United States Court of Appeals
For the First Circuit
No. 04-1031
TOMAS DE JESUS-MANGUAL and JORGE L. MEDINA,
Plaintiffs, Appellants,
v.
ANABELLE RODRIGUEZ, Secretary of Justice of the
Commonwealth of Puerto Rico,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Juan R. Marchand Quintero on brief for appellant.
Roberto J. Sanchez Ramos, Solicitor General, Camelia
Fernandez Romeu, Assistant Solicitor General, and Kenneth Pamias
Velasquez, Deputy Solicitor General, on brief for Appellee.
September 2, 2004
LYNCH, Circuit Judge. This appeal arises from the
aftermath of our decision in Mangual v. Rotger-Sabat, 317 F.3d 45
(1st Cir. 2003), which resolved some but not all of the claims
against the constitutionality of Puerto Rico's criminal libel
statute presented by the plaintiffs in the initial litigation.
The district court construed our remand order and mandate
to preclude it from considering additional legal claims of the
original plaintiff, Tomas de Jesus-Mangual, and the intervenor
Jorge Medina that the statute is also unconstitutional as applied
in a different context. As a result, it refused to consider de
Jesus-Mangual's and Medina's claims, presented initially in the
earlier action and pressed later by a post-remand motion for
summary judgment, that the Puerto Rico criminal libel statutes are
also unconstitutional under the First Amendment in criminal
prosecutions of claims that the reporter had libeled private
individuals in reporting matters of public concern.
In Mangual, this court, inter alia, instructed the
district court on remand to enjoin the Puerto Rico criminal libel
statute, 33 P.R. Laws Ann. §§ 4101-4104, as unconstitutional under
the First Amendment "as applied to statements regarding public
officials or figures." Mangual, 317 F.3d at 69. The record
permitted us to resolve the public official or figure issues, but
not the claims articulated in plaintiff's September 1999 summary
judgment motion about private figures in matters of public concern.
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We also held that the district court erred in dismissing the case
for lack of standing and in denying intervention to Jorge Medina,
and allowed his intervention. Id. Further, we noted that on the
evidence,
"[the threats] to which the plaintiffs point
all involve statements regarding either public
officials, such as police officers, or public
figures such as political candidates. Thus,
we have no occasion to consider whether the
Puerto Rico criminal libel statute is
unconstitutional as applied to statements
about private figures on matters of public
concern."
Id. at 66 n.8. Plaintiffs de Jesus-Mangual and Medina filed a
petition for reconsideration with this court, asking us to
reconsider and reach this issue. We declined to do so. As of that
time, as plaintiffs admit in their brief here, the issue of
application of the statute to claims that private individuals were
libeled on matters of public concern was not fully developed, there
having been no evidence presented on that claim, unlike the public
official claim.
Mandate issued from this court on February 20, 2003. It
remanded the case to the district court with instructions to issue
a declaratory judgment and injunctive relief consistent with the
January 21, 2003 opinion, which stated:
We hold that the Puerto Rico criminal libel
statute incorporates constitutionally invalid
standards in the context of statements about
public officials or public figures. We hold
that Puerto Rico's criminal libel statute, 33
P.R. Laws Ann. §§ 4101-4104, is
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unconstitutional under the First Amendment as
applied to statements regarding public
officials or figures. We reverse the denial
of Medina's motion to intervene and grant
intervention to Medina, reverse the dismissal
of the case on jurisdictional grounds, and
remand the case with instructions that the
district court enter a declaratory judgment
and injunctive relief consistent with this
opinion. So ordered. Costs are awarded to
Mangual and Medina.
Id. at 69.
The next day the plaintiff and plaintiff-intervenor filed
a motion for summary judgment on the portion of their earlier
claims that the criminal libel statute is unconstitutional as
applied to publications about private individuals in matters of
public concern. Each plaintiff filed a supporting affidavit.
De Jesus-Mangual's affidavit said that his job as a
reporter required him to cover private as well as public persons on
matters of public concern. He said he was chilled in pursuing and
publishing certain stories and had suppressed names of private
persons out of fear of criminal prosecution. His fears were
exacerbated by the fact that the statute appeared to put the burden
on the reporter to prove the truth of the statements made.
Further, this chilling effect was particularly strong because,
unlike for civil libel claims, he was not able to obtain insurance
against a criminal libel claim, and thus would have to shoulder the
expense of litigating such a claim himself. He acknowledged that
he was not at that time under any threat of prosecution for stories
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about private persons in matters of public concern. But the
affidavit said that such prosecutions were still being brought.
Referring to the prosecution of television producer Kobbo
Santarrosa, he averred that the Justice Department was continuing
to prosecute journalists under the statute.
The affidavit of the intervenor plaintiff, Medina, made
similar statements. He stated that a substantial part of his
journalistic work included covering matters of public concern which
often involved individuals who would not be considered public
officials or figures. In addition, he said that there have been
numerous instances in which he has refrained from naming private
individuals in a story for fear that he would be prosecuted under
the statute. He further said that the Justice Department was still
prosecuting individuals under the criminal libel statute, and that
this fact has contributed to the chilling effect resulting from the
statute. He too stressed the importance of the lack of available
insurance as a large deterrent from his publishing legitimately
newsworthy articles that could possibly fall under the reach of the
statute.
No opposition was ever filed to the plaintiff's February
21, 2003 summary judgment motion.1 Indeed, it might have been
1
Pursuant to District of Puerto Rico Local Rule 7.1,
defendants were required to reply to the motion within ten days of
being properly served.
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taken that the Secretary was declining to defend the statute
against this challenge.
On March 13, 2003, the district court issued a
declaratory judgment and injunction in conformity with this court's
opinion. It did not act on the new summary judgment motion.
The plaintiffs twice asked the court to act on their
summary judgment motion: on April 29 and June 2, 2003. The court
did not act on the motion until October 31, 2003, when it denied
the motion for summary judgment, stating that it had no power to
act on plaintiff's claim as it was foreclosed by our mandate. The
result of the order was to foreclose all other issues and thus,
effectively, close the case.
I.
We deal first with an issue not addressed by the parties.
The record shows that no final judgment was entered by the district
court on a separate document, as required by Rule 58. Fed. R. Civ.
P. 58. However, because the district court's order clearly
indicated that it intended to dispose of the case finally, and the
defendant Secretary of Justice Rodriguez has not objected to the
appeal but rather has briefed the case as a final, appealable
order, we may appropriately exercise jurisdiction.
Under 28 U.S.C. § 1291, the "courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of the
district courts of the United States . . . ." Id. Generally, a
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district court decision becomes "final" when judgment is set forth
in a separate document as required by Rule 58.
Nonetheless, a decision of a district court may be a
"final decision" for the purposes of appellate jurisdiction under
§ 1291 despite the lack of a judgment entered in a separate
document under Rule 58. Banker's Trust Co. v. Mallis, 435 U.S. 381
(1978). In Banker's Trust, the Supreme Court noted that Rule 58
was passed in order to make clear precisely when the clock began to
run for the purposes of appealing a final judgment. Id. at 384.
Here there is no question but that the appeal is timely, and so the
purposes of Rule 58 are not served by hinging appellate
jurisdiction on the existence of a separate judgment. Banker's
Trust held that where the district court had clearly evidenced its
intent that the appealed-from opinion and order represent the final
decision in the case, a judgment of dismissal was recorded in the
docket, and respondent did not object to the appeal in the absence
of a separate judgment, the requirements of Rule 58 were deemed
waived and jurisdiction under § 1291 was proper. Id. at 387-88;
see also United States v. Hoyts Cinemas Corp., Nos. 03-1646, 03-
1787, 03-1808, slip op. at 9-10 (1st Cir. Aug. 20, 2004) ("Both
parties treat [summary judgment order] as a final judgment and . .
. so do we"); Mullane v. Chambers, 333 F.3d 322, 337 (1st Cir.
2003).
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Similarly, in this case the district court evidenced a
finality to its order, the appeal is timely, and the Secretary has
not only waived the lack of a Rule 58 final judgment but has asked
us to decide the appeal. The district court's memorandum and order
states unequivocally that the plaintiff's claim was properly
disposed of by our earlier decision and mandate, and that as a
result it was without jurisdiction to hear anything more. While,
unlike in Banker's Trust, a judgment of dismissal has not been
recorded in the docket, "nothing but delay would flow from
requiring the court of appeals to dismiss the appeal. Upon
dismissal, the district court would simply file and enter the
separate judgment, from which a timely appeal would then be taken.
Wheels would spin for no practical purpose." Banker's Trust, 425
U.S. at 385; see also Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485
(1st Cir. 1993) ("[A] pro forma remand, followed by a new notice of
appeal, would advance neither the interests of the parties nor
sound judicial administration . . . .").
II.
We start by noting that summary judgment was denied on
grounds never raised by any party. The district court gave no
notice that it thought the motion was barred by the mandate
doctrine and plaintiffs were given no opportunity to brief the
issue. That alone would be a basis for reversal. See Douglas v.
York County, 360 F.3d 286, 290-91 (1st Cir. 2004) (finding an abuse
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of discretion where district court injected new issue into the case
without giving parties notice and opportunity to respond).
Furthermore, had the district court notified the parties of its
concern about the meaning of the mandate, the parties could easily
have sought clarification about the mandate from this court. See,
e.g., United States v. Melvin, 27 F.3d 710, 711-13 (1st Cir. 1994)
(after reversing district court's opinion and remanding for further
proceedings, court of appeals granted motion to reconsider based on
confusion as to mandate); In re Dedham Water Co., 901 F.2d 3 (1st
Cir. 1990).
Turning to the merits, we disagree with the district
court's interpretation of the mandate. The issue of the
application of the statute to asserted libel of private persons was
raised in the complaint. Further, in the motion for summary
judgment submitted along with the verified complaint, Mangual
included among the constitutional defects of the statute that "when
the complainant is a private individual or a public figure (not a
public official), the accused must equally shoulder the burden of
proving the truth of his expressions and further, that the matter
relating to his publications is of 'public concern.'" (emphasis
added). This put both the defendant and the court on notice that
Mangual intended to challenge the constitutionality of the statute
as applied to publications about private persons as well as public
officials. Because the case was dismissed on standing grounds,
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there was no opportunity for discovery. Without waiving this
issue, plaintiffs produced evidence of actual prosecutions
involving statements about public officials in order to assert
standing. Nothing in this court's prior opinion resolved the issue
of application of the criminal statute to claimed defamation of
private individuals in publications on matters of public concern.
In the posture in which the case came to us, the issue was not yet
fully developed, and we were explicit that we were not reaching it.
Nothing in our mandate instructed the court to dismiss the entire
case or its remaining claims upon entry of the required injunctive
and declaratory relief. Nothing in our mandate precluded the
plaintiffs from attempting to raise the issue and provide
supporting evidence. The district court was not deprived of power
to entertain the motion.
Under this circuit's "law of the case" doctrine, the
mandate rule, "with only a few exceptions, forbids, among other
things, a lower court from relitigating issues that were decided by
a higher court, whether explicitly or by reasonable implication, at
an earlier stage of the same case." Municipality of San Juan v.
Rullan, 318 F.3d 26, 29 (1st Cir. 2003). It is equally clear that
issues that were not decided by the appellate court and that are
thus outside the scope of the mandate are not affected by the
mandate. In Biggins v. Hazen Paper, 111 F.3d 205, 209 (1st Cir.
1997), this court stated that "mandates require respect for what
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the higher court decided, not for what it did not decide."
Biggins cited multiple cases that hold that "absent a contrary
direction, a district court on remand can permit the plaintiff to
'file additional pleadings, [or] vary or expand the issues . . .
.'" Id. (quoting Rogers v. Hill, 289 U.S. 582, 587-88 (1933)).
In ruling on the constitutionality of one category of as-
applied cases, this court reached only the issues for which there
was an adequate evidentiary record. Because the initial case was
dismissed by the district court on procedural grounds prior to any
significant discovery, plaintiffs were not given the opportunity to
develop the evidentiary record with respect to their constitutional
challenge to the statute as applied to publications about private
individuals in matters of public concern.
The Secretary was on notice from the complaint and
simultaneously filed summary judgment motion that plaintiff was
challenging the statute's applicability to private individuals as
well. It is true that plaintiff and plaintiff intervenor had not,
at the time of the appeal from the dismissal of the case, raised in
their affidavits evidence of the sort they raised post-mandate
about prosecutions arising from publications about private persons
in matters of public concern. It was up to the defendant Secretary
to raise an objection if she felt prejudiced by the post-mandate
filing that raised the issue again. Whatever arguments the
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defendant had to the timing of the raising of the claim post-
mandate have been forfeited.
Indeed the Secretary of Justice did not respond to the
summary judgment motion until this appeal. On appeal, the
Secretary asserts that we should affirm the District Court's ruling
based alternatively on the law of the case doctrine and the
doctrine of res judicata. These two arguments, in addition to
being forfeited by not being raised in the trial court, are
inapposite. Had this court decided the issue of the
constitutionality of the statute as to prosecutions for defamation
of private persons in matters of public concern, the law of the
case doctrine would be relevant. Further, had we decided the issue
in a different case than this, the doctrine of res judicata would
be relevant. The Mangual opinion is perfectly clear that the
private-person issue was not decided.
As a result, we remand for further proceedings consistent
with this opinion. Normally, we would hold that the defendant
Secretary, having failed in her obligation to oppose summary
judgment, was bound, as a result thereby, to take the plaintiffs'
statement of facts as given and was not permitted to introduce her
own evidence. However, what is at stake is the constitutionality
of a statute as applied to a category of cases; we are loathe to
have a determination made on such a question in such a default
context.
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On remand, the Secretary of Justice should notify the
district court whether the government intends to defend the
statute. The district court should then proceed accordingly. So
ordered.
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