Maysonet-Robles v. Cabrero

United States Court of Appeals
For the First Circuit

No. 02-1010

NORMA I. MAYSONET-ROBLES; ANGEL RAMON MARTINEZ-DOMINGUEZ;
CARMEN M. ROBLES-COLLAZO; LYDIA HERNANDEZ-DE-LEON;
CAMILO GINEZ-PEREZ; JESUS OCASIO-DE-LA-ROSA; for themselves and
on behalf of a class of similarly situated individuals,

Plaintiffs-Appellants,

v.

ANTONIO J. CABRERO, as Trustee for Urban Renewal and
Housing Corporation, Puerto Rico,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior District Judge]

Before

Boudin, Chief Circuit Judge,
Howard, Circuit Judge,
and Shadur,* Senior District Judge.

Robert N. Hill, for appellants.

Eugenia I. Orsini Herencia, for appellee.

March 14, 2003

*
Of the Northern District of Illinois, sitting by designation.
 SHADUR, Senior District Judge. In January 1997 this

action was brought on behalf of a putative class comprising

homeowners and tenants of a low income housing complex in Manati,

Puerto Rico, who sued Antonio Cabrero as Trustee for the Urban

Renewal Housing Corporation Accounts Liquidation Office of Puerto

Rico (the "Office"), an entity created in 1991 to liquidate the

proceeds of the extinct Puerto Rico Urban Renewal and Housing

Corporation ("CRUV")(Act 55, August 9, 1991, 17 P.R. Laws Ann.

§§27-27t). Plaintiffs sued under 42 U.S.C. §§1983 and 1985 and

added, under the auspices of 28 U.S.C. §1367(a), a number of state

law claims alleging that CRUV used, and failed to disclose to them

the presence of asbestos and lead within, the units.

After two earlier motions to dismiss had been denied, the

Office filed a third motion to dismiss--this time informing the

district court and Plaintiffs that in the interim the Puerto Rico

Legislature had passed Act 106, which had dissolved the Office and

transferred CRUV's assets to the Department of Housing of the

Commonwealth of Puerto Rico ("Department") effective June 30, 1998

(17 P.R. Laws Ann. §§27aa-27jj). Because the Office said that

Department was now the real party in interest, it urged that as

such Department was immune from suit under the Eleventh Amendment.

Later the Office amended its motion to assert that the Commonwealth

of Puerto Rico ("the Commonwealth" or "Puerto Rico") was the

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Office's true successor, coupling that amendment with a reassertion

of Eleventh Amendment immunity.

After reviewing the parties' submissions, the district

court1 issued an October 26, 2001 opinion and order stating that

Department should be substituted for the Office as a successor in

interest pursuant to Fed. R. Civ. P. ("Rule") 25(c). In

substantive terms that opinion went on to hold the action barred by

the Eleventh Amendment because Department, as an arm of the state,

enjoyed immunity from suit--and that despite its interjection into

the pending litigation as a successor to a party that had not been

entitled to immunity under the Eleventh Amendment. Accordingly

the district court granted the Office's amended motion to dismiss,

and Plaintiffs now appeal. We affirm the district court's

dismissal of the action on such immunity grounds.

Standard of Review

Whether the district court correctly held that Department

enjoyed immunity under the Eleventh Amendment--or more precisely,

under the limitation that the States' sovereign immunity imposes on

the federal judicial power established in Article III (see, e.g.,

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99, 116-

17 (1984))2--is a question of law. We therefore review the lower

1
In July 1999 the case was reassigned to Senior Judge
Gierbolini after Judge Cerezo had recused herself.
2
Because it has become customary to use the Eleventh
Amendment as a shorthand reference even though it does not
literally apply by its terms to suits against a State (or in this

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court's ruling de novo (see Arecibo Cmty. Health Care, Inc. v.

Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001)).

Background

Because this appeal presents a pure jurisdictional

question, it is unnecessary to recite the facts as they pertain to

the merits of Plaintiffs' allegations. Instead we will review the

bidding as to the relevant agency history and the procedural path

of this litigation, then turn to the law.

CRUV was created by the Puerto Rico legislature as a

public corporation in 1957 to administer and develop low-cost

private housing construction in the Commonwealth. In 1991 the

legislature dissolved CRUV (by Act 55 of August 9, 1991, 17 P.R.

Laws Ann. §§27-27t), instead creating the Office and charging it

with overseeing the liquidation of CRUV's accounts and the transfer

of records and documents to Department. Among other provisions,

the Office was granted the authority to sue and be sued, with the

understanding that it would exist only so long as necessary for

CRUV's liquidation (17 P.R. Laws Ann. §27r).

Plaintiffs' 1997 Complaint asserted a number of claims

against the Office that stemmed from CRUV's use of asbestos and

instance Puerto Rico) by its own citizens, this opinion will also
speak in Eleventh Amendment terms in many instances. When it
refers to "sovereign immunity," it does so consistently with the
ongoing and current jurisprudence of the Supreme Court's majority
opinions, exemplified by such cases as Pennhurst and Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985)(citing and quoting
Pennhurst in those terms).

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lead in its public housing units and its failure to disclose that

use to Plaintiffs. Plaintiffs then amended their Complaint to

clarify that the suit was brought against the Office for its own

acts of alleged misconduct as well as in its capacity as the

successor to CRUV.

After a first motion to dismiss on grounds unrelated to

immunity was denied, the Office filed a second motion to dismiss in

August 1997 on the predicate that it was immune from suit under the

Eleventh Amendment. While that motion was pending, Plaintiffs

sought a preliminary injunction to prevent the Office from reducing

its legal claims reserve and transferring its assets to the

Commonwealth's treasury.

On September 3, 1998 the district court ruled on those

motions. First it denied the motion to dismiss, ruling that the

Office was not an arm of the state entitled to immunity under the

Eleventh Amendment. Then it denied Plaintiffs' motion for

preliminary injunction, but it ordered the Office to ensure that

CRUV's assets would remain available should they be necessary to

satisfy a judgment in this case.

It turned out that two months before the issuance of

those rulings Act 106 had dissolved the Office and had effectively

transferred CRUV's millions of dollars in surplus funds, including

the millions that had been set up as a reserve fund for its legal

liabilities, to Department. Based on that legislation, the Office

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filed a third motion to dismiss on September 15, 1998--this time

asserting that Department, now the real party in interest, was

entitled to Eleventh Amendment immunity. Responding to that

motion, Plaintiffs requested that the district court substitute

Department for the defunct Office under Rule 25(d)(1) and urged

that such substitution did not oust the court of federal

jurisdiction or permit Department to reassert Eleventh Amendment

immunity. Then the Office amended its motion to assert that the

Commonwealth, rather than Department, was the proper defendant

under Act 106 and that it was immune from the suit regardless of

its successor status.

As stated earlier, the district court bought into the

Office's Eleventh Amendment immunity argument as to Department

without having to take that last step of treating the Commonwealth

as the proper party defendant. Because the district court

concluded that Department had not waived or otherwise forfeited

that immunity by its having succeeded the properly sued Office, the

court granted the motion to dismiss.

Although Plaintiffs now appeal that involuntary

dismissal, certain aspects of the district court's ruling are not

challenged before us. Neither party has appealed the district

court's application of Rule 25(c) to substitute Department for the

Office as a successor in interest. Neither do they dispute the

conclusion that Department, an executive department of the

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government of Puerto Rico lacking an independent juridical

personality (see Fred Reyes v. Estado Libre de Puerto Rico, 2000

TSPR 49 (P.R. 2000)), is generally sheltered by Puerto Rico's

immunity from federal suit. Instead the issue on appeal is whether

Department, interjected into the ongoing litigation by way of a

Puerto Rican statute, may successfully assert such immunity when it

could not have been invoked by its predecessor in interest, the

Office. We now turn to that question.

Eleventh Amendment

Under the Eleventh Amendment the "Judicial power of the

United States shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any

Foreign State." Long interpreted as an affirmation of state3

sovereign immunity as a limit on Article III's grant of federal

jurisdiction, the principles that Hans v. Louisiana, 134 U.S. 1

(1890) drew from that amendment (despite its literal text) also bar

a citizen from bringing a federal court action against his or her

own State. Sovereign immunity for suits "against one of the United

States" also extends to bar suits against state agents and

instrumentalities when the action is in essence one for the

3
This circuit has consistently held that Puerto Rico enjoys
immunity from suit equivalent to that afforded to the States under
the Eleventh Amendment (see Arecibo Cmty. Health Care, 270 F.3d at
21 n.3). For the reasons stated later in the text, we decline
Plaintiffs' invitation to reconsider that principle.

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recovery of money from the State (Regents of the Univ. of Cal. v.

Doe, 519 U.S. 425, 429 (1997)).

There are, however, two general exceptions to the thus-

extended reach of the Eleventh Amendment (College Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)).

First, Congress may abrogate a State's immunity by expressly

authorizing such a suit pursuant to a valid exercise of power

(id.). Second, a State may waive its sovereign immunity by

consenting to be sued in federal court (id.). At issue here is the

second of those two potential exceptions: whether Puerto Rico

waived its immunity so as to permit this federal court litigation.

Before we turn to Plaintiffs' waiver argument, we will

first address Plaintiffs' separate contention that Department

should not be entitled to raise the shield of immunity because it

entered the case midstream as a successor to the Office, an entity

that was itself outside the scope of that immunity. Plaintiffs

assert that because federal jurisdiction was properly established

over the Office when the suit was initiated, it is not subject to

ouster by subsequent events. Relatedly Plaintiffs argue that

Department, as successor to the Office under Rule 25 (c), cannot

invoke immunity because the Office itself was not entitled to do

so. Although creative, Plaintiffs' contentions are based on

jurisdictional and successorship authorities that insufficiently

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address the unique nature of the States' sovereign immunity in the

context of federal litigation.

Plaintiffs seek to apply the so-called "time of filing"

rule here--the concept that federal jurisdiction attaches at the

time when the action is commenced and cannot be ousted by later

developments. To be sure, that principle is well established for

subject matter jurisdiction (see, e.g., Valderon Martinez v. Hosp.

Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.

1985)(diversity of citizenship); Coventry Sewage Assocs. v. Dworkin

Realty Co., 71 F.3d 1, 4-6 (1st Cir. 1995)(amount in controversy);

Ching v. Mitre Corp., 921 F.2d 11, 13 (1st Cir. 1990)(federal

question jurisdiction)) as well as for personal jurisdiction (see,

e.g., Explosives Corp. of Am. v. Garlam Enters. Corp., 817 F.2d

894, 906 (1st Cir. 1987)). Successorship law is also in accord,

for federal jurisdiction is retained over Rule 25(c) successors in

interest that would not otherwise be subject to suit in federal

court (see, e.g., Freeport-McMoRan Inc. v. K N Energy, Inc., 498

U.S. 426, 428 (1990)(per curiam); Explosives Corp., 817 F.2d at

906). Moreover, it is true that Rule 25 (c) substitution

implements a discretionary determination by the trial court to

facilitate the conduct of the litigation, so it is a procedural

vehicle "not designed to create new relationships among parties to

a suit" (Pacamor Bearings, Inc. v. Minebea Co., 892 F. Supp. 347,

360 (D.N.H. 1995)). As such, "the transferee is brought into court

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solely because it has come to own the property in issue. The

merits of the case and the disposition of the property are still

determined vis-a-vis the originally named parties" (Minn. Mining &

Mfg. Co. v. Eco Chem, Inc., 757 F.2d 1256, 1263 (Fed. Cir. 1985).

But none of those cases addresses the application of such

rules to a State's immunity from federal suit,4 and we find

Plaintiffs' attempted analogies to the current case's context

ultimately unconvincing. As to jurisdiction, while the Eleventh

Amendment has been described as a jurisdictional bar with a "hybrid

nature," similar in some respects to personal jurisdiction and to

subject matter jurisdiction in others, it is on all fours with

neither (see Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 394

(1998)(Kennedy, J., concurring).5 Rather it is "a specific text

4
Plaintiffs do point to Anderson & Middleton Lumber Co. v.
Quinault Indian Nation, 901 P.2d 1060, 1063-64 (Wash. Ct. App.
1995) as applying the "time of filing" rule in the sovereign
immunity context. Anderson held that jurisdiction properly
continued over a property action to partition and to quiet title
despite Quinault Indian Nation's mid-litigation purchase of the
land and its substitution as defendant for the prior landowners,
private individuals. Although Anderson ruled on personal
jurisdiction grounds and did not separately address waiver, it
specifically noted that upon bringing suit the plaintiff had filed
a lis pendens (providing notice that the outcome of the action
would bind subsequent transferees) and that the warranty deed for
the tribe's purchase of the land made conveyance subject to that
lis pendens. All of this suggests that, as opposed to the instant
case, the tribe chose to purchase the land subject to the specific
court action--voluntary conduct that waived its immunity from that
suit.
5
Justice Kennedy's Schacht concurrence argues in part that
the Court should adjust its Eleventh Amendment jurisprudence to
track more closely its treatment of personal jurisdiction (Schacht,
524 U.S. at 395). In particular, such a revision would remove the

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with a history that focuses on the State's sovereignty vis-a-vis

the Federal Government" (Lapides, 122 S.Ct. at 1646). Unlike a

private individual or corporation, a State retains its sovereign

immunity as a "personal privilege" and, whether it is the original

defendant or is added as a party later, it cannot be sued

involuntarily (Clark v. Barnard, 108 U.S. 436, 447-48 (1883)).

As to successorship, Department is an arm of the State,

regardless of its late arrival at the courthouse as a successor in

interest, and it must be accorded the same respect due a State

under the Eleventh Amendment (see Kroll v. Bd. of Trustees of the

Univ. of Ill., 934 F.2d 904, 909 (7th Cir. 1991); Williamson Towing

Co. v. Illinois, 534 F.2d 758, 760-61 (7th Cir. 1976)). To prevail

here, then, Plaintiffs must establish that Puerto Rico waived its

own immunity in light of those legal principles by dissolving the

Office into Department. And it is to Plaintiffs' exposition on

that topic and to the relevant law on waiver that we now turn.

Plaintiffs argue that Puerto Rico waived its immunity

with respect to those suits against the Office that were pending

when Act 106 went into effect. Early on, Clark, 108 U.S. at 447-48

established that a State may waive its sovereign immunity by

unfair litigation advantages that arise from allowing States to
raise the bar of Eleventh Amendment immunity for the first time on
appeal (id. at 394). Although Lapides v. Bd. of Regents of Univ.
Sys., 535 U.S. 613, 122 S.Ct. 1640, 1645 (2002) addressed some of
Justice Kennedy's concerns, its relatively narrow holding did not
alter the hybrid nature of the Eleventh Amendment: States' immunity
under that Amendment remains sui generis.

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consenting to a suit in federal court. Because the sovereign's

decision to waive such immunity to suit must be "altogether

voluntary" (College Sav. Bank, 527 U.S. at 675, quoting Beers v.

Arkansas, 61 U.S. (20 How.) 527, 529 (1858)), the "test for

determining whether a State has waived its immunity from federal-

court jurisdiction is a stringent one" (College Sav. Bank, id.,

quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241

(1985)).

College Sav. Bank commands that such waivers must be

unequivocal. In the case of waiver through a state statute or

constitutional provision, the State must express in unmistakably

clear language, allowing for no other reasonable construction, that

it intends to submit itself to the jurisdiction of the federal

courts (id. at 678). Alternatively, a State may waive its immunity

by invoking federal jurisdiction voluntarily though affirmative

litigation conduct (id. at 675-76; see also Lapides, 122 S.Ct. at

1644).

We do not find that Puerto Rico made such an unequivocal

waiver here in either of those ways. First, as the district court

correctly concluded, Act 106 does not include clear language

expressing Puerto Rico's intent to submit to the jurisdiction of

the federal court for suits against the Office. To be sure, Act

106 does provide that lawsuits pending against the Office at the

time of enactment are to be taken over by Department. To that end

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Act's Article 4 mandates the transfer to Department of the Office's

"records, assets, and liabilities" and provides that "Department

shall not be responsible for any claim beyond those passed on by

the Office." Article 5 requires that an inventory of pending

lawsuits be delivered to Department. Lastly, Article 7 orders the

Department of Justice to support Department as requested in such

lawsuits and reads in part:

The Department of Housing shall have the same
rights and powers, except for the capacity to
sue and be sued, and may raise the same
defenses used by the Office in case of any
litigation or claim related to the transferred
assets....

But none of that language about pending lawsuits conveys Puerto

Rico's unequivocal consent for such pending litigation to continue

in federal court (see Kroll, 934 F.2d at 909-10, reaching the same

conclusion as to statutory language governing the merger of an

athletic association with an arm of the State that was even more

explicit as to the continuation of pending lawsuits).

Although one permissible reading of Act 106 may be that

claims against the Office should not be affected at all by its

dissolution, another--also permissible--would allow for the

continuation of such pending lawsuits against Department in Puerto

Rico's courts, but not in federal courts.6 Indeed, it does not

6
32 P.R. Laws Ann. §3077 (1999) authorizes individuals to
sue Puerto Rico in the Commonwealth's own courts according to a
number of conditions. But nothing in that statute waives Puerto
Rico's sovereign immunity from suit in federal court without its
consent, as College Sav. Bank, 527 U.S. at 670 would require. And

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require a particularly jaundiced eye to deduce from the Act's text

that the Puerto Rico legislature acted to dissolve the Office and

transfer the claims to Department with the precise goal of raising

the shield of immunity.7 Such jurisdictional game-playing would be

beyond the pale for any private litigant, and it is not a new

strategy for the Commonwealth (see, e.g., Futura Dev. of Puerto

Rico v. Estado Libre Asociado de Puerto Rico, 144 F.3d 7, 14 (1st

Cir. 2001), commenting on the "manifest injustice" created by

Puerto Rico's clever use of "sovereignty to shield itself from the

fair consequences of its actions"). But it has been nearly a

century and a half since Beers, 61 U.S. at 529 held that because

the waiver of such immunity is entirely within the sovereign's

prerogative, a State may alter the conditions of waiver and apply

those changes to torpedo even pending litigation.

As the record reflects, Plaintiffs' February 11, 1998

motion for a preliminary injunction mentioned the recent

introduction of the bill that ultimately ripened into Act 106,

which dissolved the Office and transferred its assets to

the language in Act's Article 7 that excepts Department's "capacity
to...be sued" from the "same rights and powers" possessed by the
Office could certainly be read as an intended preservation of the
right of sovereign immunity--though we express no ultimate view, of
course, as to its amenability to suit in the courts of Puerto Rico.
7
It is true that Act 106 was enacted while Plaintiffs'
second motion to dismiss was still pending. But the risk remained
that the district court would rule--as it did approximately two
months later--that the Office was not entitled to the protection of
Puerto Rico's own immunity.

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Department--to the Commonwealth in legal effect. Because the

preliminary injunction motion was still under advisement at the

time Act 106 became law, we are not confronted with the knottier

problem that would have been posed if (say) an injunction order had

been entered prohibiting the Office's transfer of the funds at

issue, followed by the enactment of a statute that compelled such

transfer by terminating the Office's existence. Such a scenario

might, for example, have placed the Supremacy Clause and the

principle of sovereign immunity on a collision course. But as

matters developed, the transfer of funds to Department had become

a fait accompli by the time the Office tendered its third (and

successful) motion to dismiss the district court.

Plaintiffs' attempt to argue that Puerto Rico waived its

immunity through affirmative litigation conduct fares no better.

It has long been established that a State's conduct in a federal

lawsuit can constitute waiver: "[W]here a state voluntarily

becomes a party to a cause, and submits its rights for judicial

determination, it will be bound thereby, and cannot escape the

result of its own voluntary act by invoking the prohibitions of the

11th Amendment" (Gunter v. Atlantic Coast Line R.R., 200 U.S. 273,

284 (1906); see also Porto Rico v. Bonicio Ramos, 232 U.S. 627

(1914), finding a waiver when the Commonwealth petitioned to be a

claimant in an estate proceeding and obtained a ruling from a

federal trial court); Paul N. Howard Co. v. Puerto Rico Aqueduct

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Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984), finding that a

government entity assumed arguendo to be entitled to immunity had

waived it by appearing and filing a counterclaim and third-party

complaint in the federal lawsuit).

Most recently Lapides, 122 S.Ct at 1643 reconfirmed that

a State's voluntary invocation of federal jurisdiction amounts to

a waiver of Eleventh Amendment immunity. Lapides, id. at 1644

distinguished such a waiver from the type of constructive statutory

waiver repudiated by College Sav. Bank, explaining that it "rests

upon the Amendment's presumed recognition of the judicial need to

avoid inconsistency, anomaly, and unfairness, and not upon a

State's actual preference or desire, which might, after all, favor

selective use of 'immunity' to achieve litigation advantages." But

as with statutory waiver, the State's litigation conduct must be

unambiguous (id., explaining that the "relevant 'clarity' here must

focus on the litigation act the State takes that creates the

waiver"). Thus the State's actions must evince a clear choice to

submit its rights for adjudication by the federal courts (see,

e.g., Lapides, id. (by removing an action to the federal court);

Gardner v. New Jersey, 329 U.S. 565, 574 (1947)(by filing a proof

of claim in a bankruptcy proceeding)).

In this instance Puerto Rico's involvement in the federal

action does not constitute waiver by litigation conduct. Neither

the Office nor Department has taken any action in this lawsuit that

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may be fairly described as voluntarily submitting the

Commonwealth's rights for adjudication by the federal court. As

for the Office, it has yet to answer Plaintiffs' complaint, let

alone take steps akin to filing a counterclaim or third-party

complaint. Nor is the automatic substitution of Department for the

Office--unlike an election to remove a case from a state court to

a federal court--a clear invocation of federal court jurisdiction.

Although the Office's motions urged that either Department or

Puerto Rico was the real party in interest, that was coincident

with their raising the shield of immunity. And Department's entry

into the case as the Office's successor, which was employed only to

advance that same immunity contention, also cannot be labeled as a

voluntary submission. In short, anything that might be

characterized as affirmative litigation conduct goes back to the

statute itself. And while the Commonwealth's Act 106 chose to

interject Department into all pending litigation against the

Office, it has already been said that the statutory language does

not unequivocally consent to the continuation of any such suits in

federal court.

It is surely troubling that Puerto Rico's actions here

implicate the concerns of inconsistency and unfairness that are at

the heart of the waiver-by-litigation-conduct doctrine. But we do

not read Lapides as sanctioning a different or lesser test for the

clarity with which the State must consent to federal jurisdiction

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in the context of waiver by litigation, as compared with waiver by

statute. Instead Lapides redirects our focus on such clarity to

Puerto Rico's litigation conduct. And once again that conduct, in

this instance, is solely in implementation of the statute itself.

So any finding of waiver via the conduct of this litigation, in the

absence of the requisite clear language in Act 106 showing Puerto

Rico's intent to waive immunity from suit in federal court, would

fly in the face of the prevailing sovereign immunity jurisprudence

on statutory waiver.

One final issue remains for our resolution: Plaintiffs'

contention that Puerto Rico is not a "State" within the meaning of

the Eleventh Amendment. Even though Puerto Rico is an incorporated

territory of the United States, its government has always been

considered a sovereign entity entitled to immunity from suit

without consent (see Porto Rico v. Rosaly y Castillo, 227 U.S. 270,

273 (1913)). And although Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 141 n. 1 (1993) reserved ruling

on whether the Eleventh Amendment applies to Puerto Rico, it is the

settled law of this Circuit that Puerto Rico enjoys the same

immunity from suit that a State has under the Eleventh Amendment

(see Arecibo Cmty. Health Care, 270 F.3d at 21 n.3).

Plaintiffs urge that Alden v. Maine, 527 U.S. 706 (1999)

requires us to reconsider that conclusion.8 Alden teaches that the

8
Three post-Alden decisions in this Circuit (Arecibo Cmty.
Health Care, Inc., 270 F.3d at 21 n.3; U.S.I. Props. Corp. v. M.D.

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States' sovereign immunity from suit in their own courts is

embodied in the structure and history of the Constitution, not

simply the Eleventh Amendment, so that it is beyond congressional

power to abrogate through Article I legislation. Plaintiffs assert

that unlike the States' sovereign immunity, which Alden grounded in

the Constitution as well as the Eleventh Amendment, Puerto Rico's

common-law sovereign immunity is a creation of the courts and may

therefore be overcome by federal statute pursuant to Congress'

power to regulate the territories (U.S. Const. art. IV, §3, cl. 2).

According to Plaintiffs, Congress abrogated Puerto Rico's court-

created sovereign immunity when it granted Plaintiffs a federal

forum for their Section 1983 claims.

We need not reach that constitutional question, however,

because Plaintiffs' argument falls of its own weight. Whether or

not Puerto Rico's long-held sovereign immunity is constitutional or

common-law in nature, it has not been abrogated by Congress here.

Examining Bd. of Engineers, Architects & Surveyors v. Flores de

Otero, 426 U.S. 572 (1976) established that Congress granted the

United States District Court in Puerto Rico federal jurisdiction to

enforce the provisions of Section 1983 on a basis equal to that

conferred on district courts in the States. But the grant of a

Constr. Co., 230 F.3d 489, 495 n.3 (1st Cir. 2000); Jusino Mercado
v. Puerto Rico, 214 F.3d 34, 39 (1st Cir. 2000)) have adhered to
the position stated in the preceding paragraph of the text.
Indeed, the first and third of those cases specifically cite Alden
in their exposition of Eleventh Amendment law.

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federal forum does not alone constitute an abrogation of sovereign

immunity, even if it is merely court-created.

Even on the assumption that Congress acts pursuant to a

valid exercise of power, it must still "unequivocally express[ ]

its intent to abrogate" a State's immunity (Seminole Tribe of Fla.

v. Florida, 517 U.S. 44, 55 (1996)9; Quern v. Jordan, 440 U.S. 332,

343 (1979)), and Plaintiffs can point to no such evidence of

Congress' intent here. Quern, id. at 345 concluded that Section

1983, although enacted pursuant to the Fourteenth Amendment, did

not abrogate the immunity of the States because there was

insufficient evidence of Congress' desire to make States liable

under that statute. And Examining Board, 426 U.S. at 581-98

carefully traced the history of Section 1983 and its accompanying

statutory grant of federal jurisdiction as they applied to Puerto

Rico and found no indication that Congress intended to treat Puerto

Rico differently from the States (cf. Jusino Mercado, 214 F.3d at

44, holding that Congress in drafting the Fair Labor Standards Act

did not intend to "intrude more profoundly on Puerto Rico's

sovereignty than on that of the states").

Without speculating on the outer limits of Congress'

constitutional power to regulate the territories, we conclude that

9
Seminole Tribe and its progeny have not done away with that
initial requirement for abrogation, but have rather added a second
step to the judicial inquiry: whether Congress acted pursuant to a
valid exercise of power. Because we find that Plaintiffs fall at
the first hurdle, there is no need to approach (let alone overleap)
the second.

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Puerto Rico's immunity has not been overcome by federal statute in

this case. Thus nothing in Alden has any bearing on our analysis

or conclusion here.

In reviewing what has occurred in this case and the

conclusion we have perforce reached, we are constrained to say that

the actions of the Puerto Rico executive agencies and legislature

here have continued a distressing pattern of activity in seeking to

avoid millions of dollars of established or potential liability--a

pattern that this Court has twice labeled as "despicable" in

earlier cases: Futura Dev., 144 F.3d at 13 and U.S.I. Props., 230

F.3d at 501. That conduct epitomizes the notion that was at the

original core of sovereign immunity: The King can do no wrong.

And in extending that notion to our democratic form of government,

the courts do not seem to subscribe to the pre-Revolutionary-War

view expressed in 1776 in Thomas Paine's Common Sense:

[S]o far as we approve a monarchy...in America
the law is king. For as in absolute
governments the king is law, so in free
countries the law ought to be king; and there
ought to be no other.

Under the caselaw the federal courts cannot serve as

"king" to right any wrongs committed by the Puerto Rico government

in its sovereign capacity. As in U.S.I. Props., 230 F.3d at 501,

we must leave it to the courts of the Commonwealth to correct any

injustice.

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 Conclusion

We AFFIRM the ruling of the district court dismissing

Plaintiffs' suit as barred by Puerto Rico's immunity from suit in

the federal courts.

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