Rodriguez v. Puerto Rico Institute of Culture

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to lst Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 02-2305

LIONEL LUGO RODRIGUEZ, ET AL.,
Plaintiffs, Appellants,

v.

PUERTO RICO INSTITUTE OF CULTURE, ET AL.,
Defendants, Appellees.

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

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Mauricio Hernández Arroyo for appellants.
Elisa Bobonis Lang for appellee Puerto Rico Institute of
Culture.
Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Roberto J. Sánchez Ramos, Solicitor General, and Kenneth
Pamias Velázquez, Deputy Solicitor General, were on brief for
appellees Bounds-Dávila, Ortiz-Colón, Maza, González-Valentín,
Nazario, Martínez, Mas and Hernández.
Jose A. Acosta Grubb, with whom Fiddlep, González & Rodríguez,
P.S.C., was on brief for appellee Municipal Revenue Collection
Center.

May 5, 2004
 COFFIN, Senior Circuit Judge. For more than a decade,

appellant Lionel Lugo Rodríguez has been pursuing an endorsement

from the Puerto Rico Institute of Culture ("PRIC") for his shopping

mall project in an historic district of San Germán, Puerto Rico.

Such an endorsement is a prerequisite for the project to be

classified as tax-exempt, and Commonwealth administrative and

judicial proceedings concluded with denial of the endorsement.

Appellant argues here that the process leading to that result was

tainted by fraud, and he seeks a remedy under federal RICO and

civil rights law, as well as under Puerto Rico tort provisions. We

agree with the district court that appellant already has had his

day in court on this matter and that further deliberation on the

particulars is barred by the doctrine of res judicata. We decline

to add another lengthy chapter to the saga and therefore provide

background only as necessary to explain our conclusion.

The merits of appellant's claim that PRIC wrongfully denied

him its endorsement were thoroughly considered by the Puerto Rico

Circuit Court of Appeals, which reviewed the voluminous

correspondence and other documentary evidence generated between

1988 and 1998, as well as the administrative transcript, and

concluded that appellant "did not fulfill his obligation to show

any irregularity in the proceedings." Rather, the court determined

that the PRIC endorsement was denied because appellant failed to

satisfy the architectural requirements that the agency had

-2-
specified. Appellant claims that newly discovered evidence of

fraud entitles him to revisit this judgment. Appellees respond

with multiple bases for dismissing the federal claims, including

appellant's alleged failure to adequately plead a RICO cause of

action, Eleventh Amendment immunity, and the Rooker-Feldman

doctrine. With an exception we address below, see infra at note 2,

we believe that the most direct path – and thus the most

appropriate – is via preclusion principles.

Res judicata under Puerto Rico law precludes "only claims that

were or could have been raised in a previous suit," Boateng v.

Interamerican Univ., Inc., 210 F.3d 56, 62 (lst Cir. 2000), and

there must be "'the most perfect identity between the things,

causes, and persons of the litigants, and their capacity as such,'"

id. at 61 (quoting P.R. Laws Ann. tit. 31, § 3343). The

resemblance between the cases need not literally be "perfect,"

however. Id. "For res judicata purposes, '[t]he thing corresponds

basically to the object or matter over which the action is

exercised.'" Id. (quoting Lausell Marxuach v. Díaz de Yáñez, 3 P.R.

Offic. Trans. 742, 745 (1975)). The "cause" refers to "the main

ground or origin of the action." Id.; see also Worldwide Food

Distributors, Inc. v. Alberic Colón Bermúdez, 133 D.P.R. 827, 33

P.R. Offic. Trans. ___, slip op. at 7 (1993) ("'the cause is

equivalent to a ground or reason for asking'") (citation omitted).

-3-
Preclusive effect is given only to judgments that are "final and

unappealable." Boateng, 210 F.3d at 63.

We conclude that the prerequisites for application of res

judicata are met here. Unquestionably, the underlying issue – the

legitimacy of PRIC's refusal to grant appellant an endorsement for

a tax exemption – is identical, matching both "thing" (the

endorsement) and "cause" (the validity of its denial). The

commonwealth circuit court decision on which we rely became final

when the Puerto Rico Supreme Court denied certiorari in March

1999.1 The parties, in pertinent respects, are the same.2

1
Shortly before he filed this federal action, appellant filed
a second commonwealth lawsuit against PRIC raising claims stemming
from the denial of the tax exemption. The Puerto Rico Court of
First Instance dismissed that complaint with prejudice, and his
petition for review remains pending in the Puerto Rico Supreme
Court. It is appellant's earlier commonwealth action, however,
that provides the basis for our res judicata holding. It appears
that appellant also filed a separate commonwealth action against
the Municipal Revenue Collection Center (CRIM), another defendant
in this case, and that the CRIM action remains pending as well.
2
We note that the original commonwealth action involved only
appellant and PRIC. Although the federal lawsuit named additional
plaintiffs and defendants, the district court supportably
determined that most of the new parties (appellant's business
entities, individual PRIC officials and PRIC's insurer) held the
same interests as the original parties, so res judicata applies as
well to the claims against them. See Perez-Guzman v. Gracia, 346
F.3d 229, 233-38 (lst Cir. 2003); Paniagua v. Corporacion de
Fomento Recreativo, 986 F. Supp. 694, 697 (D.P.R. 1997) (citing
Acevedo Santiago v. Western Digital Caribe, Inc., 140 D.P.R. 452,
40 P.R. Off. Trans. ____(1996)).
The one possible exception is CRIM (along with several CRIM
employees), but the claims against CRIM were properly dismissed for
other reasons. Appellant acknowledges that the Butler Act, 48
U.S.C. § 872, prohibits a federal court from barring CRIM's
collection of the disputed taxes on his project. He makes an

-4-
 Appellant nonetheless maintains that the commonwealth judgment

may not be given res judicata effect because it was infected by

fraud, and the presence of fraud triggers an exception to the

doctrine of res judicata. See, e.g., Medina v. Chase Manhattan

Bank, N.A., 737 F.2d 140, 144 (lst Cir. 1984).3 Moreover, he

contends that the new allegations of fraud that underlie his RICO

and civil rights claims distinguish this case from the earlier

litigation and could not have been raised earlier – making res

judicata by definition inapplicable.

As best we can tell, the centerpiece of appellant's fraud

claim is the draft of a letter, dated July 7, 1997, prepared by

architect Jorge Ortiz Colón for signature by PRIC's director at the

time, Dr. Luis E. Díaz Hernández. It is undisputed that the

additional due process claim, undeveloped in his brief, based on
the revocation of a fifteen-year tax exemption apparently granted
to the property before he owned it. We decline to delve below the
murky surface of this allegation, but note that the challenged
reassessment occurred no later than 1998; any resulting
constitutional claim would have been subject to a one-year statute
of limitations. See Ruiz-Sulsona v. Univ. of Puerto Rico, 334 F.3d
157, 159 (lst Cir. 2003). His assertion that he did not discover
the reassessment until 2001 is belied by his statement that he
learned of the alleged retroactive debt in 1998 when he went to the
Puerto Rico Tourism Company to apply for an extension of the tax
exemption. See, e.g., Reply to Order to Show Cause and Motion for
Reconsideration; Affirmation in Support to Supplemental Opposition
to Motion to Dismiss.
3
At oral argument, appellant's counsel made passing reference
as well to the public policy exception to res judicata, see Medina,
737 F.2d at 144. The point was not developed, however, and in
these circumstances, we fail to see how it would provide an
independent basis for avoiding the doctrine.

-5-
letter, communicating denial of the Institute's endorsement of a

tax exemption, was never sent, and that appellant was actually

notified of the denial in September 1997 by another PRIC official.4

It is also undisputed that Díaz Hernández had no contemporaneous

knowledge of the draft letter. Appellant claims, however, that the

letter was relied upon in a report written by PRIC architect

Mildred González Valentín and that González Valentín testified at

the PRIC administrative hearing that she had a signed copy of the

letter. Appellant suggests that use of the letter, without its

purported author's knowledge, was fraudulent and that the letter

tilted the proceedings against him.

We are unable to discern the fraud in these allegations.

There is nothing in the record to indicate that anyone deliberately

misrepresented the draft letter as the actual decision of Díaz

Hernández. Although it is alleged that González Valentín relied on

the letter in her report (which apparently is not part of the

record on appeal), this assertion is of limited significance for

two reasons. First, the letter simply summarizes the results of

PRIC's internal evaluation of the exemption request, matters that

were directly considered at the administrative hearing and by the

court on review. Nothing in the record indicates that the result

at either stage was affected by the "opinion" on those matters of

4
The record indicates the notification letter was sent by
Héctor F. Santiago Cazull, then Assistant Director of the
Institute's Patrimony Conservation area.

-6-
Díaz Hernández – who was no longer PRIC's director at the time the

endorsement was denied. Second, the record indicates that González

Valentín concluded in her report that, despite the problems she

identified through an examination of the building and relevant

documents, a five-year tax exemption would be appropriate if the

construction blueprints for the project had previously received

official approval, which would indicate compliance with PRIC's

requirements for preserving the building's historical value. In

other words, despite the presence of the draft letter in her

report, González Valentín recommended an exemption if PRIC's

evaluation showed that the project met historical standards.

Thus, rather than reflecting fraud because it included the

draft letter, the architect's report suggests that the exemption

was denied because the project did not fulfill the specified

requirements – which was the conclusion reached in both the

administrative and judicial proceedings.5 We thus find no basis

for assigning the letter any significance in PRIC's decision to

deny endorsement, and certainly no indication that it was

fraudulently used to induce an unjustified result.

5
Although appellant asserts that González Valentín testified
that she had a signed copy of the Díaz Hernández letter, there is
some ambiguity in the record about the certainty of that statement.
The lack of clarity is of no consequence, however, because the
record contains no other evidence that any copy of the letter,
which unquestionably was a draft, was signed. The only reasonable
inference to be drawn, therefore, is that González Valentín's
testimony, if accurately described, reflected an error on her part
and is not evidence of fraud.

-7-
 In support of his claims, appellant submitted sworn statements

from Díaz Hernández, the PRIC director who was the nominal author

of the July 7 letter, and three others. Although several of the

statements make conclusory reference to fraudulent activity,

including forged documents, fraudulent documents and "other

improprieties," the only specific assertions of wrongdoing appear

to refer to the Ortiz Colón draft letter or the González Valentín

report, which, as we have discussed, cannot support a fraud claim.

As the following descriptions reveal, the offered sworn statements

fail to assist appellant in meeting his obligation under Fed. R.

Civ. P. 9(b) to allege his claim of fraud "with particularity."

See United States v. Karvelas, 360 F.3d 220, 226 (lst Cir. 2004)

("Rule 9(b) requires that a plaintiff's averments of fraud specify

the time, place, and content of the alleged false or fraudulent

representations.").

In his statement, Díaz Hernández, who left his position before

the endorsement was denied, confirms that he did not write the July

7 letter, criticizes its inclusion in the architect's report and

refers to "apparent inconsistencies effectuated by officials at the

Culture Institute." He states that he would have granted a ten-

year tax exemption because the project had complied with all of

PRIC's requirements, but his general declaration of compliance

contradicts the agency's and court's formal findings that the

requirements were not fulfilled. None of his assertions casts

-8-
doubt on the integrity of the review process conducted by the

Puerto Rico circuit court or provides a basis for devaluing the

finality of its judgment.

Each of the other three affiants, all of whom worked for PRIC,

also offered only conclusory assertions of wrongdoing. Luis A.

Ruiz Quirindongo, an advisor to another PRIC director, Dr. José

Ramón de la Torre Martínez, stated that the file on appellant's

project showed that "documents had been concealed, and that

possible crimes committed therein, which induced errors within the

examiner's official report, as well as the courts and officials of

the Culture Institute." Ruiz stated that documentation was forged,

but did not specify the documents. He further stated that PRIC's

auditor concluded that there had been "an agreement . . . to commit

and to cover up crimes" related to appellant's project. Such a

bald claim of fraud, left unsubstantiated with any particular

misconduct, is insufficient to satisfy Rule 9(b) or to justify re-

opening the administrative process.

The remaining two affidavits were similarly lacking in

particularity. De la Torre, who had left his position at PRIC by

the time of his statement, reported that he "became aware of

certain questionable details executed during the process of denial

of [appellant's] tax exemption application." He asserted that

architect Ortiz Colón "apparently induced the Institute and the

Courts to err, by creating the false impression" that Ortiz Colón's

-9-
written endorsement was for a limited portion of the project, the

tunnel protection plan. The Puerto Rico court, however, directly

reviewed the file materials and concluded otherwise.6

The final affidavit was from Edgar Correa Salgado, PRIC's

Press and Communication Director under de la Torre. Correa refers

to "the existence of certain fraudulent documents prepared by

Architect Jorge Ortíz Colón" and his – Correa's – recommendation

that an internal investigation be conducted into appellant's

allegations of improprieties in the endorsement process. Again,

there is no identification of particular "fraudulent documents,"

other than, apparently, the draft letter. According to Correa,

when he confronted de la Torre with information regarding "other

improprieties and internal security problems" affecting PRIC, de la

Torre informed him that he was proceeding with his immediate

resignation and "that he would not carry out any action in relation

to [appellant's] case."

None of these statements contain factual allegations adequate

to undergird appellant's conclusory fraud claim. Even with respect

to the July 7 draft letter and the González Valentín report, the

statements aver no fraudulent link to the administrative and

6
The court's opinion stated that "it is clearly evident from
the file – in particular from the documentary evidence provided by
the petitioner himself – that said endorsement was given for the
blueprints that submitted 'the corrective[] measures taken in order
to separate (sic) the affected parts of the tunnel', . . . and that
the same did not amount to or constitute an endorsement for the
project to be carried out in the building."

-10-
judicial evaluation process. If such generalities were enough to

justify renewed inquiry into PRIC's denial of the endorsement, the

finality of judgments would be seriously compromised. Lacking a

viable fraud claim, appellant may not escape the preclusive effects

of the prior proceedings. Moreover, his inability to adequately

allege fraud defeats any RICO claim, which depends upon a showing

of at least two predicate acts of "racketeering activity," conduct

that in this case was alleged to be mail and wire fraud. See North

Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 42 (lst Cir. 2001).

Finally, to the extent appellant asserts a section 1983 claim based

on conduct unrelated to the revocation of the tax exemption, see

note 2 supra, it is insufficiently elaborated in his brief to

permit meaningful review and is therefore waived. We thus affirm

the district court's judgment of dismissal.7

Affirmed.

7
We have considered appellant's challenges to CRIM's
submission of exhibits without translations and to the court's
allowance of extra filings by defendants, but find no error
warranting reversal of the district court's judgment.

-11-