Fikre v. Fed. Bureau of Investigation

35 F.4th 762

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 ; Avril 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.

No. 20-35904

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2021 Pasadena, California

Filed May 27, 2022

Brandon B. Mayfield (argued), Law Office of Brandon Mayfield, Beaverton, Oregon; Gadeir I. Abbas (argued), Lena F. Masri, and Justin Sadowsky, Cair Legal Defense Fund, Washington, D.C., for Plaintiff-Appellant.

Joshua Waldman (argued) and Sharon Swingle, Appellate Staff; Scott Erik Asphaug, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges, and John Antoon II,^* District Judge.

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 viable 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 multi-agency 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 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 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."

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 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...