NOT FOR PUBLICATION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
2 

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 
4 

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 
5 

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 
6 

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.