Rivera-Feliciano v. Acevedo-Vila

United States Court of Appeals
For the First Circuit

No. 05-2473

CARMEN RIVERA-FELICIANO; MARÍA FLORES-FELICIANO; MENDELSON
ORTIZ-NICOLAU; EDGARDO HERNÁNDEZ-ORTIZ; INÉS NAVEDO-VÁZQUEZ;
GILBERTO RIVERA-RODRÍGUEZ; JOSÉ J. RIVERA-ANEIRO; HÉCTOR L.
RIVERA-ORTIZ; WILGBERTO MARIO FELICIANO; CARLOS A.
ROSARIO-ADORNO; DOMINGO GONZALEZ-MARIE; ALEXIS ORTIZ-BERRÍOS;
ANGEL MARCANO-ORTIZ; PEDRO BELTRÁN-CARRASQUILLO; LUIS
MELÉNDEZ-RAMOS; and the class of all the inmates convicted of
murder that currently participate in the AOC Electronic
Surveillance Program,

Plaintiffs, Appellees,

v.

HON. ANÍBAL ACEVEDO-VILÁ, Governor of Puerto Rico;
HON. ROBERTO SÁNCHEZ-RAMOS, Secretary of Justice of Puerto Rico;
MIGUEL PEREIRA-CASTILLO, Secretary of Corrections and
Rehabilitation of Puerto Rico and Administrator of Corrections of
Puerto Rico; HON. JOSÉ R. LOZADA, Director of the Bureau of
Special Investigations of Puerto Rico,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before
Torruella and Lynch, Circuit Judges,
and Lasker*, District Judge.

*
Of the Southern District of New York, sitting by
designation.
 Salvador Antonetti-Stutts, Solicitor General of Puerto Rico,
with whom Mariana D. Negrón-Vargas, Deputy Solicitor General, Maite
D. Oronoz-Rodríguez, Deputy Solicitor General, and Doraliz E.
Ortiz-De-León, Assistant Solicitor General, were on brief, for
appellants.
Guillermo J. Ramos Luiña, with whom Carlos V. García
Gutiérrez, Alejandra Bird López, Rafael E. Rodríguez Rivera, and
Civil Action and Education Corporation were on brief, for
appellees.

February 15, 2006
 LYNCH, Circuit Judge. In the 1970's inmates brought

litigation alleging that conditions at the Puerto Rico prisons were

unconstitutional; this resulted in a number of findings of

constitutional violations and federal court remedial orders. See

generally Morales Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004)

(providing history of prior litigation).

In 1989, in response to overcrowding within the prison

system, the Puerto Rico Administration of Corrections (AOC),

through a "normative memorandum," established an Electronic

Surveillance Program (ESP) under which certain inmates wearing

electronic surveillance devices (anklets) were released from

confinement in prison, but subject to supervision and strict rules.

From the beginning of the program in 1989, inmates who had been

convicted of murder were allowed by prison administrators to

participate in the ESP. The normative memorandum establishing the

ESP in 1989 was formalized in 1994, when the AOC adopted Regulation

No. 5065. The AOC found the authority to implement these measures

in the act creating the AOC, known as the "Organic Act." See

Organic Act of the Correctional Administration, P.R. Laws Ann. tit.

4, §§ 1101 et seq.

On May 26, 1995 the Commonwealth's legislature enacted

Law No. 49, 1995 P.R. Laws 49, which, inter alia, stated that

inmates convicted of murder were excluded from participation in the

ESP. Law No. 49 expressly authorized the AOC to establish and

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supervise the ESP, and, in an amendment to the AOC's Organic Act,

specified grounds for exclusion from the program. The specific

exclusion involved here reads as follows:

(a) Any convict who is serving a sentence for
the following crimes:
(1) Murder, rape, incest, sodomy or
lewd and lascivious acts when the victim is
under fourteen (14) years of age. . . .

P.R. Laws Ann. tit. 4, § 1136a. Law No. 49 also contained a

grandfather clause allowing continuation in the ESP for all persons

who were participating in the program as of the date of

effectiveness of the Act, also May 26, 1995. Each of the inmate

plaintiffs in this case committed the crime of murder before the

effective date of Law No. 49 and began participation in the ESP

after the effective date of Law No. 49, and so are not within the

grandfather clause. It is very much disputed whether allowing the

plaintiffs to participate in the ESP in the first place was

permissible under Law No. 49.

Thereafter, a scene of regulatory hopscotch ensued about

the interpretation of Law No. 49, with the primary question being

characterized as one of retroactivity of the law: whether Law No.

49 could be applied to those who were convicted of a murder

committed1 prior to the effective date of the Act. Soon after Law

1
The local regulations and the parties' briefs inconsistently
refer to either the date of commission, the date of conviction, or
the date of sentencing as the relevant date for retroactivity
analysis. At oral argument, the Solicitor General of Puerto Rico
emphasized that the relevant date is that of the commission of the

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No. 49 was passed, the AOC took the position that the law would

apply to all convicts. A number of inmates who had been convicted

of murders committed before the effective date of Law No. 49

challenged the application of the law to them in the Puerto Rico

courts. These courts held that Law No. 49 could not be applied

retroactively to those who committed murder before the effective

date of the Act. At least one court based its decision not only on

the constitutional prohibition against ex post facto laws, but also

on the separate "principle of retroactivity of the more benign

criminal law," which is codified in the Penal Code of Puerto Rico.2

See Sanabria-Morales v. Commonwealth, No. TD96-0258 (P.R. 1a Inst.

Sept. 4, 1996). In another case before the Puerto Rico Court of

Appeals, the Solicitor General of the Commonwealth admitted that

crime, and suggested that there may be plaintiffs in this suit who
committed murder before May 26, 1995 but were convicted and
sentenced afterward. We will treat the date of commission as the
relevant date without deciding the issue.
2
This statute provides:

Criminal laws have no retroactive effect except when
they favor the person charged with an offense.
If the law in force at the time the offense was
committed [was] different from that existing when passing
judgment, the most lenient of the two shall always be
applied.
If during the sentence a more lenient law regarding
the penalty or manner of execution is approved, the same
shall be limited to what is established by that law.
In the cases of the present section, the effects of
the new statute shall operate as a matter of law.

P.R. Laws Ann. tit. 33, § 3004 (alteration in original).

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the retroactive application of Law No. 49 would be

unconstitutional. See Robles-Gonzales v. Caraballo-Torres, No.

KLRA9600062 (P.R. Cir. Oct. 14, 1996). At least partially as a

result of litigation, some inmates who had been convicted of murder

before May 26, 1995 were admitted for the first time to the ESP

after Law No. 49 was enacted.

The AOC, in response to that earlier litigation, issued

an agency memorandum on August 15, 1996, indicating that Law No. 49

could not be applied retroactively to "any case sentenced prior to

May 26, 1995." This was followed up on May 12, 1997 by another

memorandum indicating that Law No. 49 could not be applied

retroactively.

Then, on October 27, 1999, the AOC promulgated Regulation

No. 6041, entitled "Regulation to Establish Procedures for the

Electronic Surveillance Program," to comply with Law No. 49. These

regulations expressly excluded from the ESP all persons convicted

of first-degree murder, but did not exclude persons convicted of

second-degree murder.

This prompted another round of lawsuits brought in Puerto

Rico courts by inmates who had been convicted of murders committed

prior to enactment of the Law No. 49, alleging constitutional and

local law violations. In one case, the court ordered the AOC to

consider the inmate for the ESP, finding that he otherwise met the

eligibility requirements. See Martinez-Vargas v. Corrections

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Administration, No. KAC 94-1278 (P.R. 1a Inst. Feb. 11, 1997). In

another case involving one of the plaintiffs here, Mendelson Ortiz-

Nicolau, the AOC entered a stipulation that Law No. 49 would only

be applied prospectively, meaning that Ortiz could not be

considered ineligible for the ESP based on his murder conviction.

See Ortiz-Nicolau v. Corrections Administration, No. KPE99-2586

(P.R. 1a Inst. Nov. 8, 1999).

After these decisions and in an apparent attempt to avoid

retroactivity concerns, the AOC implemented a policy which applied

differential criteria depending on when the inmate committed the

crime. In December 2000, two of the plaintiffs here, María Flores-

Feliciano and Carmen Rivera-Feliciano, requested reconsideration by

the AOC of its determination that they were not eligible for the

ESP. In a legal opinion, the AOC recommended that their

application be reconsidered based on application of the new policy.

According to the district court, the policy "appeared [to cause]

confusion within the AOC as to which Regulation and eligibility

criteria would apply to each inmate requesting ESP privilege."

Then, on May 15, 2001, the AOC promulgated Administrative

Order AC-2001-012, which was meant to clarify matters. It did

exactly the opposite. It also provided for differential treatment

of inmate eligibility, based on whether the inmate committed the

crime before or after October 27, 1999, the date Regulation No.

6041 was adopted. It also was unclear on the applicability of Law

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No. 49. On one hand, it provided that Law No. 49 was applicable to

all persons who committed their crimes prior to October 27, 1999.

On the other hand, it also suggested, through an application of the

principle of the most benign rule from the Puerto Rico Penal Code,

that Law No. 49 would not apply to persons convicted of crimes

before the date of effectiveness, in direct contradiction to the

statutory text (save for the grandfather clause).

A March 19, 2004 order, Administrative Order AC-2004-002,

purported to correct the problem created by the May 15, 2001 order

by expressly repealing it. Miguel Pereira-Castillo, who was

appointed to the position of Secretary of Corrections and

Rehabilitation and Administrator of Corrections in April 2003 and

continues in that position today, testified that despite this

repeal, he continued to admit murder convicts into the ESP. He

explained that the reason he had done this was not because of ex

post facto concerns, which he concluded were not a problem soon

after taking office, but because of concerns related to Puerto Rico

administrative law that had been communicated to him by an outside

expert.

On May 4, 2004, the AOC adopted Regulation No. 6797, to

formalize the March 19, 2004 order and govern the ESP going

forward. The new regulation modified Regulation No. 6041 to refer

to "murder" instead of "murder in the first degree." By this, it

intended to close the loophole for second-degree murderers. It did

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not expressly address any retroactivity issues. Nonetheless, the

district court found that the regulation was still being applied

only to those who had been convicted of murder after the effective

date of Law No. 49. Indeed, the director of the ESP testified that

one person convicted of murder prior to 1995 had been released in

December 2004.

On January 2, 2005, a new administration took control of

the Commonwealth's executive branch with the election of Aníbal

Acevedo-Vilá as Governor. Acevedo-Vilá, along with Roberto

Sánchez-Ramos, Secretary of Justice of the Commonwealth, José R.

Lozada, Director of the Bureau of Special Investigations, and

Pereira-Castillo, the aforementioned Secretary of Corrections and

Rehabilitation and Administrator of Corrections, are the defendants

in this case, sued in their official capacities.

In April of 2005, the defendants determined that the

prior administration's interpretation of the regulations, as well

as the positions the AOC had taken in litigation, were in error.

They concluded that there was no retroactivity problem with

applying Law No. 49 to those inmates presently in the ESP who had

been convicted of murder committed before May 26, 1995 but who were

subsequently admitted to the ESP. In the defendants' view, the

"core substantive issue in this case is whether or not the

Commonwealth of Puerto Rico has the authority to correct past

administrative mistakes of law, when the result of those mistakes

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was to allow several individual convicts to be released from jail

under electronic supervision."

The defendants, in April 2005, managed to take back into

custody and reincarcerate fourteen other individuals, none of whom

are plaintiffs in the present action, who had been convicted of

murder before the effective date of Law No. 49 and had been

released into the ESP thereafter. These reimprisoned inmates

immediately filed a habeas corpus petition in the courts of Puerto

Rico, seeking release back into the ESP. As best we can tell from

the record,3 these petitioners have argued that their

reincarceration violated the ex post facto prohibition and the due

process clause under both the Constitution of the United States and

the Constitution of Puerto Rico, as well as the "principle of . . .

favorableness in the interpretation of statutes to the accused" in

the Puerto Rico Penal Code, and also that the applicable

regulations violated state administrative law.

That habeas case was brought under the name of Gonzáles-

Fuentes v. Commonwealth. The Court of First Instance of Puerto

Rico granted the habeas corpus petition, but on June 20, 2005, the

decision was overruled by the Puerto Rico Court of Appeals. The

petitioners appealed to the Puerto Rico Supreme Court, where their

3
The defendants have provided a translated version of the
appeal petition filed by the habeas petitioners in the Supreme
Court of Puerto Rico, and we draw our understanding of the various
issues in that case from this brief.

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case has been briefed and is presently pending. See Gonzáles-

Fuentes v. Commonwealth, No. AC-25-48 (P.R. filed September 1,

2005).

Another Puerto Rican case was brought by inmates who had

never been admitted into the ESP program, but had committed murder

prior to May 26, 1995; they sought an injunction and a declaratory

judgment that they were eligible for admission into the ESP. See

Rivera Morales v. Commonwealth, No. KPE2005-1075 (P.R. 1a Inst.

Aug. 2, 2005). The Puerto Rico Court of First Instance on August

2, 2005 entered a permanent injunction barring the AOC from

applying Law No. 49 retroactively. Id. The court based its

decision not only on ex post facto prohibitions in the federal and

Puerto Rico constitutions, but also on interpretations of Puerto

Rico administrative law. It is unclear from the record and the

briefs whether this case has been appealed.

On August 25, 2005, defendants announced their intention

to "arrest" and immediately reincarcerate all participants in the

ESP who had been convicted of murder, including the fifteen

plaintiffs here. This intention was not based on plaintiffs'

infraction of any rules of the ESP, but on the new administration's

broad reinterpretation that the plaintiffs had never been eligible

for the ESP either under Law No. 49 or earlier.

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 After the announcement of August 25, the fifteen

plaintiffs (and a purported class)4 filed a complaint under 42

U.S.C. § 1983 on August 26, 2005 and sought a preliminary

injunction and temporary restraining order.5 The case was assigned

to the same federal judge who had presided over the Puerto Rico

prison reform litigation for more than 20 years. The district

court entered an ex parte temporary restraining order (TRO) the

same day. Three days later, the defendants moved to set aside the

TRO; their motion was denied on August 31, 2005.

On September 1, 2005, the defendants filed a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6) and an

opposition to the issuance of a preliminary injunction. The

district court held an evidentiary hearing on September 2 and 5,

2005. In an opinion and order issued on September 7, 2005, the

court denied the motion to dismiss, finding that abstention under

Younger v. Harris, 401 U.S. 37 (1971), was inappropriate and that

plaintiffs had stated a claim. The district court issued opinions

and orders on September 5 and 20, 2005, explaining its injunction.

4
These plaintiffs filed a motion for class certification
which was initially allowed by the district court on September 7,
2005; on motion by defendants, the district court vacated that
order on October 26, 2005.
5
The defendants have not attacked plaintiffs' use of § 1983
to bring these claims, so we do not address the issue. See
Wilkinson v. Dotson, 544 U.S. 74 (2005) (state prisoners' challenge
to state parole procedures properly cognizable under § 1983).

-11-
 The plaintiffs based their request for a preliminary

injunction on two grounds: that reincarceration would violate their

due process rights and the prohibition against ex post facto laws.

The district court found that an injunction was warranted under

both theories. It held that the plaintiffs had a liberty interest

in continued participation in the program, for which they met all

of the previously existing requirements. It also held that

"application of Law 49 and the regulations at issue to plaintiffs

is indeed ex post facto," and furthermore that "the effect of the

Department of Corrections' new interpretation of Law 49 would be

fatal to the plaintiffs inasmuch as the time they have been serving

their sentence within the program would not be considered as time

served for purposes of calculating their total years served." The

terms of the preliminary injunction, set forth in the September 20

opinion and order, are as follows:

[D]efendants, their attorneys, agents,
employees or others acting in concert with
them, and their successors are hereby enjoined
from applying Law 49 of May 26, 1995, as well
as Regulation No. 6041 of October 27, 1999,
and Regulation No. 6797 of May 4, 2004,
retroactively to plaintiffs and are enjoined
from removing plaintiffs from the Electronic
Surveillance Program, and re-incarcerating
them in any institution under the jurisdiction
of the Administration of Corrections.

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This injunction is limited to the plaintiffs and does not on its

face apply to others similarly situated to the plaintiffs.6

This case presents the Commonwealth defendants' appeal

from the grant of that injunction. The defendants make a number of

arguments,7 which, in essence, amount to (1) an assertion that the

district court acted prematurely and should have dismissed the

action and/or abstained, either under the doctrine of Younger v.

Harris, 401 U.S. 37, or some other abstention doctrine, and (2)

assertions that the district court was wrong on the merits in

finding any likelihood of success as to either ex post facto or due

process violations.

6
After this appeal was filed, the plaintiffs were granted
permission to file an amended complaint on December 16, 2005. The
amended complaint now lists ninety-four individuals, who are all
claimed to be similarly situated to the original plaintiffs, i.e.
they were convicted of murder prior to the enactment of Law No. 49
and were admitted into the ESP after the enactment of Law No. 49.
We treat the preliminary injunction being appealed as only covering
the original fifteen plaintiffs.
7
Specifically, the defendants raised these arguments: (1)
"[T]he district court lacks jurisdiction to hear the instant case
pursuant to the Younger abstention doctrine, because the injunctive
relief sought by Plaintiffs directly interferes with the quasi-
judicial and administrative faculties of the AOC and related
agencies." (2) "[T]he district court erred as a matter of law in
denying the motion to dismiss for failure to state a claim upon
which relief could be granted, with respect to Plaintiffs' claims
under both the Ex Post Facto Clause and the Due Process Clause."
(3) "[T]he district court abused its discretion in issuing the
preliminary injunction against Defendants, because Plaintiffs
failed to meet the requirements for a preliminary injunction,
particularly in that they are unlikely to prevail on their claims
under the Ex Post Facto or the Due Process Clauses."

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 I.

Oral argument before this court was held on January 10,

2006. This court identified for the parties two separate possible

liberty interests it saw as being at stake. The first concerned

the possibility that the defendants' actions would result in a

lengthening of an individual plaintiff's sentences of incarceration

beyond their judicially pronounced term by failing to credit time

served in the ESP. The second "liberty interest" had to do with

the return of the plaintiffs from the ESP to imprisonment, even if

there were no possibility of an extension of the duration of their

sentences.

The first issue arose because plaintiffs had questioned

whether the defendants intended to implement the law so as to

deprive plaintiffs of credit for any period of time during which

they had been in the ESP. Indeed, at the evidentiary hearing

before the district court in this matter, the supervisor of the

ESP, testifying on behalf of the defendants, said that was exactly

the defendants' intention: that the plaintiffs' time in the ESP

would not be credited toward their overall sentences. Such an

interpretation of the statute would raise very serious ex post

facto concerns under Lynce v. Mathis, 519 U.S. 433 (1997). See id.

at 445-56 (state statute which retroactively cancelled early

release credits with effect of increasing punishment of plaintiff

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violates Ex Post Facto Clause). The district court relied on that

testimony in part in issuing its injunction.

In its brief on appeal the Commonwealth defendants took

a different position on crediting time. They articulated in a

footnote the following:

The only way that [sentences] could
theoretically be increased if [plaintiffs]
were reincarcerated would be if the AOC
intended not to credit the time that
Plaintiffs spent on supervised electronic
release towards their sentence. Insofar as
that might be a concern in this case, however,
the AOC hereby expressly disavows any such
intention; any one of the plaintiffs who
participated in good faith in the program will
be deemed to have been serving his or her
sentence while on supervised release.

This court noted the express disavowal. It questioned the meaning

of the reservation for "good faith" -- that there is no intent to

fail to credit the sentence of individuals who complied with the

rules of the program but there might be a question as to taking

away credit for a person who did not participate in good faith.

The Solicitor General of Puerto Rico, appearing with authority,

represented to this court that it is not the intention of the

defendants to refuse to give credit for the time served in the ESP

to any individual returned to prison under their interpretation of

Law No. 49. The Solicitor General represented that the defendants

did wish to retain the discretion to return to imprisonment those

who violated the terms of the ESP, but even in that situation the

individuals would be credited with time served in the ESP.

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 We asked the Solicitor General of Puerto Rico whether, if

that were indeed the position of the Commonwealth defendants, the

defendants would agree to a permanent injunction, enjoining the

defendants from refusing to give credit for time plaintiffs served

in the ESP. He agreed. Accordingly, on remand we direct the

district court to enter such a permanent injunction, after giving

the parties the opportunity to craft appropriate proposed language.

What remains in the analysis of the preliminary

injunction is the question of whether individual plaintiffs

convicted of murder who are participating in the ESP have remaining

cognizable ex post facto or due process interests in not being

reincarcerated, provided they have followed the rules of the ESP.

With respect to this question, the district court began

with its impression that the defendants were "deliberately ignoring

valid state court judgments and administrative opinions." The

district court found that the defendants' new interpretations ran

contrary to the ex post facto prohibitions, in that it "appl[ied]

a law to events that occurred before its enactment and that said

application disadvantages the . . . persons affected by it." The

district court found that the present case was similar to the

Supreme Court's decision in Lynce v. Mathis. In Lynce, the Court

held that a Florida statute that was intended to prevent the early

release of prisoners violated the Ex Post Facto Clause where the

statute retroactively cancelled early release credits that had been

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awarded to the prisoner, thereby resulting in his rearrest and

reincarceration. 519 U.S. at 445-46.

The defendants, in turn, argue that the present case is

more akin to this court's decision in Dominique v. Weld, 73 F.3d

1156 (1st Cir. 1996), which rejected an ex post facto challenge to

an inmate's removal from a work release program, see id. at 1163,

and the Supreme Court's decision in California Department of

Corrections v. Morales, 514 U.S. 499 (1995), which rejected an ex

post facto challenge to a statute allowing a parole board to

decrease frequency of parole suitability hearings under certain

circumstances, see id. at 501-02.

The district court also found that there was a violation

of plaintiffs' procedural due process rights. Relying on

Morrissey v. Brewer, 408 U.S. 471, 482 (1972), in which the Court

set out the due process requirements for parole revocation

hearings, the district court found that "the plaintiffs have an

interest in their continued liberty" and "cannot be deprived of

their legally acquired privilege unless they have breached their

agreement with the AOC" or unless due process is afforded. In

particular, the district court relied on the following passage from

Morrissey to find a cognizable liberty interest: "[T]he liberty of

a parolee, although indeterminate, includes many of the core values

of unqualified liberty, and its termination inflicts a 'grievous

loss' on the parolee and often on others. . . . By whatever name,

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the liberty is valuable and must be seen as within the protection

of the Fourteenth Amendment." Id. at 482.

The defendants argue that the plaintiffs have no liberty

interest in continued participation in the program, citing, inter

alia, Greenholtz v. Inmates of Nebraska Penal & Correctional

Complex, 442 U.S. 1 (1979). See id. at 11 (rejecting procedural

due process challenges to state parole release hearings).

II.

Abstention

In its September 7, 2005 order denying the motion to

dismiss pursuant to Younger v. Harris,8 the district court noted

that the Commonwealth had withdrawn its earlier request for

abstention under Railroad Commission of Texas v. Pullman Co., 312

U.S. 496 (1941), and so the court limited its consideration to

abstention under Younger.

8
The defendants' Younger defense attempts to characterize
this case as though there would be an individualized determination
on reimprisonment as to each federal plaintiff. But as both we
and the district court understand it, there is no individualized
determination to be made. Plaintiffs have been bureaucratically
reclassified, and reimprisonment will be automatic. We note that
this fact has implications (unfavorable to the plaintiffs) on the
procedural due process claims.
The defendants also liken this situation to a criminal
prosecution, but the analogy is not apt. This is a
reclassification by prison officials of eligibility for particular
penal programs. That the defendants for their own purposes chose
to execute what they called "arrest" warrants does not change the
essential nature of their actions. These plaintiffs were already
under the custody of the AOC, although out on supervised release.

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 The district court rejected the defendants' Younger

argument. It noted that "[s]ince no state judicial or

administrative proceeding has yet begun in this case, it is more

than evident that Younger does not come into play." The court also

noted that the federal case would not interfere with the Gonzáles-

Fuentes case in the Puerto Rico courts, since the putative class

definition in the federal court action excluded the state habeas

petitioners. The difference was that the state habeas petitioners

had been reincarcerated, while the plaintiffs in the federal case

were still on release. On that basis, the district court proceeded

no further in its analysis of whether to stay the federal action in

deference to the state action. Since then, the district court has

ruled that the class action requirements were not met, thus

undercutting one of its reasons for not considering such a

deferral. But the court did not revisit the question of abstaining

in order to provide such deference, nor was it asked to do so.9

The plaintiffs correctly observe that there is usually no

interlocutory appeal from denials of a motion to dismiss, at least

when such an appeal stands alone.10 See Gulfstream Aerospace Corp.

9
We do not know how the district court would have ruled had
the sequencing of the case been different.
10
There are a few exceptions, as in certain issues of
qualified immunity. See Olmeda v. Ortiz Quinonez, No. 04-2596,
2006 WL 61055 (1st Cir. Jan. 12, 2006). There is no need to decide
whether there are special rules in Younger cases, as we go on to
order abstention on other grounds.

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v. Mayacamas Corp., 485 U.S. 271, 278 (1998) (holding that an order

denying a motion to stay or dismiss proceedings under Colorado

River Water Conservation District v. United States, 424 U.S. 800

(1976), was not immediately appealable). But this is a bit

misleading. There is no dispute that this court has appellate

jurisdiction over appeals from grants of preliminary injunctions.

See 28 U.S.C. § 1292(a)(1); Rio Grande Cmty. Health Ctr. v. Rullan,

397 F.3d 56, 67 (1st Cir. 2005). On the facts here, abstention

analysis may well be pertinent to the probability of success prong

of the preliminary injunction analysis. The issue of abstention

may be reviewed on interlocutory appeal in situations where the

district court's decision whether to grant a preliminary injunction

of necessity implicates abstention concerns. See Rio Grande Cmty.

Health Ctr., 397 F.3d at 67-72 (reviewing, on interlocutory appeal

of denial of preliminary injunction, a district court's refusal to

abstain); see also Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d

Cir. 2003).

While defendants raised and the district court denied

abstention only on Younger grounds, this court maintains the

ability to order abstention sua sponte. See Cruz v. Melecio, 204

F.3d 14, 22 n.7 (1st Cir. 2000); see also Bellotti v. Baird, 428

U.S. 132, 143 n.10 (1976) ("[I]t would appear that abstention may

be raised by the court [s]ua sponte."). Thus, we are free to

determine whether principles of abstention, stemming from Younger

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and its progeny or from other abstention doctrines, would require

a stay of the action here.

The Supreme Court has identified a number of discrete

abstention doctrines. See Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 716-17 (1996). We have acknowledged that "the categories

do matter," Rio Grande Cmty. Health Ctr., 397 F.3d at 68, but also

that the "varieties are not 'rigid pigeonholes into which federal

courts must try to fit cases,'" id. (quoting Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 11 n.9 (1987)). In this case, two

abstention doctrines, both Pullman abstention and Colorado

River abstention, militate for a stay of proceedings while the

parallel state proceedings run their course.

There are three strong themes that lead us to conclude

that abstention is appropriate in this case. The first is that

there are a number of unresolved issues of Puerto Rico

administrative and statutory law which would inevitably shape the

nature of the federal claims. As cases applying Pullman have held,

resolution of these questions "might render moot, or present in a

different posture, the federal constitutional issues." Catrone v.

Mass. State Racing Comm'n, 535 F.2d 669, 671 (1st Cir. 1976).

One such question involves the effect of a number of

older Puerto Rico court decisions, dating from before the current

administration, which have held that retroactive application of Law

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No. 49 violates the Ex Post Facto or the Due Process Clauses.11

Plaintiffs point out that in two earlier cases in the Puerto Rico

courts, one from the Court of First Instance and one from the Court

of Appeals, the Commonwealth stipulated that Law No. 49 does not

apply retroactively.

The plaintiffs argue that, under Puerto Rico law, these

prior judgments should be entitled to res judicata effect and that

the government would be precluded from relitigating these issues.

At least one of the plaintiffs here was a plaintiff in one of these

prior cases, and was the beneficiary of a stipulation from the AOC

that Law No. 49 only applied prospectively. As for the other

plaintiffs, who may not have been parties to such prior litigation,

the plaintiffs argue that it would not "be reasonable to allow the

[AOC] to apply different standards to similarly situated

individuals depending on whether they had already sued the

government or not." This argument is essentially that they have a

reliance interest in the AOC's prior stipulations, which were made

in suits on the retroactivity of Law No. 49 brought by individuals

similarly situated to the plaintiffs, and that the AOC should be

bound to these stipulations. There are questions regarding whether

Puerto Rico law would recognize such reliance interests in these

plaintiffs. It would appear that at least one of the petitioners

11
It is not clear whether these suits were brought under the
U.S. Constitution, the Puerto Rico Constitution, or both.

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in the Gonzáles-Fuentes case had been part of prior litigation, and

so it is very likely that the Puerto Rico Supreme Court will face

this issue.

Another local law question involves the defendants'

argument that the regulations implementing the ESP prior to 1995

were ultra vires as a matter of state administrative law. First,

they argue that the initial 1989 regulation "was not adopted by

means of notice and comment rulemaking required by the Uniform

Administrative Procedures Act of Puerto Rico." They also argue

that both the 1989 regulation and Regulation No. 5065, passed in

1994, exceeded the powers delegated to the AOC. They posit that

the "authority to create an electronic surveillance program" was

not granted to the AOC until the passage of Law No. 49.

The plaintiffs respond that the program was in fact a

proper exercise of the AOC's powers under the AOC's Organic Act.

P.R. Laws Ann. tit. 4, § 1112 (authorizing the AOC to "[u]se the

method of rehabilitation . . . which may include, among others,

work, study, or treatment programs when this is compatible with the

public safety" and to "formulate . . . the internal regulations

needed for the diagnosis, classification, treatment and

rehabilitation of the inmates"). These questions of local

administrative law are also before the Puerto Rico Supreme Court.

There is also the question of whether the present

administration has the authority to countermand the legal

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interpretations put forth by the prior administrations, absent some

express grant of authority from the legislature. Assuming this

administration has some authority to do so, there are yet other

questions that directly address the merits of the claims raised by

the defendants' reinterpretation. These include whether Law No.

49, as a matter of statutory interpretation, applies to convicts

who committed their crimes prior to its passage; whether the Puerto

Rico Penal Code's "principle of the most benign criminal law"

applies; and whether the AOC had the initial authority to release

prisoners in seeming contravention to the legislative authorization

in Law No. 49. This list by no means covers all the subsidiary

questions of Puerto Rico law.

It would be unusual for a federal court, in order to

reach issues of federal constitutional law, to resolve such

numerous prior questions of local law absent prior interpretations

by the local courts of these local law issues. Under the

Pullman abstention doctrine, "when a federal constitutional claim

is premised on an unsettled question of state law, the federal

court should stay its hand in order to provide the state courts an

opportunity to settle the underlying state law question and thus

avoid the possibility of unnecessarily deciding a constitutional

question." Harris County Comm'rs Court v. Moore, 420 U.S. 77, 83

(1975). The Supreme Court has instructed:

Warnings against premature adjudication of
constitutional questions bear heightened

-24-
 attention when a federal court is asked to
invalidate a State's law, for the federal
tribunal risks friction generating error when
it endeavors to construe a novel state Act not
yet reviewed by the State's highest court.

Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997).

Where the highest court of the jurisdiction involved has the case

pending before it, "once that court has spoken, adjudication of any

remaining constitutional questions may indeed become greatly

simplified." Id. at 80.

The second concern is that arguments virtually identical

to those presented here had been presented to the courts of Puerto

Rico even before this suit was filed, and these are now pending

before the Supreme Court of Puerto Rico. Under Pullman, the fact

that a state proceeding is actually pending strengthens the case

for abstention. "Where there is an action pending in state court

that will likely resolve the state-law questions underlying the

federal claim [the Supreme Court has] regularly ordered

abstention." Harris County Comm'rs Court, 420 U.S. at 83; see also

Romany v. Colegio de Abogados, 742 F.2d 32, 42 (1st Cir. 1989)

("The argument for abstention is . . . strengthened by several

special factors. First, as noted, a state proceeding is already in

being.")

The same holds under the Colorado River abstention

doctrine, which is specifically concerned with federal court

abstention when there are pending related state proceedings. See

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Colorado River, 424 U.S. at 818-19. For many of the same reasons

we articulated in Currie v. Group Insurance Commission, 290 F.3d 1

(1st Cir. 2002) and which underlie the Colorado River stay

doctrine, we believe it appropriate for the district court to stay

further proceedings out of deference to the Puerto Rico courts. As

Currie stated:

This court has identified six factors based on
the Supreme Court's decision in Colorado River
and its subsequent decision in Moses H. Cone
Memorial Hospital v. Mercury Construction
Corp., 460 U.S. 1 (1983): "(1) whether either
court has assumed jurisdiction over a res; (2)
the inconvenience of the federal forum; (3)
the desirability of avoiding piecemeal
litigation; (4) the order in which the forums
obtained jurisdiction; (5) whether federal law
or state law controls; and (6) whether the
state forum will adequately protect the
interests of the parties."

Id. at 10 (quoting Rivera-Puig v. Garcia-Rosario, 983 F.2d 311,

320-21 (1st Cir. 1992)). "No one factor is meant to be

determinative, but rather courts must make a 'carefully considered

judgment taking into account both the obligation to exercise

jurisdiction and the combination of factors counselling against

that exercise.'" Rio Grande Cmty. Health Ctr., 397 F.3d at 72

(quoting Colorado River, 424 U.S. at 818).

Applying the factors here, no res is involved and both

the federal and Puerto Rico forums are equally convenient. The

other four factors all tilt the analysis toward abstention. The

Puerto Rico courts first obtained jurisdiction; in light of the

-26-
many underlying unresolved issues of Puerto Rican law it would be

better to avoid piecemeal litigation and to have the Puerto Rico

courts decide those controlling issues of Puerto Rico law first;

and there is no reason to think the courts of Puerto Rico cannot

protect the plaintiffs' rights. As in Currie, a ruling from the

Puerto Rico courts that the new regulation and interpretations

violate Puerto Rico law would render our opinion merely advisory.

See 290 F.3d at 11. And so long as the preliminary injunction

remains in place, plaintiffs cannot be harmed by a stay. Nor does

this result surrender federal jurisdiction -- it only stays it.

See Rivera-Puig, 983 F.2d at 322.

"Until the Supreme Court of Puerto Rico acts . . . , the

dimension of the constitutional issue for federal adjudication will

remain unsettled. For that reason alone, there is good reason for

the federal court to stay its hand while retaining jurisdiction."

Romany, 742 F.2d at 42.

The plaintiffs posit that abstention is inappropriate

because they are in a different category from the habeas

petitioners before the Puerto Rico Supreme Court. They argue that

although both groups comprise plaintiffs who committed murder

before the effective date of Law No. 49 and were put into the ESP

after that date, unlike the state habeas petitioners they have not

yet been reincarcerated. While true, this argument is irrelevant.

The very same legal issues presented to the federal court were

-27-
presented to the courts of the Commonwealth before the federal case

was filed. That plaintiffs here are different from the petitioners

there, while a factor, does not in this case reduce the concerns

underlying abstention doctrine.

The third concern is that the plaintiffs in the state

action have not, as best as we can tell from the record, filed a

reservation under England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964). In England, the Court held that

"if a party freely and without reservation submits his federal

claims for decision by the state courts, litigates them there, and

has them decided there, then -- whether or not he seeks direct

review of the state decision in this Court -- he has elected to

forgo his right to return to the District Court." Id. at 419.

This court has held that such a reservation allows "a form of

abstention that permits the federal court, in effect, to ask a

state court to clarify a murky question of state law involved in

the case, while permitting the plaintiff to return to the federal

forum for determination of the federal question after the state

court has decided the issue of state law." Duty Free Shop, Inc. v.

Administracion de Terrenos, 889 F.2d 1181, 1183 (1st Cir. 1989).

III.

Preliminary Injunction

To say there should be abstention does not resolve the

question about whether to leave the preliminary injunction in

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place, in whole or in part, pending the decision from the Supreme

Court of Puerto Rico. See Harrison v. NAACP, 360 U.S. 167, 178-79

(1959) ("[T]he District Court of course possesses ample authority

in this action, or in such supplemental proceedings as may be

initiated, to protect the appellees while [the state case] goes

forward."); see also Catrone, 535 F.2d at 672 (authorizing district

court to issue preliminary injunction after deciding district court

should abstain).

Appellate review of an issuance of a preliminary

injunction is for abuse of discretion. See Rio Grande Cmty.

Health. Ctr., 397 F.3d at 75. Errors of law constitute an abuse of

discretion. See McClure v. Galvin, 386 F.3d 36, 41 (1st Cir.

2004). Like the district court, we analyze the four criteria for

preliminary injunction relief: "1) a likelihood of success on the

merits, 2) irreparable harm to the plaintiff should preliminary

relief not be granted, 3) whether the harm to the defendant from

granting the preliminary relief exceeds the harm to the plaintiff

from denying it, and 4) the effect of the preliminary injunction on

the public interest." Rio Grande Cmty. Health Ctr., 397 F.3d at

75.

The conclusion that abstention is appropriate here leaves

a federal court in an awkward position as to the criteria for

preliminary injunctive relief. Ordinarily, this court would engage

in a more extensive analysis of the legal merits of plaintiffs'

-29-
claims under the criterion of the plaintiffs' probability of

success on the merits. But we have no wish to address issues that

may be resolved by the Supreme Court of Puerto Rico. And it is

defendants, who press the lack of probability of success argument,

who also seek abstention. As the Eighth Circuit has noted when

faced with a similar conundrum:

This issue is analytically perplexing -- how
is the abstaining federal court to measure
plaintiffs' likelihood of success when it has
delayed addressing the merits until the state
courts construe the challenged statute? The
federal court must avoid usurping the state
courts' prerogative under Pullman by granting
or denying a preliminary injunction based upon
a construction urged by one of the parties.

Reprod. Health Servs. of Planned Parenthood of St. Louis Region,

Inc. v. Nixon, 428 F.3d 1139, 1144 (8th Cir. 2005).

This court has faced this problem before, in Catrone v.

Mass. State Racing Commission, 535 F.2d 669. In Catrone, a horse

trainer brought a civil rights action against the racing commission

seeking a permanent injunction compelling the commission to admit

him to its racetrack. Id. at 670. The district court granted the

permanent injunction. Id. We ruled that the district court should

have abstained in adjudicating as a final matter the constitutional

claims until the Massachusetts courts could adjudicate the

plaintiff's rights under state law. Id. at 671. Nonetheless, we

authorized the district court on remand to issue a preliminary

injunction to allow the plaintiff to enter the race track. Id. at

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672. We were "careful to refrain from passing in any final sense

on the merits of Catrone's federal claims" and instead based our

decision on "considerations of equity and fairness." Id.

On balance, with some modification to the injunction, we

think that the Commonwealth defendants have not made a sufficient

case of abuse of discretion to warrant vacating the injunction.

First, as we have noted, this case involves shifting positions by

the Commonwealth officials, not only over time, but by these

defendants within the span of this case as to their meaning of

their position and their enforcement intentions. Under these

circumstances, it is better to freeze the matter and not have the

target of analysis shift again.

Second, it is difficult to evaluate the question of the

probability of success on the merits in the absence of further

definition of the nature of the problem, which turns on an initial

question under Puerto Rico law.12 The plaintiffs' preference would

be for the federal courts not to abstain. The Commonwealth

defendants' preference is not to have any injunctive relief. Under

these circumstances, a balance of interests is preserved.

As to the public interest, we order the injunction be

modified so that it is clear that anyone among the plaintiffs who

violates the terms of release and supervision under the ESP may

12
The parties at oral argument told us that they were willing
to attempt to negotiate some form of injunction pending abstention.
Unfortunately, they were unsuccessful.

-31-
suffer the usual detriments from such violations. While the notion

of murderers being released to the community may strike some as

startling, it was the judgment of the AOC for over a fifteen-year

period that this program posed no unacceptable risk to the public.

To the extent that there are violations of the rules of the

program, those inmates may be returned to custody.

We remand the matter to the district court with

instructions to revise the preliminary injunction in the one

respect noted herein and to enter a permanent injunction as

described. On remand, the district court should also address the

question of whether the preliminary injunction should cover the

plaintiffs added by the amended complaint filed after notice of

appeal. The district court is to abstain from taking further

action in this matter pending resolution of Gonzáles-Fuentes v.

Commonwealth before the Puerto Rico Supreme Court and to stay all

further proceedings. No costs of appeal are awarded. So ordered.

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