De-Jesus-Mangual v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 04-1031

TOMAS DE JESUS-MANGUAL and JORGE L. MEDINA,
Plaintiffs, Appellants,

v.

ANABELLE RODRIGUEZ, Secretary of Justice of the
Commonwealth of Puerto Rico,
Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Juan R. Marchand Quintero on brief for appellant.

Roberto J. Sanchez Ramos, Solicitor General, Camelia
Fernandez Romeu, Assistant Solicitor General, and Kenneth Pamias
Velasquez, Deputy Solicitor General, on brief for Appellee.

September 2, 2004
 LYNCH, Circuit Judge. This appeal arises from the

aftermath of our decision in Mangual v. Rotger-Sabat, 317 F.3d 45

(1st Cir. 2003), which resolved some but not all of the claims

against the constitutionality of Puerto Rico's criminal libel

statute presented by the plaintiffs in the initial litigation.

The district court construed our remand order and mandate

to preclude it from considering additional legal claims of the

original plaintiff, Tomas de Jesus-Mangual, and the intervenor

Jorge Medina that the statute is also unconstitutional as applied

in a different context. As a result, it refused to consider de

Jesus-Mangual's and Medina's claims, presented initially in the

earlier action and pressed later by a post-remand motion for

summary judgment, that the Puerto Rico criminal libel statutes are

also unconstitutional under the First Amendment in criminal

prosecutions of claims that the reporter had libeled private

individuals in reporting matters of public concern.

In Mangual, this court, inter alia, instructed the

district court on remand to enjoin the Puerto Rico criminal libel

statute, 33 P.R. Laws Ann. §§ 4101-4104, as unconstitutional under

the First Amendment "as applied to statements regarding public

officials or figures." Mangual, 317 F.3d at 69. The record

permitted us to resolve the public official or figure issues, but

not the claims articulated in plaintiff's September 1999 summary

judgment motion about private figures in matters of public concern.

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We also held that the district court erred in dismissing the case

for lack of standing and in denying intervention to Jorge Medina,

and allowed his intervention. Id. Further, we noted that on the

evidence,

"[the threats] to which the plaintiffs point
all involve statements regarding either public
officials, such as police officers, or public
figures such as political candidates. Thus,
we have no occasion to consider whether the
Puerto Rico criminal libel statute is
unconstitutional as applied to statements
about private figures on matters of public
concern."

Id. at 66 n.8. Plaintiffs de Jesus-Mangual and Medina filed a

petition for reconsideration with this court, asking us to

reconsider and reach this issue. We declined to do so. As of that

time, as plaintiffs admit in their brief here, the issue of

application of the statute to claims that private individuals were

libeled on matters of public concern was not fully developed, there

having been no evidence presented on that claim, unlike the public

official claim.

Mandate issued from this court on February 20, 2003. It

remanded the case to the district court with instructions to issue

a declaratory judgment and injunctive relief consistent with the

January 21, 2003 opinion, which stated:

We hold that the Puerto Rico criminal libel
statute incorporates constitutionally invalid
standards in the context of statements about
public officials or public figures. We hold
that Puerto Rico's criminal libel statute, 33
P.R. Laws Ann. §§ 4101-4104, is

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 unconstitutional under the First Amendment as
applied to statements regarding public
officials or figures. We reverse the denial
of Medina's motion to intervene and grant
intervention to Medina, reverse the dismissal
of the case on jurisdictional grounds, and
remand the case with instructions that the
district court enter a declaratory judgment
and injunctive relief consistent with this
opinion. So ordered. Costs are awarded to
Mangual and Medina.

Id. at 69.

The next day the plaintiff and plaintiff-intervenor filed

a motion for summary judgment on the portion of their earlier

claims that the criminal libel statute is unconstitutional as

applied to publications about private individuals in matters of

public concern. Each plaintiff filed a supporting affidavit.

De Jesus-Mangual's affidavit said that his job as a

reporter required him to cover private as well as public persons on

matters of public concern. He said he was chilled in pursuing and

publishing certain stories and had suppressed names of private

persons out of fear of criminal prosecution. His fears were

exacerbated by the fact that the statute appeared to put the burden

on the reporter to prove the truth of the statements made.

Further, this chilling effect was particularly strong because,

unlike for civil libel claims, he was not able to obtain insurance

against a criminal libel claim, and thus would have to shoulder the

expense of litigating such a claim himself. He acknowledged that

he was not at that time under any threat of prosecution for stories

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about private persons in matters of public concern. But the

affidavit said that such prosecutions were still being brought.

Referring to the prosecution of television producer Kobbo

Santarrosa, he averred that the Justice Department was continuing

to prosecute journalists under the statute.

The affidavit of the intervenor plaintiff, Medina, made

similar statements. He stated that a substantial part of his

journalistic work included covering matters of public concern which

often involved individuals who would not be considered public

officials or figures. In addition, he said that there have been

numerous instances in which he has refrained from naming private

individuals in a story for fear that he would be prosecuted under

the statute. He further said that the Justice Department was still

prosecuting individuals under the criminal libel statute, and that

this fact has contributed to the chilling effect resulting from the

statute. He too stressed the importance of the lack of available

insurance as a large deterrent from his publishing legitimately

newsworthy articles that could possibly fall under the reach of the

statute.

No opposition was ever filed to the plaintiff's February

21, 2003 summary judgment motion.1 Indeed, it might have been

1
Pursuant to District of Puerto Rico Local Rule 7.1,
defendants were required to reply to the motion within ten days of
being properly served.

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taken that the Secretary was declining to defend the statute

against this challenge.

On March 13, 2003, the district court issued a

declaratory judgment and injunction in conformity with this court's

opinion. It did not act on the new summary judgment motion.

The plaintiffs twice asked the court to act on their

summary judgment motion: on April 29 and June 2, 2003. The court

did not act on the motion until October 31, 2003, when it denied

the motion for summary judgment, stating that it had no power to

act on plaintiff's claim as it was foreclosed by our mandate. The

result of the order was to foreclose all other issues and thus,

effectively, close the case.

I.

We deal first with an issue not addressed by the parties.

The record shows that no final judgment was entered by the district

court on a separate document, as required by Rule 58. Fed. R. Civ.

P. 58. However, because the district court's order clearly

indicated that it intended to dispose of the case finally, and the

defendant Secretary of Justice Rodriguez has not objected to the

appeal but rather has briefed the case as a final, appealable

order, we may appropriately exercise jurisdiction.

Under 28 U.S.C. § 1291, the "courts of appeals . . .

shall have jurisdiction of appeals from all final decisions of the

district courts of the United States . . . ." Id. Generally, a

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district court decision becomes "final" when judgment is set forth

in a separate document as required by Rule 58.

Nonetheless, a decision of a district court may be a

"final decision" for the purposes of appellate jurisdiction under

§ 1291 despite the lack of a judgment entered in a separate

document under Rule 58. Banker's Trust Co. v. Mallis, 435 U.S. 381

(1978). In Banker's Trust, the Supreme Court noted that Rule 58

was passed in order to make clear precisely when the clock began to

run for the purposes of appealing a final judgment. Id. at 384.

Here there is no question but that the appeal is timely, and so the

purposes of Rule 58 are not served by hinging appellate

jurisdiction on the existence of a separate judgment. Banker's

Trust held that where the district court had clearly evidenced its

intent that the appealed-from opinion and order represent the final

decision in the case, a judgment of dismissal was recorded in the

docket, and respondent did not object to the appeal in the absence

of a separate judgment, the requirements of Rule 58 were deemed

waived and jurisdiction under § 1291 was proper. Id. at 387-88;

see also United States v. Hoyts Cinemas Corp., Nos. 03-1646, 03-

1787, 03-1808, slip op. at 9-10 (1st Cir. Aug. 20, 2004) ("Both

parties treat [summary judgment order] as a final judgment and . .

. so do we"); Mullane v. Chambers, 333 F.3d 322, 337 (1st Cir.

2003).

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 Similarly, in this case the district court evidenced a

finality to its order, the appeal is timely, and the Secretary has

not only waived the lack of a Rule 58 final judgment but has asked

us to decide the appeal. The district court's memorandum and order

states unequivocally that the plaintiff's claim was properly

disposed of by our earlier decision and mandate, and that as a

result it was without jurisdiction to hear anything more. While,

unlike in Banker's Trust, a judgment of dismissal has not been

recorded in the docket, "nothing but delay would flow from

requiring the court of appeals to dismiss the appeal. Upon

dismissal, the district court would simply file and enter the

separate judgment, from which a timely appeal would then be taken.

Wheels would spin for no practical purpose." Banker's Trust, 425

U.S. at 385; see also Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485

(1st Cir. 1993) ("[A] pro forma remand, followed by a new notice of

appeal, would advance neither the interests of the parties nor

sound judicial administration . . . .").

II.

We start by noting that summary judgment was denied on

grounds never raised by any party. The district court gave no

notice that it thought the motion was barred by the mandate

doctrine and plaintiffs were given no opportunity to brief the

issue. That alone would be a basis for reversal. See Douglas v.

York County, 360 F.3d 286, 290-91 (1st Cir. 2004) (finding an abuse

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of discretion where district court injected new issue into the case

without giving parties notice and opportunity to respond).

Furthermore, had the district court notified the parties of its

concern about the meaning of the mandate, the parties could easily

have sought clarification about the mandate from this court. See,

e.g., United States v. Melvin, 27 F.3d 710, 711-13 (1st Cir. 1994)

(after reversing district court's opinion and remanding for further

proceedings, court of appeals granted motion to reconsider based on

confusion as to mandate); In re Dedham Water Co., 901 F.2d 3 (1st

Cir. 1990).

Turning to the merits, we disagree with the district

court's interpretation of the mandate. The issue of the

application of the statute to asserted libel of private persons was

raised in the complaint. Further, in the motion for summary

judgment submitted along with the verified complaint, Mangual

included among the constitutional defects of the statute that "when

the complainant is a private individual or a public figure (not a

public official), the accused must equally shoulder the burden of

proving the truth of his expressions and further, that the matter

relating to his publications is of 'public concern.'" (emphasis

added). This put both the defendant and the court on notice that

Mangual intended to challenge the constitutionality of the statute

as applied to publications about private persons as well as public

officials. Because the case was dismissed on standing grounds,

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there was no opportunity for discovery. Without waiving this

issue, plaintiffs produced evidence of actual prosecutions

involving statements about public officials in order to assert

standing. Nothing in this court's prior opinion resolved the issue

of application of the criminal statute to claimed defamation of

private individuals in publications on matters of public concern.

In the posture in which the case came to us, the issue was not yet

fully developed, and we were explicit that we were not reaching it.

Nothing in our mandate instructed the court to dismiss the entire

case or its remaining claims upon entry of the required injunctive

and declaratory relief. Nothing in our mandate precluded the

plaintiffs from attempting to raise the issue and provide

supporting evidence. The district court was not deprived of power

to entertain the motion.

Under this circuit's "law of the case" doctrine, the

mandate rule, "with only a few exceptions, forbids, among other

things, a lower court from relitigating issues that were decided by

a higher court, whether explicitly or by reasonable implication, at

an earlier stage of the same case." Municipality of San Juan v.

Rullan, 318 F.3d 26, 29 (1st Cir. 2003). It is equally clear that

issues that were not decided by the appellate court and that are

thus outside the scope of the mandate are not affected by the

mandate. In Biggins v. Hazen Paper, 111 F.3d 205, 209 (1st Cir.

1997), this court stated that "mandates require respect for what

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the higher court decided, not for what it did not decide."

Biggins cited multiple cases that hold that "absent a contrary

direction, a district court on remand can permit the plaintiff to

'file additional pleadings, [or] vary or expand the issues . . .

.'" Id. (quoting Rogers v. Hill, 289 U.S. 582, 587-88 (1933)).

In ruling on the constitutionality of one category of as-

applied cases, this court reached only the issues for which there

was an adequate evidentiary record. Because the initial case was

dismissed by the district court on procedural grounds prior to any

significant discovery, plaintiffs were not given the opportunity to

develop the evidentiary record with respect to their constitutional

challenge to the statute as applied to publications about private

individuals in matters of public concern.

The Secretary was on notice from the complaint and

simultaneously filed summary judgment motion that plaintiff was

challenging the statute's applicability to private individuals as

well. It is true that plaintiff and plaintiff intervenor had not,

at the time of the appeal from the dismissal of the case, raised in

their affidavits evidence of the sort they raised post-mandate

about prosecutions arising from publications about private persons

in matters of public concern. It was up to the defendant Secretary

to raise an objection if she felt prejudiced by the post-mandate

filing that raised the issue again. Whatever arguments the

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defendant had to the timing of the raising of the claim post-

mandate have been forfeited.

Indeed the Secretary of Justice did not respond to the

summary judgment motion until this appeal. On appeal, the

Secretary asserts that we should affirm the District Court's ruling

based alternatively on the law of the case doctrine and the

doctrine of res judicata. These two arguments, in addition to

being forfeited by not being raised in the trial court, are

inapposite. Had this court decided the issue of the

constitutionality of the statute as to prosecutions for defamation

of private persons in matters of public concern, the law of the

case doctrine would be relevant. Further, had we decided the issue

in a different case than this, the doctrine of res judicata would

be relevant. The Mangual opinion is perfectly clear that the

private-person issue was not decided.

As a result, we remand for further proceedings consistent

with this opinion. Normally, we would hold that the defendant

Secretary, having failed in her obligation to oppose summary

judgment, was bound, as a result thereby, to take the plaintiffs'

statement of facts as given and was not permitted to introduce her

own evidence. However, what is at stake is the constitutionality

of a statute as applied to a category of cases; we are loathe to

have a determination made on such a question in such a default

context.

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 On remand, the Secretary of Justice should notify the

district court whether the government intends to defend the

statute. The district court should then proceed accordingly. So

ordered.

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