Thread by @gabrielmalor

Lawgeeks, there's an interesting statutory interpretation case coming up for argument at SCOTUS in a little bit this morning, Tanzin v. Tanvir.

This is about RFRA, but calling it a religion case misses the point.

The question is whether the statute authorizes money damages against federal employees in their personal capacities for RFRA violations.

Ordinarily, we expect Congress to speak explicitly when it makes the federal (or state) government's liable for monetary damages.

Here, Congress simply wrote that a prevailing person may obtain “appropriate relief against a government” where government is defined to include, among other things, an "official (or
other person acting under color of law)."

The statutory interpretation question boils down to: what did Congress mean by "appropriate" when it wrote "appropriate relief"?

It's a fun question, and I expect the 2d Cir. to get slapped down pretty thoroughly 6-2 or 7-1 for saying money damages are available under RFRA.

The underlying facts are pretty compelling, and you know what they say about cases with bad facts.

The 2d Cir. split. The case is from several Muslim men who say they were placed on no-fly lists after 9/11 as retaliation for refusing to spy on their coreligionists.

All of their other claims have been dismissed. So the only thing they have left is if RFRA authorizes monetary damages against individual federal officials in their personal capacities.

A split 2d Cir. said they could get those damages.

But SCOTUS is likely to disagree. Three reasons.
(1) Congress must explicitly authorize monetary damages against sovereigns (fed or state).
(2) The word "appropriate" is ambiguous.

(3) In a 2011 case, SCOTUS by Justice Thomas, and joined by CJ Roberts, Scalia, Kennedy, Ginsburg, and Alito held that an analogous provision in RLUIPA does not allow monetary damages.

RLUIPA, you may recall, followed RFRA, and applied a similar standard and statutory scheme to religious freedom in the context of land use and prisons.

So SCOTUS textualists have already addressed a very similar question.

Anyway, that argument will begin shortly and be streamed here: c-span.org/video/?469264-…

They're just finishing up an ERISA case (booo) they heard first today.

BTW, there are lots of policy arguments to be made about whether Congress *should* authorize monetary damages under RFRA.

Most of the amicus briefs come at the case from that direction. But today's case is purely one of statutory interpretation.

(I tend to think that if something isn't broke, the 2d Cir. doesn't need to fix it. RFRA has worked well for twenty-five years.

If money damages are available under it, we need a more explicit statement from Congress that we've been reading the statute wrong all this time.)

Alright, that was very interesting. It's always a fool's errand to predict where things will end up, but let's do it anyway. This sounds like the CJ, Thomas, Alito, Kagan, Kavanaugh in majority to reverse.

Justices Sotomayor and Breyer in dissent for similar reasons to Sossamon.

And a surprise separate dissent from Justice Gorsuch on his theory (he was the only one to touch on this) that remedies is now governed by transubstantive law, and doesn't limit the court's power to award damages against the gov't.

(I think Gorsuch may have been playing here.)