                             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 Constitu-
tion. 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 exam-
    ining 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 territo-
    rial 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 ap-
proving 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 re-
quirement 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 privi-
lege, 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 diffi-
cult task, since those arriving by car do not require pass-
ports, 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 ques-
tions 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 (Septem-
ber 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, member-
ship 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 defini-
    tions.
    •   The classes grow or shrink with the plaintiffs’ con-
        tentions 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 plain-
        tiff 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 nation-
wide 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 mem-
bership 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 Corpora-
tion 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 prac-
tices 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 representa-
tives’ 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-enforce-
ment 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 in-
junction 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 certi-
fied 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 Litiga-
tion, 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 applica-
tion” 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 representa-
tive—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 nega-
tives. Delays depend not only on technology (do pass-
ports 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 secu-
rity—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 de-
fendants can moot the litigation by offering compromises
to all named plaintiffs. Defendants have shown no in-
clination 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 super-
vision 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
