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SUPREME COURT OF THE UNITED STATES
_________________
No. 22–1178
_________________
FEDERAL BUREAU OF INVESTIGATION, et al.,
PETITIONERS
v. YONAS FIKRE
on writ of certiorari to the united states
court of appeals for the ninth circuit
[March 19, 2024]
Justice Gorsuch delivered the opinion of the
Court.
Yonas Fikre, a U. S. citizen, brought suit
alleging that the government placed him on the No Fly List
unlawfully. Later, the government removed him from the list. The
only question we are asked to decide is whether the government’s
action suffices to render Mr. Fikre’s claims moot.
I
A
In the aftermath of the September 11, 2001,
terrorist attacks, the federal government rapidly expanded its No
Fly List. By 2016, the government forbade approximately 81,000
individuals from flying into, out of, within, or over the United
States. Brief for American Civil Liberties Union et al. as
Amici Curiae 5. Many of the details surrounding the No Fly
List are not publicly available. Some are classified, and it
appears no statute or publicly promulgated regulation describes the
standards the government employs when adding individuals to, or
removing them from, the list.
Id., at 6.
In his complaint, Mr. Fikre challenged his
placement on the No Fly List. In support of his suit, he pleaded a
number of facts. Those as-yet uncontested factual allegations, the
truth of which we do not pass upon, aver as follows:[
1]
When he was a child and war broke out in his
home country of Eritrea, Mr. Fikre and his family moved to Sudan
before eventually immigrating to the United States. App. to Pet.
for Cert. 126a, Seventh Amended Complaint ¶4;
id., at 137a,
¶51. In time, Mr. Fikre became a U. S. citizen, and as an adult he
lived in Portland, Oregon.
Id., at 137a–138a, ¶¶51–52. After
working for an American cell phone company, he decided to start his
own business involving the distribution and retail sale of consumer
electronic products in his native East Africa.
Id., at 138a,
¶52. In pursuit of this new venture, he traveled to Sudan in late
2009 where some of his extended family still lived.
Ibid.
On arrival, Mr. Fikre informed U. S. officials
of his interest in pursuing business opportunities in the country.
Ibid. Eventually, he received an invitation to the
U. S. embassy—ostensibly for a luncheon.
Id., at
138a–139a, ¶¶53–55. But, once there, Fikre was whisked instead to a
small meeting room with two FBI agents.
Id., at 139a,
¶¶55–56. The agents told him that the government had placed him on
the No Fly List, so he “could not return to the United States.”
Ibid., ¶57. The agents then questioned him “extensively
about the events, activities, and leadership” of the Portland
mosque he attended.
Ibid., ¶58. They asked him to serve as
an FBI informant and report on other members of his religious
community, offering to “take steps to remove [him] from the No Fly
List” if he agreed.
Id., at 140a, ¶59. Mr. Fikre refused and
eventually departed.
Ibid. The next day, an agent told him
over the phone that, “ ‘[w]henever you want to go home[,] you
come to the embassy.’ ”
Id., at 140a–141a, ¶62. Mr.
Fikre took this to mean that he “would not be removed from the No
Fly List and he could not travel to the United States unless he
became” an FBI informant.
Id., at 141a, ¶62.
Several weeks later, Mr. Fikre traveled to the
United Arab Emirates to advance his business plans.
Id., at
142a, ¶68. Eventually, however, authorities there “arrested,
imprisoned, and tortured him.” 35 F. 4th 762, 766 (CA9 2022);
App. to Pet. for Cert. 142a–143a, Seventh Amended Complaint
¶¶69–71. They interrogated him, too, about his Portland mosque, its
events, leader, and fundraising activities.
Id., at 143a,
¶72. One interrogator told Mr. Fikre that the FBI had solicited his
interrogation and detention.
Id., at 147a, ¶88. After
holding him for 106 days, authorities arranged to have Mr. Fikre
flown to Sweden where he had a relative.
Id., at 147a, ¶86,
148a, ¶90. He remained there until February 2015, when the Swedish
government returned him to Portland by private jet.
Id., at
152a, ¶105.
B
While still in Sweden, Mr. Fikre filed this
suit. In his complaint, he 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, any
information about the factual basis for his listing, and any
appropriate way to secure redress.
Id., at 165a, ¶164.
Further, he claimed, the government had placed him on the list for
constitutionally impermissible reasons, including his race,
national origin, and religious beliefs.
Id., at 168a, ¶176.
By way of relief, he sought a declaratory judgment confirming that
the government had violated his rights, as well as an injunction
prohibiting it from keeping him on the No Fly List.
Id., at
169a–170a.
Eventually, in May 2016, the government notified
Mr. Fikre that it had removed him from the No Fly List. No
explanation accompanied the decision. See Notice Regarding
Plaintiff ’s Status in No. 3:13–cv–899 (D Ore.), ECF Doc. 98,
p. 1. But, in court, the government argued that its
administrative action rendered his lawsuit moot; even accepting all
his allegations as true, the government said, dismissal had to
follow as a matter of law. Supp. Memorandum Regarding
Plaintiff ’s Removal From the No Fly List, ECF Doc. 104,
pp. 2–4.
The district court agreed with the government’s
assessment, but the Ninth Circuit reversed. 904 F.3d 1033 (2018).
When a party seeks to moot a case based on its own voluntary
cessation of challenged conduct, the Ninth Circuit held, it must
show that its “ ‘allegedly wrongful behavior’ ” cannot
“ ‘reasonably be expected to recur.’ ”
Id., at
1039. And, the court continued, the government’s “mere announcement
that Fikre was removed” from the No Fly List fell short of
satisfying this standard.
Ibid.
On remand, the government tried again. Once
more, it did not contest the truth of Mr. Fikre’s allegations
concerning his experiences. See Memorandum in Support of
Defendants’ Motion To Dismiss in No. 3:13–cv–899 (D Ore.), ECF Doc.
146, pp. 21–23. But, this time, the government relied on a
declaration from Christopher R. Courtright, the Acting Deputy
Director for Operations of the Terrorist Screening Center. The
declaration represented that Mr. Fikre “will not be placed on the
No Fly List in the future based on the currently available
information.” App. to Pet. for Cert. 118a, ¶5. Persuaded by the
government’s latest motion, the district court again dismissed Mr.
Fikre’s claims as moot. 35 F. 4th, at 769.
Again, however, the Ninth Circuit reversed. The
government’s declaration might mean that Mr. Fikre “will not be
placed on the No Fly List now based on what he did in the past.”
Id., at 772. But, the Ninth Circuit reasoned, the
declaration does not disclose what conduct landed Mr. Fikre on the
No Fly List, and it does not ensure that he will “not be placed on
the List if . . . he . . . engag[es] in the
same or similar conduct” in the future.
Ibid. As a result,
the court concluded, the government had still failed to meet its
burden of establishing that its allegedly unlawful conduct cannot
“ ‘reasonably be expected to recur.’ ”
Id., at
770.
Shortly after the Ninth Circuit issued its
decision, the Fourth Circuit held that a similar declaration
was sufficient to moot another American citizen’s lawsuit
challenging his placement on the No Fly List. See
Long v.
Pekoske, 38 F. 4th 417, 427 (CA4 2022). To resolve this
conflict in lower court authority, the government asked us to hear
Mr. Fikre’s case, and we agreed to do so. 600 U. S. ___
(2023).
II
The Constitution grants federal courts
jurisdiction to decide “Cases” or “Controversies.” Art. III,
§§1, 2. A court with jurisdiction has a “virtually unflagging
obligation” to hear and resolve questions properly before it.
Colorado River Water Conservation Dist. v.
United
States,
424 U.S.
800, 817 (1976). But the converse also holds true. Sometimes,
events in the world overtake those in the courtroom, and a
complaining party manages to secure outside of litigation all the
relief he might have won in it. When that happens, a federal court
must dismiss the case as moot.
Already, LLC v.
Nike,
Inc.,
568 U.S.
85, 91 (2013). It must because federal judges are not
counselors or academics; they are not free to take up hypothetical
questions that pique a party’s curiosity or their own. The limited
authority vested in federal courts to decide cases and
controversies means that they may no more pronounce on past actions
that do not have any “continuing effect” in the world than they may
shirk decision on those that do.
Spencer v.
Kemna,
523 U.S.
1, 18 (1998).
None of this implies that a defendant may
“automatically moot a case” by the simple expedient of suspending
its challenged conduct after it is sued.
Already, 568
U. S., at 91. Instead, our precedents hold, a defendant’s
“ ‘voluntary cessation of a challenged practice’ ” will
moot a case only if the defendant can show that the practice cannot
“ ‘reasonably be expected to recur.’ ”
Friends of the
Earth, Inc. v.
Laidlaw Environmental Services (TOC),
Inc.,
528 U.S.
167, 189 (2000); see
United States v.
W. T. Grant
Co.,
345 U.S.
629, 632–633 (1953).
We have described this as a “formidable burden.”
Friends of the Earth, 528 U. S., at 190. And the reason
for it is simple: “The Constitution deals with substance,” not
strategies.
Cummings v.
Missouri, 4 Wall. 277, 325
(1867). Were the rule more forgiving, a defendant might suspend its
challenged conduct after being sued, win dismissal, and later pick
up where it left off; it might even repeat “this cycle” as
necessary until it achieves all of its allegedly “unlawful ends.”
Already, 568 U. S., at 91. A live case or controversy
cannot be so easily disguised, and a federal court’s constitutional
authority cannot be so readily manipulated. To show that a case is
truly moot, a defendant must prove “ ‘no reasonable
expectation’ ” remains that it will “return to [its] old
ways.”
W. T. Grant Co., 345 U. S., at 632–633. That
much holds for governmental defendants no less than for private
ones. See.,
e.g., West Virginia v.
EPA, 597 U.S. 697,
719 (2022);
Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U.S. 449, 457, n. 1 (2017);
Parents
Involved in Community Schools v.
Seattle School Dist. No.
1,
551 U.S.
701, 719–720 (2007).
The parties dispute none of these principles;
the only question we face concerns their application. Proceeding as
the courts below did, we accept Mr. Fikre’s uncontested factual
allegations as true for purposes of this motion to dismiss. See
supra, at 2, n.*. As the lower courts did, too, we accept as
true the supplemental evidence the government offered: its
declaration representing that Mr. Fikre “will not be placed on the
No Fly List in the future based on the currently available
information.” App. to Pet. for Cert. 118a, ¶5.
Viewed in that light, this case is not moot. To
appreciate why, it is enough to consider one aspect of Mr. Fikre’s
complaint. He contends that the government placed him on the No Fly
List for constitutionally impermissible reasons, including his
religious beliefs. In support of his claim, Mr. Fikre alleges
(among other things) that FBI agents interrogated him about a
mosque in Portland he once attended and threatened to keep him on
the No Fly List unless he agreed to serve as an informant against
his co-religionists. Accepting these as-yet uncontested
allegations, the government’s representation that it will not
relist Mr. Fikre based on “currently available information” may
mean that his past actions are not enough to warrant his relisting.
But, as the court of appeals observed, none of that speaks to
whether the government might relist him if he does the same or
similar things in the future—say, attend a particular mosque or
refuse renewed overtures to serve as an informant. Put simply, the
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.
Friends of the Earth,
528 U. S., at 190.
If its declaration alone will not do, the
government asks us to consider two further things. First, it points
to the fact that it removed Mr. Fikre from the No Fly List in 2016.
The government acknowledges that it took this action only after he
filed suit. But, it stresses, the parties have now sparred in court
for some years since his delisting. Second, the government surmises
that, during this period, Mr. Fikre “presumably has joined
religious organizations” and interacted freely with his
co-religionists. Reply Brief 9. Together, the government submits,
these points make it unlikely he will face relisting in the
future.
That, too, is insufficient to warrant dismissal.
A case does not automatically become moot when a defendant suspends
its challenged conduct and then carries on litigating for some
specified period. 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.) In all cases, it is the
defendant’s “burden to establish” that it cannot reasonably be
expected to resume
its challenged conduct—whether the suit
happens to be new or long lingering, and whether the challenged
conduct might recur immediately or later at some more propitious
moment.
West Virginia, 597 U. S., at 719. Nothing the
government offers here satisfies that formidable standard. See
Parents Involved, 551 U. S., at 719 (declining to
dismiss a case as moot five years after the defendant voluntarily
ceased its challenged conduct);
City of Mesquite v.
Aladdin’s Castle, Inc.,
455 U.S.
283, 288–289 (1982) (similar).
Aiming now in a different direction, the
government contends that the Ninth Circuit erred by conflating
mootness with the merits. The government reads portions of that
court’s decisions as suggesting that, to win dismissal, it had to
admit it lacked any lawful basis for including Mr. Fikre on the No
Fly List in the first place. For his part, Mr. Fikre disputes this
characterization of the Ninth Circuit’s work; never, he says, did
that court require the government to repudiate its past conduct to
prove mootness.
Rather than resolve who has the better reading
of another court’s decisions, it is enough to underline the reason
for our own. Yes, a party’s repudiation of its past conduct may
sometimes help demonstrate that conduct is unlikely to recur. See,
e.g., County of Los Angeles v.
Davis,
440 U.S.
625, 632–633 (1979). But often a case will become moot even
when a defendant “vehemently” insists on the propriety of “the
conduct that precipitated the lawsuit.”
Already, 568
U. S., at 91. What matters is not whether a defendant
repudiates its past actions, but what repudiation can prove about
its future conduct. It is on that consideration alone—the potential
for a defendant’s future conduct—that we rest our judgment.
Necessarily, our judgment is a provisional one.
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.
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. That is a possibility courts must be
alive to in this (and any) case, for a federal court’s duty to
ensure itself of Article III jurisdiction may begin at the
inception of a lawsuit, but it persists throughout the life of the
proceedings.
Spencer, 523 U. S., at 7.
To be sure, litigating disputes that potentially
touch on matters of national security beyond the motion-to-dismiss
stage can present evidentiary challenges for parties and courts
alike. Careful attention must be paid to the handling of classified
or privileged information. For our present purposes, however, it is
enough to know both sides agree that “[a]dhering to traditional
mootness principles is especially important in this
national-security context.” Reply Brief 18; see Brief for
Petitioners 34; Brief for Respondent 45. And adhering to those
principles here, “it is impossible to conclude” the government has
so far “borne [its] burden” of proving that this dispute is moot.
Adarand Constructors, Inc. v.
Slater,
528 U.S.
216, 224 (2000) (
per curiam).
*
The judgment of the Court of Appeals for the
Ninth Circuit is
Affirmed.
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