Federal Bureau of Investigation, et al. v. Fikre
LII note: The U.S Supreme Court has now decided 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.”
Facts
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. The most restrictive among these is the No Fly List, reserved for those who pose a particular risk of domestic or international terrorism. The Transportation Security Administration (“TSA”) categorically prohibits those on the No Fly List from boarding commercial airplanes which fly over the United States, and pursuant to the Department of Homeland Security’s Traveler Redress Inquiry Program (“DHS TRIP”), individuals on the No Fly List may inquire as to why they were placed on the list, ask the government to reassess their inclusion, and request an unclassified summary of the information which supported that respective determination. ;
Respondent Yonas Fikre, a naturalized U.S. citizen, was informed he had been placed on the No Fly List by FBI agents in 2010. Fikre began attempting to modify his status on the No Fly List through DHS TRIP procedures; in 2013 Fikre filed this suit alleging a violation of his Fifth Amendment substantive and procedural due process rights by the U.S. Government for including him in the No Fly List and offering inadequate means for him to dispute that designation. During the litigation proceedings, the TSA notified Fikre and the district court that he had been removed from the No Fly List.
The district court granted the government's motion to dismiss on the grounds the case was moot. Fikre appealed this decision, and the United States Court of Appeals for the Ninth Circuit reversed on the grounds that the “voluntary cessation” doctrine did not apply because the government had done nothing to assure Fikre and the Court he would not simply be added to the No Fly List again after his claim was dismissed.
On remand, the government again moved to dismiss Fikre’s claim, this time including a declaration (“Courtright Declaration”) signed by FBI Supervisory Special Agent Christopher Courtright, which confirmed Fikre had been placed on the No Fly List in the past and was removed from it in accordance with departmental policy According to the declaration, Fikre would not be placed on the list again “based on the currently available information.” The District Court once again dismissed Fikre’s claims as moot, but on appeal the Ninth Circuit Court reversed on the grounds that the current underlying departmental policies were not revealed, nor was the previous decision to include Fikre on the No Fly List repudiated. The Ninth Circuit ultimately held that the Courtright Declaration did not meet the burden of actually proving Fikre would not be added to the No Fly List for the same reasons he had been before.
The FBI filed a petition for writ of certiorari on June 2nd, 2023 which was granted September 9th, 2023.
Analysis
MOOTNESS
The FBI argues that the court of appeals erred in holding Fikre’s claims were not moot because he was removed from the No Fly List. According to the FBI, Article III of the Constitution limits the judicial branch by only allowing the adjudication of ongoing or “live” legal issues which require a plaintiff showing personal, cognizable injury that could be redressed by the Court. The FBI maintains that in this case, the claim is no longer live because Fikre was removed from the No Fly List seven years ago and thus all cognizable legal injuries have been resolved. As such, the FBI asserts that the Court can provide no redress to injury.
The FBI argues that the “voluntary cessation” doctrine would support a finding that Fikre’s claim is moot because the Courtright Declaration establishes adequate assurance by the government to show Fikre’s placement on the No Fly List cannot reasonably be expected to recur based on the original reasons. The FBI claims that in cases where a defendant (1) voluntarily ceases the challenged practice and (2) shows the particular behavior cannot reasonably be expected to happen again, the court should find the relevant claim moot. The FBI notes that in this particular case, the “currently available information” language in the Courtright Declaration necessarily includes all of the intelligence the FBI had in making its initial determination that Fikre should be on the No Fly List, in addition to all the information which justified his removal from the list. The FBI argues that this means they have made it clear Fikre will never be placed on the No Fly List for the same reasons he was previously placed on the list. If Fikre gave the FBI new reasons to add him back to the No Fly List in the future, the FBI maintains that the inclusion would be for different reasons and a separate, novel action, not a recurrence of the challenged behavior.
Fikre counters that the government failed to meet the “voluntary cessation” doctrine’s substantial burden in making it abundantly clear to the court that Fikre could not reasonably be placed back on the No Fly List for the same reasons as before. Fikre argues the court of appeals was correct in finding that where a defendant neither establishes barriers to future injustice nor repudiates its own past conduct, they cannot meet the burden of absolute clarity needed to moot a case through the voluntary cessation doctrine.
Fikre claims the Courtright Declaration alone was not an adequate assurance that the allegedly harmful behavior would not recur, because the FBI had not instituted any effective internal or external barriers which would restrict the agency from going back on its word, as it was neither a legally binding document nor did it indicate what consequences the FBI might incur for breaching its terms and conditions. According to Fikre, the FBI did not meet its burden through repudiation of past conduct either, as they gave no apology for past impropriety nor any indication they understood why its acts were unlawful. Fikre further argues that because the FBI provided no information about why he was added to the list, nor the policy changes which legitimated his removal from the list, there would be no incentive for the FBI to keep its word as neither Fikre nor the courts would know whether he was added back to the No Fly Lists for new reasons or old ones. Fikre maintains that without this knowledge, behavior in which he is currently engaging that was the reason for his initial placement on the No Fly List could be used against him again.
REPUDIATION OR ACQUISCENCE
The FBI argues that the court of appeals mistook the standards of mootness for those of merit when it demanded either a repudiation of past conduct or an acquiescence of guilt to the asserted claim. According to the FBI, mootness is necessarily and exclusively “forward-looking” rather than concerned with the merits of past claims, because courts are not supposed to adjudicate wrongful actions which are in the distant past and have since been resolved. The FBI contends that by demanding a repudiation or acquiescence, the court was performing an irrelevant and unconstitutional assessment of the merits of Fikre’s claim, rather than only whether his claim was still “live.” The FBI further argues that this repudiation would be inconsequential to the case even if it had been included because mootness is predicated on an assessment of whether certain conduct may arise again, not on how a party feels about it having happened in the past.
Fikre claims the FBI’s refusal to repudiate its past action does not touch on the merits of the case, but rather relates to its willingness to engage in the wrongful conduct in the future, which is the core of the voluntary cessation doctrine’s analysis. Fikre asserts that because the FBI chose to repeatedly reaffirm the legality of all its actions in the case at hand, it was indicating its willingness to relist Fikre despite the Courtright Declaration. Further, Fikre argues that because the FBI refuses to acknowledge wrongdoing or to describe existing policy, there is no way for it to reassure the courts its cessation of wrongdoing would be permanent.
REPUTATIONAL HARM
The FBI asserts that the reputational harm Fikre alleges on account of his past inclusion in the No Fly List is not a cognizable injury under the Due Process clause, as it does not concern his liberty or property. Additionally, the FBI maintains that in this case the Court also has no power to redress the injury, and so the case could not be live. According to the FBI, courts may only adjudicate issues under the terms of Article III of the Constitution where (1) a cognizable injury exists and (2) some redress can be provided by the courts. The FBI contends that all of Fikre’s legal rights in a judicial context with respect to his right to travel and in terms of employment in the government have been restored completely such that no cognizable injury remains for the Court to adjudicate. The FBI further asserts non-cognizable injuries are insufficient to “rescue” a case which is otherwise moot.
Fikre counters that the government has not met its burden of proof in showing it will not relist him, and there still exists a host of cognizable legal injuries linked to Fikre’s past listing, among them the reputational harm. According to Fikre, the Court has never considered mere passage of time as sufficient to show the unreasonableness of recurring improper behavior, especially where no repudiation of past conduct has been established. Fikre argues that issues may still be redressed where there is no real need to speculate on the likelihoods of recurring harm, as courts may impose rulings which would have been possible prior to the voluntary cessation. Further, Fikre claims the lack of information on why he was placed on the list makes more serious the risk that he incurs the same cognizable problems in the future since he cannot take action on his own to avoid such placement for new or recurring actions. Fikre argues a ruling requiring that the government indicate those policies and preferences would help redress that recurring concern.
Discussion
NATIONAL SECURITY INTERESTS
The FBI asserts that enabling a broader degree of judicial intrusion into the internal policies of federal agencies would be particularly problematic in the context of national security by wasting scarce departmental resources and revealing information which could leave the government vulnerable. The FBI further alleges that governmental agencies rarely disclose the full reasons why someone was included on or removed from a list like the No Fly List for a number of legitimate reasons, including classified military, state, and law enforcement secrets. The FBI claims that allowing courts to demand such internal materials could lead to leaks of such information, or even in the cases where the FBI refuses to disclose it, revealing the existence of some confidential information. The FBI further asserts that the increase in the administrative burden placed on the bureau by such requests could waste valuable departmental resources better spent on ensuring national security.
Fikre counters that national security interests are not hampered, but rather furthered, when a court requests minimal transparency about non-classified internal policies because such requests can only prevent the government from infringing on its citizens' freedoms. The Cato Institute further highlights that prioritizing national security would actually undermine the FBI’s arguments, because reducing the oversight that the courts may impose on the executive branch could only lead to more unchecked unconstitutional action. The Cato institute maintains that such violations of the separation of powers doctrine, which is so essential to the efficacy and stability of the United States government, is synonymous with degrading national security. The Constitutional Law Center for Muslims in America (“Muslims in America”) also highlights how unjustified appeals to national security concerns where none exist are harmful to the general public and to the legitimacy of subsequent, potentially more important arguments rooted in national security concerns.
JUDICIAL PRIORITIES
The FBI asserts that raising the standard on governmental organizations would violate historic judicial precedent for no cognizable or legitimate reason. The FBI argues that the No Fly List is the only database classification tier which leads to any serious consequences in a person's life such as restricting their right to travel or find employment, so it provides no benefit to anyone if the court were to allow a glimpse into the internal decision making processes the FBI employs in its categorizations. The FBI further alleges that because of how seriously the No Fly List is taken, the government would have no incentive to remove someone from it if the conduct were a real concern to the government, just so as to avoid litigation.
The Liberty Justice Center counters that the harm imposed by a person's inclusion on the No Fly List is substantial enough to warrant the general public receiving an explicit description of which types of activities might land them on the list, either to expose how strict or lax typical inclusion may be or the unjustified political biases within the FBI. Restore the Fourth, Inc. and the Forum for Constitutional Rights further assert that allowing law enforcement and governmental agencies to move the goalposts behind the scenes without facing public scrutiny would perpetuate unjustified impositions of police power on people's constitutional rights, and that transparency can lead to more honest dialogue between citizens and their government. Muslims in America emphasize the disproportionate and ineffective use of policies such as the No Fly List against the Muslim community in particular.
Conclusion
Written by:
Edited by:
Additional Resources
- Joseph Davis, Nicholas Reave, The Point Isn’t Moot, Yale Law Review (November 26, 2019).
- Lydia Wheeler, Supreme Court Takes FBI’s Fight Against No Fly List Lawsuit, Bloomberg (September 29, 2023)