Fikre v. Fed. Bureau of Investigation

• Decision Date: 04 November 2015
• Docket Number: 3:13–cv–00899–BR
• Citation: 142 F.Supp.3d 1152
• Parties: Yonas Fikre, Plaintiff, v. Federal Bureau of Investigation; Loretta E. Lynch, in her official capacity as Attorney General of the United States; Department of State; John Kerry, in his official capacity as Secretary of State; United States of America; James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation; Christopher M. Piehota, in his official capacity as Director of the FBI Terrorist Screening Center; James Clapper, in his official capacity as Director of National Intelligence; Michael S. Rogers, in his official capacity as Director of the National Security Agency; National Security Agency; David Noordeloos, an employee of the Federal Bureau of Investigation, in his official and individual capacity; John Doe I, also known as Jason Dundas, an employee of the Federal Bureau of Investigation, in his official and individual capacities; and John/Jane Does II-XX, agents of the United States, Defendants.
• Court: U.S. District Court — District of Oregon

142 F.Supp.3d 1152

Yonas Fikre, Plaintiff,

v.Federal Bureau of Investigation; Loretta E. Lynch, in her official capacity as Attorney General of the United States;¹ Department of State; John Kerry, in his official capacity as Secretary of State; United States of America; James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation; Christopher M. Piehota, in his official capacity as Director of the FBI Terrorist Screening Center; James Clapper, in his official capacity as Director of National Intelligence; Michael S. Rogers, in his official capacity as Director of the National Security Agency; National Security Agency; David Noordeloos, an employee of the Federal Bureau of Investigation, in his official and individual capacity; John Doe I, also known as Jason Dundas, an employee of the Federal Bureau of Investigation, in his official and individual capacities; and John/Jane Does II-XX, agents of the United States, Defendants.

3:13–cv–00899–BR

United States District Court, D. Oregon.

Signed November 4, 2015

GADEIR I. ABBAS, WILLIAM J. BURGESS, Council on American-Islamic Relations, 453 New Jersey Avenue, S.E., Washington, D.C. 2003, (720) 251-0425, BRANDON B. MAYFIELD, 3950 S.W.

185th Avenue, Beaverton, Oregon 97007, (503) 941-5101, THOMAS H. NELSON, P.O. Box 1211, Welches, Oregon 97067-1211, (503) 622-3262, Attorneys for Plaintiff

LORETTA E. LYNCH, United States Attorney General, BRIGHAM J. BOWEN, SAMUEL M. SINGER, United States Department of Justice, Civil Division, Federal Programs Branch, P.O. Box 883, Washington, DC 20044, (202) 514-6289, Attorneys for Defendants Federal Bureau of Investigation, Loretta E. Lynch, Department of State, John Kerry, James B. Comey, Christopher M. Piehota, Michael S. Rogers, National Security Agency, United States of America, and James Clapper

OPINION AND ORDER

ANNA J. BROWN

, United States District Judge

This matter comes before the Court on the Motion (#69) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction filed by Defendants Federal Bureau of Investigation (FBI), Loretta E. Lynch, Department of State, John Kerry, James B. Comey, Christopher M. Piehota, Michael S. Rogers, National Security Agency (NSA), United States of America, and James Clapper (collectively referred to as Official Capacity Defendants).²

For the reasons that follow, the Court GRANTS in part and DENIES in part the Official Capacity Defendants' Motion (#69) to Dismiss as follows:

The Court GRANTS the Official Capacity Defendants' Motion and DISMISSES with prejudice Claims One, Three, Four, and Seven; Claim Fifteen as to declaratory relief only; and Claim Sixteen only as to Plaintiff's claims under 50 U.S.C. §§ 1801(a)

,(b),(h), and 1809(a)(1), (a)(2).

The Court GRANTS the Official Capacity Defendants' Motion and DISMISSES without prejudice Claim Sixteen only as to injunctive relief and Claim Seventeen and grants Plaintiff leave to amend these claims no later than November 27, 2015, to cure the pleading deficiencies identified by the Court, but in light of the age of this case and Plaintiff's numerous previous pleading attempts, the Court does not grant Plaintiff leave to amend his Complaint to add new claims or to materially alter any other existing claims.

The Court also GRANTS the Official Capacity Defendants' Motion and DISMISSES without prejudice Claim Nineteen to the extent that Plaintiff is able to seek a remedy under Federal Rule of Criminal Procedure 41(g)

in the event that Plaintiff prevails on Claim Fifteen as to injunctive relief.

The Court DENIES the Official Capacity Defendants' Motion to Dismiss as to Plaintiff's Claims Two, Six, and Eighteen.

PROCEDURAL BACKGROUND

On May 22, 2015, the Official Capacity Defendants moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

the claims that Plaintiff Yonas Fikre brings against them in his Corrected Fourth Amended Complaint (Corrected) (FACC) (#62) as described below.³

On August 24, 2015, the Court heard oral argument on the Official Capacity Defendants' Motion. The Court took the Motion under advisement at the conclusion of oral argument.

FACTUAL BACKGROUND

The Court takes the following from Plaintiff's FACC as true:

I. The No-Fly List

The FBI is responsible for development and maintenance of the No-Fly List, which identifies individuals who are "prohibited from flying into, out of, or over the United States" or into, out of, or over Canadian airspace by commercial airlines.

II. Interrogation of Plaintiff and Placement on the No-Fly List

Plaintiff is a 33-year-old naturalized American citizen of Eritrean descent who was a resident of Portland, Oregon, beginning in 2006. In late 2009 Plaintiff decided to use his experience working for a cellular telephone company in the United States to pursue the business of distributing and selling consumer electronic products in East Africa, and, accordingly, Plaintiff traveled to Sudan where some of his extended family lives. In Sudan Plaintiff informed the United States Embassy in Khartoum of his presence in the country and his intention to pursue business opportunities there. Based on encouragement from Embassy personnel, Plaintiff began the process of obtaining a Sudanese business license.

On April 21, 2010, Plaintiff received a telephone call from the Embassy requesting Plaintiff to contact Defendant Noordeloos. When Plaintiff returned the call, Noordeloos represented himself as an Embassy official working for the State Department. Noordeloos invited Plaintiff to a luncheon at the Embassy the following day to discuss safety during a period of political turmoil in Sudan.

The next morning Plaintiff arrived at the Embassy and was met by Noordeloos and Defendant John Doe I, who introduced himself as Jason Dundas. Noordeloos and Dundas escorted Plaintiff to a small meeting room, shut the door, positioned themselves between Plaintiff and the door, and informed Plaintiff that they worked for the FBI Field Office in Portland, Oregon.

When he was told Noordeloos and Dundas were FBI agents from Portland, Plaintiff requested to be represented by his legal counsel during any interrogation. Noordeloos, however, informed Plaintiff that he could not return to the United States to confer with his Oregon-based legal counsel because Plaintiff had been placed on the No-Fly List.

The ensuing interrogation lasted several hours until the end of the business day. Throughout the course of the interrogation Noordeloos and Dundas questioned Plaintiff about the As-Saber Mosque in Portland where Plaintiff had attended prayer services. In addition, Noordeloos and Dundas questioned Plaintiff about the source of financial support for his business endeavors and told him that sanctions made his business activities in Sudan illegal. Finally, Noordeloos asked Plaintiff to be an informant for the FBI in exchange for "substantial compensation" and removal from the No-Fly List. Plaintiff responded he did not wish to become an informant. At the end of the business day Noordeloos suggested they resume the discussion the following day. Plaintiff agreed.

The following morning Plaintiff called Noordeloos on the telephone and informed him that he did not wish to meet further with Dundas and Noordeloos. Noordeloos became agitated when Plaintiff again stated he did not want to be an informant. Noordeloos concluded the conversation by telling Plaintiff: "Whenever you want to go home you come to the embassy." On May 4, 2010, a little more than a week after their final conversation, Noordeloos emailed Plaintiff as follows:

Yonas,

Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now.

Be safe in Sudan, Dave Noordeloos

FACC ¶ 38. Plaintiff remained in Khartoum for approximately two months during which time he noticed he was being followed by persons he assumed to be associated with the Sudanese secret police. He learned from acquaintances that similar individuals had been inquiring about him and his activities. Plaintiff left Sudan on approximately June 15, 2010.

On approximately September 15, 2010, Plaintiff traveled to the United Arab Emirates (UAE) to pursue similar business interests. Plaintiff obtained a residency permit in the UAE in order to conduct business, and he invested substantial financial resources provided by his family for that purpose.

On the evening of June 1, 2011, Plaintiff was forcibly taken from his home by persons who he later learned were Emirati secret police. The police seized some of Plaintiff's personal property, blindfolded him, and placed him in a heavily air-conditioned car. Plaintiff's captors drove him for approximately two hours to a building where he was housed in a heavily air-conditioned, windowless cell with only a bed.

The next morning Plaintiff was led to a room in which he would undergo the first of repeated interrogations during 106 days of imprisonment. During these interrogations Plaintiff was blindfolded while he was questioned in English for extended periods of time. Periodically Plaintiff was able to peek beneath his blindfold and to view the shoes and lower torsos of his interrogators, some of whom wore Western clothes.

The substance of the interrogations focused on the activities, fundraising, and leadership of the As-Saber Mosque. In addition, the interrogators questioned Plaintiff about "circumstances and events that [P]laintiff had disclosed" to Noordeloos and Dundas in Khartoum, and the interrogators urged Plaintiff "numerous times" to cooperate with the FBI by becoming an informant.

Plaintiff was subjected to multiple threats and beatings throughout the course of his confinement. In response to his resistance to answering questions, Plaintiff was struck on the head. Besides being hit on the head, Plaintiff was repeatedly beaten on his back, legs, and the soles of his feet with batons and plastic pipes. When Plaintiff returned to his cell at the...