Debevoise, CUNY and the Center for Constitutional Rights Defeat Dismissal of No-Fly List Lawsuit

4 May 2018

Debevoise & Plimpton LLP, along with the CLEAR project at CUNY School of Law and the Center for Constitutional Rights, recently secured an important win at the Second Circuit Court of Appeals. In 2014, four plaintiffs—Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari and a fourth who did not join the appeal—filed a lawsuit against 24 FBI agents who, allegedly, placed the American Muslims on the No-Fly List after they had turned down offers to work as informants within their Muslim communities for the Bureau.

Their placement on the No-Fly List resulted in years of being unable to see spouses, children and close family members overseas. The men also faced undue financial burdens stemming from having to quit jobs that required air travel and spending money on plane tickets that, ultimately, they could not use.

The plaintiffs originally sought relief against law enforcement officials and agents, in their official capacities, for constitutional and statutory violations, as well as compensatory and punitive damages from the agents, in their individual capacities, for violations of the plaintiffs' First Amendment rights and the Religious Freedom Restoration Act (“RFRA”). The RFRA allows people whose religious exercise has been unfairly burdened by the government, including by federal officers, to seek “appropriate relief.”

However, the plaintiffs later dropped their official capacity claims after learning from the government that there was no reason they could not fly. Proceedings did continue on their individual capacity claims, but the case was dismissed in 2015 when the district court held that the “RFRA does not permit the recovery of money damages against federal officers sued in their individual capacities.” The plaintiffs later appealed.

On April 2nd, the Court of Appeals reversed the district court’s judgment and remanded for further proceedings. The federal government argued that the agents could only be sued under RFRA in their official capacity as part of the “government,” not individually. The Court, however, sided with the plaintiffs, agreeing that the statute permits plaintiffs to recover money damages against federal officers sued in their individual capacities.

“Prior to this and other lawsuits,” the Center for Constitutional Rights said in a press release, “the government operated the No-Fly List in near-total secrecy and never told people why they were on the list or gave them a meaningful chance to dispute their placement.”

The Debevoise team included counsel Jennifer R. Cowan and associates Erol Gulay, Sandy Tomasik and Ryan C. Mullally.

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