by Adam Liptak
Three Muslim men say F.B.I. agents tried to use the list to coerce them into becoming informants, in violation of a federal law protecting religious freedom.
When F.B.I. agents asked Muhammad Tanvir to spy on his fellow Muslims, he turned them down. His faith, he said, did not allow him to become an informant.
The agents were persistent. According to a lawsuit filed by Mr. Tanvir, they cajoled him, threatened him and finally, in 2010, applied a novel sort of pressure: They put him on the No-Fly List, barring him from boarding any planes leaving from or landing in American airports. If he cooperated, the agents said, he would be allowed to fly again.
Next month, the Supreme Court will hear arguments about whether Mr. Tanvir and two other men with similar stories can sue the agents for violating a federal law protecting religious freedom.
The Trump administration, which in other settings has taken a broad view of the law, the Religious Freedom Restoration Act of 1993, has urged the court to dismiss the suit, saying it would interfere with “sensitive matters of national security and law enforcement.”
Ramzi Kassem, a law professor at the City University of New York and a lawyer with a clinic there that represents Mr. Tanvir, said the case would test the court’s commitment to religious liberty.
“Our clients were placed or kept on the No-Fly List not because they posed any threat to aviation security,” Professor Kassem said, “but as a way to coerce them to become informants on their own communities.”
Mr. Tanvir’s case is at an early stage, and the justices must for now assume that his version of events, set out in his lawsuit, is true. The question for the court is whether Congress meant to allow suits like his at all.
A lawful permanent resident who lived in Queens, Mr. Tanvir worked as a long-haul truck driver. The job often required him to fly home after completing his deliveries. But when he tried to get on a flight in Atlanta in October 2010, his lawsuits says, he was turned away. Two F.B.I. agents drove him to a bus station, and it took him about 24 hours to get home.
Mr. Tanvir quit his job. On three occasions, he bought plane tickets to visit his mother in Pakistan, who was in failing health. He was not allowed to fly. Throughout, agents told him that they would help him get off the list — if he cooperated.
The No-Fly List appears to include tens of thousands of people. The criteria for inclusion are opaque, making it subject to errors and abuse. Mr. Tanvir’s lawyers say that he has never been arrested or charged with any crime and that he poses no threat to aviation safety.
Mr. Tanvir and the two other men sued the agents in 2013. A trial judge dismissed the case, but a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, revived it. The 1993 law, Judge Rosemary S. Pooler wrote for the panel, allowed Mr. Tanvir to seek money from the agents for the harm he had suffered.
The law was a response to a 1990 Supreme Court decision that declined to recognize religious exceptions to generally applicable laws. Congress effectively reversed that decision. “What this law basically says,” President Bill Clinton said before signing the bill, “is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”
Dissenting from the full Second Circuit’s refusal to rehear the panel’s decision, Judge Dennis Jacobs said the decision was “quite wrong and actually dangerous,” sending an alarming message to law enforcement agents. “The safest course for a government employee in doubt,” Judge Jacobs wrote, “would be to avoid doing one’s job, which is not a choice in need of encouragement.”
Judge José A. Cabranes, in a second dissent, said the Second Circuit had evaded, if not defied, Supreme Court precedents, and not for the first time.
In 2009, in Ashcroft v. Iqbal, for instance, the Supreme Court reversed a Second Circuit decision that had allowed a Pakistani Muslim man arrested after the Sept. 11 attacks to pursue a lawsuit against John Ashcroft, a former attorney general, and Robert S. Mueller III, a former F.B.I. director, for abuses he said he had suffered in a Brooklyn detention center.
Similarly, the Supreme Court reversed the Second Circuit in 2017 in Ziglar v. Abbasi, ruling against Muslim immigrants who said they had been rounded up and subjected to beatings, humiliating searches and other abuses at the same detention center. Justice Anthony M. Kennedy, writing for the majority, acknowledged that the way the detainees said they had been treated was appalling. But he said lawsuits seeking money from government officials were not the right way to address asserted misconduct in the midst of a national security crisis.
Mr. Tanvir’s lawyers say his case is different, because the 1993 law specifically authorizes lawsuits against government officials for “appropriate relief,” which they say includes claims for money.
Prominent law professors and religious groups have filed briefs supporting Mr. Tanvir, but the earlier rulings suggest that he faces an uphill fight in his case, Tanzin v. Tanvir, No. 19-71.
In a Supreme Court brief, the administration urged the justices not to interfere with its efforts to protect the nation.
“The allegations in this lawsuit concern purported efforts by F.B.I. agents to obtain assistance from respondents in connection with investigations into potential terrorist or criminal activity, including by noncitizens,” the brief said. “The investigations thus implicated both national security and immigration, core powers of the executive branch.”
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