CA9: No standing to sue to enjoin future border searches of cell phones

Plaintiff cannot obtain prospective injunctive relief against future border cell phone searches because he lacks standing for future searches. As to past searches, he cannot obtain injunctive relief after suing under the FTCA. “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.” Elsharkawi v. United States, 2020 U.S. App. LEXIS 32074 (9th Cir. Oct. 9, 2020).