123 Fed. Cl. 390
Fed. Cl.2015Background
- Six named Texas landowners allege the U.S. International Boundary and Water Commission built a concrete-and-steel border structure along ~22 miles of levee near the Rio Grande that exceeds flood-control easements and effects a Fifth Amendment taking.
- Plaintiffs acknowledge predecessor grants of revetment/levee easements to Hidalgo/Cameron County and that the United States holds easements limited to flood-control purposes.
- Plaintiffs seek class certification under RCFC 23 to represent ~60 identified potential claimants (76 parcels) affected by the structure.
- The government admits the structure serves both flood-control and border-defense purposes and contends it falls within the easements, so no taking occurred.
- The court considered plaintiffs’ motion for class certification and denied it, primarily because joinder under Rule 20 was practicable (defeating RCFC 23(a)(1)) and because plaintiffs failed to show RCFC 23(b)(3) superiority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Numerosity / impracticability of joinder | ~60 potential claimants makes joinder impracticable; many claims economically small | Sixty is not so large; members are identifiable and geographically proximate so joinder under Rule 20 is practicable | Denied: joinder practicable given identification and geographic concentration; RCFC 23(a)(1) not satisfied |
| Commonality | Single common legal question: whether the structure exceeds the scope of the flood-control easements (a classwide liability question) | Disputes about individual facts will predominate (advanced under a higher standard) | Granted: commonality satisfied — the legal question is common to class members |
| Typicality & adequacy | Named plaintiffs’ claims arise from same course of conduct and seek the same relief; counsel adequate | Government noted factual variations (deeds, parcel sizes, dates) may differ across members | Typicality: satisfied; Adequacy: five of six named plaintiffs are adequate (one, Bell Brothers, not shown to be a class member) |
| Predominance & superiority (RCFC 23(b)(3)) | Common liability issue predominates; many individual claims are small so class is superior | Individual issues (ownership proof, varying easement terms, differing taking dates, individualized damages) outweigh efficiencies; Rule 20/joiner alternatives make class unnecessary | Denied: common liability predominates but class not superior because joinder is practicable and other adjudication methods suffice |
Key Cases Cited
- Quinault Allottee Ass’n v. United States, 453 F.2d 1272 (Ct. Cl. 1972) (early multi-factor class-certification guidance informing courts’ RCFC 23 analysis)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (defines Rule 23 commonality requirement and limits certifiable common questions)
- Rasmuson v. United States, 91 Fed. Cl. 204 (Fed. Cl. 2010) (declined certification in rails-to-trails case with geographically proximate owners; joinder practicable)
- Geneva Rock Prods., Inc. v. United States, 100 Fed. Cl. 778 (Fed. Cl. 2011) (common liability can satisfy predominance though damages require individualized proof)
- Barnes v. United States, 68 Fed. Cl. 492 (Fed. Cl. 2005) (discusses typicality and superiority in takings-class contexts)
- Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010) (Federal Circuit reversed trial court on tolling/limitations issue relevant to class accrual and timeliness)