The question of whether an Oregon man’s lawsuit can proceed even after his removal from the No Fly List was heard by the Supreme Court last Monday. The debate lasted over an hour with some justices suggesting a potential middle-ground solution—assigning federal trial judges to privately review the government’s evidence and determine if someone removed from the list is likely to return there.
The plaintiff in question, Yonas Fikre, a U.S. citizen of Eritrean descent, discovered he had been placed on the list while residing in Sudan in 2010. His subsequent arrest, detainment, and torture in the United Arab Emirates led him to seek asylum in Sweden, which instead returned him to the U.S. on a private plane. Fikre’s federal lawsuit, filed in Oregon in 2013, alleged the FBI violated his constitutional rights when placing him on the No Fly List, a case which was dismissed as moot by the district court upon the FBI’s removal of Fikre from the list along with a commitment to not return him based on currently available information [SCOTUSblog].
The U.S. Court of Appeals for the 9th Circuit later revived Fikre’s lawsuit, leading the FBI to appeal to the Supreme Court last year. The Assistant to the U.S. Solicitor General, representing the FBI, stated in the justices hearing that Fikre’s case is moot due to his current absence from the No Fly List and the lack of a live case or controversy.
Justice Elena Kagan suggested during the hearing that the government should be obliged to present before a judge in private why an individual has been placed on and removed from the No Fly List and why they would not be added back. Justice Neil Gorsuch echoed Kagan’s proposed solution, stating that an American citizen denied the right to evidence when their fundamental liberty—the right to travel—is at stake should not be viewed as excessive; such a method is employed in other national security-related cases. Justice Brett Kavanaugh, however, expressed concerns over potential national security risks should sensitive information have to be disclosed to judges. Justice Samuel Alito presented a different concern, questioning the speculative nature of Fikre’s claims of being added back to the list, making establishing a legal right to sue challenging.
Despite the myriad of concerns addressed by the justices, the solution proposed by Kagan and Gorsuch suggests a viable middle ground. Nevertheless, it remains to be seen how the court will eventually rule on this matter. The decision, which will likely not satisfy either party entirely, is expected by summer.