After its annual “long conference” earlier this week, the US Supreme Court announced that it will hear 12 additional cases this term, including a fascinating case involving the secretive “No Fly List” that bars thousands of US citizens from stepping onto a US-bound commercial flight.
US Supreme Court Will Consider Case Concerning Placement On “No Fly List”
The USA began maintaining a “No Fly List” after the 9/11 attacks in 2001, with the Bush Administration directing the Federal Bureau of Investigation (FBI) to maintain a list of people deemed too high a risk to “national security” to board a commercial flight to or via United States airspace. The FBI manages this list on behalf of the Department of Homeland Security (DHS).
In 2010, US officials stopped Yonas Fikre, a US citizen, while in Sudan. Fikre is Muslim and FBI agents quizzed him about his local mosque in Portland, Oregon. At the end of the interview, he was told he would be placed on the No Fly List…unless he agreed to be an FBI informant.
He refused and flew to the United Arab Emirates instead, where he claims he was tortured by secret police under the direction of US authorities. Eventually released, he tried to seek asylum in Sweden, but was denied.
Interestingly, the US eventually flew him home to Portland via private jet, while still denying his petition to be removed from the No Fly List.
While he was still in Sweden, Fikre sued the FBI, arguing his constitutional rights were violated (because the government did not give him any means to challenge his placement on the list).
The FBI responded by dropping him from the list and then seeking to dismiss the case as moot, which means the case has lost practical significance because the underlying controversy has been resolved. A federal district court in Oregon agreed.
But the Ninth Circuit Court of Appeals disagreed, asserting the government had not made it “absolutely clear” that the FBI would never again place Fikre back on the No Fly List for the same reason it did so in the first place. This is known as the voluntary cessation doctrine (is a case really moot when a party to the case voluntarily discontinues an allegedly unlawful action?).
The FBI responded that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” But the Ninth Circuit said that is not good enough. First, the FBI did not admit error in placing him on the list in the first place. Second, it did not indicate that it would do anything different next time, since it continued to justify Fikre’s original detainment as “in accordance with applicable policies and procedures.”
Now the FBI has appealed that Ninth Circuit ruling, asking the Supreme Court to declare that it need not declare wrongdoing and that Fikre’s lawsuit is indeed moot.
Key Factors For This Case
At the root here is the voluntary cessation doctrine, specifically whether the FBI can simply resume its conduct that brought the lawsuit in the first place once the lawsuit is dismissed.
Fikre has been removed from the No Fly List “permanently” but “based on the currently available information.” Legally, that means nothing…it means he’s off the list until the FBI decides he is back on the list.
The fact that the Supreme Court decided to hear this case does not necessarily suggest it will overrule the Ninth Circuit: there is currently a circuit split on this issue, with the Fourth and Sixth Circuits ruling, in similar cases, that the issue was moot.
These sorts of cases may lead to splits that do not fall along usual ideological lines. I could see Justice Gorsuch and Barrett or Kavanugh joining with the Court’s three liberal members to declare that this issue is not moot. It will be interesting to see.
The nexus of law and travel always fascinates me and while the entire Supreme Court term is shaping up to be another interesting one, I will be following this particular case closely…and may even attend oral arguments (not scheduled yet).