Tanvir v. Tanzin (formerly Tanvir v. Holder and Tanvir v. Lynch)

At a Glance

Date Filed: 

October 1, 2013

Current Status 

Plaintiffs were notified they have been taken off the No-Fly List and are currently able to fly. The Court of Appeals for the Second Circuit ruled on May 2, 2018, that the RFRA does authorize damages against individual agents. The government sought review in the Supreme Court, which announced on November 22, 2019, that it would hear the case. Oral argument, originally scheduled for March 24, 2020 but postponed in light of the COVID-19 pandemic, was held by telephone on October 6, 2020.

Co-Counsel 

Professors Ramzi Kassem and Naz Ahmad of the City University of New York School of Law’s CLEAR Project
Debevoise & Plimpton LLP

Client(s) 

Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad

Case Description 

Tanvir v. Lynch (formerly Tanvir v. Holder) is a federal lawsuit filed against the FBI, the Department of Justice, and the Department of Homeland Security that challenges the FBI’s abuse of the No-Fly List to coerce law-abiding American Muslims into spying on their religious communities. The government operates the No-Fly List under near-total secrecy, and, at the time the suit was filed, refused to tell people whether they were on the list or why they had been listed, and provided no mechanism to dispute that placement. The plaintiffs in the case are four American Muslim men with no criminal records who were approached by the FBI in an effort to recruit them as informants. As a result of their placement on the No-Fly List and the FBI’s unwarranted scrutiny, some of the men were not able to see family members overseas for years. One was not able to visit his gravely ill 93-year-old grandmother; another was separated from his wife and three young daughters for roughly five years; a third was unable to see his wife for nearly two years. The case is part of CCR’s broader effort to end warrantless government surveillance of civilians, particularly those who are being targeted on the basis of their Muslim identity or activism.

The original complaint, on behalf of plaintiff Muhammad Tanvir, was filed by the CLEAR project of CUNY School of Law and later joined by CCR. The lawsuit sought to remove our clients from the No-Fly List. In response to this and other lawsuits, the government created a limited process to confirm placement on the list and challenge it; as a result of the process, the government confirmed that all our clients were once again able to fly. The remaining portion of our lawsuit seeks damages for the fact that our clients were kept on the list without cause and in retaliation for their assertion of constitutional rights in refusing to serve as informants. The men have lost jobs, been stigmatized within their communities, and suffered severe financial and emotional distress as a result of their placement on the list. The issue of whether the 1993 Religious Freedom Restoration Act allows for damages is currently pending before the Supreme Court, which heard the case on October 6, 2020. 

“I do not want to become an informant, but the government says I must in order to be taken off the No-Fly List. How can the government tell me that the only way I can see my family again is if I turn my back on my community?” said Awais Sajjad, a plaintiff in the lawsuit.

The complete lack of transparency and accountability with which the government operates the No-Fly List makes it ripe for abuse by FBI field agents who, in the post-9/11 environment, often face pressure from their superiors to recruit human sources and have a great deal of individual discretion to nominate individuals to the list with only the most minimal oversight from superiors. As of 2012, the No-Fly List contained over 21,000 names. A 2007 audit found that more than half of the 71,000 names then on the list were wrongly included. It is an open question how many people today are on the list, like our clients, because they refuse to spy on their communities. The fact that our clients were told they could fly again if they agreed to work as informants for the FBI begs the question of how, if they were truly so dangerous to begin with, the FBI could risk enlisting them as informants and allowing them to fly.

“I have no words. This is very big news for me,” said Awais Sajjad. “I hope next month I will travel to visit my grandmother in Pakistan. I miss my grandmother who is very sick and over 90 years old now. She raised me after my mother’s death.”

“They have done a lot of damage to me and to my life. They messed up my life,” said Jameel Algibhah, another plaintiff. “I haven’t seen my family in a long time. My youngest daughter doesn’t even know me. I want to continue this lawsuit.”

 

Case Timeline

October 6, 2020
Oral argument is held
October 6, 2020
Oral argument is held
Oral argument takes place before an eight-member Supreme Court on the second day of the October 2020 term. Argument is by telephone, with Edwin Kneedler arguing for the government and Ramzi Kassem for the plaintiffs below.
July 13, 2020
Supreme Court sets new argument date of October 6, 2020
July 13, 2020
Supreme Court sets new argument date of October 6, 2020
The Supreme Court schedules argument for October 6, 2020.
March 16, 2020
Supreme court postpones oral argument
March 16, 2020
Supreme court postpones oral argument
In light of the COVID-19 pandemic, the Supreme Court postpones oral argument indefinitely.
March 6, 2020
Government reply brief filed
March 6, 2020
Government reply brief filed
Government files reply brief.
February 12, 2020
Amicus brief filed describing process of adding names to No-Fly and other watchlists as driven by individual FBI agents with little oversight
February 12, 2020
Amicus brief filed describing process of adding names to No-Fly and other watchlists as driven by individual FBI agents with little oversight
Amicus brief filed by SMU law professor Jeffrey Khan, describing construction of No-Fly and other watchlists, a process in which individual "FBI agents have enjoyed substantial power but little oversight" from the Terrorism Screening Center.
February 12, 2020
Amicus brief filed by religious liberty scholars, closely examining Congressional intent
February 12, 2020
Amicus brief filed by religious liberty scholars, closely examining Congressional intent
Fourteen leading religious liberty scholars and two organizations file an amicus brief arguing that 42 U.S.C. 1983 was Congress' model for RFRA's remedies provision, and closely examining cases that Congress had in mind as creating a need for a RFRA statute.
February 12, 2020
Amicus brief filed by statutory interpretation experts
February 12, 2020
Amicus brief filed by statutory interpretation experts
Amicus brief filed by five law professors who are experts in the field of statutory interpretation, analyzing statute and showing why in pari materia canon applies and noscitur a sociis does not.
February 12, 2020
Amicus briefs filed by Sikh Coalition and General Council of Seventh-Day Adventists describing how damages are necessary to remedy free exercise injuries
February 12, 2020
Amicus briefs filed by Sikh Coalition and General Council of Seventh-Day Adventists describing how damages are necessary to remedy free exercise injuries
The Sikh Coalition files an amicus brief describing how typical injuries to Sikhs' free exercise of religion suffered at the hands of government officials can only be remedied retrospectively with damages, and the General Council of Seventh-Day Adventists files an amicus brief arguing that Congress intended to create a damages remedy and that damages are necessary to remedy the sorts of injuries frequently at issue.
February 12, 2020
Amicus briefs regarding watchlisting and other abusive Muslim-targeting policies and their impact on the Muslim community filed
February 12, 2020
Amicus briefs regarding watchlisting and other abusive Muslim-targeting policies and their impact on the Muslim community filed
Amicus briefs are filed by (1) Muslim Advocates, arguing that watchlisting policies are over-inclusive and arbitrary and that the burden from these and other practices falls disproportionately on the Muslim community, and (2) American-Arab Anti-Discrimination Committee, arguing that the American-Arab community has suffered greatly from surveillance and government agent leveraging of immigration status and damages are necessary to remedy such injuries and will not create over-deterrence.
February 12, 2020
Amicus briefs supporting petitioners filed regarding RFRA's provision of damages remedy
February 12, 2020
Amicus briefs supporting petitioners filed regarding RFRA's provision of damages remedy
Amicus briefs are filed by (1) the Rutherford Institute, arguing that RFRA's parallels to sec. 1983 and express permission to sue officials mandate damages; (2) Institute for Justice, arguing damages are a normal form of "relief" and Congress not the courts should make the determination whether to allow them; (3) Americans United for Separation of Church and State and various religious and civil rights organizations, arguing that provision of damages will not result in over-deterrence of legitimate government action; (4) various religious organizations and individuals arguing that RFRA's language and underlying policy considerations all support the provision of a damages remedy; (5) Becket Fund for Religious Liberty, arguing damages are necessary to fulfill the purpose of the statute and do not raise other concerns (disrupting government, sovereign immunity); and (6) 67 religious organizations, arguing damages are vital and implement RFRA's purpose.
2/5/2020
Brief for plaintiff-respondents filed
2/5/2020
Brief for plaintiff-respondents filed
We file the brief of respondents (our clients, the original plaintiffs), arguing that the text, purpose, and history of the RFRA statute indicate that it was intended to provide a damages remedy against federal officials.
1/13/2020
Amicus brief supporting government filed
1/13/2020
Amicus brief supporting government filed
American Atheists, Center for Inquiry, Ex-Muslims of North America, and Black Non-Believers file amicus brief in support of government, arguing RFRA should not permit damages despite "abhorrent" government actions here, or, alternatively, RFRA is unconstitutional to the extent it does not equally protect deeply-held secular beliefs.
January 13, 2020
Amicus brief in support of neither party filed
January 13, 2020
Amicus brief in support of neither party filed
The Freedom from Religion Foundation and American Humanist Association file an amicus brief arguing RFRA is unconstitutional as it violates separation of powers, Article V, the Establishment Clause, and is in excess of Congress' Commerce Clause powers.
1/6/2020
Government opening merits brief filed
1/6/2020
Government opening merits brief filed
The government files its opening ("topside") merits brief.
11/22/2019
Supreme Court grants review
11/22/2019
Supreme Court grants review
Certiorari granted in ad hoc order
10/30/2019
Government files reply brief in support of review by Supreme Court
10/30/2019
Government files reply brief in support of review by Supreme Court
Government files reply brief supporting Supreme Court review
10/11/2019
Plaintiffs file brief opposing review by Supreme Court
10/11/2019
Plaintiffs file brief opposing review by Supreme Court
Brief in Opposition filed, arguing that interlocutory review is not necessary and decision below was correct
7/12/2019
Government filed petition for review by Supreme Court
7/12/2019
Government filed petition for review by Supreme Court
Petition for certiorari filed (after two extensions)
2/14/2019
Full Second Circuit denies rehearing en banc, with two dissenting opinions
2/14/2019
Full Second Circuit denies rehearing en banc, with two dissenting opinions
Judges Jacobs and Cabranes dissent from the refusal of the rest of the Second Circuit to review the panel opinion.
6/25/2018
Second Circuit panel issues amended opinion
6/25/2018
Second Circuit panel issues amended opinion
Slight correction of the discussion in footnote 13 of the original opinion
May 2, 2018
Second Circuit reinstates plaintiffs' claims for damages
May 2, 2018
Second Circuit reinstates plaintiffs' claims for damages
The court rules that the RFRA does authorize damages against individual federal agents.
8/7/2017
Parties simultaneously file supplemental reply briefs
8/7/2017
Parties simultaneously file supplemental reply briefs
Parties simultaneously file supplemental reply briefs
7/24/2017
Parties simultaneously file supplemental briefs
7/24/2017
Parties simultaneously file supplemental briefs
Parties simultaneously file supplemental briefs
7/6/2017
Court of Appeals orders supplemental briefing
7/6/2017
Court of Appeals orders supplemental briefing
Panel requests additional briefing on two questions: (1) “whether, assuming arguendo that RFRA authorizes suits against officers in their individual capacities, defendants-appellees would be entitled to qualified immunity,” and (2) “whether Ziglar v. Abbasi, No. 15-1358, 2017 WL 2621317 (June 19, 2017), applies in any relevant way to this question or the other questions presented in this case on appeal.”
3/1/2017
Oral argument held before Judges Katzmann, Pooler and Lynch
3/1/2017
Oral argument held before Judges Katzmann, Pooler and Lynch
Oral argument held before Judges Katzmann, Pooler and Lynch
11/14/2016
CCR and CLEAR file reply brief in court of appeals
11/14/2016
CCR and CLEAR file reply brief in court of appeals
10/28/2016
Government files response brief in court of appeals
10/28/2016
Government files response brief in court of appeals
July 29, 2016
CCR and CLEAR file opening brief in U.S. Court of Appeals for the Second Circuit
July 29, 2016
CCR and CLEAR file opening brief in U.S. Court of Appeals for the Second Circuit
Tanvir, Algibhah, and Shinwari file their brief arguing damages claims should be available under the Religious Freedom Restoration Act against various individual FBI agent defendants.
September 3, 2015
District court dismisses damages claims
September 3, 2015
District court dismisses damages claims
June 12, 2015

Oral argument took place on the government's motion to dismiss the individual capacity claims

June 12, 2015

Oral argument took place on the government's motion to dismiss the individual capacity claims

June 9, 2015

Government informs all four plaintiffs that they are not currently on the no fly list

June 9, 2015

Government informs all four plaintiffs that they are not currently on the no fly list

Four days before a court hearing on whether the case should be allowed to proceed, the government notifies all four men that they are no longer on the no-fly list. The letters are a de facto acknowledgment that the men never posed a security threat of any kind and that the FBI only listed them to coerce them into spying on their faith community.

June 1, 2015

Government moves for a limited stay of the proceedings regarding the official capacity claims

June 1, 2015

Government moves for a limited stay of the proceedings regarding the official capacity claims

January 22, 2015

Government files its reply briefs in support of their motions to dismiss

January 22, 2015

Government files its reply briefs in support of their motions to dismiss

November 13, 2014

CLEAR and CUNY files their opposition to the government's motions to dismiss

November 13, 2014

CLEAR and CUNY files their opposition to the government's motions to dismiss

Jul. 28, 2014

The government moves to dismiss the claims against high-level agency defendants arguing lack of subject matter jurisdiction. The government also moves to dismiss the Bivens and RFRA claims raised against the individual FBI officers. 

Jul. 28, 2014

The government moves to dismiss the claims against high-level agency defendants arguing lack of subject matter jurisdiction. The government also moves to dismiss the Bivens and RFRA claims raised against the individual FBI officers. 

Government moved to dismiss the claims against high-level agency defendants for lack of subject matter jurisdiction. The government also moved to dismiss the Bivens and RFRA claims raised against the individual FBI officers.
July 23, 2014

A copy of the National Counterterrorism Center’s Watchlisting Guidance is leaked by the Intercept

July 23, 2014

A copy of the National Counterterrorism Center’s Watchlisting Guidance is leaked by the Intercept

 The guidance sets forth, among other things, inclusion criteria, evidentiary standards and procedures for placing individuals on the No-Fly List

Apr. 22, 2014

CCR joins the case. CLEAR and CCR file amended complaint, adding plaintiffs Algibhah, Shinwari and Sajjad and their associated defendants.

Apr. 22, 2014

CCR joins the case. CLEAR and CCR file amended complaint, adding plaintiffs Algibhah, Shinwari and Sajjad and their associated defendants.

Plaintiffs all allege the government unlawfully placed them on the No Fly List in retaliation for their having exercised their First Amendment rights not to become informants. Plaintiffs also allege that the No Fly List violates the Due Process Clause of the Constitution because it fails to give plaintiffs any meaningful notice or opportunity to see or challenge the asserted reasons for their placement. Finally, they allege violations of the Religious Freedom Restoration Act and the Administrative Procedure Act.

Oct. 1, 2013

CLEAR Project files original complaint, on behalf of plaintiff Muhammad Tanvir, in the federal district court for the Southern District of New York. Case is assigned to Judge Abrams.

Oct. 1, 2013

CLEAR Project files original complaint, on behalf of plaintiff Muhammad Tanvir, in the federal district court for the Southern District of New York. Case is assigned to Judge Abrams.

The case is filed in the federal district court for the Southern District of New York and assigned to Judge Abrams.