Filed: Apr. 23, 2001
Latest Update: Feb. 21, 2020
Summary: Victor P. Miranda Corrada and Roberto Roldan Burgos on brief, for appellant. The district court denied motions under Fed.Appellant misconceives the nature of the rights at stake.pharmacies.state of the economy, and other factors.fairly representing its interests, Daggett, 172 F.3d at 112;
[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2012
WALGREEN CO., WALGREEN OF SAN PATRICIO, INC.,
AND WALGREEN OF PUERTO RICO, INC.,
Plaintiffs, Appellees,
v.
CARMEN FELICIANO DE MELECIO,
SECRETARY OF THE PUERTO RICO DEPARTMENT OF HEALTH,
Defendant, Appellee.
____________________
ASOCIACION FARMACIAS DE COMUNIDAD DE PUERTO RICO, INC.,
Intervenor, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin and Campbell, Senior Circuit Judges.
Victor P. Miranda Corrada and Roberto Roldan Burgos on brief
for appellant.
Victor P. Miranda Corrada on brief for appellee Carmen
Feliciano de Melecio.
Yolanda Benitez de Alegria, Stephen D. Poss and Henry C.
Dinger on brief for Walgreen Co., Walgreen of San Patricio,
Inc., and Walgreen of Puerto Rico, Inc.
March 28, 2001
Per curiam. Appellant Asociacion Farmacias de Comunidad de
Puerto Rico (Asociacion), an organization representing 500
independent Puerto Rico pharmacies, sought to intervene in a
suit brought by Walgreen Company, a large pharmaceutical chain,
seeking to invalidate a Puerto Rico licensing system for new and
relocating pharmacies. The Asociacion wants to support the
defendant, Puerto Rico's Secretary of Health, in rebuffing
Walgreen's claim that the system violates the Commerce Clause of
the Constitution. The district court denied motions under Fed.
R. Civ. P. 24(a) and (b) for mandatory and permissive
intervention, and the Asociacion then brought this interlocutory
appeal. We affirm, primarily for the reasons expressed by the
district court, adding only the following thoughts.
To begin, our review is constrained by a considerable
measure of deference to the district court's discretion, as
there is no claim that improper standards were applied. See
Pub. Serv. Co. of New Hampshire v. Patch, 136 F.3d 197, 204 (lst
Cir. 1998).
Appellant identifies the interest it seeks to protect as its
members' "procedural and participation rights in the
administrative determination of whether to issue or not a
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Certificate of Necessity and Convenience." It also asserts that
some members' appeals from adverse administrative determinations
are pending in the courts of Puerto Rico and that invalidation
of the statutory scheme would in effect adjudicate those appeals
and violate their due process rights.
Appellant misconceives the nature of the rights at stake.
No member's right to establish or relocate a pharmacy is
affected. Rather, the administrative proceedings reflect
members' attempts to defeat the applications of other
pharmacies. Such an interest in foreclosing competition falls
short of the "interest relating to the property or transaction"
required by Rule 24(a)(2). As we held in Patch, 136 F.3d at
205, 207 n.8, neither prior nor anticipated participation in
administrative proceedings constitutes an "independent basis for
intervention." To the extent that potential economic harm
resulting from the proceedings could so qualify, it must be more
than "overly contingent."
Id. at 205. The ongoing litigation
must "directly threaten[] an economic right or benefit presently
enjoyed . . . . "
Id. Here, economic harm threatened by the
entrance of a competitor on the scene is subject to the actions
and capacities of competitors, the nature of the markets, the
state of the economy, and other factors. In these
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circumstances, appellant's members have no protectable right to
the continuation of the regulatory process.
Appellant asserts that the Secretary will not provide
adequate representation of its members' interests, basing its
argument on the complaint's allegation that the Health
Department fails to maintain adequate records of proceedings and
decisions. Appellant contends that the Department would be
unlikely to admit the existence of record-keeping flaws, while
the Asociacion would point out such flaws and demonstrate that
they impact both local and out- of-state pharmacies and thus
reflect administrative inefficiency, not unconstitutional
discrimination against out-of-state businesses.
The possibility that different legal arguments will be used
does not constitute inadequate representation, Daggett v. Comm'n
on Governmental Ethics and Election Practices, 172 F.3d 104, 112
(lst Cir. 1999), and, indeed, appellants were granted permission
to submit an amicus brief in which any such variations could be
presented, see Massachusetts Food Ass'n v. Massachusetts
Alcoholic Beverages Control Comm'n,
197 F.3d 560, 567 (lst Cir.
1999). Bearing in mind the considerable burden borne by a
would-be intervenor to show that a government agency is not
fairly representing its interests,
Daggett, 172 F.3d at 112;
Patch, 136 F.3d at 207, we conclude that appellants' "offer [of]
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a different angle" on legal questions, Patch, 136 F.3d at 210,
is insufficient to warrant reversing the district court's
judgment.
As for denial of permissive intervention, what we have said
clearly supports the district court's exercise of discretion.
Affirmed.
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