national security

Federal Bureau of Investigation, et al. v. Fikre

Issues

Does the voluntary cessation exception to mootness apply when the government removes an individual from the No Fly List and asserts it will not put them back on it given the available information without also repudiating past inclusion on that list or acknowledging a discrete policy change which informed the removal?

This case asks the Supreme Court to decide whether Yonas Fikre’s (“Fikre”) removal from the No Fly List in 2016, alongside a sworn declaration indicating he would not be placed back on it “based on the currently available information,” makes moot his case against the Federal Bureau of Investigation (“FBI”) regarding his placement on the No Fly List. Fikre argues that although the FBI removed him from its No Fly List in 2016, the government’s guarantees are insufficient to show that he will not be put back on the list for the original reasons, and as such his claim is still valid until the government voluntarily acquiesces to his requests or repudiates its inclusion of him on the list. The FBI counters by indicating that its sworn declaration would necessarily include all information which resulted in Fikre’s inclusion on the No Fly List in 2010 and his removal from it in 2016. Therefore, the FBI argues it is sufficient to prove Fikre would not be relisted for the same reasons as before, and to demand any more would require a showing of bad faith on the part of the government and unnecessarily endanger national security. The outcome of this case has serious implications for national security and the transparency of classified government programs like the No Fly List.

Questions as Framed for the Court by the Parties

Whether respondent’s claims challenging his placement on the No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”

In 2003, President George W. Bush executed Homeland Security Presidential Directive 6, instructing the attorney general to create the Terrorist Screening Center, an interdepartmental entity which consolidates every government terrorist watchlist into the Terrorist Screening Database (“Screening Database”) and organizes them into respective lists. Fikre v. Fed.

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General Dynamics Corp. v. United States; Boeing Company v. United States

Issues

Can the government maintain a suit against a party while simultaneously seeking to prohibit that party from raising a defense that could lead to the disclosure of state secrets that might harm national security?

 

In 1988, the United States Navy contracted with McDonnell Douglas and General Dynamics Corporation to build stealth aircraft. In 1991, the Navy discontinued the stealth aircraft program and terminated the contract. McDonnell Douglas and General Dynamics sued in the Court of Federal Claims, alleging that delays in the building of the aircraft were due to the government's failure to share information. The United States asserted the state secrets privilege, claiming that disclosure of this information would harm national security. The Federal Circuit ruled in favor of the United States, holding that the government could assert its termination claim against the contractors and invoke the state secrets privilege to preclude the contractors' defense. The Boeing Company (which merged with McDonnell Douglas during the litigation) and General Dynamics appealed, arguing that the government cannot maintain a claim against a party when it invokes the state secrets privilege to preclude that party from raising a defense in a civil case where the government is the moving party. The contractors also claimed the invocation of the privilege violates the Due Process Clause of the Fifth Amendment. The Supreme Court's decision will affect the use of the state secrets privilege to protect national security and the right of private litigants to assert defenses against government claims.

Questions as Framed for the Court by the Parties

General Dynamics Corp.

Whether the government can maintain its claim against a party when it invokes the state-secrets privilege to completely deny that party a defense to the claim.

Boeing Company

Whether the Due Process Clause of the Fifth Amendment permits the government to maintain a claim while simultaneously asserting the state secrets privilege to bar presentation of a prima facie valid defense to that claim.

In 1988, the United States government contracted with McDonnell Douglas Corporation (“McDonnell Douglas”) and General Dynamics Corporation (“General Dynamics”), two defense contractors. See McDonnell Douglas Corp. v. United States, 567 F.3d 1340, 1342 (Fed. Cir.

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Additional Resources

· Bloomberg, Greg Stohr: Boeing, General Dynamics Get High Court Hearing in Stealth-Fighter Dispute (Sep. 28, 2010)

· Constitutional Law Prof Blog, Steven D. Schwinn: Court to Consider a More Ordinary State Secrets Privilege (Sep. 29, 2010)

· Lewis & Clark Law Review, Carrie Newton Lyons: The State Secrets Privilege: Expanding its Scope Through Government Misuse

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Hernandez v. Mesa

Issues

Absent a statutory provision and alternative legal remedy, can private individuals seek damages against federal officers whose conduct allegedly violated the Fourth and Fifth Amendments?

This case asks the Supreme Court to determine whether damages claims filed by private individuals against federal officers merit a judicial tort remedy, absent any other legal remedies. The parents of Sergio Adrian Hernandez Guereca—who was fatally shot on Mexican soil by a U.S. officer on U.S. soil—sued the U.S. officer, other unknown federal employees, and the United States. They argue that under Bivens, their damages claims should proceed despite the lack of statutory provisions because the essence of their claims is the same as Bivens and because no other legal remedy is available. Jesus Mesa, Jr., the Border Patrol agent who shot and killed Sergio, contends that the parents’ claims should be dismissed because the claims fall outside of Bivens given the “new context” they present and the “special factors” that warrant the Court’s caution in recognizing a Bivens action in this case. The outcome of this case has heavy implications for national security, separation of powers, and accountability of agents employing deadly force in foreign territories.

Questions as Framed for the Court by the Parties

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damage claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

On June 7, 2010, Sergio Adrian Hernandez Guereca (“Sergio”), a 15-year-old Mexican citizen, was playing a game with his friends at a cement culvert on the border between Ciudad Juarez, Mexico and El Paso, Texas. Hernandez v. United States at 255. The game involved running up the culvert to touch the fence that separates Mexico and the United States and then running back down. Id. Agent Jesus Mesa, Jr.

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Additional Resources

•     Robert Barnes: Supreme Court to Decide Whether Families of Mexican Teens Killed by U.S. Border Agents Can Sue, The Washington Post (May 28, 2019).

•     Adam Liptak: Justices to Hear Case of U.S. Agent’s Shooting of Teenager Across the Mexican Border, The New York Times (May 28, 2019).

•     Nick Sibilla: Sleeper Supreme Court Case Could Make Suing Rogue Federal Agents Almost Impossible, Forbes (Sept. 27, 2019).

•     Andrew Kent: What Happened in Hernandez v. Mesa?, LawFare (June 27, 2017).

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Winter v. Natural Resources Defense Council (NRDC)

Issues

Whether under NEPA the CEQ could make "alternative arrangements" that allowed the Navy to continue using MFA sonar in its training exercises off the coast of southern California without filing an EIS because the District Court’s conditional preliminary injunction constituted "emergency circumstances."

Whether the District Court abused its discretion by issuing a preliminary injunction on the "mere possibility of irreparable harm," and also by not deferring to the CEQ’s findings.

 

On March 22, 2007, the Natural Resources Defense Council ("NRDC") sued the United States Navy in the District Court for the Central District of California to enjoin the Navy from conducting training exercises off the coast of southern California. Specifically, the NRDC sought to prevent the Navy from using mid-frequency active ("MFA") sonar during these exercises because such use harmed whales and other marine mammals, in violation of several environmental laws. The District Court concluded in January 2008 that NRDC had proven that allowing the exercises to continue would cause near certain harm to the environment and issued a preliminary injunction. In response to the injunction, both the President and the Council for Environmental Quality ("CEQ") exempted the Navy from two environmental statutes, finding that emergency circumstances existed which allowed the training to continue. The District Court, however, found the exemptions were improper and upheld its preliminary injunction, and the Ninth Circuit affirmed. The Navy challenges this decision by arguing that courts below used too lax of a standard when deciding that a preliminary injunction was justified and that the judiciary improperly interfered with the executive branch’s authority to control the military. How the Supreme Court decides this case will not only reflect its view on balancing environmental protection and national security, but also clarify the roles each Federal branch has in these matters.

Questions as Framed for the Court by the Parties

1. Whether CEQ permissibly construed its own regulation in finding "emergency circumstances."

2. Whether, in any event, the preliminary injunction, based on a preliminary finding that the Navy had not satisfied NEPA’s procedural requirements, is inconsistent with established equitable principles limiting discretionary injunctive relief.

The United States Navy uses mid-frequency active ("MFA") sonar to detect submerged submarines. Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 664 (9th Cir. 2008) (hereinafter NRDC).

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