FBI asks justices to wade into No Fly List dispute

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Someone who files a lawsuit over wrongful treatment might be pleased if the defendant stops its allegedly harmful conduct, rendering the case moot – that is, no longer a live case or controversy. But under the so-called voluntary cessation doctrine, plaintiffs may continue to press their case unless the defendant shows that it cannot simply resume its prior behavior once the lawsuit is thrown out. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government can extinguish a lawsuit alleging that an Oregon man was wrongly placed on the No Fly List by removing him from the list and promising not to put him back on it “based on the currently available information.”

In the wake of the Sept. 11 terrorist attacks, then-President George W. Bush authorized the Federal Bureau of Investigation to maintain a list of people who posed too significant a risk to national security to board a commercial flight through United States airspace. The FBI maintains this list on behalf of the Department of Homeland Security; agents in the Transportation Security Administration, a subset of DHS, consult the list during airport security screenings.

Yonas Fikre is a U.S. citizen of Eritrean descent. While traveling to Sudan in 2010, Fikre was questioned by FBI agents about his ties to a mosque in his hometown of Portland, Oregon. The agents informed Fikre that he would be unable to return to the U.S. because he had been placed on the No Fly List. However, they offered to remove him from the list if he agreed to become an FBI informant.

Fikre refused. Instead, he flew to the United Arab Emirates, where he was imprisoned and tortured by that government’s secret police. Fikre alleges that an interrogator told him the questioning came at the request of the FBI. He was eventually released and, unable to return home to the U.S., sought asylum with a relative in Sweden. The Swedish government ultimately denied Fikre’s asylum request and – after DHS denied his petition to be taken off the No Fly List – flew him by private jet back to Portland.

While still in Sweden, Fikre filed a lawsuit against the FBI. He argued that the agency violated his right to due process under the Fifth Amendment by labeling him a flight risk and failing to provide an adequate way to challenge his status. While the lawsuit was pending, the FBI revised its initial determination and removed Fikre from the list. The government then sought to dismiss the case as moot.

A federal district court in Oregon granted the government’s request. However, the U.S. Court of Appeals for the 9th Circuit reinstated Fikre’s lawsuit. The 9th Circuit ruled that the case was not moot because, under the voluntary cessation doctrine, the government had not made it “absolutely clear” that the FBI would never again label Fikre a flight risk for the same reason it did so in the first place.

With the case back on, an FBI official filed a court declaration stating that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The district court held that this declaration satisfied the 9th Circuit’s standard and dismissed the case once more.

Again, the 9th Circuit disagreed. The FBI’s declaration did not concede that it was wrong to place Fikre on the No Fly List originally, the court of appeals explained; indeed, it defended that decision as “in accordance with applicable policies and procedures.” Absent any indication that the FBI had changed those policies or procedures to provide additional safeguards, the appeals court reasoned, Fikre’s flight status remained at risk should the “currently available information” change.

In Federal Bureau of Investigation v. Fikre, the FBI asks the justices to weigh in and reverse the 9th Circuit’s most recent ruling. The government argues that two other circuits have correctly upheld the dismissal of similar lawsuits over placement on the No Fly List. The 9th Circuit’s holding that the FBI must go further and concede wrongdoing to have Fikre’s case dismissed, the government argues, “confuses mootness with an admission of liability on the merits.”

A list of this week’s featured petitions is below:

Macquarie Infrastructure Corp. v. Moab Partners, L.P.
22-1165
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding that a failure to make a disclosure required under Item 303 of SEC Regulation S-K can support a private claim under Section 10(b) of the Securities Exchange Act of 1934, even in the absence of an otherwise misleading statement.

Center for Medical Progress v. Planned Parenthood Federation of America
22-1168
Issue: Whether First Amendment scrutiny applies when a plaintiff’s claim for damages is based on a defendant’s public speech, even if a plaintiff sues under a law of general application or attempts through creative pleading to recharacterize publication damages as something else.

LeBlanc v. Crittendon
22-1171
Issues: (1) Whether high-ranking state prison officials violate a prisoner’s constitutional rights by failing to promulgate policies cajoling independent, locally elected sheriffs to do their jobs timely and efficiently; (2) whether any clearly established law warned Louisiana Department of Public Safety and Corrections officials that they would be held personally liable for failing to promulgate such policies; and (3) whether any clearly established law warned state prison officials that they would be held personally liable for failing to respond for 17 days to reports of phone calls from family members of persons incarcerated in a local parish jail.

Federal Bureau of Investigation v. Fikre
22-1178
Issue: 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.”