Supreme Court Rules Against Government in No-Fly List Case

The Supreme Court unanimously ruled on Tuesday in favor of a Muslim man who said he had been put on the no-fly list in retaliation for refusing to become a government informant. The court rejected the government’s contention that removing the man from the list had rendered his case moot.

The no-fly list, which rapidly expanded after the Sept. 11, 2001, terrorist attacks, appears to include tens of thousands of people. The criteria for inclusion on the list are opaque, making it subject to errors and abuse.

Yonas Fikre, an American citizen, challenged his placement on the list, saying it had violated due process and amounted to discrimination based on race, national origin and religion.

The legal proceedings are at an early stage, and Justice Neil M. Gorsuch, writing for the court, said it was required to assume that the following version of events, set out in the lawsuit, was true.

Mr. Fikre, who lived in Portland, Ore., had moved to Sudan from his home country of Eritrea as a child. In 2009, seeking to start a consumer electronics business in East Africa, he traveled back to Sudan.

Invited to lunch at the U.S. embassy, he was confronted by F.B.I. agents, who told him he had been placed on the no-fly list and could not return to the United States. They questioned him about activities at a Portland mosque, asked him to serve as an informant and said they would take steps to remove him from the list if he agreed.

He refused. Weeks later, on a trip to the United Arab Emirates, he was arrested, detained, interrogated and tortured. After 106 days, he was flown to Sweden, where he lived until 2015, when the Swedish government returned him to Portland by private jet.

The next year, the government told Mr. Fikre that he has been removed from the list. It gave no explanation but argued that the move made his lawsuit moot.

Justice Gorsuch wrote that defendants cannot automatically render a dispute moot by “the simple expedient of suspending its challenged conduct after it is sued.”

Instead, he wrote, quoting an earlier decision, “a defendant’s ‘voluntary cessation of a challenged practice’ will moot a case only if the defendant can show that the practice cannot ‘reasonably be expected to recur.’”

Justice Gorsuch wrote that it remains possible that the government will again place Mr. Fikre on the no-fly list. “The government might re-list him,” the justice wrote, “if he does the same or similar things in the future — say, attend a particular mosque or refuse renewed overtures to serve as an informant.”

Justice Gorsuch added: “What matters is not whether a defendant repudiates its past actions, but what repudiation can prove about its future conduct. It is on that consideration alone — the potential for a defendant’s future conduct — that we rest our judgment.”

Justice Samuel A. Alito Jr., joined by Justice Brett M. Kavanaugh, issued a brief concurring opinion. It stressed that “our decision does not suggest that the government must disclose classified information to Mr. Fikre, his attorney or a court to show that this case is moot.”

Hina Shamsi, a lawyer with the American Civil Liberties Union, which filed a brief supporting Mr. Fikre, welcomed the decision.

“For decades,” she said in a statement, “rights groups have documented the secrecy and unfairness of the no-fly list program and its devastating consequences for people’s lives, yet the program has remained a black box. Not only are people left in the dark about why they’ve been placed on the list, they are not given any meaningful explanation when they are removed, or any guarantee against being wrongfully placed on the list in the future.”