Federal Bureau of Investigation v. Fikre: Challenge to “no fly list” not moot after removal unless government proves listing will not recur
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
A citizen’s challenge to being placed on the government’s “no fly list” is not moot – even after the listing is rescinded – without clear evidence that the listing will not recur, the U.S. Supreme Court held March 19 in Federal Bureau of Investigation v. Fikre.
Yonas Fikre, a U.S. citizen, was placed on the government’s “no fly list” in 2009.
That list – which expanded rapidly after the September 11, 2001, terrorist attacks – prohibits people on the list from flying into, out of, within or over the U.S.
Fikre brought suit, alleging his placement on the list violated his rights to procedural due process by failing to provide any meaningful notice of his placement on the list, any information about the factual basis of his listing, and any appropriate way to appeal.
He claimed the government placed him on the list for constitutionally impermissible reasons, including his race, national origin and religion.
After he filed suit, the government eventually notified him that he had been removed from the list. The government then claimed the case was moot.
The government filed a declaration that Fikre would not be placed on the list in the future “based on the currently available information.”
The district court dismissed the suit as moot.
But the Ninth Circuit reversed. It held that because the declaration did not disclose what conduct landed Fikre on the list, it did not ensure he would not be re-listed if he engaged in the same conduct in the future.
The Fourth Circuit, in a similar case, held that a similar declaration by the government was sufficient to render the case moot.
The Supreme Court granted cert. to resolve the circuit split.
Holding
The government’s declaration was not sufficient to meet its burden to show the issue would not recur, the Court held in a unanimous opinion.
A defendant cannot render a case moot “by the simple expedient of suspending its challenged conduct after it is sued”, the Court said. “Voluntary cessation of a challenged practice will moot a case only if the defendant can show that the practice cannot reasonably be expected to recur.”
The defendant has a “formidable burden” to prove the matter will not recur, the Court said. Otherwise, a defendant might win dismissal of the case, and then resume its challenged conduct and even “repeat this cycle” until the defendant achieved its allegedly unlawful ends.
“A federal court’s constitutional authority cannot be so readily manipulated”, the Court said. “To show that a case is truly moot, a defendant must prove no reasonable expectation remains” that the defendant’s conduct will recur.
Accepting Fikre’s factual allegations as true for purposes of determining if dismissal was proper, the Court held the government’s declaration “falls short” of demonstrating that the government’s conduct won’t recur.
Noting that Fikre alleges the government placed him on the list because of his religious beliefs, the declaration does not prove that the government won’t relist him if he attends a different mosque, the Court said.
“What matters is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct”, the Court said. “It is on that consideration alone – the potential for a defendant’s future conduct – that we rest our judgment.”
The Court concluded by emphasizing that “our judgment is a provisional one.”
“This case comes to us in a preliminary posture, framed only by uncontested factual allegations and a terse declaration”, the Court said.
The government may be able to prove later that the case is moot as the litigation proceeds.
Justice Alito, joined by Justice Kavanaugh, concurred. Alito said the opinion should not be construed to mean that the government must disclose classified information to Fikre, his attorney, or a court to prove the case is moot.