Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fikre v. Federal Bureau of Investigation

United States District Court, D. Oregon

May 8, 2019

YONAS FIKRE, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

          GADEIR I. ABBAS LENA F. MASRI WILLIAM J. BURGESS Council on American-Islamic Relations Legal Defense Fund BRANDON B. MAYFIELD Attorneys for Plaintiff

          JOSEPH H. HUNT Assistant Attorney General ANTHONY J. COPPOLINO Deputy Branch Director BRIGHAM J. BOWEN DENA M. ROTH SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Yonas Fikre's Motion (#125) to Amend his Complaint in which Plaintiff seeks leave to file a Sixth Amended Complaint. For the reasons that follow, the Court GRANTS in part and DENIES in part Plaintiff's Motion.

         BACKGROUND

         Plaintiff initiated this action on May 30, 2013. In his original Complaint (#1) Plaintiff brought six claims against various Defendants arising from his placement on the No-Fly List and alleged detention and torture while he was overseas.

         In his original Complaint and First Amended Complaint (#10) Plaintiff brought four claims (Claims One, Two, Five, and Six) against various Defendants sued in their official capacities (hereinafter referred to as the Official Capacity Defendants or Defendants) and two claims against two Defendants in their individual capacities (hereinafter referred to as the Individual Capacity Defendants).[1] In Claim One Plaintiff alleged his placement on the No-Fly List while he was abroad prevented him from returning to the United States and, in effect, stripped him of his rights of citizenship protected by the Fourteenth Amendment. In Claim Two Plaintiff alleged the various Defendants violated his substantive due-process rights under the Fifth Amendment and his rights as a citizen under the Fourteenth Amendment when the Defendants allegedly "enlisted foreign intermediaries to torture [P]laintiff at their behest." First Am. Compl. ¶ 58. In Claim Five Plaintiff alleged various Defendants violated his substantive due-process right to return to the United States by placing him on the No-Fly List. Finally, in Claim Six Plaintiff alleged Defendants violated his procedural due-process rights when they placed him on the No-Fly List without providing him with sufficient notice or opportunity to challenge his placement on the List.

         On May 29, 2014, this Court dismissed Plaintiff's Claim One with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Fikre v. Fed. Bur. of Investigation, 23 F.Supp.3d 1268 (D. Or. 2014). The Court also dismissed Plaintiff's Claims Two, Five, and Six without prejudice and with leave to amend pursuant to Rule 12(b) (6) . Id.

         On June 27, 2014, Plaintiff filed a Second Amended Complaint (#37) in which he re-pleaded his substantive due-process claim (Claim One) on the basis of his right to return to the United States and his procedural due-process claim (Claim Six) against the Official Capacity Defendants. Although Plaintiff did not re-plead his torture claim against the Official Capacity Defendants, Plaintiff did add several claims against the Individual Capacity Defendants, including multiple Bivens claims related to his alleged torture. Plaintiff also added the following claims against the Official Capacity Defendants: a substantive due-process claim on the basis of his right to international travel (Claim Two), a substantive due- process claim on the basis of vagueness and overbreadth (Claim Three), a claim for violation of his Fifth Amendment right to counsel (Claim Four), and a claim for violation of his Fifth Amendment right to freedom of association (Claim Five) on the basis that Defendants allegedly attempted to coerce Plaintiff into being an informant by offering to remove him from the No-Fly List if he did so.

         The Official Capacity Defendants filed a Motion (#40) to Dismiss Plaintiff's Second Amended Complaint on August 8, 2014. Before briefing was completed on the Official Capacity Defendants' Motion, Plaintiff expressed an intention to file a Third Amended Complaint. After conferral the parties agreed Plaintiff should be permitted to file his Third Amended Complaint and that Defendants' Motion to Dismiss the Second Amended Complaint should be stricken as moot.

         Accordingly, Plaintiff filed his Third Amended Complaint (#55) on November 13, 2014. In the Third Amended Complaint Plaintiff re-pleaded each of the claims that he brought in his Second Amended Complaint, but he added claims against at least some of the Official Capacity Defendants for violation of Plaintiff s Fourth Amendment rights on the basis of an unreasonable search and seizure of his telephone calls, emails, and text messages (Claim Fifteen); violation of the Foreign Intelligence Surveillance Act (FISA) (Claim Sixteen); violation of the Stored Communications Act (Claim Seventeen); violations of the Wiretap Act (Claim Eighteen); and a claim for return of unlawfully searched-and-seized property pursuant to Federal Rule of Criminal Procedure 41(g) (Claim Nineteen).

         In Fall 2014 Defendants amended the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) procedures available to individuals who had been denied boarding on a commercial airline, including those denied boarding because they were on the No-Fly List. Defendants amended these procedures after this Court concluded in Latif v. Holder, et al., that the DHS TRIP procedures in place at the time Plaintiff filed this action violated the Latif Plaintiffs' procedural due-process rights. See 28 F.Supp.3d 1134 (D. Or. 2014).

         Even though this action had not yet proceeded beyond the Rule 12 stage, Defendants moved for an extension of time to respond to Plaintiff s Third Amended Complaint in order to permit Defendants to reassess Plaintiff s DHS TRIP inquiry pursuant to the new procedures. On March 16, 2015, the parties filed a Joint Status Report (#58) in which the Official Capacity Defendants indicated Plaintiff remained on the No-Fly List after reevaluation of his DHS TRIP inquiry and that Plaintiff had returned to the United States. Accordingly, the parties agreed Plaintiff should be entitled to amend his Complaint again to reflect these developments.

         On April 1, 2015, Plaintiff filed a Fourth Amended Complaint (#60). In his Fourth Amended Complaint, however, Plaintiff failed to plead and to identify specifically in his procedural due-process claim the protected liberty and/or property interest(s) that he was allegedly denied. Because this was a pleading deficiency that had persisted since Plaintiff s original Complaint, the Court granted Plaintiff leave to file a Corrected Fourth Amended Complaint to address that issue. See Order (#61) issued Apr. 2, 2015. Accordingly, on April 6, 2015, Plaintiff filed a Corrected Fourth Amended Complaint (#62) in which Plaintiff updated the factual pleadings, identified the protected liberty interests that he was allegedly denied as a result of procedural due-process violations, and otherwise re-pleaded each of the claims that he raised in his Third Amended Complaint.

         Defendants moved to dismiss Plaintiff's Fourth Amended Complaint on May 22, 2015. Defs.' Mot. (#69) to Dismiss. On November 4, 2015, the Court granted Defendants' Motion in part and denied it in part. See Opin. and Order (#81). Specifically, the Court denied Defendants' Motion as to Plaintiff s substantive due-process claim as it related to the right to international travel and his procedural due-process claim because the Court determined Plaintiff adequately stated those claims for relief. The Court also denied Defendants' Motion as to Plaintiff's Wiretap Act claim as pleaded in Plaintiff's Fourth Amended Complaint. The Court, however, dismissed with prejudice the following claims: Plaintiff's substantive due-process claim on the basis of Defendants' denial of his right to return to the United States (Claim One); Plaintiff s due-process vagueness and overbreadth claim (Claim Three); Plaintiff's Fifth'Amendment right-to-counsel claim (Claim Four); Plaintiff's First Amendment freedom-of-association claim (Claim Seven); Plaintiff's Fourth Amendment claim (Claim Fifteen) as to declaratory relief only; and portions of Plaintiff s FISA claim (Claim Sixteen) . The Court dismissed without prejudice and with leave to amend Plaintiff's FISA claim only as to injunctive relief and his Stored Communications Act claim (Claim Seventeen). The Court, however, stated: "In light of the age of this case and Plaintiff s numerous previous pleading attempts, the Court does not grant Plaintiff leave to amend his Complaint to add new claims or to materially alter any other existing claims." Opin. and Order (#81) at 48. Finally, the Court also dismissed Plaintiff s Claim Nineteen without prejudice because the legal basis for Claim Nineteen, Federal Rule of Criminal Procedure 41(g), could not act as a stand-alone claim but could serve as a remedy in the event Plaintiff prevailed on his Fourth Amendment claim.

         On November 29, 2015, Plaintiff filed a Fifth Amended Complaint (#87). In his Fifth Amended Complaint Plaintiff re-pleaded each of the claims that were not dismissed in the Court's Opinion and Order (#81). Plaintiff re-pleaded his Fourth Amendment claim (Claim Twelve), his FISA claim (Claim Thirteen), his Stored Communications Act claim (Claim Fourteen), and his Wiretap Act claim (Claim Fifteen). Plaintiff also re-pleaded his freedom-of-association claim (Claim Four) even though the Court had earlier dismissed it with prejudice. Finally, Plaintiff added a Claim Sixteen that he characterized as a "Motion for Return of Unlawfully Searched and Seized Property Pursuant to Federal Rule of Criminal Procedure 41(g)." Fifth Am. Compl., at 40.

         On January 21, 2016, Defendants again filed a Motion (#90) to Dismiss Plaintiff's Fifth Amended Complaint. During the briefing on that Motion, however, Defendants filed a Notice (#98) that indicated Plaintiff had been removed from the No-Fly List. As a result, the Court directed the parties to confer and to submit supplemental memoranda regarding the effect that Plaintiff s removal from the No-Fly List had on Plaintiff s then-existing claims and Defendants' Motion to Dismiss them.

         After the parties submitted the supplemental briefing, the Court issued an Opinion and Order (#105) on September 28, 2016 (Fikre v. Federal Bureau of Investigation, No. 3:13-cv-00899-BR, 2016 WL 5539591 (D. Or. Sept. 28, 2016)). In that Opinion and Order the Court dismissed Plaintiff s substantive and procedural due-process claims as moot in light of Plaintiff s removal from the No-Fly List. As it did in its November 4, 2015, Opinion and Order, the Court also dismissed with prejudice Plaintiffs First Amendment freedom-of-association claim (Claim Four) for failure to state a claim. Moreover, the Court dismissed each of Plaintiff s various surveillance claims under the Fourth Amendment (Claim Twelve), FISA (Claim Thirteen), the Stored Communications Act (Claim Fourteen), the Wiretap Act (Claim Fifteen), and Federal Rule of Criminal Procedure 41(g) (Claim Sixteen) for failure to state a claim. In light of Plaintiffs previous multiple opportunities to amend, the Court declined to provide Plaintiff with a further opportunity to amend those claims.

         Although Plaintiff appealed the Court's dismissal of his substantive and procedural due-process claims on mootness grounds and the dismissal of his Fourth Amendment claim for failure to state a claim, he did not appeal the dismissal of his other surveillance claims or the dismissal of his freedom-of-association claim. On September 20, 2018, the Ninth Circuit Court of Appeals reversed the dismissal of his procedural and substantive due-process claims on mootness grounds. The Ninth Circuit found the government's actions in removing Plaintiff from the No-Fly List were insufficient to overcome the voluntary-cessation exception to the mootness doctrine and that some relief might remain available to redress Plaintiff's alleged injuries. Fikre v. Fed. Bur. of Investigation,904 F.3d 1033 (9th Cir. 2018). In a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.