Petition for Writ of Certiorari — Federal Bureau of Investigation, et al., Petitioners v. Yonas Fikre
Supreme Court briefJun 2, 2023
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No.
In the Supreme Court of the United States
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
PETITIONERS
v.
YONAS FIKRE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
SHARON SWINGLE
JOSHUA WALDMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Individuals are sometimes removed from the No Fly
List during ongoing litigation about their placement on
that list. The Fourth and Sixth Circuits have held that
an individual’s removal from the No Fly List moots a
case when the government represents that the individual will not be placed back on the list based on currently
available information. In conflict with those decisions,
the Ninth Circuit held in this case that respondent’s
claims were not moot even though he was removed from
the No Fly List in 2016 and the government provided a
sworn declaration stating that he “will not be placed on
the No Fly List in the future based on the currently
available information.”
The question presented is whether respondent’s
claims challenging his placement on the No Fly List are
moot.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellees below) are the
Federal Bureau of Investigation (FBI); Merrick B. Garland, Attorney General; Antony J. Blinken, Secretary of
State; Christopher A. Wray, Director, FBI; Sanjay Virmani, Acting Director, Terrorist Screening Center;
Paul M. Nakasone, Director, National Security Agency;
Avril D. Haines, Director of National Intelligence;
Alejandro N. Mayorkas, Secretary of Homeland Security; and David P. Pekoske, Administrator, Transportation Security Administration.
Respondent (plaintiff-appellant below) is Yonas
Fikre.*
* Sanjay Virmani has been automatically substituted for Charles
H. Kable, IV, under Rule 35.3 of the Rules of this Court.
Defendants previously included Eric H. Holder, Jr., Attorney
General; Loretta E. Lynch, Attorney General; Jefferson B. Sessions, III, Attorney General; William P. Barr, Attorney General,
John F. Kerry, Secretary of State; Michael R. Pompeo, Secretary of
State; Robert S. Mueller, III, Director, FBI; James B. Comey, Director, FBI; Timothy J. Healy, Director, Terrorist Screening Center; Christopher M. Piehota, Director, Terrorist Screening Center;
Michael S. Rogers, Director, National Security Agency; Joseph
Maguire, Acting Director of National Intelligence; James R. Clapper, Director of National Intelligence; Daniel Coats, Director of National Intelligence; Kevin K. McAleenan, Acting Secretary of Homeland Security; and Chad F. Wolf, Acting Secretary of Homeland Security, all in their official capacities. They were replaced by the petitioners listed above. See Fed. R. App. P. 43(c)(2); Fed. R. Civ. P.
25(d).
Defendants also previously included David Noordeloos; Jason
Dundas; John and Jane Does II-XX; the United States of America;
the Department of State; and the National Security Agency. Respondent’s claims against them have been dismissed.
(II)
RELATED PROCEEDINGS
United States District Court (D. Or.):
Fikre v. Federal Bureau of Investigation, No. 13-cv899 (Aug. 12, 2020)
United States Court of Appeals (9th Cir.):
Fikre v. Federal Bureau of Investigation, No. 1636072 (Sept. 20, 2018)
Fikre v. Federal Bureau of Investigation, No. 2035904 (May 27, 2022)
(III)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional provision involved ................................................ 2
Statement ...................................................................................... 2
Reasons for granting the petition ............................................... 9
A. The court of appeals incorrectly held that
respondent’s no fly list claims are not moot ................. 10
B. The decision below warrants further review ................ 18
Conclusion ................................................................................... 25
Appendix A — Court of appeals opinion
(May 27, 2022) ................................................. 1a
Appendix B — Court of appeals opinion
(Sept. 20, 2018).............................................. 31a
Appendix C — District court opinion and order
(Aug. 12, 2020) .............................................. 45a
Appendix D — District court opinion and order
(Sept. 28, 2016).............................................. 74a
Appendix E — Court of appeals order denying
rehearing (Jan. 4, 2023) ............................. 115a
Appendix F — Declaration of Christopher R.
Courtright (June 19, 2019) ........................ 117a
Appendix G — TSA decision and order
(Mar. 9, 2015) .............................................. 119a
Appendix H — Letter from Deborah O. Moore
to Yonas Fikre (Jan. 23, 2014) ............... 122a
Appendix I — Seventh amended complaint
(Dec. 18, 2019) ............................................. 124a
TABLE OF AUTHORITIES
Cases:
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ... 7, 11-16, 23
Alvarez v. Smith, 558 U.S. 87 (2009) ................................... 11
(V)
VI
Cases—Continued:
Page
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ............................................................... 13
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............... 17
City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283 (1982).................................................. 11, 12, 17
Clapper v. Amnesty International USA,
568 U.S. 398 (2013).............................................................. 23
DeFunis v. Odegaard, 416 U.S. 312 (1974) ......................... 17
FBI v. Fazaga, 142 S. Ct. 1051 (2022) ................................. 24
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................................. 17
Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) ...................... 3
Long v. Barr, 451 F. Supp. 3d 507
(E.D. Va. 2020), vacated and remanded,
38 F.4th 417 (4th Cir. 2022) ................................................. 5
Long v. Pekoske,
38 F.4th 417 (4th Cir. 2022) ............................... 18-20, 22-25
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 11
Mayorkas v. Innovation Law Lab,
141 S. Ct. 2842 (2021) ......................................................... 18
MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118 (2007).............................................................. 11
Mokdad v. Sessions,
876 F.3d 167 (6th Cir. 2017) .................................. 7, 8, 19-21
New York State Rifle & Pistol Association, Inc.
v. City of New York, 140 S. Ct. 1525 (2020) ................ 13, 18
Paul v. Davis, 424 U.S. 693 (1976) ................................... 9, 24
Spencer v. Kemna, 523 U.S. 1 (1998) ............................. 11, 24
Trump v. International Refugee Assistance,
138 S. Ct. 353 (2017) ........................................................... 18
United States v. Armstrong, 517 U.S. 456 (1996) .............. 17
United States v. Zubaydah, 142 S. Ct. 959 (2022) .............. 25
VII
Cases—Continued:
Page
Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008) ......................................................... 17
Yellen v. United States House of Representatives,
142 S. Ct. 332 (2021) ........................................................... 18
Constitution, statutes, and regulations:
U.S. Const. Art. III, § 2, Cl. 1........................................... 2, 10
49 U.S.C. 114 ............................................................................ 2
49 U.S.C. 114(h)(3)(A) ............................................................. 4
49 U.S.C. 44901 ........................................................................ 2
49 U.S.C. 44903 ........................................................................ 2
49 U.S.C. 46110 .................................................................... 4, 5
49 C.F.R.:
Section 1560.105 ................................................................ 2
Section 1560.105(b)(1) ....................................................... 3
Section 1560.105(b)(2) ....................................................... 3
Section 1560.205 ................................................................ 3
Miscellaneous:
Terrorist Screening Center, Overview of the
U.S. Government’s Watchlisting Process and
Procedures as of January 2018 .......................................... 5
In the Supreme Court of the United States
No.
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
PETITIONERS
v.
YONAS FIKRE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General respectfully petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in this
case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a30a) is reported at 35 F.4th 762. A prior opinion of the
court of appeals (App., infra, 31a-44a) is reported at 904
F.3d 1033. Another prior opinion of the court of appeals
is not published in the Federal Reporter but is reprinted at 738 Fed. Appx. 545. The opinion and order
of the district court (App., infra, 45a-73a) is not published in the Federal Supplement but is available at
2020 WL 4677516. A prior opinion and order of the district court (App., infra, 74a-114a) is not published in the
(1)
2
Federal Supplement but is available at 2016 WL
5539591.
JURISDICTION
The judgment of the court of appeals was entered on
May 27, 2022. A petition for rehearing was denied on
January 4, 2023 (App., infra, 115a-116a). On March 16,
2023, Justice Kagan extended the time within which to
file a petition for a writ of certiorari to and including
June 2, 2023. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
Article III of the United States Constitution provides in
pertinent part:
The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or
which shall be made, under their Authority.
U.S. Const. Art. III, § 2, Cl. 1.
STATEMENT
1. a. The Terrorist Screening Center, a division
within the FBI’s National Security Branch, maintains a
terrorism watchlist. Two components of that watchlist
are the No Fly List, which contains the names of individuals who are prohibited from flying within, to, from,
and over the United States, and the Selectee List, which
contains the names of individuals who must undergo enhanced security screening before being permitted to
board a flight. See 49 U.S.C. 114, 44901, 44903; 49
C.F.R. 1560.105. The Transportation Security Administration (TSA), an agency within the Department of
Homeland Security (DHS), checks airline passenger
manifests against those two lists and alerts airlines to
3
take appropriate action with respect to passengers on
either list. See 49 C.F.R. 1560.105(b)(1) and (2).
Individuals can appeal travel-related issues through
DHS’s Traveler Redress Inquiry Program (TRIP). See
49 C.F.R. 1560.205. Before 2015, individuals who requested redress using DHS TRIP were not told
whether they were on the No Fly List and were not
given any reasons or evidence supporting their possible
inclusion on that list. See Kashem v. Barr, 941 F.3d 358,
366 (9th Cir. 2019) (describing the procedures). In 2015,
the government revised DHS TRIP to include additional procedural safeguards. See ibid. United States
citizens and lawful permanent residents seeking redress now are told whether they are on the No Fly List
and, to the extent possible consistent with nationalsecurity and law-enforcement interests, the reasons for
their status. See ibid.
b. According to the operative complaint, respondent
is a United States citizen residing in Portland, Oregon.
App., infra, 129a, 137a-138a (¶¶ 17, 51-52). Respondent
alleges that in April 2010, while he was in Sudan on business, FBI officials questioned him about his ties to a
mosque in the Portland area, told him he had been
placed on the No Fly List and so could not return to the
United States, and then offered to remove his name
from the No Fly List if he became a government informant. Id. at 138a-141a (¶¶ 52-65). Respondent alleges
that he refused. Id. at 141a (¶ 62).
Respondent alleges that he moved to the United
Arab Emirates (UAE) in September 2010, App., infra,
142a (¶ 68), and that in June 2011 he was abducted by
UAE secret police, who imprisoned, interrogated, and
tortured him for more than three months, id. at 142a145a (¶¶ 69-79). Respondent alleges that one of his in-
4
terrogators told him that the FBI had requested the detention and interrogation. Id. at 147a (¶ 88). (The district court dismissed respondent’s claims related to his
interrogation, see 23 F. Supp. 3d 1268, 1281, and respondent did not challenge that dismissal on appeal.)
Respondent alleges that he was eventually released
in September 2011 but, unable to board a flight to the
United States because of his placement on the No Fly
List, he flew instead to Sweden, where he had a relative.
App., infra, 148a (¶¶ 89-90). Respondent alleges that
Sweden denied him asylum in early 2015 and flew him
back to Portland, Oregon, by private jet in February
2015. Id. at 152a (¶¶ 103, 105).
c. In November 2013, while he was still in Sweden,
respondent filed a redress request through DHS TRIP.
App., infra, 151a (¶ 100). In January 2014, under the
policies then in place, DHS informed respondent that
“no changes or corrections are warranted at this time.”
Id. at 123a. DHS explained that respondent could seek
an administrative appeal or, if he did not do so within 30
days, its decision would become final and thus reviewable in the court of appeals under 49 U.S.C. 46110. App.,
infra, 123a. Respondent did not pursue an administrative appeal or file a petition for review in the court of
appeals. See id. at 151a (¶ 100).
In February 2015, after the change in DHS TRIP procedures, DHS informed respondent that it had reevaluated his previous inquiry and confirmed that respondent
was on the No Fly List “because he had been identified
as an individual who ‘may be a threat to civil aviation or
national security.’ ” App., infra, 119a (quoting 49 U.S.C.
114(h)(3)(A)); see id. at 152a (¶ 104). Respondent requested an administrative appeal. In March 2015, TSA
determined that he would remain on the No Fly List. Id.
5
at 119a-121a; see id. at 152a (¶ 104). TSA informed respondent that its determination was a final order reviewable in the court of appeals under 49 U.S.C. 46110. App.,
infra, 121a. Respondent did not file a petition for review.
In light of the “dynamic intelligence environment”
and “regular reviews of the data,” the terrorism watchlist “is continuously reviewed and updated.” Terrorist
Screening Center, Overview of the U.S. Government’s
Watchlisting Process and Procedures as of January
2018, at 2; cf. Long v. Barr, 451 F. Supp. 3d 507, 516
(E.D. Va. 2020), vacated and remanded, 38 F.4th 417
(4th Cir. 2022). In May 2016, respondent was informed
that he had been removed from the No Fly List. See
D. Ct. Doc. 98, at 1 (May 9, 2016). Respondent successfully flew from Portland to San Diego later that month.
D. Ct. Doc. 100, at 3 (May 16, 2016). Respondent does
not allege that he has been placed back on the No Fly
List since then. He alleges, however, that he remains
on the Selectee List and as a result has been subjected
to enhanced security screenings and suffered other
harms. See, e.g., App., infra, 155a-156a, 159a, 161a-162a
(¶¶ 116-118, 134, 143-144).
2. Meanwhile, in May 2013, also while in Sweden
(and before seeking redress through DHS TRIP), respondent filed this suit in the United States District
Court for the District of Oregon. As relevant here, the
operative complaint alleges that placing and retaining
respondent on the No Fly List and the Selectee List violated substantive and procedural due process, and
seeks declaratory, injunctive, and other relief. See
App., infra, 164a-169a (¶¶ 154-185).
After respondent was removed from the No Fly List,
the parties jointly stipulated that “there is no longer a
live controversy with respect to [respondent’s] request
6
for an injunction requiring the Government to remove
him from the No Fly List.” D. Ct. Doc. 102, at 2 (May
27, 2016). Respondent maintained, however, that his request for “a declaratory judgment to the effect that his
initial placement and continued retention of his name on
the list were illegal and unconstitutional” was not moot.
D. Ct. Doc. 100, at 3.
After additional briefing, the district court dismissed
respondent’s No Fly List claims as moot. App., infra,
74a-114a. The court explained that a declaration that
respondent’s original placement on the No Fly List was
unlawful “ ‘would not have any effect on [respondent’s]
substantive legal rights because [respondent] is no
longer on the No-Fly List.’ ” Id. at 91a (citation omitted); see id. at 93a-94a. The court recognized that “[t]he
voluntary cessation of challenged conduct does not ordinarily render a case moot” unless “subsequent events
made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id.
at 88a-89a (citations omitted). But the court concluded
that the challenged conduct was unlikely to recur here:
“the notion that [the] government would remove an individual from the No-Fly List whom it believes is ‘ “a
threat to civil aviation or national security,” ’ for the
‘mere purpose of concluding this litigation is, to say the
least, far-fetched.’ ” Id. at 93a (citation omitted). The
court, however, “emphasize[d] the courthouse doors will
be open to [respondent] in the future if [the government] again place[s] him on the No-Fly List.” Id. at 96a.
3. The court of appeals reversed. App., infra, 31a-44a.
The court of appeals recognized that under this
Court’s precedents, a defendant that voluntarily ceases
the challenged conduct during litigation can establish
mootness if “it is ‘absolutely clear the allegedly wrong-
7
ful behavior could not reasonably be expected to recur.’ ” App., infra, 41a (quoting Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013)). But the court held that the
government had not satisfied that standard here because it had not “acquiesce[d] to the righteousness of
[respondent’s] contentions” that his initial placement on
the No Fly List was unlawful, and therefore “ha[d] not
assured [respondent] 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.” App., infra, 42a. The court further reasoned that because the
government had not “acknowledg[ed]” that respondent
“did not belong on the list” in the first place, respondent
remained stigmatized by his placement on the No Fly
List and “vindication in this action would have actual
and palpable consequences for” him. Id. at 43a. The
court also noted that removing respondent from the No
Fly List was “individualized” and “untethered to any
explanation or change in policy.” Id. at 41a; see id. at
41a-42a. The court concluded that “[b]ecause there are
neither procedural hurdles to reinstating [respondent]
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,” respondent’s No Fly List
claims were not moot. Id. at 44a.
The court of appeals suggested, however, that the
government might establish mootness if it were to submit a declaration stating that “if [respondent] is ever
put back on the No Fly List, that determination would
‘necessarily be predicated on a new and different factual
record.’ ” App., infra, 43a (citing Mokdad v. Sessions,
876 F.3d 167, 169 (6th Cir. 2017)) (ellipsis omitted).
4. On remand, the government filed a declaration
from Christopher R. Courtright, the Acting Deputy Di-
8
rector for Operations of the Terrorist Screening Center. See App., infra, 117a-118a. As relevant here, the
declaration states:
[Respondent] was placed on the No Fly List in accordance with applicable policies and procedures.
[Respondent] was removed from the No Fly List
upon the determination that he no longer satisfied
the criteria for placement on the No Fly List. He
will not be placed on the No Fly List in the future
based on the currently available information.
Id. at 118a.
That assertion echoed the language in a declaration
from the then-Deputy Director for Operations of the
Terrorist Screening Center in the Mokdad case that the
court of appeals here had cited: “Mr. Mokdad is not
currently on the No Fly List, and he will not be placed
on the No Fly List in the future based on the currently
available information.” D. Ct. Doc. 58, at 2, Mokdad v.
Lynch, No. 13-cv-12038 (E.D. Mich. Aug. 16, 2016)
(Mokdad Decl.). Relying in part on that declaration, the
Sixth Circuit in Mokdad had affirmed dismissal of the
No Fly List claims there as moot. See 876 F.3d at 171.
In light of the Courtright declaration, the district
court here again dismissed respondent’s No Fly List
claims as moot. See App., infra,45a-73a.
5. The court of appeals again reversed. App., infra,
1a-30a. As relevant here, the court stated that the
Courtright declaration “does not provide the assurances specified by [the court’s earlier decision] as adequate to overcome the voluntary cessation exception to
mootness.” Id. at 13a.
The court of appeals found that the declaration neither “ ‘repudiate[d] the decision to add [respondent] to
the No Fly List’ ” nor “ ‘acquiesced to the righteousness
9
of [respondent’s] contentions’ ” that his initial placement on the No Fly List was unlawful. App., infra, 16a17a (brackets and citations omitted). Accordingly, the
court held, the Courtright declaration does not “ ‘assure[] [respondent] 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.’ ” Id. at 17a (citation omitted).
The court of appeals also faulted the Courtright declaration for neither providing an “explanation for [respondent’s] inclusion on or removal from the No Fly
List” nor “identif [ying] any change to the policies, procedures, and criteria under which [respondent] was
placed on the No Fly List in the first place.” App., infra, 16a. And the court found the declaration deficient
because it did not indicate that any “procedural safeguards have been implemented” that would limit the
government’s “ ‘ability to revise [respondent’s] status
on the receipt of new information.’ ” Id. at 17a (citation
omitted).*
* The district court also had dismissed respondent’s Selectee List
claims on the merits, explaining that respondent’s having previously
undergone enhanced security screening procedures before being
permitted to board an aircraft did not allege harm to a cognizable
liberty interest. See App., infra, 65a-73a; cf. Paul v. Davis, 424 U.S.
693, 701 (1976) (rejecting “the proposition that reputation alone,
apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause”). Having reversed the
dismissal of respondent’s No Fly List claims, the court of appeals
also reversed dismissal of some of respondent’s Selectee List claims,
leaving it to the district court on remand to determine whether
those claims were viable on the merits. See App., infra, 27a-28a.
10
REASONS FOR GRANTING THE PETITION
The court of appeals erred in holding that respondent’s claims challenging his placement on the No Fly
List are not moot even though he was removed from
that list seven years ago and the government has submitted a sworn declaration stating that he “will not be
placed on the No Fly List in the future based on the
currently available information.” App., infra, 118a.
The court’s holding directly conflicts with decisions of
the Fourth and Sixth Circuits that have found similar
No Fly List claims moot upon the execution of declarations materially identical to the one in this case. And
the court’s principal rationale—that the claims are not
moot because the government has not “acquiesced to
the righteousness of [respondent’s] contentions,” id. at
16a (brackets and citation omitted)—incorrectly confuses mootness with an admission of liability on the
merits. If allowed to stand, the ruling below would
needlessly precipitate further litigation about legal
claims that have no ongoing real-world relevance and
invite the lower courts to issue advisory opinions in contravention of Article III. This Court should grant the
petition and reverse the judgment below.
A. The Court Of Appeals Incorrectly Held That Respondent’s No Fly List Claims Are Not Moot
1. Article III of the United States Constitution limits the federal “judicial Power” to the adjudication of
“Cases” and “Controversies.” U.S. Const. Art. III, § 2,
Cl. 1. One “essential and unchanging part of the caseor-controversy requirement” is Article III standing,
which requires a plaintiff to demonstrate an actual or
imminent injury that is personal, concrete, and particularized, that is fairly traceable to the defendant’s conduct, and that likely will be redressed by a favorable
11
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). Such an “actual controversy” between the
parties “must be extant” not only “at the time the complaint is filed,” but also through “all stages” of the litigation. Alvarez v. Smith, 558 U.S. 87, 92 (2009) (citation
omitted). The dispute between the parties must at all
times remain “definite and concrete, touching the legal
relations of parties having adverse legal interests.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007) (citation omitted).
“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.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013) (citation omitted). “No matter how vehemently
the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the
dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.’ ”
Ibid. (citation omitted). And mootness “deprives [a
court] of [its] power to act; there is nothing for [the
court] to remedy, even if [it] were disposed to do so,”
because courts “are not in the business of pronouncing
that past actions which have no demonstrable continuing effect were right or wrong.” Spencer v. Kemna, 523
U.S. 1, 18 (1998).
This Court also has held, however, that “a defendant’s voluntary cessation of a challenged practice does
not deprive a federal court of its power to determine the
legality of the practice.” City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982); see Already, 568
U.S. at 91 (“[A] defendant cannot automatically moot a
case simply by ending its unlawful conduct once sued.”).
12
In a situation involving such voluntary cessation, the
case is moot only if the defendant demonstrates that “it
is absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur.” Already,
568 U.S. at 91 (citation omitted).
For example, in Mesquite, the Court held that a challenge to a city ordinance was not moot even though the
city had repealed the “objectionable language” in the
ordinance because the city could “reenact[] precisely
the same provision” and had “announced just such an
intention.” 455 U.S. at 289 & n.11. In contrast, in Already, the Court found moot a shoe manufacturer’s
claim alleging invalidity of a competitor’s trademark after the competitor issued an “unconditional and irrevocable” covenant promising not to make any trademarkrelated claim or demand against the manufacturer’s
current and previous designs, including any colorable
imitations thereof. 568 U.S. at 93. Even though the
manufacturer “ha[d] plans to introduce new shoe lines,”
it had not asserted any “concrete plans to engage in conduct not covered by the covenant,” and so the Court
found that “the challenged conduct”—namely, the competitor’s assertion of an allegedly invalid trademark
against the manufacturer—“cannot reasonably be expected to recur.” Id. at 95.
2. Under those principles, respondent’s No Fly List
claims are moot. The operative complaint alleges that
the government employed defective procedures in adding respondent to the No Fly List, provided inadequate
procedures for seeking removal from that list, and infringed a constitutionally protected liberty interest in
flying while respondent was on that list. See App., infra, 164a-169a (¶¶ 154-185). But respondent is no longer
on the No Fly List. His claims about the procedures
13
used to add him to (or take him off ) the No Fly List, or
the alleged deprivations of liberty he suffered while on
that list, are thus no longer “live” with respect to his
request for injunctive and declaratory relief. Already,
568 U.S. at 91 (citations omitted). And although the
complaint mentions damages in passing, see App., infra, 125a, 129a (¶¶ 3, 13), respondent identifies no cause
of action or waiver of sovereign immunity that would afford such retrospective relief. Cf. New York State Rifle
& Pistol Association v. City of New York, 140 S. Ct.
1525, 1526-1527 (2020) (per curiam); Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). Any
dispute about the lawfulness of respondent’s presence
on the No Fly List between 2010 and 2016 therefore “is
no longer embedded in any actual controversy about
[respondent’s] particular legal rights.” Already, 568
U.S. at 91 (citation omitted).
Nor does the “voluntary cessation” principle rescue
respondent’s No Fly List claims from mootness. Respondent was removed from the No Fly List seven
years ago and has not been on that list since. Moreover,
the government has executed a sworn declaration making clear that respondent “will not be placed on the No
Fly List in the future based on the currently available
information.” App., infra, 118a. The “currently available information” necessarily includes all of the information available in 2010, when respondent was initially
placed on the No Fly List. It is thus “absolutely clear”
that respondent’s being placed back on the No Fly List
for the same reasons that he was placed on it in 2010
“could not reasonably be expected to recur.” Already,
568 U.S. at 91 (citation omitted). Rather, the Courtright
declaration makes clear that if respondent is ever
placed back on the No Fly List, it would have to be
14
based on new information—and thus by definition
would not constitute a “recur[rence]” of the “allegedly
wrongful behavior.” Ibid. (citation omitted).
3. The court of appeals’ contrary reasoning lacks
merit. The court found respondent’s No Fly List claims
not to be moot, notwithstanding the Courtright declaration, principally on the ground that the declaration “neither ‘repudiates the decision to add [respondent] to the
No Fly List’ nor ‘assures [respondent] 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.’ ” App., infra, 17a (brackets and citation
omitted). As a threshold matter, the latter assertion is
factually incorrect; as explained above, all information
about respondent that was available in 2010 obviously is
“currently available” as well, id. at 118a, and thus the
declaration as a logical matter assures respondent that,
if he is ever placed on the No Fly List in the future, it
would necessarily be based on new information—not
just the information available in 2010 when he was
added to the list “in the first place,” id. at 17a (citation
omitted).
Even more fundamentally, the court of appeals’ reasoning confuses mootness with an admission of liability
on the merits. The court cited no precedent from this
Court supporting its view that the government had to
“repudiate[] the decision to add [respondent] to the No
Fly List” or “acquiesce[] to the righteousness of [respondent’s] contentions” in order to establish mootness
under the voluntary-cessation doctrine. App., infra,
16a-17a (citations omitted). Indeed, this Court has said
precisely the opposite, recognizing that a case can be
moot after a defendant ceases its challenged conduct
“[n]o matter how vehemently the parties continue to
15
dispute the lawfulness of the conduct that precipitated
the lawsuit.” Already, 568 U.S. at 91.
That makes sense because the voluntary-cessation
inquiry is forward-looking, not backward-looking: it
asks about the likelihood of the challenged conduct’s recurrence in the future, not whether the defendant
agrees it acted wrongfully in the past. The competitor’s
covenant in Already, for example, did not repudiate or
explain the reasons for any prior conduct, but instead
simply promised to avoid similar conduct in the future.
See Already, 568 U.S. at 93 (quoting the covenant). To
be sure, a repudiation of the challenged conduct might
be relevant to a court’s evaluation of the likelihood that
a defendant will “return to his old ways,” id. at 92 (citation omitted). But there is no sound basis in law or logic
to make repudiation of the past conduct or “acquiesce[nce] to the righteousness of [the plaintiff ’s] contentions” a requirement of mootness, as the court of appeals did here. App., infra, 16a (citation omitted).
For the same reason, the court of appeals erred in
faulting the Courtright declaration for not providing an
“explanation for [respondent’s] inclusion on or removal
from the No Fly List” or “identif [ying] any change to
the policies, procedures, and criteria under which [respondent] was placed on the No Fly List in the first
place.” App., infra, 16a. According to the court, those
omissions meant that respondent’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.’ ” Ibid. (citation omitted). But as
this Court’s decision in Already makes clear, a defendant’s challenged conduct can reasonably be expected
not to recur for individualized reasons even in the absence of a broad change in policy. See 568 U.S. at 93
16
(covenant expressing no change in policy or identifying
any reasons for the prior conduct).
Here, the Courtright declaration identifies respondent by name and avers that he, specifically, “will not be
placed on the No Fly List in the future based on the
currently available information.” App., infra, 118a.
The challenged conduct thus cannot reasonably be expected to recur with respect to respondent regardless of
whether the government removed him from the No Fly
List because of a change in “policies, procedures, and
criteria” or because “something about [respondent]”
himself (or the information known about him) had
changed. Id. at 16a. That the government continues to
maintain that respondent “was placed on the No Fly
List [in 2010] in accordance with applicable policies and
procedures” at that time, id. at 118a, is thus irrelevant
to whether respondent’s removal from that list for the
past seven years—combined with the declaration making clear that he will not be returned to that list “based
on the currently available information,” ibid.—renders
his No Fly List claims moot.
Finally, the court of appeals faulted the Courtright
declaration for not indicating that any “procedural safeguards have been implemented” that would limit the
government’s “ ‘ability to revise [respondent’s] status
on the receipt of new information.’ ” App., infra, 17a (citation omitted). Again, that confuses the merits of respondent’s procedural due process claim with mootness.
And to the extent the court was concerned that respondent might “be placed on the List if ‘a new factual record’
showed that he was engaging in the same or similar conduct once again,” Id. at 19a, that speculative possibility
“could not reasonably be expected to recur,” Already,
568 U.S. at 91 (emphasis added; citation omitted), and
17
thus is insufficient to keep respondent’s claims live, cf.
City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
Besides, for obvious reasons, the government cannot responsibly promise that respondent (or anybody else)
will never be placed on the No Fly List in the future
regardless of his actions; nor should it have to do so in
order to establish mootness.
More fundamentally, the court of appeals’ reasoning
is in serious tension with the presumption of regularity
generally afforded to governmental actions, cf. United
States v. Armstrong, 517 U.S. 456, 464 (1996), because
it improperly presupposes that the government was
willing to take respondent off the No Fly List and risk
harm to national security (for seven years and counting)
simply to moot this case, or that the government will
immediately place respondent back on the No Fly List
on the thinnest of pretexts as soon as litigation has concluded. Especially in this national-security context, absent some strong showing of bad faith (which respondent has not attempted to make), the court should have
presumed that the government removed respondent
from the No Fly List for genuine reasons and in good
faith, and that it will not place respondent back on the
list absent new information that justifies that course of
action. See DeFunis v. Odegaard, 416 U.S. 312, 317
(1974) (per curiam) (explaining that when evaluating
mootness, “it has been the settled practice of the Court
* * * fully to accept [such] representations” from governmental parties); cf. Holder v. Humanitarian Law
Project, 561 U.S. 1, 33-35 (2010); Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24-25 (2008).
Indeed, in addressing the mootness of claims challenging governmental action, this Court generally presumes that—absent admissions like the one in Mes-
18
quite, supra, of an intent to resume the challenged
conduct—the government acts in good faith when ceasing that conduct. For example, in New York State Rifle
& Pistol Association, the Court found claims for prospective relief challenging a city firearms rule to be
moot after the State amended its firearms licensing
statute and the city correspondingly amended the rule.
140 S. Ct. at 1526. Although three Justices would have
held that the case was not moot, they relied principally
on the ground that the amendments did not in fact provide the plaintiffs with all the prospective relief they
sought. See id. at 1533-1540 (Alito, J., dissenting).
None suggested that the State and city could reasonably be expected to repeal the amendments. Cf. ibid.
The same presumption is applicable to federal Executive Branch actions that terminate the challenged conduct, as this Court has recognized in a series of recent
cases. See, e.g., Yellen v. United States House of Representatives, 142 S. Ct. 332, 332 (2021) (challenge to certain expenditures moot after Executive Branch ceased
the expenditures); Mayorkas v. Innovation Law Lab,
141 S. Ct. 2842, 2842 (2021) (challenge to certain immigration practices moot after Executive Branch terminated the practices); Trump v. International Refugee
Assistance, 138 S. Ct. 353, 353 (2017) (challenge to executive order moot after expiration of order). There is
no reason to treat No Fly List claims any differently,
especially given the Courtright declaration’s assurances that respondent “will not be placed on the No Fly
List in the future based on the currently available information.” App., infra, 118a.
B. The Decision Below Warrants Further Review
1. a. The court of appeals’ decision conflicts with the
Fourth Circuit’s decision in Long v. Pekoske, 38 F.4th
19
417 (2022), and the Sixth Circuit’s decision in Mokdad
v. Sessions, 876 F.3d 167 (2017). Long itself acknowledged the conflict. See 38 F.4th at 424-425. There, as
here, the plaintiff had “asserted a bevy of constitutional
and procedural claims related to his inclusion in * * *
the No Fly List.” Id. at 419. And there, as here, “the
government ha[d] removed [the plaintiff ] from the No
Fly List and avowed that it [would not] reinstate him
based on currently available information.” Id. at 420.
But contrary to the decision below, the court in Long
found the plaintiff ’s No Fly List claims there moot. Id.
at 423-426.
Although the Fourth Circuit in Long agreed that the
Ninth Circuit in this case had identified the correct
“general framework” for evaluating voluntary cessation
and mootness, it concluded that the Ninth Circuit “demand[ed] too much.” 38 F.4th at 424. “[U]nlike the
Ninth Circuit” here, the Fourth Circuit recognized that
the materially identical declaration in Long assured the
plaintiff that “the government will only return [him] to
the No Fly List on a new factual record” because “[t]he
‘currently available information’ the government has
promised it won’t rely on (exclusively, at least) to return
[the plaintiff ] to the list includes whatever information
prompted it to add him in the first place.” Id. at 425.
The court explained that any “future decision to place
[the plaintiff ] back on the No Fly List” would therefore
be based at least “in part” on “new grounds,” and therefore “a mootness finding here is appropriate.” Ibid.
(emphasis omitted).
Long expressly rejected the Ninth Circuit’s requirement that the declaration provide an “explanation” for
the plaintiff ’s initial placement on the No Fly List or
announce a “change in policy.” 38 F.4th at 425 (citation
20
omitted). “Even without a specific explanation on why
it removed Long from the No Fly List,” the court in
Long explained, “we (unlike the Ninth Circuit) infer
that the government has ‘acquiesced to the righteousness of Long’s contentions,’ at least to some degree,”
because “we assume [the government] removed Long
from the list because, as he contends, he doesn’t belong
on it.” Ibid. (brackets and citation omitted). “To say
otherwise would be to suggest the government risked
national security simply to moot a lawsuit. This we decline to do.” Ibid.; see id. at 426 (explaining that, at a
minimum, it is “appropriate” to “allow the government
more leeway” “in this unique national-security context”).
The decision below likewise conflicts with the Sixth
Circuit’s decision in Mokdad, supra. The plaintiff in
Mokdad had challenged his alleged placement on the
No Fly List but, during litigation, was informed that he
was not on the list and was furnished with a declaration
stating that he “will not be placed on the No Fly List in
the future based on the currently available information.” Mokdad Decl. at 2; see Mokdad, 876 F.3d at
169. As in Long, but unlike in this case, the Sixth Circuit held that the No Fly List claims were moot and did
not fall within the voluntary-cessation exception to
mootness. Mokdad, 876 F.3d at 171. To be sure, the
Mokdad court rested its holding on the ground that the
government’s submission of a declaration was not entirely of its own free will because the government had
“initially argued that such a declaration was unnecessary” and had submitted the declaration only after the
district court suggested it. Ibid. But the same would
be true here: the government initially argued that respondent’s No Fly List claims were moot even without
21
the Courtright declaration, and submitted that declaration on remand only after the court of appeals disagreed
with the government while suggesting that the government could “execute[] a declaration” like the one in
Mokdad to establish mootness, App., infra, 43a (citing
Mokdad, 876 F.3d at 169).
b. In opposing rehearing below, respondent claimed
(C.A. Resp. to Pet. for Reh’g 10-11) that “Long presents
at most a trivial circuit split” because “the two Declarations [in the respective cases] differ in crucial ways,”
and the fact that “two courts would interpret two different declarations differently does not create a circuit
split.” But the relevant language in the two declarations is nearly identical. The declaration in this case
states that respondent “will not be placed on the No Fly
List in the future based on the currently available information.” App., infra, 118a. The declaration in Long
states that the plaintiff “will not be placed back on the
No Fly List in the future based on the currently available information.” C.A. Supp. App. at 15, Long, supra
(No. 20-1406) (May 12, 2021) (emphasis added). The
only difference is the inclusion of a single additional
word (“back”) in the latter that cannot reasonably explain the divergent outcomes.
The other supposedly “crucial” differences identified
by respondent (C.A. Resp. to Pet. for Reh’g 11) are in
fact immaterial. The Courtright declaration explains
that respondent was “removed from the No Fly List
upon the determination that he no longer satisfied the
criteria for placement on the No Fly List,” App., infra,
118a, whereas the Long declaration explains that the
plaintiff was “removed from the No Fly List based on
an assessment of the currently available information,”
C.A. Supp. App. at 15, Long, supra (No. 20-1406). Sim-
22
ilarly, the Courtright declaration explains that respondent was initially “placed on the No Fly List in accordance with applicable policies and procedures,” App., infra, 118a, whereas the Long declaration incorporates by
reference a letter to the plaintiff stating that the agency
had previously “uph[e]ld [his] placement on the No Fly
List based on the totality of available information.”
C.A. Supp. App. at 17, Long, supra (No. 20-1406). It is
difficult to see how those statements are materially different, especially in light of the forward-looking inquiry
required under the voluntary-cessation doctrine.
More to the point, the Fourth Circuit in Long did not
rely on any of those differences (or even cite them) in
disagreeing with the Ninth Circuit in this case. See 38
F.4th at 424-426. And nowhere does the Long declaration or letter repudiate the prior decision to place the
plaintiff on the No Fly List, acquiesce to the righteousness of the plaintiff ’s contention that placing him on
that list was unlawful, explain the reasons for his initial
placement on that list, or announce a change in policy or
criteria for inclusion on that list. Under the court of appeals’ analysis in this case, therefore, Long would have
come out the other way. It beggars belief to think that
had the government submitted a declaration in this case
that was exactly (and not just materially) identical to
the one in Long, the court of appeals here would have
determined that respondent’s No Fly List claims are
moot. Respondent himself has stated (C.A. Resp. to
Pet. for Reh’g 11) that “Long was wrongly decided” on
his view of the law, underscoring the conflict between
the Fourth and Ninth Circuits’ respective analyses.
Nor can the decision below be characterized as a
factbound application of settled law for which this
Court’s review is unwarranted. Although the court of
23
appeals accurately reproduced this Court’s statement
that a case is moot under the voluntary-cessation doctrine when it is “absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur,”
App., infra, 14a (citation omitted), the court of appeals
interpreted that principle to require a defendant to repudiate its prior actions or announce a change in policy
in order to defeat a reasonable expectation of recurrence. Under the precedential decision below, therefore, it is difficult to see how No Fly List claims could
be mooted in the Ninth Circuit absent a declaration
averring one or both of those things.
But this Court has never adopted such categorical
requirements, which would be inconsistent with the
finding of mootness in Already (where neither was present). And the Fourth Circuit has squarely rejected
those legal requirements in the specific context of No
Fly List claims. See Long, 38 F.4th at 424-426. The
bottom line is that individuals on the No Fly List who
file suit but are later removed from that list—with an
accompanying promise that they will not be returned to
the list based on the currently available information—
may continue to litigate their claims in the Ninth Circuit, but not in the Fourth or Sixth Circuits.
2. The question presented is important. This Court
has explained that “no principle is more fundamental to
the judiciary’s proper role in our system of government
than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v.
Amnesty International USA, 568 U.S. 398, 408 (2013)
(brackets and citation omitted). Because of that fundamental limitation, “courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such
a case or controversy.” Already, 568 U.S. at 90 (citation
24
omitted); see Spencer, 523 U.S. at 18 (“We are not in the
business of pronouncing that past actions which have no
demonstrable continuing effect were right or wrong.”).
Yet the decision below would invite the lower courts
to stray beyond those judicial boundaries to pronounce
that respondent’s initial placement on the No Fly List
in 2010 was right (or wrong) even though such a pronouncement would have no effect on respondent’s legal
rights or status going forward. (Respondent cannot
avoid mootness by alleging lingering reputational harm
stemming from his former placement on the No Fly List
when any claim challenging that former placement is itself moot. See Spencer, 523 U.S. at 16 n.8; Paul v. Davis, 424 U.S. 693, 701 (1976); Long, 38 F.4th at 426-427
(rejecting reputational or stigmatic injury as a basis to
avoid mootness).) The decision below would allow every
United States individual on the No Fly List to secure an
advisory opinion even after being removed from the list
(with an accompanying promise not to be returned to it
based on the currently available information) as long as
the individual files suit in the Ninth Circuit.
Such advisory opinions, in addition to contravening
fundamental Article III limits on the judiciary, would
be particularly problematic in this national-security
context. Governmental agencies generally do not disclose the full reasons why an individual was placed on
or removed from a terrorism watchlist; those reasons
may frequently include highly sensitive state and military secrets. Allowing moot No Fly List claims to proceed, however, would needlessly generate disputes
about the use of such information and potentially lead
to orders requiring the government to reveal those secrets in litigation—itself a form of harm to the government and the public. Cf. FBI v. Fazaga, 142 S. Ct. 1051,
25
1056 (2022); United States v. Zubaydah, 142 S. Ct. 959,
967 (2022); cf. also Long, 38 F.4th at 426 (“allow[ing]
the government more leeway” “in this unique nationalsecurity context”). Such disputes and orders also could
require agencies to divert scarce resources—ones that
otherwise could be used to carry out national-security
and counterterrorism duties—to assemble classified
records for judicial review that describe the government’s prior actions with respect to an individual who,
by hypothesis, no longer poses a national-security
threat sufficient to warrant inclusion on the No Fly
List. The court of appeals’ decision here thus imposes
potentially large costs on society for little meaningful
benefit, underscoring the need for this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
SOPAN JOSHI
Assistant to the Solicitor
General
SHARON SWINGLE
JOSHUA WALDMAN
Attorneys
JUNE 2023
APPENDIX
TABLE OF CONTENTS
Page
Appendix A
—
Appendix B
—
Appendix C
—
Appendix D —
Appendix E —
Appendix F
—
Appendix G
—
Appendix H —
Appendix I
—
Court of appeals opinion
(May 27, 2022) ............................................. 1a
Court of appeals opinion
(Sept. 20, 2018) .......................................... 31a
District court opinion and order
(Aug. 12, 2020)........................................... 45a
District court opinion and order
(Sept. 28, 2016) .......................................... 74a
Court of appeals order denying
rehearing (Jan. 4, 2023) ......................... 115a
Declaration of Christopher R.
Courtright (June 19, 2019)..................... 117a
TSA decision and order
(Mar. 9, 2015) .......................................... 119a
Letter from Deborah O. Moore
to Yonas Fikre (Jan. 23, 2014) ........... 122a
Seventh amended complaint
(Dec. 18, 2019) ......................................... 124a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 20-35904
D.C. No. 3:13-cv-00899-MO
YONAS FIKRE, PLAINTIFF-APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION ; MERRICK B.
GARLAND, ATTORNEY GENERAL; ANTONY BLINKEN;
CHRISTOPHER A. WRAY; CHARLES H. KABLE IV,
DIRECTOR OF THE TERRORIST SCREENING CENTER;
PAUL NAKASONE, DIRECTOR OF THE NATIONAL
SECURITY AGENCY; A VRIL D. HAINES, DIRECTOR OF
NATIONAL INTELLIGENCE ; ALEJANDRO MAYORKAS ,
SECRETARY OF THE DEPARTMENT OF HOMELAND
SECURITY; DAVID PEKOSKE, ADMINISTRATOR OF THE
TRANSPORTATION SECURITY ADMINISTRATION ,
DEFENDANTS -APPELLEES
Argued and Submitted: Nov. 15, 2021
Pasadena, California
Filed: May 27, 2022
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
OPINION
(1a)
2a
Before:
MARSHA S. BERZON and JOHNNIE B.
RAWLINSON, Circuit Judges, and JOHN ANTOON II,*
District Judge.
Opinion by Judge BERZON
BERZON, Circuit Judge:
For a second time, Plaintiff-Appellant Yonas Fikre
appeals the district court’s dismissal of his lawsuit alleging that the Federal Bureau of Investigation violated his
substantive and procedural due process rights by placing and maintaining him in the Terrorist Screening Database and on its constituent No Fly List. After the
government removed Fikre from the No Fly List and
submitted a declaration stating that Fikre would “not be
placed on the No Fly List in the future” based on “currently available information,” the district court dismissed as moot Fikre’s claims pertaining to his inclusion
on the No Fly List. The district court then dismissed
Fikre’s claims pertaining to his inclusion in the broader
Terrorist Screening Database on the ground that he
failed to state a cognizable stigma-plus procedural due
process claim.
Because the government has failed to follow the instructions given by this Court the last time Fikre’s case
was before us, see Fikre v. FBI (Fikre I), 904 F.3d 1033
(9th Cir. 2018), we hold that the district court erred by
dismissing as moot Fikre’s No Fly List claims. We
also hold that 49 U.S.C. § 46110(a) does not divest the
district court of jurisdiction over Fikre’s No Fly List
claims. We remand to the district court to consider, in
the first instance, whether Fikre’s complaint states a vi* The Honorable John Antoon II, United States District Judge for
the Middle District of Florida, sitting by designation.
3a
able substantive or procedural due process claim with
respect to his inclusion on the government’s watchlists
when his Database and No Fly List allegations are considered together.
I.
Background
A.
The Terrorist Screening Database
In 2003, President George W. Bush executed Homeland Security Presidential Directive 6, which instructed
the Attorney General to “establish an organization to
consolidate the Government’s approach to terrorism
screening.” Homeland Security Presidential Directive-6
—Directive on Integration and Use of Screening Information to Protect Against Terrorism, 39 Weekly Comp.
Pres. Doc. 1234 (Sept. 16, 2003). Pursuant to that directive, the Attorney General created the Terrorist
Screening Center (“the Screening Center”), a multiagency entity administered by the FBI that consolidates
the United States government’s terrorist watchlists into
a single database—the Terrorist Screening Database
(“TSDB” or “Database”). “The TSDB is maintained by
the” Screening Center, which places an individual in the
Database “when there is ‘reasonable suspicion’ that he
or she is a known or suspected terrorist.” Kashem v.
Barr, 941 F.3d 358, 365 (9th Cir. 2019). After a United
States government agency or a foreign partner with
whom the United States shares terrorist screening information nominates an individual for inclusion in the
Database, the Screening Center reviews the nomination
and determines whether to add the individual to the Database. Fikre alleges that the final authority to accept,
reject, or modify a nomination to the Database rests
with the Screening Center alone and that the Screening
4a
Center does not notify individuals about their nomination or inclusion in the Database.
Once individuals have been placed in the Database,
the Screening Center sorts them into constituent lists,
used by a different government agency—the Transportation Security Administration (“TSA”)—for screening
purposes. The No Fly List, the most restrictive of
these lists, is reserved for individuals in the Database
whom the Screening Center has determined pose a
threat of committing an act of international or domestic
terrorism, including acts of terrorism using aircraft or
against U.S. government facilities. Kashem, 941 F.3d
at 365-66. “Federal departments and agencies submit
nominations for inclusion on the No Fly List, and [the
Screening Center] decides which individuals to include.”
Id. at 365. After the Screening Center decides to place
someone on the No Fly List, TSA prohibits those
individuals from boarding commercial aircraft that
fly over United States airspace. Id.; see 49 C.F.R.
§ 1560.105(b)(1).
Individuals included in the Database who are not on
the No Fly List are generally permitted to board commercial aircraft but are subject to enhanced security
screenings at airports and border crossings. In addition to the standard metal detector, advanced imaging
technology, or pat-down screening applied to all air passengers, enhanced screening for individuals included in
the Database can include individual searches, physical
inspection of the inside of their luggage, examination of
their electronics to ensure that any devices can be
turned on, and screening of their property for traces of
explosives. Fikre also alleges that, when individuals in
the Database are at border crossings, the government
5a
searches and copies the contents of their electronic devices, and that the government assigns them “handling
codes.” The handling codes, Fikre alleges, provide instructions for law enforcement officers about how to
treat someone listed in the Database during an encounter, and can require “their arrest or other adverse treatment” during such encounters. He also alleges that
the government bars individuals in the Database from
access to employment with federal agencies and certain
industries, and that the government disseminates the
Databases’ lists to government agencies around the
country and to foreign governments. The government
does not disclose the criteria for inclusion in the Database.
To permit individuals to challenge their inclusion on
the No Fly List and the Database, the TSA administers
the Department of Homeland Security’s Traveler Redress Inquiry Program (“DHS TRIP”). See 49 U.S.C.
§§ 44903( j)(2)(C)(iii)(I), ( j)(2)(G)(i); id. §§ 44926(a),
(b)(1); 49 C.F.R. §§ 1560.201-207. Under the DHS
TRIP process, individuals included on the No Fly List
may ask why they were placed on the No Fly List. If
they do so, they will be provided with a letter identifying
the specific reason(s) for their listing, as well as an unclassified summary of information supporting that listing. The TSA Administrator then has the authority, in
light of these materials and a report submitted by the
Screening Center’s Redress Office, to remove an individual from or maintain an individual on the No Fly List.
Fikre also alleges that, independently of the DHS TRIP
process, “[the Screening Center] periodically reviews its
TSDB listings and No Fly List annotations” and “occasionally imposes or removes No Fly List annotations.”
6a
With respect to individuals in the Database who are
not also on the No Fly List, the procedures are different.
Following a traveler inquiry regarding inclusion in the
Database, the Screening Center Redress Office may decide whether to remove the individual from the Database, but the government neither confirms nor denies a
person’s inclusion in or deletion from the Database.
Nor does the government provide individuals in the Database with the underlying reasons or intelligence justifying the individual’s inclusion in the Database.
B.
Factual and Procedural History
Yonas Fikre is a naturalized U.S. citizen of Eritrean
descent.1 At some point in late 2009 or early 2010, Fikre
moved to Sudan and began a business venture that involved selling consumer electronic products in East Africa. During an April 2010 visit to the U.S. embassy in
Sudan, Fikre was approached by two FBI agents. The
agents interrogated him concerning his association with
a mosque in Portland, Oregon, where he used to live.
In the course of that interrogation, the FBI agents informed Fikre that he had been placed on the No Fly List
but suggested that they would remove him from the list
if he agreed to become an FBI informant. Fikre refused.
Several months later, Fikre traveled on business to
the United Arab Emirates. There, UAE police arrested, imprisoned, and tortured him. In the course of
his detention, UAE police interrogated him concerning
Because we are reviewing the district court’s grant of a motion
to dismiss, “we recite the facts as alleged in [Fikre’s] complaint,
and assume them to be true.” Brooks v. Clark County, 828 F.3d
910, 914 n.1 (9th Cir. 2016).
1
7a
his association with the Portland mosque. During one
interrogation, a UAE officer told Fikre that the FBI had
requested his detention and interrogation.
Fikre was eventually released from detention in the
UAE. Unable to fly home to the United States because
of his No Fly List status, he traveled to Sweden, where
he applied for asylum. Fikre eventually began the process of seeking to modify his No Fly List status through
the DHS TRIP procedures. 2 On February 14, 2015,
the Swedish government returned Fikre to Portland by
private jet.
In 2013, before leaving Sweden and before filing his
DHS TRIP inquiry, Fikre filed this lawsuit, alleging
that the United States government had violated his substantive and procedural due process rights under the
Fifth Amendment by including him on the No Fly List
and providing inadequate means for him to challenge
that designation. As the litigation was proceeding, in
January 2014 and again in March 2015, the TSA informed Fikre that no change to his No Fly List status
was warranted. A little over a year later, however,
while the government’s motion to dismiss Fikre’s complaint was pending, the government filed a notice in the
district court stating, without explanation, that the
Screening Center had notified the government that
While Fikre was in Sweden, the United States in 2012 indicted
him and two other individuals for conspiracy to structure monetary
transfers. Fikre alleges this indictment was instigated because he
had publicized his inclusion on the No Fly List and his subsequent
detention in the UAE. Fikre also alleges that the government
brought that prosecution in part based on surveillance of his telephone calls, text messages, and emails that had been conducted
sometime in 2010 without a warrant or probable cause.
2
8a
Fikre “has been removed from the No Fly List.”
Based on that notice, the district court dismissed Fikre’s
due process claim as moot.
Fikre appealed the district court’s mootness holding
to this Court, and we reversed. In Fikre I, we held that
an exception to mootness—the “voluntary cessation”
exception—applied to Fikre’s No Fly List claim because
“the government remain[ed] practically and legally ‘free
to return to [its] old ways’ despite abandoning them in
the ongoing litigation.” 904 F.3d at 1039 (second alteration in original) (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953)). In particular, we emphasized that the government had neither “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 “verified the implementation
of procedural safeguards conditioning its ability to revise Fikre’s status on the receipt of new information.”
Id. at 1040. “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,” we determined, “vindication in this action would have actual
and palpable consequences for Fikre.” Id.
On remand, the government again moved to dismiss
Fikre’s complaint, then in its sixth amended version. 3
FBI Supervisory Special Agent Christopher Courtright
filed a declaration (the “Courtright Declaration”) in support of the government’s motion to dismiss. In addiIn this version of the complaint, Fikre alleged that the government violated his substantive and procedural due process rights by
placing and maintaining him both on the No Fly List and in the Database generally.
3
9a
tion to providing an overview of the Database, the
Courtright Declaration states that Fikre “was placed on
the No Fly List in accordance with applicable policies
and procedures”; that on May 6, 2016, “[the Screening
Center] advised counsel for the Defendants” that Fikre
“had been removed from the No Fly [L]ist”; that Fikre
“was removed from the No Fly List upon determination
that he no longer satisfied the criteria for placement on
the No Fly List”; and that Fikre “will not be placed on
the No Fly List in the future based on the currently
available information.”
In its motion to dismiss, the government argued that
the Courtright Declaration’s statement that Fikre
would not be placed back on the No Fly List “based on
the currently available information” “satisfies one of the
[Fikre I ] panel’s concerns because it unequivocally
demonstrates that there are ‘procedural hurdles to reinstating [Plaintiff ] on the No Fly List based solely on
the facts already known.’ ” “To the extent that the
Ninth Circuit panel determined that the Government
must also ‘renounce[]’ its prerogative to place [Fikre] on
the No Fly List in the first place,” however, the government “respectfully disagree[d].” (first alteration in
original). The government instead maintained that,
because “watchlisting decisions are based on current assessments of the risks posed by particular individuals”
and “evaluations change as the available information
changes,” it was “inappropriate” for this Court to require “an acknowledgement by the government that its
investigation revealed [Fikre] did not belong on the
list.” Echoing the Courtright Declaration, the government reiterated that “the fact that a person was removed from the watchlist or one of its subsets does not
10a
mean that the original placement was in error or unlawful.”
On November 14, 2019, the district court heard oral
argument on the government’s motion to dismiss. Ruling from the bench, the district court held that Fikre’s
due process claims pertaining to his inclusion on the No
Fly List were moot in light of the Courtright Declaration, which the district court described as a “barrier
. . . to putting him back on the list.” 4 But the district
court granted Fikre leave to amend his complaint to allege additional facts regarding ongoing reputational injuries he has suffered by virtue of his alleged inclusion
in the Database, which the district court indicated could
serve as an independent basis for a due process claim.
On December 18, 2019, Fikre filed his Seventh
Amended Complaint. The Seventh Amended Complaint added allegations that Fikre’s reputation was
harmed when, due to his status as an individual listed in
the Database, he was subjected to enhanced screening
on two flights in 2016—one from Seattle to Mecca to
complete a religious pilgrimage, the other to San Diego
for a family trip. Specifically, Fikre alleges that, due
to his inclusion in the Database, he was subjected to enhanced screening at several points during these trips.
For example, when he checked in for his flight from
Seattle to Mecca, the ticketing agent had to call federal
agents for “individualized permission to print Fikre’s
The district court framed this issue as one of “standing” but
later clarified, in the written order dismissing Fikre’s Seventh
Amended Complaint (the operative one in this appeal), that the
government “had met their burden under the voluntary cessation
doctrine as laid out by the Ninth Circuit’s decision in this case.”
4
11a
boarding pass” and stamped his boarding pass with an
“SSSS” notation, which Fikre alleges “indicates a person’s TSDB status.” As Fikre was going through airport security in Seattle, the TSA, “in accordance with
his TSDB status,” subjected Fikre “to invasive and
disparate screening,” which was witnessed by his cotravelers. And at the gate in Seattle, agents asked him
to step aside and again searched him, patted him down,
and swabbed his belongings in front of his co-travelers.
Fikre alleges that similar inspections took place when
he boarded a connecting flight in Chicago; when he
boarded his flight leaving Saudi Arabia to return to the
United States; and when he flew to San Diego with his
family on a separate 2016 trip. The Seventh Amended
Complaint seeks declaratory and injunctive relief, including a declaration that the government violated his
due process rights by placing him on the No Fly List and
an injunction requiring that the government remove him
from the Database and “repudiate in its entirety the decision to add Fikre to the TSDB with a No Fly List annotation and maintain him there for approximately five
years.”
Once more, the government moved to dismiss Fikre’s
complaint.
The district court granted the motion.
The district court first reiterated that it had already dismissed as moot Fikre’s due process claims “insofar as
they were based on a theory of present or future injury
to a travel-related liberty interest” due to his inclusion
on the No Fly List. Turning to Fikre’s Databaserelated claims, the district court dismissed the claim
that the government had violated his Fifth Amendment
substantive due process rights by placing him in the Database.
12a
With regard to his procedural due process claim,
Fikre argued that he had pleaded a cognizable “stigmaplus” liberty interest stemming from his alleged inclusion in the Database. 5 Specifically, Fikre argued that
the government harmed his reputation by subjecting
him to enhanced screenings during his 2016 flights to
Mecca and San Diego and that, in connection with those
reputational harms, Fikre’s watchlist status led to his
detention and torture in the UAE, his prohibition from
flying over United States airspace while he was on the
No Fly List, his 2012 indictment, the unconstitutional
surveillance of his phone and email communications in
2010, interference with his religious exercise, and several other burdens.
The district court agreed that the government had
publicly stigmatized him “by subjecting him to intensive, repeated, non-random security screenings in front
of members of his community and family during his 2016
Mecca and San Diego trips,” and that Fikre therefore
suffered a reputational injury sufficient to support a
“stigma-plus” procedural due process claim. The court
concluded, however, that Fikre failed to state a “plus”
factor—the alteration or deprivation of a more tangible
right or status—caused by or in connection with that
2016 reputational harm, as required by the governing
case law. See Hart, 450 F.3d at 1069-70. In particuAs explained in more depth in Part II.C of this opinion, a
“stigma-plus” claim allows a plaintiff to recover for reputational
harm inflicted by the government where the plaintiff can show that
he was “stigmatized in connection with the denial of a ‘more tangible’ interest.” Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2006)
(quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). Fikre’s appeal
—to the extent that it challenges his inclusion in the Database—
focuses exclusively on this type of procedural due process claim.
5
13a
lar, the district court noted that, although he was subjected to enhanced screening during his 2016 trips,
Fikre was not “prevented or significantly impeded from
traveling during those two trips” and that, aside from
enhanced screening, Fikre “has not alleged that he has
personally suffered any” of the other consequences of
inclusion in the Database, “such as the denial of credentials or employment” with federal agencies or certain industries. As for Fikre’s other asserted “plus” factors,
the district court concluded that “the surrounding circumstances of each violation ha[d] absolutely nothing to
do with the events of Mr. Fikre’s 2016 reputational injury”; they involved “different actors,” “occurred years
apart,” and “happened for a host of possible different
reasons.” The district court therefore dismissed Fikre’s
procedural due process claim relating to his inclusion in
the Database.
Fikre now appeals both the district court’s dismissal
on mootness grounds of his No Fly List-related claims
and the district court’s dismissal of his stigma-plus procedural due process claim related to his inclusion in the
Database.
II. Discussion
A.
Mootness
We first address whether the district court erred by
once again dismissing as moot Fikre’s due process
claims relating to his inclusion on the No Fly List. We
conclude it did.
The Courtright Declaration submitted by the government on remand does not provide the assurances specified by Fikre I as adequate to overcome the voluntary
cessation exception to mootness. And because Fikre I
14a
governs, the district court should not have dismissed the
No Fly List due process claims as moot.
“Article III of the Constitution,” as we explained in
Fikre I, “grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ ” Fikre I, 904 F.3d
at 1037 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85,
90 (2013)). When the issues presented by a case “are
no longer ‘live’ ” or when “the parties lack a legally cognizable interest in the outcome,” a case becomes moot
and therefore no longer constitutes a “Case” or “Controversy” under Article III. Id. (quoting Already, 568
U.S. at 91). The “voluntary cessation of allegedly illegal conduct,” however, does not moot a case unless the
party asserting mootness satisfies the “heavy burden”
of making it “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id.
at 1037, 1039 (first quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); then quoting Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000); and
then quoting Already, 568 U.S. at 91).
Under the law of the case doctrine, ordinarily, “when
a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages
in the same case.” Askins v. U.S. Dep’t of Homeland
Sec., 899 F.3d 1035, 1042 (9th Cir. 2018) (quoting Musacchio v. United States, 577 U.S. 237, 244-45 (2016)).6
There are exceptions to the law of the case doctrine: when
“the first decision was clearly erroneous,” “an intervening change
in the law has occurred,” the evidence at the later stage of the case
“is substantially different,” “other changed circumstances exist,”
or “a manifest injustice would otherwise result.” Askins, 899
F.3d at 1042 (quoting United States v. Cuddy, 147 F.3d 1111, 1114
(9th Cir. 1998)). None of these exceptions applies here.
6
15a
Accordingly, absent the applicability of exceptions, “one
panel of an appellate court will not reconsider matters
resolved in a prior appeal to another panel in the same
case.” Leslie Salt Co. v. United States, 55 F.3d 1388,
1392 (9th Cir. 1995). This Court specified in Fikre I
what the government was required to do to show that it
is “absolutely clear the allegedly wrongful behavior”—
Fikre’s inclusion on the No Fly List—“could not reasonably be expected to recur.” Accordingly, we assess
whether the Courtright Declaration satisfies the criteria
identified in Fikre I and thereby overcomes the voluntary cessation exception. Fikre I, 904 F.3d at 1039
(quoting Already, 568 U.S. at 91). Under this analysis,
the Courtright Declaration does not do the job.
First, like the government’s 2016 notice, the
Courtright Declaration treats Fikre’s removal from the
No Fly List essentially as “an individualized determination untethered to any explanation or change in policy,
much less an abiding change in policy.” Id. at 1039-40.
That notice stated, without more, that the government’s
lawyers were “advised by the Terrorist Screening Center that [Fikre] has been removed from the No Fly
List.” Id. at 1040 (alteration in original). Fikre I
noted that the government had recently determined, at
the conclusion of the DHS TRIP process, that Fikre still
posed “a threat to civil aviation or national security.”
Id. Although the government then removed Fikre
from the No Fly List “two months after briefing was
completed on the government’s motion to dismiss
Fikre’s lawsuit,” the lack of “explanation or any announced change in policy” suggested “that Fikre’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.” Id.
16a
The Courtright Declaration, similarly, provides no
explanation for Fikre’s inclusion on or removal from the
No Fly List and, far from announcing a change in policy
regarding inclusion on the No Fly List, indicates that
there has been none. So it continues to appear that
Fikre’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.” Id. The
only explanation the Declaration provides is the statement that Fikre “was removed from the No Fly List
upon determination that he no longer satisfied the criteria” for inclusion on the list. But that sentence neither
explains what those criteria are nor identifies any
change to the policies, procedures, and criteria under
which Fikre was placed on the No Fly List in the first
place. The clear implication from the Courtright Declaration, then, is that the government has not changed
its policies but that something else has changed to warrant Fikre’s change in status, apparently something
about Fikre.
Second, Fikre I recognized that “the government’s
unambiguous renunciation of its past actions can compensate for the ease with which it may relapse into
them.” Id. at 1039. Because the government there
had “not repudiated the decision to add Fikre to the No
Fly List and maintain him there for approximately five
years,” id. at 1040, there was no basis to conclude in
Fikre I that “the current permission Fikre has to travel
by air” was “ ‘entrenched’ or ‘permanent,’ ” id. (quoting
McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir.
2015)), or that the government had “acquiesce[d] to the
righteousness of Fikre’s contentions,” id. “Absent an
acknowledgment by the government that its investigation revealed Fikre did not belong on the list, and that
17a
he will not be returned to the list based on the currently
available evidence,” Fikre remained stigmatized “as a
known or suspected terrorist.” Id.
The Courtright Declaration does not satisfy the
heavy burden of making it absolutely clear that the government would not in the future return Fikre to the No
Fly List for the same reason it placed him there originally. Like the government’s 2016 notice, it neither
“repudiate[s] the decision to add Fikre to the No Fly
List” nor “assure[s] 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.” Id.
In fact, it does the opposite: instead of renouncing the
government’s original decision, the Courtright Declaration doubles down on it, maintaining that Fikre “was
placed on the No Fly List in accordance with applicable
policies and procedures.” Indeed, in its motion to dismiss Fikre’s Sixth Amended Complaint and its brief on
appeal, the government expressly disavowed any intent
to repudiate its decision to place Fikre on the No Fly
List originally, maintaining that “there is no such invariable requirement for demonstrating mootness.”
Third, Fikre I emphasized that another reason the
government could not evade the voluntary cessation exception to mootness was because it had not “verified the
implementation of procedural safeguards conditioning
its ability to revise Fikre’s status on the receipt of new
information.” Id. at 1040. Likewise, the Courtright
Declaration provides no sign that any such procedural
safeguards have been implemented. To the contrary,
that Declaration refers to “applicable policies and procedures” as if static from the time Fikre was placed on
the No Fly List until now.
18a
The government nevertheless maintains that, by
providing that Fikre “will not be placed on the No Fly
List in the future based on the currently available information,” the Courtright Declaration “condition[s] its
ability to revise Fikre’s status on the receipt of new information.” That statement, however, does not ensure
that Fikre “will not be banned from flying for the same
reasons that prompted the government to add him to the
list in the first place.” Fikre I, 904 F.3d at 1040. Instead, the Declaration indicates only that Fikre “no
longer satisfie[s]” the government’s criteria, based on
information available now regarding Fikre’s current circumstances. (emphasis added). Should Fikre’s circumstances change back to what they were when he was
first placed on the No Fly List, he could be placed on the
list again “for the same reasons that prompted the government to add him to the list in the first place.” Id.
We disagree with the government’s contention that
the phrase “currently available information” “necessarily subsumes the information known” when Fikre
was first placed on the No Fly List and that any decision
to add him to the List again “would necessarily be based
on a new factual record.” The government insists elsewhere in its brief that it need not “declare that plaintiff
should not have been placed on the No Fly List even in
the past, based on the information available to the government at that time” because No Fly List decisions
“are highly fact-dependent assessments” based “on the
information available to the government at that time.”
(emphasis added). Likewise, in its motion to dismiss
Fikre’s Sixth Amended Complaint, the government
maintained that “watchlisting decisions are based on
current assessments of the risks posed by particular individuals” and that the Courtright Declaration ad-
19a
dressed only “the Government’s current assessment of
Plaintiff,” not its assessment at “the point at which
Plaintiff was originally nominated.” In light of these
additional statements, the government’s careful choice
of words in the sentence first quoted in this paragraph
appears to connote only that Fikre will not be placed on
the No Fly List now based on what he did in the past,
not that he would not be placed on the List if “a new factual record” showed that he was engaging in the same
or similar conduct once again.
In sum, the government has assured Fikre only that
he does not currently meet the criteria for inclusion on
the No Fly List. It has not “repudiated the decision”
to place Fikre on the list, nor has it identified any criteria for inclusion on the list that may have changed.
Thus, there is no reason to believe that the government
would not place Fikre on the list “for the same reasons
that prompted the government to add him to the list in
the first place.” Fikre I, 904 F.3d at 1040. As before,
“the government remains practically and legally ‘free to
return to [its] old ways’ ” the moment Fikre again meets
whatever criteria he satisfied initially. Id. at 1039 (alteration in original) (quoting W.T. Grant, 345 U.S. at
632).
Aside from relying on the Courtright Declaration,
the government also asserts that because Fikre’s “removal from the No Fly List is now five years old,”
“[w]hat may have appeared in the prior appeal to have
been a ‘tentative[]’ discretionary decision is now more
clearly an ‘entrenched’ agency action.” The government also contends this case is now moot because we
stated that “there is no bright-line rule for application
of the voluntary cessation doctrine.”
20a
These arguments do not fly. It is true, of course,
that there is no bright-line rule for applying the voluntary cessation doctrine, Fikre I, 904 F.3d at 1039, and
that the passage of time may support the conclusion that
the government has abandoned its allegedly illegal conduct for good, see, e.g., Bell v. City of Boise, 709 F.3d
890, 900 (9th Cir. 2013). But for the reasons just explained, the government’s decision to remove Fikre
from the No Fly List remains “an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy,” notwithstanding the passage of time since Fikre’s change of status. Fikre I, 904 F.3d at 1039-40. And even though
there is no bright-line rule for the application of the voluntary cessation doctrine as a general matter, this
Court did draw some applicable lines for this case in
Fikre I. Again, absent exceptions not at issue here,
“when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent
stages in the same case.” Arizona v. California, 460
U.S. 605, 618 (1983). Applying Fikre I’s analysis,
Fikre’s No Fly List claims are not moot.
B.
Subject Matter Jurisdiction
The government contends that, even if Fikre’s No
Fly List due process claims are not moot, we must affirm the district court’s dismissal of those claims on the
ground that 49 U.S.C. § 46110 divests the district court
of subject matter jurisdiction over those claims. Not
so.
Section 46110, as relevant here, concerns judicial review of orders issued by the TSA Administrator. Specifically, § 46110 states that “a person disclosing a substantial interest in an order issued by” the TSA Admin-
21a
istrator “under this part . . . may apply for review
of the order by filing a petition for review” in an appropriate court of appeals. 49 U.S.C. § 46110(a). “The
petition must be filed not later than 60 days after the
order is issued,” id., and the court of appeals “has exclusive jurisdiction to affirm, amend, modify, or set aside
any part of the order,” id. § 46110(c). So, if Fikre’s lawsuit challenges an order by the TSA Administrator, as
the government contends, then the district court would
lack jurisdiction over his claims. But if his lawsuit
challenges the conduct of another agency, such as the
Screening Center, then § 46110 is inapplicable.
To support its argument that Fikre’s claims are
barred by § 46110, the government relies on Kashem v.
Barr, 941 F.3d 358 (9th Cir. 2019). Kashem concerned
a lawsuit filed by a group of individuals on the No Fly
List challenging both the sufficiency of the procedures
for disputing their inclusion on the No Fly List and, substantively, their “continued inclusion on the No Fly
List.” Id. at 364, 367. After they were prevented in
2010 from boarding commercial flights, the plaintiffs
filed grievances through the DHS TRIP process and a
lawsuit alleging that their apparent inclusion on the
No Fly List violated their substantive due process
rights. See Latif v. Holder, 686 F.3d 1122, 1126 (9th
Cir. 2012).7 As a result of the Latif litigation, the government in 2015 revised the DHS TRIP procedures.
Kashem, 941 F.3d at 367. Those revised procedures
The Kashem and Latif appeals involved the same group of
plaintiffs and the same underlying lawsuit. The plaintiffs in Kashem were the four plaintiffs from Latif still on the No Fly List
after the government reevaluated their statuses in light of Latif.
Kashem, 941 F.3d at 367 & n.2.
7
22a
made the TSA Administrator alone—not the Terrorist
Screening Center—responsible for issuing a final order
maintaining a traveler on the No Fly List at the conclusion of the DHS TRIP process. Id. at 391.
Evaluating the Kashem plaintiffs’ challenge to their
continued No Fly List status under those revised procedures, the TSA Administrator “issued final orders maintaining each plaintiff on the list.” Id. at 367-68. The
Kashem plaintiffs—the subset of the plaintiffs from
Latif who were still on the No Fly List—then returned
to the district court to challenge their continued inclusion on the No Fly List. Id. at 367-68. The district
court dismissed their substantive due process claims for
lack of subject matter jurisdiction, citing § 46110. Id.
at 369.
This Court’s opinion in Kashem affirmed the dismissal. Id. at 390-91. We explained that, “[b]efore the
2015 revisions to the DHS TRIP procedures,” § 46110
did not bar district court review of a No Fly List order,
because “[the Screening Center]—not TSA—actually
review[ed] the classified intelligence information about
travelers and decide[d] whether to remove them from
the list.” Id. at 390 (quoting Latif, 686 F.3d at 1128).
Under the revised DHS TRIP procedures, however,
“the TSA Administrator is solely responsible for issuing
a final order maintaining a traveler on the No Fly List”
at the conclusion of the DHS TRIP process. Id. at 391.
The Screening Center submits only a recommendation
and supporting materials to the TSA Administrator, to
aid in that decision. Id. So, for an individual challenging a No Fly List decision made at the conclusion of the
DHS TRIP process, Kashem explained, “[i]t is no longer
the case” that “any remedy must involve [the Screening
23a
Center].” Id. Kashem thus held that § 46110 governed the plaintiffs’ suit challenging the TSA Administrator’s final order maintaining them on the No Fly List.
Id.
The government argues that “Kashem is squarely on
point.” It is not. Unlike the plaintiffs in Kashem,
Fikre is not challenging the TSA Administrator’s decision refusing to remove him from the No Fly List under
the DHS TRIP process. He is challenging the Screening Center’s decision to place him on the No Fly List in
the first place. 8
As Fikre explains in his briefing before this Court,
his challenge concerns “the entire watchlisting system
that led to his listing, including both the initial decision
Before the 2015 changes to the DHS TRIP process, Latif held
that § 46110 did not divest the district court of jurisdiction to hear
a substantive due process challenge to inclusion on the No Fly List.
686 F.3d at 1127. In so holding, Latif observed in a footnote that,
“[w]ith regard to the applicability of § 46110, there is no meaningful
difference between the ‘initial placement’ of a name on the List and
‘continued placement’ or ‘removal’ ” because (at that time) “[the
Screening Center] decide[d] both whether travelers are placed on
the List and whether they stay on it,” even in the course of the DHS
TRIP process. Id. at 1127 n.6; see id. at 1125-26. After the 2015
revisions to the DHS TRIP process, however, there is a “meaningful difference” between an individual’s “initial placement” on the
No Fly List, carried out by the Screening Center, and an individual’s “continued placement” or “removal” pursuant to DHS TRIP,
carried out by the TSA Administrator. Id. at 1127 n.6. In its
brief in Kashem, the government made exactly that distinction, arguing that the plaintiffs there were “not challenging their inclusion
on the No Fly List in the first instance” but rather “their continued
inclusion on the No Fly List following review under the revised
DHS TRIP procedures.” Answering Brief for Appellees at 68,
Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) (No. 17-35634).
8
24a
and process used to place him on the No Fly List.”
(emphasis added). That characterization of Fikre’s action is borne out by his Seventh Amended Complaint.
With respect to his procedural due process claim, Fikre
alleges that the government “placed Plaintiff ’s name in
the Terrorist Screening Database and on its No Fly List
subcomponent” and asserts that he “has experienced
economic, reputational, physical, and liberty harms due
to Defendants’ placement of his name” on those lists.
With respect to his substantive due process claim, Fikre
alleges, among other things, that the government
“placed Plaintiff on the TSDB and No Fly List despite
lacking any reasonable suspicion that Plaintiff is a
known, suspected, or potential terrorist” and that the
government relies on “race, ethnicity, national origin,
religious affiliation, and First Amendment protected activities as factors supporting placement on the TSDB
and No Fly List.” (emphasis added). By contrast,
Fikre’s complaint mentions the DHS TRIP process very
little, spending just two paragraphs on Fikre’s engagement with that redress process. 9
Fikre’s complaint notes that the TSA reaffirmed in early 2015
that his name would remain on the No Fly List. But the complaint
does not purport to challenge that decision. And although Fikre’s
complaint mentions the government’s “actions in placing and keeping” him on the No Fly List, (emphasis added), our understanding
is that those references, in the context of Fikre’s full complaint, concern the Screening Center’s own authority, independent of the DHS
TRIP process, to remove individuals from the No Fly List. That
independent authority is both alleged in the complaint and confirmed by the government’s watchlisting overview document, which
states that “[the Screening Center] regularly reviews data in the
TSDB” and that, “[i]f it is determined during the quality assurance
reviews that a change should be made to a record in the TSDB,” the
Screening Center “takes steps to clarify the record,” including
9
25a
In sum, unlike the plaintiffs in Kashem, Fikre does not
challenge the TSA Administrator’s decision made at the
end of the DHS TRIP process or seek a court order requiring the TSA Administrator to remove him from the
No Fly List. Rather, his claims concern the Screening
Center’s role in assigning him to the No Fly List in the
first place. As in Ibrahim v. Department of Homeland
Security, 538 F.3d 1250 (9th Cir. 2008), “putting [Fikre’s]
name on the No-Fly List was an ‘order’ of an agency not
named in section 46110,” and so “the district court retains
jurisdiction to review that agency’s order,” id. at 1255; see
also Mokdad v. Lynch, 804 F.3d 807, 811-12 (6th Cir. 2015)
(distinguishing between a plaintiff ’s challenge to “the adequacy of the redress process,” which “amount[s] to a
challenge to a TSA order,” and “a direct challenge to his
placement by [the Screening Center] on the No Fly
List”).10
“[a]dditions, modifications, and removals.” In any event, to the degree Fikre’s complaint can, contrary to our own interpretation, be
read to challenge the TSA’s decision not to remove him from the No
Fly List as part of DHS TRIP review, the district court, and this
Court, would lack jurisdiction over that aspect of Fikre’s case.
10
The government also contends that Kashem erred by distinguishing, for purposes of § 46110, procedural due process claims
challenging the sufficiency of DHS TRIP’s procedures and substantive challenges to the decision in a final TSA order. 941 F.3d at 391
n.16. As a three-judge panel, we would be bound by this distinction
in Kashem, were it relevant. Scalia v. Emp. Sols. Staffing Grp.,
LLC, 951 F.3d 1097, 1103 (9th Cir. 2020). But it is not. Here, both
Fikre’s procedural due process and substantive due process claims
challenge the Screening Center’s decision to place him on the No Fly
List, not an order of the TSA Administrator.
26a
C.
Stigma-Plus Procedural Due Process Claim
Fikre also appeals the district court’s dismissal of his
complaint for failure to state a cognizable stigma-plus
procedural due process claim. We remand Fikre’s
stigma-plus procedural due process claim to the district
court to consider in the first instance whether Fikre
states a viable procedural due process claim when his
placement on the No Fly List is also considered.
To state a procedural due process claim, a plaintiff
must allege “(1) a liberty or property interest protected
by the Constitution; (2) a deprivation of the interest by
the government; [and] (3) lack of process.” Wright v.
Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (alteration in
original) (quoting Portman v. County of Santa Clara,
995 F.2d 898, 904 (9th Cir. 1993)). Although “[d]amage
to reputation alone is not actionable,” Hart v. Parks, 450
F.3d 1059, 1069 (9th Cir. 2006) (quoting Paul v. Davis,
424 U.S. 693, 711-12 (1976)), such reputational harm
caused by the government can constitute the deprivation of a cognizable liberty interest if a plaintiff “was
stigmatized in connection with the denial of a ‘more tangible’ interest,” id. at 1069-70 (quoting Paul, 424 U.S.
701-02). Under this “stigma-plus” test, a plaintiff who
has suffered reputational harm at the hands of the government may assert a cognizable liberty interest for
procedural due process purposes if the plaintiff “suffers
stigma from governmental action plus alteration or extinguishment of ‘a right or status previously recognized
by state law.’ ” Humphries v. County of Los Angeles,
554 F.3d 1170, 1185 (9th Cir. 2009) (quoting Paul, 424
U.S. at 711), rev’d in part on other grounds, 562 U.S. 29
(2010)).
27a
Here, the district court permitted Fikre to amend his
complaint a seventh time with respect to the theory that
he suffered a “stigma-plus” reputational injury by virtue
of his alleged inclusion in the Database. And the district court acknowledged that, “if an individual were to
suffer a stigma as a result of their placement on the No
Fly List and then were denied the ability to travel due
to the No Fly List,” that allegation might state a viable
stigma-plus claim. But the district court held the No
Fly List-related claims moot and so viewed the “only
stigmatic injury for which Mr. Fikre ha[d] established
standing” as “the 2016 reputational injury he allegedly
suffered as a result of the Mecca and San Diego trips,”
stemming from his inclusion in the Database. With the
No Fly List claims out of the case, the district court concluded that any restriction on Fikre’s ability to travel
was “far too attenuated in both time and circumstance
to be deemed as having occurred ‘in connection with’ his
2016 reputational injury,” and so dismissed the stigmaplus claims.
But we have concluded that the district court erred
by dismissing as moot Fikre’s claims pertaining to his
placement on the No Fly List. See supra Part II.A.
Considering Fikre’s placement on the No Fly List and
his alleged presence in the broader Database together,
both the reputational injuries and the “plus” factors at
issue in Fikre’s case may be more numerous and more
substantial than the district court believed.
Generally, “a federal appellate court does not consider an issue not passed upon below,” although we have
discretion to do so “where the issue presented is a
purely legal one and the record below has been fully developed.” Davis v. Nordstrom, Inc., 755 F.3d 1089,
28a
1094 (9th Cir. 2014) (quoting Quinn v. Robinson, 783
F.2d 776, 814 (9th Cir. 1986)). Because both the district court’s decision and the parties’ briefs on appeal focused their stigma-plus analysis on the stigma and plus
factors related to Fikre’s 2016 reputational injuries
stemming from his status as an individual listed in the
Database—not on those factors as they related to the
ramifications of his previous No Fly List status—we
choose not to exercise that discretion in this case. We
therefore vacate the district court’s dismissal of Fikre’s
stigma-plus claim and remand for the district court to
consider whether Fikre has a viable procedural due process claim when his No Fly List-related injuries are also
considered.
III. Scope of Remand
We briefly clarify what claims will be before the district court on remand.
Fikre’s Seventh Amended Complaint asserted two
causes of action—a Fifth Amendment procedural due
process claim and a Fifth Amendment substantive due
process claim. Each of those causes of action pertains
both to his past placement on the No Fly List and to his
alleged current inclusion in the Database.
Fikre raised two issues in his opening brief on appeal.
First, Fikre challenged the district court’s dismissal as
moot of his No Fly List-related claims. Second, Fikre
challenged the district court’s dismissal for failure to
state a claim of his stigma-plus procedural due process
claim, relating to his alleged inclusion in the Database.
Because Fikre did not challenge the district court’s dismissal of his substantive due process claim stemming
from his inclusion in the Database, any challenge to that
29a
decision has been waived. See, e.g., Shivkov v. Artex
Risk Sols., Inc., 974 F.3d 1051, 1061 (9th Cir. 2020).
But by appealing the district court’s mootness ruling
in its entirety, Fikre necessarily preserved both his substantive and non-stigma-related procedural due process
challenges to his placement on the No Fly List. The
district court ruled on neither challenge on the merits,
given its mootness determination. By challenging that
determination, Fikre was requesting reinstatement of
his operative complaint as to both due process challenges to his placement on the No Fly List; by reversing
as to mootness, we confirm that the merits of both challenges as alleged in the operative complaint were
properly before the district court and so are to be decided.
The government nonetheless suggested at oral argument that Fikre entirely relinquished any substantive
due process claim on appeal. To support that contention, the government pointed to Fikre’s statement in his
reply brief, in response to the government’s jurisdictional arguments, that his appeal “does not concern
Fikre’s substantive due process claims” because the district court dismissed them as moot, and that, “[a]s relevant to this appeal, Fikre challenges the No Fly List
(and the broader TSDB) on procedural due process
grounds.” That statement did not waive Fikre’s substantive due process claim as it pertains to his placement
on the No Fly List. Rather, as Fikre’s reply brief recognized, the merits of Fikre’s No Fly List-specific
claims, whether substantive or procedural, are not before this Court because the district court dismissed
them as moot and never ruled on them substantively.
Therefore, “[a]s relevant to this appeal” on the merits,
30a
only the district court’s dismissal of Fikre’s separate
stigma-plus procedural due process claim was implicated.
As explained, we now hold that the district court
erred by dismissing Fikre’s No Fly List claims as moot
and that § 46110 does not divest the district court of jurisdiction over those claims. Both Fikre’s substantive
due process and non-stigma-related procedural due process claims pertaining to his placement by the Screening
Center on the No Fly List, as well as his stigma-plus
procedural due process claims pertaining both to his
placement on the No Fly List and his alleged placement
in the Database, will be before the district court on remand. Any substantive due process claim pertaining
to his placement in the Database will not.
IV. Conclusion
We reverse the district court’s dismissal on mootness
grounds of Fikre’s substantive due process and nonstigma-related procedural due process No Fly List
claims. We also vacate the district court’s dismissal of
Fikre’s stigma-plus procedural due process claim and
remand to the district court to consider, in the first instance, whether Fikre has stated a viable stigma-plus
procedural due process claim considering both his past
placement on the No Fly List and his alleged inclusion
in the Database.
REVERSED, VACATED, and REMANDED.
31a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 16-36072
D.C. No. 3:13-cv-00899-BR
YONAS FIKRE, PLAINTIFF-APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION; JEFFERSON
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 OFFICIAL AND INDIVIDUAL CAPACITY); NATIONAL SECURITY AGENCY;
UNITED STATES OF AMERICA,
DEFENDANTS-APPELLEES
Argued and Submitted: May 9, 2018
Portland, Oregon
Filed: Sept. 20, 2018
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
32a
OPINION
Before: JOHNNIE B. RAWLINSON, MILAN D. SMITH,
JR.,* and MORGAN CHRISTEN, Circuit Judges.
Opinion by Judge CHRISTEN
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
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.
1
At this stage of the proceedings, “[w]e accept as true all wellpleaded 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).
*
33a
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.
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
34a
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 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 repu-
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.
2
35a
tation 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 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]”
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).
3
36a
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)).
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 out-
37a
come.’ ” 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 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.
38a
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 “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 noncitizens 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 vig-
39a
orously 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 ‘costeffectiveness’ ” 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-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
40a
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 “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 statu-
41a
tory 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 (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
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.
4
42a
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 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.
43a
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
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
44a
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.
CONCLUSION
We reverse the district court’s dismissal of Fikre’s
due process claims and remand for further proceedings.
REVERSED and REMANDED.
45a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:13-cv-00899-MO
YONAS FIKRE, PLAINTIFF
v.
CHRISTOPHER WRAY, DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION (SUE IN HIS OFFICIAL
CAPACITY), ET AL., DEFENDANTS
Filed:
Aug. 12, 2020
OPINION AND ORDER
MOSMAN, J.,
This case comes before me on Defendants’ Motion to
Dismiss [ECF 146] Plaintiff Yonas Fikre’s Seventh
Amended Complaint [ECF 145]. Defendants move to
dismiss Mr. Fikre’s latest complaint for lack of subject
matter jurisdiction (due to lack of standing) and for failure to state a claim. While I find that Mr. Fikre has
standing, I hold that his complaint fails to state a claim.
Therefore, for the reasons explained below, I GRANT
Defendants’ motion and I DISMISS this case with prejudice.
BACKGROUND
Mr. Fikre began this action when he filed his original
complaint in this court on May 30, 2013. [ECF 1]. Then,
46a
as now, Mr. Fikre’s grievance centers around alleged injuries sustained as a result of the Government’s decision
to list him in the Terrorism Screening Database
(“TSDB”) and to place him on the No Fly List. The
TSDB is the federal government’s integrated list of
known and suspected terrorists. Watchlisting Overview [ECF 130-1] at 1-2. The No Fly List is a subset of
the TSDB that bars those listed on it from boarding
flights on U.S. carriers or any flight that enters U.S. airspace. Id. at 2. Persons listed in the TSDB but not included on the No Fly List are generally permitted to
travel by air, but may be subject to additional security
screening. Id.
Over the last seven years and in as many amended
complaints, much has transpired in this case. The factual circumstances have changed, claims have fallen
away, and theories have been rejected. The case has
made its way from the District Court to the Ninth Circuit and back again. Here, now, Mr. Fikre has been
given leave to file a Seventh Amended Complaint to advance one final remaining theory: that he has suffered
a reputational injury in violation of his Fifth Amendment right to due process. As will be described in more
detail below, Mr. Fikre’s Seventh Amended Complaint
contains new allegations which purport to accomplish
this goal. 1 But the complaint (and Mr. Fikre’s argument in response to Defendants’ present motion) also
attempts to repackage old allegations—which formed
the basis of claims and theories that have already been
While much of the previous litigation in this case has centered
around Mr. Fikre’s status on the No Fly List, these new allegations
post-date Mr. Fikre’s removal from the No Fly List and focus on his
inclusion in the TSDB more generally, which allegedly continues.
1
47a
rejected by this court—into the remaining reputational
injury theory. For the cold reader, it can be hard to
distinguish ground that has already been decisively covered from the new, limited issues that are the principal
concern here. With that challenge in mind, I provide
an abbreviated procedural history of this case, beginning with the circumstances of Mr. Fikre’s successful
appeal to the Ninth Circuit and the procedural and factual developments that have occurred since.2
I. Procedural History
On November 29, 2015, Mr. Fikre filed his Fifth
Amended Complaint [ECF 87] and Defendants moved
to dismiss [ECF 90]. In that complaint, Mr. Fikre asserted sixteen different claims for relief, on constitutional, statutory, and common law grounds. Fifth Am.
Compl. [87] at 23-40. Among those many claims, Mr.
Fikre alleged that the Government’s decision to place
and retain him on the No Fly List violated his Fifth
Amendment rights to substantive due process (claim
one) and procedural due process (claim three) by infringing his liberty interest in international travel. Id.
at 23-24. Additionally, as part of his procedural due process claim only, Mr. Fikre alleged that his placement on
the No Fly List also infringed his protected liberty interest “in his reputation and in freedom from governmentassigned stigmas.” Id. at 25.
For a comprehensive procedural history of the events that predate the filing of the Fifth Amended Complaint and the Ninth Circuit’s decision, see Judge Anna J. Brown’s Opinion and Order
(“O&O”) [ECF 128] at 2-12. Judge Brown was the judge on this
case until July 15, 2019. Notice [ECF 134].
2
48a
On May 9, 2016, before the District Court had ruled
on Defendants’ motion to dismiss, Defendants filed a notice with the court representing that Mr. Fikre had been
removed from the No Fly List. Notice [ECF 98] at 1.
As a result, the court granted Defendants’ motion and
dismissed Mr. Fikre’s due process claims as moot. Op.
and Order (“O&O”) [ECF 105] at 19-27.3 Mr. Fikre appealed the dismissal of his due process claims. See
O&O [128] at 11. 4
On September 20, 2018, the Ninth Circuit issued an
opinion in which it reversed the District Court’s holding
that Mr. Fikre’s substantive and procedural due process
claims were moot. Fikre v. FBI, 904 F.3d 1033, 1041
(9th Cir. 2018). Citing the voluntary cessation doctrine, the Ninth Circuit held that the Government’s disclosure that Mr. Fikre was no longer on the No Fly List
was insufficient, on its own, to ensure that the Govern3
Judge Brown also dismissed with prejudice claim four (freedom
of association claim alleging that Defendants attempted to coerce
Mr. Fikre into becoming a government informant by offering to remove him from the No Fly List), claim twelve (Fourth Amendment
claim alleging the Government impermissibly searched and seized
Mr. Fikre’s private communications), claim thirteen (alleged violations of FISA), claim fourteen (alleged violations of the Stored Communications Act), claim fifteen (alleged violations of the Wiretap
Act), and claim sixteen (alleged violations of Federal Rule of Criminal Procedure 41(g)). O&O [105] at 27-29, 35, 42, 45-46. Claim two
and claims five through eleven related exclusively to a subset of defendants who were sued in their individual capacities. Id. at 4 n.1.
After Mr. Fikre filed a notice of non-objection to the dismissal of
these defendants [ECF 106] the court dismissed them without prejudice. Order [ECF 107].
4
Mr. Fikre also appealed the dismissal of his Fourth Amendment
claim (claim twelve), but the Ninth Circuit affirmed the dismissal of
that claim. Fikre v. FBI, 904 F.3d 1033, 1036 n.2 (9th Cir. 2018).
49a
ment’s allegedly illegal conduct in placing and retaining
Mr. Fikre on the No Fly List would not recur. Id. at
1037-41.
Relevant for our purposes here, at the conclusion of
its analysis the Ninth Circuit stated the following:
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]”. . . . 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 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.
Id. at 1040 (emphasis added) (citations omitted).
The Ninth Circuit remanded the case for further proceedings, id. at 1041, and Mr. Fikre moved the District
Court for leave to file a sixth amended complaint, [ECF
125]. The court granted Mr. Fikre’s motion to amend
only in part. O&O [128] at 30. It permitted Mr. Fikre
to amend his complaint to remove previously resolved
claims and to plead additional factual allegations related
50a
to his due process claims. Id. But it did not permit
amendment to add any new claims, including a proposed
claim under the Religious Freedom Restoration Act
(“RFRA”) (which closely resembled Mr. Fikre’s previously dismissed freedom of association claims). Id.
On May 19, 2019, Mr. Fikre filed his Sixth Amended
Complaint, in which he reasserted and updated his procedural and substantive due process claims. [ECF 129]
at 32-35.5 Defendants again moved to dismiss. [ECF
130]. In apparent reaction to the Ninth Circuit’s decision, Defendants attached a declaration to their motion
which stated, in part, that “[Mr. Fikre] was removed
from the No Fly List upon the determination that he no
longer satisfied the criteria for placement on the No Fly
List. He will not be placed on the No Fly List in the
future based on the currently available information.”
Defs.’ Mot. Ex. B [ECF 130-2] (“Courtright Decl.”) ¶ 5.
Among other arguments, Defendants claimed in their
motion that this declaration—specifically, the assurance
Mr. Fikre’s due process claims, as they appeared in the Sixth
Amended Complaint, had evolved in some questionable ways given
the District Court’s limitation that only new factual allegations could
be added. First, in contrast to his Fifth Amended Complaint, Mr.
Fikre alleged that his Fifth Amendment rights were violated not just
through his inclusion on the No Fly List, but also through his more
general inclusion as a listee in the TSDB. Sixth Am. Compl. [126]
at 32-36. Second, he appeared to allege the deprivation of a variety
of additional liberty interests, beyond the previously alleged deprivations of his travel-related and reputational interests. See id.
¶¶ 117, 121, 139-40. It was unclear if those allegations were part of
the reputational-injury claim, or if they were an attempt to advance
new theories or to repackage previously dismissed claims into the
due process claims. Because, as discussed below, I dismissed the
Sixth Amended Complaint on jurisdictional grounds, I did not reach
the question of the propriety of these additional allegations.
5
51a
that Mr. Fikre would not be re-added to the No Fly List
based on “currently available information”—sufficed to
moot Mr. Fikre’s due process claims. Defs.’ Mot. [130]
at 12-13. After Defendants filed their motion, the case
was reassigned to me. Notice [134].
On November 11, 2019, I heard oral argument on Defendants’ motion and ruled from the bench. Min. of
Proceedings [ECF 141]. In light of Defendants’ declaration that Mr. Fikre would not be returned to the No
Fly List based on any “currently available information,”
I held that Mr. Fikre’s due process claims—insofar as
they were based on a theory of present or future injury
to a travel-related liberty interest—did not present a
live case or controversy and I dismissed them, with prejudice, on justiciability grounds. Tr. [ECF 143] at 4041. 6 But while I agreed that Defendants’ declaration
dispensed with Mr. Fikre’s travel-related theory of injury, I did not agree that it would be sufficient to remedy
a reputational injury. Id. at 41-42. The problem, however, was that Plaintiff ’s Sixth Amended Complaint did
not sufficiently allege a cognizable reputational injury.
Id. Nevertheless, despite Mr. Fikre’s multiple previous opportunities to amend his complaint, I granted him
leave to file a seventh amended complaint on the “sole
remaining theory” that he has suffered a reputational
At oral argument I framed that decision using standing terminology, but key to my holding was that Defendants had met their
burden under the voluntary cessation doctrine as laid out by the
Ninth Circuit’s decision in this case. See Tr. [143] at 40-41 (“I take
into account that [Mr. Fikre] has been taken off the [No Fly] List
and that a serious barrier has been put in place to putting him back
on the list—that is, the declaration that he won’t be put back on the
list based on anything currently known.”).
6
52a
injury in violation of his Fifth Amendment rights. Id.
at 42-44.
II. The Seventh Amended Complaint
Mr. Fikre filed his Seventh Amended Complaint on
December 18, 2019. [ECF 145]. The updated complaint adds approximately forty new paragraphs of allegations but is otherwise identical to the Sixth Amended
Complaint. See Seventh Am. Compl. [145] ¶¶ 101, 114153; Tr. [ECF 163] at 3-5.
The new allegations focus on two separate trips taken
by Mr. Fikre: (1) a 2016 trip to Mecca to complete the
Hajj in which Mr. Fikre traveled with fellow members
of the Seattle-area Muslim community, and (2) a 2016
family trip to San Diego. Seventh Am. Compl. [145]
¶¶ 114, 141. Mr. Fikre alleges that during the course of
traveling through U.S. airports as part of these two
trips, the Government stigmatized him (and thus injured
his reputation) by subjecting him to repeated, nonrandom, intensive security screening in front of his cotravelers, which led those co-travelers to believe that
the Government suspected Mr. Fikre of being a terrorist. See generally id. ¶¶ 114-153. Mr. Fikre alleges he
has suffered a variety of harms as a result of his injured
reputation. See, e.g., id. ¶¶ 138-40.
More specifically, Mr. Fikre alleges a chain of causation that breaks down into four parts. First, Mr. Fikre
alleges that while he was no longer on the No Fly List
at the time of the two 2016 trips, he remained a listee on
the TSDB subject to non-random, intensive screenings
at airports. Id. ¶¶ 35, 113, 116-17. Second, Mr. Fikre
alleges that on both trips, because of his TSDB status,
he was subjected to repeated, intensive security screen-
53a
ings in front of his community members (the Mecca trip)
and his family members (the San Diego trip). Id.
¶¶ 117-18, 128-29, 143-44. Third, because the Muslim
community is familiar with the consequences of being
listed on the TSDB, including being subjected to intensive screenings at airports, the Muslim community
members who witnessed Mr. Fikre’s treatment at airport security “deduced his TSDB status from how Defendants treated him,” or, more generally, “could tell
that the federal government believed Fikre was dangerous.” Id. ¶¶ 119, 124. Fourth, because certain community members and family believed that the federal government suspected Mr. Fikre of being a terrorist, they
shunned him in various ways and the stigma spread
throughout Mr. Fikre’s local and religious community.
Id. ¶¶ 120-21, 127, 132-33, 138-40.
Mr. Fikre seeks a variety of declaratory and injunctive relief, including sixteen specific injunctions. Id. at
46-49. He asserts that his reputational injury can only
be cured if Defendants “repudiate in its entirety the decision to add Fikre to the TSDB with a No Fly List annotation and maintain him there for approximately five
years.” Id. at 49.
DISCUSSION
Defendants move to dismiss the Seventh Amended
Complaint on two main grounds: (1) that Mr. Fikre
lacks standing, and (2) that he fails to state either a substantive due process or a procedural due process claim.
Defs.’ Mot [146] at 3, 15, 19. I take each argument in
turn.
54a
I.
Standing
Standing is a remedy-specific inquiry. See Lyons v.
City of Los Angeles, 461 U.S. 95, 105, 109 (1983) (holding
that the plaintiff had standing to pursue damages for his
past injury but lacked standing to pursue injunctive relief to prevent future harm). The general rule of standing is that a plaintiff must allege (1) a concrete, particularized and personal injury that is (2) fairly traceable to
defendant’s allegedly unlawful conduct, and (3) is redressable by the requested relief. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992).
Where the plaintiff alleges a threatened or future injury that has not yet occurred, the potential injury must
be “certainly impending.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409 (2013) (“[W]e have repeatedly
reiterated that threatened injury must be certainly impending to constitute injury in fact, and that [a]llegations of possible future injury are not sufficient.”) (internal quotations omitted). Relatedly, “[p]ast exposure to
harmful or illegal conduct does not necessarily confer
standing to seek injunctive relief if the plaintiff does not
continue to suffer adverse effects.” Mayfield v. United
States, 599 F.3d 964, 970 (9th Cir. 2010) (citation omitted).
Finally, when a defendant brings a standing challenge against an amended complaint that was filed subsequent to the original commencement of the action, the
proper focus in determining jurisdiction is the factual
lay of the land at the time the complaint under consideration was filed, rather than the facts as they existed at
the time the original complaint was filed. Northstar
Financial Advisors, Inc. v. Schwab Investments, 779
F.3d 1036, 1044 (9th Cir. 2015).
55a
Here, Defendants spend the bulk of their briefing arguing that Mr. Fikre has not shown that there is a “certainly impending” risk of a future injury to his reputation sufficient to confer standing for any prospective relief. See Mot. [146] at 4-7. Fair enough: many of the
specific injunctions that Mr. Fikre requests are forward
looking. See, e.g., Seventh Am. Compl. [145] at 48 (requesting an injunction that would require Defendants to
provide written notice if they were to re-add Mr. Fikre
to the No Fly List). And to the extent Mr. Fikre seeks
prospective relief, I agree with Defendants that Mr.
Fikre has not alleged a certainly impending risk of a future reputational injury. But the allegations in the
complaint concerning the reputational injury that purportedly resulted from the 2016 Mecca and San Diego
trips do not describe a future, yet-to-be-realized harm,
they describe a harm that has already occurred and is
ongoing. The standing inquiry for such a present, ongoing harm is the standard three-prong analysis of injury, causation, and redressability.
A. Injury-in-fact
Injury to one’s reputation can be a cognizable injuryin-fact to confer standing to bring suit. See Meese v.
Keene, 481 U.S. 465, 474-76, 479 n.14 (1987) (“The risk
of this reputational harm . . . is sufficient to establish appellee’s standing. . . . ”); Robins v. Spokeo,
867 F.3d 1108, 1112 (9th Cir. 2017) (“[H]arm to one’s
reputation . . . may be sufficient for Article III
standing.”).
Here, Mr. Fikre has alleged that the Government
stigmatized him and that his reputation within his
community—and even within his own family—has suffered. He has alleged specific facts that show that his
56a
injured reputation has manifested in real consequences.
For example, he alleges that members of his local congregation have opposed him leading prayer or calling
the adhan and refuse to share their names with him.
Seventh Am. Compl. [145] ¶¶ 136, 138. That community members have stopped or reduced their patronage
of his restaurant. Id. ¶ 139. That friends and even
family members have ended their relationships with
him. Id. ¶¶ 140, 146-47. And he has alleged that his
reputation continues to suffer and that his community
and family persist in shunning him. Id. ¶ 151.
Therefore, I hold that Mr. Fikre has sufficiently alleged a reputational injury that constitutes a concrete,
particularized injury-in-fact.
B. Causation
The question here is whether there is a “fairly traceable” causal connection between Mr. Fikre’s injured
reputation and Defendants’ alleged unlawful conduct:
listing Mr. Fikre in the TSDB without due process. See
Lujan, 504 U.S. at 560. “[T]he causal connection put
forward for standing purposes cannot be too speculative, or rely on conjecture about the behavior of other
parties, but need not be so airtight at this stage of litigation as to demonstrate that the plaintiffs would succeed on the merits.” Ocean Advocates v. U.S. Army
Corps of Eng’rs, 402 F.3d 846, 860 (9th Cir. 2005) (citation omitted); see also Maya v. Centex Corp., 658 F.3d
1060, 1070 (9th Cir. 2011) (“A causation chain does not
fail simply because it has several “links,” provided those
links are ‘not hypothetical or tenuous’ and remain ‘plausib[le].’ ”) (citation omitted).
57a
As described above in the background section, Mr.
Fikre alleges a four-part causal chain between Defendants’ conduct and his injured reputation. I hold that
Mr. Fikre’s allegations at each part are plausible and
thus there is a “fairly traceable” causal connection between the alleged injury and Defendants’ alleged conduct that is sufficient for standing purposes.
There is no real dispute that the allegations regarding the first, second, and fourth steps in the causal chain
are plausible. First and second, it is plausible that despite being removed from the No Fly List, Mr. Fikre remained a listee of the TSDB subject to intensive screening when traveling through airports, and that he was so
screened when he traveled in 2016. Fourth, it is plausible that someone’s community and family might shun
him if it were revealed that the government suspected
that person of being a terrorist.
Defendants focus on the third step, where Mr. Fikre
alleges that members of his community and family discerned that the Government suspected him of being a
terrorist after observing the intensive security screening that Mr. Fikre received at the airport. Defendants
argue that Mr. Fikre “cannot establish that the Government’s placement of him on the No Fly List has caused
the alleged harms to his reputation, because the Government does not disclose watchlist status publicly” and because “the disclosure of his former No Fly List status
and subsequent removal was made publicly available
through this lawsuit which [Mr. Fikre] brought.” Mot.
[146] at 8 (citation omitted).
Taking Defendants’ second argument first, Mr. Fikre’s
reputational allegations concern his alleged TSDB listee
status, not his No Fly List status, so the argument is
58a
inapposite—there has been no public disclosure one way
or the other in this lawsuit with respect to Mr. Fikre’s
possible TSDB status. As to their first argument, that
the Government does not publicly disclose watchlist status, Defendants make this argument more fully when
addressing the merits of Mr. Fikre’s stigma-plus claim
(which I discuss at length below). In short, they argue
that the Government can only be causally connected to
a reputational injury when the Government stigma results from an “official disclosure” of information. See
id. at 8, 21. But Defendants cite no authority that, for
standing purposes, a reputational injury is only fairly
traceable to an official government disclosure of information. Nor would such a requirement make sense.
The Government can surely stigmatize someone through
its conduct, official or not. For example, it could stigmatize someone as a possible criminal through a false
arrest conducted in public view.
Rather, the inquiry here is whether the allegations
regarding this third step are plausible. I think they
are. It is common knowledge for Americans who travel
that airport security is tight and that anyone might be
randomly subject to additional, more invasive screening
upon passing through security. But while it might be
unremarkable to see a member of your traveling party
pulled aside for extra screening while passing through
security, eyebrows would surely raise if that same person were repeatedly subjected to intense scrutiny, including at the gate (where people are not routinely rescreened) and at subsequent airports throughout the
course of the journey. See Seventh Am. Compl. [145]
¶¶ 118, 122-23. I also find it plausible that those of
Muslim faith living in America might be especially sensitive and aware of security procedures when traveling,
59a
given the pervasive and harmful stereotypes in our society that broadly associate Muslims with terrorism. 7
Therefore, I find it plausible that Mr. Fikre’s co-travelers,
after viewing how he was treated, could come to the conclusion that the Government believed Mr. Fikre was potentially a terrorist, or at least a dangerous person. 8
C.
Redressability
Having sufficiently plead an injury that is fairly
traceable to Defendants’ conduct, the only question remaining is whether that injury is redressable by the requested relief. Among other relief, Mr. Fikre seeks an
injunction which would require that “Defendants repudiate in its entirety the decision to add Fikre to the
TSDB with a No Fly List annotation and maintain him
there for approximately five years.” Seventh Am.
Compl. [145] at 49. This injunction—and this one
only—would redress Mr. Fikre’s injured reputation and
was explicitly contemplated by the Ninth Circuit in its
recent decision in this case. See Fikre v. FBI, 904 F.3d
1033, 1040 (9th Cir. 2018) (stating that any reputational
injury to Mr. Fikre would not be redressed “absent an
acknowledgement by the government that . . . Fikre
did not belong on the [watch]list”).
See Michael T. Luongo, Traveling While Muslim Complicates
Air Travel, N.Y. Times (Nov. 7, 2016), https://www.nytimes.com/
2016/11/08/business/traveling-while-muslimcomplicates-air-travel.
html.
8
It does not matter whether his co-travelers believed specifically
that Mr. Fikre was a listee on the TSDB; it is enough that his reputation suffered because his co-travelers believed the Government
suspected him of being a dangerous person or possible terrorist.
Mr. Fikre’s alleged TSDB status is only relevant here because it purportedly set this causal chain in motion.
7
60a
In sum, Mr. Fikre has alleged injury, causation, and
redressability sufficient to confer standing for an ongoing reputational injury for which he may seek an injunction that would require the Government to repudiate its
purported decision to list him in the TSDB.
II.
Whether the Seventh Amended Complaint States
a Claim
A.
Legal Standard
To survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A pleading that offers only “ ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’ ” Id. (quoting Twombly,
550 U.S. at 555).
B. Substantive Due Process Claim
In his response to Defendants’ motion, Mr. Fikre
seeks to “incorporate [his] prior substantive due process
arguments made in response to Defendants’ prior motion to dismiss” rather than provide any new briefing on
why the particular substantive due process claim alleged in his Seventh Amended Complaint should survive
Defendants’ current motion. Resp. [152] at 25. That
won’t cut it. If I had found the arguments made in Mr.
Fikre’s last round of briefing compelling, I would not
have granted Defendants’ previous motion to dismiss.
I thus decline to take up his request to revisit the arguments made in his last round of briefing.
61a
Regardless, I am persuaded by Defendants’ argument that Plaintiff states no substantive due process
claim in his Seventh Amended Complaint because he alleges no facts that show “conscience shocking” behavior
by Defendants that resulted in the deprivation of a reputational liberty interest. See Mot. [146] at 15-18; see
also Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir.
2006) (“[I]n order to establish a constitutional violation
based on substantive due process, [a plaintiff ] must
show both a deprivation of her liberty and conscience
shocking behavior by the government.”). I therefore
DISMISS Plaintiff ’s substantive due process claim with
prejudice.
C.
Procedural Due Process Claim
“To state a procedural due process claim, [a plaintiff ]
must allege ‘(1) a liberty or property interest protected
by the Constitution; (2) a deprivation of the interest by
the government; [and] (3) lack of process.’ ” Wright v.
Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (citation
omitted).
An injured reputation, by itself, is not a liberty deprivation that can sustain a procedural due process claim.
Hart v. Parks, 450 F.3d 1059, 1069 (9th Cir. 2006) (citing
Paul v. Davis, 424 U.S. 693, 711-12 (1976)). If, however, a plaintiff is “stigmatized in connection with the
denial of a ‘more tangible’ interest” then the plaintiff
may advance what has become known as a “stigma-plus”
claim. Id. (citing Paul, 424 U.S. at 701-02); see also Ulrich v. City and County of San Francisco, 308 F.3d 968,
982 (9th Cir. 2002).
According to the Ninth Circuit, there are two independent ways that a plaintiff can make out a stigma-plus
62a
claim. The first route requires the plaintiff to “show
that the injury to his reputation was inflicted in connection with the deprivation of a federally protected right.”
Hart, 450 F.3d at 1070. The second route requires the
plaintiff to “show that the injury to reputation caused
the denial of a federally protected right.” Id.; see also
Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169
F.3d 636, 645 (9th Cir. 1999). 9 In either case, a legal
right is sufficiently deprived or altered for the purposes
of a stigma-plus claim when the plaintiff shows she “legally [cannot] do something that she could otherwise
do.” Miller v. California, 355 F.3d 1172, 1179 (9th Cir.
2004) (discussing Wisconsin v. Constantineau, 400 U.S.
433 (1971)). The plaintiff must also contest the accuracy of the stigmatizing label. Ulrich, 308 F.3d at 982.
Here, Defendants argue that Mr. Fikre fails to state
a stigma-plus claim for two reasons. First, they argue
the Seventh Amended Complaint “does not allege facts
that show public stigmatization by the Government.”
Mot. [146] at 21-22. Second, that it also “fails to allege
a ‘plus’ factor. . . . ” Id. I take each argument in
turn.
1.
Public Stigmatization
Defendants argue that to state a stigma-plus claim,
the government must officially disclose stigmatizing information. See id. at 20-21. More specifically, the
government must publicly disclose a spoken or written
statement that is defamatory. See Tr. [163] at 13-15.
The denial or alteration of a right or status previously recognized
by state law (as opposed to just federal law) also suffices. See Humphries v. County of Los Angeles, 554 F.3d 1170, 1185 (9th Cir. 2009)
(citing Paul, 424 U.S. at 711).
9
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In other words, the government’s unspoken conduct
does not count, even if that conduct clearly imposes a
stigma and injures one’s reputation. See id.
I disagree. True, in most of (if not all) the Ninth Circuit cases that address stigma-plus claims, the underlying factual scenario was a typical defamation incident—
the plaintiff had alleged that the government stigmatized him through some defamatory written or spoken
statement that was released to the public. See, e.g.,
Hart, 450 F.3d at 1069 (alleging defamatory statements
made by police during a press conference); Herb, 169
F.3d at 645 (accusing prosecutors of defamatory comments). And in those cases, the Ninth Circuit has
sometimes articulated the stigma-plus test with reference to the publication of stigmatizing “statements” rather than using more general language that would unambiguously encompass stigmatizing government conduct. See, e.g., Ulrich, 308 F.3d at 982 (“Under [the
stigma-plus] test, a plaintiff must show the public disclosure of a stigmatizing statement by the government.
. . . ”).
But I think the latter is an inadvertent consequence
of the former, rather than a clear decision by the Court
of Appeals to limit stigma-plus claims solely to spoken
or written statements. Indeed, neither party has cited
a Ninth Circuit case that has explicitly considered the
question of whether stigmatizing government conduct
can form the basis of a stigma-plus claim. See Tr. [163]
at 14. And the United States Supreme Court has acknowledged that the government can injure a person’s
reputation through its actions as well as its speech.
For example, it has warned of the stigma that can accompany the mere fact of an arrest. Michelson v.
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United States, 335 U.S. 469, 482 (1948) (“Arrest without
more may nevertheless impair or cloud one’s reputation.”); see also Paul, 424 U.S. at 733 n.17 (Brennan, J.,
concurring in part).
It is unclear what principle would support drawing a
line between government statements and conduct in the
stigma-plus context. It does not matter whether your
neighbors think you are a drug dealer because the police
said so in a press release or because they saw dozens of
agents swarming your lawn wearing jackets emblazoned
with the letters “DEA.” The Court has made it clear
that the harm underlying such claims is the “badge of
infamy” that the government stamps on an individual.
See Paul, 424 U.S. at 705-08. It should not matter by
what method the government assigns that badge.
Because I hold that stigmatizing conduct can form
the basis of a stigma-plus claim, the only question here
is whether Defendants engaged in such conduct. The
analysis of that question plays o
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