Fikre v. Fed. Bureau of Investigation
| Decision Date | 28 September 2016 |
| Docket Number | 3:13-cv-00899-BR |
| 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 |
Council on American-Islamic Relations
453 New Jersey Avenue, S.E.
(720) 251-0425
P.O. Box 1211
Welches, Oregon 97067-1211
(503) 622-3262
Attorneys for Plaintiff
United States Attorney General
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
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
This matter comes before the Court on the Motion (#90) to Dismiss Plaintiff's Fifth Amended Complaint 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) and Official Capacity Defendants' Unopposed Motion (#91) Motion for Partial Stay of Due Process Claims.
For the reasons that follow, the Court GRANTS Official Capacity Defendants' Motion (#90) to Dismiss and DISMISSES with prejudice Plaintiff's Fifth Amended Complaint as to Plaintiff's claims against Official Capacity Defendants. The Court also DENIES as moot Official Capacity Defendants' Unopposed Motion (#91) to Stay Plaintiff's Due Process Claims.
Plaintiff filed his Fifth Amended Complaint (#87) (FAC) on November 29, 2015.
On January 21, 2016, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) Official Capacity Defendants moved to dismiss the claims that Plaintiff Yonas Fikre brings against them in his FAC as described below and also moved in the alternative to stay Plaintiff's due-process claims.1
On February 11, 2016, Plaintiff filed a Response (#95) in Opposition to Official Capacity Defendants' Motion to Dismiss. On March 3, 2016, Official Capacity Defendants filed a Reply (#96) in Support of Motion to Dismiss.
On May 9, 2016, Official Capacity Defendants filed a Notice (#98) Regarding Plaintiff's Status in which they represented "Plaintiff has been removed from the No Fly List." That same day by Order (#99) the Court directed the parties2 to confer and to file no later than May 16, 2016, a single, joint status report in which the parties set out their positions regarding the effect of Plaintiff's removal from the No-Fly List on Official Capacity Defendants' pending Motion (#90) to Dismiss Plaintiff's Fifth Amended Complaint and Official Capacity Defendants' Unopposed Motion (#91) to Stay Due Process Claims and, in particular, to specify the portions of the pending Motions that are rendered moot and the portions that are unaffected by the Notice.
In a Joint Status Report (#100) filed May 16, 2016, the parties agreed Claims One and Three should be dismissed to the extent that those claims seek injunctive relief related to the removal of Plaintiff's name from the No-Fly List. Plaintiff, however, contends he remains entitled to other injunctive and declaratory relief on Claims One and Three.
On May 20, 2016, the Court issued Order (#101) in which it concluded oral argument was unnecessary to resolve the pending Motions. In light of the intervening developments since the filing of Defendants' Motions, however, the Court directed the parties to file a stipulation confirming their agreement as to the extent to which Defendants' Notice (#98) moots or otherwise resolves any of Plaintiff's pending claims. In addition, the Court provided the parties an opportunity to file simultaneous, supplemental memoranda regarding the effect that Plaintiff's removal from the No-Fly List has on Official Capacity Defendants' Motions and to provide any additional argument. The parties filed their respective supplemental memoranda (#103, #104) on June 23, 2016, and the Court took this matter under advisement without argument on that date.
For purposes of these Motions, the Court deems as true the following background facts from Plaintiff's FAC, Official Capacity Defendants' Notice (#98) Regarding Plaintiff's Status, and the parties' Joint Status Report (#100):
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:
FAC ¶ 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...
To continue reading
Request your trial