                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JAMAL TARHUNI,                                  No.    15-35887

                Plaintiff-Appellant,            D.C. No. 3:13-cv-00001-BR

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General; FEDERAL BUREAU OF
INVESTIGATION; ANDREW G.
MCCABE, Acting Director; FBI
TERRORISM SCREENING CENTER;
CHRISTOPHER M. PIEHOTA, Director,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                       Argued and Submitted May 17, 2017
                            San Francisco, California

Before: W. FLETCHER and TALLMAN, Circuit Judges, and SILVER,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
      Jamal Tarhuni appeals from the district court’s order dismissing his case for

lack of jurisdiction as moot.1 We have jurisdiction under 28 U.S.C. § 1291. For

the reasons below, we vacate the district court’s order of dismissal and remand for

the district court to consider whether or not further leave to amend is proper.

      The parties agree, as do we, that the district court erred when it dismissed

Tarhuni’s case for lack of jurisdiction and with prejudice, as opposed to without

prejudice. See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1106–07

(9th Cir. 2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998)). We therefore vacate the district court’s order of dismissal.

      Tarhuni also argues that the district court erred when it concluded that his

case is moot because it can provide “effective relief” by ordering Defendants-

Appellees to remove his name from the Terrorism Screening Database (the

“TSDB”). See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th

Cir. 2012). Tarhuni is correct that this form of relief may be available to a

successful plaintiff. See, e.g., Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983,

993 (9th Cir. 2012); Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 929



      1
         The district court converted Defendants-Appellees’ motion to dismiss for
lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) into a motion
for summary judgment because it considered material outside the pleadings. We
note that this was unnecessary: A court may refer to evidence outside the
pleadings when considering a motion to dismiss for lack of jurisdiction under Rule
12(b)(1). See Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).

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(N.D. Cal. 2014). However, Tarhuni did not seek this particular form of relief in

his amended complaint, nor did he raise it before the district court. See Bias v.

Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the power

to act as a party’s lawyer . . . .”).

       We therefore remand and instruct the district court to consider whether it

should grant leave to amend. In deciding whether or not leave to amend is proper,

the district court should give due consideration to the factors described in Foman v.

Davis, 371 U.S. 178 (1962), including “undue delay, bad faith . . . , repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party . . . , [and] futility of amendment.” Id. at 182.

       We express no view as to whether the district court erred when it determined

that the voluntary cessation exception to mootness does not apply to Tarhuni’s

substantive due process claim seeking a declaratory judgment.

       Costs shall be taxed against Defendants-Appellees. See Fed. R. App. P.

39(a)(3).

       REVERSED AND REMANDED WITH INSTRUCTIONS.




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