SCOTUS Rules FBI Must Face Lawsuit Over No-Fly List

In FBI v. Fikre, 601 U.S. ____ (2024), the U.S. Supreme Court held that Yonas Fikre’s lawsuit against the FBI is not moot. Accordingly, his suit alleging that the government placed him on the No Fly List unlawfully may proceed in the lower courts.

Facts of the Case

Respondent Yonas Fikre, a U.S. citizen and Sudanese emigree, brought suit alleging that the government placed him on the No Fly List unlawfully. In his complaint, Mr. Fikre alleged that he traveled from his home in Portland, Oregon to Sudan in 2009 to pursue business opportunities there.

At a visit to the U.S. embassy, two FBI agents informed Mr. Fikre that he could not return to the United States because the government had placed him on the No-Fly List. The agents questioned him extensively about the Portland Mosque he attended, and they offered to take steps to remove him from the No-Fly List if he agreed to become an FBI informant and to report on other members of his religious community.

Mr. Fikre refused. He then traveled to the United Arab Emirates, where he alleges authorities interrogated and detained him for 106 days at the behest of the FBI. Unable to fly back to the United States, he ended up in Sweden, where he remained until February 2015.

While there, he filed suit, alleging that the government had violated his rights to procedural due process by failing to provide either meaningful notice of his addition to the No Fly List or any appropriate way to secure redress. He further alleged that the government had placed him on the list for constitutionally impermissible reasons related to his race, national origin, and religious beliefs.

Mr. Fikre sought, among other things, an injunction prohibiting the government from keeping him on the No-Fly List and a declaratory judgment confirming the government had violated his rights. In May 2016, the government notified Mr. Fikre that he had been removed from the No Fly List and sought dismissal of his suit in district court, arguing that its administrative action had rendered the case moot.

The district court agreed with the government, but the Ninth Circuit Court of Appeals reversed. It held that a party seeking to moot a case based on its own voluntary cessation of challenged conduct must show that the conduct cannot “reasonably be expected to recur.”

On remand, the government submitted a declaration asserting that, based on the currently available information, Mr. Fikre would not be placed on the No-Fly List in the future, and the district court again dismissed Mr. Fikre’s claim as moot. The Ninth Circuit again reversed, holding that the government had failed to meet its burden because the declaration did not disclose the conduct that landed Mr. Fikre on the No-Fly List and did not ensure that he would not be placed back on the list for engaging in the same or similar conduct in the future.

Supreme Court’s Decision

The Supreme Court held that the government failed to demonstrate that the case is moot. Justice Neil Gorsuch wrote on behalf of the unanimous Court.

In reaching its decision, the Court emphasized that that a defendant may not “automatically moot a case” by the simple expedient of suspending its challenged conduct after it is sued. Instead, a defendant’s “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.”

In this case, the Court found that while the government’s representation that it will not relist Mr. Fikre may mean that his past conduct is not enough to warrant relisting, that does not speak to whether the government might relist him if he engages in the same or similar conduct in the future.

“Put simply, the government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past,” Justice Gorsuch wrote.

The Court emphasized that its judgment is provisional. “Just because the government has not yet demonstrated that Mr. Fikre’s case is moot does not mean it will never be able to do so,” Justice Gorsuch wrote said. “This case comes to us in a preliminary posture, framed only by uncontested factual allegations and a terse declaration. As the case unfolds, the complaint’s allegations will be tested rather than taken as true, and different facts may emerge that may call for a different conclusion.”