Tanvir v. Lynch

128 F.Supp.3d 756

Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad, Plaintiffs,

v.Loretta E. LYNCH, Attorney General, Jeh C. Johnson, Secretary of Homeland Security, James Comey, Director, Federal Bureau of Investigation, Christopher M. Piehota, Director, Terrorist Screening Center, Fnu Tanzin, Sanya Garcia, Francisco Artusa, John Lnu, Michael Rutowski, William Gale, John C. Harley III, Steven Lnu, Michael Lnu, Gregg Grossoehmig, Weysan Dun, James C. Langenberg, and John Does 1–13, Defendants.

No. 13–CV–6951 (RA).

United States District Court, S.D. New York.

Signed Sept. 3, 2015.

Ramzi Kassem, The Jerome N. Frank Legal Services Organization, New Haven, CT, Baher Azmy, Seton Hall Law School Center For Social Justice, Newark, NJ, Diala Shamas, Cuny School of Law, Long Island City, NY, Jennifer R. Cowan, Robert N. Shwartz, Rushmi Bhaskaran, Debevoise & Plimpton LLP, Erol Nazim Gulay, Shayana Devendra Kadidal, New York, NY, for Plaintiffs.

Sarah Sheive Normand, Jennifer Ellen Blain, United States Attorney Office, New York, NY, for Defendants.

OPINION & ORDER

RONNIE ABRAMS, District Judge:

Plaintiffs Muhammad Tanvir, Jameel Algibhah, Naveed Shinwari, and Awais Sajjad bring this suit to remedy alleged violations of their constitutional and statutory rights. Each is either a lawful permanent resident or citizen of the United States, and each is Muslim. They claim that as part of the U.S. Government's efforts to bolster its intelligence gathering in the aftermath of the terrorist attacks of September 11, 2001, they were asked to become informants by agents of the Federal Bureau of Investigation (FBI). When they refused because, among other things, serving as informants would contradict their sincerely held religious beliefs, they say the Government retaliated against them by placing or maintaining their names on its "No Fly List," even though they posed no threat to aviation security. Since then, each Plaintiff claims to have been denied a boarding pass on at least one occasion, leaving him unable to visit loved ones who live abroad. To redress this alleged violation of their rights, Plaintiffs filed a Complaint against numerous federal officials, including Attorney General Loretta E. Lynch, Secretary of Homeland Security Jeh C. Johnson, FBI Director James B. Comey, and 25 named and unnamed FBI and Homeland Security agents.

Plaintiffs seek relief on two bases. First, they seek injunctive and declaratory relief against all of the defendants in their official capacities. These claims arise under the First and Fifth Amendments of the Constitution, the Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 706, and the Religious Freedom Restoration Act (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. Plaintiffs assert that these constitutional and statutory provisions entitle them to an order from this Court requiring the Government to halt its alleged investigative tactics and to create fair procedures governing who is placed on the No Fly List and how such individuals may contest their inclusion. Second, Plaintiffs also seek compensatory and punitive damages from each of the individual agent defendants in their personal capacities. They argue that they are entitled to such monetary relief under the First Amendment and RFRA.

As explained in further detail below, the official capacity claims were stayed at the request of the parties on June 10, 2015, two days after the Government advised Plaintiffs that it knew of "no reason" why they would be unable to fly in the future. The personal capacity claims, however, remain active. This opinion concerns only those claims and, more specifically, resolves a motion bought by all but two of the individual agents ("Agents"), who seek to dismiss the personal capacity claims against them.¹ The Agents argue, among other things, that the remedy Plaintiffs seek from them—money damages from each of the agents personally—is unavailable as a matter of law. For the reasons that follow, the Court agrees and will grant the Agents' motion.

BACKGROUND ²

A. Plaintiffs' Factual Allegations

Plaintiffs claim that they are "among the many innocent people" who have been "swept up" in the years since 9/11 by the U.S. Government's "secretive watch list dragnet." ¶ 4. Although they acknowledge that the No Fly List is a critical national security tool meant to ensure that individuals believed to be threats to aviation security are not allowed to board airplanes, ¶¶ 2, 40, Plaintiffs argue that the process for placing individuals on the No Fly List is "shrouded in secrecy and [thus] ripe for abuse," ¶ 63. Plaintiffs contend their names are on the No Fly List only because they are the victims of abusive—and illegal—investigative tactics. And they say that they were unable to do anything about their unjust inclusion because of the pervasive secrecy surrounding the List.

The No Fly List is a database compiled and maintained by the Terrorist Screening Center (TSC), an agency within the FBI. ¶ 40. Federal agencies may "nominate" individuals for inclusion in the Government's various terrorist databases, including the No Fly List, if there is a "reasonable suspicion" that they are "known or suspected terrorist[s]." ¶ 41. An individual should only be placed on the No Fly List if there is additional "derogatory information" showing that he "pose[s] a threat of committing a terrorist act with respect to an aircraft." ¶ 42. Anyone whose name is on the list is barred from boarding a flight that starts or ends in the United States, or flies over any part of the country. ¶ 44. Beyond this, however, little is known about the No Fly List. ¶ 43. Although they do not have information about its exact size, Plaintiffs assert that the List has grown more than six times over from roughly 3,400 names in 2009 to over 21,000 in 2012. ¶ 47. The TSC itself has found that "many" of these thousands of individuals were placed on the No Fly List even though they did not qualify. ¶ 48. For example, a federal district court in California recently concluded that a Muslim doctoral student at Stanford was placed on the No Fly List because an FBI agent checked the wrong boxes on a nominating form. ¶ 49 (citing Ibrahim v. Dep't of Homeland Sec., 62 F.Supp.3d 909, 916 (N.D.Cal.2014) ).

Plaintiffs claim that each of the federal agents named in this suit, instead of utilizing the No Fly List based on legitimate information for legitimate purposes, have "exploited the significant burdens imposed by the No Fly List, its opaque nature and ill-defined standards, as well as its lack of procedural safeguards, in an attempt to coerce Plaintiffs into serving as informants within their American Muslim communities and places of worship." ¶ 8. Plaintiffs further allege that higher-level officials—including the Attorney General, Secretary of Homeland Security, and Director of the FBI—"promulgated, encouraged and tolerated a pattern and practice of aggressively recruiting and deploying informants in American Muslim communities." ¶ 67.

Although the details of each of the four Plaintiffs' experiences with the No Fly List are different, they follow the same broad contours. Each man was born into the Islamic faith in a foreign country where at least some of his family members remain. Each legally immigrated to this country and is now lawfully present here, either as a citizen or permanent resident. Each claims he was asked to become an informant for the FBI and to share what he learned by, for example, traveling abroad to Pakistan or Afghanistan, participating in online Islamic forums, or attending certain mosques. Each declined to do so. Each was placed or kept on the No Fly List and thus was unable to fly for sustained periods over several years, unable to see loved ones. Yet each asserts that he does not—and has never—posed a threat to aviation security. Rather, each maintains that the Agents worked together to add or keep his name on the No Fly List because he refused to serve as an informant for the FBI.

In light of the manner in which the Court resolves this motion, the specific details of each Plaintiff's claims need not be discussed in detail. Some discussion, however, is warranted, and Tanvir's story is illustrative. He is a lawful permanent resident who presently lives in Queens, New York. ¶ 68. His wife, son, and parents remain in Pakistan. Id. In February 2007, Tanvir alleges that FBI Special Agents FNU Tanzin and John Doe 1 approached him at the dollar store in the Bronx where he then worked. ¶ 69. He was questioned for roughly 30 minutes about an old acquaintance whom the agents believed had entered the country illegally. Id. Nothing else about that interaction appears to have been remarkable. Two days later, however, Tanvir heard again from Agent Tanzin, who asked whether there was anything he "could share" with the FBI concerning the American Muslim community. ¶ 70. Tanvir alleges that he told Tanzin that he knew nothing that would be relevant to law enforcement. Id.

Fast-forward more than a year later to July 2008. After returning from a trip in Pakistan to visit his family, Tanvir asserts that he was detained for five hours by federal agents at John F. Kennedy International Airport in New York. ¶ 71. Although he was not interviewed, his passport was confiscated and he was given an appointment to pick it up on January 28, 2009, nearly six months later. Id. Two days before that appointment—and almost two years since they had last been in contact—Tanvir heard again from Agent Tanzin, this time joined by FBI Special Agent John Doe 2/3,³ who visited him at his new workplace. ¶ 73. The agents asked him to accompany them to the FBI's New York field office in Manhattan. Id. Tanvir agreed, and once there, he was questioned for about an hour. ¶¶ 74–75. Among other things, he was asked about terrorist training camps near the village in Pakistan where he was raised and whether he had any Taliban training. ¶ 75. Tanvir denied knowledge of or attendance...