Hodgers-Durgin v. De La Vina , 199 F.3d 1037 ( 1999 )

W. FLETCHER, Circuit Judge:

The question in this case is whether two individual plaintiffs may bring a class action for equitable relief against officials of the United States Border Patrol who supervise operations along the Mexican border in the state of Arizona. Plaintiffs, who each were stopped once by Border Patrol agents, contend that the stops violated the Fourth Amendment’s prohibition against unreasonable seizures. They seek equitable relief, asking in their complaint for a declaratory judgment that “the roving patrol operations [of the Border Patrol] involve systemic violations of the Fourth Amendment to the United States Constitution,” and for an injunction “prohibiting Defendants from further ordering, directing, sanctioning or knowingly permitting such unconstitutional practices” and requiring defendants “to prescribe and implement measures sufficient to prevent resumption of those practices.”

The district court granted summary judgment to defendants on the ground that plaintiffs do not have standing to seek equitable relief requiring the Border Patrol to change its practices. We review de novo a grant of summary judgment. See Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369 (9th Cir.1998). We agree with the district court that plaintiffs have shown insufficient likelihood of future injury to warrant equitable relief. We therefore do not reach questions involving the propriety of class certification.

I

Plaintiff Antonio V. Lopez is a United States citizen who lives in Tucson, Arizona. Mr. Lopez describes himself as having what he calls a typically Hispanic appearance-black hair, dark skin and dark eyes. He drives approximately 400 to 500 miles a week and travels two or three days a week on interstate highway 1-19 between Tucson and the border town of Nogales. Despite the fact that Mr. Lopez sees Border Patrol agents every time he drives on I-19, he has been stopped only once in a ten-year period.

In January, 1995, Mr. Lopez was driving from Nogales to Tucson at approximately 5:30 in the evening. He had his cruise control set at 65 miles per hour when a Border Patrol agent passed him, pulled into his lane in front of him, and slowed to 50 miles per hour. Mr. Lopez moved into the left lane and passed the Border Patrol agent and another vehicle. The agent passed the other vehicle, pulled in behind Mr. Lopez, turned on his headlights, and closely followed Mr. Lopez for five minutes before stopping him. The Border Patrol agent spoke to Mr. Lopez in Spanish, asking where he had come from and where he was going. After Mr. Lopez answered, the agent asked whether he could look in the trunk, and Mr. Lopez consented to the search. When the agent found nothing, Mr. Lopez was allowed to continue on his way.

Plaintiff Panchita Hodgers-Durgin is a United States citizen who has lived in Rio Rico, Arizona, since 1985. Ms. Hodgers-Durgin was born in Mexico, but is of English ancestry and has ash blond hair, light skin, and light brown eyes. Ms. Hodgers-Durgin testified that she drives on 1-19 from Rio Rico to Nogales, a distance of approximately 15 miles, at least four or five times a week. According to Ms. Hodgers-Durgin, whenever she travels on 1-19 she sees Border Patrol agents “all over the place.” Ms. Hodgers-Durgin has been stopped by Border Patrol agents only once in approximately ten years.

At 1:00 a.m. on October 8, 1994, Ms. Hodgers-Durgin was returning on 1-19 from Nogales to Rio Rico when her car began to malfunction, slowing down of its own accord from 55 to 40 miles an hour. She pulled off at the next exit and when she stopped at the stop sign marking the end of the exit ramp her car stalled. While her car was stalled, a Border Patrol agent who had followed her when she left the highway pulled up behind her. Ms. Hodgers-Durgin managed to restart her car and drive slowly across the highway overpass. She was then stopped by the Border Patrol agent. The agent approached Ms. Hodgers-Durgin’s car and asked whether she was a United States citizen. Ms. Hodgers-Durgin replied that she was a citizen and asked why she had been stopped. The agent answered that she had slowed down as she approached his car and had not looked over as she passed. The agent asked what she had in the car and requested that she open the hatchback. Ms. Hodgers-Durgin complied. When the agent found nothing, he returned to his patrol car and drove away.

Mr. Lopez and Ms. Hodgers-Durgin seek equitable relief on behalf of a class defined as

all persons who have been, are, or will be traveling at night by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Greenlea, Maricopa, Pima, Pinal, Santa Cruz and Yuma; and all persons who are of Latin, Hispanic or Mexican appearance who have been, are, or will be traveling by motor vehicle on the highways of the State of Arizona, within the counties of Cochise, Graham, Greenlea, Maricopa, Pima, Pinal, Santa Cruz and Yuma.

Mr. Lopez seeks to represent a sub-class of drivers of Hispanic, Latin or Mexican appearance. Ms. Hodgers-Durgin seeks to represent a sub-class of night-time drivers.

II

Though the facts here are substantially different, the most analogous case is City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), in which plaintiff Lyons, an African-American man, was stopped at 2:00 a.m. by Los Angeles police officers based on a burned out taillight. According to Lyons’ complaint, the officers seized him without provocation and applied a “ehokehold.” As a result of the ehokehold, Lyons lost consciousness, defecated and urinated, and suffered permanent damage to his larynx. Lyons sought an injunction barring the Los Angeles Police Department from using chokeholds except in certain restricted circumstances. The Supreme Court held that Lyons “presumably” had standing to seek damages against the officers and the City of Los Angeles, id. at 105, 103 S.Ct. 1660, but that in the absence of a realistic threat of future injury Lyons could not “demonstrate a case or controversy with the City that would justify the equitable relief sought.”¹ Noting that Article III “case-or-controversy considerations ‘obviously shade into those determining whether the complaint states a sound basis for equitable relief,’ ” id. at 103, 103 S.Ct. 1660 (quoting O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)), the Court concluded that even if Lyons had Article III standing to seek an injunction, the speculative nature of his claim of future injury precluded him from establishing a key prerequisite for equitable relief, “a ‘likelihood of substantial and immediate irreparable injury.’ ” Id. at 111, 103 S.Ct. 1660 (quoting O’Shea, 414 U.S. at 502, 94 S.Ct. 669). The Court explained that “the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate.” Id. at 112, 103 S.Ct. 1660.

A. “Case or Controversy” under Article III

We do not believe that Lyons compels a finding that plaintiffs fail to satisfy the “case or controversy” requirement of Article III. This case is notably different from Lyons in that plaintiffs did nothing illegal to prompt the stops by the Border Patrol. One could argue that the stop in ■Lyons was essentially a chance “encounter” between Lyons and the police,² but we believe that the Supreme Court does not see the case that way. In Lyons itself, the Court suggested that the stop was prompted by Lyons’ misconduct, holding that Lyons had failed to “demonstrate a case or controversy” because he had not established “a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense [.]” Id. at 105, 103 S.Ct. 1660 (emphasis added).

More recently, in Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Court has characterized the denial of Article III standing in Lyons as having been based on the plaintiffs ability to avoid engaging in illegal conduct. Petitioner in Spencer argued that a challenge to a parole revocation was not moot because the revocation might be used to enhance a future criminal sentence. The Court rejected petitioner’s argument in Spencer, as it had rejected a similar argument by respondents in Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982):

[The argument in Lane was rejected] because it was contingent upon respondents’ violating the law, getting caught, and being convicted. “Respondents themselves are able-and indeed required by law-to prevent such a possibility from occurring.” Lane, supra, at 633, n. 13, 102 S.Ct. 1322. We of course have rejected analogous claims to Article III standing in other contexts.

“[W]e are ... unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction [as well as exposure to the challenged course of conduct said to be followed by petitioners].” O’Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

See also Los Angeles v. Lyons, 461 U.S. 95, 102-103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

523 U.S. at 15, 118 S.Ct. 978 (bracketed language added to complete quotation from O’Shea, 414 U.S. at 497, 94 S.Ct. 669).

Given this interpretation of Lyons by the Supreme Court, it is by no means certain that plaintiffs in this case have failed to assert a cognizable injury under Article III. Unlike in Lyons, in this case it is uncontested that both plaintiffs engaged in entirely innocent conduct, and there is no tenable argument that plaintiffs should avoid driving near the Mexican border in order to avoid another stop by the Border Police. Further, unlike in Lyons, in this case there is no string of contingen-cíes necessary to produce an injury. In Lyons, further injury would have required another stop by the police, followed by post-stop behavior culminating in a choke-hold. In this case, another stop of the sort alleged by plaintiffs would itself constitute further injury.

B. Equitable Relief

Nonetheless, even if we assume that plaintiffs have asserted sufficient likelihood of future injury to satisfy the “case or controversy” requirement of Article III standing to seek equitable relief, we find that plaintiffs are not entitled to equitable relief because of the second, alternative ground advanced in Lyons: “The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintifffs] will be wronged again-a ‘likelihood of substantial and immediate irreparable injury.’ ” Id. at 111, 103 S.Ct. 1660 (quoting O’Shea, 414 U.S. at 502, 94 S.Ct. 669).³

The Supreme Court has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way. See O’Shea, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674; Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675; Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In O’Shea, the Court focused on considerations of federalism, explaining that “the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate.” Lyons, 461 U.S. at 112, 103 S.Ct. 1660; see also O’Shea, 414 U.S. at 499, 94 S.Ct. 669. Of particular concern in that case was maintaining the delicate balance between “federal equitable power and State administration of its own law,” O’Shea, 414 U.S. at 500, 94 S.Ct. 669 (quoting Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 96 L.Ed. 138 (1951)), and determining whether the relief sought “would disrupt the normal course of proceedings in the state courts ... [and] would require for its enforcement the continuous supervision by the federal court over the conduct of [state officers] in. the course of future criminal trial proceedings^]” Id. at 501, 94 S.Ct. 669. As the Court explained in O’Shea, “[a] federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable.” Id. at 500, 94 S.Ct. 669.

In Rizzo, the Supreme Court again focused on federalism in overturning an injunction that would have revised the internal procedures of the Philadelphia police department to minimize incidents of unconstitutional police misconduct. 423 U.S. at 380-81, 96 S.Ct. 598. Quoting O’Shea,- the Court explained that

even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O’Shea v. Littleton, supra, at 502, 94 S.Ct. 669, we held that “a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized[.]”

Rizzo, 423 U.S. at 379-80, 96 S.Ct. 598. Thus, “[w]hen a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with ‘the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs.” ’ ” Id. at 378-79, 96 S.Ct. 598 (quoting Sampson v. Murray, 415 U.S. 61, 83, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quoting Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961))).

In Lyons, O’Shea and Rizzo, the Supreme Court required the plaintiffs to show a likelihood of substantial and immediate irreparable injury in order to give appropriate consideration to the values of federalism. It is not clear from the Supreme Court’s opinions that separation of powers concerns counsel against injunctive relief as strongly as do federalism concerns, but it is at least clear that they are relevant and significant. In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court discussed principles of federalism and separation of powers in essentially one breath, addressing the proper role of the federal courts in relation to the political branches of both state and federal governments even though, on its facts, Lewis involved an injunction against a state rather than the federal government. Inmates in Arizona prisons brought a class action alleging that the Arizona Department of Corrections was depriving them of access to the courts by, among other things, employing unqualified law librarians, failing to assist illiterate and non-English speaking inmates with their claims, and failing to provide inmates segregated for disciplinary purposes with adequate time in the law library. See id. at 346-47, 116 S.Ct. 2174. After a bench trial, the district court granted sweeping system-wide injunctive relief which we affirmed. In reversing, the Supreme Court spoke of injunctions against both the state and federal governments:

It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.... [T]he distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.

Id. at 349-50, 116 S.Ct. 2174. Noting that only two of the named plaintiffs’ individual claims supported plaintiffs’ argument that illiterate inmates were denied access to the courts, the Court concluded that “[tjhese two instances were a patently inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief.” Id. at 359, 116 S.Ct, 2174.

In LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), we affirmed an injunction barring the federal Immigration and Naturalization Service from conducting war-rantless searches of migrant housing. We distinguished Lyons, Rizzo and O’Shea, noting that all three cases involved “prudential limitations circumscribing federal court intervention in state law enforcement matters.” Id. at 1324. We recognized in LaDuke that “the co-equal branches of the federal government are entitled to ‘the widest latitude in the dispatch of [their] own internal affairs,’ ” id. at 1325 (quoting Rizzo, 423 U.S. at 378-379, 96 S.Ct. 598), but nonetheless found the likelihood of injury sufficient to warrant injunctive relief. See id. at 1330. We need not consider here the degree to which federalism concerns may compel greater caution than separation of powers concerns in considering a request for in-junctive relief. It is sufficient for present purposes to note, following Lewis and La-Duke, that plaintiffs in this suit must satisfy the traditional requirements of equity before they may seek injunctive relief against the Border Patrol.

We hold that Mr. Lopez and Ms. Hodg-ers-Durgin have not demonstrated a sufficient likelihood of injury to warrant equitable relief. Mr. Lopez drives between 400 and 500 miles a week and sees Border Patrol agents nearly every day. Ms. Hodgers-Durgin drives between Rio Rico and Nogales at least four or five times a week and sees Border Patrol agents “all over the place” whenever she travels. Yet Mr. Lopez and Ms. Hodgers-Durgin were each stopped only once in 10 years. Based on plaintiffs’ own factual record, we believe that it is not sufficiently likely that Mr. Lopez or Ms. Hodgers-Durgin will again be stopped by the Border Patrol. In the absence of a likelihood of injury to the named plaintiffs, there is no basis for granting injunctive relief that would restructure the operations of the Border Patrol and that would require ongoing judicial supervision of an agency normally, and properly, overseen by the executive branch.

The named plaintiffs’ failure to establish a likelihood of future injury similarly renders their claim for declaratory relief unripe. Ripeness doctrine protects against premature adjudication of suits in which declaratory relief is sought. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In suits seeking both declaratory and injunctive relief against a defendant’s continuing practices, the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief. We need not consider whether plaintiffs’ declaratory relief claim is ripe in the Article III sense because the claim fails the prudential ripeness inquiry, which “requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. 1507. As the Supreme Court recently wrote, translating the language of injunctions and imminen-cy into the language of declaratory judgments and ripeness, “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 118 S.Ct. 1257, 1259, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation omitted)). Whether the named plaintiffs are likely to be stopped again by the Border Patrol is simply too speculative to warrant an equitable judicial remedy, including declaratory relief, that would require, or provide a basis for requiring, that the Border Patrol change its practices.

C. Unnamed Class Members

Citing our earlier decision in Nicacio v. INS, 797 F.2d 700, 702 (9th Cir. 1985), plaintiffs contend that they, and the class they seek to represent, should be able to seek an injunction based on the likelihood of future injury to unnamed class members. It is true that several unnamed members of the class have suffered more frequent, and more recent, injuries than have Mr. Lopez and Ms. Hodg-ers-Durgin. Mr. Jesus de la Varga was stopped by Border Patrol agents three times in 1994 and 1995. Mr. Javier Bara-jas was stopped at least four times from 1992 to 1995. Mr. Luis Villa was stopped on more occasions than he could recall. Were those individuals named plaintiffs, they might well be able to demonstrate the likelihood of injury required to pursue equitable relief of the sort sought by Ms. Hodgers-Durgin. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding equitable relief available where plaintiff had been prosecuted three times for obscuring “Live Free or Die” motto on his license plate); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (holding plaintiff who had been stopped fifteen times had standing to challenge an anti-loitering statute as unconstitutionally vague). If such plaintiffs could show sufficient injury to warrant equitable relief, that relief would, of course, have to be tailored to conform to the circumstances of these plaintiffs and the class they seek to represent.

As we read Lewis, however, system-wide injunctive relief is not available based on alleged injuries to unnamed members of a proposed class.

The remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established. This is no less true with respect to class actions than with respect to other suits. “That a suit may be a class action ... adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the elass to which they belong and which they purport to represent.’ ”

518 U.S. at 357, 116 S.Ct. 2174 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n. 20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975))) (internal citations omitted). To the extent that we held otherwise in Nicacio, we believe that decision has been disapproved in Lewis. Here, no class members other than Mr. Lopez and Ms. Hodgers-Durgin have chosen to join the action as named plaintiffs. Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief. Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.

III

Because we find that the named plaintiffs have not alleged sufficient injury to entitle them to equitable relief, we need not reach the question whether the class that plaintiffs seek to represent was properly certified.

IV

The district court’s decision granting summary judgment for defendants is AFFIRMED.

1 . We have previously held that where claims for damages and equitable relief arise from the same “operative facts and legal theory” a plaintiff with standing to seek damages also has standing to request injunctive and declaratory relief. See Nava v. City of Dublin, 121 F.3d 453, 456 (9th Cir.1997) (citing Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983); Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir.1984) (per curiam); Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir.1987)). We applied that rule in Nava to hold that a plaintiff had standing to seek injunctive relief barring the California Highway Patrol's use of chokeholds even though the suit was "remarkably similar” to the Supreme Court’s decision in Lyons. See id. at 455-56 (quoting Lyons, 461 U.S. at 102, 103 S.Ct. 1660 (internal quotation omitted)). We believe that Nava 's holding that standing to seek damages serves as a basis for standing to seek equitable relief is inconsistent with Lyons, and we therefore overrule Nava and our prior decisions on which Nava relied. See id. at 460 (B. Fletcher, J., specially concurring)(“I cannot reconcile [the Nava line of cases] with Lyons. We should take this case en banc to decide whether the exception we have carved out ... should remain the law of our circuit.”).

2 . See Lyons, 461 U.S. at 105-08, 103 S.Ct. 1660 ("In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner.... We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.”) (emphasis added).

3 . By assuming the existence of Article III standing and resolving the case based on plaintiffs’ failure to establish a prerequisite for equitable relief, we do not violate "the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 1566-67, 143 L.Ed.2d 760 (1999) (citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). We affirm summary judgment for defendants not based on the underlying merits of plaintiffs’ claims but based on the scope of our equitable power to grant injunctive relief. See id. at 1570 ("A court that dismisses on ... non-merits grounds ..., before finding subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying ... Steel Company.").