FBI v. Fikre (22-1178)

argument 22-1178

FBI v. Fikre

Supreme Court of the United States 1h 21m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the central issue the Court is addressing in FBI v. Fikre?

John G. Roberts 0:00

Next in case twenty two eleven seventy eight, the Federal Bureau of Investigation versus Giannis

Unknown 0:06

Fikre. Mr. Joshi? Mr. Chief Justice, and may it please the court. Respondents no fly list claims are moot. He's not on the list. He hasn't been on the list in eight years, and he won't be put back on the list in the future based on the currently available information. That makes it absolutely clear that his return to the list, for the same reasons he was put on it initially, can't reasonably be expected to recur. Now the ninth circuit thought the claims weren't moot because the government hadn't acquiesced to the righteousness of his contentions. That fundamentally confuses mootness with the merits, as this court has explained. A case can be moot no matter how vehemently the parties dispute the conduct that gave rise to the lawsuit.

Unknown 0:46

Respondents new test isn't much better because it too can be satisfied solely by repudiation of the past conduct. And that persistent focus on repudiation and the past, I think, lays bare what's really going on in this case. The complaint isn't really concerned about respondents potentially being put back on the no-fly list in the future. What respondent wants is vindication for his past placement. But that vindication could come only through an advisory opinion. There is no prospective relief of any kind that could actually redress any cognizable injury that respondent currently suffers or imminently will suffer. Remember, mootness implements Article III's case or controversy requirement. The voluntary cessation exception purpose is rooted in preventing gamesmanship or docket manipulation in an attempt to avoid judicial review.

Unknown 1:39

But that's clearly not what's going on in this case. And it's not what's going on in other cases either. The government has litigated many no-filus claims to judgment. This case, however, is eleven years old and respondent has been off the list for the past eight of them. There simply isn't a live case or controversy any longer, and this court should hold as much. I welcome the court's questions.

Clarence Thomas 2:03

Well um The um um respondent uh was also concerned about the propriety of the procedures uh that were used to put him on the list to begin with and challenge that. Uh so how does the declaration that you all use, how does that uh change the procedures that he thought were violative of his rights?

Unknown 2:30

So two responses. I I As far as a procedural challenge goes, number one is for the post-deprivation procedures, those have actually already changed since the time he was first on the list. I take the point that maybe he wants some pre-deprivation procedures. Those haven't changed. But I think Alvarez pretty squarely forecloses that challenge. In Alvarez, it was the same thing. The plaintiffs in that case complained about the procedures used to deprive them of property and the procedures to get them. their property back after the property was returned to them. The procedures hadn't changed, but this Court held that the that the challenge was moot. And I think that just goes back fundamentally to uh the the principle behind Article three standing and mootness, which is you can't you you no longer have a live challenge to procedures if substantively you're not subjected to those procedures or can't show that it's imminent, that you're going to be subjected to those procedures.

Unknown 3:27

Procedures in a vacuum just can't be challenged

Clarence Thomas 3:33

And how would he know? that you have not that any circumstances or any procedures are different if he's put on the list in the future when we don't know the procedures or the circumstances that got him on the list.

Unknown 3:50

So uh let me take those two separately. With the procedures again, I'll I'll just say procedures in a vacuum you can't challenge unless you're substantively going to be subjected to them. I

Clarence Thomas 4:01

understand that, but we know nothing. We don't how would he know a year from now if he is on the list with the same procedures or different procedures or different facts when he doesn't know why he was on the list in the first instance?