FBI v. Fikre

P R E L I M I N A R Y P R I N T
Volume 601 U. S. Part 1
Pages 234–245
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 19, 2024
REBECCA A. WOMELDORF
reporter of decisions
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234 OCTOBER
TERM, 2023
Syllabus
FEDERAL BUREAU OF INVESTIGATION et al. v.
FIKRE
certiorari
to the united states court of appeals for
the ninth circuit
No. 22–1178. Argued January 8, 2024—Decided March 19, 2024
Respondent Yonas Fikre, a U. S. citizen and Sudanese emigree, brought
suit alleging that the government placed him on the No Fly List unlaw-
fully. In his complaint, Mr. Fikre alleged that he traveled from his
home in Portland, Oregon, to Sudan in 2009 to pursue business opportu-
nities there. At a visit to the U. S. embassy, two FBI agents informed
Mr. Fikre that he could not return to the United States because the
government had placed him on the No Fly List. The agents questioned
him extensively about the Portland mosque he attended, and they of-
fered to take steps to remove him from the No Fly List if he agreed to
become an FBI informant and to report on other members of his reli-
gious community. Mr. Fikre refused. He then traveled to the United
Arab Emirates, where he alleges authorities interrogated and detained
him for 106 days at the behest of the FBI. Unable to fy back to the
United States, he ended up in Sweden, where he remained until Febru-
ary 2015. While there, he fled this suit, alleging that the government
had violated his rights to procedural due process by failing to provide
either meaningful notice of his addition to the No Fly List or any appro-
priate way to secure redress. He further alleged that the government
had placed him on the list for constitutionally impermissible reasons
related to his race, national origin, and religious beliefs. Mr. Fikre
sought, among other things, an injunction prohibiting the government
from keeping him on the No Fly List and a declaratory judgment con-
frming the government had violated his rights. In May 2016, the gov-
ernment notifed Mr. Fikre that he had been removed from the No Fly
List and sought dismissal of his suit in district court, arguing that its
administrative action had rendered the case moot. The district court
agreed with the government, but the Ninth Circuit reversed, holding
that a party seeking to moot a case based on its own voluntary cessation
of challenged conduct must show that the conduct cannot “reasonably be
expected to recur.” 904 F. 3d 1033, 1039. On remand, the government
submitted a declaration asserting that, based on the currently available
information, Mr. Fikre would not be placed on the No Fly List in the
future, and the district court again dismissed Mr. Fikre's claim as moot.
The Ninth Circuit once again reversed, holding that the government had
failed to meet its burden because the declaration did not disclose the

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Cite
as: 601 U. S. 234 (2024)
235
Syllabus
conduct that landed Mr. Fikre on the No Fly List and did not ensure
that
he would not be placed back on the list for engaging in the same
or similar conduct in the future. 35 F. 4th 762, 770–772.
Held: The government has failed to demonstrate that this case is moot.
A court with jurisdiction has a “virtually unfagging obligation” to hear
and resolve questions properly before it. Colorado River Water Con-
servation Dist. v. United States, 424 U. S. 800, 817. But the converse
is also true as a federal court must dismiss a case that is moot. Al-
ready, LLC v. Nike, Inc., 568 U. S. 85, 91. The limited authority vested
in federal courts by Article III of the U. S. Constitution to decide cases
and controversies means that federal courts may no more pronounce on
past actions that have no “continuing effect” in the world than they may
neglect their obligation to hear and resolve questions properly before
them. Spencer v. Kemna, 523 U. S. 1, 18. This does not imply that a
defendant may “automatically moot a case” by the simple expedient of
suspending its challenged conduct after it is sued. Instead, a defend-
ant'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.” Friends of the Earth, Inc. v. Laidlaw Environ-
mental Services (TOC), Inc., 528 U. S. 167, 189. This standard holds
for governmental defendants no less than for private ones. Applying
these principles to the uncontested factual allegations here, this case is
not moot. While the government's representation that it will not relist
Mr. Fikre may mean that his past conduct is not enough to warrant
relisting, that does not speak to whether the government might relist
him if he engages in the same or similar conduct in the future. The
government contends that because Mr. Fikre has been delisted since
2016 and has presumably interacted freely with his co-religionists dur-
ing that time, it is unlikely he will face relisting in the future. This too
is insuffcient to warrant dismissal. A defendant's speculation about a
plaintiff 's actions cannot make up for a lack of assurance about its own.
The burden here is on the defendant to establish that it cannot reason-
ably be expected to resume its challenged conduct, see West Virginia
v. EPA, 597 U. S. 697, 719, and nothing the government offers here satis-
fes that formidable standard. The government claims the Ninth Cir-
cuit erred by requiring it to repudiate its past conduct to prove moot-
ness, but what matters is not whether a defendant repudiates its past
actions, but what the defendant can prove about its future conduct.
Coming as this case does in a preliminary posture, the Court's judgment
is a necessarily provisional one. As the complaint's allegations are tes-
ted, different facts may emerge that may call for a different result. But
adhering to traditional mootness principles, the government has so far
failed to meet its burden. Pp. 240–245.
35 F. 4th 762, affrmed.

236 FBI
v. FIKRE
Opinion of the Court
Gorsuch, J., delivered the opinion for a unanimous Court. Alito, J.,
f
led a concurring opinion, in which Kavanaugh, J., joined, post, p. 245.
Sopan Joshi argued the cause for petitioners. With him
on the briefs were Solicitor General Prelogar, Principal
Deputy Assistant Attorney General Boynton, Deputy Solic-
itor General Kneedler, and Sharon Swingle.
Gadeir Abbas argued the cause for respondent. With him
on the brief were Lindsay C. Harrison, Lena Masri, Justin
Sadowsky, Hannah Mullen, Andrianna D. Kastanek, Benja-
min D. Alter, David A. Strauss, and Sarah M. Konsky.*
Justice Gorsuch delivered the opinion of the Court.
Yonas Fikre, a U. S. citizen, brought suit alleging that the
government placed him on the No Fly List unlawfully.
Later, the government removed him from the list. The only
question we are asked to decide is whether the government's
action suffces to render Mr. Fikre's claims moot.
I
A
In the aftermath of the September 11, 2001, terrorist at-
tacks, the federal government rapidly expanded its No Fly
*Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by Hina Shamsi, Cecillia D. Wang, and An-
drew Kim; for Asian Americans Advancing Justice et al. by Koren Bell,
Michael J. Gottlieb, Mark T. Stancil, and Niyati Shah; for the Cato Insti-
tute by Russ Falconer, Daniel R. Adler, Matt Aidan Getz, and Clark M.
Neily III; for the Constitutional Law Center for Muslims in America by
Christina A. Jump and Chelsea G. Glover; for the Institute for Justice by
Samuel B. Gedge; for the Liberty Justice Center by Jacob Huebert; for
the Sikh Coalition et al. by John M. Reeves, Kelly Shackel ford, Jeff Ma-
teer, David Hacker, and Hiram Sasser; and for Patrick G. Eddington by
Anastasia P. Boden and Thomas A. Berry.
Briefs of amici curiae were fled for the Becket Fund for Religious
Liberty by Joseph C. Davis; and for Restore the Fourth, Inc., et al., by
Mahesha P. Subbaraman.
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as: 601 U. S. 234 (2024)
237
Opinion of the Court
List. By 2016, the government forbade approximately
81,000
individuals from fying into, out of, within, or over the
United States. Brief for American Civil Liberties Union
et al. as Amici Curiae 5. Many of the details surrounding
the No Fly List are not publicly available. Some are classi-
fed, and it appears no statute or publicly promulgated regu-
lation describes the standards the government employs when
adding individuals to, or removing them from, the list. Id.,
at 6.
In his complaint, Mr. Fikre challenged his placement on
the No Fly List. In support of his suit, he pleaded a number
of facts. Those as-yet uncontested factual allegations, the
truth of which we do not pass upon, aver as follows:*
When he was a child and war broke out in his home coun-
try of Eritrea, Mr. Fikre and his family moved to Sudan be-
fore eventually immigrating to the United States. App. to
Pet. for Cert. 126a, Seventh Amended Complaint ¶4; id., at
137a, ¶51. In time, Mr. Fikre became a U. S. citizen, and as
an adult he lived in Portland, Oregon. Id., at 137a–138a,
¶¶51–52. After working for an American cell phone com-
pany, he decided to start his own business involving the dis-
tribution and retail sale of consumer electronic products in
his native East Africa. Id., at 138a, ¶52. In pursuit of this
new venture, he traveled to Sudan in late 2009 where some
of his extended family still lived. Ibid.
On arrival, Mr. Fikre informed U. S. offcials of his interest
in pursuing business opportunities in the country. Ibid.
Eventually, he received an invitation to the U. S. embassy—
ostensibly for a luncheon. Id., at 138a–139a, ¶¶53–55. But,
*Responding to Mr. Fikre's complaint with a motion to dismiss for lack
of jurisdiction, the government did not contest his factual allegations, and
the courts below thus assumed their truth. See Gibbs v. Buck, 307 U. S.
66, 72 (1939); 5C C. Wright & A. Miller, Federal Practice and Procedure
§ 1363, p. 107 (3d ed. 2004) (“The general rule” for Rule 12(b)(1) motions
challenging subject-matter jurisdiction is to take allegations “as true un-
less denied or controverted by the movant”). We do the same.
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238 FBI
v. FIKRE
Opinion of the Court
once there, Fikre was whisked instead to a small meeting
room
with two FBI agents. Id., at 139a, ¶¶55–56. The
agents told him that the government had placed him on the
No Fly List, so he “could not return to the United States.”
Ibid., ¶57. The agents then questioned him “extensively
about the events, activities, and leadership” of the Portland
mosque he attended. Ibid., ¶58. They asked him to serve
as an FBI informant and report on other members of his
religious community, offering to “take steps to remove [him]
from the No Fly List” if he agreed. Id., at 140a, ¶59.
Mr. Fikre refused and eventually departed. Ibid. The
next day, an agent told him over the phone that, “ `[w]hen-
ever you want to go home[,] you come to the embassy.' ” Id.,
at 140a–141a, ¶62. Mr. Fikre took this to mean that he
“would not be removed from the No Fly List and he could
not travel to the United States unless he became” an FBI
informant. Id., at 141a, ¶62.
Several weeks later, Mr. Fikre traveled to the United Arab
Emirates to advance his business plans. Id., at 142a, ¶68.
Eventually, however, authorities there “arrested, impris-
oned, and tortured him.” 35 F. 4th 762, 766 (CA9 2022);
App. to Pet. for Cert. 142a–143a, Seventh Amended Com-
plaint ¶¶69–71. They interrogated him, too, about his Port-
land mosque, its events, leader, and fundraising activities.
Id., at 143a, ¶72. One interrogator told Mr. Fikre that the
FBI had solicited his interrogation and detention. Id., at
147a, ¶88. After holding him for 106 days, authorities ar-
ranged to have Mr. Fikre fown to Sweden where he had a
relative. Id., at 147a, ¶86, 148a, ¶90. He remained there
until February 2015, when the Swedish government re-
turned him to Portland by private jet. Id., at 152a, ¶105.
B
While still in Sweden, Mr. Fikre fled this suit. In his
complaint, he alleged that the government had violated his
rights to procedural due process by failing to provide any

Cite
as: 601 U. S. 234 (2024)
239
Opinion of the Court
meaningful notice of his addition to the No Fly List, any
i
nformation about the factual basis for his listing, and any
appropriate way to secure redress. Id., at 165a, ¶164. Fur-
ther, he claimed, the government had placed him on the list
for constitutionally impermissible reasons, including his race,
national origin, and religious beliefs. Id., at 168a, ¶176.
By way of relief, he sought a declaratory judgment confrm-
ing that the government had violated his rights, as well as
an injunction prohibiting it from keeping him on the No Fly
List. Id., at 169a–170a.
Eventua l ly, i n May 2016, the gover nment noti fied
Mr. Fikre that it had removed him from the No Fly List.
No explanation accompanied the decision. See Notice Re-
garding Plaintiff 's Status in No. 3:13–cv–899 (D Ore.), ECF
Doc. 98, p. 1. But, in court, the government argued that its
administrative action rendered his lawsuit moot; even ac-
cepting all his allegations as true, the government said, dis-
missal had to follow as a matter of law. Supp. Memorandum
Regarding Plaintiff 's Removal From the No Fly List, ECF
Doc. 104, pp. 2–4.
The district court agreed with the government's assess-
ment, but the Ninth Circuit reversed. 904 F. 3d 1033 (2018).
When a party seeks to moot a case based on its own volun-
tary cessation of challenged conduct, the Ninth Circuit held,
it must show that its “ `allegedly wrongful behavior' ” cannot
“ `reasonably be expected to recur.' ” Id., at 1039. And, the
court continued, the government's “mere announcement that
Fikre was removed” from the No Fly List fell short of sat-
isfying this standard. Ibid.
On remand, the government tried again. Once more, it
did not contest the truth of Mr. Fikre's allegations concern-
ing his experiences. See Memorandum in Support of De-
fendants' Motion To Dismiss in No. 3:13–cv–899 (D Ore.),
ECF Doc. 146, pp. 21–23. But, this time, the government
relied on a declaration from Christopher R. Courtright, the
Acting Deputy Director for Operations of the Terrorist
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240 FBI
v. FIKRE
Opinion of the Court
Screeni ng Center. The declarati on represented that
Mr
. Fikre “will not be placed on the No Fly List in the future
based on the currently available information.” App. to Pet.
for Cert. 118a, ¶5. Persuaded by the government's latest
motion, the district court again dismissed Mr. Fikre's claims
as moot. 35 F. 4th, at 769.
Again, however, the Ninth Circuit reversed. The govern-
ment's declaration might mean that Mr. Fikre “will not be
placed on the No Fly List now based on what he did in the
past.” Id., at 772. But, the Ninth Circuit reasoned, the
declaration does not disclose what conduct landed Mr. Fikre
on the No Fly List, and it does not ensure that he will “not
be placed on the List if . . . he . . . engag[es] in the same or
similar conduct” in the future. Ibid. As a result, the court
concluded, the government had still failed to meet its burden
of establishing that its allegedly unlawful conduct cannot
“ `reasonably be expected to recur.' ” Id., at 770.
Shortly after the Ninth Circuit issued its decision, the
Fourth Circuit held that a similar declaration was suffcient
to moot another American citizen's lawsuit challenging his
placement on the No Fly List. See Long v. Pekoske, 38
F. 4th 417, 427 (CA4 2022). To resolve this confict in lower
court authority, the government asked us to hear Mr. Fikre's
case, and we agreed to do so. 600 U. S. ––– (2023).
II
The Constitution grants federal courts jurisdiction to de-
cide “Cases” or “Controversies.” Art. III, §§ 1, 2. A court
with jurisdiction has a “virtually unfagging obligation” to
hear and resolve questions properly before it. Colorado
River Water Conservation Dist. v. United States, 424 U. S.
800, 817 (1976). But the converse also holds true. Some-
times, events in the world overtake those in the courtroom,
and a complaining party manages to secure outside of litiga-
tion all the relief he might have won in it. When that hap-
pens, a federal court must dismiss the case as moot. Al-

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as: 601 U. S. 234 (2024)
241
Opinion of the Court
ready, LLC v. Nike, Inc., 568 U. S. 85, 91 (2013). It must
because
federal judges are not counselors or academics; they
are not free to take up hypothetical questions that pique a
party's curiosity or their own. The limited authority vested
in federal courts to decide cases and controversies means
that they may no more pronounce on past actions that do not
have any “continuing effect” in the world than they may
shirk decision on those that do. Spencer v. Kemna, 523 U. S.
1, 18 (1998).
None of this implies that a defendant may “automatically
moot a case” by the simple expedient of suspending its chal-
lenged conduct after it is sued. Already, 568 U. S., at 91.
Instead, our precedents hold, a defendant's “ `voluntary ces-
sation of a challenged practice' ” will moot a case only if the
defendant can show that the practice cannot “ `reasonably be
expected to recur.' ” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U. S. 167, 189
(2000); see United States v. W. T. Grant Co., 345 U. S. 629,
632–633 (1953).
We have descr ibed th is as a “for midable burden. ”
Friends of the Earth, 528 U. S., at 190. And the reason for
it is simple: “The Constitution deals with substance,” not
strategies. Cummings v. Missouri, 4 Wall. 277, 325 (1867).
Were the rule more forgiving, a defendant might suspend its
challenged conduct after being sued, win dismissal, and later
pick up where it left off; it might even repeat “this cycle” as
necessary until it achieves all of its allegedly “unlawful
ends.” Already, 568 U. S., at 91. A live case or controversy
cannot be so easily disguised, and a federal court's constitu-
tional authority cannot be so readily manipulated. To show
that a case is truly moot, a defendant must prove “ `no rea-
sonable expectation' ” remains that it will “return to [its] old
ways.” W. T. Grant Co., 345 U. S., at 632–633. That much
holds for governmental defendants no less than for private
ones. See, e. g., West Virginia v. EPA, 597 U. S. 697, 719
(2022); Trinity Lutheran Church of Columbia, Inc. v. Comer,
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242 FBI
v. FIKRE
Opinion of the Court
582 U. S. 449, 457, n. 1 (2017); Parents Involved in Commu-
n
ity Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719–
720 (2007).
The parties dispute none of these principles; the only ques-
tion we face concerns their application. Proceeding as the
courts below did, we accept Mr. Fikre's uncontested factual
allegations as true for purposes of this motion to dismiss.
See supra, at 237, n.*. As the lower courts did, too, we ac-
cept as true the supplemental evidence the government of-
fered: its declaration representing that Mr. Fikre “will not
be placed on the No Fly List in the future based on the
currently available information.” App. to Pet. for Cert.
118a, ¶5.
Viewed in that light, this case is not moot. To appreciate
why, it is enough to consider one aspect of Mr. Fikre's com-
plaint. He contends that the government placed him on
the No Fly List for constitutionally impermissible reasons,
including his religious beliefs. In support of his claim,
Mr. Fikre alleges (among other things) that FBI agents in-
terrogated him about a mosque in Portland he once attended
and threatened to keep him on the No Fly List unless he
agreed to serve as an informant against his co-religionists.
Accepting these as-yet uncontested allegations, the govern-
ment's representation that it will not relist Mr. Fikre based
on “currently available information” may mean that his past
actions are not enough to warrant his relisting. But, as the
court of appeals observed, none of that speaks to whether
the government might relist him if he does the same or simi-
lar things in the future—say, attend a particular mosque or
refuse renewed overtures to serve as an informant. Put
simply, the government's sparse declaration falls short of
demonstrating that it cannot reasonably be expected to do
again in the future what it is alleged to have done in the
past. Friends of the Earth, 528 U. S., at 190.
If its declaration alone will not do, the government asks
us to consider two further things. First, it points to the fact

Cite
as: 601 U. S. 234 (2024)
243
Opinion of the Court
that it removed Mr. Fikre from the No Fly List in 2016.
The
government acknowledges that it took this action only
after he fled suit. But, it stresses, the parties have now
sparred in court for some years since his delisting. Second,
the government surmises that, during this period, Mr. Fikre
“presumably has joined religious organizations” and inter-
acted freely with his co-religionists. Reply Brief 9. To-
gether, the government submits, these points make it un-
likely he will face relisting in the future.
That, too, is insuffcient to warrant dismissal. A case does
not automatically become moot when a defendant suspends
its challenged conduct and then carries on litigating for some
specifed period. Nor can a defendant's speculation about a
plaintiff 's actions make up for a lack of assurance about its
own. (For that matter, given what little we know at this
stage in the proceedings, Mr. Fikre may have done none of
the things the government presumes he has, perhaps wish-
ing to but refraining for fear of fnding himself relisted.) In
all cases, it is the defendant's “burden to establish” that it
cannot reasonably be expected to resume its challenged
conduct—whether the suit happens to be new or long linger-
ing, and whether the challenged conduct might recur imme-
diately or later at some more propitious moment. West Vir-
ginia, 597 U. S., at 719. Nothing the government offers here
satisfes that formidable standard. See Parents Involved,
551 U. S., at 719 (declining to dismiss a case as moot fve
years after the defendant voluntarily ceased its challenged
conduct); City of Mesquite v. Aladdin's Castle, Inc., 455 U. S.
283, 288–289 (1982) (similar).
Aiming now in a different direction, the government con-
tends that the Ninth Circuit erred by confating mootness
with the merits. The government reads portions of that
court's decisions as suggesting that, to win dismissal, it had
to admit it lacked any lawful basis for including Mr. Fikre on
the No Fly List in the frst place. For his part, Mr. Fikre
disputes this characterization of the Ninth Circuit's work;
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244 FBI
v. FIKRE
Opinion of the Court
never, he says, did that court require the government to re-
pudiate
its past conduct to prove mootness.
Rather than resolve who has the better reading of another
court's decisions, it is enough to underline the reason for our
own. Yes, a party's repudiation of its past conduct may
sometimes help demonstrate that conduct is unlikely to
recur. See, e. g., County of Los Angeles v. Davis, 440 U. S.
625, 632–633 (1979). But often a case will become moot even
when a defendant “vehemently” insists on the propriety of
“the conduct that precipitated the lawsuit.” Already, 568
U. S., at 91. What matters is not whether a defendant repu-
diates 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.
Necessarily, our judgment is a provisional one. Just be-
cause the gover nment has not yet demonstrated that
Mr. Fikre's case is moot does not mean it will never be able
to do so. This case comes to us in a preliminary posture,
framed only by uncontested factual allegations and a terse
declaration. As the case unfolds, the complaint's allegations
will be tested rather than taken as true, and different facts
may emerge that may call for a different conclusion. That
is a possibility courts must be alive to in this (and any) case,
for a federal court's duty to ensure itself of Article III juris-
diction may begin at the inception of a lawsuit, but it persists
throughout the life of the proceedings. Spencer, 523 U. S.,
at 7.
To be sure, litigating disputes that potentially touch on
matters of national security beyond the motion-to-dismiss
stage can present evidentiary challenges for parties and
courts alike. Careful attention must be paid to the handling
of classifed or privileged information. For our present pur-
poses, however, it is enough to know both sides agree that
“[a]dhering to traditional mootness principles is especially
important in this national-security context.” Reply Brief
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245
Alito, J., concurring
18; see Brief for Petitioners 34; Brief for Respondent 45.
And
adhering to those principles here, “it is impossible to
conclude” the government has so far “borne [its] burden” of
proving that this dispute is moot. Adarand Constructors,
Inc. v. Slater, 528 U. S. 216, 224 (2000) (per curiam).
*
The judgment of the Court of Appeals for the Ninth
Circuit is
Affrmed.
Justice Alito, with whom Justice Kavanaugh joins,
concurring.
I join the Court's opinion, but write to clarify my under-
standing that our decision does not suggest that the Govern-
ment must disclose classifed information to Mr. Fikre, his
attorney, or a court to show that this case is moot. In at
least some instances, requiring the Government to disclose
sensitive information regarding its grounds for placing or re-
moving a person from the No-Fly List could undermine the
Government's signifcant interests in airline safety and the
prevention of terrorist attacks. Indeed, some of the Na-
tion's 600-plus district courts are poorly positioned to handle
classifed documents, and most court personnel lack security
clearance. Recognizing such limitations, I do not under-
stand the Court's opinion to require the Government to dis-
close classifed information as a matter of course. On the
contrary, non-classifed information or information obtained
in discovery from the plaintiff in this and other cases may be
suffcient to show that the allegedly unlawful listing is un-
likely to recur, thereby proving mootness.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None