Case 3:13-cv-00899-BR Document 1 Filed 05/30/13 Page 1 of 20 Page ID#: 1

Thomas H. Nelson, OSB 78315 (nelson@thnelson.com) P.O. Box 1211 Welches, OR 97067 Phone: 503.622.3262
Gadeir Abbas, Va. State Bar # 81161, pro hac vice pending (gabbas@cair.com) Council of American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 20003 Phone: 202.488.8787

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

YONAS FIKRE,

Plaintiff,

Civil No. 3:13-cv-00899

v.

COMPLAINT

THE FEDERAL BUREAU OF INVESTIGATION; ERIC HOLDER, Attorney General of the United States
(sued only in his official capacity); STATE DEPARTMENT; JOHN KERRY, Secretary of State (sued in his official capacity); ROBERT S. MUELLER, III, Director of the FBI (sued in his official capacity);
TIMOTHY HEALY, Director of FBI Terrorism Screening Center (sued in
his official capacity); DAVID NOORDELOOS, an FBI Agent (sued in his individual capacity), and JASON DUNDAS, an FBI Agent (sued in his individual capacity),

DENIAL OF CITIZENSHIP RIGHTS; TORTURE; VIOLATION OF THE RIGHT TO LEGAL COUNSEL; VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS
JURY TRIAL DEMANDED

Defendants.

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I. INTRODUCTION 1. Plaintiff Yonas Fikre seeks redress for denial of his rights as a citizen of the United States, which denial effectively rendered him stateless. Plaintiff also seeks redress for suffering torture at the hands of a foreign power, which torture, on information and belief, was instigated by and facilitated by defendants. 2. Plaintiff's fundamental claims are (i) that defendants sometime prior to April 21, 2010, placed plaintiff's name on the "No-Fly List" in order to coerce plaintiff into becoming an informant for the FBI, (ii) that on April 21, 2010, during an involuntary interview at the United States Embassy in Khartoum, Sudan, defendants denied plaintiff's request for legal counsel, (iii) that during the April 2010 involuntary interview plaintiff was urged to become an FBI informant in order to, among other things, have his name removed from the No-Fly List, (iv) that when plaintiff refused to become an informant defendants retaliated by instigating and facilitating his torture at the hands of the United Arab Emirates ("UAE") government during the summer of 2011, (v) that defendants denied plaintiff his constitutional right as a citizen to return home to the United States following the UAE government's releasing him without charge by keeping his name on the No-Fly List, thus effectively rendering him stateless, and (vi) that in May 2012 defendants further retaliated against plaintiff for his publicly disclosing his ordeal. 3. Through this action for declaratory and injunctive relief and for damages plaintiff seeks (i) a declaration that plaintiff's right to assistance of legal counsel has been violated, (ii) redress for the United States' instigating and facilitating his torture by the UAE government, (iii) an injunction preventing the United States from violating the Page 2 - COMPLAINT

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rights specified herein in the future, and (iv) monetary damages from the individual defendants acting in their personal capacities for the events specified in this complaint.
II. PARTIES 4. Plaintiff is a naturalized American citizen of Eritrean descent. He is not a citizen of Eritrea. 5. Defendant Federal Bureau of Investigation is a bureau of the Department of Justice responsible for, among other things, selecting individuals for inclusion on, and maintaining, the No-Fly List. 6. Defendant Eric Holder is Attorney General, whose office is responsible for, among other agencies, the FBI and the Terrorism Screening Center. Mr. Holder is sued only in his official capacity. 7. Defendant Department of State is the Department of the United States responsible for protecting and assisting United States citizens while those citizens are abroad. 8. Defendant John Kerry is Secretary of State, who is responsible for foreign relations and for protecting and assisting United States citizens while abroad. Mr. Kerry is sued only in his official capacity. 9. Defendant Robert S. Mueller III is Director of the FBI. He is sued only in his official capacity. 10. Defendant Timothy Healy is Director of the Terrorism Screening Center. He is sued only in his official capacity. 11. At all times relevant, a person identifying himself as defendant Jason Dundas, who is sued in his individual capacity, was an employee of the FBI assigned to Page 3 - COMPLAINT

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the Portland office. Defendant Dundas traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff Yonas Fikre at the United States Embassy in Khartoum, and on April 22, 2010, defendant Dundas did so interrogate plaintiff for several hours.
12. At all times relevant, defendant David Noordeloos, who is sued in his individual capacity, was an employee of the FBI assigned to and/or reporting to the Portland office of the FBI. Defendant Noordeloos traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, Defendant Noordeloos did so interrogate plaintiff for several hours.
III. JURISDICTION AND VENUE 13. This is a complaint for injunctive and declaratory relief, and for damages, based upon defendants’ violation of plaintiff’s’ rights as a citizen of the United States. The claims asserted arise under the Citizenship Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment (substantive and procedural), and the Fifth Amendment’s prohibition against self-incrimination. 14. This Court has jurisdiction over claims against the United States pursuant to 28 U.S.C. § 1331. Jurisdiction over the individual defendants sued in their personal capacities is authorized and instituted pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 15. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because defendants are agencies of the United States and because this judicial district is where plaintiff resides and where a substantial part of the events or omissions giving rise to the Page 4 - COMPLAINT

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claims occurred. Venue is also proper in this Court because two of the individuals sued in their personal capacities at all times relevant hereto either resided in, worked in, or were assigned to and/or reported to this District.
IV. FACTUAL ALLEGATIONS 17. Air travel is the only practical means of passenger transportation between the North American continent and Europe, Asia, Africa, the Middle East, and Australia. 18. Defendant FBI is responsible for the maintenance of the "No-Fly List," which lists individuals whom the airlines flying within, into, or over the United States may not transport. 19. Most individuals on the No-Fly List, and plaintiff in this action, are prohibited from flying into, out of, or over United States and Canadian airspace. 20. Plaintiff is a 33-year-old naturalized American citizen of Eritrean descent. When he was a small boy war broke out in Eritrea, and thus his family took him to Sudan, where he was when the State of Eritrea came into being in 1993; consequently, plaintiff is not a citizen of Eritrea. From Sudan the Fikre family emigrated to the United States. 21. Beginning in 2006, plaintiff resided in Portland, Oregon. In late December 2009, after working for an American cell phone company, plaintiff decided attempt to distribute and retail sale of consumer electronic products in East Africa. He began by returning to Sudan, where some of his extended family still reside. Upon arrival in Sudan plaintiff, in compliance with a recommendation by State Department, contacted the United States Consulate in Khartoum and informed a representative of the consulate of his interest in pursuing business opportunities in the country. The Page 5 - COMPLAINT

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representative encouraged plaintiff to pursue business opportunities in Sudan. In reliance upon the representative's recommendation plaintiff began the process of obtaining a Sudanese business license.
22. On or about April 21, 2010, plaintiff was informed by his wife in the United States that she had received a telephone call from the United States Embassy in Khartoum requesting that plaintiff contact defendant Noordeloos, who claimed to be an official at the embassy and whose telephone number his wife gave to plaintiff. On the same day, at approximately 9 p.m. local time, plaintiff called the number given and spoke with defendant Noordeloos. Defendant Noordeloos stated that a number of Americans in Sudan had been invited to the Embassy for a luncheon the following day in order to discuss how Americans might stay safe during a period of political turmoil in Sudan. Plaintiff agreed to attend the luncheon on that basis.
23. The next morning plaintiff appeared at the embassy. After going through security screening, plaintiff met defendant Noordeloos and another person who identified himself as defendant Jason Dundas. Defendants Noordeloos and Dundas escorted plaintiff to a small meeting room and shut the door; defendants positioning themselves between plaintiff and the door. At that point defendants Noordeloos and Dundas produced badges and stated that they were FBI agents assigned to the Portland office.
24. Upon being informed that defendants Noordeloos and Dundas were FBI agents from the Portland office, plaintiff stated that he wanted to be represented by his legal counsel (plaintiff was then represented by Oregon attorney Brandon Mayfield) during the interrogation. Defendant Noordeloos denied Mr. Fikre’s request for such Page 6 - COMPLAINT

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representation on the grounds that plaintiff had been placed on the No-Fly List and thus could not return to the United States to confer with his attorney.
25. Because defendants Dundas and Noordeloos were blocking the door, plaintiff felt he could not leave. During the following interrogation defendants Noordeloos and Dundas questioned plaintiff extensively about the events, activities, and leadership at the As-Saber Mosque in Portland, which plaintiff had attended for prayer services. Defendant Noordeloos also questioned plaintiff about the source of his financial support for this business endeavors in Sudan, and told plaintiff that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for plaintiff to engage in business transactions in Sudan - a statement that is inconsistent with the advice and recommendation earlier given by the representative of the embassy.
26. Defendant Noordeloos next told plaintiff that the FBI desired plaintiff to become an FBI informant to work upon “a case” that was then developing. Defendant Noordeloos stated that, in return, plaintiff would be paid substantial compensation, be in a position to enjoy “the good life,” and that the FBI would take steps to remove plaintiff from the No-Fly List. Defendant Noordeloos then asked, "Don't you love your wife?", which question plaintiff considered an implicit threat. Plaintiff responded that he did not wish to become an FBI informant. The interview lasted for several hours until the close of the business day. As the day wore on, defendant Noordeloos suggested that they resume the discussion on the following day; in order to escape the interrogation room and leave the embassy, plaintiff agreed.
27. At approximately 8:45 a.m. on the following morning, plaintiff called defendant Noordeloos and stated that he did not wish to meet further with the FBI Page 7 - COMPLAINT

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agents because he would be wasting their and his time; he reiterated that he did not wish to become an informant for the FBI. Defendant Noordeloos became agitated and, to the best of plaintiff's recollection, stated, "Wait a minute! Are you trying to tell me you don't want to work with us!" Defendant Noordeloos then stated that, "Whenever you want to go home you come to the embassy."
28. On May 4, 2011, defendant Noordeloos wrote an email to plaintiff which stated:
Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos 29. Plaintiff remained in Khartoum for almost two months following his meeting with defendants Noordeloos and Dundas. During that time he noticed that he was being followed by persons he assumed were affiliated with the Sudanese secret police, and he was told my merchants and other acquaintances that similar individuals had been inquiring about him and his activities. 30. On or about June 15, 2010, plaintiff left Sudan, and on or about September 15, 2010, plaintiff arrived in the United Arab Emirates to pursue similar business interests involving the distribution and retail sale of consumer electronics there. Plaintiff moved to the city of Al Ain in the emirate of Abu Dhabi, where he sought and obtained a residency permit from the UAE in order to conduct business; he invested substantial financial resources provided by family members in pursuing that course.
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31. In the evening of June 1, 2011, persons unknown to plaintiff (who plaintiff later learned were UAE plainclothes secret police) invaded plaintiff's home in Al Ain, seized some of his personal property (computer, phone, etc.), and compelled plaintiff to accompany them in a vehicle. Several of plaintiff's friends and neighbors witnessed plaintiff's apprehension. Plaintiff was blindfolded, placed in a confined space in the vehicle, and the air conditioner in the vehicle was turned on high and directed at him with the effect that he became quite chilled.
32. Plaintiff was taken to a then-unknown location approximately two hours’ driving time from Al Ain. Still blindfolded, he was led into a building and into a long hall where, by peeking down through the bottom of his blindfold, he noticed that he was passing door after door. His guards stopped at one door and put him inside a windowless cell where he was lodged. Upon removal of his blindfold, he saw that his tiny cell lacked toilet facilities. His cell contained only a bed and some bedding. The cell was very cold because the air conditioning had been set on high.
33. The following morning the interrogations of plaintiff began. Except for the one instance noted below, during all of his interrogations plaintiff was blindfolded. Once blindfolded, he was taken to a room where, throughout his ordeal, plaintiff was questioned for hours in English. Periodically during the 106 days of his imprisonment and torture, plaintiff occasionally was able to peek beneath the blindfold and view shoes and the lower torsos of his interrogators.
34. The primary focus of the blindfolded interrogations was events as Portland's as-Saber Mosque, addressing in particular who plaintiff knew at the mosque had a "jihadi mentality," what topics the mosque's leader, Sheikh Mohamed Kariye, Page 9 - COMPLAINT

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speaks about both in public and in private, and how fundraising at the mosque occurs and who engages in fundraising there. The interrogators also questioned plaintiff about circumstances and events that plaintiff had disclosed to defendants Noordeloos and Dundas during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations plaintiff's interrogators urged him to cooperate with them and with the FBI by becoming an informant.
35. When plaintiff was returned to his cell at the end of the first day of interrogation he discovered that his bed and bedding had been removed. The air conditioning remained at a high level, which made the cell extremely cold. Because his bed and bedding had been removed, plaintiff was obliged to sleep almost naked on the cold cement floor.
36. During the initial period of his confinement plaintiff resisted answering some of the questions, insisting that he was an American citizen and needed to speak with his ambassador and with his attorney. In response, plaintiff's jailers struck him on his head and he fell to the ground. Throughout course of his confinement plaintiff was repeatedly beaten severely on his head, back, legs, and feet with batons and plastic pipes, required to assume stress positions for hours, and threatened with death by strangulation by use of a flexible plastic pipe. One particularly painful torture method his interrogators used was to force plaintiff to lie on his stomach with his sandals off, whereupon he was beaten severely on the soles of his feet; thereafter, he was required to stand on his feet, which standing caused him great pain.
37. On several occasions plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same Page 10 - COMPLAINT

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questions and suggestion he had heard from defendants Noordeloos and Dundas; he thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating plaintiff severely.
38. As noted above, during his interrogations plaintiff was occasionally able to peek beneath his blindfold and view the lower torsos of his interrogators. On most occasions, based on their clothing and accents, plaintiff believes that his interrogators were Arabs. On other occasions, however, plaintiff was able to view the shoes and slacks of several individuals who wore Western dress. Plaintiff believes that in those instances representatives of the United States were present and witnessing the interrogations and that those United States representatives controlled the questions being posed to plaintiff.
39. On or about June 14, 2011, plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his confinement, plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland's as-Saber Mosque but, rather, whether plaintiff's financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test plaintiff’s bed and bedding were returned to his cell.
40. On June 20, 2011, immediately after learning from plaintiff's family that plaintiff had been apprehended in the UAE (the family had learned of plaintiff's apprehension from witnesses who observed the event), the undersigned Oregon counsel telephoned and then e-mailed the United States Consulate in Abu Dhabi to inform them that plaintiff, a United States citizen, had gone missing and that witnesses in Al Ain had viewed him being placed in a SUV of the type that is commonly used by Page 11 - COMPLAINT

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the UAE secret police. The consulate officials indicated that they would look into the matter. Immediately thereafter, at the request of the undersigned Oregon counsel, Congressman Earl Blumenauer’s office contacted the State Department on behalf of plaintiff.
41. The interrogations, including beatings and stress positions, as well as being subjected to temperature extremes, sleep deprivation, and humiliation when not being interrogated, continued daily from June 14 through July 27.
42. On July 28, plaintiff was informed that a woman had arrived to see him. He was told that he was to meet with the American consul and that he should not disclose to the consular officer that he had been mistreated during his detention lest he beaten still more severely.
43. On July 28, 2011, plaintiff, accompanied by two guards, was taken to a meeting room where he met “Marwa,” an employee of the State Department who, on information and belief, is of Egyptian extraction. The two guards positioned themselves close to plaintiff, one on each side. Marwa was dressed in Islamic attire (a “hijab,” or covering of her hair). By that time plaintiff had lost approximately 30 pounds of body weight.
44. The meeting with Marwa was short and superficial. Although by that time plaintiff had lost approximately 30 pounds, Marwa stated that plaintiff appeared to be in good shape. During the interview plaintiff attempted by facial contortions and winks to indicate that he was under duress, but Marwa either did not notice or disregarded these signals.
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45. Marwa questioned plaintiff regarding what offense he had been charged with, whereupon plaintiff asked the two guards what he had been charged with. The guards stated that plaintiff was being held without charge and that the authorities were merely conducting an investigation.
46. Marwa’s visit was the only United States consular visit during plaintiff's 106 days of detention and torture. Following the meeting with Marwa, plaintiff was returned to his cell and the interrogations and torture resumed.
47. Following the meeting with Marwa, plaintiff’s interrogators constantly stated that he would be released “soon” or “tomorrow.” However, after approximately a week of continuing interrogation and torture plaintiff became despondent. He believed that the United States had “thrown [him] away,” primarily because of his black skin. He consequently began to consider refusing food in an attempt at suicide, but was told that he would be force-fed if necessary.
48. Toward the end of his interrogation plaintiff again inquired of his interrogator whether the FBI had requested that he be detained and interrogated. This time, instead of being beaten, the interrogator stated that indeed the FBI had made such a request and that the American and Emerati authorities work closely on a number of such matters.
49. On September 14, 2011, plaintiff was told that he would be released that day. His belongings were returned to him and money from his wallet was taken to buy him a plane ticket back to the United States. However, when the authorities attempted to purchase his ticket they were told that the United States would not allow him to return by airplane because he was on the No-Fly List. Plaintiff was not given the option of Page 13 - COMPLAINT

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returning to the United States by other means. Therefore plaintiff chose to be sent by air to Sweden, where he had a relative.
50. Plaintiff arrived in Sweden traumatized, with few financial and other resources, and clothing entirely inappropriate for the Scandinavian weather and climate.
51. In addition to being stranded with few resources in a foreign country, being placed on the No-Fly List resulted in plaintiff's losing virtually all of his rights as a citizen of the United States - he could not return home to enjoy the rights, privileges and immunities of citizenship. Moreover, his experience with State Department officials in Khartoum and Abu Dhabi demonstrated to him that he could not count on the State Department to protect or even to assist him while overseas.
52. American passport holders are allowed to visit other countries for only limited periods of time before they have to leave the country they are visiting; in the case of Sweden and other Schengen countries the maximum stay is for 90 days unless special arrangements are made, such as requesting asylum.
53. Upon arriving in Sweden and being unable to return home, plaintiff contacted a Swedish attorney, Advokat Hans Bredberg, who suggested that plaintiff seek political asylum in that country. Believing that the FBI was responsible for his detention and torture in Abu Dhabi and that he may still be in danger of abuse in countries that condone torture (including the United States), plaintiff submitted an application for asylum to the authorities in Sweden. Plaintiff understands that Swedish authorities have determined that he is not a supporter of terrorism, and that his application for political asylum is pending.
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54. On April 18, 2012, a press conference was held in Sweden during which plaintiff's ordeal was disclosed publicly. Less than two weeks later, on May 1, 2012, plaintiff was indicted in the Southern District of California for "conspiracy to structure" 2010 monetary transfers from his family to him in the UAE that plaintiff used to attempt to start his business. On information and belief, this indictment was in retaliation for plaintiff's publicizing of his ordeal.
CLAIMS FOR RELIEF First Claim for Relief: Denial of Citizenship - Right to Return to Homeland
55. By placing plaintiff on the No-Fly List and prohibiting plaintiff from returning home after his ordeal in the UAE, defendants effectively stripped plaintiff of his rights, privileges, and immunities as a citizen, thereby effectively rendering him stateless in violation of the Fourteenth Amendment to the United States Constitution.
56. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and Dundas which deprived plaintiff of his rights as a citizen give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Second Claim for Relief: Torture 57. Plaintiff realleges paragraphs 1 through 54. 58. Defendants, including defendants Noordeloos and Dundas, enlisted foreign intermediaries to torture plaintiff at their behest. The foreign intermediaries were directed to torture plaintiff, and plaintiff was tortured in accordance with defendants' instructions. Page 15 - COMPLAINT

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59. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and Dundas which deprived plaintiff of his rights as a citizen, including the right to be free from torture, give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Third Claim for Relief: Denial of Counsel 60. Plaintiff realleges paragraphs 1 through 54. 61. Defendants Noordeloos and Dundas refused plaintiff's demand to be represented by counsel in Khartoum, Sudan, on April 22, 2010. Instead, those defendants continued to interrogate plaintiff notwithstanding such demand and then turned over such information to United States law enforcement defendants, which used information gleaned from plaintiff in securing his indictment which is now pending before the District Court for the Southern District of California. 62. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and Dundas which deprived plaintiff of his rights as a citizen, give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Fourth Claim for Relief: Violation of Right Against Self-Incrimination 63. Plaintiff realleges paragraphs 1 through 54. 64. By continuing the April 22, 2010, interrogation of plaintiff after a demand that he be represented by counsel and inquiring into matters related to the pending Page 16 - COMPLAINT

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indictment of plaintiff in the Southern District of California, Defendants Noordeloos and Dundas violated plaintiff's right against self-incrimination under the Fifth Amendment to the Untied States Constitution.
65. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and Dundas which deprived plaintiff of his right against selfincrimination give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Fifth Claim for Relief: Substantive Due Process - Right to Return to Homeland 66. Plaintiff realleges paragraphs 1 through 54. 67. Defendants Holder, Federal Bureau of Investigation, Mueller, FBI Terrorist
Screening Center, and Healy’s actions in placing plaintiff on the FBI-maintained, secret No-Fly List resulted in the violation of plaintiff's Fifth Amendment substantive due process right to return to his homeland once abroad.
Sixth Claim for Relief: Due Process - The No-Fly List 68. Plaintiff realleges paragraphs 1 through 54. 69. Defendants Holder, Federal Bureau of Investigation, Mueller, FBI Terrorist Screening Center, and Healy’s actions in placing plaintiff on the FBI-maintained, secret No-Fly List without informing him of such placement, the basis for his inclusion on the No-Fly List, the means of removing his name from the No-Fly List, or providing an independent forum in which plaintiff might secure the removal of his name from the NoFly List, all violated plaintiff’s right to procedural due process under the Fifth Amendment. Page 17 - COMPLAINT

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PRAYER FOR RELIEF WHEREFORE, plaintiff respectfully requests the following relief: 1. Declaratory Judgment. A declaratory judgment that --
a. Defendants rendered plaintiff stateless by denying him his right as a citizen right to return to the United States once abroad in violation of the Fourteenth Amendment;
b. Defendants' participation in the activities that led to plaintiff's imprisonment, interrogation, and torture at the hands of UAE authorities is a denial of plaintiff's substantive due process rights under the Fifth Amendment and a denial of his right as a citizen under the Fourteenth Amendment;
c. Defendant Noordeloos and Dundas' denial of plaintiff's right to counsel in the April 22, 2010, interrogation at the United States Embassy is a violation of plaintiff's rights under the Fifth Amendment;
d. Defendants' use of plaintiff's coerced testimony gathered during the April 22, 2010, interrogation at the United States Embassy in Khartoum and during his imprisonment, interrogation, and torture in the UAE is a violation of plaintiff's rights under the Fifth Amendment;
e. Defendants' placing name on the No-Fly List, which prevented him from returning to his homeland once abroad, is a denial of plaintiff's substantive due process rights under the Fifth Amendment.
f. Defendants' placing plaintiff’s name on the No-Fly List with no notice thereof, with no reasons given therefor, and with no opportunity to
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challenge the basis for such placement is a denial of procedural due process under the Fifth Amendment.
2. Injunction. An injunction prohibiting or requiring that -a. Defendants not render United States citizens stateless by preventing them from returning to the United States through placing them on the No-Fly List once outside of the United States; b. Defendants not instigate or facilitate the torture of United States citizens in foreign countries; c. Defendants not interrogate United States citizens in foreign countries once a demand for legal counsel has been made; d. Defendants not use in a criminal proceeding information gathered from a United States citizen after the citizen's demand for legal counsel has been refused; e. Defendants not prevent plaintiff from returning to the United States in the event of future international travel by plaintiff; f. Defendants be required to provide plaintiff notice of placement of his name on the No-Fly List, provide plaintiff with the reasons for such placement, and provide plaintiff an opportunity to challenge or rebut the reasons therefor; g. Defendant State Department not cooperate with law enforcement authorities in facilitating interrogations of United States citizens at United States embassies without first assuring that such citizens will be provided legal counsel upon demand; Page 19 - COMPLAINT

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h. Defendant State Department be required to establish information and protocols to assist United States citizens to return to their homeland who, once abroad, are placed on the No-Fly List. 3. Damages. Enter judgment against each defendant sued in his individual capacity in the amount of $5 million each for the violation of plaintiff’s clearly established constitutional rights as alleged herein. Further, it is requested that plaintiff be awarded reasonable attorneys' fees pursuant to 28 U.S.C. § 2412(d), costs, and expenses of all litigation. 4. Other Relief. Such other relief as the Court may deem just and proper. DATED this 30th day of May, 2013.
s/ Thomas H. Nelson, OSB 78315 Gadeir Abbas, pro hac vice pending Attorneys for Plaintiff
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Thomas H. Nelson, OSB 78315 (nelson@thnelson.com) P.O. Box 1211 Welches, OR 97067 Phone: 503.622.3262
Gadeir Abbas, Va. State Bar # 81161, pro hac vice (gabbas@cair.com) Council of American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 20003 Phone: 202.488.8787

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

YONAS FIKRE,

Plaintiff,

Civil No. 3:13-cv-00899

v.

FIRST AMENDED COMPLAINT

THE FEDERAL BUREAU OF INVESTIGATION; ERIC HOLDER, Attorney General of the United States
(sued only in his official capacity); STATE DEPARTMENT; JOHN KERRY, Secretary of State (sued in his official capacity); ROBERT S. MUELLER, III, Director of the FBI (sued in his official capacity);
TIMOTHY HEALY, Director of FBI Terrorism Screening Center (sued in
his official capacity); DAVID NOORDELOOS, an FBI Agent (sued in his individual capacity), and JOHN DOE I, a.k.a. JASON DUNDAS, an FBI Agent (sued in his individual capacity),

DENIAL OF CITIZENSHIP RIGHTS; TORTURE; VIOLATION OF THE RIGHT TO LEGAL COUNSEL; VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS
JURY TRIAL DEMANDED

Defendants.

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I. INTRODUCTION 1. Plaintiff Yonas Fikre seeks redress for denial of his rights as a citizen of the United States, which denial effectively rendered him stateless. Plaintiff also seeks redress for suffering torture at the hands of a foreign power, which torture, on information and belief, was instigated by and facilitated by defendants. 2. Plaintiff's fundamental claims are (i) that defendants sometime prior to April 21, 2010, placed plaintiff's name on the "No-Fly List" in order to coerce plaintiff into becoming an informant for the FBI, (ii) that on April 21, 2010, during an involuntary interview at the United States Embassy in Khartoum, Sudan, defendants denied plaintiff's request for legal counsel, (iii) that during the April 2010 involuntary interview plaintiff was urged to become an FBI informant in order to, among other things, have his name removed from the No-Fly List, (iv) that when plaintiff refused to become an informant defendants retaliated by instigating and facilitating his torture at the hands of the United Arab Emirates ("UAE") government during the summer of 2011, (v) that defendants denied plaintiff his constitutional right as a citizen to return home to the United States following the UAE government's releasing him without charge by keeping his name on the No-Fly List, thus effectively rendering him stateless, and (vi) that in May 2012 defendants further retaliated against plaintiff for his publicly disclosing his ordeal. 3. Through this action for declaratory and injunctive relief and for damages plaintiff seeks (i) a declaration that plaintiff's right to assistance of legal counsel has been violated, (ii) redress for the United States' instigating and facilitating his torture by the UAE government, (iii) an injunction preventing the United States from violating the Page 2 - FIRST AMENDED COMPLAINT

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rights specified herein in the future, and (iv) monetary damages from the individual defendants acting in their personal capacities for the events specified in this complaint.
II. PARTIES 4. Plaintiff is a naturalized American citizen of Eritrean descent. He is not a citizen of Eritrea. 5. Defendant Federal Bureau of Investigation is a bureau of the Department of Justice responsible for, among other things, selecting individuals for inclusion on, and maintaining, the No-Fly List. 6. Defendant Eric Holder is Attorney General, whose office is responsible for, among other agencies, the FBI and the Terrorism Screening Center. Mr. Holder is sued only in his official capacity. 7. Defendant Department of State is the Department of the United States responsible for protecting and assisting United States citizens while those citizens are abroad. 8. Defendant John Kerry is Secretary of State, who is responsible for foreign relations and for protecting and assisting United States citizens while abroad. Mr. Kerry is sued only in his official capacity. 9. Defendant Robert S. Mueller III is Director of the FBI. He is sued only in his official capacity. 10. Defendant Timothy Healy is Director of the Terrorism Screening Center. He is sued only in his official capacity. 11. At all times relevant, FBI Agent John Doe I, a person identifying himself as defendant Jason Dundas, who is sued in his individual capacity, was an employee of Page 3 - FIRST AMENDED COMPLAINT

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the FBI assigned to the Portland office. Defendant John Doe I traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff Yonas Fikre at the United States Embassy in Khartoum, and on April 22, 2010, defendant John Doe I did so interrogate plaintiff for several hours.
12. At all times relevant, defendant David Noordeloos, who is sued in his individual capacity, was an employee of the FBI assigned to and/or reporting to the Portland office of the FBI. Defendant Noordeloos traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, Defendant Noordeloos did so interrogate plaintiff for several hours.
III. JURISDICTION AND VENUE 13. This is a complaint for injunctive and declaratory relief, and for damages, based upon defendants’ violation of plaintiff’s’ rights as a citizen of the United States. The claims asserted arise under the Citizenship Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment (substantive and procedural), and the Fifth Amendment’s prohibition against self-incrimination. 14. This Court has jurisdiction over claims against the United States pursuant to 28 U.S.C. § 1331. Jurisdiction over the individual defendants sued in their personal capacities is authorized and instituted pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 15. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because defendants are agencies of the United States and because this judicial district is where Page 4 - FIRST AMENDED COMPLAINT

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plaintiff resides and where a substantial part of the events or omissions giving rise to the claims occurred. Venue is also proper in this Court because two of the individuals sued in their personal capacities at all times relevant hereto either resided in, worked in, or were assigned to and/or reported to this District.
IV. FACTUAL ALLEGATIONS 17. Air travel is the only practical means of passenger transportation between the North American continent and Europe, Asia, Africa, the Middle East, and Australia. 18. Defendant FBI is responsible for the maintenance of the "No-Fly List," which lists individuals whom the airlines flying within, into, or over the United States may not transport. 19. Most individuals on the No-Fly List, and plaintiff in this action, are prohibited from flying into, out of, or over United States and Canadian airspace. 20. Plaintiff is a 33-year-old naturalized American citizen of Eritrean descent. When he was a small boy war broke out in Eritrea, and thus his family took him to Sudan, where he was when the State of Eritrea came into being in 1993; consequently, plaintiff is not a citizen of Eritrea. From Sudan the Fikre family emigrated to the United States. 21. Beginning in 2006, plaintiff resided in Portland, Oregon. In late December 2009, after working for an American cell phone company, plaintiff decided attempt to distribute and retail sale of consumer electronic products in East Africa. He began by returning to Sudan, where some of his extended family still reside. Upon arrival in Sudan plaintiff, in compliance with a recommendation by State Department, contacted the United States Consulate in Khartoum and informed a representative of the Page 5 - FIRST AMENDED COMPLAINT

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consulate of his interest in pursuing business opportunities in the country. The representative encouraged plaintiff to pursue business opportunities in Sudan. In reliance upon the representative's recommendation plaintiff began the process of obtaining a Sudanese business license.
22. On or about April 21, 2010, plaintiff was informed by his wife in the United States that she had received a telephone call from the United States Embassy in Khartoum requesting that plaintiff contact defendant Noordeloos, who claimed to be an official at the embassy and whose telephone number his wife gave to plaintiff. On the same day, at approximately 9 p.m. local time, plaintiff called the number given and spoke with defendant Noordeloos. Defendant Noordeloos stated that a number of Americans in Sudan had been invited to the Embassy for a luncheon the following day in order to discuss how Americans might stay safe during a period of political turmoil in Sudan. Plaintiff agreed to attend the luncheon on that basis.
23. The next morning plaintiff appeared at the embassy. After going through security screening, plaintiff met defendant Noordeloos and another person, defendant John Doe I, who identified himself as Jason Dundas. Defendants Noordeloos and John Doe I escorted plaintiff to a small meeting room and shut the door; defendants positioning themselves between plaintiff and the door. At that point defendants Noordeloos and John Doe I produced badges and stated that they were FBI agents assigned to the Portland office.
24. Upon being informed that defendants Noordeloos and John Doe I were FBI agents from the Portland office, plaintiff stated that he wanted to be represented by his legal counsel (plaintiff was then represented by Oregon attorney Brandon Mayfield) Page 6 - FIRST AMENDED COMPLAINT

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during the interrogation. Defendant Noordeloos denied Mr. Fikre’s request for such representation on the grounds that plaintiff had been placed on the No-Fly List and thus could not return to the United States to confer with his attorney.
25. Because defendants John Doe I and Noordeloos were blocking the door, plaintiff felt he could not leave. During the following interrogation defendants Noordeloos and John Doe I questioned plaintiff extensively about the events, activities, and leadership at the As-Saber Mosque in Portland, which plaintiff had attended for prayer services. Defendant Noordeloos also questioned plaintiff about the source of his financial support for this business endeavors in Sudan, and told plaintiff that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for plaintiff to engage in business transactions in Sudan - a statement that is inconsistent with the advice and recommendation earlier given by the representative of the embassy.
26. Defendant Noordeloos next told plaintiff that the FBI desired plaintiff to become an FBI informant to work upon “a case” that was then developing. Defendant Noordeloos stated that, in return, plaintiff would be paid substantial compensation, be in a position to enjoy “the good life,” and that the FBI would take steps to remove plaintiff from the No-Fly List. Defendant Noordeloos then asked, "Don't you love your wife?", which question plaintiff considered an implicit threat. Plaintiff responded that he did not wish to become an FBI informant. The interview lasted for several hours until the close of the business day. As the day wore on, defendant Noordeloos suggested that they resume the discussion on the following day; in order to escape the interrogation room and leave the embassy, plaintiff agreed.
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27. At approximately 8:45 a.m. on the following morning, plaintiff called defendant Noordeloos and stated that he did not wish to meet further with the FBI agents because he would be wasting their and his time; he reiterated that he did not wish to become an informant for the FBI. Defendant Noordeloos became agitated and, to the best of plaintiff's recollection, stated, "Wait a minute! Are you trying to tell me you don't want to work with us!" Defendant Noordeloos then stated that, "Whenever you want to go home you come to the embassy."
28. On May 4, 2011, defendant Noordeloos wrote an email to plaintiff which stated:
Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos 29. Plaintiff remained in Khartoum for almost two months following his meeting with defendants Noordeloos and John Doe I. During that time he noticed that he was being followed by persons he assumed were affiliated with the Sudanese secret police, and he was told my merchants and other acquaintances that similar individuals had been inquiring about him and his activities. 30. On or about June 15, 2010, plaintiff left Sudan, and on or about September 15, 2010, plaintiff arrived in the United Arab Emirates to pursue similar business interests involving the distribution and retail sale of consumer electronics there. Plaintiff moved to the city of Al Ain in the emirate of Abu Dhabi, where he sought
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and obtained a residency permit from the UAE in order to conduct business; he invested substantial financial resources provided by family members in pursuing that course.
31. In the evening of June 1, 2011, persons unknown to plaintiff (who plaintiff later learned were UAE plainclothes secret police) invaded plaintiff's home in Al Ain, seized some of his personal property (computer, phone, etc.), and compelled plaintiff to accompany them in a vehicle. Several of plaintiff's friends and neighbors witnessed plaintiff's apprehension. Plaintiff was blindfolded, placed in a confined space in the vehicle, and the air conditioner in the vehicle was turned on high and directed at him with the effect that he became quite chilled.
32. Plaintiff was taken to a then-unknown location approximately two hours’ driving time from Al Ain. Still blindfolded, he was led into a building and into a long hall where, by peeking down through the bottom of his blindfold, he noticed that he was passing door after door. His guards stopped at one door and put him inside a windowless cell where he was lodged. Upon removal of his blindfold, he saw that his tiny cell lacked toilet facilities. His cell contained only a bed and some bedding. The cell was very cold because the air conditioning had been set on high.
33. The following morning the interrogations of plaintiff began. Except for the one instance noted below, during all of his interrogations plaintiff was blindfolded. Once blindfolded, he was taken to a room where, throughout his ordeal, plaintiff was questioned for hours in English. Periodically during the 106 days of his imprisonment and torture, plaintiff occasionally was able to peek beneath the blindfold and view shoes and the lower torsos of his interrogators.
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34. The primary focus of the blindfolded interrogations was events as Portland's as-Saber Mosque, addressing in particular who plaintiff knew at the mosque had a "jihadi mentality," what topics the mosque's leader, Sheikh Mohamed Kariye, speaks about both in public and in private, and how fundraising at the mosque occurs and who engages in fundraising there. The interrogators also questioned plaintiff about circumstances and events that plaintiff had disclosed to defendants Noordeloos and John Doe I during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations plaintiff's interrogators urged him to cooperate with them and with the FBI by becoming an informant.
35. When plaintiff was returned to his cell at the end of the first day of interrogation he discovered that his bed and bedding had been removed. The air conditioning remained at a high level, which made the cell extremely cold. Because his bed and bedding had been removed, plaintiff was obliged to sleep almost naked on the cold cement floor.
36. During the initial period of his confinement plaintiff resisted answering some of the questions, insisting that he was an American citizen and needed to speak with his ambassador and with his attorney. In response, plaintiff's jailers struck him on his head and he fell to the ground. Throughout course of his confinement plaintiff was repeatedly beaten severely on his head, back, legs, and feet with batons and plastic pipes, required to assume stress positions for hours, and threatened with death by strangulation by use of a flexible plastic pipe. One particularly painful torture method his interrogators used was to force plaintiff to lie on his stomach with his sandals off,
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whereupon he was beaten severely on the soles of his feet; thereafter, he was required to stand on his feet, which standing caused him great pain.
37. On several occasions plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same questions and suggestion he had heard from defendants Noordeloos and John Doe I; he thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating plaintiff severely.
38. As noted above, during his interrogations plaintiff was occasionally able to peek beneath his blindfold and view the lower torsos of his interrogators. On most occasions, based on their clothing and accents, plaintiff believes that his interrogators were Arabs. On other occasions, however, plaintiff was able to view the shoes and slacks of several individuals who wore Western dress. Plaintiff believes that in those instances representatives of the United States were present and witnessing the interrogations and that those United States representatives controlled the questions being posed to plaintiff.
39. On or about June 14, 2011, plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his confinement, plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland's as-Saber Mosque but, rather, whether plaintiff's financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test plaintiff’s bed and bedding were returned to his cell.
40. On June 20, 2011, immediately after learning from plaintiff's family that plaintiff had been apprehended in the UAE (the family had learned of plaintiff's Page 11 - FIRST AMENDED COMPLAINT

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apprehension from witnesses who observed the event), the undersigned Oregon counsel telephoned and then e-mailed the United States Consulate in Abu Dhabi to inform them that plaintiff, a United States citizen, had gone missing and that witnesses in Al Ain had viewed him being placed in a SUV of the type that is commonly used by the UAE secret police. The consulate officials indicated that they would look into the matter. Immediately thereafter, at the request of the undersigned Oregon counsel, Congressman Earl Blumenauer’s office contacted the State Department on behalf of plaintiff.
41. The interrogations, including beatings and stress positions, as well as being subjected to temperature extremes, sleep deprivation, and humiliation when not being interrogated, continued daily from June 14 through July 27.
42. On July 28, plaintiff was informed that a woman had arrived to see him. He was told that he was to meet with the American consul and that he should not disclose to the consular officer that he had been mistreated during his detention lest he beaten still more severely.
43. On July 28, 2011, plaintiff, accompanied by two guards, was taken to a meeting room where he met “Marwa,” an employee of the State Department who, on information and belief, is of Egyptian extraction. The two guards positioned themselves close to plaintiff, one on each side. Marwa was dressed in Islamic attire (a “hijab,” or covering of her hair). By that time plaintiff had lost approximately 30 pounds of body weight.
44. The meeting with Marwa was short and superficial. Although by that time plaintiff had lost approximately 30 pounds, Marwa stated that plaintiff appeared to be in Page 12 - FIRST AMENDED COMPLAINT

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good shape. During the interview plaintiff attempted by facial contortions and winks to indicate that he was under duress, but Marwa either did not notice or disregarded these signals.
45. Marwa questioned plaintiff regarding what offense he had been charged with, whereupon plaintiff asked the two guards what he had been charged with. The guards stated that plaintiff was being held without charge and that the authorities were merely conducting an investigation.
46. Marwa’s visit was the only United States consular visit during plaintiff's 106 days of detention and torture. Following the meeting with Marwa, plaintiff was returned to his cell and the interrogations and torture resumed.
47. Following the meeting with Marwa, plaintiff’s interrogators constantly stated that he would be released “soon” or “tomorrow.” However, after approximately a week of continuing interrogation and torture plaintiff became despondent. He believed that the United States had “thrown [him] away,” primarily because of his black skin. He consequently began to consider refusing food in an attempt at suicide, but was told that he would be force-fed if necessary.
48. Toward the end of his interrogation plaintiff again inquired of his interrogator whether the FBI had requested that he be detained and interrogated. This time, instead of being beaten, the interrogator stated that indeed the FBI had made such a request and that the American and Emerati authorities work closely on a number of such matters.
49. On September 14, 2011, plaintiff was told that he would be released that day. His belongings were returned to him and money from his wallet was taken to buy Page 13 - FIRST AMENDED COMPLAINT

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him a plane ticket back to the United States. However, when the authorities attempted to purchase his ticket they were told that the United States would not allow him to return by airplane because he was on the No-Fly List. Plaintiff was not given the option of returning to the United States by other means. Therefore plaintiff chose to be sent by air to Sweden, where he had a relative.
50. Plaintiff arrived in Sweden traumatized, with few financial and other resources, and clothing entirely inappropriate for the Scandinavian weather and climate.
51. In addition to being stranded with few resources in a foreign country, being placed on the No-Fly List resulted in plaintiff's losing virtually all of his rights as a citizen of the United States - he could not return home to enjoy the rights, privileges and immunities of citizenship. Moreover, his experience with State Department officials in Khartoum and Abu Dhabi demonstrated to him that he could not count on the State Department to protect or even to assist him while overseas.
52. American passport holders are allowed to visit other countries for only limited periods of time before they have to leave the country they are visiting; in the case of Sweden and other Schengen countries the maximum stay is for 90 days unless special arrangements are made, such as requesting asylum.
53. Upon arriving in Sweden and being unable to return home, plaintiff contacted a Swedish attorney, Advokat Hans Bredberg, who suggested that plaintiff seek political asylum in that country. Believing that the FBI was responsible for his detention and torture in Abu Dhabi and that he may still be in danger of abuse in countries that condone torture (including the United States), plaintiff submitted an application for asylum to the authorities in Sweden. Plaintiff understands that Swedish Page 14 - FIRST AMENDED COMPLAINT

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authorities have determined that he is not a supporter of terrorism, and that his application for political asylum is pending.
54. On April 18, 2012, a press conference was held in Sweden during which plaintiff's ordeal was disclosed publicly. Less than two weeks later, on May 1, 2012, plaintiff was indicted in the Southern District of California for "conspiracy to structure" 2010 monetary transfers from his family to him in the UAE that plaintiff used to attempt to start his business. On information and belief, this indictment was in retaliation for plaintiff's publicizing of his ordeal.
CLAIMS FOR RELIEF First Claim for Relief: Denial of Citizenship - Right to Return to Homeland
55. By placing plaintiff on the No-Fly List and prohibiting plaintiff from returning home after his ordeal in the UAE, defendants effectively stripped plaintiff of his rights, privileges, and immunities as a citizen, thereby effectively rendering him stateless in violation of the Fourteenth Amendment to the United States Constitution.
56. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and John Doe I, which deprived plaintiff of his rights as a citizen give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Second Claim for Relief: Torture 57. Plaintiff realleges paragraphs 1 through 54. 58. Defendants, including defendants Noordeloos and Dundas, enlisted foreign intermediaries to torture plaintiff at their behest. The foreign intermediaries were Page 15 - FIRST AMENDED COMPLAINT

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directed to torture plaintiff, and plaintiff was tortured in accordance with defendants' instructions.
59. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and Dundas which deprived plaintiff of his rights as a citizen, including the right to be free from torture, give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Third Claim for Relief: Denial of Counsel 60. Plaintiff realleges paragraphs 1 through 54. 61. Defendants Noordeloos and Dundas refused plaintiff's demand to be represented by counsel in Khartoum, Sudan, on April 22, 2010. Instead, those defendants continued to interrogate plaintiff notwithstanding such demand and then turned over such information to United States law enforcement defendants, which used information gleaned from plaintiff in securing his indictment which is now pending before the District Court for the Southern District of California. 62. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and John Doe I which deprived plaintiff of his rights as a citizen, give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Fourth Claim for Relief: Violation of Right Against Self-Incrimination 63. Plaintiff realleges paragraphs 1 through 54. Page 16 - FIRST AMENDED COMPLAINT

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64. By continuing the April 22, 2010, interrogation of plaintiff after a demand that he be represented by counsel and inquiring into matters related to the pending indictment of plaintiff in the Southern District of California, Defendants Noordeloos and Dundas violated plaintiff's right against self-incrimination under the Fifth Amendment to the Untied States Constitution.
65. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and John Doe I which deprived plaintiff of his right against selfincrimination give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Fifth Claim for Relief: Substantive Due Process - Right to Return to Homeland 66. Plaintiff realleges paragraphs 1 through 54. 67. Defendants Holder, Federal Bureau of Investigation, Mueller, FBI Terrorist
Screening Center, and Healy’s actions in placing plaintiff on the FBI-maintained, secret No-Fly List resulted in the violation of plaintiff's Fifth Amendment substantive due process right to return to his homeland once abroad.
Sixth Claim for Relief: Due Process - The No-Fly List 68. Plaintiff realleges paragraphs 1 through 54. 69. Defendants Holder, Federal Bureau of Investigation, Mueller, FBI Terrorist Screening Center, and Healy’s actions in placing plaintiff on the FBI-maintained, secret No-Fly List without informing him of such placement, the basis for his inclusion on the No-Fly List, the means of removing his name from the No-Fly List, or providing an independent forum in which plaintiff might secure the removal of his name from the NoPage 17 - FIRST AMENDED COMPLAINT

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Fly List, all violated plaintiff’s right to procedural due process under the Fifth Amendment.
PRAYER FOR RELIEF WHEREFORE, plaintiff respectfully requests the following relief: 1. Declaratory Judgment. A declaratory judgment that --
a. Defendants rendered plaintiff stateless by denying him his right as a citizen right to return to the United States once abroad in violation of the Fourteenth Amendment;
b. Defendants' participation in the activities that led to plaintiff's imprisonment, interrogation, and torture at the hands of UAE authorities is a denial of plaintiff's substantive due process rights under the Fifth Amendment and a denial of his right as a citizen under the Fourteenth Amendment;
c. Defendant Noordeloos and John Doe I's denial of plaintiff's right to counsel in the April 22, 2010, interrogation at the United States Embassy is a violation of plaintiff's rights under the Fifth Amendment;
d. Defendants' use of plaintiff's coerced testimony gathered during the April 22, 2010, interrogation at the United States Embassy in Khartoum and during his imprisonment, interrogation, and torture in the UAE is a violation of plaintiff's rights under the Fifth Amendment;
e. Defendants' placing name on the No-Fly List, which prevented him from returning to his homeland once abroad, is a denial of plaintiff's substantive due process rights under the Fifth Amendment.
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f. Defendants' placing plaintiff’s name on the No-Fly List with no notice thereof, with no reasons given therefor, and with no opportunity to challenge the basis for such placement is a denial of procedural due process under the Fifth Amendment.
2. Injunction. An injunction prohibiting or requiring that -a. Defendants not render United States citizens stateless by preventing them from returning to the United States through placing them on the No-Fly List once outside of the United States; b. Defendants not instigate or facilitate the torture of United States citizens in foreign countries; c. Defendants not interrogate United States citizens in foreign countries once a demand for legal counsel has been made; d. Defendants not use in a criminal proceeding information gathered from a United States citizen after the citizen's demand for legal counsel has been refused; e. Defendants not prevent plaintiff from returning to the United States in the event of future international travel by plaintiff; f. Defendants be required to provide plaintiff notice of placement of his name on the No-Fly List, provide plaintiff with the reasons for such placement, and provide plaintiff an opportunity to challenge or rebut the reasons therefor; g. Defendant State Department not cooperate with law enforcement authorities in facilitating interrogations of United States citizens at United States Page 19 - FIRST AMENDED COMPLAINT

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embassies without first assuring that such citizens will be provided legal counsel upon demand;
h. Defendant State Department be required to establish information and protocols to assist United States citizens to return to their homeland who, once abroad, are placed on the No-Fly List. 3. Damages. Enter judgment against each defendant sued in his individual capacity in the amount of $5 million each for the violation of plaintiff’s clearly established constitutional rights as alleged herein. Further, it is requested that plaintiff be awarded reasonable attorneys' fees pursuant to 28 U.S.C. § 2412(d), costs, and expenses of all litigation. 4. Other Relief. Such other relief as the Court may deem just and proper. DATED this 17th day of June, 2013.
s/ Thomas H. Nelson, OSB 78315 Gadeir Abbas, pro hac vice Attorneys for Plaintiff
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

YONAS FIKRE,
Plaintiff, v.
FEDERAL BUREAU OF INVESTIGATION; ERIC HOLDER, in his official capacity as Attorney General of the United States; DEPARTMENT OF STATE; JOHN KERRY, in his official capacity as Secretary of State; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center; DAVID NOORDELOOS, an employee of the Federal Bureau of Investigation, in his individual capacity; and JOHN DOE I, also known as JASON DUNDAS, an employee of the Federal Bureau of Investigation, in his individual capacity,
Defendants.

3:13-cv-00899-BR OPINION AND ORDER

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GADEIR I. ABBAS Council on American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 2003 (720) 291-0425
BRANDON B. MAYFIELD 3950 S.W. 185th Avenue Beaverton, Oregon 97007 (503) 941-5101
THOMAS H. NELSON P.O. Box 1211 Welches, Oregon 97067-1211 (503) 622-3262
Attorneys for Plaintiff
ERIC HOLDER United States Attorney General BRIGHAM J. BOWEN Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514-6289
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on the Motion (#21) to
Dismiss for Failure to State a Claim and for Lack of Jurisdiction
filed by Defendants Federal Bureau of Investigation (FBI), Eric
Holder, Department of State, John Kerry, James B. Comey, and
Christopher M. Piehota (collectively referred to as Official
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Capacity Defendants).1 For the reasons that follow, the Court GRANTS the Official
Capacity Defendants’ Motion (#21) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; DISMISSES with prejudice Claim One; DISMISSES without prejudice Claims Two, Five, and Six with leave to file a Second Amended Complaint consistent with this Opinion and Order no later than June 27, 2014; and directs these Defendants to file their responsive pleading to the Second Amended Complaint no later than July 25, 2014.
PROCEDURAL BACKGROUND The Official Capacity Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) the claims against them in Plaintiff Yonas Fikre’s First Amended Complaint (FAC) (#10) on the grounds that Plaintiff failed to present a ripe case or controversy in Claims One, Five, and Six; failed to exhaust available administrative remedies with respect to Claims One, Five, and Six; and failed to state a claim on which relief
1 Pursuant to Federal Rule of Civil Procedure 25(d), James B. Comey is automatically substituted for Robert S. Mueller III, and Christopher M. Piehota is automatically substituted for Timothy Healy.
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may be granted in Claims One, Two, Five, and Six.2 On March 14, 2014, the Court heard oral argument on the
Official Capacity Defendants’ Motion. At oral argument the Official Capacity Defendants acknowledged their arguments concerning exhaustion of administrative remedies are no longer applicable because Plaintiff exhausted his administrative remedies since filing the FAC, and Plaintiff advised the facts concerning exhaustion will be included in his Second Amended Complaint to be filed following this Opinion and Order. Accordingly, the Court need not address the parties’ arguments concerning exhaustion of administrative remedies.
The Court took the remaining issues in Official Capacity Defendants’ Motion under advisement at the conclusion of oral argument.
FACTUAL BACKGROUND Plaintiff alleges the following pertinent facts in his FAC: I. The No-Fly List The FBI is responsible for development and maintenance of the No-Fly List which identifies individuals who are “prohibited
2 David Noordeloos and Jason Dundas, the defendants sued in their individual capacities, have not yet been served and, therefore, are not currently parties to this litigation. Thus, Claims Three and Four are not at issue in the Motion to Dismiss because those claims relate exclusively to Noordeloos and Dundas.
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from flying into, out of, or over the United States,” or into, out of, or over Canadian airspace, by commercial airlines. II. Plaintiff’s Interrogation and Inclusion on the No-Fly List
Plaintiff is a 33-year-old naturalized American citizen of Eritrean descent who was a resident of Portland, Oregon, beginning in 2006. In late 2009 Plaintiff decided to use his experience working for a cellular telephone company in the United States to pursue the business of distributing and selling consumer electronic products in East Africa, and, accordingly, Plaintiff traveled to Sudan where some of his extended family lives. Once in Sudan Plaintiff informed the United States Embassy in Khartoum of his presence in the country and of his intention to pursue business opportunities there. Based on encouragement from Embassy personnel, Plaintiff began the process of obtaining a Sudanese business license.
On April 21, 2010, Plaintiff received a telephone call from the Embassy requesting Plaintiff to contact Defendant Noordeloos, who represented himself as an Embassy official. Plaintiff called Noordeloos, who invited Plaintiff to a luncheon at the Embassy the following day to discuss safety during a period of political turmoil in Sudan.
The next morning Plaintiff arrived at the Embassy and was met by Noordeloos and Defendant John Doe I, who introduced
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himself as Jason Dundas.3 Noordeloos and Dundas escorted Plaintiff to a small meeting room, shut the door, positioned themselves between Plaintiff and the door, and informed Plaintiff that they worked for the FBI Field Office in Portland.
When he was told Noordeloos and Dundas were FBI agents from Portland, Plaintiff requested to be represented by his legal counsel during any interrogation. Noordeloos, however, informed Plaintiff that he could not return to the United States to confer with his legal counsel because Plaintiff had been placed on the No-Fly List.
The ensuing interrogation lasted several hours until the end of the business day. Throughout the course of the interrogation Noordeloos and Dundas questioned Plaintiff about the As-Saber Mosque in Portland where Plaintiff had attended prayer services. In addition, Noordeloos and Dundas questioned Plaintiff about the source of financial support for his business endeavors and told him that sanctions made his business activities in Sudan illegal. Finally, Noordeloos asked Plaintiff to be an informant for the FBI in exchange for “substantial compensation” and removal from the No-Fly List. Plaintiff responded he did not wish to become an informant. At the end of the business day Noordeloos
3 For purposes of this Opinion, the Court refers to John Doe I as “Dundas.”
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suggested they resume the discussion the following day. Plaintiff agreed.
The following morning Plaintiff called Noordeloos on the telephone and informed him that he did not wish to meet further with Dundas and Noordeloos. Noordeloos became agitated when Plaintiff stated he did not want to be an informant. Noordeloos concluded the conversation by telling Plaintiff: “Whenever you want to go home you come to the embassy.” On May 4, 2010, a little more than a week after their final conversation, Noordeloos emailed Plaintiff as follows:
Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos FAC ¶ 28, p. 8. Plaintiff remained in Khartoum for approximately two months during which time he noticed he was being followed by persons he assumed to be associated with the Sudanese secret police. He learned from acquaintances that similar individuals had been inquiring about him and his activities. Plaintiff left Sudan on approximately June 15, 2010. On approximately September 15, 2010, Plaintiff traveled to the United Arab Emirates (UAE) to pursue similar business interests. Plaintiff obtained a residency permit in the UAE in
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order to conduct business, and he invested substantial financial resources provided by his family to that end.
On the evening of June 1, 2011, Plaintiff was forcibly taken from his home by persons he later learned were Emirati secret police. The police seized some of Plaintiff’s personal property, blindfolded him, and placed him in a heavily air-conditioned car. Plaintiff’s captors drove him for approximately two hours to a building where he was housed in a heavily air-conditioned, windowless cell with only a bed.
The next morning Plaintiff was led to a room in which he would undergo the first of repeated interrogations during 106 days of imprisonment. During these interrogations Plaintiff was blindfolded while he was questioned in English for extended periods of time. Periodically Plaintiff was able to peek beneath his blindfold and view the shoes and lower torsos of his interrogators, some of whom wore Western dress.
The substance of the interrogations focused on the activities, fundraising, and leadership of the As-Saber Mosque. In addition, the interrogators questioned Plaintiff about “circumstances and events that [P]laintiff had disclosed” to Noordeloos and Dundas in Khartoum, and the interrogators urged Plaintiff “numerous times” to cooperate with the FBI by becoming an informant.
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Plaintiff was subjected to multiple threats and beatings throughout the course of his confinement. In response to his resistance to answering questions, Plaintiff was struck on the head. Besides being hit on the head, Plaintiff was repeatedly beaten on his back, legs, and the soles of his feet with batons and plastic pipes. When Plaintiff returned to his cell at the end of the first day of interrogation, his bed had been removed and Plaintiff slept on the floor of his very cold cell. When Plaintiff asked his interrogators on several occasions whether his confinement and interrogation were at the request of the FBI, the interrogators severely beat Plaintiff.
On June 14, 2011, Plaintiff took a “lie-detector test” during which he was questioned about whether his “financial arrangements involved soliciting funds for al-Qaeda,” but he was not asked about the As-Saber Mosque. That evening the bed was returned to his cell.
On June 20, 2011, Plaintiff’s family learned from Plaintiff’s neighbors in the UAE that he was missing. Plaintiff’s counsel notified the United States Consulate in Abu Dhabi that Plaintiff had disappeared after being placed in an SUV of the type commonly used by the Emirati secret police.
The interrogations and beatings continued until July 28, 2011, when Plaintiff met with a United States Department of State employee named Marwa. Before the meeting Plaintiff’s captors
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instructed him not to disclose his mistreatment. During the interview guards told Marwa that Plaintiff was being held without charge as part of an ongoing investigation. Despite Plaintiff losing approximately 30 pounds since his kidnapping, Marwa found Plaintiff was in good health. Plaintiff “attempted by facial contortions and winks to indicate that he was under duress,” but Marwa either did not notice or disregarded the signals.
The interrogations and beatings resumed after Marwa’s visit. Following the meeting interrogators repeatedly told Plaintiff that he would be released “soon” or “tomorrow,” but his release was not forthcoming. Plaintiff considered refusing food in an attempt at suicide, but he was told he would be force-fed.
Near the end of his detention Plaintiff again asked an interrogator whether the FBI had requested his detention and interrogation. This time, however, the interrogator confirmed the FBI had made such a request and that American and Emirati authorities work closely on a number of such matters.
On September 14, 2011, Plaintiff was told he would be released that day. Interrogators took money from Plaintiff’s wallet to purchase an airline ticket back to the United States, but they were told Plaintiff would not be allowed to return to the United States by air because he was on the No-Fly List. Thus, Plaintiff chose to fly to Sweden where, in the belief that he might still be in danger of abuse in countries that condone
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torture, Plaintiff submitted an application for asylum. Based on his experience with State Department officials in Khartoum and the UAE, Plaintiff does not believe he can rely on the State Department to protect or to assist him while overseas. III. Plaintiff’s Claims
Plaintiff asserts four claims against the Official Capacity Defendants:
A. Claim One In Claim One Plaintiff alleges his placement by all Defendants on the No-Fly List while abroad prevented him, a United States citizen, from returning to the United States and “effectively stripped [P]laintiff of his rights, privileges, and immunities as a citizen, thereby effectively rendering him stateless in violation of the Fourteenth Amendment to the United States Constitution.” FAC ¶ 55, p. 15. Plaintiff seeks a declaration that “Defendants rendered him stateless by denying him his right as a citizen to return to the United States,” and Plaintiff seeks an injunction requiring “Defendants not render United States citizens stateless by preventing them from returning to the United States through placing them on the No-Fly List once outside of the United States.” FAC at pp. 18-19.
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B. Claim Two In Claim Two Plaintiff alleges all Defendants “enlisted foreign intermediaries to torture [P]laintiff at their behest. The foreign intermediaries were directed to torture [P]laintiff, and [P]laintiff was tortured in accordance with [D]efendants’ instructions.” FAC ¶ 58, pp. 15-16. Plaintiff seeks a declaration that “Defendants’ participation in the activities that led to Plaintiff’s imprisonment, interrogation, and torture at the hands of UAE authorities is a denial of [P]laintiff’s substantive due process rights under the Fifth Amendment and a denial of his right as a citizen under the Fourteenth Amendment,” and he seeks an injunction requiring “Defendants not instigate or facilitate the torture of United States citizens in foreign countries.” FAC at pp. 18-19. C. Claim Five In Claim Five Plaintiff alleges Defendants Holder, FBI, Comey, and Piehota violated Plaintiff’s substantive due-process “right to return to his homeland once abroad” by placing him on the No-Fly List.4 FAC ¶ 67, p. 17. Plaintiff seeks a declaration that his placement on the
4 Plaintiff also listed the FBI Terrorist Screening Center (TSC) as a participant in Claims Five and Six, but Plaintiff did not name the TSC as a defendant in his FAC.
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No-Fly List in a manner that prevented him from “returning to his homeland once abroad” denied Plaintiff his substantive dueprocess rights under the Fifth Amendment. In addition, Plaintiff seeks an injunction prohibiting Defendants from preventing Plaintiff “from returning to the United States in the event of future international travel” and requiring Defendant State Department to “establish information and protocols to assist United States citizens to return to their homeland who, once abroad, are placed in the No-Fly List.” FAC at pp. 18-20.
D. Claim Six In Claim Six Plaintiff alleges Defendants Holder, FBI, Comey, and Piehota violated Plaintiff’s procedural due-process rights by “placing [P]laintiff on the FBI-maintained, secret NoFly List without informing him of such placement, the basis for his inclusion on the No-Fly List, the means of removing his name from the No-Fly List, or providing an independent forum in which [P]laintiff might secure the removal of his name from the No-Fly List.” FAC ¶ 69, pp. 17-18. Plaintiff seeks a declaration that the placement of his “name on the No-Fly List with no notice thereof, with no reasons given therefor, and with no opportunity to challenge the basis for such placement is a denial of procedural due process under the Fifth Amendment.” Plaintiff also seeks an injunction requiring Defendants to “provide [P]laintiff notice of placement
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of his name on the No-Fly List, provide [P]laintiff with the reasons for such placement, and provide [P]laintiff an opportunity to challenge or rebut the reasons therefor.” FAC at pp. 18-19.
STANDARDS I. Federal Rule of Civil Procedure 12(b)(1)
When deciding a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court may consider affidavits and other evidence supporting or attacking the plaintiff’s jurisdictional allegations. Autery v. U.S., 424 F.3d 944, 956 (9th Cir. 2005). The court may permit discovery to determine whether it has jurisdiction. Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). The court has broad discretion in granting discovery and may narrowly define the limits of such discovery. Id. When the court "receives only written submissions, the plaintiff need only make a prima facie showing of jurisdiction." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). Plaintiff has the burden to establish that the court has subject-matter jurisdiction. Ass'n of American Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000).
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II. Federal Rule of Civil Procedure 12(b)(6) To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the plaintiff’s complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 546). When a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
The pleading standard under Federal Rule of Civil Procedure 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). See also Fed. R. Civ. P. 8(a)(2). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing
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Twombly, 550 U.S. at 555). A complaint also does not suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.
DISCUSSION The Official Capacity Defendants move to dismiss Claims One, Five, and Six pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction on the ground that Plaintiff’s allegations as to those claims do not present a ripe case or controversy. In addition, the Official Capacity Defendants move to dismiss Claims One, Two, Five, and Six pursuant to Rule 12(b)(6) for failure to state a claim on which relief may be granted. I. Subject-Matter Jurisdiction The Official Capacity Defendants move to dismiss Plaintiff’s Claims One, Five, and Six relating to the No-Fly List on the ground that Plaintiff has failed to allege facts sufficient to establish a ripe case or controversy. “Ripeness is one component of the Article III case or controversy requirement” designed “‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.’” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 835 (9th Cir. 2012)(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).
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“‘The ripeness inquiry contains both a constitutional and a prudential component.’” Id. (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993)).
A. Constitutional Ripeness “The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing.” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). “Whether framed as an issue of standing or ripeness, the inquiry is largely the same: whether the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Id. (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)). “In assuring that this jurisdictional prerequisite is satisfied,” the court considers “whether the plaintiffs face ‘a realistic danger of sustaining a direct injury as a result of’” the defendant’s allegedly illegal action “or whether the alleged injury is too ‘imaginary’ or ‘speculative’ to support jurisdiction.” Thomas, 220 F.3d at 1139 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). “[N]either the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Id. The Official Capacity Defendants argue Plaintiff’s claims as to the No-Fly List do not present a ripe case or controversy because Plaintiff has never personally attempted to purchase an airline ticket or to board a flight to the United States. The
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Official Capacity Defendants argue Plaintiff relies on “vague, outdated, word-of-mouth allegations about the actions of foreign ‘authorities’” to establish that Plaintiff’s injury due to his status on the No-Fly List is sufficiently definite and concrete to present a ripe case of controversy. Official Capacity Defs.’ Reply Mem. in Supp. of Mot. to Dismiss (#31) at 9.
The Court notes, however, the statement of the Emirati authorities that Plaintiff could not travel to the United States by air because he is on the No-Fly List is not the only alleged basis for Plaintiff’s claim that he is on the List. For example, Plaintiff alleges Noordeloos, an FBI agent, told Plaintiff during the interview at the Khartoum Embassy on April 22, 2010, that Plaintiff was on the List and that Noordeloos told Plaintiff the FBI could “take steps to remove [P]laintiff from the No-Fly List” if he agreed to be an informant. Thus, Plaintiff’s allegations suggest Noordeloos not only knew Plaintiff was on the No-Fly List, but also that Noordeloos had influence over Plaintiff’s continued status on the List.
These allegations, accepted as true at this stage of the proceedings, are sufficient to demonstrate that Plaintiff’s status on the No-Fly List and the alleged injuries that have arisen from that status are sufficiently definite and concrete to establish a ripe case or controversy. The statements of the Emirati authorities and Noordeloos may be somewhat dated, but
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there is not any evidence of an intervening event that would have changed Plaintiff’s status on the List. Although a denial of boarding may be necessary to ripen a typical plaintiff’s No-Fly List claims, here Plaintiff alleges he was told by a credible authority that he is on the List, and, therefore, the Court concludes it is not necessary for Plaintiff to attempt to make futile travel plans in order to establish constitutional ripeness.
Accordingly, the Court concludes Plaintiff’s claims that arise from being on the No-Fly List present a constitutionally ripe case or controversy.
B. Prudential Ripeness “To evaluate the prudential component of ripeness,” the court weighs “two considerations: ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’” Wolfson, 616 F.3d at 1060 (quoting Abbott Labs., 387 U.S. at 149). “‘A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’” U.S. West Communc’ns v. MFS Intelnet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999)(quoting Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989)). To establish hardship “‘a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial
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loss.’” Wolfson, 616 F.3d at 1060 (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126 (9th Cir. 2009)). When evaluating a claim of hardship, the court considers “‘whether the regulation requires an immediate and significant change in [the plaintiff’s] conduct of [his] affairs with serious penalties attached to noncompliance.’” Id.
The Court finds Plaintiff’s allegations in his FAC are sufficient to establish prudential ripeness. Plaintiff’s No-Fly List claims are primarily legal and do not require the development of any additional facts. Moreover, Plaintiff would suffer considerable hardship if the Court did not consider his No-Fly List claims because Plaintiff’s alleged status on the NoFly List deprives him of the right to board any flight that enters American airspace.
Accordingly, the Court concludes Plaintiff’s No-Fly List claims are appropriate for the Court’s consideration under prudential ripeness. II. Failure to State a Claim
The Official Capacity Defendants argue Plaintiff fails to state a claim against them. See Fed. R. Civ. P. 12(b)(6).
A. Claim One: Fourteenth Amendment In Claim One Plaintiff alleges: “By placing [P]laintiff on the No-Fly List and prohibiting [P]laintiff from returning home after his ordeal in the UAE, [D]efendants effectively stripped
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[P]laintiff of his rights, privileges, and immunities as a citizen, thereby effectively rendering him stateless in violation of the Fourteenth Amendment to the United States Constitution.” FAC ¶ 55, p. 15. Although it may not be clear on the face of Plaintiff’s FAC, Plaintiff clarified at oral argument that Claim One is based on the Citizenship Clause of the Fourteenth Amendment.5
The Citizenship Clause of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const. amend. XIV, § 1. “[T]he protection afforded to the citizen by the Citizenship Clause of [the Fourteenth] Amendment is a limitation on the powers of the National Government as well as the States.” Saenz v. Roe, 526 U.S. 489, 507-08 (1999).
The Citizenship Clause serves as a “constitutional definition and grant of citizenship.” Afroyim v. Rusk, 387 U.S. 253, 262 (1967). The Citizenship Clause provides the constitutional basis for claims regarding an individual’s legal status as a citizen. See, e.g., Vance v. Terrazas, 444 U.S. 252
5 To the extent that Plaintiff seeks to state a claim under the Privileges and Immunities Clause of the Fourteenth Amendment in Claim One, the Court concludes that effort fails because the Privileges and Immunities Clause “applies in terms only to actions taken by states, not to those . . . taken by the federal government.” Russell v. Hug, 275 F.3d 812, 822 (9th Cir. 2002).
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(1980)(to extinguish an individual’s citizenship status, a trier of fact must find that the citizen intended to renounce his citizenship); Afroyim, 387 U.S. at 267 (citizenship can only be revoked upon the voluntarily relinquishment of citizenship by the citizen); Rabang v. Immigration and Naturalization Serv., 35 F.3d 1449, 1452 (9th Cir. 1994)(birth in the Philippines during its territorial period does not “constitute birth ‘in the United States’ under the Citizenship Clause . . . and thus does not give rise to United States citizenship.”).
As an initial matter, Plaintiff is undoubtedly correct that the right to return to the United States is inherent in American citizenship. See Nguyen v. Immigration and Naturalization Serv., 533 U.S. 53, 67 (2001)(citizenship in the United States includes “an absolute right to enter its borders.”). Plaintiff, however, seeks to extend the Citizenship Clause not only to protect an individual’s status as a citizen, but also to protect the rights of citizenship.
Plaintiff does not cite any cases and the Court does not find any in which the Citizenship Clause has been interpreted to protect the rights of citizenship. Instead the Citizenship Clause only defines and protects an individual’s status as a citizen while other constitutional limitations on the powers of the government protect the rights of citizenship. Indeed, this was the role of the Citizenship Clause within the Fourteenth
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Amendment at its passage: “[W]hen the Fourteenth Amendment passed the House without containing any definition of citizenship, the sponsors of the Amendment in the Senate insisted on inserting a constitutional definition and grant of citizenship.” Afroyim, 387 U.S. at 262. Plaintiff’s interpretation of the Citizenship Clause as protecting the rights of citizenship would transform the provision from a “constitutional definition and grant of citizenship” (see id.) into a catchall provision protecting every right reasonably characterized as a right of citizenship contrary to the plain meaning and purpose of the Citizenship Clause.
The Court notes Plaintiff does not allege Defendants have taken any action to strip him of his United States citizenship, and, therefore, the Court concludes Plaintiff does not state a claim for relief in Claim One under the Citizenship Clause of the Fourteenth Amendment. Because that deficiency cannot be cured by amendment, the Court dismisses Plaintiff’s Claim One with prejudice.
B. Claim Two: Torture In Claim Two Plaintiff alleges all Defendants “enlisted foreign intermediaries to torture [P]laintiff at their behest. The foreign intermediaries were directed to torture [P]laintiff, and [P]laintiff was tortured in accordance with [D]efendants’ instructions.” FAC ¶ 58, pp. 15-16.
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Although a claim must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), the Court notes Plaintiff fails to plead any legal basis upon which he seeks relief in Claim Two.
Accordingly, the Court concludes on this record that Plaintiff has failed to meet the pleading requirements of Rule 8. The Court, therefore, dismisses Plaintiff’s Claim Two without prejudice and with leave to amend to plead facts that provide a legal basis for the relief that he seeks in Claim Two.
C. Claim Five: Substantive Due Process In Claim Five Plaintiff alleges the actions of Defendants Holder, FBI, Comey, and Piehota “in placing [P]laintiff on the FBI-maintained, secret No-Fly List resulted in the violation of Plaintiff’s Fifth Amendment substantive due process right to return to the homeland.” FAC ¶ 67, p. 17. “Substantive due process ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’” Mohamed v. Holder, No. 1:11-CV-50 (AJT/TRJ), 2014 WL 243115, at *13 (E.D. Va. Jan. 22, 2014)(quoting Washington v. Glucksberg, 521 U.S. 702, 719 (1997)). Substantive due process “protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor
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justice would exist if they were sacrificed.’” Glucksberg, 521 U.S. at 720-21 (quoting Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977)(plurality opinion), and Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).
To establish a substantive due-process claim, the plaintiff must carefully describe the fundamental liberty interest. Id. at 721. In this case the only infringed liberty interest alleged by Plaintiff is his right to return to the United States.
The Official Capacity Defendants, however, contend Plaintiff’s assertion of such an infringed liberty interest fails on three grounds: (1) no court has recognized a right to return to the United States; (2) even if such a right exists, it only serves to permit a citizen entry upon presentation to a port of entry and does not extend to the right to reach a port of entry; and (3) even if the right to return extends to more than a right to cross the border, Plaintiff has failed to allege his inclusion on the No-Fly List presents an insurmountable barrier to returning to the United States.
Because the Supreme Court has described the right of an American citizen to return to the United States from abroad as “absolute,” Nguyen, 533 U.S. at 67, the Court finds the right of a citizen to return to the United States from abroad is
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cognizable under substantive due process.6 As Judge Anthony J. Trenga’s concluded in Mohamed:
{A] U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. At some point, governmental actions taken to prevent or impede a citizen from reaching the [border] infringe upon the citizen’s right to reenter the United States. Mohamed, 2014 WL 243115, at *14 (citations omitted). Thus, to plead a substantive due-process claim based on a deprivation of the right to return to the United States, Plaintiff must allege facts sufficient to demonstrate that Defendants have deprived him of every viable means of returning to the country. Here Plaintiff alleges “[a]ir travel is the only practical means of passenger transportation between the North American continent and Europe, Asia, Africa, the Middle East, and Australia.” FAC ¶ 17, p. 5. “Although this may be the sort of conclusory allegation that ordinarily is not entitled to acceptance as true at this stage of the proceedings, it is, nevertheless, consistent with the realities of the modern world.” Tarhuni v. Holder, No. 3:13-cv-00001-BR, 2014 WL 1269655, at *11 (D. Or. Mar. 26, 2014). See also Mohamed, 2014 WL 243115, at *6; Latif v. Holder, 969 F. Supp. 2d. 1293, 1302-03 (D. Or. 2013);
6 The Court need not decide at this stage of the proceeding the level of scrutiny that applies to burdens on a citizen’s right to return to the United States.
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Ibrahim v. Dep’t of Homeland Sec., No. C 06-00545 WHA, 2012 WL 6652362, at *7 (N.D. Cal. Dec. 20, 2012).
Plaintiff’s allegations, nevertheless, reveal he has been offered a viable means of returning to the United States. As noted, Plaintiff alleges Defendant Noordeloos told him: “Whenever you want to go home you come to the embassy.” FAC ¶ 27, p. 8. Although Plaintiff’s lack of confidence in State Department personnel is understandable in light of the facts he alleges, Plaintiff’s concerns do not establish the option of making arrangements to return to the United States through the embassy is actually unavailable to Plaintiff. Thus, Plaintiff has not sufficiently alleged facts to support a conclusion that Defendants Holder, FBI, Comey, and Piehota have deprived him of all viable means of returning to the United States.
On this record, therefore, the Court concludes Plaintiff has failed to state a claim against Defendants Holder, FBI, Comey, and Piehota that they deprived him of all practical means of returning to the United States. In fact, the Court notes Plaintiff’s specific allegations about the limitations imposed upon him by his presence on the No-Fly List are particularly sparse. See FAC ¶ 19, p. 5. Moreover, because the Court finds Plaintiff’s allegations show that Plaintiff has a viable means of returning to the United States, the Court need not determine on
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this Motion whether these minimal allegations are sufficient to implicate Plaintiff's right to return to the United States.
Accordingly, the Court dismisses Plaintiff’s Claim Five without prejudice and with leave to amend.
D. Claim Six: Procedural Due Process In Claim Six Plaintiff alleges the actions of Defendants Holder, FBI, Comey, and Piehota “in placing [P]laintiff on the FBI-maintained, secret No-Fly List without informing him of such placement, the basis for his inclusion on the No-Fly List, the means of removing his name from the No-Fly List, or providing an independent forum in which [P]laintiff might secure the removal of his name from the No-Fly List, all violated [P]laintiff’s right to procedural due process under the Fifth Amendment.” FAC ¶ 69, pp. 17-18. When presented with a procedural due-process claim, the Court must weigh three factors in evaluating the sufficiency of procedural protections: (1) “the private interest that will be affected by the official action”; (2) “the risk of erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976). To
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state a claim under procedural due process, a plaintiff must at a minimum sufficiently plead the deprivation of a protected liberty or property interest and the denial of adequate procedural protections. Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982-83 (9th Cir. 1998).
In Claim Six Plaintiff fails to state a claim against Defendants Holder, FBI, Comey, and Piehota under procedural due process because he does not identify any protected interest that he has been deprived of by Defendants' official actions. Thus, because Plaintiff has not alleged any protected private interest that has been affected in Claim Six, further analysis of Plaintiff’s procedural due-process claim is impossible under the Mathews balancing factors.
Accordingly, on this record the Court dismisses Plaintiff’s Claim Six without prejudice and with leave to amend.
CONCLUSION For these reasons, the Court GRANTS the Official Capacity Defendants’ Motion (#21) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; DISMISSES with prejudice Claim One; DISMISSES without prejudice Claims Two, Five, and Six with leave to file a Second Amended Complaint consistent with this Opinion and Order no later than June 27, 2014; and directs these
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Defendants to file their responsive pleading to the Second Amended Complaint no later than July 25, 2014.
IT IS SO ORDERED. DATED this 29th day of May, 2014.
/s/ Anna J. Brown _____________________________ Anna J. Brown United States District Judge
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 Case 3:13-cv-00899-BR Document 62 Filed 04/06/15 Page 1 of 47

Thomas H. Nelson, OSB 78315 (nelson@thnelson.com) P.O. Box 1211 Welches, OR 97067 Phone: 503.622.3262
Brandon Mayfield, OSB 000824 (mayfieldbrandon@hotmail.com) 3950 SW 185th Avenue Beaverton, OR 97007 Phone: 503.941.5101
Gadeir Abbas, pro hac vice (gadeir.abbas@gmail.com) 1155 F Street NW, Suite 1050 Washington, DC 20004 Phone: 720.251.0425
William J. Burgess, pro hac vice (wburgess@cair.com) Council on American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 20003 Phone: 202.488.0833

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

YONAS FIKRE,

Plaintiff,

Civil No. 3:13-cv-00899-BR

v.
THE FEDERAL BUREAU OF INVESTIGATION; ERIC HOLDER, Attorney General of the United States (sued only in his official capacity); STATE DEPARTMENT; JOHN KERRY, Secretary of State (sued in his official capacity); UNITED STATES OF AMERICA; JAMES B. COMEY, Director of the FBI (sued in his official capacity); CHRISTOPHER M. PIEHOTA, Director of FBI Terrorism Screening Center (sued in his official capacity); JAMES CLAPPER, Director

FOURTH AMENDED COMPLAINT, Corrected per Order of the Court, ECF # 61
FALSE ARREST; FALSE IMPRISONMENT; ASSAULT; BATTERY; TORTURE; VIOLATION OF THE RIGHT TO COUNSEL; VIOLATION OF THE FIRST AMENDMENT FREEDOM OF ASSOCIATION; VIOLATION THE TORTURE VICTIM PROTECTION ACT; VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS; VIOLATION OF FOURTH AMENDMENT; VIOLATION OF STORED

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of National Intelligence (sued in his official capacity); MICHAEL S. ROGERS, Director of the National Security Agency (sued in his official capacity); NATIONAL SECURITY AGENCY; DAVID NOORDELOOS, an FBI Agent (sued in his official and individual capacity), JOHN DOE I, a.k.a. JASON DUNDAS, an FBI Agent (sued in his official and individual capacities), and JOHN/JANE DOES IIXX, agents of the United States (sued in their official and individual capacities),

COMMUNICATIONS ACT; VIOLATION OF WIRETAP ACT
JURY TRIAL DEMANDED

Defendants.

I. INTRODUCTION 1. Plaintiff Yonas Fikre, an American citizen, seeks redress for (i) the denial of his right to travel internationally, which denial prevented him from returning to the United States when he was expelled from the United Arab Emirates and prevents him from domestic and international air travel today (ii) the denial of his right to procedural due process leading to denial of his right to travel internationally, (iii) the violation of his right to counsel by FBI agents and others acting on their behalf, which violation resulted in his prosecution in the Federal District Court for the Southern District of California and other harms, (iv) violation of his First Amendment right of association, (v) suffering false arrest, false imprisonment, assault, and torture at the hands of a foreign power, which, on information and belief, was instigated by and facilitated by defendants, acting at times under the actual or apparent authority of said foreign power, (vi) violation of his right to be free from unconstitutional searches and seizures, and (vii) violation of his statutory protections against unlawful electronic surveillance.

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2. Plaintiff's allegations in summary are (i) that defendants sometime prior to April 21, 2010, placed plaintiff's name on the "No-Fly List" in order to coerce plaintiff into becoming an informant/agent provocateur for the FBI, (ii) that on April 21, 2010, during an involuntary interview at the United States Embassy in Khartoum, Sudan, defendants denied plaintiff's request for legal counsel, (iii) that during the April 2010 involuntary interview plaintiff was urged to become an informant/agent provocateur for the FBI in order to, among other things, have his name removed from the No-Fly List, (iv) that when plaintiff refused to become an informant/agent provocateur, defendants retaliated by instigating and facilitating his false arrest, false imprisonment, assault, and torture at the hands of the UAE government during the summer of 2011, (v) that defendants denied plaintiff his constitutional right as a citizen to return home to the United States following the UAE government's releasing him without charge by keeping his name on the No-Fly List, thus effectively rendering him temporarily stateless, (vi) that in May 2012 defendants further retaliated against plaintiff for his publicly disclosing his ordeal by indicting him in the District Court for the Southern District of California using information gathered during his interrogation at the U.S. Embassy in Khartoum, during his interrogation and torture in the UAE, and by means of unlawful electronic surveillance, and (vii) that plaintiff was subject to warrantless electronic surveillance in violation of the Constitution and statutory law.
3. Through this action for declaratory and injunctive relief and for damages plaintiff seeks (i) a declaration that plaintiff's right to assistance of legal counsel has been violated, (ii) a declaration that plaintiff's fundamental right to return to the United States by air, and his right to travel by air, have been and are being infringed, (iii) a
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method whereby plaintiff can challenge the inclusion of his name on the No-Fly List in accordance with due process procedures, (iv) redress for the instigation and facilitation of the false arrest, false imprisonment, assault, and torture by the UAE government, (v) an injunction preventing the United States from violating the rights specified herein in the future, (vi) a declaration that the interception and/or acquisition of plaintiff's wire and electronic communications was unconstitutional and illegal, (vii) the retrieval, purging, destruction and prevention of further dissemination of all illegally intercepted and/or acquired voice and electronic communications and related data and information arising from such interceptions and/or acquisitions, and (viii) monetary damages for the events specified in this complaint.
II. PARTIES 4. Plaintiff is a naturalized American citizen of Eritrean descent. Plaintiff has never engaged in any acts of terrorism or supported terrorism in any form. 5. Defendant Federal Bureau of Investigation is a bureau of the Department of Justice responsible for, among other things, selecting individuals for inclusion on, and maintaining, the No-Fly List. 6. Defendant Eric Holder is Attorney General, whose office is responsible for, among other agencies, the FBI and the Terrorism Screening Center. Mr. Holder is sued only in his official capacity. 7. Defendant Department of State is the Department of the United States responsible for protecting and assisting United States citizens while those citizens are abroad. 8. Defendant John Kerry is Secretary of State, who is responsible for foreign
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relations and for protecting and assisting United States citizens while abroad. Mr. Kerry is sued only in his official capacity.
9. Defendant James B. Comey is Director of the FBI. He is sued only in his official capacity.
10. Defendant Christopher M. Piehota is Director of the FBI’s Terrorism Screening Center. He is sued only in his official capacity.
11. Defendant United States of America is the United States of America, its departments, agencies, and entities.
12. Up to April 22, 2010, individual defendant David Noordeloos, who is sued in his individual capacity, held himself out to plaintiff as an employee of the State Department. Previously, however, on April 6, 2010, defendant Noordeloos held himself out as a special agent of the FBI in a meeting with Portland Police Bureau Chief Rosanne Sizer, and on April 22, 2010, defendant Noordeloos told plaintiff that defendant Noordeloos is in fact an employee of the FBI assigned to and/or reporting to the Portland office of the FBI. Defendant Noordeloos traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, Defendant Noordeloos did so interrogate plaintiff for several hours. Moreover, on July 11, 2011, in an email to plaintiff's attorney, defendant Noordeloos once again held himself out as an employee of the State Department.
13. Defendant James R. Clapper is Director of National Intelligence. He is sued only in his official capacity.
14. Defendant Admiral Michael Rogers is the Director of the National Security Agency, which is a part of the United States Department of Defense. As NSA Director,
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Admiral Rogers has authority to supervise and implement all operations and functions of the NSA, which include the interception of wire and electronic communication. He is sued only in his official capacity.
15. Defendant National Security Agency is a part of the United States Department of Defense.
16. At all times relevant, individual defendant FBI Agent John Doe I, a person identifying himself as defendant Jason Dundas, who is sued in his individual capacity, was an employee of the FBI assigned to the Portland office. Defendant John Doe I (Jason Dundas) traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, defendant John Doe I (Jason Dundas) did so interrogate plaintiff for several hours.
17. John/Jane Does II-X are unknown agents of the United States who ordered, directed, undertook, or in some manner participated in facilitating the false arrest, false imprisonment, assault, battery, and torture of plaintiff at the UAE secret prison in Abu Dhabi from June 1 through September 13, 2011.
18. John/Jane Does XI-XX are unknown agents of the United States, who ordered, directed, undertook, or in some manner participated in the interception and/or acquisition of plaintiff’s electronic, and stored communications and/or utilized or disseminated such communications. On information and belief, John/Jane Does XI-XX are continuing the activities specified in this paragraph.
III. JURISDICTION AND VENUE 19. This is a complaint for injunctive and declaratory relief, and for damages, based upon defendants’ violation of plaintiff’s constitutional, statutory, and common law
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rights. The claims asserted arise under the Due Process Clause of the Fifth Amendment (substantive and procedural), the Fifth Amendment’s right to counsel and prohibition against self-incrimination, the First Amendment’s right to freedom of association, the Fourth Amendment's prohibition against unreasonable searches and seizures, 50 U.S.C. § 1810, 18 U.S.C. § 2707(a), 18 U.S.C. § 2712, 18 U.S.C. § 2520(a), the Torture Victim Protection Act, and the common law.
20. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, 18 U.S.C. § 2712, 28 U.S.C. § 1367, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
21. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
22. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because defendants include the United States and agencies of the United States, because this judicial district is where plaintiff resides and because a substantial part of the events or omissions giving rise to the claims occurred in this district. Venue is also proper in this Court because defendants David Noordeloos and John Doe I (Jason Dundas) at all times relevant hereto either resided in, worked in, or were assigned to and/or reported to superiors located in this District.
IV. FACTUAL ALLEGATIONS General Factual Allegations
23. Air travel is the only practical means of passenger transportation between the North American continent and Europe, Asia, Africa, the Middle East, and Australia.
24. Defendant FBI is responsible for selecting individuals for inclusion on, and
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maintaining, the "No-Fly List," which lists individuals whom the airlines flying within, into, or over the United States may not transport.
25. Information upon which a determination is made to place an individual on the No-Fly List is kept secret, and individuals on the No-Fly List are not informed when their names are placed on the List, when their names are removed from the No-Fly List, or what their current status is vis-à-vis the No-Fly List.
26. The criterion for placing an individual's name on the No-Fly List was developed in secret by the Terrorism Screening Center without congressional oversight or approval. Under the present criterion, a person may be "nominated" to be on the List if "there is a reasonable suspicion to believe that a person is a known or suspected terrorist."
27. Most individuals on the No-Fly List, and plaintiff in this action, are prohibited from flying on commercial aircraft into, out of, or over United States and Canadian airspace. Plaintiff's Background, Travel, Imprisonment, Torture, and Release
28. Plaintiff is a naturalized American citizen of Eritrean descent. When he was a small boy, war broke out in Eritrea, and thus his family took him to Sudan, where he was when the State of Eritrea came into being in 1993. From Sudan the Fikre family emigrated to the United States.
29. Beginning in 2006, plaintiff resided in Portland, Oregon. In late December 2009, after working for an American cell phone company, plaintiff decided to attempt to distribute and to sell consumer electronic products on the retail market in East Africa. He began by returning to Sudan, where some of his extended family still reside. Upon
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arrival in Sudan, plaintiff, in compliance with a recommendation by the State Department, contacted the United States Consulate in Khartoum and informed a representative of the consulate of his interest in pursuing business opportunities in the country. The representative encouraged plaintiff to pursue business opportunities in Sudan. In reliance upon the representative's recommendation plaintiff began the process of obtaining a Sudanese business license.
30. On Tuesday, April 20, 2010, defendant Noordeloos sent an email to plaintiff, which stated: "Younas, I work at the embassy in Khartoum and need to meet up with you on wed 4/21. Can you email me back and let me know what time in the afternoon works for you? Best, David Noordeloos US Department of State".
31. On Wednesday, April 21, defendant Noordeloos sent an email to plaintiff, which stated: "Yonas, I hope this finds you well. I still need to meet with you as soon as possible, can you give me a call and let me know what time works for you to meet? You can email me back or try me at the Embassy or on my cell, but please contact me soonest. Regards, David Noordeloos, US Department of State" [telephone numbers redacted].
32. On April 21, at approximately 9 p.m. local time, plaintiff called the number given and spoke with defendant Noordeloos. Defendant Noordeloos stated that a number of Americans in Sudan had been invited to the Embassy for a luncheon the following day in order to discuss how Americans might stay safe during a period of political turmoil in Sudan. Plaintiff agreed to attend the luncheon on that basis, which turned out to be a false pretense.
33. The next day plaintiff appeared at the embassy. After going through
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security screening, plaintiff met defendant Noordeloos and another person, defendant John Doe I, who identified himself as Jason Dundas. Defendants Noordeloos and John Doe I (Jason Dundas) escorted plaintiff to a small meeting room and shut the door; defendants positioning themselves between plaintiff and the door. At that point defendants Noordeloos and John Doe I (Jason Dundas) produced badges and stated that they were FBI agents assigned to the Portland office.
34. Upon being informed that defendants Noordeloos and John Doe I (Jason Dundas) were FBI agents from the Portland office, plaintiff stated that he wanted to be represented by his legal counsel (plaintiff was then represented by Oregon attorney Brandon Mayfield) during the interrogation. Defendant Noordeloos denied Mr. Fikre’s request for such representation on the grounds that plaintiff had been placed on the NoFly List and thus could not return to the United States to confer with his attorney.
35. Because defendants John Doe I (Jason Dundas) and Noordeloos were blocking the door, plaintiff, who had never before been detained or arrested, felt he could not leave. During the following interrogation, defendants Noordeloos and John Doe I (Jason Dundas) questioned plaintiff extensively about the events, activities, and leadership at the as-Saber Mosque in Portland, which plaintiff had attended for prayer services. Defendant Noordeloos also questioned plaintiff about the source of his financial support for this business endeavors in Sudan, and told plaintiff that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for plaintiff to engage in business transactions in Sudan - a statement that is inconsistent with the advice and recommendation earlier given by the representative of the embassy as set forth in ¶ 29, supra.
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36. Defendant Noordeloos next told plaintiff that the FBI desired plaintiff to become an FBI informant to work upon “a case” that was then developing. Defendant Noordeloos stated that, in return, plaintiff would be paid substantial compensation, be in a position to enjoy “the good life,” and that the FBI would take steps to remove plaintiff from the No-Fly List. Defendant Noordeloos then asked, "Don't you love your wife?", which question plaintiff considered an implicit threat. Plaintiff responded that he did not wish to become an FBI informant. The interview lasted for several hours until the close of the business day. As the day wore on, defendant Noordeloos suggested that they resume the discussion on the following day; in order to escape the interrogation room and leave the embassy, plaintiff agreed.
37. At approximately 8:45 a.m. on the following morning, plaintiff called defendant Noordeloos and stated that he did not wish to meet further with the FBI agents because he would be wasting their and his time; he reiterated that he did not wish to become an informant for the FBI. Defendant Noordeloos became agitated and, to the best of plaintiff's recollection, stated, "Wait a minute! Are you trying to tell me you don't want to work with us!" Defendant Noordeloos then stated, "Whenever you want to go home you come to the embassy." Plaintiff understood this to mean that plaintiff's name would not be removed from the No-Fly List and he could not travel to the United States unless he became an informant/agent provocateur for the FBI.
38. On May 4, 2010, defendant Noordeloos wrote an email to plaintiff which stated: "Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos."
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39. Plaintiff remained in Khartoum for almost two months following his meeting with defendants Noordeloos and John Doe I (Jason Dundas). During that time he noticed that he was being followed by persons he assumed were affiliated with the Sudanese secret police, and he was told by merchants and other acquaintances in his neighborhood that similar individuals had been inquiring about him and his activities.
40. On or about June 15, 2010, plaintiff left Sudan, and on or about September 15, 2010, plaintiff arrived in the UAE to pursue similar business interests involving the distribution and retail sale of consumer electronics there. Plaintiff moved to the city of Al Ain in the emirate of Abu Dhabi, where he sought and obtained a residency permit from the UAE in order to conduct business; he invested substantial financial resources provided by family members in pursuing that course.
41. In the evening of June 1, 2011, persons unknown to plaintiff (who plaintiff later learned were UAE plainclothes secret police) invaded plaintiff's home in Al Ain, seized plaintiff's computer, phone, and other items, and compelled plaintiff to accompany them in a vehicle. Several of plaintiff's friends and neighbors witnessed plaintiff's apprehension. Plaintiff was blindfolded, placed in a confined space in the vehicle, and the air conditioner in the vehicle was turned on high and directed at him with the effect that he became quite chilled.
42. Plaintiff was taken to a then-unknown location approximately two hours’ driving time from Al Ain. Still blindfolded, he was led into a building and into a long hall where, by peeking down through the bottom of his blindfold, he noticed that he was passing door after door. His guards stopped at one door and put him inside a windowless cell where he was lodged. Upon removal of his blindfold, he saw that his
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tiny cell lacked toilet facilities. His cell contained only a bed and some bedding. The cell was very cold because the air conditioning had been set on high.
43. The following morning the interrogations of plaintiff began. Except for the one instance noted below, during all of his interrogations plaintiff was blindfolded. Once blindfolded, he was taken to a room where, throughout his ordeal, plaintiff was questioned for hours in English. Periodically during the 106 days of his imprisonment and torture, plaintiff occasionally was able to peek beneath the blindfold and view shoes and the lower torsos of his interrogators.
44. The primary focus of the blindfolded interrogations was events at Portland's as-Saber Mosque, addressing in particular who plaintiff knew at the mosque who had a "jihadi mentality," what topics the mosque's leader, Sheikh Mohamed Kariye, speaks about both in public and in private, and how fundraising at the mosque occurs and who engages in fundraising there. The interrogators also questioned plaintiff about circumstances and events that plaintiff had disclosed to defendants Noordeloos and John Doe I (Jason Dundas) during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations plaintiff's interrogators urged him to cooperate with them and with the FBI by becoming an informant.
45. When plaintiff was returned to his cell at the end of the first day of interrogation he discovered that his bed and bedding had been removed. The air conditioning remained at a high level, which made the cell extremely cold. Because his bed and bedding had been removed, plaintiff was obliged to sleep almost naked on the cold cement floor.
46. During the initial period of his confinement plaintiff resisted answering
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some of the questions, insisting that he was an American citizen and needed to speak with his ambassador and with his attorney. In response, plaintiff's jailers struck him on his head and he fell to the ground. Throughout course of his confinement plaintiff was repeatedly beaten severely on his head, back, legs, and feet with batons and plastic pipes, required to assume stress positions for hours, and threatened with death by strangulation by use of a flexible plastic pipe. One particularly painful torture method his interrogators used was to force plaintiff to lie on his stomach with his sandals off, whereupon he was beaten severely on the soles of his feet; thereafter, he was required to stand on his feet, which standing caused him great pain.
47. On several occasions plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same questions and suggestion he had heard from defendants Noordeloos and John Doe I (Jason Dundas); he thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating plaintiff severely.
48. As noted above, during his interrogations plaintiff was occasionally able to peek beneath his blindfold and view the lower torsos of his interrogators. On most occasions, based on their clothing and accents, plaintiff believes that his interrogators were Arabs. On other occasions, however, plaintiff was able to view the shoes and slacks of several individuals who wore Western dress. Plaintiff believes that in those instances some or all of the Individual defendants, acting as representatives of the United States, were present and witnessed the interrogations and that those Individual defendants participated in interrogating plaintiff.
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49. All Individual defendants who attended and participated in the interrogation of plaintiff were present with the permission, and were under the physical and legal control, of UAE authorities who operated and maintained the secret prison.
50. On or about June 14, 2011, plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his confinement, plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland's as-Saber Mosque but, rather, upon whether plaintiff's financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test plaintiff’s bed and bedding were returned to his cell.
51. The interrogations, including beatings and stress positions, as well as being subjected to temperature extremes, sleep deprivation, and humiliation when not being interrogated, continued daily from June 14 through July 27.
52. On June 20, 2011, immediately after learning from plaintiff's family that plaintiff had been apprehended in the UAE (the family had learned of plaintiff's apprehension from witnesses who observed the event), Oregon counsel Thomas Nelson telephoned and then e-mailed the United States Consulate in Abu Dhabi to inform them that plaintiff, a United States citizen, had gone missing and that witnesses in Al Ain had viewed him being placed in a SUV of the type that is commonly used by the UAE secret police. The consulate officials indicated that they would look into the matter.
53. On July 21, 2011, plaintiff's Oregon counsel Thomas Nelson on behalf of plaintiff contacted Representative Earl Blumenauer's office to request assistance in locating plaintiff and made contact with staff member Emily Barrett. Ms. Barrett stated
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that Congressman Blumenauer would look into the situation. 54. On July 28, 2011, plaintiff was informed that a woman from the American
consulate had arrived to see him. He was told that he was to meet with the American consul and that he should not disclose to the consular officer that he had been mistreated during his detention lest he beaten still more severely.
55. On July 28, 2011, plaintiff, accompanied by two guards, was taken to a meeting room where he met “Marwa,” a consular employee of the State Department who, on information and belief, is of Egyptian extraction. The two guards positioned themselves close to plaintiff, one on each side. Marwa was dressed in Islamic attire (a “hijab,” or covering of her hair). By that time plaintiff had lost approximately 30 pounds of body weight.
56. The meeting with Marwa was short and superficial. Although by that time plaintiff had lost approximately 30 pounds, Marwa stated that plaintiff appeared to be in good shape. During the interview plaintiff attempted by facial contortions and winks to indicate that he was under duress, but Marwa either did not notice or disregarded these signals.
57. Marwa questioned plaintiff regarding what offense he had been charged with, whereupon plaintiff asked the two guards what he had been charged with. The guards stated that plaintiff was being held without charge and that the authorities were merely conducting an investigation.
58. Following the meeting with Marwa, plaintiff was returned to his cell and the interrogations and torture resumed. Marwa’s visit was the only United States consular visit during plaintiff's 106 days of detention and torture; the consulate did not visit or
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make any contact with plaintiff during his remaining 49 days of his confinement and torture, nor did it provide any assistance to plaintiff when he was deported from the UAE.
59. Following the meeting with Marwa, plaintiff became despondent. Because the consul's office had sent a Muslim woman wearing a hijab to interact with the prison authorities and the two guards, plaintiff came to believe that, because of his black skin, the United States had “thrown [him] away.” He consequently began to consider refusing food in an attempt at suicide, but was told that he would be force-fed if necessary.
60. Toward the end of his interrogation plaintiff again inquired of his interrogator whether the FBI had requested that he be detained and interrogated. This time, instead of being beaten, the interrogator stated that indeed the FBI had made such a request and that the American and Emerati authorities work closely on a number of such matters.
61. On September 14, 2011, plaintiff was told that he would be released that day but would have to leave the UAE and stay out for at least a year. His belongings were returned to him and money from his wallet was taken to buy him a plane ticket back to the United States while plaintiff remained in custody. Such a ticket was purchased from a travel agency; however, when the jailer took the ticket to the airport to obtain a boarding pass, the boarding pass was refused on the grounds that plaintiff was on the No-Fly List.
62. Plaintiff's custodian was visibly upset because he could not board the flight out of the UAE, and asked plaintiff, “What kind of country would refuse a citizen’s return to his own country?” or words to that effect. The custodian then reiterated that plaintiff
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could not stay in the UAE, and therefore would have to go somewhere else, and asked where plaintiff wished to be sent. Because plaintiff had a relative in Sweden, plaintiff indicated that he should be sent there. Therefore, the custodian took more money from plaintiff's wallet and arranged the purchase of a ticket to Stockholm, Sweden. This time a boarding pass was issued for plaintiff.
63. The United States consulate in the UAE knew or should have known that plaintiff would be deported upon his release from prison, but the consulate took no action to provide assistance to plaintiff upon his release.
64. Plaintiff arrived in Sweden traumatized, with few financial and other resources, and clothing entirely inappropriate for the Scandinavian weather and climate.
65. Shortly after arriving in Stockholm plaintiff contacted the airline that had refused to issue him a boarding pass in the UAE and discussed his situation with them. The representative he spoke with confirmed that he had been denied boarding on the flight from the UAE to the United States but stated that she could not provide any reasons for such refusal. Plaintiff then requested a refund of the ticket price, but the representative stated that because the ticket had been purchased through a travel agency in the UAE he would have to get the refund (if any) from that travel agency.
66. To date plaintiff has been unable to obtain a refund for the unused ticket from the UAE to the United States.
67. In addition to being stranded with few resources in a foreign country, being placed on the No-Fly List resulted in plaintiff's losing virtually all of his rights as a citizen of the United States - he could not return home to enjoy the rights, privileges and immunities of citizenship. Moreover, his experience with State Department officials in
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Khartoum and Abu Dhabi demonstrated to him that the State Department would neither protect nor assist him while overseas; rather, it would actively work to his detriment.
68. Nationals of one country are allowed to visit foreign countries for only limited periods of time before they have to leave the country they are visiting; in the case of Sweden and other Schengen Agreement countries the maximum stay is for 90 days for holders of United States passports unless special arrangements are made, such as requesting asylum.
69. Upon arriving in Sweden and being unable to return home, plaintiff contacted a Swedish attorney, Advokat Hans Bredberg, who suggested that plaintiff seek protective asylum in that country. Believing that the United States, through the FBI, was responsible for his detention and torture in Abu Dhabi and that he may still be in danger of abuse in countries that condone torture (including the United States), plaintiff submitted an application for asylum to the authorities in Sweden.
70. On April 18, 2012, a press conference was held in Advokat Bredberg's office in Stockholm during which plaintiff's ordeal was disclosed publicly. Less than two weeks later, on May 1, 2012, plaintiff and two other individuals were indicted in the United States District Court for the Southern District of California, Docket No. 3:12-cr06189-JAH, for "conspiracy to structure" monetary transfers from his family to him in the UAE between April 14, 2010, and April 19, 2010, which funds plaintiff used to attempt to start his business. On information and belief, this indictment was in retaliation for plaintiff's publicizing of his ordeal through the April 18, 2012 press conference in Stockholm, and based at least in part upon information the United States obtained from the interview at the United States Embassy in Khartoum, from plaintiff's 106 days of
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interrogation and torture in the UAE, and from the electronic surveillance of plaintiff. 71. Sometime in the fall of 2013 counsel for defendants contacted counsel for
plaintiff and suggested that if plaintiff wished to return to the United States he should visit the United States embassy in Stockholm to make necessary arrangements. After conferring with plaintiff in Stockholm, plaintiff's representatives informed defendants' counsel that plaintiff was apprehensive about entering the embassy grounds and that plaintiff would, under the present circumstances, consider returning if the United States (1) guaranteed plaintiff's safety from extra-judicial actions, and (2) provided adequate assurances that plaintiff could leave the United States once he returned. Counsel for defendants indicated that the United States would not provide such guarantees and assurances.
72. In early November 2013 plaintiff filed with the Department of Homeland Security (“DHS”) a Traveler Redress Inquiry Program (“TRIP”) request and was assigned a redress number. By letter dated January 23, 2014, DHS informed plaintiff that "It has been determined that no changes or corrections are warranted at this time" and suggesting that plaintiff might wish to take an administrative appeal from this decision. Because it was unclear from the DHS letter whether plaintiff was then on the No-Fly List, and thus it was unclear whether plaintiff was aggrieved by this decision, by letter dated February 24, 2014, plaintiff requested clarification and a stay pending resolution of this issue and the resolution of the current litigation. By letter dated March 11, 2014, DHS replied that an extension to take an appeal would be granted to April 22, 2014. Plaintiff then abandoned his efforts with DHS.
73. Because of the separation occasioned by plaintiff's inability to return to the
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United States and because of the stigma attaching to plaintiff occasioned by the United States' putting him on the No-Fly List, plaintiff's wife sought and received a divorce from plaintiff.
74. Early in 2015 plaintiff's application for asylum in Sweden was denied. 75. On February 12, 2015, the DHS by letter informed plaintiff that DHS had on its own motion "reevaluated" plaintiff's prior TRIP inquiry and informed plaintiff that he 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.'" The DHS provided no factual bases to support this conclusion, and requested plaintiff's response. By a letter dated February 19, 2015, plaintiff categorically denied that he was or is a threat and stated that the bare conclusion contained in the DHS latter of February 12, 2015, prevented plaintiff from providing a meaningful response; consequently, plaintiff asserted that the February 12, 2015, letter violated plaintiff's due process rights. By a "Decision and Order" dated March 9, 2015, the DHS indicated that plaintiff's name would remain on the No-Fly List. 76. On February 14, 2015, the Swedish government transported plaintiff to Portland, Oregon, by private jet. Plaintiff's Surveillance, Indictment, and Dismissal 77. In 2010, while he was inside the United States, plaintiff and his brother Dawit Woldehawariat - both US citizens - worked together to set up a lawful business venture abroad. In furtherance of this objective, plaintiff and his brother discussed the parameters of the business venture they envisioned and the financial resources necessary to execute their plan. These discussions occurred by telephone, email, and text message.
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78. Unbeknownst at the time to either plaintiff or his brother, defendants were intercepting and/or acquiring the content of plaintiff’s telephone calls, his text messages, and his emails. Plaintiff now knows this because the United States has confirmed, through Department of Justice filings submitted in a since-dismissed prosecution against plaintiff in the United States District Court for the Southern District of California, that it intercepted the contents of plaintiff’s telephone calls, emails, and text messages. See U.S. District Court for the Southern District of California, Docket No. 3:12-cr-06189JAH, Doc. # 10.
79. These interceptions and/or acquisitions of plaintiff’s telephone calls, emails, and text messages were not conducted pursuant to a warrant and were not supported by probable cause or reasonable suspicion.
80. On information and belief, the information upon which defendants caused plaintiff to meet with defendant FBI agents Noordeloos and John Doe I (Jason Dundas) in Khartoum and upon which defendants caused the UAE to imprison and torture plaintiff was derived from illegal surveillance and searches.
81. On information and belief, information derived from the electronic surveillance of plaintiff has been disseminated to several agencies and foreign governments including but not limited to the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the Department of Justice/Federal Bureau of Investigation, the US Attorney’s Office for the District of Oregon, the Department of the Treasury and the National Security Agency, and the United Arab Emirates.
82. More than six months before the filing of the additional claims set forth in
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this Third Amended Complaint, plaintiff filed a federal tort claim notice with the Department of Justice, NSA, FBI, and other agencies for violating the Foreign Intelligence Surveillance Act, the Wiretap Act, and the Stored Communications Act, and related claims. The named agencies have failed to make a final disposition of the claims at this time, and therefore plaintiff deems such failure to be a denial thereof.
83. Plaintiff has suffered mistreatment at the hands of defendants including, but not limited to, being placed on the No-Fly List without notice of the factual bases therefor or the opportunity to be heard, denial of legal counsel, false arrest and false imprisonment, assault and battery, torture, violation of his right to freedom of association, illegal surveillance, violation of his right to privacy, and violation of his substantive and procedural due process rights. Plaintiff intends to continue to attempt to exercise his rights, including the right to legal counsel, to travel by air, to be free from false arrest and false imprisonment, assault and battery, and torture, to freedom of association, and his substantive and procedural due process rights, but based upon defendants' past misconduct plaintiff has a reasonable fear of further future mistreatment by defendants and other agents of the United States.
Claim One Fifth Amendment Substantive Due Process - Fundamental Right to Return to
United States Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 84. Plaintiff, once outside of the United States, has a fundamental liberty right under the Fifth Amendment to return by air to, and to re-enter, the United States. Defendants have violated and are continuing to violate this right by placing plaintiff without cause on the No-Fly List after he had departed the United States and then maintaining his name on that List after he had been arrested and incarcerated in the
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UAE, knowing at that time that the UAE would deport him from the UAE upon his release from prison without charge, which caused plaintiff to be deported to Sweden instead of being allowed to return home, all in violation of plaintiff's Fifth Amendment substantive due process right to return to his homeland.
85. Defendants are continuing to violate this right by continuing to maintain plaintiff on the No-Fly List, preventing him from returning by air to the United States should he again leave the United States. But for his placement on the No-Fly List, plaintiff would continue to travel overseas and return to the United States by air.
86. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Two Fifth Amendment Substantive Due Process - Right to International Travel
Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants)
87. Plaintiff realleges paragraphs 1 through 83. 88. Plaintiff has a liberty right to international travel under the Fifth Amendment. By placing plaintiff's name on the No-Fly List, defendants have violated and are continuing to violate this right, preventing plaintiff from departing, flying over, or returning to the United States, all in violation of plaintiff's Fifth Amendment substantive due process right to travel internationally. 89. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
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Claim Three Fifth Amendment Due Process - Vagueness Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 90. Plaintiff realleges paragraphs 1 through 83. 91. Plaintiff has a due process right not to be sanctioned based upon vague, overbroad, or unknowable standards of conduct. The No-Fly List is an administrative sanction created by defendant Terrorism Screening Center, and according to defendants' joint stipulation in the Latif case, the standard for placing individuals on the No-Fly List is the "existence of a reasonable suspicion to believe that a person is a known or suspected terrorist." Emphasis added. 92. The "existence of a reasonable suspicion to believe that a person is a known or suspected terrorist" is vague, and because of such vagueness has led to discriminatory application of the criterion and its use to unconstitutionally coerce persons placed on the No-Fly List, specifically by coercing plaintiff and others placed on the List to become agents, agents provocateur, or informants for the FBI in return for having their names removed from the List. 93. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Four Fifth Amendment - Violation of Right to Counsel Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 94. Plaintiff realleges paragraphs 1 through 83. 95. It is a policy, custom, and practice of defendants to place individuals on
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the No-Fly List once they have departed the United States in order to arrange for interrogation of such individuals at American embassies abroad without the assistance of legal counsel. In plaintiff's case, upon being informed by defendant Noordeloos that Noordeloos was an FBI agent and wished to question plaintiff, plaintiff requested to be represented by counsel during such interrogation. In response, defendant Noordeloos in violation of plaintiff’s Fifth Amendment right to counsel told plaintiff he could not have legal counsel because plaintiff was on the No-Fly List, whereupon the interrogation continued for several hours.
96. Defendants used the information gathered from plaintiff during such interrogation to, among other things, obtain an indictment against plaintiff in the Southern District of California, and an arrest warrant was issued calling for plaintiff's arrest, all in further violation of plaintiff's Fifth Amendment right to counsel.
97. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Five Fifth Amendment – Violation of Right to Counsel and Right Against Self-
Incrimination Damages
(Against Defendants Noordeloos and John Doe I (Jason Dundas)) 98. Plaintiff realleges paragraphs 1 through 83. 99. Defendants Noordeloos and John Doe I (Jason Dundas) refused plaintiff's demand to be represented by counsel in Khartoum, Sudan, on April 22, 2010. Instead, those defendants continued to interrogate plaintiff notwithstanding such demand and then turned over such information to United States law enforcement defendants, which
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used information gleaned from plaintiff in securing his indictment in the District Court for the Southern District of California.
100. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and John Doe I (Jason Dundas) which deprived plaintiff of his right to counsel give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Claim Six Fifth Amendment Procedural Due Process Placement and Retention on the No-Fly List Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 101. Plaintiff realleges paragraphs 1 through 83. 102. Plaintiff has a protected liberty interest in international travel. Plaintiff also has a protected liberty interest in his reputation and in freedom from governmentassigned stigmas that restrict or prevent him from engaging in activities in which he could otherwise engage and in which others not stigmatized are free to engage. 103. Defendants‘ actions in placing and keeping plaintiff on the FBI-maintained, secret No-Fly List substantially interferes with and deprives plaintiff of his liberty interest in international travel. Defendants‘ actions in placing and keeping plaintiff on the FBImaintained, secret No-Fly List also injures plaintiff’s liberty interest in his reputation by, first, stigmatizing him 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 and, second, on the basis of that stigma, depriving him of the ability to travel by air domestically and internationally as others are permitted to do and as plaintiff would be permitted to do absent the stigma.
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104. Defendants‘ actions in placing and keeping plaintiff on the FBI-maintained, secret No-Fly List without informing him of such placement, of the basis for his inclusion on the No-Fly List, of the means of removing his name from the No-Fly List, and without providing an independent forum in which plaintiff might secure the removal of his name from the No-Fly List, all violated and are continuing to violate plaintiff’s right to procedural due process under the Fifth Amendment. Such procedures as do exist for challenging inclusion on the No-Fly List are inadequate to satisfy the notice and hearing requirements of procedural due process.
105. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Seven First Amendment - Violation of Right to Freedom of Association
Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants)
106. Plaintiff realleges paragraphs 1 through 83. 107. It is a policy, custom, and practice of defendants to place individuals on the No-Fly List in order to coerce them into becoming informants/agents provocateur for the FBI. Plaintiff has a right under the First Amendment to associate, and not to associate, with whom he pleases. Defendants placed plaintiff on the No-Fly List in order both to coerce plaintiff into associating with the FBI, and to coerce plaintiff into harming his associations with others with whom he associates, by becoming an informant/agent provocateur in a case then under investigation in Portland. Moreover, when plaintiff declined to become an informant and agent provocateur, defendants maintained plaintiff's name on the No-Fly List in retaliation, which ultimately led to plaintiff's being
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forced to seek protection and asylum in Sweden, all in violation of plaintiff's First Amendment right of freedom of association.
108. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Eight Fifth Amendment - False Arrest and Imprisonment
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 109. Plaintiff realleges paragraphs 1 through 83. 110. Plaintiff has a Fifth Amendment right to be free from false arrest and imprisonment. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to cause the arrest of plaintiff by UAE secret police without probable cause that he had committed a crime. The foreign intermediaries did so arrest plaintiff and imprisoned him without charge for 106 days, from June 1, 2011, through September 15, 2011. 111. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of false arrest and imprisonment. 112. On information and belief, at all relevant times, some or all of individual
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defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
113. On information and belief, the actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from unlawful arrest and imprisonment without probable cause and give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Claim Nine Common Law - False Arrest and Imprisonment
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 114. Plaintiff realleges paragraphs 1 through 83. 115. Plaintiff has a common law right to be free from false arrest and imprisonment. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to cause the arrest of plaintiff by UAE secret police without probable cause that he had committed a crime. The foreign intermediaries did so arrest plaintiff and imprisoned him without charge for 106 days, from June 1, 2011, through September 15, 2011. 116. On information and belief, some or all of individual defendants
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Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of false arrest and imprisonment.
117. On information and belief, at all relevant times, some or all some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
118. On information and belief, the actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from unlawful arrest and imprisonment without probable cause and give rise to a cause of action for damages directly under the common law. Plaintiff has been damaged in the amount of $10 million.
Claim Ten Fifth Amendment - Assault and Battery
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 119. Plaintiff realleges paragraphs 1 through 83. 120. Plaintiff has a Fifth Amendment right to be free from assault and battery by agents working on behalf of the United States. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
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Does II-X enlisted foreign intermediaries to assault plaintiff in the UAE secret police prison in Abu Dhabi, UAE, and the UAE secret police did so assault and batter plaintiff for 106 days, from June 1, 2011, through September 15, 2011.
121. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, present during some of the acts complained of herein, said presence having been authorized by UAE officials, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of assault and battery.
122. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
123. On information and belief, the actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from assault and battery and give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
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Claim Eleven Common Law - Assault and Battery
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 124. Plaintiff realleges paragraphs 1 through 83. 125. Plaintiff has a common law right to be free from assault and battery by agents working on behalf of the United States. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to assault and batter plaintiff in the UAE secret police prison in Abu Dhabi, UAE, and the UAE secret police did so assault and batter plaintiff for 106 days, from June 1, 2011, through September 15, 2011. 126. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, present during some of the acts complained of herein, said presence having been authorized by UAE officials, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of assault and battery. 127. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff. 128. The actions, orders, authorizations, and other conduct of some or all of
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individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X deprived plaintiff of his right to be free from assault and battery and give rise
to a cause of action for damages directly under the common law. Plaintiff has been
damaged in the amount of $10 million.
Claim Twelve Torture - Torture Victim Protection Act
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X)
129. Plaintiff realleges paragraphs 1 through 83.
130. Plaintiff was tortured within the meaning of the Torture Victim Protection
Act, Pub.L. 102–256 (1992) ("TVPA"), which in section 3 defines "torture" as –
(1) . . . any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
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131. Section 2(a) of the TVPA creates a cause of action for damages against "any individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture."
132. It is a policy, custom, and practice for defendants, at least after September 11, 2001, to engage in torture by proxy. See, e.g., 24 August 2009 and 13 December 2012 NY Times; see also www.huffingtonpost.com/2009/08/28/new-cia-docs-detailbruta_n_271299.html. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, in cooperation with plaintiff’s UAE captors, and physically present and acting under the apparent or actual authority of the UAE, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of torture.
133. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
134. As a proximate cause of defendants' unlawful conduct, plaintiff has suffered severe physical harm, emotional distress, and economic loss, and is entitled to relief under the Constitution and the TVPA.
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Claim Thirteen Fifth Amendment Due Process – Torture
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 135. Plaintiff realleges paragraphs 1 through 83. 136. It is a policy, custom, and practice for defendants, at least after September 11, 2011, to engage in torture by proxy. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, in cooperation with plaintiff’s UAE captors, and physically present and acting under the apparent or actual authority of the UAE, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of torture. 137. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff. 138. The unlawful conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X has caused plaintiff severe physical harm, emotional distress, and economic loss, and gives rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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Claim Fourteen Fourth Amendment Violation
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does XI-XX) 139. Plaintiff realleges paragraphs 1 through 83. 140. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 141. Plaintiff’s telephone communications, emails, text messages, and other communications are protected from interception, search, and seizure by the Fourth Amendment. Plaintiff has a reasonable expectation of privacy in his telephone communications, emails, text messages, and other communications. 142. Plaintiff’s Fourth Amendment rights were violated by defendants’ interception, search, and seizure of plaintiff’s telephone calls, emails, and text messages. Defendants’ actions were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and were unreasonable. 143. Provisions of the Patriot Act and FISA authorize defendants to acquire the constitutionally protected communications of U.S. citizens and residents (i) without identifying the people to be surveilled, (ii) without specifying the facilities, places, premises, or property to be monitored, (iii) without observing meaningful limitations on the retention, analysis, and dissemination of acquired information, (iv) without obtaining individualized warrants based on criminal or foreign intelligence probable cause, and (v) without making prior administrative determinations that the targets of surveillance are
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foreign agents or connected in any way, however tenuously, to terrorism. 144. On information and belief, the actions, orders, authorizations, and other
conduct of defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does XI-XX deprived plaintiff of his Fourth Amendment right to be free from unconstitutional searches and seizures and give rise to a cause of action for damages directly under the Fourth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Claim Fifteen Fourth Amendment Violation Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 145. Plaintiff realleges paragraphs 1 through 83. 146. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 147. Plaintiff’s telephone communications, emails, text messages, and other communications are protected from interception, search, and seizure by the Fourth Amendment. Plaintiff has a reasonable expectation of privacy in his telephone communications, emails, text messages, and other communications. 148. Plaintiff’s Fourth Amendment rights were violated by defendants’ interception, search, and seizure of plaintiff’s telephone calls, emails, and text messages. Defendants’ actions were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and were
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unreasonable. 149. Provisions of the Patriot Act and FISA authorize defendants to acquire the
constitutionally protected communications of U.S. citizens and residents (i) without identifying the people to be surveilled, (ii) without specifying the facilities, places, premises, or property to be monitored, (iii) without observing meaningful limitations on the retention, analysis, and dissemination of acquired information, (iv) without obtaining individualized warrants based on criminal or foreign intelligence probable cause, and (v) without making prior administrative determinations that the targets of surveillance are foreign agents or connected in any way, however tenuously, to terrorism.
150. On information and belief, defendants continue to retain, use, and disclose plaintiff’s telephone calls, emails, and text messages, and information derived therefrom, that defendants unconstitutionally seized. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court. Plaintiff seeks an injunction requiring defendants to return or destroy any of plaintiff’s unconstitutionally seized telephone calls, emails, or text messages, or information derived therefrom, that defendants continue to retain, and prohibiting any use or disclosure of those communications and information.
151. Plaintiff seeks a declaration that the provisions of the Patriot Act and FISA which permit the federal government to secretly collect, disseminate, and retain information from a person and which allow one to perform electronic surveillance and wiretaps of a person without first demonstrating to a court the existence of probable cause that the person has committed a crime are unconstitutional.
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Claim Sixteen Violation of the Foreign Intelligence Surveillance Act
Damages (Against Defendants United States of America, Defendant Noordeloos, John Doe
I, and John/Jane Does XI-XX) 152. Plaintiff realleges paragraphs 1 through 83. 153. On information and belief, defendants unlawfully engaged in electronic surveillance of plaintiff and unlawfully used and/or disclosed information obtained by electronic surveillance of plaintiff, in violation of 50 U.S.C. §§ 1801(a),(b),(h),(i), 1804(a), 1806(a), 1809(a)(1), and 1809(a)(2). 154. Plaintiff and his brother are not foreign powers or agents of foreign powers, and there has never been any probable cause to believe so. The information obtained from defendants’ electronic surveillance of their communications is not foreign intelligence information. Obtaining foreign intelligence was not the primary purpose and was not a significant purpose of defendants’ electronic surveillance of plaintiff’s communications. The information defendants obtained from their electronic surveillance of plaintiff’s communications could have been obtained by normal investigative techniques, e.g., normal criminal wiretap warrants conforming to the Fourth Amendment’s warrant requirement. 155. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712 for the unlawful use and disclosure of information. Defendants Noordeloos, John Doe I, and John/Jane Does XI-XX are liable in damages pursuant to 50 U.S.C. § 1810.
Claim Seventeen Violation of the Stored Communications Act
Damages (Against Defendants United States of America and John/Jane Does XI-XX)
156. Plaintiff realleges paragraphs 1 through 83.
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157. On information and belief, defendants United States, FBI, NSA, and John Does XI-XX intercepted and/or acquired, disseminated, and otherwise utilized plaintiff’s stored communications, including but not limited to emails and text messages, in violation of 18 U.S.C. § 2703.
158. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712. Defendants John/Jane Does XI-XX are liable in damages pursuant to 18 U.S.C. § 2707(a).
Claim Eighteen Violation of the Wiretap Act
Damages (Against Defendants United States of America and John/Jane Does XI-XX)
159. Plaintiff re-alleges paragraphs 1 through 83. 160. On information and belief, Defendants United States, FBI, NSA, and John Does XI-XX intercepted and/or acquired, disseminated, and otherwise utilized plaintiff’s electronic communications, including but not limited to phone conversations with his brother, in violation of 18 U.S.C. § 2511. 161. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712. Defendants John/Jane Does XI-XX are liable in damages pursuant to 18 U.S.C. § 2520(a).
Claim Nineteen Motion For Return Of Unlawfully Searched And Seized Property Pursuant To
Federal Rule of Criminal Procedure 41(g) (Against All Defendants)
162. Plaintiff re-alleges paragraphs 1 through 83. 163. This Court has civil equitable jurisdiction under Federal Rule of Criminal Procedure 41(g) to order the return of illegally searched and seized property. U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc).
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164. Defendants have unlawfully searched, seized, used, and disclosed

plaintiff’s telephone calls, emails, and text messages, and information derived

therefrom. Plaintiff is aggrieved by defendants’ unlawful search, seizure, use, and

disclosure of these communications and information.

165. Plaintiff seeks an order directing the return or destruction of plaintiff’s

unconstitutionally seized telephone calls, emails, or text messages, or information

derived therefrom, in the possession, custody, or control of defendants, their agents,

successors, and assigns, and all those in active concert and participation with them.

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully requests the following relief:

1. Declaratory Judgment. A declaratory judgment that –

a.

the provisions of the Patriot Act and FISA and the FISA

Amendment Act of 2008 which permit the federal government to perform

electronic surveillance and wiretaps of a person without first requiring the

government to demonstrate to a court the existence of probable cause that the

person has committed a crime, or alternatively that the primary purpose is to

gather foreign intelligence are unconstitutional;

b.

The interception and/or acquisition, retention and dissemination of

plaintiff's voice and other electronic communications was illegal and in violation of

the Fourth Amendment, FISA, the Stored Communications Act, and the Wiretap

Act;

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c. Official Capacity defendants violated plaintiff's due process right as a citizen under the Fifth Amendment to the United States Constitution to return to the United States when plaintiff was expelled from the United Arab Emirates;
d. Official Capacity defendants violated plaintiff's due process rights as a citizen under the Fifth Amendment to the United States Constitution by denying plaintiff the right to travel to, from, and over the United States;
e. Official Capacity defendants violated plaintiff's due process rights as a citizen of the United States by promulgating a vague standard for including plaintiff's name on the No-Fly List and by providing no realistic means to challenge said inclusion;
f. Official Capacity defendants violated plaintiff's right to legal counsel under the Fifth Amendment to the United States Constitution by denying plaintiff's request to consult with an attorney prior to plaintiff's being interrogated by defendants Noordeloos and John Doe I (Jason Dundas) at the United States Embassy in Khartoum, Sudan, in April 2010, and then using the information gleaned from such interrogation to indict plaintiff in the Federal District Court for the Southern District of California in May 2012;
g. Official Capacity defendants violated plaintiff's right to freedom of association under the First Amendment to the United States Constitution by requiring him to associate with the FBI as an informant and/or agent provocateur in order to have his name removed from the No-Fly List;
h. Official Capacity defendants violated plaintiff's right to procedural due process under the Fifth Amendment to the United States Constitution by
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placing and retaining his name of the No-Fly List without notice or meaningful opportunity to contest such placement;
i. Some or all Individual defendants violated plaintiff's substantive due process rights under the Fifth Amendment to the United States Constitution to be free from arbitrary arrest, false imprisonment, assault, battery, and torture;
j. Some or all Individual defendants violated plaintiff’s rights under the Torture Victim Protection Act;
k. Individual defendants Noordeloos and John Doe I (Jason Dundas) violated plaintiff's right to legal counsel under the Fifth Amendment to the United States Constitution by denying plaintiff's request to consult with an attorney prior to plaintiff's being interrogated by defendants Noordeloos and John Doe I (Jason Dundas) at the United States Embassy in Khartoum, Sudan, in April 2010, which information was then was used by Official Capacity defendants to indict plaintiff in the Federal District Court for the Southern District of California in May 2012. 2. Injunction. An injunction requiring that --
a. Official Capacity defendants, except to the extent required by exercise of standard security precautions at airports, not prevent plaintiff from returning to, flying over, or departing from the United States;
b. Official Capacity defendants, except to the extent required by exercise of standard security precautions at airports, not prevent plaintiff from traveling internationally by air;
c. Official Capacity defendants not interrogate plaintiff once plaintiff requests to be assisted by legal counsel;
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d. Official Capacity defendants not deny plaintiff the opportunity to consult with legal counsel prior to and during any interrogation of plaintiff;
e. Official Capacity defendants not use in a criminal proceeding any information gathered from plaintiff during an interrogation of plaintiff at which interrogation plaintiff was not represented by legal counsel after so requesting the assistance of legal counsel;
f. Official Capacity defendants not condition the removal of plaintiff's name from the No-Fly List upon plaintiff's agreeing to become an informant or agent provocateur on behalf of Official Capacity defendants;
g. Official Capacity defendants not deny plaintiff written notice whenever his named is added to the No-Fly List;
h. Official Capacity defendants not deny plaintiff written notice whenever his name is removed from the No-Fly List;
i. Official Capacity defendants not deny plaintiff with the specific reasons why his name was added to the No-Fly List;
j. Official Capacity defendants to not agree to, arrange, or condone plaintiff's arrest by any foreign power when there is not probable cause to indicate that plaintiff has committed a crime within the jurisdiction of the foreign power;
k. Official Capacity defendants to not agree to, arrange, or condone plaintiff's imprisonment by any foreign power when there is not probable cause to indicate that plaintiff has committed a crime within the jurisdiction of the foreign power;
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l. Official Capacity defendants to not agree to, arrange, or condone assaults on plaintiff by agents of a foreign power;
m. Official Capacity defendants to not agree to, arrange, or condone battery upon plaintiff by agents of a foreign power;
n. Official Capacity defendants to not agree to, arrange, or condone torture of plaintiff by agents of a foreign power.
o. Official Capacity defendants and the DOJ, the FBI, the NSA, the State Department, and the United States (including all of entities and instrumentalities such as the CIA, Department of Homeland Security, the Department of Defense, the US Attorney’s Offices), to retrieve, purge and destroy all illegally intercepted and/or acquired, voice and electronic communications and related data and information arising from such interceptions and/or acquisitions and to seek the return and destruction from any other agencies or government and to refrain from distributing to any requesting party such communications and information relating to plaintiff and to retrieve and destroy all illegally collected, disseminated and retained information and communications collected pursuant to FISA authorized searches and surveillance relating to plaintiff from government agencies and computer databases. 3. Damages. Enter judgment against each Individual defendant sued in his individual capacity in an amount to be determined at trial but not less than ten million dollars ($10,000,000), plus punitive damages in an amount to be determined at trial, for the violation of plaintiff’s clearly established constitutional rights, statutory rights, and
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common law rights as alleged herein. Enter judgment against the United States for damages according to proof pursuant to 18 U.S.C. § 2712. Further, it is requested that plaintiff be awarded reasonable attorneys' fees pursuant to 28 U.S.C. § 2412(d), 18 U.S.C 2707(b), 18 U.S.C. § 2712, 50 U.S.C. § 1810, and costs, and expenses of all litigation.
4. Other Relief. Such other relief as the Court may deem just and proper. DATED this 1st day of April, 2015.
s/ Thomas H. Nelson, OSB 78315 Brandon Mayfield, OSB 000824 Gadeir Abbas, pro hac vice William J. Burgess, pro hac vice Attorneys for Plaintiff
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 Case 3:13-cv-00899-BR Document 87 Filed 11/29/15 Page 1 of 46

Thomas H. Nelson, OSB 78315 (nelson@thnelson.com) P.O. Box 1211 Welches, OR 97067 Phone: 503.622.3262
Brandon Mayfield, OSB 000824 (mayfieldbrandon@hotmail.com) 14631 SW Millikan Way Beaverton, OR 97003 Phone: 503.941.5101
Gadeir Abbas, pro hac vice (gadeir.abbas@gmail.com) 1155 F Street NW, Suite 1050 Washington, DC 20004 Phone: 720.251.0425
William J. Burgess, pro hac vice (wburgess@cair.com) Council on American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 20003 Phone: 202.488.0833

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

YONAS FIKRE,

Plaintiff,

Civil No. 3:13-cv-00899-BR

v.

FIFTH AMENDED COMPLAINT

THE FEDERAL BUREAU OF INVESTIGATION; ERIC HOLDER, Attorney General of the United States (sued only in his official capacity); STATE DEPARTMENT; JOHN KERRY, Secretary of State (sued in his official capacity); UNITED STATES OF AMERICA; JAMES B. COMEY, Director of the FBI (sued in his official capacity); CHRISTOPHER M. PIEHOTA, Director of FBI Terrorism Screening Center (sued in his official capacity); JAMES CLAPPER, Director

FALSE ARREST; FALSE IMPRISONMENT; ASSAULT; BATTERY; TORTURE; VIOLATION OF THE RIGHT TO COUNSEL; VIOLATION OF THE FIRST AMENDMENT FREEDOM OF ASSOCIATION; VIOLATION THE TORTURE VICTIM PROTECTION ACT; VIOLATION OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS; VIOLATION OF FOURTH AMENDMENT; VIOLATION OF STORED COMMUNICATIONS ACT; VIOLATION OF WIRETAP ACT

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of National Intelligence (sued in his official capacity); MICHAEL S. ROGERS, Director of the National Security Agency (sued in his official capacity); NATIONAL SECURITY AGENCY; DAVID NOORDELOOS, an FBI Agent (sued in his official and individual capacity), JOHN DOE I, a.k.a. JASON DUNDAS, an FBI Agent (sued in his official and individual capacities), and JOHN/JANE DOES IIXX, agents of the United States (sued in their official and individual capacities),

JURY TRIAL DEMANDED

Defendants.

I. INTRODUCTION 1. Plaintiff Yonas Fikre, an American citizen, seeks redress for (i) the denial of his right to travel internationally, which denial prevented him from returning to the United States when he was expelled from the United Arab Emirates and prevents him from domestic and international air travel today (ii) the denial of his right to procedural due process leading to denial of his right to travel internationally, (iii) the violation of his right to counsel by FBI agents and others acting on their behalf, which violation resulted in his prosecution in the Federal District Court for the Southern District of California and other harms, (iv) violation of his First Amendment right of association, (v) suffering false arrest, false imprisonment, assault, and torture at the hands of a foreign power, which, on information and belief, was instigated by and facilitated by defendants, acting at times under the actual or apparent authority of said foreign power, (vi) violation of his right to be free from unconstitutional searches and seizures, and (vii) violation of his statutory protections against unlawful electronic surveillance.

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2. Plaintiff's allegations in summary are (i) that defendants sometime prior to April 21, 2010, placed plaintiff's name on the "No-Fly List" in order to coerce plaintiff into becoming an informant/agent provocateur for the FBI, (ii) that on April 21, 2010, during an involuntary interview at the United States Embassy in Khartoum, Sudan, defendants denied plaintiff's request for legal counsel, (iii) that during the April 2010 involuntary interview plaintiff was urged to become an informant/agent provocateur for the FBI in order to, among other things, have his name removed from the No-Fly List, (iv) that when plaintiff refused to become an informant/agent provocateur, defendants retaliated by instigating and facilitating his false arrest, false imprisonment, assault, and torture at the hands of the UAE government during the summer of 2011, (v) that defendants denied plaintiff his constitutional right as a citizen to return home to the United States following the UAE government's releasing him without charge by keeping his name on the No-Fly List, thus effectively rendering him temporarily stateless, (vi) that in May 2012 defendants further retaliated against plaintiff for his publicly disclosing his ordeal by indicting him in the District Court for the Southern District of California using information gathered during his interrogation at the U.S. Embassy in Khartoum, during his interrogation and torture in the UAE, and by means of unlawful electronic surveillance, and (vii) that plaintiff was subject to warrantless electronic surveillance in violation of the Constitution and statutory law.
3. Through this action for declaratory and injunctive relief and for damages plaintiff seeks (i) a declaration that plaintiff's right to assistance of legal counsel has been violated, (ii) a declaration that plaintiff's fundamental right to return to the United States by air, and his right to travel by air, have been and are being infringed, (iii) a
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method whereby plaintiff can challenge the inclusion of his name on the No-Fly List in accordance with due process procedures, (iv) redress for the instigation and facilitation of the false arrest, false imprisonment, assault, and torture by the UAE government, (v) an injunction preventing the United States from violating the rights specified herein in the future, (vi) a declaration that the interception and/or acquisition of plaintiff's wire and electronic communications was unconstitutional and illegal, (vii) the retrieval, purging, destruction and prevention of further dissemination of all illegally intercepted and/or acquired voice and electronic communications and related data and information arising from such interceptions and/or acquisitions, and (viii) monetary damages for the events specified in this complaint.
II. PARTIES 4. Plaintiff is a naturalized American citizen of Eritrean descent. Plaintiff has never engaged in any acts of terrorism or supported terrorism in any form. 5. Defendant Federal Bureau of Investigation is a bureau of the Department of Justice responsible for, among other things, selecting individuals for inclusion on, and maintaining, the No-Fly List. 6. Defendant Eric Holder is Attorney General, whose office is responsible for, among other agencies, the FBI and the Terrorism Screening Center. Mr. Holder is sued only in his official capacity. 7. Defendant Department of State is the Department of the United States responsible for protecting and assisting United States citizens while those citizens are abroad. 8. Defendant John Kerry is Secretary of State, who is responsible for foreign
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relations and for protecting and assisting United States citizens while abroad. Mr. Kerry is sued only in his official capacity.
9. Defendant James B. Comey is Director of the FBI. He is sued only in his official capacity.
10. Defendant Christopher M. Piehota is Director of the FBI’s Terrorism Screening Center. He is sued only in his official capacity.
11. Defendant United States of America is the United States of America, its departments, agencies, and entities.
12. Up to April 22, 2010, individual defendant David Noordeloos, who is sued in his individual capacity, held himself out to plaintiff as an employee of the State Department. Previously, however, on April 6, 2010, defendant Noordeloos held himself out as a special agent of the FBI in a meeting with Portland Police Bureau Chief Rosanne Sizer, and on April 22, 2010, defendant Noordeloos told plaintiff that defendant Noordeloos is in fact an employee of the FBI assigned to and/or reporting to the Portland office of the FBI. Defendant Noordeloos traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, Defendant Noordeloos did so interrogate plaintiff for several hours. Moreover, on July 11, 2011, in an email to plaintiff's attorney, defendant Noordeloos once again held himself out as an employee of the State Department.
13. Defendant James R. Clapper is Director of National Intelligence. He is sued only in his official capacity.
14. Defendant Admiral Michael Rogers is the Director of the National Security Agency, which is a part of the United States Department of Defense. As NSA Director,
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Admiral Rogers has authority to supervise and implement all operations and functions of the NSA, which include the interception of wire and electronic communication. He is sued only in his official capacity.
15. Defendant National Security Agency is a part of the United States Department of Defense.
16. At all times relevant, individual defendant FBI Agent John Doe I, a person identifying himself as defendant Jason Dundas, who is sued in his individual capacity, was an employee of the FBI assigned to the Portland office. Defendant John Doe I (Jason Dundas) traveled to Khartoum, Sudan, in April 2010, in order to interrogate plaintiff at the United States Embassy in Khartoum, and on April 22, 2010, defendant John Doe I (Jason Dundas) did so interrogate plaintiff for several hours.
17. John/Jane Does II-X are unknown agents of the United States who ordered, directed, undertook, or in some manner participated in facilitating the false arrest, false imprisonment, assault, battery, and torture of plaintiff at the UAE secret prison in Abu Dhabi from June 1 through September 13, 2011.
18. John/Jane Does XI-XX are unknown agents of the United States, who ordered, directed, undertook, or in some manner participated in the interception and/or acquisition of plaintiff’s electronic, and stored communications and/or utilized or disseminated such communications. On information and belief, John/Jane Does XI-XX are continuing the activities specified in this paragraph.
III. JURISDICTION AND VENUE 19. This is a complaint for injunctive and declaratory relief, and for damages, based upon defendants’ violation of plaintiff’s constitutional, statutory, and common law
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rights. The claims asserted arise under the Due Process Clause of the Fifth Amendment (substantive and procedural), the Fifth Amendment’s right to counsel and prohibition against self-incrimination, the First Amendment’s right to freedom of association, the Fourth Amendment's prohibition against unreasonable searches and seizures, 50 U.S.C. § 1810, 18 U.S.C. § 2707(a), 18 U.S.C. § 2712, 18 U.S.C. § 2520(a), the Torture Victim Protection Act, and the common law.
20. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, 18 U.S.C. § 2712, 28 U.S.C. § 1367, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
21. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
22. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because defendants include the United States and agencies of the United States, because this judicial district is where plaintiff resides and because a substantial part of the events or omissions giving rise to the claims occurred in this district. Venue is also proper in this Court because defendants David Noordeloos and John Doe I (Jason Dundas) at all times relevant hereto either resided in, worked in, or were assigned to and/or reported to superiors located in this District.
IV. FACTUAL ALLEGATIONS General Factual Allegations
23. Air travel is the only practical means of passenger transportation between the North American continent and Europe, Asia, Africa, the Middle East, and Australia.
24. Defendant FBI is responsible for selecting individuals for inclusion on, and
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maintaining, the "No-Fly List," which lists individuals whom the airlines flying within, into, or over the United States may not transport.
25. Information upon which a determination is made to place an individual on the No-Fly List is kept secret, and individuals on the No-Fly List are not informed when their names are placed on the List, when their names are removed from the No-Fly List, or what their current status is vis-à-vis the No-Fly List.
26. The criterion for placing an individual's name on the No-Fly List was developed in secret by the Terrorism Screening Center without congressional oversight or approval. Under the present criterion, a person may be "nominated" to be on the List if "there is a reasonable suspicion to believe that a person is a known or suspected terrorist."
27. Most individuals on the No-Fly List, and plaintiff in this action, are prohibited from flying on commercial aircraft into, out of, or over United States and Canadian airspace. Plaintiff's Background, Travel, Imprisonment, Torture, and Release
28. Plaintiff is a naturalized American citizen of Eritrean descent. When he was a small boy, war broke out in Eritrea, and thus his family took him to Sudan, where he was when the State of Eritrea came into being in 1993. From Sudan the Fikre family emigrated to the United States.
29. Beginning in 2006, plaintiff resided in Portland, Oregon. In late December 2009, after working for an American cell phone company, plaintiff decided to attempt to distribute and to sell consumer electronic products on the retail market in East Africa. He began by returning to Sudan, where some of his extended family still reside. Upon
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arrival in Sudan, plaintiff, in compliance with a recommendation by the State Department, contacted the United States Consulate in Khartoum and informed a representative of the consulate of his interest in pursuing business opportunities in the country. The representative encouraged plaintiff to pursue business opportunities in Sudan. In reliance upon the representative's recommendation plaintiff began the process of obtaining a Sudanese business license.
30. On Tuesday, April 20, 2010, defendant Noordeloos sent an email to plaintiff, which stated: "Younas, I work at the embassy in Khartoum and need to meet up with you on wed 4/21. Can you email me back and let me know what time in the afternoon works for you? Best, David Noordeloos US Department of State".
31. On Wednesday, April 21, defendant Noordeloos sent an email to plaintiff, which stated: "Yonas, I hope this finds you well. I still need to meet with you as soon as possible, can you give me a call and let me know what time works for you to meet? You can email me back or try me at the Embassy or on my cell, but please contact me soonest. Regards, David Noordeloos, US Department of State" [telephone numbers redacted].
32. On April 21, at approximately 9 p.m. local time, plaintiff called the number given and spoke with defendant Noordeloos. Defendant Noordeloos stated that a number of Americans in Sudan had been invited to the Embassy for a luncheon the following day in order to discuss how Americans might stay safe during a period of political turmoil in Sudan. Plaintiff agreed to attend the luncheon on that basis, which turned out to be a false pretense.
33. The next day plaintiff appeared at the embassy. After going through
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security screening, plaintiff met defendant Noordeloos and another person, defendant John Doe I, who identified himself as Jason Dundas. Defendants Noordeloos and John Doe I (Jason Dundas) escorted plaintiff to a small meeting room and shut the door; defendants positioning themselves between plaintiff and the door. At that point defendants Noordeloos and John Doe I (Jason Dundas) produced badges and stated that they were FBI agents assigned to the Portland office.
34. Upon being informed that defendants Noordeloos and John Doe I (Jason Dundas) were FBI agents from the Portland office, plaintiff stated that he wanted to be represented by his legal counsel (plaintiff was then represented by Oregon attorney Brandon Mayfield) during the interrogation. Defendant Noordeloos denied Mr. Fikre’s request for such representation on the grounds that plaintiff had been placed on the NoFly List and thus could not return to the United States to confer with his attorney.
35. Because defendants John Doe I (Jason Dundas) and Noordeloos were blocking the door, plaintiff, who had never before been detained or arrested, felt he could not leave. During the following interrogation, defendants Noordeloos and John Doe I (Jason Dundas) questioned plaintiff extensively about the events, activities, and leadership at the as-Saber Mosque in Portland, which plaintiff had attended for prayer services. Defendant Noordeloos also questioned plaintiff about the source of his financial support for this business endeavors in Sudan, and told plaintiff that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for plaintiff to engage in business transactions in Sudan - a statement that is inconsistent with the advice and recommendation earlier given by the representative of the embassy as set forth in ¶ 29, supra.
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36. Defendant Noordeloos next told plaintiff that the FBI desired plaintiff to become an FBI informant to work upon “a case” that was then developing. Defendant Noordeloos stated that, in return, plaintiff would be paid substantial compensation, be in a position to enjoy “the good life,” and that the FBI would take steps to remove plaintiff from the No-Fly List. Defendant Noordeloos then asked, "Don't you love your wife?", which question plaintiff considered an implicit threat. Plaintiff responded that he did not wish to become an FBI informant. The interview lasted for several hours until the close of the business day. As the day wore on, defendant Noordeloos suggested that they resume the discussion on the following day; in order to escape the interrogation room and leave the embassy, plaintiff agreed.
37. At approximately 8:45 a.m. on the following morning, plaintiff called defendant Noordeloos and stated that he did not wish to meet further with the FBI agents because he would be wasting their and his time; he reiterated that he did not wish to become an informant for the FBI. Defendant Noordeloos became agitated and, to the best of plaintiff's recollection, stated, "Wait a minute! Are you trying to tell me you don't want to work with us!" Defendant Noordeloos then stated, "Whenever you want to go home you come to the embassy." Plaintiff understood this to mean that plaintiff's name would not be removed from the No-Fly List and he could not travel to the United States unless he became an informant/agent provocateur for the FBI.
38. On May 4, 2010, defendant Noordeloos wrote an email to plaintiff which stated: "Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos."
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39. Plaintiff remained in Khartoum for almost two months following his meeting with defendants Noordeloos and John Doe I (Jason Dundas). During that time he noticed that he was being followed by persons he assumed were affiliated with the Sudanese secret police, and he was told by merchants and other acquaintances in his neighborhood that similar individuals had been inquiring about him and his activities.
40. On or about June 15, 2010, plaintiff left Sudan, and on or about September 15, 2010, plaintiff arrived in the UAE to pursue similar business interests involving the distribution and retail sale of consumer electronics there. Plaintiff moved to the city of Al Ain in the emirate of Abu Dhabi, where he sought and obtained a residency permit from the UAE in order to conduct business; he invested substantial financial resources provided by family members in pursuing that course.
41. In the evening of June 1, 2011, persons unknown to plaintiff (who plaintiff later learned were UAE plainclothes secret police) invaded plaintiff's home in Al Ain, seized plaintiff's computer, phone, and other items, and compelled plaintiff to accompany them in a vehicle. Several of plaintiff's friends and neighbors witnessed plaintiff's apprehension. Plaintiff was blindfolded, placed in a confined space in the vehicle, and the air conditioner in the vehicle was turned on high and directed at him with the effect that he became quite chilled.
42. Plaintiff was taken to a then-unknown location approximately two hours’ driving time from Al Ain. Still blindfolded, he was led into a building and into a long hall where, by peeking down through the bottom of his blindfold, he noticed that he was passing door after door. His guards stopped at one door and put him inside a windowless cell where he was lodged. Upon removal of his blindfold, he saw that his
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tiny cell lacked toilet facilities. His cell contained only a bed and some bedding. The cell was very cold because the air conditioning had been set on high.
43. The following morning the interrogations of plaintiff began. Except for the one instance noted below, during all of his interrogations plaintiff was blindfolded. Once blindfolded, he was taken to a room where, throughout his ordeal, plaintiff was questioned for hours in English. Periodically during the 106 days of his imprisonment and torture, plaintiff occasionally was able to peek beneath the blindfold and view shoes and the lower torsos of his interrogators.
44. The primary focus of the blindfolded interrogations was events at Portland's as-Saber Mosque, addressing in particular who plaintiff knew at the mosque who had a "jihadi mentality," what topics the mosque's leader, Sheikh Mohamed Kariye, speaks about both in public and in private, and how fundraising at the mosque occurs and who engages in fundraising there. The interrogators also questioned plaintiff about circumstances and events that plaintiff had disclosed to defendants Noordeloos and John Doe I (Jason Dundas) during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations plaintiff's interrogators urged him to cooperate with them and with the FBI by becoming an informant.
45. When plaintiff was returned to his cell at the end of the first day of interrogation he discovered that his bed and bedding had been removed. The air conditioning remained at a high level, which made the cell extremely cold. Because his bed and bedding had been removed, plaintiff was obliged to sleep almost naked on the cold cement floor.
46. During the initial period of his confinement plaintiff resisted answering
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some of the questions, insisting that he was an American citizen and needed to speak with his ambassador and with his attorney. In response, plaintiff's jailers struck him on his head and he fell to the ground. Throughout course of his confinement plaintiff was repeatedly beaten severely on his head, back, legs, and feet with batons and plastic pipes, required to assume stress positions for hours, and threatened with death by strangulation by use of a flexible plastic pipe. One particularly painful torture method his interrogators used was to force plaintiff to lie on his stomach with his sandals off, whereupon he was beaten severely on the soles of his feet; thereafter, he was required to stand on his feet, which standing caused him great pain.
47. On several occasions plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same questions and suggestion he had heard from defendants Noordeloos and John Doe I (Jason Dundas); he thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating plaintiff severely.
48. As noted above, during his interrogations plaintiff was occasionally able to peek beneath his blindfold and view the lower torsos of his interrogators. On most occasions, based on their clothing and accents, plaintiff believes that his interrogators were Arabs. On other occasions, however, plaintiff was able to view the shoes and slacks of several individuals who wore Western dress. Plaintiff believes that in those instances some or all of the Individual defendants, acting as representatives of the United States, were present and witnessed the interrogations and that those Individual defendants participated in interrogating plaintiff.
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49. All Individual defendants who attended and participated in the interrogation of plaintiff were present with the permission, and were under the physical and legal control, of UAE authorities who operated and maintained the secret prison.
50. On or about June 14, 2011, plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his confinement, plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland's as-Saber Mosque but, rather, upon whether plaintiff's financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test plaintiff’s bed and bedding were returned to his cell.
51. The interrogations, including beatings and stress positions, as well as being subjected to temperature extremes, sleep deprivation, and humiliation when not being interrogated, continued daily from June 14 through July 27.
52. On June 20, 2011, immediately after learning from plaintiff's family that plaintiff had been apprehended in the UAE (the family had learned of plaintiff's apprehension from witnesses who observed the event), Oregon counsel Thomas Nelson telephoned and then e-mailed the United States Consulate in Abu Dhabi to inform them that plaintiff, a United States citizen, had gone missing and that witnesses in Al Ain had viewed him being placed in a SUV of the type that is commonly used by the UAE secret police. The consulate officials indicated that they would look into the matter.
53. On July 21, 2011, plaintiff's Oregon counsel Thomas Nelson on behalf of plaintiff contacted Representative Earl Blumenauer's office to request assistance in locating plaintiff and made contact with staff member Emily Barrett. Ms. Barrett stated
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that Congressman Blumenauer would look into the situation. 54. On July 28, 2011, plaintiff was informed that a woman from the American
consulate had arrived to see him. He was told that he was to meet with the American consul and that he should not disclose to the consular officer that he had been mistreated during his detention lest he beaten still more severely.
55. On July 28, 2011, plaintiff, accompanied by two guards, was taken to a meeting room where he met “Marwa,” a consular employee of the State Department who, on information and belief, is of Egyptian extraction. The two guards positioned themselves close to plaintiff, one on each side. Marwa was dressed in Islamic attire (a “hijab,” or covering of her hair). By that time plaintiff had lost approximately 30 pounds of body weight.
56. The meeting with Marwa was short and superficial. Although by that time plaintiff had lost approximately 30 pounds, Marwa stated that plaintiff appeared to be in good shape. During the interview plaintiff attempted by facial contortions and winks to indicate that he was under duress, but Marwa either did not notice or disregarded these signals.
57. Marwa questioned plaintiff regarding what offense he had been charged with, whereupon plaintiff asked the two guards what he had been charged with. The guards stated that plaintiff was being held without charge and that the authorities were merely conducting an investigation.
58. Following the meeting with Marwa, plaintiff was returned to his cell and the interrogations and torture resumed. Marwa’s visit was the only United States consular visit during plaintiff's 106 days of detention and torture; the consulate did not visit or
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make any contact with plaintiff during his remaining 49 days of his confinement and torture, nor did it provide any assistance to plaintiff when he was deported from the UAE.
59. Following the meeting with Marwa, plaintiff became despondent. Because the consul's office had sent a Muslim woman wearing a hijab to interact with the prison authorities and the two guards, plaintiff came to believe that, because of his black skin, the United States had “thrown [him] away.” He consequently began to consider refusing food in an attempt at suicide, but was told that he would be force-fed if necessary.
60. Toward the end of his interrogation plaintiff again inquired of his interrogator whether the FBI had requested that he be detained and interrogated. This time, instead of being beaten, the interrogator stated that indeed the FBI had made such a request and that the American and Emerati authorities work closely on a number of such matters.
61. On September 14, 2011, plaintiff was told that he would be released that day but would have to leave the UAE and stay out for at least a year. His belongings were returned to him and money from his wallet was taken to buy him a plane ticket back to the United States while plaintiff remained in custody. Such a ticket was purchased from a travel agency; however, when the jailer took the ticket to the airport to obtain a boarding pass, the boarding pass was refused on the grounds that plaintiff was on the No-Fly List.
62. Plaintiff's custodian was visibly upset because he could not board the flight out of the UAE, and asked plaintiff, “What kind of country would refuse a citizen’s return to his own country?” or words to that effect. The custodian then reiterated that plaintiff
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could not stay in the UAE, and therefore would have to go somewhere else, and asked where plaintiff wished to be sent. Because plaintiff had a relative in Sweden, plaintiff indicated that he should be sent there. Therefore, the custodian took more money from plaintiff's wallet and arranged the purchase of a ticket to Stockholm, Sweden. This time a boarding pass was issued for plaintiff.
63. The United States consulate in the UAE knew or should have known that plaintiff would be deported upon his release from prison, but the consulate took no action to provide assistance to plaintiff upon his release.
64. Plaintiff arrived in Sweden traumatized, with few financial and other resources, and clothing entirely inappropriate for the Scandinavian weather and climate.
65. Shortly after arriving in Stockholm plaintiff contacted the airline that had refused to issue him a boarding pass in the UAE and discussed his situation with them. The representative he spoke with confirmed that he had been denied boarding on the flight from the UAE to the United States but stated that she could not provide any reasons for such refusal. Plaintiff then requested a refund of the ticket price, but the representative stated that because the ticket had been purchased through a travel agency in the UAE he would have to get the refund (if any) from that travel agency.
66. To date plaintiff has been unable to obtain a refund for the unused ticket from the UAE to the United States.
67. In addition to being stranded with few resources in a foreign country, being placed on the No-Fly List resulted in plaintiff's losing virtually all of his rights as a citizen of the United States - he could not return home to enjoy the rights, privileges and immunities of citizenship. Moreover, his experience with State Department officials in
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Khartoum and Abu Dhabi demonstrated to him that the State Department would neither protect nor assist him while overseas; rather, it would actively work to his detriment.
68. Nationals of one country are allowed to visit foreign countries for only limited periods of time before they have to leave the country they are visiting; in the case of Sweden and other Schengen Agreement countries the maximum stay is for 90 days for holders of United States passports unless special arrangements are made, such as requesting asylum.
69. Upon arriving in Sweden and being unable to return home, plaintiff contacted a Swedish attorney, Advokat Hans Bredberg, who suggested that plaintiff seek protective asylum in that country. Believing that the United States, through the FBI, was responsible for his detention and torture in Abu Dhabi and that he may still be in danger of abuse in countries that condone torture (including the United States), plaintiff submitted an application for asylum to the authorities in Sweden.
70. On April 18, 2012, a press conference was held in Advokat Bredberg's office in Stockholm during which plaintiff's ordeal was disclosed publicly. Less than two weeks later, on May 1, 2012, plaintiff and two other individuals were indicted in the United States District Court for the Southern District of California, Docket No. 3:12-cr06189-JAH, for "conspiracy to structure" monetary transfers from his family to him in the UAE between April 14, 2010, and April 19, 2010, which funds plaintiff used to attempt to start his business. On information and belief, this indictment was in retaliation for plaintiff's publicizing of his ordeal through the April 18, 2012 press conference in Stockholm, and based at least in part upon information the United States obtained from the interview at the United States Embassy in Khartoum, from plaintiff's 106 days of
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interrogation and torture in the UAE, and from the electronic surveillance of plaintiff. 71. Sometime in the fall of 2013 counsel for defendants contacted counsel for
plaintiff and suggested that if plaintiff wished to return to the United States he should visit the United States embassy in Stockholm to make necessary arrangements. After conferring with plaintiff in Stockholm, plaintiff's representatives informed defendants' counsel that plaintiff was apprehensive about entering the embassy grounds and that plaintiff would, under the present circumstances, consider returning if the United States (1) guaranteed plaintiff's safety from extra-judicial actions, and (2) provided adequate assurances that plaintiff could leave the United States once he returned. Counsel for defendants indicated that the United States would not provide such guarantees and assurances.
72. In early November 2013 plaintiff filed with the Department of Homeland Security (“DHS”) a Traveler Redress Inquiry Program (“TRIP”) request and was assigned a redress number. By letter dated January 23, 2014, DHS informed plaintiff that "It has been determined that no changes or corrections are warranted at this time" and suggesting that plaintiff might wish to take an administrative appeal from this decision. Because it was unclear from the DHS letter whether plaintiff was then on the No-Fly List, and thus it was unclear whether plaintiff was aggrieved by this decision, by letter dated February 24, 2014, plaintiff requested clarification and a stay pending resolution of this issue and the resolution of the current litigation. By letter dated March 11, 2014, DHS replied that an extension to take an appeal would be granted to April 22, 2014. Plaintiff then abandoned his efforts with DHS.
73. Because of the separation occasioned by plaintiff's inability to return to the
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United States and because of the stigma attaching to plaintiff occasioned by the United States' putting him on the No-Fly List, plaintiff's wife sought and received a divorce from plaintiff.
74. Early in 2015 plaintiff's application for asylum in Sweden was denied. 75. On February 12, 2015, the DHS by letter informed plaintiff that DHS had on its own motion "reevaluated" plaintiff's prior TRIP inquiry and informed plaintiff that he 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.'" The DHS provided no factual bases to support this conclusion, and requested plaintiff's response. By a letter dated February 19, 2015, plaintiff categorically denied that he was or is a threat and stated that the bare conclusion contained in the DHS latter of February 12, 2015, prevented plaintiff from providing a meaningful response; consequently, plaintiff asserted that the February 12, 2015, letter violated plaintiff's due process rights. By a "Decision and Order" dated March 9, 2015, the DHS indicated that plaintiff's name would remain on the No-Fly List. 76. On February 14, 2015, the Swedish government transported plaintiff to Portland, Oregon, by private jet. Plaintiff's Surveillance, Indictment, and Dismissal 77. In 2010, while he was inside the United States, plaintiff and his brother Dawit Woldehawariat - both US citizens - worked together to set up a lawful business venture abroad. In furtherance of this objective, plaintiff and his brother discussed the parameters of the business venture they envisioned and the financial resources necessary to execute their plan. These discussions occurred by telephone, email, and text message.
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78. Unbeknownst at the time to either plaintiff or his brother, defendants were intercepting and/or acquiring the content of plaintiff’s telephone calls, his text messages, and his emails. Plaintiff now knows this because the United States has confirmed, through Department of Justice filings submitted in a since-dismissed prosecution against plaintiff in the United States District Court for the Southern District of California, that it intercepted the contents of plaintiff’s telephone calls, emails, and text messages. See U.S. District Court for the Southern District of California, Docket No. 3:12-cr-06189JAH, Doc. # 10.
79. These interceptions and/or acquisitions of plaintiff’s telephone calls, emails, and text messages were not conducted pursuant to a warrant and were not supported by probable cause or reasonable suspicion.
80. On information and belief, the information upon which defendants caused plaintiff to meet with defendant FBI agents Noordeloos and John Doe I (Jason Dundas) in Khartoum and upon which defendants caused the UAE to imprison and torture plaintiff was derived from illegal surveillance and searches.
81. On information and belief, information derived from the electronic surveillance of plaintiff was willfully, knowingly, and/or recklessly disseminated for the unlawful purpose of interrogating plaintiff without counsel and coercing plaintiff to become an informant and then to cause his torture by proxy in the UAE.
82. On information and belief, the information derived from the electronic surveillance of plaintiff was disseminated to several agencies and foreign governments including but not limited to the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the
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Department of Justice/Federal Bureau of Investigation, the US Attorney’s Office for the District of Oregon, the Department of the Treasury and the National Security Agency, and the United Arab Emirates.
83. More than six months before the filing of the additional claims set forth in plaintiff's Third Amended Complaint, plaintiff filed a federal tort claim notice with the Department of Justice, NSA, FBI, and other agencies for violating the Foreign Intelligence Surveillance Act, the Wiretap Act, and the Stored Communications Act, and related claims. The named agencies have failed to make a final disposition of the claims at this time, and therefore plaintiff deems such failure to be a denial thereof.
84. Plaintiff has suffered mistreatment at the hands of defendants including, but not limited to, being placed on the No-Fly List without notice of the factual bases therefor or the opportunity to be heard, denial of legal counsel, false arrest and false imprisonment, assault and battery, torture, violation of his right to freedom of association, illegal surveillance, violation of his right to privacy, and violation of his substantive and procedural due process rights. Plaintiff intends to continue to attempt to exercise his rights, including the right to legal counsel, to travel by air, to be free from false arrest and false imprisonment, assault and battery, and torture, to freedom of association, and his substantive and procedural due process rights, but based upon defendants' past misconduct plaintiff has a reasonable fear of further future mistreatment by defendants and other agents of the United States.
Claim One Fifth Amendment Substantive Due Process - Right to International Travel
Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants)
85. Plaintiff realleges paragraphs 1 through 84.
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86. Plaintiff has a liberty right to international travel under the Fifth Amendment. By placing plaintiff's name on the No-Fly List, defendants have violated and are continuing to violate this right, preventing plaintiff from departing, flying over, or returning to the United States, all in violation of plaintiff's Fifth Amendment substantive due process right to travel internationally.
87. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Two Fifth Amendment – Violation of Right to Counsel and Right Against Self-
Incrimination Damages
(Against Defendants Noordeloos and John Doe I (Jason Dundas)) 88. Plaintiff realleges paragraphs 1 through 84. 89. Defendants Noordeloos and John Doe I (Jason Dundas) refused plaintiff's demand to be represented by counsel in Khartoum, Sudan, on April 22, 2010. Instead, those defendants continued to interrogate plaintiff notwithstanding such demand and then turned over such information to United States law enforcement defendants, which used information gleaned from plaintiff in securing his indictment in the District Court for the Southern District of California. 90. The actions, orders, authorizations, and other conduct of individual defendants Noordeloos and John Doe I (Jason Dundas) which deprived plaintiff of his right to counsel give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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Claim Three Fifth Amendment Procedural Due Process Placement and Retention on the No-Fly List Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 91. Plaintiff realleges paragraphs 1 through 84. 92. Plaintiff has a protected liberty interest in international travel. Plaintiff also has a protected liberty interest in his reputation and in freedom from governmentassigned stigmas that restrict or prevent him from engaging in activities in which he could otherwise engage and in which others not stigmatized are free to engage. 93. Defendants‘ actions in placing and keeping plaintiff on the FBI-maintained, secret No-Fly List substantially interferes with and deprives plaintiff of his liberty interest in international travel. Defendants‘ actions in placing and keeping plaintiff on the FBImaintained, secret No-Fly List also injures plaintiff’s liberty interest in his reputation by, first, stigmatizing him 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 and, second, on the basis of that stigma, depriving him of the ability to travel by air domestically and internationally as others are permitted to do and as plaintiff would be permitted to do absent the stigma. 94. Defendants‘ actions in placing and keeping plaintiff on the FBI-maintained, secret No-Fly List without informing him of such placement, of the basis for his inclusion on the No-Fly List, of the means of removing his name from the No-Fly List, and without providing an independent forum in which plaintiff might secure the removal of his name from the No-Fly List, all violated and are continuing to violate plaintiff’s right to procedural due process under the Fifth Amendment. Such procedures as do exist for challenging inclusion on the No-Fly List are inadequate to satisfy the notice and hearing
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requirements of procedural due process. 95. By these actions, defendants are irreparably harming plaintiff. Plaintiff has
no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Four First Amendment - Violation of Right to Freedom of Association
Injunctive, and Other Equitable Relief (Against All Defendants)
96. Plaintiff realleges paragraphs 1 through 84. 97. It is a policy, custom, and practice of defendants to place individuals on the No-Fly List in order to coerce them into becoming informants/agents provocateur for the FBI. Plaintiff has a right under the First Amendment to associate, and not to associate, with whom he pleases. Defendants placed plaintiff on the No-Fly List in order both to coerce plaintiff into associating with the FBI, and to coerce plaintiff into harming his associations with others with whom he associates, by becoming an informant/agent provocateur in a case then under investigation in Portland. Moreover, when plaintiff declined to become an informant and agent provocateur, defendants maintained plaintiff's name on the No-Fly List in retaliation, which ultimately led to plaintiff's being forced to seek protection and asylum in Sweden, all in violation of plaintiff's First Amendment right of freedom of association. 98. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court.
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Claim Five Fifth Amendment - False Arrest and Imprisonment
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 99. Plaintiff realleges paragraphs 1 through 84. 100. Plaintiff has a Fifth Amendment right to be free from false arrest and imprisonment. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to cause the arrest of plaintiff by UAE secret police without probable cause that he had committed a crime. The foreign intermediaries did so arrest plaintiff and imprisoned him without charge for 106 days, from June 1, 2011, through September 15, 2011. 101. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of false arrest and imprisonment. 102. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff. 103. On information and belief, the actions, orders, authorizations, and other
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conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from unlawful arrest and imprisonment without probable cause and give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Claim Six Common Law - False Arrest and Imprisonment
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 104. Plaintiff realleges paragraphs 1 through 84. 105. Plaintiff has a common law right to be free from false arrest and imprisonment. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to cause the arrest of plaintiff by UAE secret police without probable cause that he had committed a crime. The foreign intermediaries did so arrest plaintiff and imprisoned him without charge for 106 days, from June 1, 2011, through September 15, 2011. 106. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of false arrest and imprisonment. 107. On information and belief, at all relevant times, some or all some or all of
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individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
108. On information and belief, the actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from unlawful arrest and imprisonment without probable cause and give rise to a cause of action for damages directly under the common law. Plaintiff has been damaged in the amount of $10 million.
Claim Seven Fifth Amendment - Assault and Battery
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 109. Plaintiff realleges paragraphs 1 through 84. 110. Plaintiff has a Fifth Amendment right to be free from assault and battery by agents working on behalf of the United States. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to assault plaintiff in the UAE secret police prison in Abu Dhabi, UAE, and the UAE secret police did so assault and batter plaintiff for 106 days, from June 1, 2011, through September 15, 2011. 111. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, present during some of the acts complained of herein, said presence having been authorized by UAE
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officials, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of assault and battery.
112. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
113. On information and belief, the actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from assault and battery and give rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
Claim Eight Common Law - Assault and Battery
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 114. Plaintiff realleges paragraphs 1 through 84. 115. Plaintiff has a common law right to be free from assault and battery by agents working on behalf of the United States. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X enlisted foreign intermediaries to assault and batter plaintiff in the UAE secret
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police prison in Abu Dhabi, UAE, and the UAE secret police did so assault and batter plaintiff for 106 days, from June 1, 2011, through September 15, 2011.
116. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, present during some of the acts complained of herein, said presence having been authorized by UAE officials, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of assault and battery.
117. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
118. The actions, orders, authorizations, and other conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X deprived plaintiff of his right to be free from assault and battery and give rise to a cause of action for damages directly under the common law. Plaintiff has been damaged in the amount of $10 million.
Claim Nine Torture - Torture Victim Protection Act
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 119. Plaintiff realleges paragraphs 1 through 84.
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120. Plaintiff was tortured within the meaning of the Torture Victim Protection
Act, Pub.L. 102–256 (1992) ("TVPA"), which in section 3 defines "torture" as – (1) . . . any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
121. Section 2(a) of the TVPA creates a cause of action for damages against
"any individual who, under actual or apparent authority, or color of law, of any foreign
nation . . . subjects an individual to torture."
122. It is a policy, custom, and practice for defendants, at least after September
11, 2001, to engage in torture by proxy. See, e.g., 24 August 2009 and 13 December
2012 NY Times; see also www.huffingtonpost.com/2009/08/28/new-cia-docs-detail-
bruta_n_271299.html. On information and belief, some or all of individual defendants
Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, in cooperation with
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plaintiff’s UAE captors, and physically present and acting under the apparent or actual authority of the UAE, have directly performed or aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of torture.
123. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
124. As a proximate cause of defendants' unlawful conduct, plaintiff has suffered severe physical harm, emotional distress, and economic loss, and is entitled to relief under the Constitution and the TVPA.
Claim Ten Fifth Amendment Due Process – Torture
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does II-X) 125. Plaintiff realleges paragraphs 1 through 84. 126. It is a policy, custom, and practice for defendants, at least after September 11, 2011, to engage in torture by proxy. On information and belief, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X, in cooperation with plaintiff’s UAE captors, and physically present and acting under the apparent or actual authority of the UAE, have directly performed or aided,
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abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, acted in concert with, or conspired in the commission of the above-described acts of torture.
127. On information and belief, at all relevant times, some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X committed, knew of and/or acquiesced in all of the above-described acts. Defendants' conduct was done intentionally, with deliberate indifference, and/or with reckless disregard, of plaintiff's rights. By the acts alleged herein, defendants' conduct has proximately caused harm to plaintiff.
128. The unlawful conduct of some or all of individual defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does II-X has caused plaintiff severe physical harm, emotional distress, and economic loss, and gives rise to a cause of action for damages directly under the Fifth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Claim Eleven Fourth Amendment Violation
Damages (Against Defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane
Does XI-XX) 129. Plaintiff realleges paragraphs 1 through 84. 130. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
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131. Plaintiff’s telephone communications, emails, text messages, and other communications are protected from interception, search, and seizure by the Fourth Amendment. Plaintiff has a reasonable expectation of privacy in his telephone communications, emails, text messages, and other communications.
132. Plaintiff’s Fourth Amendment rights were violated by defendants’ interception, search, and seizure of plaintiff’s telephone calls, emails, and text messages. Defendants’ actions were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and were unreasonable.
133. Provisions of the Patriot Act and FISA authorize defendants to acquire the constitutionally protected communications of U.S. citizens and residents (i) without identifying the people to be surveilled, (ii) without specifying the facilities, places, premises, or property to be monitored, (iii) without observing meaningful limitations on the retention, analysis, and dissemination of acquired information, (iv) without obtaining individualized warrants based on criminal or foreign intelligence probable cause, and (v) without making prior administrative determinations that the targets of surveillance are foreign agents or connected in any way, however tenuously, to terrorism.
134. On information and belief, the actions, orders, authorizations, and other conduct of defendants Noordeloos, John Doe I (Jason Dundas), and John/Jane Does XI-XX deprived plaintiff of his Fourth Amendment right to be free from unconstitutional searches and seizures and give rise to a cause of action for damages directly under the Fourth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has been damaged in the amount of $10 million.
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Claim Twelve Fourth Amendment Violation Declaratory, Injunctive, and Other Equitable Relief
(Against All Defendants) 135. Plaintiff realleges paragraphs 1 through 84. 136. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 137. Plaintiff’s telephone communications, emails, text messages, and other communications are protected from interception, search, and seizure by the Fourth Amendment. Plaintiff has a reasonable expectation of privacy in his telephone communications, emails, text messages, and other communications. 138. Plaintiff’s Fourth Amendment rights were violated by defendants’ interception, search, and seizure of plaintiff’s telephone calls, emails, and text messages. Defendants’ actions were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and were unreasonable. 139. Provisions of the Patriot Act and FISA authorize defendants to acquire the constitutionally protected communications of U.S. citizens and residents (i) without identifying the people to be surveilled, (ii) without specifying the facilities, places, premises, or property to be monitored, (iii) without observing meaningful limitations on the retention, analysis, and dissemination of acquired information, (iv) without obtaining individualized warrants based on criminal or foreign intelligence probable cause, and (v) without making prior administrative determinations that the targets of surveillance are
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foreign agents or connected in any way, however tenuously, to terrorism. 140. On information and belief, defendants continue to collect, retain, use, and
disclose plaintiff’s telephone calls, emails, and text messages, and information derived therefrom, that defendants unconstitutionally seized. By these actions, defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and defendants will continue to violate plaintiff’s legal rights unless enjoined and restrained by this Court. Plaintiff seeks an injunction requiring defendants to return or destroy any of plaintiff’s unconstitutionally seized telephone calls, emails, or text messages, or information derived therefrom, that defendants continue to retain, and prohibiting any use or disclosure of those communications and information.
141. It is a policy, custom, and practice of defendants routinely to intercept, search, and seize telephone calls, emails, and text messages of Muslim Americans without probable cause that they have committed a crime or are agents of a foreign power. To prevent him from continuing to be targeted now and in the future, plaintiff seeks a declaration that the provisions of the Patriot Act and FISA which permit the federal government secretly to collect, disseminate, and retain information from a person and which allow one to perform electronic surveillance and wiretaps of a person without first demonstrating to a court the existence of probable cause that the person has committed a crime are unconstitutional.
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Claim Thirteen Violation of the Foreign Intelligence Surveillance Act
Damages (Against Defendants United States of America, Defendant Noordeloos, John Doe
I, and John/Jane Does XI-XX) 142. Plaintiff realleges paragraphs 1 through 84. 143. On information and belief, defendants unlawfully engaged in electronic surveillance of plaintiff and unlawfully used and/or disclosed information obtained by electronic surveillance of plaintiff, in violation of 50 U.S.C. §§ 1801 (i), 1804(a), and 1806(a). 144. The electronic surveillance was done under purported FISA authority. 145. On information and belief, the information derived from the electronic surveillance of plaintiff was willfully, knowingly, and recklessly disseminated for the unlawful purpose of interrogating plaintiff without counsel and coercing plaintiff to turn informant and then to cause his torture by proxy in the UAE. 146. Plaintiff and his brother are not foreign powers or agents of foreign powers, and there has never been any probable cause to believe so. The information obtained from defendants’ electronic surveillance of their communications is not foreign intelligence information. Obtaining foreign intelligence was not the primary purpose and was not a significant purpose of defendants’ electronic surveillance of plaintiff’s communications. The information defendants obtained from their electronic surveillance of plaintiff’s communications could have been obtained by normal investigative techniques, e.g., normal criminal wiretap warrants conforming to the Fourth Amendment’s warrant requirement. 147. The electronic surveillance was not authorized or conducted pursuant to
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the strict FISA procedural requirements, certifications, and privacy protections for U.S. persons, and/or the minimization procedures that apply only to foreign intelligence and not open-ended domestic intelligence activities.
148. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712 for the unlawful use and disclosure of information. Defendants Noordeloos, John Doe I, and John/Jane Does XI-XX are liable in damages pursuant to 50 U.S.C. § 1810.
Claim Fourteen Violation of the Stored Communications Act
Damages (Against Defendants United States of America and John/Jane Does XI-XX)
149. Plaintiff realleges paragraphs 1 through 84. 150. On information and belief, defendants United States, FBI, NSA, and John Does XI-XX intercepted and/or acquired, disseminated, and otherwise utilized plaintiff’s stored communications, including but not limited to emails and text messages, in violation of 18 U.S.C. § 2703. 151. Plaintiff did not decide to pursue commercial activities in East Africa until late December 2009. Plaintiff was first interrogated in Sudan in April 2010, during which interrogation defendants used illegally obtained electronic communications. At least some of these communications were clearly in electronic storage for fewer than 180 days. Even if the illegally acquired communications had been in storage for more than 180 days, those communications were not obtained in compliance with 18 U.S.C. § 2703(b). 152. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712. Defendants John/Jane Does XI-XX are liable in damages pursuant to
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18 U.S.C. § 2707(a), as required by 18 U.S.C. § 2703(a). Claim Fifteen
Violation of the Wiretap Act Damages
(Against Defendants United States of America and John/Jane Does XI-XX) 153. Plaintiff re-alleges paragraphs 1 through 84. 154. On information and belief, Defendants United States, FBI, NSA, and John
Does XI-XX intercepted and/or acquired, disseminated, and otherwise utilized plaintiff’s electronic communications, including but not limited to phone conversations with his brother, in violation of 18 U.S.C. § 2511 as required by 18 USC 2703(a)..
155. Defendant United States is liable in damages to plaintiff pursuant to 18 U.S.C. § 2712. Defendants John/Jane Does XI-XX are liable in damages pursuant to 18 U.S.C. § 2520(a).
Claim Sixteen Motion For Return Of Unlawfully Searched And Seized Property Pursuant To
Federal Rule of Criminal Procedure 41(g) (Against All Defendants)
156. Plaintiff re-alleges paragraphs 1 through 84. 157. This Court has civil equitable jurisdiction under Federal Rule of Criminal Procedure 41(g) to order the return of illegally searched and seized property. U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc). 158. Defendants have unlawfully searched, seized, used, and disclosed plaintiff’s telephone calls, emails, and text messages, and information derived therefrom. Plaintiff is aggrieved by defendants’ unlawful search, seizure, use, and disclosure of these communications and information. 159. Plaintiff seeks an order directing the return or destruction of plaintiff’s unconstitutionally seized telephone calls, emails, or text messages, or information Page 40 - FIFTH AMENDED COMPLAINT, Civil No. 3:13-cv-00899 (BR)

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derived therefrom, in the possession, custody, or control of defendants, their agents,

successors, and assigns, and all those in active concert and participation with them.

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully requests the following relief:

1. Declaratory Judgment. A declaratory judgment that –

a.

the provisions of the Patriot Act and FISA and the FISA

Amendment Act of 2008 which permit the federal government to perform

electronic surveillance and wiretaps of a person without first requiring the

government to demonstrate to a court the existence of probable cause that the

person has committed a crime, or alternatively that the primary purpose is to

gather foreign intelligence are unconstitutional;

b.

The interception and/or acquisition, retention and dissemination of

plaintiff's voice and other electronic communications was illegal and in violation of

the Fourth Amendment, FISA, the Stored Communications Act, and the Wiretap

Act;

c. Official Capacity defendants violated plaintiff's due process right as

a citizen under the Fifth Amendment to the United States Constitution to return to

the United States when plaintiff was expelled from the United Arab Emirates;

d. Official Capacity defendants violated plaintiff's due process rights

as a citizen under the Fifth Amendment to the United States Constitution by

denying plaintiff the right to travel to, from, and over the United States;

e. Official Capacity defendants violated plaintiff's due process rights

as a citizen of the United States by promulgating a vague standard for including

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plaintiff's name on the No-Fly List and by providing no realistic means to challenge said inclusion;
f. Official Capacity defendants violated plaintiff's right to legal counsel under the Fifth Amendment to the United States Constitution by denying plaintiff's request to consult with an attorney prior to plaintiff's being interrogated by defendants Noordeloos and John Doe I (Jason Dundas) at the United States Embassy in Khartoum, Sudan, in April 2010, and then using the information gleaned from such interrogation to indict plaintiff in the Federal District Court for the Southern District of California in May 2012;
g. Official Capacity defendants violated plaintiff's right to freedom of association under the First Amendment to the United States Constitution by requiring him to associate with the FBI as an informant and/or agent provocateur in order to have his name removed from the No-Fly List;
h. Official Capacity defendants violated plaintiff's right to procedural due process under the Fifth Amendment to the United States Constitution by placing and retaining his name of the No-Fly List without notice or meaningful opportunity to contest such placement;
i. Some or all Individual defendants violated plaintiff's substantive due process rights under the Fifth Amendment to the United States Constitution to be free from arbitrary arrest, false imprisonment, assault, battery, and torture;
j. Some or all Individual defendants violated plaintiff’s rights under the Torture Victim Protection Act;
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k. Individual defendants Noordeloos and John Doe I (Jason Dundas) violated plaintiff's right to legal counsel under the Fifth Amendment to the United States Constitution by denying plaintiff's request to consult with an attorney prior to plaintiff's being interrogated by defendants Noordeloos and John Doe I (Jason Dundas) at the United States Embassy in Khartoum, Sudan, in April 2010, which information was then was used by Official Capacity defendants to indict plaintiff in the Federal District Court for the Southern District of California in May 2012. 2. Injunction. An injunction requiring that --
a. Official Capacity defendants, except to the extent required by exercise of standard security precautions at airports, not prevent plaintiff from returning to, flying over, or departing from the United States;
b. Official Capacity defendants, except to the extent required by exercise of standard security precautions at airports, not prevent plaintiff from traveling internationally by air;
c. Official Capacity defendants not interrogate plaintiff once plaintiff requests to be assisted by legal counsel;
d. Official Capacity defendants not deny plaintiff the opportunity to consult with legal counsel prior to and during any interrogation of plaintiff;
e. Official Capacity defendants not use in a criminal proceeding any information gathered from plaintiff during an interrogation of plaintiff at which interrogation plaintiff was not represented by legal counsel after so requesting the assistance of legal counsel;
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f. Official Capacity defendants not condition the removal of plaintiff's name from the No-Fly List upon plaintiff's agreeing to become an informant or agent provocateur on behalf of Official Capacity defendants;
g. Official Capacity defendants not deny plaintiff written notice whenever his named is added to the No-Fly List;
h. Official Capacity defendants not deny plaintiff written notice whenever his name is removed from the No-Fly List;
i. Official Capacity defendants not deny plaintiff with the specific reasons why his name was added to the No-Fly List;
j. Official Capacity defendants to not agree to, arrange, or condone plaintiff's arrest by any foreign power when there is not probable cause to indicate that plaintiff has committed a crime within the jurisdiction of the foreign power;
k. Official Capacity defendants to not agree to, arrange, or condone plaintiff's imprisonment by any foreign power when there is not probable cause to indicate that plaintiff has committed a crime within the jurisdiction of the foreign power;
l. Official Capacity defendants to not agree to, arrange, or condone assaults on plaintiff by agents of a foreign power;
m. Official Capacity defendants to not agree to, arrange, or condone battery upon plaintiff by agents of a foreign power;
n. Official Capacity defendants to not agree to, arrange, or condone torture of plaintiff by agents of a foreign power.
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o. Official Capacity defendants and the DOJ, the FBI, the NSA, the State Department, and the United States (including all of entities and instrumentalities such as the CIA, Department of Homeland Security, the Department of Defense, the US Attorney’s Offices), to retrieve, purge and destroy all illegally intercepted and/or acquired, voice and electronic communications and related data and information arising from such interceptions and/or acquisitions and to seek the return and destruction from any other agencies or government and to refrain from distributing to any requesting party such communications and information relating to plaintiff and to retrieve and destroy all illegally collected, disseminated and retained information and communications collected pursuant to FISA authorized searches and surveillance relating to plaintiff from government agencies and computer databases. 3. Damages. Enter judgment against each Individual defendant sued in his individual capacity in an amount to be determined at trial but not less than ten million dollars ($10,000,000), plus punitive damages in an amount to be determined at trial, for the violation of plaintiff’s clearly established constitutional rights, statutory rights, and common law rights as alleged herein. Enter judgment against the United States for damages according to proof pursuant to 18 U.S.C. § 2712. Further, it is requested that plaintiff be awarded reasonable attorneys' fees pursuant to 28 U.S.C. § 2412(d), 18 U.S.C 2707(b), 18 U.S.C. § 2712, 50 U.S.C. § 1810, and costs, and expenses of all litigation. 4. Other Relief. Such other relief as the Court may deem just and proper.
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Case 3:13-cv-00899-BR Document 87 Filed 11/29/15 Page 46 of 46 DATED at Riyadh, Kingdom of Saudi Arabia, this 30th day of November, 2015.
s/ Thomas H. Nelson, OSB 78315 Brandon Mayfield, OSB 000824 Gadeir Abbas, pro hac vice William J. Burgess, pro hac vice Attorneys for Plaintiff
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

YONAS FIKRE,
Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION; LORETTA E. LYNCH, in her official capacity as Attorney General of the United States; DEPARTMENT OF STATE; JOHN KERRY, in his official capacity as Secretary of State; UNITED STATES OF AMERICA; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the FBI Terrorist Screening Center; JAMES CLAPPER, in his official capacity as Director of National Intelligence; MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency; NATIONAL SECURITY AGENCY; DAVID NOORDELOOS, an employee of the Federal Bureau of Investigation, in his official and individual capacity; JOHN DOE I, also known as JASON DUNDAS, an employee of the Federal Bureau of Investigation, in his official and individual capacities; and JOHN/JANE DOES II-XX, agents of the United States,
Defendants.

3:13-cv-00899-BR OPINION AND ORDER

1 - OPINION AND ORDER

GADEIR I. ABBAS WILLIAM J. BURGESS Council on American-Islamic Relations 453 New Jersey Avenue, S.E. Washington, D.C. 2003 (720) 251-0425
BRANDON B. MAYFIELD 3950 S.W. 185th Avenue Beaverton, Oregon 97007 (503) 941-5101
THOMAS H. NELSON P.O. Box 1211 Welches, Oregon 97067-1211 (503) 622-3262
Attorneys for Plaintiff
LORETTA E. LYNCH United States Attorney General BRIGHAM J. BOWEN SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514-6289
Attorneys for Defendants Federal Bureau of Investigation, Loretta E. Lynch, Department of State, John Kerry, James B. Comey, Christopher M. Piehota, Michael S. Rogers, National Security Agency, United States of America, and James Clapper
BROWN, Judge.
This matter comes before the Court on the Motion (#90) to
Dismiss Plaintiff’s Fifth Amended Complaint filed by Defendants
Federal Bureau of Investigation (FBI), Loretta E. Lynch,
Department of State, John Kerry, James B. Comey, Christopher M.
2 - OPINION AND ORDER

Piehota, Michael S. Rogers, National Security Agency (NSA), United States of America, and James Clapper (collectively referred to as Official Capacity Defendants) and Official Capacity Defendants’ Unopposed Motion (#91) Motion for Partial Stay of Due Process Claims.
For the reasons that follow, the Court GRANTS Official Capacity Defendants’ Motion (#90) to Dismiss and DISMISSES with prejudice Plaintiff’s Fifth Amended Complaint as to Plaintiff’s claims against Official Capacity Defendants. The Court also DENIES as moot Official Capacity Defendants’ Unopposed Motion (#91) to Stay Plaintiff’s Due Process Claims.
PROCEDURAL BACKGROUND Plaintiff filed his Fifth Amended Complaint (#87) (FAC) on November 29, 2015. On January 21, 2016, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) Official Capacity Defendants moved to dismiss the claims that Plaintiff Yonas Fikre brings against them in his FAC as described below and also moved in the
3 - OPINION AND ORDER

alternative to stay Plaintiff’s due-process claims.1 On February 11, 2016, Plaintiff filed a Response (#95) in
Opposition to Official Capacity Defendants’ Motion to Dismiss. On March 3, 2016, Official Capacity Defendants filed a Reply (#96) in Support of Motion to Dismiss.
On May 9, 2016, Official Capacity Defendants filed a Notice (#98) Regarding Plaintiff’s Status in which they represented “Plaintiff has been removed from the No Fly List.” That same day by Order (#99) the Court directed the parties2 to confer and to file no later than May 16, 2016, a single, joint status report in which the parties set out their positions regarding the effect of Plaintiff’s removal from the No-Fly List on Official Capacity Defendants’ pending Motion (#90) to Dismiss Plaintiff’s Fifth Amended Complaint and Official Capacity Defendants’ Unopposed Motion (#91) to Stay Due Process Claims and, in particular, to specify the portions of the pending Motions that are rendered moot and the portions that are unaffected by the Notice.
1 David Noordeloos and the John and Jane Doe Defendants, who Plaintiff sued in their individual capacities (collectively Individual Capacity Defendants), have not yet been served and, therefore, are not currently parties to this litigation. Thus, Claims Two, Five, Six, Seven, Eight, Nine, Ten, and Eleven, are not at issue in this Motion because those claims relate exclusively to Individual Capacity Defendants.
2 For purposes of this Motion only, the Court’s references to the “parties” include only Plaintiff and Official Capacity Defendants.
4 - OPINION AND ORDER

In a Joint Status Report (#100) filed May 16, 2016, the parties agreed Claims One and Three should be dismissed to the extent that those claims seek injunctive relief related to the removal of Plaintiff’s name from the No-Fly List. Plaintiff, however, contends he remains entitled to other injunctive and declaratory relief on Claims One and Three.
On May 20, 2016, the Court issued Order (#101) in which it concluded oral argument was unnecessary to resolve the pending Motions. In light of the intervening developments since the filing of Defendants’ Motions, however, the Court directed the parties to file a stipulation confirming their agreement as to the extent to which Defendants’ Notice (#98) moots or otherwise resolves any of Plaintiff’s pending claims. In addition, the Court provided the parties an opportunity to file simultaneous, supplemental memoranda regarding the effect that Plaintiff’s removal from the No-Fly List has on Official Capacity Defendants’ Motions and to provide any additional argument. The parties filed their respective supplemental memoranda (#103, #104) on June 23, 2016, and the Court took this matter under advisement without argument on that date.
5 - OPINION AND ORDER

BACKGROUND For purposes of these Motions, the Court deems as true the following background facts from Plaintiff’s FAC, Official Capacity Defendants’ Notice (#98) Regarding Plaintiff’s Status, and the parties’ Joint Status Report (#100): I. The No-Fly List The FBI is responsible for development and maintenance of the No-Fly List, which identifies individuals who are “prohibited from flying into, out of, or over the United States” or into, out of, or over Canadian airspace by commercial airlines. II. Interrogation of Plaintiff and Placement on the No-Fly List Plaintiff is a 33-year-old naturalized American citizen of Eritrean descent who was a resident of Portland, Oregon, beginning in 2006. In late 2009 Plaintiff decided to use his experience working for a cellular telephone company in the United States to pursue the business of distributing and selling consumer electronic products in East Africa, and, accordingly, Plaintiff traveled to Sudan where some of his extended family lives. In Sudan Plaintiff informed the United States Embassy in Khartoum of his presence in the country and his intention to pursue business opportunities there. Based on encouragement from Embassy personnel, Plaintiff began the process of obtaining a Sudanese business license.
6 - OPINION AND ORDER

On April 21, 2010, Plaintiff received a telephone call from the Embassy requesting Plaintiff to contact Defendant Noordeloos. When Plaintiff returned the call, Noordeloos represented himself as an Embassy official working for the State Department. Noordeloos invited Plaintiff to a luncheon at the Embassy the following day to discuss safety during a period of political turmoil in Sudan.
The next morning Plaintiff arrived at the Embassy and was met by Noordeloos and Defendant John Doe I, who introduced himself as Jason Dundas. Noordeloos and Dundas escorted Plaintiff to a small meeting room, shut the door, positioned themselves between Plaintiff and the door, and informed Plaintiff that they worked for the FBI Field Office in Portland, Oregon.
When he was told Noordeloos and Dundas were FBI agents from Portland, Plaintiff requested to be represented by his legal counsel during any interrogation. Noordeloos, however, informed Plaintiff that he could not return to the United States to confer with his Oregon-based legal counsel because Plaintiff had been placed on the No-Fly List.
The ensuing interrogation lasted several hours until the end of the business day. Throughout the course of the interrogation Noordeloos and Dundas questioned Plaintiff about the As-Saber Mosque in Portland where Plaintiff had attended prayer services. In addition, Noordeloos and Dundas questioned Plaintiff about the
7 - OPINION AND ORDER

source of financial support for his business endeavors and told him that sanctions made his business activities in Sudan illegal. Finally, Noordeloos asked Plaintiff to be an informant for the FBI in exchange for “substantial compensation” and removal from the No-Fly List. Plaintiff responded he did not wish to become an informant. At the end of the business day Noordeloos suggested they resume the discussion the following day. Plaintiff agreed.
The following morning Plaintiff called Noordeloos on the telephone and informed him that he did not wish to meet further with Dundas and Noordeloos. Noordeloos became agitated when Plaintiff again stated he did not want to be an informant. Noordeloos concluded the conversation by telling Plaintiff: “Whenever you want to go home you come to the embassy.” On May 4, 2010, a little more than a week after their final conversation, Noordeloos emailed Plaintiff as follows:
Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos FAC ¶ 38. Plaintiff remained in Khartoum for approximately two months during which time he noticed he was being followed by persons he assumed to be associated with the Sudanese secret
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police. He learned from acquaintances that similar individuals had been inquiring about him and his activities. Plaintiff left Sudan on approximately June 15, 2010.
On approximately September 15, 2010, Plaintiff traveled to the United Arab Emirates (UAE) to pursue similar business interests. Plaintiff obtained a residency permit in the UAE in order to conduct business, and he invested substantial financial resources provided by his family for that purpose.
On the evening of June 1, 2011, Plaintiff was forcibly taken from his home by persons who he later learned were Emirati secret police. The police seized some of Plaintiff’s personal property, blindfolded him, and placed him in a heavily air-conditioned car. Plaintiff's captors drove him for approximately two hours to a building where he was housed in a heavily air-conditioned, windowless cell with only a bed.
The next morning Plaintiff was led to a room in which he would undergo the first of repeated interrogations during 106 days of imprisonment. During these interrogations Plaintiff was blindfolded while he was questioned in English for extended periods of time. Periodically Plaintiff was able to peek beneath his blindfold and to view the shoes and lower torsos of his interrogators, some of whom wore Western clothes.
The substance of the interrogations focused on the activities, fundraising, and leadership of the As-Saber Mosque.
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In addition, the interrogators questioned Plaintiff about “circumstances and events that [P]laintiff had disclosed” to Noordeloos and Dundas in Khartoum, and the interrogators urged Plaintiff “numerous times” to cooperate with the FBI by becoming an informant.
Plaintiff was subjected to multiple threats and beatings throughout the course of his confinement. In response to his resistance to answering questions, Plaintiff was struck on the head. Plaintiff also was repeatedly beaten on his back, legs, and the soles of his feet with batons and plastic pipes. When Plaintiff returned to his cell at the end of the first day of interrogation, his bed had been removed and he had to sleep on the floor of his cold cell. When Plaintiff asked his interrogators on several occasions whether his confinement and interrogation were at the request of the FBI, the interrogators severely beat him.
On June 14, 2011, Plaintiff took a “lie-detector test” during which he was questioned about whether his “financial arrangements involved soliciting funds for al-Qaeda,” but he was not asked about the as-Saber Mosque. That evening the bed was returned to his cell.
On June 20, 2011, Plaintiff's family learned from Plaintiff's neighbors in the UAE that he was missing. Plaintiff's counsel notified the United States Consulate in Abu
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Dhabi that Plaintiff had disappeared after being placed in an SUV of the type commonly used by the Emirati secret police.
The interrogations and beatings continued until July 28, 2011, when Plaintiff met with a United States Department of State employee named Marwa. Before the meeting Plaintiff's captors instructed him not to disclose his mistreatment. During the interview guards told Marwa that Plaintiff was being held without charge as part of an ongoing investigation. Despite Plaintiff losing approximately 30 pounds since his kidnapping, Marwa found Plaintiff was in good health. Plaintiff “attempted by facial contortions and winks to indicate that he was under duress,” but Marwa either did not notice or disregarded the signals.
The interrogations and beatings resumed after Marwa's visit. Following the meeting interrogators repeatedly told Plaintiff that he would be released “soon” or “tomorrow,” but he was not released. Plaintiff considered refusing food in an attempt at suicide, but he was told he would be force-fed.
Near the end of his detention Plaintiff again asked an interrogator whether the FBI had requested his detention and interrogation. This time the interrogator confirmed the FBI had made such a request and that American and Emirati authorities work closely on a number of such matters.
On September 14, 2011, Plaintiff was told he would be released that day. Interrogators took money from Plaintiff's
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wallet to purchase an airline ticket back to the United States, but they were told Plaintiff would not be allowed to return to the United States by air because he was on the No-Fly List. Thus, Plaintiff chose to fly to Sweden where, in the belief that he might still be in danger of abuse in countries that condone torture, Plaintiff submitted an application for asylum.
Based on his experience with State Department officials in Khartoum and the UAE, Plaintiff does not believe he can rely on the State Department to protect or to assist him while overseas.
On April 18, 2012, Plaintiff and his Swedish attorney held a press conference to detail his experiences in Sudan and the UAE and to announce that he would seek asylum in Sweden. Less than two weeks later Plaintiff and two other individuals were indicted in the United States District Court for the Southern District of California for “conspiracy to structure monetary transfers” from his family to him between April 14, 2010, and April 19, 2010. The charges against Plaintiff were ultimately dismissed.
In the fall of 2013 Defendants’ counsel suggested Plaintiff should visit the U.S. Embassy in Stockholm to make the necessary arrangements to return to the United States. Because the government would not assure Plaintiff (1) that his safety from “extra-judicial actions” was guaranteed and (2) that he would be permitted to leave the United States after he returned, Plaintiff declined to return to the United States.
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In November 2013 Plaintiff filed a DHS TRIP inquiry. On January 23, 2014, DHS informed Plaintiff that changes to his status were not warranted at that time. DHS, however, did not verify Plaintiff’s status on the No-Fly List.
Plaintiff’s wife sought and received a divorce from Plaintiff because of the separation resulting from Plaintiff’s inability to return to the United States and because of the stigma attached to Plaintiff’s placement on the No-Fly List.
In early 2015 Plaintiff’s asylum application in Sweden was denied. On February 12, 2015, after the parties stipulated DHS would reconsider Plaintiff's DHS TRIP application under the new procedures in light of the Court's June 24, 2014, Opinion and Order in Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014), DHS informed Plaintiff that he remained on the No-Fly List because he had been “identified as an individual who may be a threat to civil aviation or national security.” DHS did not provide any additional factual reasons for Plaintiff's designation.
On February 14, 2015, the Swedish government transported Plaintiff to Portland, Oregon, by private jet.
As noted, on May 9, 2016, Official Capacity Defendants filed a Notice (#98) Regarding Plaintiff’s Status in which Official Capacity Defendants indicated Plaintiff had been removed from the No-Fly List.
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III. Defendants’ Surveillance of Plaintiff In 2010 while Plaintiff was in the United States, he and his
brother, Dawit Woldehawariat, worked together to set up a business venture abroad. Plaintiff and Woldehawariat discussed this venture by telephone, email, and text messages.
As a result of discovery and filings in the Southern District of California criminal case against Plaintiff that was ultimately dismissed, Plaintiff discovered Defendants intercepted the contents of the communications between Plaintiff and Woldehawariat. Plaintiff alleges Defendants did so without a warrant or probable cause and that the electronic surveillance took place under Foreign Intelligence Surveillance Act (FISA) authority. These intercepted communications formed the basis for the meeting in the Khartoum Embassy and have been transmitted to several United States government agencies and foreign governments.
STANDARDS I. Federal Rule of Civil Procedure 12(b)(1)
When deciding a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court may consider affidavits and other evidence supporting or attacking the plaintiff’s jurisdictional allegations. Autery v. U.S., 424 F.3d 944, 956 (9th Cir. 2005). The court may permit discovery to
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determine whether it has jurisdiction. Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). See also Mujica v. AirScan, Inc., 771 F.3d 580, 617 (9th Cir. 2014). The court has broad discretion in granting discovery and may narrowly define the limits of such discovery. Data Disc, Inc., 557 F.2d at 1285. See also Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008). When the court “receives only written submissions, the plaintiff need only make a prima facie showing of jurisdiction.” Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). Plaintiff has the burden to establish that the court has subject-matter jurisdiction. Ass'n of American Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000). II. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the plaintiff’s complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 546). When a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
The pleading standard under Federal Rule of Civil Procedure 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). See also Fed. R. Civ. P. 8(a)(2). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Twombly, 550 U.S. at 555. A complaint also does not suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.
DISCUSSION As noted, Official Capacity Defendants move to dismiss each of the claims brought against them in Plaintiff’s FAC.3 I. Plaintiff’s Due Process Claims: Substantive Due Process (Claim One) and Procedural Due Process (Claim Three)
3 In his FAC, Plaintiff only brings Claims One, Three, Four, and Twelve through Sixteen against Official Capacity Defendants.
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In Claim One Plaintiff brings a substantive due-process claim against Official Capacity Defendants in which Plaintiff asserts his placement on the No-Fly List violated his fundamental right to international travel. In Claim Three Plaintiff brings a procedural due-process claim against Official Capacity Defendants in which Plaintiff asserts they provided him with inadequate procedural opportunities to have his name removed from the No-Fly List through the DHS TRIP process. Plaintiff seeks declaratory and injunctive relief on Claims One and Three.
Official Capacity Defendants move to dismiss Claims One and Three on the basis that those claims are moot as a result of Plaintiff’s removal from the No-Fly List.
A. Mootness Standard The limitation of the judicial branch in Article III of the United States Constitution to adjudicate “cases” and “controversies” requires “those who invoke the power of a federal court to demonstrate standing—a ‘personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.’” Already, LLC v. Nike Inc., 133 S. Ct. 721, 726 (2013)(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). “[A]n ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages’ of the litigation.” Already, LLC, 133 S. Ct. at 726 (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)). Moreover, a “‘plaintiff must
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demonstrate standing separately for each form of relief sought.’” Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 185 (2000)).
“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, 133 S. Ct. at 726 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). “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.’” Already, 133 S. Ct. at 727 (quoting Alvarez, 558 U.S. at 93). “‘A case becomes moot whenever it loses its character as a present, live controversy . . . . The 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 v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015)(quoting Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009)(ellipses and bracketed text in original)).
“The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness
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would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emp. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). See also Bell v. City of Boise, 709 F.3d 890, 898 (9th Cir. 2013). “[V]oluntary cessation can yield mootness if a ‘stringent’ standard is met: ‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014)(quoting Laidlaw Envtl. Servs., 528 U.S. at 189). See also McCormack, 788 F.3d at 1024.
B. Analysis When the government changes a policy, the court must presume the government entity is acting in good faith. Rosebrock, 745 F.3d at 971. Nonetheless, “when the Government asserts mootness based on such a change it still must bear the heavy burden of showing that the challenged conduct cannot reasonably be expected to start up again.” Id. See also Bell, 709 F.3d at 898-99. “A presumption of good faith, however, cannot overcome a court’s wariness of applying mootness under ‘protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.’” McCormack, 788 F.3d at 1025 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 n.5 (1953)).
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“[W]hile a statutory change ‘is usually enough to render a case moot,’ an executive action that is not governed by any clear or codified procedures cannot moot a claim.” Id. (quoting Bell, 709 F.3d at 898-900). When determining whether an executive action “not reflected in statutory changes or even in changes in ordinances or regulations” is sufficiently definitive to render a case moot, the court considers the following factors: (1) whether “the policy change is evidenced by language that is ‘broad in scope and unequivocal in tone,’” (2) whether “the policy change fully ‘addresses all of the objectionable measures that [the Government] officials took against the plaintiffs in th[e] case,’” (3) whether the case in question was the “‘catalyst for the agency's adoption of the new policy,’” (4) whether “the policy has been in place for a long time when we consider mootness,” and (5) whether the government has engaged in conduct similar to that challenged by the plaintiff since the implementation of the new policy. Rosebrock, 745 F.3d at 972 (quoting White v. Lee, 227 F.3d 1214, 1243-44 (9th Cir. 2000)(bracketed text in original)). “On the other hand, [the court is] less inclined to find mootness where the ‘new policy . . . could be easily abandoned or altered in the future.’” Rosebrock, 745 F.3d at 972 (quoting Bell, 709 F.3d at 901).
This Court addressed a similar situation in Tarhuni v. Lynch, 129 F. Supp. 3d 1052 (D. Or. 2015). In Tarhuni the
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plaintiff, who was also on the No-Fly List, brought substantive and procedural due-process claims regarding his placement on the No-Fly List similar to those raised here. During the course of the Tarhuni litigation and after the government had been required to reconsider Tarhuni’s DHS TRIP inquiry pursuant to new procedures that had been promulgated following this Court’s previous decision in Latif, the defendants notified Tarhuni that he had been removed from the List. Tarhuni, however, maintained his claims for prospective relief remained viable notwithstanding his removal from the No-Fly List because he did not know the specific reasons why he had been placed on the No-Fly List and there was the possibility that the defendants would place him back on the No-Fly List after termination of the litigation. Tarhuni, 129 F. Supp. 3d at 1060.
The Court, nevertheless, concluded Tarhuni’s claims were moot. The Court reasoned the defendants’ conduct was “not a voluntary act in any real sense” because it came at the conclusion of a DHS TRIP reconsideration process that was put into motion by the Court’s decision in Latif. Id. at 1061. The Court noted the only relief that Tarhuni sought was “a declaration that Plaintiff's placement on the No–Fly List violated his substantive due-process rights,” and, therefore, the Court ultimately found “[s]uch a declaration would not have any
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effect on Plaintiff’s substantive legal rights because Plaintiff is no longer on the No–Fly List.” Id.
Even if the voluntary-cessation doctrine applied, the Court also concluded in Tarhuni that “Defendants have carried their ‘heavy burden’ to demonstrate Plaintiff's placement on the No–Fly List based on current information will not recur.” Id. at 1062 (quoting Rosebrock, 745 F.3d at 971). Although the Court noted the “Rosebrock factors do not fit neatly within the context of an individualized determination,” the Court, nonetheless, concluded the “principles expressed in Rosebrock support a finding that this case is now moot” because the defendants’ statements regarding Tarhuni’s presence on the No-Fly List were “unequivocal” and the defendants had acted “in a manner consistent with a genuine change in Defendants’ assessment of Plaintiff's inclusion on the List” for the more than six months since Tarhuni had been taken off the list. Tarhuni, 129 F. Supp. 3d at 1062. The Court pointed out that, unlike in McCormack, there was “not any evidence in this record from which the Court can conclude Defendants’ ‘abandonment seems timed to anticipate suit, and there is probability of resumption,’” and, in fact, “the notion that the government would remove from the No–Fly List an individual whom Defendants believe is, in fact, ‘an individual who represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so’
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for the mere purpose of concluding this litigation is, to say the least, far-fetched.” Id. (quoting McCormack, 788 F.3d at 1025.
There are, however, some differences between this case and Tarhuni. In Tarhuni the plaintiff’s removal from the No-Fly List was a direct result of a process that was initiated because of the Court’s Order in Latif. Here the connection between the Court’s coercive Order in Latif and Plaintiff’s removal from the No-Fly List is more attenuated. Although Official Capacity Defendants reassessed Plaintiff’s DHS TRIP inquiry through the revised procedures, that process concluded in March 2015 with a determination that Plaintiff should remain on the No-Fly List. It was not until almost a year later that Official Capacity Defendants, apparently acting on their own initiative, removed Plaintiff from the List. Accordingly, the Court concludes this case is somewhat different than Tarhuni, and the voluntarycessation doctrine applies to this case.
As it did in Tarhuni, however, the Court notes the Rosebrock analysis “do[es] not fit neatly within the context of an individualized determination.” Tarhuni, 129 F. Supp. 3d at 1062. Many of the factors the Ninth Circuit set out in Rosebrock are based on the assumption that the government action that potentially moots the lawsuit has general applicability and, therefore, is capable of codification in statutes and regulations.
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In this case, however, the government action is inherently individualized and is not a matter of legislative or executive discretion. If an individual does not meet the substantive criteria to be placed or maintained on the No-Fly List, the government cannot place or keep that individual on the List. As in Tarhuni, the circumstances in this case, therefore, are somewhat different from those the Ninth Circuit addressed in Rosebrock.
Nonetheless, the Court concludes Official Capacity Defendants’ removal of Plaintiff from the No-Fly List is a sufficiently definite action to render this case moot. As in Tarhuni, the government affirmatively informed Plaintiff that he had been removed from the No-Fly List, and the government filed a Notice confirming that action in the public record of this case. Also, like Tarhuni, more than six months have elapsed since Official Capacity Defendants took that action, and there is not any evidence in the record to suggest Plaintiff’s removal from the No-Fly List is not “a genuine change in Defendants’ assessment of Plaintiff’s inclusion on the List.” Tarhuni, 129 F. Supp. 3d at 1062. Finally, as in Tarhuni, the notion that 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
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is, to say the least, far-fetched.”4 See Tarhuni, 129 F. Supp. 3d at 1062. The Court, therefore, concludes Official Capacity Defendants have carried their “heavy burden” to demonstrate their placement of Plaintiff on the No-Fly List based on current information will not recur. See Rosebrock, 745 F.3d at 971.
Finally, the prospective relief that Plaintiff seeks in this case would no longer redress any nonconjectural injury, and, therefore, there is “no longer a ‘Case’ or ‘Controversy’ for purposes of Article III.” See Already, LLC, 133 S. Ct. at 726 (quoting Murphy, 455 U.S. at 481). The relevant injunctive relief that Plaintiff seeks in his substantive due-process claim (Claim One) would be an order requiring Official Capacity Defendants to remove Plaintiff’s name from the No-Fly List, which has already occurred.5
Plaintiff, nonetheless, asserts his procedural due-process claim (Claim Three) remains cognizable, and, therefore, Plaintiff
4 This is especially true in light of the fact that many of the legal issues raised in Plaintiff’s Claims One and Three remain at issue in Latif v. Lynch, No. 3:10-cv-00750-BR, as well as several other cases around the country. To the extent that the government may be concerned about the potential legal and policy implications of those issues, mooting this case would do little to allay those concerns.
5 Plaintiff now concedes a requested injunction directing Official Capacity Defendants to remove Plaintiff from the No-Fly List is now moot. See Jt. Status Rept. (#100), May 16, 2016.
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still seeks an order requiring Official Capacity Defendants to
take the following actions:
f. Official Capacity defendants not condition the removal of plaintiff’s name from the No-Fly List upon plaintiff’s agreeing to become an informant or agent provocateur on behalf of Official Capacity defendants;
g. Official Capacity defendants not deny plaintiff written notice whenever his named is added to the No-Fly List;
h. Official Capacity defendants not deny plaintiff written notice whenever his name is removed from the No-Fly List; [and]
i. Official Capacity defendants [provide] plaintiff with the specific reasons why his name was added to the No-Fly List;
FAC at 44.
The Court concludes the relief Plaintiff seeks in paragraphs
(f), (g), and (h) is not cognizable because the circumstance that
could necessitate such relief in the future (i.e., Official
Capacity Defendants again placing Plaintiff on the No-Fly List)
is speculative. Such “relief,” if imposed, would not redress any
actual or imminent injury. See Mayfield, 599 F.3d at 971 (“Once
a plaintiff has been wronged, he is entitled to injunctive relief
only if he can show that he faces a ‘real or immediate threat
. . . that he will again be wronged in a similar way.’”)(quoting
Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
Similarly, the relief sought in paragraph (i) of Plaintiff’s
FAC would not redress any actual or imminent injury because it
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would only be effective if Official Capacity Defendants placed Plaintiff on the No-Fly List again for the same or similar reasons. That, however, is precisely the sort of “speculation or ‘subjective apprehension’ about future harm” that does not support standing. See Mayfield, 599 F.3d at 971 (quoting Laidlaw Envtl. Servs., 528 U.S. at 184). Thus, because Plaintiff’s removal from the No-Fly List deprives Plaintiff of standing to seek prospective relief as to his No-Fly List claims against Official Capacity Defendants, the Court finds Plaintiff’s Claims One and Three are moot.
Accordingly, the Court dismisses with prejudice Plaintiff’s Claims One and Three as moot. As in Tarhuni, however, the Court emphasizes the courthouse doors will be open to Plaintiff in the future if Official Capacity Defendants again place him on the NoFly List. II. Claim Four - Right to Freedom of Association
In Claim Four Plaintiff asserts all Defendants violated his right to freedom of association as guaranteed by the First Amendment when they placed him on the No-Fly List in order to coerce him into becoming an agent provocateur pursuant to a policy, custom, or practice of doing so.
By Opinion and Order (#81) issued November 11, 2015, the Court dismissed with prejudice an identical claim in Plaintiff’s Corrected Fourth Amended Complaint. See Fikre v. Fed. Bur. of
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Investigation, 142 F. Supp. 3d 1152, 1166 (D. Or. 2015). Accordingly, the Court also dismisses with prejudice Plaintiff’s Claim Four in his FAC. III. Plaintiff’s Surveillance Claims - Claims Twelve Through
Sixteen In Claims Twelve through Sixteen, Plaintiff brings claims against Official Capacity Defendants for their alleged search and seizure of Plaintiff’s telephone communications, emails, and text messages. In his FAC Plaintiff alleges the searches and seizures of his communications were “not authorized by a warrant satisfying the Fourth Amendment [and] were not supported by probable cause,” but instead “were done under purported FISA authority.” FAC ¶¶ 138, 144. Plaintiff alleges the surveillance of his telephone calls, text messages, and emails under the authority of FISA is ongoing. FAC ¶ 140. Plaintiff’s surveillance allegations stem from a disclosure by the government in a criminal case in the United States District Court for the Southern District of California that indicated the government intended to introduce into evidence or otherwise to use in that case “information obtained or derived from electronic surveillance and physical searches conducted pursuant to (FISA)” against Plaintiff’s co-defendants in that
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case (Dawit Woldehawariat, who is, as noted, Plaintiff’s brother, and Abrehaile Haile).
In the Southern District of California case, Plaintiff, Woldehawariat, and Haile were charged with structuring or attempting to structure monetary transactions to avoid federal financial-reporting regulations in violation of 31 U.S.C. § 5324(a)(3) and conspiracy to do so under 18 U.S.C. § 371. In addition, Woldehawariat was charged with two counts of failure to file a tax return in violation of 26 U.S.C. § 7203. After Woldehawariat pled guilty to one count of failure to file a tax return, the government dismissed the other three counts against him pursuant to a plea agreement. The court also dismissed the charges against Plaintiff and Haile on the government’s motion.
Official Capacity Defendants move to dismiss Plaintiff’s Claims Twelve through Sixteen on the basis that Plaintiff fails to state a claim.
A. Claim Twelve - Fourth Amendment In Claim Twelve Plaintiff brings his claim under the Fourth Amendment contending Defendants intercepted, searched, and seized his telephone calls, emails, and text messages without a “warrant satisfying the Fourth Amendment,” probable cause, or reasonable suspicion. FAC ¶ 138.
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Plaintiff seeks a declaration that “the provisions of the Patriot Act and FISA which permit the federal government secretly to collect, disseminate, and retain information from a person and which allow one to perform electronic surveillance and wiretaps of a person without first demonstrating to a court the existence of probable cause that the person has committed a crime are unconstitutional.” FAC ¶ 141.
In addition, Plaintiff seeks an injunction “requiring [D]efendants to return or destroy any of [P]laintiff’s unconstitutionally seized telephone calls, emails, or text messages, or information derived therefrom, that [D]efendants continue to retain, and prohibiting any use or disclosure of those communications and information.” FACC ¶ 140.
Official Capacity Defendants move to dismiss Plaintiff’s Claim Twelve for failure to state a claim. Official Capacity Defendants assert the only conclusion that can be drawn from Plaintiff’s FAC is that the surveillance took place pursuant to FISA and that the surveillance, therefore, did not violate the Fourth Amendment. Official Capacity Defendants specifically rely on United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010), for the proposition that FISA is consistent with the Fourth Amendment and, therefore, Plaintiff’s Claim Twelve must be dismissed with prejudice because the surveillance was authorized by FISA.
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Plaintiff, on the other hand, contends: Regardless of whether the surveillance was done with or without FISA authorization, it does not change the outcome where plaintiff has alleged that the interception, search, and seizure of plaintiff’s telephone calls, emails, and text messages were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and did not contain particulars regarding the persons, premises and things to be searched.
Pl.’s Resp. (#95) at 15. In any event, Plaintiff contends this Court should follow a previous case in this District in which the court concluded surveillance conducted pursuant to FISA violated the Fourth Amendment. See Mayfield v. United States, 504 F. Supp. 2d 1023, 1036-42 (D. Or. 2007), vacated on justiciability grounds by Mayfield, 599 F.3d 964.
With the exception of the Mayfield decision in this District that was later vacated on justiciability grounds by the Ninth Circuit, Official Capacity Defendants are correct that there is broad consensus that surveillance conducted pursuant to FISA does not violate the Fourth Amendment. See Abu-Jihaad, 630 F.3d at 120 (collecting cases). See also United States v. Duka, 671 F.3d 329, 341 (3d Cir. 2011). Moreover, after multiple opportunities to re-plead, Plaintiff’s FAC remains devoid of nonconclusory allegations from which this Court could find the alleged surveillance was not authorized by FISA. Instead Plaintiff sets
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out a series of conclusory reasons in his FAC as to why he
believes any FISA authorization may have been legally deficient:
146. Plaintiff and his brother are not foreign powers or agents of foreign powers, and there has never been any probable cause to believe so. The information obtained from defendants’ electronic surveillance of their communications is not foreign intelligence information. Obtaining foreign intelligence was not the primary purpose and was not a significant purpose of defendants’ electronic surveillance of plaintiff’s communications. The information defendants obtained from their electronic surveillance of plaintiff’s communications could have been obtained by normal investigative techniques, e.g., normal criminal wiretap warrants conforming to the Fourth Amendment’s warrant requirement.
147. The electronic surveillance was not authorized or conducted pursuant to the strict FISA procedural requirements, certifications, and privacy protections for U.S. persons, and/or the minimization procedures that apply only to foreign intelligence and not open-ended domestic intelligence activities.
FAC ¶¶ 146-47. Such allegations, however, are precisely the kind
of “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action [that] will not do.” See Twombly,
550 U.S. at 555. The only plausible, factual conclusion that can
be drawn from Plaintiff’s FAC, therefore, is that Official
Capacity Defendants conducted surveillance that captured
Plaintiff’s communications pursuant to FISA. Because Plaintiff
has not established such surveillance violates the Fourth
Amendment as a matter of law, the Court dismisses Plaintiff’s
Claim Twelve.
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The Court notes Federal Rule of Civil Procedure 15(a) provides a party may amend a pleading after a response has been filed only by leave of court unless the opposing party consents to the amendment. Rule 15(a), however, also provides leave to amend “shall be freely given when justice so requires.” This policy is to be applied with “extreme liberality.” Moss v. United States Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
The Supreme Court has recognized several factors that a district court should consider when determining whether justice requires the court to grant leave to amend. Those factors include
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The factor that carries the greatest weight is whether the amendment will prejudice the opposing party. Eminence Capital, 316 F.3d at 1052. “Absent prejudice or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. “Delay alone is insufficient to justify denial of leave to amend; the party opposing amendment must also show that the amendment
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sought is futile, in bad faith or will cause undue prejudice to the opposing party.” Jones v. Bates, 127 F.3d 839, 847 n.8 (9th Cir.1997)(citing United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981)). See also Quantum Tech. Partners II, L.P. v. Altman Browning and Co., No. 08-CV-376-BR, 2009 WL 1795574, at *19 (D. Or. June 23, 2009)(same). The party who opposes amendment bears the burden to show prejudice. Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)).
In the Court’s Opinion and Order (#81) in which it dismissed in part Plaintiff’s Fourth Amended Complaint (Corrected), the Court noted the multiple opportunities that Plaintiff had been given to produce a viable complaint. In particular, the Court observed:
In the Court’s view, the unusually protracted Rule 12 litigation arises from the moving target that Plaintiff created in his pleadings and that has already significantly delayed this action and potentially prejudiced the Official Capacity Defendants in light of their interest in a reasonably speedy resolution of this matter on the merits. The Court concludes there is now an urgent need to move this matter beyond Rule 12 litigation and toward resolution on the merits. Fikre, 142 F. Supp. 3d at 1170-71. Nonetheless, the Court provided Plaintiff with “one final opportunity to amend” his Complaint. Id. at 1711.
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At this point (which is more than three years after Plaintiff filed this litigation) if the Court provided Plaintiff with another opportunity to amend his Complaint, Official Capacity Defendants, who have been required to participate in multiple rounds of Rule 12 litigation, would be unduly prejudiced. In addition, the repeated opportunities that Plaintiff has had to amend his various Complaints and Plaintiff’s apparent inability to plead additional and more specific facts indicates any further opportunities to amend would be futile.
On this record, therefore, the Court dismisses Plaintiff’s Claim Twelve with prejudice pursuant to Rule 12(b)(6).
B. Claim Thirteen - FISA In Claim Thirteen Plaintiff seeks to state a claim for damages against the Official Capacity Defendants’ for alleged FISA violations pursuant to 18 U.S.C. § 2712(a). Official Capacity Defendants move to dismiss Claim Sixteen on the basis that Plaintiff fails to state a claim under FISA. Plaintiff’s sole remaining claim for damages under FISA arises from the allegation that Official Capacity Defendants willfully failed to employ and to follow sufficient minimization procedures on the disclosure of information seized pursuant to
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FISA in violation of 50 U.S.C. § 1806(a).6 Section 1806(a)
provides:
Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
Pursuant to 18 U.S.C. § 2712(a) Plaintiff may only obtain damages
for a violation of § 1806(a) if he proves such a violation was
willful. See Fikre, 142 F. Supp. 3d at 1169-70.
Official Capacity Defendants assert Plaintiff’s Claim
Thirteen must be dismissed because (1) Plaintiff does not provide
a plausible, nonconclusory allegation that any surveillance
information relating to Plaintiff was actually disclosed; (2)
Plaintiff’s FAC does not contain any nonconclusory allegations as
to what the minimization procedures were and which of those
procedures were violated, and (3) Plaintiff fails to allege
6 Plaintiff’s FAC purports to include claims for damages arising from alleged violations of 50 U.S.C. §§ 1801(i) and 1804(a). This Court, however, previously dismissed those claims with prejudice on the basis that Plaintiff failed to identify a valid waiver of sovereign immunity. See Fikre, 142 F. Supp. 3d at 1168-69.
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nonconclusory facts from which the Court could find Plaintiff has pled a claim for willful violation sufficient to waive sovereign immunity under § 2712(a).
Plaintiff, on the other hand, contends his allegation that “the information upon which defendants caused Plaintiff to meet with Defendant FBI agents Noordeloos and John Doe I (Jason Dundas) in Khartoum and upon which defendants caused the UAE to imprison and torture plaintiff was derived from illegal surveillance and searches” is sufficient to establish at this stage of the proceedings that there was a disclosure of the FISAderived information that is actionable under § 1806(a). Moreover, Plaintiff contends he could not more specifically allege a failure to follow or to employ minimization procedures because those procedures are secret.
Standing alone, the Court is not troubled by Plaintiff’s failure to include specific allegations about the minimization procedures associated with the FISA-derived email, text messages, and telephone conversations between Plaintiff and his brother. The Court notes Rule 12 does not require a plaintiff to plead what he cannot possibly know. Nonetheless, the remainder of Plaintiff’s allegations are insufficient to cross “‘the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
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Plaintiff’s nonconclusory factual allegations regarding the
connection between the FISA-derived materials and his
interrogation and torture in the UAE are as follows:
77. In 2010, while he was inside the United States, plaintiff and his brother Dawit Woldehawariat both US citizens - worked together to set up a lawful business venture abroad. In furtherance of this objective, plaintiff and his brother discussed the parameters of the business venture they envisioned and the financial resources necessary to execute their plan. These discussions occurred by telephone, email, and text message.
78. Unbeknownst at the time to either plaintiff or his brother, defendants were intercepting and/or acquiring the content of plaintiff’s telephone calls, his text messages, and his emails. Plaintiff now knows this because the United States has confirmed, through Department of Justice filings submitted in a since-dismissed prosecution against plaintiff in the United States District Court for the Southern District of California, that it intercepted the contents of plaintiff’s telephone calls, emails, and text messages. See U.S. District Court for the Southern District of California, Docket No. 3:12-cr-06189-JAH, Doc. # 10.
FAC ¶¶ 77-78. In his FAC Plaintiff alleges the general content
of the FISA-derived communications was discussed when Noordeloos
and Dundas interrogated him.
35. Because defendants John Doe I (Jason Dundas) and Noordeloos were blocking the door, plaintiff, who had never before been detained or arrested, felt he could not leave. During the following interrogation, defendants Noordeloos and John Doe I (Jason Dundas) questioned plaintiff extensively about the events, activities, and leadership at the as-Saber Mosque in Portland, which plaintiff had attended for prayer services. Defendant Noordeloos also questioned plaintiff about the source of his financial support for this business endeavors in Sudan, and told plaintiff
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that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for plaintiff to engage in business transactions in Sudan a statement that is inconsistent with the advice and recommendation earlier given by the representative of the embassy as set forth in ¶ 29, supra.
FAC ¶ 35. After Plaintiff moved from Sudan to the UAE and was
imprisoned by Emirati agents, Plaintiff alleged he was
interrogated regarding the following subjects:
44. The primary focus of the blindfolded interrogations was events at Portland’s as-Saber Mosque, addressing in particular who plaintiff knew at the mosque who had a “jihadi mentality,” what topics the mosque’s leader, Sheikh Mohamed Kariye, speaks about both in public and in private, and how fundraising at the mosque occurs and who engages in fundraising there. The interrogators also questioned plaintiff about circumstances and events that plaintiff had disclosed to defendants Noordeloos and John Doe I (Jason Dundas) during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations plaintiff’s interrogators urged him to cooperate with them and with the FBI by becoming an informant.
* * *
47. On several occasions plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same questions and suggestion he had heard from defendants Noordeloos and John Doe I (Jason Dundas); he thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating plaintiff severely.
* * *
50. On or about June 14, 2011, plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his
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confinement, plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland’s as-Saber Mosque but, rather, upon whether plaintiff’s financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test plaintiff’s bed and bedding were returned to his cell.
FAC ¶¶ 44, 47, 50. From these facts Plaintiff concludes:
80. On information and belief, the information upon which defendants caused plaintiff to meet with defendant FBI agents Noordeloos and John Doe I (Jason Dundas) in Khartoum and upon which defendants caused the UAE to imprison and torture plaintiff was derived from illegal surveillance and searches.
81. On information and belief, information derived from the electronic surveillance of plaintiff was willfully, knowingly, and/or recklessly disseminated for the unlawful purpose of interrogating plaintiff without counsel and coercing plaintiff to become an informant and then to cause his torture by proxy in the UAE.
82. On information and belief, the information derived from the electronic surveillance of plaintiff was disseminated to several agencies and foreign governments including but not limited to the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the Department of Justice/Federal Bureau of Investigation, the US Attorney’s Office for the District of Oregon, the Department of the Treasury and the National Security Agency, and the United Arab Emirates.
FAC ¶¶ 80-82.
Plaintiff’s conclusion that the FISA-derived communications
provided the basis for his interrogation in Khartoum and torture
and interrogation in the UAE, therefore, is based on the rough
commonality of the general subject matter brought up in all three
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events. In particular, the Court notes the subject matter of his alleged communications with his brother was very specific; i.e., “plaintiff and his brother discussed the parameters of the business venture they envisioned and the financial resources necessary to execute their plan.” FAC ¶ 77. Plaintiff’s interrogation in Khartoum, on the other hand, concerned activities at the as-Saber Mosque and “the source of his financial support for his business endeavors in Sudan.” FAC ¶ 44. His interrogation in the UAE concerned activities at the as-Saber Mosque, “circumstances and events that plaintiff had disclosed to defendants Noordeloos and John Doe I (Jason Dundas) during his interrogation at the embassy in Khartoum,” and “whether plaintiff’s financial arrangements involved soliciting funds for al-Qaeda.” FAC ¶¶ 44, 50.
The relationship between these three events (the FISA surveillance, the Khartoum interrogation, and the UAE interrogation) as alleged by Plaintiff is tenuous. Foe example, Plaintiff does not allege he was ever questioned either in Khartoum or in the UAE about the communications with his brother, which allegedly was the subject of the FISA surveillance. Although the Court appreciates allegations concerning a disclosure of FISA-derived information will often have to be circumstantial, a plaintiff remains required to “plead[] factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In this case the relationship between the allegedly FISA-derived material and the alleged interrogations is too attenuated to permit the Court to reasonably infer that Official Capacity Defendants disclosed the FISA-derived information in a manner that would support a claim for damages under § 1806(a) and § 2712(a).
On this record and for the same reasons as with Claim Twelve, the Court dismisses with prejudice Plaintiff’s Claim Thirteen for failure to state a claim.
C. Claim Fourteen - Stored Communications Act In Claim Fourteen Plaintiff brings claims for violation of the Stored Communications Act (SCA), 18 U.S.C. § 2703, and states a cause of action for damages under § 2712. Plaintiff’s contention is that Official Capacity Defendants unlawfully compelled the production of stored communications from service providers in violation of the procedures set out in § 2703. Official Capacity Defendants move to dismiss Plaintiff’s Claim Fourteen on the basis that 18 U.S.C. § 2511(2)(a)(ii) provides a safe-harbor provision for government agents who conduct surveillance pursuant to FISA authorization. Section 2511(2)(a)(ii) provides:
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Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with–-
(A) a court order directing such assistance or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,
Plaintiff concedes § 2511(2)(a)(ii) would provide a safe
harbor for Official Capacity Defendants if the surveillance was,
in fact, authorized by FISA, but Plaintiff contends the
surveillance in this case was not properly authorized by FISA.
As noted, however, Plaintiff fails to sufficiently allege the
FISA surveillance was not properly authorized.
Accordingly, the Court dismisses with prejudice Plaintiff’s
Claim Fourteen pursuant to § 2511(2)(a)(ii).
D. Claim Fifteen - Wiretap Act
In Claim Fifteen Plaintiff brings a cause of action for
damages pursuant to § 2712 in which Plaintiff alleges Official
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Capacity Defendants violated the Wiretap Act, 18 U.S.C. § 2511. Official Capacity Defendants move to dismiss Plaintiff’s Claim Fifteen for failure to state a claim on primarily the same basis as Claim Fourteen: Official Capacity Defendants contend § 2511(2)(e) precludes liability under the Wiretap Act when the surveillance is conducted pursuant to FISA.
Section § 2511(2)(e) provides: Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.
As the Court noted in its November 4, 2015, Opinion and Order (#81), “[a]lthough the Official Capacity Defendants are correct that § 2511(2)(e) permits surveillance that is conducted pursuant to FISA, Official Capacity Defendants’ contention that § 2511(2)(e) immunizes Defendants’ conduct is, once again, premature on this record because Plaintiff has not alleged Defendants conducted the surveillance in this case pursuant to FISA.” Fikre, 142 F. Supp. 3d at 1173. Official Capacity Defendants’ contention is no longer premature. As noted, in his FAC Plaintiff alleges the surveillance was conducted under FISA authority.
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Accordingly, the Court dismisses with prejudice Plaintiff’s Claim Fifteen.
E. Claim Sixteen - Federal Rule of Criminal Procedure 41(g)
In Claim Sixteen Plaintiff raises a stand-alone claim under Federal Rule of Criminal Procedure 41(g) in which Plaintiff seeks the return of allegedly illegally searched and seized property. Accordingly, Plaintiff seeks an order directing Official Capacity Defendants to return or to destroy the records of telephone calls, emails, text messages, and derivative information that Plaintiff alleges Official Capacity Defendants seized unconstitutionally.
In its November 4, 2015, Opinion and Order (#81), however, the Court found Plaintiff’s claim under Rule 41(g) was not cognizable as a stand-alone claim because “Rule 41(g) provides a remedy in civil cases in which Plaintiff establishes a Fourth Amendment violation” and the relief sought in Plaintiff’s Rule 41(g) claim was “functionally identical to the injunction that he seeks in Claim Fifteen to remedy Defendants’ alleged Fourth Amendment violation.” Fikre, 142 F. Supp. 3d at 1173. The Court, therefore, dismissed Plaintiff’s Rule 41(g) claim “without prejudice to Plaintiff seeking relief authorized by Rule 41(g) in the event that Plaintiff prevails on Claim Fifteen.” Id.
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As noted, the Court dismisses Plaintiff’s Fourth Amendment claim (Claim Twelve) on the basis that Plaintiff has failed to state a claim in light of his allegation that the surveillance was conducted pursuant to FISA. Accordingly, because Plaintiff’s Claim Sixteen operates only as a potential remedy for Plaintiff’s Claim Twelve under the Fourth Amendment, the Court also dismisses Plaintiff’s Claim Sixteen with prejudice.
IV. Official Capacity Defendants’ Unopposed Motion (#91) to Stay Plaintiff’s Due Process Claims In their Unopposed Motion (#91) to Stay Plaintiff’s Due
Process Claims, Official Capacity Defendants request the Court stay adjudication of Plaintiff’s procedural and substantive dueprocess claims until the Court addresses similar claims in Latif v. Lynch, No. 3:10-cv-00750-BR.
In light of this Court’s conclusion that Plaintiff’s Claims One and Three are now moot as a result of Plaintiff’s removal from the No-Fly List, the Court finds Official Capacity Defendants’ Motion to Stay Plaintiff’s Due Process Claims is also moot.
The Court, therefore, DENIES as moot Official Capacity Defendants’ Motion (#91) to Stay Plaintiff’s Due Process Claims.
CONCLUSION
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For the reasons that follow, the Court GRANTS Official Capacity Defendants’ Motion (#90) to Dismiss and DISMISSES with prejudice Plaintiff’s Fifth Amended Complaint as to Plaintiff’s claims against Official Capacity Defendants. The Court also DENIES as moot Official Capacity Defendants’ Unopposed Motion (#91) to Stay Plaintiff’s Due Process Claims.
After more than three years of litigation the record still reflects none of Individual Capacity Defendants identified in Plaintiff’s FAC have been served. Accordingly, pursuant to Federal Rule of Civil Procedure 4(m), the Court directs Plaintiff to show cause in writing no later than October 14, 2016, why this action should not be dismissed as to Individual Capacity Defendants.
IT IS SO ORDERED. DATED this 28th day of September, 2016.
/s/ ANNA J. BROWN ANNA J. BROWN United States District Judge
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 Case: 16-36072, 09/20/2018, ID: 11018392, DktEntry: 47-1, Page 1 of 16

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

YONAS FIKRE, Plaintiff-Appellant,
v.

No. 16-36072
D.C. No. 3:13-cv-00899-BR

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 individual capacity); NATIONAL SECURITY AGENCY; UNITED STATES OF AMERICA,
Defendants-Appellees.

OPINION

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FIKRE V. FBI

Appeal from the United States District Court for the District of Oregon
Anna J. Brown, District Judge, Presiding

Argued and Submitted May 9, 2018 Portland, Oregon

Filed September 20, 2018
Before: Johnnie B. Rawlinson, Milan D. Smith, Jr.,* and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

SUMMARY**

Due Process
The panel reversed the district court’s dismissal, as moot, of a plaintiff’s action alleging that the Federal Bureau of Investigation violated his substantive and procedural due process rights by placing and maintaining him on the No Fly List.

* 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.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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FIKRE V. FBI

3

The panel held that the government’s announcement that it was removing plaintiff from the No Fly List did not render his due process claims moot. The panel held that the record suggested that plaintiff’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure. The panel further held that the government had not assured plaintiff that he would not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor had it verified the implementation of procedural safeguards conditioning its ability to revise plaintiff’s status on the receipt of new information. Finally, the panel held that plaintiff’s removal from the No Fly List did not completely eradicate the effects of the alleged violation.

The panel remanded for further proceedings. The panel affirmed the dismissal of plaintiff’s Fourth Amendment claims in a concurrently field memorandum disposition.

COUNSEL
Brandon B. Mayfield (argued), Beaverton, Oregon; Gadeir Abbas and Lena Masri, Council on American-Islamic Relations, Washington, D.C.; Thomas H. Nelson, Zigzag, Oregon; for Plaintiff-Appellant.
Joshua Paul Waldman (argued) and Sharon Swingle, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

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OPINION

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 asSaber Mosque in Portland and his 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.

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).

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FIKRE V. FBI

5

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 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

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FIKRE V. FBI

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 reputation 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

2 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.
3 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).

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FIKRE V. FBI

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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]” 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)).

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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 outcome.’” 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

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9

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. 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

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FIKRE V. FBI

“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 vigorously 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-

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FIKRE V. FBI

11

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 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

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FIKRE V. FBI

“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 statutory 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

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FIKRE V. FBI

13

(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 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

4 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.

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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.

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

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FIKRE V. FBI

15

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 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.

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CONCLUSION

We reverse the district court’s dismissal of Fikre’s due process claims and remand for further proceedings.

REVERSED and REMANDED.

Case: 16-36072, 09/20/2018, ID: 11018392, DktEntry: 47-2, Page 1 of 5

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 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

YONAS FIKRE, Plaintiff-Appellant,
v. FEDERAL BUREAU OF INVESTIGATION; et al.,
Defendants-Appellees.

No. 16-36072 D.C. No. 3:13-cv-00899-BR MEMORANDUM*

Appeal from the United States District Court for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 9, 2018 Portland, Oregon
Before: RAWLINSON, M. SMITH.,** and CHRISTEN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** 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.

Fikre alleged that in June 2011, he was detained by the secret police in the United Arab Emirates and subjected to interrogation and torture for 106 days.1 This episode was instigated by the Federal Bureau of Investigation. Fikre sued the government contending, among other things, that it illegally surveilled him in violation of the Fourth Amendment. The district court dismissed this claim and Fikre timely appealed. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.2
Fikre’s fifth amended complaint pleaded that the “[FBI’s] actions were not authorized by a warrant satisfying the Fourth Amendment, were not supported by probable cause or reasonable suspicion, and were unreasonable.” These allegations are vague and conclusory and, in the absence of “further factual enhancement,” do not give rise to a “plausible claim for relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); see Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 969 (9th Cir. 2010). And because Fikre “had several opportunities to amend [his] complaint and repeatedly failed to cure deficiencies,” the district court did not abuse its
1 On a motion to dismiss, we take all factual allegations in the complaint as true. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). As the parties are familiar with these allegations, we do not recount them here.
2 We resolve Fikre’s due process claims in a concurrently filed opinion.
2

discretion by dismissing his Fourth Amendment claim with prejudice. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).
AFFIRMED.
3

 
 Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

YONAS FIKRE, Plaintiff,
v. FEDERAL BUREAU OF INVESTIGATION, et al.,
Defendants.

3:13-cv-00899-BR OPINION AND ORDER

GADEIR I. ABBAS 1155 F Street NW, Suite 1050 Washington, DC 20004 (720) 251-0425
LENA F. MASRI WILLIAM J. BURGESS Council on American-Islamic Relations Legal Defense Fund 453 New Jersey Avenue SE Washington, DC 20003 (202) 742-6420
BRANDON B. MAYFIELD 3950 S.W. 185th Avenue Beaverton, OR 97007 (503) 941-5101
Attorneys for Plaintiff

1 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 2 of 31
JOSEPH H. HUNT Assistant Attorney General ANTHONY J. COPPOLINO Deputy Branch Director BRIGHAM J. BOWEN DENA M. ROTH SAMUEL M. SINGER United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514-6289
Attorneys for Defendant BROWN, Senior Judge.
This matter comes before the Court on Plaintiff Yonas Fikre's Motion (#125) to Amend his Complaint in which Plaintiff seeks leave to file a Sixth Amended Complaint. For the reasons that follow, the Court GRANTS in part and DENIES in part Plaintiff's Motion.
BACKGROUND Plaintiff initiated this action on May 30, 2013. In his original Complaint (#1) Plaintiff brought six claims against various Defendants arising from his placement on the No-Fly List and alleged detention and torture while he was overseas. In his original Complaint and First Amended Complaint (#10) Plaintiff brought four claims (Claims One, Two, Five, and Six) against various Defendants sued in their official capacities
2 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 3 of 31
(hereinafter referred to as the Official Capacity Defendants or Defendants) and two claims against two Defendants in their individual capacities (hereinafter referred to as the Individual Capacity Defendants) . 1 In Claim One Plaintiff alleged his placement on the No-Fly List while he was abroad prevented him from returning to the United States and, in effect, stripped him of his rights of citizenship protected by the Fourteenth Amendment. In Claim Two Plaintiff alleged the various Defendants violated his substantive due-process rights under the Fifth Amendment and his rights as a citizen under the Fourteenth Amendment when the Defendants allegedly "enlisted foreign intermediaries to torture [P]laintiff at their behest." First Am. Compl. ~ 58. In Claim Five Plaintiff alleged various Defendants violated his substantive due-process right to return to the United States by placing him on the No-Fly List. Finally, in Claim Six Plaintiff alleged Defendants violated his
1 On October 24, 2016, this Court dismissed Plaintiff's claims (Claims Three and Four) brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the two Individual Capacity Defendants. The Court dismissed these claims pursuant to Federal Rule of Civil Procedure 4(m) for failure of service. See Order (#107) issued Oct. 24, 2016. Accordingly, only the Official Capacity Defendants remain in this case.
3 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 4 of 31
procedural due-process rights when they placed him on the No-Fly List without providing him with sufficient notice or opportunity to challenge his placement on the List.
On May 29, 2014, this Court dismissed Plaintiff's Claim One with prejudice pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim. Fikre v. Fed. Bur. of Investigation, 23 F. Supp. 3d 1268 (D. Or. 2014). The Court also dismissed Plaintiff's Claims Two, Five, and Six without prejudice and with leave to amend pursuant to Rule 12(b) (6). Id.
On June 27, 2014, Plaintiff filed a Second Amended Complaint (#37) in which he re-pleaded his substantive dueprocess claim (Claim One) on the basis of his right to return to the United States and his procedural due-process claim (Claim Six) against the Official Capacity Defendants. Although Plaintiff did not re-plead his torture claim against the Official Capacity Defendants, Plaintiff did add several claims against the Individual Capacity Defendants, including multiple Bivens claims related to his alleged torture. Plaintiff also added the following claims against the Official Capacity Defendants: a substantive due-process claim on the basis of his right to international travel (Claim Two), a substantive due-
4 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 5 of 31
process claim on the basis of vagueness and overbreadth (Claim Three), a claim for violation of his Fifth Amendment right to counsel (Claim Four), and a claim for violation of his Fifth Amendment right to freedom of association (Claim Five) on the basis that Defendants allegedly attempted to coerce Plaintiff into being an informant by offering to remove him from the NoFly List if he did so.
The Official Capacity Defendants filed a Motion (#40) to Dismiss Plaintiff's Second Amended Complaint on August 8, 2014. Before briefing was completed on the Official Capacity Defendants' Motion, Plaintiff expressed an intention to file a Third Amended Complaint. After conferral the parties agreed Plaintiff should be permitted to file his Third Amended Complaint and that Defendants' Motion to Dismiss the Second Amended Complaint should be stricken as moot.
Accordingly, Plaintiff filed his Third Amended Complaint (#55) on November 13, 2014. In the Third Amended Complaint Plaintiff re-pleaded each of the claims that he brought in his Second Amended Complaint, but he added claims against at least some of the Official Capacity Defendants for violation of Plaintiff's Fourth Amendment rights on the basis of an unreasonable search and seizure of his telephone calls, emails,
5 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 6 of 31
and text messages (Claim Fifteen); violation of the Foreign Intelligence Surveillance Act (FISA) (Claim Sixteen); violation of the Stored Communications Act (Claim Seventeen); violations of the Wiretap Act (Claim Eighteen); and a claim for return of unlawfully searched-and-seized property pursuant to Federal Rule of Criminal Procedure 41(g) (Claim Nineteen).
In Fall 2014 Defendants amended the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) procedures available to individuals who had been denied boarding on a commercial airline, including those denied boarding because they were on the No-Fly List. Defendants amended these procedures after this Court concluded in Latif v. Holder, et al., that the DHS TRIP procedures in place at the time Plaintiff filed this action violated the Latif Plaintiffs' procedural due-process rights. See 28 F. Supp. 3d 1134 (D. Or. 2014).
Even though this action had not yet proceeded beyond the Rule 12 stage, Defendants moved for an extension of time to respond to Plaintiff's Third Amended Complaint in order to permit Defendants to reassess Plaintiff's DHS TRIP inquiry pursuant to the new procedures. On March 16, 2015, the parties filed a Joint Status Report (#58) in which the Official Capacity Defendants indicated Plaintiff remained on the No-Fly List after
6 - OPINION AND ORDER

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 7 of 31
reevaluation of his DHS TRIP inquiry and that Plaintiff had returned to the United States. Accordingly, the parties agreed Plaintiff should be entitled to amend his Complaint again to reflect these developments.
On April 1, 2015, Plaintiff filed a Fourth Amended Complaint (#60). In his Fourth Amended Complaint, however, Plaintiff failed to plead and to identify specifically in his procedural due-process claim the protected liberty and/or property interest(s) that he was allegedly denied. Because this was a pleading deficiency that had persisted since Plaintiff's original Complaint, the Court granted Plaintiff leave to file a Corrected Fourth Amended Complaint to address that issue. See Order (#61) issued Apr. 2, 2015. Accordingly, on April 6, 2015, Plaintiff filed a Corrected Fourth Amended Complaint (#62) in which Plaintiff updated the factual pleadings, identified the protected liberty interests that he was allegedly denied as a result of procedural due-process violations, and otherwise repleaded each of the claims that he raised in his Third Amended Complaint.
Defendants moved to dismiss Plaintiff's Fourth Amended Complaint on May 22, 2015. Defs.' Mot. (#69) to Dismiss. On November 4, 2015, the Court granted Defendants' Motion in part
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 8 of 31
and denied it in part. See Opin. and Order (#81). Specifically, the Court denied Defendants' Motion as to Plaintiff's substantive due-process claim as it related to the right to international travel and his procedural due-process claim because the Court determined Plaintiff adequately stated those claims for relief. The Court also denied Defendants' Motion as to Plaintiff's Wiretap Act claim as pleaded in Plaintiff's Fourth Amended Complaint. The Court, however, dismissed with prejudice the following claims: Plaintiff's substantive due-process claim on the basis of Defendants' denial of his right to return to the United States (Claim One); Plaintiff's due-process vagueness and overbreadth claim (Claim Three); Plaintiff's Fifth·Amendment right-to-counsel claim (Claim Four); Plaintiff's First Amendment freedom-of-association claim (Claim Seven); Plaintiff's Fourth Amendment claim (Claim Fifteen) as to declaratory relief only; and portions of Plaintiff's FISA claim (Claim Sixteen). The Court dismissed without prejudice and with leave to amend Plaintiff's FISA claim only as to injunctive relief and his Stored Communications Act claim (Claim Seventeen). The Court, however, stated: ~In light of the age of this case and Plaintiff's numerous previous pleading attempts, the Court does not grant Plaintiff leave to
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 9 of 31
amend his Complaint to add new claims or to materially alter any other existing claims." Opin. and Order (#81) at 48. Finally, the Court also dismissed Plaintiff's Claim Nineteen without prejudice because the legal basis for Claim Nineteen, Federal Rule of Criminal Procedure 4l(g), could not act as a stand-alone claim but could serve as a remedy in the event Plaintiff prevailed on his Fourth Amendment claim.
On November 29, 2015, Plaintiff filed a Fifth Amended Complaint (#87). In his Fifth Amended Complaint Plaintiff repleaded each of the claims that were not dismissed in the Court's Opinion and Order (#81). Plaintiff re-pleaded his Fourth Amendment claim (Claim Twelve), his FISA claim (Claim Thirteen), his Stored Communications Act claim (Claim Fourteen), and his Wiretap Act claim (Claim Fifteen). Plaintiff also repleaded his freedom-of-association claim (Claim Four) even though the Court had earlier dismissed it with prejudice. Finally, Plaintiff added a Claim Sixteen that he characterized as a "Motion for Return of Unlawfully Searched and Seized Property Pursuant to Federal Rule of Criminal Procedure 41(g) ." Fifth Am. Compl., at 40.
On January 21, 2016, Defendants again filed a Motion (#90) to Dismiss Plaintiff's Fifth Amended Complaint. During the
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briefing on that Motion, however, Defendants filed a Notice (#98) that indicated Plaintiff had been removed from the No-Fly List. As a result, the Court directed the parties to confer and to submit supplemental memoranda regarding the effect that Plaintiff's removal from the No-Fly List had on Plaintiff's then-existing claims and Defendants' Motion to Dismiss them.
After the parties submitted the supplemental briefing, the Court issued an Opinion and Order (#105) on September 28, 2016 (Fikre v. Federal Bureau of Investigation, No. 3:13-cv-00899-BR, 2016 WL 5539591 (D. Or. Sept. 28, 2016)). In that Opinion and Order the Court dismissed Plaintiff's substantive and procedural due-process claims as moot in light of Plaintiff's removal from the No-Fly List. As it did in its November 4, 2015, Opinion and Order, the Court also dismissed with prejudice Plaintiff's First Amendment freedom-of-association claim (Claim Four) for failure to state a claim. Moreover, the Court dismissed each of Plaintiff's various surveillance claims under the Fourth Amendment (Claim Twelve), FISA (Claim Thirteen), the Stored Communications Act (Claim Fourteen), the Wiretap Act (Claim Fifteen), and Federal Rule of Criminal Procedure 4l(g) (Claim Sixteen) for failure to state a claim. In light of Plaintiff's previous multiple opportunities to amend, the Court declined to
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 11 of 31
provide Plaintiff with a further opportunity to amend those claims.
Although Plaintiff appealed the Court's dismissal of his substantive and procedural due-process claims on mootness grounds and the dismissal of his Fourth Amendment claim for failure to state a claim, he did not appeal the dismissal of his other surveillance claims or the dismissal of his freedom-ofassociation claim. On September 20, 2018, the Ninth Circuit Court of Appeals reversed the dismissal of his procedural and substantive due-process claims on mootness grounds. The Ninth Circuit found the government's actions in removing Plaintiff from the No-Fly List were insufficient to overcome the voluntary-cessation exception to the mootness doctrine and that some relief might remain available to redress Plaintiff's alleged injuries. Fikre v. Fed. Bur. of Investigation, 904 F.3d 1033 (9th Cir. 2018). In a separately filed unpublished opinion that same day, the Ninth Circuit affirmed this Court's dismissal of Plaintiff's Fourth Amendment claim. Fikre v. Fed. Bur. of Investigation, 738 F. App'x 545 (9th Cir. 2018).
On remand Plaintiff now seeks leave to file a Sixth Amended Complaint to accomplish the following: (1) to add the Secretary of Homeland Security, the Administrator of the Transportation
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 12 of 31
Security Administration (TSA), and the Commissioner of Customs and Border Protection (CBP) (collectively the OHS Defendants) as Defendants related to his procedural and substantive due-process claims; (2) to remove the already-resolved claims from the operative Complaint; (3) to plead additional facts relevant to the procedural and substantive due-process claims that have recently become publicly known; (4) to add a claim under the Administrative Procedure Act on largely the same basis as Plaintiff's substantive and procedural due-process claims; and (5) to add a claim under the Religious Freedom Restoration Act (RFRA) on a basis similar to Plaintiff's previous First Amendment freedom-of-association claims.
STANDARD Federal Rule of Civil Procedure 15 (a) (2) provides "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." This is "a policy 'to be applied with extreme liberality.'" Navajo Nation v. Dep' t of the Interior, 876 F.3d 1144, 1173 (9th Cir. 2017). "District courts generally consider four factors in determining whether to deny a motion to amend: 'bad faith, undue delay, prejudice to
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 13 of 31
the opposing party, and the futility of amendment.'" In re Korean Air Lines Co.r Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (quoting Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)).
Whether an amendment will cause undue prejudice to the defendant is the key factor the court must consider when determining whether to grant a motion for leave to file an amended complaint. Eminence Capitalr LLC v. Aspeonr Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The party who opposes amendment bears the burden to show prejudice. Adam v. Haw., 235 F.3d 1160, 1164 (9th Cir. 2000) (overruled on other grounds) (citing DCD Programsr Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)). The court's discretion to deny leave to amend, however, is "'particularly broad where [the] plaintiff has previously amended the complaint.'" Cafassor United States ex rel v. Gen. Dynamics C4 Sys.r Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (quoting Ascon Props.r Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).
DISCUSSION As noted, Plaintiff seeks to amend his Complaint to add the OHS Defendants, to remove already-resolved claims, to include
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 14 of 31
additional factual allegations relevant to his due-process claims, and to add claims under the APA and RFRA. Plaintiff attaches his Proposed Sixth Amended Complaint to his Motion. Pl.'s Mot. (#125), Attach. 1. Defendants oppose Plaintiff's Motion for Leave to Amend insofar as Plaintiff seeks to add the DHS Defendants and to bring RFRA and APA claims.
The Court notes Plaintiff's Motion is unopposed insofar as Plaintiff seeks to remove resolved claims and to allege additional facts related to Plaintiff's due-process claims. The Court finds amending the Complaint to do so would be helpful to narrow the issues and to facilitate litigation of Plaintiff's remaining claims. Accordingly, the Court grants Plaintiff's Motion in those respects. I. Addition of DHS Defendants
Defendants oppose Plaintiff's addition of the DHS Defendants on the basis that Plaintiff's attempt to do so is untimely, would unfairly prejudice those Defendants, and would not materially advance the litigation of Plaintiff's claims. In particular, Defendants contend the allegations in Plaintiff's Proposed Sixth Amended Complaint do not provide any basis to add the DHS Defendants as parties to this litigation. Defendants also contend Plaintiff does not provide any basis to add the TSA
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 15 of 31
Administrator and CBP Commissioner because Plaintiff does not allege he was subjected to additional screening at an airport or at the border.
Plaintiff, on the other hand, contends the OHS Defendants will not be prejudiced by their addition to this case even though it has been almost six years since this action was initiated because discovery has not yet begun. Moreover, Plaintiff contends the OHS Defendants are relevant to Plaintiff's due-process claims because Plaintiff alleges in his Proposed Sixth Amended Complaint that "OHS and/or its agency subcomponents including TSA and CBP have both decision-making authority and veto powers over watchlisting policies affecting the No Fly List and the [Terrorist Screening Database (TSDB)] ." Proposed Sixth Am. Compl. 1 9.
Although the Court finds Plaintiff's addition of the OHS Defendants to this case is untimely, Defendants have failed to demonstrate any meaningful prejudice to the OHS Defendants that would arise from Plaintiff's belated attempt to bring them into this long-pending case. As Plaintiff points out, discovery in this matter has not yet begun and the OHS Defendants' interests to date have been well-represented in this matter through the participation of multiple government agencies.
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 16 of 31
Moreover, the participation of the OHS Secretary and the TSA Administrator may be necessary to provide Plaintiff the relief that he would be entitled to if he prevails on the merits. As Plaintiff alleges, OHS is the agency that contains several of the sub-agencies that are involved in the maintenance of the No-Fly List and the TSDB in addition to being responsible for enforcement of any restrictions that follow from placement on watchlists. See Proposed Sixth Am. Compl. 11 9-11. In addition, OHS is involved in the OHS TRIP procedures that Plaintiff challenges in his procedural due-process claim. See id. 11 102-05. Similarly, after an individual who has been denied boarding as a result of placement on the No-Fly List submits a OHS TRIP inquiry, the TSA Administrator makes the final decision as to whether that individual should be maintained on the No-Fly List. Id. 1 43. Thus, Plaintiff's claims are sufficiently related to each of these actions, and, therefore, inclusion of the OHS Secretary and the TSA Administrator satisfies the joinder requirements of Federal Rule of Civil Procedure 20(a) (2). In light of the lack of any demonstrated prejudice to these parties, the Court concludes in the exercise of its discretion that it is reasonable to allow Plaintiff to amend his Complaint to include the TSA
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 17 of 31
Administrator and the DHS Secretary as Defendants in their official capacities.
As Defendants point out, however, Plaintiff does not allege that CBP has taken any action related to Plaintiff's placement in the TSDB or on the No-Fly List nor that Plaintiff has ever been subjected to additional screening at the border or had any items seized by CBP. In his Proposed Sixth Amended Complaint Plaintiff only mentions CBP as follows:
Defendant McAleenan is Commissioner of the United States Customs and Border Protection ("CBP") of the United States Department of Homeland Security ("DHS"). CBP has both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. CBP acts as a front-line agency that utilizes the TSDB and its No Fly List component to screen individuals against the TSDB, including Plaintiff. These consequences include impeding domestic and international travel, including through the outright denial of boarding any flights. The CBP Defendant McAleenan is being sued in his official capacity, only. Proposed Sixth Am. Compl. ~ 11. Although this allegation may be sufficient to establish that CBP is involved with the No-Fly List and TSDB at some level, Plaintiff does not allege CBP was involved in Plaintiff's placement on the No-Fly List nor in the TSDB, that CBP took any part in processing Plaintiff's DHS TRIP inquiry, that CBP has any authority over whether Plaintiff remains in the TSDB, or that CBP will serve any role in
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 18 of 31
determining whether Plaintiff will be placed on the No-Fly List again. Under the allegations in Plaintiff's Proposed Sixth Amended Complaint, there is not any apparent remedy that Plaintiff could specifically obtain from CBP as opposed to OHS. Accordingly, there currently is not any apparent purpose for involving the CBP Administrator in this litigation. The Court, therefore, concludes it would be unfair to permit Plaintiff to amend his Complaint to include the CBP Commissioner as a Defendant at the six-year mark of his case.
Accordingly, on this record the Court grants Plaintiff's Motion to Amend as it relates to adding the OHS Secretary and the TSA Administrator as defendants in this action and denies Plaintiff's Motion insofar as Plaintiff seeks to add the CBP Commissioner as a defendant. II. Addition of Claims
As noted, Plaintiff also seeks to add claims under the APA and RFRA in his Proposed Sixth Amended Complaint.
A. Plaintiff's Proposed APA Claim Plaintiff indicates his proposed APA claim "turns on similar operative facts and legal issues as [his] Procedural Due Process claims, and therefore do not substantially alter the nature of the litigation." Pl.'s Mot. (#125) at 9. Plaintiff,
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 19 of 31
therefore, contends the addition of the APA claim will not prejudice Defendants and the remainder of the factors relevant to Plaintiff's Motion to Amend do not provide a basis to deny Plaintiff the opportunity to add his APA claim.
Defendants, on the other hand, contend the Court should not permit Plaintiff to add his APA claim because Plaintiff unduly delayed the addition of that claim, and, therefore, Defendants would be prejudiced by its addition. In any event, Defendants point out that Plaintiff's APA claim is redundant of his procedural due-process claim.
As noted, the Court primarily considers four factors in determining whether Plaintiff should be permitted to amend his complaint: "'bad faith, undue delay, prejudice to the opposing party, and the futility of amendment.'ll In re Korean Air Lines, 642 F.3d at 701 (quoting Kaplan, 49 F.3d at 1370).
The bad-faith and undue-delay factors go hand-in-hand as related to Plaintiff's APA claim. Plaintiff does not contend that he could not have brought his APA claim in any of his numerous earlier complaints nor does Plaintiff present any reason for failing to bring his APA claim earlier. Although there is not any basis to conclude that Plaintiff deliberately attempted to prolong these proceedings by filing numerous
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 20 of 31
amendments presenting a moving target, it is indisputable that Plaintiff's repeated attempts to recharacterize previouslyadjudicated claims at the pleading stage has significantly delayed this litigation and is a primary reason why this case has not yet proceeded beyond the pleading stage almost six years after it was initiated. Accordingly, although the Court does not find Plaintiff has intentionally engaged in dilatory conduct, the Court does find these factors, nonetheless, weigh against permitting Plaintiff to add his APA claim.
The Court also finds permitting Plaintiff to add his APA claim would prejudice Defendants. In complex cases like this, litigation under Rule 12(b) (6) serves the important purpose of narrowing and focusing the issues to guide the parties and the Court in the subsequent stages of the proceedings. Allowing Plaintiff to amend his Complaint repeatedly to raise new and recharacterized claims would (if it has not already) turn this important stage of the proceedings into a pleading version of "Whac-a-Mole" and would frustrate the ability of the Court and the parties to proceed to consider the merits of the important issues raised in this case. Especially because Plaintiff has already been given numerous opportunities to amend, it would contradict the overriding direction in Rule 1 to "construe[],
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 21 of 31
administer[], and employ[]" the Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action and proceeding" if the Court interpreted the policy of "freely giv[ing]" a party leave to amend its complaint under Rule 15(a) (2) by allowing this type of repeated recharacterization of claims. Accordingly, on this record the Court concludes this factor weighs against permitting Plaintiff to add his APA claim.
Finally, the Court also concludes Plaintiff's addition of an APA claim to his Complaint would be futile. As Plaintiff candidly admits, the APA claim is largely duplicative of the procedural due-process claim that this Court has already found passes Rule 12(b) (6) muster. Plaintiff does not identify any potential additional remedy or other meaningful advantage that would be available to him if he were permitted to proceed with his APA claim. Accordingly, the Court concludes the futility factor also weighs against permitting Plaintiff to proceed with his APA claim.
On this record, therefore, the Court denies Plaintiff's Motion to Amend insofar as Plaintiff seeks to add an APA claim in his Sixth Amended Complaint.
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 22 of 31
B. Plaintiff's Proposed RFRA Claim Plaintiff also seeks to add a RFRA claim on the basis that Defendants' alleged attempts to coerce Plaintiff into becoming an informant by placing Defendant on the No-Fly List violated his religious freedoms protected by RFRA. Plaintiff contends there is "little difference" between his RFRA claim and his previously-dismissed freedom-of-association claims. Pl.'s Mot. (#125) at 6. Defendants, on the other hand, contend Plaintiff should not be permitted to add his RFRA claim because it constitutes a mere repackaging of his previously-dismissed claims and it is futile because it does not state a viable claim. As the Court earlier noted with respect to Plaintiff's APA claim, Plaintiff has unduly delayed asserting his RFRA claim. Plaintiff contends he now brings his RFRA claim because two recent cases (Tanvir v. Tanzin, 894 F.3d 449 (2d. Cir. 2018), and Fazaga v. Federal Bureau of Investigation, 916 F.3d 1202 (9th Cir. 2019)) indicate such a claim is viable in these circumstances. As relevant here, the plaintiffs in Tanvir brought a RFRA claim for damages against various federal officials on the basis that those officials improperly placed the plaintiffs on the No-
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 23 of 31
'' I
Fly List in retaliation for their refusal to serve as informants. 894 F.3d at 452. Rather than consider the merits of the plaintiffs' claims, the Second Circuit addressed a narrow issue: whether "RFRA permits a plaintiff to recover money damages against federal officers sued in their individual capacities for violations of RFRA's substantive protections." Id. at 453. After engaging in a detailed statutoryinterpretation analysis, the Second Circuit concluded RFRA permitted such an action for damages against officers in their individual capacities. Id. at 464. Although Plaintiff contends the Second Circuit's opinion impliedly suggests the Tanvir plaintiffs' claim was viable on the merits, the Second Circuit expressly declined to address that issue when it "decline[d] to address in the first instance whether the Defendants are entitled to qualified immunity." Id. at 472. The Court, therefore, concludes Tanvir does not provide any support for Plaintiff's assertion that the government's placement or maintenance of an individual on the No-Fly List in retaliation for refusal to serve as an informant violates RFRA. As a result, the Court does not find Tanvir establishes any new basis for Plaintiff to believe his RFRA claim is more viable now than it may have been before the Second Circuit issued the Tanvir
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I

' '

'

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 24 of 31

opinion. In Fazaga the plaintiffs were members and/or imams at two
mosques that the FBI surveilled using electronic surveillance and a confidential informant who attended the mosques. 916 F.3d at 1212-14. As relevant to this case, the plaintiffs brought RFRA claims against both individual-capacity and officialcapacity defendants alleging the surveillance activities substantially burdened the exercise of their religion. The district court dismissed those claims under the state-secrets privilege. Id. at 1215. The Ninth Circuit reversed the district court's dismissal of the plaintiffs' claims on the basis of the state-secrets privilege, but the court continued to consider other bases for dismissal that were raised in the defendants' motion to dismiss before the district court. Id. at 1225-39.
The Ninth Circuit did not address any basis for dismissal of the RFRA claim as related to the official-capacity defendants because they "offer[ed] no argument for dismissal of the RFRA claim other than the state secrets privilege." Id. at 1246. The Ninth Circuit, in fact, expressly stated it "d[id] not address any other defenses the [official-capacity defendants] may raise before the district court in response to Plaintiffs'
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I

1

,

l

Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 25 of 31

RFRA claim." Id. at 1248 n.45. The Ninth Circuit, however, considered whether the RFRA
claim against the individual-capacity defendants should be dismissed on qualified-immunity grounds. 2 The Ninth Circuit noted the plaintiffs were required to present allegations to allow the trier of fact to determine two elements: (1) whether the allegedly burdened activities qualified as an "exercise of religion," and (2) whether the government action "substantially burden[ed]" that exercise of religion. Id. at 1246. Although the Ninth Circuit noted the plaintiffs alleged a variety of ways in which their exercise of religion was burdened by the government's actions, the court dismissed the plaintiffs' RFRA claim as to the individual-capacity defendants on qualifiedimmunity grounds because it was not "clearly established" at the time of the conduct that "surveillance conducted on the basis of religion would meet the RFRA standards for constituting a substantial religious burden on individual congregants." Id. at

2 The Ninth Circuit did not reach whether RFRA permits lawsuits for damages against individual-capacity defendants because it dismissed the RFRA claim on qualified-immunity grounds, but, nonetheless, it noted two other circuits (including the Second Circuit in Tanvir) had concluded such claims were permissible.
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 26 of 31
1247. Contrary to Plaintiffs' insistence that Fazaga indicated
Plaintiff's RFRA claim is now viable and, therefore, that he did not unduly delayed in bringing this claim, the Ninth Circuit's treatment of the Fazaga plaintiffs' claims does not speak one way or the other to the viability of Plaintiff's claim for two reasons. First, the court in Fazaga did not indicate a RFRA claim on the basis raised in that case would be viable even outside of the context of qualified immunity because it declined to consider additional potential defenses pertaining to the RFRA claim against the official-capacity defendants. Second, the claims in Fazaga and the case before this Court are factually distinguishable; i.e., direct surveillance of individuals' activities and communications in a place of worship bears a much closer nexus to the burdening of religious practices than the actions alleged in this case. As noted, the crux of Plaintiff's RFRA claim is that Defendants attempted to use Plaintiff's presence on the No-Fly List as leverage to coerce Plaintiff into becoming an informant regarding activities in Plaintiff's mosque. Plaintiff alleges these actions ~forced Plaintiff into an impermissible choice between obeying his sincerely held religious beliefs regarding honesty, integrity, trust and
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 27 of 31
community and remaining on the No Fly List or disobeying his religious beliefs and succumbing to Government coercion in order to violate his religious beliefs." Proposed Sixth Am. Compl. ~ 66. Although Plaintiff alleges Defendants' actions forced him to choose between remaining on the No-Fly List or compromising
sincerely held religious values, Plaintiff does not allege Defendants' actions burdened the kinds of specific religious practices that the surveillance in Fazaga prevented. 3
Like the court in Tanvir, therefore, this Court concludes Fazaga does not provide any basis for Plaintiff to believe his RFRA claim is any more viable today than it may have been before
3 The Fazaga court summarized the allegedly burdened practices as follows:
Malik trimmed his beard, stopped regularly wearing a skull cap, decreased his attendance at the mosque, and became less welcoming to newcomers than he believes his religion requires. AbdelRahim "significantly decreased his attendance to mosque," limited his donations to mosque institutions, and became less welcoming to newcomers than he believes his religion requires. Fazaga, who provided counseling at the mosque as an imam and an intern therapist, stopped counseling congregants at the mosque because he feared the conversations would be monitored and thus not confidential. 916 F.3d at 1247. Although here Plaintiff alleges Defendants' actions "chilled his religious exercise" (Proposed Sixth Am. Compl. ~ 158), that bare allegation is far too conclusory to pass muster under Rule 12(b) (6).
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 28 of 31
the Ninth Circuit decided Fazaga. Accordingly, as with Plaintiff's APA claim, the Court finds Plaintiff has not provided any reason why he could not have raised his RFRA claim earlier, and, therefore, Plaintiff unduly delayed bringing his RFRA claim.
The Court also finds permitting Plaintiff to add his RFRA claim would prejudice Defendants. Plaintiff acknowledges there is "little difference" between his proposed RFRA claim and his freedom-of-association claim. As noted, the Court dismissed with prejudice Plaintiff's freedom-of-association claim on November 4, 2015 (Opin. and Order (#81)), and again on September 28, 2016 (Opin. and Order (#105)). Plaintiff did not appeal the Court's dismissal with prejudice of his freedom-of-association claim. To permit Plaintiff to bring a new claim that is derivative of his freedom-of-association claim more than two years after the Court dismissed the associative-freedom claim would rob Defendants of the finality that they earned regarding those issues.
Finally, Defendants contend Plaintiff's RFRA claim is futile because Plaintiff fails to make a plausible allegation that Defendants substantially burdened Plaintiff's exercise of his religion when Defendants allegedly placed and/or maintained
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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 29 of 31

Plaintiff on the No-Fly List in order to coerce him into being

an informant at his mosque. In particular, Defendants contend

"a 'substantial burden' is imposed only when individuals are

forced to choose between following the tenets of their religion

and receiving a governmental benefit .

or coerced to act

contrary to their religious beliefs by the threat of civil or

criminal sanctions." Navajo Nation v. United States Forest

Serv., 535 F.3d 1058, 1069-70 (9th Cir. 2008). Defendants point

out that "[a]n effect on an individual's 'subjective, emotional

religious experience' does not constitute a substantial burden,

. nor does 'a government action that decreases the

spirituality, the fervor, or the satisfaction with which a

believer practices his religion." Fazaga, 916 F.3d at 1447

(quoting Navajo Nation, 535 F.3d at 1063, 1070).

The Court shares some of Defendants' concerns regarding the

pleading adequacy of Plaintiff's RFRA claim and, in particular,

as to whether Plaintiff has pleaded an adequate nexus between

his placement and maintenance on the No-Fly List and the alleged

request that he serve as an informant at his mosque.

Nonetheless, the Court concludes it need not determine whether

Plaintiff's RFRA claim is futile because the Court concludes it

would be unfair to permit Plaintiff to add that claim for the

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Case 3:13-cv-00899-MO Document 128 Filed 05/08/19 Page 30 of 31
reasons stated above. Because Plaintiff has had numerous opportunities to amend prior Complaints and the parties have engaged in multiple rounds of Rule 12(b) (6) litigation, it would be inappropriate for the Court to permit Plaintiff to start that process anew almost six years after Plaintiff filed this action.
Accordingly, the Court denies Plaintiff's Motion to Amend insofar as Plaintiff seeks to add a RFRA claim in his Sixth Amended Complaint.
CONCLUSION For these reasons, the Court GRANTS in part and DENIES in part Plaintiff's Motion (#125) to Amend. Plaintiff may amend his Complaint to remove previously resolved claims, to plead additional factual allegations related to Plaintiff's dueprocess claims, and to add the DHS Secretary and the TSA Administrator as defendants. Plaintiff may not, however, add the CBP Commissioner as a defendant or add any new claims. The Court directs Plaintiff to file his Sixth Amended Complaint consistent with this Opinion and Order no later than May 20, 2019. As the Court indicated in its Scheduling Order (#124) issued February 26, 2019, Defendants' anticipated motion
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to dismiss Plaintiff's Sixth Amended Complaint is due no later

than June 19, 2019.

IT IS SO ORDERED.

grnday DATED this

of May, 2019.

ANNA J. BROWN United States Senior District Judge

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CAIR LEGAL DEFENSE FUND Lena F. Masri (pro hac vice)
lmasri@cair.com Gadeir I. Abbas (pro hac vice)*
gabbas@cair.com 453 New Jersey Ave, SE Washington, DC 20003 Phone: 202.742.6420

LAW OFFICE OF BRANDON MAYFIELD, LLC Brandon Mayfield (OSB 00824)
mayfieldbrandon@hotmail.com 3950 SW 185th Avenue Beaverton, OR 97007 Phone: 503.941.5101

LAW OFFICE OF RICHARD R. WIEBE Richard R. Wiebe (pro hac vice)
wiebe@pacbell.net 44 Montgomery St., Suite 650 San Francisco, CA 94104 Phone: (415) 433-3200

*Gadeir Abbas is licensed in VA, not in D.C. Practice limited to federal matters.

Attorneys for Plaintiff Yonas Fikre

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

YONAS FIKRE,

Civil No. 3:13-cv-00899-MO

Plaintiff,

SEVENTH AMENDED COMPLAINT

v.
CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation (sued in his official capacity);

VIOLATION OF PROCEDURAL DUE PROCESS
VIOLATION OF SUBSTANTIVE DUE PROCESS

JURY TRIAL DEMANDED

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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 2 of 50
WILLIAM BARR, Attorney General of the Department of Justice (sued in his official capacity);
MIKE POMPEO, Secretary of the Department of State (sued in his official capacity);
CHARLES KABLE, Director of the Terrorist Screening Center (sued in his official capacity);
CHAD WOLF, Acting Secretary of the Department of Homeland Security (sued in his official capacity);
DAVID PEKOSKE, Administrator of the Transportation Security Administration (sued in his official capacity);
JOSEPH MAGUIRE, Acting Director of National Intelligence (sued in his official capacity);
PAUL NAKASONE, Director of the National Security Agency (sued in his official capacity);
Defendants.
INTRODUCTION
1. Plaintiff Yonas Fikre, an American citizen, seeks redress for the denial
of his right to procedural due process leading to denial of his right to travel
domestically and internationally. Plaintiff Yonas Fikre also seeks redress for the
denial of his right to travel internationally, which denial prevented him from
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returning to the United States when he was expelled from the United Arab Emirates and for years prevented from domestic and international air travel.
2. Plaintiff’s allegations in summary are (i) that Defendants sometime prior to April 21, 2010, placed Plaintiff’s name on the “No Fly List” within the Terrorism Screening Database (“TSDB”) in order to coerce Plaintiff into becoming an informant/agent provocateur for the FBI, (ii) that on April 21, 2010, during an involuntary interview at the United States Embassy in Khartoum, Sudan, Plaintiff was urged to become an informant/agent provocateur for the FBI in order to, among other things, have his name removed from the No Fly List, (iii) that when Plaintiff refused to become an informant/agent provocateur, Defendants retaliated by instigating and facilitating imprisonment, assault, and torture at the hands of the UAE government during the summer of 2011, and (v) that Defendants denied Plaintiff his constitutional right as a citizen to return home to the United States following the UAE government’s releasing him without charge by keeping his name on the No Fly List.
3. Through this action for declaratory and injunctive relief and for damages Plaintiff seeks (i) a method whereby Plaintiff can challenge the inclusion of his name on the No Fly List and Terrorist Screening Database in accordance with due process procedures, (ii) a declaration that Plaintiff’s fundamental right to return to the United States by air, and his right to travel by air, has been infringed, and (iii) an injunction preventing the United States from violating the rights specified herein in the future.
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PARTIES 4. Plaintiff is a naturalized American citizen of Eritrean descent. Plaintiff has never engaged in any acts of terrorism or supported terrorism in any form. 5. Defendant Christopher Wray is Director of the Federal Bureau of Investigation (“FBI”). Defendant Federal Bureau of Investigation is a bureau of the Department of Justice responsible for, among other things, selecting individuals for inclusion on, and maintaining, the No Fly List. The FBI and/or its agency subcomponents have both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. The FBI Defendant Wray is being sued in his official capacity, only. 6. Defendant William Barr is United States Attorney General of the U.S. Department of Justice (“DOJ”). The DOJ and/or its agency subcomponents have both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. The DOJ Defendant Barr is being sued in his official capacity, only. 7. Defendant Mike Pompeo is Secretary of State, U.S. Department of State (“DOS”). DOS and/or its agency subcomponents have both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. DOS and/or its agency subcomponents act as front-line agencies that utilize the TSDB to screen individuals against the TSDB, including Plaintiff. DOS is responsible for protecting and assisting United States citizens while those citizens are abroad. The DOS Defendant Pompeo is being sued in his official capacity, only.
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8. Defendant Charles H. Kable, IV is the Director of the Terrorism Screening Center (“TSC”) of the Federal Bureau of Investigation (“FBI”). TSC has both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. TSC develops and maintains the federal government’s consolidated Terrorism Screening Database (“TSDB”) including its No Fly List subcomponent. TSC accepted and maintained the nomination of Plaintiff to the watchlist. The TSC Defendant Pompeo is being sued in his official capacity, only.
9. Defendant Chad Wolf is the Acting Secretary of the Department of Homeland Security (“DHS”). DHS and/or its agency subcomponents have both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. DHS and/or its agency subcomponents act as front-line agencies that utilize the TSDB and its No Fly List component to screen individuals against the TSDB, including Plaintiff. These consequences include impeding domestic and international air travel, including through the outright denial of boarding any flights. Additionally, DHS is responsible for overseeing and administering the DHS Traveler Redress Inquiry Program (“DHS TRIP”), the only administrative complaint process by which Plaintiff may challenge his inclusion on the No Fly List and TSDB. The DHS Defendant McAleenan is being sued in his official capacity, only.
10. Defendant David P. Pekoske is Administrator of the Transportation Security Administration (“TSA”) of the United States Department of Homeland Security (“DHS”). TSA has both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. TSA acts as a front-line
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agency that utilizes the TSDB and its No Fly List component to screen individuals against the TSDB, including Plaintiff. These consequences include impeding domestic and international air travel, including through the outright denial of boarding any flights. The TSA Defendant Pekoske is being sued in his official capacity, only.
11. Defendant Joseph Maguire is Acting Director of National Intelligence of the Office of the Director of National Intelligence (“ODNI”). ODNI has both decisionmaking authority and veto power over watchlisting policies affecting the No Fly List and TSDB. The ODNI Defendant Coats is being sued in his official capacity, only.
12. Defendant General Paul M. Nakasone is Commander of the United States Cyber Command and Director of the National Security Agency/Chief (“NSA”), Central Security Service of the U.S. Department of Defense (“DOD”). NSA has both decision-making authority and veto power over watchlisting policies affecting the No Fly List and TSDB. As NSA Director, General Nakasone has authority to supervise and implement all operations and functions of the NSA, which include the interception of wire and electronic communications of those listed on the TSDB. The NSA Defendant Nakasone is being sued in his official capacity, only.
JURISDICTION AND VENUE 13. This is a complaint for injunctive and declaratory relief, and for damages, based upon Defendants’ violations of Plaintiff’s constitutional rights. The claims asserted arise under the Due Process Clause of the Fifth Amendment (substantive and procedural).
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14. Under U.S. CONST. Art. III § 2, this Court has jurisdiction because the rights sought to be protected herein are secured by the United States Constitution.
15. This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
16. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
17. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Defendants include the United States and agencies of the United States, because this judicial district is where Plaintiff resides, and because a substantial part of the events or omissions giving rise to the claims occurred in this district.
FACTUAL ALLEGATIONS General Factual Allegations
18. President George W. Bush executed Homeland Security Presidential Directive-6 on September 16, 2003. HSPD-6 directed the U.S. Attorney General to “establish an organization to consolidate the Government’s approach to terrorism screening.” HSPD-6 created the Terrorist Screening Center (“TSC”), which is administered by the FBI.
19. HSPD-6 also directs the Attorney General to consolidate terrorismrelated information and then use it to support (a) federal, state, local, territorial, tribal, foreign-government, and private-sector screening processes, and (b) diplomatic, military, intelligence, law enforcement, immigration, visa, and protective processes. The TSC thus houses the Terrorist Screening Database (“TSDB” or
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“watchlist”). The TSDB is a centralized collection of information about listed individuals (i.e. “TSDB Listees”). The individual identifying information includes biographic and biometric data, such as names, aliases, birthdates, photographs, fingerprints, and iris scans.
20. The TSDB is updated continuously and disseminated around the country and to more than 60 foreign governments around the world in real-time.
21. Federal government agencies and foreign government partners draw the information supporting their nominations from intelligence, law enforcement, homeland security, embassy, consulate, financial, and immigration records.
22. New additions to the TSDB must include minimal identifying and substantive information. The minimum identifying information must be sufficient to allow screeners to determine whether an individual’s identity is an actual match to a TSDB record.
23. The minimum substantive information must be enough to satisfy the TSDB inclusion standard, which the Government calls the “reasonable suspicion that the individual is a known or suspected terrorist” standard.
24. The Government defines a “Known Terrorist” as “an individual who has been (1) arrested, charged by information, or indicted for, or convicted of, a crime related to terrorism and /or terrorist activities by the United States Government or foreign government authorities; or (2) identified as a terrorist or member of a terrorist organization pursuant to statute, Executive Order or international legal obligations pursuant to a United Nations Security Council Resolution.”
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25. The Government defines a “Suspected Terrorist” as “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and /or terrorist activities.”
26. The Government adds individuals to the TSDB if their nomination is based “upon articulable intelligence or information which, based on the totality of the circumstances and, taken together with rational inferences from those facts, creates a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage, in conduct constituting in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities.”
27. The Terrorist Screening Center reviews all nominations to the TSDB and their supporting facts. The final authority to accept, reject, or modify a nomination rests with the TSC alone.
28. The TSC may consider an individual’s “race, ethnicity, or religious affiliation” as well as their “beliefs and activities protected by the First Amendment, such as freedom of speech, free exercise of religion, freedom of the press, freedom of peaceful assembly, and the freedom to petition the government for redress of grievances” as information supporting a nomination to the TSDB.
29. The TSC may consider an individual’s travel history, associates, business associations, international associations, financial transactions, and study of Arabic as information supporting a nomination to the TSDB.
30. TSDB records are not criminal records. The TSC includes individuals
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in the TSDB who have not been convicted, arrested, investigated, or suspected of any crime. Inclusion in the TSDB does not require evidence that an individual has engaged in any criminal activity. Inclusion in the TSDB does not require evidence that an individual has committed a crime, is committing a crime, or will commit a crime in the future. Individuals who have been acquitted of a terrorism-related crime may still be listed in the TSDB.
31. Based on the specific needs and missions of its various partners, the TSC annotates TSDB records. TSC assigns these annotations based on distinct criteria from TSDB’s overall inclusion standard. The final authority to accept, reject, or modify a nomination or annotation to a TSDB rests with the TSC alone. Defendant TSC is responsible for including, maintaining, and/or removing Plaintiff from the No Fly List and the TSDB.
32. For the TSA, the TSC annotates TSDB entries in three ways: (1) No Fly, (2) Selectee, and (3) Expanded Selectee.
33. The TSC assigns a No Fly annotation when the TSC determines the individual poses:
(1) a threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft (including a threat of piracy, or a threat to airline, passenger, or civil aviation security); (2) a threat of committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; (3) a threat of committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations (as defined by 10 U.S.C. 2801(c)(4)), U.S. ships, U.S. aircraft, or other auxiliary craft owned or leased by the U.S. Government; or, Page 10 – SEVENTH AMENDED COMPLAINT, Civil No. 3:13-cv-00899 (BR)

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(4) a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so. 34. TSDB Listees with the No Fly List annotation are prohibited from boarding an aircraft that traverses U.S. airspace. 35. TSDB Listees, whether bearing the No Fly List annotation are not, are also subjected to intensive scrutiny by the Government as a matter of TSDB encounter policy. This includes the Government subjecting TSDB Listees to lengthy and onerous secondary screening at airports; subjecting TSDB Listees to lengthy and onerous secondary inspection at land borders; subjecting TSDB Listees to the mandatory search and copying of their electronic devices at borders; subjecting TSDB Listees to handling codes requiring their arrest or other adverse treatment during any encounter with federal, state, local, or private law enforcement officers; barring TSDB Listees from access to employment or credentials across federal agencies and public and private infrastructure industries; and subjecting TSDB Listees’ traveling companions, relatives, and other associates to comparable scrutiny. 36. TSC does not notify individuals about their nominations or additions to the TSDB, or their nominations or additions to the No Fly List. There are no “adversarial hearings” regarding TSDB Listee status. 37. The TSDB, since 2006, retains copies of all prior versions of listed persons’ records. TSDB Listees are not permitted to know the history of any changes to their watchlist status, or the factual basis for those changes. 38. Following 2015 litigation in Latif v. Holder, the federal government modified the redress process for TSDB Listees who are U.S. Persons and who have
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the No Fly List annotation. If a U.S. Person on the No Fly List files a DHS TRIP complaint, DHS TRIP (following referral to and consultation with TSC) must inform the individual if they are currently on the No Fly List. The No Fly Listee may then request additional information, including TSC’s unclassified summary of the information supporting their No Fly List annotation. The No Fly Listee may respond by submitting information they consider potentially relevant or responsive to that unclassified factual summary.
39. The redress policy which governs No Fly List annotations (as set forth below) does not apply to any other TSDB Listees, including those who remain on the TSDB although their No Fly List annotation has been removed.
40. The TSC Redress Office has final authority to modify or remove a TSDB record during the redress process, including by adjusting or removing the No Fly List annotation.
41. If the TSC chooses to maintain a person’s No Fly List annotation, the TSC must prepare a recommendation to the TSA Administrator regarding the continuing No Fly List annotation on that TSDB Listee’s record. The TSA Administrator them makes the final written determination concerning the maintenance or removal of the No Fly List annotation for U.S. Persons. The TSC will then technically implement any change to the No Fly List annotation the TSA Administrator directs.
42. The TSC removing an individual’s No Fly List annotation does not mean that the individual is also removed from the TSDB. The TSC alone remains
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responsible for a U.S. Person’s overall TSDB Listee status. 43. If the U.S. Person remains on the No Fly List following both TSC and
TSA Administrator review, the TSA Administrator will issue a final order regarding the basis for that individual’s continuing placement. The final order will also notify the individual with the continuing No Fly List annotation of their ability to seek judicial review.
44. Apart from the DHS TRIP Redress process, the TSC periodically reviews its TSDB listings and No Fly List annotations, based on new or additional information the TSC receives. Pursuant to that process, the TSC occasionally imposes or removes No Fly List annotations.
45. Nothing prevents the TSC, after removing an individuals’ No Fly List annotation, from re-adding the same individual to the No Fly List based on the same or similar derogatory information.
46. Plaintiff is justifiably skeptical of Defendants’ willingness to engage in meaningful introspection or self-correction. Famously, in Ibrahim v. Department of Homeland Security, et al., 06-CV-00545, ECF 701-1 (N.D. Cal. Feb. 6, 2014), Defendants vigorously contested a Muslim graduate student’s challenge to her No Fly List designation and subsequent revocation of her student visa. Defendants’ actions stranded her in Malaysia for nine years. Following trial, it was ultimately revealed that her placement on the No Fly List was the result of an FBI agent’s error in November 2004. He had accidentally checked the wrong box. Id. at 9.
47. Defendants have a pattern of using the TSDB and No Fly List as a
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bludgeon to coerce everyday American Muslims into spying on their fellow religious adherents and neighbors and becoming government informants. Presence on the watchlist is deployed as an intimidation tactic and used to coercively justify the denial of American-Muslims’ civil rights, such as the right to have an attorney present during law enforcement questioning.
48. Along with the experiences of Plaintiff being recruited as an information as described in more detail below, public examples of the Government-informantrecruitment phenomenon abound. See, e.g., Latif v. Holder, 28 F. Supp. 3d 1134, 1145 (D. Or. 2014) (an FBI agent told Steven Washburn that he “would help remove Washburn’s name from the No-Fly List if he agreed to speak to the FBI”) ; Id. at 1146 (FBI agents told Ibraheim Mashal that “his name would be removed from the No-Fly List and he would receive compensation if he helped the FBI by serving as an informant”): Id. (FBI agents offered Amir Meshal “the opportunity to serve as a government informant in exchange for assistance in removing his name from the NoFly List”); Tanvir v Tanzin, 894 F.3d 449 (2d Cir. 2018) (multiple Muslim Plaintiffs “asked to gather information on members of Muslim communities and report that information to the FBI” and “[i]n some instances, the FBI’s request was accompanied with severe pressure, including threats of deportation or arrest; in others, the request was accompanied by promises of financial and other assistance”).
49. As detailed below, Plaintiff’s watchlist status and his No Fly List annotation has been the subject of personal harm, contention with the United States government, and litigation, for more than a decade.
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Plaintiff’s Background, Travel, Imprisonment, Torture, and Release 50. Air travel is the only practical means of passenger transportation
between the North American continent and Europe, Asia, Africa, the Middle East, and Australia.
51. Plaintiff Yonas Fikre is a naturalized American citizen of Eritrean descent. When he was a small boy, war broke out in Eritrea, and thus his family took him to Sudan, where he was when the State of Eritrea came into being in 1993. From Sudan the Fikre family emigrated to the United States.
52. Beginning in 2006, Plaintiff resided in Portland, Oregon. In late December 2009, after working for an American cell phone company, Plaintiff decided to attempt to distribute and to sell consumer electronic products on the retail market in East Africa. He began by returning to Sudan, where some of his extended family still reside. Upon arrival in Sudan, Plaintiff, in compliance with a recommendation by the State Department, contacted the United States Consulate in Khartoum and informed a representative of the consulate of his interest in pursuing business opportunities in the country. The representative encouraged Plaintiff to pursue business opportunities in Sudan. In reliance upon the representative’s recommendation Plaintiff began the process of obtaining a Sudanese business license.
53. On Tuesday, April 20, 2010, Defendants’ employee David Noordeloos sent an email to Plaintiff, which stated: “Younas, I work at the embassy in Khartoum and need to meet up with you on wed 4/21. Can you email me back and let me know what time in the afternoon works for you? Best, David Noordeloos US Department of
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State.” 54. On Wednesday, April 21, Defendants’ employee Noordeloos sent an
email to Plaintiff, which stated: “Yonas, I hope this finds you well. I still need to meet with you as soon as possible, can you give me a call and let me know what time works for you to meet? You can email me back or try me at the Embassy or on my cell, but please contact me soonest. Regards, David Noordeloos, US Department of State.”
55. On April 21, at approximately 9 p.m. local time, Plaintiff called the number given and spoke with Noordeloos. Noordeloos stated that a number of Americans in Sudan had been invited to the Embassy for a luncheon the following day in order to discuss how Americans might stay safe during a period of political turmoil in Sudan. Plaintiff agreed to attend the luncheon on that basis, which turned out to be a false pretense.
56. The next day Plaintiff appeared at the embassy. After going through security screening, Plaintiff met Noordeloos and another person who identified himself as Jason Dundas. Noordeloos and Dundas escorted Plaintiff to a small meeting room and shut the door, positioning themselves between Plaintiff and the door. At that point Noordeloos and Dundas produced badges and stated that they were FBI agents assigned to the Portland office.
57. Upon being informed that Noordeloos and Dundas were FBI agents from the Portland office, Plaintiff stated that he wanted to be represented by his legal counsel (Plaintiff was then represented by Oregon attorney Brandon Mayfield) during the interrogation. Noordeloos denied Mr. Fikre’s request for such
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representation on the grounds that Plaintiff had been placed on the No Fly List and thus could not return to the United States to confer with his attorney.
58. Because Dundas and Noordeloos were blocking the door, Plaintiff, who had never before been detained or arrested, felt he could not leave. During the following interrogation, Noordeloos and Dundas questioned Plaintiff extensively about the events, activities, and leadership at the as-Saber Mosque in Portland, which Plaintiff had attended for prayer services. Noordeloos also questioned Plaintiff about the source of his financial support for his business endeavors in Sudan, and told Plaintiff that, because of the Sudan sanctions imposed by the Office of Foreign Assets Control, it was illegal for Plaintiff to engage in business transactions in Sudan - a statement that is inconsistent with the advice and recommendation earlier given by a representative of the embassy.
59. Noordeloos next told Plaintiff that the FBI desired Plaintiff to become an FBI informant to work upon “a case” that was then developing. Noordeloos stated that, in return, Plaintiff would be paid substantial compensation, be in a position to enjoy “the good life,” and that the FBI would take steps to remove Plaintiff from the No Fly List. Noordeloos then asked, “Don’t you love your wife?”, which question Plaintiff considered an implicit threat. Plaintiff responded that he did not wish to become an FBI informant. The interview lasted for several hours until the close of the business day. As the day wore on, Noordeloos suggested they resume the discussion on the following day. In order to escape the interrogation room and leave the embassy, Plaintiff agreed.
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60. Defendants’ placement of Plaintiff on the No Fly List and recruitment of him as an informant pressured him to infiltrate his religious community as a government informant, and to spy and eavesdrop on other Muslims’ words and deeds—regardless of whether his religious brothers and sisters were suspected of wrongdoing—and then to report his observations to the FBI.
61. Plaintiff has a sincere religious belief in honesty, integrity, trust, and community within his Muslim faith.
62. At approximately 8:45 a.m. on the following morning, Plaintiff called Noordeloos and stated that he did not wish to meet further with the FBI agents because he would be wasting their and his time. Plaintiff reiterated that he did not wish to become an informant for the FBI. Noordeloos became agitated and, to the best of Plaintiff’s recollection, stated, “Wait a minute! Are you trying to tell me you don’t want to work with us!” Noordeloos then stated, “Whenever you want to go home you come to the embassy.” Plaintiff understood this to mean that Plaintiff’s name would not be removed from the No Fly List and he could not travel to the United States unless he became an informant/agent provocateur for the FBI.
63. On May 4, 2010, Noordeloos wrote an email to Plaintiff which stated: “Yonas, Thanks for meeting with us last week in Sudan. While we hope to get your side of issues we keep hearing about, the choice is yours to make. The time to help yourself is now. Be safe in Sudan, Dave Noordeloos.”
64. Defendants forced Plaintiff into an impermissible choice between obeying his sincerely held religious beliefs regarding honesty, integrity, trust and
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community and remaining on the No Fly List, or disobeying his religious beliefs and succumbing to Government coercion in order to violate his religious beliefs.
65. Because Plaintiff chose his faith over Government coercion, he continued to experience interrogations and the Government-imposed No Fly List punishment, which severely restricted his travel including his ability to visit loved ones in the United States and abroad.
66. Defendants’ actions in leveraging his No Fly List status based on his agreement to become an FBI informant caused Plaintiff to suffer emotional distress, reputational harm, and economic loss.
67. Plaintiff remained in Khartoum for almost two months following his meeting with Noordeloos and Dundas. During that time Plaintiff noticed that he was being followed by persons he assumed were affiliated with the Sudanese secret police, and he was told by merchants and other acquaintances in his neighborhood that similar individuals had been inquiring about him and his activities.
68. On or about June 15, 2010, Plaintiff left Sudan, and on or about September 15, 2010, plaintiff arrived in the UAE to pursue similar business interests involving the distribution and retail sale of consumer electronics there. Plaintiff moved to the city of Al Ain in the emirate of Abu Dhabi, where he sought and obtained a residency permit from the UAE in order to conduct business; he invested substantial financial resources provided by family members in pursuing that course.
69. In the evening of June 1, 2011, persons unknown to Plaintiff (who Plaintiff later learned were UAE plainclothes secret police) invaded Plaintiff’s home
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in Al Ain, seized Plaintiff’s computer, phone, and other items, and compelled Plaintiff to accompany them in a vehicle. Several of Plaintiff’s friends and neighbors witnessed Plaintiff’s apprehension. Plaintiff was blindfolded, placed in a confined space in the vehicle, and the air conditioner in the vehicle was turned on high and directed at him with the effect that he became quite chilled.
70. Plaintiff was taken to a then-unknown location approximately two hours’ driving time from Al Ain. Still blindfolded, he was led into a building and into a long hall where, by peeking down through the bottom of his blindfold, he noticed that he was passing door after door. His guards stopped at one door and put him inside a windowless cell where he was lodged. Upon removal of his blindfold, he saw that his tiny cell lacked toilet facilities. His cell contained only a bed and some bedding. The cell was very cold because the air conditioning had been set on high.
71. The following morning the interrogations of Plaintiff began. Except for the one instance noted below, during all of his interrogations Plaintiff was blindfolded. Once blindfolded, he was taken to a room where, throughout his ordeal, plaintiff was questioned for hours in English. Periodically during the 106 days of his imprisonment and torture, Plaintiff occasionally was able to peek beneath the blindfold and view shoes and the lower torsos of his interrogators.
72. The primary focus of the blindfolded interrogations was events at Portland’s as-Saber Mosque, addressing in particular who Plaintiff knew at the mosque who had a “jihadi mentality,” what topics the mosque’s leader, Sheikh Mohamed Kariye, speaks about both in public and in private, and how fundraising at
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the mosque occurs and who engages in fundraising there. The interrogators also questioned Plaintiff about circumstances and events that Plaintiff had disclosed to Noordeloos and Dundas during his interrogation at the embassy in Khartoum. Numerous times during the blindfolded interrogations Plaintiff’s interrogators urged him to cooperate with them and with the FBI by becoming an informant.
73. When Plaintiff was returned to his cell at the end of the first day of interrogation he discovered that his bed and bedding had been removed. The air conditioning remained at a high level, which made the cell extremely cold. Because his bed and bedding had been removed, Plaintiff was obliged to sleep almost naked on the cold cement floor.
74. During the initial period of his confinement Plaintiff resisted answering some of the questions, insisting that he was an American citizen and needed to speak with his ambassador and with his attorney. In response, Plaintiff’s jailers struck him on his head and he fell to the ground. Throughout course of his confinement Plaintiff was repeatedly beaten severely on his head, back, legs, and feet with batons and plastic pipes, required to assume stress positions for hours, and threatened with death by strangulation by use of a flexible plastic pipe. One particularly painful torture method his interrogators used was to force Plaintiff to lie on his stomach with his sandals off, whereupon he was beaten severely on the soles of his feet; thereafter, he was required to stand on his feet, which standing caused him great pain.
75. On several occasions Plaintiff told his interrogators that the questions he was being asked and the suggestions of cooperation with the FBI were the same
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questions and suggestion he had heard from defendants Noordeloos and Dundas. Plaintiff thus inquired whether his confinement and mistreatment was at the request of the FBI. On each such occasion the interrogators responded by beating Plaintiff severely.
76. As noted above, during his interrogations Plaintiff was occasionally able to peek beneath his blindfold and view the lower torsos of his interrogators. On most occasions, based on their clothing and accents, Plaintiff believes that his interrogators were Arabs. On other occasions, however, Plaintiff was able to view the shoes and slacks of several individuals who wore Western dress. Plaintiff believes that in those instances Noordeloos, Dundas, or other individuals acting as representatives of the United States, were present and witnessed the interrogations and that those individuals participated in interrogating Plaintiff.
77. All individuals who attended and participated in the interrogation of Plaintiff were present with the permission, and were under the physical and legal control, of UAE authorities who operated and maintained the secret prison.
78. On or about June 14, 2011, Plaintiff was informed that he had to take a lie detector test. During the test, for the only time during his confinement, Plaintiff was questioned without a blindfold in place. The questioning during the test focused not upon events at Portland’s as-Saber Mosque but, rather, upon whether Plaintiff’s financial arrangements involved soliciting funds for al-Qaeda. Following the lie detector test Plaintiff’s bed and bedding were returned to his cell.
79. The interrogations, including beatings and stress positions, as well as
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being subjected to temperature extremes, sleep deprivation, and humiliation when not being interrogated, continued daily from June 14 through July 27.
80. On June 20, 2011, immediately after learning from Plaintiff’s family that Plaintiff had been apprehended in the UAE (the family had learned of Plaintiff’s apprehension from witnesses who observed the event), Oregon counsel Thomas Nelson telephoned and then e-mailed the United States Consulate in Abu Dhabi to inform them that Plaintiff, a United States citizen, had gone missing and that witnesses in Al Ain had viewed him being placed in a SUV of the type that is commonly used by the UAE secret police. The consulate officials indicated that they would look into the matter.
81. On July 21, 2011, Plaintiff’s Oregon counsel Thomas Nelson contacted Representative Earl Blumenauer’s office to request assistance in locating Plaintiff and made contact with staff member Emily Barrett. Ms. Barrett stated that Congressman Blumenauer would look into the situation.
82. On July 28, 2011, Plaintiff was informed that a woman from the American consulate had arrived to see him. He was told that he was to meet with the American consul and that he should not disclose to the consular officer that he had been mistreated during his detention lest he beaten still more severely.
83. On July 28, 2011, Plaintiff, accompanied by two guards, was taken to a meeting room where he met “Marwa,” a consular employee of the State Department who, on information and belief, is of Egyptian extraction. The two guards positioned themselves close to Plaintiff, one on each side. Marwa was dressed in Islamic attire
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(a “hijab,” or covering of her hair). By that time plaintiff had lost approximately 30 pounds of body weight.
84. The meeting with Marwa was short and superficial. Although by that time Plaintiff had lost approximately 30 pounds, Marwa stated that plaintiff appeared to be in good shape. During the interview Plaintiff attempted by facial contortions and winks to indicate that he was under duress, but Marwa either did not notice or disregarded these signals.
85. Marwa questioned Plaintiff regarding what offense he had been charged with, whereupon Plaintiff asked the two guards what he had been charged with. The guards stated that Plaintiff was being held without charge and that the authorities were merely conducting an investigation.
86. Following the meeting with Marwa, Plaintiff was returned to his cell and the interrogations and torture resumed. Marwa’s visit was the only United States consular visit during Plaintiff’s 106 days of detention and torture; the consulate did not visit or make any contact with Plaintiff during his remaining 49 days of his confinement and torture, nor did it provide any assistance to Plaintiff when he was deported from the UAE.
87. Following the meeting with Marwa, Plaintiff became despondent. Because the consul’s office had sent a Muslim woman wearing a hijab to interact with the prison authorities and the two guards, Plaintiff came to believe that, because of his black skin, the United States had “thrown [him] away.” He consequently began to consider refusing food in an attempt at suicide, but was told that he would be force-
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fed if necessary. 88. Toward the end of his interrogation Plaintiff again inquired of his
interrogator whether the FBI had requested that he be detained and interrogated. This time, instead of being beaten, the interrogator stated that indeed the FBI had made such a request and that the American and Emerati authorities work closely on a number of such matters.
89. On September 14, 2011, Plaintiff was told that he would be released that day but would have to leave the UAE and stay out for at least a year. His belongings were returned to him and money from his wallet was taken to buy him a plane ticket back to the United States while Plaintiff remained in custody. Such a ticket was purchased from a travel agency; however, when the jailer took the ticket to the airport to obtain a boarding pass, the boarding pass was refused on the grounds that Plaintiff was on the No Fly List.
90. Plaintiff’s custodian was visibly upset because he could not board the flight out of the UAE, and asked Plaintiff, “What kind of country would refuse a citizen’s return to his own country?” or words to that effect. The custodian then reiterated that Plaintiff could not stay in the UAE, and therefore would have to go somewhere else, and asked where Plaintiff wished to be sent. Because Plaintiff had a relative in Sweden, Plaintiff indicated that he should be sent there. Therefore, the custodian took more money from Plaintiff’s wallet and arranged the purchase of a ticket to Stockholm, Sweden. This time a boarding pass was issued for Plaintiff.
91. The United States consulate in the UAE knew or should have known
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that Plaintiff would be deported upon his release from prison, but the consulate took no action to provide assistance to Plaintiff upon his release.
92. Plaintiff arrived in Sweden traumatized, with few financial and other resources, and clothing entirely inappropriate for the Scandinavian weather and climate.
93. Shortly after arriving in Stockholm Plaintiff contacted the airline that had refused to issue him a boarding pass in the UAE and discussed his situation with them. The representative he spoke with confirmed that he had been denied boarding on the flight from the UAE to the United States but stated that she could not provide any reasons for such refusal. Plaintiff then requested a refund of the ticket price, but the representative stated that because the ticket had been purchased through a travel agency in the UAE he would have to get the refund (if any) from that travel agency.
94. To date Plaintiff has been unable to obtain a refund for the unused ticket from the UAE to the United States.
95. In addition to being stranded with few resources in a foreign country, being placed on the No Fly List resulted in Plaintiff’s losing virtually all of his rights as a citizen of the United States - he could not return home to enjoy the rights, privileges and immunities of citizenship. Moreover, his experience with State Department officials in Khartoum and Abu Dhabi demonstrated to him that the State Department would neither protect nor assist him while overseas; rather, it would actively work to his detriment.
96. Nationals of one country are allowed to visit foreign countries for only
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limited periods of time before they have to leave the country they are visiting; in the case of Sweden and other Schengen Agreement countries the maximum stay is for 90 days for holders of United States passports unless special arrangements are made, such as requesting asylum.
97. Upon arriving in Sweden and being unable to return home, Plaintiff contacted a Swedish attorney, Advokat Hans Bredberg, who suggested that Plaintiff seek protective asylum in that country. Believing that the United States, through the FBI, was responsible for his detention and torture in Abu Dhabi and that he may still be in danger of abuse in countries that condone torture (including the United States), Plaintiff submitted an application for asylum to the authorities in Sweden.
98. On April 18, 2012, a press conference was held in Advokat Bredberg’s office in Stockholm during which Plaintiff’s ordeal was disclosed publicly. Less than two weeks later, on May 1, 2012, Plaintiff and two other individuals were indicted in the United States District Court for the Southern District of California, Docket No. 3:12-cr-06189-JAH, for “conspiracy to structure” monetary transfers from his family to him in the UAE between April 14, 2010, and April 19, 2010, which funds Plaintiff used to attempt to start his business. On information and belief, this indictment was in retaliation for Plaintiff’s publicizing of his ordeal through the April 18, 2012 press conference in Stockholm, and based at least in part upon information the United States obtained from the interview at the United States Embassy in Khartoum, from Plaintiff’s 106 days of interrogation and torture in the UAE, and from the electronic surveillance of Plaintiff.
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99. Sometime in the fall of 2013 counsel for Defendants contacted counsel for Plaintiff and suggested that if Plaintiff wished to return to the United States he should visit the United States embassy in Stockholm to make necessary arrangements. After conferring with Plaintiff in Stockholm, Plaintiff’s representatives informed Defendants’ counsel that Plaintiff was apprehensive about entering the embassy grounds and that Plaintiff would, under the present circumstances, consider returning if the United States (1) guaranteed Plaintiff’s safety from extra-judicial actions, and (2) provided adequate assurances that Plaintiff could leave the United States once he returned. Counsel for Defendants indicated that the United States would not provide such guarantees and assurances.
100. In early November 2013 Plaintiff filed with the Department of Homeland Security (“DHS”) a Traveler Redress Inquiry Program (“TRIP”) request and was assigned a redress number. By letter dated January 23, 2014, DHS informed Plaintiff that “It has been determined that no changes or corrections are warranted at this time” and suggesting that Plaintiff might wish to take an administrative appeal from this decision. Because it was unclear from the DHS letter whether Plaintiff was then on the No Fly List, and thus it was unclear whether Plaintiff was aggrieved by this decision, by letter dated February 24, 2014, Plaintiff requested clarification and a stay pending resolution of this issue and the resolution of the current litigation. By letter dated March 11, 2014, DHS replied that an extension to take an appeal would be granted to April 22, 2014. Plaintiff then abandoned his efforts with DHS.
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101. Because of the stigma Plaintiff’s No Fly List placement imposed, Fikre’s former wife and her family placed tremendous pressure on their marriage. The former wife, whenever she traveled, would be asked about Fikre. The former wife and the family feared that the stigma Fikre’s listing inflicted would continue to affect their standing in the community and with government, absent a divorce. Because of the listing, Fikre’s former wife insisted on a divorce, her father asked Fikre and his family for a divorce. And in accordance with community practices and mores, a local imam got involved in the matter to mediate the marital dispute caused by Fikre’s No Fly List placement.
102. Because of the fear and stigma created by Fikre’s placement on the No Fly List, , Plaintiff’s wife sought and received a divorce from Plaintiff.
103. Early in 2015 Plaintiff’s application for asylum in Sweden was denied. 104. On February 12, 2015, the DHS by letter informed Plaintiff that DHS had on its own motion “reevaluated” Plaintiff’s prior TRIP inquiry and informed Plaintiff that he 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.’” The DHS provided no factual bases to support this conclusion, and requested Plaintiff’s response. By a letter dated February 19, 2015, Plaintiff categorically denied that he was or is a threat and stated that the bare conclusion contained in the DHS latter of February 12, 2015, prevented Plaintiff from providing a meaningful response; consequently, Plaintiff asserted that the February 12, 2015, letter violated Plaintiff’s due process rights. By a “Decision and Order” dated March 9, 2015, the DHS indicated
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that Plaintiff’s name would remain on the No Fly List. 105. On February 14, 2015, the Swedish government transported Plaintiff to
Portland, Oregon, by private jet. Plaintiff’s Surveillance, Indictment, and Dismissal
106. In 2010, while he was inside the United States, Plaintiff and his brother Dawit Woldehawariat - both US citizens - worked together to set up a lawful business venture abroad. In furtherance of this objective, Plaintiff and his brother discussed the parameters of the business venture they envisioned and the financial resources necessary to execute their plan. These discussions occurred by telephone, email, and text message.
107. Unbeknownst at the time to either Plaintiff or his brother, Defendants were intercepting and/or acquiring the content of Plaintiff’s telephone calls, his text messages, and his emails. Plaintiff now knows this because the United States has confirmed, through Department of Justice filings submitted in a since-dismissed prosecution against Plaintiff in the United States District Court for the Southern District of California, that it intercepted the contents of Plaintiff’s telephone calls, emails, and text messages. See U.S. District Court for the Southern District of California, Docket No. 3:12-cr-06189-JAH, Doc. # 10.
108. These interceptions and/or acquisitions of Plaintiff’s telephone calls, emails, and text messages were not conducted pursuant to a warrant and were not supported by probable cause or reasonable suspicion.
109. On information and belief, the information upon which defendants
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caused Plaintiff to meet with defendant FBI agents Noordeloos and John Doe I (Jason Dundas) in Khartoum and upon which Defendants caused the UAE to imprison and torture Plaintiff was derived from illegal surveillance and searches.
110. On information and belief, information derived from the electronic surveillance of Plaintiff was willfully, knowingly, and recklessly disseminated for the unlawful purpose of interrogating Plaintiff without counsel and coercing Plaintiff to turn informant and then to cause his torture by proxy in the UAE.
111. On information and belief, the information derived from the electronic surveillance of Plaintiff was disseminated to several agencies and foreign governments including but not limited to the Central Intelligence Agency, the National Security Council, the Department of Defense, the Department of Homeland Security, the Department of Justice/Federal Bureau of Investigation, the US Attorney’s Office for the District of Oregon, the Department of the Treasury and the National Security Agency, and the United Arab Emirates. Fikre’s Continued Suffering Due to His Placement on the Watchlist
112. Plaintiff has suffered mistreatment at the hands of Defendants including, but not limited to, being placed on the Terrorist Screening Database and its No Fly List annotation without notice of the factual bases therefor or the opportunity to be heard, denial of legal counsel, false arrest and false imprisonment, assault and battery, torture, violation of his right to freedom of association, illegal surveillance, violation of his right to privacy, and violation of his substantive and procedural due process rights. Plaintiff intends to continue to attempt to exercise his
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rights, including the right to legal counsel, to travel by air, and his substantive and procedural due process rights. Based upon defendants’ past misconduct Plaintiff has a reasonable fear of further future mistreatment by defendants and other agents of the United States.
113. On May 6, 2015, during the course of this litigation, Defendants informed Plaintiff that the Terrorist Screening Center had removed him from the No Fly List. See Dkt. 98.
114. In 2016, Fikre undertook the Islamic religious pilgrimage known as hajj—a one-per-lifetime obligation Muslims have to travel to Mecca to perform certain rituals. It is a communal ritual, and like other American Muslims, Fikre booked his hajj trip through a travel company that specializes in organizing trips to Mecca.
115. Fikre’s itinerary to Mecca had him traveling with about 20-25 Muslims in the Seattle-area community to Chicago, where they would meet up with other Muslims from across the country to travel altogether—in a group of about 60-80—to Mecca.
116. When Fikre traveled to the airport in Seattle to begin his trip, he went alone and very early to get his boarding pass. He expected Defendants to make it onerous for him to obtain his boarding pass. And Defendants did require him to wait for a ticketing agent to call Defendants for an individualized permission to print Fikre’s boarding pass. His boarding pass was stamped as SSSS, which indicates a person’s TSDB status.
117. Though Fikre got his boarding pass alone to hide from others his
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watchlist status, Fikre could not do the same when Defendant TSA screened him to enter the sterile area of the airport. Fikre went through the security line alongside the 20-25 community members who were part of his hajj group. As he proceeded through security, Defendant TSA—in accordance with his TSDB status—subjected him to invasive and disparate screening. His co-travelers saw his security screening, understood that Defendant TSA viewed him as a physical threat, and feared him as a result.
118. When Fikre and his group arrived at their gate, inside the secure area of the airport, there were 3-5 five agents with a swab machine—used to detect chemicals on a person’s hands, clothes, or belongings—and a metal detector. The agents inspected each person’s boarding pass and ID as they entered the jetbridge, and when Fikre approached, the agents directed him to step aside1. He was, again, invasively searched, patted down, swabbed, and otherwise inspected in full view of his hajj group and other passengers.
119. Because Defendants’ watchlisting system is so focused on the Muslim community, many of the TSDB-related consequences Defendants imposed on Fikre are common knowledge among American Muslims. As a result, some of Plaintiff’s cotravelers deduced his TSDB status from how Defendants treated him.
120. In response to the visible consequences of Fikre’s TSDB status at the Seattle airport, many individuals in his hajj group stopped speaking with him and
1 These gate screenings are conducted only against a subset of persons in the TSDB and for no other reason.
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otherwise sought to avoid any contact with him for the remainder of the trip. His cotravelers feared that, if they were to associate with Fikre, they would be subject to the same treatment.
121. Because Fikre’s TSDB status was discernable to members of the public, his co-travelers, and fellow passengers, Fikre was humiliated and could discern fear and revulsion of him from those who witnessed how Defendants treated Fikre.
122. When Fikre and his co-travelers landed in Chicago, his hajj group had to get new boarding passes in order to get to their international flight to Mecca. After deplaning, the travel group organizers convened everyone and proceeded to the ticketing counter.
123. When Fikre presented his information for a boarding pass, the ticketing agent asked him to step aside. The ticketing agent called Defendants to get individualized permission to print out Fikre’s boarding pass. Fikre’s co-travelers could see that Defendants required Fikre to obtain special permission to fly via a more onerous process.
124. Fikre’s co-travelers, particularly some who had witnessed how he was treated in Seattle’s airport, asked him why he was not getting his boarding pass and why he was being treated in this manner. These co-travelers could tell that the federal government believed Fikre was dangerous.
125. Because of the delay in getting his boarding pass, Fikre’s hajj group proceeded to the security line before him. As Fikre’s co-travelers went through the security line, the organizers gathered everyone up to wait for Fikre just past the
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security line so that, once Defendants completed their invasive searches of Fikre and his property, everyone could proceed to the gate together.
126. When Fikre finally got his boarding pass to board his international flight from Chicago to Mecca, it was stamped with SSSS—the physical manifestation of Fikre’s TSDB status. When he presented himself at the security line, Defendant TSA subjected him to the same invasive screening of his person and his bags that he had gone through in Seattle. This time, his whole hajj group could see how he was being treated. And after he rejoined the group, some individuals were in tears about what they saw Defendants doing to Fikre. Others told Fikre that they had been praying for his safety.
127. Some, however, were alarmed that Fikre was in their hajj group and that they would be traveling with him. Some individuals who had spoken warmly with Fikre prior to witnessing how Defendants treated him subsequently shunned and avoided him. The tangible consequences of Fikre’s TSDB status made him an outcast in his hajj group.
128. When Fikre’s hajj group arrived at the gate and began boarding their flight, an airline gate agent scanned his boarding pass in front of others and, in Arabic, told his colleague that Fikre had been “red-flagged.” The gate agent then treated Fikre with suspicion and reacted in this manner because Defendants disseminated Fikre’s TSDB status to them. Fikre’s co-travelers, including some who knew Arabic, could tell that Defendant TSA believed Fikre was a threat and decided to subject him to more onerous processes.
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129. When Fikre arrived in Saudi Arabia and customs agents scanned his passport, he heard the agents tell each other that Fikre had been “red-flagged.” This was in front of many in his hajj group. Rather than proceed through customs as everyone else in his hajj group, Fikre was detained by Saudi customs officials for approximately four to five hours because of the TSDB status Defendants imposed on him and disseminated to Saudi Arabia.
130. To protest his detention, some members of his hajj group stayed in the area immediately past the customs checkpoint—though almost all of his co-travelers had left on a bus to their hotel.
131. When Fikre finally cleared customs and rejoined the members of his hajj group that had stayed behind, he was greeted with hugs and expressions of grave concern for his safety.
132. Fikre’s treatment at the airports in Seattle, Chicago, and Saudi Arabia on his way to Mecca disclosed to his co-travelers the stigmatizing label Defendants imposed on Fikre. His co-travelers feared Fikre and avoided him because of his status on the watchlist. And because Fikre’s co-travelers were part of his religious community, the stigma of his TSDB status spread throughout his religious community.
133. During his weeks-long hajj trip, almost every person in his group would refuse to associate or talk with Fikre in any manner. Fikre’s co-travelers did not want to serve him food or water and looked at Fikre with fear and disgust. Fikre’s watchlist status caused his co-travelers to ostracize him.
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134. During the hajj group’s return trip to the United States, Fikre and several co-travelers were subject to secondary screening. One traveler told Fikre that the extra screening that the traveler was dealing with were Fikre’s fault. The traveler blamed his travel difficulties on his association, via the hajj group, with Fikre. And Defendants watchlisting system does, in fact, target people who associate with listees like Fikre.
135. Even after entering the United States, Defendants imposed on Fikre separate and more onerous processes that further stigmatized him, Fikre overheard Defendants’ agent instructing, in accordance with Fikre’s TSDB status, a ticketing agent to make Fikre miss his scheduled connecting flight home. Because of this instruction, Fikre could not continue home with his co-travelers as his hajj group had planned. Co-travelers presumed that Defendants had detained or arrested Fikre.
136. In his community, as a result of Defendants’ decision to impose on him a TSDB status, fellow congregants have opposed him leading prayer or calling the adhan—an Islamic recitation that signals to congregants the start of prayer.
137. Some in the Muslim community believe, incorrectly, that Fikre’s removal from the No Fly List was compensation for government informant work.
138. When Fikre has tried to start conversations with fellow congregants in his religious community, people do not want to share their names with Fikre or tell Fikre what their jobs are. This is attributable to the stigma of Fikre’s watchlist status.
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United States, knowledge of his TSDB status in the community deterred customers to Fikre’s restaurant. Community members told Fikre that “your place is hot” and that the “FBI is watching.”
140. Upon information and belief, a friend working in the aerospace industry broke off communication with Fikre due to his TSDB status.
141. In 2016, Fikre traveled with his wife and 11 month old child by plane to San Diego. As they obtained their boarding passes from a ticketing agent, Fikre heard the ticketing agent tell Defendants’ agent over the phone that Fikre was traveling with two others.
142. Prior to the trip, Fikre tried to explain to his wife why it may be better for them to fly separately. Fikre feared that Defendants would treat his wife and their infant child like they treated him, and Fikre sought to spare his family the ordeal. Fikre also wanted to spare himself the humiliation of having his family see Fikre go through the onerous and disparate processes Defendants impose on him. But Fikre and his wife were newly married with a young infant, and his suggestion to travel separately from his wife was disconcerting to her and the family traveled together.
143. When Fikre’s family was screened by Defendant TSA together, Fikre’s wife and 11 month old child were searched invasively as if they were suspected terrorists, just as Fikre had been on his way to Saudi Arabia for hajj. In addition to aggressive patdowns and body searches of Fikre’s wife, Defendant TSA patted down the 11 month old baby, touching every part of the infant’s body in a manner that alarmed Fikre and his wife. Their child was distressed and crying during this search, Page 38 – SEVENTH AMENDED COMPLAINT, Civil No. 3:13-cv-00899 (BR)

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and Fikre felt horrified that his TSDB status was causing this to happen to his wife and their young baby.
144. After Fikre and his family completed this screening, they proceeded to the gate. Fikre understood that if they boarded the plane together Defendants would cause the entire family to be screened again at the gate, which would replicate the humiliation they felt when they proceeded through the security line. For this reason, Fikre sat separately from his family and ignored his infant child who sought Fikre’s attention in an effort to spare the child and his wife the humiliation of being screened at the gate in front of other passengers. It worked, and Fikre alone was invasively patted down and searched at the gate.
145. As a result of this harrowing experience, Fikre has not flown with his family and, so long as the same constitutionally defective procedures remain, Fikre will continue to be deterred from flying with his family.
146. Many of Fikre’s closest cousins, as a result of Defendants’ decision to impose on him a TSDB status, will not talk with him anymore and have ended their relationships with Fikre. The cousins fear that associating with Fikre may get them in trouble with the federal government.
147. His relationship with his older brother, who has been questioned about Fikre in accordance with Fikre’s TSDB status, has been damaged by the TSDB status Defendants assigned Fikre.
148. On June 16, 2019, the Government asserted that Fikre “will not be placed on the No Fly List in the future based on the currently available information.”
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Dkt. 130-2 at ¶ 5. But the Government has not explained what “currently available information” means. It is not clear whether that involves non-arbitrary information, or Fikre participating in innocent or even constitutionally-protected conduct. See Elhady v. Kable, 391 F. Supp. 3d 562, 581 (E.D. Va. 2019) (Government claims an authority to place individuals on watchlist for innocent and constitutionally-protected reasons). The Government has also made no an assertion to the Court that is binding in any way. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (voluntary cessation does not render a case moot when government is “free to return to his old ways”). In other words, despite the declaration, the procedural defects responsible for Fikre’s constitutional injury persist.
149. 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 addressed the procedural defects that caused Fikre’s constitutional violation in the first place.
150. Both (1) because the Government has not acknowledged that Fikre was illegally placed on the No Fly List and the TSDB, and (2) because the Government has not acknowledged that Fikre will not be returned to the No Fly List absent a new, independent reason as determined by constitutionally adequate procedures, Fikre remains stigmatized 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.
151. Until the Government both (1) acknowledges that its investigation revealed Fikre was illegaly placed on the No Fly List and the TSDB, and (2)
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acknowledges that Fikre will not be returned to the No Fly List via the same defective procedures that led to his illegal placement, Fikre’s acquaintances, business associates, and evn family members will continue to persist in shunning or avoiding him despite his renewed ability to travel.
152. The Government’s vague litigation declaration on June 16, 2019 that Fikre “will not be placed on the No Fly List in the future based on the currently available information” does not provide the necessary vindication to eliminate the stigmatizing effects of No Fly List and watchlist placement. Indeed, the declaration is expressly non-vindicating, asserting that Fikre ‘was placed on the No Fly List in accordance with applicable policies and procedures” and that he was “removed form the No Fly List upon the determination that he no longer satisfied the criteria for placement on the No Fly List.” Dkt. 130-2 at ¶ 5 (emphasis added). In other words— in a public document available on PACER—the Government continues to expressly and publicly assert that Fikre at one time properly belonged on the No Fly List, and thus at one time represented a threat of engaging in or conducting a violent act of terrorism and was operationally capable of doing so.
153. There has been no renouncement by the government of its prerogative and authority to place Fikre on the No Fly List.
Claim One Fifth Amendment Procedural Due Process Placement and Retention on the No Fly List and TSDB
(Against All Defendants) 154. The foregoing allegations are realleged and incorporated herein. 155. Defendants placed Plaintiff’s name in the Terrorist Screening Database
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and on its No Fly List subcomponent. 156. Plaintiff learned that he was placed on the federal terrorist watchlist
and No Fly List subsequent to being added to the TSDB and No Fly List. 157. Plaintiff has experienced economic, reputational, physical, and liberty
harms due to Defendants’ placement of his name on the TSDB and No Fly List. 158. Plaintiff’s harms attributable to placement of his name on the TSDB and
No Fly List include coercion to violate his religious beliefs, foreign detention and torture, inability to travel by air or home to the United States, monitoring of his electronic communications, loss of financial resources, loss of business opportunities, and divorce from his now ex-wife.
159. Defendants have disseminated Plaintiff’s status in the TSDB and his No Fly List annotation to federal agencies, state agencies, foreign governments, and private entities including airlines.
160. Plaintiff has a protected liberty interest in domestic and international travel.
161. Plaintiff also has a protected liberty interest in his reputation and in freedom from government-assigned stigmas that restrict or prevent him from engaging in activities in which he can lawfully engage and in which others not stigmatized are free to engage.
162. Plaintiff also has a protected liberty interest in being able to practice his sincerely-held religious beliefs, free of Government interference and without retribution from the Government.
163. Defendants have imposed on Plaintiff the stigmatizing label of “known or suspected terrorist.” Plaintiff has a right to be free from false government
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stigmatization as an individual who is a “known or suspected” terrorist, or who is otherwise associated with terrorist activity.
164. Defendants have failed to provide Plaintiff with meaningful notice of his TSDB or No Fly List status, the factual basis for that status, and an opportunity to contest it.
165. Defendants have failed to provide Plaintiff with an explanation for his TSDB or No Fly List status, any changes to that status, or the factual basis for those changes.
166. Defendants have failed to provide Plaintiff with a guarantee that he is no longer on the TSDB, or that he will not be re-added via the same constitutionally defective procedures to either the TSDB or the No Fly List absent new “derogatory” information about.
167. Defendants have failed to remove or expunge the factual basis for or history changes to Plaintiff’s TSDB or No Fly List status from Defendants’ records.
168. Defendants have failed to repudiate the original basis of Plaintiff’s TSDB or No Fly List status.
169. Defendants’ actions in placing and keeping Plaintiff on the FBImaintained, secret TSDB and No Fly List substantially interfered with and deprived Plaintiff of his liberty interest in international travel. Defendants’ actions in placing and keeping Plaintiff on the FBI-maintained, secret TSDB and No Fly List also injured Plaintiff’s liberty interest in his reputation by, first, stigmatizing him 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 and, second, on the basis of that stigma, depriving him of the ability to
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 44 of 50
travel by air domestically and internationally as others are permitted to do and as Plaintiff would be permitted to do absent the stigma.
170. Defendants’ actions in placing and keeping Plaintiff on the FBImaintained, secret No Fly List without informing him of such placement, of the basis for his inclusion on the No Fly List, of the means of removing his name from the No Fly List, and without providing an independent forum in which Plaintiff might secure the removal of his name from the No Fly List, all violated and are continuing to violate Plaintiff’s right to procedural due process under the Fifth Amendment. Such procedures as do exist for challenging inclusion on the No Fly List are inadequate to satisfy the notice and hearing requirements of procedural due process.
171. By failing to expunge their records, inform Plaintiff as to whether he remains on the TSDB in any form, or correct the public record regarding Plaintiffs’ years-long designation as a known or suspected terrorist on the No Fly List, Defendants have imposed and continue to impose harm.
172. By these actions, Defendants are irreparably harming plaintiff. Plaintiff has no adequate remedy at law for Defendants’ continuing unlawful conduct, and Defendants will continue to violate Plaintiff’s legal rights unless enjoined and restrained by this Court.
Claim Two Fifth Amendment Substantive Due Process
(Against All Defendants) 173. The foregoing allegations are realleged and incorporated herein. 174. Substantive due process protects Americans’ freedom from government action which infringes upon their fundamental constitutional rights. Government action which infringes upon these rights cannot be arbitrary and must be narrowly
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 45 of 50
tailored to serve a compelling government interest. 175. Defendants have placed Plaintiff on the TSDB and No Fly List despite
lacking any reasonable suspicion that Plaintiff is a known, suspected, or potential terrorist.
176. Defendants consider and rely on race, ethnicity, national origin, religious affiliation, and First Amendment protected activities as factors supporting placement on the TSDB and No Fly List. Defendants considered and relied upon one or more of these impermissible factors in placing Plaintiff on the TSDB and No Fly List.
177. Defendants lack a compelling interest in placing innocent persons, particularly those with no prior terrorism related criminal record and no probable cause for suspicion of terrorism related crimes, on the federal terrorist watchlist.
178. Defendants lack a compelling interest in the TSDB and No Fly List annotation insofar as their true purpose is to provide law enforcement with a tool to harass and intimidate American Muslims, to track such persons, and coerce American Muslims into becoming informants.
179. Defendants’ placement of Plaintiff on the watchlist has placed an undue burden on his fundamental rights to domestic and international travel, including his right as a U.S. citizen to return to the United States.
180. Defendants’ placement of Plaintiff on the watchlist has placed an undue burden on his fundamental right to be free from unreasonable searches and seizures.
181. Defendants’ placement of Plaintiff on the watchlist has placed an undue burden on his fundamental right to be free from government coercion of his religious practices.
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 46 of 50
182. Defendants’ actions in placing Plaintiff on the TSDB and No Fly List, in imposing the stigmatizing label of “known or suspected terrorists,” and widely disseminating the stigmatizing label to numerous governmental, foreign, and private partners, are arbitrary and capricious, shock the conscience, violate the decencies of civilized conduct and are so brutal and offensive that they do not comport with the traditional ideas of fair play and decency.
183. Defendants’ watchlists are also not narrowly tailored insofar as the federal terrorist watchlists are entirely and demonstrably ineffectual and obvious alternatives exist. The Defendants, for example, have never placed a person who committed a violent act of terrorism inside the United States on the No Fly List prior to the terrorist act.
184. By placing Plaintiff on the federal watchlist, Defendants have caused him actual, imminent and irreparable injury that cannot be undone through monetary remedies.
185. Plaintiff has no adequate remedy at law for defendants’ continuing unlawful conduct, and Defendants will continue to violate Plaintiff’s legal rights unless enjoined and restrained by this Court.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the following relief: 1. Declaratory Judgment. A declaratory judgment that –
a. Defendants violated Plaintiff’s due process right as a citizen under the Fifth Amendment to the United States Constitution to return to the United States when Plaintiff was expelled from the United Arab Emirates;
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 47 of 50
b. Defendants violated Plaintiff’s due process rights as a citizen under the Fifth Amendment to the United States Constitution by denying plaintiff the right to travel to, from, and over the United States;
c. Defendants violated Plaintiff’s right to procedural due process under the Fifth Amendment to the United States Constitution by placing and retaining his name of the No Fly List without notice or meaningful opportunity to contest such placement; 2. Injunction. An injunction requiring that --
a. Defendants not place Fikre on the TSDB, and remove all information regarding Fikre from the TSDB permanently.
b. Defendants, except to the extent required by exercise of standard security precautions at airports, not prevent Plaintiff from returning to, flying over, or departing from the United States;
c. Defendants, except to the extent required by exercise of standard security precautions at airports, not prevent Plaintiff from traveling internationally by air;
d. Defendants remove and expunge Plaintiff’s watchlist and No Fly List records, including any information in those records obtained as a result of intelligence, surveillance, wiretapping, interrogation without counsel, or foreign cooperation;
e. Defendants not interrogate Plaintiff once Plaintiff requests to be assisted by legal counsel;
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 48 of 50
f. Defendants not deny Plaintiff the opportunity to consult with legal counsel prior to and during any interrogation of Plaintiff;
g. Defendants not use in a criminal proceeding any information gathered from Plaintiff during an interrogation of Plaintiff at which interrogation Plaintiff was not represented by legal counsel after so requesting the assistance of legal counsel;
h. Defendants not deny Plaintiff written notice whenever his named is added to the No Fly List;
i. Defendants not deny Plaintiff written notice whenever his name is removed from the No Fly List;
j. Defendants not deny Plaintiff the specific reasons why his name was added to the No Fly List;
k. Defendants not agree to, arrange, or otherwise support Plaintiff’s arrest by any foreign power;
l. Defendants not agree to, arrange, or otherwise support Plaintiff’s imprisonment by any foreign power;
m. Defendants not agree to, arrange, or otherwise support assaults on Plaintiff by agents of a foreign power;
n. Defendants not agree to, arrange, or otherwise support battery upon Plaintiff by agents of a foreign power;
o. Defendants not agree to, arrange, or otherwise support torture of Plaintiff by agents of a foreign power.
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 49 of 50
p. 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.
3. Order: An order setting aside the Government’s determination to add
Fikre to the TSDB with a No Fly List annotation and maintain him there for
approximately five years.
4. Attorneys’ Fees: Reasonable attorneys’ fees under 28 U.S.C. § 2412.
5. Other Relief. Such other relief as the Court may deem just and proper.
DATED this 18th Day of December, 2019.
Respectfully submitted,
CAIR LEGAL DEFENSE FUND
/s/ Lena F. Masri Lena F. Masri (DC: 1000019) (pro hac vice)
lmasri@cair.com Gadeir I. Abbas (VA: 81161) (pro hac vice)*
gabbas@cair.com 453 New Jersey Ave, SE Washington, DC 20003 Phone: (202) 742-6420
*Gadeir Abbas is licensed in VA, not in D.C. Practice limited to federal matters.
LAW OFFICE OF BRANDON MAYFIELD, LLC Brandon Mayfield (OR 00824)
mayfieldbrandon@hotmail.com 14631 SW Millikan Way Beaverton, OR 97003 Phone: 503.941.5101
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Case 3:13-cv-00899-MO Document 145 Filed 12/18/19 Page 50 of 50 LAW OFFICE OF RICHARD R. WIEBE Richard R. Wiebe (CA 121156) (pro hac vice) wiebe@pacbell.net 44 Montgomery St., Suite 650 San Francisco, CA 94104 Phone: (415) 433-3200 Attorneys for Plaintiff Yonas Fikre
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 PROTECTIVE ORD,REOPENED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:13−cv−00899−MO

Fikre v. Federal Bureau of Investigation et al Assigned to: Judge Michael W. Mosman Demand: $10,000,000 Case in other court: 9th Circuit Court of Appeals, 16−36072 Cause: 28:1331 Federal Question: Bivens Act
Plaintiff

Date Filed: 05/30/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Yonas Fikre

represented by Gadeir I. Abbas The Law Office of Gadeir Abbas 1155 F Street NW Suite 1050 Washington, DC 2004 720−251−0425 Fax: 720−251−0425 Email: gadeir.abbas@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lena F. Masri CAIR Legal Defense Fund 453 New Jersey Ave SE Washington, DC 20003 202−742−6420 Fax: 202−379−3319 Email: lmasri@cair.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William J. Burgess Council on American−Islamic Relations 453 New Jersey Ave., SE Washington, DC 2003 202−646−6033 Fax: 202−488−0833 Email: wburgess@cair.com TERMINATED: 06/09/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brandon B. Mayfield Law Office of Brandon Mayfield 3950 SW 185th Ave Beaverton, OR 97007 503−941−5101 Fax: 503−941−5102 Email: mayfieldbrandon@hotmail.com ATTORNEY TO BE NOTICED

Justin Sadowsky Council on American−Islamic Relations 453 New Jersey Avenue Washington, DC 20003 202−742−6440 Email: jsadowsky@cair.com PRO HAC VICE

V. Defendant Director of the Federal Bureau of Investigation Christopher Wray, Director of the Federal Bureau of Investigation (sued in his official capacity)
Defendant Attorney General of the United States William Barr, Attorney General of the Department of Justice (sued in his official capacity)

ATTORNEY TO BE NOTICED
Thomas H. Nelson Thomas H. Nelson & Associates 20820 East Glacier View Road Zigzag, OR 97049 503−622−3262 Email: zigzagtom@gmail.com TERMINATED: 02/05/2019
represented by Brigham J. Bowen US Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514−6289 Fax: (202) 616−8470 Email: brigham.bowen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth U.S. Department of Justice Civil Division, Federal Programs Branch 950 Pennsylvania Avenue NW Room 7112 Washington, DC 20530 202−514−5108 Fax: 202−616−8470 Email: dena.m.roth@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer Department of Justice Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−616−8014 Fax: 202−616−8470 Email: samuel.m.singer@usdoj.gov TERMINATED: 10/24/2016
Scott A. Risner U.S. Deptartment of Justice Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 202−514−2395 Fax: 202−616−8470 Email: scott.risner@usdoj.gov TERMINATED: 11/12/2013
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Secretary of State Mike Pompeo, Secretary of the Department of State (sued in his official capacity)
Defendant Robert S. Mueller, III Director of the FBI (sued in his official capacity) TERMINATED: 06/27/2014
Defendant Timothy Healy Director of FBI Terrorism Screening Center (sued in his official capacity) TERMINATED: 06/27/2014
Defendant

Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Scott A. Risner (See above for address) TERMINATED: 11/12/2013
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Scott A. Risner (See above for address) TERMINATED: 11/12/2013
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Scott A. Risner (See above for address) TERMINATED: 11/12/2013
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Scott A. Risner (See above for address) TERMINATED: 11/12/2013
represented by

David Noordeloos an FBI Agent (sued in his official and individual capacity) TERMINATED: 05/22/2019
Defendant Jason Dundas an FBI Agent (sued in his individual capacity) TERMINATED: 06/27/2014 Defendant State Department TERMINATED: 05/19/2019
Defendant James B. Comey Director of the FBI (sued in his official capacity) TERMINATED: 05/19/2019
Defendant

David G. Cutler U.S. Department of Justice Civil Division, Torts Branch Constitutional and Specialized Torts Section P.O. Box 7146 Ben Franklin Station Washington, DC 20044 202−616−0674 Fax: 202−616−4314 Email: david.g.cutler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Scott A. Risner (See above for address) TERMINATED: 11/12/2013
represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED

Director of the Terrorist Screening Center Charles Kable, Director of the Terrorist Screening Center (sued in his official capacity);
Defendant FBI Agent John Doe I an FBI Agent (sued in his individual capacity) TERMINATED: 11/13/2014 also known as Jason Dundas Defendant John/Jane Does II−XX agents of the United States (sued in their individual capacities) TERMINATED: 05/19/2019
Defendant Director of the National Security Agency Paul Nakasone, Director of the National Security Agency (sued in his official capacity);
Defendant National Security Agency TERMINATED: 12/18/2019
Defendant

represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED
represented by Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016

John Doe 1 an FBI Agent (sued in his official and individual capacities) TERMINATED: 05/19/2019 also known as Jason Dundas
Defendant Director of National Intelligence Joseph Maguire, Acting Director of National Intelligence (sued in his official capacity);
Defendant United States of America TERMINATED: 05/19/2019
Defendant Secretary of the Department of Homeland Security Chad Wolf, Acting Secretary of the Department of Homeland Security (sued in his official capacity) Defendant Administrator of the Transportation Security Administration David Pekoske, Administrator of the Transportation Security Administration (sued in his official capacity)

represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED
represented by Dena M. Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel M. Singer (See above for address) TERMINATED: 10/24/2016
Brigham J. Bowen (See above for address) ATTORNEY TO BE NOTICED
represented by Dena M. Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Dena M. Roth (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/30/2013

# Docket Text
1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−3303424 Jury Trial Requested: Yes. Filed by Yonas Fikre against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Proposed Summons, # 7 Proposed Summons, # 8 Proposed Summons, # 9 Proposed Summons). (Nelson, Thomas) (Entered: 05/30/2013)

05/31/2013 05/31/2013
05/31/2013 06/03/2013 06/04/2013 06/12/2013 06/12/2013 06/17/2013 06/17/2013 07/29/2013
07/29/2013 07/30/2013 08/21/2013 08/22/2013 09/11/2013 09/12/2013

2 Summons Issued Electronically as to All Defendants. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. (sss) (Entered: 05/31/2013)
3 Notice of Case Assignment to Magistrate Judge Paul Papak and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 9/30/2013. Joint Alternate Dispute Resolution Report is due by 10/28/2013. Pretrial Order is due by 10/28/2013. Ordered by Magistrate Judge Paul Papak. (sss) (Entered: 05/31/2013)
4 Motion for Leave to Appear Pro Hac Vice for Attorney Gadeir Abbas . Filing fee in the amount of $100 collected; Receipt No.: 52631. Filed by Yonas Fikre. (Nelson, Thomas) Modified to add correct receipt number on 6/7/2013 (eo). (Entered: 05/31/2013)
5 Motion for Refund of Duplicate Filing Fee. Filed by All Plaintiffs. (Attachments: # 1 Attachment Acknowledge and Notice of Receipt of Payment) (Nelson, Thomas) (Entered: 06/03/2013)
6 Order Granting Application for Special Admission Pro Hac Vice of Gadeir I. Abbas for Yonas Fikre. Application Fee in amount of $100 collected. Receipt No. 52631 issued. Signed on 6/4/2013 by Magistrate Judge Paul Papak. (ecp) Modified to correct receipt number on 6/7/2013 (eo). (Entered: 06/04/2013)
7 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Paul Papak to Judge Anna J. Brown. (eo) (Entered: 06/12/2013)
8 Clerk's Notice of Pay.gov Refund regarding Agency Tracking ID: 0979−3302894. The request has been granted and the amount of $400.00 will be refunded to Thomas Nelson Related Doc 5 Motion − Miscellaneous. (ljp) (Entered: 06/12/2013)
9 Notice of Filing of First Amended Complaint Filed by Yonas Fikre (Nelson, Thomas) (Entered: 06/17/2013)
10 First Amended Complaint . Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 06/17/2013)
11 Notice of Appearance of Scott A. Risner appearing on behalf of Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department Filed by on behalf of Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department (Risner, Scott) (Entered: 07/29/2013)
12 Unopposed Motion for Extension of Time to Answer Amended Complaint 10 . Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 07/29/2013)
13 ORDER: Granting Motion for Extension of Time to Answer 12 . Answer or responsive pleading is due 8/22/2013. (bb) (Entered: 07/30/2013)
14 Consent Motion for Extension of Time to Answer Amended Complaint 10 . Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 08/21/2013)
15 ORDER: Granting Motion for Extension of Time to Answer 14 . Answer or responsive pleading is now due 9/20/2013. (bb) (Entered: 08/22/2013)
16 Joint Motion for Extension of Time to Answer Amended Complaint 10 . Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 09/11/2013)
17 ORDER: Granting Motion for Extension of Time to Answer 16 . Answer or responsive pleading is due 10/21/2013. (bb) (Entered: 09/12/2013)

10/15/2013 10/18/2013 11/01/2013
11/04/2013 11/04/2013 11/12/2013 11/12/2013 11/14/2013 11/26/2013 12/09/2013 12/16/2013 12/18/2013 12/18/2013 01/10/2014

18 Consent Motion for Stay of Deadline to Respond to Complaint in Light of Lapse of Appropriations. Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Attachments: # 1 Proposed Order) (Risner, Scott) (Entered: 10/15/2013)
19 ORDER by Judge Anna J. Brown. Granting as modified Official−Capacity Defendants' Consent Motion for Stay 18 of Deadline to Respond to Complaint in Light of Lapse of Appropriations. Official−Capacity Defendants' shall file their answer or responsive pleading to the First Amended Complaint no later than 11/4/2013. (bb) (Entered: 10/18/2013)
20 Notice of Appearance of Brigham J. Bowen appearing on behalf of Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department Filed by on behalf of Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department (Bowen, Brigham) (Main Document replaced with corrected PDF on 11/1/2013) (eo). (Entered: 11/01/2013)
21 Motion to Dismiss for Failure to State a Claim , Motion to Dismiss for Lack of Jurisdiction . Oral Argument requested. Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Risner, Scott) (Entered: 11/04/2013)
22 Memorandum in Support . Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Related document(s): Motion to Dismiss for Failure to State a Claim,, Motion to Dismiss/Lack of Jurisdiction, 21 .) (Risner, Scott) (Entered: 11/04/2013)
23 Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 21 . Filed by Yonas Fikre. (Nelson, Thomas) (Entered: 11/12/2013)
24 Notice of Attorney Withdrawal: Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department (Risner, Scott) (Entered: 11/12/2013)
25 ORDER: Granting Plaintiff's Unopposed Motion 23 to Extend Deadline to Respond to Defendants' Motion to Dismiss 21 . Plaintiff's Response to official capacity Defendants' Motion to Dismiss 21 is due 12/9/2013. Defendants' Reply is due 12/27/2013. (bb) (Entered: 11/14/2013)
26 Notice of Appearance of Brandon B. Mayfield appearing on behalf of Yonas Fikre Filed by on behalf of Yonas Fikre (Mayfield, Brandon) (Entered: 11/26/2013)
27 Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 21 Oral Argument requested. Filed by Yonas Fikre. (Attachments: # 1 Exhibit 1− Order Dismissing Indictment, # 2 Exhibit 2 − DHS TRIP Redress letter, # 3 Exhibit 3 − Declaration of Thomas H. Nelson, # 4 Exhibit 4 − Notice of Intention to Use FISA Information) (Nelson, Thomas) (Entered: 12/09/2013)
28 Unopposed Motion for Extension of Time to File a Response/Reply to Opposition to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 21 . Filed by Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Bowen, Brigham) (Entered: 12/16/2013)
29 ORDER by Judge Anna J. Brown. Granting Unopposed Motion for Extension of Time to File Reply 28 to Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction 21 . Reply is now due 1/10/2014. (bb) (Entered: 12/18/2013)
30 Scheduling Order by Judge Anna J. Brown. Oral Argument on Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction 21 is SET for 2/26/2014 at 09:30 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 12/18/2013)
31 Reply to Opposition to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 21 Oral Argument requested. Filed by Federal Bureau

01/21/2014 03/04/2014 03/14/2014
04/22/2014
05/29/2014
06/27/2014 07/21/2014 07/21/2014 08/08/2014 08/08/2014 08/20/2014 08/21/2014

of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, State Department. (Bowen, Brigham) (Entered: 01/10/2014)
32 Order to Judge Anna J. Brown. Due to a conflict in the Court's schedule, the Oral Argument on Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction 21 set for 02/26/2014 is VACATED and is RESET for 3/14/2014 at 09:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 01/21/2014)
33 Notice of Supplemental Authority . Filed by All Plaintiffs. (Related document(s): Memorandum in Opposition, 27 .) (Attachments: # 1 Exhibit DHS Initial Decision, # 2 Exhibit Request for DHS Clarification and Stay) (Nelson, Thomas) Modified text on 3/4/2014 (sss). (Entered: 03/04/2014)
34 MINUTES of Proceedings: Oral Argument on Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction 21 . Motion is taken under advisement as of 3/14/2014. Order to issue. Thomas Nelson, Brandon Mayfield present as counsel for plaintiff(s). Brigham Bowen present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 03/14/2014)
35 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on March 14, 2014 before Judge Anna J. Brown, Court Reporter Amanda M. LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/2/2014. Redaction Request due 5/16/2014. Redacted Transcript Deadline set for 5/27/2014. Release of Transcript Restriction set for 7/24/2014. (LeGore, Amanda) (Entered: 04/22/2014)
36 Opinion and Order: The Court GRANTS the Official Capacity Defendants Motion 21 to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; DISMISSES with prejudice Claim One; DISMISSES without prejudice Claims Two, Five, and Six with leave to file a Second Amended Complaint consistent with this Opinion and Order no later than June 27, 2014; and directs these Defendants to file their responsive pleading to the Second Amended Complaint no later than July 25, 2014. Signed on 05/29/2014 by Judge Anna J. Brown. See attached 30 page Opinion and Order for full text. (bb) (Entered: 05/29/2014)
37 Second Amended Complaint . Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 06/27/2014)
38 Unopposed Motion for Extension of Time to Answer . Filed by Eric Holder, Christopher M. Piehota, State Department, Federal Bureau of Investigation, James B. Comey, John Kerry. (Bowen, Brigham) (Entered: 07/21/2014)
39 ORDER: Granting Unopposed Motion for Extension of Time to Answer 38 . Answer or responsive pleading is now due 8/8/2014. (bb) (Entered: 07/21/2014)
40 Motion to Dismiss for Failure to State a Claim , Motion to Dismiss for Lack of Jurisdiction . Oral Argument requested. Filed by Eric Holder, Christopher M. Piehota, State Department, Federal Bureau of Investigation, James B. Comey, John Kerry. (Bowen, Brigham) (Entered: 08/08/2014)
41 Memorandum in Support . Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, Christopher M. Piehota, State Department. (Related document(s): Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction,, 40 .) (Bowen, Brigham) (Entered: 08/08/2014)
42 Unopposed Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 40 . Filed by Yonas Fikre. (Nelson, Thomas) (Entered: 08/20/2014)
43 ORDER: The Court GRANTS Plaintiff's Unopposed Motion (#42) for Extension of Time. Plaintiff's response to Defendants' Motion (#40) to Dismiss is now due 9/19/14, and Defendants' reply is due 10/6/14. Ordered by Judge Anna J. Brown. (pvh) (Entered: 08/21/2014)

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44 Second Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 40 . Filed by Yonas Fikre. (Nelson, Thomas) (Entered: 09/12/2014)
45 ORDER by Judge Anna J. Brown. Granting Plaintiff's Second Unopposed Motion for Extension of Time 44 to File Response to Motion to Dismiss 40 . Response is due by 9/26/2014. Reply is due by 10/14/2014. (bb) (Entered: 09/16/2014)
46 Response in Opposition to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction 40 Oral Argument requested. Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 09/26/2014)
47 Motion for Leave to Appear Pro Hac Vice for Attorney William J. Burgess . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−3852903. Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 10/01/2014)
48 Order Granting Application for Special Admission Pro Hac Vice of William J. Burgess for Yonas Fikre. Application Fee in amount of $100 collected. Receipt No. 0979−3852903 issued. Signed on 10/2/2014 by Judge Anna J. Brown. (ecp) (Entered: 10/02/2014)
49 Notification of CM/ECF Account: Attorney William J. Burgess (appearing Pro Hac Vice). Login ID: wjburgess. Complete your account setup by following the instructions available on the Court's website. (ecp) (Entered: 10/02/2014)
50 MINUTES of Proceedings: On October 3, 2014, the Court conferred briefly with counsel concerning Plaintiff's stated intention to seek leave to file a Third Amended Complaint notwithstanding that Defendants' Motion 40 to Dismiss (against Plaintiff's Second Amended Complaint) is pending Defendants' Reply and the Court's consideration. Although the Court is willing to deem the Motion 40 withdrawn and to grant Plaintiff leave to file the Third Amended Complaint, Defendants' counsel requested time to consider the matter more fully. Accordingly, no later than October 14, 2014, Defendants shall file either (a) their Reply in further support of the Motion, in which case the Court will consider the merits of the Motion and any Motion by Plaintiff for leave to file a Third Amended Complaint, or (b) Defendants' consent that Plaintiff file his Third Amended Complaint and Defendants' withdrawal of their Motion 40 with leave to refile similar arguments in response to the Third Amended Complaint. Thomas Nelson present as counsel for plaintiff(s). Brigham Bowman present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 10/03/2014)
51 Unopposed Motion for Extension of Time to Reply or Provide Consent to the Filing of Proposed Third Amended Complaint. Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, Christopher M. Piehota, State Department. (Bowen, Brigham) (Entered: 10/09/2014)
52 ORDER by Judge Anna J. Brown. Granting Unopposed Motion to Extend Deadline to Reply or Respond Concerning Proposed Amendment of Complaint 51 . No later than 11/4/2014, Defendants shall file either (a) their Reply in further support of the Motion, in which case the Court will consider the merits of the Motion and any Motion by Plaintiff for leave to file a Third Amended Complaint, or (b) Defendants' consent that Plaintiff file his Third Amended Complaint and Defendants' withdrawal of their Motion 40 with leave to refile similar arguments in response to the Third Amended Complaint. (bb) (Entered: 10/10/2014)
53 Notice Concerning Proposed Amendment of Plaintiff's Complaint Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, Christopher M. Piehota, State Department (Bowen, Brigham) (Entered: 11/04/2014)
54 Order by Judge Anna J. Brown. The Court has reviewed Defendants' Notice 53 and, in light thereof, GRANTS Plaintiff leave to file his Third Amended Complaint no later than 11/14/14. In the exercise of its case−management discretion, the Court also GRANTS Defendants until 1/14/15 to file their Answer or other responsive pleadings to the Third Amended Complaint. Accordingly, it appears to the Court that the filing of such Third Amended Complaint will render moot the Motion 40 of some Defendants to dismiss Plaintiff's Second Amended Complaint and, unless the Court receives by 11/14/14 a justification to maintain Motion #40 on the docket, the Court will strike Motion #40 as moot as of that date. (bb) (Entered: 11/05/2014)

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55 Third Amended Complaint . Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 11/13/2014)
56 Unopposed Motion for Stay , or in the Alternative, Extension of Time to Answer or Otherwise Respond. Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department. (Bowen, Brigham) (Entered: 01/13/2015)
57 ORDER by Judge Anna J. Brown. The Court GRANTS in part and DENIES in part the Official−Capacity Defendants' Unopposed Motion 56 for Stay, or in the Alternative, Extension of Time. The Court agrees it is appropriate for the Official−Capacity Defendants to reconsider Plaintiff's DHS TRIP inquiry under new procedures, but the Court finds a stay is unnecessary to permit Defendants to do so. In addition, the Court notes this case is now over 18 months old and has not yet proceeded beyond the pleading stage. Accordingly, no later than March 9, 2015, Defendants shall complete a substantive reconsideration of Plaintiff's DHS TRIP inquiry consistent with Defendants' newly−created procedures and shall notify Plaintiff of the result of Defendants' reconsideration. No later than March 16, 2015, the parties shall submit a single, Joint Status Report in which they present their recommendations for the next steps in this case, including whether it is appropriate for Plaintiff to be permitted to file a Fourth Amended Complaint that takes into account Defendants' newly−created procedures before Defendants file their responsive pleading to Plaintiff's operative Complaint. The Joint Status Report shall specify an efficient schedule to advance this action past the initial pleadings and to make progress toward a final resolution without further delay. The Court will review the Joint Status Report upon its receipt and set a final case−management schedule shortly thereafter. (bb) (Entered: 01/14/2015)
58 Joint Status Report . Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department. (Bowen, Brigham) (Entered: 03/16/2015)
59 Scheduling Order by Judge Anna J. Brown. Based on the Joint Status Report 58 the following deadlines are set: Plaintiff's Amended Complaint is due 04/01/2015. Defendants' response to Amended Complaint is due 5/15/2015. If defendants' response is an answer, a jointly proposed case−management schedule is due 5/22/2015. If defendants' response to the Amended Complaint is a Motion to Dismiss, then Plaintiff's opposition is due 06/15/2015. Defendants' reply is due 06/29/2015. Oral Argument is SET for 07/30/2015 at 9:00 am in Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 03/17/2015)
60 Fourth Amended Complaint . Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 04/01/2015)
61 Order by Judge Anna J. Brown. Upon review of Plaintiffs Fourth Amended Complaint 60 , the Court notes Plaintiffs procedural due−process claim (Claim Six) still does not allege the denial of any specific protected liberty or property interest. Plaintiffs previous failure in his First Amended Complaint to plead and specifically to identify in his procedural due−process claim the protected liberty or property interest that he contends has been denied was the basis for the Courts dismissal of that claim without prejudice and with leave to amend. See Opin. and Order 36 at 28−29. Notwithstanding any other challenges Defendants may assert against Plaintiff's Fourth Amended Complaint and in the interest of advancing this almost two−year−old litigation that has not yet moved beyond the pleading stage, the Court exercises its discretion and hereby GRANTS to Plaintiff leave to file a Corrected Fourth Amended Complaint to address this issue if Plaintiff chooses to do so no later than April 8, 2015. The Court does not intend to grant to Plaintiff any further leave to amend his procedural due−process claim. (bb) (Entered: 04/02/2015)
62 Fourth Amended Complaint (corrected). Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 04/06/2015)
63 Notice re: Revisions to DHS TRIP Procedures Filed by James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department (Bowen, Brigham) (Entered: 04/13/2015)

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64 Scheduling Order by Judge Anna J. Brown. Oral Argument set for 07/30/2015 is VACATED and is RESET for 8/24/2015 at 09:30 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 04/28/2015)
65 Notice of Appearance of Samuel M. Singer appearing on behalf of All Defendants Filed by on behalf of All Defendants (Singer, Samuel) (Entered: 05/07/2015)
66 Unopposed Motion for Extension of Time to Answer − Motion to Modify Briefing Schedule. Filed by Michael S. Rogers, State Department, Federal Bureau of Investigation, Eric Holder, Christopher M. Piehota, National Security Agency, James B. Comey, John Kerry. (Bowen, Brigham) (Entered: 05/13/2015)
67 Unopposed Motion to File Excess Pages . Filed by James B. Comey, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department. (Bowen, Brigham) (Entered: 05/13/2015)
68 ORDER: Granting Defendant's Unopposed Motion 66 to Modify Briefing Schedule and Granting Unopposed Motion to File Brief in Excess of 35 Pages 67 .Defendants' response to Fourth Amended Complaint is due 5/22/2015. If defendants' response is an answer, a jointly proposed case−management schedule is due 5/22/2015. If defendants' response to the Amended Complaint is a Motion to Dismiss, then Plaintiff's opposition is due 07/6/2015. Defendants' reply is due 07/24/2015. Oral Argument is SET for 08/24/2015 at 9:00 am in Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 05/14/2015)
69 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. Oral Argument requested. Filed by Michael S. Rogers, State Department, Federal Bureau of Investigation, Eric Holder, Christopher M. Piehota, National Security Agency, James B. Comey, John Kerry, Robert S. Mueller, III. (Attachments: # 1 Exhibit 1 − Patriot Act Section 223) (Bowen, Brigham) (Entered: 05/22/2015)
70 Consent Motion to File Excess Pages . Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 06/24/2015)
71 ORDER by Judge Anna J. Brown. Granting Motion to File Excess Pages 70 .Plaintiff's responsive memorandum shall be no more than 60 pages. (bb) (Entered: 06/26/2015)
72 Memorandum in Opposition to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 69 Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit DHS Letter, Feb. 12, 2015, # 2 Exhibit DHS Decision and Order, March 9, 2015) (Nelson, Thomas) (Entered: 07/06/2015)
73 Reply in response to Plaintiff's Opposition to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 69 Oral Argument requested. Filed by James B. Comey, Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department. (Singer, Samuel) (Entered: 07/24/2015)
74 Notice re Motion to Dismiss, 69 Notice of Case Relevant to Oral Argument on August 24, 2015 Filed by Yonas Fikre (Related document(s): Motion to Dismiss, 69 .) (Attachments: # 1 Attachment Opinion in Mohamed v. Holder, 1:11−cv−00050−AJT (July 16, 2015)) (Nelson, Thomas) (Entered: 08/19/2015)
75 MINUTES of Proceedings: Oral Argument on Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 69 . Matter under advisement. Order to issue. Thomas Nelson, Brandon Mayfield present as counsel for plaintiff(s). Brigham Bowen, Samuel Singer present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 08/25/2015)
76 Notice of Appearance of David G. Cutler appearing on behalf of David Noordeloos Filed by on behalf of David Noordeloos (Cutler, David) (Entered: 09/21/2015)
77 Motion to Contest Service and Dismiss Claims Against Defendant David Noordeloos. Filed by David Noordeloos. (Cutler, David) (Entered: 09/21/2015)
78 Memorandum in Support of Motion to Contest Service and Dismiss Claims Against Defendant David Noordeloos. Filed by David Noordeloos. (Related document(s): Motion − Miscellaneous 77 .) (Cutler, David) (Entered: 09/21/2015)

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02/02/2016

79 Response in Opposition to Motion to Contest Service and Dismiss Claims Against Defendant David Noordeloos 77 Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1, Declaration of Thomas H. Nelson) (Nelson, Thomas) (Entered: 10/05/2015)
80 Reply in Support of to Motion to Contest Service and Dismiss Claims Against Defendant David Noordeloos 77 . Filed by David Noordeloos. (Attachments: # 1 Exhibit Transcript (Excerpt)) (Cutler, David) (Entered: 10/16/2015)
81 Opinion and Order: The Court GRANTS in part and DENIES in part the Official Capacity Defendants' Motion to Dismiss 69 as stated in the attached 49 page Opinion and Order. Plaintiff has leave to amend claim sixteen only as to injunctive relief and claim seventeen no later than 11/27/2015. Signed on 11/4/2015 by Judge Anna J. Brown. (bb) (Entered: 11/04/2015)
82 Order by Judge Anna J. Brown. In the Court's Opinion and Order (#81) the Court set the Amended Complaint due date of 11/27/2015 which is a Court holiday. The Court hereby gives Plaintiff leave to amend claim sixteen only as to injunctive relief and claim seventeen no later than 11/30/2015. (bb) (Entered: 11/04/2015)
83 Opinion and Order: The Court GRANTS Agent Noordeloos's Limited Appearance 77 to Contest Service and DISMISSES this matter as to Agent Noordeloos without prejudice. Signed on 11/4/2015 by Judge Anna J. Brown. See attached 14 page Opinion and Order for full text. (bb) (Entered: 11/04/2015)
84 Motion for Relief regarding Opinion and Order 83 . Filed by Yonas Fikre. (Mayfield, Brandon) Modified to correct text and link to Order on 11/30/2015 (sss). (Entered: 11/25/2015)
85 Declaration of Brandon Mayfield. Filed by Yonas Fikre. (Related document(s): Motion − Miscellaneous 84 .) (Mayfield, Brandon) (Entered: 11/25/2015)
86 Memorandum in Support of Motion. Filed by Yonas Fikre. (Related document(s): Motion − Miscellaneous 84 .) (Mayfield, Brandon) (Entered: 11/25/2015)
87 Fifth Amended Complaint . Filed by Yonas Fikre against All Defendants. (Nelson, Thomas) (Entered: 11/29/2015)
88 Consent Motion for Extension of Time to Answer Rule 60(b) Motion for Relief and Fifth Amended Complaint 87 . Filed by James Clapper, Michael S. Rogers, State Department, Federal Bureau of Investigation, United States of America, Timothy Healy, Eric Holder, Christopher M. Piehota, National Security Agency, James B. Comey, John Kerry, Robert S. Mueller, III. (Singer, Samuel) (Entered: 12/08/2015)
89 ORDER by Judge Anna J. Brown. Granting Defendants' Unopposed Motion to Modify Briefing Schedule 88 . Answer to Fifth Amended Complaint 87 and Response to Motion for Relief 84 are due 1/21/2016. (bb) (Entered: 12/09/2015)
90 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. Oral Argument requested. Filed by James Clapper, Michael S. Rogers, State Department, Federal Bureau of Investigation, United States of America, Eric Holder, Christopher M. Piehota, National Security Agency, James B. Comey, John Kerry. (Bowen, Brigham) (Entered: 01/21/2016)
91 Unopposed Motion for Stay (Partial) of Due Process Claims, in the Alternative to Dismissal. Oral Argument requested. Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Bowen, Brigham) (Entered: 01/21/2016)
92 Memorandum in Opposition to Motion for Reconsideration 84 Oral Argument requested. Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Bowen, Brigham) (Entered: 01/21/2016)
93 Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 90 . Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 02/02/2016)

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94 ORDER by Judge Anna J. Brown. The Court GRANTS Plaintiff's Unopposed Motion 93 for Extension of Time. Plaintiff's responses to Official Capacity Defendants' Motion 90 to Dismiss Plaintiff's Fifth Amended Complaint and Official Capacity Defendants' Unopposed Motion 91 , in the Alternative [to the Motion to Dismiss if denied], to Stay Plaintiff's Due Process Claims are due 2/11/16 and Official Capacity Defendants' replies are due 3/3/16. (bb) (Entered: 02/02/2016)
95 Response in Opposition to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 90 Oral Argument requested. Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 02/11/2016)
96 Reply to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 90 Oral Argument requested. Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Bowen, Brigham) (Entered: 03/03/2016)
97 ORDER by Judge Anna J. Brown. The Court has reviewed Plaintiff's Motion 84 for Relief FRCP 60(B), which, although docketed as pertaining to the Court's Opinion and Order 83 issued November 4, 2015, appears, in fact, to challenge the Court's Opinion and Order 81 issued on that same day. The Court GRANTS Plaintiff's Motion to the extent that the Court reconsiders its Opinion and Order 81 . Having reconsidered Plaintiff's arguments, however, the Court adheres to its conclusion that Plaintiff lacks standing to seek declaratory relief on Plaintiff's Claim Fifteen brought under the Fourth Amendment to the United States Constitution. Accordingly, the Court declines to alter or to amend its November 4, 2015, Opinion and Order 81 . (bb) (Entered: 03/16/2016)
98 Notice Regarding Plaintiff's Status Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America (Bowen, Brigham) (Entered: 05/09/2016)
99 Order by Judge Anna J. Brown. In light of Defendants' Notice 98 Regarding Plaintiff's Status in which Defendants advise the Court that Plaintiff has been removed from the No−Fly List, the Court directs the parties to confer and to file no later than May 16, 2016, a single, joint status report in which the parties set out their positions regarding the effect that Plaintiff's removal from the No−Fly List has on Defendants' pending Motion 90 to Dismiss Plaintiff's Fifth Amended Complaint and Plaintiff's Unopposed Motion 91 to Stay Due Process Claims and, in particular, that specifies which portions of the pending Motions now are moot and which portions are unaffected by the Notice. (bb) (Entered: 05/09/2016)
100 Joint Status Report . Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Bowen, Brigham) (Entered: 05/16/2016)
101 Order by Judge Anna J. Brown. The Court concludes additional oral argument on Motion 90 is unnecessary so long as the parties have a fair opportunity to file supplemental briefs. No later than 5/27/2016, the parties must file a Stipulation confirming their agreement(s). If the parties reach any additional agreements, they should be included in the Stipulation. No later than 6/23/2016, the parties must file simultaneous supplemental memoranda(not to exceed 20 pages of substance) that (a) state and support their positions as to the effect of Plaintiffs Notice 98 and this Courts decisions to date in Latif on the efficacy of Plaintiffs Fifth Amended Complaint in light of the Motion 90 to Dismiss it, and (b) summarize concisely, with references to the existing briefing on Motion #90, all of their arguments in support or opposition thereof. The Court will then take Motion 90 under advisement on 6/23/2016. With respect to Plaintiff's Unopposed Motion 91 to Stay Due Process Claims, the Court proposes to deny that Motion as premature with leave to renew in the context of a proposed case−management schedule to be set after the Court resolves Motion 90 to Dismiss. If the parties do not jointly agree with this approach, they must file no later than 5/27/2016, a joint statement expressing the reasons for their disagreement. See attached. (bb) (Entered: 05/20/2016)

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102 Joint Stipulation Regarding the Effect of Plaintiff's Removal from the No Fly List, re Order 101 by James Clapper, James B. Comey, Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, Robert S. Mueller, III, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Singer, Samuel) Modified text on 5/31/2016 (sss). (Entered: 05/27/2016)
103 Response in Opposition to Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim 90 . Filed by All Plaintiffs. (Nelson, Thomas) (Entered: 06/23/2016)
104 Supplement : Memorandum Required by Court Order. Filed by James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, State Department, United States of America. (Related document(s): Order,,,,, 101 .) (Bowen, Brigham) (Entered: 06/23/2016)
105 Opinion and Order: The Court GRANTS Official Capacity Defendants Motion 90 to Dismiss and DISMISSES with prejudice Plaintiffs Fifth Amended Complaint as to Plaintiffs claims against Official Capacity Defendants. The Court also DENIES as moot Official Capacity Defendants Unopposed Motion 91 to Stay Plaintiffs Due Process Claims. After more than three years of litigation the record still reflects none of Individual Capacity Defendants identified in Plaintiffs FAC have been served. Accordingly, pursuant to Federal Rule of Civil Procedure 4(m), the Court directs Plaintiff to show cause in writing no later than October 14, 2016, why this action should not be dismissed as to Individual Capacity Defendants. Signed on 09/28/2016 by Judge Anna J. Brown. See attached 47 page Opinion and Order. (bb) (Entered: 09/28/2016)
106 Notice of No Objection to Dismissal of Individual Capacity Claims. Filed by Yonas Fikre (Mayfield, Brandon) Modified to match filing on 10/12/2016 (sss). (Entered: 10/06/2016)
107 Order. On October 6, 2016, Plaintiff filed a Notice 106 in which he stated he does not object to this Court dismissing this action as to the Individual Capacity Defendants. Accordingly, on this record the Court DISMISSES this action without prejudice as to Individual Capacity Defendants pursuant to Federal Rule of Civil Procedure 4(m). Signed on 10/24/2016 by Judge Anna J. Brown. See attached Order. (bb) (Entered: 10/24/2016)
108 Judgment. Based on the Court's Opinion and Order 105 issued September 28, 2016, the Court DISMISSES this action with prejudice as to Defendants Federal Bureau of Investigation (FBI), Loretta E. Lynch, Department of State, John Kerry, James B. Corney, Christopher M. Piehota, Michael S. Rogers, National Security Agency (NSA), United States of America, and James Clapper. Based on the Court's Order issued October 24, 2016, the Court DISMISSES this action without prejudice as to Defendants David Noordeloos; John Doe I, also known as Jason Dundas; and John/Jane Does II−XX. Signed on 10/24/2016 by Judge Anna J. Brown. See attached Judgment. (bb) (Entered: 10/24/2016)
109 Notice of Appeal to the 9th Circuit from Judgment,, 108 Filing fee $505 collected; Agency Tracking ID 0979−4853463: . Filed by Yonas Fikre. (Mayfield, Brandon) (Entered: 12/23/2016)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal # 109 . Case Appealed to 9th Circuit Court of Appeals. Case Number 16−36072 assigned. (eo) (Entered: 12/28/2016)
110 Order of USCA for the 9th Circuit, USCA # 16−36072, re Notice of Appeal 109 . Court records reflect that the appellant has failed to file an opening brief. Accordingly, the appeal is dismissed for failure to prosecute. Ninth Cir. Rule 42−1 and Ninth Cir. Rule 31−2.3. A copy of this order shall serve as and for the mandate of this court. (jtj) (Entered: 04/18/2017)

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111 Transcript Designation and Order Form for the hearing held on 3/14/14, 10/03/14, 8/24/15 before Judge Brown. Court Reporter: Amanda Legore. Tape Number: N/A. regarding Notice of Appeal 109 . Filed by Yonas Fikre. Transcript is due by 6/15/2017. (Mayfield, Brandon) (Entered: 05/16/2017)
112 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on August 24, 2015 before Judge Anna J. Brown, Court Reporter Amanda LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 6/15/2017. Redaction Request due 6/29/2017. Redacted Transcript Deadline set for 7/10/2017. Release of Transcript Restriction set for 9/6/2017. (LeGore, Amanda) (Entered: 06/08/2017)
113 Order from USCA for the 9th Circuit, USCA # 16−36072 re Notice of Appeal 109 . Defendants/Appellees' unopposed motion (dkt. # 51) is GRANTED. Any petition for panel rehearing or rehearing en banc shall be filed on or before December 5, 2018. (jtj) (Entered: 10/29/2018)
114 Order from USCA for the 9th Circuit, USCA # 16−36072 re Notice of Appeal 109 . The panel has unanimously voted to deny Plaintiff−Appellant Yonas Fikre's petition for panel rehearing and petition for rehearing en banc. The full court has been advised of Plaintiff−Appellant's petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED. (jtj) (Entered: 01/03/2019)
115 MANDATE of USCA for the 9th Circuit, USCA # 16−36072, re Notice of Appeal 109 . The district court's dismissal of plaintiff's due process claims is reversed and remanded for further proceedings, and the dismissal of plaintiff's Fourth Amendment claims with prejudice is affirmed. Case reopened on 1/10/2019. (Attachments: # 1 9/20/2018 Opinion, # 2 9/20/2018 Memorandum) (jtj) Modified docket text to reflect correct date of reopening on 1/10/2019 (jtj). (Entered: 01/10/2019)
116 Notice of Appearance of Dena M. Roth appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Roth, Dena) (Entered: 01/11/2019)
117 Scheduling Order by Judge Anna J. Brown. In light of the remand of this matter to this Court for additional consideration of Plaintiff's due−process claims, the Court directs the parties to confer as soon as practical (and preferably in real−time discussions among trial counsel) regarding case−management matters and, in any event, to file no later than February 22, 2019, a single, joint case−management proposal setting out jointly (or disputed) proposed deadlines for all stages of litigation necessary to resolve the remanded due−process claims in the "just, speedy, and inexpensive" manner required by Federal Rule of Civil Procedure 1. (jy) (Entered: 02/01/2019)
118 Motion to Withdraw or Substitute an Attorney . Filed by Yonas Fikre. (Nelson, Thomas) (Entered: 02/04/2019)
119 ORDER: Granting Motion to Withdraw an Attorney 118 . Thomas H. Nelson is no longer counsel of record. Ordered by Judge Anna J. Brown. (jy) (Entered: 02/05/2019)
120 Motion for Leave to Appear Pro Hac Vice for Attorney Lena Masri . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979−5740713. Filed by Yonas Fikre. (Attachments: # 1 Certificate of Service) (Mayfield, Brandon) (Entered: 02/15/2019)
121 ORDER: Granting Application for Special Admission Pro Hac Vice of Lena F. Masri for Yonas Fikre. Application Fee in amount of $300 collected. Receipt No. 0979−5740713 issued. Signed on 2/21/2019 by Judge Anna J. Brown. (ecp) (Entered: 02/21/2019)
122 Notification of CM/ECF Account for Lena F. Masri (Pro Hac Vice admission). Your login is: lfmasri. Go to the CM/ECF login page to set your password. (ecp) (Entered: 02/21/2019)
123 Proposed Joint Case Management Schedule , noting disagreements. Filed by Yonas Fikre. (Masri, Lena) (Entered: 02/22/2019)

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124 Scheduling Order by Judge Anna J. Brown. The Court has reviewed the parties' Joint Case Management Proposal (# 123 ) and, in the exercise of its case management discretion, directs the parties to proceed as follows: Plaintiff's anticipated motion for leave to amend his complaint is due no later than March 15, 2019. Defendants' response to that motion is due no later than March 29, 2019. Plaintiff's reply in support of his Rule 15 motion is due no later than April 5, 2019. The Court will endeavor to rule on Plaintiff's Rule 15 motion on an expedited basis and Plaintiff should be prepared to file any amended complaint consistent with the Court's order no later than 10 days after the Court rules on the Rule 15 motion. Defendants' anticipated motion to dismiss will be due 30 days after Plaintiff files his amended complaint or, in the event that the Court denies leave to amend altogether, 30 days after the Court rules on Plaintiff's Rule 15 motion. The Court will set a full briefing schedule for Defendants' anticipated Rule 12 motion after such motion is filed. The Court also concludes the anticipated discovery issues in this matter are too complex to allow the discovery process to begin before the Court determines which of Plaintiff's claims can go forward. Accordingly, in order to promote the just, speedy, and inexpensive resolution of this matter pursuant to Federal Rule of Civil Procedure 1, the Court directs that discovery not begin until after all Rule 15 and Rule 12 litigation is complete. (jy) (Entered: 02/26/2019)
125 Motion for Leave to File Amended Complaint/Petition (Sixth). Filed by Yonas Fikre. (Attachments: # 1 Proposed Document Sixth Amended Complaint, # 2 Proposed Order) (Masri, Lena) (Entered: 03/15/2019)
126 Response in Opposition to Motion for Leave to File Amended Complaint/Petition (Sixth) 125 . Filed by All Defendants. (Roth, Dena) (Entered: 03/29/2019)
127 Reply to Motion for Leave to File Amended Complaint/Petition (Sixth) 125 . Filed by Yonas Fikre. (Masri, Lena) (Entered: 04/05/2019)
128 Opinion and Order. The Court GRANTS in part and DENIES in part Plaintiff's Motion (# 125 ) to Amend. Plaintiff may amend his Complaint to remove previously resolved claims, to plead additional factual allegations related to Plaintiff's due−process claims, and to add the DHS Secretary and the TSA Administrator as defendants. Plaintiff may not, however, add the CBP Commissioner as a defendant or add any new claims. The Court directs Plaintiff to file his Sixth AmendedComplaint consistent with this Opinion and Order no later than May 20, 2019. As the Court indicated in its Scheduling Order (# 124 ) issued February 26, 2019, Defendants' anticipated motion to dismiss Plaintiff's Sixth Amended Complaint is due no later than June 19, 2019. IT IS SO ORDERED. Signed on 5/8/19 by Judge Anna J. Brown. See attached order for further details. (jy) (Entered: 05/08/2019)
129 Amended Complaint (Sixth), pursuant to Court Order (Dkt. 128). Filed by Yonas Fikre against James Clapper, James B. Comey, Federal Bureau of Investigation, Eric Holder, John Kerry, National Security Agency, Christopher M. Piehota, Michael S. Rogers, Kevin K. McAleenan, David Pekoske. (Masri, Lena) (Entered: 05/19/2019)
130 Motion to Dismiss for Failure to State a Claim , Motion to Dismiss for Lack of Jurisdiction Plaintiff's Sixth Amended Complaint. Oral Argument requested. Filed by Director of National Intelligence, Director of the National Security Agency, Director of the Federal Bureau of Investigation, Secretary of the Department of Homeland Security, Attorney General of the United States, Director of the Terrorist Screening Center, National Security Agency, Administrator of the Transportation Security Administration, Secretary of State. (Attachments: # 1 Exhibit Defendants' Exhibit A, # 2 Exhibit Defendants' Exhibit B) (Roth, Dena) (Entered: 06/19/2019)
131 Motion for Protective Order . Oral Argument requested. Filed by Administrator of the Transportation Security Administration, Attorney General of the United States, Director of National Intelligence, Director of the Federal Bureau of Investigation, Director of the National Security Agency, Director of the Terrorist Screening Center, National Security Agency, Secretary of State, Secretary of the Department of Homeland Security. (Attachments: # 1 Exhibit, # 2 Proposed Order) (Roth, Dena) (Entered: 06/19/2019)
132 Joint Motion for Extension of Time Motion to Amend Deadlines. Filed by Yonas Fikre. (Attachments: # 1 Proposed Order) (Masri, Lena) (Entered: 06/26/2019)

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133 ORDER by Judge Anna J. Brown The Court GRANTS Plaintiff's Unopposed Motion (# 132 ) for Extension of Time. Plaintiffs responses to Defendants' Motion (# 130 ) to Dismiss and Motion (# 131 ) for Protective Order are due no later than July 19, 2019. Defendants' optional replies in support of their Motions are due no later than August 9, 2019. (jy) (Entered: 06/26/2019)
134 Notice of Case Reassignment: This case has been reassigned from Judge Anna J. Brown to Judge Michael W. Mosman. (eo) (Entered: 07/15/2019)
135 Response in Opposition to Motion for Protective Order 131 . Filed by Yonas Fikre. (Masri, Lena) (Entered: 07/19/2019)
136 Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction Plaintiff's Sixth Amended Complaint 130 Oral Argument requested. Filed by Yonas Fikre. (Masri, Lena) (Entered: 07/19/2019)
137 Reply in Support to Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction Plaintiff's Sixth Amended Complaint 130 . Filed by Administrator of the Transportation Security Administration, Attorney General of the United States, Director of National Intelligence, Director of the Federal Bureau of Investigation, Director of the National Security Agency, Director of the Terrorist Screening Center, National Security Agency, Secretary of State, Secretary of the Department of Homeland Security. (Roth, Dena) (Entered: 08/09/2019)
138 Reply in Support to Motion for Protective Order 131 . Filed by Administrator of the Transportation Security Administration, Attorney General of the United States, Director of National Intelligence, Director of the Federal Bureau of Investigation, Director of the National Security Agency, Director of the Terrorist Screening Center, National Security Agency, Secretary of State, Secretary of the Department of Homeland Security. (Roth, Dena) (Entered: 08/09/2019)
139 PROTECTIVE ORDER: After careful consideration, I find good cause supports entry of the protective order proposed by Defendants. Accordingly, I GRANT Defendants Motion for Protective Order 131 . Signed on 11/1/2019 by Judge Michael W. Mosman. (kms) (Entered: 11/01/2019)
140 Scheduling Order by Judge Michael W. Mosman. Oral Argument is set for 11/14/2019 at 10:00AM in Portland Courtroom 16 before Judge Michael W. Mosman, regarding Motion to Dismiss for Failure to State a Claim Motion to Dismiss for Lack of Jurisdiction Plaintiff's Sixth Amended Complaint 130 . Ordered by Judge Michael W. Mosman. (dls) (Entered: 11/05/2019)
141 MINUTES of Proceedings: The Court heard oral argument on Defendants Motion to Dismiss Plaintiffs Sixth Amended Complaint 130 on November 14, 2019. As stated on the record, the Court GRANTS Defendants Motion as follows: Plaintiffs claims for injury to his reputation are dismissed without prejudice, and all his other claims are dismissed with prejudice. If Plaintiff chooses to file a seventh amended complaint, it is due on or before Friday, December 6, 2019. Gadeir Abbas, Brandon Mayfield present as counsel for plaintiff(s). Dena Roth present as counsel for defendant(s).(Court Reporter Bonita Shumway.)Judge Michael W. Mosman presiding. (kms) (Entered: 11/14/2019)
142 Joint Motion for Extension of Time and Briefing Schedule. Filed by Yonas Fikre. (Attachments: # 1 Proposed Order) (Masri, Lena) (Entered: 11/26/2019)
143 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on 11/14/2019 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/3/2019. Redaction Request due 12/17/2019. Redacted Transcript Deadline set for 12/27/2019. Release of Transcript Restriction set for 2/24/2020. (Shumway, Bonita) (Entered: 11/26/2019)
144 ORDER: The parties' Joint Motion for an Extension of Time 142 for Plaintiff to file his seventh amended complaint is GRANTED. Amended Complaint is due 12/18/2019. The Court also adopts the parties' proposed scheduling order as set forth

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in the Joint Motion. The Defendants' Rule 12 motion, if any, is due on or before January 22, 2020. Plaintiff's response is due February 24, 2020, and the reply is due March 9, 2020. Oral Argument is set for 3/20/2020 at 10:00AM − 12:00PM in Portland Courtroom 16 before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (dls) (Entered: 11/27/2019)
145 Amended Complaint Seventh. Filed by Yonas Fikre against All Defendants. (Masri, Lena) (Entered: 12/18/2019)
146 Motion to Dismiss for Lack of Jurisdiction , Motion to Dismiss for Failure to State a Claim Public − Redacted. Oral Argument requested. Filed by Director of National Intelligence, Director of the National Security Agency, Director of the Federal Bureau of Investigation, Secretary of the Department of Homeland Security, Attorney General of the United States, Director of the Terrorist Screening Center, Administrator of the Transportation Security Administration, Secretary of State. (Attachments: # 1 Exhibit DEX 1) (Roth, Dena) (Entered: 01/22/2020)
147 Motion to Dismiss for Lack of Jurisdiction , Motion to Dismiss for Failure to State a Claim UNDER SEAL. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Oral Argument requested. Filed by Director of National Intelligence, Director of the National Security Agency, Director of the Federal Bureau of Investigation, Secretary of the Department of Homeland Security, Attorney General of the United States, Director of the Terrorist Screening Center, Administrator of the Transportation Security Administration, Secretary of State. (Attachments: # 1 Exhibit DEX 1) (Roth, Dena) (Entered: 01/22/2020)
148 Consent Motion for Extension of Time to File a Response/Reply to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 , Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim Public − Redacted 146 . Expedited Hearing requested. Filed by Yonas Fikre. (Attachments: # 1 Proposed Order) (Masri, Lena) (Entered: 02/19/2020)
149 ORDER: Plaintiffs Motion for Extension of Time 148 is GRANTED. The deadline for Plaintiff to respond to Defendants Motions to Dismiss [146, 147] is extended from 02/24/2020 to 02/28/2020. The deadline for Defendants Reply is extended from 03/09/2020 to 03/13/2020. Ordered by Judge Michael W. Mosman. (kms) (Entered: 02/20/2020)
150 Motion for Leave to Appear Pro Hac Vice . Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC−6326654. Filed by All Plaintiffs. (Sadowsky, Justin) (Entered: 02/26/2020)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice . Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC−6326654 150 : Reviewed and Ready for Ruling. (ecp) (Entered: 02/26/2020)
151 ORDER: Granting Motion for Leave to Appear Pro Hac Vice 150 . Ordered by Judge Michael W. Mosman. (kms) (Entered: 02/26/2020)
152 Response in Opposition to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 ORAL ARGUMENT requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Masri, Lena) (Entered: 02/28/2020)
153 Redacted Response in Opposition to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 ORAL ARGUMENT requested. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Plaintiffs. (Masri, Lena) (Entered: 02/29/2020)
154 Corrected Response (Redacted) to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim Public − Redacted 146 Oral Argument requested. Filed by All Plaintiffs. (Masri, Lena) (Entered: 03/02/2020)
155 Redacted Reply in Support to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 , Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim Public − Redacted 146 . Filed by Administrator of the Transportation Security Administration, Attorney General of the United States, Director of National Intelligence, Director of the Federal

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Bureau of Investigation, Director of the National Security Agency, Director of the Terrorist Screening Center, Secretary of State, Secretary of the Department of Homeland Security. (Roth, Dena) (Entered: 03/13/2020)
156 Reply in Support − UNDER SEAL to Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 , Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim Public − Redacted 146 . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Administrator of the Transportation Security Administration, Attorney General of the United States, Director of National Intelligence, Director of the Federal Bureau of Investigation, Director of the National Security Agency, Director of the Terrorist Screening Center, Secretary of State, Secretary of the Department of Homeland Security. (Roth, Dena) (Entered: 03/13/2020)
157 Scheduling Order by Judge Michael W. Mosman regarding Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim 146 . Telephone Oral Argument set for 3/20/2020 at 10:00AM−12:00PM is continued to 3/19/2020 at 09:00AM−11:00AM in Portland by telephone before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (kms) (Entered: 03/13/2020)
158 Pursuant to Standing Order 2020−4 pertaining to Court Operations in Response to COVID−19, the Motion Hearing set for 3/19/2020 is continued. Oral Argument is set for 6/15/2020 at 02:00PM in Portland Courtroom 16 before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (kms) (Entered: 03/18/2020)
159 Scheduling Order by Judge Michael W. Mosman. Pursuant to Standing Order 2020−12, the Oral Argument set for 6/15/2020 at 02:00PM−4:00PM will now be held by telephone before Judge Michael W. Mosman. The parties are to call the conference line. Ordered by Judge Michael W. Mosman. (kms) (Entered: 05/29/2020)
160 Scheduling Order by Judge Michael W. Mosman regarding Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim UNDER SEAL 147 , Motion to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim Public − Redacted 146 . Oral Argument is set for 6/15/2020 at 2:00PM−4:00PM in Portland by videoconference before Judge Michael W. Mosman. Video information sent to parties. Ordered by Judge Michael W. Mosman. (kms) (Entered: 06/05/2020)
161 Notice of Attorney Withdrawal: Filed by Yonas Fikre. (Masri, Lena) (Entered: 06/09/2020)