Yonas Fikre v. Fbi , 904 F.3d 1033 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONAS FIKRE, No. 16-36072
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-00899-BR
FEDERAL BUREAU OF
INVESTIGATION; JEFFERSON OPINION
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.
2 FIKRE V. FBI
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 9, 2018
Portland, Oregon
Filed September 20, 2018
Before: Johnnie B. Rawlinson, Milan D. Smith, Jr.,*
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
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.
*
Following Judge Garbis’s retirement, Judge Smith was drawn by lot
to replace him. Ninth Circuit General Order 3.2.h. Judge Smith has read
the briefs, reviewed the record, and listened to oral argument.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FIKRE V. FBI 3
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.
COUNSEL
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.
4 FIKRE V. FBI
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.
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.
1
At this stage of the proceedings, “[w]e accept as true all well-
pleaded allegations of material fact, and construe them in the light most
favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998 (9th Cir. 2010).
FIKRE V. FBI 5
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.
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
6 FIKRE V. FBI
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
2
Fikre’s complaint listed sixteen causes of action, but only his
substantive due process, procedural due process, and Fourth Amendment
claims are implicated in this appeal. We affirm the dismissal of Fikre’s
Fourth Amendment claims in a concurrently filed memorandum
disposition.
3
The Supreme Court has recognized the right to international travel
as a protected right under substantive due process. Kent v. Dulles, 357
U.S. 116, 125 (1958).
FIKRE V. FBI 7
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 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)).
8 FIKRE V. FBI
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 (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 (quoting
Murphy v. Hunt, 455 U.S. 478, 481 (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
FIKRE V. FBI 9
of the alleged violation.” County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979) (alteration in original) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 632–33
(1953)); see Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012, 2019 n.1 (2017). A party asserting
mootness has “the ‘heavy burden of persua[ding]’ the court
that the challenged conduct cannot reasonably be expected to
start up again.” Adarand Constructors, Inc. v. Slater,
528 U.S. 216, 222 (2000) (alteration in original) (quoting
Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 189 (2000)). Where that party is
the government we presume that it acts in good faith, Am.
Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180
(9th Cir. 2010), though the government must still demonstrate
that the change in its behavior is “entrenched” or
“permanent.” McCormack v. Herzog, 788 F.3d 1017, 1025
(9th Cir. 2015) (quoting Bell, 709 F.3d at 900); see Rosebrock
v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014).
Our precedents illuminate the contours of such an inquiry.
First, the form the governmental action takes is critical and,
sometimes, dispositive. “A statutory change . . . is usually
enough to render a case moot, even if the legislature
possesses the power to reenact the statute after the lawsuit is
dismissed.” Native Vill. of Noatak v. Blatchford, 38 F.3d
1505, 1510 (9th Cir. 1994); see Chem. Producers & Distribs.
Ass’n v. Helliker, 463 F.3d 871, 877–78 (9th Cir. 2006). The
rigors of the legislative process “bespeak . . . finality and not
. . . for-the-moment, opportunistic tentativeness.” Libertarian
Party of Ark. v. Martin, 876 F.3d 948, 951 (8th Cir. 2017).
On the other hand, “an executive action that is not governed
by any clear or codified procedures cannot moot a claim.”
McCormack, 788 F.3d at 1025; see Trinity Lutheran Church,
137 S. Ct. at 2019 n.1 (holding that although the state had
10 FIKRE V. FBI
“beg[u]n allowing religious organizations to compete for and
receive [government] grants on the same terms as secular
organizations,” it did not meet the requisite “‘heavy burden’
of making ‘absolutely clear’ that it could not revert to its
policy of excluding religious organizations” (quoting Friends
of the Earth, Inc., 528 U.S. at 189)). For cases that lie
between these extremes, we ask whether the government’s
new position “could be easily abandoned or altered in the
future.” Rosebrock, 745 F.3d at 972 (quoting Bell, 709 F.3d
at 901).
We have also examined the avowed rationale for
governmental action when assessing the merits of a claim of
voluntary cessation. For instance, Olagues v. Russoniello,
770 F.2d 791 (9th Cir. 1985), held that abandonment of a
federal investigation into illegal voter registration by non-
citizens did not moot the plaintiffs’ suit. Id. at 794.
Important to our conclusion was the fact that “the United
States Attorney did not voluntarily cease the challenged
activity because he felt that the investigation was improper.”
Id. at 795. “Rather, [he] terminated the investigation solely
because it failed to produce evidence supporting any further
investigative activities” and “ha[d] at all times continued to
argue vigorously that his actions were lawful.” Id.; see also
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d
1260, 1274 (9th Cir. 1998) (the discontinuance of syphilis
tests on employees “merely for reasons of ‘cost-
effectiveness’” did not moot the case because the laboratory
did not “offer[] any reason why they might not return in the
future to their original views on the utility of mandatory
testing” and therefore did not rule out that testing might be
employed again); Porter v. Bowen, 496 F.3d 1009, 1016–17
(9th Cir. 2007) (letter from California Secretary of State to
the California legislature tolerating the operation of vote-
FIKRE V. FBI 11
swapping websites pending clarification of state election code
did not moot lawsuit because “the Secretary has maintained
throughout the nearly seven years of litigation . . . that [her
predecessor] had the authority under state law to threaten
[plaintiffs] with prosecution”); Forest Guardians v. Johanns,
450 F.3d 455, 460, 462 (9th Cir. 2006) (Forest Service’s
practice of not monitoring utilization levels of grazed
allotment likely to persist despite interim monitoring because
the agency “argued throughout th[e] litigation that it is not
required to meet [those monitoring requirements]”).
In contrast, White v. Lee, 227 F.3d 1214, 1242–44 (9th
Cir. 2000) held that a change in administrative policy that
embraced plaintiffs’ free speech arguments rendered their
claims moot. The plaintiffs in White opposed the conversion
of a motel into a multi-family housing unit for the homeless,
id. at 1220, by “wr[iting] to the Berkeley City Council,
sp[eaking] out before the Zoning Adjustment Board and at
other public meetings, and publish[ing] a newsletter with
articles critical of the project.” Id. at 1221. They aired their
grievances to the press, asked the business community to
espouse their cause, and challenged the integrity of the
Zoning Adjustment Board’s decision-making processes. Id.
After the Department of Housing and Urban Development
(HUD) investigated the plaintiffs for engaging in a
discriminatory housing practice under the Fair Housing Act
(FHA), the plaintiffs sued the agency for injunctive and
declaratory relief. Id. at 1222–25. The investigation
prompted HUD to promulgate guidelines prohibiting the
investigation of petitioning or lobbying activities that did not
threaten physical harm. Id. at 1242–43. We held that
plaintiff’s claim was moot in light of HUD’s new guidelines.
Id. at 1243–44. HUD’s change of heart did not fall within
the voluntary cessation exception to mootness because it
12 FIKRE V. FBI
“represent[ed] a permanent change in the way HUD
conduct[ed] FHA investigations,” was “broad in scope and
unequivocal in tone,” and, significantly, “fully supportive of
First Amendment Rights.” Id.
Our case law teaches that a voluntary change in official
stance or behavior moots an action only when it is “absolutely
clear” to the court, considering the “procedural safeguards”
insulating the new state of affairs from arbitrary reversal and
the government’s rationale for its changed practice(s), that the
activity complained of will not reoccur. McCormack,
788 F.3d at 1025; Rosebrock, 745 F.3d at 974. No bright-line
rule separates cases comprehended by the voluntary cessation
doctrine from those that are not, but the government’s
unambiguous renunciation of its past actions can compensate
for the ease with which it may relapse into them. In White,
for instance, we deemed a memorandum issued by an
assistant secretary for the Office of Fair Housing and Equal
Opportunity sufficient to moot a case, even though there had
been no intervening statutory or regulatory change, because
the memorandum “addresse[d] all of the objectionable
measures that HUD officials took against the plaintiffs . . .
and even confesse[d] that th[e] case was the catalyst for the
agency’s adoption of the new policy.” 227 F.3d at 1243.
Though there is no bright-line rule for application of the
voluntary cessation doctrine, this much is apparent: a claim
is not moot if the government remains practically and legally
“free to return to [its] old ways” despite abandoning them in
the ongoing litigation. United States v. W.T. Grant Co.,
345 U.S. 629, 632 (1953).
Returning to Fikre’s appeal, the government insists that
it is “absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur,” Already, 568 U.S. at 91
 FIKRE V. FBI 13
(quoting Friends of the Earth, Inc., 528 U.S. at 190), because
it filed a notice in district court announcing Fikre’s removal
from the No Fly List. We disagree. Even accepting the
government’s argument that its notice constitutes a “formal
agency action, publicly made, and unequivocally expressed,”
the mere announcement that Fikre was removed from the list
falls short of meeting the government’s burden.4
To begin, the FBI’s decision to restore Fikre’s flying
privileges is an individualized determination untethered to
any explanation or change in policy, much less an abiding
change in policy. Cf. Am. Cargo Transp., 625 F.3d at 1180.
The DHS re-evaluated Fikre’s presence on the No Fly List
in 2013 and 2015 pursuant to its TRIP procedure and
determined that no adjustments to his status were necessary.
Indeed, the DHS affirmed as late as March 2015—after it had
amended TRIP to conform to the decision in Latif—that Fikre
posed “a threat to civil aviation or national security” and it
refused to remove him from the No Fly List. Yet it did just
that fourteen months later, without explanation or any
announced change in policy. Fikre was taken off the list two
months after briefing was completed on the government’s
motion to dismiss Fikre’s lawsuit. See Reply to Motion to
Dismiss, Fikre v. FBI, No. 3:13-cv-00899-BR (D. Or. Oct.
24, 2016), Dkt. # 96. This record suggests that Fikre’s
removal from the No Fly List was more likely an exercise of
4
We note that the focus should not be on the absence of evidence that
the government intends to reinstate Fikre to the list, as that would
improperly shift the evidentiary burden to Fikre to prove the alleged
violation will not reoccur. See Nat. Res. Def. Council v. County of Los
Angeles, 840 F.3d 1098, 1104 (9th Cir. 2016). The government bears the
burden of proving mootness. Id.
14 FIKRE V. FBI
discretion than a decision arising from a broad change in
agency policy or procedure.
Moreover, the government has not assured Fikre that he
will not be banned from flying for the same reasons that
prompted the government to add him to the list in the first
place, nor has it verified the implementation of procedural
safeguards conditioning its ability to revise Fikre’s status on
the receipt of new information. As far as we can tell, the
current permission Fikre has to travel by air is
“discretionary,” and not “entrenched” or “permanent.”
McCormack, 788 F.3d at 1025. We presume the government
acts in good faith and do not impute to it a strategic motive to
moot Fikre’s suit, see Am. Cargo Transp., 625 F.3d at 1180,
but with no explanation of the reasons for dropping Fikre
from the No Fly List, we may not infer the government’s
acquiescence to the righteousness of Fikre’s contentions. On
this record, the government has not repudiated the decision to
add Fikre to the No Fly List and maintain him there for
approximately five years.
Finally, in response to the government’s assertion that no
relief is available for Fikre’s claims, we note that Fikre’s
removal from the No Fly List does not “completely and
irrevocably eradicate[] the effects of the alleged violation[s].”
Davis, 440 U.S. at 631. The notice filed by the government
averred only that “counsel recently was advised by the
Terrorist Screening Center that [Fikre] has been removed
from the No Fly List.” Absent an acknowledgment by the
government that its investigation revealed Fikre did not
belong on the list, and that he will not be returned to the list
based on the currently available evidence, Fikre remains, in
his own words, “stigmatiz[ed] . . . as a known or suspected
terrorist and as an individual who represents a threat of
FIKRE V. FBI 15
engaging in or conducting a violent act of terrorism and who
is operationally capable of doing so.” Because acquaintances,
business associates, and perhaps even family members are
likely to persist in shunning or avoiding him despite his
renewed ability to travel, it is plain that vindication in this
action would have actual and palpable consequences for
Fikre.
The government suggests in its appellate brief that if
Fikre is ever put back on the No Fly List, that determination
would “necessarily be . . . predicated on a new and different
factual record,” but the government has not executed a
declaration to that effect. Cf. Mokdad v. Sessions, 876 F.3d
167, 169 (6th Cir. 2017). Nor has the government explained
why such a declaration would not constitute additional relief
that may be afforded to Fikre. When examining whether a
claim has become moot, “[t]he question is not whether the
precise relief sought at the time [the case] was filed is still
available. The question is whether there can be any effective
relief.” McCormack, 788 F.3d at 1024 (second alteration in
original) (quoting Earth Island Inst. v. U.S. Forest Serv.,
442 F.3d 1147, 1157 (9th Cir. 2006)).
Because there are neither procedural hurdles to reinstating
Fikre on the No Fly List based solely on facts already known,
nor any renouncement by the government of its prerogative
and authority to do so, the voluntary cessation doctrine
applies. Fikre’s due process claims are not moot.
16 FIKRE V. FBI
CONCLUSION
We reverse the district court’s dismissal of Fikre’s due
process claims and remand for further proceedings.
REVERSED and REMANDED.