Walgreen Company v. Feliciano-De-Melecio

[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]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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