Amicus Curiae Brief — Federal Bureau of Investigation, et al., Petitioners v. Yonas Fikre

No. 22-1178

In the Supreme Court of the United States

__________

FEDERAL BUREAU OF INVESTIGATIONS, ET AL.,

Petitioners,

v.

YONAS FIKRE,

Respondent.

__________

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

__________

BRIEF OF PATRICK G. EDDINGTON AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENT

__________

Anastasia P. Boden

Counsel of Record

Thomas A. Berry

Nathaniel Lawson

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

December 20, 2023

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 5

I. THIS COURT HAS NEVER ENDORSED

A SPECIAL RULE FOR GOVERNMENT

DEFENDANTS

IN

VOLUNTARY

CESSATION CASES. ....................................... 6

II. A SPECIAL RULE FOR GOVERNMENT

LITIGANTS IS NOT SUPPORTED BY

HISTORY OR EXPERIENCE. ....................... 14

A. Special Deference to the Government

Is Unsupported by History. ....................... 16

B. Experience Shows the Government

Should Not Receive Special Deference

in Mootness Cases. .................................... 25

CONCLUSION ........................................................... 27

ii

TABLE OF AUTHORITIES

Cases

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ..... 5, 13

Am. Cargo Transp. v. United States, 625 F.3d

1176 (9th Cir. 2010) ............................................... 15

Anna Sanders, NYC Council Wants to Repeal a

Ban on LGBT Conversion Therapy, N.Y.

DAILY NEWS (Sept. 11, 2019) ................................. 25

Chi., Milwaukee & St. Paul Ry. v. Minnesota,

134 U.S. 418 (1890) ............................................... 19

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ................................................. 3

City News & Novelty v. City of Waukesha, 531

U.S. 278 (2001) ...................................................... 13

City of Mesquite v. Aladdin’s Castle, 455 U.S.

283 (1982) ............................................................ 6, 9

Coral Springs St. Sys. v. City of Sunrise, 371

F.3d 1320 (11th Cir. 2004) .................................... 15

County of Los Angeles v. Davis, 440 U.S. 625

(1979) ................................................................. 6, 10

Crowell v. M’Fadon, 12 U.S. 94 (1814) ..................... 18

DeFunis v. Odegaard, 416 U.S. 312 (1974) ......... 10, 11

Ehlert v. United States, 402 U.S. 99 (1971) .............. 12

Erie v. Pap’s A.M. 529 U.S. 277 (2000) ....................... 7

Ex parte Gilchrist, 10 F. Cas. 355 (C.C.D.S.C.

1808)....................................................................... 21

Fikre v. FBI, 35 F.4th 762 (9th Cir. 2022) .................. 4

Fikre v. FBI, 904 F.3d 1033 (9th Cir. 2018) ................ 4

iii

Fikre v. FBI, No. 3:13-cv-00899-BR, 2016 U.S.

Dist. LEXIS 133307 (D. Or. Sept. 28, 2016) ......... 15

Fikre v. Wray, No. 3:13-cv-00899-MO, 2020 U.S.

Dist. LEXIS 145667 (D. Or. Aug. 12, 2020) .......... 16

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167 (2000) .......... 4, 6, 8

Gaines v. Thompson, 74 U.S. (7 Wall.) 347

(1868) ..................................................................... 24

Gerende v. Bd. of Supervisors of Elections, 341

U.S. 56 (1951) ........................................................ 11

Harrell v. Fla. Bar, 608 F.3d 1241 (11th Cir.

2010)....................................................................... 26

Heyer v. U.S. Bureau of Prisons, 849 F.3d 202

(2017) ..................................................................... 26

Hollingsworth v. Perry, 570 U.S. 693 (2013) .............. 5

INS v. Chadha, 462 U.S. 919 (1983) ........................... 2

Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67

(1983) ..................................................................... 13

Law Students C.R. Rsch. Council, Inc. v.

Wadmond, 401 U.S. 154 (1971)....................... 12, 13

Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) ....... 21

Marbury v. Madison, 5 U.S. 137, 170 (1803) ............ 24

Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272

(1855) ..................................................................... 21

Ne. Fla. Ch. of Associated Gen. Contractors of

Am. v. City of Jacksonville, 508 U.S. 656

(1993) ................................................................... 8, 9

iv

Otis v. Watkins, 13 U.S. (9 Cranch) 339 (1815)

.......................................................................... 21, 22

Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) .............................. 8

Pres., Dirs. & Co. of Bank v. Dandridge, 25 U.S.

(12 Wheat.) 64 (1827) ...................................... 17, 18

Ross & Morrison v. Reed, 14 U.S. (1 Wheat.) 482

(1816) ..................................................................... 17

SEC v. Med. Comm. for Hum. Rts., 404 U.S. 403

(1972) ..................................................................... 13

Sossamon v. Lone Star State of Tex., 560 F.3d

316 (5th Cir. 2009) ................................................. 14

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ................ 5

Tecom, Inc. v. United States, 66 Fed. Cl. 736

(2005) ............................................................... 18, 24

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (2017) ..................................... 8

Troiano v. Supervisor of Elections, 382 F.3d

1276 (11th Cir. 2004) ............................................. 15

United States v. Chem. Found., Inc., 272 U.S. 1

(1926) ............................................................... 19, 23

United States v. Concentrated Phosphate Exp.

Assn., Inc., 393 U.S. 199 (1968) .......................... 6, 7

United States v. Morris, 23 U.S. (10 Wheat.)

246 (1825) ........................................................ 22, 23

United States v. Nix, 189 U.S. 199 (1903)................. 19

United States v. W. T. Grant Co., 345 U.S. 629

(1953) ................................................................... 7, 9

v

West Virginia v. EPA, 142 S. Ct. 2587 (2022)

................................................................ 4, 5, 6, 8, 14

Whitehill v. Elkins, 389 U.S. 54 (1967) ............... 11, 12

Wichita R.R. & Light Co. v. Pub. Utils. Comm’n

260 U.S. 48 (1922) ................................................. 19

Wilderness Soc'y v. Kane County, 581 F.3d 1198

(10th Cir. 2009)...................................................... 27

Other Authorities

Aram A. Gavoor & Steven A. Platt, In Search of

the Presumption of Regularity, 74 FLA. L.

REV. 729 (2022) .................................... 16, 17, 18, 23

Brief in Opposition, FBI v. Fikre, 2023 U.S.

LEXIS 2960 (No. 22-1178) ...................................... 4

Harold Dubroff, The Implied Covenant of Good

Faith in Contract Interpretation and GapFilling: Reviling a Revered Relic, 80 ST.

JOHN’S L. REV. 559 (2006) ..................................... 24

Jerry L. Mashaw, Federal Administration and

Administrative Law in the Gilded Age, 119

YALE L.J. 1362 (2010) ............................................ 20

Jerry L. Mashaw, Recovering American

Administrative Law: Federalist Foundations,

1787–1801, 115 YALE L.J. 1256 (2006) ................. 21

Jerry L. Mashaw, Reluctant Nationalists:

Federal Administration and Administrative

Law in the Republican Era, 1801–1829, 116

YALE L.J. 1636 (2007) ................................ 20, 21, 22

vi

Jonathan M. Janssen, Far from a “Moot” Issue:

Addressing the Growing Problem of Lower

Courts’ Presumption of Governmental “Good

Faith” in Voluntary Cessation Cases, 106

IOWA L. REV. 1443 (2021) ......................................... 7

Joseph C. Davis & Nicholas R. Reaves, The

Point Isn’t Moot: How Lower Courts Have

Blessed Government Abuse of the VoluntaryCessation Doctrine, 129 YALE L.J. F. 325

(2019) ............................................. 14, 15, 25, 26, 27

Petition for a Writ of Certiorari, FBI v. Fikre,

2023 U.S. LEXIS 2960 (No. 22-1178) ................. 3, 4

THE FEDERALIST NO. 51 (James Madison)

(Clinton Rossiter ed., 1999) ................................. 2, 3

THE FEDERALIST NO. 78 (Alexander Hamilton)

(Clinton Rossiter ed., 1999) ..................................... 3

The Presumption of Regularity in Judicial

Review of the Executive Branch, 131 HARV. L.

REV. 2431 (2018) .............................................. 18, 19

Thomas W. Merrill, Article III, Agency

Adjudication, and the Origins of the

Appellate Review Model of Administrative

Law, 111 COLUM. L. REV. 939 (2011) .............. 20, 21

1

INTEREST OF AMICUS CURIAE1

Amicus curiae Patrick G. Eddington is a Senior

Fellow at the Cato Institute specializing in issues at

the intersection of constitutional rights and security.

He has been an adjunct assistant professor at

Georgetown University’s Center for Security Studies

in the Edmund Walsh School of Foreign Service and

the McCourt School of Public Policy. A former CIA

analyst, he has written extensively on federal

government surveillance overreach and misconduct in

publications across the political spectrum. His

forthcoming book, The Triumph of Fear: Domestic

Surveillance and Political Repression from McKinley

through Eisenhower (Georgetown University Press,

expected March 2025) is the first comprehensive

examination of federal surveillance misconduct and

overreach in over 40 years. Eddington received a BA

in international affairs from Missouri State University

in 1985 and an MA in national security studies from

Georgetown University in 1992. Between 2004 and

2014, he served as communications director, and later

as senior policy advisor, to then-Rep. Rush Holt (DNJ). Eddington authored the first federal detainee

video recording provision enacted into law (P.L. 11184, Sec. 1080).

Eddington has an important and substantial

interest in supporting a meaningful role for judicial

oversight when Executive branch officials attempt to

evade civil or criminal liability for official acts taken

under color of law against U.S. Persons, either

1 Rule 37.6 statement: No part of this brief was authored by

any party’s counsel, and no person or entity other than amicus

and his counsel funded its preparation or submission.

2

domestically or overseas. He has particular concerns

about the ability of plaintiffs to successfully challenge

standing, mootness, executive privilege, state secrets,

or other claims advanced by executive branch

authorities in national security or law enforcement

cases.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In this case, the executive branch asks the Court to

turn the voluntary cessation doctrine on its head, but

only when doing so benefits the government. Such a

special rule for government defendants is not just

inconsistent with precedent, history, and experience—

it is also at odds with basic principles of the separation

of powers. The judicial branch often serves as the only

viable check on the executive and legislative branches.

And when it does, it is vital that judicial review be

realistic, searching, and engaged, not deferential.

The separation of powers is a fundamental aspect

of our Constitution. The Framers understood that it is

“essential to the preservation of liberty” that the

different powers of government be exercised by

separate, independent branches. THE FEDERALIST NO.

51, at 289 (James Madison) (Clinton Rossiter ed.,

1999). Yet inevitably, there is a “hydraulic pressure

inherent within each of the separate Branches to

exceed the outer limits of its power” INS v. Chadha,

462 U.S. 919, 951 (1983). To protect liberty against

this threat of encroachment, “[a]mbition must be made

to counteract ambition.” THE FEDERALIST NO. 51,

supra, at 290:

[T]he great security against a gradual

concentration of the several powers in the

same department, consists in giving to

3

those who administer each department,

the necessary constitutional means, and

personal

motives,

to

resist

encroachments of the others.

Id. at 289–90.

Judicial review is a critical element of this

separation of powers scheme. The separation of powers

“can be preserved in practice no other way than

through the medium of the courts of justice; whose

duty it must be to declare all acts contrary to the

manifest tenor of the constitution void.” THE

FEDERALIST NO. 78, at 434 (Alexander Hamilton)

(Clinton Rossiter ed., 1999). If the courts abdicate this

role and fail to engage in a “thorough, probing, indepth review” of executive or legislative acts, the

judicial check becomes a mere pretense, undermining

our constitutional system of checks and balances.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 415 (1971). The special deference that some

courts afford government litigants when they seek to

have a case dismissed as moot is one such example.

The present case demonstrates the seriousness of

this problem. Yonas Fikre, an American citizen, was

placed on the No-Fly List in 2010 while he was out of

the country. Fikre alleges that this was an attempt to

coerce him into becoming a government informant. See

Petition for a Writ of Certiorari at 3–4, FBI v. Fikre,

2023 U.S. LEXIS 2960 (No. 22-1178). Fikre attempted

to appeal his placement on the list using DHS

procedures, but these appeals were denied. Fikre was

told only that he had been “identified as an individual

who may be a threat to civil aviation or national

security.” See id. at 4. Fikre’s placement prevented

him from returning to the United States until 2015,

4

damaged his reputation, and destroyed his marriage.

See Fikre v. FBI (Fikre I), 904 F.3d 1033, 1036 (9th Cir.

2018).

When Fikre sued in federal court to enforce his

rights, the government removed him from the list—

initially without explanation—and then argued that

the case was moot. See Fikre v. FBI (Fikre II), 35 F.4th

762, 767 (9th Cir. 2022). The FBI has never conceded

that its original decision to place Fikre on the No-Fly

List was wrong, nor has it explained what changed

such that Fikre no longer deserves placement on the

list. See Brief in Opposition at 11–13, FBI v. Fikre,

2023 U.S. LEXIS 2960 (No. 22-1178).

Generally, a defendant cannot make a case moot by

voluntarily ceasing the challenged conduct. See, e.g.,

Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000). The burden is on

the defendant to show that the case is moot. See West

Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022).

Nonetheless, the district court ruled that this case was

moot because “the record did not indicate a lack of good

faith on the government’s part.” Fikre I, 904 F.3d at

1037.

This special rule for government defendants,

supposedly based on the “presumption of regularity”

afforded government officials, flips the voluntary

cessation doctrine on its head. In the normal case, the

burden is on the defendant to show that it ceased its

challenged conduct for a legitimate reason rather than

to strategically moot the case. Yet when the

government is the defendant, some lower courts have

reversed this burden of persuasion. Under this flawed

approach, the government is uniquely presumed to

have acted legitimately, and the burden is instead on

5

the plaintiff to show that the cessation was strategic.

Neither history nor experience support giving

government defendants such a benefit of the doubt.

When courts refuse to look into the actions of

government defendants with the same scrutiny that

they would apply to private defendants, they abrogate

their constitutional role to check executive or

legislative overreach. The court of appeals correctly

reversed, but this special rule for government

defendants nonetheless continues to be applied in

several circuits.

This Court has an opportunity to put an end to this

double standard once and for all. The decision of the

court of appeals should be affirmed, and the Court

should make clear that the government is not entitled

to a special exception under the mootness analysis.

ARGUMENT

Under Article III of the Constitution, the judicial

power extends only to “Cases” and “Controversies.”

See, e.g., Spokeo, Inc. v. Robins, 578 U.S. 330, 337

(2016). Such a case or controversy must “persist

throughout all stages of litigation.” West Virginia, 142

S. Ct. at 2606 (quoting Hollingsworth v. Perry, 570

U.S. 693, 705 (2013)). “[W]hen the issues presented are

no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome,” the case is moot “[n]o matter

how vehemently the parties continue to dispute the

lawfulness of the conduct that precipitated the

lawsuit.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013).

However, “[i]t is well settled that the voluntary

cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of

6

the practice.” City of Mesquite v. Aladdin’s Castle, 455

U.S. 283, 289 (1982). That’s because a defendant who

has voluntarily ceased the challenged conduct remains

“free to return to his old ways.” United States v.

Concentrated Phosphate Exp. Assn., Inc., 393 U.S. 199,

203 (1968). The burden is on the defendant to show

that the case is truly moot. See West Virginia, 142 S.

Ct. at 2607.

That burden is “heavy.” Friends of the Earth, 528

U.S. at 189. The defendant is held to a “stringent”

standard, which presumes that the dispute remains

live unless “subsequent events made it absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur.” Id. at 189 (quoting

Concentrated Phosphate, 393 U.S. at 203) (emphasis

added). Only when “interim relief or events have

completely and irrevocably eradicated the effects of

the alleged violation” is the case moot. County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979). This Court

has never carved out an exception for government

defendants, and it should not do so now.

I. THIS COURT HAS NEVER ENDORSED A

SPECIAL

RULE

FOR

GOVERNMENT

DEFENDANTS IN VOLUNTARY CESSATION

CASES.

This Court has set a consistent standard in its

voluntary cessation cases: A defendant’s mere promise

that it will not resume challenged conduct does not

suffice to moot a case. That principle can be traced

back to the foundational case for the voluntary

cessation exception, United States v. W. T. Grant Co.,

7

345 U.S. 629 (1953).2 In that case, the defendant not

only voluntarily ceased the challenged conduct but

also disclaimed any intention to repeat that conduct in

the future. See id. at 633. The Court nonetheless held

that “Such a profession does not suffice to make a case

moot . . . .” Id.

Fifteen years later, the Court affirmed this

proposition. In Concentrated Phosphate, the Court

stated that “[a] case might become moot if subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” 393 U.S. at 203. But it was not “absolutely

clear” in that case, because the Court had “only

appellees’ own statement that it would be

uneconomical for them to engage in” the challenged

conduct in the future. Id. The Court affirmed that

“Such a statement, standing alone, cannot suffice to

satisfy the heavy burden of persuasion which we have

held rests upon those in appellees’ shoes.” Id. See also

Erie v. Pap’s A.M. 529 U.S. 277, 287–89 (2000)

(refusing to declare the case moot in the face of an

affidavit that the party had closed the business

involved in the suit).

This Court has repeatedly applied the traditional

voluntary cessation standard to government

defendants. Recently in West Virgina v. EPA, the

Court rejected a mootness argument that “boil[ed]

down to [the Government’s] representation that EPA

[had] no intention of enforcing” the plan at issue prior

to new rulemaking. 142 S. Ct. at 2607. The Court made

See Jonathan M. Janssen, Far from a “Moot” Issue:

Addressing the Growing Problem of Lower Courts’ Presumption of

Governmental “Good Faith” in Voluntary Cessation Cases, 106

IOWA L. REV. 1443, 1452 (2021).

2

8

clear again that it does “not dismiss a case as moot in

such circumstances,” citing the “heavy” burden

defendants face in voluntary cessation cases. See id.

Trinity Lutheran Church of Columbia, Inc. v.

Comer was similar. Missouri offered grants to help

schools and nonprofit daycare centers build

playgrounds, but refused to give such a grant to

plaintiff because plaintiff was a religious organization.

See 582 U.S. 449, 453–55 (2017). Although the

Missouri governor began giving grants to religious

organizations on the same terms as secular

organizations after suit was filed, this Court held that

the case was not moot under traditional voluntarycessation principles. See id. at 457 n.1.

In Parents Involved in Community Schools v.

Seattle School District No. 1, parents sued over their

children being denied admission to particular schools

because of their race under district integration plans

in non-segregated districts. See 551 U.S. 701, 709–11

(2007). Even though the districts ceased using the

challenged plans during the litigation, this Court

found that the case was not moot because it was not

“absolutely clear” that the districts would never

reimpose the plans. See id. at 719 (quoting Friends of

the Earth, 528 U.S. at 189).

Northeastern Florida Chapter of Associated

General Contractors of America v. City of Jacksonville

involved Jacksonville offering preferential treatment

to certain minority-owned businesses when awarding

city contracts. See 508 U.S. 656, 658 (1993). During

litigation, Jacksonville repealed the relevant

ordinance and replaced it with another substantially

similar ordinance. See id. at 660–61. This Court held

that the case was not moot because “[t]here is no mere

9

risk that Jacksonville will repeat its allegedly

wrongful conduct; it has already done so.” Id. at 661–

62.

City of Mesquite v. Aladdin’s Castle involved a

challenge to a licensing ordinance. See 455 U.S. 283,

286–87 (1982). During the course of the litigation, the

city amended the ordinance to repeal the challenged

language. See id. at 288. This Court held that the case

was not moot because “the city’s repeal of the

objectionable language would not preclude it from

reenacting precisely the same provision,” and so the

defendant was “free to return to his old ways.” Id. at

289 n.10 (quoting W. T. Grant Co., 345 U.S. at 632).

Indeed, this Court has never endorsed a special

rule for government defendants in voluntary cessation

cases. Where the Court has found a case against the

government to be moot, it has done so based on

something stronger than a mere promise not to resume

the challenged conduct. Although the government has

cited some of the following cases as establishing a

special rule, not one actually does so. In those cases

where the Court has made some positive reference to

the statements of government officials when deeming

a case moot, it did not find mootness based on

government statements alone.

For example, although the Court found the case

moot in County of Los Angeles v. Davis, it did not rely

on the government’s mere say-so. Instead, the Court

independently examined the facts and held that the

government had originally engaged in the challenged

conduct only due to “unique” circumstances that were

“no longer present.” 440 U.S. 625, 632 (1979).

Crucially, this holding was based on an independent

review of the facts, not because the Court relied on the

10

government’s mere promise. In dissent, Justice Powell

argued that the county had “not disclaimed an

intention to resume” the challenged conduct and that

“a disclaimer—were it made” would not “satisfy the

‘heavy burden’ imposed upon a defendant seeking to

have a suit dismissed as moot.” Id. at 644–45 (Powell,

J., dissenting). Nothing in the majority opinion

contradicts this view of Justice Powell’s.

In another case challenging a state law school’s

admission practices, the plaintiff had been

provisionally admitted to the law school while the

litigation proceeded. DeFunis v. Odegaard, 416 U.S.

312, 314–15 (1974). By the time the Court issued its

decision, the plaintiff had been “irrevocably admitted

to the final term of the final year of the Law School

course.” Id. at 317. The state then informed the Court

that the law school had a “settled and unchallenged

policy” of allowing those who had enrolled in a quarter

to finish the quarter. Id. at 318. The Court therefore

held that the case was moot because the plaintiff

would “complete his law school studies at the end of

the term for which he ha[d] now registered” no matter

how the Court ruled. Id. at 319.

The Court made clear that it was the certainty of

the plaintiff’s graduation under this longstanding

policy that mooted the case, not any voluntary

cessation. The Court explicitly noted that the law

school would likely have been unable to moot the case

by merely changing its challenged admission

standards and promising not to change them back. See

id. at 318.

While the Court accepted the state’s assurance that

the plaintiff’s registration for the quarter could not be

revoked under the school’s policies, it did so because

11

“the settled practice of the Court” was “to accept

representations such as these as parameters for

decision.” Id. at 317. The petitioner quotes this

language as supporting a presumption of regularity

that supposedly requires deference to governmental

statements in voluntary cessation cases. See Brief for

the Petitioners at 18. But in context, the Court was not

referring to any longstanding practice of accepting

promises to refrain from conduct in the future. Rather,

the Court was referring to a practice of accepting

representations about a government entity’s current

and binding policy.

The cases that the Court in DeFunis cited as

precedent for this “settled practice” confirm that the

Court was not suggesting a practice of accepting mere

promises as sufficient to moot the case. Gerende v.

Board of Supervisors of Elections, for example, asked

whether a state law required office seekers merely to

swear they did not support the violent overthrow of the

government, or whether the law required a broader

affirmation of belief. See 341 U.S. 56 (1951).

Maryland’s highest state court had interpreted the law

narrowly, and the Maryland Attorney General had

“declared that he would advise the proper authorities”

to apply the law according to that narrow construction.

See id. at 56–57. On that understanding, the Court

upheld the oath requirement.

The Court later reaffirmed that it was not bound to

accept the government’s promise that it won’t resume

challenged conduct. See Whitehill v. Elkins, 389 U.S.

54, 57–58 (1967). In Whitehill, the Court refused to

rely on the Maryland’s Attorney General’s statement

that the statute would be applied a certain way. See

id. at 57–59. Instead, the Court interpreted the statute

12

and found it unconstitutional. See id. at 60–62. The

Court clarified that it had chosen to accept the

narrower construction in Gerende as a matter of

constitutional avoidance. See id. at 58. The

circumstances in Gerende would have been very

different had the Maryland Attorney General first

interpreted the requirement broadly and then changed

course. But because the Maryland Attorney General

had consistently held the narrow view of the law,

Gerende was not a “voluntary cessation” case.

Ehlert v. United States, 402 U.S. 99 (1971), the

third case DeFunis cited, is similarly inapposite.

Ehlert concerned not a governmental promise

regarding future conduct but rather the government’s

interpretation of a regulation. Specifically, the case

concerned an interpretation that received Seminole

Rock/Auer deference. See id. at 105. In line with those

precedents, the Court deferred to the government’s

interpretation of the regulation at issue. But the Court

explicitly stated that if, “contrary to that assurance,”

the government later interpreted the regulation

differently, “a wholly different case would be

presented.” Id. at 107. The government’s views had

weight in the case only because of separate deference

doctrines governing administrative law, not because of

any special trust in the government’s promise to

refrain from conduct.

Finally, Law Students Civil Rights Research

Council, Inc. v. Wadmond similarly involved the

government’s interpretation of a regulation. See 401

U.S. 154, 162 (1971). The Court deferred to the state

agency’s interpretation because it was made by “the

very state authorities entrusted with the definitive

interpretation of the language of the Rule.” Id. at 162–

13

63. Again, Wadmond was not a case of voluntary

cessation.

All other precedents that supposedly support

deference to governmental promises in mootness cases

likewise concerned more than a mere promise. Already

involved a legally binding covenant, not a mere

statement by the defendant. See Already, LLC v. Nike,

Inc., 568 U.S. 85, 93 (2013). Iron Arrow Honor Society

v. Heckler, 464 U.S. 67 (1983), involved the voluntary

acts of a third-party nondefendant and not the

defendant. See id. at 71–72.

City News & Novelty v. City of Waukesha involved

the unusual circumstance of the plaintiff trying to

moot the case, rather than the defendant. See 531 U.S.

278 (2001). Plaintiffs generally do not have an

incentive to strategically moot their own cases. City of

Erie v. Pap’s A.M. was an exception, because mooting

the case would have left the lower court ruling in the

plaintiff’s favor intact. See id. at 283–84.

SEC v. Medical Committee for Human Rights

wasn’t even a voluntary cessation case. Instead, the

case was moot because the plaintiffs managed to get

the relief they were seeking. The plaintiffs had sued

because they wanted their proposal voted on by the

company’s shareholders, but the company omitted the

proposal from its yearly proxy statements. See 404

U.S. 403, 404 (1972). During the course of the

litigation, the company added the proposal to a proxy

statement, and the proposal was voted down by the

shareholders. See id. at 405–06. Thus, this Court ruled

that the case was moot. See id. at 406.

In sum, this Court has consistently held that the

defendant’s voluntary cessation of challenged conduct

does not necessarily moot the case, even when the

14

defendant promises not to resume the challenged

conduct. And the Court has not treated government

defendants any differently in that regard.

II. A SPECIAL RULE FOR GOVERNMENT

LITIGANTS IS NOT SUPPORTED BY

HISTORY, OR EXPERIENCE.

The voluntary cessation doctrine is rooted in a

rational suspicion that a defendant may be trying to

strategically avoid judicial review. Because voluntary

cessation leaves a defendant “free to return to his old

ways,” courts rightly place the burden on a defendant

to show that the case is truly moot. See West Virginia,

142 S. Ct. at 2607.

By contrast, special deference to governmental

statements rests on the theory that courts should place

a special trust in the government that they would not

give other defendants. For example, some courts

suppose that government defendants are “public

servants, not self-interested private parties,” and that

their public-spiritedness will cause them to not act

strategically. Sossamon v. Lone Star State of Tex., 560

F.3d 316, 325 (5th Cir. 2009). On this view, courts

should assume that “government officials tell the truth

about why they have taken specific actions; have

properly discharged their official duties; have acted

with proper motives; and are generally truthful,

ethical, and professional.” Joseph C. Davis & Nicholas

R. Reaves, The Point Isn’t Moot: How Lower Courts

Have Blessed Government Abuse of the VoluntaryCessation Doctrine, 129 YALE L.J. F. 325, 326 (2019).

As one lower-court opinion summarized: “unlike in the

case of a private party, we presume the government is

acting in good faith.” Am. Cargo Transp. v. United

States, 625 F.3d 1176, 1180 (9th Cir. 2010).

15

Courts embracing the special rule in cases of

voluntary cessation have acknowledged that it flips

the normal presumption in mootness inquiries on its

head. The Eleventh Circuit has stated that

“[g]overnmental entities and officials have been given

considerably more leeway than private parties in the

presumption that they are unlikely to resume illegal

activities.” Coral Springs St. Sys. v. City of Sunrise,

371 F.3d 1320, 1328–29 (11th Cir. 2004). That circuit

has held that for government defendants, “there is a

rebuttable presumption that the objectionable

behavior will not recur.” Troiano v. Supervisor of

Elections, 382 F.3d 1276, 1283 (11th Cir. 2004)

(emphasis in original). In total, at least six circuits

have imposed a lighter burden upon government

defendants in voluntary cessation cases. See Davis &

Reaves, supra, at 333.

The district court in this case initially held that the

government’s voluntary removal of Fikre from the NoFly List sufficed to moot the case because there was

“not any evidence in the record” that the removal was

to strategically moot the case rather than a legitimate

change of mind. Fikre v. FBI (Fikre i), No. 3:13-cv00899-BR, 2016 U.S. Dist. LEXIS 133307, at *24 (D.

Or. Sept. 28, 2016). That reversed the burden of proof

under the voluntary cessation doctrine, making the

plaintiff show that the challenged conduct would

resume rather than making the defendant show that

it would not. When the Ninth Circuit initially reversed

and remanded, the district court again found the case

moot, this time based on the government’s declaration

that it would not re-add Fikre to the No-Fly List “based

on currently available information.” Fikre v. Wray

(Fikre ii), No. No. 3:13-cv-00899-MO, 2020 U.S. Dist.

LEXIS 145667, at *8 (D. Or. Aug. 12, 2020). Because a

16

defendant’s mere promise that it will not resume

challenged conduct does not ordinarily suffice to moot

a case, the district court’s decision can only be

explained by a special solicitude to the government.

Not only is this contrary to this Court’s precedents,

it is unsupported by history and experience.

A.

Special Deference to the Government’s

Statement Is Unsupported by History.

Although courts have long adopted a “presumption

of regularity” for certain government processes, that

history does not justify a newfound presumption of

good faith for government actors in voluntary

cessation cases.

The “presumption of regularity” has its roots in an

English common law maxim, known by a Latin phrase

that translates to “All things are presumed to have

been done regularly and with due formality until the

contrary is proven.” Aram A. Gavoor & Steven A. Platt,

In Search of the Presumption of Regularity, 74 FLA. L.

REV. 729, 734 (2022). English courts frequently held

that “the presumption, that every man has conformed

to the law, shall stand till something shall appear to

shake that presumption.” Id. For instance, in the 1789

case Rex v. Gordon, prosecutors were allowed to show

that the decedent was the parish constable merely

through witness testimony that he was generally

known as such. The presumption of regularity meant

that the prosecutors did not have to prove that the

decedent was duly elected to the office. See id.

Courts in the early United States cited such cases

with approval. See id. This Court summarized the

presumption in 1816: “It is a general principle to

presume that public officers act correctly until the

17

contrary be shown.” Ross & Morrison v. Reed, 14 U.S.

(1 Wheat.) 482, 486 (1816). While this language may

seem broad, in context the word “correctly” was limited

to procedural steps. In practice, this principle was

mainly invoked to cover minor evidentiary deficiencies

or similar technicalities. See Gavoor & Platt, supra, at

735. As summed up by Justice Story, the law presumes

“that a man acting in a public office has been rightly

appointed; that entries found in public books have

been made by the proper officer; that, upon proof of

title, matters collateral to that title shall be deemed to

have been done.” Pres., Dirs. & Co. of Bank v.

Dandridge, 25 U.S. (12 Wheat.) 64, 70 (1827). Put

simply, the presumption is that officials have acted in

compliance with required procedures.

This presumption of regularity was not limited to

the actions of executive officials. It was frequently

used to presume the validity of court proceedings. See

Gavoor & Platt, supra, at 735. It even applied to

private parties generally:

the law . . . presumes that every man, in

his private and official character, does his

duty, until the contrary is proved; will

presume that all things are rightly done,

unless the circumstances of the case

overturn this presumption . . . .

Dandridge, 25 U.S. at 69–70. Purchasers of land,

married couples accused of bigamy, and carriers

changing freight rates, among others, enjoyed the

presumption. See Tecom, Inc. v. United States, 66 Fed.

Cl. 736, 760–61 (2005).

But crucially, this original presumption of

regularity did not include a presumption that officers

acted in good faith. See Gavoor & Platt, supra, at 734–

18

36, 743. The presumption was about certain required

formalities having been performed, not about the

motives of the parties who performed them. See Tecom,

66 Fed. Cl. at 758–59. Even an exceptional case like

Crowell v. M’Fadon, 12 U.S. 94 (1814), involved mere

presumption of compliance with procedure rather than

good faith.3

The only significant scholarship arguing that the

presumption of regularity historically included a

broader presumption of good faith appears to be a

recent student note. See The Presumption of

Regularity in Judicial Review of the Executive Branch,

131 HARV. L. REV. 2431, 2435–2436 (2018) [hereinafter

Executive Branch]. But the article’s historical evidence

is unconvincing.

First, the article cites only one case from before the

twentieth century. See Chi., Milwaukee & St. Paul Ry.

v. Minnesota, 134 U.S. 418, 457–58 (1890). And the

article admits that this case involved “toy[ing] with

aggressive scrutiny, invalidating state administrative

schemes and subjecting decisionmaking processes to

exacting review.” Executive Branch at 2436.

Furthermore, the article only provides citations to four

other cases from before the seminal case United States

v. Chem. Found., Inc., 272 U.S. 1 (1926) [hereinafter

3 In

Crowell, a customs collector seized a vessel under a

statute requiring him to seize the vessel if he believed that its

crew intended to violate an embargo law. The court presumed

that the officer had true belief of that intent. See 12 U.S. at 98.

Ultimately, the Court presumed that the officer acted in

accordance with statutory requirements, putting Crowell in line

with other early cases applying the presumption of regularity. It

just so happens that in Crowell the statutory requirements

involved the officer’s state of mind.

19

Chemical Foundation], see id. at 2431 n.4, 2436 n.37,

2436 n.45, 2445 n.118, 2447 n.138. And two of those

cases do not support a presumption of good faith,

relating merely to procedural requirements and the

accuracy of factual determinations. See id. at 2445

n.118, 2447 n.138.4

More fundamentally, the article misinterprets the

general historical practice. The article claims that the

presumption of regularity included “a presumption

that the government acted without illicit motive.” Id.

at 2444. But the article conflates the legal grounds to

challenge an action with the presumptions as to the

motives of those actions. To the extent that

questionable government actions could not be legally

challenged in early America, this was because illicit

motive was usually not an independent ground for

invalidating government action. In other words,

actions could potentially be challenged for lacking

statutory or constitutional authorization, but they

could not be challenged solely on grounds of bad faith.

This inability to challenge an action on grounds of bad

faith does not mean good faith was presumed by early

courts—rather, the question whether an act was in

good or bad faith typically did not determine the case’s

outcome and therefore was not analyzed by the court.

4 This

Court has held that agency actions are only legally

effective if done according to legislatively mandated procedures

and rules of decision. See Wichita R.R. & Light Co. v. Pub. Utils.

Comm’n 260 U.S. 48, 59 (1922). And in United States v. Nix, this

Court presumed that a marshal’s testimony about the number of

miles his deputies traveled was correct despite the marshal’s lack

of personal knowledge on the accuracy of the reported mileage.

See 189 U.S. 199, 205–06 (1903).

20

In the first few decades of the new nation, the acts

of government officials were controlled in three ways;

“political control by elected officials; administrative

control through hierarchal supervision; and legal

control through judicial review.” Jerry L. Mashaw,

Reluctant Nationalists: Federal Administration and

Administrative Law in the Republican Era, 1801–

1829, 116 YALE L.J. 1636, 1657 (2007). However,

judicial review of executive actions was much more

limited than it is today. Direct review of

administrative action and injunctive relief was

restricted to ministerial matters with no discretion

involved.

See

Jerry

L.

Mashaw,

Federal

Administration and Administrative Law in the Gilded

Age, 119 YALE L.J. 1362, 1399 (2010).

Instead of seeking direct review, citizens

challenging discretionary acts had to sue officials

under traditional common law remedies such as

trespass and replevin, and the officials would plead as

a defense that they had acted in accordance with

statutory grants of authority. See id. at 1379; Mashaw,

Reluctant Nationalists, supra, at 1674; Thomas W.

Merrill, Article III, Agency Adjudication, and the

Origins of the Appellate Review Model of

Administrative Law, 111 COLUM. L. REV. 939, 947–48

(2011). As part of such suits, courts would decide de

novo whether the officials’ actions were legally

authorized. See Merrill, supra, at 947–48. The suits

were brought against officials in their private

capacities rather than the government, the normal

remedy was damages rather than injunctive relief, and

liability accrued when officials acted illegally rather

than unreasonably. See Jerry L. Mashaw, Recovering

American

Administrative

Law:

Federalist

Foundations, 1787–1801, 115 YALE L.J. 1256, 1334

21

(2006). Officials could not even use the claim that they

were acting according to presidential instruction as a

defense if such instruction was itself contrary to

statute. See Little v. Barreme, 6 U.S. (2 Cranch) 170

(1804); Ex parte Gilchrist, 10 F. Cas. 355 (C.C.D.S.C.

1808).5

This focus on legal authorization rather than

reasonableness or good faith went both ways. There

was no such thing as an abuse of discretion—an act

within the legal discretion of the official was lawful,

regardless of whether the act was reasonable or in bad

faith. See Mashaw, Reluctant Nationalists, supra, at

1686–88, 1736. One example is Otis v. Watkins, 13

U.S. (9 Cranch) 339 (1815). In that case, a customs

official had seized the plaintiff’s vessel and cargo

under a statute permitting such seizure if the official

believed that the vessel intended to violate a statutory

embargo. See id. at 354–55. The plaintiff sued the

customs official for trespass. This Court held that the

seizure was valid because the statute only required the

official’s honest belief; that belief did not need to be

reasonable. See id. at 355–56. Otis shows that the

validity of official action depended solely upon

statutory authorization, which is why courts did not

5 Grants of public benefits were adjudicated very differently

than infringements on private rights. Only infringements on

private rights required court review; grants of public benefits

were reviewed through administrative determinations. See

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18

How.) 272, 284 (1855); Merrill, supra, at 947. Such administrative

determinations received essentially no judicial review in the

antebellum United States. See Mashaw, Reluctant Nationalists,

supra, at 1726, 1736. Instead, aggrieved claimants used an

administrative petition process—see id. at 1652, 1673, 1688—or

petitioned Congress, see id. at 1710, 1726, 1731.

22

look further into motive than whatever the statute

required.

The Court took the same approach in United States

v. Morris, 23 U.S. (10 Wheat.) 246 (1825). That case

was a suit brought by the United States 6 against a

federal official named Morris for not providing the

proceeds of a sale of condemned goods. Although a

court judgment seemingly required the official to

provide the proceeds of the condemnation, the

Treasury Secretary had statutory authority to instead

remit the forfeited goods back to the original owner so

long as the goods had not been sold and the proceeds

distributed, and the Secretary had granted such a

remittance. Mashaw, Reluctant Nationalists, supra, at

1688.

The Court ruled in favor of the federal official,

holding that the discretion granted to the Treasury

Secretary was final regardless of whether any

particular use of that discretion was reasonable. This

Court held that federal courts could not “call in

question the competency of the evidence, or its

sufficiency, to procure the remission. The Secretary of

the Treasury is, by the law, made the exclusive judge

of these facts, and there is no appeal from his decision.”

Morris, 23 U.S. at 284–85. The Court explicitly held

that even evidence of willful negligence or fraud would

not matter to the legality of the executive action. See

6 Technically,

the suit was brought by a collector and a

surveyor in the name of the United States. The proceeds of the

condemnation were supposed to be split between the United

States and the collector and surveyor. See Mashaw, Reluctant

Nationalists, supra, at 1688.

23

id. at 285. By this standard, even bad faith actions

could be lawful.

Even Chemical Foundation, often considered the

progenitor of the modern “presumption of regularity”

doctrine, 7 has traces of this traditional concept of

review of administrative actions. The United States

had sued to set aside sales of several patents to the

Chemical Foundation on the basis that the sales were

induced through fraudulent misrepresentation to

government officials. See Chemical Foundation, 272

U.S. at 4. This Court upheld the sales, holding that the

lower-court findings of no fraud were not clearly

erroneous. But this Court also stated that “[t]he

validity of the reasons stated in the [executive

official’s] orders, or the basis of fact on which they rest,

will not be reviewed by the courts.” Id. at 15. In other

words, the question of good faith was unreviewable

under the doctrine of the time, which is far different

from answering the question using a presumption

favoring the government.

Marbury v. Madison held similarly in dicta. While

the case involved a ministerial act where the officer

had no discretion, Chief Justice Marshall stated that

it is not “[t]he province of the court . . . to enquire how

the executive, or executive officers, perform duties in

which they have a discretion. Questions, in their

nature political, or which are, by the constitution and

laws, submitted to the executive, can never be made in

this court.” 5 U.S. 137, 170 (1803).

It is true that courts examined government actions

for good faith in some government contracting cases

starting in the 1870s. See Tecom, 66 Fed. Cl. at 764–

7 See, e.g., Gavoor & Platt, supra, at 732.

24

67. This exception to the general rule that courts did

not examine questions of good faith made sense,

because contract law, beginning in the late nineteenth

century, generally required good faith by the

contracting parties. See, e.g., Harold Dubroff, The

Implied Covenant of Good Faith in Contract

Interpretation and Gap-Filling: Reviling a Revered

Relic, 80 ST. JOHN’S L. REV. 559, 564–65 (2006). Such

cases were fundamentally contract cases that

happened to involve the government as a party, rather

than challenges to uniquely governmental conduct.

Furthermore, the relevant cases are nearly all from

the twentieth century and none earlier than 1876, and

so they are not very probative of original historical

doctrine. See Tecom, 66 Fed. Cl. at 764–67.

The irrelevance of good faith in this era was

encapsulated in Gaines v. Thompson, 74 U.S. (7 Wall.)

347 (1868):

[T]he general doctrine . . . [is] that an

officer to whom public duties are confided

by law . . . is not subject to the control of

the courts in the exercise of the judgment

and discretion which the law reposes in

him as a part of his official functions. . . .

[T]he law reposes this discretion in him

for that occasion, and not in the courts.

Id. at 352. It is a mistaken reading of history to

suggest that courts in this era assumed government

officials to act in good faith. Rather, courts did not need

to examine the question of good faith. The

determinative legal question in this era was whether

officials acted within their legal authority, not the

motivations behind those actions.

25

Overall, the presumption that government officials

act in good faith—and its extension to the voluntary

cessation doctrine—is not supported by history.

B.

Experience Shows the Government

Should Not Receive Special Deference in

Mootness Cases.

Finally, the presumption that government officials

generally act reasonably and with good faith is not

supported by experience. There have been numerous

examples of government officials acting unreasonably

and with improper motives in litigation.

In 2019, New York City repealed a conversiontherapy law in the face of a First Amendment lawsuit.

At least one city official admitted that it did so to avoid

creating a precedent against similar statutes. See

Davis & Reaves, supra, at 329. The city Speaker

continued to defend the substance of the law,

admitting why it was repealed: “The sad reality is the

courts have changed considerably over the last few

years, and we cannot count on them to rule in favor of

much-needed protections for the LGBTQ community.”

Anna Sanders, NYC Council Wants to Repeal a Ban on

LGBT Conversion Therapy, N.Y. DAILY NEWS (Sept.

11, 2019).8

In another case, the Florida prison system

unsuccessfully tried to moot a case to avoid a challenge

to their prison practices. The state spent a decade

litigating lawsuits brought by Orthodox Jewish

prisoners requesting a Kosher diet. See Davis &

Reaves, supra, at 329–30. The state fought these suits

vigorously when the plaintiffs were represented pro se.

8 Available at https://perma.cc/57JR-RJCG.

26

Yet when a plaintiff came along with effective outside

representation, Florida tried to moot the case by

granting that prisoner alone an accommodation, while

not changing the general policy. See id. at 330.

Although Florida lost that case, see id., Massachusetts

won an almost identical case. See id. at 330–31.

A similar case involved a deaf prisoner suing the

U.S. Bureau of Prisons to get a sign language

interpreter for religious services. See id. at 330.

Because this plaintiff was represented by a prominent

law firm, the government attempted to moot the case

by promising to provide an interpreter to that prisoner

alone. See id. at 330. The Fourth Circuit rejected the

government’s claim that the case was moot. See Heyer

v. U.S. Bureau of Prisons, 849 F.3d 202, 220 (2017).

Florida has tried to strategically moot a challenge

to the state’s advertising rules for lawyers. During the

litigation, the Bar violated its own procedures to find

that the slogan at issue was actually legal, contrary to

its previous decision regarding the slogan. See Davis &

Reaves, supra, at 331. The Eleventh Circuit rightly

rejected the claim that this reversal had mooted the

case. See Harrell v. Fla. Bar, 608 F.3d 1241, 1267–68

(11th Cir. 2010). Similarly, the Tenth Circuit rejected

a county’s claim of mootness when the county

commission stated in a press release that it had

amended the challenged law to “secure the most

successful legal resolution to current . . . litigation.”

Davis & Reaves, supra, at 331 (quoting Wilderness

Soc’y v. Kane County, 581 F.3d 1198, 1214 (10th Cir.

2009)).

Government defendants are just as prone to

abusing the voluntary cessation doctrine as private

27

defendants, meaning there’s no reason to carve out a

special rule in their favor.

CONCLUSION

For the foregoing reasons, and those described by

Respondent, the Court should affirm the Ninth

Circuit.

Respectfully Submitted,

Anastasia P. Boden

Counsel of Record

Thomas A. Berry

Nathaniel Lawson

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1414

aboden@cato.org

Dated: December 20, 2023