Yonas Fikre v. Fbi

Citation: Not availableDocket: 20-35904

Court: Court of Appeals for the Ninth Circuit; May 27, 2022; Federal Appellate Court

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The Ninth Circuit reversed the district court's dismissal of Yonas Fikre's substantive due process and non-stigma-related procedural due process claims concerning his placement on the No Fly List, as well as vacated the dismissal of his stigma-plus procedural due process claim. The panel determined that the government failed to adhere to prior instructions from the court regarding Fikre's case, which had established that the voluntary cessation doctrine applied. The government only asserted that Fikre does not currently meet No Fly List criteria but did not renounce the original decision to place him on the list or clarify any changes to the criteria. The panel concluded that the district court erred in dismissing these claims as moot. Furthermore, it ruled that 49 U.S.C. § 46110(a) did not strip the district court of jurisdiction over Fikre's claims, as his lawsuit challenged the actions of the Terrorist Screening Center, not a TSA Administrator’s order. The stigma-plus procedural due process claim, requiring a demonstration of reputational harm combined with a loss of a recognized legal right, was also remanded for further consideration, given that the district court's prior dismissal was erroneous.

The panel determined that Yonas Fikre's substantive due process and non-stigma-related procedural due process claims regarding his placement on the No Fly List and in the Terrorist Screening Database will be considered by the district court on remand. However, his substantive due process claims related to the Database itself will not be addressed. The district court previously dismissed Fikre’s claims concerning the No Fly List as moot after the government removed him from it and declared he would not be placed on it again. Additionally, the court dismissed his claims regarding the Terrorist Screening Database due to a failure to establish a stigma-plus procedural due process claim. The panel found that the district court erred in dismissing the No Fly List claims as moot and clarified that 49 U.S.C. § 46110(a) does not strip the court of jurisdiction over these claims. The case is remanded for the district court to evaluate Fikre’s complaint for viable substantive or procedural due process claims related to his watchlist inclusion when considering both the Database and No Fly List allegations together. The excerpt also outlines the creation of the Terrorist Screening Database under Homeland Security Presidential Directive 6, emphasizing that the Screening Center, operated by the FBI, manages the Database by consolidating terrorist watchlists and placing individuals based on reasonable suspicion without notifying them of their nomination or inclusion.

Individuals placed in the Database are sorted by the Screening Center into various lists for use by the Transportation Security Administration (TSA), including the No Fly List, which targets those deemed threats of terrorism. Nominations for the No Fly List come from federal departments, and once an individual is listed, the TSA prohibits them from boarding commercial flights over U.S. airspace. Those not on the No Fly List may still fly but face enhanced security screenings, which can include in-depth searches and inspections of personal belongings. The government allegedly searches and copies electronic devices at border crossings and assigns 'handling codes' to those in the Database, directing law enforcement on how to interact with them. Individuals in the Database may face restrictions on employment in federal agencies and certain sectors, and the criteria for inclusion in the Database remain undisclosed. To challenge their No Fly List status, individuals can utilize the Department of Homeland Security’s Traveler Redress Inquiry Program (DHS TRIP), which provides a letter detailing the reasons for their listing. The TSA Administrator oversees potential removals from the No Fly List based on this process. The Screening Center also conducts periodic reviews of its listings. However, individuals in the Database who are not on the No Fly List have limited recourse for challenging their status, as the government neither confirms nor denies their inclusion or removal. The excerpt also introduces Yonas Fikre, a U.S. citizen of Eritrean descent, who encountered FBI agents during a visit to the U.S. embassy in Sudan regarding his past associations.

Fikre was informed during an FBI interrogation that he was on the No Fly List and could be removed if he agreed to become an informant, which he declined. Later, while on a business trip to the UAE, he was arrested, tortured, and interrogated about his ties to a Portland mosque, with a UAE officer indicating that the FBI had requested his detention. Unable to return to the U.S. due to his No Fly List status, Fikre sought asylum in Sweden. He initiated a lawsuit in 2013 against the U.S. government, claiming violations of his Fifth Amendment due process rights related to his No Fly List inclusion and the lack of a proper challenge process. Despite the TSA stating in early 2014 and 2015 that no change to his status was warranted, the government later notified the court that Fikre had been removed from the list, leading to the dismissal of his due process claim as moot. Fikre appealed, and the court reversed the dismissal, applying the 'voluntary cessation' mootness exception, emphasizing that the government had not guaranteed he would not be banned again or confirmed procedural safeguards. On remand, the government moved to dismiss again, supported by a declaration from FBI agent Courtright, which stated Fikre was removed from the No Fly List after it was determined he no longer met the criteria. The government argued that the declaration addressed prior concerns about procedural safeguards. However, they disagreed with the requirement to renounce the authority to place Fikre on the list again.

The government argued that watchlisting decisions depend on current risk assessments and that requiring acknowledgment of Fikre's non-inclusion on the No Fly List was inappropriate. During a November 14, 2019 hearing, the district court deemed Fikre's due process claims regarding his No Fly List inclusion moot due to a declaration that prevented his return to the list. However, the court allowed Fikre to amend his complaint to address ongoing reputational harm from being in the Database. 

Fikre's Seventh Amended Complaint alleged that his reputation suffered from enhanced screenings he faced during two flights in 2016, one to Mecca and another to San Diego, linked to his Database status. He detailed instances of invasive screenings and searches during these trips, including needing federal approval for his boarding pass and being subjected to public searches. Fikre sought declaratory and injunctive relief, claiming the government violated his due process rights by placing him on the No Fly List and requesting removal from the Database.

The government again moved to dismiss Fikre's complaint, which the district court granted. The court reiterated that it had previously dismissed Fikre's due process claims related to travel interests as moot and dismissed his claims regarding substantive due process violations for being in the Database. Although Fikre argued that his inclusion constituted a "stigma-plus" liberty interest due to reputational harm from his screening experiences, he also linked this status to other serious allegations, including detention and torture in the UAE, restrictions on flying, an indictment, surveillance, and interference with religious practices.

The district court found that the government publicly stigmatized Fikre through intensive and repeated security screenings during his 2016 trips to Mecca and San Diego, resulting in a reputational injury that supported a 'stigma-plus' procedural due process claim. However, the court concluded that Fikre did not demonstrate the required 'plus' factor—an alteration or deprivation of a tangible right or status—associated with the reputational harm. Although he experienced enhanced screening, Fikre was not prevented from traveling and did not report suffering other consequences from being included in the Database, such as denial of credentials or employment opportunities. The court noted that Fikre’s additional 'plus' factors were unrelated to his 2016 injury, involving different actors and circumstances occurring years apart. Consequently, the court dismissed Fikre’s procedural due process claim regarding his Database inclusion.

Fikre subsequently appealed the district court's dismissal of his No Fly List-related claims and the stigma-plus procedural due process claim. The appellate court first addressed the mootness of Fikre’s due process claims related to the No Fly List, concluding that the district court erred in dismissing them as moot. The government’s Courtright Declaration did not meet the standards set in a prior ruling (Fikre I) to demonstrate that the wrongful behavior—Fikre’s inclusion on the No Fly List—could not reasonably recur. The court explained that voluntary cessation of allegedly illegal conduct does not moot a case unless the party claiming mootness proves that the wrongful behavior is unlikely to happen again. The Courtright Declaration failed to provide assurances or a clear policy change regarding Fikre’s status, treating his removal as an individualized determination without sufficient context.

The notice indicated that the government's lawyers were informed by the Terrorist Screening Center that Fikre had been removed from the No Fly List. However, prior to this removal, the Department of Homeland Security (DHS) determined that Fikre still posed a threat to civil aviation or national security. His removal occurred two months after the government's motion to dismiss his lawsuit was briefed and lacked sufficient explanation, indicating that it was likely a discretionary decision rather than a result of a broader policy change. The Courtright Declaration fails to clarify the reasons for Fikre's initial inclusion or subsequent removal from the No Fly List, merely stating that he no longer met the criteria for inclusion without detailing those criteria or any policy changes.

Fikre I noted that the government's lack of renunciation of its previous actions regarding Fikre's status, maintained for five years, suggests that his current permission to travel by air is not secure. Without an acknowledgment from the government that Fikre does not belong on the list and assurance against future inclusion based on prior reasons, he remains stigmatized as a suspected terrorist. The Courtright Declaration does not alleviate the burden of proof needed to assure Fikre that he would not be returned to the No Fly List and actually reinforces the original decision by asserting compliance with applicable policies.

Furthermore, Fikre I highlighted that the government could not avoid the mootness exception due to a lack of verified procedural safeguards for revising Fikre's status based on new information, which the Courtright Declaration also does not address.

The Declaration in question discusses the government's position regarding Fikre's status on the No Fly List, indicating that it views the applicable policies and procedures as static since Fikre's initial placement on the list. The government asserts that Fikre will not be placed on the No Fly List in the future based on current information, but does not guarantee that he will not be banned again for the same reasons that originally led to his inclusion. Instead, it suggests that Fikre no longer meets the government's criteria based on present circumstances, yet if those circumstances revert, he could be reinstated on the list for the same reasons as before. The government refutes the notion that "currently available information" includes past information that justified Fikre’s initial placement. It emphasizes that its decisions are based on current risk assessments rather than historical evaluations. The government maintains that Fikre's removal from the list, occurring five years ago, is now an entrenched agency action, and argues that the case is moot due to the absence of a clear rule on the voluntary cessation doctrine. However, the court finds the government's assurances insufficient, stating that the removal remains an individualized decision without clear policy changes. It concludes that the government could reinstate Fikre on the No Fly List if he meets the original criteria again, indicating no definitive abandonment of prior actions despite the passage of time.

When a court establishes a legal rule, it should consistently apply that decision in subsequent phases of the same case, unless exceptions apply. Fikre's claims regarding the No Fly List are not moot. The government argues that the district court improperly retained jurisdiction over these claims due to 49 U.S.C. § 46110, which pertains to judicial review of orders from the TSA Administrator. This statute allows individuals with a substantial interest in TSA orders to seek review promptly in a court of appeals, which has exclusive jurisdiction over such matters. If Fikre's claims contest a TSA order, the lower court lacks jurisdiction. However, if they challenge actions by another agency, like the Screening Center, § 46110 does not apply.

The government cites *Kashem v. Barr* to support its position. In *Kashem*, individuals on the No Fly List contested both the procedures for disputing their status and their continued inclusion on the list. Following a grievance process that led to changes in 2015, the TSA Administrator became solely responsible for issuing final orders regarding No Fly List status. In *Kashem*, the district court dismissed the plaintiffs' due process claims for lack of jurisdiction under § 46110, a decision upheld by the appellate court, which noted that prior to the 2015 revisions, the Screening Center—not the TSA—was responsible for reviewing travelers' statuses. Hence, under the revised procedures, the TSA Administrator's role in maintaining No Fly List status is pivotal in determining jurisdiction.

The Screening Center provides recommendations to the TSA Administrator regarding individuals on the No Fly List. In the case of Fikre, he challenges the initial decision made by the Screening Center to place him on the No Fly List, rather than the TSA Administrator's decision to maintain him on the list following the DHS TRIP process, as was the case in Kashem. Fikre's claims include procedural due process violations, asserting that his name was placed on the Terrorist Screening Database (TSDB) and No Fly List, causing economic, reputational, physical, and liberty harms. He also raises substantive due process issues, alleging that the government lacked reasonable suspicion for his placement and that it relied on discriminatory factors, such as race and religion. Fikre's complaint minimally addresses the DHS TRIP process, focusing instead on the legitimacy of the initial watchlisting system that led to his inclusion. The distinction between initial placement by the Screening Center and continued placement by the TSA Administrator, particularly post-2015 DHS TRIP revisions, is emphasized in the legal discourse surrounding these cases.

Fikre's complaint does not contest the TSA Administrator's decision made at the conclusion of the DHS TRIP process or seek a court order for his removal from the No Fly List. Instead, it notes that the TSA confirmed in early 2015 that he would remain on the list, but it does not challenge this determination. The complaint refers to the government's actions regarding his placement and retention on the No Fly List, suggesting that these references pertain to the Screening Center's independent authority to remove individuals from the list, as confirmed by government documentation. The court interprets Fikre's claims as related to the Screening Center's initial decision to place him on the No Fly List, rather than a challenge to the TSA's decision, indicating that the district court and the current court lack jurisdiction over any challenge to the TSA's decision during the DHS TRIP review.

Fikre's stigma-plus procedural due process claim, which was dismissed by the district court, is remanded for further consideration, particularly regarding whether he has a viable claim based on his No Fly List placement. To establish a procedural due process claim, a plaintiff must demonstrate a protected liberty or property interest, deprivation of that interest by the government, and lack of due process. The government asserts that the distinction made in a related case, Kashem, regarding procedural versus substantive challenges is not applicable here, as both of Fikre's claims pertain to the Screening Center's decision rather than an order from the TSA Administrator. Additionally, mere damage to reputation does not constitute an actionable claim under procedural due process.

Reputational harm inflicted by the government can lead to a deprivation of a cognizable liberty interest when a plaintiff is stigmatized alongside the denial of a tangible interest, as established by the "stigma-plus" test. Under this framework, a plaintiff can claim a cognizable liberty interest for procedural due process if they experience stigma from governmental action coupled with an alteration or loss of a recognized right or status. The district court allowed Fikre to amend his complaint to include claims of "stigma-plus" injury due to his alleged inclusion in a Database. It noted that if someone faced stigma from being on the No Fly List, which then restricted their travel, this could constitute a viable claim. However, the district court deemed the No Fly List claims moot, concluding that Fikre's only established stigmatic injury stemmed from a 2016 incident related to his trips to Mecca and San Diego, which it viewed as too temporally and circumstantially removed from any travel restrictions to support the stigma-plus claims.

The appellate court found that the district court erred in dismissing Fikre's No Fly List claims as moot. It recognized that the combination of Fikre's No Fly List status and his inclusion in the Database might present more significant reputational injuries than previously assessed. Although typically an appellate court refrains from addressing issues not considered by the lower court, it chose not to exercise this discretion due to the fully developed record concerning Fikre's stigma-plus analysis. Consequently, the appellate court vacated the district court's dismissal of the stigma-plus claim and remanded the case for further consideration of Fikre's procedural due process claim, incorporating the injuries related to his No Fly List status. On remand, Fikre's Seventh Amended Complaint will address two causes of action: a Fifth Amendment procedural due process claim and a substantive due process claim.

Fikre's legal challenges involve claims related to his placement on the No Fly List and his inclusion in the Database. On appeal, he contested two issues: the district court’s dismissal of his No Fly List claims as moot and the dismissal of his stigma-plus procedural due process claim concerning his inclusion in the Database. Fikre did not challenge the dismissal of his substantive due process claim regarding the Database, resulting in a waiver of that issue.

Despite the government's argument that Fikre had relinquished his substantive due process claim on appeal, Fikre's reply brief clarified that his appeal focused on procedural due process grounds related to the No Fly List. The court held that Fikre’s substantive and procedural due process claims concerning his No Fly List placement were preserved for consideration, as the district court's mootness ruling precluded a substantive review.

The court concluded that the district court erred in dismissing Fikre’s No Fly List claims as moot, affirming that both his substantive and procedural due process claims are to be remanded for examination. However, any substantive due process claims relating to his Database inclusion will not be considered. The court reversed the district court’s mootness dismissal of Fikre’s No Fly List claims and vacated the dismissal of his stigma-plus procedural due process claim, remanding for further evaluation of the viability of the latter claim.