NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAISAM ELSHARKAWI, No. 19-56448

Plaintiff-Appellant, D.C. No. 8:18-cv-01971-JLS-DFM v.

UNITED STATES OF AMERICA; KEVIN MEMORANDUM*

K. MCALEENAN, Acting Secretary of

Homeland Security, in his official capacity; JOHN P. SANDERS, Customs and Border Protection, in his official capacity; LAZARO RIVAS, Officer FNU, in his individual capacity; EDUARDO RODRIGUEZ, Officer FNU, in his individual capacity; JOHN STEVENSON, Officer FNU, in his individual capacity; JENNIFER DOYLE, Officer LNU, in her individual capacity,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted October 5, 2020 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: M. SMITH and OWENS, Circuit Judges, and CARDONE,** District Judge.

Haisam Elsharkawi (Elsharkawi) appeals the dismissal of his claims arising

out of a border search of his cell phones that caused him to miss a flight he

attempted to board at Los Angeles International Airport (LAX). Because the

parties are familiar with the facts, we do not recount them here, except as

necessary to provide context to our ruling. We have jurisdiction under

28 U.S.C. § 1291. We AFFIRM in part, and REVERSE and REMAND in part.

Elsharkawi seeks retrospective injunctive relief under the Fourth

Amendment and First Amendment of the United States Constitution to order the

Department of Homeland Security (DHS) to destroy any data collected during the

alleged border searches of his cell phones. Elsharkawi also seeks prospective

injunctive relief against future border searches of his cell phones, and money

damages from the United States under the Federal Tort Claims Act (FTCA) and

certain DHS Officers in their individual capacities under 42 U.S.C. § 1981.

Elsharkawi accepted an Offer of Judgment under Federal Rule of Civil

Procedure 68 on his FTCA claims for $20,001. The district court then entered

** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation.

2 judgment for Elsharkawi on the FTCA claims in accordance with the accepted

Offer of Judgment.

Under FTCA’s judgment bar, “once a plaintiff receives a judgment

(favorable or not) in an FTCA suit, he generally cannot proceed with a suit against

an individual employee based on the same underlying facts.” Simmons v.

Himmelreich, --- U.S. ----, 136 S. Ct. 1843, 1847 (2016). The FTCA’s judgment

bar forecloses a claim against a federal employee when: (1) there is a “judgment”;

(2) that judgment came in “an action under section 1346(b)”; and (3) that action

was based on “the same subject matter” as the claims against the federal employee.

See 28 U.S.C. § 2676. All three elements are satisfied here.

The first two elements are met because the district court entered a judgment

on Elsharkawi’s FTCA claims, which were brought under § 1346(b). The third

element is satisfied because Elsharkawi’s FTCA claims and individual capacity

claims are based on the same alleged conduct by the DHS Officers questioning him

and searching his cell phones at LAX. We therefore AFFIRM dismissal of

Elsharkawi’s § 1981 claims against CBP Officer Lazaro Rivas, CBP Officer

Eduardo Rodriguez, CBP Officer John Stevenson, and Homeland Security

Investigations (HSI) Special Agent Jennifer Doyle in their individual capacities.

The district court dismissed as moot Elsharkawi’s claims for retrospective

injunctive relief under the First Amendment and Fourth Amendment. It relied on a

3 declaration from the DHS Officer who allegedly searched Elsharkawi’s cell

phones, Officer Doyle, who stated that to her knowledge DHS does not have any

data from the alleged searches of Elsharkawi’s cell phones. However, because

disputed issues of fact must be resolved in Elsharkawi’s favor when evaluating a

motion to dismiss, we REVERSE dismissal of Elsharkawi’s claims for

retrospective injunctive relief and REMAND those claims to the district court to

direct DHS to submit supplemental declarations explaining more definitively

whether DHS has any data from the alleged searches of Elsharkawi’s cell phones

and whether DHS conducted any forensic searches of his cell phones. See Edison

v. United States, 822 F.3d 510, 517 (9th Cir. 2016). The district court should then

determine whether those supplemental declarations render Elsharkawi’s claims for

retrospective injunctive relief moot. Because the jurisdictional inquiry—whether

the government currently has Elsharkawi’s data—is not substantially intertwined

with the merits of the case that focus on the constitutionality of the underlying

searches, the district court can consider such declarations for jurisdictional

purposes. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)

(citing Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733-35 (9th

Cir. 1979)). To the extent necessary, Elsharkawi should also be granted leave to

amend to allege specific facts supporting the allegation that DHS conducted a

forensic search of his cell phones. We offer no assessment as to the merits of

4 Elsharkawi’s claims.

With respect to Elsharkawi’s claims for prospective injunctive relief, the

district court held that Elsharkawi had Article III standing to pursue a prospective

injunction against future border searches of his cell phones, but dismissed those

claims under the Fourth Amendment and First Amendment on the merits and

denied him leave to amend. We REVERSE and hold that the complaint fails to

allege an imminent future injury and therefore fails to establish that Elsharkawi has

Article III standing to pursue a prospective injunction against future border

searches of his cell phones. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564

(1992). Therefore, we AFFIRM dismissal of Elsharkawi’s claims for prospective

injunctive relief, but REVERSE the district court and grant him leave to amend to

attempt to allege the imminent future injury necessary to pursue a prospective

injunction against future border searches of his cell phones. See id. at 564 n.2; Va.

House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (quoting

Hollingsworth v. Perry, 570 U.S. 693, 705 (2013)). Again, we offer no assessment

as to the merits of Elsharkawi’s claims.

Accordingly, we AFFIRM dismissal of Elsharkawi’s § 1981 claims against

CBP Officer Lazaro Rivas, CBP Officer Eduardo Rodriguez, CBP Officer John

Stevenson, and HSI Special Agent Jennifer Doyle in their individual capacities.

Because disputed issues of fact must be resolved in Elsharkawi’s favor, we

5 REVERSE dismissal of Elsharkawi’s claims for retrospective injunctive relief and

REMAND those claims to the district court to direct DHS to submit supplemental

declarations explaining more definitively whether DHS has any data from the

alleged searches of Elsharkawi’s cell phones and whether DHS conducted any

forensic searches of his cell phones. To the extent necessary, Elsharkawi should

also be granted leave to amend to allege specific facts supporting the allegation

that DHS conducted a forensic search of his cell phones. Finally, because the

complaint fails to allege an imminent future injury to establish that Elsharkawi has

Article III standing to pursue a prospective injunction, we AFFIRM dismissal of

Elsharkawi’s claims for prospective injunctive relief, but REVERSE the district

court and grant Elsharkawi leave to amend to attempt to allege the imminent future

injury necessary to pursue an injunction against future border searches of his cell

phones. Each party shall bear its own costs on appeal.

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