This week, the Ninth Circuit again revives a plaintiff's challenge to the government's (since revoked) decision to place him on the No Fly List, and it wrestles with the application of Washington State's procedural requirements for filing medical malpractice claims.
FIKRE v. FEDERAL BUREAU OF INVESTIGATION
The Court reverses the district court's dismissal of a plaintiff's claims challenging his placement on the Terrorist Screening Database and No Fly List.
Panel: Judges Berzon, Rawlinson, Antoon II (M.D. Fla.), with Judge Berzon writing the opinion.
Key Highlight: "Because the government has failed to follow the instructions given by this Court the last time Fikre's case was before us . . . we hold that the district court erred by dismissing as moot Fikre's No Fly List claims."
Background: Plaintiff-appellant Yonas Fikre was placed on the Terrorist Screening Database and its constituent No Fly List sometime before April 2010. As a result of his designation, he was unable to return home to the United States from a business trip abroad until Sweden flew him to the United States on a private jet. Fikre sued the United States, alleging it violated his substantive and procedural Fifth Amendment due process rights by including him on the No Fly List and providing inadequate means for him to challenge that designation. After the government notified the district court that Fikre had been removed from the No Fly List, the district court dismissed Fikre's suit as moot. The Ninth Circuit reversed, holding that the voluntary cessation exception to mootness applied because the government was practically and legally free to return to its old ways (Fikre I).
On remand, the government submitted a declaration from a special agent who stated that Fikre was removed from the No Fly List upon the government's determination that he no longer satisfied the criteria for placement on the No Fly List and that he will not be placed on the No Fly List in the future based on the currently available information. In response, the district court once again dismissed the claims based on the No Fly List as moot. The court gave Fikre an opportunity to plead additional facts about his placement on the Database (as opposed to the No Fly List). Fikre did so, alleging that his placement on that Database had forced him to undergo enhanced screening during two air travel trips. But the district court concluded Fikre failed to allege a valid stigma-plus procedural due process claim, reasoning that while his placement on the Database may have stigmatized him, it had not deprived him of a more tangible interest.
Result: The Ninth Circuit reversed. The Court held that Fikre's due process challenges to his inclusion on the No Fly List were not moot because, in accordance with Fikre I, the government had not met its heavy burden of making it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. In particular, although the government declaration stated that Fikre would not be placed on the list based on currently available information, it did not say that Fikre would not be banned from flying for the same reasons that prompted the government to add him to the list in the first place. In other words, the government had not said that it would not put him on the list again if the factual record showed that Fikre was engaging in the same or similar conduct that had prompted his initial placement on the list.
The Court also rejected the government's argument that the district court was divested of jurisdiction over Fikre's No Fly List claims by 49 U.S.C. § 461100, which grants the Courts of Appeals (not district courts) exclusive jurisdiction to affirm, amend, modify, or set aside an order issued by the TSA Administrator. That provision was inapplicable here because Fikre was not challenging the TSA Administrator's decision refusing to remove him from the No Fly List, but the Screening Center's decision to place him on the list in the first place.
The Court also vacated the district court's dismissal of Fikre's stigma-plus procedural due process claim and remanded for the court to consider whether Fikre states a viable procedural due process claim when his placement on the No Fly List is also considered. Although damage to reputation alone is not actionable, such reputational harm can constitute the deprivation of a cognizable liberty interest if a plaintiff was stigmatized in connection with the denial of a more tangible interest. The district court's conclusion that Fikre had failed to adequately plead a stigma-plus procedural due process claim depended on its (erroneous) conclusion that the No Fly List claims were moot. The Ninth Circuit held the district court should consider on remand whether Fikre's placement on the No Fly List and his alleged presence in the broader Database together could support such a claim.
MARTIN v. PIERCE COUNTY
The Court holds that plaintiffs filing Washington state medical malpractice claims in federal court need not adhere to Washington's requirement that the complaint be accompanied by a declaration declining to submit the case to arbitration.
The panel: Judges Bybee, Christen, and Selna (C.D. Cal), with Judge Selna writing the opinion.
Key highlight: "The district court concluded that, unlike Rule 8, RCW 7.7A.020 is not a pleading requirement because 'its purpose [is] to prevent litigation of frivolous medical malpractice actions rather than to provide notice of claims and defenses.' But . . . [t]he relevant inquiry is not whether the federal and state rules share a purpose but whether the Federal Rules 'answer[] the question in dispute.'" (Citations omitted)
Background: While plaintiff Jeffrey Martin was incarcerated at Pierce County Detention Center, he began to have trouble with his eyes. Claiming that the defendants-the county, various corrections officers, and medical personnel at the detention center-had denied him adequate medical care and caused him to suffer permanent damage to his vision, Martin brought suit. He alleged violations of the Eighth Amendment and a state-law medical malpractice claim. Under Washington state law, plaintiffs filing medical malpractice claims must file a contemporaneous declaration stating they have elected not to submit the claim to arbitration. Because Martin did not file such a declaration, the district court granted defendants' motion to dismiss his malpractice claim, then entered final judgment as to that claim under Federal Rule of Civil Procedure 54(b).
Result: The Ninth Circuit reversed. First, the Court examined whether the Washington declaration requirement conflicts with the Federal Rules of Civil Procedure, holding that it does. As the Court explained, Rule 8 describes the requirements for filing a complaint in federal court, and it contains nothing like Washington's declaration requirement. Other federal courts considering comparable state "certificate-of-merit" requirements-which require some sort of affidavit accompanying a complaint-had concluded they conflict with Rule 8. The Ninth Circuit agreed that "Rule 8's requirement of a 'short and plain statement' of the plaintiff's claim, jurisdictional statement, and explanation of the relief sought is 'a list of elements that implicitly excludes other requirements.'"
For much the same reasons, the Court also concluded that the Washington declaration requirement conflicts with Rule 3, which provides that "a civil action is commenced by filing a complaint with the court." As the Court reasoned, "[u]nder Washington's law, a claimant must file a declaration declining arbitration when commencing a medical malpractice claim," which was in "direct conflict with Rule 3's assertion that only the complaint must be filed to commence an action."
Finally, the Court concluded that Rules 3 and 8 "are both within Congress's constitutional rulemaking power and the statutory authorization provided by the Rules Enabling Act," and therefore displace conflicting state law. And because "there are valid, on-point Federal Rules of Civil Procedure," the Court did not need to "'wade into Erie's murky waters.'" (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010).
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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