In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-3430

M. AKIFUR RAHMAN, et al.,

Plaintiffs-Appellees,

v.

MICHAEL CHERTOFF, Secretary

of Homeland Security, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 05 C 3761—Ronald A. Guzmán, Judge.

____________

ARGUED MAY 13, 2008—DECIDED JUNE 26, 2008

____________

Before EASTERBROOK, Chief Judge, and KANNE and TINDER,

Circuit Judges.

EASTERBROOK, Chief Judge. Plaintiffs seek to represent

a class of citizens who have been delayed in reentering

the United States from abroad as a result of watch lists

maintained by the Department of Homeland Security.

Persons on these lists are screened with special attention.

Some plaintiffs contend that they should not be on a

list, because they do not pose any threat of terrorism or

other unlawful acts. Other plaintiffs maintain that, if

they are to be listed, they should be in a low-threat classifi-
2 No. 07-3430

cation. Still others contend that they are not on a list but

have been mistaken (because of similar or identical names)

for persons legitimately listed. All plaintiffs contend

that the Department and the FBI should take more, and

more effective, steps to remove from the lists persons

who (in plaintiffs’ view) should not be there, and find

better ways to distinguish among persons with similar

names or other characteristics. Defendants are improving

identification by requiring passports at more places of

entry and introducing passports with biometric data,

but plaintiffs are displeased with the details of these

programs.

According to plaintiffs, undue delay in allowing a

citizen to reenter the United States violates the Constitution. Plaintiffs also believe that the Constitution forbids

frightening steps, such as pointing weapons at travelers

whose activities arouse suspicions. These propositions

are questionable.

The Government’s interest in preventing the

entry of unwanted persons and effects is at its

zenith at the international border. Time and again,

we have stated that “searches made at the

border, pursuant to the longstanding right of the

sovereign to protect itself by stopping and examining persons and property crossing into this

country, are reasonable simply by virtue of the

fact that they occur at the border.” United States v.

Ramsey, 431 U.S. 606, 616 (1977). Congress, since

the beginning of our Government, “has granted

the Executive plenary authority to conduct routine

searches and seizures at the border, without

probable cause or a warrant, in order to regulate

the collection of duties and to prevent the intro-
No. 07-3430 3

duction of contraband into this country.” [United

States v. Montoya de Hernandez, 473 U.S. 531, 537

(1985)] (citing Ramsey, supra, at 616–617 (citing Act

of July 31, 1789, ch. 5, 1 Stat. 29)). The modern

statute that authorized the search in this case, 46

Stat. 747, 19 U.S.C. § 1581(a), derived from a

statute passed by the First Congress, the Act of

Aug. 4, 1790, ch. 35, § 31, 1 Stat. 164, see United

States v. Villamonte-Marquez, 462 U.S. 579, 584

(1983), and reflects the “impressive historical

pedigree” of the Government’s power and interest,

id., at 585. It is axiomatic that the United States, as

sovereign, has the inherent authority to protect,

and a paramount interest in protecting, its territorial integrity.

United States v. Flores-Montano, 541 U.S. 149, 152–53 (2004)

(footnote omitted). The Court held in Flores-Montano that

the United States is entitled to stop, and disassemble, any

car or truck entering the United States at the border,

without particularized suspicion. The delay occasioned

by the sort of search approved in Flores-Montano often

must exceed the delay about which plaintiffs complain.

See also, e.g., United States v. Arnold, 523 F.3d 941 (9th

Cir. 2008) (border agents do not need particularized

suspicion to search the contents of a computer’s hard drive

for child pornography or other criminal activity).

Notwithstanding the Supreme Court’s decisions approving suspicion-free stops and searches at the border,

the district court denied defendants’ motion to dismiss the

suit. 244 F.R.D. 443 (N.D. Ill. 2007). The district judge

observed that especially intrusive searches, such as those

of body cavities, require person-specific suspicion, and

it generalized from that to the proposition that any
4 No. 07-3430

“nonroutine” search or detention must be justified by a

reliable and accurate record-keeping system. That is hard

to reconcile with Flores-Montano, which rejected the

ninth circuit’s conclusion that all nonroutine border

searches require justification. See 541 U.S at 152–53. The

Executive Branch has broad authority to stop goods and

persons at the border to gather information and ascertain

the propriety of the proposed entry. Stops that entail

intrusive searches of the body are in a special category,

but this case does not concern them. As the Court wrote in

Flores-Montano, “the reasons that might support a requirement of some level of suspicion in the case of highly

intrusive searches of the person” do not carry over to

other kinds of stops. 541 U.S. at 152.

The district court’s decision has opened the door to

discovery and sparked a debate about the application

of the state-secrets privilege. See 2008 U.S. Dist. LEXIS

32356 (N.D. Ill. Apr. 16, 2008) (Schenkier, M.J.). Our

concern today is not the district court’s refusal to dismiss

the suit—a decision that is interlocutory and not yet

reviewable, given the lack of certification under 28

U.S.C. §1292(b)(1)—or the scope of the state-secrets privilege, but the court’s decision to certify two nationwide

classes.

Plaintiffs want the district court to superintend the

process of inspecting persons who present themselves at

the border for entry. Plaintiffs think that an injunction

should cover just about every aspect of entry procedure,

from the degree of suspicion required for inquiry, the

way officials try to determine a person’s identity (a difficult task, since those arriving by car do not require passports, and even those documents can be forged or altered),

and how the FBI communicates its decision to close
No. 07-3430 5

investigative files, to details about bathrooms and food

service in rooms where arriving travelers wait for questions or inspections. Plaintiffs say that the Constitution

requires federal officials to notify the travelers’ relatives

about the likely duration of delay in entry. According to

plaintiffs, the Constitution requires defendants to adopt

most, if not all, of the proposals that the Department of

Justice’s Inspector General made in two recent reports.

See Follow-up Audit of the Terrorist Screening Center (September 2007) (Audit Report 07–41); Audit of the Terrorist

Watchlist Nomination Process (March 2008) (Audit Report

08–16). Plaintiffs want the response to these reports taken

out of the Executive Branch’s hands. And the best way to

do that, plaintiffs believe, is via an injunction covering

large classes.

The district court has certified two classes. The “Primary

Traveler Class” is “All United States citizens who now

are and/or in the future will be subjected to detentions

upon reentry to the United States as a result of defendants’

contested policies, practices and customs.” The “Family

Detainee Class” is “All persons who now are and/or in

the future will be subjected to detention upon reentry to

the United States as a result of defendants’ contested

policies, practices and customs and because they are a

family member of and traveling with a member of the

primary traveler class.” The class definitions do not

specify what “defendants’ contested policies, practices

and customs” are. But the consequence of this approach is

that, every time plaintiffs file a brief or motion, membership in the classes may change. Defendants find the

definitions unsatisfactory. They sought, and we granted,

permission for interlocutory appeal under Fed. R. Civ. P.

23(f).
6 No. 07-3430

It isn’t hard to see problems with these class definitions.

• The classes grow or shrink with the plaintiffs’ contentions as the case progresses.

• The word “detention” is undefined and could mean

anything from “stopped for 60 seconds to present a

passport” to “held incommunicado for more than a

day”.

• Even in retrospect the court will not know who is in

the class and who is not, because the state-secrets

privilege is bound to cover some of the “contested

policies, practices and customs” and some of their

applications to some travelers.

• For these and other reasons it is impossible to tell

whether all of the named plaintiffs are (or will be at

the end of the case) members of the classes they

purport to represent. And it may turn out that the

judges are in the class, and should have disqualified

themselves, but didn’t know it.

• It is also uncertain whether any particular challenged

practice has affected any particular named plaintiff,

and whether at least one named representative plaintiff has standing to challenge each practice that

eventually becomes contested.

• If plaintiffs prevail, framing relief is apt to require

person-specific decisions (such as “persons X and Y

shouldn’t be on the list” or “defendants must give

person Z a credential that will be good enough to

ensure that agents don’t confuse him with person Q,

who is properly on the list”) that would be more

appropriate to individual actions.
No. 07-3430 7

Plaintiffs acknowledge that the classes’ membership will be

hard to pin down but insist that this is irrelevant because

the district court certified them under Rule 23(b)(2) rather

than Rule 23(b)(3). Members of a Rule 23(b)(2) class do not

receive notice and can’t opt out. As plaintiffs conceive

things, classes just make the suit a vehicle for nationwide injunctive relief; their scope is unimportant. They

point to language in the Advisory Committee Note to

the 1966 amendments of Rule 23—the Committee said

that “in the civil-rights field” the fact that a class’s membership is “incapable of specific enumeration” does not

prevent certification—and the fact that this court approved

an open-ended class definition in Alliance to End Repression

v. Rochford, 565 F.2d 975, 978 (7th Cir. 1977).

A class of “all current and future employees of Corporation D” (which is said to discriminate on account of

race)—the sort of class to which the Committee Note

refers—is more concrete than the classes certified here.

Its members could be enumerated eventually. The suits

contemplated by the Note don’t involve shifting claims

or state-secret privileges, which prevent enumeration

even with all-out effort.

The Advisory Committee’s Note led many courts

to certify what they called “across-the-board classes”,

defined to cover all of the defendants’ challenged practices whether or not the nominal representatives had

been injured by a particular practice. The Supreme Court

disapproved across-the-board classes in General Telephone

Co. v. Falcon, 457 U.S. 147 (1982), and Falcon shows that

the classes certified here are untenable. The Court held

that the certified class must correspond to the injuries

received by the representative plaintiffs. A class of all

persons now or in the future subject to unspecified prac-
8 No. 07-3430

tices may have nothing to do with the named representatives’ injuries, or what caused them.

Alliance to End Repression is a relic of a time when the

federal judiciary thought that structural injunctions

taking control of executive functions were sensible. That

time is past. The decrees issued in that case have

been vacated, in decisions that also demonstrate the

impropriety of certifying open-ended classes to facilitate

structural injunctions designed to regulate law-enforcement practices. See, e.g., Alliance to End Repression v.

Chicago, 742 F.2d 1007 (7th Cir. 1984) (en banc); Alliance to

End Repression v. Chicago, 237 F.3d 799 (7th Cir. 2001).

The classes certified in this case are equivalent to a

class of “all persons in the United States who have been,

or ever will be, stopped without probable cause” certified

in an effort to take control of how the police investigate

crime and make arrests. Improper arrests are best

handled by individual suits for damages (and potentially

through the exclusionary rule), not by a structural injunction designed to make every error by the police an

occasion for a petition to hold the officer (and perhaps

the police department as a whole) in contempt of court. Just

so with stops at the border.

Classes of the sort certified in this case are incompatible

with Rule 23(a)(3), which says that a class may be certified only if “the claims or defenses of the representative

parties are typical of the claims or defenses of the class”. As

we’ve said, no one knows whether the representatives

are even in the classes the district judge defined, let alone

whether their claims are “typical.” See also In re

Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 288 F.3d 1012 (7th Cir. 2002). What’s more, a class

may be certified under Rule 23(b)(2) only if “the party
No. 07-3430 9

opposing the class has acted or refused to act on grounds

that apply generally to the class”. The “general application” of practices to be specified later—and that when

specified may turn out to affect only subsets of the class,

which may or may not include any named representative—is hard to evaluate.

The classes here are so ambulatory that plaintiffs might

as well have proposed a class comprising “We the

People of the United States”. The expansive nature of that

class (and of the two classes actually certified) shows that

the case presents issues more suited to resolution by the

democratic process than to adjudication. How much

time returning travelers should spend cooling their heels

at the border, while agents try to determine whether

they are who they claim to be, and have been where they

claim to have been, are legislative or executive questions.

The political process is receptive to citizens who are

abused by bureaucrats. The FBI and Department of

Homeland Security have agreed to implement many of

the Inspector General’s suggestions (though not as many,

or as fast, as plaintiffs think they should).

The problem (from plaintiffs’ perspective) may be that

Congress and the President worry at least as much about

false negatives—that is, people who should be on a

watch list but aren’t—as about false positives (people

who are on the list but shouldn’t be, and people who

aren’t on the list but are mistaken for someone who is).

Judges are good at dealing with false positives, because

the victims come to court and narrate their grievances,

but bad at dealing with false negatives, which are invisible.

Any change that reduces the number of false positives

on a terrorist watch list may well increase the number

of false negatives.
10 No. 07-3430

Political rather than judicial actors should determine

the terms of trade between false positives and false negatives. Delays depend not only on technology (do passports include biometric data, and, if so, subject to what

safeguards?) and other political choices (which entrants

require passports?) but also on the size of the staff

assigned to screen travelers. Only Congress can authorize

the hiring of additional agents in order to reduce waiting

time or provide extra backup. One plaintiff says that a

nervous border agent drew a gun unnecessarily and

embarrassed him before his family; a larger staff

would leave fewer agents fearful for their own security—but at any given staff size an injunction telling

agents to be calm and patient would be a waste of paper.

Plaintiffs are entitled to relief that will redress any

discrete wrong done them. That can be accomplished

without certifying a class. There is no risk that the defendants can moot the litigation by offering compromises

to all named plaintiffs. Defendants have shown no inclination to do so, and the strategy could not work, because

other travelers could intervene to carry on. Decisions

favorable to particular plaintiffs will have their effect in

the normal way: through the force of precedent. If this

seems a modest vision of the judiciary’s role, we answer

that modesty is the best posture for the branch that

knows the least about protecting the nation’s security and

that lacks the full kit of tools possessed by the legislative

and executive branches. Presidents, Cabinet officers, and

Members of Congress can be dismissed by the people

if they strike an unwise balance between false positives

and false negatives, between inconvenience today and

mayhem tomorrow; judges are immune from that supervision and must permit those who bear the blame for
No. 07-3430 11

errors (in either direction) to assume the responsibility

for management.

REVERSED AND REMANDED

USCA-02-C-0072—6-26-08