Opinion
21-56206
11-07-2022
HAISAM ELSHARKAWI, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted September 20, 2022 Pasadena, California
Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding D.C. No. 8:18-cv-01971-JLS-DFM
Before: BOGGS, WARDLAW, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
MEMORANDUM
Haisam Elsharkawi ("Elsharkawi") appeals the dismissal of his claims for prospective relief arising out of a warrantless border search of his cell phones as he attempted to fly out of Los Angeles International Airport in 2017. In a prior appeal of this action, we held that Elsharkawi's complaint failed to establish Article III standing to pursue a prospective injunction against future border searches of his cell phones at the airport, and remanded to the district court to allow Elsharkawi leave to amend his complaint. See Elsharkawi v. United States, 830 Fed.Appx. 509, 512 (9th Cir. 2020). On remand, the district court found that Elsharkawi failed to allege sufficient new facts in the amended complaint to demonstrate the "imminent future injury" necessary to pursue prospective injunctive relief, and dismissed the case without leave to amend. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court correctly dismissed Elsharkawi's amended complaint for lack of Article III standing. To establish standing, plaintiffs must allege an "injury in fact," which is "actual or imminent, not 'conjectural' or 'hypothetical.'" Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). While "imminence is concededly a somewhat elastic concept," id. at 564 n.2, "some day intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the actual or imminent injury," id. at 564 (internal quotation marks omitted).
Elsharkawi argues that the allegations of a "pattern of travel coupled with averments to upcoming travel" sufficiently establish an imminent risk of future injury. However, as the district court found, Elsharkawi's first complaint alleged that same pattern of travel: namely, that Elsharkawi "regularly traveled to Egypt to visit his family in 2009, 2013, and 2016" and that he hoped to travel to Egypt again that summer or to Saudi Arabia to complete a religious pilgrimage. While an extensive travel history can be sufficient to demonstrate an imminent risk of future history, see Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 993 (9th Cir. 2012), Elsharkawi does not allege a sufficient record of international travel or pattern of having his cell phones searched during that travel. Nor do we find Jibril v.
Mayorkas, 20 F.4th 804 (D.C. Cir. 2021), cited by Elsharkawi, persuasive authority. To be sure, like Elsharkawi, the Jibrils alleged that their sincerely held religious beliefs required international travel to complete pilgrimage obligations. Id. at 810. However, the Jibrils traveled abroad far more extensively than Elsharkawi-roughly once every two years-and alleged that they had been searched repeatedly because they were on a government watchlist. Id. at 810-11. By contrast, Elsharkawi did not allege he was on a government watchlist, had only traveled or attempted to travel internationally on four occasions, and had been searched but one time.
In his amended complaint, Elsharkawi did not plead any additional facts that would support a finding of "concrete" or imminent travel plans. Instead, the facts he added made his future travel plans less concrete, as his complaint now alleges that travel advisories for Egypt and Saudi Arabia, as well as the COVID-19 pandemic itself, had placed his travel plans on hold. The amended complaint also included the assertion that his "future travel abroad to visit his family is not a matter of speculation, it is a certainty for him." But such "mere conclusory statements .... are not entitled to the assumption of truth" at the pleadings stage and do not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009).
These "new facts" in the amended complaint fail to describe "concrete plans" or a "specification of when the some day [travel] will be." Lujan, 504 U.S. at 564 (emphasis in original). Elsharkawi's "new facts"-an understandable delay in travel due to the COVID-19 pandemic and country conditions-instead stretch the timeframe of his future travel indefinitely. And while Elsharkawi argues that we should apply legal concepts like force majeure and equitable tolling to relax the standing analysis, those common law and statutory doctrines do not bear on issues of standing, which is an Article III jurisdictional requirement. Jurisdictional requirements are not subject to statutory equitable tolling, see United States v. Wong, 575 U.S. 402, 408-09 (2015), and force majeure primarily describes a contractual provision that details events that excuse a party from performance, see, e.g., InterPetrol Bermuda Ltd. v. Kaiser Aluminum Intern. Corp., 719 F.2d 992, 997 (9th Cir. 1983).
2. The district court did not err in dismissing this case without leave to amend. The "district court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint." Fid. Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986). Here, Elsharkawi was granted an opportunity to amend his complaint to establish standing, but failed to allege any new facts about any imminent plans to travel in his amended complaint. In his complaint, and on appeal, Elsharkawi did not argue that he could plead any additional facts that would demonstrate standing, but simply speculated that COVID-19 pandemic restrictions on travel would eventually abate. Therefore, the district court correctly determined that any further amendment would be futile, and properly dismissed the amended complaint without leave to amend.
3. Because we hold that Elsharkawi failed to demonstrate Article III standing in his amended complaint, we decline to reach the merits of his Fourth and First Amendment claims.
AFFIRMED.
The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.