capacity suits against federal officers. 13 14 only against officers in their official capacities and not suits against federal 15 officers in their individual capacities. Defendants argue that we: (1) should give 16 the term “government” its most natural reading; (2) should understand the 17 phrase “official” in the statutory definition of “government” as suggesting that 18 only official capacity suits are permitted; and (3) should conclude that the phrase Defendants argue, to the contrary, that the plain text of RFRA permits suits 25 1 “or other person acting under color of law” is not intended to permit 2 government officers to be sued in their individual capacities. We disagree with 3 each argument. 4 5 “government” in this case where RFRA includes an explicit definition of 6 “government.” 42 U.S.C. § 2000bb 2(1). “When a statute includes an explicit 7 definition, we must follow that definition.” Stenberg v. Carhart, 530 U.S. 914, 942 8 (2000); Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556, 575 (2d Cir. 9 2016) (“In general, statutory definitions control the meaning of statutory First, we refuse Defendants’ request to apply a natural reading of the term 10 words.”) (internal quotation marks omitted). Further, the statute specifically 11 defines government to include officials and others acting under color of law. 12 There would be no need to permit suits against government agents in their 13 official capacity, since such a suit is simply a formal variant of an action that, in 14 substance, runs against the government itself. See Hafer, 502 U.S. at 25. 15 16 “government” does not mandate that a plaintiff may only obtain relief against 17 federal officers in official capacity suits. In ordinary usage, an “official” is 18 generally defined simply as “one who holds or is invested with an office” and is Second, RFRA’s use of the word “official” in the statutory definition of 26 1 roughly synonymous with the term “officer.” Merriam Webster Unabridged, 2 http:/unabridged.merriam webster.com/unabridged/official (noun definition). 3 There is no reason to think that, in using this ordinary English word, Congress 4 intended to invoke the technical legal concept of “official capacity,” rather than 5 simply to state that government “officials” are amenable to suit. Moreover, the 6 statute permits suits against “officials (or other person[s] acting under color of 7 law).” 42 U.S.C.A. § 2000bb 2(1). The specific authorization of actions broadly 8 against “other person[s] acting under color of law,” undercuts the assertion that 9 the term “official”’ was intended to limit the scope of available actions. 10 Further, a defendant’s status as a federal officer “is not controlling” in 11 determining whether a suit is, in reality, against the government. Stafford v. 12 Briggs, 444 U.S. 527, 542 n. 10 (1980) (citation omitted). Rather, “the dispositive 13 inquiry is ‘who will pay the judgment?’” Id. A plaintiff may not sue a federal 14 officer in her official capacity for money damages, because such suit seeks money 15 from the federal government, and sovereign immunity would bar recovery from 16 the federal government absent an explicit waiver. However, a plaintiff may sue a 17 federal officer in her individual capacity without implicating sovereign 27 1 immunity concerns. See Hafer, 502 U.S. at 25 28. RFRA’s use of the word “official” 2 does not alter that rule. 3 4 acting under color of law” authorizes only official capacity suits. Rather, that 5 phrase “contemplates that persons ‘other’ than ‘officials’ may be sued under 6 RFRA, and persons who are not officials may be sued only in their individual 7 capacities.” Patel v. Bureau of Prisons, 125 F. Supp.3d 44, 50 (D.D.C. 2015) (citing 8 Jama v. INS, 343 F. Supp.2d 338, 374 (D. N.J. 2004)) (emphasis added). 9 “Defendants’ interpretation would render the entire phrase surplasage: once 10 Congress authorized official capacity suits against ‘officials,’ adding another 11 term that allowed only official capacity suits would have had no effect 12 whatsoever.” Id. 13 14 federal officers is consistent with the Supreme Court’s recognition of RFRA’s 15 “[s]weeping coverage,” City of Boerne v. Flores, 521 U.S. 507, 532 (1997), which 16 “was designed to provide very broad protection for religious liberty,” Hobby 17 Lobby, 134 S. Ct. at 2767. RFRA’s reach “ensures its intrusion at every level of 18 government, displacing laws and prohibiting official actions of almost every Third, we reject Defendants’ argument that the phrase “other person Our conclusion that RFRA authorizes individual capacity claims against 28 1 description and regardless of subject matter.” City of Boerne, 521 U.S. at 532 2 (further stating that RFRA’s restrictions “apply to every agency and official of the 3 Federal … Government”). 4 5 comparable language in enacting 42 U.S.C. § 1983, which, long prior to RFRA’s 6 enactment, had consistently been held to authorize individual and official 7 capacity suits. See, e.g., Hafer, 502 U.S. at 25; Graham, 473 U.S. at 8 166. Section 1983 creates a private right of action against “persons” who, acting 9 “under color of [law],” violate a plaintiff’s constitutional rights—regardless of Moreover, we draw support for our conclusion from Congress’s use of 10 whether that person was acting pursuant to an unconstitutional state law, 11 regulation, or policy. 42 U.S.C. § 1983. 12 13 choice  coincidental,” as “Congress intended for courts to borrow concepts from 14 § 1983 when construing RFRA.” Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d 15 Cir. 2016); see also Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 738 16 (7th Cir. 2015); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 35 (9th 17 Cir. 1999). As these courts have explained, “[w]hen a legislature borrows an 18 already judicially interpreted phrase from an old statute to use it in a new We, like several of our sister circuits before us, do not find “this word 29 1 statute, it is presumed that the legislature intends to adopt not merely the old 2 phrase but the judicial construction of that phrase.” Sutton, 192 F.3d at 834 35 3 (citation omitted); Mack, 839 F.3d at 302 (quoting same); see also Leonard v. Israel 4 Discovery Bank, 199 F.3d 99, 104 (2d Cir. 1999) (“[R]epetition of the same language 5 in a new statute indicates, as a general matter, the intent to incorporate its 6 judicial interpretations as well.”) (citation and ellipses omitted). 7 8 applicability to “person[s]” acting “under color of law,” we hold that RFRA, like 9 Section 1983, authorizes a plaintiff to bring individual capacity claims against 10 In light of this presumption, given both RFRA’s and Section 1983’s federal officials or other “person[s] acting under color of [federal] law.” 11 C. “Appropriate Relief” Having determined that RFRA permits individual capacity suits against 13 14 government officers acting under color of law, we now turn to whether 15 “appropriate relief” in that context includes money damages. In its opinion 16 below, the district court held that “appropriate relief” did not include money 17 damages in suits against federal officers in their individual capacities. Tanvir, 128 18 F. Supp.3d at 780 81. We disagree. 19 12 30 a. Ambiguity and the Franklin Presumption 1 3 4 construction, we note that RFRA does not define the phrase “appropriate relief.” 5 See Chai, 851 F.3d at 217. Unable to draw further insight from a plain reading of 6 the statute, we turn to the context in which the language is used and the context 7 of the statute more broadly. See Robinson, 519 U.S. at 341. 8 9 Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., 8 the 2 Starting with RFRA’s statutory text, as we do in any case of statutory In the context of RFRA’s companion statute, the Religious Land Use and 10 Supreme Court acknowledged that the phrase “‘appropriate relief’ is open ended 11 and ambiguous about what types of relief it includes . . . Far from clearly 12 identifying money damages, the word ‘appropriate’ is inherently context 13 dependent.” Sossamon, 563 U.S. at 286. Indeed, “[i]n some contexts, ‘appropriate The district court opinion aptly notes that RFRA and RLUIPA are companion statutes. See Tanvir, 128 F. Supp.3d at 775. After the Supreme Court in City of Boerne, 521 U.S. 507, determined that RFRA was unconstitutional as applied to state and local governments because it exceeded Congress’s power under Section 5 of the Fourteenth Amendment, Congress passed RLUIPA pursuant to the Spending Clause and Commerce Clause. See Tanvir, 128 F. Supp.3d at 775 n. 18; Sossamon v. Texas, 563 U.S. 277, 281 (2011). “RLUIPA borrows important elements from RFRA . . . includ[ing] an express private cause of action that is taken from RFRA.” Sossamon, 563 U.S. at 281. As a result, courts commonly apply RFRA case law to issues arising under RLUIPA and vice versa. See Redd v. Wright, 597 F.3d 532, 535 n. 2 (2d Cir. 2010). 31 8 1 relief’ might include damages.” Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 2 1026 (D.C. Cir. 2006). But in other contexts, “another plausible reading is that 3 ‘appropriate relief’ covers equitable relief but not damages.” Id. As with the 4 analogous phrase in RLUIPA, we agree that the phrase “appropriate relief” in 5 RFRA’s statutory text is ambiguous. 6 7 interpretation to help resolve the ambiguity.” Chai, 851 F.3d at 217. We turn to 8 the “the venerable canon of construction that Congress is presumed to legislate 9 with familiarity of the legal backdrop for its legislation.” Mobil Cerro Negro, Ltd. v. Having made that determination, “we resort to canons of statutory 10 Bolivarian Republic of Venezuela, 863 F.3d 96, 115 (2d Cir. 2017); see also Ryan v. 11 Gonzales, 568 U.S. 57, 66 (2013) (“We normally assume that, when Congress 12 enacts statutes, it is aware of relevant judicial precedent.”). We have stated: 13 14 15 16 17 18 Of course, Congress may depart from [our traditional legal concepts] . . . But when a statute does not provide clear direction, it is more likely that Congress was adopting, rather than departing from, established assumptions about how our legal . . . system works. We will not lightly assume a less conventional meaning absent a clear indication that such a meaning was intended. 20 Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 760 F.3d 151, 166 (2d Cir. 21 2014). 19 32 1 Congress enacted RFRA in the wake of Franklin, 503 U.S. 60, a Supreme 2 Court decision issued over a year prior to the enactment of the statute. In 3 Franklin, the Supreme Court stated that when faced with “the question of what 4 remedies are available under a statute that provides a private right of action,” it 5 “presume[s] the availability of all appropriate remedies unless Congress has expressly 6 indicated otherwise.” Id. at 65 66 (emphasis added); see also Carey v. Piphus, 435 U.S. 7 247, 255 (1978) (upholding damages remedy under 42 U.S.C. § 1983, even though 8 the enacting Congress did not “address directly the question of damages”). It 9 based that presumption on a long standing rule that “has deep roots in our 10 jurisprudence:” that “[w]here legal rights have been invaded, and a federal 11 statute provides for a general right to sue for such invasion, federal courts may 12 use any available remedy to make good the wrong done.” Franklin, 503 U.S. at 66 13 (alterations omitted). Applying this traditional presumption in the context of an 14 implied right of action to enforce Title IX, the Supreme Court held that a 15 damages remedy was available. Id. at 76. 16 17 government,” 42 U.S.C. § 2000bb 1(c), and includes no “express indicat[ion]” 18 that it proscribes the recovery of money damages, Franklin, 503 U.S. at 66. RFRA permits plaintiffs to “obtain appropriate relief against a 33 1 Because Congress enacted RFRA one year after the Supreme Court decided 2 Franklin, and because Congress used the very same “appropriate relief” language 3 in RFRA that was discussed in Franklin, the Franklin presumption applies to 4 RFRA’s explicit private right of action. In light of RFRA’s purpose to provide 5 broad protections for religious liberty, Hobby Lobby, 134 S.Ct. at 2760, and 6 applying the Franklin presumption here, we hold that RFRA authorizes the 7 recovery of money damages against federal officers sued in their individual 8 capacities.9 b. Defendants’ Arguments to the Contrary i. Precedent Does Not Require a Different Outcome 9 10 11 13 14 decisions by the Supreme Court, our Court, and our sister circuits limiting the 12 Defendants argue that our holding here is inconsistent with several Indeed, the determination that RFRA permits individual capacity suits leads logically to the conclusion that it permits a damages remedy against those individuals. An individual capacity suit that is confined to injunctive relief has limited value; official capacity suits for injunctive relief already supply injunctive relief against the governmental entity as a whole. As a result, plaintiffs will rarely, if ever, prefer to enjoin the conduct of a single officer. In contrast, as noted above, suits seeking compensation from officers in their official capacity, being in essence suits against the state or federal government itself, are generally barred by sovereign immunity. Thus, individual capacity suits tend to be associated with damages remedies, and official capacity suits with injunctive relief. 34 9 1 recovery of money damages in suits under RFRA and RLUIPA. See Sossamon, 563 2 U.S. 277; Washington v. Gonyea, 731 F.3d 143, 145 (2d Cir. 2013); Webman, 441 F.3d 3 at 1026; Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 840 41 4 (9th Cir. 2012); Davila v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015), cert. denied 5 sub nom. Davila v. Haynes, 136 S.Ct. 78 (2015). Our holding, however, is not 6 inconsistent with these decisions, each of which is based upon animating 7 principles that are inapplicable here. 8 9 in RLUIPA does not permit the recovery of money damages against a state or In Sossamon, the Supreme Court held that the phrase “appropriate relief” 10 state officers sued in their official capacities. 563 U.S. at 288. The Supreme Court 11 based its conclusion on considerations relating to state sovereign immunity. 12 Namely, when determining whether an act of Congress waives sovereign 13 immunity, the Court stated that such language “will be strictly construed, in 14 terms of scope, in favor of the sovereign.” Id. at 285. Therefore, in that context, 15 the Court’s relevant inquiry was the opposite of the one at issue here: “not 16 whether Congress has given clear direction that it intends to exclude a damages 17 remedy, see Franklin, [503 U.S.] at 70 71, but whether Congress ha[d] given clear 18 direction that it intend[ed] to include a damages remedy.” Sossamon, 563 U.S. at 35 1 289 (emphasis in original). Because the phrase “appropriate relief” in that context 2 did not “unequivocally express” Congress’s intent to waive state sovereign 3 immunity, the Supreme Court held that RLUIPA did not permit a suit for 4 monetary damages against a state or state officials sued in their official 5 capacities. Id. at 288. 6 7 prescription for “appropriate relief” does not include damages against the 8 federal government or its officers acting in their official capacities. See Webman, 9 441 F.3d at 1026; Oklevueha Native Am. Church of Hawaii, 676 F.3d at 840 41; Davila Like Sossamon, several of our sister circuits have determined that RFRA’s 10 777 F.3d at 1210. These courts so held because, in the context of suits against the 11 federal government and its officers in their official capacities, the phrase 12 “appropriate relief” similarly does not express an unambiguous waiver of the 13 federal government’s sovereign immunity. See, e.g., Davila, 777 F.3d at 1210 14 (“Congress did not unequivocally waive its sovereign immunity in passing 15 RFRA. RFRA does not therefore authorize suits for money damages against 16 officers in their official capacities.”). 17 18 Am. Church of Hawaii, and Davila, however, are absent from the instant case. Each The animating principles underlying Sossamon, Webman, Oklevueha Native 36 1 of those cases involved a question of whether “appropriate relief” under RFRA 2 or RLUIPA permitted suits against a sovereign or its officers in their official 3 capacities. Although the Supreme Court and our sister circuits declined to 4 construe the phrase “appropriate relief” to amount to an explicit waiver of 5 sovereign immunity, Plaintiffs’ individual capacity suits against Defendants 6 present no sovereign immunity concerns here. This is so because Plaintiffs seek 7 monetary relief from those officers personally, not from the federal or state 8 government. See Hafer, 502 U.S. at 25 28; Blackburn, 608 F.2d at 923. As we stated 9 above, “Congress need not waive sovereign immunity to permit an individual 10 capacity suit against a federal official.” Patel, 125 F. Supp.3d at 54 (citing Larson, 11 337 U.S. at 686 87). 12 13 precedent, “[b]ecause these decisions . . . are grounded in principles of sovereign 14 immunity, they are of limited assistance in addressing the question of damages 15 against those who ‘come to court as individuals.’” Tanvir, 128 F. Supp.3d at 775 16 n. 19 (quoting Hafer, 502 U.S. at 27). We agree and similarly find those cases 17 inapplicable here where sovereign immunity concerns are not at play. Indeed, as the district court below acknowledged in its discussion of 37 1 Furthermore, our holding that RFRA permits the recovery of money 2 damages against federal officers sued in their individual capacities does not 3 conflict with our decision in Washington v. Gonyea. In Gonyea, we held that the 4 phrase “appropriate relief” in RLUIPA prohibits both the recovery of money 5 damages from state officers sued in their official capacities and in their individual 6 capacities. Gonyea, 731 F.3d at 145. The conclusion that RLUIPA does not permit 7 the recovery of money damages from state officers sued in their official capacities 8 follows directly from the Supreme Court’s decision in Sossamon. 563 U.S. at 293 9 (“States, in accepting federal funding, do not consent to waive their sovereign 10 immunity to private suits for money damages under RLUIPA because no statute 11 expressly and unequivocally includes such a waiver.”). 12 13 damages from state officers sued in their individual capacities follows from 14 another source: the constitutional basis upon which Congress relied in enacting 15 RLUIPA. RLUIPA “was enacted pursuant to Congress’ spending power, which 16 allows the imposition of conditions, such as individual liability, only on those 17 parties actually receiving state funds.” 731 F.3d at 145 (citation omitted). 18 “Applying restrictions created pursuant to the Spending Clause to persons or Gonyea’s conclusion that RLUIPA does not permit the recovery of money 38 1 entities other than the recipients of the federal funds at issue would have the 2 effect of binding non parties to the terms of the spending contract.” Patel, 125 F. 3 Supp.3d at 52 (internal quotation marks omitted). “Indeed, to decide otherwise 4 would create liability on the basis of a law never enacted by a sovereign with the 5 power to affect the individual rights at issue—i.e., the state receiving the federal 6 funds—and this would raise serious questions regarding whether Congress had 7 exceeded its authority under the Spending Clause.” Gonyea, 731 F.3d at 146 8 (emphasis in original; citations and internal punctuation omitted). As a result, in 9 Gonyea, we held that RLUIPA did not permit a plaintiff to sue state officials in 10 their individual capacities because the state prison, and not the state prison 11 officials, was the ‘contracting party,’ which had “agree[d] to be amenable to suit 12 as a condition to received funds.” Id. at 145. 13 14 Amendment and the Necessary and Proper Clause. Hankins v. Lyght, 441 F.3d 96, 15 105 (2d Cir. 2006). RFRA’s constitutional bases thus “do not implicate the same 16 concerns” as those relevant to RLUIPA and the Spending Clause, which we 17 addressed in Gonyea. Mack, 839 F.3d at 303 04; see also Tanvir, 128 F. Supp. 3d at 18 775 n. 19. Because the animating principles underlying our decision in Gonyea are RFRA, by contrast, was enacted pursuant to Section 5 of the Fourteenth 39 1 absent in the instant case, our holding here—that RFRA permits the recovery of 2 money damages from federal officials sued in their individual capacities—and 3 our holding in Gonyea—that RLUIPA does not permit the recovery of money 4 damages from state officials sued in their individual capacities—are entirely 5 consistent. 6 7 “appropriate relief” in RFRA into a chameleon. See United States v. Santos, 553 8 U.S. 507, 522 (2008) (plurality op.) (stating that the Supreme Court has “forcefully 9 rejected” the “interpretive contortion” of “giving the same word, in the same Defendants complain that our holding in this case makes the phrase 10 statutory provision, different meanings in different factual contexts”) (emphasis 11 omitted). But that is incorrect. To the contrary, we are tasked with interpreting 12 the meaning of RFRA’s phrase “appropriate relief,” an inquiry that is “inherently 13 context dependent.” Sossamon, 563 U.S. at 286. Indeed, the word ‘appropriate’ 14 does not change its meaning; rather, the question addressed in each of these 15 various contexts is what sort of relief is ‘appropriate’ in that particular situation. 16 And, since the relevant animating principles vary appreciably across legal 17 contexts, the meaning of ‘appropriate’ may well take on different meanings in 18 different settings. 40 1 At the time of the district court decision below, neither the Supreme Court 2 nor any of our sister circuits had squarely addressed whether RFRA provides for 3 money damages.10 Since then, however, the Third Circuit has held, as we do 4 now, that RFRA authorizes individual capacity suits against federal officers for 5 money damages. See Mack, 839 F.3d at 304. 6 7 presumption—that any “appropriate relief” is available unless Congress 8 expressly indicates otherwise. Id. at 302 03. The court found that its conclusion 9 was buttressed by the fact that, in enacting RFRA, Congress used the exact In Mack, the Third Circuit reached that holding by applying the Franklin 10 language (“appropriate relief”) discussed by the Supreme Court in Franklin. Id. at 11 303. “Congress enacted RFRA one year after Franklin was decided and was 12 therefore well aware that ‘appropriate relief’ means what it says, and that, The Seventh Circuit has previously decided that a plaintiff was entitled to sue state prison officials in their individual capacities for damages. Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996) (Posner, J.), vacated on other grounds, 522 U.S. 801 (1997). Before reaching that conclusion, the court noted that RFRA “says nothing about remedies except that a person whose rights under the Act are violated ‘may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.’” Id. (emphasis in original) (quoting 42 U.S.C. § 2000bb 1(c)). The court also acknowledged that the defendants in that case did not contest the availability of damages as a remedy under RFRA. Id. 41 10 1 without expressly stating otherwise, all appropriate relief would be available.” 2 Id. at 303.11 In light of RFRA’s purpose of providing broad religious liberty 3 protections, the Third Circuit concluded that it saw “no reason why a suit for 4 money damages against a government official whose conduct violates RFRA 5 would be inconsistent with” that purpose. Id.12 6 7 particular, we reject a strained reading of “appropriate relief” that would be less 8 generous to plaintiffs under RFRA than under implied rights of action, and thus 9 would undermine Congress’s intention to “provide broad religious liberty 10 protections.” Id. Further, as one district court has pointed out, “[i]t seems We agree with the Third Circuit’s reasoning in Mack and adopt it here. In Of note, the Third Circuit in Mack stated that “[b]ecause Mack brings his RFRA claim against only [two federal officers] in their individual capacities, the federal government’s sovereign immunity to suits for damages is irrelevant here.” Id. at 302 n. 92. 12 The court in Mack drew further support from the similarities between RFRA and 42 U.S.C. § 1983, which has long permitted money damages against state officials sued in their individual capacities. Id. By comparison, the court distinguished its earlier decision in Sharp v. Johnson, 669 F.3d 144, 154 55 (3d Cir. 2012), in which it found that RLUIPA did not provide for money damages against state officials sued in their individual capacities, by pointing out how Congress’s constitutional authorization for RLUIPA (Commerce Clause and Spending Clause) poses concerns not relevant to its analysis of RFRA (Necessary and Proper Clause and Section 5 of Fourteenth Amendment). 42 11 1 unlikely that Congress would restrict the kind of remedies available to plaintiffs 2 who challenge free exercise violations in the same statute it passed to elevate the 3 kind of scrutiny to which such challenges would be entitled.” Jama, 343 F. Supp.2d 4 at 374 75 (emphasis in original). Given that Congress has not specified that 5 individual capacity suits for money damages should be barred under RFRA, and 6 that, unlike in the RLIUPA context, no constitutional conflict prevents their 7 application, we find that such suits are wholly appropriate under this statutory 8 scheme. 9 10 11 ii. The Franklin Presumption Is Not Confined to Statutes with Implied Rights of Action The district court below found that the Franklin presumption did not apply 12 13 in the instant case. Tanvir, 128 F. Supp.3d at 779. In making that determination, 14 the district court noted that Franklin “required the Supreme Court to interpret the 15 scope of an implied statutory right of action.” Id. (emphasis in original). By 16 comparison, Congress created an express private right of action in RFRA. See 42 17 U.S.C. § 2000bb 1(c). The district court held that “the Franklin presumption is 18 thus inapplicable” to RFRA “and the meaning of ‘appropriate relief’ must be 19 discerned using the traditional tools of statutory construction.” Tanvir, 128 F. 43 1 Supp.3d at 779. Applying those tools, the district court discerned that Congress 2 lacked an intent to permit money damages under RFRA through its use of the 3 phrase “appropriate relief.” Id. 4 5 statute with an implied private right of action, we are not convinced that the 6 district court’s distinction is correct. The logical inference, in our view, runs the 7 other way: one would expect a court to be more cautious about expanding the 8 scope of remedies available for a private right of action that is not explicitly 9 provided by Congress, than in determining what remedies are available for a Although Franklin indeed considered the availability of damages under a 10 right of action that Congress has expressly created. This is particularly true 11 where, in creating the right of action, Congress has also explicitly authorized 12 courts to provide any “appropriate relief,” without limitation. In fact, the Court 13 in Franklin recounted its own case, Kendall v. United States ex rel. Stokes, in which 14 it held that damages were available under a statute with an explicit private right 15 of action where that statute failed to specify the remedies available. 37 U.S. (12 16 Pet) 524, 624 (1838) (stating that to find otherwise would present “a monstrous 17 absurdity in a well organized government, that there should be no remedy, 18 although a clear and undeniable right should be shown to exist”). 44 1 As discussed above, the Third Circuit in Mack applied the Franklin 2 presumption in determining that RFRA’s express private right of action 3 permitted the recovery of money damages against individuals sued in their 4 individual capacities. Mack, 839 F.3d at 303 04; see also Patel, 125 F. Supp.3d at 53 5 n. 1 (“[T]he mere mention of remedies [in RFRA] does not rebut the [Franklin] 6 presumption;” rather, the phrase “appropriate relief” “does nothing more than 7 authorize what courts applying Franklin presume, and it falls far short of an 8 express indication that damages are prohibited.”) (internal punctuation omitted). 9 Other courts have applied the Franklin presumption in the context of statutes 10 containing express private rights of action. See, e.g., Reich v. Cambridgeport Air. 11 Sys., 26 F.3d 1187, 1191 (1st Cir. 1994) (applying Franklin presumption to 12 conclude that “all appropriate relief” under Section 11 of the Occupational Safety 13 and Health Act included money damages); Ditulio v. Boehm, 662 F.3d 1091, 1098 14 (9th Cir. 2011) (holding that punitive damages were available under the 15 Trafficking Victims Protection Act, which permits the recovery of “damages,” 16 because the court “follow[s] the ‘general rule’ that we should award ‘any 17 appropriate relief in a cognizable cause of action brought pursuant to a federal 18 statute’” (quoting Franklin, 503 U.S. at 71)). 45 1 We disagree with the district court’s decision to limit the application of the 2 Franklin presumption in this case. The Franklin presumption need not be confined 3 to only those cases interpreting the remedies available under an implied private 4 right of action. To the contrary, “[t]he same presumption applies here—more so, 5 we think, because Congress expressly stated that a claimant may obtain 6 ‘appropriate relief’ against a government—the exact language used in Franklin.” 7 Mack, 839 F.3d at 303. Thus, we reject the district court’s position that the Franklin 8 presumption does not apply in interpreting the meaning of “appropriate relief” 9 under RFRA. iii. Legislative History 10 11 Although we conclude that the Franklin presumption extends to express 12 private rights of action, the presumption can be rebutted. Pursuant to Franklin, 13 “we presume the availability of all appropriate remedies unless Congress has 14 expressly indicated otherwise,” 503 U.S. at 66, and our analysis of whether 15 Congress intended to limit the application of this general principle will vary 16 depending on whether the right of action is implied or explicit. 17 18 statutory text and legislative history, because Congress usually has not spoken Where a statutory cause of action is implied, it is futile to resort to the 46 1 about remedies applicable to a right that the federal courts, rather than Congress, 2 created. See id. at 71 (“[T]he usual recourse to statutory text and legislative 3 history. . . necessarily will not enlighten our analysis.”). Accordingly, our 4 analysis of Congress’s intent in such contexts “is not basically a matter of 5 statutory construction,” but rather a matter of “evaluat[ing] the state of the law 6 when the Legislature passed [the statute].” Id. (emphasis in original). 7 8 statutory text and legislative history may enlighten our understanding. The 9 question thus becomes whether these interpretative sources exhibit a “clear 10 direction” by Congress that the federal courts lack “the power to award any 11 appropriate relief in a cognizable cause of action brought pursuant to a 12 federal statute.” Id. at 70 71. We conclude that neither the statutory text nor the 13 legislative history provides such a clear direction here. 14 15 referencing legislative history indicating that RFRA was intended solely to 16 reverse the Supreme Court’s decision in Smith. See Tanvir, 128 F. Supp. 3d at 778 17 80. For instance, the Senate Committee Report, which discusses the background 18 and purpose for RFRA, states that “the purpose of this act is only to overturn the On the other hand, where the private right of action is express, the As noted above, the district court supported its conclusion in part by 47 1 Supreme Court’s decision in Smith,” S. Rep. No. 103 111, at 12 (1993), and by 2 doing so restore the compelling interest test to free exercise claims, id. at 8. The 3 House Committee Report similarly focuses on the effect of the Smith decision and 4 the resulting outcome that free exercise claims receive the “the lowest level of 5 scrutiny employed by the courts.” H.R. Rep. No. 103 88, at 5 6 (1993). 6 7 to the meaning of RFRA’s statutory text. The statutory text of RFRA reflects a 8 dual purpose: “to restore the compelling interest test” applied by the Supreme 9 Court in free exercise cases before Smith, and “to provide a claim or defense to 10 persons whose religious exercise is substantially burdened by government.” 42 11 U.S.C. § 2000bb(b). In accomplishing the latter purpose, Congress also codified a 12 statutory cause of action to bring claims against officials in their individual 13 capacities—a type of action never explicitly authorized (or foreclosed) by the 14 Supreme Court’s free exercise jurisprudence. Congress accordingly went beyond 15 merely restoring the compelling interest test. It removed ambiguity about who 16 could be held liable for violations of religious exercise.13 The Senate and House Committee Reports, however, are not conclusive as The Supreme Court also has indicated that RFRA’s least restrictive means 13 requirement may well have gone beyond what was required by its pre Smith 48 1 The legislative history further fails to provide an “express” and “clear 2 direction” that Congress intended to preclude litigants from seeking damages in 3 these individual capacity suits. Franklin, 503 U.S. at 66, 70. To be sure, the House 4 and Senate Committee Reports each contain similar language stating, “[t]o be 5 absolutely clear, the bill does not expand, contract or alter the ability of a 6 claimant to obtain relief in a manner consistent with free exercise jurisprudence, 7 including Supreme Court jurisprudence, under the compelling governmental 8 interest test prior to Smith.” H.R. Rep. No. 103 88, at 8; see also S. Rep. No. 103 decisions. See City of Boerne, 521 U.S. at 509 (“[T]he least restrictive means requirement was not used in the pre Smith jurisprudence RFRA purported to codify.”); see also Hobby Lobby, 134 S. Ct. at 2761 n. 3 (observing that City of Boerne reflects an understanding that RFRA’s least restrictive means requirement “provided even broader protection for religious liberty than was available under those [pre Smith] decisions”); id. at 2767 n. 18 (declining to decide whether RFRA’s least restrictive means requirement in fact “went beyond what was required by our pre Smith decisions”); id. at 2793 (Ginsburg, J., dissenting) (“Our decision in City of Boerne, it is true, states that the least restrictive means requirement was not used in the pre Smith jurisprudence RFRA purported to codify. As just indicated, however, that statement does not accurately convey the Court s pre Smith jurisprudence.”) (internal quotation marks and citation omitted). If RFRA’s least restrictive means requirement in fact went beyond pre Smith jurisprudence, such an extension further supports our holding that RFRA provides an individual damages remedy. We need not decide this dispute today, however, because our holding remains the same in light of RFRA’s statutory text and legislative history. 49 1 111, at 12 (“To be absolutely clear, the act does not expand, contract or alter the 2 ability of a claimant to obtain relief in a manner consistent with the Supreme 3 Court[‘]s free exercise jurisprudence under the compelling governmental 4 interest test prior to Smith.”). It does not follow, however, that Congress therefore 5 intended to limit the remedies available for RFRA violations. 6 7 and Senate Committee Reports were not using the term “relief” to refer to 8 remedies. Rather, the reports were concerned with claimants bringing particular 9 causes of action. See generally Douglas Laycock & Oliver S. Thomas, Interpreting As an initial matter, the broader legislative history shows that the House 10 the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 236 39 (1994). During the 11 House and Senate hearings, several religious and social organizations raised 12 concerns that claimants would use RFRA to challenge restrictions on abortion, 13 tax exemptions, and government funding for religious organizations.14 These See Religious Freedom Restoration Act of 1991: Hearings on HR. 2797 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 102d Cong. 33 35, 40 43 (1992) (statement of Mark E. Chopko, Gen. Counsel, United States Catholic Conference); id. at 270 301 (statement of James Bopp, Jr., Gen. Counsel, National Right to Life Committee, Inc.); The Religious Freedom Restoration Act: Hearing on S. 2969 Before the Sen. Comm. on the Judiciary, 102d Cong., 99 115 (1992) (statement of Mark E. Chopko, Gen. Counsel, United States 50 14 1 concerns were sufficiently serious that several key Republican representatives 2 withdrew their support for the bill and introduced legislation that explicitly 3 prohibited claimants from using the statute to affect those issues. Id.; see also H.R. 4 4040, 102d Cong. § 3(c)(2) (1991). 5 6 House and Senate Committee Reports addressing these concerns, and made clear 7 that the act “does not expand, contract or alter the ability of a claimant to obtain 8 relief” in accordance with the federal courts’ free exercise jurisprudence. Laycock 9 & Thomas, supra, at 236 39; see also S. Rep. No. 103 111, at 12; H.R. Rep, No. 103 RFRA’s lead sponsors subsequently agreed to compromise language in the 10 88, at 8. The reports accordingly stated that claims challenging abortion 11 restrictions should be adjudicated pursuant to the Supreme Court’s decision in 12 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and 13 that the bill does “not change the law” determining whether religious 14 organizations may receive public funding or enjoy tax exemptions. S. Rep. No. 15 103 111, at 12; HR, Rep. No. 103 88, at 8. Taken in context, it is thus clear that 16 Congress was not concerned with limiting plaintiffs’ available remedies under Catholic Conference); id. at 203 37 (statement of James Bopp, Jr., Gen. Counsel, National Right to Life Committee, Inc.). 51 1 the act—it was concerned with preventing plaintiffs from pursuing certain 2 causes of action.15 3 4 Committee Reports could be read as excluding certain remedies from RFRA’s 5 scope, it does not clearly indicate that Congress intended to exclude an 6 individual damages remedy. As previously noted, the Senate Committee Report 7 states that the act does not “alter the ability of a claimant to obtain relief in a 8 manner consistent with the Supreme Courts’ free exercise jurisprudence … 9 prior to Smith.” S. Rep. No. 103 111, at 12. The Supreme Court, in turn, never Moreover, even if the compromise language in the House and Senate 10 ruled out the possibility of plaintiffs’ bringing individual damages claims for free 11 exercise violations before Smith was decided. To the contrary, in Bivens v. Six The floor debate likewise confirms that Congress intended to limit the causes of action that could be brought under the statute. Representative Henry Hyde stated that he had offered amendments to RFRA because he was concerned that the legislation would “create an independent statutory basis” for individuals to challenge restrictions on abortion, social service programs operated by religious institutions with public funds, and the tax exempt status of religious institutions. 139 Cong. Rec. 103, 9682 (1993). Representative Hyde further stated that his concerns were “resolved either through explicit statutory changes or through committee report language,” which “ma[de] clear” that “such claims are not the appropriate subject of litigation” under RFRA, and that the “bill does not expand, contract, or alter the ability of a claimant to obtain relief” consistent with free exercise jurisprudence prior to Smith. Id. 52 15 1 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the 2 Supreme Court held that victims of Fourth Amendment violations could pursue 3 individual damages claims against officials, and it extended this principle in 4 Carlson v. Green, 446 U.S. 14, (1980), to permit individual damages claims for 5 constitutional violations unless the defendants could show that Congress 6 “provided an alternative remedy which it explicitly declared to be a substitute 7 for recovery directly under the Constitution,” or there are “special factors 8 counseling hesitation in the absence of affirmative action by Congress,” id. at 18 9 19 (emphasis omitted). It was therefore at least possible at the time that Congress 10 passed RFRA that an individual damages claim would have been available for a 11 free exercise violation. Given this potential, we cannot say that the Senate 12 Committee Report expressly intended to exclude such a remedy when it stated 13 that it did not intend to “expand” or “alter” claimants’ ability to obtain relief. S. 14 Rep. No. 103 111, at 12.16 To be sure, the Supreme Court has subsequently shown “caution toward extending Bivens remedies into any new context,” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001), and “[s]ince Carlson in 1980, the Supreme Court has declined to extend the Bivens remedy in any new direction at all,” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009). This trend, however, was not clearly apparent at the time of RFRA’s passage because the Court had recognized Bivens 53 16 1 Furthermore, even if the Senate Committee Report could be read to limit 2 RFRA’s remedies to those explicitly authorized by the Supreme Court prior to 3 Smith, the approach of the House Committee Report is not necessarily so narrow. 4 Unlike the Senate Committee Report, which authorizes relief “consistent with the 5 Supreme Courts’ free exercise jurisprudence,” S. Rep. No. 103 111, at 12, the 6 House Committee Report authorizes relief so long as it is “consistent with free 7 exercise jurisprudence, including Supreme Court jurisprudence,” H.R. Rep. No. 8 103 88, at 8. The House Committee Report therefore appears to have 9 contemplated providing a broad array of relief consistent not only with Supreme 10 Court jurisprudence but that of the lower courts as well. We thus find it highly 11 relevant that at the time of RFRA’s passage, several Courts of Appeals had held 12 that plaintiffs could pursue individual damages claims for violations of their free claims in three instances and denied such claims in four. See id. at 571 72. Additionally, although the Supreme Court in Bush v. Lucas, 462 U.S. 367, 368 (1983), held that federal employees could not bring Bivens claims against their superiors, the decision was narrow, and based on federal employees’ existing access to “an elaborate remedial system” that protected their constitutional rights, id. at 388. That remedial framework is not applicable here, because the plaintiffs are not federal employees. Moreover, even if the trend away from extending Bivens were obvious when RFRA was passed, it still falls short of the Supreme Court’s clearly foreclosing an individual damages remedy for free exercise violations. We therefore conclude that it would not be a basis for finding the Franklin presumption inapplicable here. 54 1 exercise rights. See Caldwell v. Miller, 790 F.2d 589, 607 608 (7th Cir. 1986); Jihaad v. 2 O Brien, 645 F.2d 556, 558 n. 1 (6th Cir. 1981); see also Paton v. La Prade, 524 F.2d 3 862, 870 (3d Cir. 1975) (holding that Bivens claims are broadly available for First 4 Amendment violations); Scott v. Rosenberg, 702 F.2d 1263, 1271 (9th Cir. 1983) 5 (assuming, without deciding, that the plaintiff could recover damages if his free 6 exercise rights had been violated). 7 8 and express indication that Congress intended to exclude individual damages 9 claims from the scope of RFRA’s available relief, and we therefore conclude that Accordingly, we do not believe that the legislative history evinces a clear 10 the Franklin presumption is applicable. 11 13 VI. Qualified Immunity Having held that RFRA authorizes a plaintiff to sue federal officers in their 14 individual capacities for money damages, we consider whether those officers 15 should be shielded by qualified immunity. 16 17 addressing two questions: (1) “whether, assuming arguendo that RFRA authorizes 18 suits against officers in their individual capacities, [Defendants] would be 19 entitled to qualified immunity,” and (2) “whether Ziglar v. Abbasi, No. 15 1358, 12 At the panel’s request, the parties submitted supplemental briefing 55 1 2017 WL 2621317 (June 19, 2017), applies in any relevant way to this question or 2 the other questions presented in this appeal.” Order, Tanvir v. Tanzin, No. 16 3 1176 (2d Cir. 2017), Dkt. No. 83; see also Post Argument Ltr. Brs., Tanvir v. Tanzin, 4 No. 16 1176 (2d Cir. 2017), Dkt Nos. 89 90, 93 94. 5 6 “at the earliest possible stage in the litigation.” Hunter v. Bryant, 502 U.S. 224, 227 7 (1991). Indeed, we have, in some circumstances, “permitted the [qualified 8 immunity] defense to be successfully asserted in a Rule 12(b)(6) motion.” 9 McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004). Nevertheless, as a general We are sensitive to the notion that qualified immunity should be resolved 10 matter, “[i]t is our practice in this Circuit when a district court fails to address the 11 qualified immunity defense to remand for such a ruling.” Eng v. Coughlin, 858 12 F.2d 889, 895 (2d Cir. 1988) (citing Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir. 13 1988)). 14 15 Defendants were entitled to qualified immunity. Similarly, until the panel 16 prompted the parties at oral argument and in its post argument order, neither 17 side fully addressed or briefed the issue of qualified immunity on appeal. In the 18 absence of a more developed record, we decline to address in the first instance Here, the district court decision below did not address whether 56 1 whether the Defendants are entitled to qualified immunity. We remand to the 2 district court to make such determination in the first instance. 3 4 5 6 CONCLUSION For the foregoing reasons, we reverse the judgment of the district court 7 8 and remand for further proceedings. 57