Mexican Gulf Fishing Co. v. U.S. Dep't of Commerce

• Decision Date: 02 June 2021
• Docket Number: CIVIL ACTION NO. 20-2312 SECTION: "E" (1)
• Parties: MEXICAN GULF FISHING COMPANY, Plaintiffs v. U.S. DEPARTMENT OF COMMERCE, ET AL., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

MEXICAN GULF FISHING COMPANY, Plaintiffs
v.
U.S. DEPARTMENT OF COMMERCE, ET AL., Defendants

CIVIL ACTION NO. 20-2312 SECTION: "E" (1)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

June 2, 2021

ORDER AND REASONS

Before the Court is Plaintiffs' motion to certify a class of "Gulf for-hire vessel charter boat owners and operators who are permitted to fish by the Fishery Management Councils of the Gulf of Mexico and South Atlantic and are harmed by the Final Rule."¹

BACKGROUND

The Class Representatives' Claims

Plaintiffs are a group of charter boat captains and owners who take clients fishing in the Gulf of Mexico. Defendants are various federal government agencies and officials, including the United States Department of Commerce ("USDOC"), the National Oceanic and Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS") (the three agencies together are herein referred to as the "Government"). USDOC is the primary agency responsible for domestic marine fisheries in federal waters and has delegated this responsibility to NOAA.² NOAA has subdelegated those responsibilities to NMFS.³

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On July 21, 2020, the Government published a Final Rule requiring Gulf for-hire vessel owners and operators to submit electronic fishing reports "before offloading fish from the vessel, or within 30 minutes after the end of each trip if no fish were landed" and to submit the fishing report "using hardware and software approved by NMFS for use in the Gulf for-hire reporting program. . . ."⁴ The Final Rule also requires affected vessels to have NMFS-approved hardware and software with GPS location capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS. . . . The cellular or satellite VMS will need to be permanently affixed to the vessel and have uninterrupted power, unless the owner or operator applies for and is granted an exemption to power-down a cellular or satellite VMS unit."⁵ The Final Rule took effect on January 5, 2021.⁶

On August 20, 2020, Plaintiffs filed this action for declaratory relief voiding the Final Rule and injunctive relief enjoining the Government from enforcing the Final Rule.⁷

The Proposed Class Definition

On November 19, 2020, Plaintiffs moved to certify the class of "Gulf For-hire vessel charter boat owners and operators who are permitted to fish by the Fishery Management Councils of the Gulf of Mexico and South Atlantic and are harmed by the Final Rule" and to confirm class representatives.⁸ In the Final Rule, the Government stated "NMFS expects this final rule to directly affect all vessels with a Federal charter vessel/headboat

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permit for Gulf reef fish or Gulf CMP species. The analysis presented in this final rule has been updated to incorporate new data and information that became available after the proposed rule published. . . . As a result, the estimated 1,368 for-hire vessels that will be affected by this final rule are expected to consist of approximately 1,298 charter vessels and 70 headboats."⁹ In their Complaint, Plaintiffs allege, "the federal government has records of all these individuals through their permit applications, [therefore] the class can be identified and adequately notified."¹⁰

The Proposed Class Representatives

Plaintiffs move to confirm 11 class representatives: (1) Captain Billy Wells; (2) Mexican Gulf Fishing Company ("Mexican Gulf"); (3) Captain Allen Walburn; (4) A&B Charters ("A&B"); (5) Captain Kraig Dafcik; (6) Captain Joey Dobin; (7) Joey D. Charters; (8) Captain Frank Ventimiglia; (9) Ventimiglia, LLC; (10) Captain Jim Rinckey; and (11) Fishing Charters of Naples.¹¹ Plaintiffs allege the proposed class representatives all are "owners and operators of charter boat Gulf For-hire boats that have Reef and Pelagic fish licenses from the government and qualify as small businesses. Each representative is very concerned about the violations of the Constitution, personal privacy, costs, expenses and intrusiveness of this rule."¹²

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STANDARD

Requirements for Class Certification

The party seeking to certify a class bears the burden of demonstrating the case is appropriate for class treatment.¹³ Class certification is within the district court's discretion, and the decision is essentially a factual inquiry.¹⁴ The class certification decision should not reach the merits of plaintiffs' claims.¹⁵ It may be necessary, however, for a district court to look beyond the pleadings to understand the claims, defenses, substantive law, and relevant facts to make a meaningful certification decision.¹⁶ The district court must "conduct a rigorous analysis" under Rule 23 before certifying a class and must make specific findings regarding how the case satisfies or fails to satisfy the requirements of Rule 23.¹⁷

To certify a class, the court must first consider whether the prerequisites of Rule 23(a) have been met. Rule 23(a) states:

(a) Prerequisites to a Class Action. 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 parties 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.¹⁸

If all four prerequisites of Rule 23(a) are satisfied, a district court may permit the action to be maintained as a class, so long as the action falls within any one or more of the

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three categories established by Rule 23(b). In this case, Plaintiff seeks to certify the class pursuant to Rule 23(b)(3).¹⁹ Rule 23(b)(3) provides in pertinent part:

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition . . .
(3) the court finds that the questions 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 these findings include: (A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in management of a class action.²⁰

Thus, when read together, Rule 23(a) and 23(b)(3) provide six requirements for a group of claims to be certified as a class action: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority.²¹

As the parties seeking class certification, Plaintiffs bear the burden of demonstrating the case is appropriate for class treatment.²²

LAW AND ANALYSIS

The Government does not challenge the numerosity, commonality, predominance, or superiority requirements for class certification.²³ Instead, the Government argues class certification must be denied for two reasons: (1) a "class action is inappropriate and unnecessary" when the declaratory and injunctive relief sought "would necessarily affect all regulated entities;" and (2) "there is significant disagreement within the purported

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class."²⁴ The first reason challenges the necessity of the class certification and the second reason challenges the adequacy and typicality of the proposed class representatives. The Court will consider both challenges, in turn.

I. Necessity is not a requirement for class certification.

The Government argues certification is not necessary and is "inappropriate here because if the Court were to grant Plaintiffs the permanent injunction and declaratory relief they seek by vacating the Final Rule, that relief would automatically benefit all regulated entities."

Although the Government acknowledges necessity is not a clearly recognized requirement for class certification in the Fifth Circuit, it argues this circuit in United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Florida "applied a version of the necessity test, holding that where an individual case could secure class-wide injunctive relief class certification is unnecessary."²⁵ In that case, a group of farmworkers sought access to the local sewer and water services for their housing project but were denied by city and state agencies.²⁶ The farmworkers sought injunctive relief to be granted the necessary permits and moved for class certification.²⁷ The trial court denied class action certification because it found the farmworkers were adequately represented by an advocacy organization and the burden of notifying all potential class members would have imposed an unnecessary delay and cost.²⁸ The Fifth Circuit affirmed the trial court, but on a different basis, reasoning that, because "the requested injunctive

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and declaratory relief will benefit not only the individual appellants and the nonprofit corporation but all other persons subject to the practice under attack," class certification was not necessary.²⁹

Plaintiffs response is twofold. First, Plaintiffs argue the Fifth Circuit has not adopted a necessity requirement for class certification.³⁰ Second, Plaintiffs argue the necessity requirement (if one exists in this circuit) is satisfied regardless because of a substantial risk of mootness.³¹ The Fifth Circuit and its sister courts are split on whether a lack of necessity may bar class certification.

In Dionne v. Bouley, the First Circuit denied "Rule 23(b)(2) certification where it is a formality or otherwise inappropriate."³² The court, however, rejected the "mechanical" necessity requirement and instead permitted eligible class...