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
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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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