35 F.4th 762
9th Cir.2022Background
- The Terrorist Screening Database (TSDB) consolidates U.S. and partner government watchlists; the Screening Center (FBI-administered) places people in the TSDB and assigns No Fly List annotations; TSA enforces No Fly restrictions and administers DHS TRIP redress.
- Yonas Fikre, a U.S. citizen, was placed on the No Fly List; he alleges the FBI pressured him to inform, he was detained and mistreated abroad, and that the listings caused reputational, travel, employment, and surveillance harms.
- Fikre sued in 2013 alleging substantive and procedural due process violations for placement on the No Fly List and in the TSDB. This Court previously reversed a district-court mootness dismissal (Fikre I).
- On remand the government submitted the Courtright Declaration saying Fikre was removed from the No Fly List and "will not be placed on the No Fly List in the future based on the currently available information," and the district court again dismissed No Fly claims as moot and dismissed the TSDB stigma-plus claim for failure to plead a cognizable "plus."
- On this appeal the Ninth Circuit held the district court erred in dismissing No Fly claims as moot, concluded 49 U.S.C. § 46110 does not strip the district court of jurisdiction over Screening Center placement claims, and vacated/directed further consideration of the stigma-plus claim in light of the No Fly allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of No Fly List claims after removal | Fikre: government removal is discretionary and does not bar relief; voluntary cessation exception applies because government can reinstate him and has not repudiated past conduct | Govt: Courtright Declaration and passage of time show removal is permanent; voluntary cessation mootness satisfied | Reversed: Courtright Declaration insufficient under Fikre I; removal tethered to discretion and did not repudiate the original placement or show procedural safeguards, so claims are not moot |
| Whether 49 U.S.C. § 46110 strips district court jurisdiction | Fikre: challenge targets the Screening Center’s initial placement, not a TSA DHS TRIP final order, so § 46110 is inapplicable | Govt: Kashem controls; DHS TRIP revisions make TSA Administrator’s final orders exclusive, divesting district court | Rejected: § 46110 does not bar district-court review of Screening Center initial-placement decisions; jurisdiction retains for those claims |
| Adequacy of stigma-plus procedural due process pleading (TSDB) | Fikre: enhanced screenings, detention, travel prohibition, indictment, surveillance and other harms supply stigma and the required "plus" | Govt: alleged reputational incidents (2016 screenings) alone lacked the required connected "plus" alteration of a tangible right/status; facts too attenuated | Vacated and remanded: district court erred to the extent it decided stigma-plus without considering No Fly injuries together; remand for district court to assess stigma-plus when No Fly allegations are considered |
| Scope of remand / which claims proceed | Fikre: seeks both substantive and procedural review of Screening Center placement and stigma-plus relief tied to TSDB and No Fly history | Govt: variously argued waiver and jurisdictional limits; urged narrow remand | Clarified: remand includes substantive and non-stigma procedural due process claims concerning Screening Center placement on the No Fly List, and stigma-plus claims tied to both No Fly and TSDB; substantive due process challenge to TSDB placement was not appealed and is waived |
Key Cases Cited
- Fikre v. FBI, 904 F.3d 1033 (9th Cir. 2018) (prior panel setting mootness guidance applied here)
- Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) (DHS TRIP revisions and §46110 review of TSA final orders)
- W.T. Grant Co. v. United States, 345 U.S. 629 (1953) (voluntary cessation may not moot a case if defendant could resume wrongful conduct)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (Article III case-or-controversy and mootness principles)
- Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012) (pre-2015 treatment of TSDB/No Fly review and §46110 implications)
- Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250 (9th Cir. 2008) (challenge to an order by an agency not covered by §46110 remains in district court)
- Paul v. Davis, 424 U.S. 693 (1976) (reputation alone not a protected liberty interest; articulates stigma-plus framework)
- Hart v. Parks, 450 F.3d 1059 (9th Cir. 2006) (stigma-plus test described for procedural due process)
- Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009) (stigma-plus requires reputational stigma plus alteration/extinguishment of a previously recognized right or status)