Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 3761-Ronald A. Guzmán, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.
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- 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 re-enter 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- 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 "non-routine" 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 non-routine 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 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 re-entry 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 re-entry 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).
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 ...