The plaintiff in this federal lawsuit was a naturalized U.S. Citizen. He was denied boarding to a flight from the United Arab Emirates ("UAE") to the United States because of his alleged inclusion on the No Fly List. He filed the lawsuit on May 30, 2013, in the U.S. District Court for the District of Oregon, against the Federal Bureau of Investigation ("FBI"), the U.S. Department of State, the U.S. Department of Justice, and the Terrorist Screening Center ("TSC"), which created and maintained the No Fly List. Represented by the Council on American Islamic Relations as well as private counsel, the plaintiff alleged that the defendants placed him on the No Fly List to coerce him into becoming an informant for the FBI. The plaintiff further alleged that during an interview in Sudan he was denied counsel by defendants and urged to become an FBI informant in order to have his name removed from the No Fly List. Because the plaintiff refused to become an informant, he further alleges that the defendants retaliated by instigating and facilitating his torture in the UAE.
Based upon the foregoing allegations, the plaintiff alleged six claims for relief: (1) violation of the right to citizenship under the Fourteenth Amendment; (2) an unidentified cause of action pertaining to torture; (3) denial of his right to counsel under the Fifth Amendment; (4) violation of his right against self-incrimination under the Fifth Amendment; (5) violation of his Fifth Amendment substantive due process right to return to his homeland once abroad; and (6) denial of procedural due process under the Fifth Amendment because the defendants failed to inform of his inclusion on the No Fly List, the basis for his inclusion, or the means of removing his name therefrom.
The plaintiff sought a declaration that his right to counsel was violated; redress for the defendants' instigating and facilitating his torture in the UAE; an injunction preventing the defendants from violating the above-mentioned rights; and monetary damages in the amount of $30,000,000.
The case was assigned to Judge Anna Brown. On June 17, 2013, the plaintiff filed an amended complaint to add an additional defendant. On November 4, 2013, the defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The court heard oral argument on the defendants' motion on March 14, 2014 and took the motion under advisement.
On May 29, 2014, Judge Brown granted the official-capacity defendants' motion to dismiss, dismissing all counts except three (denial of his right to counsel under the Fifth Amendment) and four (violation of his right against self-incrimination under the Fifth Amendment). The plaintiff had leave to file a second amended complaint consistent with the opinion and order no later than June 27, 2014. 23 F.Supp.3d 1268 (D. Or. May 29, 2014). The plaintiff actually ended up filing a series of amended complaints.
In 2015, the government revised the redress procedures available through administrative procedures as a result of the decision in Latif v. Holder
, 28 F.Supp.3d 1134 (D.Or. 2014), which held various aspects of the process inadequate under the Fifth Amendment's Due Process Clause and the APA. As a result, the official-capacity defendants moved for a stay or, in the alternative, an extension of time to allow the defendants to reconsider the plaintiff's application under the new procedure. However, after completing the reevaluation, the defendants determined that the plaintiff should remain on the No-Fly List.
On January 14, 2015, the court (Judge Anna J. Brown) granted in part and denied in part the official-capacity defendants' unopposed motion. The court agreed that it was appropriate for the official-capacity defendants to reconsider the plaintiff's DHS TRIP inquiry under the new procedures, but the court found that a stay was unnecessary to permit the defendants to do so. In addition, the court noted that this case was now over 18 months old and had not yet proceeded beyond the pleading stage. Accordingly, the court ordered the defendants to complete a substantive reconsideration of the plaintiff's DHS TRIP inquiry no later than March 9, 2015, to move the case long.
Finally, the plaintiffs filed their corrected fourth amended complaint on April 6, 2015. The defendants again filed motions to dismiss for failure to state a claim and for lack of jurisdiction. On November 4, 2015, the court granted in part and denied in part the defendants' motion to dismiss. The court held that the plaintiff's allegations were sufficient (1) to state a substantive due process claim based on right to international travel; (2) to state procedural due process claim based on right to international travel and to be free from false government stigmatization; (3) to state a claim for injunctive relief under the Fourth Amendment because the plaintiff was subject to surveillance without a warrant, probable cause, or reasonable suspicion; and (4) to state a claim under the Wiretap Act. But the court also held that the plaintiff's allegations were not sufficient to state a claim under the Stored Communications Act and that he had failed to plead a valid waiver of sovereign immunity for his claim that the FBI failed to comply with FISA. And the court held that the plaintiff lacked standing to seek prospective injunctive relief on claim that FBI placed him on the no-fly list while he was abroad in order to subject him to custodial interrogation without the assistance of counsel, because that issue no longer affected him, personally. 2015 WL 6756121 (D. Ore. Nov. 4, 2015). The court again gave the plaintiff leave to file an amended complaint to correct the deficiencies, and on November 29, 2015, the plaintiff filed his fifth amended complaint.
As of April 22, 2016, the case is ongoing.Michael Mirdamadi - 05/12/2014
Jessica Kincaid - 04/22/2016