Chancelor Claypool
St. John's University School of Law
American Bankruptcy Institute Law Review Staff
A court will typically dismiss a case as “moot” when it is the result of “past actions that do not have any ‘continuing effect,’ in the world.”[1] In Federal Bureau of Investigation v. Yonas Fikre, the United States Supreme Court held that a case would not be dismissed as moot upon a showing that the defendant ceased and repudiated the action which the plaintiff challenged, unless the defendant could also demonstrate the challenged action could not reasonably be expected to recur.[2] Because the Federal Bureau of Investigation (“FBI”) would not disclose the reasons it placed Yonas Fikre on the No-Fly List, the Court held the FBI’s act could reasonably be expected to recur.[3] The mere repudiation of the act (i.e., an FBI official declaring it would not place Mr. Fikre on the No-Fly List in the present circumstances) did not suffice to moot the case.[4]
Mr. Fikre, an Oregon resident, traveled to Sudan in 2009 to pursue business interests with extended family, where he was detained and questioned about his involvement in a mosque.[5] Following his release, he traveled to the United Arab Emirates (“UAE”) where he was arrested, imprisoned, and tortured, allegedly at the FBI’s direction.[6] The UAE then sent Mr. Fikre to Sweden, where he filed suit, alleging that the FBI violated his due process rights for placing him on the No Fly List for constitutionally impermissible reasons (e.g., race) and without due notice.[7] Officials in Sweden then sent him to the United States.[8] In 2016, while defending itself against Mr. Fikre’s suit in the District Court of Oregon, the FBI removed Mr. Fikre’s name from the No-Fly List but did not reveal its reasons for placing him on it.[9] Having ceased part of the action which Mr. Fikre had challenged as unlawful, the FBI then filed a motion to dismiss the case as moot, which was granted.[10] Mr. Fikre appealed the District Court’s decision to the Court of Appeals for the Ninth Circuit.[11] The Ninth Circuit reversed the District Court’s decision, holding that the FBI did not demonstrate the case was moot by merely removing Mr. Fikre from its list. According to the Ninth Circuit, removal from the No-Fly-List alone did not demonstrate the FBI could not “reasonably be expected” to place his name on the list again and so “fell short of satisfying th[e] standard,” for mooting a case.[12] On remand, the FBI repudiated its conduct (i.e., the FBI declared that it would not place Mr. Fikre on the No-Fly list again based on currently available information) and filed another motion to dismiss the case as moot, which the District Court also granted.[13] Mr. Fikre again appealed, and the Ninth Circuit again reversed.[14] This time, the Ninth Circuit emphasized that the standard of mootness required the FBI to demonstrate that it would not repeat the contested conduct for the allegedly unlawful reasons.[15] Mr. Fikre had not challenged being placed on the No-Fly List as unlawful, but the reasons he was placed on the No-Fly List.[16] The FBI, by withholding what those reasons were, did not demonstrate that they would not place Mr. Fikre on the No-Fly List again for those same reasons in different circumstances.[17] Therefore, the case was not moot.[18] The FBI appealed, and the Supreme Court granted certiorari to resolve a split with the Fourth Circuit, which had recently held that a “similar declaration” by the FBI sufficed to moot a claim which disputed No Fly List placement.[19]
The Supreme Court concluded the mootness standard does not permit exemptions for classified information.[20] In a unanimous opinion, the Majority depicted mootness as a judicial obligation—a necessary tool for judges under Article III of the Constitution, which “must” be employed when a complaining party “manages to secure . . . all the relief he might have won” without litigation.[21] Article III of the Constitution grants federal courts jurisdiction over active cases or controversies, i.e., over cases or controversies which are not moot.[22] Federal courts are therefore constitutionally obligated to hear cases and controversies, and may not moot a case without fulfilling a substantial legal standard.[23] Therefore, a defendant seeking dismissal on grounds of mootness must demonstrate that it cannot reasonably be expected to repeat the conduct being challenged as unlawful.[24] This mootness standard controls even when fulfilling it would require disclosure of classified or privileged reasons, and a court may not dispense a defendant from this standard.[25] The burden for mooting a case does not change, despite concerns for national security, government privilege, or confidentiality.[26]
The Court recognized the government had a valid interest in keeping its reasons confidential.[27] If the FBI disclosed its reasons for placing Mr. Fikre on the No-Fly List, it “could undermine the Government’s significant interests in airline safety and the prevention of terrorist attacks.”[28] A case which requires disclosure of classified information “present[s] evidentiary challenges for parties and courts alike.”[29] Justice Samuel Alito, in his concurring opinion, acknowledged the Government’s interest in classifying information and contended the FBI is not necessarily required to declassify information to meet the standard for mootness.[30] He also highlighted the practical concerns for handling such information.[31] The majority held that when disclosing classified information is necessary to demonstrate mootness, courts must pay “[c]areful attention . . . to the handling of classified or privileged information.”[32] Justice Alito’s concurrence, however, argues the present controversy may only require the FBI to disclose “non-classified information or information obtained in discovery,” which “may be sufficient to show that the allegedly unlawful listing is unlikely to recur.”[33]
The Supreme Court reaffirmed that a case may be dismissed as moot upon a showing that the defendant cannot reasonably be expected to resume the challenged conduct.[34] Under certain circumstances, however, this may require the disclosure of classified or confidential reasons.[35] Absent necessary disclosures of classified information in such circumstances, the case is not moot.
[1] Federal Bureau of Investigation v. Yonas Fikre, 601 U.S. 243, 240, 241 (2024).
[2] See id. (“What matters is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct.”).
[3] See id. at 242.
[4] See id. at 244.
[5] See id.
[6] See id. at 238.
[7] See id. at 234.
[8] See id. at 238–39.
[9] See id.
[10] See id.
[11] See id. at 239.
[12] Id.
[13] See id. at 239–40.
[14] See id. at 240.
[15] See id. at 238–39.
[16] See id. at 239.
[17] See id. at 240 (“In his complaint, [Mr. Fikre] alleged that the government had violated his rights to procedural due process by failing to provide any meaningful notice of his addition to the No Fly List . . . he [also] claimed, the government had placed him on the list for constitutionally impermissible reasons.”).
[18] See id.
[19] See id. (quoting Long v. Pekoske, 38 F.4th 417, 427 (4th Cir. 2022)).
[20] See id. (“[T]he government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past [i.e., unconstitutionally list Mr. Fikre].”).
[21] Id. at 240.
[22] See id. at 241 (“[F]ederal judges are not counselors or academics; they are not free to take up hypothetical questions that pique a party’s curiosity or their own.”).
[23] See id. at 240 (“A court with jurisdiction has a ‘virtually unflagging obligation’ to hear and resolve questions properly before it.”) (quoting Colorado River Water Conservation Dis. V. United States, 424 U.S. 800, 817 (1976)); Fikre, 601 U.S. at 241 (stating the threshold to establish mootness is high, lest “a defendant [] suspend its challenged conduct acter being sued, win dismissal, and later pick up where it left off”).
[24] See id.
[25] See id. at 244–45.
[26] See id. at 241 (stating mootness is “a ‘formidable burden,’” in order to prevent “a live case or controversy” from being “disguised,” by litigation tactics and “a federal court’s constitutional authority,” from being “manipulated.”) (quoting Friends of the Earth, Inc., v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)).
[27] See Fikre, 601 U.S. at 245 (Alito, J., concurring).
[28] See id.
[29] Id. at 244 (majority opinion).
[30] See id. (Alito, J., concurring) (“Recognizing such limitations, I do not understand the Court’s opinion to require the Government to disclose classified information as a matter of course.”).
[31] See id. at 245 (“[S]ome of the Nation’s 600-plus district courts are poorly positioned to handle classified documents, and most court personnel lack security clearance.”).
[32] Id. at 244 (majority opinion).
[33] Id. at 245 (Alito, J., concurring).
[34] See id.
[35] See id. at 244.