Aponte v. Calderon

United States Court of Appeals
For the First Circuit
Nos. 01-2705
01-2706

JORGE E. APONTE; DANIEL PAGÁN,

Plaintiffs, Appellees,
v.

SILA MARÍA CALDERÓN; ADOLFO KRANS;
CONJUGAL PARTNERSHIP, KRANS-CALDERÓN,

Defendants, Appellants,

DAVID NORIEGA-RODRÍGUEZ; ILEANA COLÓN-CARLO;
CARMEN RITA VÉLEZ-BORRÁS; PEDRO GALARZA;
PEDRO LÓPEZ-OLIVER; ANGEL HERMIDA.
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Torruella, Selya and Lipez,
Circuit Judges.

Roberto J. Sánchez-Ramos, Solicitor General, with whom Vanessa
Lugo-Flores, Deputy Solicitor General, were on brief for appellants
Hon. Sila M. Calderón, personally and in her official capacity as
Governor of the Commonwealth of Puerto Rico, and Adolfo Krans.
Rafael Escalera-Rodríguez, with whom Reichard & Escalera and
Néstor J. Navas-D'Acosta were on brief for appellants David
Noriega-Rodríguez, Ileana Colón-Carlo, Carmen Rita Vélez-Borrás,
Pedro Galarza, Pedro López-Oliver, and Angel Hermida.
John F. Nevares, with whom Carlos R. Ramírez, John F. Nevares
& Associates, P.S.C., and Carlos Lugo-Fiol were on brief for
appellees.

March 22, 2002
 TORRUELLA, Circuit Judge. Defendants-appellants

challenge the district court judgment granting plaintiffs-appellees

injunctive and declaratory relief. See Aponte v. Calderón, 176 F.

Supp. 2d 135 (D.P.R. 2001). Plaintiffs-appellees originally

brought suit challenging the constitutionality of the Independent

Citizens' Commission to Evaluate Government Transactions ("Blue

Ribbon Commission" or "Commission"), which was created by appellant

Sila M. Calderón through an executive order. They alleged, inter

alia, that the Commission violated appellees' rights to due process

of law, as guaranteed by the Fourteenth Amendment of the United
States Constitution. The district court agreed and entered a

permanent injunction forbidding the Commission from engaging in
future investigations without instituting trial-type procedures.
Because we find that the Commission's investigation implicates no

constitutionally protected liberty or property interest of the
appellees, we reverse the district court's grant of injunctive and
declaratory relief.

I. Factual Background

A. The Creation and Structure of the Blue Ribbon Commission

Appellant Sila María Calderón was elected Governor of the

Commonwealth of Puerto Rico in November 2000. Shortly after taking
office in January 2001, she promulgated Executive Order No. 2001-06
("Order"). The Order states that there is a "pressing need" to

make "proper and efficient use of public resources" and to complete
"the total erradication [sic] of government corruption." To

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further that effort, the Order creates the "Independent Citizens'

Commission to Evaluate Government Transactions . . . for the

purpose of evaluating significant government transactions."
The Order gives the Blue Ribbon Commission the power to

evaluate transactions accomplished by the executive branch of the

Puerto Rican government. These transactions may have been
completed by either the current or previous administrations and

must "have the potential of substantially impacting on areas such

as the government's structure, the public treasury, the country's

economy and infrastructure, or the citizenry's trust in government

institutions." To further these evaluations, the Order gives the

Commission the authority to request information from natural and

artificial persons, to require the assistance of the executive
branch, and to issue reports to the Governor, including both the

findings of any investigation and any recommendations. These

recommendations may include the adoption of "new statutory or
regulatory rules," the modification of existing rules, and further

proceedings, either administrative, civil, or criminal, against

certain persons. The Order also provides that the Commission shall

operate with strict confidentiality. Only the Governor has the

power to publicize the findings, recommendations, or evidence

collected by the Commission.

The Governor also has the exclusive power to name

Commission members. She originally appointed appellants David

Noriega-Rodríguez, Ileana Colón-Carlo, Carmen Rita Vélez-Borrás,

Pedro Galarza, and Pedro López-Oliver. Noriega-Rodríguez was made

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Chairperson. Galarza and López-Oliver have both resigned from the

Commission, and appellant Angel Hermida replaced López-Oliver.1

The Commission has the power to adopt internal operating
rules. Pursuant to that power, the Commission promulgated both

Operating By-Laws ("By-Laws") and Guidelines for Investigation and

Drafting of Reports ("Guidelines"). Only the By-Laws were made
public by the Commission. The unpublished Guidelines, however,

provide most of the substantive procedures that the Commission and

its staff follow in conducting their investigations.2 These

procedures include the ability of the Commission to request

officers of the executive branch to secure the appearance and

testimony of reluctant witnesses, using appropriate legal

mechanisms. During interviews, the Commissioners or their staff
may record testimony in a variety of ways, including handwritten

notes. Witnesses are not allowed to take notes, record their

testimony, or obtain copies of their statements. This is
ostensibly to protect the confidentiality of the Commission's

investigations. Those witnesses who are not considered suspects

are not allowed to have an attorney present. However, those

witnesses who are suspected of violating laws or regulations of a

1
Adolfo Krans, Governor Calderón's husband, is the final
appellant. Appellees originally sued Krans, the conjugal
partnership of Krans and Governor Calderón, the various unnamed
spouses of the Commission members, their conjugal partnerships, and
several additional unnamed defendants.
2
The district court published the Guidelines by attaching a copy
to its opinion. See Aponte v. Calderón, 176 F. Supp. 2d at 168-
172. Before this publication, the Guidelines had never been made
public. Indeed, the fact that these procedures existed had never
been made public.

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penal nature are to be advised of their constitutional rights,

including their right against forced self-incrimination. The

Guidelines also require Commissioners to report any evidence that
creates more than a mere suspicion of criminal activity. The

Commission, once it has verified such evidence, may refer the

matter to the Puerto Rican Department of Justice.
It is also important to note what powers the Blue Ribbon

Commission does not have. It does not have the power to

independently initiate or file any civil, criminal, or

administrative charges. It can only recommend that other agencies

do so. Most importantly, the Commission cannot adjudicate criminal

liability or make probable cause determinations.

B. The Investigations and Publication of Reports Relating to
Appellees

The Blue Ribbon Commission has completed reports on three
transactions. Two of those are implicated in this case. The first

concerns the lease and purchase of a building, located at Barbosa
Avenue 306, and an adjacent parking lot ("Barbosa Report"). It
discusses both appellees. The second details the relationship
between the Department of Natural and Environmental Resources, the

Solid Waste Authority, and the Puerto Rico Infrastructure
Management Group, Inc., a private entity ("PRIME Report"). It

discusses only appellee Daniel Pagán. The district court
concluded, after holding a hearing, that both reports "find that
there is probable cause to believe that violations of Puerto Rico

criminal law have occurred." Aponte, 176 F. Supp. 2d at 144.

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 Both plaintiffs-appellees served as high-ranking Puerto

Rican officials under former Governor Pedro Rosselló. Appellee

Jorge E. Aponte was Director of the Office of Management and
Budget. Appellee Daniel Pagán was Secretary of the Department of

Natural and Environmental Resources. Both Aponte and Pagán held

their positions in the Puerto Rican government until December 31,
2000, when Governor Rosselló's term ended.

The Commission interviewed appellee Aponte on April 19,

2001, regarding the Barbosa transaction. This interview occurred

after Aponte received a letter at his home, requesting his

appearance at a hearing. Originally, the hearing was scheduled for

March 29, 2001, but Aponte did not attend due to his concerns about

the Commission. Instead, he hand-delivered a letter, which
requested a copy of the Commission's by-laws, the subject matter of

the hearing, an opinion letter by the Puerto Rican Secretary of

Justice explaining the legal basis for the Commission to compel
witnesses to attend hearings, and any information on the

appointment of counsel to assist him at the hearing. When he

delivered the letter, the Commission's staff informed Aponte that

he was not entitled to appointment of counsel. He subsequently

received a copy of the Order, the By-Laws, and a letter explaining

that the Commission was interested in his involvement in the

Barbosa transaction. The letter also rescheduled the hearing for

April 19.

Aponte attended the hearing on April 19, based in part on

the assurances of the Commission's staff that his testimony was

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needed only to authenticate certain documents. He did not believe

that he, himself, was under investigation for misconduct, and while

he knew that his attendance at the hearing was not required by law,
he believed that the Commission would draw negative inferences

should he refuse to attend. Aponte also concluded, based on his

reading of the Order and the By-Laws, that the Commission could
require him to appear under compulsion of legal process should he

refuse to attend voluntarily.

At the hearing, Aponte objected to the Commission as

unconstitutional. He asked to take notes of the proceedings and to

have a copy of the investigators' notes, but these requests were

denied. Aponte rejected the Commission's request to have a

stenographer record the interview. At no point during the
interview did anyone advise Aponte of any constitutional rights.

Appellee Pagán was interviewed on April 25, 2001, after

an armed agent of the Puerto Rico Department of Justice Special
Investigations Bureau ("NIE")3 delivered a summons to Pagán's home.

After receiving the summons, Pagán informed the Commission that he

was willing to cooperate, despite his belief that the Commission

did not have the power to compel his appearance. However, Pagán

also believed, based on his former experiences, that he was

"required" to appear, although not under legal compulsion. He knew

of individuals who had failed to cooperate with NIE investigations

and had been subject to formal actions.

3
NIE is the Spanish acronym.

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 Like his fellow appellee, Pagán was interviewed regarding

the Barbosa transaction. At the time of his interview, the

Commission did not suspect Pagán of any criminal conduct,
therefore, the Commission did not inform Pagán of any rights that

might have attached had he been a suspect. He requested permission

to record or take notes during the hearing, but the Commission
denied both requests. The Commission's staff did take written

notes on both Pagán's oral testimony and documentary evidence.

On May 9, 2001, Governor Calderón, accompanied by some of

the Commissioners, held a press conference at which she discussed

the Commission's findings and released copies of the Barbosa

Report. The Governor subsequently referred the matter to the

Puerto Rican Secretary of Justice. The district court found that
the report accuses both appellees of criminal misconduct (although

the report itself does not speak in terms of crimes or criminal

statutes). The report also contains extensive analysis and
conclusions regarding the transaction's utility and wisdom,

discusses specific mistakes, and recommends improvements so that

similar mistakes do not occur in the future.

At the time of the press conference, neither appellee had

received a copy of the Barbosa Report nor been given an opportunity

to respond to any charges contained in the report. Pagán later

obtained a copy of the Barbosa Report, but he could not review the

evidence relied upon by the Commission (which had been attached to

the report submitted to the Governor).

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 The Commission, as part of a later investigation,

summoned Pagán to appear at a second hearing, which was to cover

the remodeling of the Barbosa building and a contract between PRIME
and the Solid Waste Authority. Pagán chose not to appear at this

hearing.

A few months later, the Commission finished the PRIME
Report and delivered it to the Governor. As with the Barbosa

report, the Governor and several Commissioners held a press

conference where the report and its findings were discussed. The

PRIME Report concludes that Pagán "improperly intervened" in the

bidding process of the transaction and that Pagán also caused

certain documents to "disappear," requiring the awarded bid to be

annulled. It also contains a lengthy analysis of the entire
transaction and recommendations for future improvements. Again,

Governor Calderón forwarded the report to the Puerto Rican

Secretary of Justice for further investigation and proceedings. A
second PRIME report was later delivered to Governor Calderón, who,

in turn, referred it to the Secretary of Justice.

II. Procedural Background

The district court decided this case after holding a

hearing and entertaining various dispositive motions by the
parties. The issues raised in these various motions included: (1)
whether appellees had stated a valid due process claim; (2) whether

appellants are protected by the doctrine of qualified immunity; (3)
whether Governor Calderón is entitled to absolute immunity; (4)

whether appellees' motion for a preliminary injunction should be

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granted; and (5) whether the district court should decline to

exercise jurisdiction over appellees' state-law claims.

On November 6-8, 2001, the district court held a hearing.
This hearing was originally scheduled to address appellees' motion

for a preliminary injunction. To prepare for that hearing, the

district court issued an order, dated October 16, 2001, advising
the parties which issues the court expected to cover in the

hearing. The court outlined the final issue as follows: "What

other evidence, aside from that properly submitted in a preliminary

injunction hearing, do the parties expect that they would present

if the case were to be tried on the merits? See Fed. R. Civ. P.

65(a)(2)."4 At the conclusion of the hearing, the district court

stated, "I think that there is no reason why I should not give a
final adjudication. . . . That's exactly what I intend to do under

Rule 65." Neither party objected.

Thereafter, on November 29, 2001, the district court
issued the decision that is the subject of this appeal. After

deciding that the case was ripe and not an appropriate case for

abstention, the court held that (1) Governor Calderón is not

entitled to absolute immunity; (2) appellants are not entitled to

qualified immunity; (3) the Commission violated appellees' rights

to procedural due process, entitling appellees to injunctive and

declaratory relief; and (4) the Commission did not violate

4
Rule 65(a)(2) of the Federal Rules of Civil Procedure provides,
in relevant part: "Before or after the commencement of the hearing
of an application for a preliminary injunction, the court may order
the trial of the action on the merits to be advanced and
consolidated with the hearing of the application."

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appellees' right to freedom of association or to equal protection

of the laws. The court did not decide the state-law issues raised

in appellees' complaint or determine damages.

III. Discussion

Appellants challenge the district court's decision on

several grounds. First, they raise a procedural issue as to the

court's invocation of Federal Rule of Civil Procedure 65. Second,

they contest the court's substantive decision that the Commission

violated appellees' due process rights. Third, they argue that

Governor Calderón is entitled to absolute immunity regarding her
establishment of the Blue Ribbon Commission through an executive

order. Fourth, appellants argue that they are entitled to
qualified immunity. We address each in turn.

A. Rule 65(a)(2)

The Federal Rules of Civil Procedure allow a court to
consolidate a preliminary injunction hearing with a trial on the

merits. See Fed. R. Civ. P. 65(a)(2). However, the court must
provide the parties with "'clear and unambiguous notice'" of its
intent to consolidate. Univ. of Tex. v. Camenish, 451 U.S. 390,

395 (1981) (quoting Pughsley v. 3750 Lake Shore Drive Coop. Bldg.,

463 F.2d 1055, 1057 (7th Cir. 1972)). This notice must be given

sufficiently early to allow the parties time to assemble and

present their evidence. Id. However, any right to object to the

court's timeliness in giving notice will be lost if a party does

not object contemporaneously with the court's notice of

consolidation. K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907,

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913 (1st Cir. 1989) (holding that appellant waived its right to

complain when the court announced its intention to consolidate

during the second day of a preliminary injunction hearing and
appellant failed to object).

Here, the record is clear. The district court signaled

the possibility that it might consolidate the preliminary
injunction hearing with a trial on the merits in its order dated

October 16, 2001. While this first notice is arguably ambiguous,

we need not stop there. At the end of the hearing, the court

announced, unambiguously, that it would consolidate under Rule 65.

Appellants failed to object at either juncture, consequently

waiving their right to raise this issue now. Therefore, we proceed

to the merits of the case.

B. The Merits

After the consolidated trial on the merits, the district
court granted a permanent injunction forbidding appellants from
"holding investigative hearings without affording individuals under

investigation substantial opportunity to defend, among other
rights, the right to present testimonial and documentary evidence
on their behalf and to confront and cross-examine witnesses."

Aponte, 176 F. Supp. 2d at 165. Appellants contest the district
court's decision, and we agree that the district court erred in
concluding that these actions provide a basis for the issuance of

the injunction.
Generally, we review a grant of a permanent injunction

for abuse of discretion, A.W. Chesterton Co. v. Chesterton, 128

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F.3d 1, 5 (1st Cir. 1997), but we always review questions of law de

novo. Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17,

22 (1st Cir. 2001). We review factual findings for clear error.
See Water Keepers Alliance v. United States Dep't of Def., 271 F.2d

21, 30 (1st Cir. 2001) (applying clearly erroneous standard to

review of factual findings).
In order to grant a permanent injunction, the court must

find four elements: (1) plaintiffs prevail on the merits; (2)

plaintiffs would suffer irreparable injury without an injunction;

(3) the harm to plaintiffs would exceed the harm to defendants from

the imposition of an injunction; and (4) the public interest would

not be adversely affected by an injunction. United States v. Mass.

Water Res. Auth., 256 F.3d 36, 51 n.15 (1st Cir. 2001). While
appellants challenge the district court's determination on all four

prongs, we find the first dispositive and, therefore, decline to

address the others.
Here, the district court found that appellees prevailed

on the merits of their procedural due process claim. Aponte, 176

F. Supp. 2d at 155-63. A threshold requirement for a successful

procedural due process claim is to demonstrate the implication of

a constitutionally protected interest in life, liberty, or

property. Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32 (1st

Cir. 1996).

Appellees argue that two separate liberty or property

interests trigger due process protections in this case. First,

they assert a right to be free from criminal investigation and

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prosecution. Second, they maintain that the Puerto Rican

Constitution establishes a protected liberty interest in

reputation. We address each of these arguments in turn.

1. Interest in being free from criminal investigation
and prosecution

The district court concluded that appellees "have a

fundamental, constitutionally protected liberty interest in being

free from investigation and prosecution for criminal offenses in a

manner that tramples upon the procedural protections afforded by

the Fourteenth Amendment." Aponte, 176 F. Supp. 2d at 156. To

support this conclusion, the court looked to Jenkins v. McKeithen,
395 U.S. 411 (1969), which it determined governs this case.
Aponte, 176 F. Supp. 2d at 160. We disagree and hold that

appellees have asserted no constitutionally protected interest
because there has been no adjudication of criminal liability or of
appellees' legal rights.

In Jenkins, a plurality of the Supreme Court held that

the subject of a public investigation carried out by the Labor-
Management Commission of Inquiry ("Louisiana Commission") stated a
valid due process claim when he challenged the procedures of the

Louisiana Commission. 395 U.S. at 431. A key finding on which the
plurality relied is that the Louisiana Commission was "empowered to

be used and allegedly [was] used to find named individuals guilty
of violating the criminal laws." Id. at 428. Therefore, the
Louisiana Commission "exercise[d] a function very much akin to

making an official adjudication of criminal culpability." Id. at

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427. This finding distinguishes Jenkins from the earlier case of

Hannah v. Larche, 363 U.S. 420 (1960).

Hannah addressed whether due process rights were
implicated by public investigations of the Civil Rights Commission.

This commission had been charged by Congress with investigating

allegations of voting deprivations. Id. at 421-23. Several
citizens, called as witnesses by the commission, filed suit to

enjoin the investigation, alleging infringements of their due

process rights.5 Id. at 423-30. The Court began by noting that

the Civil Rights Commission "does not adjudicate. It does not hold

trials or determine anyone's civil or criminal liability. . . .

Nor does it indict, punish, or impose any legal sanctions." Id. at

441. The Court then continued to explain that when there is no
adjudication of legal rights, the due process clause is not

implicated to the same degree:

[W]hen governmental agencies adjudicate or
make binding determinations which directly
affect the legal rights of individuals, it is
imperative that those agencies use the
procedures which have traditionally been
associated with the judicial process. On the
other hand, when governmental action does not
partake of an adjudication, as for example,
when a general fact-finding investigation is
being conducted, it is not necessary that the
full panoply of judicial procedures be used.

Id. at 442 (emphasis added). The Court also looked, quite

specifically, at the use of other investigative bodies in our

5
Specifically, the plaintiffs wanted to know on what charges they
were being investigated and on the basis of whose complaint. Id.
at 441-42. Plaintiffs also argued that they had the right to
cross-examine the complainants and other adverse witnesses. Id.

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government. It found a long history of fact-finding investigations

that used procedures similar to those employed by the Civil Rights

Commission. Id. at 443-52. To stress this point, the Court went
so far as to append an extensive list of various administrative

agencies which conduct investigations without trial-like rights

attaching. Id. at 454-92. Because the Court found that the Civil
Rights Commission was more like an investigative agency, it held

that the plaintiffs' due process rights had not been violated.

The Court has steadfastly maintained this distinction

between general fact-finding investigations and adjudications of

legal rights. It is precisely on this point that Jenkins turns.

There, the Court distinguished the Louisiana Commission from the

Civil Rights Commission by saying:
We are not presented with a case in which any
injury to appellant is merely a collateral
consequence of the actions of an investigatory
body. Rather, it is alleged that the very
purpose of the [Louisiana] Commission is to
find persons guilty of violating criminal laws
without trial or procedural safeguards, and to
publicize those findings.

395 U.S. at 424 (emphasis added). The Court noted that the

Louisiana Commission was both required to make probable cause

findings and able to file charges against individuals. Id. at 416-

17. Furthermore, the Louisiana Commission was "concerned only with

exposing violations of criminal laws by specific individuals." Id.

at 427. These specific characteristics of the commission made it

more like an adjudicatory body than an investigatory body.

Therefore, due process rights attached.

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 In contrast, it is clear that investigations conducted by

administrative agencies, even when they may lead to criminal

prosecutions, do not trigger due process rights. In SEC v. Jerry

T. O’Brien, Inc., 467 U.S. 735 (1984), the Court considered a

challenge to a private SEC investigation.6 The plaintiffs

challenged the ability of the SEC to issue third-party subpoenas
without informing the parties under investigation. The Court, once

again, looked to the difference between adjudication and

investigation: "the Due Process Clause . . . is [not] offended

when a federal administrative agency, without notifying a person

under investigation, uses its subpoena power to gather evidence

adverse to him. The Due Process Clause is not implicated under

such circumstances because an administrative investigation
adjudicates no legal rights." Id. at 742. The key distinction is

that the SEC investigated whether violations of various securities

laws may have occurred, not whether plaintiffs should be held
legally responsible for any such violations. For plaintiffs to be

held legally responsible, they would have to be found guilty after
a formal adjudication, during which full due process rights would

attach.

To the extent that the district court found that

appellees have a constitutionally protected interest in being free

6
Because the SEC conducted a private investigation, Jerry T.
O'Brien bears a close resemblance to this case, where the
Commission's investigations are conducted confidentially. However,
the parallel is not complete. In Jerry T. O'Brien, it is unclear
whether the SEC had the power to make the results of its
investigation public. Here, the Commission's findings have been
made public by Governor Calderón.

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from investigation, the court erred as a matter of law. The

foregoing discussion shows that investigations, alone, do not

trigger due process rights. There must also be an adjudication.
Without an adjudication of legal rights, Hannah and Jerry T.

O’Brien are clear: the Due Process Clause does not require that

"the full panoply of judicial procedures be used." Hannah, 363
U.S. at 442.

However, it is not clear whether the district court also

found that there was an adjudication of appellees' legal rights.

Aponte, 176 F. Supp. 2d at 156 (stating that appellees have an

interest in being free from both investigation and prosecution).

We know that the Blue Ribbon Commission investigates government

transactions in private, and, thereafter, makes a variety of
recommendations. Included within those recommendations may be the

suggestion that criminal, civil, or administrative actions be

brought against certain individuals. In both the Barbosa and PRIME
Reports, the Commission recommended that further actions be taken

against appellees. The question, then, is whether the Commission

has adjudicated appellees' legal rights in making these

recommendations.

The question of whether there has been an adjudication

does not turn on the language of the Order or the Commission’s

self-described role. Rather, it is a functional question. See

Cooper v. Salazar, 196 F.3d 809, 815 (7th Cir. 1999) (holding that

administrative investigation into alleged civil rights violations

which resulted in determination of whether there was "substantial

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evidence" on which to proceed was a functional adjudication

because, in event of negative determination, claimant could only

appeal denial of claim to state supreme court). If any action of
the Commission alters the appellees’ legal rights, then there has

been an adjudication. Hannah, 363 U.S. at 441; Cooper, 196 F.3d at

815.
Without making an explicit finding, the district court

suggests that the Commission conducts adjudications because it

"makes actual findings that named individuals are guilty of

criminal violations as part of a process of criminal prosecution."

Aponte, 176 F. Supp. 2d at 161. However, the court's findings as

to the subsidiary facts belies the conclusion. See Alfaro De

Quevedo v. De Jesús Schuck, 556 F.2d 591, 593 (1st Cir. 1977)
(finding that factual findings which are internally inconsistent

are clearly erroneous). Additionally, our independent review of

the Barbosa and PRIME Reports shows that the district court's
conclusion is clearly erroneous.7 See Fed. R. Civ. P. 52(a)

(establishing that factual findings "shall not be set aside unless

clearly erroneous"); see also Water Keepers Alliance, 271 F.2d at

30 (applying clearly erroneous standard in review of preliminary

injunction denial).

When the district court referred to the "actual findings"

of criminal conduct, Aponte, 176 F. Supp. 2d at 161, it was

7
The district court's conclusion could be characterized as either
a factual finding or a mixed question of fact and law. Since the
finding is clearly erroneous, it does not matter how we
characterize it. Therefore, we decline to decide this issue.

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apparently referencing the probable cause determinations that the

court found in the Barbosa and PRIME Reports.8 See id. at 144

("probable cause to believe that violations of Puerto Rico criminal
law have occurred"). However, a close reading of the district

court’s factual findings shows that the Commission does not make

binding probable cause determinations. Rather, the Commission
simply recommends that individuals be investigated further. The

district court, itself, said that the Commission only makes

"accusations of criminal misconduct." Id. at 148. Throughout its

discussion, the district court said that the Barbosa and PRIME

Reports "accuse" appellees of crimes and that appellees "are at

risk of prosecution." See, e.g., id. at 157. Furthermore, it also

recognized that appellees have not yet been indicted. See id. at
156 (noting that appellees "have not yet been formally charged").

Finally, the district court observed that, "the reports issued by

the Blue Ribbon Commission are not obligatory, and the Commission
can only offer recommendations that [Governor] Calderón refer a

particular matter to the Department of Justice for prosecution."

Id. at 160. Therefore, it is unclear how the court concludes that

"[t]he Commission makes actual findings that named individuals are

guilty of criminal violations as part of a process of criminal

prosecution." Id. at 161. In fact, this finding is internally

inconsistent with the numerous findings that the reports only

8
We assume, arguendo, that determining probable cause could be an
adjudication sufficient to trigger the due process clause. It is
unnecessary to decide that question here because it is clear that
the Commission does not even make probable cause determinations.

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accuse appellees of criminal conduct and that the Commission's

recommendations are neither binding nor work as a formal indictment

or charge against appellees.
The district court opinion is unclear on whether the

Barbosa or PRIME Reports actually accuse appellees of specific

crimes. See, e.g., id. at 157 ("The Commission concluded that

[appellee] Pagán had committed undue intervention in the

performance of contracts, bidding procedures or government

operations in violation of Section 4353a of the Penal Code . . .

."). Therefore, we conducted an independent review of the

evidence. We conclude that the reports do accuse appellees of

misconduct. For example, the Barbosa Report finds, "at the very

least [appellees] were grossly negligent." The PRIME Report says
appellee Pagán "improperly intervened" in the bidding procedures

and, in its most damning accusation, concludes that he "ordered the

president of the bid board to cause the disappearance of the
documents." However, the reports never make reference to any

provisions of the Puerto Rican Penal Code. They never accuse

appellees of specific criminal conduct. Furthermore, the reports

are very clear that they only suggest referring the matters to

various administrative departments for further investigation.

There is no specific recommendation that either appellee be

prosecuted, much less any finding of probable cause or actual

institution of legal action against appellees. Therefore, the

district court's conclusion that the reports make specific and

binding determinations of criminal conduct is clearly erroneous.

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See United States v. Ortiz, 177 F.3d 108, 109 (1st Cir. 1999)

(holding that to the extent that a district court's findings are

inconsistent with the uncontroverted evidence, they are clearly
erroneous).

Additionally, the Order, By-Laws, and Guidelines are all

explicit that the Commission is not given the power to adjudicate
legal rights. The Commission cannot independently initiate or file

any civil, criminal, or administrative charges. Rather, the

Commission is only given the power to make recommendations to the

Governor, who then makes her own determination about whether to

pursue further investigations.

Therefore, we find that the Commission did not and cannot

adjudicate the legal rights of appellees or any other individual.
There is no adjudication, functional or otherwise. Accordingly,

the Due Process Clause has not been triggered.

With this conclusion in mind, we would like to emphasize
the district court's conclusion that appellees "have a

constitutionally protected liberty interest in ensuring that the

state acts in accordance with due process standards in the

prosecution of [appellees]." Aponte, 176 F. Supp. 2d at 158

(emphasis added). The fact that the district court failed to

consider the difference between a prosecution and an investigation

does not undercut this point. If appellees are ever prosecuted,

they will be entitled to the full protections of the Due Process

Clause, just like any other individual.

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 2. Interest in reputation

Appellees assert another interest, which they claim

serves as a valid basis for their due process claim: a liberty

interest in their reputations. However, Paul v. Davis, 424 U.S.

693 (1976), held that damage to one's reputation alone does not

trigger the protections of the Due Process Clause. Id. at 701.

Reputational harms must be attached to some other alteration in

status in order to raise a valid due process claim. Id. at 711-12.

Appellees claim to satisfy this requirement by invoking the Puerto

Rican Constitution. While the Puerto Rican Constitution does
include a specific protection for reputation, see P.R. Const. art.

II, § 8, we conclude that the Puerto Rican courts have not afforded
greater protections to reputation than stateside jurisdictions.
Furthermore, there is no indication that appellees have lost any

legal rights because of the alleged defamation by government
actors. Since appellees can point to no alteration in their legal
status attached to any reputational injury, we hold that appellees

have not asserted a constitutionally protected interest in their
reputations.
Paul is very clear. There must be a legal alteration in

plaintiff's position before the courts will recognize a procedural
due process claim:
It is apparent from our decisions that there
exists a variety of interests which are
difficult of definition but are nevertheless
comprehended within the meaning of either
"liberty" or "property" as meant in the Due
Process Clause. These interests attain this
constitutional status by virtue of the fact

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 that they have been initially recognized and
protected by state law, and we have repeatedly
ruled that the procedural guarantees of the
Fourteenth Amendment apply whenever the State
seeks to remove or significantly alter that
protected status.

Paul, 424 U.S. at 710-11. The fact that a state accords
protections to one's reputation by allowing one to bring a tort

action does not create a legal status which is altered when the

state is the alleged defamer. Id. at 711-12.

The question presented here is whether the fact that

Puerto Rico enshrines protection for reputation in its constitution

creates a legal status which is altered when the Puerto Rican

government allegedly defames one of its citizens. While this issue
has arisen before, we have never had to decide it. See, e.g.,

Romero-Barceló, 75 F.3d at 33.

Based on the Supreme Court's decision in Paul, we have
consistently held that "the injury to reputation must be

accompanied by a change in the injured person's status or rights

(under substantive state or federal law)." Beitzell v. Jeffrey,

643 F.2d 870, 878 (1st Cir. 1981); see also Brennan v. Hendrigan,

888 F.2d 189, 195 (1st Cir. 1989) ("reputational injury must

coincide with some other 'alteration of status'" (citing Paul, 424

U.S. at 709-10)). We have termed this a "defamation-plus" test.

Celia v. O'Malley, 918 F.2d 1017, 1021 (1st Cir. 1990). One

example of a successful "defamation-plus" claim is an allegation

that a stigmatization has occurred in connection with a termination

in employment. See Brennan, 888 F.2d at 196. Appellees have

asserted nothing similar to this traditional "plus" factor.

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 Instead, they rely only on the assertion that Puerto Rico

law creates a different regime. We have suggested that state law

may broaden the liberty interests accorded due process protections.
See Silva v. Worden, 130 F.3d 26, 33 (1st Cir. 1997) (noting that

Massachusetts "may have a slightly broader conception of the

liberty interests protected by due process"). Therefore, it is
conceivable that Puerto Rican law could accord a protected liberty

interest in reputation without appellees needing to allege an

additional deprivation.

The Puerto Rico Supreme Court has made clear that Puerto

Rico's Constitution provides sweeping human rights protections:

"Our Constitution recognizes and grants some fundamental rights

with a more global and protective vision than does the United
States Constitution." López Vives v. Police of P.R., 18 P.R.

Offic. Trans. 264, 273 (1987). Furthermore, the Puerto Rico

Constitution should be construed broadly in regard to these rights.
Id. Despite these broad human rights protections, it does not

necessarily follow that the Puerto Rican law protects reputation so

broadly as to make it a protected liberty interest under the United

States Constitution. To evaluate this question, it is necessary to

look more closely at the protections Puerto Rico provides.

Puerto Rico law creates a right of action for defamation

and libel in three separate sources. See Giménez Alvarez v. Silén

Maldonado, 131 P.R. Dec. 91, 97-98 (1992). First, Article II,

section 8 of the Puerto Rico Constitution provides, "Every person

has the right to the protection of law against abusive attacks on

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his honor, reputation and private or family life." This provision

provides a right of action without enabling legislation. Porto v.

Bentley P.R., Inc., 132 P.R. Dec. 331, 343 (1992). Second, the
Libel and Slander Act of 1902 provides a right of action. 32

L.P.R.A. §§ 3141-49. This act draws from the common law tradition,

Porto, 132 P.R. Dec. at 344 n.8, and has been modified by
pronouncements of the United States Supreme Court. See id. at 344-

46. Third, there is a statutory right drawn from the Civil Code.

31 L.P.R.A. § 5141; see also Giménez Alvarez, 131 P.R. Dec. at 98.

In interpreting these various sources of law, the Puerto

Rico Supreme Court has explicitly said that Puerto Rico law on

libel and slander follows the common law tradition. Villanueva v.

Hernández Class, 28 P.R. Offic. Trans. 618, 128 P.R. Dec. 618, 646
(1991) ("Our libel and slander law -- which follows the Anglo-Saxon

common law . . . ."). Beyond this overt acknowledgment, the Puerto

Rico courts frequently cite stateside jurisdictions when
interpreting their laws protecting personal reputation. See, e.g.,

Porto, 132 P.R. Dec. at 349; Villanueva, 128 P.R. Dec. at 647-48;

González Martínez v. López, 18 P.R. Offic. Trans. 229, 236 (1987).

Therefore, as currently developed by Puerto Rican courts, there is

nothing that suggests that we should treat the protections accorded

to reputation by Puerto Rico any more broadly than those granted in

other United States jurisdictions.

Since the law in Puerto Rico appears to be no different,

functionally, from the general common law protections for

reputation, we cannot credit appellees' argument that reputation

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alone, in Puerto Rico, rises to a liberty interest accorded

independent protection under the Due Process Clause of the United

States Constitution. Therefore, appellees have failed to
demonstrate a protected liberty interest in their reputation.

3. Appropriateness of injunctive and declaratory relief

Based on the foregoing discussion, it is clear that

appellees have failed to assert any protected interest in life,

liberty, or property that would trigger the protections of the Due

Process Clause. In holding otherwise, the district court erred.

Consequently, the district court abused its discretion when it
issued the permanent injunction.

The district court also entered a declaratory judgment
that "the procedures employed by the Blue Ribbon Commission in the
investigation of public corruption are fundamentally unfair and

contravene the requisites of the due process clause of the
Fourteenth Amendment." As this judgment was based on the finding
that appellees succeeded on the merits of their due process claim,

the district court also erred in awarding declaratory relief.

D. Absolute and Qualified Immunity

Because appellees’ federal claims fail on the merits, we

see no need to probe whether, or to what extent, the appellants may

be immune from damages.

IV. Conclusion

Pursuant to the above discussion, we vacate the permanent
injunction and reverse the declaratory judgment issued against

-27-
defendants-appellants. Finally, we remand to the district court

with instructions to enter judgment in favor of defendants-

appellants on the due process claim and to dismiss the remaining
state law claims.

Vacated, reversed and remanded.

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