Fikre v. Federal Bureau of Investigation et al

Filing 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
YONAS FIKRE,

3:13-cv-00899-BR
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.

1 - OPINION AND ORDER

OPINION AND ORDER

GADEIR I. ABBAS
WILLIAM J. BURGESS
Council on American-Islamic Relations
453 New Jersey Avenue, S.E.
Washington, D.C. 2003
[phone]
BRANDON B. MAYFIELD
3950 S.W. 185th Avenue
Beaverton, Oregon 97007
[phone]
THOMAS H. NELSON
P.O. Box 1211
Welches, Oregon 97067-1211
[phone]
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
[phone]
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.
an informant.

Plaintiff responded he did not wish to become

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

8 - OPINION AND ORDER

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.

9 - OPINION AND ORDER

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

10 - OPINION AND ORDER

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

11 - OPINION AND ORDER

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.

12 - OPINION AND ORDER

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.

13 - OPINION AND ORDER

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.
944, 956 (9th Cir. 2005).
14 - OPINION AND ORDER

Autery v. U.S., 424 F.3d

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).

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.
557 F.2d at 1285.

Data Disc, Inc.,

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.”
550 U.S. 544, 545 (2007).

Bell Atlantic v. Twombly,

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.”
15 - OPINION AND ORDER

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.”
U.S. at 555).

Iqbal, 556 U.S. at 678 (quoting Twombly, 550
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.’”
U.S. at 555.

Twombly, 550

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.
16 - OPINION AND ORDER

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)).
17 - OPINION AND ORDER

Moreover, a “‘plaintiff must

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

18 - OPINION AND ORDER

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.
F.3d at 971.

Rosebrock, 745

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)).

19 - OPINION AND ORDER

“[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.”
709 F.3d at 898-900).

Id. (quoting Bell,

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).

20 - OPINION AND ORDER

In Tarhuni the

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

21 - OPINION AND ORDER

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.”
(quoting Rosebrock, 745 F.3d at 971).

Id. at 1062

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.
3d at 1062.

Tarhuni, 129 F. Supp.

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’

22 - OPINION AND ORDER

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.

23 - OPINION AND ORDER

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.”
F. Supp. 3d at 1062.

Tarhuni, 129

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

24 - OPINION AND ORDER

is, to say the least, far-fetched.”4
3d at 1062.

See Tarhuni, 129 F. Supp.

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.

25 - OPINION AND ORDER

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

26 - OPINION AND ORDER

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.
27 - OPINION AND ORDER

See Fikre v. Fed. Bur. of

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.”
138, 144.

FAC ¶¶

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

28 - OPINION AND ORDER

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.

29 - OPINION AND ORDER

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.

30 - OPINION AND ORDER

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.

31 - OPINION AND ORDER

Instead Plaintiff sets

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.”
550 U.S. at 555.

See Twombly,

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.

32 - OPINION AND ORDER

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.”
policy is to be applied with “extreme liberality.”

This

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.
Capital, 316 F.3d at 1052.

Eminence

“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

33 - OPINION AND ORDER

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.

34 - OPINION AND ORDER

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

35 - OPINION AND ORDER

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.

36 - OPINION AND ORDER

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).

37 - OPINION AND ORDER

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

38 - OPINION AND ORDER

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

39 - OPINION AND ORDER

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

40 - OPINION AND ORDER

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.”
¶ 44.

FAC

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

41 - OPINION AND ORDER

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
556 U.S. at 678.

Iqbal,

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.
2511(2)(a)(ii) provides:

42 - OPINION AND ORDER

Section

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

43 - OPINION AND ORDER

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.

44 - OPINION AND ORDER

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.”

45 - OPINION AND ORDER

Id.

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

46 - OPINION AND ORDER

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

47 - OPINION AND ORDER