The US Supreme Court ruled Tuesday that Yonas Fikre’s challenge to his previous placement on the No Fly List can proceed, rejecting the government’s claim that his removal from the list rendered the lawsuit void.
The court unanimously decided that the government failed to demonstrate the case was moot, finding it was possible the government could place the individual on the list again in the future. Citing the doctrine of voluntary cessation, the court stated a case could be found moot if the defendant showed the practice could not “reasonably be expected to recur.” Justice Neil Gorsuch, who wrote the majority opinion, stated that the government “[fell] short of demonstrating it cannot reasonably be expected to do again in the future what it is alleged to have done in the past.”
Fikre, a US citizen who lived in Sudan, sued the FBI in 2013 after being placed on the No Fly List. He claimed his placement on the list violated his right to due process and was discriminatory on the grounds of race, national origin and religion. Fikre moved to Sudan from Oregon in 2009 to build his business and claimed the FBI placed him on the list after he refused to become a government informant. When he moved back to Oregon in 2015, the government removed him from the list a year later, arguing the removal rendered the lawsuit moot.
The government relied on an FBI declaration that stated Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The US Court of Appeals for the Ninth Circuit reversed the lower court’s decision that found for the government, finding the declaration did not disclose what conduct placed Fikre on the list and did not ensure he would not be placed on the list again if he were to engage in that same conduct in the future. The Supreme Court, which granted certiorari in October, agreed. Gorsuch stated, “[w]hat matters is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct. It is on that consideration alone – the potential for a defendant’s future conduct – that we rest our judgment.”
The No Fly List is a part of the US government’s terrorism watchlist that prohibits known or suspected terrorists from flying into, out of, within or over the US. The American Civil Liberties Union (ACLU), which filed an amicus curiae brief on behalf of Fikre, found that over 81,000 individuals had been placed on the list by 2016. Most details about the list are not available to the public, including the reasoning for an individual’s placement on the list, and the government argued that allowing cases like Fikre’s to proceed would force the government to reveal such classified information. The ACLU, however, stated that “[p]eople wrongly placed on the list are stigmatized as terrorism suspects and denied a fair process to clear the names.”
Director of the ACLU’s National Security Project Hina Shamsi stated:
For decades, rights groups have documented the secrecy and unfairness of the No Fly List program and its devastating consequences for people’s lives, yet the program has remained a black box. Not only are people left in the dark about why they’ve been placed on the list, they are not given any meaningful explanation when they are removed, or any guarantee against being wrongfully placed on the list in the future.
The list began expanding rapidly after the terrorist attacks of September 11, 2001, prompting concerns over discrimination. According to the ACLU, Americans on the list are “disproportionately Muslim and those of Arab, Middle Eastern, or South Eastern heritage.” Fikre’s attorney Gadeir Abbas expressed concern over such discrimination, stating, “[t]he FBI cannot play whack-a-mole with the rights of Muslims. The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit.”
The Supreme Court’s ruling on Tuesday merely permits Fikre to proceed with litigation, and Gorsuch emphasized that the government may be able to demonstrate Fikre’s placement on the list did not violate his constitutional rights. The decision, however, is seen as a victory for those who criticize the No Fly List as being overly inclusive. “In case after case, we’ve seen the government remove people from the No Fly List and prevent their legal challenges from being heard with no guarantee that the government will not wrongly place them on the List again,” Shamsi stated. “With this decision, the Supreme Court has ensured that an American challenging his No Fly List placement is actually given his day in court and we are delighted for Mr. Fikre.”
