Fikre v. Fed. Bureau of Investigation

• Citation: 904 F.3d 1033
• Decision Date: 20 September 2018
• Docket Number: No. 16-36072,16-36072
• Parties: Yonas FIKRE, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Jefferson Sessions, Attorney General; Mike Pompeo, Secretary of State; Christopher A. Wray, Director of the FBI (sued in his official capacity); Charles H. Kable, IV, Director of FBI Terrorism Screening Center (sued in his official capacity); Daniel Coats, Director of National Intelligence (sued in his official capacity); Paul Nakasone, Director of the National Security Agency (sued in his official capacity); David Noordeloos, an FBI Agent (sued in his official and individual capacity); Jason Dundas, an FBI Agent (sued in his individual capacity); National Security Agency; United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

904 F.3d 1033

Yonas FIKRE, Plaintiff-Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION; Jefferson Sessions, Attorney General; Mike Pompeo, Secretary of State; Christopher A. Wray, Director of the FBI (sued in his official capacity); Charles H. Kable, IV, Director of FBI Terrorism Screening Center (sued in his official capacity); Daniel Coats, Director of National Intelligence (sued in his official capacity); Paul Nakasone, Director of the National Security Agency (sued in his official capacity); David Noordeloos, an FBI Agent (sued in his official and individual capacity); Jason Dundas, an FBI Agent (sued in his individual capacity); National Security Agency; United States of America, Defendants-Appellees.

No. 16-36072

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2018 Portland, Oregon
Filed September 20, 2018

904 F.3d 1035

Brandon B. Mayfield (argued), Beaverton, Oregon; Gadeir Abbas and Lena Masri, Council on American-Islamic Relations, Washington, D.C.; Thomas H. Nelson, Zigzag, Oregon; for Plaintiff-Appellant.

Joshua Paul Waldman (argued) and Sharon Swingle, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Before: Johnnie B. Rawlinson, Milan D. Smith, Jr.,^* and Morgan Christen, Circuit Judges.

CHRISTEN, Circuit Judge:

Yonas Fikre sued the United States government, alleging that the Federal Bureau of Investigations violated his substantive and procedural due process rights by placing and maintaining him on the No Fly List. While the suit was pending, the Defendants removed Fikre from the list and the district court dismissed Fikre's due process claims as moot. Fikre appeals. We have jurisdiction, 28 U.S.C. § 1291, and we reverse.

BACKGROUND¹

Fikre is an American citizen who, until 2009, lived in Portland, Oregon and worked for a cellular telephone company. In late 2009, Fikre traveled to Sudan to establish a consumer electronics business in East Africa. In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines. The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.

Fikre's business took him to the United Arab Emirates (UAE) in September 2010. As recounted by Fikre, Emirati secret police seized him from the place where he was staying in June 2011 and transported him to an unknown location where he was imprisoned and tortured for 106 days. During this time, Fikre was interrogated about his connection to the as-Saber Mosque and the nature of his financial dealings. One of the interrogators told Fikre that the FBI had requested his detention. Fikre was released in September 2011, but he was unable to board a plane bound for the United States because he remained on the No Fly List. Fikre sought refuge in Sweden. While there, he consulted an attorney and held a press conference denouncing his capture and confinement in the UAE.

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The Department of Homeland Security (DHS)'s Traveler Redress Inquiry Program (TRIP) allows individuals the opportunity to have the Transportation Security Administration review and, if appropriate, correct their files if it determines that a person has been erroneously placed on a watchlist. As initially implemented in 2007, the government responded to TRIP inquiries without confirming a traveler's inclusion on the No Fly List. Fikre attempted in November 2013 to rectify his situation through TRIP, but the DHS neither confirmed nor denied his placement on the No Fly List in response to this first inquiry; it stated only that "no changes or corrections [we]re warranted at th[at] time."

In 2015, the DHS modified TRIP to comply with the judgment in Latif v. Holder , 28 F.Supp.3d 1134 (D. Or. 2014). The revised TRIP protocol includes additional procedural safeguards that were unavailable at the time Fikre filed his action. Requesters are now apprised of their presence or absence on the No Fly List and the unclassified reasons for their status. Applying the revised procedures, in February 2015 the DHS informed Fikre that he was and would remain on the No Fly List because he had been "identified as an individual who may be a threat to civil aviation or national security." No other reasons were provided for the decision to maintain Fikre on the No Fly List. Fikre was ultimately denied asylum in Sweden, and the Swedish government returned him to the United States in 2015. Fikre avers that these events damaged his reputation by stigmatizing him as a suspected terrorist and so strained his marriage that his wife divorced him while he was stranded outside of the country.

Fikre brought the instant suit against the government raising a variety of common law, statutory, and constitutional claims.² As relevant here, Fikre alleged that the FBI violated his right to substantive due process by depriving him of his liberty interest in his reputation and international travel,³ and by conditioning his removal from the No Fly List upon his agreement to become a government informant. Fikre's complaint also maintained that the FBI denied him procedural due process by placing and keeping him on the No Fly List without adequate notice and an opportunity to be heard. Fikre prayed for injunctive and declaratory relief for both due process claims and asked, among other things, for a declaration by the government that he should not have been added to the No Fly List.

The Defendants moved to dismiss the operative complaint and, shortly thereafter, notified Fikre that he had been removed from the No Fly List. In a joint status report filed at the district court's direction, Fikre agreed that, to the extent he sought an injunction requiring the Defendants to remove him from the list, that claim was moot. Fikre contended, however, that he remained entitled to other injunctive and declaratory relief.

The district court subsequently dismissed Fikre's remaining procedural and substantive due process claims in a detailed decision. The court reasoned that the government's removal of Fikre from the No Fly List was "a sufficiently definite

904 F.3d 1037

action" to render his claims moot. In reaching this conclusion, the district court observed that the Defendants had publicly stated that Fikre was no longer on the No Fly List, that more than six months had elapsed since this change in status, and that the record did not indicate a lack of good faith on the government's part. The district court also "emphasize[d]" that "the courthouse doors will be open to [Fikre]" were he to be reinstated to the No Fly List in the future.

STANDARD OF REVIEW

We review "questions of Article III justiciability, including mootness" de novo. Bell v. City of Boise , 709 F.3d 890, 896 (9th Cir. 2013) (citing Sierra Forest Legacy v. Sherman , 646 F.3d 1161, 1176 (9th Cir. 2011) ).

DISCUSSION

The government argues that Fikre's procedural and substantive due process claims are moot because he has been removed from the No Fly List. In the government's view, insofar as Fikre sought to be removed from the No Fly List, that outcome has now been achieved and his former status does not impinge on his existing legal rights. The government argues that there is no longer a live controversy and no effectual relief the court could grant.

Fikre begs to differ. According to him, the voluntary cessation doctrine should apply to preclude a finding of mootness, especially because the government has not explained why it added him to the No Fly List in the first place and why, years later, it spontaneously took him off of it. Fikre urges that nothing prevents the government from putting him back on the list and that his claims are therefore not moot.

"Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ " Already, LLC v. Nike, Inc. , 568 U.S. 85, 90, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). "A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.’ " Id. at 91, 133 S.Ct. 721 (quoting Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) ). It is well-established, however, that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case" unless "it can be said with assurance that ‘there is no reasonable expectation ...’ that the alleged violation will recur" and "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (alteration in original) (quoting United States v. W.T. Grant Co. , 345...