Mack v Yost Brief Amici Curiae in Support of Plaintiff-Appellant

    No. 21-2472

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

Charles Mack,

Plaintiff-Appellant,

v.

John Yost, et al.

Defendants-Appellees.

On Appeal from the United States District Court for the Western District of 
Pennsylvania, No. 3:10-cv-264-KRG (Gibson, J.)

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND RIGHTS BEHIND BARS IN SUPPORT

OF PLAINTIFF-APPELLANT

Samuel Weiss 
Rights Behind Bars 
416 Florida Avenue NW, 
#26152
Washington, DC 20001 
(202) 455-4399

Samuel Spital 
Adam Murphy 
NAACP Legal Defense 
and Educational 
Fund, Inc.
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200

Christopher Kemmitt 
Michael Skocpol 
NAACP Legal Defense 
and Educational 
Fund, Inc.
700 14th St. NW, Ste 600 
Washington, DC 20005 
(202) 682-1300



CORPORATE DISCLOSURE STATEMENT

Pursuant to Third Circuit Local Appellate Rule 26.1.1 and Federal Rule of 

Appellate Procedure 26.1, amici curiae hereby certify that they have no parent 

corporations and that no publicly held corporations own 10% or more of their stock.

i



TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT.............................................................i

TABLE OF AUTHORITIES........................................................................................iii

STATEMENT OF INTEREST OF AMICI CURIAE................................................. 1

INTRODUCTION............................................................  3

ARGUMENT...................................................................................................................6

I. Defendants Are Not Entitled to Qualified Immunity Because They Had Fair
Warning That Their Conduct Was Unlawful......................................................... 6

II. Defendants Are Not Entitled to Raise a Qualified Immunity Defense Under
RFRA.........................................................................................................  9

A. Qualified immunity’s doctrinal foundations are Section 1983 and Bivens-
specific............................................................................................................. 10

i. Qualified immunity’s original justifications are particular to Section
1983 actions against state officials......................................................... 10

ii. Qualified immunity was extended to certain claims against federal
officials—all involving implied causes of action..................................13

B. RFRA’s express cause of action has no qualified immunity provision, and
it would frustrate Congress’s design to import one..................................... 16

C. Even in the contexts where it already applies, modem qualified immunity
doctrine has been widely criticized...............................................................23

CONCLUSION.................................................   27

CERTIFICATE OF COMPLIANCE.......................................................................... 29

CERTIFICATE OF BAR MEMBERSHIP.................................................................29

CERTIFICATE OF VIRUS SCAN............................................................................ 29

CERTIFICATE OF IDENTICAL COMPLIANCE OF BRIEFS.............................29

CERTIFICATE OF SERVICE...........................................    31

n



TABLE OF AUTHORITIES

Page(s)

Cases

Pauley ex rel. Asatru/Odinist Faith Cmty. v. Samuels,
No. l:15-cv-158, 2019 WL 4600195 (W.D. Pa. Sept. 23, 2019)....................... 21

Bell v. Dean,
No. 2:09-cv-1082, 2010 WL 2976752 (M.D. Ala. July 27, 2010)..................... 23

Bivens v. Six Unknown Named Agents o f the Fed. Bureau o f 
Narcotics,
403 U.S. 388 (1971)....................................... ................................................ ........13

Brosseau v. Haugen,
543 U.S. 194 (2004) (per curiam)............................................................................ 6

Buckley v. Fitzsimmons,
509 U.S. 259 (1993)........................................................................ ............. ...11,22

Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014).................................... ..................................................... 16, 20

Butz v. Economou,
438 U.S. 478 (1978).................................................................................................13

Crawford-El v. Britton,
523 U.S. 574 (1998) (Scalia, J., dissenting).........................................................26

Davis v. Scherer,
468 U.S. 183 (1984).................................................................................................14

District o f Columbia v. Wesby,
138 S. Ct. 577 (2018)................................................................................................6

Emp. Division v. Smith,
494 U.S. 872 (1990).............................................................................   20

Ferguson v. McDonough,
13 F.4th 574 (7th Cir. 2021)..................

iii

1



Forrester v. White,
484 U.S. 219 (1988).................................................................................................24

Harlow v. Fitzgerald,
457 U.S. 800 (1982)...........................................................................................14, 15

Harrison v. Watts,
609 F. Supp. 2d 561 (E.D. Va. 2009).................................................................... 21

Holt v. Hobbs,
574 U.S. 352 (2015).................................................................................................20

Hope v. Pelzer,
536 U.S. 730 (2002)...........................................................................................6, 7, 8

Horvath v. City o f Leander,
946 F.3d 787 (5th Cir. 2020) (Ho, J., concurring)................................................ 26

Jacobs v. Cumberland Cnty.,
8 F.4th 187 (3d Cir. 2021)...............................................................................passim

Jamison v. McClendon,
476 F. Supp. 3d 386 (S.D. Miss. 2020) (Reeves, J . ) ............................................27

Kane v. Barger,
902 F.3d 185 (3d Cir. 2018)..................................................................................... 7

Kisela v. Hughes,
138 S. Ct. 1148 (2018) (Sotomayor, J., dissenting)..............................................26

Lamie v. U.S. Trustee,
540 U.S. 526 (2004).................................................................................................19

Lyng v. Nw. Indian Cemetery Protective Ass ’n.,
485 U.S. 439 (1988)................................................................................................. 8

Malley v. Briggs,
475 U.S. 335 (1986).................................................................................... 11,22, 23

Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803).................................................................................26

The Marianna Flora, 24 U.S. (11 Wheat.) 1 (1826)................................................. 25

IV



Monroe v. Pape,
365 U.S. 167 (1961)...........................................................................................10, 22

O ’Connor v. Donaldson,
422 U.S. 563 (1975).................................................................................................. 12

Owen v. City o f  Independence,
445 U.S.’622 (1980)...........................................................................................11,24

Patsy v. Bd. o f  Regents o f  Fla.,
457 U.S. 496 (1982).................................................................................................. 10

Pierson v. Ray,
386 U.S. 547 (1967)............................................................................................11,22

Procunier v. Navarette,
434 U.S. 555 (1978).................................................................................................. 12

Rasul v. Myers,
563 F.3d 527 (D.C. Cir. 2009) (per curiam)..........................................................21

Richardson v. McKnight,
521 U.S. 399 (1997)..............................................   24

Romero v. Lappin,
No. lO-cv-35, 2011 WL 3422849 (E.D. Ky. Aug. 4, 2011)................................ 21

Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364 (2009)......................................................     7

Samuel v. Holmes,
138 F.3d 173 (5th Cir. 1998).................................................................................. 23

Scheuer v. Rhodes,
416 U.S. 232 (1974)..................... .....................................................................12, 24

Schneyder v. Smith,
653 F.3d 313 (3d Cir. 2011).............................................................................5, 6, 7

Sherbert v. Verner,
374 U.S. 398 (1963) 8



Tanzin v. Tanvir,
141 S. Ct. 486 (2020).................................................................................. 16, 18, 19

Taylor v. Riojas,
141 S. Ct. 52 (2020) (per curiam).....................................................................1, 6, 7

Thacker v. Term. Valley Auth.,
139 S. Ct. 1435 (2019)..... ........................... ...................................................... .....17

United States v. Lanier,
520 U.S. 259(1997)..................................................................................................6

Vette v. Sanders,
989 F.3d 1154 (10th Cir. 2021)...... ......................................................................... 1

Whitman v. Am. Trucking As s ’ns, Inc.,
531 U.S. 457 (2001)................................................................................................. 19

Wilkie v. Robbins,
551 U.S. 537 (2007).................................................................................................. 18

Williams v. Bitner,
455 F.3d 186 (3d Cir. 2006)............................................................................. 5, 6, 7

Wood v. Strickland,
420 U.S. 308 (1975).............................................................   12

Wyatt v. Cole,
504 U.S. 158 (1992) (Kennedy, J., concurring)................................................... 26

Zadeh v. Robinson,
902 F.3d 483 (5th Cir. 2018) (Willett, J., concurring)........................................ 26

Ziglar v. Abbasi,
137 S. Ct. 1843 (2017)..................................................................................... .passim

Statutes

28 U.S.C.A. §§§ 2679, 2671, 2680...............................................................................17

28U.S.C. § 2680............................................................................................................ 17

31 U.S.C. § 3730(h).......................................................................................................23

vi



42 U.S.C. § 1983..................................................................................   .passim

42 U.S.C. § 2000bb....................................................................................................... 20

42 U.S.C. § 2000bb-l(a).............................................................................................. 19

42 U.S.C § 2000bb-l(b)........................................................................................... 8, 20

42 U.S.C. § 2000bb-l(c)..............................................................................................20

42 U.S.C. § 2000bb(b).................................................................................................. 16

42 U.S.C. § 2000bb(b)(l)...........................   20

Other Authorities

Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117 (2009)................... 27

Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37
Seattle U. L. Rev. 939 (2014)......................"..........................................................13

Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre
Dame L. Rev. 1797 (2018)............................................................................... 25, 27

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885
(2014).................................................................................................................. 24, 25

John S. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law,
109 Yale L.J. 89(1999)........................................................................................... 27

Katherine Mims Crocker, Qualified Immunity and Constitutional 
Structure,
117 Mich. L. Rev. 1405 (2019)...............................................................................14

Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003).................... 25

Qualified Immunity: A Legal, Practical, and Moral Failure, Cato Inst.
(Sept. 14, 2020), https://www.cato.org/policy-analysis/qualified- 
immunity-legal-practical-moral-failure........................................................   27

Qualified Immunity, Equal Just. Initiative,
https://eji.org/issues/qualified-immunity (last visited Nov. 8, 2021)..................27

vii



William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45
(2018)............................................. .............................................................. 10,25,27

William N. Eskridge, Jr., Public Values in Statutory Interpretation,
137 U. Pa. L. Rev. 1007 (1989)..... ........................................................... 11, 12, 22



STATEMENT OF INTEREST OF AMICI CURIAE1

The NAACP Legal Defense & Educational Fund, Inc. (LDF) strives to secure 

equal justice under the law for all Americans, and to break down barriers that prevent 

African Americans from realizing their basic civil and human rights. LDF has a 

longstanding concern with the doctrine of qualified immunity, which denies redress 

to deserving civil rights plaintiffs and insulates government officials from the 

consequences of their unconstitutional behavior. LDF’s recent advocacy in this area 

includes representing plaintiffs in direct appeals including Ferguson v. McDonough, 

13 F.4th 574 (7th Cir. 2021), and Vette v. Sanders, 989 F.3d 1154 (10th Cir. 2021), 

and filing amicus briefs in other cases, including Taylor v. Rioj'as, 141 S. Ct. 52 

(2020) (per curiam).

Amicus curiae Rights Behind Bars (“RBB”) legally advocates for people in 

prison to live in humane conditions and contributes to a legal ecosystem in which 

such advocacy is more effective. RBB seeks to create a world in which people in 

prison do not face large structural obstacles to effectively advocating for themselves 

in the courts. RBB helps incarcerated people advocate for their own interests more

1 This brief has not been authored, in whole or in part, by counsel to any party in this 
appeal. No party or counsel to any party contributed money intended to fund 
preparation or submission of this brief. No person, other than the amici or their 
counsel, contributed money that was intended to fund preparation or submission of 
this brief. Plaintiff-Appellant and Defendants-Appellees consented to the filing of 
this brief.

1



effectively and through such advocacy push towards a world in which people in 

prison are treated humanely.

2



INTRODUCTION

This appeal turns on two recurring misunderstandings about qualified 

immunity that lead courts to misapply the defense and contravene its core purposes 

and justifications. The first is the common fallacy that law is “clearly established” 

for purposes of qualified immunity only when a case with indistinguishable facts is 

already on the books. That misunderstanding led the district court to let these 

Defendants escape liability for illegal conduct simply because that misconduct was 

unusually brazen, even though any reasonable officer in their shoes would have 

known that they were breaking the law. The second is the misapprehension that 

qualified immunity is a free-floating defense of universal applicability, to which 

black-letter principles of statutory interpretation and judicial restraint do not apply. 

That mistaken premise led the district court to unknowingly undertake an 

unwarranted extension of the qualified immunity doctrine.

That latter error-—which the bulk of this brief addresses, in Part II—relates to 

an often-overlooked issue that is unresolved in the Third Circuit: does qualified 

immunity extend to express statutory causes of action outside the heartland of 

Section 1983 and Bivens where the doctrine originated? The key point is that the 

Supreme Court has never endorsed applying qualified immunity to modem 

legislation like the Religious Freedom Restoration Act (RFRA), whose statutory text 

contains a freestanding and express cause of action for individual damages. The

3



Supreme Court has only applied the doctrine in three limited and interconnected 

contexts; the broad universe of claims that arise under 42 U.S.C. § 1983 (Section 

1983); claims under the parallel, judicially implied Bivens cause of action; and a tiny 

handful of similar judicially implied statutory causes of action. By implying 

qualified immunity into a modern statute that Congress chose to imbue with an 

express and unqualified cause of action for damages, the district court’s decision to 

entertain the defense in a RFRA action overstepped the judicial role and upended 

important separation of powers principles.

Extending the doctrine to RFRA would also overlook important differences 

between RFRA and Section 1983, where qualified immunity originated and is 

typically applied. Fhe Supreme Court relied on Section 1983’s broad contours and 

unique history in grafting a common law-inspired defense onto Section 1983. But 

the judiciary has no comparable latitude when it comes to RFRA, a modem statute 

characterized by exacting text, a specific purpose, and a lone carefully calibrated 

textual exception at its heart. Congress enacted RFRA to correct a perceived 

underenforcement of religious freedoms, and it accordingly guarantees more 

protection than ordinary constitutional litigation would afford. It defies Congress’s 

design to imply into this statute a sweeping immunity carve-out that would nullify 

that guarantee in a broad swath of cases. Stretching a widely condemned and

4



disfavored doctrine is inconsistent with Supreme Court precedent, especially when 

doing so would nullify the letter and spirit of legislative action.

The district court’s more basic error—misunderstanding qualified immunity 

doctrine to require matching facts—is one this Court has expounded on before. See, 

e.g., Jacobs v. Cumberland Cnty., 8 F.4th 187, 196-97 (3d Cir. 2021); Schneyder v. 

Smith, 653 F.3d 313, 329-30 (3d Cir. 2011); Williams v. Bitner, 455 F.3d 186, 191— 

94 (3d Cir. 2006). As we begin by explaining in Part I, the district court misapplied 

settled law when it granted immunity for the plainly illegal conduct at issue here. 

The district court reasoned that it could not find a prior case quite like this one— 

where Defendants suppressed the plaintiffs religious exercise through a campaign 

of harassment and cruelty that even included a prison guard telling Charles Mack, 

the Muslim Plaintiff in this case, “there is no good Muslim except a dead Muslim.” 

But qualified immunity is not a spot-the-difference logic game. It simply requires 

that government officials have fair warning their conduct is illegal. That a court has 

never considered whether religiously motivated bullying from prison guards like 

“there is no good Muslim except a dead Muslim” burdens free exercise or comports 

with strict scrutiny is a testament to the easiness of the legal question, not its 

difficulty. If the fair warning test cannot be satisfied in egregious outlier cases, then 

the qualified immunity defense will be most insurmountable where it least belongs.

5



ARGUMENT

I. Defendants Are Not Entitled to Qualified Immunity Because They 
Had Fair Warning That Their Conduct Was Unlawful.

The doctrine of qualified immunity requires that officers be provided fair 

warning before a court may hold them liable for constitutional violations. While fair 

warning is most often provided by factually similar precedent clearly establishing 

the unlawfulness of the conduct, an official’s conduct may also be so “obvious[ly]” 

illegal that no such “body of relevant ease law” is necessary. Brosseau v. Haugen, 

543 U.S. 194, 199 (2004) (per curiam) (applying the holding o f Hope v. Pelzer, 536 

U.S. 730, 738 (2002)). In other words, conduct may be clearly unconstitutional even 

if “the very action” has not “previously been held unl awful.” United States v. Lanier, 

520 U.S. 259, 270-71 (1997); accord Jacobs v. Cumberland Cnty., 8 F.4th 187, 196 

(3d Cir. 2021); Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011); Williams v. 

Bitner, 455 F.3d 186, 192 (3d Cir. 2006).

The Supreme Court has recently and repeatedly reaffirmed that defendants 

whose conduct is obviously unconstitutional are ineligible for qualified immunity, 

even on novel facts. See, e.g., Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam) 

(reversing a grant of qualified immunity where “the particularly egregious facts” 

meant that “any reasonable officer should have realized” their conduct was 

unlawful); District o f  Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (reiterating 

that unlawfulness can be clearly established “even though existing precedent does

6



not address similar circumstances”). This Court, too, has long made clear that 

qualified immunity is unavailable for conduct “so patently violative . . . that 

reasonable officials would know without guidance from a court.” Schneyder v. 

Smith, 653 F.3d at 330; see also, e.g., Kane v. Barger, 902 F.3d 185, 195 (3d Cir. 

2018) (“The right here is so ‘obvious’ that it can be deemed clearly established even 

without materially similar cases.”); Williams, 455 F.3d at 191.

This obviousness principle follows directly from the core rationale of 

qualified immunity: ensuring that defendants have fair notice before they are held 

liable. See Hope, 536 U.S. at 739-40 & n.10; Taylor, 141 S. Ct. at 54; Jacobs, 8 

F.4th at 196. Patently unconstitutional conduct is by its nature less likely to lead to 

the development of precedent to serve as clearly established law. Safford Unified 

Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377-78 (2009). Because such conduct is 

obviously unconstitutional, officials are— or should be—less likely to perpetrate it. 

“[0]utrageous conduct obviously will be unconstitutional, this being the reason . . . 

that the easiest cases don’t even arise.” Id. (internal quotation marks and brackets 

omitted)). If the law were otherwise, the most flagrant rights violators would be the 

most immune.

The district court lost sight of this principle when it granted qualified 

immunity here. No reasonable correctional officer would have thought that it was 

permissible to taunt a Muslim man under his custody that “there is no good Muslim

7



except a dead Muslim”; physically slap onto his back a sticker that says, “I love pork 

bacon”; kick over boxes to disrupt his prayers; and then fire him from his job because 

of his religion. 1 J.A. 9-10. The “obvious cruelty inherent in” this alleged conduct 

should have put defendants on notice that their actions violated Mack’s rights. See 

Hope, 536 U.S. at 745; Jacobs, 8 F,4th at 197 (applying Hope to hold that 

“gratuitous” abuse “divorced from any legitimate penological purpose” is clearly 

unlawful). To put common sense in RFRA terms, it was obvious that Defendants’ 

campaign of harassment and pretextual termination “substantially burdenjed]” Mr. 

Mack’s exercise of his religion, and that their conduct could not further any 

legitimate “governmental interest” (much less a “compelling” one). 42 U.S.C § 

2000bb-l(b).

Instead of applying the obviousness principle, the district court granted 

qualified immunity because at the time Defendants bullied and harassed Mr. Mack, 

the relevant case law did not specifically address the substantial burdens caused by 

overt religiously motivated bullying and harassment, and instead focused on dietary 

restrictions that substantially burdened prisoners’ religion. 1 J.A. 15. But Supreme 

Court precedent in Sherbert v. Verner, 374 U.S. 398, 404 (1963)—the very case 

RFRA codified— and in Lyng v. Nw. Indian Cemetery Protective A ss’n., 485 U.S. 

439, 450 (1988), had long established that even “incidental interference” and 

“indirect coercion” that prohibit the free exercise of religion violated the First

8



Amendment. The Defendants’ conduct here plainly violated these established legal 

principles and went well beyond “indirect coercion” or “incidental interference.” 

The district court readily acknowledged that a “different result would, of 

course, be reached if the conduct at issue were to have occurred today.” 1 J.A. 16 

n.8. But in granting qualified immunity on such a hairsplitting basis, the court 

ignored the simple fact that this is not an edge case; the glaring illegality of 

Defendants’ conduct placed it “nowhere near the hazy border” where qualified 

immunity is meant to apply, in 2009 no less than today. See Jacobs, 8 F.4th at 197 

(citation and quotation marks omitted). Defendants had fair warning that their 

conduct was illegal. For that reason, they are not entitled to qualified immunity.

II. Defendants Are Not Entitled to Raise a Qualified Immunity Defense 
Under RFRA.

There is another, more fundamental, reason why qualified immunity should 

be denied in this case: Qualified immunity is not available under RFRA. RFRA is a 

modem statute intended to provide robust protection for civil rights that nowhere 

mentions the sweeping defense, which would undermine its text and purpose. 

Because the historical evolution of the qualified immunity doctrine provides 

important context for understanding why the district court erred on this point, we 

begin by reviewing key aspects of the doctrine’s origins in Section 1983 and 

subsequent expansion to Bivens and related causes of action. We later conclude by

9



highlighting some recent criticisms of the doctrine that confirm the wisdom of 

declining to extend it into this new domain.

A. Qualified immunity’s doctrinal foundations are Section 1983 and 
/Ihcns-specific.

i. Qualified immunity’s original justifications are particular to 
Section 1983 actions against state officials.

The story of qualified immunity begins with Section 1983. During 

Reconstruction, Congress enacted the provision of the Civil Rights Act of 1871 now 

codified at 42 U.S.C. § 1983. Aiming to “combat lawlessness and civil rights 

violations in the southern states,” William Baude, Is Qualified Immunity Unlawful?, 

106 Cal. L. Rev. 45,49 (2018), Section 1983 created an open-ended statutory vehicle 

for enforcing federal law that granted federal courts new and previously unheard-of 

power over state officials. See Monroe v. Pape, 365 U.S. 167 (1961); Patsy v. Bd. o f  

Regents o f  Fla., 457 U.S. 496, 503 (1982). This revolutionary extension of federal 

power occurred at a time when the common law and common-law modes of judging 

were ascendant. See Guido Calabresi, A Common Law for the Age of Statutes 1 

(1982) (noting American law’s modem evolution away “from a legal system 

dominated by the common law”). Section 1983 effectively created an open-ended 

system of “supplementary” federal constitutional torts, see Monroe, 365 U.S. at 183, 

one that was “directly analogous to an arena of vast common law experience,”

10



William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. Pa. L. 

Rev. 1007, 1054(1989).

The defense to Section 1983 claims that we now know as “qualified 

immunity” grew out of that history. The common law of 1871 permitted police 

officers to defend against a tort claim for false arrest or false imprisonment by 

showing that “they acted in good faith and with probable cause.” Pierson v. Ray, 386 

U.S. 547, 555 (1967). In 1967, the Supreme Court started down the path to modern 

qualified immunity doctrine when it first recognized an analogous defense to a 

Fourth Amendment claim under Section 1983. It reasoned that if Congress in 1871 

had meant to foreclose established common-law defenses, someone presumably 

would have mentioned that expectation somewhere in the legislative debates. See id. 

at 554-55. In other words, the justification for qualified immunity turned on whether 

a comparable common-law defense was “well established in 1871, when § 1983 was 

enacted.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)). In the Court’s view, 

historical expectations from the time Section 1983 was enacted, and the Court’s 

interpretation of the statute’s legislative history, justified the anomalous act of 

reading a defense into a statute that “on its face does not provide for any 

immunities.” Malley v. Briggs, 475 U.S. 335, 342 (1986); accord Owen v. City o f  

Independence, 445 U.S. 622, 635 (1980).

11



The Court subsequently extended the defense to Section 1983 actions against 

the full range of state and local officials in Scheuer v. Rhodes, 416 U.S. 232 (1974) 

and other cases.2 Scheuer represented a significant early expansion of the doctrine, 

declaring the defense applicable to the entire executive branch of a state government, 

including “higher officers.” 416 U.S. at 246. That case reemphasized the defense’s 

foundations in the legislative history of Section 1983 and historical common law. 

See id. at 243-45. And while explicit “policy consideration^]” began playing a role 

from that point forward, Scheuer still justified making the defense more broadly 

available within the bounds of Section 1983 in part by analogizing to “the somewhat 

parallel context of the privilege of public officers from [common law] defamation 

actions.” See id. at 241-42.

That is how qualified immunity became a “special exemption from the 

categorical remedial language of Section 1983.” Wood, 420 U.S. at 322. This 

reasoning bears little resemblance to interpretation of RTRA and other contemporary 

statutes, which requires disciplined adherence to statutory text. That is because 

Section 1983 is an “older, generally worded” statute that Congress “substantially left 

to Courts to develop,” which “resulted in an unusual amount of gapfilling based upon 

common law values.” Eskridge, supra, at 1052, 1054. Thus, even absent any specific

2 See Wood v. Strickland, 420 U.S. 308, 318 (1975) (local school administrators); 
O ’Connor v. Donaldson, 422 U.S. 563 (1975) (superintendent of a state hospital); 
Procunier v. Navarette, 434 U.S. 555 (1978) (state prison administrators).

12



grounding in the text of Section 1983, the foundational qualified immunity 

jurisprudence remained rooted in Section 1983’s particular purpose and history. See 

Ilan Wurman, Qualified Immunity and Statutory Interpretation, 37 Seattle U. L. Rev. 

939, 953-54 (2014).

ii. Qualified immunity was extended to certain claims against 
federal officials— all involving implied causes of action.

While qualified immunity was taking shape under Section 1983, the Supreme 

Court recognized an analogous damages remedy for constitutional violations 

committed by federal officials. See Bivens v. Six Unknown Named Agents o f  the Fed. 

Bureau o f  Narcotics, 403 U.S. 388 (1971). Like the qualified immunity defense 

under Section 1983, the court-crafted Bivens cause of action was not grounded in 

statutory text—or indeed in any congressional legislation at all. See Ziglar v. Abbasi, 

137 S. Ct. 1843, 1854-57 (2017).

The Supreme Court extended qualified immunity to this new Bivens context 

in Butz v. Economou, 438 U.S. 478 (1978). Fine-tuning a remedy of its own design, 

the Court in Butz pursued the explicit policy goal of calibrating Bivens to parallel 

Section 1983 as closely as possible. See id. at 496-504. It was “untenable to draw a 

distinction for purposes of immunity law between suits brought against state officials 

under § 1983 and suits brought directly under the Constitution against federal 

officials.” Id. at 504. Butz was the first time the Court applied qualified immunity 

outside the bounds of Section 1983.

13



Then came Harlow v. Fitzgerald, 457 U.S. 800 (1982), another Bivens case, 

which turned out to be an important milestone in the evolution of qualified 

immunity. Using the explicitly policy-driven reasoning characteristic of Bivens, the 

Court eliminated part of the defense that had previously required subjective good 

faith by the defendant. Harlow’’s new qualified immunity defense turned solely on 

“the objective reasonableness of an official’s conduct, as measured by reference to 

clearly established law.” Id. at 818.

With Blitz having stated that daylight between Bivens and Section 1983 would 

be “untenable,” the new purely objective conception of the defense boomeranged 

back to Section 1983. See Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (citing 

Butz)\ Katherine Mims Crocker, Qualified Immunity and Constitutional Structure, 

117 Mich. L. Rev. 1405, 1432-33 (2019). Ever since, the qualified immunity test 

outlined by Harlow “has remained the analytical reference point” for the muscular 

version of the defense that prevails in both contexts today. Id. at 1414. That 

refashioning of the defense is Harlow's focus and primary legacy.

But one peripheral feature of Harlow matters here, too. Although Harlow 

focused almost exclusively on a constitutional Bivens claim, the underlying suit also 

involved two additional claims derived from two disparate federal statutes: 18 

U.S.C. § 1505, a criminal statute prohibiting obstruction of Congressional testimony, 

and 5 U.S.C § 7211, which “provides generally that the right of employees to furnish

14



information” to Congress “may not be interfered with or denied.” Harlow, 457 U.S. 

at 805 & n.10 (internal quotation marks and alterations omitted). As Harlow 

emphasized, “Neither [statute] expressly create [d] a private right to sue for 

damages.” Id. at 805 n.10. So, any claimed causes of action would necessarily have 

to be implied into the statute by the court—much like the Bivens remedy. Such 

implied statutory causes of action were rapidly falling out of favor at this time, see 

Ziglar, 137 S. Ct. at 1855-56, and indeed the Harlow court viewed these claimed 

causes of action skeptically, see 457 U.S. at 820 n. 36. Nevertheless, their presence 

led the Court in Harlow to describe qualified immunity as protecting government 

officials “insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Id. at 818 

(emphasis added).

Relying on this “statutory or constitutional” formulation from Harlow, some 

lower courts have treated qualified immunity as a defense that is broadly applicable 

throughout the entire United States Code, regardless of the nature of the statute or 

cause of action at issue. See infra, at 21-22. But neither Harlow nor any other 

precedent that binds this Court supports such a sweeping reconceptualization of 

qualified immunity. In fact, the Supreme Court has only applied the doctrine in the 

specific, readily explicable contexts described here: first and foremost, the wide 

range of claims against state officials that may arise under Section 1983 itself; next,

15



claims against federal officials arising under the judicially crafted Bivens remedy; 

and finally, the two Bivens-like implied statutory causes of action in Harlow. The 

Supreme Court has never endorsed applying qualified immunity to a federal statute 

in which Congress conferred a freestanding express cause of action .

B. RFRA’s express cause of action has no qualified immunity 
provision, and it would frustrate Congress’s design to import one.

Now consider RFRA. RFRA is a modem statute first enacted in 1993 and 

most recently revised to apply only to the federal government in 2000. See Burwell 

v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693-96 (2014). It has the express purpose 

of providing greater and more exacting protection from government interference 

with the free exercise of religion than the First Amendment alone provides. See 42 

U.S.C. § 2000bb(b). And unlike any statute to which the Supreme Court has ever 

extended qualified immunity, its text expressly provides a cause of action to recover 

individual-capacity damages from federal officials who violate the statute. See 

Tanzin v. Tanvir, 141 S. Ct. 486 (2020).3

What RFRA does not include anywhere in its text is a qualified immunity 

defense to that cause of action. That silence speaks volumes. If Congress had wanted

3 Congress authorized individual-capacity damages under RFRA’s private cause of 
action by conferring a right to obtain any “appropriate relief’— including damages— 
“against a government,” while also specifying that individual federal officers are 
included in the statutory definition of “government.” Tanzin, 141 S. Ct. at 489-90.

16



to limit the scope of the remedy it was creating with a broad immunity exception, it 

would have said so.

That is the lesson of other modem legislation through which Congress, 

exercising its power of the purse, has sought to provide compensation for individuals 

harmed by the federal government. In other contexts where Congress has expressly 

made damages recoverable from the federal government or its agents, it specifies 

exceptions and defenses that should be available and expects courts to hew to those 

judgments. See, e.g., 28 U.S.C.A. §§§ 2679, 2671, 2680. For example, the Federal 

Tort Claims Act—which provides a damages remedy for non-constitutional torts 

committed by federal officers— is subject to a long list of express “exceptions,” 

including some that explicitly codify pre-existing or common-law immunities. See 

28 U.S.C. § 2680. Similarly, the Supreme Court has repeatedly explained that 

express “sue-and-be-sued” clauses waiving sovereign immunity for certain federal 

entities must be “liberally construed” to avoid imposing unwelcome “implied 

restriction^]” on Congress’ legislative judgment to offer compensatory damages. 

Thacker v. Tenn. Valley Auth., 139 S. Ct. 1435, 1141 (2019). Those cases recognize 

that Congress “generally intend[s] the full consequences of what it sa[ys].” Id. 

(citation and quotation omitted).

The Supreme Court’s skeptical approach to extending Bivens reflects the 

inverse of the same basic principle. In that context, the Court has instructed that

17



Congress is the proper branch of government to make policy judgments and calibrate 

remedies: ‘“ Congress is in a far better position than a court to evaluate the impact of 

a new species of litigation’ against those who act on the public’s behalf. And 

Congress can tailor any remedy to the problem perceived.” Wilkie v. Robbins, 551 

U.S. 537, 562 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 389 (1983)). In other 

words, the “substantial responsibility to determine whether, and the extent to which, 

monetary and other liabilities should be imposed upon individual officers and 

employees of the Federal Government” is entrusted to Congress, not the courts. 

Ziglar, 137 S. Ct. at 1856 (emphasis added).

RFRA’s express damages remedy is an example of Congress exercising that 

prerogative to determine that those harmed by a statutory violation should be 

compensated. And with Congress having taken that step, its omission of any 

qualified immunity defense from the statute is significant—it reflects a purposeful 

choice by Congress that courts must respect. See Tanzin, 141 S. Ct. at 492 (“Had 

Congress wished to limit the remedy to that degree, it knew how to do so.”). As 

Tanzin explained, damages are “the only form of relief that can remedy some RFRA 

violations,” so “it would be odd to construe RFRA in a manner that prevents courts 

from awarding such relief.” Idd 4

4 After making this observation and stressing the importance of heeding RFRA’s 
“textual cues,” Tanzin also mentioned in a footnote that the parties in that case had

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Importing a qualified immunity defense to RP R A would thus result “not [in] 

a construction of [the] statute, but in effect, an enlargement of it by the court, so that 

what was omitted . . . may be included,” Lamie v. U.S. Trustee, 540 U.S. 526, 538 

(2004) (quoting Iselin v. United States, 270 U.S. 245, 251 (1926)). That is especially 

true given that qualified immunity is a powerful and ubiquitously invoked defense 

that carries the potential to nullify Congress’s remedy in a broad swath of cases. Just 

as Congress does not “hide elephants in mouseholes,” see Whitman v. Am. Trucking 

A ss’ns, Inc., 531 U.S. 457, 468 (2001), it surely does not smuggle elephants in 

silence.

The structure and context of the statute confirms that Congress’ omission of 

qualified immunity from RPRA was a purposeful judgment. To begin with, the 

statute’s core operative provision is emphatic and categorical. It directs that 

“Government shall not substantially burden a person’s exercise of religion even if 

the burden results from a rule of general applicability. . .” 42 U.S.C. § 2000bb-l(a) 

(emphasis added). It then specifies that the sole “[exception” is when the 

government demonstrates that the “the burden of the person—(1) is in furtherance

not disputed the question whether qualified immunity would apply to the cause of 
action, see Tanzin, 141 S. Ct. at 492 n. *, thereby making clear that the question was 
neither presented in that case nor resolved by the Court’s decision.

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of a compelling governmental interest; and (2) is the least restrictive means of 

furthering that compelling governmental interest.” Id. § 2000bb l(b). Where the 

statute’s prohibition is violated and its exception is not met, RFRA promises a 

remedy: “A person whose religious exercise has been burdened in violation of this 

section may assert that violation . . .  in a judicial proceeding and obtain appropriate 

relief. . .” 42 U.S.C. § 2000bb-l(c).5

Moreover, “Congress enacted RFRA in order to provide greater protection for 

religious exercise than is available under the First Amendment.” Holt v. Hobbs, 574 

U.S. 352, 357 (2015). By overriding Employment Division v. Smith, 494 U.S. 872 

(1990), and codifying the compelling interest test of earlier caselaw, see 42 U.S.C. 

§ 2000bb, RFRA effectuated “a complete separation from First Amendment case 

law.” Burwell, 573 U.S. at 696. RFRA declares its purpose “to guarantee” the new 

extraconstitutional test “in all cases where free exercise of religion is substantially 

burdened.” 42 U.S.C. § 2000bb(b)(l) (emphasis added). And Congress even 

mandated that RFRA “‘be construed in favor of a broad protection of religious 

exercise, to the maximum extent permitted by [its] terms.’” Burwell, 573 U.S. at 696 

(quoting 42 U.S.C. § 2000cc-3(g)). These strong remedial purposes corroborate that

5 RFRA’s function of making even some “neutral” actions that burden religion 
unlawful, also demonstrates the deep protection the statute was meant to provide. 
“Laws ‘neutral’ toward religion may burden religious exercise as surely as laws 
intended to interfere with religious exercise. 42 U.S.C. § 2000bb(a)(2).

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Congress would not have wanted the sweeping defense of qualified immunity to 

counteract the statute.

The district court had no sound basis for concluding otherwise. It recognized 

that this Court’s precedent has not extended qualified immunity to RFRA, but 

followed other cases seeming to do so. See 1 J.A. 13. But the cases that the district 

court relied on when extending qualified immunity to RFRA contain little or no 

reasoned analysis. See 1 J.A. 13 (citing Njos v. Carney, No. 3:12-CV-01375, 2017 

WL 3224816, at *8 (M.D. Pa. June 21, 2017) (collecting cases), which then cites 

Davila v. Gladen, 111 F.3d 1198, 1209 (11th Cir. 2015); Walden v. Ctrs. fo r  Disease 

Control & Prevention, 669 F.3d 1277, 1285 (11th Cir. 2012); Lebron v. Rumsfeld, 

670 F.3d 540, 557 (4th Cir. 2012); Weinberger v. Grimes, No. 07-6461, 2009 WL 

331632, at *5 (6th Cir. Feb. 10, 2009)).6 And a number of other courts cite Harlow's 

“clearly established statutory or constitutional rights” language as justification for 

applying qualified immunity to RFRA claims.7 But, as explained above, Harlow 

does not support extending qualified immunity to RFRA or other express damages

6 See also Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (per curiam) 
(applying qualified immunity to a RFRA claim for “the reasons stated in” a vacated 
prior opinion, which concluded that plaintiff “waived any argument to the contrary” 
and noted “some uncertainty about whether qualified immunity is available to 
federal officials sued under RFRA,” 512 F.3d 644, 676 n.5 (Brown, J., concurring)).

7 See, e.g., Pauley ex rel. Asatru/Odinist Faith Cmty. v. Samuels, No. 1:15-cv-l58, 
2019 WL 4600195, at *11, *12 n.10 (W.D. Pa. Sept. 23, 2019); Romero v. Lappin, 
No. 10-cv-35, 2011 WL 3422849, at *2 (E.D. Ky. Aug. 4, 2011); Harrison v. Watts, 
609 F. Supp. 2d 561, 574-75 (E.D. Va. 2009). ’

21



remedies because Harlow concerned only implied rights of action. See supra, at 14- 

15.

Moreover, such cursory treatment overlooks the key differences among 

Section 1983, Bivens, and typical federal statutes. From a distinct historical 

backdrop, Section 1983 created an entire new species of constitutional torts against 

state officials; it is characterized by its “broad[j” ambitions and open-ended “general 

language.” Monroe, 365 U.S. at 174, 183. Thus, Courts have assumed an “unusual” 

central role in implementing the statute and filling in its contours. See Eskridge, 

supra, at 1054. That role has included creating and expanding the doctrine of 

qualified immunity, which—though much-criticized, see infra, Part II.C— at least 

has some grounding in the common law at the time of Section 1983’s enactment. 

See Pierson, 366 U.S. at 556; Buckley, 509 U.S. at 268.

The rules of engagement, however, are quite different when dealing with 

modem congressional statutes that are focused on bounded subject matter and 

elaborate on their intended operation in the text. When interpreting this kind of 

legislation, the judiciary does not have the same latitude to fashion rules and add 

defenses, particularly when doing so would rob the statute of its stated intention by 

inserting an unwritten exemption from liability that would be available “to all but 

the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. 

at 341.

22



Courts have recognized and honored this limitation on qualified immunity in 

the context of comparable legislation, namely the False Claims Act (FCA)’s anti­

retaliation provision, 31 U.S.C. § 3730(h). See Samuel v. Holmes, 138 F.3d 173, 178 

(5th Cir. 1998). Holmes refused to extend qualified immunity to claims arising under 

§ 3730(h) because the doctrine “seems particularly ill-suited in this context” and 

“appears inconsistent with the purposes behind the statute.” Id. at 178-79; see also 

Bell v. Dean, No. 2:09-cv-1082, 2010 WL 2976752, at *2 (M.D. Ala. July 27, 2010) 

(holding the same because “applying the judicially created doctrine of qualified 

immunity to bar [damages] would seem at odds with [§ 3730(h)’s] purpose”). For 

all the reasons discussed here, that logic applies with even greater force to RFRA. 

To read in such a sweeping defense to the RFRA’s categorical protections would 

eviscerate the statute and upend the separation of powers.

C. Even in the contexts where it already applies, modern qualified 
immunity doctrine has been widely criticized.

Should the court harbor any doubt on this score, mounting criticisms of the 

qualified immunity doctrine are good reason to err against extending qualified 

immunity even further into RFRA. Since Harlow, qualified immunity has drifted 

further into “freewheeling policy choice,” Malley, 475 U.S. at 342, unmoored from 

the common-law antecedents of Section 1983. That drift has led to sustained 

criticism of the doctrine.

23



To begin with, the policy justifications that fueled the expansion of the 

doctrine have been undermined by experience. Modern qualified immunity doctrine 

is primarily justified by the purported need to protect officials from financial liability 

to avoid chilling the exercise of their duties. See, e.g., Scheuer, 416 U.S. at 240. The 

theory is that “fwjhen officials are threatened with personal liability for acts taken 

pursuant to their official duties, they may well be induced to act with an excess of 

caution or otherwise to skew their decisions.” Forrester v. White, 484 U.S. 219, 223 

(1988). Where these policy considerations seemed not to be implicated, the Court 

has declined to extend the defense. See Richardson v. McKnight, 521 U.S. 399, 411 

(1997); Owen, 445 U.S. at 654.

As it turns out, these policy concerns are not empirically valid even where 

qualified immunity already does apply. The reason is the nearly universal practice 

of indemnifying government employees, which means that individual officials are 

almost never financially responsible. As Professor Joanna C. Schwartz found in one 

recent wide-ranging empirical study, “officers financially contributed to settlements 

and judgments in just .41% o f . . .  civil rights damages actions resolved in plaintiffs’ 

favor, and their contributions amount to just .02%” of the damages paid. Joanna C. 

Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890, 912-13, 936-37 

(2014). In 37 smaller jurisdictions tracked in the study, officers “never contributed 

to settlements or judgments in lawsuits brought against them.” Id. at 890. In most

24



jurisdictions, “officers are more likely to be struck by lightning than they are to 

contribute to a settlement or judgment.” Id. at 914 (emphasis added).8

Moreover, the original common-law justifications for applying qualified 

immunity under Section 1983 similarly have been called into doubt. The historical 

record reveals that “lawsuits against officials for constitutional violations did not 

generally permit [even] a good-faith defense during the early years of the Republic.” 

Baude, supra, at 55-58. Instead, a subjective good faith test existed for only some 

claims and even that subjective test bears no relation to the objective test invented 

by Harlow. See Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre 

Dame L. Rev. 1797, 1802 (2018). To the extent 19th Century common law included 

any protections vaguely akin to qualified immunity, the defenses were incorporated 

into the elements of a particular tort. See, e.g., The Marianna Flora, 24 U.S. (11 

Wheat.) 1 (1826). “This distinction is important because an element of a specific tort 

does not provide evidence of a more general backdrop that one would expect to 

export to other claims, let alone from common law to constitutional claims.” Baude, 

supra, at 59. In other words, it has become increasingly clear that even at common

8 The same is true of prison officials. “[I]n nearly all inmate litigation, it is the 
correctional agency that pays both litigation costs and any judgments or settlements, 
even though individual officers are the nominal defendants.” Margo Schlanger, 
Inmate Litigation, 116 Harv. L. Rev. 1555, 1675-76 (2003).

25



law there was no freestanding defense or blanket immunity doctrine anything like 

modem qualified immunity.

For those reasons— and because our legal system rests on the premise that 

“where there is a legal right, there is also a legal remedy,” Marbury v. Madison, 5 

U.S. (1 Cranch) 137, 163 (1803)— a growing choms of jurists have recognized 

serious problems with modem qualified immunity and have questioned the 

doctrine’s continued viability. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 

(2018) (Sotomayor, J., dissenting) (qualified immunity has become “an absolute 

shield for law enforcement officers”); Ziglar, 137 S. Ct. at 1871 (Thomas, J., 

concurring in part and concurring in the judgment) (“[W]e have diverged from the 

historical inquiry mandated by the statute.”); Crawford-El v. Britton, 523 U.S. 574, 

611 (1998) (Scalia, J., dissenting) (“[Ojur treatment of qualified immunity . . . has 

not purported to be faithful to the common-law immunities that existed when § 1983 

was enacted. . .”); Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., 

concurring) (“In the context of qualified immunity . . .  we have diverged to a 

substantial degree from the historical standards.”); Horvath v. City ofLeander, 946 

F.3d 787, 801 (5th Cir. 2020) (Ho, J., concurring) (“[Tjhere is no textualist or 

originalist basis to support a ‘clearly established’ requirement in § 1983 cases”); 

Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring) (“I 

write separately to register my disquiet over the kudzu-like creep of the modern

26



immunity regime. Doctrinal reform is arduous . . . But immunity ought not be 

immune from thoughtful reappraisal.”); Jamison v. McClendon, 476 F. Supp. 3d 

386, 423 (S.D. Miss. 2020) (Reeves, J.) (“Just as the Supreme Court swept away the 

mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of 

qualified immunity.”).9

The court-created doctrine of qualified immunity has been stretched to a 

breaking point. Courts should be reluctant to extend it still further, into RFRA or 

anywhere else. To be sure, this Court must adhere to precedent. But these weighty 

criticisms of existing qualified immunity doctrine are good reason to hesitate before 

extending it into an unwarranted new domain like RFRA. After all, courts should be 

loath to expand “disfavored” doctrine into new domains, especially when Congress 

has not expressly endorsed that choice. See Ziglar, 137 S. Ct. at 1857.

CONCLUSION

For the foregoing reasons, the decision below should be reversed.

9 The doctrine has also received extensive criticism from scholars, see, e.g., Baude, 
supra, at 55-58; Schwartz, The Case Against Qualified Immunity, supra, at 1802; 
Diana Flassel, Excessive Reasonableness, 43 Ind. L. Rev. 117, 118-119 (2009); John 
S. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 89, 89 
(1999), as well as from organizations across the ideological spectrum, see, e.g., Jay 
Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure, Cato Inst., 
(Sept. 14, 2020), https://www.cato.org/policy-analysis/qualified-immunity-legal- 
practical-moral-failure; Qualified Immunity, Equal Justice Initiative, 
https://eji.org/issues/qualified-immunity (last visited Nov. 8, 2021).

27

https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure
https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure
https://eji.org/issues/qualified-immunity


D a t e :  N o v e m b e r  16, 2 0 2 1 R e s p e c t f u l l y  s u b m i t t e d ,

Samuel Weiss 
Rights Behind Bars 
416 Florida Avenue NW, #26152 
Washington, DC 20001 
(202) 455-4399

s / Michael Skocpol__________
Michael Skocpol 
Christopher Kemmitt 
NAACP Legal Defense and 

Educational Fund, Inc . 
700 14th Street NW, Suite 600 
Washington, DC 20005 
(202) 682-1300

Samuel Spital 
Adam Murphy 
NAACP Legal Defense and 

Educational Fund, Inc,
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

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