The Ghost in the Medicine: The Threat Screening Center and the Mootness Tool

Authors

Jeffrey Kahn, American University Washington College of Law

Journal

SMU Dedman School of Law Legal Studies Research Paper

First Page

1

Last Page

60

Abstract

In FBI v. Fikre, the Supreme Court resolved a circuit split about the voluntary cessation exception to the mootness doctrine in what initially appears to be a plaintiff-friendly way. The Court unanimously held that the government’s “sparse declaration” was insufficient to moot lawsuits challenging the No Fly List (a list of people banned from aircraft). The declaration failed to show that the government “cannot reasonably be expected to do again in the future what it is alleged to have done in the past.” It stated only that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” Justice Gorsuch’s opinion focused exclusively on this not-good-enough declaration. Fikre’s case was not moot, Gorsuch explained, because nothing in that “terse” recital “speaks to whether the government might relist him if he does the same or similar things in the future,” whatever those things might be (the government never disclosed them). Yonas Fikre, who alleges that two FBI agents used the No Fly List to coerce him to be a government informant, and then enabled his detention and torture by agents of a friendly foreign power, fights on.

Fikre is fighting long odds. Litigation against the federal government’s Byzantine watchlisting apparatus rarely gets very far, although going nowhere takes a long time. Twenty years after the system’s post-9/11 development, only one lawsuit (out of more than forty) has ever reached trial. That took eight years, a rare exception to the government’s use of mootness as a tool to protect its watchlisting system from exposure through discovery or judicially imposed reforms. If a complaint remains standing after a salvo of motions to dismiss, then mooting the case by asserting that the plaintiff is off the relevant watchlist has routinely been the government’s practice. The Solicitor General’s petition for a writ of certiorari in Fikre’s case sought to protect this useful mootness tool, and thus protect the watchlisting system that it helps shield from scrutiny.

Fikre’s victory is illusory (and the government’s loss not so bad) because the Supreme Court’s approach will generate whac-a-mole responses. The government will try out declarations that are incrementally less “sparse” and “terse.” It may remove him and future plaintiffs from one list while quietly retaining them on others. And, additionally or alternatively, it may simply adjust the timing of its watchlisting revelations as it plays more litigation games. Just as Fikre was coming on the horizon, the judge presiding over another watchlisting case bemoaned “what almost seems to be a sick sense of delight the government has taken in withholding from the [plaintiffs] information that is key to the resolution of a jurisdictional question in their case.” Such gamesmanship is the unifying thread that ties all watchlisting cases together. It is also just what an important part of the mootness doctrine is supposed to prevent. Rather than strengthen that doctrine, the Court defanged it.

This article argues that the Supreme Court’s preoccupation with assessing agency declarations in a vacuum ignores an important element in deciding whether the government’s voluntary cessation should moot a claim. It isn’t just the declaration that should matter, but also the nature of the agency that proffers the declarant. Yet in Justice Gorsuch’s retelling of Fikre’s story, the relevant agencies are ghosts in this watchlisting machine.

Recommended Citation

Jeffrey Kahn, The Ghost in the Medicine: The Threat Screening Center and the Mootness Tool, SMU L. 1 (2024).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2292