Barcelo v. Brown

78 F.R.D. 531, 1978 U.S. Dist. LEXIS 18169
District Court, D. Puerto Rico·Decided April 25, 1978·No. Civ. Nos. 78-323 and 78-377·Published·Cited by 4 cases

Opinion

TORRUELLA, District Judge.

OPINION AND ORDER

This cause came to be heard on the matters indicated in our Order of April 5, 1978. Upon hearing the arguments of the parties, the Court has issued various Orders which will be expounded at the present instance.

[533] I. The Standing Issue:

On March 2, 1978 the Court directed the parties to brief on the standing of Carlos Romero Barceló and Radamés Tirado Guevara to appear as Plaintiffs in Civil Number 78-323.

The caption of the complaint indicates that Plaintiff Romero Barceló is appearing in his capacity as Governor of Puerto Rico. He sues “on his own behalf and on behalf of the Commonwealth of Puerto Rico.” Plaintiff Tirado comes before the Court in his official capacity as Mayor of Vieques.

At the hearing, Defendants conceded that there is no serious question as to the standing of Plaintiff Tirado. We agree.

The Mayor of Vieques is statutorily empowered to represent the Municipality in judicial actions, 21 L.P.R.A. 1255, and the Complaint contains sufficient averments of injury to the Municipality of Vieques.1 Since the Mayor is appearing in his official capacity, it is the Court’s view that the threshold requirement of “injury in fact” has been adequately satisfied. See, Association of Data Processing v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Moreover, that the injury asserted by Plaintiff Tirado “arguably falls within the zone of interests” protected or regulated by the federal statutes invoked, Id., at 152-153, 90 S.Ct. at 830, is so clear as to require no further discussion. See Barlow v. Collins, 397 U.S. 159, 164-165, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).2

The Court has ruled that Plaintiff Romero Barceló lacks standing to prosecute this action as an individual.3 Furthermore, there are strong reasons to deny him standing as representative of the “citizens” of Puerto Rico. Cf. Commonwealth of Mass, v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); State of South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803,15 L.Ed.2d 769 (1966). Nevertheless, his appearance as Governor of Puerto Rico is, at least indicative of an “official” stake and interest in the present controversy that justify his invocation, as Chief Executive of the Commonwealth, of this Court’s jurisdiction. See Kennedy v. Sampson, 167 U.S. App.D.C. 192, 511 P.2d 430 (1974); Mitchell v. Laird, 159 U.S.App.D.C. 344, 488 F.2d 611 (1973).4

II. Request for Class Certification in Civil Number 78-377:

Plaintiffs describe the purported class as the “past, present and future residents of the Island of Vieques, Puerto Rico, who have suffered, are suffering and will continue to suffer economic, physical, environmental and other injuries to their lives, liberty, property, health and wellbeing, due to the policies, practices, acts and omissions of the Defendants. . . . ” Within this overall class, Plaintiffs seek certification of two subclasses:5 (1) “The class of all fishermen in Vieques, . ... who depend on fishing for their livelihood” and (2) “the class of all those people who, at the time of the Navy occupation of the Island of Vie-ques, in or around 1941, and thereafter, owned property, and were deprived of that property due to illegal actions of the United States Navy.”

[534] Rule 23(a), F.R.Civ.P. sets forth the prerequisites to class actions as follows:

“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” (Emphasis supplied).

In turn Rule 23(b) reads, as is herein pertinent:

“An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) . . .
(2) . . .
(3) the Court finds that the question of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) . . .
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (our emphasis)

The party who invokes Rule 23 has the burden of showing that all of the prerequisites to utilizing the class action procedure have been complied with. Valentino v. Howlett, 528 F.2d 975 (7th Cir., 1976); Davis v. Romney, 490 F.2d 1360 (3rd Cir., 1974); Poindexter v. Teubert, 462 F.2d 1096 (4th Cir., 1972); Demarco v. Edens, 390 F.2d 836, 845 (2nd Cir., 1968). After analyzing the relevant factors involved, we think that Plaintiffs have not met their burden.

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Barcelo v. Brown, 78 F.R.D. 531, 1978 U.S. Dist. LEXIS 18169 (prd 1978).

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