Hodgers-Durgin

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,…

The question in this case is whether two individual plaintiffs may bring a class action for equitable relief against officials of the United States Border Patrol who supervise operations along the Mexican bor *1039 der in the state of Arizona. Plaintiffs, who each were stopped once by Border Patrol agents, contend that the stops violated the Fourth Amendment’s prohibition against unreasonable seizures. They seek equitable relief, asking in their complaint for a declaratory judgment that “the roving patrol operations [of the Border Patrol] involve systemic violations of the Fourth Amendment to the United States Constitution,” and for an injunction “prohibiting Defendants from further ordering, directing, sanctioning or knowingly permitting such unconstitutional practices” and requiring defendants “to prescribe and implement measures sufficient to prevent resumption of those practices.”

The district court granted summary judgment to defendants on the ground that plaintiffs do not have standing to seek equitable relief requiring the Border Patrol to change its practices. We review de novo a grant of summary judgment. See Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365 , 369…