The U.S. Court of Appeals for the Second Circuit and the U.S. District Court for the Southern District of New York. Photo: Ken Lund

It's rare enough for the U.S. Court of Appeals for the Second Circuit to agree to an en banc review, so to see its judges debate about the decision not to sit en banc as they did Thursday is extraordinary.

Over three separate opinions, the circuit judges argued over the decision not to grant the federal government's request to rehear the decision in Tanvir v. Tanzin from earlier this year. The active judges on the panel—Chief Judge Robert Katzmann and Judge Rosemary Pooler—defended their revival of a post-9/11 religious liberties liability suit filed by Muslim plaintiffs against federal agents.

While Katzmann and the other panel members succeed in staving off an en banc hearing (the third member, Circuit Judge Gerard Lynch, did not participate per circuit protocol due to his senior status) a trio of judges offered strong dissents in favor of having an en banc review they hoped would obviate their colleagues' order in the case.

The panel's decision in June, according to a dissent penned by Circuit Judge Jose Cabranes and joined by Judges Dennis Jacobs and Richard Sullivan, represented a “transparent attempt to evade, if not defy, the precedents of the Supreme Court.”

The debate centered on the panel's interpretation of the Religious Freedom Restoration Act. The Katzmann panel concluded that U.S. District Judge Ronnie Abrams of the Southern District erred in dismissing the RFRA suit against a host of Federal Bureau of Investigation officials. The special agents were sued under the RFRA for allegedly placing a group of Muslims on the federal “No Fly List” as retribution for refusing to become informants in their community for the bureau.

Abrams found the RFRA did not permit the recovery of money damages from federal officers being sued in their individual capacity, holding that it was not Congress' intent when it passed the statute in 1993. The Katzmann panel reversed the dismissal and held that the RFRA permitted the recovery of money damages against federal officers sued in their individual capacities.

In both their dissents, Cabranes and Jacobs, who wrote a separate one joined by the other dissenters, argued that the panel effectively extended the remedies allowed under the Supreme Court's precedent in 1971's Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

The dissent argued members of the circuit had a habit in recent years of attempting to broaden the recourse provided under Bivens, despite the Supreme Court's continued push back, with Cabranes citing 2007's Iqbal v. Hasty and 2015's Turkmen v. Hasty as examples. A subsequent case, 2017's Ziglar v. Abbasi, saw the Supreme Court reverse the circuit's position, Cabranes noted, “patiently explain[ing]” that damages remedies against government officials are disfavored and should not be recognized absent explicit congressional authorization.

“ It appears our Court is still in capable of learning this lesson,” Cabranes wrote of the Katzmann panel's decision.

Jacobs echoed the sentiment in his dissent, stating, “The panel has done what the Supreme Court has forbidden: it has created a new Bivens cause of action, albeit by another name and by other means. The Supreme Court did not shut the Bivens door so that we could climb in a window.”

Katzmann and Pooler argued in their opinion that the dissent misread their earlier decision. No private right of action was implied. Rather, the RRFA itself contains an express private right of action with an attached “appropriate relief” provision.

“The panel opinion interprets RFRA's express private right of action to support a damages remedy where appropriate—a conclusion based on principles of statutory interpretation that Bivens and its progeny do not touch,” the Katzmann panel judges wrote.

They went on to argue that the Ziglar comparison didn't hold up as their previous decision, rather than implying a right to action, represented a “time-honored exercise” of statute interpretation power to “grant relief where Congress has legislated liability.”

The U.S. Attorney's Office for the Southern District of New York handled the government's appeal. A spokesman declined to comment on the en banc decision.

The appellants were represented by Prof. Ramzi Kassem, founding director of the CLEAR project at CUNY School of Law, as well as by counsel from Debevoise & Plimpton and the Center for Constitutional Rights.

In a statement, Kassem celebrated yet another win for his clients at the Second Circuit.

“A majority of the court of appeals today correctly declined to rehear a case that was rightly decided in the first place,” Kassem said. “It is only fair for our courageous clients to seek to hold accountable the government agents who forced them to choose between the tenets of their religion and being able to fly to see their families.”

Related:

Second Circuit Revives Muslims' 'No-Fly' Suit, Finding Federal Agents Individually Liable

2nd Circuit En Banc Decision Upholds Protection Against Sexual Orientation Bias

Damages Denied for Agents' Alleged Use of 'No-Fly' List