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Supreme Court rules against government in No Fly List case

The Supreme Court unanimously ruled Tuesday that a man’s challenge to his former placement on the No Fly List can move forward, finding the government failed to show his lawsuit is moot.

Yonas Fikre, a U.S. citizen who previously resided in Sudan, claimed his placement on the list was unlawful and sued the FBI.

The government later removed him from the list and signaled it was unlikely he would be readded. It then contended Fikre’s lawsuit was moot as a result and should be tossed.

The government warned that not declaring lawsuits like Fikre’s moot at the onset could require the government to disclose classified information. The Supreme Court rejected that assertion, enabling Fikre’s case to move ahead.

“Necessarily, our judgment is a provisional one,” Justice Neil Gorsuch wrote in the court’s opinion.

“Just because the government has not yet demonstrated that Mr. Fikre’s case is moot does not mean it will never be able to do so,” the conservative justice continued. “This case comes to us in a preliminary posture, framed only by uncontested factual allegations and a terse declaration. As the case unfolds, the complaint’s allegations will be tested rather than taken as true, and different facts may emerge that may call for a different conclusion.”

Fikre alleges that he traveled to Sudan in late 2009 in pursuit of growing an electronics business in his native East Africa. The FBI questioned him while in Sudan, according to court filings, telling Fikre he was on the No Fly List and could be removed if he became an informant.

Fikre allegedly refused and moved to the United Arab Emirates, where he claims he was then abducted and tortured for months by the country’s secret police at the FBI’s request. After leaving the United Arab Emirates, Fikre says he moved to Sweden, filed his lawsuit and sought asylum.

After being denied asylum, Sweden allegedly flew Fikre back to Portland, Ore., on a private jet.

In 2016, the government told Fikre he had been dropped from the No Fly List and his lawsuit was moot, court filings show. The district court agreed, but the 9th U.S. Circuit Court of Appeals reversed, leading the government to appeal to the Supreme Court.

“The FBI cannot play whack-a-mole with the rights of Muslims. The FBI cannot place innocent Muslims on the No Fly List, only to then block that unconstitutional list from scrutiny by removing those Muslims whenever they file a lawsuit,” the Council on American-Islamic Relations’s Gadeir Abbas, who argued the case for Fikre, said in a statement.

The government does not generally disclose the full reasoning for why people are placed on the list, and the Justice Department expressed concerns that allowing cases such as Fikre’s to move forward would needlessly force the government to reveal its sometimes-classified explanations.

“A case does not automatically become moot when a defendant suspends its challenged conduct and then carries on litigating for some specified period,” Gorsuch pushed back. “Nor can a defendant’s speculation about a plaintiff’s actions make up for a lack of assurance about its own. (For that matter, given what little we know at this stage in the proceedings, Mr. Fikre may have done none of the things the government presumes he has, perhaps wishing to but refraining for fear of finding himself relisted.)”

Justice Samuel Alito, joined by fellow conservative Justice Brett Kavanaugh, wrote separately to clarify that the government does not necessarily have to make classified information available to Fikre to show his case is moot.

“In at least some instances, requiring the Government to disclose sensitive information regarding its grounds for placing or removing a person from the No-Fly List could undermine the Government’s significant interests in airline safety and the prevention of terrorist attack,” Alito wrote.

Lindsay Harrison and Annie Kastanek, partners at Jenner & Block who represented Fikre, applauded the ruling.

“We are proud to have helped Mr. Fikre secure justice through this unanimous US Supreme Court decision,” they said in a statement. “Mr. Fikre was unconstitutionally placed on the No Fly List and stranded overseas for four years, and today’s victory underscores that the government cannot evade review of its national security policies by selectively mooting out cases.”

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