The Second Circuit almost never hears cases en banc, in which all the judges on the court and not just a three-judge panel convene to decide a case of exceptional importance. But when the court declines to hear a case en banc, the judges sometimes issue decisions of their own either defending the decision not to rehear the case or complaining that the initial three-judge ruling was wrong and the court must sit en banc to correct it. This time around, we have some en banc smackdowns on the issue of when you can sue the federal government over the religiously-motivated placement on the "no fly list"
The case is Tanvir v. Tanzin, issued on February 14. The initial panel said the plaintiffs could sue the government under the Religious Freedom Restoration Act (RFRA), which provides damages for government-sponsored religious discrimination. The court said the plaintiffs could sue the government which placed them on the no-fly list because they would not violate their Muslim principles in refusing to serve as FBI informants to spy on their fellow Muslims. This case has Supreme Court written all over it, as it challenges a federal program and the Court of Appeals weighed in on an issue involving national security and no-fly lists. These en banc opinions probably enhance the certiorari value.
The judges who did not want en banc review and defend the three-judge ruling (Pooler and Katzmann) write that the pro-en banc judges are wrongly characterizing the initial panel ruling as a Bivens case. Under the Bivens doctrine, you can sue the federal government for constitutional violations only in rare instances. But, these judges say, this is not a Bivens case. It's a RFRA case. And since RFRA contains an express right of action with an express provision for "appropriate relief," the initial three-judge panel faithfully applied that statute in holding the plaintiffs could sue the federal government for damages over the religiously-motivated no-fly determination.
Writing for the pro-en banc judges, Judge Jacobs (joined by Judges Cabranes and Sullivan) writes that a comparable religious discrimination statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to the states, does not provide for a private right action against the government for money damages, as per Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013). The three-judge holding in Tanvir undermines the Washington holding, Judge Jacobs says, and the three-judge panel essentially created a new Bivens cause of action, which the Supreme Court has forbidden. The end result, Judge Jacobs says, is that government officials will be gun-shy in discharging their duties out of fear of litigation, and they cannot always rely on qualified immunity, such that "the safest course for a government employee in doubt would be to avoid doing one's job, which is not a choice in need of encouragement." Of course, that might be the case if the damages come out of the government employee's pocket, but the government usually pays out the damages award, or else -- let's face it -- no one would work for the government. Jacobs punctuates his opinion with a final slap: "the panel opinion is quite wrong and actually dangerous."