# Hodgers-Durgin v. De La Vina > Court of Appeals for the Ninth Circuit · December 21, 1999 · 199 F.3d 1037 URL: https://www.frixlaw.com/law-library/cases/6984813 ## Case - **Full name:** Panchita HODGERS-DURGIN, individually and on behalf of all others similarly situated Antonio V. Lopez, individually and on behalf of all others similarly situated v. Gustavo DE LA VINA, in his official capacity Ronald E. Sanders, in his official capacity Stephen Norman, in his official capacity - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** December 21, 1999 - **Citations:** 199 F.3d 1037; 99 Daily Journal DAR 12711; 99 Cal. Daily Op. Serv. 9888; 1999 U.S. App. LEXIS 33093; 1999 WL 1215933 - **Precedential status:** Published - **Opinion:** Concurrence by Reinhardt - **Judges:** Brunetti, Fletcher, Hug, Kleinfeld, Nelson, Reinhardt, Rymer, Silverman, Sneed, Thomas, Trott - **Cited by:** 279 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6984813 ## How later opinions describe it (automated extraction) - explaining that "the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief,” and that ”[t]he named plaintiffs’ failure to establish a likelihood of future injury” will not only bar inj… - finding no “sufficient likelihood of injury to warrant equitable relief’ despite claim that the United States Border Patrol had a practice of pulling over certain drivers without cause because, although both plaintiffs drove a substantial amount, they had each been improperly … - stating that the Supreme Court in Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) "characterized the denial of Article III standing in Lyons as having been based on the plaintiff's ability to avoid engaging in illegal conduct” - holding that named plaintiffs could not bring a class action where the 13 class sought only equitable relief because they lacked individual standing to pursue such 14 relief - recognizing that evidence sufficient to support conclusion that a plaintiff faced a likelihood of future harm does not necessarily establish that the plaintiff-faces an immediate threat of sub stantial and irreparable harm ## Opinion text REINHARDT, Circuit Judge, specially concurring: This is not a case about federalism. Nor is it a case about separation of powers. Instead, it is a straightforward case about the traditional requirement that plaintiffs show a threatened injury in order to secure equitable relief against unconstitutional conduct. Judge W. Fletcher’s opinion for the court holds that, under the facts of this case, the named plaintiffs did not make a sufficient showing of threatened injury to warrant relief under the traditional doctrine of equity. I agree with that conclusion, as well as with the discussion concerning that point, and I therefore concur in the court’s opinion. I write separately, however, in order to disassociate myself from some of the opinion’s dicta and to attempt to make plain what we are deciding and what we are not. I *1046 particularly want to emphasize that, under the court’s opinion, if the plaintiffs had been able to make a sufficient showing — if, for example, they had been stopped repeatedly by the Border Patrol for the reasons alleged — there would be no barrier to a federal court’s issuing an appropriate injunction against such unlawful governmental conduct in a class action proceeding. Indeed, it is the role of the judicial branch to protect people against constitutional violations of their rights by the executive and legislative branches. The proper performance of that function in no way violates the separation of powers doctrine. To the contrary, it implements it. Any analysis of the case before us should begin with the fact that it involves the actions of the United States Border Patrol and not the operation of a state institution. Because this case concerns a federal institution, there is, in my opinion, no cause for the extensive discussion of federalism that precedes the opinion’s holding and the relevant part of its analysis. Moreover, I do not agree with the opinion’s suggestion that the various cases it surveys raise separation of powers concerns that are pertinent here. First, all the cases that the opinion canvasses — save one — concern state, not federal, institutions. See Lewis v. Casey, 518 U.S. 343 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996) (Arizona state prisons); City of Los Angeles v. Lyons, 461 U.S. 95 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983) (Los Angeles police department); Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976) (Philadelphia police department); O’Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974) (Alexander County, Illinois criminal justice system). Those cases, therefore, do not involve the question whether and to what extent separation of powers concerns arise when a challenge is brought regarding conduct engaged in by officials of a federal institution. Second, the one case discussed in the opinion in which the conduct of federal officials was at issue, LaDuke v. Nelson, 762 F.2d 1318 (9th Cir.1985), is a case in which we rejected the argument that separation of powers concerns were implicated. See LaDuke, 762 F.2d at 1325 (“While the coequal branches of the federal government are entitled to ‘the widest lattitude in the dispatch of [their] own internal affairs,’ the executive branch has no discretion with which to violate constitutional rights.” (citation omitted)). 1 It is true, as the court’s opinion notes, that one of the cited cases involving state institutions, Lems v. Casey, discusses separation of powers concerns in addition to principles of federalism. Judge W. Fletcher relies heavily on a quote from Lewis that states that it is not the role of courts to shape political institutions. (See Op. at 1043). Even assuming that the quoted portion of Lewis should be applied to cases involving federal institutions, the statements are wholly inapplicable to the present case, for three reasons. First, Lewis involved an injunction against a prison system. As the Lewis majority and both its concurrences emphasized, the Supreme Court has granted special deference to the administrative decisions of prison authorities and has limited the role of the judiciary in reviewing the determinations of those officials. See Lewis, 518 U.S. at 349, 361-62 , 116 S.Ct. 2174 (majority opinion); id. at 364-65, 386-87, 391 , 116 S.Ct. 2174 (Thomas, J., concurring); id. at 393, 402 , 116 S.Ct. 2174 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment). Reading Lewis’s statements about deference to administrative decisions in that context, the case sets *1047 forth no new or startling principles, and is of no relevance here. Second, the Lewis majority explained that its analysis would have been different had the asserted entitlement (a right to a law library) been constitutionally required. See Lewis, 518 U.S. at 350 , 116 S.Ct. 2174 (“The foregoing [separation of powers analysis] would not be pertinent here if, as respondents seem to assume, the right at issue — the right to which the actual or threatened harm must pertain — were the right to a law library or to legal assistance. But Bounds establishes no such right.”). Because the absence of law libraries did not constitute a cognizable injury within the meaning of the Fourteenth Amendment, the Lewis Court concluded that granting relief for such an injury would improperly infringe upon the political branches. In the present case, however, the entitlement asserted — the right to be free from race-based governmental discrimination in general and from searches and seizures based on race in particular— is constitutionally mandated. It is a right that the courts have the primary obligation to protect. For that reason, the plaintiffs assertion of the rights they seek to enforce does not raise the separation of powers concern described in Lewis . 2 Third, and most important, the separation of powers discussion in Lewis is irrelevant in the present case because the plaintiffs here did not seek relief that would preclude the executive branch from managing one of its own institutions. The district court in Lewis granted sweeping injunctive relief that “specified in minute detail” how the prisons were to be run. See Lewis, 518 U.S. at 347-48 , 116 S.Ct. 2174 . Here, in contrast, the plaintiffs did not ask the judiciary to specify “in minute detail” how the Border Patrol would be operated: they sought only a simple negative injunction against unconstitutional racial profiling and an order requiring the Border Patrol itself to take steps to ensure that its officers did not engage in racial profiling. 3 Thus, while the separation of powers concerns that the Lewis court raised stemmed in substantial part from the structural relief afforded by the district court, see Lewis, 518 U.S. at 349-357 , 116 S.Ct. 2174 , such concerns are unrelated to the present case. In the end, therefore, Lewis , like the other state institutions cases, is simply irrelevant to the case before us. I do agree with the pertinent parts of the court’s opinion, however. I agree with its holding — that plaintiffs seeking an injunction “must satisfy the traditional requirements of equity.” I also agree with its application of its holding — namely, that the named plaintiffs have failed to do so here. 0See Op. at 1043-44) The court is correct in concluding that this is a case in which, at the early stage of summary judgment, the weakness of the evidentiary showing is such that we are compelled to conclude that the named plaintiffs have simply failed to make the necessary demonstration of injury. In reality, all we hold in this case is that Ms. Hodgers-Durgin and Mr. Lopez are not the right plaintiffs to have filed this class action. We do not suggest that a class action brought by proper plaintiffs would offend concepts of federalism or separation of powers. The facts on summary judgment revealed that both named plaintiffs had been driving for many years on the roads at issue, and both had seen Border Patrol agents nearly every day during this time. In spite of their fre *1048 quent travel and the Border Patrol’s substantial presence, each named plaintiff had been stopped just once. Moreover, Ms. Hodgers-Durgin’s sole stop occurred immediately after her car slowed suddenly on the freeway, stopped for several minutes at an empty intersection, and then continued extremely slowly over a highway overpass. In light of her erratic behavior on the road, it is not surprising that she was stopped by a law enforcement officer. On the basis of the factual record before us, the court’s opinion correctly concludes that Mr. Lopez and Ms. Hodgers-Durgin have failed to make a showing that there is any likelihood that either of them will again be stopped by the Border Patrol. I should discuss one more point in order to make clear the limits of our decision. This is not a case in which there are no potential individual plaintiffs who meet the requirements for equitable relief even though it is likely that the would-be class, considered as a whole, does so. In the present case, the plaintiffs’ own evidence demonstrates that unnamed plaintiffs were available who could have met the traditional requirements for equitable relief. As the court’s opinion points out, several unnamed class members were stopped more frequently and more recently than Mr. Lopez or Ms. Hodgers-Durgin. One of those class members, Mr. Luis Villa, was stopped on more occasions than he could recall. Had Mr. Villa been a named plaintiff, his showing of likely future injury would in all probability have been sufficient to overcome summary judgment. That fact alone shows that this is a case about the selection of improper class representatives — and not a case about “our federalism” or about separation of powers. Moreover, were this a case in which a class, considered as a whole, was threatened with injury, but in which none of the individual plaintiffs could make the traditional showing of “imminent injury,” our judgment would likely have been different. On those different facts, the flexible doctrine of equity would have demanded a different approach — an approach that would have ensured that a class of minority group members may pursue a claim of unconstitutional racial profiling. That is not this case, however. I write this concurrence so that our opinion will not inadvertently lead district judges to believe that we have erected new barriers to the prosecution of racial profiling claims by class plaintiffs. I am confident that if (or when, given the unfortunate reality) racial profiling cases arise in the future, this court will continue to acknowledge that the Constitution guarantees relief from such unconstitutional conduct, see, e.g., Nicacio v. INS, 797 F.2d 700 (9th Cir.1985), that the federal courts have the primary obligation to protect constitutional rights, and that appropriate class representatives may seek relief on behalf of minority group members whose Fourteenth Amendment rights are threatened. Because the opinion’s narrow holding, and the relevant part of its discussion, do not retreat from our previous positions in these respects, I concur. . LaDuke also made plain that as a general matter it makes little sense to analogize a case involving federal officials to cases involving state officials. See LaDuke, 762 F.2d at 1325 ("Obviously, none of the considerations inherent in the judicial concept of 'Our Federalism' are implicated in constitutional challenges to executive branch behavior in federal courts.... Accordingly, the comity considerations which influenced the Supreme Court's decisions and O'Shea, Rizzo and Lyons are inapplicable in this case.” (citation omitted)). . This is true also of the plaintiffs' claim that the Border Patrol violated the Fourth Amendment by applying a policy of stopping, without probable cause or reasonable suspicion, persons driving at night on the highways of Arizona. . Even if the plaintiffs had sought to have the district court assume operational control of the Border Patrol, the court would not have been bound by that request. Rather, had a constitutional violation been established, the court would have had a range of constitutional remedies available to it, including the remedies actually sought by the plaintiffs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6984813. Public record. Not legal advice.