Federal Bureau of Investigation v. Fikre - Post-Decision SCOTUScast

On March 19, 2024, the Supreme Court issued its ruling in Federal Bureau of Investigation v. Fikre. At issue was whether or not the government failed to meet its burden to demonstrate that respondent's removal from the government’s No Fly List mooted his 42 U.S.C. § 1983 case.

Join us to hear Joseph Davis break down the decision and discuss its potential ramifications.

Featuring:
Mr. Joseph Davis, Legal Counsel, Becket Fund for Religious Liberty

Episode Transcript

(00:02):
Welcome to scot Discast, a projectof the Federalist Society for Law and Public
Policy Studies. Our contributors joined usfrom around the country to bring you expert
commentary on US Supreme Court cases asthey are argued and the decisions are issued.
The Federalist Society takes no position onparticular legal or public policy issues.
All expressions are those of the speaker. Hello, and welcome to scot Discust.

(00:30):
I'm your host, Kyle hammernis On, behalf of the Faculty division of
the Federalist Society. We are heretoday to discuss Federal Bureau of Investigation versus
Fikre, in which the Supreme Courtissued a nine zero decision on March nineteenth,
twenty twenty four. It is myhonor to introduce our guests today.
Joseph Davis Joe is legal counsel atthe Beckett Fund for Lynch's Liberty. His

(00:53):
work at Beckett has included a Peltlitigation in both federal and state courts,
including representing government entities sued because ofthe openness religious expression, and working on
cases involving Native American use of sacredsites and discrimination against religious entities and government
programs and with that, I liketo turn things over to our guest to
discuss the overview of the case andthe court's decision. Sure, happy to

(01:15):
and thanks thanks for having me.So this is a case brought by Yonispikra,
Speak is a US citizen who wasplaced on the no fly list.
He claims for improper reasons. Hesaid it was because of his because of
his religious beliefs. He was askeda lot of questions about the moss that

(01:36):
he attended in his activities there beforehe was placed in the no fly list.
But the case actually isn't about thatissue that merits issue of whether he
was properly placed on the no flylist or not. It's about muteness,
which is the article period doctrine thatsays, you know, when events in
the real world overtake events in thecourtroom, the case can go away,
the court can lose the jurisdiction becausethe planeff has already gotten everything that he

(01:57):
wanted when he filed. And thereason the case is about mud this is
because before mister Fikred could litigate hiscase to judgment, the government took him
off the no fly list and itsaid you're now off the no fly list,
so the case is mute. TheNinth Circuit rejected that argument, held
that the case was still alive,and the Supreme Court, in the opinion
that we're here to discuss, affirmthe Ninth Circuit said the case was not

(02:22):
mute, and it did that undera doctrine called voluntary cessation. And voluntary
cessation is the rule that ordinarily adefendant just stopping whatever it was suit over,
voluntarily ceasing to do what it wassued over in the first place,
doesn't render the case mute, becauseif it did, then the defendant could
be strategic about that. It couldstop its conduct every time it's suit,

(02:44):
get the case dismissed as mute,and then pick it back up and do
whatever the illegal thing that it wasallegedly doing before was. So this opinion
is a vigorous application of that voluntarycessation doctrine, and it says that because
of the voluntary cessation doctrine, misterFicicrad's case was not mute. Right.
So I guess with that, ifyou could dive a little bit more into

(03:05):
Gorstich's opinion, some of his reasoning, anything that really, you know,
stuck out to you as well.And give us your thoughts on that.
Sure. Yeah, So, likeyou said, Justice Gorsich, the opinion
for the court is a unanimous opinionfor the Court, nine zero. And
like I was saying earlier, it'sreally an emphatic reaffirmation of the voluntary sensation

(03:30):
doctrine, because what the court doesis underscores that this is actually a very
high burden for the defendant. It'svery hard to show voluntary senation. You've
got to prove that it's absolutely clearthat whatever conduct you re sued over is
not reasonably likely to recur going forward. Unless you can make that showing,

(03:51):
then voluntary sitization does not mout thecase. And there's a couple of really
important aspects of the way the courtapplies that rule here. So first,
it says this is a heavy burden, and that's true whether the defendant is
a government defendant or a private defendant. And that's important because one of the
things that the government was arguing inthis case was sort of you should give

(04:11):
us the benefit of the doubt,like we're the government, you can trust
us. There's a presumption of regularityfor things that we do, and so
you shouldn't presume that we're acting strategically. Whenever we stop something we're sued over,
you should give us the benefit ofthe doubt. The court rejects that.
It says same high burden applies togovernment defendants as to private defendants.
And then I think the court's applicationof the doctor here also shows how strong

(04:33):
it is because the government, thegovernment you know, in fairness, didn't
just say, you know, takeour word for it, we're not going
to put it back on the list. They said they actually had a declaration
under oath from a government official whosaid, based on the information currently available
to it, to the government,mister Fiker would not be placed back on
in a flylist. And the courtsaid that wasn't enough because the court didn't

(04:57):
know why he was put on thelist in the first place, and so
it could can tell whether the thingsthat he was doing originally that got in
placed in the list, whether thoseyou know, could recur, and therefore
he could be placed in the listagain in the future. So it's really
a vigorous application of the doctrine that'slikely to be important for lots of cases
going forward. Great, and Idid notice that there is a short concurrence.

(05:25):
Can you go into that a littlebit and maybe some ramifications from the
from the opinion as a whole.Yeah. Sure, Yeah, there's a
very short concurrence from Justices Kavanaugh andAlita. I think Alito wrote wrote the
opinion, and it basically say thatwe agree with everything the Court says,

(05:45):
we just want to underscore in thisparticular type of case, like a no
fly list sort of dispute or anational security dispute, the government doesn't necessarily
have to put on classified information inorder to carry its burden. That's how
Justices Alito and Kavanaugh understood the majorityopinion. So I'm not sure there's a
lot of dispute about that in themajority opinion. It's just sort of a
clarification of how two of the justiceswho joined it viewed what they joined in

(06:10):
terms of implications of the opinion goingforward. Yeah, So that point about
government defendants and private defendants, there'sactually a number of cases from lower courts
that have drawn that sort of distinction, and they've said, you know,
a private defendant, it's a veryhigh burden to show voluntary cessation, but
for government defendants, we're actually goingto give them the benefit of the doubt.

(06:31):
Their public servants. They're likely notacting strategically, and so it's easier
for them to show that a caseis mute. I think that view was
already wrong. Even before v.Cra, the Supreme Court had never said
anything like that. It had routinelyapplied the same high burden to government defendants
as to private defendants, and theargument really doesn't make any sense on its

(06:54):
face, right. Actually, governmentdefendants have quite a lot of incentive to
engage in sort of strategic efforts.They're repeat litigants, They get sued all
the time, so they have alot of interest in sort of picking and
choosing which cases they'll litigate and whichthey want to go away. So my
firm, the Becket Fund, wedo uh prisoner religious religation sometimes, and
something we've seen is that you know, in a in a pro se case,

(07:17):
the sorry in a council case,the prison wants to wants to mute
it. They want to voluntaries tocease their their conducts of the cases.
A good judgment in a pro seecase, they'll then litigate it to judgment
and try to get whatever precedent theywant. Right. Another thing is that
often when you're suing the government.Those are exactly the kinds of cases where
the public has a very strong interestin what the law is and getting to

(07:39):
getting to a result that that informsthe law going forward. And so it
really makes no sense to make iteasier for government defendants to mute cases than
for private defendants. So it wasa bad it was a bad argument already.
Now I think it's clearly you knowthose cases are bad law now because
Pkre quite explicitly says it's the samestandard for government defendants and private defendants.
So that's a good thing. Youknow, that's a good thing from mister

(08:00):
Pikre gets a litigator's case, butit's a very good thing for any planet
asserting constitutional rights. It's now it'snow hard for the for the government to
make those cases go away, andso constitutional rights can be can be vindicated
more readily. Right, And Iguess I'll just end with do you have
any concluding thoughts on the case asa whole or anything like that? Uh?

(08:22):
Yeah, no, I think it'sI think it's an important reaffirmation of
the voluntary sensation doctrine. Uh.And in a context where you know,
it might have been easy to imagineyou know something the facts making bad law
here right where this national security contextcould have led the court to court sort
of squish the standard and make ita little easier to satisfy. The court

(08:43):
resisted any temptation in that direction andreally and really reaffirmed the voluntary sensation doctrine.
So I think it's an important opinionand and could have a lot of
ramifications going forward. Right, Well, thank you so much for joining us,
Joe. It was great having youon. Yeah, absolutely, thanks
for having Thank you for listening tothis episode of SCO Discast. SCO Discast

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is essential to our constitution, andthat it is emphatically the province and duty
of the judiciary to say what thelaw is, not what it should be.

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