Legal Docket: Due process in the air and on the ground

NICK EICHER, HOST: It’s The World and Everything in It for this 29th day of January, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Today, two oral arguments the Supreme Court heard this month. The first one involves an anti-terror tool known as the “No Fly List.” It grew out of the 9/11 terror attacks, and the list is compiled and maintained by the FBI.

What’s driving the case is the question of whether the list is being misused.

EICHER: The case is FBI versus Fikre.

Fourteen years ago, an American citizen named Yonas Fikre traveled on business from Oregon to Sudan.

While in Sudan’s capital Khartoum FBI agents approached him and asked about his association with a mosque back in Oregon. The agents told him that his name was on the “No Fly List” but they’d take him off if he’d become a government informant.

REICHARD: Fikre declined the deal and that left him stranded overseas. Being on that list meant he couldn’t take commercial flights to or from the U.S., or even fly over it.

So he traveled to the United Arab Emirates. But there he wound up in prison. And he says he was tortured, allegedly at the FBI’s request, and we have to stress, allegedly.

Five years passed before he could return to the U.S. on a private jet. Fikre says that time away ruined his marriage and damaged his reputation.

He eventually sued the FBI in federal court for violating his right to due process.

EICHER: It was at that point the FBI took him off the no-fly list, and because of that, then argued his case was moot.

But Fikre says the case isn’t moot.

And that’s the question for the justices to answer. His lawyer, Gadeir Abbas:

ABBAS: He doesn't know why he was listed. He doesn't know what might cause him to be relisted. He doesn't know if the next time he worships at a mosque or travels abroad he might be relisted, massively disrupting his life once again. Mr. Fikre is peaceful, a law-abiding U.S. citizen. He has a live controversy against the government and seeks only to litigate that case on the merits. That's it.

REICHARD: The FBI says the opposite. Here is Assistant to the Solicitor General Sopan Joshi:

JOSHI: 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. …

What Respondent wants is vindication for his past placement.

Justice Neil Gorsuch wasn’t so sure about that.

JUSTICE GORSUCH: An American citizen normally has a right to what’s been called every man’s evidence against him. That’s due process. That’s a pillar of our democracy. And, here, the government says, no, you don’t get that evidence.

EICHER: But government lawyer Joshi argued the FBI issued a sworn statement that it won’t do it again under the same facts. The agency would use a totality of circumstances to assess risk.

That didn’t satisfy Justice Elena Kagan:

JUSTICE KAGAN: Well, I don't think that that helps you very much. Let's say it's a totality of the circumstances. There are five circumstances. Then he stopped doing one of them, and you thought now there are only four circumstances, and it was the fifth one that pushed us over the edge, so we're going to take him off the list. And now he starts doing the fifth again. So now we say, well, the totality of the circumstances, he's back on the list. I don't think it really helps in the end that it's a multi-factor inquiry. At some point, you're making a judgment about conduct that puts you on the list. And the problem here is that you're -- you basically just admitted, conceded, that the same conduct, if he participated in it again, could put him back on the list. So, once that's true, I don't really see where the mootness argument is.

REICHARD: I don’t think the FBI is going to get a pass on this one. If a majority decides in favor of Fikre that his case isn’t moot, he’ll be able to proceed with the merits of his case.

EICHER: Now for the final oral argument today, this one called Sheetz versus County of El Dorado, California.

This case is about a man who set out to build a modest retirement home on his property near Lake Tahoe. The man’s name is George Sheetz. But El Dorado county conditioned a building permit on Sheetz paying for what it called “traffic impact mitigation.” The money was supposed to pay for any road expansion.

There is no dispute in this case that a property owner can be required to offset costs arising from private development.

REICHARD: What is disputed is the amount, $23,000 and whether this fee scheme violates the man’s rights under the Fifth Amendment’s Takings Clause. The Fifth Amendment provides that “private property shall not be taken for public use without just compensation.” And the 14th Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.”

EICHER: Sheetz paid the fee under protest, then sued to get his money back.

His lawyer, Paul Beard, argued his client faced an impossible choice: the taking of more than $23,000 or the ability to use his land. As such, the court should apply heightened scrutiny to the county’s actions.

BEARD: Such review is needed to ensure that the government is not committing a taking in the guise of the police power to mitigate for land use impacts. Upholding the lower court's decision would just invite the government to monetize across the country all of their permit exactions and to preset legislative fees in order to escape heightened review.

REICHARD: He clarified that it’s not the permit fee itself that’s the problem.

BEARD: Everyone loves good roads and schools and public infrastructure, so the government certainly has many tools at its disposal, including taxes, to pay for those. What we're saying is that the government can't select a few. The one or two or a few property owners who happen to need a permit at any given time, to select them to bear the burdens of paying for that public infrastructure.

He pointed out Supreme Court precedent in two cases called Nollan and Dolan. Those decisions say the government may not deny benefits to a person because he exercises a constitutional right. So before issuing a conditional permit, the government must prove two things.

First, that there is an “essential nexus” between the permit fee and the building project. That is, a relationship between the private party’s activity and the burden placed on the community as a result of that activity.

EICHER: Second, there must be a “rough proportionality” between the building project and any impact it has on traffic. Meaning, the fee has to be in line with the actual burden placed on the government as a result of the building project.

The lawyer for the property owner says the county failed to show evidence of either nexus or proportionality.

REICHARD: For the other side, county lawyer Aileen McGrath argued this is much ado… about nothing new:

MCGRATH: Like countless local governments across the country, the County of El Dorado charges a fee to developers to address the impacts of new development using a predetermined schedule.

It pays for only those improvements necessary to alleviate increased traffic from new development. Neither precedent nor principle supports, much less compels, applying Nollan/Dolan's individualized test to those programmatic fees. In centuries' worth of precedent, this Court has reiterated that governments can charge fees to property owners, such as special assessments to fund public improvements and user fees to fund government services. This Court has always held that those fees, which are indistinguishable from the fee at issue, are not takings.

Justice Samuel Alito pushed back on that, citing those Nollan and Dolan precedents used by the other side:

JUSTICE ALITO: Counsel, I -- I -- I'm puzzled by your statements about what the court below held. It said over and over again that Nollan/Dolan do not apply to legislation.

No, she argued, that’s not the distinguishing feature. The county’s fee is just like property taxes and user fees. So, she argued, let the current process remain:

MCGRATH: Forcing local governments to justify a programmatic fee on a parcel-by-parcel basis would disrupt, if not destroy, their ability to fund capital-intensive infrastructure necessary to serve new development, bringing such development to a grinding halt. The Takings Clause does not compel that sea change.

EICHER: For perspective, the Wall Street Journal reported that the average impact fee on single-family homes in 2019 was around $14,000. In California? Two and a half times that amount, around $37,000.

For some, this is tantamount to extortion. Some local governments condition permits on ride-share programs or building day-care centers, to use two examples. But California and these other states have decided “nexus” and “proportionality” requirements don’t apply to impact fees.

REICHARD: Yet it wasn’t all smooth sailing for the disgruntled home builder. Listen to this exchange between Chief Justice John Roberts and lawyer Beard:

JUSTICE ROBERTS: It's not a broadly applicable tax or -- or fee? But -- but I don't see how that's a significant distinction because it's like tolls. I mean, the tolls are only assessed on people who drive on that road. And yet, that doesn't suggest that the tolls are a taking.

BEARD: Well, and that's because -- and they may be a taking, so we don't want to concede that point. But it's -- a user fee, again, is reimbursement for a product or service used.

Speaking for himself, Sheetz found his case to be part of a much larger picture.

SHEETZ: And there’s a lot of other things going on that are just out of control. And I think if everybody would jump in and start fighting back against government and the abuse of government it’s gonna get back to the way this country used to be.

And that’s this week’s Legal Docket!

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