Since 2013, U.S. citizen Yonas Fikre had been involved in legal proceedings against the U.S. government related to his inclusion on the federal “No Fly List” (the “List”). Through multiple years of litigation, Fikre challenged the government’s initial determination to place him in the List, and claimed that he was placed there improperly.
In 2016, the government informed Fikre that he had been removed from the List, and he was subsequently allowed to fly on commercial aircraft. Fikre’s litigation continued, though, since he contended that removal from the List did not moot his initial legal claims about improper inclusion on the List.
Fikre’s case reached the Ninth Circuit Court of Appeals on two occasions. In 2022 — Fikre’s second appearance before the Court — the Court of Appeals held that Fikre’s case was not moot, and instructed the district court below to consider whether Fikre stated a viable substantive or due process claim “with respect to his inclusion on the government’s watchlists.”
The Federal Bureau of Investigation (FBI) appealed, and the U.S. Supreme Court granted review. The question presented was whether Fikre’s “No Fly List” claims were moot.
In its briefing, the FBI asked the Supreme Court to view the “voluntary cessation” exception to mootness in a light more deferential to the government, especially in the national security context.
FCR filed an amicus brief on Fikre’s behalf — along with the non-profit organization Restore the Fourth — asking the Court to recognize that the government bears a “heavy burden” in escaping mootness, so that “government misconduct does not elide judicial review.”
FCR further wrote: “The Court should hold that when it comes to applying the voluntary-cessation doctrine against government defendants, the doctrine’s core purpose—having the legality of challenged practices settled—favors holding government defendants to a higher standard than private defendants.”
FCR’s brief cited examples from the COVID era in which government actors attempted to escape judicial review by ending or modifying executive actions before courts could rule on their legality.
UPDATE 1: On March 19, 2024, the U.S. Supreme Court issued a unanimous opinion in the FBI v. Fikre case. The Court held that “the government has failed to demonstrate that this case is moot” and affirmed that the standard for mootness was the same for both government and private defendants.