and Submitted May 9, 2018 Portland, Oregon.
from the United States District Court for the District of
Oregon Anna J. Brown, District Judge, Presiding D.C. No.
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
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.
panel reversed the district court's dismissal, as moot,
of a plaintiff's action alleging that the Federal Bureau
of Investigation violated his substantive and procedural due
process rights by placing and maintaining him on the No Fly
panel held that the government's announcement that it was
removing plaintiff from the No Fly List did not render his
due process claims moot. The panel held that the record
suggested that plaintiff's removal from the No Fly List
was more likely an exercise of discretion than a decision
arising from a broad change in agency policy or procedure.
The panel further held that the government had not assured
plaintiff that he would not be banned from flying for the
same reasons that prompted the government to add him to the
list in the first place, nor had it verified the
implementation of procedural safeguards conditioning its
ability to revise plaintiff's status on the receipt of
new information. Finally, the panel held that plaintiff's
removal from the No Fly List did not completely eradicate the
effects of the alleged violation.
panel remanded for further proceedings. The panel affirmed
the dismissal of plaintiff's Fourth Amendment claims in a
concurrently field memorandum disposition.
CHRISTEN, CIRCUIT JUDGE.
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
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 ...