What's at Stake
Whether the government can overcome the voluntary cessation exception to mootness by removing an individual from the No Fly List when the government has not repudiated its decision to place him on the List and remains free to return him to the List for the same reasons and using the same procedures he alleges were unlawful.
The ACLU, the ACLU of Oregon, and Goodwin Proctor filed an amicus brief in support of Yonas Fikre, a U.S. citizen, who alleges that he was wrongly placed on the No Fly List and that the government did not provide him with a fair process to challenge the indefinite flight ban. During litigation, the government removed Mr. Fikre from the List and sought dismissal of his lawsuit on that basis. The district court twice dismissed the case as moot, but both times, the Ninth Circuit Court of Appeals reversed the dismissals. The government appealed to the Supreme Court.
For nearly two decades, the U.S. government has operated a No Fly List that indefinitely bars U.S. citizens and residents from flying to, from, within, or over the United States. People wrongly placed on the List are stigmatized as terrorism suspects and denied a fair process to clear their names. In 2014, in a case filed by ACLU clients, a district court found that the administrative process to challenge placement on the No Fly List violated due process and required the government to modify its process. Although Mr. Fikre completed the revised process, he was not given any reasons for his placement on the No Fly List. Years later, the government removed Mr. Fikre from the List, and later informed him that he “will not be placed on the No Fly List in the future based on the currently available information.”
Our amicus brief explains that the No Fly List program operates in a black box of executive branch discretion and secrecy, and argues that the government’s treatment of Mr. Fikre is representative of a larger pattern. We identified 40 U.S. citizens and residents who filed lawsuits challenging their placement on the No Fly List. The public record shows that in both the administrative process and in litigation, the government kept secret the full reasons—and in some instances, any reason—for placing each of the 40 people on the List. Moreover, the government removed 28 of the 40 people—i.e., 70%—from the List during litigation, and many of the removals occurred just prior to court-imposed deadlines or while awaiting pending court rulings. No plaintiff removed from the List during litigation has had the constitutionality of their initial placement adjudicated on the merits. We argue that the terse statement that a plaintiff is no longer on the No Fly List and will not be returned to it “based on currently available information” is not enough to satisfy the Supreme Court’s voluntary cessation standard, which requires absolute clarity that “the allegedly wrongful behavior could not reasonably be expected to recur.”