United States v. 2020-10-09 | 19-56448 | HAISAM ELSHARKAWI V. USA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAISAM ELSHARKAWI,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; KEVIN
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.

No. 19-56448

D.C. No.
8:18-cv-01971-JLS-DFM

MEMORANDUM
*

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.
FILED

OCT 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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

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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

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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

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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.