FBI Effort to Moot No Fly List Case Deserves Judges’ Skepticism

On Jan. 8, the US Supreme Court heard oral argument in FBI v. Yonas Fikre, our case on behalf of a peaceful, law-abiding American Muslim unjustly placed on the FBI’s No Fly List. For years, the agency’s decision to place Yonas Fikre on that list prevented him from flying home to the US from overseas after what was supposed to be a short business trip.

Years after we filed a lawsuit, the government unlisted him without explanation and has repeatedly asked the courts to end the case. To this day, the federal government has never explained why it listed our client.

The question before the Supreme Court is simple: Can the government dodge accountability for its actions by reversing itself when facing a lawsuit?

The answer lies in a bit of jurisprudence called the voluntary cessation doctrine. This doctrine stands for the common-sense principle that, once sued, the government can’t escape a court’s scrutiny of their illegal actions simply by stopping and promising not to do it again. Instead, the defendant has to make clear that it can’t be expected to go back to its old ways.

During the hearing, it didn’t take long for the justices to grasp the fundamental unfairness the government was imposing. Justice Sonia Sotomayor posed a hypothetical: What if our client was listed based on lawful donations he made to a particular mosque that, unknown to him, the FBI had viewed with suspicion?

Could he be placed back on the No Fly List for making another donation to that same mosque? Yes, the government attorney conceded. The FBI could re-list him again and again for simply associating with people and organizations in his community.

Other justices were similarly skeptical. Justice Brett Kavanaugh pointed out that it’s practically impossible to know whether the government is likely to re-list Fikre because courts are in the dark about what’s going on: The government hasn’t disclosed either the reasons Fikre was initially listed, or the reasons that he was removed from the list. As Justice Neil Gorsuch put it, the government is denying an American citizen—and the courts—the ability to assess the evidence that’s being mustered against him, when his fundamental right to travel is at stake.

Oral argument showed that the justices understand our straightforward argument: The government can’t throw Yonas Fikre’s case out of court by taking him off the No Fly List without explanation and without any meaningful commitment not to re-list him for the same reasons and by the same procedures.

Yonas Fikre brought this lawsuit in 2013. The government has spent the last decade trying to get the case thrown out of court. But our client has the right to challenge the government’s unconstitutional actions before a federal judge—no matter what games the government may play to try to keep him from doing so.

The case is FBI v. Yonas Fikre, U.S., No. 22-1178, argued 1/8/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Hannah Mullen is a trial attorney at the Council on American-Islamic Relations Legal Defense Fund, where she litigates civil rights cases on behalf of American Muslims.

Write for Us: Author Guidelines