United States District Court, D. Oregon
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For Plaintiff: GADEIR I. ABBAS, Council on American-Islamic Relations, Washington, D.C.; BRANDON B. MAYFIELD, Beaverton, Oregon; THOMAS H. NELSON, Welches, Oregon.
For Defendants: ERIC HOLDER, United States Attorney General, BRIGHAM J. BOWEN, Trial Attorney, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC.
OPINION AND ORDER
Anna J. Brown, United States District Judge.
This matter comes before the Court on the Motion (#21) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction filed by Defendants Federal Bureau of Investigation (FBI), Eric Holder, Department of State, John Kerry, James B. Comey, and Christopher M. Piehota (collectively referred to as Official Capacity Defendants).
For the reasons that follow, the Court GRANTS the Official Capacity Defendants' Motion (#21) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction;
DISMISSES with prejudice Claim One; DISMISSES without prejudice Claims Two, Five, and Six with leave to file a Second Amended Complaint consistent with this Opinion and Order no later than June 27, 2014; and directs these Defendants to file their responsive pleading to the Second Amended Complaint no later than July 25, 2014.
The Official Capacity Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) the claims against them in Plaintiff Yonas Fikre's First Amended Complaint (FAC) (#10) on the grounds that Plaintiff failed to present a ripe case or controversy in Claims One, Five, and Six; failed to exhaust available administrative remedies with respect to Claims One, Five, and Six; and failed to state a claim on which relief may be granted in Claims One, Two, Five, and Six.
On March 14, 2014, the Court heard oral argument on the Official Capacity Defendants' Motion. At oral argument the Official Capacity Defendants acknowledged their arguments concerning exhaustion of administrative remedies are no longer applicable because Plaintiff exhausted his administrative remedies since filing the FAC, and Plaintiff advised the facts concerning exhaustion will be included in his Second Amended Complaint to be filed following this Opinion and Order. Accordingly, the Court need not address the parties' arguments concerning exhaustion of administrative remedies.
The Court took the remaining issues in Official Capacity Defendants' Motion under advisement at the conclusion of oral argument.
Plaintiff alleges the following pertinent facts in his FAC:
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. Plaintiff's Interrogation and Inclusion 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. Once in Sudan Plaintiff informed the United States Embassy in Khartoum of his presence in the country and of 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, who represented himself as an Embassy official. Plaintiff called Noordeloos, who 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.
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 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 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:
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,
FAC ¶ 28, p. 8. 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 to that end.
On the evening of June 1, 2011, Plaintiff was forcibly taken from his home by persons 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 ...