Esso Standard Oil v. Mujica Cotto

United States Court of Appeals
For the First Circuit

No. 04-2055

ESSO STANDARD OIL CO. (PUERTO RICO),

Plaintiff, Appellant,

v.

ESTEBAN MUJICA COTTO, President of the Puerto Rico Environmental
Quality Board; FLOR L. DEL VALLE LOPEZ and ANGEL BERRIOS
SILVERSTRE, Associate Members of the Puerto Rico Environmental
Quality Board; and NORMAN VELÁZQUEZ TORRES, Attorney for the
Puerto Rico Environmental Quality Board,

Defendants, Appellees.

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

[Hon. Justo Arenas, Chief U.S. Magistrate Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

James E. Tyrell, Jr., with whom John F. Nevares, John F.
Nevares & Assocs., P.S.C., Richard P. Bress, Nathaniel A. Vitan,
Matthew K. Roskoski, and Latham & Watkins, LLP were on brief, for
appellant.
Gary H. Montilla, with whom Quiñones & Sánchez, P.S.C. was on
brief, for appellees.

November 16, 2004
 LIPEZ, Circuit Judge. Esso Standard Oil Company sought

a preliminary injunction from the federal district court to enjoin

proceedings against it before the Puerto Rico Environmental Quality

Board regarding the possible imposition of a $76 million fine.

Esso contends that the Board is so biased that its adjudication of

the case violates the Due Process Clause of the United States

Constitution. The district court denied Esso's motion, ruling that

the claim did not fall within the Gibson v. Berryhill, 411 U.S. 564

(1973), exception to the abstention doctrine set forth in Younger

v. Harris, 401 U.S. 37 (1971), and its progeny. Esso now appeals.

For the reasons set forth below (which differ from the reasons set

forth by the district court), we affirm the district court's

decision to abstain.

I.

We draw on the district court's opinion for the factual

background of this case, which involves a gasoline leak at a

service station operated by Carlos Rodríguez Pérez (Rodríguez) in

Barranquitas, Puerto Rico. In 1979, Rodríguez began leasing

storage tanks and purchasing fuel supplies for the station from

Esso Standard Oil Company (Esso). In 1991, Esso replaced the

existing underground storage tank (UST) system with a new UST

system that approximately doubled the station's storage capacity.

In 1992, Rodríguez alleged that Esso was responsible for the loss

of between 65,000 and 100,000 gallons of fuel from the old UST

-2-
system. Nevertheless, he continued to operate the station with the

new tank system until 1998, when the local fire department ordered

the station closed.

A. EQB Orders

The Puerto Rico Environmental Quality Board (EQB) issued

an order in August 1998 instructing Esso to empty and test the

station's fuel storage system for leaks, and Esso promptly

complied. The EQB is an administrative agency created by the

Environmental Public Policy Act, 12 L.P.R.A. §§ 1121 - 1140a, to

promote environmental and resource conservation. It has the

authority to issue "Orders to Do," such as the one directed at

Esso, mandating compliance with environmental statutes and

regulations.

The EQB issued a second order in September 1998 directing

Esso and Rodríguez to engage in additional testing and to submit a

soil remediation plan for the land. Esso again complied.

According to Esso, the special committee charged with enforcing the

EQB's UST program did not respond to Esso's submission, hampering

its ability to investigate environmental conditions at the station

and to take corrective measures. Esso also alleges that Rodríguez

and his consultant, Carlos Belgodere Pamies (Belgodere), further

delayed the process by restricting its access to the station.

The EQB issued a third order in October 1999, superseding

and expanding on the second order. Esso claims that it has

-3-
substantially complied with the third order and, in the course of

doing so, has recovered approximately 550 gallons of spilled fuel.

That figure differs vastly from claims by Rodríguez and Belgodere

of a 65,000 to 100,000 gallon spill.

Despite Esso's demonstrated willingness to comply with

investigatory and remedial orders, the EQB issued a show cause

order in May 2001 proposing a $75,960,000 fine against Esso. The

fine, which is 5,000 times greater than the largest fine ever

imposed by the EQB under its UST regulations, is based on Esso's

alleged failure to promptly notify the EQB of a fuel release from

the pre-1991 UST system and to remedy that release. Any fine that

the EQB collects will be deposited into a discretionary account

administered by the EQB and disbursed by its chairman. 12 L.P.R.A.

§ 1136(f),(k). The $76 million proposed fine is twice the EQB's

annual operating budget.

The district court acknowledged testimony by Miguel

Morales, a supervising attorney of the EQB's legal affairs office,

that he was surprised by the amount of the proposed fine because

the EQB imposed either no fine or a fine of less than $100,000 in

other spill cases. Morales also noted that some of the information

included in the show cause order appears to have been provided by

Belgodere, Rodríguez's consultant. Esso contends that Belgodere

has been granted undue influence throughout this matter. The show

cause order did not propose to sanction Rodríguez, despite an EQB

-4-
examiner's recommendation that it do so because he controlled the

UST in his role as the station operator.

B. Senate Investigation

The Puerto Rico Senate began investigating the alleged

fuel release in October 2001, allegedly at Belgodere's instigation.

In March 2003, two Senate Commissions met in executive sessions,

from which Esso was excluded, with Norman Velázquez Torres

(Velázquez), the attorney presenting the case against Esso on

behalf of the Public Interest.1 Esso asserts that following these

sessions, the Commissions concluded that there had been a spill at

the station and that Esso had failed to address it, accused the EQB

of not treating Esso harshly enough, urged a high fine to serve as

a deterrent, and threatened EQB officials with criminal prosecution

for their laxity.

C. EQB Hearings

Hearings on the proposed fine began in September 2002.

The Public Interest finished presenting its affirmative case on

February 12, 2004, and Esso began its defense on March 15, 2004.

Following a recess to allow substitution of the attorney for the

Public Interest, hearings resumed on August 10, 2004 and are

ongoing as Esso continues to present its defense.

1
The attorney for the Public Interest is an individual
designated by the EQB to present its case to the hearing examiner.

-5-
 The hearing examiner (HE), Yolanda Torres-Roque, is paid

by the EQB from the same fund into which a fine would be deposited;

she can be terminated without cause. Her employment contract with

the EQB states that she "acknowledges that in the performance of

her professional function she has a complete duty of loyalty

towards the agency, which includes not having adverse interest to

said governmental entity." Her job is to preside over the hearings

and to make recommendations to the Board, which can adopt or reject

them.

The hearings have been contentious, generating a flurry

of motions on such issues as discovery, scheduling, and evidentiary

matters. The HE's ruling on two of these motions, one relating to

the availability of discovery and the other to a statute of

limitations claim, resulted in appeals to the courts of Puerto

Rico, as discussed below. In November 2003, during the course of

the proceedings, Esso also filed with the HE a motion for expedited

recommendation of dismissal which raised constitutional claims

similar to those now before us. The HE and EQB Governing Board

(Board) have yet to rule on this motion.

D. Esso's appeals to the Puerto Rico Circuit Court

As noted, Esso filed two appeals in the Puerto Rico

Circuit Court of Appeals during the course of the hearings, one in

May 2002 dealing with a discovery matter and the other in September

2002 urging dismissal of the penalty hearings on statute of

-6-
limitations grounds. The court dismissed both appeals, ruling that

it did not have authority to review interlocutory decisions of an

administrative agency. Esso Standard Oil Co. v. Envtl. Quality

Bd., Nos. OA-01-AG-26 and OA-99-AG-109, 2002 WL 31122179 (P.R. Ct.

App. Sept. 13, 2002); Esso Standard Oil Co. v. Envtl. Quality Bd.,

Nos. OA-01-AG-26 and OA-99-AG-109, 2002 WL 1438761 (P.R. Ct. App.

May 1, 2002). Both decisions note that under 3 L.P.R.A. § 2172,

the court may review only final agency orders, and may do so only

after the petitioning party has exhausted all available

administrative remedies. In both cases, the court concluded that

the only recognized exception to the finality requirement, lack of

agency jurisdiction to adjudicate a case, was inapplicable and thus

it could not consider Esso's appeal.

E. Esso's lawsuit in the district court

In March 2004, Esso filed a lawsuit and companion motion

in federal district court to preliminarily enjoin the EQB penalty

proceedings against it. These pleadings, which do not challenge

the EQB's authority to order remedial measures at the station,

argued that the penalty proceedings violate the Due Process Clause

because "the officials who decide whether this massive fine is

assessed have severe and irremediable conflicts of interest." Esso

asserted a number of specific examples of such conflicts and

procedural irregularities, including that (1) EQB officials have a

direct pecuniary interest in collecting a large fine, (2) the

-7-
Puerto Rico Senate "has exerted undue influence" biasing the

proceedings, (3) high-ranking EQB officials, including a member of

the board, were not consulted in issuing the show cause order on

the proposed fine despite being directly involved in the case, (4)

the HEs lack independence to administer the hearings fairly,2 (5)

attorney Velázquez engaged in grossly unethical behavior before

resigning from the case earlier this year, and (6) Belgodere has

exerted undue influence throughout the proceedings.

In its written decision on the request for a preliminary

injunction, the district court acknowledged that "[t]he undisputed

evidence presented by Esso regarding the EQB's handling of the case

is sufficient to make any court sitting in equity pause." For

example, the court acknowledged multiple difficulties with the HE's

handling of the hearings to date, including her failure to respond

in a timely manner to Esso's motions and her refusal to allow Esso

to cross-examine the UST program's director regarding how the $76

million fine was calculated. The court found that Esso's

participation in the hearings has been hampered by EQB officials'

misrepresentations during the discovery process. Specifically,

Velázquez initially produced only six boxes of documents in

2
Esso notes that two prior HEs were dismissed after one
disagreed with the decision not to fine Rodríguez and the other
disagreed with the EQB's decision not to allow Esso to conduct
discovery. It also claims that the current HE has shown her bias
against Esso by insinuating that "she would not adjudicate the case
in Esso's favor no matter the evidence" and by conducting the
proceedings to Esso's disadvantage.

-8-
response to Esso's discovery requests. Through discovery in a

related CERCLA3 case, Esso obtained more than 1,000 boxes of

additional documents that Velázquez and EQB officials had claimed

did not exist. These boxes included, inter alia, internal

memoranda and technical reports judging Esso's compliance with the

EQB orders.

Additionally, the district court found that Belgodere has

been allowed to influence the EQB's case throughout the

proceedings, despite evidence which brings his motives into

question. Belgodere, who consulted for Esso in the 1980s before

being dismissed for incompetence, has declared himself the

representative of La Vega, the community surrounding the service

station. He has threatened Esso executives with physical violence

and suggested his ability to control the case through extortion.4

Yet he was permitted to assist in drafting the show cause order and

3
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.
4
Rosanna María Roig, who owns a public relations firm retained
by Esso, testified that Belgodere told her that "he had newspaper
connections and that he controlled everything" and that "if nothing
was done about La Vega community, he would find out where the
children of [an Esso executive] went to school and would have them
know that her [sic] father was a killer of children." She further
testified that Belgodere implied that "the case could be settled if
Esso paid $6 million to the community and $2 million to Rodríguez"
and that he was "able to make the proposed fine disappear or get
much lower." He said that "he knew of an EQB official that was
selling permits and that with such knowledge, he could control the
process, by way of blackmail."

-9-
has been seen sitting at the Public Interest counsel table during

the hearings and otherwise consulting with the EQB's lawyers.

Despite these findings, the district court denied Esso's

motion for a preliminary injunction. Reviewing a line of cases

beginning with Younger v. Harris, 401 U.S. 37 (1971), the court

noted the general rule that federal courts should not interject

themselves into ongoing state adjudications, including

administrative proceedings. See id.; Ohio Civil Rights Comm'n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 623-27 (1986) (extending

Younger to some state administrative proceedings). This rule

applies as long as the state forum provides an adequate opportunity

to raise the petitioner's federal claims. Middlesex County Ethics

Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Maymó-

Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 35 (1st Cir. 2004), cert.

denied, 73 U.S.L.W. 3211 (2004). Here, the district court found

that Esso had not exhausted its state remedies because no fine had

yet been imposed and if a fine were imposed, Esso could raise its

constitutional objections upon appeal to the Puerto Rico Court of

Appeals and the Puerto Rico Supreme Court. It thus concluded that

Younger dictated abstention.

The court dismissed Esso's contention that the evidence

of the EQB's bias justified an exception to Younger under Gibson v.

Berryhill, 411 U.S. 564 (1973). It explained that the Gibson

exception allows a federal court to intervene where the state

-10-
adjudicator is so biased as to be incompetent to adjudicate the

matter and where the petitioner shows that abstention would result

in irreparable harm. The district court suggested that a recent

decision of this court, Maymó-Meléndez, 364 F.3d at 37, "downplayed

the relevance of Gibson and any bias argument . . . ." Instead,

the district court found that abstention would not irreparably harm

Esso because "the EQB may yet adjudicate the case fairly."5

On appeal, Esso asserts that being subjected to biased

proceedings is a due process violation independent of any fine that

may be imposed, and thus it is suffering an ongoing irreparable

harm necessitating federal intervention. The EQB responds that the

Gibson exception is inapplicable and that Younger requires

abstention because Esso has an opportunity to litigate its

constitutional claims in the Puerto Rico courts.

II.

We ordinarily review the district court's denial of a

preliminary injunction for abuse of discretion. Weaver

v. Henderson, 984 F.2d 11, 12-13 (1st Cir. 1993). Here, however,

the district court's denial was based primarily on its conclusion

5
In denying Esso's request for injunctive relief, the district
court also did a separate preliminary injunction analysis using the
traditional four-part test set forth in Ross-Simons of Warwick,
Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996). We need
not address the necessity for, or substance of, that analysis
because of our disposition of the case. In any event, the
irreparable harm analysis essential to Younger and Gibson is the
same as the irreparable harm analysis done under the traditional
test for a preliminary injunction.

-11-
that Younger dictated abstention. This is a legal conclusion that

we review de novo. Brooks v. New Hampshire Supreme Court, 80 F.3d

633, 637 (1st Cir. 1996)("[W]e must review de novo the essentially

legal determination of whether the requirements for abstention have

been met. That standard supervenes the abuse of discretion

inquiry, and applies foursquare even though we are reviewing the

district court's denial of injunctive relief." (citations

omitted)).

A. Younger abstention

Younger v. Harris recognized that, in the interest of

comity and federalism, federal courts should ordinarily refrain

from issuing injunctions that interfere with ongoing criminal

prosecutions in state court. 401 U.S. at 44-45. Over time,

Younger abstention has been extended to "'coercive' civil cases

involving the state and to comparable state administrative

proceedings that are quasi-judicial in character and implicate

important state interests." Maymó-Meléndez, 364 F.3d at 31

(relying on Younger to abstain from licensing proceeding before

state horse racing board); see also Ohio Civil Rights Comm'n, 477

U.S. at 623-27 (applying Younger to state sex discrimination

proceedings); Middlesex County Ethics Comm., 457 U.S. at 432

(applying Younger to state ethics committee disciplinary

proceeding).

-12-
 The EQB proceedings were, of course, instituted before

Esso filed its lawsuit in district court. Neither party disputes

that they are quasi-judicial in nature, presided over by a hearing

officer with opportunities for each side to present its case, or

that they implicate the important state interest in protecting the

environment. Thus, this suit lies squarely within Younger's

domain.

Younger's basic rule applies so long as the state

proceedings provide an adequate opportunity for the complaining

party to present its federal claims. Middlesex County Ethics

Comm., 457 U.S. at 435. The question before us, then, is whether

Esso has "the opportunity to raise and have timely decided by a

competent state tribunal the federal issues involved." Gibson, 411

U.S. at 577.

B. The Gibson exception

Esso asserts that even if Younger would otherwise mandate

abstention, the EQB's extreme bias makes federal intervention

appropriate in this case under an exception carved out in Gibson v.

Berryhill, 411 U.S. 564 (1973).

1. Bias

In Gibson, the Alabama Optometric Association

(Association), whose membership was limited to independent

practitioners, filed unprofessional conduct charges against

licensed optometrists who worked for a corporation rather than as

-13-
independent practitioners. 411 U.S. at 567-68. The charges were

filed with the Alabama Board of Optometry (Board), the statutory

body with authority for licensing the practice of optometry. Only

members of the Association could be members of the Board. The

plaintiffs sought federal injunctive relief from the Board

proceedings on due process grounds, arguing that the Board was

impermissibly biased because its members stood to gain financially

from delicensing the employed optometrists, with whom they were in

competition. Id. at 570, 579.

The Supreme Court found that these circumstances

warranted federal intervention. It noted that Younger abstention

"naturally presupposes the opportunity to raise and have timely

decided by a competent state tribunal the federal issues involved."

Id. at 577. On the facts presented, the Court concluded, "the

predicate for [abstention] was lacking, for . . . the State Board

of Optometry was incompetent by reason of bias to adjudicate the

issues pending before it." Id. Specifically, "those with

substantial pecuniary interest in legal proceedings should not

adjudicate these disputes." Id. at 578. We recently interpreted

this exception as holding that "there is some reason for interim

federal court intervention where core constitutional values are

threatened during an ongoing state proceeding and there is a

showing of irreparable harm that is both great and immediate."

Maymó-Meléndez, 364 F.3d at 37 (internal quotation marks omitted).

-14-
 Esso's claim implicates the concerns raised in Gibson.6

As in Gibson, the adjudicative body stands to benefit financially

from the proceeding because any fine imposed will flow directly to

the EQB's budget. Although members of the EQB Governing Board may

not stand to gain personally in the same way that members of the

Alabama Board of Optometry did, a pecuniary interest need not be

personal to compromise an adjudicator's neutrality. See United

Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689 F.2d 693, 699 (7th

Cir. 1982) ("[T]he Commission has a pecuniary interest in the

outcome of the reverter proceedings, because . . . in the event of

a subsequent sale of the property, the proceeds redound to the

coffers of the Commission. This is sufficient under the [Gibson

v.] Berryhill rule to mandate disqualification of the Commission .

6
Questioning the ongoing vitality of the Gibson exception in
light of our recent ruling in Maymó-Meléndez, the district court
observed that Maymó-Meléndez "downplayed the relevance of Gibson
and any bias argument . . . ." Although Maymó-Meléndez
acknowledged the uncertain scope of the Younger exceptions, we did
not extinguish the Gibson exception in this circuit. Instead, we
simply noted that a Supreme Court decision issued soon after Gibson
explicitly recognized Younger exceptions for state proceedings
brought to harass or in bad faith or to enforce a flagrantly
unconstitutional statute, but did not mention a bias exception.
364 F.3d at 37 (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 611-
12 (1975)). However, another Supreme Court case decided one month
after Huffman explicitly recognized Gibson bias as an example of
"extraordinary circumstances" warranting federal intervention in
state proceedings, Kugler v. Helfant, 421 U.S. 117, 125 n.4 (1975),
and subsequent cases have continued to refer to a Younger exception
for "extraordinary circumstances." E.g., Middlesex County Ethics
Comm., 457 U.S. at 431. Absent a contrary indication from the
Supreme Court, we continue to recognize a Gibson bias exception to
the Younger abstention doctrine.

-15-
. . and require that the reverter proceedings provisions of the

statute be held unconstitutional."); see also Ward v. Village of

Monroeville, 409 U.S. 57, 59-60 (1972) (concluding that the city

mayor was an unconstitutionally biased adjudicator where fines he

imposed for traffic offenses provided a substantial portion of

village funds).

Even if such structural bias, standing alone, did not

implicate Gibson, it is accompanied here by undisputed evidence of

actual bias that the district court described as "overwhelming."

That evidence included the unprecedented amount of the proposed

fine, biased hearing examiners, and general unfairness throughout

the hearings. Esso also submitted evidence of procedural

irregularities in the decision to assess the fine, pressure by the

Puerto Rico Senate to penalize Esso, and the improper influence on

the EQB of Belgodere, Rodríguez's consultant. Taken together,

these factors demonstrate that, in the words of the district court,

"the EQB does not measure up to the yardstick of what an impartial

adjudicator should be in accordance with Due Process." This bias

may well render the EQB "incompetent by reason of bias to

adjudicate the issues pending before it." Gibson, 411 U.S. at 577.

2. Irreparable harm

The presence of bias does not, however, end our inquiry;

federal intervention is only appropriate where the petitioner also

demonstrates irreparable harm. Maymó-Meléndez, 364 F.3d at 37-38.

-16-
Thus, although "[s]ubmission to a fatally biased decisionmaking

process is in itself a constitutional injury," United Church, 689

F.2d at 701, we must also consider whether Esso has access to state

judicial review that would make federal intervention unnecessary.

That question turns on the type and timeliness of judicial review

available. We agree with the district court that Esso has not

shown irreparable harm, although for a different reason.

a. Availability of eventual judicial review

The district court found that Esso had not shown

irreparable harm because "the EQB may yet adjudicate the case

fairly. In addition, Esso is not without recourse. It still can

resort to the state judicial review process and vindicate any

rights it understands are violated by the administrative process."

Esso contends that these factors do not ameliorate the

constitutional injury it will suffer in being forced to continue

proceedings before a biased adjudicator. We agree.

The district court's conclusion rested in part on Ohio

Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619

(1986). In that case, a private school asked the federal court to

enjoin employment discrimination proceedings that allegedly

violated the First Amendment. The school argued that under Ohio

law, it could not present its constitutional claim regarding the

investigation and potential sanction during the administrative

proceedings and that the opportunity to do so during subsequent

-17-
review by a state court was inadequate. The Supreme Court

disagreed, concluding that "it is sufficient . . . that

constitutional claims may be raised in state-court judicial review

of the administrative proceeding." 477 U.S. at 629.

The Court's reliance on the eventual availability of

judicial review related specifically to the school's claim that any

fine imposed on it would violate the First Amendment.7 Eventual

judicial review of the fine would adequately address the school's

constitutional claims. In the present case, by contrast, Esso

asserts that the proceedings themselves violate its constitutional

rights. It emphasizes that submission to a biased adjudicator

constitutes an ongoing, independent injury that requires immediate

judicial relief. United Church, 689 F.2d at 701; see also Ward,

409 U.S. at 61-62 ("Petitioner is entitled to a neutral and

detached judge in the first instance."). Under these

circumstances, Gibson itself indicates that the federal court need

not abstain even if "judicial review, de novo or otherwise, would

be forthcoming at the conclusion of the administrative

proceedings." 411 U.S. at 577.

The district court's irreparable harm analysis may also

reflect its misinterpretation of our recent decision in Maymó-

7
The school had also asserted that the proceedings themselves
violated the First Amendment, but the Court disposed of that claim
separately, finding that "the Commission violates no constitutional
rights by merely investigating" allegations of prohibited sex
discrimination. 477 U.S. at 628.

-18-
Meléndez. That case involved a challenge to the constitutionality

of proceedings charging Maymó, a horse trainer, with two violations

of the Puerto Rico Horse Racing Industry and Sport Administration's

controlled medication program. 364 F.3d at 29. First, the Racing

Board administrator concluded on November 3, 2000, after a series

of hearings, that Maymó had improperly administered the drug

Clenbuterol and suspended Maymó's license to train horses for five

years. Id. at 30. Maymó appealed the decision to Puerto Rico's

Circuit Court of Appeals, which stayed the penalty pending

resolution of the appeal but ultimately affirmed the decision on

June 21, 2002. Id. The penalty was reimposed when the stay

expired on July 11, 2002, and the Puerto Rico Supreme Court

declined to review the case. Id. at 31 and n.2.

While the Clenbuterol case was under review in state

court, the Board administrator also initiated hearings on whether

Maymó had improperly administered another drug, Tramadol. Id. at

30. The administrator ruled against Maymó on June 26, 2002 and

imposed a five-year license suspension to run consecutively with

the pending Clenbuterol suspension. Id. Maymó then filed a suit

in federal district court seeking to enjoin both license

suspensions on due process grounds, alleging that the Racing Board

officials who conducted the hearings and imposed the suspensions

were biased. Id. The district court granted a preliminary

-19-
injunction, finding that Younger did not dictate abstention because

neither proceeding was "ongoing."8 Id. at 32.

We reversed. With regard to the Clenbuterol case, we

held that the Rooker-Feldman doctrine prohibited the collateral

attack on a state court decision.9 Id. at 34. As to the Tramadol

case, we concluded that Younger mandated abstention because Maymó's

failure to exhaust his state judicial remedies meant that the state

proceedings were ongoing. We rejected Maymó's claim that

abstention was inappropriate under Gibson, reasoning that even if

Maymó's allegations were true, there was no constitutional urgency

to his claims that required federal intervention. We explained

that "[s]o far as the Younger exceptions are concerned with the

impact of the state proceeding independent of any final remedy

(e.g., to harass), the suspension order has already been entered .

. . ." Id. at 38. In other words, because the hearings had

concluded and Maymó was no longer appearing before the allegedly

biased adjudicator, he was not suffering an ongoing injury. In

8
At the time of Maymó's federal suit, state court proceedings
affirming the Clenbuterol sanction had concluded. 364 F.3d at 32.
Maymó had not challenged the Tramadol suspension in the state
courts, and the Board had returned his petition for review of the
suspension without a ruling, finding that review was "pointless in
light of the ongoing litigation in federal court." Id. at 31.
9
This doctrine derives from Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462
(1983).

-20-
those circumstances, state judicial review was sufficient to

protect his constitutional rights.

In the present case, by contrast, Esso is still engaged

in proceedings before the Board that the district court has already

characterized as "not measur[ing] up to what an impartial

adjudicator should be in accordance with Due Process." This

circumstance constitutes an ongoing injury and raises a concern

"independent of any final remedy" that is at the heart of the

Younger exceptions.10 Id. Thus, in the circumstances of this case,

the availability of judicial review of a final agency decision is

insufficient to avoid the irreparable harm that inheres in the

biased administrative proceeding itself.

b. Relationship between interlocutory review and Gibson

Esso contends that judicial review of an interlocutory

agency decision is also insufficient to ameliorate the

constitutional injury of appearing before a biased adjudicator. We

believe that this claim misreads Gibson and is inconsistent with

the principles of comity underlying our abstention doctrine.

As we have discussed, the Supreme Court held in Gibson

that a federal injunction was appropriate where the state

proceedings were administered by an agency "incompetent by reason

10
Although a biased proceeding differs in some respects from
a proceeding intended to harass (the example we used in Maymó-
Meléndez), it implicates the same concern -- namely, that
proceedings themselves may inflict a constitutional injury
independent of their outcome.

-21-
of bias to adjudicate the issues pending before it. . . . Nor, in

these circumstances, would a different result be required simply

because judicial review, de novo or otherwise, would be forthcoming

at the conclusion of the administrative proceedings." 411 U.S. at

577. Esso notes that the Court reached this decision without

addressing the defendant's argument that the petitioner could

obtain interlocutory relief through a state mandamus procedure for

challenging biased adjudicators. Esso reasons that in permitting

an injunction, the Court implicitly ruled that the federal courts

may intervene despite the availability of interlocutory relief.

Such a broad reading of Gibson is unwarranted. The Court

may have rejected the defendant's argument because of factors

specific to the case or the nature of the interlocutory review

available. In fact, the Court's explicit statement that federal

intervention was proper regardless of the availability of judicial

review "at the conclusion of the administrative proceedings," 411

U.S. at 577, without referring to interlocutory review, arguably

means that the availability of interlocutory review would be

grounds for Younger abstention in some cases.

Also, the rule that Esso urges would run directly counter

to the respect for state judicial systems at the heart of Younger

abstention. There is no reason to assume that, given the

opportunity to review an interlocutory decision by the EQB, the

courts of Puerto Rico will not protect Esso's due process right to

-22-
an unbiased adjudicator as vigorously and expeditiously as would a

federal court. See Middlesex County Ethics Comm., 457 U.S. at 431

("[R]espect for the state processes, of course, precludes any

presumption that the state courts will not safeguard federal

constitutional rights."). Thus, we see no reason to intervene here

if Esso has access to timely interlocutory state judicial review of

its constitutional claim.

c. Availability of interlocutory review

We begin the availability analysis by setting forth the

statutory provisions governing Puerto Rico appellate courts' review

of interlocutory orders of administrative agencies. 4 L.P.R.A. §

22k grants the Circuit Court of Appeals authority to review

administrative resolutions and orders:

The Circuit Court of Appeals shall intervene in the
following matters:
. . . .
(g) Through a writ of review to be issued in its
discretion, of the decisions, regulations, orders and
resolutions of any administrative agency, pursuant to the
terms and conditions established by §§ 2101 et seq. of
Title 3, known as the "Uniform Procedures Act of the
Commonwealth of Puerto Rico."

The Uniform Administrative Procedures Act defines the

scope of judicial review of administrative orders, establishing

when review is appropriate and who has standing to seek review. 3

L.P.R.A. §§ 2101 - 2201. 3 L.P.R.A. § 2172 provides that:

Any party which is adversely affected by a final order or
resolution of an agency and who has exhausted all of the

-23-
 remedies provided by the agency . . . may file a petition
for review before the Circuit Court of Appeals . . . .
. . . .
An order or interlocutory decree of an agency . . . shall
not be directly [reviewable]. The interlocutory decree
of the agency may be subject to a writ of error in the
motion to review the order or final decision of the
agency.

The plain language of this section requires both a final order and

exhaustion of the administrative process before a party is entitled

to judicial review. This language would seem to preclude

interlocutory judicial review of Esso's constitutional claim at

this stage of the proceedings.

Section 2172 is not as absolute as it may first seem. 3

L.P.R.A. § 2173 provides that:

The court may exempt a petitioner from having to exhaust
any or all of the administrative remedies provided in
case such remedy is inadequate or that requiring its
exhaustion would cause irreparable harm to the petitioner
. . . or when a substantive violation of constitutional
rights is alleged, or when it is useless to exhaust the
administrative remedies due to an excessive delay in the
procedures . . . .

Given this language, § 2173 may excuse the § 2172 exhaustion

requirement in this case because of Esso's allegation and

preliminary showing, supported by "specific, well-defined facts,"

that the EQB penalty proceedings violate its right to due process.

Office of the Patient's Advocate v. MCS Insurer, 2004 T.S.P.R. 153,

162 D.P.R. ___ (2004) (certified translation). However, it still

appears that § 2173 does not waive § 2172's finality requirement.

Under the plain language of this section, Esso could argue that it

-24-
would not have timely access to judicial review because it must

continue proceedings before the biased EQB until a final order is

entered.

The Puerto Rico Court of Appeals adopted this view in 2002

when it rejected Esso's interlocutory appeals of EQB rulings on the

availability of discovery and a statute of limitations claim. In

both cases, the court cited § 2172, noting that it "may only review

the orders or final resolutions of an agency." Esso Standard Oil

Co. v. Envtl. Quality Bd., Nos. OA-01-AG-26 and OA-99-AG-109, 2002

WL 31122179, at *4 (P.R. Ct. App. Sept. 13, 2002); Esso Standard Oil

Co. v. Envtl. Quality Bd., Nos. OA-01-AG-26 and OA-99-AG-109, 2002

WL 1438761, at *5 (P.R. Ct. App. May 1, 2002).

However, a September 2004 ruling by the Puerto Rico

Supreme Court casts doubt on this interpretation of § 2172. In that

decision, the court eschewed a plain text reading of § 2172,

creating exceptions to the finality requirement that parallel the

exhaustion exceptions delineated in § 2173 -- including an exception

for grave constitutional grievances. MCS Insurer, 2004 T.S.P.R. at

___, 162 D.P.R. at .

In MCS Insurer, the court noted that the exhaustion and

finality doctrines "have an analogous scope" and thus "ordinarily,

both enjoy the same exceptions." 2004 T.S.P.R. at ___, 162 D.P.R.

at . It acknowledged the 1997 amendment to § 2172 providing that

"[a]n interlocutory order or resolution of an agency is not directly

-25-
[reviewable]," but concluded on the basis of legislative history

that the legislature had not intended to change the "jurisprudential

norm" of parallel exceptions for exhaustion and finality

requirements.11 The Court explicitly discussed two exceptions in

this context: cases where "the agency lacks jurisdiction and the

postponement would entail an irreparable harm or when the matter is

strictly of law." 2004 T.S.P.R. at ___, 162 D.P.R. at .

In analyzing the claims before it, the court referred to

an additional exception for alleged constitutional violations,

suggesting that a sufficiently "intense grievance," proved with

"specific, well defined facts" would justify an exception to §

2172's finality requirement. 2004 T.S.P.R. at ___, 162 D.P.R. at

(citing Guadalupe v. Saldaña, 133 D.P.R. 42 (1993), and Mercado-

Vega v. U.P.R., 128 D.P.R. 273 (1991)). The court found this

exception inapplicable in MCS Insurer because the alleged due

process violations -- the Office of the Patient's Advocate's failure

11
The Court decided in 1997 that despite § 2173's exclusive
reference to exhaustion, both the exhaustion and finality doctrines
have an analogous scope and enjoy the same exceptions. Junta
Examinadora de Tecnólogos Médicos v. Anneris Elías, 144 D.P.R. 483
(1997). The legislature of Puerto Rico amended § 2172 later that
year to specify that "[a]n order or interlocutory decree . . . of
an agency . . . shall not be directly [reviewable]." The Statement
of Motives for the amendment assured that "this measure does not
change, alter, or modify the state of law currently in effect."
From this, the MCS Insurer court concluded that "the doctrine
established in Junta Examinadora de Tecnólogos Médicos v. Anneris
Elías -- regarding the exceptions to the requisite of finality of
the resolutions of the agencies for the same to be reviewable --
continues in effect." 2004 T.S.P.R. at , 162 D.P.R. at .

-26-
to promulgate regulations delineating health care providers'

obligations under Puerto Rico law -- did not "present an infraction

of substantive or constitutional rights of such a magnitude that

warrants doing away with the requirement of a final resolution from

the agency for purposes of judicially reviewing its actions." 2004

T.S.P.R. at , 162 D.P.R. at .

Because we must accept the Puerto Rico Supreme Court's

interpretation of Puerto Rico law, we conclude that § 2172 does not

bar Esso from seeking interlocutory review of its due process claim.

See Johnson v. Fankell, 520 U.S. 911, 916 (1997) ("Neither [the

United States Supreme] Court nor any other federal tribunal has any

authority to place a construction on a state statute different from

the one rendered by the highest court of the State."); Salemme v.

Ristaino, 587 F.2d 81, 87 (1st Cir. 1978) ("It is well settled that

the interpretation of a state statute is for the state court to

decide and when the highest court has spoken, that interpretation

is binding on federal courts."). Although the MCS Insurer court did

not explain precisely what magnitude of constitutional violation

would suffice to excuse § 2172's finality requirement, Esso's claim

might well meet the standard.

The preliminary injunction hearing before the district

court has already created a record supporting Esso's allegations

with "specific, well defined facts." 2004 T.S.P.R. at , 162

D.P.R. at . That record led the district court to conclude that

-27-
"the evidence submitted by Esso is not only undisputed, it is

overwhelming. The appearance and the probability of actual bias

cannot be ignored. . . . Clearly, the EQB does not measure up to

the yardstick of what an impartial adjudicator should be in

accordance with Due Process." Esso raised similar claims with the

HE in a motion to dismiss the proceedings on due process grounds.

That motion has been pending before the HE since November 2003, and

was referred to the EQB Governing Board the following month.

The district court acknowledged that "it is unclear how

far the EQB would entertain Esso's constitutional objections."

However, Esso now has the option of seeking interlocutory judicial

review of its due process claim under the rule announced in MCS

Insurer. That avenue for timely judicial review of Esso's

constitutional grievance in state court obviates the need for

federal intervention in this case pursuant to the Gibson exception

to Younger abstention.12 The district court's decision to abstain

12
We acknowledge the possibility that the EQB may fail to act
in a timely manner on Esso's motion to dismiss, which has been
pending before the Board without a response for close to a year.
If that failure could defeat the availability of interlocutory
relief under Puerto Rico law, we might take a different view of the
applicability of the Gibson exception. However, general principles
of administrative law provide that, under certain circumstances, an
agency's failure to act on a pending matter is treated as a denial
of the relief sought. See, e.g., Hernandez v. Reno, 238 F.3d 50,
55 (1st Cir. 2001) (treating Board of Immigration Appeals's failure
to act on petitioner's motion to reopen for more than three years
as a denial of that motion, and reaching the merits of petitioner's
due process claim). Puerto Rico's Uniform Administrative
Procedures Act "stems from" the United States Administrative
Procedure Act and thus may embrace a similar rule. 2004 T.S.P.R.

-28-
from enjoining ongoing state administrative proceedings was thus

correct.

Affirmed.

at , 162 D.P.R. at ; cf. 3 L.P.R.A. § 2173 (waiving the
exhaustion requirement "when it is useless to exhaust the
administrative remedies due to an excessive delay in the
proceedings").
We leave to the courts of Puerto Rico the question of whether
3 L.P.R.A. §§ 2172 and 2173 require Esso to ask the Board members
to recuse themselves before it seeks review of its bias claim.
However, we note that the Supreme Court has considered recusal
mechanisms ineffective where, as here, the petitioner alleges
structural bias that would not be addressed by the substitution of
particular adjudicators. Ward, 409 U.S. at 61.

-29-