Fikre v. FBI, No. 16-36072 (9th Cir. 2018)
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The Ninth Circuit reversed the district court's dismissal of plaintiff's action alleging that the FBI violated his substantive and procedural due process rights by placing and maintaining him on the No Fly List. While plaintiff's action was pending, defendants removed plaintiff from the list and the district court held that his due process claims were moot.
The panel held, however, that the voluntary cessation doctrine applied here and precluded a finding of mootness. In this case, plaintiff's removal from the list was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure. Furthermore, the government has not assured plaintiff that he would not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise plaintiff's status on the receipt of new information. Finally, plaintiff's removal from the list did not completely and irrevocably eradicate the effects of the alleged violations.
Court Description: Due Process. The panel reversed the district court’s dismissal, as moot, of a plaintiff’s action alleging that the Federal Bureau of Investigation violated his substantive and procedural due process rights by placing and maintaining him on the No Fly List. * Following Judge Garbis’s retirement, Judge Smith was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Smith has read the briefs, reviewed the record, and listened to oral argument. FIKRE V. FBI 3 The panel held that the government’s announcement that it was removing plaintiff from the No Fly List did not render his due process claims moot. The panel held that the record suggested that plaintiff’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure. The panel further held that the government had not assured plaintiff that he would not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor had it verified the implementation of procedural safeguards conditioning its ability to revise plaintiff’s status on the receipt of new information. Finally, the panel held that plaintiff’s removal from the No Fly List did not completely eradicate the effects of the alleged violation. The panel remanded for further proceedings. The panel affirmed the dismissal of plaintiff’s Fourth Amendment claims in a concurrently field memorandum disposition.
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