Fikre v. Federal Bureau of Investigation et al

Filing 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)

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

3:13-cv-00899-BR
Plaintiff,

OPINION AND ORDER

v.
FEDERAL BUREAU OF INVESTIGATION;
LORETTA E. LYNCH, in her official
capacity as Attorney General of
the United States;1 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

Pursuant to Federal Rule of Civil Procedure 25(d), Loretta
E. Lynch is automatically substituted for Eric Holder.
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
[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 (#69) to
Dismiss for Failure to State a Claim and for Lack of Jurisdiction
filed by Defendants Federal Bureau of Investigation (FBI),
Loretta E. Lynch, Department of State, John Kerry, James B.
Comey, Christopher M. Piehota, Michael S. Rogers, National
2 - OPINION AND ORDER

Security Agency (NSA), United States of America, and James
Clapper (collectively referred to as Official Capacity
Defendants).2
For the reasons that follow, the Court GRANTS in part and
DENIES in part the Official Capacity Defendants’ Motion (#69) to
Dismiss as follows:
The Court GRANTS the Official Capacity Defendants’ Motion
and DISMISSES with prejudice Claims One, Three, Four, and Seven;
Claim Fifteen as to declaratory relief only; and Claim Sixteen
only as to Plaintiff’s claims under 50 U.S.C. §§ 1801(a),(b),(h),
and 1809(a)(1), (a)(2).
The Court GRANTS the Official Capacity Defendants’ Motion
and DISMISSES without prejudice Claim Sixteen only as to
injunctive relief and Claim Seventeen and grants Plaintiff leave
to amend these claims no later than November 27, 2015, to cure
the pleading deficiencies identified by the Court, but in light
of the age of this case and Plaintiff’s numerous previous
pleading attempts, the Court does not grant Plaintiff leave to
amend his Complaint to add new claims or to materially alter any
other existing claims.
2

Although the United States of America and James Clapper
have appeared and are listed as among the Official Capacity
Defendants who filed the Motion (#69) to Dismiss at issue here,
the court docket does not reflect either of these parties has
been served.

3 - OPINION AND ORDER

The Court also GRANTS the Official Capacity Defendants’
Motion and DISMISSES without prejudice Claim Nineteen to the
extent that Plaintiff is able to seek a remedy under Federal Rule
of Criminal Procedure 41(g) in the event that Plaintiff prevails
on Claim Fifteen as to injunctive relief.
The Court DENIES the Official Capacity Defendants’ Motion to
Dismiss as to Plaintiff’s Claims Two, Six, and Eighteen.

PROCEDURAL BACKGROUND
On May 22, 2015, the Official Capacity Defendants moved to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) the claims that Plaintiff Yonas Fikre brings against
them in his Corrected Fourth Amended Complaint (Corrected) (FACC)
(#62) as described below.3
On August 24, 2015, the Court heard oral argument on the
Official Capacity Defendants’ Motion.

The Court took the Motion

under advisement at the conclusion of oral argument.

3

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 Five, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and
Fourteen are not at issue in this Motion because those claims
relate exclusively to the Individual Capacity Defendants.

4 - OPINION AND ORDER

FACTUAL BACKGROUND
The Court takes the following from Plaintiff’s FACC as true:
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.
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.
5 - OPINION AND ORDER

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
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

6 - OPINION AND ORDER

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
FACC ¶ 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
police.

He learned from acquaintances that similar individuals

had been inquiring about him and his activities.
Sudan on approximately June 15, 2010.

7 - OPINION AND ORDER

Plaintiff left

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.
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

8 - OPINION AND ORDER

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.

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 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
Dhabi that Plaintiff had disappeared after being placed in an SUV
of the type commonly used by the Emirati secret police.

9 - OPINION AND ORDER

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

wallet to purchase an airline ticket back to the United States,
but they were told Plaintiff would not be allowed to return to

10 - OPINION AND ORDER

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.
In November 2013 Plaintiff filed a DHS TRIP inquiry.

On

January 23, 2014, DHS informed Plaintiff that changes to his

11 - OPINION AND ORDER

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 that

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.
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 message.
As a result of discovery and filings in the Southern
District of California criminal case against Plaintiff that was

12 - OPINION AND ORDER

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.

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).

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

13 - OPINION AND ORDER

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.”
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-harmed14 - OPINION AND ORDER

me 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.’”
Twombly, 550 U.S. at 555).

Id. (citing

A complaint also does not suffice if

it tenders “naked assertion[s]” devoid of “further factual
enhancement.”

Id. at 557.

DISCUSSION
As noted, the Official Capacity Defendants move to dismiss
each of the claims brought against them in Plaintiff’s FACC.4
I.

Claim One - Substantive Due Process:
United States

Right to Return to the

In Claim One Plaintiff raises a substantive due-process
claim based on his fundamental right as a citizen to return to
the United States.

Plaintiff seeks injunctive and declaratory

relief in Claim One.
4

The Official Capacity Defendants move to dismiss all
claims against John Kerry and the Department of State
(collectively the State Department Defendants) on the basis that
Plaintiff does not plead sufficient facts to state a claim
against the State Department Defendants. Although the Court
agrees Plaintiff’s allegations regarding the State Department
Defendants are sparse, the allegations concerning the Khartoum
Embassy, Mr. Noordeloos’s representation that he was a State
Department employee, and the visit by Marwa (a State Department
employee) with Plaintiff in the Emirati prison are sufficient at
this early stage of the proceedings to allege the State
Department Defendants participated in the allegedly unlawful
conduct.
15 - OPINION AND ORDER

The Official Capacity Defendants move to dismiss Claim One
on two grounds:

(1) Under Rule 12(b)(6) on the basis that the

right to return to the United States only applies at the border
and does not extend to places beyond ports of entry to the United
States and (2) under Rule 12(b)(1) for lack of subject-matter
jurisdiction in light of the fact that Plaintiff no longer has
standing to seek prospective relief on Claim One because he has
returned to the United States.
This Court has already rejected the Official Capacity
Defendants’ contention that the substantive due-process right of
a citizen to return to the United States is limited to a right of
entry at the border.

Fikre v. Fed. Bur. of Investigation, 23 F.

Supp. 3d 1268, 1282 (D. Or. 2014)(citing Mohamed v. Holder, 995
F. Supp. 2d 520, 536-37 (E. D. Va. 2014)).

To the contrary, this

Court concluded “a substantive due-process claim based on a
deprivation of the right to return to the United States” is
cognizable when a plaintiff “allege[s] facts sufficient to
demonstrate that Defendants have deprived him of every viable
means of returning to the country.”

Fikre, 23 F. Supp. 3d at

1282.
Defendants are correct, however, that Plaintiff’s
substantive due-process claim for prospective relief based on
Plaintiff’s right to return to the United States is not
justiciable.

Although more properly addressed under the rubric

16 - OPINION AND ORDER

of mootness than standing,5 Plaintiff’s Claim One is moot because
Plaintiff has, in fact, returned to the United States.

“A case

is moot ‘when it has lost its character as a present, live
controversy of the kind that must exist if [the court is] to
avoid advisory opinions on abstract propositions of law.’”
Walker v. Beard, 789 F.3d 1125, 1131-32 (9th Cir. 2015)(quoting
Oregon v. FERC, 636 F.3d 1203, 1206 (9th Cir. 2011)).

A claim

for prospective relief becomes moot when the plaintiff can no
longer benefit from such relief.

Slayman v. FedEx Ground Package

Sys., Inc., 765 F.3d 1033, 1048 (9th Cir. 2014).
Plaintiff’s Claim One, therefore, is moot because Plaintiff
has returned to the United States and there is not any likelihood
that Plaintiff will be “deprived . . . of every viable means of
returning to the country” if he again travels abroad.
23 F. Supp. 3d at 1282.

See Fikre,

Thus, the declaratory and injunctive

relief Plaintiff seeks as to Claim One would be an “‘advisory
opinion[] on [an] abstract proposition[] of law.’”

See Walker,

789 F.3d at 1131-32 (quoting Oregon v. FERC, 636 F.3d at 1206).
On this record, therefore, the Court concludes Plaintiff’s
Claim One is moot and, accordingly, the Court grants Defendant’s
5

The doctrine of mootness rather than standing applies
when, as here, the events that rendered the plaintiff’s claims
not justiciable took place during the pendency of the action.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 189-92 (2000). See also Pit River Tribe v. U.S.
Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006).

17 - OPINION AND ORDER

Motion to Dismiss as to Plaintiff’s Claim One.

The Court

dismisses Claim One with prejudice because any future risk that
Plaintiff may be prevented from returning to the United States
should he travel abroad in the future would be a new claim for a
new action.
II.

Claim Two - Substantive Due Process:
Travel

Right to International

In Claim Two Plaintiff raises a substantive due-process
claim based on his fundamental right to international travel.
Plaintiff seeks injunctive and declaratory relief in Claim Two.
Defendants contend there is not any fundamental right to
international travel that is cognizable as a substantive dueprocess claim and even if such a right existed, Plaintiff’s
alleged placement on the No-Fly List would not deprive Plaintiff
of that right because it would only preclude a single means of
travel (i.e., travel by commercial airline).
As Defendants acknowledge, this Court previously rejected
their contention that Plaintiff does not have any cognizable
right to international travel in the context of a substantive
due-process claim as to alleged placement on the No-Fly List.
See Tarhuni v. Holder, 8 F. Supp. 3d 1253, 1270-71 (D. Or. 2014).
See also Eunique v. Powell, 302 F.3d 971 (9th Cir.
2002)(recognizing the right to international travel as a
protected right under substantive due process).

18 - OPINION AND ORDER

Moreover, the

Court finds Plaintiff’s factual allegations are sufficient to
state such a claim.
Accordingly, on this record the Court concludes Plaintiff
has adequately stated a substantive due-process claim based on
Plaintiff’s right to international travel, and, therefore, the
Court denies Defendants’ Motion to Dismiss as to Plaintiff’s
Claim Two.
III. Claim Three - Due Process:

Vagueness

In Claim Three Plaintiff raises a due-process claim in which
he contends the criteria for placement on the No-Fly List are
unconstitutionally vague.
In his FACC Plaintiff alleges the standard for placement on
the No-Fly List is “a reasonable suspicion to believe that a
person is a known or suspected terrorist.”

FACC ¶ 26.

Defendants point out, however, that the standard Plaintiff cited
is, in fact, the standard for placement in the larger Terrorist
Screening Database (TSDB) and that the government filed on the
public docket in Latif v. Holder a more specific statement of
criteria necessary for placement on the No-Fly List that is a
subset of the TSDB:
Nominations to the No Fly List must meet additional
substantive criteria, above what is required for inclusion
in the larger TSDB. More specifically, any individual,
regardless of citizenship, may be placed on the No Fly List
if the TSC determines that he or she represents:

19 - OPINION AND ORDER

a. A threat of committing an act of international
terrorism (as defined in 18 U.S.C. § 2331(1)) or an act
of domestic terrorism (as defined in 18 U.S.C.
§ 2331(5)) with respect to an aircraft (including a
threat of air piracy, or threat to an airline,
passenger, or civil aviation security); or
b. A threat of committing an act of domestic terrorism
(as defined in 18 U.S.C. § 2331(5)) with respect to the
homeland; or
c. 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
d. A threat of engaging in or conducting a violent act
of terrorism and who is operationally capable of doing
so.
Latif, No. 3:10-cv-00750, Joint Concise Statement of Agreed Facts
Relevant to All Plaintiffs (#173) at 5 (D. Or. Mar. 13, 2015).6
“The test for vagueness is whether the provision fails to
give a person of ordinary intelligence fair notice that it would
apply to the conduct contemplated.”
130 F.3d 1352, 1354 (9th Cir. 1997).

United States v. Johnson,
See also McCormack v.

Herzog, 788 F.3d 1017, 1031 (9th Cir. 2015).
6

“‘To avoid

The Court may consider the No-Fly List criteria that the
government published in Latif when resolving Defendants’ Motion
because those criteria are an undisputed matter of public record.
See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir.
2012)(“We may take judicial notice of undisputed matters of
public record.”). Plaintiff does not dispute the criteria
published in Latif are genuine.

20 - OPINION AND ORDER

unconstitutional vagueness, an ordinance must (1) define the
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited; and (2) establish
standards to permit police to enforce the law in a non-arbitrary,
non-discriminatory manner.’”

McCormack, 788 F.3d at 1031.

“Statutes that are insufficiently clear are void for three
reasons:

‘(1) to avoid punishing people for behavior that they

could not have known was illegal; (2) to avoid subjective
enforcement of the laws based on ‘arbitrary and discriminatory
enforcement’ by government officers; and (3) to avoid any
chilling effect on the exercise of First Amendment freedoms.’”
Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133,
1146 (9th Cir. 2009)(quoting Foti v. City of Menlo Park, 146 F.3d
629, 638 (9th Cir. 1998)).
“‘[A] party challenging the facial validity of [a law] on
vagueness grounds outside the domain of the First Amendment must
demonstrate that the enactment is impermissibly vague in all of
its applications.’”

Hess v. Bd. of Parole and Post-Prison

Supervision, 514 F.3d 909, 913 (9th Cir. 2008)(quoting Hotel &
Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 972 (9th
Cir. 2003)).

“It therefore follows that ‘if the statute is

constitutional as applied to the individual asserting the
challenge, the statute is facially valid.’”

21 - OPINION AND ORDER

Hess, 514 F.3d at

913 (quoting United States v. Dang, 488 F.3d 1135, 1141 (9th Cir.
2007)).
Ultimately, however, courts have “expressed greater
tolerance of enactments with civil rather than criminal penalties
because the consequences of imprecision are qualitatively less
severe.”

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 498 (1982).

See also Hess, 514 F.3d

at 914.
Plaintiff contends the No-Fly List criteria are
unconstitutionally vague because the standard of proof that
Defendants employ to determine whether an individual should be
included in the TSDB and on the No-Fly List is impermissibly low
and because the government has not sufficiently publicized the
criteria to give appropriate notice to the public.
Plaintiff does not cite any authority to support his
position that the due-process vagueness doctrine applies to the
standard of proof that a regulation or statute mandates or to the
sufficiency of the government’s publication of the regulation or
statute rather than only to the definition of conduct prohibited
by the regulation or statute.

Although Plaintiff’s contentions

concerning the standard of proof that applies to No-Fly List
designations and publication of the substantive criteria may be
relevant considerations in other contexts, the Court declines to
extend the vagueness doctrine beyond the traditional inquiry as

22 - OPINION AND ORDER

to whether the conduct proscribed by the regulation is
sufficiently defined to pass constitutional muster.

In this case

the No-Fly List criteria are sufficiently clear to withstand
Plaintiff’s challenge of facial vagueness.
Accordingly, on this record the Court grants the Official
Capacity Defendants’ Motion to Dismiss as to Plaintiff’s Claim
Three and dismisses Plaintiff’s Claim Three with prejudice.
IV.

Claim Four - Fifth Amendment Right to Counsel
In Claim Four Plaintiff alleges Defendants violated

Plaintiff’s right to counsel as guaranteed by the Fifth Amendment
to the United States Constitution when Defendant Noordeloos
continued to question Plaintiff in the Khartoum Embassy after
Plaintiff requested to consult with his United States-based
counsel.

Plaintiff seeks declaratory and injunctive relief in

Claim Four.
The Official Capacity Defendants move to dismiss Claim Four
on two bases:

(1) Plaintiff does not have standing to seek

prospective relief on this claim because there is not any
evidence that Plaintiff’s alleged injury is likely to recur and
(2) Plaintiff’s allegations do not state a claim for violation of
the Fifth Amendment right to counsel.
“To have standing to assert a claim for prospective
injunctive relief, a plaintiff must demonstrate ‘that he is
realistically threatened by a repetition of [the violation].’”

23 - OPINION AND ORDER

Melendres v. Arpaio, 695 F.3d 990, 997 (9th Cir. 2012)(quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983))(bracketed
text in original).

A threat of repetition of the violation can

be shown in two ways:

(1) “‘a plaintiff may show that the

defendant had, at the time of the injury, a written policy, and
that the injury stems from that policy’” and (2) “‘the plaintiff
may demonstrate that the harm is part of a pattern of officially
sanctioned . . . behavior, violative of the plaintiffs' [federal]
rights.’”

Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir.

2014)(quoting Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir.
2002))(omission and bracketed text in original).

Nonetheless, in

all circumstances in which a plaintiff may “seek injunctive
relief, a plaintiff must show that he is under threat of
suffering ‘injury in Fact’ that is concrete and particularized;
the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged
action of the defendant; and it must be likely that a favorable
judicial decision will prevent or redress the injury.”

Summers

v. Earth Island Inst., 555 U.S. 488, 493 (2009)(quoting Laidlaw
Envtl. Servs., 528 U.S. at 180–81).
At the heart of Plaintiff’s Claim Four is the allegation
that Defendants place an individual on the No-Fly List while the
individual is abroad in order to be able to subject such
individuals to custodial interrogation without the assistance of

24 - OPINION AND ORDER

counsel.

Plaintiff, however, states he was actively represented

by both Swedish and American counsel while he was in Sweden, and
Defendants communicated with Plaintiff through counsel during
that time.

See FACC ¶¶ 69-71.

Thus, although Plaintiff alleges

Defendants maintain a policy, custom, and practice whereby
Defendants “place individuals on 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” (FACC ¶ 95), Plaintiff’s allegations
indicate at the time he filed this action Defendants’ alleged
policy was no longer applicable to him, and, therefore, there was
not any realistic threat that such an injury could recur at the
time he filed this action.
Moreover, even if Plaintiff had standing to bring a claim
for prospective relief at the time that he filed this action,
Plaintiff’s subsequent return to the United States would render
such a claim moot.
Accordingly, on this record the Court grants the Official
Capacity Defendants’ Motion to Dismiss Plaintiff’s Claim Four and
dismisses Plaintiff’s Claim Four with prejudice.
V.

Claim Six - Procedural Due Process
In Claim Six Plaintiff brings a procedural due-process claim

based on Defendants’ alleged deprivation of Plaintiff’s liberty
interests in international travel and freedom from false

25 - OPINION AND ORDER

government stigmatization without due process when Defendants
placed Plaintiff on the No-Fly List without providing him a
sufficient opportunity to challenge his placement on the List.
Plaintiff seeks declaratory and injunctive relief on Claim Six.
The Official Capacity Defendants move to dismiss Plaintiff’s
Claim Six on the basis that it fails as a matter of law because
the No-Fly List process involves significant national security
interests and the DHS TRIP procedures provide Plaintiff with an
adequate opportunity to contest placement on the List.

The

Official Capacity Defendants summarize the DHS TRIP procedures as
follows:
The Government has revised DHS TRIP to permit U.S.
persons who are on the No Fly List such as Plaintiff an
opportunity to (1) know they are on the No Fly List;
(2) be advised of the basis for their inclusion
(including as much as can be provided without
compromising the national security, including, at a
minimum, the applicable criteria); (3) be heard by way
of a written response before a final redress
determination is made; and (4) seek judicial review of
TSA's final determination.
This Court has previously held a plaintiff’s liberty
interest in international travel and freedom from false
government stigmatization are, when properly pled, cognizable
liberty interests in the context of a procedural due-process
challenge to the DHS TRIP procedures.

See Latif v. Holder, 28 F.

Supp. 3d 1134, 1148-51 (D. Or. 2014).

See also Tarhuni v.

Holder, 8 F. Supp. 3d 1253, 1273-75 (D. Or. 2014).

26 - OPINION AND ORDER

Here

Plaintiff’s allegations provide a sufficient Factual basis at
this early stage of the proceedings to state a procedural dueprocess claim based on Plaintiff’s right to international travel
and freedom from false government stigmatization.

Although the

Official Capacity Defendants’ contentions implicate relevant
issues that the Court must eventually consider as part of the
balancing test under Mathews v. Eldridge, 424 U.S. 319, 332
(1976), such balancing requires a fuller record than that which
is before the Court at this time.
Accordingly, on this record the Court denies the Official
Capacity Defendants’ Motion to Dismiss as to Plaintiff’s Claim
Six.
VI.

Claim Seven - Freedom of Association
In Claim Seven Plaintiff brings a claim under the First

Amendment to the United States Constitution alleging Defendants
infringed on Plaintiff’s freedom of association when Defendants
offered to help in getting Plaintiff removed from the No-Fly List
if he agreed to become an informant.
Plaintiff does not cite any authority for the proposition
that government agents infringe a person’s freedom of association
when those agents offer an individual legal inducements to agree
to become a government informant.

To the extent that Plaintiff’s

Claim Seven can be characterized as a retaliation claim under the
First Amendment (i.e., if Plaintiff intends to allege Defendants

27 - OPINION AND ORDER

retaliated against him for declining to be an informant by
placing him on the No-Fly List), Plaintiff does not cite any
authority to support the proposition that the First Amendment
provides such protections in the context of law-enforcement
interviews.

See McFayden v. Duke University, 786 F. Supp. 2d

887, 948-49 (M.D. N.C. 2011)(rev’d in part on other grounds by
Evans v. Chambers, 703 F.3d 636 (4th Cir. 2012))(noting the
plaintiffs do not cite any “authority to support the application
of the First Amendment protection against government-compelled
ideological or political speech into the context of police
interviews, which are covered by the more specific protections of
the Fourth, Fifth, and Sixth Amendments.”).

Moreover, to the

extent that Plaintiff contends Defendants placed him on the NoFly List solely because he declined to be a government informant,
such a contention is subsumed within Plaintiff’s substantive dueprocess claim.
Accordingly, on this record the Court grants the Official
Capacity Defendants’ Motion to Dismiss Plaintiff’s Claim Seven
and dismisses Plaintiff’s Claim Seven with prejudice.
VII. Claim Fifteen - Fourth Amendment
In Claim Fifteen Plaintiff brings his claim under the Fourth
Amendment contending Defendants intercepted, searched, and seized
his telephone calls, emails, and text messages without a “warrant

28 - OPINION AND ORDER

satisfying the Fourth Amendment,” probable cause, or reasonable
suspicion.

FACC ¶ 148.

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 ¶ 150.

In addition, Plaintiff seeks a declaration that

the provisions of the Patriot Act and [the Foreign
Intelligence Surveillance Act (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.
FACC ¶ 151.
The Official Capacity Defendants move to dismiss Plaintiff’s
Claim Fifteen as to declaratory relief for lack of standing and
all of Claim Fifteen for failure to state a claim.
A.

Standing to Seek Declaratory Relief

The Official Capacity Defendants contend Plaintiff lacks
standing to seek declaratory relief on Claim Fifteen because such
a declaration would not redress any injury that Plaintiff alleges
he has suffered.
“To establish Article III standing, a plaintiff must show
(1) an ‘injury in Fact,’ (2) a sufficient ‘causal connection

29 - OPINION AND ORDER

between the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable
decision.’”

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

2341 (2014)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)).

“[A] plaintiff must demonstrate standing

separately for each form of relief sought.”
Servs., 528 U.S. at 185.

Laidlaw Envtl.

See also Mayfield v. United States, 599

F.3d 964, 969 (9th Cir. 2010).

“Thus, a plaintiff who has

standing to seek damages for a past injury, or injunctive relief
for an ongoing injury, does not necessarily have standing to seek
prospective relief such as a declaratory judgment.”
599 F.3d at 969.

Mayfield,

“The requirements for seeking such relief . . .

differ from the requirements for seeking a declaratory judgment.”
Id. at 972.
In Mayfield the Ninth Circuit held a plaintiff who had
communications and materials seized during searches pursuant to
FISA lacked standing to seek a declaration that the challenged
portions of FISA as amended by the PATRIOT Act are
unconstitutional.

Id. at 966-69.

The Ninth Circuit reasoned

such a declaration would not likely redress any of the
plaintiff’s injuries because the declaration itself “would not
require the government to destroy the derivative materials in its
possession, and therefore would not redress Mayfield’s injury.”

30 - OPINION AND ORDER

Id. at 971.

The Ninth Circuit made clear that “[i]f the statutes

challenged by Mayfield were declared unconstitutional, there will
be no direct consequence to him,” and, therefore, the plaintiff
lacked standing because “redressibility depends upon the actions
of the government in response to the court’s judgment.”

Id.

Like the plaintiff in Mayfield, Plaintiff in this matter
seeks a declaration that the challenged provisions of FISA and
the PATRIOT Act are unconstitutional as a remedy for the
allegedly unconstitutional seizure of Plaintiff’s communications.
As in Mayfield, however, such a declaration would not remedy
Plaintiff’s alleged injuries.

Mayfield, therefore, forecloses

Plaintiff’s Claim Fifteen for declaratory relief.
Accordingly, the Court concludes Plaintiff lacks standing to
seek declaratory relief on Claim Fifteen.
B.

Failure to State a Claim

Even though the Court concludes Plaintiff does not have
standing to seek declaratory relief on Claim Fifteen, Plaintiff,
as noted, also seeks injunctive relief in Claim Fifteen.

Thus,

the Court addresses the Official Capacity Defendants’ contention
that all of Claim Fifteen must be dismissed for failure to state
a claim because the challenged provisions of FISA and the PATRIOT
Act under which the Official Capacity Defendants contend the
alleged surveillance took place are constitutional.

31 - OPINION AND ORDER

Although Plaintiff assumes in his memoranda that the
surveillance took place pursuant to FISA and the PATRIOT Act, the
Court notes there is not any such allegation in his FACC.

To the

contrary, in his FACC Plaintiff simply alleges the surveillance
took place without a “warrant satisfying the Fourth Amendment,”
probable cause, or reasonable suspicion.

FACC ¶ 148.

Thus, the

Official Capacity Defendants’ contentions regarding the
constitutionality of FISA and the PATRIOT Act are premature
because Plaintiff has not alleged the surveillance took place
pursuant to those statutes.

Although Plaintiff’s allegations may

be sparse and somewhat incomplete based on the parties’
assumptions regarding FISA and the PATRIOT Act, they are
sufficient to state a claim for injunctive relief under the
Fourth Amendment at this early stage of the proceedings.
In summary, on this record the Court grants the Official
Capacity Defendants’ Motion to Dismiss as to Plaintiff’s
requested declaratory relief on Claim Fifteen and dismisses that
portion of Claim Fifteen with prejudice.

The Court also denies

the Official Capacity Defendants’ Motion to Dismiss as to
Plaintiff’s Claim Fifteen for injunctive relief as noted in the
Conclusion.

32 - OPINION AND ORDER

VIII. Claims Sixteen, Seventeen, and Eighteen - Statutory
Surveillance Claims
In Claims Sixteen, Seventeen, and Eighteen Plaintiff seeks
damages from Defendant United States of America and some of the
Individual Capacity Defendants7 based on alleged violations of
FISA, 50 U.S.C. §§ 1801(a), (b), (h), and (I), 1804(a), 1806(a),
1809(a)(1), and 1809(a)(2) (Claim Sixteen); the Stored
Communications Act (SCA), 18 U.S.C. § 2703 (Claim Seventeen); and
the Wiretap Act, 18 U.S.C. § 2511 (Claim Eighteen).

Plaintiff

seeks damages from the United States in each of these Claims
pursuant to 18 U.S.C. § 2712.
A.

Claim Sixteen - FISA

In Claim Sixteen Plaintiff states a cause of action for
alleged FISA violations pursuant to § 2712 and brings claims
against the United States for violation of various sections of
FISA.

The Official Capacity Defendants move to dismiss Claim

Sixteen on the bases that (1) Plaintiff has not identified any
valid waiver of the United States’ sovereign immunity and
(2) Plaintiff fails to state a claim under FISA.

7

As noted, the Individual Capacity Defendants have not been
served as of this date and have not appeared in this case. The
Court, therefore, will not address those portions of Plaintiff’s
claims.

33 - OPINION AND ORDER

1.

Waiver of Sovereign Immunity

The Official Capacity Defendants first contend
Plaintiff has failed to identify a valid waiver of the United
States’ sovereign immunity as to Plaintiff's FISA claims because
(1) § 2712 only waives sovereign immunity as to FISA claims that
allege a violation of 50 U.S.C. § 1806(a) and (2) § 2712 only
waives sovereign immunity as to “willful” violations of FISA, and
Plaintiff has not alleged in Claim Sixteen that any employees or
officers of the United States willfully violated FISA.
a.

Applicability of § 2712 Cause of Action

Section 2712 provides:
Any person who is aggrieved by any willful
violation of this chapter or of chapter 119
of this title or of sections 106(a), 305(a),
or 405(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) may commence an action in United States
District Court against the United States to
recover money damages. In any such action,
if a person who is aggrieved successfully
establishes such a violation of this chapter
or of chapter 119 of this title or of the
above specific provisions of title 50, the
Court may assess as damages-(1) actual damages, but not less than
$10,000, whichever amount is greater;
and
(2) litigation costs, reasonably
incurred.
18 U.S.C. § 2712(a).

34 - OPINION AND ORDER

Of the various sections of FISA that the United
States allegedly violated, § 2712(a) only authorizes a cause of
action for damages for violations of 50 U.S.C. § 1806(a), which
is also known as section 106(a) of FISA.

See Al-Haramain Islamic

Found., Inc. v. Obama, 705 F.3d 845, 850-55 (9th Cir. 2012)
(noting § 2712(a) does not provide for a waiver of sovereign
immunity as to a lawsuit for damages against the United States
for some of the FISA violations alleged by Plaintiff, but
§ 2712(a) does provide a waiver of sovereign immunity for, among
other provisions not relevant here, violations of § 1806(a)).
Accordingly, Plaintiff has failed to identify any valid waiver of
sovereign immunity as to his allegations that the United States
violated 50 U.S.C. §§ 1801(a), (b), (h), and (I); 1804(a),
1809(a)(1); and 1809(a)(2).

The Court, therefore, dismisses

Claim Sixteen with prejudice as to those alleged violations.
b.

Willfulness Requirement of § 2712

The Official Capacity Defendants contend Plaintiff
has not identified any valid waiver of sovereign immunity for his
claim under § 1806(a) because § 2712(a) only provides a waiver of
sovereign immunity for willful violations of the § 1806(a) and
Plaintiff has not sufficiently pled the United States’ employees
willfully violated § 1806(a).

35 - OPINION AND ORDER

Section 2712(a) only provides a cause of action
for damages for “any willful violation” of § 1806(a), and
§ 1806(a), in turn, 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.
Under § 2712(a), therefore, the elements of an actionable claim
under § 1806(a) are:

(1) A willful (2) disclosure or use (3) of

information acquired from an electronic surveillance conducted
pursuant to FISA (4) without the consent of the person who was
the subject of the surveillance and (5) without the required
minimization procedures or without any lawful purpose.
Relying on Ratzlaf v. United States, the Official
Capacity Defendants contend the willfulness element of § 2712(a)
requires Plaintiff to allege plausibly that the government agents
engaged in conduct with the conscious objective of committing a
violation.

510 U.S. 135 (1994).

36 - OPINION AND ORDER

Plaintiff, on the other hand,

contends Defendants do not cite the correct standard for the
“willfulness” mental state.

Instead Plaintiff contends when

“willfulness is a statutory condition of civil liability, [the
Supreme Court has] generally taken it to cover not only knowing
violations of a standard, but reckless ones as well.”
Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007).

See Safeco
See also

Robins v. Spokeo, Inc., 742 F.3d 409, 411 n.1 (9th Cir. 2014).
The Court agrees with Plaintiff that the
willfulness requirement of § 2712(a) waives the United States’
sovereign immunity against lawsuits for damages as to both
knowing and reckless violations of the statutory provisions
referenced in § 2712(a).

Notably, the Burr Court specifically

distinguished the understanding of “willfulness” in the context
of criminal statutes and explained why such a formulation is
inappropriate in the context of civil liability before noting “a
common law term in a statute comes with a common law meaning,
absent anything pointing another way.”
58.

Burr, 551 U.S. at 57 n.9,

Because the Court does not find any persuasive evidence that

Congress intended in § 2712(a) to give the term “willful” any
meaning other than its common-law definition, the Court concludes
the willfulness standard in Burr applies to claims brought under
§ 2712(a).

37 - OPINION AND ORDER

Plaintiff, nevertheless, has failed to plead a
valid waiver of sovereign immunity for his FISA claim because his
allegations are insufficient to establish that any Defendants
knowingly or recklessly violated § 1806(a).

As noted, Plaintiff

does not allege any surveillance took place pursuant to FISA.
Moreover, Plaintiff does not make any nonconclusory allegations
regarding minimization procedures or allege facts to support the
proposition that the surveillance information was disclosed for
an unlawful purpose.

Thus, even at this early stage of the

proceedings, Plaintiff’s allegations do not establish Defendants
willfully violated the use and disclosure provisions for
information gathered from surveillance conducted pursuant to
FISA.
Accordingly, on this record the Court grants the
Official Capacity Defendants’ Motion to Dismiss Plaintiff’s Claim
Sixteen.

The Court must, nonetheless, consider whether Plaintiff

should be granted leave to amend Claim Sixteen.
2.

Leave to Amend

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.”

38 - OPINION AND ORDER

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.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
The Factor that carries the greatest weight is whether the
amendment will prejudice the opposing party.
316 F.3d at 1052.

Eminence Capital,

“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 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.

39 - OPINION AND ORDER

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)).
The Court notes this matter was filed on May 30, 2013,
almost 29 months ago, and now what began as a Complaint (#1) with
six claims has ballooned to a FACC with nineteen claims, many of
which were first raised in Plaintiff’s Third Amended Complaint
(#55) filed approximately a year and a half after Plaintiff
initiated this action.

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 action8 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.
Nonetheless, because of the “extreme liberality” with
which leave to amend is to be given, the Court reluctantly grants
Plaintiff one final opportunity to amend Claim Sixteen in order
8

The Court notes the Rule 12 litigation in this case has
already consumed more than the average time it takes to resolve a
civil case on the merits in this District while two similar cases
have proceeded to more advanced stages during this time.

40 - OPINION AND ORDER

to cure the pleading deficiencies identified by the Court.

See

Moss, 572 F.3d at 972.
Accordingly, on this record the Court dismisses
Plaintiff’s Claim Sixteen without prejudice and with leave to
amend no later than November 27, 2015, for the limited purpose of
curing the pleading deficiencies identified herein.

The Court

emphasizes it will dismiss Claim Sixteen with prejudice if
Plaintiff does not cure these defects in his forthcoming Fifth
Amended Complaint.
B.

Claim Seventeen - Stored Communications Act (SCA)

In Claim Seventeen Plaintiff brings claims for violation of
the SCA, 18 U.S.C. § 2703, and states a cause of action under
§ 2712.

The Official Capacity Defendants move to dismiss Claim

Seventeen on the bases that (1) Plaintiff has not identified any
valid waiver of sovereign immunity and (2) Plaintiff otherwise
fails to state a claim under the SCA.
1.

Sovereign Immunity

The Official Capacity Defendants contend Plaintiff has
failed to identify a valid waiver of sovereign immunity because
§ 2712 of the SCA only provides a waiver of sovereign immunity
for unlawful use-and-disclosure claims and Plaintiff has not
brought such claims under the SCA against the Official Capacity
Defendants.

41 - OPINION AND ORDER

The SCA provides without notice the government may only
compel disclosure of an individual’s communications that have
been stored for 180 days or less “pursuant to a warrant issued
using the procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using State
warrant procedures) by a court of competent jurisdiction.”

18

U.S.C. § 2703(a), (b)(1)(A).
After hearing an argument similar to the Official
Capacity Defendants’ argument set forth in this case, Judge
Jeffrey S. White in the Northern District of California held:
The plain language of Section 2712(a) does not limit
the waiver of sovereign immunity for damage claims
under the SCA and the Wiretap Act to claims for the use
and disclosure of information. In Section 2712(a),
Congress specifically limited the waiver for damage
claims to three specific sections of FISA and easily
could have done the same with respect to the Wiretap
Act and the SCA. The Fact that Congress did not
similarly limit the waiver to specific sections within
the Wiretap Act and the SCA has significance. To ignore
this distinction would be to ignore the plain language
and structure of the statute.
Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090, 1107 (N.D. Cal.
2013).

This Court finds persuasive Judge White’s rationale in

Jewel.

As noted, although § 2712(a) limits claims for damages

under FISA to specific provisions of FISA, including unlawful
use-and-disclosure claims under § 1806(a), the plain language of
§ 2712(a) does not limit a cause of action for damages against
the United States under the SCA to unlawful use-and-disclosure

42 - OPINION AND ORDER

claims.

Accordingly, the Court finds lacking in merit the

Official Capacity Defendants’ contention that claims brought
under the SCA pursuant to § 2712(a) are only actionable if they
allege unlawful use or disclosure of information obtained
pursuant to the SCA.
On this record, therefore, the Court concludes
§ 2712(a) provides a valid waiver of sovereign immunity for
Plaintiff’s SCA claim.
2.

Failure to State a Claim

The Official Capacity Defendants contend Plaintiff
fails to state a claim under the SCA because “nothing in the
amended complaint plausibly alleges that stored communications
were collected by the Government,” and, in any event, the SCA
does not prohibit the interception of communications or
surveillance pursuant to FISA.
At the outset the Court notes the Official Capacity
Defendants’ argument concerning the permissibility of accessing
stored communications through FISA is premature because Plaintiff
has not alleged Defendants obtained any information at issue in
this case pursuant to FISA.
In his FACC Plaintiff alleges “[D]efendants were
intercepting and/or acquiring the content of [P]laintiff’s
telephone calls, his text messages, and his emails” and that such

43 - OPINION AND ORDER

“interceptions and/or acquisitions . . . were not conducted
pursuant to a warrant and were not supported by probable cause or
reasonable suspicion.”

FACC ¶¶ 78-79.

These allegations,

however, are not sufficient to state a claim under the SCA.

As

noted, § 2703 only limits the government’s ability to require the
disclosure of stored communications that are less than six months
old.

Plaintiff’s allegations do not establish the emails or text

messages allegedly accessed by the government were in electronic
storage at the time that the government allegedly obtained them
or, if they were, how long they had been there.

Thus,

Plaintiff’s FACC only contains allegations that are “merely
consistent with” the Official Capacity Defendants’ liability,
and, therefore, “stop[] short of the line between possibility and
plausibility of entitlement to relief.”

Iqbal, 556 U.S. at 678.

Accordingly, on this record the Court dismisses
Plaintiff’s Claim Seventeen without prejudice for failure to
state a claim and with leave to amend for the limited purpose of
curing the pleading deficiencies identified herein.

As with

Claim Sixteen, however, Plaintiff will not be granted any further
opportunities to amend Claim Seventeen to state a claim
sufficiently.

44 - OPINION AND ORDER

C.

Claim Eighteen - Wiretap Act

In Claim Eighteen Plaintiff brings a cause of action for
damages pursuant to § 2712 in which Plaintiff alleges Defendants
violated the Wiretap Act, 18 U.S.C. § 2511.

The Official

Capacity Defendants move to dismiss Claim Eighteen on the basis
that Plaintiff has failed to identify a valid waiver of sovereign
immunity and, in any event, that Plaintiff has failed to state a
claim under the Wiretap Act.
1.

Sovereign Immunity

The Official Capacity Defendants’ sovereign-immunity
argument tracks their contentions with regard to Claim Seventeen.
Because § 2712(a) explicitly provides a cause of action for
damages for violations of § 2511 that is not limited to unlawful
use-and-disclosure claims, the Court concludes Plaintiff has
identified a valid waiver of sovereign immunity.

See Jewel, 965

F. Supp. 2d at 1107.
2.

Failure to State a Claim

The Official Capacity Defendants also move to dismiss
Plaintiff’s Claim Eighteen for failure to state a claim on the
basis that the Wiretap Act explicitly permits surveillance
conducted pursuant to FISA.

See 18 U.S.C. § 2511(2)(e).

The Wiretap Act generally prohibits the intentional
interception of any wire, oral, or electronic communication as

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well as the disclosure of the contents of any intercepted
communication.

18 U.S.C. § 2511(1)(a), (1)(c).

Although the

Official Capacity Defendants are correct that § 2511(2)(e)
permits surveillance that is conducted pursuant to FISA, the
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.
The Court concludes at this stage of the proceedings
that Plaintiff’s pleadings are sufficient to state a claim under
the Wiretap Act.
simple:

As pled, Plaintiff’s Wiretap Act claim is

Defendants intercepted Plaintiff’s communications

without a warrant, without probable cause, and/or without
reasonable suspicion.

The Court concludes such allegations are

sufficient to state a claim under § 2511(1)(a).
Accordingly, on this record the Court denies the
Official Capacity Defendants’ Motion to Dismiss as to Plaintiff’s
Claim Eighteen.
IX.

Claim Nineteen - Federal Rule of Criminal Procedure 41(g)
In Claim Nineteen Plaintiff raises a stand-alone claim under

Federal Rule of Criminal Procedure 41(g) in which Plaintiff seeks
the return of illegally searched and seized property.
Accordingly, Plaintiff seeks an order directing Defendants to

46 - OPINION AND ORDER

return or to destroy the records of telephone calls, emails, text
messages, and derivative information that Plaintiff alleges
Defendants seized unconstitutionally.
Plaintiff cites United States v. Comprehensive Drug Testing,
Inc., for the proposition that Rule 41(g) permits the Court to
“invoke its civil equitable jurisdiction” to order Defendants to
return or to destroy the allegedly unconstitutionally seized
information.

See 621 F.3d 1162, 1172 (9th Cir. 2010).

Plaintiff

does not cite any authority, however, for the proposition that
Rule 41(g) provides Plaintiff with a stand-alone claim.

To the

contrary, the Comprehensive Drug Testing court discussed Rule
41(g) as a broader civil analog to the exclusionary remedy.

The

relief that Plaintiff seeks in Claim Nineteen, however, is
functionally identical to the injunction that he seeks in Claim
Fifteen to remedy Defendants’ alleged Fourth Amendment violation.
Thus, the Court concludes Rule 41(g) provides a remedy in civil
cases in which Plaintiff establishes a Fourth Amendment
violation.
Accordingly, on this record the Court grants the Official
Capacity Defendants’ Motion to Dismiss Plaintiff’s Claim Nineteen
and dismisses Plaintiff’s Claim Nineteen without prejudice to
Plaintiff seeking relief authorized by Rule 41(g) in the event
that Plaintiff prevails on Claim Fifteen.

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CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part the Official Capacity Defendants’ Motion (#69) to Dismiss as
follows:
The Court GRANTS the Official Capacity Defendants’ Motion
and DISMISSES with prejudice Claims One, Three, Four, and Seven;
Claim Fifteen as to declaratory relief only; and Claim Sixteen
only as to Plaintiff’s claims under 50 U.S.C. §§ 1801(a),(b),(h),
and 1809(a)(1), (a)(2).
The Court GRANTS the Official Capacity Defendants’ Motion
and DISMISSES without prejudice Claim Sixteen as to injunctive
relief only and Claim Seventeen and grants Plaintiff leave to
amend these claims no later than November 27, 2015, to cure the
pleading deficiencies identified by the Court, but in light of
the age of this case and Plaintiff’s numerous previous pleading
attempts, the Court does not grant Plaintiff leave to amend his
Complaint to add new claims or to materially alter any other
existing claims.
The Court also GRANTS the Official Capacity Defendants’
Motion and DISMISSES without prejudice Claim Nineteen to the
extent that Plaintiff is able to seek a remedy under Federal Rule
of Criminal Procedure 41(g) in the event that Plaintiff prevails
on Claim Fifteen as to injunctive relief.

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The Court DENIES the Official Capacity Defendants’ Motion to
Dismiss as to Plaintiff’s Claims Two, Six, and Eighteen.
IT IS SO ORDERED.
DATED this 4th day of November, 2015.
/s/ Anna J. Brown
_____________________________
ANNA J. BROWN
United States District Judge

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