SUPREME COURT PERMITS CHALLENGE TO NO FLY LIST PLACEMENT
April 15, 2024
The United States Supreme Court (the “Court”) recently ruled that the federal government cannot render moot a No Fly List challenge by removing an individual from the list without a declaration that the government will not return the person to the list in the future. The Court’s unanimous decision affirmed the Ninth Circuit which previously held that the party seeking to moot a challenge based on its own voluntary cessation must show that the conduct cannot “reasonably be expected to recur.” In the aftermath of the September 11th terrorist attacks, the U.S. government retains a No Fly List which indefinitely bars certain individuals who present a potential national security risk from flying to and from the United States. The reasoning for placing a U.S. citizen on the No Fly List and subsequently removing them from the list is regularly kept secret.
In addition to alleging that the federal government violated his procedural due process rights by failing to provide any meaningful notice of his addition to the No Fly List, the plaintiff in this case sought an injunction prohibiting the government from keeping him on the list. After removing the plaintiff from the No Fly List and declaring that he would not be placed back on the list “based on currently available information,” the government claimed that such a declaration was sufficient to render moot the challenge to his placement on the No Fly List. A unanimous Court found that argument unavailing and further resolved a circuit split by ruling that a U.S. citizen can continue to challenge his placement on the No Fly List even after removal from the list. Importantly, Justice Gorsuch reasoned that the government’s “based on currently available information” declaration was insufficient to warrant dismissal because it provided no assurance that the government would not place the plaintiff back on the No Fly List in the future.
While the Court determined that the case was not moot as applied to the specific facts alleged, the Court also mentioned that its judgement was a provisional one. The ruling allows a U.S. citizen to continue challenging his placement on the No Fly List even after removal but cautions that the government may still be able to demonstrate mootness as the case unfolds.
If you have any questions, please contact Evelyn Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew Derco at 202-659-6665 or dderco@eckertseamans.com; Jay Julien at 202.659.6648 or jjulien@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.
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