WASHINGTON (CN) — The Supreme Court ruled on Tuesday that a challenge to a prior No Fly List placement can move forward.
Yonas Fikre discovered he was placed on the No Fly List in 2010 while traveling to Sudan for business. He claims he was approached by two FBI agents at the U.S. Embassy in Khartoum and questioned about his worship at a Portland Oregon, mosque. This was when Fikre said the agents informed him he had been placed on the Transportation Security Administration's No Fly List.
Firke said the agents offered to remove him from the list if he became a government informant, but he refused.
Since Fikre could not return to the U.S., he traveled from Sudan to the United Arab Emirates, where he was imprisoned and questioned about the mosque he attended. When he was finally released from custody, he sought refuge in Sweden where a relative of his lived.
Fikre sued the government in 2013, claiming it violated his due process rights by withholding his No Fly List status. In 2015, the Department of Homeland Security confirmed Fikre’s status on the No Fly List because of a government policy change. The government claimed his status was based on the belief that he was a threat to civil aviation or national security.
Fikre was able to return home to Portland in 2015 on a private jet.
Several months after the government’s attempt to dismiss Fikre’s suit was declined, it notified Fikre that he had been removed from the No Fly List.
Even though he had been removed from the list, Fikre wanted to continue his suit. He said the government hadn't assured him he wouldn't be put back on the list.
The lower court dismissed Fikre’s suit as moot, but an appeals court reversed, holding that the government had failed to disclose what conduct landed him on the No Fly List.
On remand, the government provided the court with a statement from FBI Supervisory Special Agent Christopher Courtright stating Fikre would not be placed back on the list based on the available information.
Fikre’s suit was dismissed for a second time, and the appeals court reversed again, setting up a Supreme Court fight.
The government said Fikre’s suit was moot because he was no longer on the No Fly List and couldn't reasonably expect to be put back on the list. Fikre countered that his suit is still a live issue. He argued the government had not provided effective barriers to Fikre’s relisting on the No Fly List.
In a unanimous opinion, the justices said that even after the government resolved the issue by taking Fikre off of the No Fly List, the court still had an obligation to hear and resolve the questions presented to it. The justices added that a case is only mooted when the defendant can show that the challenged conduct is not reasonably expected to recur.
"What 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," Justice Neil Gorsuch, a Trump appointee, wrote for the opinion.
Justice Samuel Alito filed a concurring opinion saying that, while he agreed with the court's decision, it didn't suggest the government had to disclose classified information about its reasons for placing Fikre on the list that could undermine airline safety and counterterrorism efforts.
Many courts may be poorly positioned and lack security clearance to handle such classified documents, Alito noted.
"Recognizing such limitations, I do not understand the court’s opinion to require the government to disclose classified information as a matter of course. On the contrary, non-classified information or information obtained in discovery from the plaintiff in this and other cases may be sufficient to show that the allegedly unlawful listing is unlikely to recur, thereby proving mootness," wrote Alito, a George W. Bush appointee.
He was joined by the Trump-appointed Justice Brett Kavanaugh.
Fikre's attorneys celebrated the decision on Tuesday.
"Mr. Fikre was unconstitutionally placed on the No Fly List and stranded overseas for four years, and today’s victory underscores that the government cannot evade review of its national security policies by selectively mooting out cases,” Jenner & Block attorneys Lindsay Harrison and Annie Kastanek said in a joint statement emailed to Courthouse News.
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