Amicus Curiae Brief — Federal Bureau of Investigation, et al., Petitioners v. Yonas Fikre
Supreme Court briefDec 20, 2023
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No. 22-1178
In the
Supreme Court of the United States
FEDERAL BUREAU OF INVESTIGATION, et al.,
Petitioners,
v.
YONAS FIKRE,
Respondent.
On Writ of Certiorari to the United States
Court of A ppeals for the Ninth Circuit
BRIEF OF AMICUS CURIAE CONSTITUTIONAL
LAW CENTER FOR MUSLIMS IN AMERICA IN
SUPPORT OF RESPONDENT
Christina A. Jump
Counsel of Record
Chelsea G. Glover
Samira S. Elhosary
Constitutional Law Center
for Muslims in A merica*
100 North Central Expy,
Suite 1010
Richardson, TX 75080
(972) 914-2507
cjump@clcma.org
Counsel for Amicus Curiae
*The Constitutional Law Center for Muslims in America is
the legal division of the Muslim Legal Fund of America
325585
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Whether the government can overcome the voluntary
cessation exception to mootness by removing an individual
from the No Fly list without explanation.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.
National Security as a Sword . . . . . . . . . . . . . . . . 4
A. The Jibril Family . . . . . . . . . . . . . . . . . . . . . . 6
B. Halil Demir . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. National Security as a Shield . . . . . . . . . . . . . . . . 9
III. Due Process Requires More Transparency
in the Watchlisting Process . . . . . . . . . . . . . . . . 13
IV. The Government’s Promises Provide No
Assurance that the Same Harm Will Not
Recur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iii
TABLE OF CITED AUTHORITIES
Page
Cases
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Am. Bus. Ass’n v. Slater,
231 F.3d 1 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 22
Chambers v. State of Florida,
309 U.S. 227 (1940) . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 22
Fikre v. FBI,
35 F.4th 762 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 19
Fikre v. FBI,
904 F.3d 1033 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . 17
Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Jibril v. Mayorkas,
20 F.4th 804 (D.C. Cir. 2021) . . . . . . . . . . . . . . . . . . . . 6
Jibril v. Mayorkas,
No. 1:19-cv-2457, 2023 U.S. Dist. LEXIS 32199
(D.D.C. Feb. 27, 2023) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Jibril v. Wolf,
No. 1:19-cv-2457-RCL, 2020 U.S. Dist. LEXIS 81926
(D.D.C. May 9, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iv
Cited Authorities
Page
Magassa v. Mayorkas,
52 F.4th 1156 (9th Cir. 2022) . . . . . . . . . . . . . . . . 12, 13
Mowery v. Nat’l Geospatial-Intel. Agency,
42 F.4th 428 (4th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 4
Rosales-Mireles v. United States,
138 S. Ct. 1897 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Statutes and Other Authorities
U.S. Const., amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 13
About Federal Courts, U.S. C ourts , https://
w w w.uscourts.gov/about-federal-courts#:
~:text=The%20U.S.%20Courts%20were%20
created,by%20the%20Constitution%20and%20
Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Brief Amicus Curiae of the Becket Fund for
Religious Liberty in Support of Neither Party,
FBI v. Fikre, No. 22-1178 (Nov. 13, 2023) . . . . . . . . . 10
Brief for Petitioner, FBI v. Fikre, No. 22-1178
(Nov. 13, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v
Cited Authorities
Page
Complaint Seeking Declaratory Relief and
Petition for Writ of Mandamus, Shaikh v.
McAleenan, No. 1:19-cv-01398-RBW (D.D.C.
May 14, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6
Joseph Stepansky, ‘Reeks of profiling’: US
‘no-fly’ list appears to target Muslims, A l
Jazeera (June 21, 2023), https://www.aljazeera.
com /news / 2 0 2 3/6 / 21 /reeks- of-prof i l i ngus-no-fly-list-appears-to-target-muslims . . . . . . . . . 16
Michael T. Luongo, Traveling While Muslim
Complicates Air Travel, N.Y. Times (Nov. 7, 2016),
https://www.nytimes.com/2016/11/08/business/
traveling-while-muslim-complicates-airtravel.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mikael Thalen & David Covussi, Exclusive: U.S.
Airline accidentally exposes ‘No Fly List’ on
unsecured server, T he Daily Dot (Jan. 19,
2023), https://www.dailydot.com/debug/no-flylist-us-tsa-unprotected-server-commuteair/ . . . . . . 16
Motion for Voluntary Dismissal, Eberle v. Nielsen,
No. 1:19-cv-00486 (D.D.C. Mar. 28, 2019) . . . . . . . . . 11
Petition for Writ of Mandamus, Eberle v. Nielsen,
No. 1:19-cv-00486 (D.D.C. Feb 26, 2019) . . . . . . . 5, 11
Petition for Writ of Mandamus, Maniar v. Nielsen,
No. 1:18-cv-01362 (D.D.C. June 7, 2018) . . . . . . . . . . . 6
vi
Cited Authorities
Page
Pl a i nt i f f ’s A mende d Compl a i nt S e ek i ng
Declaratory Judgment, Injunctive Relief,
and Other Damages, Demir v. Mayorkas,
No. 1:22-cv-07209 (N.D. Ill. Mar. 27, 2023) . . . . . . 8, 9
Plaintiff’s Complaint for Declaratory, Injunctive
and Other Relief, Soliman v. Mayorkas, No.
1:22-cv-79 (D.D.C. Jan. 12, 2022) . . . . . . . . . . . . . . . . . 4
Pla inti ffs’ Thi rd A mended Compla int for
I nj u n c t i v e , D e c l a r a t o r y, a n d O t h e r
Relief, Maniar v. Mayorkas, No. 1:19-cv03826-EGS (D.D.C. May 1, 2023) . . . . . . . . . . . . . 5, 15
Safeguarding Privacy and Civil Liberties while
Keeping our Skies Safe: Hearing Before the
Subcomm. on Transp. Sec. of the H. Comm.
on Homeland Sec., 113th Cong. (2014) . . . . . . . . . . . . 5
Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
s i z e of (c a t), TS A No -F ly li s t d o w n l o a d ,
S izeof. cat (Feb. 16, 2023), https://sizeof.
cat/post/tsa-nofly-list-download/ . . . . . . . . . . . . . . . . 16
Traveler Redress Inquiry Program, DHS TRIP
Application FAQ, https://trip.dhs.gov/s/
faq-page?language=en_US . . . . . . . . . . . . . . . . . . . . 14
vii
Cited Authorities
Page
U.S. Government Accountability Office, The
Rising Threat of Domestic Terrorism in the
U.S. and Federal Efforts to Combat It, (Mar.
2, 2023), https://www.gao.gov/blog/risingthreat-domestic-terrorism-u.s.-and-federalefforts-combat-it#:~:text=According%20
to%20DHS%2C%20there%20were,five%20
police%20officers%20in%20Dallas . . . . . . . . . . . . . . . 4
1
INTEREST OF AMICUS CURIAE1
The Constitutional Law Center for Muslims in America
(“CLCMA” or “Amicus”) is the legal division of the Muslim
Legal Fund of America (“MLFA”). Amicus’ mission is to
protect individuals’ constitutional rights that are impacted
by national security and immigration policies, as well as
civil rights harmed by discrimination based on religion,
race, or national origin. Many of Amicus’ clients are
individuals placed on the federal government’s terrorist
watchlist or No Fly list with little to no explanation given,
and limited options for redress. Amicus has pursued cases
similar to the one before this Court in federal courts
across the country. In many instances, the government
removes Amicus’ clients from the No Fly list and then asks
the courts to declare the claims moot. Some courts dismiss
claims on these grounds, while others allow elements of the
cases to proceed, creating confusion and the opportunity
for forum shopping.
Amicus files this Brief to alert this Court to the
prevalence of this issue across the nation. Upholding the
Ninth Circuit’s decision in this case will clarify the law
nationwide and send a message to the government that it
must provide more transparency in these cases. Amicus’
clients and other No Fly list litigants cannot move forward
on their claims and seek redress for alleged constitutional
wrongs without the consistency in law and predictability
only this Court can provide.
1. Pursuant to Supreme Court Rule 37.6, counsel for amicus
curiae states that no counsel for a party authored this brief in
whole or in part, and no party or counsel for a party, or any other
person other than Amicus made a monetary contribution intended
to fund the preparation or submission of this brief.
2
INTRODUCTION AND SUMMARY
OF THE ARGUMENT
T he federa l cou r t syst em was creat ed “ to
administer justice fairly and impartially, w ithin
the jurisdiction established by the Constitution and
Congress.” 2 When it works as it should, “[n]o higher duty,
no more solemn responsibility, rests upon this Court, than
that of translating into living law and maintaining this
constitutional shield deliberately planned and inscribed
for the benefit of every human being subject to our
Constitution—of whatever race, creed or persuasion.” 3
The government asks here for the opposite. Instead of the
impartial administration of justice, the government asks
first that it be able to circumvent many legal standards,
including among others those of due process and
transparency. It then further asks that this Court be the
one to provide it the cover to avoid those legal obligations
that the Ninth Circuit Court of Appeals refused to provide
it. While certainly legitimate instances do exist which
trigger applicable national security concerns by the
government, the legal issues present here fall far outside
those legitimate instances. By the government’s own
admission, the facts currently before this Court involve
someone who does not present a risk to national security.
Why, then, does the government use the phrase “national
security” seven times in its Brief? And if the government
possesses the utmost confidence that the facts giving rise
2. About Federal Courts, U.S. Courts, https://www.uscourts.
gov/about-federal-courts#:~:text=The%20U.S.%20Courts%20
were%20created,by%20the%20Constitution%20and%20Congress
(last visited December 13, 2023).
3. Chambers v. State of Florida, 309 U.S. 227, 241 (1940).
3
to the claim of Yonas Fikre remain firmly in the past,
why does it assert a shield of national security to preclude
examination of its own actions?
The government agencies in this lawsuit do not
want to answer those questions. They ask to have this
Court’s blessing to avoid the inquiries altogether. Yet
this Court bears no obligation to grant these agencies
that wish, and in fact bears the responsibility to ensure
that all individuals, including Mr. Fikre, “must stand on
an equality before the bar of justice in every American
court.”4 Amicus counsel therefore urges this Court to
affirm the ruling of the Ninth Circuit, and to create the
unity and predictability in the law that Mr. Fikre, as well
as the other individuals discussed in this Brief, deserve.
ARGUMENT
The government in this case asks this Court to merely
take its word in the name of national security, and give it
preferential treatment not afforded to any other litigants.
Yet Amicus is familiar with the inconsistency and lack of
resolution that results from trusting the government’s
word when it comes to the Terrorist Screening Dataset
(“TSDS”) and its subsets, the No Fly list and Selectee
list. In Amicus’ experience, government agencies use
“national security” as both sword and shield, harming
those who find themselves on a list, while shielding
themselves from accusations of any wrongdoing. Amicus
urges this Court to reject the government’s invitation to
grant it that protective cloak, and to instead affirm the
Ninth Circuit’s application of the voluntary cessation
4. Id.
4
doctrine, and allow this case—and others like it across
the country—to proceed.
I.
National Security as a Sword
American Muslims face heightened scrutiny in
the public and private spheres. One way in which the
government targets American Muslims is through
the TSDS and its subcomponent lists. Many American
Muslims have stories about experiencing heightened
screening at airports. 5 Besides the immediate travel
difficulties presented, inclusion in the TSDS has additional
implications as well, with individuals seeing the effects
from employment to licensing.6 The government justifies
this treatment by invoking national security, yet since it
implemented the TSDS nearly 20 years ago, the threat
posed by terrorism has only grown.7 Meanwhile, hundreds
5. Michael T. Luongo, Traveling While Muslim Complicates
Air Travel, N.Y. T imes (Nov. 7, 2016), https://www.nytimes.
com/2016/11/08/business/traveling-while-muslim-complicatesair-travel.html.
6. Mowery v. Nat’l Geospatial-Intel. Agency, 42 F.4th 428,
432 (4th Cir. 2022) (describing the allegations that the plaintiff
failed to acquire a security clearance and therefore lost a job
opportunity because of national security concerns); Plaintiff’s
Complaint for Declaratory, Injunctive and Other Relief at 4,
Soliman v. Mayorkas, No. 1:22-cv-79 (D.D.C. Jan. 12, 2022)
(alleging that the plaintiff was unable to begin his job because of
his presumed status on a watchlist).
7. U.S. Government Accountability Office, The Rising
Threat of Domestic Terrorism in the U.S. and Federal Efforts
to Combat It, (Mar. 2, 2023), https://www.gao.gov/blog/risingthreat-domestic-terrorism-u.s.-and-federal-efforts-combatit#:~: t e x t=A ccor d i ng %2 0 t o%2 0DHS%2 C%2 0 t her e%2 0
were,five%20police%20officers%20in%20Dallas.
5
of law-abiding American travelers face enhanced security
and invasive questioning, damaging their reputation in
their communities and costing them countless dollars in
missed flights and delays.
Those who suspect their inclusion in the TSDS
have only one method of redress: the Department of
Homeland Security Traveler Redress Inquiry Program
(“DHS TRIP”). This system serves as a central hub for
complaints about a wide variety of travel experiences.
Those who suspect they are on a watchlist cannot find
out whether they are, nor can they refute any purported
“derogatory information.” 8 Prior to 2015, as set out in
this case, neither could those on the No Fly list.9 Today,
U.S. citizens and lawful permanent residents, or “green
card” holders, can find out whether they are on the No
Fly list, and may then request an unclassified summary
of the reasons why. The government often represents that
“national security” concerns require it to limit access
to responsive information even in these circumstances,
and therefore cannot provide much if any substantive
information.10 The government nonetheless continues to
8. Safeguarding Privacy and Civil Liberties while Keeping
our Skies Safe: Hearing Before the Subcomm. on Transp. Sec. of
the H. Comm. on Homeland Sec., 113th Cong. (2014) (statement of
Christopher M. Piehota, Dir., Terrorist Screening Center).
9. Brief for Petitioner at 3, FBI v. Fikre, No. 22-1178 (Nov.
13, 2023) (hereinafter “Govt’s Brief”).
10. See generally, Plaintiffs’ Third Amended Complaint for
Injunctive, Declaratory, and Other Relief, Maniar v. Mayorkas,
No. 1:19-cv-03826-EGS (D.D.C. May 1, 2023); Petition for Writ
of Mandamus, Eberle v. Nielsen, No. 1:19-cv-00486 (D.D.C. Feb
26, 2019); Complaint Seeking Declaratory Relief and Petition for
6
point to this Redress procedure as fulfilling all due process
and other legal requirements, despite the frustration
and lack of transparency travelers who use it continue to
encounter. Amicus presents below just a few examples of
the frustrations and lack of transparency encountered by
individuals who do try to follow the available procedures.
A.
The Jibril Family
In 2018, the Jibril family began a family trip to visit
other relatives in Jordan. This trip became far from
normal, though, as the seven traveling family members—
all U.S. citizens—faced extensive security screening
and questioning at domestic and international airports.11
The screening procedures extended to separating the
youngest child, aged two at the time, from his parents and
subjecting the other minor children to pat-downs without
their parents’ consent.12 Each family member then filed a
DHS TRIP complaint. Aside from the youngest plaintiff,
who was told his security screening was likely a mistake,
none of the remaining six family members received any
substantive response beyond the standard letter that
the government could “neither confirm nor deny” if they
even were on a watchlist, and if anything needed to be or
had been done as a result of their complaints.13 The Jibril
Writ of Mandamus, Shaikh v. McAleenan, No. 1:19-cv-01398-RBW
(D.D.C. May 14, 2019); Petition for Writ of Mandamus, Maniar v.
Nielsen, No. 1:18-cv-01362 (D.D.C. June 7, 2018).
11. Jibril v. Mayorkas, 20 F.4th 804, 807 (D.C. Cir. 2021)
(“Jibril II”).
12. Id. at 810.
13. Id.
7
family sought recourse in the D.C. District Court, which
initially granted the government’s motion to dismiss and
held that the Jibrils could not demonstrate a sufficient
risk of future harm.14 The D.C. Circuit reversed that
holding, determining that the Jibrils did demonstrate a
sufficient risk of future harm, and called the government’s
suggestion at oral argument that the family should just
travel again to see what happens next time a “heartless
argument.”15 When the case went back to the district court,
the government then produced information it had not
produced the first time, though apparently had available
in its arsenal all along. The government presented an ex
parte declaration in camera to support its new factual
challenge in support of dismissal, upon which the district
court felt compelled to dismiss the Jibrils’ case once again.16
The district court criticized the “sick sense of delight”
the government seemed to find in deploying ex parte in
camera Declarations that the government acknowledged
it possessed during the first round of briefing.17 Neither
the Jibrils nor Amicus as their attorneys had access to
these Declarations, nor any opportunity to challenge their
contents. The government cited vague national security
concerns to justify withholding the information contained
in the Declarations. The district court expressed doubt
that the government had made clear the link between
“national security” concerns and these family members,
14. Jibril v. Wolf, No. 1:19-cv-2457-RCL, 2020 U.S. Dist.
LEXIS 81926, at *13 (D.D.C. May 9, 2020) (“Jibril I”).
15. Jibril II at 817.
16. Jibril v. Mayorkas, No. 1:19-cv-2457, 2023 U.S. Dist.
LEXIS 32199, at *13 (D.D.C. Feb. 27, 2023) (“Jibril III”).
17. Id. at *15.
8
especially as to the youngest members, who apparently
the government no longer believes present any threats to
security or safety. The district court nonetheless deferred
to the government’s characterization and “reluctantly”
dismissed the case yet again.18 This case presents just one
example of how government agencies weaponize “national
security” to the detriment of American citizens.
B. Halil Demir
Halil Demir is the Director of a major U.S. nonprofit. Mr. Demir’s organization serves refugees in the
U.S. and abroad, distributes Thanksgiving meals to
hundreds in Chicago and other cities, builds numerous
water wells around the world, develops schools where
needed, and provides disaster aid for calamities ranging
from Hurricane Harvey in Texas to earthquakes in
Morocco.19 Mr. Demir predictably travels extensively,
both domestically and internationally, as part of his job.
But since at least 2016, agents stop Mr. Demir nearly
every time he f lies. 20 He head-spinningly oscillates
from hosting congressional leaders in the Senate office
building in the evening, to hours of TSA detention and
questioning when he attempts to fly home the next
18. Id. at *16. Amicus once again appeals the Jibril family’s
case to the D.C. Circuit, seeking redress for the family’s 2018
experiences and the intervening harm caused by the government’s
lack of transparency.
19. Plaintiff’s Amended Complaint Seeking Declaratory
Judgment, Injunctive Relief, and Other Damages at 7, Demir v.
Mayorkas, No. 1:22-cv-07209 (N.D. Ill. Mar. 27, 2023).
20. Id. at 6.
9
morning. 21 This treatment severely limits his ability to do
his job effectively, costs him numerous missed flights and
delays, and discourages family and friends from wanting
to travel with him because of the grave impact on them.
He knows the federal agents so well at his home airport
of Chicago O’Hare that they know each other by name
and shared birthdays. Understandably frustrated by the
situation, Mr. Demir filed a DHS TRIP complaint … five
separate times. 22 Each time he received the same noncommittal answer in response, no substantive information,
and each time the treatment continued. 23 The government
once again uses “national security” to justify its refusal
to provide Mr. Demir with any information about his
presumed placement in the TSDS—despite clearing
him for several events requiring security checks within
the same timeframes. 24 That leaves Mr. Demir with no
opportunity to be heard nor to refute any information the
government may have against him. Amicus represents
Mr. Demir in a case pending in the Northern District of
Illinois, where he seeks the opportunity to learn the cause
of this treatment, clear his name, and fly free of extensive
and intrusive impediments.
II. National Security as a Shield
When not using national security as a weapon
against American travelers, government agencies use
the same claim as a shield from criticism and accusations
21. Id. at 7.
22. Id. at 11.
23. Id.
24. Id.
10
of discriminatory conduct. 25 The government even
recognizes in its Brief for the Petitioners to this Court
that it seeks to avoid discovery into this matter. 26 It asks
this Court to apply a lesser standard to evaluate its
voluntary cessation to avoid full review of its allegedly
unconstitutional behavior. As described in the Brief
Amicus Curiae of the Becket Fund for Religious Liberty
in Support of Neither Party, the government has ample
motive to do this, including its status as a repeat litigant
before federal courts nationwide, and its interest in
maintaining public trust in its actions. 27 This Court should
not accept the government’s request that it be held to a
lower standard than all other litigants simply because it
is the government. This “trust us” approach, supported
by no more than the bare recital of the phrase “national
security,” contradicts the rule of law and the intent of the
protections provided by our courts.
The government posits that any argument that it
would remove an individual from the list who remains a
national security concern, simply to moot a pending case,
is “inconsistent with the presumption of regularity that
attaches to governmental actions.” 28 Amicus does not
necessarily disagree with the characterization of that
lacking rationale, but nonetheless doubts the automatic
veracity of the denial based on the number of cases in
25. Govt’s Brief at 12.
26. Id. at 35.
27. Brief Amicus Curiae of the Becket Fund for Religious
Liberty in Support of Neither Party at 9, FBI v. Fikre, No. 22-1178
(Nov. 13, 2023) (hereinafter “Becket Fund Brief”).
28. Govt’s Brief at 18.
11
which the government removed Amicus’ clients from a
list only after the individuals brought lawsuits. Amicus
represented an American citizen who in 2018 discovered
he was on the No Fly list while mid-trip. This husband and
father could not return home to his wife, a Turkish citizen,
and his two young U.S. citizen children, living in Turkey
with their mother. The citizen in question had no criminal
history or mental health concerns, yet experienced
extensive travel delays until finding himself unable to
board a plane at all. 29 He filed a DHS TRIP complaint in
June of 2018; he received notice over three months later
that he was, in fact, on the No Fly list, and had the right
to request additional information about his placement. 30
By February 2019, having received no further information
despite his prompt request for it, he filed a Petition for
Writ of Mandamus and asked the D.C. District Court to
order the Department of Homeland Security to fulfill its
statutory obligation and provide responsive information. 31
On March 26, 2019, one month from the date of filing his
Petition, he received notice that DHS removed him from
the No Fly list, despite the eight months that lapsed
between his DHS TRIP complaint and the filing of the
Petition. Nothing else about his situation changed during
that period, and the government offered no explanation
why he suddenly no longer presented a threat. As he had
only sought mandamus relief, he agreed to a voluntary
dismissal of the Petition as moot. 32
29. Petition for Writ of Mandamus at 1, Eberle v. Nielsen,
No. 1:19-cv-00486 (D.D.C. Feb 26, 2019).
30. Id. at 2.
31. Id.
32. Motion for Voluntary Dismissal at 2, Eberle v. Nielsen,
No. 1:19-cv-00486 (D.D.C. Mar. 28, 2019).
12
The government uses “national security” to moot
cases outside of the No Fly list area as well. Lassana
Magassa possessed a Security Identification Display Area
(“SIDA”) badge as a requirement of his employment with
a U.S. airline. After a trip overseas, Dr. Magassa learned
that the Transportation Security Agency (“TSA”) revoked
his SIDA badge without explanation. 33 Without the badge,
Dr. Magassa could not perform the essential functions
of his position and became constructively discharged. 34
Amicus sought additional information from the TSA
on Dr. Magassa’s behalf, so that he could better defend
himself through the Security Threat Assessment (“STA”)
Redress process; the only documents the government
released were highly redacted with the justification of
“national security.”35 Dr. Magassa later received a hearing
in front of a Coast Guard Administrative Law Judge
(“ALJ”), but that bifurcated hearing took place with a
public portion that Dr. Magassa and his counsel could
attend, and a classified portion that neither Dr. Magassa
nor his counsel could attend, despite one of his attorneys
possessing Secret level security clearance and the TSA
having the ability to grant his counsel the necessary
access. 36 To this day, Dr. Magassa does not know what
information or evidence the government presented in that
classified portion of the hearing, but the ALJ ultimately
affirmed the revocation of his SIDA badge because of
33. Magassa v. Mayorkas, 52 F.4th 1156, 1159 (9th Cir. 2022).
34. Id. at 1160.
35. Id.
36. Id.
13
it. 37 Amicus filed a lawsuit on Dr. Magassa’s behalf to
challenge that revocation and seek redress for the harms
he suffered while he was unable to work due to his lack of
clearance. Suddenly, without any change in Dr. Magassa’s
circumstances, the government reversed course and
granted Dr. Magassa a SIDA badge once again. Though
Amicus pushed on with the lawsuit to obtain redress for
the harms done to Dr. Magassa during the three years
that transpired in between the events described above,
the government argued the issue was moot because he
now possessed a SIDA badge. Once again, the government
avoided discovery into its reasons supporting its initial
revocation of Dr. Magassa’s SIDA badge under the guise
of “national security”—for someone it directly recognized
no longer presented a national security threat.
III. Due Process Requires More Transparency in the
Watchlisting Process
Due process of law serves as a fundamental feature
of our judicial system. The Fifth and Fourteenth
Amendments protect individuals’ rights to be heard
before being deprived of a protected interest, known
as procedural due process. This Court has determined
these amendments also protect substantive due process,
under which the government cannot deprive an individual
of certain fundamental rights, even with the proper
process. 38 The current watchlisting procedures violate
both procedural and substantive due process, but the
government’s invocation of “national security” thus far
keeps federal courts from fully reviewing these challenges.
37. Id.
38. Rosales-Mireles v. United States, 138 S.Ct. 1897, 1906
(2018).
14
When individuals suspect they are included in the
TSDS due to repeated security screening or because they
were told so by an official, they may submit a DHS TRIP
complaint. To be clear, this process represents the only
method of redress provided to these individuals. Per the
government’s public procedures, a DHS TRIP complaint
receives a review from the TSA, in coordination with other
agencies as appropriate. 39 Then, the government makes
“any necessary changes” to the TSDS data. However, the
individuals who submitted the complaint will not learn any
of this, nor do they have any rights of review or to respond
to any information about them. Instead, at the end of the
review of a complaint by a person on the watchlist, DHS
TRIP issues a form letter that informs the individual the
review concluded and necessary changes, if any, have been
made. At the end of this process, these individuals have no
more information than they started with, no explanation
for their treatment, and no further method of redress for
their concerns. Individuals like Mr. Demir, highlighted
above, continue to endure extensive travel difficulties with
little hope of change.
The process for those on the No Fly list is not much
better. When individuals find themselves prevented
from boarding a plane, they may submit a DHS TRIP
complaint. If the individual is a U.S. citizen or lawful
permanent resident, federal courts mandate that they
receive notice of their status on the No Fly list. At that
point, the individuals may request further information
supporting their placement on the No Fly list, and the
government must provide an unclassified summary of the
39. Traveler Redress Inquiry Program, DHS TRIP
Application FAQ, https://trip.dhs.gov/s/faq-page?language=en_
US (last visited Dec. 12, 2023).
15
reasons. Very often, as described above, that summary
provides insufficient substance for the individual to craft
a response. Amicus represented Ashraf Maniar, a U.S.
citizen born in California, who found himself unable to
fly to his own wedding because of his presence on the
No Fly list.40 Upon submitting a DHS TRIP complaint
and receiving confirmation that he was on the list, he
requested additional information in June of 2018. DHS
provided no further information to Mr. Maniar until
October of 2018, and even then it provided one sentence:
“You are on the U.S. Government’s No Fly List due to,
in part, your association and extensive communication
with a known extremist located in the United Kingdom
who has supported terrorist organizations.”41 This
vague response provided Mr. Maniar, who knows many
people in the United Kingdom but none who support
terrorism, with no opportunity to substantively respond
to the allegation and clear his name. Finally, though
nothing substantive changed about his circumstances,
the government removed Mr. Maniar from the No Fly
list with no substantive explanation.42 At that point, Mr.
Maniar’s pending mandamus action in the D.C. District
Court became moot. Mr. Maniar’s action for redress for
the harms caused by his placement on the No Fly list
remains ongoing, though the government argues his action
became moot as well.43
40. Plaintiffs’ Third Amended Complaint for Injunctive,
Declaratory, and Other Relief at 6, Maniar v. Mayorkas, No.
1:19-cv-03826-EGS (D.D.C. May 1, 2023).
41. Id. at 8.
42. Id.
43. Id.
16
Based on these experiences of many of its clients,
Amicus reasonably believes that the government
impermissibly uses religion, race, and national origin
as proxy for terrorist activity. Further, in December
2022, a Swiss “hacktivist” discovered a 2019 version of
the Watchlist and No Fly list, unsecured on an airline’s
test server.44 Analysis of these lists show that over thirty
percent of the names are Muhammad and related variants
(Mohammad, Mohamed, and Ahmed), well-known to
be Muslim names, while less than five percent of the
U.S. population identifies as Muslim.45 Other analysis
suggests that up to 98% of the entries on the list contain
names typically associated with Muslims. 46 Absent a
substantive avenue to challenge these procedures, the
2019 list combines with the experiences of many American
Muslims to create the impression that the government is
using these lists to target individuals based on protected
characteristics such as religion, race, national origin,
and association. Respondent here challenges what he
believes to have been his unlawful placement on the No
Fly list based on his race, religion, and association. The
government seeks to avoid answering for its actions,
by asking this Court to find Respondent’s claims moot.
44. See Mikael Thalen & David Covussi, Exclusive: U.S.
Airline accidentally exposes ‘No Fly List’ on unsecured server,
The Daily Dot (Jan. 19, 2023), https://www.dailydot.com/debug/
no-fly-list-us-tsa-unprotected-server-commuteair/.
45. See, e.g., sizeof(cat), TSA No-Fly list download, Sizeof.
cat (Feb. 16, 2023), https://sizeof.cat/post/tsa-nofly-list-download/.
46. Joseph Stepansky, ‘Reeks of profiling’: US ‘no-fly’ list
appears to target Muslims, A l Jazeera (June 21, 2023), https://
www.aljazeera.com/news/2023/6/21/reeks-of-profiling-us-no-flylist-appears-to-target-muslims.
17
The circular logic required to both believe an individual
does not present a threat and that explanation of the
circumstances surrounding his treatment would somehow
nonetheless weaken national security deserves closer
inspection than acceptance on its face.
IV. The Government’s Promises Provide No Assurance
that the Same Harm Will Not Recur
To avoid the applicability of the voluntary cessation
doctrine, the Ninth Circuit suggested the government
could execute a declaration establishing that “if [Mr. Fikre]
is ever put back on the No Fly List, that determination
would necessarily be predicated on a new and different
factual record.”47 The Ninth Circuit recognized that
“[a]bsent an acknowledgment by the government that
its investigation revealed Fikre did not belong on the
list, and that he will not be returned to the list based on
the currently available evidence,” Mr. Fikre continued
to suffer harm due to stigmatization as being labeled a
known or suspected terrorist.48 Rather than comply with
the Ninth Circuit’s clearly articulated suggestion, the
government instead submitted a declaration asserting
that Mr. Fikre “will not be placed on the No Fly List in the
future based on the currently available information.”49 In
the same declaration, the government reiterated that Mr.
Fikre “was placed on the No Fly List in accordance with
applicable policies and procedures” and “was removed
I”).
47. Fikre v. FBI, 904 F.3d 1033, 1040 (9th Cir. 2018) (“Fikre
48. Id. (emphasis added).
49. Courtright Declaration ¶ 5, Pet. App. 118a.
18
from the No Fly List upon the determination that he no
longer satisfied the criteria for placement on the No Fly
List.”50 By failing to explain why the government changed
its mind about Mr. Fikre’s placement on the No Fly list
while also refusing to use the language provided by the
Ninth Circuit, the declaration fails to provide reasonable
assurances that the government will not place Mr. Fikre
back on the No Fly list for identical conduct, leaving Mr.
Fikre in perpetual limbo regarding his ability to fly.
The government cynically explains that its declaration
averring that it will not return Mr. Fikre to the No Fly
list “based on the currently available information” makes
it “‘absolutely clear’ that his being placed back on the No
Fly List on the same basis that he was initially placed on
it . . . ‘could not reasonably be expected to recur.’”51 The
government knowingly chose to avoid the words “new
and different factual record” despite the Ninth Circuit’s
direct request for those. Contrary to the government’s
arguments, “currently available information” does not
“necessarily include all of the information available in
2010, when [Fikre] alleges that he was placed on the
No Fly List, and in 2016, when he was removed from
that list.”52 As the Ninth Circuit recognized, “currently
50. Id.
51. Govt’s Brief at 17 (citing Already, LLC v. Nike, Inc., 568
U.S. 85, 91 (2013); see also Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[A] defendant
claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected
to recur.”).
52. Id.
19
available information” refers only to Mr. Fikre’s current
circumstances, which apparently differ from the previous
circumstances that led to his placement on the No Fly
list. 53 But without identifying the “criteria for placement
on the No Fly List” Mr. Fikre previously satisfied and
also currently no longer satisfies, neither Mr. Fikre nor
the courts can be certain that his future placement on
the No Fly List will not derive from the same conduct.
Instead, “[s]hould Fikre’s circumstances change back to
what they were when he was first placed on the No Fly
List, he could be placed on the list again for the same
reasons that prompted the government to add him to the
list in the first place.”54
In Amicus’ practice, the government takes great
pains to provide no reason why someone lands on the
terrorist watchlist or the No Fly list. As discussed
above, individuals seeking more information about their
placement on either list receive vague or conclusory
responses, but when they bring a legal challenge, they
then learn they are no longer on the list due to reasons
that can only be known by the government under the
cover of “national security.” Individuals removed from
the list without explanation cannot alter their behavior to
ensure they remain off the list. A government declaration
promising that any future placement will not be based on
“currently available information” signifies nothing to the
person who does not know why they were placed on the
list in the first place.
53. See Pet. App. 118a (“Plaintiff was removed from the No
Fly List upon the determination that he no longer satisfied the
criteria for placement on the No Fly List.”).
54. Fikre v. FBI, 35 F.4th 762, 772 (9th Cir. 2022) (“Fikre II”).
20
In its representation of its clients, Amicus then
finds itself forced to resort to Freedom of Information
Act (“FOIA”) requests to, in some rare instances,
obtain the government’s vague and highly redacted
reasons for subjecting someone to heightened screening
procedures when traveling. For one of Amicus’ clients,
the government’s stated rationale for subjecting him
to heightened screening at airports includes matching
with “derogatory information,” being the subject of
“derogatory records,” and being subjected to “prior
vetting events.” Yet neither the client nor counsel has
access to any of these reasons. Because the government
provides no further detail, Amicus’ client cannot alter his
behavior to get or later remain off the watchlist. Should
he be taken off the watchlist without explanation, this
client cannot identify which change in his behavior, if
any, convinced the government to remove him from the
watchlist. A government declaration that promises that
any future placement on the watchlist will not be based
on “currently available information” means nothing to
individuals in this situation, as they remain in the dark
about the “currently available information.” As a result,
clients in these situations never have any assurance that
the government will not place them back on the watchlist
for conduct that already occurred.
Without explaining why Mr. Fikre was removed
from the No Fly list, the government’s declaration does
not satisfy the government’s burden to show that “it is
absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur.”55 The government’s
55. Already, 568 U.S. at 91 (citing Friends of the Earth, 528
U.S. at 190).
21
declaration identifies no reason for Mr. Fikre’s original
placement or removal and no change to its policies and
procedures. All that leaves for Mr. Fikre and the courts
is the government’s discretion, which does not warrant
heightened deference or the presumption of good faith
in these contexts. Amicus respectfully asks this Court
to affirm the Ninth Circuit’s holding that the Courtright
Declaration fails to satisfy the government’s burden to
show that its apparently erroneous placement of Mr.
Fikre on the No Fly list will not recur, and therefore the
voluntary cessation doctrine applies to avoid mootness in
this case.
CONCLUSION
The powers of administrative agencies have limits.
The deference granted to them by courts has equal
limitations. No order of Congress permits any federal
agency to operate unchecked in a black box, without
accountability and with disregard to the laws passed by
Congress to protect the citizens of the United States.
The No Fly list should be no different. Amicus
counsel recognizes the legitimate needs for security
procedures and that the public follow rules and
regulations while traveling for the safety of all. But
the measures taken to ensure that safety must remain
consistent with individuals’ equal rights to access
justice, receive due process, and confront accusers—
especially those within government agency authority—
and operate consistent with and subject to the rights
granted in the Constitution. The agencies here ask
for a free pass and no scrutiny. But “courts need not
defer to an agency’s interpretation, reasonable or
22
otherwise, of a non-existent grant of power.”56 And
no grant of agency power is absolute. The shield these
agencies seek to wield is not meant for their protection:
this Court holds the strength to wield that shield in
its exercise of its duties of “translating into living law
and maintaining this constitutional shield deliberately
planned and inscribed for the benefit of every human
being subject to our Constitution—of whatever race, creed
or persuasion.”57 Doing so here, for all citizens who find
themselves in the unanswerable predicament of Mr. Fikre
and others like him, provides the fair and impartial justice
that is all they seek.
Respectfully submitted,
Christina A. Jump
Counsel of Record
Chelsea G. Glover
Samira S. Elhosary
Constitutional Law Center
for Muslims in A merica
100 North Central Expy,
Suite 1010
Richardson, TX 75080
(972) 914-2507
cjump@clcma.org
Counsel for Amicus Curiae
56. Am. Bus. Ass’n v. Slater, 231 F.3d 1, 10 (D.C. Cir. 2000).
57. Chambers, 309 U.S. at 241.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.