United States Court of Appeals
For the First Circuit
Nos. 06-1436, 06-1819
ANDRÉS GUILLEMARD-GINORIO; MARÍA M. NOBLE-FERNÁNDEZ;
CONJUGAL PARTNERSHIP GUILLEMARD-NOBLE;
LONE STAR INSURANCE PRODUCERS, INC.,
Plaintiffs, Appellees,
v.
FERMÍN M. CONTRERAS-GÓMEZ, Individually and as Insurance
Commissioner of Puerto Rico; OFFICE OF THE INSURANCE
COMMISSIONER; MARÍA AWILDA QUINTANA; CONJUGAL PARTNERSHIP
CONTRERAS-QUINTANA; DORELISSE JUARBE, Individually and as
Insurance Commissioner of Puerto Rico,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and DiClerico, Jr.,* Senior District Judge.
Luis A. Rodríguez-Muñoz, with whom Roberto Sánchez-Ramos,
Secretary of Justice, Salvador Antonetti-Stutts, Solicitor General,
Eduardo A. Vera-Ramírez, Eileen Landrón-Guardiola, and Landrón &
Vera, LLP were on brief, for appellants.
Joseph D. Steinfield, with whom Jeffrey J. Pyle, Prince,
Lobel, Glovsky & Tye, LLP, Joan S. Peters, and Nachman & Guillemard
were on brief, for appellees.
June 12, 2007
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. This appeal arises out of a
dispute over the propriety of an order issued by the Insurance
Commissioner of Puerto Rico declaring Andrés Guillemard Ginorio,
his wife, María Noble Fernández, and their insurance agency, Lone
Star Insurance Producers (collectively, "Plaintiffs"),
untrustworthy and incompetent; revoking Plaintiffs' insurance
licenses for five years; barring Plaintiffs from applying for other
insurance licenses for five years; and imposing a $2,035,000 fine.
Plaintiffs allege, inter alia, that in issuing this order
without a hearing and in retaliation for their political beliefs,
Fermín Contreras Gómez, former Insurance Commissioner, and
Dorelisse Juarbe, the current Insurance Commissioner (collectively
"Defendants"), violated Plaintiffs' rights under the First
Amendment and the Due Process Clause. Plaintiffs moved for partial
summary judgment on their due process claim and Defendants moved
for summary judgment on all claims. The district court granted
Plaintiffs' motion for partial summary judgment and denied
Defendants' motion. Defendants now appeal. In addition,
Defendants also take this opportunity to appeal the district
court's denial of their motion to vacate the court's judgment under
Fed. R. Civ. P. 60(b) based on newly discovered evidence. After
careful consideration, we affirm the district court's denial of
qualified immunity and dismiss any appeal taken from the court's
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grant of partial summary judgment or its denial of the motion to
vacate.
I. Factual and Procedural Background
Guillemard and Noble founded Lone Star Insurance
Producers in 1984. Both are well-known members of the New
Progressive Party ("NPP").
Early in 2001, Contreras became the Insurance
Commissioner for Puerto Rico. On November 2, 2001, the Office of
the Insurance Commissioner ("OIC") assigned Angela Rivera to
investigate Urrutia Vallés, Inc. ("UVI"), an insurance brokerage
company, for its conduct in connection with the performance of a
contract with the government of Puerto Rico. For several years,
Lone Star and UVI had worked together in obtaining and servicing
property, casualty, and other types of insurance for several
government agencies. Pursuant to the investigation, Rivera found
that UVI paid commissions to Lone Star from the sale of the
government insurance policies.
On November 7, 2001, an article in El Nuevo Día, a Puerto
Rico newspaper, reported that the OIC investigation into UVI would
also include Guillemard. That same day, Aurea López, the head of
the OIC's audit division, instructed Rivera to look for checks from
UVI to Lone Star.
On November 20, 2001, the OIC issued a "Notification and
Examination Order" calling for an audit of Lone Star's operations
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and transactions from January 1, 1997 through September 30, 2001.
The notice did not allege any wrongdoing. David Castro Anaya, an
OIC auditor, was assigned to perform the Lone Star audit.
According to Castro, the sole purpose of his investigation was to
determine whether improper payments had been made to third parties.
Guillemard made available to Castro two Certified Public
Accountants to cooperate with the audit and provide all relevant
documents.
By December 17, 2001, all of the documents pertaining to
insurance issued to government agencies had been examined and the
audit had concluded. Castro informed Guillemard and Miguel
Carbonell, Lone Star's CPA, that he found no irregularities or
improprieties. Castro also told Guillemard and Carbonell that he
would prepare a draft of his final report within the next few
months and send them a copy.
At some point after November 20, 2001, but before March
2002, Melvin Rosario, the Director of the Anti-Fraud Unit at the
OIC and Castro's supervisor, met privately with Contreras to tell
him that he did not wish to investigate Lone Star for commission
sharing. He explained that the sharing of commissions, as in the
case of Lone Star and UVI, "was common, normal, in the way that
business was conducted. And that [his] opinion in that regard was
that [he] had not seen, in all honesty, anything in the Insurance
Code indicating that this could not be done that way." In
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response, Contreras told Rosario that he "would have to carry [out]
the investigations against this N.P.P. member" anyway. Rosario
asked to be relieved from the assignment, and Contreras agreed that
Castro would report to López instead.
Early in 2002, Guillemard learned that the OIC had issued
subpoenas to several Puerto Rico banks demanding account
information for all transactions involving Guillemard, Noble, or
Lone Star.
On July 10, 2003, Castro submitted the Final
Investigation Findings Report (the "Report") relating to the Lone
Star audit to his supervisor. He did not send a copy to
Guillemard. The Report found no improper payments to third
parties, but it raised other issues. In particular, the Report
noted that Lone Star had entered into a commission-sharing
arrangement with UVI. The Report concluded that the sharing of
commissions is a violation of section 939(2) of the Puerto Rico
Insurance Code.
At the end of 2003, Plaintiffs were still being
investigated by the OIC. On December 10, 2003, Plaintiffs filed a
federal action against Contreras and the OIC, alleging that the
investigation was motivated by political animus in violation of
their rights under the First and Fourteenth Amendments. At that
time, the OIC had not issued any reports or orders in connection
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with the Lone Star investigation since the submission of Castro's
July report.
Contreras found out about Plaintiffs' lawsuit by the
following day.1 On December 23, 2003, Contreras issued an order
declaring Plaintiffs incompetent and untrustworthy, revoking their
insurance licenses for a period of five years; denying them any
license in any capacity for a period of five years; and imposing a
fine of $2,035,000 (the "Order"). The Order stated that it would
become effective on January 7, 2004, but provided that Plaintiffs
could request an administrative hearing to contest it. The Order
also stated that a request for an administrative hearing would stay
the imposition of the fine, the declaration that Plaintiffs were
incompetent and untrustworthy, and the denial of any license in any
capacity. However, pursuant to the Order, the revocation of
Plaintiffs' licenses would remain in effect pending a final
administrative decision.
Following receipt of the Order, Plaintiffs promptly
requested an administrative hearing. They also amended their
complaint to allege claims of retaliation under the First Amendment
and violation of the Due Process and Equal Protection Clauses, as
well as state law provisions. In addition, Plaintiffs requested a
temporary restraining order to prevent the revocation from taking
1
By this time, Contreras had submitted his resignation as
Insurance Commissioner, effective at the end of December.
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effect, and moved for a preliminary injunction. The district court
granted the temporary restraining order and scheduled a hearing on
the motion for a preliminary injunction. After a hearing, at which
only Plaintiffs chose to present evidence, the district court
entered an injunction restraining Contreras and the OIC from
revoking Plaintiffs' license pending completion of a full and fair
hearing on Plaintiffs' challenge to the revocation order. In its
order, the district court also concluded that Contreras was not
entitled to qualified immunity. Contreras filed an interlocutory
appeal challenging the preliminary injunction.
Shortly thereafter, Contreras moved to dismiss the
federal lawsuit on qualified immunity grounds. The court denied
the motion, reaffirming its prior conclusions. Contreras then
filed a second interlocutory appeal challenging this decision. The
two interlocutory appeals were consolidated and in a per curiam
decision, this court affirmed the district court's conclusion that
Contreras was not entitled to qualified immunity on the due process
claim. 161 Fed. Appx. 24 (1st Cir. 2005).2
The OIC held an administrative hearing on March 4, 2005.
Thereafter, the new Insurance Commissioner, Dorelisse Juarbe,
issued a resolution finding that Plaintiffs had violated the
Insurance Code, but revising the sanctions as follows: The fine of
2
We explicitly noted that "Contreras only challenge[d] the due
process portion of [Plaintiffs'] complaint." 161 Fed. Appx. at 28
n.8.
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over $2,035,000 was reduced to $208,000; the five-year license
suspension was reduced to three months; the prohibition of filing
for a license within five years was eliminated; and the references
within Contreras's order as to Guillemard's "untrustworthiness" and
"incompetence" were omitted.
Back in the district court, Plaintiffs again amended
their complaint to add Juarbe as a defendant. The parties
subsequently filed cross-motions. Plaintiffs moved for partial
summary judgment, arguing that Contreras violated their due process
rights. Defendants moved for summary judgment, arguing that
Plaintiffs had failed to establish violations of the First
Amendment, the Due Process Clause, or the Equal Protection Clause,
and that Contreras and Juarbe were entitled to qualified immunity
on the due process claim.
The district court referred both motions to a magistrate
judge. In a report and recommendation (the "R&R"), the magistrate
judge recommended that Plaintiffs' motion for partial summary
judgment be denied, and Defendants' motion for summary judgment be
granted as to the equal protection claim and denied as to the
remaining issues. All parties objected to the R&R. In particular,
Defendants argued that they were entitled to qualified immunity on
all claims.
The district court adopted the R&R in part and rejected
it in part: it granted Plaintiffs' motion for partial summary
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judgment on the due process claim and denied Defendants' motion for
summary judgment on all claims. With respect to Defendants' claim
qualified immunity on the due process claim, the district court
held that Defendants were not entitled to summary judgment because
a material issue of fact remained as to the third prong of the
qualified immunity analysis, whether "a reasonable official in
Contreras's position would have been justified in revoking
plaintiffs' license without a prior hearing." With respect to
their assertion of qualified immunity on the other claims, however,
the district court held that "[b]ecause the defendants did not
properly raise these arguments before the Magistrate-Judge, the
Court will consider their assertion of qualified immunity in
relation only to the due process claim."
Defendants later filed a motion to vacate the district
court's judgment pursuant to Fed. R. Civ. P. 60(b) based on the
newly discovered evidence of a Puerto Rico appellate court decision
holding that an interpretation that the Insurance Code prohibits
commission sharing was reasonable. On April 3, 2006, the district
court denied the motion to vacate, finding that the Puerto Rico
appellate court decision was irrelevant to its ruling.
On August 7, 2006, this Court ruled that Defendants were
entitled to appeal the district court's decision with respect to
qualified immunity on the due process claim, noting that Defendants
had conceded for purposes of appeal the factual issues the district
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court had found to be in dispute. On September 8, 2006, we
modified the earlier order and ruled that appellate jurisdiction
also extends to the issue of whether the district court erred in
finding that Defendants had failed to adequately assert qualified
immunity with respect to the First Amendment claims.
II. Discussion
A. Qualified Immunity on the First Amendment Claims
We review for abuse of discretion the district court's
conclusion that Defendants were not entitled to qualified immunity
on the First Amendment claims of political discrimination and
retaliation because they had failed to adequately assert the
argument before the magistrate judge.3
3
In our September 8, 2006 Order, we extended appellate
jurisdiction to this issue, noting that "case management orders
precluding the assertion of the defense of qualified immunity are
reviewable, and the circumstances here seem analogous." We review
case management orders for abuse of discretion. Rosario-Díaz v.
Gonzáles, 140 F.3d 312, 315 (1st Cir. 1998).
Although Defendants conceded in their initial brief that the
district court's ruling was a case management order, they objected
to that characterization in their reply brief, without suggesting
an alternative characterization or arguing for a different standard
of review. Defendants cannot have it both ways. See Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("We
have held, with a regularity bordering on the monotonous, that
issues advanced for the first time in an appellant's reply brief
are deemed waived."). In any event, we have previously held that
a denial of summary judgment on qualified immunity issues for
procedural reasons constitutes a case-management order, see, e.g.,
Torres v. Commonwealth of Puerto Rico, No. 06-1771, 2007 WL 996302
at *4 (1st Cir. Apr. 4, 2007), and we see no reason why the
district court's ruling in this case should not also fall into this
category.
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Defendants argue that the district court erred in
refusing to entertain their arguments on qualified immunity with
respect to the First Amendment claims. Specifically, they object
to the holding that "the defendants did not properly raise these
arguments before the Magistrate-Judge." Defendants claim that they
raised this defense in their motion for summary judgment when they
argued "broadly" that they were entitled to qualified immunity.
Defendants point to three sentences in their motion for summary
judgment which purportedly preserved their argument: (1)
"[D]efendants herein did not engage in any type of conduct that was
violative of any of plaintiffs' constitutional rights; hence it is
not plausible to conclude that defendants' actions were unlawful.
Thus, this entitles defendants to qualified immunity," Defs.' Mot.
for Summ. J. 26 (emphasis added); (2) "Moreover, the application as
a matter of law of both the Mt. Healthy and privileged qualified
immunity defenses warrants summary disposition of all claims at
this stage of the proceedings," id. at 2 (emphasis added); and (3)
"Defendants in their personal capacity cannot be held liable in
this case because they are cloaked by qualified immunity," id. at
25.
Defendants further argue that the specific reference to
Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-284
(1977) (holding that adverse action against a government employee
cannot be taken if it is in response to the employee's "exercise of
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constitutionally protected First Amendment freedoms"), in their
motion's discussion of qualified immunity shows that Defendants
asserted a qualified immunity defense to the First Amendment claims
because Mt. Healthy is only relevant to the First Amendment.
Had Defendants raised a qualified immunity defense to the
First Amendment claims before the magistrate judge, they would have
been entitled to the district court's "clearly erroneous or
contrary to law" review of the argument. See 28 U.S.C. § 636(b)
(1)(A). But "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived." De Araujo v. González, 457 F.3d 146, 153 (1st 2006)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
By Defendants' own admission, their arguments on this point were
"broad in scope," which means they can just as easily be
characterized as "vague"; the qualified immunity section of their
summary judgment motion never even mentioned the words "First
Amendment," "political discrimination," or "retaliation." We
cannot say that Defendants' three sentences speaking to qualified
immunity "broadly" and their single reference to Mt. Healthy
satisfied their duty "to spell out [their] arguments squarely and
distinctly." Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec.
Co., 840 F.2d 985, 990 (1st Cir. 1988). Accordingly, we hold that
the district court did not abuse its discretion in holding that
Defendants waived their qualified immunity defense to the First
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Amendment claims. See id. at 990-91 ("[Fed. R. Civ. P. 72(b)] does
not permit a litigant to present new initiatives to the district
judge. We hold categorically that an unsuccessful party is not
entitled as of right to de novo review by the judge of an argument
never seasonably raised before the magistrate."); Borden v. Sec'y
of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) ("Appellant
was entitled to a de novo review by the district court of the
[magistrate judge's] recommendations to which he objected, however
he was not entitled to a de novo review of an argument never
raised." (internal citations omitted)).
B. Qualified Immunity on the Due Process Claim4
4
Acknowledging that "courts have held that appellate jurisdiction
does not lie for an order granting partial summary judgment absent
certification under [Fed. R. Civ. P. 54]," Defendants nonetheless
ask us to review the district court's grant of Plaintiffs' motion
for partial summary judgment on the due process claims without such
certification.
In the ordinary course, our jurisdiction extends only to appeals
from "final decisions of the district courts." 28 U.S.C. § 1291.
"A partial summary judgment order is not a final judgment but is
merely a pre-trial adjudication that certain issues are established
for trial." Alberty-Vélez v. Corporación de Puerto Rico Para La
Difusión Pública, 361 F.3d 1, 6 n.5 (1st Cir. 2004); see also
Catlin v. United States, 324 U.S. 229, 233 (1945) (holding that a
district court's decision is "final" if it "ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment"). Defendants have given us no reason to depart from the
well-established rule of reviewing only a district court's final
decisions. See Manchester Knitted Fashions, Inc. v. Amalgamated
Cotton Garment & Allied Indus. Fund, 967 F.2d 688, 690 (1st Cir.
1992) ("It is generally established that in order for an
interlocutory order to be appealable, a litigant must . . . show
that 'the order of the district court might have a serious, perhaps
irreparable, consequence, and that the order can be effectually
challenged.'" (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84
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"Qualified immunity 'provides a safe harbor for public
officials acting under the color of state law who would otherwise
be liable under 42 U.S.C. § 1983 for infringing the constitutional
rights of private parties.'" Borges Colón v. Román-Abreu, 438 F.3d
1, 18 (1st Cir. 2006) (quoting Whitfield v. Meléndez-Rivera, 431
F.3d 1, 6 (1st Cir. 2005)). We apply a three-part test to
determine whether a public official is entitled to qualified
immunity, asking "(1) whether plaintiff's allegations, if true,
establish a constitutional violation; (2) whether that right was
clearly established at the time of the alleged violation; and (3)
whether a similarly situated reasonable official would have
understood that the challenged action violated the constitutional
right at issue." Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004).
If all three questions are answered in the affirmative, we deny
qualified immunity. Id. at 110. Defendants argue that, even
assuming the first two prongs are satisfied, they are entitled to
qualified immunity under the third prong of the test because a
similarly situated reasonable official would not have believed that
the pre-hearing deprivation violated Plaintiffs' rights to
procedural due process.
We review a district court's denial of summary judgment
on qualified immunity grounds de novo, considering only purely
(1981)). Accordingly, we will not review whether the district
court properly granted partial summary judgment on Plaintiffs'
procedural due process claim.
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legal questions. Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90
(1st Cir. 2002).
With respect to Contreras, Defendants argue that he is
entitled to qualified immunity because he was acting pursuant to a
presumptively constitutional statute. Defendants point out that
the Puerto Rico Insurance Code authorizes the Insurance
Commissioner to "suspend, revoke or refuse to renew a license" by
issuing an "order . . . to licensee not less than fifteen days
prior to the effective date thereof, subject to the right of the
licensee to have a hearing," and provides that "pending such
hearing, the license shall be suspended." P.R. Laws Ann. tit. 26,
§ 947(2)(a). Defendants further point out that, as with all state
statutes, this statutory provision is presumed to be
constitutional, see Conn. ex rel Blumenthal v. Crotty, 346 F.3d 84,
102 (2d Cir. 2003), and that no court had, during the relevant time
period, found the statute unconstitutional. Accordingly,
Defendants argue that even if section 947(2)(a) is now deemed
unconstitutional, Contreras is entitled to qualified immunity for
his good faith reliance on the presumptively valid provisions of
the Insurance Code. See Freeman v. Blair, 862 F.2d 1330, 1332 (8th
Cir. 1988) (holding that defendants were entitled to qualified
immunity where "any defects in the regulatory scheme were not
sufficiently obvious to make the defendants' reliance on the scheme
objectively unreasonable").
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With respect to Juarbe, Defendants argue that she is
entitled to qualified immunity on the due process claim because she
did not draft or sign the Order, she was not Contreras's supervisor
at the time of the issuance of the Order, and she was not present
during the conversation in which Contreras allegedly told Rosario
that he "would have to carry [out] the investigations against this
N.P.P. member." Thus, Defendants argue that there is no connection
between Juarbe's conduct and the alleged constitutional violation
of revoking Plaintiffs' licenses without a hearing. We do not
think this argument goes to qualified immunity so much as to the
ultimate question of liability under § 1983, a question not
properly before us. See Gutiérrez-Rodríguez v. Cartagena, 882 F.2d
553, 560 (1st Cir. 1989) ("Section 1983 imposes liability upon
those who 'subject[] or cause[] to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws . . . ."
(quoting 42 U.S.C. § 1983) (emphasis added) (other alterations in
original)). In any event, Defendants acknowledge that Juarbe
participated in meetings in which the Order was being drafted and
that she enforced the Order after it was issued. We think any
reasonable official in Contreras's or Juarbe's situation would have
known that the summary revocation provision in the Insurance Code
is unconstitutional; therefore, qualified immunity is available to
neither defendant.
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First, to the extent Contreras or Juarbe acted in
reliance on section 947(2)(a), enacted in 1957, we find such
reliance unreasonable because that statute is no longer in effect,
having been superseded by the Puerto Rico Uniform Administrative
Procedure Act, P.R. Laws Ann. tit. 3, § 2101 et seq. (the "Puerto
Rico APA"). In Chalkboard, Inc. v. Brandt, 902 F.2d 1357 (9th Cir.
1989), the Ninth Circuit examined a factual scenario very similar
to this case. There, an agency summarily suspended a day care
center's license under a statute that allowed for such suspension
in emergency situations. Id. at 1377-78. However, a later-enacted
statutory provision required that the agency notify the attorney
general of any emergency circumstances, after which the attorney
general could seek a restraining order. Id. at 1378-79. The
Chalkboard court denied qualified immunity, holding that the
summary closure procedures "used by defendants in th[at] case could
not reasonably have been believed to meet constitutional
requirements." Id. at 1380-81. In so holding, the Ninth Circuit
specifically noted that it could not
accept the contention that a general purpose
summary-closure provision enacted years
earlier remains at the disposal of the DHS
officials when the state has adopted a more
recent and specific statutory scheme which
provides for both routine and expedited
methods of suspending the license . . . and
which does not permit summary action by agency
officials.
Id. at 1379.
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Neither party disputes that the Puerto Rico APA provides
for pre-deprivation hearings at all agency levels. See P.R. Laws
Ann. tit. 3, §§ 2102-2103, 2151-2170(a); see also Magriz v.
Empresas Nativas, Inc., 143 P.R. Dec. 63, 70 (1997). Enacted in
1988, it requires all agencies adjudicating a controversy to
safeguard "(A) [t]he right to timely notice of the charges or
complaints or claims against one of the parties[;] (B) [t]he right
to introduce evidence[;] (C) [t]he right to an impartial
adjudication[; and] (D) [t]he right to have the decision based on
the record of the case." P.R. Laws Ann. tit. 3, § 2151(a)(2). The
Supreme Court of Puerto Rico has held that the Puerto Rico APA
expressly supersedes any conflicting statutes. See Hernández v.
Golden Tower Dev. Corp., 125 P.R. Dec. 744, 749 (1990) ("[I]t is
the express intent of the lawmaker, in adopting a uniform judicial
review procedure for rulings or orders of administrative agencies
or departments, that [the Puerto Rico APA] prevail over any other
legal provision -- appertaining to any agency in particular -- that
may be repugnant to the provisions of said act."); Asociación de
Dueños de Casas de la Parguera, Inc. v. Junta de Planificación de
P.R., 148 D.P.R. 307, 314 (1999). Given the Puerto Rico APA's pre-
deprivation hearing requirement, any claimed reliance on section
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947's summary-revocation provision is unreasonable as a matter of
law.5
We also find reliance on section 947(2)(a) unreasonable
because the statute is patently unconstitutional. Although state
officials are ordinarily entitled to rely on presumptively valid
state statutes, courts have held such reliance unreasonable where
the relevant law is "so grossly and flagrantly unconstitutional
that any person of reasonable prudence would be bound to see its
flaws." Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); See,
e.g., Lawrence v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005)
(denying qualified immunity to an official who relied on an
ordinance allowing for the destruction of derelict automobiles
without a hearing because the official could not reasonably have
concluded that his actions were consistent with due process); Carey
v. Nev. Gaming Control Bd., 279 F.3d 873, 882 (9th Cir. 2002)
(denying qualified immunity to an official who relied on statutes
requiring individuals stopped pursuant to Terry to identify
themselves because "a reasonable officer in [the defendant's]
5
Defendants argue that Contreras's and Juarbe's actions were
reasonable, even under the Puerto Rico APA, because that statute
provides for exceptions to the pre-deprivation hearing requirement.
See P.R. Laws Ann. tit. 3, § 2167. However, the Puerto Rico APA
provision authorizing such exceptions provides for "emergency
adjudicatory procedures" only in situations that involve "imminent
danger to the public health, safety and welfare or which requires
immediate action by the agency." Id. § 2167(a). Defendants do not
argue that this case involved an emergency situation.
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position would have known that [the plaintiff] had a clearly
established Fourth Amendment right not to identify himself").
Section 947(2)(a) is patently unconstitutional because it
specifically provides for the suspension of a professional license
before a hearing is provided, without limitation. P.R. Laws Ann.
tit. 26, § 947(2)(a). It has long been established that a state
may not suspend a professional license without a pre-deprivation
hearing.6 See Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir.
1985) ("Beauchamp unquestionably had a protected interest in his
license to practice medicine. A clearer example of 'new property'
is not easily imagined. The district court's holding that he had
a right to a hearing before his license could be revoked was
correct." (internal citations omitted)); see also Mard v. Town of
Amherst, 350 F.3d 184, 192 (1st Cir. 2003)("In general, the state
must provide some kind of hearing before depriving an individual of
a protected property interest." (internal quotation marks
omitted)).7 Thus, we find that Defendants are not entitled to rely
6
That "[a]n important government interest, accompanied by a
substantial assurance that the deprivation is not baseless or
unwarranted, may in limited cases demanding prompt action justify
postponing the opportunity to be heard until after the initial
deprivation," FDIC v. Mallen, 486 U.S. 230, 240 (1988), does not
change our conclusion. Section 947 does not limit its application
to any such circumstances. Moreover, Defendants do not point to
any special government interest motivating the pre-hearing
deprivation described in the Order.
7
Defendants argue that section 947 is not unconstitutional on its
face because "it does not preclude a hearing prior to the
revocation or refusal to renew a license." Appellants' Reply Br.
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on section 947(2)(a)'s allowance for pre-hearing deprivations
because a reasonable official in their position would have known
that it violates the Due Process Clause. Accordingly, we affirm
the district court's denial of Defendants' motion for summary
judgment.
III. Motion to Vacate
Defendants also argue that the district court erred in
denying their motion to vacate the summary judgment order. They
claim that "newly discovered evidence" -- a Puerto Rico appellate
court decision finding that an interpretation that the Insurance
Code prohibits commission sharing was reasonable -- shows that
Defendants would have punished Plaintiffs' conduct regardless of
their political affiliation. This argument is a defense against
Plaintiffs' First Amendment political discrimination claim; it has
no effect on the due process claim, which is based solely on the
alleged pre-hearing deprivation.
We reiterate that this Court may only hear appeals taken
from final judgments, see supra note 3. Accordingly, we do not
have jurisdiction to review a motion to vacate the district court's
denial of summary judgment on the political discrimination claim.
17 (emphasis added). But this misses the point; section 947(a)(2)
is unconstitutional because it authorizes a pre-hearing
deprivation. It should also be noted that Contreras exercised this
authority when he issued the Order, which specifically provided
that the revocation of Plaintiffs' licenses would be effective
pending any administrative proceedings.
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See Rivera-Jiménez v. Pierluisi, 362 F.3d 87, 93 (1st Cir. 2004)
("[W]e do not have jurisdiction over denials of summary judgment
motions . . . where a genuine issue of material fact remains in
dispute."). Moreover, as stated above, Defendants waived a
qualified immunity defense to the First Amendment claims, see supra
Section II.A, so we have no occasion to opine on that argument. As
such, we take no view of the district court's denial of Defendants'
motion to vacate.
IV. Conclusion
For the foregoing reasons, we affirm the district court's
denial of Defendants' qualified immunity claims on summary
judgment.
Affirmed.
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