Muslim informant/no-fly retaliation case is rejected on appeal

In this religious discrimination case, Muslim plaintiffs allege that federal agents retaliated against them after they refused to serve as informants against other American Muslims. The retaliation involved their placement on the no-fly list. This case has taken a long journey since it was originally filed a decade ago, involving events that transpired in 2007-2012. The Court of Appeals has put this case to rest for good, finding that the defendants are immune from suit because plaintiffs have not adequately alleged they knew the plaintiffs had religious objections to the informant request.

The case is Tanvir v. Tanzin, issued on October 29. This case is brought under the Religious Freedom Restoration Act, which makes it unlawful for the government to discriminate on the basis of religion. This is a complex case. The Court of Appeals has already passed judgment on this case, see 894 F.3d 449 (2d Cir. 2018), and the Supreme Court took the case for the purpose of holding that RFRA cases may give rise to a damages claim. See 592 U.S. 43 (2020). The case returns to the Second Circuit on a different issue: qualified immunity.

Qualified immunity allows governmental defendants to avoid litigation if they did not violate clearly-established law or had otherwise acted reasonably at an objective level. In this case, the Court of Appeals lays out the facts set forth in the complaint, demonstrating the sequence of events from the plaintiffs' standpoint. But the complaint has a problem, the Court of Appeals (Lynch, Park and Carney) says, and it dooms the case and entitles the defendants to qualified immunity. 

The complaint does not assert that the plaintiffs told the federal agents that they had religious objections to working as informants against other Muslims. What this means is that the federal agents could not have intentionally retaliated against plaintiffs based on their religion but did so on the basis that they objected to the informant request because they thought such a role would have been too dangerous. Retaliating against someone because the informant demand was too dangerous may be unfair and immoral, but it does not violate the RFRA.

That ends the case. As I mentioned, this case was brought a decade ago. No depositions were ever taken in this case, and no documents were exchanged that would have shed light on how the federal agents had asked plaintiffs to serve as informants and how they carried out the retaliation. To put things in lawyer-speak, after all these years, this case reaches the Court of Appeals this time around in a Rule 12 motion to dismiss posture. While plaintiffs won a few victories along the way, especially in the Supreme Court, they lose the final battle on a central issue: have plaintiffs plausibly asserted that the defendants retaliated against them on the basis religion.