NEW YORK (Reuters) – A divided federal appeals court on Thursday said American Muslims who landed on the “No-Fly List” because of their refusal to become government informants can sue FBI agents for damages, prompting dissents that said the decision was dangerous and defied U.S. Supreme Court precedents.
In a 7-3 vote, the 2nd U.S. Circuit Court of Appeals in Manhattan refused to revisit its May 2018 decision by a three-judge panel allowing Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari to seek monetary damages for being put on the list, despite no evidence they threatened airline or passenger safety.
The plaintiffs, all U.S. citizens or permanent residents who were born abroad, had sought damages under the federal Religious Freedom Restoration Act.
They said their inclusion on the No-Fly List for refusing to spy on Muslim communities caused them to lose jobs, be unable to visit family and be stigmatized in their communities. None remains on the list.
Circuit Judge Dennis Jacobs, one of Thursday’s dissenters, said Congress intended the 1993 law to restore religious freedom that was curtailed in a 1990 Supreme Court decision, Employment Division v. Smith, and did not create a damages remedy.
He said the panel’s decision threatened “substantial social costs,” including the risk that government officials tasked with protecting national security might not do their jobs out of fear they might be sued and held personally liable.
“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,” Jacobs wrote. “The panel opinion is quite wrong and actually dangerous.”
Another dissenter, Circuit Judge Jose Cabranes, called the decision “a transparent attempt to evade, if not defy” Supreme Court precedents on liability of government officials.
A spokesman for U.S. Attorney Geoffrey Berman in Manhattan, whose office defended the FBI agents, declined to comment.
Ramzi Kassem, a City University of New York School of Law professor representing the plaintiffs, said they deserved the chance to hold accountable the FBI agents “who forced them to choose between the tenets of their religion and being able to fly to see their families.”
In another recent No-Fly List case, the 9th U.S. Circuit Court of Appeals in San Francisco voted 8-3 on Jan. 2 that the government should pay millions of dollars to lawyers for a Muslim woman it put on the No-Fly List after mistakenly branding her a terrorist. That case began in 2005.
The case is Tanvir v Tanzin et al, 2nd U.S. Circuit Court of Appeals, No. 16-1176.
Reporting by Jonathan Stempel in New York; editing by Dan Grebler; editing by Jonathan Oatis