Yonas Fikre v. Fbi ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONAS FIKRE, No. 20-35904
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-00899-
MO
FEDERAL BUREAU OF
INVESTIGATION; MERRICK B.
GARLAND, Attorney General; OPINION
ANTONY BLINKEN; CHRISTOPHER A.
WRAY; CHARLES H. KABLE IV,
Director of the Terrorist Screening
Center; PAUL NAKASONE, Director
of the National Security Agency;
AVRIL D. HAINES, Director of
National Intelligence; ALEJANDRO
MAYORKAS, Secretary of the
Department of Homeland Security;
DAVID PEKOSKE, Administrator of
the Transportation Security
Administration,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted November 15, 2021
Pasadena, California
2 FIKRE V. FBI
Filed May 27, 2022
Before: Marsha S. Berzon and Johnnie B. Rawlinson,
Circuit Judges, and John Antoon II, * District Judge.
Opinion by Judge Berzon
SUMMARY **
No Fly List
The panel reversed the district court’s dismissal on
mootness grounds of Yonas Fikre’s substantive due process
and non-stigma-related procedural due process No Fly List
claims; vacated the district court’s dismissal of Fikre’s
stigma-plus procedural due process claim; and remanded to
the district court to consider, in the first instance, whether
Fikre stated a viable stigma-plus procedural due process
claim considering both his past placement on the No Fly List
and his alleged inclusion in the Terrorist Screening
Database.
The panel held that because the government failed to
follow the instructions given by this Court the last time
Fikre’s case was before the court, see Fikre v. FBI (Fikre I),
904 F.3d 1033 (9th Cir. 2018), the district court erred by
dismissing as moot Fikre’s No Fly List claims. In Fikre I,
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FIKRE V. FBI 3
the Court held that an exception to mootness – the voluntary
cessation doctrine – applied to Fikre’s No Fly List claim. On
remand, FBI Supervisory Special Agent Christopher
Courtright filed a declaration in support of the government’s
motion to dismiss. The panel held that the Courtright
Declaration did not provide the assurances specified by
Fikre I as adequate to overcome the voluntary cessation to
mootness. The government has assured Fikre only that he
does not currently meet the criteria for inclusion on the No
Fly List. It has not repudiated the decision to place Fikre on
the list, nor has it identified any criteria for inclusion on the
list that may have changed. Because Fikre I governs, the
district court should not have dismissed the No Fly List due
process claims as moot.
The panel held that 49 U.S.C. § 46110(a) did not divest
the district court of jurisdiction over Fikre’s No Fly List
claims. Section 46110, as relevant here, concerns judicial
review of orders issued by the TSA Administrator. If Fikre’s
lawsuit challenges an order by the TSA Administrator, as the
government contends, then the district court would lack
jurisdiction over this claim. But if his lawsuit challenges the
conduct of another agency, such as the Terrorist Screening
Center, then § 46110 is inapplicable. The panel held that
Fikre was not challenging the TSA Administrator’s decision
refusing to remove him from the No Fly List under the
Department of Homeland Security’s Travel Redress Inquiry
Program process, he was challenging the Screening Center’s
decision to place him on the No Fly List in the first place.
Fikre also appealed the district court’s dismissal of his
complaint for failure to state a cognizable stigma-plus
procedural due process claim. Under the “stigma-plus” test
of Hart v. Parks, 450 F.3d 1059, 1069-70 (9th Cir. 2006), a
plaintiff who has suffered reputational harm at the hands of
4 FIKRE V. FBI
the government may assert a cognizable liberty interest for
procedural due process purposes if the plaintiff “suffers
stigma from governmental action plus alteration or
extinguishment of ‘a right or status previously recognized by
state law.’” Because the district court erred by dismissing as
moot Fikre’s claims pertaining to his placement on the No
Fly List, the panel vacated the district court’s dismissal of
Fikre’s stigma-plus claim and remanded for the district court
to consider whether Fikre had a viable procedural due
process claim when his No Fly List-related injuries were also
considered.
Finally, the panel considered the scope of remand. The
panel held that that both Fikre’s substantive due process and
non-stigma-related procedural due process claims pertaining
to his placement by the Screening Center on the No Fly List,
and his alleged placement in the Database, will be before the
district court on remand. Any substantive due process
claims pertaining to his placement in the Database will not.
COUNSEL
Brandon B. Mayfield (argued), Law Office of Brandon
Mayfield, Beaverton, Oregon; Gadeir I. Abbas (argued),
Lena F. Masri, and Justin Sadowsky, Cair Legal Defense
Fund, Washington, D.C., for Plaintiff-Appellant.
Joshua Waldman (argued) and Sharon Swingle, Appellate
Staff; Scott Erik Asphaug, Acting United States Attorney;
Brian M. Boynton, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees.
FIKRE V. FBI 5
OPINION
BERZON, Circuit Judge:
For a second time, Plaintiff-Appellant Yonas Fikre
appeals the district court’s dismissal of his lawsuit alleging
that the Federal Bureau of Investigation violated his
substantive and procedural due process rights by placing and
maintaining him in the Terrorist Screening Database and on
its constituent No Fly List. After the government removed
Fikre from the No Fly List and submitted a declaration
stating that Fikre would “not be placed on the No Fly List in
the future” based on “currently available information,” the
district court dismissed as moot Fikre’s claims pertaining to
his inclusion on the No Fly List. The district court then
dismissed Fikre’s claims pertaining to his inclusion in the
broader Terrorist Screening Database on the ground that he
failed to state a cognizable stigma-plus procedural due
process claim.
Because the government has failed to follow the
instructions given by this Court the last time Fikre’s case was
before us, see Fikre v. FBI (Fikre I), 904 F.3d 1033 (9th Cir.
2018), we hold that the district court erred by dismissing as
moot Fikre’s No Fly List claims. We also hold that
49 U.S.C. § 46110(a) does not divest the district court of
jurisdiction over Fikre’s No Fly List claims. We remand to
the district court to consider, in the first instance, whether
Fikre’s complaint states a viable substantive or procedural
due process claim with respect to his inclusion on the
government’s watchlists when his Database and No Fly List
allegations are considered together.
6 FIKRE V. FBI
I. Background
A. The Terrorist Screening Database
In 2003, President George W. Bush executed Homeland
Security Presidential Directive 6, which instructed the
Attorney General to “establish an organization to
consolidate the Government’s approach to terrorism
screening.” Homeland Security Presidential Directive-6—
Directive on Integration and Use of Screening Information
to Protect Against Terrorism, 39 Weekly Comp. Pres. Doc.
1234 (Sept. 16, 2003). Pursuant to that directive, the
Attorney General created the Terrorist Screening Center
(“the Screening Center”), a multi-agency entity administered
by the FBI that consolidates the United States government’s
terrorist watchlists into a single database—the Terrorist
Screening Database (“TSDB” or “Database”). “The TSDB
is maintained by the” Screening Center, which places an
individual in the Database “when there is ‘reasonable
suspicion’ that he or she is a known or suspected terrorist.”
Kashem v. Barr, 941 F.3d 358, 365 (9th Cir. 2019). After a
United States government agency or a foreign partner with
whom the United States shares terrorist screening
information nominates an individual for inclusion in the
Database, the Screening Center reviews the nomination and
determines whether to add the individual to the Database.
Fikre alleges that the final authority to accept, reject, or
modify a nomination to the Database rests with the
Screening Center alone and that the Screening Center does
not notify individuals about their nomination or inclusion in
the Database.
Once individuals have been placed in the Database, the
Screening Center sorts them into constituent lists, used by a
different government agency—the Transportation Security
Administration (“TSA”)—for screening purposes. The No
FIKRE V. FBI 7
Fly List, the most restrictive of these lists, is reserved for
individuals in the Database whom the Screening Center has
determined pose a threat of committing an act of
international or domestic terrorism, including acts of
terrorism using aircraft or against U.S. government facilities.
Kashem, 941 F.3d at 365–66. “Federal departments and
agencies submit nominations for inclusion on the No Fly
List, and [the Screening Center] decides which individuals
to include.” Id. at 365. After the Screening Center decides
to place someone on the No Fly List, TSA prohibits those
individuals from boarding commercial aircraft that fly over
United States airspace. Id.; see 49 C.F.R. § 1560.105(b)(1).
Individuals included in the Database who are not on the
No Fly List are generally permitted to board commercial
aircraft but are subject to enhanced security screenings at
airports and border crossings. In addition to the standard
metal detector, advanced imaging technology, or pat-down
screening applied to all air passengers, enhanced screening
for individuals included in the Database can include
individual searches, physical inspection of the inside of their
luggage, examination of their electronics to ensure that any
devices can be turned on, and screening of their property for
traces of explosives. Fikre also alleges that, when
individuals in the Database are at border crossings, the
government searches and copies the contents of their
electronic devices, and that the government assigns them
“handling codes.” The handling codes, Fikre alleges,
provide instructions for law enforcement officers about how
to treat someone listed in the Database during an encounter,
and can require “their arrest or other adverse treatment”
during such encounters. He also alleges that the government
bars individuals in the Database from access to employment
with federal agencies and certain industries, and that the
government disseminates the Databases’ lists to government
8 FIKRE V. FBI
agencies around the country and to foreign governments.
The government does not disclose the criteria for inclusion
in the Database.
To permit individuals to challenge their inclusion on the
No Fly List and the Database, the TSA administers the
Department of Homeland Security’s Traveler Redress
Inquiry Program (“DHS TRIP”). See 49 U.S.C.
§§ 44903(j)(2)(C)(iii)(I), (j)(2)(G)(i); id. §§ 44926(a),
(b)(1); 49 C.F.R. §§ 1560.201–207. Under the DHS TRIP
process, individuals included on the No Fly List may ask
why they were placed on the No Fly List. If they do so, they
will be provided with a letter identifying the specific
reason(s) for their listing, as well as an unclassified summary
of information supporting that listing. The TSA
Administrator then has the authority, in light of these
materials and a report submitted by the Screening Center’s
Redress Office, to remove an individual from or maintain an
individual on the No Fly List. Fikre also alleges that,
independently of the DHS TRIP process, “[the Screening
Center] periodically reviews its TSDB listings and No Fly
List annotations” and “occasionally imposes or removes No
Fly List annotations.”
With respect to individuals in the Database who are not
also on the No Fly List, the procedures are different.
Following a traveler inquiry regarding inclusion in the
Database, the Screening Center Redress Office may decide
whether to remove the individual from the Database, but the
government neither confirms nor denies a person’s inclusion
in or deletion from the Database. Nor does the government
provide individuals in the Database with the underlying
reasons or intelligence justifying the individual’s inclusion
in the Database.
FIKRE V. FBI 9
B. Factual and Procedural History
Yonas Fikre is a naturalized U.S. citizen of Eritrean
descent. 1 At some point in late 2009 or early 2010, Fikre
moved to Sudan and began a business venture that involved
selling consumer electronic products in East Africa. During
an April 2010 visit to the U.S. embassy in Sudan, Fikre was
approached by two FBI agents. The agents interrogated him
concerning his association with a mosque in Portland,
Oregon, where he used to live. In the course of that
interrogation, the FBI agents informed Fikre that he had been
placed on the No Fly List but suggested that they would
remove him from the list if he agreed to become an FBI
informant. Fikre refused.
Several months later, Fikre traveled on business to the
United Arab Emirates. There, UAE police arrested,
imprisoned, and tortured him. In the course of his detention,
UAE police interrogated him concerning his association
with the Portland mosque. During one interrogation, a UAE
officer told Fikre that the FBI had requested his detention
and interrogation.
Fikre was eventually released from detention in the
UAE. Unable to fly home to the United States because of
his No Fly List status, he traveled to Sweden, where he
applied for asylum. Fikre eventually began the process of
seeking to modify his No Fly List status through the DHS
1
Because we are reviewing the district court’s grant of a motion to
dismiss, “we recite the facts as alleged in [Fikre’s] complaint, and
assume them to be true.” Brooks v. Clark County, 828 F.3d 910, 914 n.1
(9th Cir. 2016).
10 FIKRE V. FBI
TRIP procedures. 2 On February 14, 2015, the Swedish
government returned Fikre to Portland by private jet.
In 2013, before leaving Sweden and before filing his
DHS TRIP inquiry, Fikre filed this lawsuit, alleging that the
United States government had violated his substantive and
procedural due process rights under the Fifth Amendment by
including him on the No Fly List and providing inadequate
means for him to challenge that designation. As the
litigation was proceeding, in January 2014 and again in
March 2015, the TSA informed Fikre that no change to his
No Fly List status was warranted. A little over a year later,
however, while the government’s motion to dismiss Fikre’s
complaint was pending, the government filed a notice in the
district court stating, without explanation, that the Screening
Center had notified the government that Fikre “has been
removed from the No Fly List.” Based on that notice, the
district court dismissed Fikre’s due process claim as moot.
Fikre appealed the district court’s mootness holding to
this Court, and we reversed. In Fikre I, we held that an
exception to mootness—the “voluntary cessation”
exception—applied to Fikre’s No Fly List claim because
“the government remain[ed] practically and legally ‘free to
return to [its] old ways’ despite abandoning them in the
ongoing litigation.” 904 F.3d at 1039 (second alteration in
original) (quoting United States v. W.T. Grant Co., 345 U.S.
2While Fikre was in Sweden, the United States in 2012 indicted him
and two other individuals for conspiracy to structure monetary transfers.
Fikre alleges this indictment was instigated because he had publicized
his inclusion on the No Fly List and his subsequent detention in the UAE.
Fikre also alleges that the government brought that prosecution in part
based on surveillance of his telephone calls, text messages, and emails
that had been conducted sometime in 2010 without a warrant or probable
cause.
FIKRE V. FBI 11
629, 632 (1953)). In particular, we emphasized that the
government had neither “assured Fikre that he will not be
banned from flying for the same reasons that prompted the
government to add him to the list in the first place” nor
“verified the implementation of procedural safeguards
conditioning its ability to revise Fikre’s status on the receipt
of new information.” Id. at 1040. “Absent an
acknowledgment by the government that its investigation
revealed Fikre did not belong on the list, and that he will not
be returned to the list based on the currently available
evidence,” we determined, “vindication in this action would
have actual and palpable consequences for Fikre.” Id.On remand, the government again moved to dismiss
Fikre’s complaint, then in its sixth amended version. 3 FBI
Supervisory Special Agent Christopher Courtright filed a
declaration (the “Courtright Declaration”) in support of the
government’s motion to dismiss. In addition to providing an
overview of the Database, the Courtright Declaration states
that Fikre “was placed on the No Fly List in accordance with
applicable policies and procedures”; that on May 6, 2016,
“[the Screening Center] advised counsel for the Defendants”
that Fikre “had been removed from the No Fly [L]ist”; that
Fikre “was removed from the No Fly List upon
determination that he no longer satisfied the criteria for
placement on the No Fly List”; and that Fikre “will not be
placed on the No Fly List in the future based on the currently
available information.”
In its motion to dismiss, the government argued that the
Courtright Declaration’s statement that Fikre would not be
3
In this version of the complaint, Fikre alleged that the government
violated his substantive and procedural due process rights by placing and
maintaining him both on the No Fly List and in the Database generally.
12 FIKRE V. FBI
placed back on the No Fly List “based on the currently
available information” “satisfies one of the [Fikre I] panel’s
concerns because it unequivocally demonstrates that there
are ‘procedural hurdles to reinstating [Plaintiff] on the No
Fly List based solely on the facts already known.’” “To the
extent that the Ninth Circuit panel determined that the
Government must also ‘renounce[]’ its prerogative to place
[Fikre] on the No Fly List in the first place,” however, the
government “respectfully disagree[d].” (first alteration in
original). The government instead maintained that, because
“watchlisting decisions are based on current assessments of
the risks posed by particular individuals” and “evaluations
change as the available information changes,” it was
“inappropriate” for this Court to require “an
acknowledgement by the government that its investigation
revealed [Fikre] did not belong on the list.” Echoing the
Courtright Declaration, the government reiterated that “the
fact that a person was removed from the watchlist or one of
its subsets does not mean that the original placement was in
error or unlawful.”
On November 14, 2019, the district court heard oral
argument on the government’s motion to dismiss. Ruling
from the bench, the district court held that Fikre’s due
process claims pertaining to his inclusion on the No Fly List
were moot in light of the Courtright Declaration, which the
district court described as a “barrier . . . to putting him back
on the list.” 4 But the district court granted Fikre leave to
amend his complaint to allege additional facts regarding
4
The district court framed this issue as one of “standing” but later
clarified, in the written order dismissing Fikre’s Seventh Amended
Complaint (the operative one in this appeal), that the government “had
met their burden under the voluntary cessation doctrine as laid out by the
Ninth Circuit’s decision in this case.”
FIKRE V. FBI 13
ongoing reputational injuries he has suffered by virtue of his
alleged inclusion in the Database, which the district court
indicated could serve as an independent basis for a due
process claim.
On December 18, 2019, Fikre filed his Seventh
Amended Complaint. The Seventh Amended Complaint
added allegations that Fikre’s reputation was harmed when,
due to his status as an individual listed in the Database, he
was subjected to enhanced screening on two flights in
2016—one from Seattle to Mecca to complete a religious
pilgrimage, the other to San Diego for a family trip.
Specifically, Fikre alleges that, due to his inclusion in the
Database, he was subjected to enhanced screening at several
points during these trips.
For example, when he checked in for his flight from
Seattle to Mecca, the ticketing agent had to call federal
agents for “individualized permission to print Fikre’s
boarding pass” and stamped his boarding pass with an
“SSSS” notation, which Fikre alleges “indicates a person’s
TSDB status.” As Fikre was going through airport security
in Seattle, the TSA, “in accordance with his TSDB status,”
subjected Fikre “to invasive and disparate screening,” which
was witnessed by his co-travelers. And at the gate in Seattle,
agents asked him to step aside and again searched him,
patted him down, and swabbed his belongings in front of his
co-travelers. Fikre alleges that similar inspections took
place when he boarded a connecting flight in Chicago; when
he boarded his flight leaving Saudi Arabia to return to the
United States; and when he flew to San Diego with his
family on a separate 2016 trip. The Seventh Amended
Complaint seeks declaratory and injunctive relief, including
a declaration that the government violated his due process
rights by placing him on the No Fly List and an injunction
14 FIKRE V. FBI
requiring that the government remove him from the
Database and “repudiate in its entirety the decision to add
Fikre to the TSDB with a No Fly List annotation and
maintain him there for approximately five years.”
Once more, the government moved to dismiss Fikre’s
complaint. The district court granted the motion. The
district court first reiterated that it had already dismissed as
moot Fikre’s due process claims “insofar as they were based
on a theory of present or future injury to a travel-related
liberty interest” due to his inclusion on the No Fly List.
Turning to Fikre’s Database-related claims, the district court
dismissed the claim that the government had violated his
Fifth Amendment substantive due process rights by placing
him in the Database.
With regard to his procedural due process claim, Fikre
argued that he had pleaded a cognizable “stigma-plus”
liberty interest stemming from his alleged inclusion in the
Database. 5 Specifically, Fikre argued that the government
harmed his reputation by subjecting him to enhanced
screenings during his 2016 flights to Mecca and San Diego
and that, in connection with those reputational harms,
Fikre’s watchlist status led to his detention and torture in the
UAE, his prohibition from flying over United States airspace
while he was on the No Fly List, his 2012 indictment, the
unconstitutional surveillance of his phone and email
5
As explained in more depth in Part II.C of this opinion, a “stigma-
plus” claim allows a plaintiff to recover for reputational harm inflicted
by the government where the plaintiff can show that he was “stigmatized
in connection with the denial of a ‘more tangible’ interest.” Hart v.
Parks, 450 F.3d 1059, 1069 (9th Cir. 2006) (quoting Paul v. Davis, 424
U.S. 693, 701 (1976)). Fikre’s appeal—to the extent that it challenges
his inclusion in the Database—focuses exclusively on this type of
procedural due process claim.
FIKRE V. FBI 15
communications in 2010, interference with his religious
exercise, and several other burdens.
The district court agreed that the government had
publicly stigmatized him “by subjecting him to intensive,
repeated, non-random security screenings in front of
members of his community and family during his 2016
Mecca and San Diego trips,” and that Fikre therefore
suffered a reputational injury sufficient to support a “stigma-
plus” procedural due process claim. The court concluded,
however, that Fikre failed to state a “plus” factor—the
alteration or deprivation of a more tangible right or status—
caused by or in connection with that 2016 reputational harm,
as required by the governing case law. See Hart, 450 F.3d
at 1069–70. In particular, the district court noted that,
although he was subjected to enhanced screening during his
2016 trips, Fikre was not “prevented or significantly
impeded from traveling during those two trips” and that,
aside from enhanced screening, Fikre “has not alleged that
he has personally suffered any” of the other consequences of
inclusion in the Database, “such as the denial of credentials
or employment” with federal agencies or certain industries.
As for Fikre’s other asserted “plus” factors, the district court
concluded that “the surrounding circumstances of each
violation ha[d] absolutely nothing to do with the events of
Mr. Fikre’s 2016 reputational injury”; they involved
“different actors,” “occurred years apart,” and “happened for
a host of possible different reasons.” The district court
therefore dismissed Fikre’s procedural due process claim
relating to his inclusion in the Database.
Fikre now appeals both the district court’s dismissal on
mootness grounds of his No Fly List-related claims and the
district court’s dismissal of his stigma-plus procedural due
process claim related to his inclusion in the Database.
16 FIKRE V. FBI
II. Discussion
A. Mootness
We first address whether the district court erred by once
again dismissing as moot Fikre’s due process claims relating
to his inclusion on the No Fly List. We conclude it did.
The Courtright Declaration submitted by the government
on remand does not provide the assurances specified by
Fikre I as adequate to overcome the voluntary cessation
exception to mootness. And because Fikre I governs, the
district court should not have dismissed the No Fly List due
process claims as moot.
“Article III of the Constitution,” as we explained in
Fikre I, “grants the Judicial Branch authority to adjudicate
‘Cases’ and ‘Controversies.’” Fikre I, 904 F.3d at 1037
(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013)).
When the issues presented by a case “are no longer ‘live’”
or when “the parties lack a legally cognizable interest in the
outcome,” a case becomes moot and therefore no longer
constitutes a “Case” or “Controversy” under Article III. Id.(quoting Already, 568 U.S. at 91). The “voluntary cessation
of allegedly illegal conduct,” however, does not moot a case
unless the party asserting mootness satisfies the “heavy
burden” of making it “absolutely clear the allegedly
wrongful behavior could not reasonably be expected to
recur.” Id. at 1037, 1039 (first quoting County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979); then quoting
Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222
(2000); and then quoting Already, 568 U.S. at 91).
Under the law of the case doctrine, ordinarily, “when a
court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in
FIKRE V. FBI 17
the same case.” Askins v. U.S. Dep’t of Homeland Sec.,
899 F.3d 1035, 1042 (9th Cir. 2018) (quoting Musacchio v.
United States, 577 U.S. 237, 244–45 (2016)). 6 Accordingly,
absent the applicability of exceptions, “one panel of an
appellate court will not reconsider matters resolved in a prior
appeal to another panel in the same case.” Leslie Salt Co. v.
United States, 55 F.3d 1388, 1392 (9th Cir. 1995). This
Court specified in Fikre I what the government was required
to do to show that it is “absolutely clear the allegedly
wrongful behavior”—Fikre’s inclusion on the No Fly List—
“could not reasonably be expected to recur.” Accordingly,
we assess whether the Courtright Declaration satisfies the
criteria identified in Fikre I and thereby overcomes the
voluntary cessation exception. Fikre I, 904 F.3d at 1039
(quoting Already, 568 U.S. at 91). Under this analysis, the
Courtright Declaration does not do the job.
First, like the government’s 2016 notice, the Courtright
Declaration treats Fikre’s removal from the No Fly List
essentially as “an individualized determination untethered to
any explanation or change in policy, much less an abiding
change in policy.” Id. at 1039–40. That notice stated,
without more, that the government’s lawyers were “advised
by the Terrorist Screening Center that [Fikre] has been
removed from the No Fly List.” Id. at 1040 (alteration in
original). Fikre I noted that the government had recently
determined, at the conclusion of the DHS TRIP process, that
Fikre still posed “a threat to civil aviation or national
6
There are exceptions to the law of the case doctrine: when “the first
decision was clearly erroneous,” “an intervening change in the law has
occurred,” the evidence at the later stage of the case “is substantially
different,” “other changed circumstances exist,” or “a manifest injustice
would otherwise result.” Askins, 899 F.3d at 1042 (quoting United States
v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998)). None of these
exceptions applies here.
18 FIKRE V. FBI
security.” Id. Although the government then removed Fikre
from the No Fly List “two months after briefing was
completed on the government’s motion to dismiss Fikre’s
lawsuit,” the lack of “explanation or any announced change
in policy” suggested “that Fikre’s removal from the No Fly
List was more likely an exercise of discretion than a decision
arising from a broad change in agency policy or procedure.”
Id.The Courtright Declaration, similarly, provides no
explanation for Fikre’s inclusion on or removal from the No
Fly List and, far from announcing a change in policy
regarding inclusion on the No Fly List, indicates that there
has been none. So it continues to appear that Fikre’s removal
from the No Fly List was “more likely an exercise of
discretion than a decision arising from a broad change in
agency policy or procedure.” Id. The only explanation the
Declaration provides is the statement that Fikre “was
removed from the No Fly List upon determination that he no
longer satisfied the criteria” for inclusion on the list. But that
sentence neither explains what those criteria are nor
identifies any change to the policies, procedures, and criteria
under which Fikre was placed on the No Fly List in the first
place. The clear implication from the Courtright
Declaration, then, is that the government has not changed its
policies but that something else has changed to warrant
Fikre’s change in status, apparently something about Fikre.
Second, Fikre I recognized that “the government’s
unambiguous renunciation of its past actions can
compensate for the ease with which it may relapse into
them.” Id. at 1039. Because the government there had “not
repudiated the decision to add Fikre to the No Fly List and
maintain him there for approximately five years,” id.
at 1040, there was no basis to conclude in Fikre I that “the
FIKRE V. FBI 19
current permission Fikre has to travel by air” was
“‘entrenched’ or ‘permanent,’” id. (quoting McCormack v.
Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015)), or that the
government had “acquiesce[d] to the righteousness of
Fikre’s contentions,” id. “Absent an acknowledgment by the
government that its investigation revealed Fikre did not
belong on the list, and that he will not be returned to the list
based on the currently available evidence,” Fikre remained
stigmatized “as a known or suspected terrorist.” Id.The Courtright Declaration does not satisfy the heavy
burden of making it absolutely clear that the government
would not in the future return Fikre to the No Fly List for the
same reason it placed him there originally. Like the
government’s 2016 notice, it neither “repudiate[s] the
decision to add Fikre to the No Fly List” nor “assure[s] Fikre
that he will not be banned from flying for the same reasons
that prompted the government to add him to the list in the
first place.” Id. In fact, it does the opposite: instead of
renouncing the government’s original decision, the
Courtright Declaration doubles down on it, maintaining that
Fikre “was placed on the No Fly List in accordance with
applicable policies and procedures.” Indeed, in its motion to
dismiss Fikre’s Sixth Amended Complaint and its brief on
appeal, the government expressly disavowed any intent to
repudiate its decision to place Fikre on the No Fly List
originally, maintaining that “there is no such invariable
requirement for demonstrating mootness.”
Third, Fikre I emphasized that another reason the
government could not evade the voluntary cessation
exception to mootness was because it had not “verified the
implementation of procedural safeguards conditioning its
ability to revise Fikre’s status on the receipt of new
information.” Id. at 1040. Likewise, the Courtright
20 FIKRE V. FBI
Declaration provides no sign that any such procedural
safeguards have been implemented. To the contrary, that
Declaration refers to “applicable policies and procedures” as
if static from the time Fikre was placed on the No Fly List
until now.
The government nevertheless maintains that, by
providing that Fikre “will not be placed on the No Fly List
in the future based on the currently available information,”
the Courtright Declaration “condition[s] its ability to revise
Fikre’s status on the receipt of new information.” That
statement, however, does not ensure that Fikre “will not be
banned from flying for the same reasons that prompted the
government to add him to the list in the first place.” Fikre I,
904 F.3d at 1040. Instead, the Declaration indicates only
that Fikre “no longer satisfie[s]” the government’s criteria,
based on information available now regarding Fikre’s
current circumstances. (emphasis added). Should Fikre’s
circumstances change back to what they were when he was
first placed on the No Fly List, he could be placed on the list
again “for the same reasons that prompted the government
to add him to the list in the first place.” Id.
We disagree with the government’s contention that the
phrase “currently available information” “necessarily
subsumes the information known” when Fikre was first
placed on the No Fly List and that any decision to add him
to the List again “would necessarily be based on a new
factual record.” The government insists elsewhere in its
brief that it need not “declare that plaintiff should not have
been placed on the No Fly List even in the past, based on the
information available to the government at that time”
because No Fly List decisions “are highly fact-dependent
assessments” based “on the information available to the
government at that time.” (emphasis added). Likewise, in
FIKRE V. FBI 21
its motion to dismiss Fikre’s Sixth Amended Complaint, the
government maintained that “watchlisting decisions are
based on current assessments of the risks posed by particular
individuals” and that the Courtright Declaration addressed
only “the Government’s current assessment of Plaintiff,” not
its assessment at “the point at which Plaintiff was originally
nominated.” In light of these additional statements, the
government’s careful choice of words in the sentence first
quoted in this paragraph appears to connote only that Fikre
will not be placed on the No Fly List now based on what he
did in the past, not that he would not be placed on the List if
“a new factual record” showed that he was engaging in the
same or similar conduct once again.
In sum, the government has assured Fikre only that he
does not currently meet the criteria for inclusion on the No
Fly List. It has not “repudiated the decision” to place Fikre
on the list, nor has it identified any criteria for inclusion on
the list that may have changed. Thus, there is no reason to
believe that the government would not place Fikre on the list
“for the same reasons that prompted the government to add
him to the list in the first place.” Fikre I, 904 F.3d at 1040.
As before, “the government remains practically and legally
‘free to return to [its] old ways’” the moment Fikre again
meets whatever criteria he satisfied initially. Id. at 1039
(alteration in original) (quoting W.T. Grant, 345 U.S.
at 632).
Aside from relying on the Courtright Declaration, the
government also asserts that because Fikre’s “removal from
the No Fly List is now five years old,” “[w]hat may have
appeared in the prior appeal to have been a ‘tentative[]’
discretionary decision is now more clearly an ‘entrenched’
agency action.” The government also contends this case is
22 FIKRE V. FBI
now moot because we stated that “there is no bright-line rule
for application of the voluntary cessation doctrine.”
These arguments do not fly. It is true, of course, that
there is no bright-line rule for applying the voluntary
cessation doctrine, Fikre I, 904 F.3d at 1039, and that the
passage of time may support the conclusion that the
government has abandoned its allegedly illegal conduct for
good, see, e.g., Bell v. City of Boise, 709 F.3d 890, 900 (9th
Cir. 2013). But for the reasons just explained, the
government’s decision to remove Fikre from the No Fly List
remains “an individualized determination untethered to any
explanation or change in policy, much less an abiding
change in policy,” notwithstanding the passage of time since
Fikre’s change of status. Fikre I, 904 F.3d at 1039–40. And
even though there is no bright-line rule for the application of
the voluntary cessation doctrine as a general matter, this
Court did draw some applicable lines for this case in Fikre
I. Again, absent exceptions not at issue here, “when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same
case.” Arizona v. California, 460 U.S. 605, 618 (1983).
Applying Fikre I’s analysis, Fikre’s No Fly List claims are
not moot.
B. Subject Matter Jurisdiction
The government contends that, even if Fikre’s No Fly
List due process claims are not moot, we must affirm the
district court’s dismissal of those claims on the ground that
49 U.S.C. § 46110 divests the district court of subject matter
jurisdiction over those claims. Not so.
Section 46110, as relevant here, concerns judicial review
of orders issued by the TSA Administrator. Specifically,
§ 46110 states that “a person disclosing a substantial interest
FIKRE V. FBI 23
in an order issued by” the TSA Administrator “under this
part . . . may apply for review of the order by filing a petition
for review” in an appropriate court of appeals. 49 U.S.C.
§ 46110(a). “The petition must be filed not later than
60 days after the order is issued,” id., and the court of appeals
“has exclusive jurisdiction to affirm, amend, modify, or set
aside any part of the order,” id. § 46110(c). So, if Fikre’s
lawsuit challenges an order by the TSA Administrator, as the
government contends, then the district court would lack
jurisdiction over his claims. But if his lawsuit challenges the
conduct of another agency, such as the Screening Center,
then § 46110 is inapplicable.
To support its argument that Fikre’s claims are barred by
§ 46110, the government relies on Kashem v. Barr, 941 F.3d
358 (9th Cir. 2019). Kashem concerned a lawsuit filed by a
group of individuals on the No Fly List challenging both the
sufficiency of the procedures for disputing their inclusion on
the No Fly List and, substantively, their “continued inclusion
on the No Fly List.” Id. at 364, 367. After they were
prevented in 2010 from boarding commercial flights, the
plaintiffs filed grievances through the DHS TRIP process
and a lawsuit alleging that their apparent inclusion on the No
Fly List violated their substantive due process rights. See
Latif v. Holder, 686 F.3d 1122, 1126 (9th Cir. 2012). 7 As a
result of the Latif litigation, the government in 2015 revised
the DHS TRIP procedures. Kashem, 941 F.3d at 367. Those
revised procedures made the TSA Administrator alone—not
the Terrorist Screening Center—responsible for issuing a
7
The Kashem and Latif appeals involved the same group of
plaintiffs and the same underlying lawsuit. The plaintiffs in Kashem
were the four plaintiffs from Latif still on the No Fly List after the
government reevaluated their statuses in light of Latif. Kashem, 941 F.3d
at 367 & n.2.
24 FIKRE V. FBI
final order maintaining a traveler on the No Fly List at the
conclusion of the DHS TRIP process. Id. at 391.
Evaluating the Kashem plaintiffs’ challenge to their
continued No Fly List status under those revised procedures,
the TSA Administrator “issued final orders maintaining each
plaintiff on the list.” Id. at 367–68. The Kashem plaintiffs—
the subset of the plaintiffs from Latif who were still on the
No Fly List—then returned to the district court to challenge
their continued inclusion on the No Fly List. Id. at 367–68.
The district court dismissed their substantive due process
claims for lack of subject matter jurisdiction, citing § 46110.
Id. at 369.
This Court’s opinion in Kashem affirmed the dismissal.
Id. at 390–91. We explained that, “[b]efore the 2015
revisions to the DHS TRIP procedures,” § 46110 did not bar
district court review of a No Fly List order, because “[the
Screening Center]—not TSA—actually review[ed] the
classified intelligence information about travelers and
decide[d] whether to remove them from the list.” Id. at 390
(quoting Latif, 686 F.3d at 1128). Under the revised DHS
TRIP procedures, however, “the TSA Administrator is
solely responsible for issuing a final order maintaining a
traveler on the No Fly List” at the conclusion of the DHS
TRIP process. Id. at 391. The Screening Center submits
only a recommendation and supporting materials to the TSA
Administrator, to aid in that decision. Id. So, for an
individual challenging a No Fly List decision made at the
conclusion of the DHS TRIP process, Kashem explained,
“[i]t is no longer the case” that “any remedy must involve
[the Screening Center].” Id. Kashem thus held that § 46110
governed the plaintiffs’ suit challenging the TSA
Administrator’s final order maintaining them on the No Fly
List. Id.
FIKRE V. FBI 25
The government argues that “Kashem is squarely on
point.” It is not. Unlike the plaintiffs in Kashem, Fikre is
not challenging the TSA Administrator’s decision refusing to
remove him from the No Fly List under the DHS TRIP
process. He is challenging the Screening Center’s decision
to place him on the No Fly List in the first place. 8
As Fikre explains in his briefing before this Court, his
challenge concerns “the entire watchlisting system that led
to his listing, including both the initial decision and process
used to place him on the No Fly List.” (emphasis added).
That characterization of Fikre’s action is borne out by his
Seventh Amended Complaint. With respect to his
procedural due process claim, Fikre alleges that the
government “placed Plaintiff’s name in the Terrorist
Screening Database and on its No Fly List subcomponent”
and asserts that he “has experienced economic, reputational,
8
Before the 2015 changes to the DHS TRIP process, Latif held that
§ 46110 did not divest the district court of jurisdiction to hear a
substantive due process challenge to inclusion on the No Fly List.
686 F.3d at 1127. In so holding, Latif observed in a footnote that, “[w]ith
regard to the applicability of § 46110, there is no meaningful difference
between the ‘initial placement’ of a name on the List and ‘continued
placement’ or ‘removal’” because (at that time) “[the Screening Center]
decide[d] both whether travelers are placed on the List and whether they
stay on it,” even in the course of the DHS TRIP process. Id. at 1127 n.6;
see id. at 1125–26. After the 2015 revisions to the DHS TRIP process,
however, there is a “meaningful difference” between an individual’s
“initial placement” on the No Fly List, carried out by the Screening
Center, and an individual’s “continued placement” or “removal”
pursuant to DHS TRIP, carried out by the TSA Administrator. Id.
at 1127 n.6. In its brief in Kashem, the government made exactly that
distinction, arguing that the plaintiffs there were “not challenging their
inclusion on the No Fly List in the first instance” but rather “their
continued inclusion on the No Fly List following review under the
revised DHS TRIP procedures.” Answering Brief for Appellees at 68,
Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) (No. 17-35634).
26 FIKRE V. FBI
physical, and liberty harms due to Defendants’ placement of
his name” on those lists. With respect to his substantive due
process claim, Fikre alleges, among other things, that the
government “placed Plaintiff on the TSDB and No Fly List
despite lacking any reasonable suspicion that Plaintiff is a
known, suspected, or potential terrorist” and that the
government relies on “race, ethnicity, national origin,
religious affiliation, and First Amendment protected
activities as factors supporting placement on the TSDB and
No Fly List.” (emphasis added). By contrast, Fikre’s
complaint mentions the DHS TRIP process very little,
spending just two paragraphs on Fikre’s engagement with
that redress process. 9
In sum, unlike the plaintiffs in Kashem, Fikre does not
challenge the TSA Administrator’s decision made at the end
of the DHS TRIP process or seek a court order requiring the
TSA Administrator to remove him from the No Fly List.
9
Fikre’s complaint notes that the TSA reaffirmed in early 2015 that
his name would remain on the No Fly List. But the complaint does not
purport to challenge that decision. And although Fikre’s complaint
mentions the government’s “actions in placing and keeping” him on the
No Fly List, (emphasis added), our understanding is that those
references, in the context of Fikre’s full complaint, concern the
Screening Center’s own authority, independent of the DHS TRIP
process, to remove individuals from the No Fly List. That independent
authority is both alleged in the complaint and confirmed by the
government’s watchlisting overview document, which states that “[the
Screening Center] regularly reviews data in the TSDB” and that, “[i]f it
is determined during the quality assurance reviews that a change should
be made to a record in the TSDB,” the Screening Center “takes steps to
clarify the record,” including “[a]dditions, modifications, and removals.”
In any event, to the degree Fikre’s complaint can, contrary to our own
interpretation, be read to challenge the TSA’s decision not to remove him
from the No Fly List as part of DHS TRIP review, the district court, and
this Court, would lack jurisdiction over that aspect of Fikre’s case.
FIKRE V. FBI 27
Rather, his claims concern the Screening Center’s role in
assigning him to the No Fly List in the first place. As in
Ibrahim v. Department of Homeland Security, 538 F.3d 1250(9th Cir. 2008), “putting [Fikre’s] name on the No-Fly List
was an ‘order’ of an agency not named in section 46110,”
and so “the district court retains jurisdiction to review that
agency’s order,” id. at 1255; see also Mokdad v. Lynch, 804
F.3d 807, 811–12 (6th Cir. 2015) (distinguishing between a
plaintiff’s challenge to “the adequacy of the redress
process,” which “amount[s] to a challenge to a TSA order,”
and “a direct challenge to his placement by [the Screening
Center] on the No Fly List”). 10
C. Stigma-Plus Procedural Due Process Claim
Fikre also appeals the district court’s dismissal of his
complaint for failure to state a cognizable stigma-plus
procedural due process claim. We remand Fikre’s stigma-
plus procedural due process claim to the district court to
consider in the first instance whether Fikre states a viable
procedural due process claim when his placement on the No
Fly List is also considered.
To state a procedural due process claim, a plaintiff must
allege “(1) a liberty or property interest protected by the
10
The government also contends that Kashem erred by
distinguishing, for purposes of § 46110, procedural due process claims
challenging the sufficiency of DHS TRIP’s procedures and substantive
challenges to the decision in a final TSA order. 941 F.3d at 391 n.16.
As a three-judge panel, we would be bound by this distinction in
Kashem, were it relevant. Scalia v. Emp. Sols. Staffing Grp., LLC,
951 F.3d 1097, 1103 (9th Cir. 2020). But it is not. Here, both Fikre’s
procedural due process and substantive due process claims challenge the
Screening Center’s decision to place him on the No Fly List, not an order
of the TSA Administrator.
28 FIKRE V. FBI
Constitution; (2) a deprivation of the interest by the
government; [and] (3) lack of process.” Wright v. Riveland,
219 F.3d 905, 913 (9th Cir. 2000) (alteration in original)
(quoting Portman v. County of Santa Clara, 995 F.2d 898,
904 (9th Cir. 1993)). Although “[d]amage to reputation
alone is not actionable,” Hart v. Parks, 450 F.3d 1059, 1069
(9th Cir. 2006) (quoting Paul v. Davis, 424 U.S. 693, 711–
12 (1976)), such reputational harm caused by the
government can constitute the deprivation of a cognizable
liberty interest if a plaintiff “was stigmatized in connection
with the denial of a ‘more tangible’ interest,” id. at 1069–70
(quoting Paul, 424 U.S. 701–02). Under this “stigma-plus”
test, a plaintiff who has suffered reputational harm at the
hands of the government may assert a cognizable liberty
interest for procedural due process purposes if the plaintiff
“suffers stigma from governmental action plus alteration or
extinguishment of ‘a right or status previously recognized by
state law.’” Humphries v. County of Los Angeles, 554 F.3d
1170, 1185 (9th Cir. 2009) (quoting Paul, 424 U.S. at 711),
rev’d in part on other grounds, 562 U.S. 29 (2010)).
Here, the district court permitted Fikre to amend his
complaint a seventh time with respect to the theory that he
suffered a “stigma-plus” reputational injury by virtue of his
alleged inclusion in the Database. And the district court
acknowledged that, “if an individual were to suffer a stigma
as a result of their placement on the No Fly List and then
were denied the ability to travel due to the No Fly List,” that
allegation might state a viable stigma-plus claim. But the
district court held the No Fly List-related claims moot and
so viewed the “only stigmatic injury for which Mr. Fikre
ha[d] established standing” as “the 2016 reputational injury
he allegedly suffered as a result of the Mecca and San Diego
trips,” stemming from his inclusion in the Database. With
the No Fly List claims out of the case, the district court
FIKRE V. FBI 29
concluded that any restriction on Fikre’s ability to travel was
“far too attenuated in both time and circumstance to be
deemed as having occurred ‘in connection with’ his 2016
reputational injury,” and so dismissed the stigma-plus
claims.
But we have concluded that the district court erred by
dismissing as moot Fikre’s claims pertaining to his
placement on the No Fly List. See supra Part II.A.
Considering Fikre’s placement on the No Fly List and his
alleged presence in the broader Database together, both the
reputational injuries and the “plus” factors at issue in Fikre’s
case may be more numerous and more substantial than the
district court believed.
Generally, “a federal appellate court does not consider
an issue not passed upon below,” although we have
discretion to do so “where the issue presented is a purely
legal one and the record below has been fully developed.”
Davis v. Nordstrom, Inc., 755 F.3d 1089, 1094 (9th Cir.
2014) (quoting Quinn v. Robinson, 783 F.2d 776, 814 (9th
Cir. 1986)). Because both the district court’s decision and
the parties’ briefs on appeal focused their stigma-plus
analysis on the stigma and plus factors related to Fikre’s
2016 reputational injuries stemming from his status as an
individual listed in the Database—not on those factors as
they related to the ramifications of his previous No Fly List
status—we choose not to exercise that discretion in this case.
We therefore vacate the district court’s dismissal of Fikre’s
stigma-plus claim and remand for the district court to
consider whether Fikre has a viable procedural due process
claim when his No Fly List-related injuries are also
considered.
30 FIKRE V. FBI
III. Scope of Remand
We briefly clarify what claims will be before the district
court on remand.
Fikre’s Seventh Amended Complaint asserted two
causes of action—a Fifth Amendment procedural due
process claim and a Fifth Amendment substantive due
process claim. Each of those causes of action pertains both
to his past placement on the No Fly List and to his alleged
current inclusion in the Database.
Fikre raised two issues in his opening brief on appeal.
First, Fikre challenged the district court’s dismissal as moot
of his No Fly List-related claims. Second, Fikre challenged
the district court’s dismissal for failure to state a claim of his
stigma-plus procedural due process claim, relating to his
alleged inclusion in the Database. Because Fikre did not
challenge the district court’s dismissal of his substantive due
process claim stemming from his inclusion in the Database,
any challenge to that decision has been waived. See, e.g.,
Shivkov v. Artex Risk Sols., Inc., 974 F.3d 1051, 1061 (9th
Cir. 2020).
But by appealing the district court’s mootness ruling in
its entirety, Fikre necessarily preserved both his substantive
and non-stigma-related procedural due process challenges to
his placement on the No Fly List. The district court ruled on
neither challenge on the merits, given its mootness
determination. By challenging that determination, Fikre was
requesting reinstatement of his operative complaint as to
both due process challenges to his placement on the No Fly
List; by reversing as to mootness, we confirm that the merits
of both challenges as alleged in the operative complaint were
properly before the district court and so are to be decided.
FIKRE V. FBI 31
The government nonetheless suggested at oral argument
that Fikre entirely relinquished any substantive due process
claim on appeal. To support that contention, the government
pointed to Fikre’s statement in his reply brief, in response to
the government’s jurisdictional arguments, that his appeal
“does not concern Fikre’s substantive due process claims”
because the district court dismissed them as moot, and that,
“[a]s relevant to this appeal, Fikre challenges the No Fly List
(and the broader TSDB) on procedural due process
grounds.” That statement did not waive Fikre’s substantive
due process claim as it pertains to his placement on the No
Fly List. Rather, as Fikre’s reply brief recognized, the merits
of Fikre’s No Fly List-specific claims, whether substantive
or procedural, are not before this Court because the district
court dismissed them as moot and never ruled on them
substantively. Therefore, “[a]s relevant to this appeal” on
the merits, only the district court’s dismissal of Fikre’s
separate stigma-plus procedural due process claim was
implicated.
As explained, we now hold that the district court erred
by dismissing Fikre’s No Fly List claims as moot and that
§ 46110 does not divest the district court of jurisdiction over
those claims. Both Fikre’s substantive due process and non-
stigma-related procedural due process claims pertaining to
his placement by the Screening Center on the No Fly List, as
well as his stigma-plus procedural due process claims
pertaining both to his placement on the No Fly List and his
alleged placement in the Database, will be before the district
court on remand. Any substantive due process claim
pertaining to his placement in the Database will not.
IV. Conclusion
We reverse the district court’s dismissal on mootness
grounds of Fikre’s substantive due process and non-stigma-
32 FIKRE V. FBI
related procedural due process No Fly List claims. We also
vacate the district court’s dismissal of Fikre’s stigma-plus
procedural due process claim and remand to the district court
to consider, in the first instance, whether Fikre has stated a
viable stigma-plus procedural due process claim considering
both his past placement on the No Fly List and his alleged
inclusion in the Database.
REVERSED, VACATED, and REMANDED.