Starlight Sugar, Inc. v. Soto

United States Court of Appeals
For the First Circuit
No. 00-1487

STARLIGHT SUGAR, INC., PAN AMERICAN GRAIN CO., INC.,

Plaintiffs, Appellees,

v.

NEFTALÍ SOTO, INDIVIDUALLY AND AS SECRETARY OF THE
DEPARTMENT OF AGRICULTURE OF THE
COMMONWEALTH OF PUERTO RICO,

Defendant, Appellant,

SUGAR CORPORATION OF PUERTO RICO ("LA CORPORACIÓN
AZUCARERA DE PUERTO RICO"), MANUEL DÍAZ SALDAÑA,
INDIVIDUALLY AND AS SECRETARY OF THE DEPARTMENT OF THE
TREASURY OF THE COMMONWEALTH OF PUERTO RICO.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Chief Judge,

Lipez, Circuit Judge,

and García-Gregory,* District Judge.

Richard H. Fallon, Jr., with whom Juan A. López-Conway and García
& Fernández, were on brief, for appellant.
Eduardo A. Vera-Ramírez, with whom Ramírez Lavandero, Landrón &

* Of the District of Puerto Rico, sitting by designation.
Vera, were on brief, for appellees.

June 11, 2001

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 TORRUELLA, Chief Judge. This is an appeal from an Opinion

and Order denying appellant Neftalí Soto's qualified immunity

defense. Soto, acting in his capacity as Secretary of the Department

of Agriculture of the Commonwealth of Puerto Rico, has been sued in

his personal capacity under 42 U.S.C. § 1983 for enforcing a sugar

regulation that prevented appellees, Starlight Sugar, Inc. and Pan

American Grain Company, Inc. ("Starlight/PanAm"), from importing

sugar into Puerto Rico in bulk for packaging in consumer-sized units.

We reverse the district court opinion and hold that Soto is entitled

to qualified immunity.

BACKGROUND

Section VI of Market Regulation No. 13 prohibits the

importation of sugar into Puerto Rico for consumer use unless the

sugar has been packaged in consumer-sized bags (two- and five-pound

bag sizes) prior to its arrival in Puerto Rico.1 In other words,

sugar cannot be shipped to Puerto Rico in bulk for packaging in

Puerto Rico. It is undisputed that the effect of this regulation is

1 Puerto Rico Department of Agriculture Market Regulation No. 13, Sec.
VI--Containers reads, in relevant part:

A. Refined sugar to be imported in Puerto Rico shall come
in consumer size packages inside the corresponding shipping
containers. For the purposes of this Regulation a consumer
size package is that one whose net content does not exceed
five (5) pounds.
B. . . . . Imported refined sugar for industrial use shall
not be repacked in consumer-size packages.

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to prevent sugar intended for consumer use from being brought into

Puerto Rico.

An explanation of the history of the sugar industry in

Puerto Rico is provided in the district court opinion granting

Starlight/PanAm a preliminary injunction, Starlight Sugar, Inc. v.

Soto, 909 F. Supp. 853, 855-56 (D.P.R. 1995) [hereinafter Starlight

Sugar I], aff'd, 114 F.3d 330 (1st Cir. 1997) [hereinafter Starlight

Sugar II], and need not be retold here. A summary of the litigation

history of Market Regulation No. 13, however, is worth noting.

The prohibition on repackaging imported sugar was first

challenged in the Puerto Rico court system in 1984. While the Puerto

Rico Supreme Court was considering the issue, a concurrent suit was

filed in federal district court in 1987. The district court stayed

the proceedings pending a decision by the Puerto Rico Supreme Court.

On November 30, 1987, the Puerto Rico Supreme Court rendered such a

decision, upholding Regulation No. 13 against due process and equal

protection claims based on the Puerto Rico Constitution. Puerto Rico

Sugar Corp. v. García, CE-85-481, RE-85-496, P.R. Offic. Trans.

Sugar repacker García returned to the federal district court seeking

relief in that forum. The district court, after dismissing the

claims brought under the Due Process and Equal Protection Clauses of

the United States Constitution, held that a claim could be maintained

under the Commerce Clause, because such a claim could not have been

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litigated in the Puerto Rico courts.2 García v. Bauzá Salas, 686 F.

Supp. 965, 967 (D.P.R. 1988) ("under Puerto Rican law, as espoused by

the Puerto Rico Supreme Court, the clause is inapplicable to the

Island"). The district court went on to enjoin enforcement of the

regulation. Id. at 974. On appeal, this Court vacated the

injunction, holding that the district court's action violated the

Anti-Injunction Act, 28 U.S.C. § 2283, because the order enjoining

enforcement of Regulation No. 13 directly conflicted with the

injunction affirmed by the Puerto Rico Supreme Court barring García

from repackaging sugar in Puerto Rico. García v. Bauzá Salas, 862

F.2d 905, 907-08 (1st Cir. 1988).

In 1994, appellee Pan American Grain imported

approximately 80,000 pounds of sugar into Puerto Rico for consumer

repackaging by appellee Starlight Sugar. Pursuant to Regulation No.

13, the Department of Agriculture issued a detention order

prohibiting appellees from selling the sugar to grocery stores in

Puerto Rico. Starlight/PanAm sued, seeking declaratory and

injunctive relief, as well as damages, and based their challenge of

Regulation No. 13 on the Commerce and Equal Protection Clauses of the

United States Constitution.

2 The Puerto Rico Supreme Court's holdings on the applicability of the
Commerce Clause to Puerto Rico will be discussed later in this
Opinion.

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 The district court granted Starlight/PanAm's motion for

preliminary injunctive relief, holding that there was a likelihood of

success on the merits as to both the Commerce Clause and equal

protection arguments. Starlight Sugar I, 909 F. Supp. at 861. The

court found that Regulation No. 13 "facially discriminates against

interstate commerce" and that the government had failed to assert a

compelling interest sufficient to justify this "discriminatory

purpose and effect," thus implicating the Commerce Clause. Id. In

addition, the district court held that the government had put forth

no "legitimate government objective" for Regulation No. 13, and that

the regulation, therefore, likely violated the Equal Protection

Clause. Id.

This Court affirmed the grant of the preliminary

injunction, finding "no abuse of discretion and no error of law."

Starlight Sugar II, 114 F.3d at 331. Regarding the likelihood of

success on the merits, we "note[d]" that "Commerce Clause caselaw

strongly supports the position of the plaintiff sugar importers."

Id. We characterized Regulation No. 13 as "facially discriminatory,"

and thus "presumptively invalid." Id.

In the most recent development of this case, the district

court ruled, in an Opinion and Order, in favor of Starlight/PanAm's

Motion for Summary Judgment. Starlight Sugar, Inc. v. Soto, 86 F.

Supp. 2d 23 (2000) [hereinafter Starlight Summary Judgment]. The

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court affirmed its prior intimations that Market Regulation No. 13

violated both the Commerce and Equal Protection Clauses. Pursuant to

this finding, the district court granted injunctive relief against

Soto. The court next turned to Starlight/PanAm's § 1983 claim for

damages against Soto in his personal capacity, and, in that context,

analyzed Soto's assertion of qualified immunity.

Citing Harlow v. Fitzgerald, 457 U.S. 800 (1981), the

district court identified a two-part test for determining whether an

official is entitled to qualified immunity: (1) whether the law was

clearly established at the time the action was taken; and (2) if so,

whether the official knew or reasonably should have known that the

action or inaction would violate petitioner's constitutional rights.

Id. at 818. The district court found that the law was clearly

established and that Soto knew or should have known that enforcement

of Market Regulation No. 13 violated Starlight/PanAm's constitutional

rights. The court called the Commerce Clause "a cornerstone of our

economy and our country" and was "hard pressed to believe that Soto,

an attorney, would be unaware of the existence of the Commerce

Clause." Starlight Summary Judgment, 86 F. Supp. 2d at 30. In a

footnote, the court stated, "A similar result is found when analyzing

the Equal Protection Clause . . . ." Id. at 30 n.9.

Appellant Soto brings this interlocutory appeal pursuant

to 28 U.S.C. § 1291, challenging only the district court's rejection

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of his qualified immunity defense. See Mitchell v. Forsyth, 472 U.S.

511, 530 (1984). Entitlement to the defense of qualified immunity is

a question of law subject to de novo review. See, e.g., Elder v.

Holloway, 510 U.S. 510, 516 (1994). Accordingly, we proceed to the

merits of this appeal.

DISCUSSION

This Court has identified a three-step process for

evaluating qualified immunity claims: (1) whether the claimant has

alleged the deprivation of an actual constitutional right; (2)

whether the right was clearly established at the time of the alleged

action or inaction; and (3) if both of these questions are answered

in the affirmative, whether an objectively reasonable official would

have believed that the action taken violated that clearly established

constitutional right. Nelson v. Kline, 242 F.3d 33, (1st Cir. 2001);

Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir. 2001); see Wilson v.

Layne, 526 U.S. 603, 609 (1999). This particular order of analysis

"is designed to 'spare a defendant not only unwarranted liability,

but unwarranted demands customarily imposed upon those defending a

long drawn-out lawsuit.'" Wilson, 526 U.S. at 609 (quoting Siegert

v. Gilley, 500 U.S. 226, 232 (1991)). Addressing the constitutional

question first "promotes clarity in the legal standards for official

conduct, to the benefit of both the officers and the general public."

Id.

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 The district court held that Market Regulation No. 13

violated clearly established Commerce Clause and Equal Protection

Clause caselaw. We will examine both, turning first to the Commerce

Clause claim.

A. Commerce Clause Analysis

In explaining "dormant" Commerce Clause jurisprudence, the

district court quoted the following passage:

This "negative" aspect of the Commerce Clause
prohibits economic protectionism--that is,
regulatory measures designed to benefit in-
state economic interests by burdening out-of-
state competitors. . . . Thus, state statutes
that clearly discriminate against interstate
commerce are routinely struck down . . . unless
the discrimination is demonstrably justified by
a valid factor unrelated to economic
protectionism.

Starlight Sugar I, 909 F. Supp. at 857 (quoting West Lynn Creamery,

Inc. v. Healy, 512 U.S. 186, 192-93 (1994) (quoting New England Co.

of Ind. v. Limbach, 486 U.S. 269, 273-74 (1988))). The district

court found Market Regulation No. 13 to be facially discriminatory,

falling within a category of government regulation that the dormant

Commerce Clause renders invalid. The court further held that Soto

had failed to advance any justification for the repackaging

prohibition that did not ultimately amount to economic

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protectionism.3 Id. at 860-61; see also Starlight Sugar II, 114 F.3d

at 331-32.

The Commerce Clause "confer[s] a 'right' to engage in

interstate trade free from restrictive state regulation." Dennis v.

Higgins, 498 U.S. 439, 448 (1990). We agree with the district court

that Starlight/PanAm have identified a deprivation of this

constitutional right. The next question to address is whether this

right was clearly established at the time of Soto's enforcement of

Regulation No. 13. We hold that it was not.

Citing First Circuit precedent, the district court stated

that: "The constraints of the dormant Commerce Clause apply equally

to Puerto Rico." Starlight Sugar I, 909 F. Supp. at 858. In Trailer

Marine Transport Corp. v. Rivera-Vázquez, 977 F.2d 1 (1st Cir. 1992),

we explicitly considered "whether and how the Commerce Clause

constrains legislation and administrative action of Puerto Rico."

Id. at 6. Characterizing Puerto Rico's status as "unique," we noted

that Puerto Rico has no voting representation in Congress, that

Congress may fashion laws in a manner that treats Puerto Rico

differently from the states, that not all federal constitutional

3 Belated citation at oral argument to the quality control purpose
articulated in the Introduction to Market Regulation No. 13 is
unavailing to Soto as to the Commerce Clause challenge, because it was
never presented in the lower court, nor was it fully briefed on appeal.
See, e.g., King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997).
This justification will be discussed in greater depth, however, in the
equal protection section of this Opinion.

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rights apply in Puerto Rico, and that it has not been determined

whether Puerto Rico is governed by the Fifth or by the Fourteenth

Amendment. Id. at 7. Nevertheless, we concluded that Puerto Rico is

bound by the dormant Commerce Clause in the same way that the states

are. The Commerce Clause's purposes of "foster[ing] economic

integration and prevent[ing] local interference with the flow of the

nation's commerce . . . appl[y] with equal force to official actions

of Puerto Rico." Id. at 8. In addition, we found that Puerto Rico

enjoys sufficient autonomy as an entity to justify treating it as

independent of Congress and thus subject to dormant Commerce Clause

restraints. Id.

The Supreme Court of Puerto Rico, we have noted, "has

taken a different view." Id. at 9. Commenting on the scope of the

application of the Commerce Clause to Puerto Rico, that court said:

"This interstate commerce relation [between Puerto Rico and the

United States] has constitutionally had, and still has, contours

which are different from the relation which under the Constitution

prevails among states of the Union." R.C.A. v. Government of the

Capital, 91 P.R.R. 404, 419 (P.R. 1964). This amorphous statement

eludes concrete interpretation, and the opinion itself fails to

further elaborate on how Puerto Rico's relationship with the United

States would affect the application of the Commerce Clause to Puerto

Rico. Subsequent decisions by the Puerto Rico Supreme Court are

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similarly unilluminating. See, e.g., Iberia v. Secretario de

Hacienda, 135 P.R. Dec. 57, 72-73 & n.11 (P.R. 1993) (finding it

unnecessary to comment on the applicability of the Commerce Clause to

Puerto Rico); Marketing v. Departamento de Agricultura, 118 P.R. Dec.

319 (P.R. 1987) (deciding that the dormant Commerce Clause question

need not be answered in the course of decision). One interpretation

of the R.C.A. language by this Court, as illustrated by our comment

in Trailer Marine, and the Puerto Rico federal district courts is

that the dormant Commerce Clause does not apply to Puerto Rico.

García, 686 F. Supp. at 968; Sea-Land Servs., Inc. v. Municipality of

San Juan, 505 F. Supp. 533, 542 (D.P.R. 1980). In an earlier

opinion, however, we rejected an argument that the Puerto Rico courts

were closed to a Commerce Clause claim, stating that: "In our view,

the position taken by the Supreme Court of Puerto Rico in [R.C.A.] is

far more flexible." Carrier Corp. v. Pérez, 677 F.2d 162, 165 (1st

Cir. 1982).

In an effort to clarify how we interpret the Puerto Rico

Supreme Court's position, we offer the following commentary. First,

the R.C.A. case offers the only substantive statement on application

of the Commerce Clause to Puerto Rico by the Puerto Rico Supreme

Court. It, at minimum, suggested that there could be situations in

which the Commerce Clause would not apply to Puerto Rico, even though

it would constrain a State in comparable circumstances. Second, the

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R.C.A. case was written in 1964, and the relationship between Puerto

Rico and the United States has been refined and clarified since that

time. See, e.g., Examining Bd. of Eng'rs v. Flores de Otero, 426

U.S.572, 595 (1976) ("the purpose of Congress in the 1950 and 1952

legislation was to accord to Puerto Rico the degree of autonomy and

independence normally associated with States"). Noting that in more

recent years Puerto Rico has acted and been treated more like a

state, we overturned our 1947 holding in Buscaglia v. Ballester, 162

F.2d 805 (1st Cir. 1947), that the dormant Commerce Clause did not

apply to Puerto Rico. Trailer Marine, 977 F.2d at 9. The R.C.A.

decision relied, at least in part, on Buscaglia. R.C.A., 91 P.R.R.

at 419 n.9. Perhaps recognizing that the status of Puerto Rico is

not as was perceived at the time that R.C.A. was decided, and that

the precedential underpinnings for its Commerce Clause comments have

been weakened, the Puerto Rico Supreme Court has intimated that the

applicability of the dormant Commerce Clause to Puerto Rico is an

unresolved question. See Iberia, 135 P.R. Dec. at 72-73 & n.11;

Marketing, 118 P.R. Dec. at 319. Unfortunately, this has not spurred

the Puerto Rico Supreme Court to address the issue squarely. As a

result, we are left with the vague language in R.C.A. that the

Commerce Clause, as applied to Puerto Rico, has "contours which are

different" from those when applied to the States. 91 P.R.R. at 419.

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From this conclusion, we proceed with the qualified immunity

analysis.

When determining whether a constitutional right is clearly

established for purposes of qualified immunity, state,4 as well as

federal, decisions can be considered. See Cinelli v. Cutillo, 896

F.2d 650, 655 (1st Cir. 1990) (citing a Massachusetts Supreme

Judicial Court opinion at length in concluding that the right was

clearly established). The Seventh Circuit has commented:

State judges like federal judges take an oath
to uphold the Constitution of the United
States, and unlike the converse case of federal
judges enforcing state law, where it is
accepted that the ultimate authority on
questions of state law resides with state
rather than federal courts, the federal courts
of appeals do not have the ultimate authority
to decide issues of federal law.

Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000). In turning to

both the state and federal case law in this instance, we find a

potential conflict.

4 Decisions of the Puerto Rico Supreme Court in these circumstances
should be considered to have the same force as if they originated in a
state supreme court. See Cruz v. Melecio, 204 F.3d 14, 22-25 (1st Cir.
2000) (ordering stay of federal district court proceedings pending
resolution by the Puerto Rico Supreme Court of a parallel suit: "the
case before the Puerto Rico Supreme Court is more comprehensive than
the newer federal case because it covers both commonwealth and federal
constitutional claims. Plainly, the interests of judicial efficiency
and eliminating piecemeal litigation favor resolving these closely
related claims in a single forum.").

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 In Trailer Marine, as noted, we held that the dormant

Commerce Clause applies to Puerto Rico; the Puerto Rico Supreme Court

took a different view in the R.C.A. case. The United States Supreme

Court has anticipated this potential for disagreement: "Each system

proceeds independently of the other with ultimate review in this

Court of the federal questions raised in either system.

Understandably this dual court system [i]s bound to lead to conflicts

and frictions." Atlantic Coast Line R.R. Co. v. Brotherhood of

Locomotive Eng'rs, 398 U.S. 281, 286 (1970).

In the past, we have held that a right can be treated as

clearly established in this circuit if we have unequivocally

identified that right in prior decisions, regardless of Supreme Court

silence on the subject or a lack of unanimity among the circuits.

Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989). However,

Newman did not address whether a right could be considered clearly

established in a case such as this, where there is arguably contrary

authority from the highest court of a state within the First Circuit.

This distinct circumstance necessarily impacts our view on whether a

right is clearly established.

The Seventh Circuit has stated that an official should not

be shielded by the defense of qualified immunity simply because there

is "one contrary decision at either the federal court of appeals or

the state supreme court level." Burgess, 201 F.3d at 946 (involving

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the constitutionality of strip searching prison visitors without

reasonable suspicion). Again, the precedent under examination in

Burgess may be distinguished, as the only conflicting authority came

from a state court in another circuit, the Supreme Court of Hawaii.

Because neither Burgess nor Newman dealt with conflicting precedent

from a state within the circuit, much less conflicting precedent from

the state in which the alleged constitutional violation occurred, our

reliance on them for guidance in our assessment of qualified immunity

in this case is necessarily circumspect.

We conclude that the applicability of the dormant Commerce

Clause to Puerto Rico is disputed, and, thus, appellees' attendant

constitutional right is not clearly established.5 Our holding is

consistent with and respects the role of state systems in identifying

and defining federal constitutional rights on a parallel basis with

the federal courts with ultimate supervisory authority to harmonize

any potential conflicts residing in the United States Supreme Court.6

5 This does not mean that a Commerce Clause right, such as the one
identified in this case, will not be considered clearly established for
purposes of qualified immunity analysis indefinitely in the face of
continued silence on the question by the Puerto Rico Supreme Court and
the United States Supreme Court.
6 Prior to 1961, the First Circuit was empowered to review decisions
of the Puerto Rico Supreme Court that resolved federal questions. 28
U.S.C. § 1293 (1959); 28 U.S.C. § 1294(6)(1959). In 1961, §§ 1293 &
1294(6) were repealed, and since then, "[f]inal judgments or decrees
rendered by the Supreme Court of the Commonwealth of Puerto Rico may be
reviewed by the Supreme Court by writ of certiorari." 28 U.S.C.
§ 1258.

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Soto is, therefore, protected by the qualified immunity defense as

far as the Commerce Clause challenge is concerned.

B. Equal Protection Analysis

The district court provided limited explanation for its

conclusion that Soto's enforcement of Market Regulation No. 13

violated the Equal Protection Clause, citing only Metropolitan Life

Insurance Co. v. Ward, 470 U.S. 869, 880 (1985) [hereinafter

MetLife], in support of its conclusion. Starlight Sugar I, 909 F.

Supp. at 861. The district court's treatment was even more summary

in denying Soto's qualified immunity defense, disposing of the equal

protection issue with a footnote reference to the Opinion's Commerce

Clause findings. Starlight Summary Judgment 86 F. Supp. 2d at 30

n.9. A review of MetLife reveals that Commerce Clause and Equal

Protection Clause analysis should not be conflated:

Under Commerce Clause analysis, the State's
interest, if legitimate, is weighed against the
burden the state law would impose on interstate
commerce. In the equal protection context,
however, if the State's purpose is found to be
legitimate, the state law stands as long as the
burden it imposes is found to be rationally
related to that purpose, a relationship that is
not difficult to establish.

470 U.S. at 881. The district court, then, did not sufficiently

consider whether Market Regulation No. 13 violated the Equal

Protection Clause, and we do not adopt the court's findings or

conclusion in this regard.

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 If neither a fundamental right nor a suspect

classification is involved in an Equal Protection Clause challenge,

courts will uphold legislation that provides for differential

treatment upon a mere showing of a rational relationship between the

disparate treatment and a legitimate government objective. Fireside

Nissan, Inc. v. Fanning, 30 F.3d 206, 219 (1st Cir. 1994). In making

such an inquiry, any "plausible" justification will suffice, and

effectively ends the analysis. FCC v. Beach Communications, Inc.,

508 U.S. 307, 313-14 (1993). In fact, the party challenging the

legislation bears the burden of "negat[ing] every conceivable basis

which might support it." Id. at 315 (quoting Lehnhausen v. Lake

Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

The district court addressed one government justification

of Market Regulation No. 13, namely, protection of the local sugar

industry, and cited MetLife for the proposition that this is not a

legitimate government objective. Starlight Sugar I, 909 F. Supp. at

861. We are not persuaded that MetLife is so broad; in fact, it

expressly limits its holding to the particular facts of the case:

"This case does not involve or question . . . the broad authority of

a State to promote and regulate its own economy. We hold only that

such regulation may not be accomplished by imposing discriminatorily

higher taxes on nonresident corporations solely because they are

nonresidents." 470 U.S. at 882 & n.10.

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 Even if Soto's stated justification for enforcing Market

Regulation No. 13 is insufficient to uphold the rationality of the

legislation, this Court is obligated to seek out other conceivable

reasons for validating Regulation No. 13. Here, the Introduction to

Market Regulation No. 13 provides a health and safety justification:

"to guarantee that imported sugar that may be marketed in Puerto Rico

meets certain minimum quality requirements." That this was not the

reason provided by Soto for his enforcement is irrelevant to an equal

protection inquiry. See Beach Communications, 508 U.S. at 315.

Although this issue was never addressed by the parties,

the district court discussed, and dismissed, the health and safety

argument. Starlight Sugar I, 909 F. Supp. at 860. The district

court pointed out that there had been no complaints as to the quality

of imported sugar prior to the ban on repackaging, and that the

Department of Agriculture does not conduct "wholesomeness"

inspections. Id. In addition, the court commented that there were

less burdensome methods for ensuring the quality of imported sugar

than the restrictions found in Regulation No. 13. Id.

We do not doubt the district court's observations in this

regard. For the most part, however, they are only relevant to

Commerce Clause, not Equal Protection Clause, analysis. For one,

equal protection does not demand that a State employ less burdensome

alternatives if those are available. A court's belief that the

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legislature's alleged goals could be accomplished through more

reasonable means is irrelevant to rational-basis review. Beach

Communications, 508 U.S. at 314. In addition, the district court

conceded that: "[i]t is true that section V of Regulation 13

establishes minimum quality standards for sugar brought into Puerto

Rico." Starlight Sugar I, 909 F. Supp. at 860. Given the

regulation's stated purpose of quality control, and the

specifications throughout that appear to intend to further that goal,

it is at least "plausible" that Section VI of Regulation No. 13 is

rationally related to health and safety considerations. Since equal

protection analysis does not subject "legislative choice . . . to

courtroom factfinding," and a court may uphold such legislation on

the basis of "rational speculation unsupported by evidence or

empirical data," Beach Communications, 508 U.S. at 315, we need go no

further.

CONCLUSION

We hold that Starlight/PanAm's Equal Protection Clause

challenge to Secretary Soto's enforcement of Market Regulation No. 13

fails at the first step of the analysis, demonstrating the actual

deprivation of a constitutional right, and that Soto is accordingly

protected by the defense of qualified immunity. Based on this and

our earlier conclusion that the applicability of the dormant Commerce

Clause to Puerto Rico is not "clearly established," appellant Soto

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cannot be held personally liable for his actions. The district

court's decision with respect to Soto's qualified immunity defense is

reversed.

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