United States Court of Appeals
For the First Circuit
No. 03-1551
TOMAS AQUINO ESPINAL-DOMINGUEZ,
Plaintiff, Appellee,
v.
COMMONWEALTH OF PUERTO RICO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Eduardo A Vera Ramírez, with whom Eileen Landrón Guardiola and
Landrón & Vera, L.L.P., were on brief, for appellant.
Nydia María Díaz-Buxó for appellee.
December 19, 2003
SELYA, Circuit Judge. By means of this interlocutory
appeal, the Commonwealth of Puerto Rico attempts to exploit the
Supreme Court's recent redefinition of the calculus of federalism.
See, e.g., Rosie D. v. Swift, 310 F.3d 230, 231 (1st Cir. 2002)
(noting that the Court has "tilt[ed] the scales more and more
toward states' rights"). The Commonwealth's core contention is
that the 1991 Civil Rights Act fails validly to abrogate the
States' Eleventh Amendment immunity insofar as the Act authorizes
the imposition of compensatory damages in Title VII actions against
the States (and against Puerto Rico, which is considered the
functional equivalent of a State for Eleventh Amendment purposes).
This raises an interesting question but, as presently postured, one
that falls beyond our purview.
The stumbling block is the time-tested precept that "[n]o
matter how tantalizing a problem may be, a federal appellate court
cannot scratch intellectual itches unless it has jurisdiction to
reach them." Director, OWCP v. Bath Iron Works Corp., 853 F.2d 11,
13 (1st Cir. 1988). In this instance, the Commonwealth's
interlocutory appeal rests not on a denial of an asserted immunity
from suit, but, rather, on a denial of an asserted immunity from
the imposition of a certain type of money damages. So constructed,
the appeal does not satisfy the requirements of the collateral
order doctrine, and, thus, does not come within the encincture of
our appellate jurisdiction. We therefore dismiss the appeal,
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leaving the substantive issue raised by the Commonwealth to await
end-of-case review.
I.
Setting the Stage
We glean the necessary facts from the plaintiff's
complaint. See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d
507, 508 (1st Cir. 1998).
The Commonwealth hired plaintiff-appellee Tomás Aquino
Espinal-Domínguez, a native of the Dominican Republic, on September
7, 1988. He worked in various capacities for the Department of
Natural Resources (the Department) during the next fifteen years.
At that point, he was unceremoniously ousted from his employment.
The plaintiff concluded that his firing resulted from
national origin discrimination and filed an administrative
complaint to that effect with the Equal Employment Opportunity
Commission (EEOC). The EEOC declined to pursue a full-dress
investigation, instead issuing a right to sue letter. Letter in
hand, the plaintiff repaired to the federal district court and sued
the Commonwealth under Title VII, 42 U.S.C. §§ 2000e to 2000e-17.
His complaint alleged that he had been discharged on the basis of
his national origin, see id. § 2000e-2(a)(1), and prayed for
reinstatement, back pay, marginal benefits, compensatory damages,
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and "any other remedy in law or equity" that might be available
against the Commonwealth.1
The Title VII claim brought the plaintiff face to face
with the Eleventh Amendment, which provides that "[t]he Judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." U.S. Const. amend. XI. This
provision has been authoritatively interpreted to safeguard States
from suits brought in federal court by their own citizens as well
as by citizens of other States. See, e.g., Edelman v. Jordan, 415
U.S. 651, 662-63 (1974); Rosie D., 310 F.3d at 233 n.2. This
immunity can, however, be waived or abrogated by Congress under
certain limited circumstances. See College Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999);
Ramirez v. P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983).
Despite its unique commonwealth status, Puerto Rico is
treated for many juridical purposes as a State. The Eleventh
1
Two features of the plaintiff's complaint deserve special
mention. First, only the Commonwealth is prosecuting this appeal;
thus, we omit any further reference to the Department and the
several departmental officials who are named as additional
defendants. Second, the complaint at one point cites 42 U.S.C. §
2000e(j), a definitional provision that deals with discrimination
on the basis of religion. Since the body of the complaint contains
no facts alluding either to the plaintiff's religion or to any
failure to accommodate the plaintiff's religious practices, we
assume that the citation is in error.
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Amendment is included in this compendium and, thus, Puerto Rico is
entitled to a full measure of Eleventh Amendment immunity. See,
e.g., Jusino Mercado v. Comm. of Puerto Rico, 214 F.3d 34, 37 (1st
Cir. 2000).
Hoisting this banner, the Commonwealth moved to dismiss
the plaintiff's complaint on the ground that the Eleventh Amendment
pretermitted it (at least in part). To comprehend the
Commonwealth's position, it is helpful to place Title VII into an
historical perspective.
Congress originally enacted Title VII as part of the
Civil Rights Act of 1964. Pub. L. No. 88-352, 78 Stat. 241, 253
(1964). In 1972, it amended the law to include public employers,
thus clearing the way for the prosecution of private rights of
action against States that practiced discrimination. See Equal
Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.
103, 103 (1972). This new right afforded only a limited set of
remedies against a state defendant, mainly equitable in nature.
Congress expanded the roster of remedies available against the
States in 1991, adding compensatory damages to the mix. See Civil
Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1072
(1991) (codified at 42 U.S.C. § 1981a(a)(1)).
In this proceeding, the Commonwealth, with a bow toward
the Supreme Court's decision in Fitzpatrick v. Bitzer, 427 U.S.
445, 456 (1976), concedes that Title VII, in its 1972 incarnation,
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constituted a valid abrogation of state sovereign immunity. See
Appellant's Br. at 10-11. In line with this concession, it has
not, insofar as can be gleaned from its papers, attempted to
circumnavigate federal jurisdiction as to the remedies that were
authorized when Fitzpatrick was decided (i.e., the remedies
originally provided by the 1972 amendments to Title VII). These
remedies included pecuniary damages, albeit in the form of back pay
awards. See 42 U.S.C. § 2000e(5)(g)(1); see also Fitzpatrick, 427
U.S. at 452-56 (holding that a back pay award is appropriate in a
Title VII case because Congress had the power to abrogate state
sovereign immunity under section five of the Fourteenth Amendment);
Sea Land Serv. Inc. v. Estado Libre Asociado, 588 F.2d 312, 313 n.3
(1st Cir. 1978) (discussing Fitzpatrick).
This concession perforce means that the plaintiff's
complaint has opened the Eleventh Amendment portal at least part-
way. The Commonwealth, however, seeks to keep the gates from
opening more widely. To that end, it directs its Eleventh
Amendment challenge to the availability of the nascent compensatory
damages remedy. It grounds this challenge on the premise that the
1991 Civil Rights Act, which made that anodyne available against
the States for the first time, fails to pass the congruence and
proportionality test delineated by the Supreme Court's recent
Eleventh Amendment jurisprudence. See, e.g., City of Boerne v.
Flores, 521 U.S. 507, 519-20 (1997) (holding that legislation
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passed pursuant to section five of the Fourteenth Amendment must
exhibit "congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end"). All
legislation enacted pursuant to section five of the Fourteenth
Amendment must pass this test in order validly to abrogate States'
Eleventh Amendment immunity. Bd. of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 364 (2001).
Invoking this doctrine and noting that Congress relied
upon section five in authorizing private rights of action against
state defendants, the Commonwealth asserts that Congress acted
outside its constitutional authority in purporting to abrogate
state sovereign immunity when it amended Title VII in 1991 (and
that, therefore, the Eleventh Amendment continues to protect the
Commonwealth from being forced to pay compensatory damages in Title
VII actions). Unimpressed by the ingenuity of this assertion, the
district court summarily denied the Commonwealth's motion to
dismiss. This appeal ensued.
II.
Appellate Jurisdiction
Even though the parties have assumed the existence of
appellate jurisdiction, we enjoy no comparable luxury. Because
federal courts are powerless to act in the absence of subject
matter jurisdiction, we have an unflagging obligation to notice
jurisdictional defects and to pursue them on our own initiative.
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See Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982); United States v. Horn, 29 F.3d 754, 767 (1st Cir.
1994); In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.
1988). After all, litigants cannot confer subject matter
jurisdiction on a federal court by "indolence, oversight,
acquiescence, or consent." Horn, 29 F.3d at 768.
The difficulty here is that the order appealed from — the
order denying the Commonwealth's motion to dismiss — does not end
the case. It is, therefore, not "final." That matters because
federal appellate jurisdiction in most civil actions arises out of
the power to review "final decisions of the district courts of the
United States." 28 U.S.C. § 1291. Although this finality
principle admits of certain exceptions, the majority of them are
statutory in origin. See, e.g., id. § 1292(a)(1)-(3) (establishing
special rules for jurisdiction over interlocutory appeals from
orders involving injunctive relief, admiralty cases, and
receivership matters). None of these statutory exceptions applies
here.
To be sure, the Supreme Court has glossed the finality
principle, admonishing that the general requirement of finality
should not be applied mechanically. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949) (suggesting that courts should
give the finality principle a "practical rather than a technical
construction"). This pragmatic approach has spawned a few judge-
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made exceptions to the general rule. Chief among these is the so-
called collateral order doctrine. Because that doctrine affords
the only arguable basis for appellate jurisdiction over this
appeal, we chart its contours.
Any effort to decipher the collateral order doctrine must
begin with the Supreme Court's seminal opinion in Cohen. There,
the Court held that an order may be appealed immediately if it
"finally determine[s] claims of right separable from, and
collateral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case is
adjudicated." Id. at 546. Following the Cohen Court's lead, we
have said that collaterality demands conformity to the following
four requirements:
The order must involve: (1) an issue
essentially unrelated to the merits of the
main dispute, capable of review without
disrupting the main trial; (2) a complete
resolution of the issue, not one that is
"unfinished" or "inconclusive"; (3) a right
incapable of vindication on appeal from final
judgment; and (4) an important and unsettled
question of controlling law, not merely a
question of the proper exercise of the trial
court's discretion.
United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979).
Typically, all four of these prerequisites — which we have termed
"separability, finality, urgency, and importance," Recticel Foam,
859 F.2d at 1004 (citation and internal quotation marks omitted) —
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must be satisfied in order to pave the way for the operation of the
collateral order doctrine. See id. at 1003-04.
A decade ago, the Supreme Court ruled that an
interlocutory order denying a State's claim of Eleventh Amendment
immunity from suit may be appealed immediately by way of the
collateral order doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 141 (1993). The State's claim that the
Eleventh Amendment conferred upon it a total immunity from suit
furnished the predicate for the Court's finding that the elements
of the collateral order doctrine were present. See id. at 144.
The Court reasoned as follows. A trial court's denial of such an
immunity claim is final because it conclusively determines that the
State can be subjected to the coercive processes of the federal
courts. See id. at 145. It is urgent because the principal
benefit conferred by the Eleventh Amendment — an immunity from suit
— will be "lost as litigation proceeds past motion practice." Id.
Third, the trial court's order involves an important legal question
(the existence and extent of a "fundamental constitutional
protection"). Id. And, finally, that question has no bearing on
the substantive merits of the case (and, thus, is separable). Id.
Here, the parties' assumption that we enjoy appellate
jurisdiction apparently rests on the belief that Puerto Rico
Aqueduct is controlling. We are less sanguine. The precise
question before the Puerto Rico Aqueduct Court was "whether a
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district court order denying a claim by a State or a state entity
to Eleventh Amendment immunity from suit in federal court may be
appealed under the collateral order doctrine." Id. at 141
(emphasis supplied). The Court's affirmative answer to that
question gives us appellate jurisdiction to decide — even in the
absence of a final judgment — whether a State is amenable to suit
in a federal court with respect to a Title VII claim. See, e.g.,
id.; Okruhlik v. Univ. of Ark., 255 F.3d 615, 621 (8th Cir. 2001).
But that issue is not before us. Here, the Commonwealth does not
assert that it is immune from a Title VII suit in federal court.
Its only developed argument is that it is immune from a particular
strain of damages (a remedy first made available by Congress in
1991). This fact distinguishes the case before us from Puerto Rico
Aqueduct. See Mercer v. Magnant, 40 F.3d 893, 896 (7th Cir. 1994)
("The foundation for the interlocutory appeal authorized by [Puerto
Rico Aqueduct] is the existence of a right not to be a litigant.").
It follows inexorably that accepting appellate jurisdiction over
the instant appeal would require an extension of the holding
announced in Puerto Rico Aqueduct.2
2
We recognize that it may be possible to wrench certain
language in the Puerto Rico Aqueduct opinion from its contextual
moorings to promote the proposition that any denial of any species
of immunity is subject to immediate review. See, e.g., 506 U.S. at
147 (explaining that States "may take advantage of the collateral
order doctrine to appeal a district court order denying a claim of
Eleventh Amendment immunity"). Because indulging in such
linguistic legerdemain would distort the Court's rationale, we
eschew that course.
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We turn, then, to the task of testing the viability of
such an extension. This requires us to assess the Commonwealth's
actual asseveration (that subjecting it to a claim for compensatory
damages in a Title VII suit properly brought against it in a
federal court is barred by the Eleventh Amendment) and to decide,
applying the Cohen criteria, whether a pretrial rejection of that
asseveration is subject to immediate appeal.
Of the four requirements underpinning the collateral
order doctrine, urgency is perhaps the most elemental. See
Recticel Foam, 859 F.2d at 1004 (terming urgency the "central
focus" of the Cohen inquiry and perhaps the "dispositive
criterion"); Boreri v. Fiat, S.p.A., 763 F.2d 17, 21 (1st Cir.
1985) (similar). Here, our inquiry starts — and stops — with this
criterion.3 We have equated urgency with a showing of irreparable
harm. See Boreri, 763 F.2d at 21. In this instance, the
Commonwealth has wholly failed to show that precluding an immediate
appeal of the district court's order will result in any irreparable
harm. We explain briefly.
There is a critical difference between avoiding trial, on
the one hand, and limiting exposure to liability, on the other
hand. The denial of a colorable claim of immunity from suit cannot
effectively be reviewed after trial as the very object and purpose
3
Although not necessary for our conclusion, we note that this
interlocutory appeal might well fail the finality prong of the
Cohen test.
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of the immunity is to protect the holder from the indignity of
being subjected to the coercive processes of a judicial tribunal at
the instance of a private party. See In re Ayers, 123 U.S. 443,
505 (1887); see also Pullman Constr. Indus., Inc. v. United States,
23 F.3d 1166, 1168 (7th Cir. 1994) (characterizing the Court's
decision in Puerto Rico Aqueduct as protecting "a governmental
body's right to avoid litigation in another sovereign's courts").
Put another way, the "ultimate justification" for applying the
collateral order doctrine in cases involving state sovereign
immunity "is the importance of ensuring that the States' dignitary
interests can be fully vindicated." P.R. Aqueduct, 506 U.S. at
146.
This concern is not implicated when the State interposes
the Eleventh Amendment not as the basis for an immunity from suit,
but, rather, as a defense to one of several remedies sought by a
particular plaintiff. See Thomas v. Nakatani, 309 F.3d 1203, 1207
(9th Cir. 2002) (explaining that the crucial difference between
non-final orders denying immunity that are immediately appealable
and non-final orders that are not is whether "the action . . .
would proceed against the state whether or not it prevailed on
appeal"). That scenario reflects an interest which, unlike
immunity from suit, is "fully vindicable on appeal from final
judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 882 (1994). That is a vastly different matter: when a State
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has filed a pretrial motion invoking the Eleventh Amendment not to
establish an immunity from suit but merely to afford itself a
defense to a particular strain of damages, there is no reason to
enswathe a denial of its motion within the collateral order
doctrine. See Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265
F.3d 541, 547 (7th Cir. 2001) (declining to address claim that
state agency is immune from a punitive damages award on
interlocutory appeal because "[a] claim of immunity to a certain
class of damages" is different in kind from a claim of immunity
from suit); Burns-Vidlak v. Chandler, 165 F.3d 1257, 1260-61 (9th
Cir. 1999) (finding no appellate jurisdiction over State's claim
that an award of punitive damages for a violation of Title II of
the ADA is barred by the Eleventh Amendment because the State
"concedes that it is subject to suit . . . in federal court").
Divorced from the question of whether a State can be sued
at all in a federal court, the much narrower question of whether it
can be held liable for a certain type of pecuniary damages is a
question that adequately can be reviewed following trial. See
Cherry, 265 F.3d at 547 (finding no risk of irretrievable loss and
holding that a denial of a claimed immunity from punitive damages
can be effectively reviewed after judgment); see generally CSX
Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th
Cir. 1998) (adjudging claims of sovereign immunity under Florida
state law not subject to interlocutory review because Florida state
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immunity is immunity only from damages and not from suit itself);
cf. P.R. Aqueduct, 506 U.S. at 145-46 (suggesting that if the
Eleventh Amendment conferred only a defense to liability,
interlocutory review might not be warranted). In the ordinary
case, a party who is subjected to an erroneous award of damages can
remedy that error fully through an end-of-case appeal. See Swint
v. Chambers County Comm'n, 514 U.S. 35, 43 (1995) (making clear
that a potentially "erroneous ruling on liability may be reviewed
effectively on appeal from final judgment").
That tenet is fully operative here. If the plaintiff's
case goes forward and the Commonwealth is found liable for
compensatory damages, it will have an ample opportunity to test the
propriety of that award before it is forced to pay. Thus, the only
harm that the Commonwealth stands to suffer from the unavailability
of interlocutory review is an inchoate harm stemming from an
erroneous but non-final ruling. That is always a risk in
litigation — and not the sort of harm that warrants special
solicitude. After all, "almost every pretrial or trial order might
be called 'effectively unreviewable' in the sense that relief from
error can never extend to rewriting history." Digital Equip., 511
U.S. at 872.
Indeed, if the harm asserted here were deemed sufficient
to warrant interlocutory review, the Cohen exception would swallow
the finality principle in a single gulp. That is a consummation
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that ought to be avoided. The Supreme Court repeatedly has
cautioned that the collateral order doctrine constitutes only a
"narrow exception" to the final judgment rule and that it "should
stay that way." Id. at 868. There is good reason why the
conditions for interlocutory appeal are stringent. The case at bar
simply does not satisfy those conditions.
The Supreme Court's decision in Behrens v. Pelletier, 516
U.S. 299 (1996), does not suggest a contrary result. There, the
Court clarified that the collateral order doctrine provides a
jurisdictional hook on which to hang an immediate appeal from an
order denying qualified immunity even though the case contains
equitable claims against the "same" defendant. Id. at 311-12.
That situation is readily distinguishable from the case before us.
If an action is dismissed on qualified immunity grounds,
that dismissal disposes of the entire case against the defendant in
his or her personal capacity. See Scott v. Lacy, 811 F.2d 1153,
1153-54 (7th Cir. 1987) (per curiam) ("[A] public official who is
a defendant in a suit [for injunctive relief] is not 'on trial' at
all. The suit seeks relief against him in his official capacity;
he need not attend the trial, which will be conducted by attorneys
representing the governmental body."). Any cause of action
remaining is against the defendant in his or her official capacity.
An official capacity claim is tantamount to a suit against the
governmental entity, not to a suit against the individual. See,
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e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Nereida-
Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993).
Thus, a successful Behrens appeal completely protects the
individual from litigating on his or her own behalf; it does not
function merely to eliminate certain remedies from the case whilst
leaving the identities of the litigants intact.4
III.
Conclusion
We need go no further. We conclude that where, as here,
a State asserts only that a singular remedy, compensatory damages,
is precluded by the Eleventh Amendment, yet acknowledges that it is
subject to the plaintiff's federal court suit with respect to other
remedies arising as part of the same cause of action, that
acknowledgment defeats any claim of entitlement to an interlocutory
appeal. In such circumstances, the State must await final judgment
before testing on appeal the question of what remedies may be
available. Mercer, 40 F.3d at 897. Refusing to allow immediate
4
In all events, the purposes served by the doctrine of
qualified immunity are distinct from those served by the Eleventh
Amendment. State sovereign immunity is intended primarily to
"prevent the indignity of subjecting a State to the coercive
process of judicial tribunals at the instance of private parties."
In re Ayers, 123 U.S. at 505. Qualified immunity, however, is "a
right to immunity from certain claims, not from litigation in
general." Behrens, 516 U.S. at 312 (emphasis in original).
Consequently, the purposes of qualified immunity are served fully
by allowing an interlocutory appeal even when an official capacity
claim will remain velivolent.
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review in such instances will not render "impossible any review
whatsoever." United States v. Ryan, 402 U.S. 530, 533 (1971).
We dismiss the appeal, without prejudice, for want of
appellate jurisdiction.
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