Court Reminds DOJ It Can’t Dismiss A No-Fly List Lawsuit Just Because It Removed The Plaintiff From The List
The federal government has unlimited money to burn. That's how we end up here with the federal government being told for a second time that it can't walk away from a civil lawsuit just because it unilaterally decided to stop violating the plaintiff's rights.
US citizen Yonas Fikre's lawsuit made its way to the Ninth Circuit Appeals Court for the first time in late 2018. Fikre alleges FBI agents approached him at a Portland airport following his trip to Sudan. They questioned him about his ties to a local Oregon mosque, as well as the nature of his finances. Apparently finding none of his answers particularly useful, the agents informed Fikre he was on the no-fly list. They them offered to remove him from the list if he chose to become a government informant - something the FBI appears to do on a regular basis.
Fikre refused. On his following trip to the Middle East, Fikre was imprisoned and tortured by United Arab Emirates law enforcement. Once he was finally released, he was unable to return to Portland because of his no-fly list status. He sued.
Following his lawsuit, the FBI decided to take Fikre off the no-fly list. The agency offered no explanation for this move. According to submitted documents, the DHS had reviewed Fikre's no-fly status twice since his 2010 placement on the list (following his interaction with FBI agents at the Portland airport). In both cases, the DHS decided Fikre was too dangerous to be allowed to fly. But it did decide to remove him shortly after he sued the government.
In that decision, the court pointed out Fikre's unexpected removal from the no-fly list appeared to be prompted by his lawsuit.
This record suggests that Fikre's removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure.
The court said this belated move - one apparently made solely in hopes of allowing the FBI to exit the lawsuit - doesn't actually make this case moot. As surely as the government unilaterally decided to remove Fikre from the no-fly list, it could place him back on it once his lawsuit was dismissed. The Ninth Circuit refused to terminate the suit, sending it back to the lower court.
It has now returned to the Ninth Circuit following its reappearance at the lower level. The government continues to argue its removal of Fikre from the list makes the case moot. Once again, the Appeals Court disagrees [PDF]:
Returning to Fikre's appeal, the government insists that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur," Already, 568 U.S. at 91(quoting Friends of the Earth, Inc., 528 U.S. at 190), because it filed a notice in district court announcing Fikre's removal from the No Fly List. We disagree. Even accepting the government's argument that its notice constitutes a formal agency action, publicly made, and unequivocally expressed," the mere announcement that Fikre was removed from the list falls short of meeting the government's burden.
One of the reasons the lawsuit isn't moot is because the government could subject Fikre to the same indignity again, despite its sworn assurances otherwise.
[T]he government has not assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. As far as we can tell, the current permission Fikre has to travel by air is discretionary," and not entrenched" or permanent."
The court then gives the government deference it certainly hasn't earned, at least in this case. It says it assumes" the government is acting in good faith" with the removal of Fikre from the no-fly list. That being said, two trips to the Appeals Court with basically the same arguments has not convinced the court the government won't change its mind once litigation is terminated. And the plaintiff should feel even more suspicious of the government's apparently litigation-motivated turnabout.
With no explanation of the reasons for dropping Fikre from the No Fly List, we may not infer the government's acquiescence to the righteousness of Fikre's contentions. On this record, the government has not repudiated the decision to add Fikre to the No Fly List and maintain him there for approximately five years.
Bang. That's the second straight gavel announcing the government's loss. It may have talked the district court into accepting its bogus reasoning during its last return to the lower level, but it's been unable to bamboozle the Appeals Court in consecutive tries. The lower court's ruling is reversed and the government - more than a decade after disrupting Yonas Fikre's life for reasons it has never explained - will continue to face this important challenge of its abuse of its terrorist watchlists.