Hodgers-Durgin v. de la Vina

• Decision Date: 12 January 1999
• Docket Number: No. 97-16449,HODGERS-DURGIN,97-16449
• Citation: 165 F.3d 667
• Parties: 99 Cal. Daily Op. Serv. 326, 99 Daily Journal D.A.R. 403 Panchita, individually and on behalf of all others similarly situated; Antonio V. Lopez, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Gustavo de la VINA, in his official capacity; Ronald E. Sanders, in his official capacity; Stephen Norman, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 667

165 F.3d 667

99 Cal. Daily Op. Serv. 326, 99 Daily Journal

D.A.R. 403

Panchita HODGERS-DURGIN, individually and on behalf of all others similarly situated; Antonio V. Lopez individually and on behalf of all others similarly situated Plaintiffs-Appellants, v. Gustavo de la VINA, in his official capacity; Ronald E Sanders, in his official capacity; Stephen Norman, in his official capacity Defendants-Appellees.

No. 97-16449.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1998.

Decided Jan. 12, 1999.

Armand Salese, Salese & McCarthy, Tucson, Arizona, for plaintiffs-appellants.

Brenda E. Ellison, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CV-95-00029-JMR.

Before: BROWNING and SNEED, Circuit Judges, and RHOADES, ^* District Judge.

Opinion by Judge RHOADES; Dissent by Judge SNEED.

RHOADES, District Judge:

I. Overview

Plaintiffs, suing on behalf of themselves and a class of persons, allege that the United States Border Patrol routinely stops Arizona motorists without reasonable suspicion, in violation of the Fourth Amendment. Plaintiffs have sued three supervisory officials of the Border Patrol.

Plaintiffs appeal from the district court's denial of class certification and grant of summary judgment in favor of Defendants. For the reasons stated below, we reverse in both respects and remand for further proceedings.

II. Background

United States Border Patrol agents patrol the highways of southern Arizona in an effort to enforce the nation's immigration laws. Border Patrol agents often stop motorists and question them. These stops are "seizures" within the meaning of the Fourth Amendment. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Nicacio v. United States INS, 797 F.2d 700, 702 (9th Cir.1986).

Plaintiff Panchita Hodgers-Durgin, an American citizen, lives in southern Arizona and commutes on its highways. She left a friend's house late one night and drove home. While enroute, she passed a parked Border Patrol unit, which followed her. She then began to have mechanical problems, with her car repeatedly slowing of its own accord before speeding up again. She exited the highway and continued her journey on a surface street.

Minutes later, the Border Patrol agent stopped her. The agent inquired about her citizenship and asked her to open the car's hatchback. The agent searched the cargo area and, finding no contraband, departed.

Plaintiff Antonio Lopez, an Arizona resident of Hispanic appearance, had a similar encounter. One afternoon, Lopez was driving the speed limit in the "slow lane." A Border Patrol unit drew abreast of Lopez in the "fast lane." The Border Patrol unit then accelerated and moved into Lopez's lane directly in front of him. The unit slowed dramatically, and Lopez had to slow accordingly. Lopez drove behind the unit briefly but then changed lanes and continued his journey at the speed limit. ¹

The Border Patrol agent stopped Lopez. The agent asked to search the car, and Lopez consented. Finding nothing, the agent allowed him to leave.

The record indicates that Border Patrol agents have stopped numerous people of Hispanic appearance, some repeatedly. Agents have stopped them both during day and night hours. For example, Border Patrol agents reportedly have stopped two Arizona residents, Javier Barajas and Jose de la Vara, at least three times each. Border Patrol agents allegedly have detained another Arizona commuter, Luis Villa, numerous times. Each time, the agents discovered no evidence of wrongdoing.

In addition, the record contains numerous reports written by Border Patrol agents that describe the reasons they stopped Hispanic motorists during the day and night, and the reasons they stopped other motorists at night. Some of these reports, known as I-44s, do not describe facts that give rise to reasonable suspicion for these stops, as required by the Fourth Amendment. ² (See, e.g., Pls.' Mot. to Reconsider Following their stops, Lopez and Hodgers-Durgin sued three supervisory officials of the Border Patrol (Defendants herein). ⁴ Plaintiffs claim that the Border Patrol engages in a "pattern and practice" of stopping motorists of Hispanic appearance on less than reasonable suspicion, in violation of the Fourth Amendment. Plaintiffs also claim that the Border Patrol similarly stops motorists of any ethnicity at night (it is, obviously, difficult to ascertain a passing motorist's ethnicity at night). Plaintiffs sought only declaratory and injunctive relief.

Class Certification at 6 (quoting an I-44 that stated only that a newly painted car contained two Hispanic males)). Other reports that adequately describe such facts bear striking similarity to each other--indeed, they are identical except for such details as the time of day, the color of the vehicle, etc. (See id. at 13-15 (quoting several I-44s)). We have previously expressed skepticism about the veracity of such reports. See United States v. Garcia-Camacho, 53 F.3d 244, 246 (9th Cir.1995) (expressing skepticism about "mere rote citations" of facts that give rise to reasonable suspicion); United States v. Rodriguez, 976 F.2d 592, 595 (9th Cir.1992) (stating that "this profile is so familiar, down to the very verbiage chosen to describe the suspect, that an inquiring mind may wonder about the recurrence of such fortunate parallelism in the experiences of the arresting agents"), amended on other grounds, 997 F.2d 1306 (9th Cir.1993). ³

Plaintiffs sued on behalf of themselves and the following class of persons: everyone who drives on highways in southern Arizona at night, and everyone of Hispanic appearance who drives on highways in southern Arizona at any time. ⁵ Plaintiffs moved for class certification. Defendants opposed the motion and filed a Motion to Dismiss, arguing that Hodgers-Durgin and Lopez lacked standing.

The district court first held that for standing purposes, it must assess the standing of the class as a whole, rather than the standing of the named Plaintiffs. The district court therefore deferred ruling on the Motion to Dismiss until after it decided the class certification issue. The court then considered whether it should certify the class. It answered this question in the negative, finding that the "commonality" and "typicality" requirements of Federal Rule of Civil Procedure 23(a) were not satisfied. The court's refusal to certify the class left only Hodgers-Durgin and Lopez as Plaintiffs.

The district court then found that they lacked standing. Construing the Motion to Dismiss as a motion for summary judgment, the court granted summary judgment for Defendants. ⁶

Plaintiffs timely appealed to this Court, which has jurisdiction under 28 U.S.C. § 1291.

III. Discussion

The first question is whether Plaintiffs have standing. Answering this question requires determining whether we should assess the standing of the named Plaintiffs only, or the standing of the class as a whole. If Plaintiffs have standing, the next question is whether the district court properly refused to certify the class.

A. Standing

1. Standard Of Review

We review the district court's standing determination and grant of summary judgment de novo. See C.N.R. Atkin v. Smith, 137 F.3d 1169, 1170 (9th Cir.1998) (summary judgment); Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997) (standing). At the summary judgment stage, we affirm only if Plaintiffs have not adduced any evidence from which they may be able to establish standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We construe all evidence in the light most favorable to Plaintiffs. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

2. Whether The Court Should Assess The Standing Of The Named Plaintiffs Or The Standing Of The Class

Plaintiffs argue that we should determine the standing of the class itself. Plaintiffs rely on Nicacio v. United States INS, 797 F.2d 700, 702 (9th Cir.1985), and LaDuke v. Nelson, 762 F.2d 1318, 1325-26 (9th Cir.1985), as amended, 796 F.2d 309 (9th Cir.1986). In these cases, we held that "[f]or standing purposes, this court's inquiry must focus on the standing of the class to seek equitable relief." LaDuke, 762 F.2d at 1325; see also Nicacio, 797 F.2d at 702 (stating that "we look not merely to the possibility of injury to one individual, but to the foreseeability of harm to members of an entire class").

These cases are distinguishable. In each case, the district court already had certified the class before we undertook our standing inquiry, thereby giving the class " 'a legal status separate from the interest' " of the named plaintiffs. LaDuke, 762 F.2d at 1325 (quoting Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). "Standing, however, is a jurisdictional element that must be satisfied prior to class certification." Id. This "requires the litigant to 'establish[ ] the requisite of a case or controversy with the defendants.' If the litigant fails to establish standing, he may not 'seek relief on behalf of himself or any other member of the class.' " Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir.1990) (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)); see also Lewis v. Casey, 518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that the fact "[t]hat 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") (internal quotation marks and citations omitted); Lee v. Oregon, 107 F.3d 1382, 1390 (9th Cir.) (holding that standing must exist prior to class...