In a significant legal development, the Supreme Court of the United States has ruled that the dispute over the No Fly List can progress. The dispute focuses on an Oregon man of Eritrean descent, Yonas Fikre, who discovered his name was on the No Fly List whilst residing in Sudan in 2010. After suffering arrest, imprisonment, and torture in the UAE, Fikre eventually returned to the US, courtesy of a private jet provided by the Swedish government.
Fikre initiated a lawsuit in a federal court in Oregon in 2013, alleging that the FBI violated his constitutional rights by placing him on the list. However, after his name was removed from the list and the FBI issued a commitment not to reenter him “based on the currently available information,” the case was deemed moot by a federal district judge. His suit was later revived by the 9th Circuit Court of Appeals, which led the FBI to appeal for a review in the Supreme Court.
A unanimous decision delivered by Justice Neil Gorsuch dismissed the government’s argument of mootness. Justice Gorsuch asserted that the termination of the defendant’s conduct at the centre of a lawsuit and the subsequent dismissal of the lawsuit as moot placed a significant burden on the defendant’s part to show that the behaviour “cannot reasonably be expected to recur.”
Judge Gorsuch argued that the government’s commitment not to list Fikre on the basis of the “currently available information” did not meet the stringent burden required to dismiss the case. He pointed out that the government’s affirmation does not clarify whether Fikre might be reentered on the list if he performed similar actions in the future.
Further, Gorsuch debunked the government’s assertion that the Court of Appeals ruling required it to admit that Fikre’s original inclusion in the list was unsubstantiated. What carries weight, Gorsuch reasoned, is not whether a defendant renounces past deeds, but what the renunciation signifies about the defendant’s future actions.
While the case is still in the early stages, Gorsuch indicated that the progression of the case may yield new information potentially causing a shift in judgment. He also noted that while legal disputes involving national security can present unique challenges when exploring beyond the motion-to-dismiss stage, he inferred that based on “traditional mootness principles,” it is not viable to conclude the government has sufficiently proved that this dispute is moot.
In a brief concurring opinion, also joined by Justice Brett Kavanaugh, Justice Samuel Alito stated that this decision does not imply that the government needs to disclose any classified information to Mr. Fikre or the court to prove that the case is moot.
Details of this legal development were originally published on SCOTUSblog.