Future Retirement Success
  • Politics
  • Business
  • Investing
  • Stocks
  • Politics
  • Business
  • Investing
  • Stocks

Future Retirement Success

Investing

The Government Can’t Evade Lawsuits by Strategically Mooting Cases

by January 8, 2024
January 8, 2024
The Government Can’t Evade Lawsuits by Strategically Mooting Cases

Thomas A. Berry

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. 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.” Fikre’s placement prevented him from returning to the United States until 2015, damaged his reputation, and destroyed his marriage.

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. 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.

Generally, a defendant cannot make a case moot by voluntarily ceasing the challenged conduct, a principle known as the “voluntary cessation” doctrine. The burden is on the defendant to show it is “absolutely clear” that the challenged conduct will not reoccur. Nonetheless, the district court ruled that the case was moot because “the record did not indicate a lack of good faith on the government’s part.” But the U.S. Court of Appeals for the Ninth Circuit reversed that decision, holding that the government had not met its burden to show Fikre was highly unlikely to be placed back on the list.

The case is now at the Supreme Court, and Cato has filed an amicus brief supporting Fikre (with thanks to a team of attorneys from Gibson Dunn who took the lead on drafting: Russ Falconer, Daniel R. Adler, Patrick J. Fuster, and Matt Aidan Getz). In our brief, we explain that the government is not entitled to any special deference in the mootness analysis. When the Supreme Court has dealt with cases of alleged voluntary cessation, it has treated government and private defendants alike, holding them to the same high evidentiary bar.

As our brief further explains, the government has not met that high bar in this case. With the government unwilling to explain why Fikre was added to or taken off the list, it is impossible to judge how likely it is that he may be added again. And although the government has submitted a letter from an FBI special agent insisting that Fikre will not be added back to the list absent changed circumstances, that letter was not issued by a constitutional officer of the United States and thus cannot set binding government policy.

In addition, Cato scholar Patrick Eddington has filed an amicus brief, in his personal capacity, supporting Fikre. In his brief, Eddington explains that the government’s reliance on a “presumption of regularity” in this case is misplaced. The history of that doctrine, which extends back to English common law, makes clear that it is merely a presumption that boilerplate government procedure was followed. The doctrine cannot be extended into a broader presumption that the government did not engage in gamesmanship when it ceased the challenged conduct. As Eddington’s brief recounts, governments at every level of our federal system have frequently engaged in just such gamesmanship to try to stop cases from reaching the merits.

The voluntary cessation doctrine ensures that defendants cannot avoid a judgment on the merits by strategically mooting a case. The Supreme Court should make clear that this concern applies just as much when the government is a defendant as in any other context. The decision of the Ninth Circuit should be affirmed so that Fikre’s case can finally reach the merits.

0
FacebookTwitterGoogle +Pinterest
previous post
Bank Earnings Up — Time to Look at Regional Banks ETF
next post
January 2024: The Final Bar’s Top 10 Must See Charts

You may also like

Australian Bill Targets Harmful Misinformation Online but Hits...

September 19, 2024

It’s Tax Day—Here’s How Washington Spent Your Money

April 15, 2025

Arizona Governor Tries to Bring Some Arizona Women...

July 7, 2023

More Books, More Evidence of Leftward Bias in...

May 13, 2024

Trump v. US: With Great Power Comes Great...

July 11, 2024

Venezuelans Have a Right to Regain Their Freedom

October 25, 2024

New Empirical Evidence That Overdose Prevention Centers Save...

March 1, 2024

The Biden Administration Continues to Be Wrong about...

September 26, 2023

Collecting Jurisdiction: The SEC’s Wrongheaded Expansionary Approach to...

October 5, 2024

Are Institutional Investors a Problem in the Housing...

November 13, 2023

    Get free access to all of the retirement secrets and income strategies from our experts! or Join The Exclusive Subscription Today And Get the Premium Articles Acess for Free

    By opting in you agree to receive emails from us and our affiliates. Your information is secure and your privacy is protected.

    Recent Posts

    • How to Boost Employee Morale with Thoughtful Corporate Perks

      June 11, 2025
    • ‘Congress must act’: Nonprofit study exposes green energy org’s ties to CCP interests while undermining US

      June 11, 2025
    • GOP congressman takes major step toward gubernatorial announcement

      June 11, 2025
    • DOJ argues Trump may cancel Biden-era national monuments

      June 11, 2025
    • Government’s spending surge to trigger significant tax rises, says leading advisory firm

      June 11, 2025
    • Republican senator teams up with Democrat to push $15 per hour minimum wage plus annual inflation increases

      June 11, 2025

    Categories

    • Business (8,185)
    • Investing (2,027)
    • Politics (15,595)
    • Stocks (3,141)
    • About us
    • Privacy Policy
    • Terms & Conditions

    Disclaimer: futureretirementsuccess.com, its managers, its employees, and assigns (collectively “The Company”) do not make any guarantee or warranty about what is advertised above. Information provided by this website is for research purposes only and should not be considered as personalized financial advice. The Company is not affiliated with, nor does it receive compensation from, any specific security. The Company is not registered or licensed by any governing body in any jurisdiction to give investing advice or provide investment recommendation. Any investments recommended here should be taken into consideration only after consulting with your investment advisor and after reviewing the prospectus or financial statements of the company.

    Copyright © 2025 futureretirementsuccess.com | All Rights Reserved