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Fikre v. Federal Bureau of Investigation

United States Court of Appeals, Ninth Circuit

September 20, 2018

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.

          Argued and Submitted May 9, 2018 Portland, Oregon.

          Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding D.C. No. 3:13-cv-00899-BR.

          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.

         SUMMARY[**]

         Due Process

         The 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 List.

         The 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.

         The panel remanded for further proceedings. The panel affirmed the dismissal of plaintiff's Fourth Amendment claims in a concurrently field memorandum disposition.

          OPINION

          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.

         BACKGROUND[1]

         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 ...


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