Watchtower Bible & Tract Society of New York, Inc. v. Colombani

United States Court of Appeals
For the First Circuit

No. 12-1370

WATCHTOWER BIBLE AND TRACT SOCIETY
OF NEW YORK, INC. ET AL.,

Plaintiffs, Appellants,

v.

GUILLERMO SOMOZA COLOMBANI ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Paul D. Polidoro, with whom Gregory Allen, Associate General
Counsel, Legal Department, and Nora Vargas Acosta, were on brief
for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Luis R. Román-Negrón, Solicitor
General, was on brief for appellees.

April 1, 2013
 SELYA, Circuit Judge. With only limited exceptions, the

federal judicial system bans piecemeal review of trial court

decisions. This policy is grounded in considerations of efficiency

and the proper allocation of overtaxed judicial resources. Courts

of appeals must police these boundaries with vigilance. This is

such an occasion.

This appeal arises out of an order dismissing officials

of the Commonwealth of Puerto Rico (collectively, the Commonwealth

defendants) as parties in a nuanced First Amendment case.

Concluding, as we do, that the appeal has been brought prematurely,

we dismiss it for want of appellate jurisdiction. The tale

follows.

I. BACKGROUND

This is our second intervention in this tangled matter.

The architecture of the case is delineated in our earlier opinion

in Watchtower Bible & Tract Society of New York, Inc. v. Sagardía

de Jesús (Watchtower I), 634 F.3d 3, 6-8 (1st Cir. 2011), and we

assume the reader's familiarity with that opinion. We rehearse

here only those events that are necessary to place this appeal into

perspective.

Puerto Rico has taken a unique approach to the creation

of gated communities. Its Controlled Access Law (CAL), P.R. Laws

Ann. tit. 23, §§ 64-64h, authorizes gated communities, called

"urbanizations," which — unlike gated communities elsewhere — may

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control access to public streets within their confines. See

Watchtower I, 634 F.3d at 6. Once created, urbanizations are run

by homeowners' associations. A homeowners' association may

regulate access by erecting fences or barriers with gates (manned

or unmanned) for entry and egress. See id.

Although the framework for creating urbanizations derives

from the CAL, the affected municipalities — not the Commonwealth —

are the source of permission to establish and operate particular

urbanizations: "each municipality after a public hearing makes the

decision whether to approve a permit application" for a specific

urbanization. Id. at 7. The Commonwealth "does not direct the

municipalities or urbanizations in their implementation of

permits." Id. at 7 n.4.

In a sense, the CAL is a contradiction in terms. The

streets within urbanizations remain public, and any restrictions

imposed by a homeowners' association "shall not prevent or hinder

residents from outside the community to use and enjoy sports,

recreational and other community installations, nor from obtaining

the services of private institutions such as schools, churches,

hospitals, civic clubs and others, located in the community." P.R.

Laws Ann. tit. 23, § 64b(e).

In 2004, the appellants Watchtower Bible and Tract

Society of New York, Inc. and Congregación Cristiana de los

Testigos de Jehová de Puerto Rico, Inc. brought suit under 42

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U.S.C. § 1983, alleging that the controlled access regime

unconstitutionally impeded their ability to pursue "a religious

duty to share the Bible's message publicly and to proselytize from

house to house." Watchtower I, 634 F.3d at 6. The suit,

originally brought against the Commonwealth defendants,1 was soon

expanded to include thirty-three municipalities and urbanizations

as additional defendants.

In Watchtower I, we determined that the CAL was

constitutional on its face. Id. at 12. We also determined,

however, that some municipalities and urbanizations were applying

the law in ways that bore "unreasonably on Jehovah's Witnesses'

access to public streets." Id. at 13. Consequently, we remanded

the case to the district court "to take prompt action to bring the

municipalities and urbanizations into compliance." Id. at 17.

Some municipal defendants sought rehearing. We rejected

those requests and, in so doing, clarified the import of Watchtower

I. See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardía de

Jesús, 638 F.3d 81 (1st Cir. 2011) (order denying rehearing).

Pertinently, we explained:

Without resolving claims against any specific
municipality or urbanization, this court held
[in Watchtower I] that further proceedings

1
The Commonwealth defendants, appellees here, are the
Governor of Puerto Rico, the Secretary of Justice, the Commissioner
of the Planning Board of Puerto Rico, and the Executive Director of
the Office of Permit Management (formerly the Administrator of
Regulations and Permits).

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 were required and outlined in skeleton form
the principles that should guide the district
court in structuring injunctive relief if and
where it turned out to be appropriate.
. . . .
. . . [T]he panel made no determination as to
the accuracy or typicality of obstructions to
access alleged against any particular
municipality or urbanization, and any
municipality or urbanization is free on remand
to urge that it did not improperly bar access
or discriminate.
. . . [T]he panel decision made no
determination as to how far municipalities
themselves — by virtue of their permitting
activities, possible involvement with
exclusionary acts, or other entanglements —
might properly be subject to injunctive relief
or any other remedy.

Id. at 83.

On January 31, 2012, the district court held a remand

hearing. The Commonwealth defendants noted that the

constitutionality of the CAL had been upheld in Watchtower I and,

on that basis, insisted that they should play no role in further

proceedings. The district court expressed agreement with this

view, concluding that it would serve no useful purpose for the

Commonwealth defendants to remain as parties "at this time" and

that the action against them should be dismissed. The next day,

the court issued a declaratory judgment order (the Order) in which

it formulated a plan for relief involving the municipal defendants

and memorialized the dismissal of the Commonwealth defendants.2

2
We say "memorialized" because the record reveals that the
district court came to its decision about the dismissal of the
Commonwealth defendants during the remand hearing.

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 The appellants filed a notice of appeal. They also

requested reconsideration of that portion of the Order that

dismissed the Commonwealth defendants. After receiving briefs, the

district court reaffirmed its original decision to dismiss the

Commonwealth defendants. It explained that the case "only

involve[d] as defendants several municipalities and their

controlled access urbanizations," so that "the remedy this district

court can issue . . . is not island-wide, but rather limited to the

parties to this case." It added, however, that the dismissal was

without prejudice and that "if circumstances should change

requiring the presence of the Commonwealth, the court in the future

will revisit the issue."

II. DISCUSSION

"Federal courts, as courts of limited jurisdiction, may

not presume the existence of subject matter jurisdiction, but,

rather, must appraise their own authority to hear and determine

particular cases." Cusumano v. Microsoft Corp., 162 F.3d 708, 712

(1st Cir. 1998). "When a colorable question exists, an appellate

court has an unflagging obligation to inquire sua sponte into its

own jurisdiction." Charlesbank Equity Fund II v. Blinds to Go,

Inc., 370 F.3d 151, 155-56 (1st Cir. 2004). As such, "we have

jurisdiction to determine the existence and extent of our own

subject-matter jurisdiction." Subsalve USA Corp. v. Watson Mfg.,

Inc., 462 F.3d 41, 44 (1st Cir. 2006).

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 In the appellants' opening brief, they asserted that

appellate jurisdiction existed because the Order was "final" within

the purview of 28 U.S.C. § 1291. Doubting this premise, we issued

a pre-argument order requiring supplemental briefing on the

jurisdictional point. By the time of oral argument, the appellants

had proposed three jurisdictional theories: first, that the Order

was appealable as a final judgment; second, that it was appealable

as a declaratory judgment; and third, that it had the practical

effect of denying injunctive relief and was, therefore,

interlocutory but immediately appealable. The Commonwealth

defendants, who had not previously questioned appellate

jurisdiction, contended in their supplemental brief that no

jurisdiction existed.3

We consider each of the appellants' jurisdictional

theories in turn.

A. Final Judgment.

28 U.S.C. § 1291 vests courts of appeals with

jurisdiction over "appeals from all final decisions of the district

courts." "Ordinarily, a judgment is final (and, thus, appealable

3
That the position taken by the Commonwealth defendants
represents a deathbed conversion is of no consequence; "[o]rdinary
raise-or-waive rules do not apply with respect to claims that a
court lacks subject matter jurisdiction." Cabán Hernández v.
Philip Morris USA, Inc., 486 F.3d 1, 5 (1st Cir. 2007). In any
event, we would have an obligation to pursue the jurisdictional
inquiry even if the Commonwealth defendants acquiesced in the
appellants' claim of jurisdiction. See Charlesbank Equity Fund II,
370 F.3d at 155-56.

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under [section 1291]) only if it conclusively determines all claims

of all parties to the action." Nichols v. Cadle Co., 101 F.3d

1448, 1449 n.1 (1st Cir. 1996) (per curiam).

In this instance, the Order plainly did not resolve all

claims against all parties. The district court, after issuing the

Order, is continuing to engage in the complicated task of custom-

tailoring remedies for particular urbanizations in particular

municipalities. This is intricate work: the municipal defendants

have not displayed a uniform approach to the permitting of

urbanizations, and the urbanizations themselves have disparate

features. The very existence of these ongoing proceedings in the

district court is a clear indication that the Order cannot

realistically be regarded as final.

This view of the Order makes sense. Were we to hold

otherwise, we would trigger the unseemly spectacle of two courts

competing simultaneously for the parties' attention. This would

offend basic tenets of judicial administration: "[t]he filing of a

notice of appeal is an event of jurisdictional significance — it

confers jurisdiction on the court of appeals and divests the

district court of its control over those aspects of the case

involved in the appeal." Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58 (1982) (per curiam). Consequently, in the

ordinary course "a federal district court and a federal court of

appeals should not attempt to assert jurisdiction over a case

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simultaneously." Id. This paradigm "derives from the notion that

shared jurisdiction almost always portends a potential for conflict

and confusion." United States v. Brooks, 145 F.3d 446, 456 (1st

Cir. 1998). "Allowing more than one court to take charge of a case

at any given moment often disserves the interests of comity and

judicial economy." Id.

The appellants attempt to justify concurrent jurisdiction

here by invoking 28 U.S.C. § 2202, which authorizes "[f]urther

necessary or proper relief based on a declaratory judgment or

decree . . . against any adverse party whose rights have been

determined by such judgment." They argue that simultaneous trial

and appellate court jurisdiction may flourish in such a situation.

See, e.g., United Teacher Assocs. Ins. Co. v. Union Labor Life Ins.

Co., 414 F.3d 558, 572-73 (5th Cir. 2005); Burford Equip. Co. v.

Centennial Ins. Co., 857 F. Supp. 1499, 1502-03 (M.D. Ala. 1994).

But section 2202 does not magically imbue a nonfinal order with an

aura of finality, nor does it somehow create appellate jurisdiction

where none exists.

That ends this aspect of the matter. We conclude,

without serious question, that this court lacks appellate

jurisdiction, here and now, under 28 U.S.C. § 1291.4

4
To be sure, the appellants might have pursued an immediate
appeal had they requested and received a certified partial final
judgment under the procedural rule that allows a district court to
"direct entry of a final judgment as to one or more, but fewer than
all, claims or parties." Fed. R. Civ. P. 54(b); see Nystedt v.

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 B. Declaratory Judgment.

The appellants' next claim of appellate jurisdiction is

easily dispatched. They suggest that declaratory judgments are

automatically appealable when issued. That suggestion is

unfounded: the Declaratory Judgment Act, 28 U.S.C. § 2201, simply

is not a grant of jurisdiction. See Progressive Consumers Fed.

Credit Union v. United States, 79 F.3d 1228, 1230 (1st Cir. 1996);

McCarthy v. Marshall, 723 F.2d 1034, 1036-37 (1st Cir. 1983). That

statute "merely defines the scope of available declaratory relief."

McCarthy, 723 F.2d at 1037. Seen in this light, section 2201

cannot itself create a basis for appellate jurisdiction.

At any rate, this argument is a red herring. The

appellants are not seeking review of the declaratory portion of the

Order. Rather, they seek review of the portion of the Order

memorializing the dismissal of the Commonwealth defendants. The

fact that this occurred simultaneously with the entry of a

declaratory judgment does not through some mysterious alchemy

transform the dismissal into a declaratory judgment. Cf. William

Shakespeare, Romeo and Juliet act 2, sc. 2 ("What's in a name?

[T]hat which we call a rose [b]y any other name would smell as

sweet . . . .").

Nigro, 700 F.3d 25, 29 (1st Cir. 2012). Here, however, the
appellants did not seek a certification under Rule 54(b), nor did
the district court issue one.

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 C. Practical Effect.

We come now to the appellants' most robust jurisdictional

argument. They assert that because they sought injunctive relief

in their complaint, the Order had the practical effect of denying

an injunction. This is potentially significant because 28 U.S.C.

§ 1292(a)(1) confers jurisdiction over appeals from

"[i]nterlocutory orders of the district courts . . . granting,

continuing, modifying, refusing or dissolving injunctions."

As an exception to the finality principle, section

1292(a)(1) "must be strictly construed." Morales Feliciano v.

Rullan, 303 F.3d 1, 6 (1st Cir. 2002). "Doubts as to [its]

applicability . . . are to be resolved against immediate

appealability." Id. at 7.

Orders explicitly denying injunctive relief are

immediately appealable under section 1292(a)(1) without further

inquiry. See Anderson v. City of Boston, 244 F.3d 236, 238 (1st

Cir. 2001). Here, however, the Order does not explicitly deny

injunctive relief. When an order does not explicitly deny

injunctive relief, the right to an immediate appeal depends on

whether the putative appellant can make three showings. First, the

putative appellant must show that the lower court's action had the

practical effect of denying injunctive relief. See Carson v. Am.

Brands, Inc., 450 U.S. 79, 83-84 (1981); Fideicomiso de la Tierra

del Caño Martín Peña v. Fortuño, 582 F.3d 131, 133-34 (1st Cir.

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2009) (per curiam). Second, the putative appellant must show that

the refusal of injunctive relief will cause serious (if not

irreparable) harm. See Carson, 450 U.S. at 84; Anderson, 244 F.3d

at 238; Kartell v. Blue Shield of Mass., Inc., 687 F.2d 543, 551

(1st Cir. 1982); see also Gardner v. Westinghouse Broad. Co., 437

U.S. 478, 480-82 (1978). Third, and finally, the putative

appellant must show that the order can effectively be challenged

only through an immediate appeal. See Carson, 450 U.S. at 84;

Fideicomiso de la Tierra, 582 F.3d at 133. If any of these three

showings fails, section 1292(a)(1) is not triggered. See Carson,

450 U.S. at 84; Fideicomiso de la Tierra, 582 F.3d at 133.

In this instance, the appellants cannot satisfy the first

requirement. Thus, our inquiry stops there.

The foreclosure of injunctive relief about which the

appellants complain is relatively narrow — the denial of a

permanent injunction directed specifically at the Commonwealth

defendants. But the district court has made pellucid that it has

not foreclosed the possibility of such injunctive relief. At the

remand hearing the court deferred the issue, observing that if

injunctive relief became a desirable feature of a remedial plan, it

would advise the parties and hold an evidentiary hearing.

Similarly, in its order on reconsideration (which affirmed the

dismissal of the Commonwealth defendants), the court emphasized

that it was leaving the door open for possible future relief

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against the Commonwealth defendants. Consistent with this

emphasis, the district court's dismissal of the Commonwealth

defendants operates without prejudice, and the Commonwealth

defendants acknowledge that they may be required at a later date to

reenter the fray.

The district court has made a considered choice about how

to proceed.5 Recognizing the pivotal role of the municipalities in

the permitting process and the idiosyncracies of the urbanizations

that dot the landscape, it is endeavoring to effectuate

constitutionally compliant access on a municipality-by-municipality

basis. Ancillary to this choice, the court has dismissed the

Commonwealth defendants provisionally but it has not ruled out an

injunction against them (or others) should such relief prove useful

in fashioning appropriate remediation.

The upshot is that the appellants have not demonstrated

that the order of dismissal has the practical effect of refusing

injunctive relief. It follows inexorably that section 1292(a)(1)

does not supply a hook on which the appellants can hang

jurisdiction. See Fideicomiso de la Tierra, 582 F.3d at 133-34.

D. A Loose End.

During earlier stages of this litigation, questions arose

as to what role, if any, the Commonwealth police may play in

5
Because we have no jurisdiction to reach the merits of this
case, we take no view as to the appropriateness of that choice.

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ameliorating the asserted harm. To distill the dispute to its bare

essence, the appellants claim that the Commonwealth police refuse

to assist Jehovah's Witnesses in gaining constitutionally required

access to urbanizations; the Commonwealth defendants counter that

the Commonwealth police stand ready to provide such assistance. At

the remand hearing, the district court ordered the Commonwealth

defendants to bring the decision in Watchtower I to the attention

of the Governor, the Attorney General, and the Police

Superintendent. It directed those three officials to notify the

district court within thirty days "that they have read [the

Watchtower I opinion] and they will take all necessary measures to

enforce this, if there would be any violation."

At oral argument in this case, the Commonwealth

defendants vouchsafed that the three officials had been apprised of

Watchtower I as required. They conceded, however, that no

certification of this fact had been made to the district court.

They also conceded that none of the three officials had made the

desired assurances to the district court. We instructed the

parties to confer about this irregularity and to report in due

course to the court below. We are confident that the district

court, which is continuing to exercise jurisdiction over the case

as a whole, will take appropriate steps with respect to this

matter.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we dismiss the appeal, without prejudice, for lack of jurisdiction.

Dismissed.

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