United States Court of Appeals
For the First Circuit
No. 09-1911
FIDEICOMISO DE LA TIERRA DEL CAÑO MARTÍN PEÑA,
Plaintiff, Appellant,
v.
LUIS G. FORTUÑO, in his official capacity as Governor of
the Commonwealth of Puerto Rico; ANTONIO M. SAGARDÍA-DE JESÚS,
in his official capacity as Secretary of Justice of the
Commonwealth of Puerto Rico; MUNICIPALITY OF SAN JUAN;
JORGE SANTINI, in his official capacity as the Mayor of
the Municipality of San Juan; AUTORIDAD DE ENERGÍA ELÉCTRICA
DE PUERTO RICO (AEE); AUTORIDAD DE CARRETERAS;
ADMINISTRACIÓN DE TERRENOS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Ripple,* and Boudin,
Circuit Judges.
Judith Berkan, with whom Mary Jo Méndez, Berkan/Méndez, and
Pedro J. Saadé, of the Clínica de Asistencia Legal de la Escuela de
Derecho de la Universidad de Puerto Rico, were on brief for
appellant.
Eliezer Aldarondo-Ortiz, with whom Aldarondo & López Bras,
Eliezer A. Aldarondo, Claudio Aliff-Ortiz, Michael C. McCall,
Mercado & Soto Law Offices, and Francisco J. Amundaray, were on
*
Of the Seventh Circuit, sitting by designation.
brief for appellees the Municipality of San Juan and Mayor Jorge
Santini.
Carlos E. Cardona-Fernández, with whom M & C Consultores
Jurídicos, CSP, was on brief for appellee Administración de
Terrenos.
Maymí, Rivera & Rotger, P.S.C. and Ángel Rotger Sabat, on
brief for appellees Luis G. Fortuño and Antonio M. Sagardía-De
Jesús.
Raúl Castellanos-Malavé, on brief for appellee Autoridad de
Carreteras.
Orlando Durán-Medero, Miguel Pagán, and Pagán & Pagán Law
Offices, on brief for appellee Autoridad de Energía Eléctrica de
Puerto Rico.
September 17, 2009
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Per Curiam. The basic principles that must guide our
inquiry are well-established. Although a denial of a preliminary
injunction is appealable, 28 U.S.C. § 1292(a)(1), this statutory
authorization is to be construed strictly. Dr. José S. Belaval,
Inc. v. Pérez-Perdomo, 465 F.3d 33, 36 (1st Cir. 2006). A denial
of a temporary restraining order ("TRO") is ordinarily not
appealable, San Francisco Real Estate Investors v. Real Estate
Invest. Trust of America, 692 F.2d 814, 816 (1st Cir. 1982). It is
appealable only if it has the practical effect of refusing an
injunction, if it might have a serious, perhaps irreparable
consequence, and if the order can be effectually challenged only by
immediate appeal. Carson v. American Brands, Inc., 101 S. Ct. 993,
996-97 (1981). Under our case law, an order has the practical
effect of refusing an injunction if there has been a full adversary
hearing, or, in the absence of review, further interlocutory relief
is unavailable. Levesque v. State of Maine, 587 F.3d 78, 79 (1st
Cir. 1978).
I.
Applying these principles to the early proceedings before
the district court, we cannot characterize the district court's
rulings as the denial of a preliminary injunction.
The Trust first moved only for a TRO. It attempted to
comply with the procedures required for a TRO. It filed its
request on a Friday; that request was denied promptly on the
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following Monday. The Trust next filed an "Urgent Motion for
Relief Related to Issuance of TRO, Scheduling of Hearing on
Preliminary Injunction and Recusal." This submission was devoted
mostly to the TRO with a request "in the alternative," for a
preliminary injunction.1 One week later, the district court denied
this second motion, saying that it was denying a motion for
reconsideration of the TRO and denying the Trust's request for a
hearing on or before July 3. The district court did not give a
reason for its denial, which is permissible in denying a TRO but
not permissible in denying a preliminary injunction. See Fed. R.
Civ. P. 52. Indeed, the district court never stated that it was
denying a preliminary injunction. Moreover, neither of the
plaintiff's motions had developed, to any meaningful degree, an
argument for why the Trust would succeed on the merits. The
motions simply evinced a desire for quick, temporary relief, the
precise function of a TRO.
The characterizations of the parties and of the district
court are not dispositive. However, it is important to note that
the district court's method of proceeding here was no radical
departure from the usual course. Preliminary injunctions and TROs
are often requested together. The denial of a TRO does not become
appealable if, before resolving the preliminary injunction, the
1
As discussed more fully below, we believe that the plaintiffs
have made, with sufficient clarity, a request for a preliminary
injunction.
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district court denies a motion for reconsideration of the TRO or
issues an order focusing the parties on particular issues that must
be addressed in later proceedings. Such a rule effectively would
deprive district courts of the ability to manage effectively the
initial phases of such litigation.
Moreover, the district court's order cannot be construed
reasonably as having the practical effect of denying a preliminary
injunction. We have held that proceedings have the practical
effect of denying a preliminary injunction where the district court
struck the request for injunctive relief from the complaint,
Plymouth County Nuclear Information Committee, Inc. v. Boston
Edison, 655 F.2d 15, 17 (1st Cir. 1981); where the district court
determined that the plaintiffs lacked standing to seek injunctive
relief, Anderson v. City of Boston, 244 F.3d 236, 239 (1st Cir.
2001); where the district court made findings on the merits that
foreclosed the claims for injunctive relief, Clair Intern., Inc. v.
Mercedes-Benz of North America, Inc., 124 F.3d 314, 315, 318-19
(1st Cir. 1997); where the district court granted a motion to
intervene but denied the intervenors the opportunity to raise new
claims, Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d
543, 552 (1st Cir. 1982); where the district court denied a TRO on
the merits with a thorough explanation and consideration of case
law, Levesque, 587 F.3d at 79; and where the district court denied
a "Motion for Hearing on Motion for Relief Preserving the Status
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Quo." Silva v. Romney, 473 F.2d 287, 288-89 (1st Cir. 1973). In
Carson itself, the Supreme Court found that rejection of a proposed
consent decree that would have provided forward-looking relief was
the practical equivalent of the denial of an injunction. 101 S.
Ct. at 995-96. None of those cases are similar to this case
because, in all of those cases, the district court had made clear
that it was foreclosing the requested relief. Here, by contrast,
further interlocutory relief is available to the Trust. When the
district court denied the Trust's Urgent Motion, it stated only
that it was denying reconsideration of the TRO and an immediate
hearing. It did not claim to deny an injunction, and it did not
discuss the merits in any way that would indicate that an
injunction was foreclosed. In fact, it did just the opposite; by
ordering the parties to brief three jurisdictional issues (and
later added a fourth) by the due date of the Answer, the district
court gave every indication that it is working to resolve threshold
matters in order to clear the way for a definitive, reviewable
ruling on the preliminary injunction.
The Trust emphasizes that it clearly has set forth the
irreparable harm it will suffer in the interim. This argument has
not yet been assessed in an adversary context. Nor has the
district court had the opportunity to assess the likelihood of
success on the merits.
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Accordingly, the appeal from the orders of the district
court must be dismissed for want of appellate jurisdiction.
II.
Since we are without appellate jurisdiction to review the
district court's orders, the Trust asks us to issue a writ of
mandamus to require the district court to decide the motion for a
preliminary injunction. We decline to do so. Mandamus can be
appropriate in those rare cases where the issuance (or non-
issuance) of an order (1) raises a question about the limits of
judicial power, (2) poses a risk of irreparable harm to the
appellant, and (3) is plainly erroneous. Rosselló-González v.
Calderón-Serra, 398 F.3d 1, 10 (1st Cir. 2004). The present record
does not justify such extraordinary relief.
As a threshold matter, the Trust did make an adequate
request for a preliminary injunction. In its Urgent Motion, it
mentioned a "preliminary injunction" in the title of the motion and
again almost immediately in paragraph 3 of the introduction. The
alternative request for a preliminary injunction appears again in
the final paragraph of the Urgent Motion.
A district court may not deprive a party of judicial
review by declining to rule, Mitsubishi Intern. v. Cardinal Textile
Sales, 14 F.3d 1507, 1515 (11th Cir. 1994) (citing 11 Charles Allan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2962,
at 614 (West 1973)). However the record does not support the
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conclusion that the district judge has done so here. When the
district court denied the TRO, it also ordered simultaneous
briefing of three jurisdictional issues: whether the Trust had
juridical personality, whether a trust could own title to property
under Puerto Rican law, and whether Pullman abstention was
appropriate. These briefs were to be due on the same date as the
motion to dismiss, with simultaneous reply briefs due two weeks
later, on the same date as the Trust's response to any motion to
dismiss. On July 9, the district court ordered briefing of an
additional issue: whether the government may transfer title of
lands from the Corporation to another public entity. Thus, in
ordering accelerated briefing of the issues that it found salient,
the district court has demonstrated its desire to gather
expeditiously the necessary information to make a ruling on the
preliminary injunction. Since the briefing due dates, the court
has been waiting for the parties to submit translations of Spanish-
language documents. When the Trust filed its reply brief on
August 14, it also filed a motion requesting 30 days to submit
translations of the Spanish-language documents that it had
submitted. The district court denied the motion and ordered that
the translations be submitted by August 28. Upon reconsideration,
the court shortened this to August 21. The date was then moved
back to August 28 at the urging of the Trust. Since then, the
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court has been making an effort to navigate controversies about the
translations.2
While it would have been helpful to the parties and to us
to have a better description of the district court's intended
course of proceeding, we must conclude that, at this point, it has
given promising indications that it is working toward fulfilling
its obligations. We expect that a reviewable ruling on the
preliminary injunction will soon be forthcoming.3 Issuance of a
writ of mandamus is therefore decidedly premature.
Accordingly, the petition for mandamus is denied without
prejudice.
2
For example, the defendants moved to strike the documents from
the record on September 1. The court ordered the Trust to respond
by September 4. The court subsequently ordered that any reply be
submitted by September 8.
3
As part of its ruling, the district court should make a finding
on the issue of whether the Trust is a public or private entity.
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