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Case Name Fikre v. FBI NS-OR-0002
Docket / Court 3:13-cv-00899-BR ( D. Or. )
State/Territory Oregon
Case Type(s) National Security
Attorney Organization Council on American-Islamic Relations (CAIR)
Case Summary
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 ... read more >
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), 2014 U.S. Dist. LEXIS 73174. The plaintiff eventually filed 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 re-evaluation, 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.

The plaintiff 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. However, 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. 142 F.Supp.3d 1152, 2015 WL 6756121, 2015 U.S. Dist. LEXIS 151522. 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.

On March 16, 2016, Judge Brown found that plaintiff lacked standing to seek declaratory relief on their claim that was brought under the Fourth Amendment. On May 9, 2016, the defendants notified the court that the plaintiff was removed from the No-Fly List.

On September 28, 2016, the courted issued an opinion and order, in which it granted the defendants' motion to dismiss, dismissed with prejudice plaintiff’s fifth amended complaint, and denied as moot defendants’ motion to stay plaintiff’s due process claims. 2016 WL 5539591, 2016 U.S. Dist. LEXIS 133307. On October 6, 2016, the plaintiff filed a notice in which he stated his non-objection to the court dismissing this action as to the individual capacity defendants, the actions of which were subsequently dismissed without prejudice by the court on October 24, 2016.

On December 23, 2016, the plaintiff appealed to the Ninth Circuit Court of Appeals. On August 2, 2017, the Appellant submitted their opening brief, arguing that (1) the court must reject defendants’ attempt to moot plaintiff’s claims by removing him from the No-Fly List years after the start of the litigation; (2) the complaint states a Fourth Amendment Claim for Unlawful Surveillance, Search, and Seizure; and (3) the district court improperly concluded that declaratory relief was not available for the fourth amendment claim. In response, the government argued that (1) plaintiff’s No-Fly List claims are moot because he is no longer on the No-Fly List; (2) the government had demonstrated that the alleged wrongful conduct is not likely to occur; (3) plaintiff’s requests for injunctive relief for speculative future claims do not save his current claim from mootness; (4) plaintiff’s No-Fly List claims are not capable of repetition yet evading review; and (5) the district court correctly dismissed plaintiff’s surveillance claims. An oral argument was scheduled for May 9, 2018 before Judge Johnnie B. Rawlinson, Judge Morgan B. Christen, and Judge Marvin J. Garbis. On June 28, 2018, Judge Marvin J. Garbis retired and was replaced by Judge Milan D. Smith.

On September 20, 2018, the Ninth Circuit found that the allegations in the plaintiff’s fifth amended complaint was vague and conclusory, and did not give rise to a plausible claim for relief. Moreover, since the plaintiff had several opportunities to amend his complaint, and repeatedly failed to do so, the Ninth Circuit found that the district court did not abuse its discretion by dismissing his Fourth Amendment claim with prejudice. 738 Fed.Appx. 545 (Mem), 2018 U.S. App. LEXIS 26939, 2018 WL 4537720. In a separately filed opinion by Judge Christen, the panel reversed the district court’s dismissal of the plaintiff’s action, as moot, that alleged the FBI violated his substantive and procedural due process rights by placing and maintaining him on the No Fly List. The panel held 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, and 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. The panel subsequently reversed the district court’s dismissal of the plaintiff’s due process claims and remanded for further proceedings. 904 F.3d 1033, 2018 U.S. App. LEXIS 26880. Costs were taxed against the appellees.

On October 25, 2018, the Ninth Circuit granted Defendants/Appellees’ unopposed motion for an extension to file petition for panel rehearing on or before December 5, 2018.

The case remains ongoing.

Michael Mirdamadi - 05/12/2014
Jessica Kincaid - 04/22/2016
Dawn Lui - 12/03/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Right to travel
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Inadequate citizen complaint investigations and procedures
Terrorism/Post 9-11 issues
Watchlist
Plaintiff Type
Private Plaintiff
Causes of Action Ex Parte Young (Federal) or Bivens
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Federal Bureau of Investigation
Terrorist Screening Center
U.S. Department of Justice
U.S. Department of State
Plaintiff Description Plaintiff is a citizen and lawful resident of the U.S. denied boarding to a flight from the United Arab Emirates to the United States because of his alleged inclusion on the U.S. No Fly List.
Indexed Lawyer Organizations Council on American-Islamic Relations (CAIR)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2013
Case Ongoing Yes
Docket(s)
3:13-cv-899 (D. Or.)
NS-OR-0002-9000.pdf | Detail
Date: 10/29/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
NS-OR-0002-0001.pdf | Detail
Date: 05/30/2013
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint [ECF# 10]
NS-OR-0002-0002.pdf | Detail
Date: 06/17/2013
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 36] (23 F.Supp.3d 1268) (D. Or.)
NS-OR-0002-0003.pdf | WESTLAW| LEXIS | Detail
Date: 05/29/2014
Source: PACER [Public Access to Court Electronic Records]
Fourth Amended Complaint, Corrected per Order of the Court [ECF# 61]
NS-OR-0002-0004.pdf | Detail
Date: 04/06/2015
Source: PACER [Public Access to Court Electronic Records]
Fifth Amended Complaint [ECF# 87]
NS-OR-0002-0005.pdf | Detail
Date: 11/29/2015
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 105] (2016 WL 5539591) (D. Or.)
NS-OR-0002-0006.pdf | WESTLAW | Detail
Date: 09/28/2016
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 47]
NS-OR-0002-0007.pdf | Detail
Date: 09/20/2018
Source: PACER [Public Access to Court Electronic Records]
Memorandum [Ct. of App. ECF# 48]
NS-OR-0002-0008.pdf | Detail
Date: 09/20/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Brown, Anna J. (D. Or.)
NS-OR-0002-0003 | NS-OR-0002-0006 | NS-OR-0002-9000
Plaintiff's Lawyers Abbas, Gadeir Ibrahim (District of Columbia)
NS-OR-0002-0001 | NS-OR-0002-0002 | NS-OR-0002-0004 | NS-OR-0002-0005 | NS-OR-0002-9000
Burgess, William J. (District of Columbia)
NS-OR-0002-0004 | NS-OR-0002-0005 | NS-OR-0002-9000
Mayfield, Brandon B. (Oregon)
NS-OR-0002-0004 | NS-OR-0002-0005 | NS-OR-0002-9000
Nelson, Thomas H. (Oregon)
NS-OR-0002-0001 | NS-OR-0002-0002 | NS-OR-0002-0004 | NS-OR-0002-0005 | NS-OR-0002-9000
Defendant's Lawyers Bowen, Brigham J. (District of Columbia)
NS-OR-0002-9000
Cutler, David G. (District of Columbia)
NS-OR-0002-9000
Risner, Scott (District of Columbia)
NS-OR-0002-9000
Singer, Samuel M (District of Columbia)
NS-OR-0002-9000

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