Supreme Court to Review ‘No-Fly List’ Lawsuit Against FBI

A TSA officer checks travel documents at Reagan National Airport in Arlington, Va., Nov. 25, 2015. Win McNamee/Getty Images

The Supreme Court has agreed to decide if a Muslim man from Oregon can continue suing the FBI after the agency removed his name from the “no-fly list” but wouldn’t promise to keep it off.

The no-fly list, which is maintained by the FBI’s Terrorist Screening Center, is “a small subset” of the U.S. government’s Terrorist Screening Database—commonly known as the terrorist watchlist—that contains “the identity information of known or suspected terrorists,” according to the Transportation Security Administration (TSA).

Individuals on the list, which was created during the administration of George W. Bush, “are prevented from boarding an aircraft when flying within, to, from, and over the United States.”

Over the years, many Muslims have complained that they were unfairly placed on the list, while other Americans have complained about being denied access to airplanes because their names were similar to those of people on the list.

The Association of Professional Flight Attendants and some federal lawmakers want to create a no-fly list for unruly passengers.

The case is FBI v. Fikre (court file 22-1178).

In an unsigned order, the court granted the FBI’s petition for certiorari, or review, on Sept. 29. No justices dissented. The court didn’t provide reasons for its decision.

At least four of the nine justices had to vote to grant the petition for it to move forward to the oral argument stage.

The case dates to 2010, when FBI agents met with Yonas Fikre, a naturalized U.S. citizen of Eritrean descent who converted to Islam. The meeting took place at the U.S. embassy in Khartoum, Sudan, where Mr. Fikre was pursuing business opportunities.

The FBI agents questioned him about alleged terrorist involvement in the Masjid As-Saber Mosque in Portland, Oregon, where he had attended prayer services. The agents told him he wouldn’t be allowed to return to the United States unless he became an informant for them.

People waiting in line to go through Orlando International Airport MCO TSA security on a busy day. Courtesy of Ed Perkins

In 2012, he filed for asylum in Sweden, where he had relatives. He claims that the United Arab Emirates detained him at the behest of the U.S. government for 106 days, interrogated him about mosque activities, and tortured him.

In 2015, TSA Acting Administrator Melvin J. Carraway refused to remove Mr. Fikre’s name from the list, saying he posed a threat to civil aviation. He declined to elaborate, saying that to provide reasons for his decision would risk harming national security and jeopardize law enforcement activities.

Mr. Fikre, who denies that he represents a national security threat to the United States, initiated a lawsuit against the FBI for wrongly being put on the list, for reputational harm, and for violating his right to travel.

Initially Dismissed

During the legal proceedings, the agency took his name off the list. The FBI then asked the court to dismiss the lawsuit, arguing that removing his name had rendered the case moot.

A federal district court sided with the FBI and dismissed Mr. Fikre’s legal complaint.

The U.S. Court of Appeals for the 9th Circuit disagreed with the lower court, holding that the government’s removing Mr. Fikre’s name from the no-fly list and providing a sworn declaration that his name wouldn’t be returned to the list “based on the currently available information” wasn’t enough to make his lawsuit moot.

The circuit court noted that the FBI had never conceded that including him on the list was wrong nor had it identified any changes to the policies that landed him on the list.

The 4th and 6th circuits have gone the other way in similar cases, finding that removal from the no-fly list “moots a case when the government represents that the individual will not be placed back on the list based on currently available information,” the FBI said in its petition filed with the Supreme Court on June 2.

However, in a brief filed with the Supreme Court on Aug. 21, Mr. Fikre argued that when the government takes an individual off the list during litigation challenging the listing, “the case does not end automatically.”

It’s deemed moot “only if no further relief is possible and, even then, the matter is adjudicated unless the government can overcome the voluntary cessation exception to mootness,” according to the brief.

“Determining whether the government has overcome the exception requires a case-specific analysis of what the government has said and done, including whether the government has repudiated its original decision to place the individual on the list or changed its listing practices, as opposed to merely having exercised individual discretion to remove the individual.”

Earlier No-Fly Ruling

The Supreme Court ruled in another case about the no-fly list in December 2020.

The court held unanimously in Tanzin v. Tanvir that a group of Muslims placed on the list after refusing to act as informants for the FBI may sue individual federal officials personally for damages under the Religious Freedom Restoration Act.

Their names were struck from the list a year after they filed suit, mooting their claim for injunctive relief but not their claim for having their rights violated.

The Trump administration had argued that lawsuits against individual government employees shouldn’t be allowed because they would deter officials “from performing their duties by the prospect of litigation and potentially severe personal financial consequences.”

Mr. Fikre’s attorney, Lindsay Harrison of Jenner and Block in Washington, and U.S. Department of Justice officials didn’t respond by press time to a request by The Epoch Times for comment.

Oral arguments in FBI v. Fikre haven’t yet been scheduled.