Badillo-Santiago v. Naveira-Merly

          United States Court of Appeals
                      For the First Circuit

No. 01-2640

                   RAMON BADILLO-SANTIAGO, M.D.

                       Plaintiff, Appellant,

                                and

                          UNITED STATES,

                            Intervenor,

                                v.

      HON. MIRIAM NAVEIRA-MERLY, in her official capacity
     as Administrator of the Judiciary System; HON. LIRIO
    BERNAL SANCHEZ, in her official capacity as Director of
       the Courts Administration of Puerto Rico; WILFREDO
     GIRAU-TOLEDO, in his official capacity as Director of
      the Public Buildings Authority; THE COMMONWEALTH OF
       PUERTO RICO; ADMINISTRACION DE TRIBUNALES, Adm. de
      Tribunales de P.R.; AUTORIDAD DE EDIFICIOS PUBLICOS,

                      Defendants, Appellees,
                           _____________

     JOSE A. FUENTES-AGOSTINI, in his official capacity as
  Secretary of Justice of Puerto Rico; JULIO BERRIOS-JIMÉNEZ,
          Judge, in his official and personal capacity,

                            Defendants.


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

        [Hon. Salvador E. Casellas, U.S. District Judge]


                              Before

              Selya, Lynch, and Lipez, Circuit Judges.
          Marc P. Charmatz, with whom Mary C. Vargas, Rosaline
Crawford, and National Association of the Deaf Law Center were on
brief, for appellant.

          Kevin K. Russell, Attorney, Department of Justice, with
whom R. Alexander Acosta, Assistant Attorney General, Ralph F. Boyd
Jr., Assistant Attorney General, Jessica Dunsay Silver, Attorney,
and Seth M. Galanter, Attorney, were on brief, for intervenor
United States.

          Alfredo  Fernandez-Martinez,  with  whom   Delgado  &
Fernandez, LLP was on brief, for appellees Administrator of the
Judiciary System and Director of the Courts Administration of
Puerto Rico.

          Hiram Melendez, with whom Roberto J. Sánchez Ramos,
Solicitor General, Vanessa Lugo Flores, Deputy Solicitor General,
Kenneth Pamias Velázquez, Deputy Solicitor General, Leticia
Casalduc Rabell, Assistant Solicitor General, and Camelia Fernández
Romeu, Assistant Solicitor General, were on brief, for appellee
Commonwealth of Puerto Rico.



                          July 29, 2004
            LYNCH, Circuit Judge. This case raising several different

federalism issues arose from a dispute in the courts of Puerto Rico

over the sale of a house.

            In   August    1995,   Amparo     Fuentes-Gonzalez         sued   Ramon

Badillo-Santiago        ("Badillo"),     along    with    Badillo's     wife   and

brother, in the Superior Court of Puerto Rico in connection with a

purchase and sale contract for a house.             Badillo is the plaintiff

and appellant here.

            Before trial, Badillo never asserted that his hearing was

disabled or that he would require accommodation.                 The only pre-

trial reference to his hearing was in his answer to the complaint.

In paragraph 20 of his answer, he stated: "The right to have

witnesses   and    to    have   [the    deed]    read    aloud   was    declined,

especially by me, since I do not hear well and rely on hearing

aids."   Trial started on September 2, 1997.              On that first day of

trial, Badillo's counsel informed the court about Badillo's hearing

impairment and asked that he be permitted to sit near witnesses.

That request was granted.          On the second day of trial, Badillo

stated that he had heard very little of a witness's testimony.                   At

that   point,    the    trial   judge    stated    that    Badillo's     demeanor

indicated otherwise, as Badillo had made signs of approval and

disapproval of the testimony.

            On the third day of trial, defendant Badillo moved for a

new trial on the ground that no reasonable accommodation had been


                                        -3-
provided to him for his hearing impairment, as required by the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.

In support of that motion, Badillo submitted a report that had been

prepared by a clinical audiologist two days earlier, on September

6.   The trial court, which had already accommodated both Badillo's

request to sit near witnesses and his request that counsel be

required to examine him from the podium, denied the motion.          The

court did, however, order that Badillo be provided with a chair on

wheels that he could move around the courtroom.      The court allowed

Badillo to move freely around the courtroom in order to hear better

and advised him to stand up and inform the court if he could not

hear testimony.    Badillo claims that he attempted to comply, but

that he still could not hear witnesses, and claims that he was

humiliated and embarrassed by the conditions. The court ultimately

ruled in favor of the plaintiff on the merits and Badillo appealed,

inter alia, on the ground that the trial court had failed to

provide   him   with   reasonable    accommodation   for   his   hearing

impairment, which, in turn, prevented him from receiving a fair

trial.

           While he pursued his claims in the court system of Puerto

Rico, Badillo also filed this suit, pro se, in the U.S. District

Court for the District of Puerto Rico on August 31, 1998.        The suit

alleged claims under the ADA and under 42 U.S.C. § 1983 for

violations of his due process and equal protection rights. Badillo


                                    -4-
named as defendants the Commonwealth of Puerto Rico and numerous

heads   of   Puerto   Rico   government   entities   in   their   official

capacities, including the presiding judge of the Puerto Rico

Supreme Court and the trial judge who had presided over the civil

case against Badillo.        Badillo also sued the trial judge in his

individual capacity.     He sought compensatory and punitive damages

and an injunction ordering the defendants to bring the courts of

Puerto Rico into compliance with Title II of the ADA.

             The defendants in the federal suit filed motions to

dismiss for failure to state a claim, which Badillo, still pro se,

opposed.     On February 11, 1999, the United States successfully

moved for leave to appear as amicus curiae to oppose the motion to

dismiss.     On September 29, 1999, counsel entered an appearance for

Badillo.     On September 30, 1999, the district court (1) dismissed

the ADA claim against the trial judge in his official capacity, (2)

dismissed the claim against the trial judge in his individual

capacity on grounds of judicial immunity, (3) dismissed the § 1983

claims against all of the individual defendants in their official

capacities on the ground that those claims were barred by the

Eleventh Amendment, and (4) declined to dismiss Badillo's ADA

claims against the Commonwealth and the other individual defendants

in their official capacities.

             Badillo subsequently sought leave to amend his complaint

to add claims under § 504 of the Rehabilitation Act, arguing that


                                    -5-
the   court    should   grant   him    leave     to    amend    because      of   the

difficulties he had faced as a pro se litigant.                The district court

denied his requests to amend, noting that Badillo had almost a year

after the filing of his federal complaint to retain a lawyer.

Badillo also asked the court to reconsider its dismissal of the §

1983 claims for injunctive relief against the individual defendants

in their official capacities, pointing to Ex parte Young, 209 U.S.

123 (1908).      The district court denied these requests as well.

              On August 31, 2000, Puerto Rico's intermediate appellate

court, the Circuit Court of Appeals, reversed the judgment of the

Puerto Rico      Superior   Court     and    granted   Badillo     a   new   trial,

concluding that the accommodation provided by the trial court was

not adequate under the ADA.           Because the court found that a new

trial was necessary, it did not reach several other issues raised

by Badillo.      The plaintiff in the Commonwealth action, Fuentes-

Gonzalez, appealed the judgment of the Circuit Court of Appeals to

the Supreme Court of Puerto Rico.

              In March 2001, the remaining defendants1 in the federal

suit filed new motions to dismiss the Title II ADA claims on

Eleventh Amendment grounds.         On September 28, 2001, the district

court entered judgment dismissing the ADA claims against those

defendants on the ground that it had no jurisdiction in light of


      1
          After the dismissals of September 30, 1999, one of the
official-capacity defendants, Fuentes-Agostini, successfully moved
to have the ADA claims against him dismissed.

                                       -6-
Puerto Rico's Eleventh Amendment immunity.      Badillo-Santiago v.

Andreu-Garcia, 167 F. Supp. 2d 194 (D. P.R. 2001).          Badillo

appealed that ruling to this court, and also argued that the

district court had erred both in not permitting him to amend to

assert a § 504 claim and also in dismissing his Ex parte Young

claims for injunctive relief.

          We heard oral arguments in the case on September 12,

2002, at which time the parties agreed to stay the appeal pending

the outcome of the parallel appeal in the Supreme Court of Puerto

Rico.   On September 30, 2003, the Supreme Court of Puerto Rico

reversed the judgment of the Circuit Court of Appeals, finding no

violation of Badillo's due process right to a fair trial, and

remanded the case to the intermediate appellate court so that it

could pass on the remaining issues appealed by Badillo.          In

analyzing whether the trial court had violated Badillo's procedural

due process rights, the Supreme Court of Puerto Rico explained that

it "need not resort to the obligations imposed by the ADA on public

entities, inasmuch as such obligations have been incorporated into

the Puerto Rican law system as part of the due process of law."

The court explicitly adopted the definition of the procedural due

process rights under the U.S. Constitution as it was set forth in

Mathews v. Eldridge, 424 U.S. 319 (1976).     The court then offered

its definition of reasonable accommodation:

          We define reasonable accommodation, within the context of
          the services rendered by the court system, as one that

                                -7-
           does not involve modification of such magnitude as may
           fundamentally alter the nature of the service -- in this
           case, the trial on the merits. Reasonable accommodation
           must guarantee significant access to the benefits,
           rights, and guarantees that a trial on the merits
           entails; this, however, should not be mistaken for the
           creation or addition of substantive benefits different
           from those provided to persons without disabilities. The
           purpose of reasonable accommodation is to facilitate the
           equal and equitable use and enjoyment of recognized
           services and rights by all users.         Thus, we deem
           unreasonable    an   accommodation    that   imposes   a
           disproportionate financial or administrative burden on
           the court system and on the users.

           [T]he determination to provide such an accommodation
           within the context of a trial requires a thorough
           consideration of the interests of all the parties
           affected by the procedure.     . . .    [I]t is vitally
           important to also consider the date on which the request
           for accommodation was submitted, [and] the quality and
           degree of evidence presented to show the degree and
           extent of the disability . . . .

The court noted that the audiology report submitted by Badillo

indicated that his hearing impairment was partial and that he could

hear people up to a distance of four feet if he faced them and

resorted   to   lip   reading.   Accordingly,     the   court   said,   the

accommodation    provided   by   the    trial   court   met   due   process

requirements because it conformed to the degree of Badillo's

disability.

              The parties filed supplemental briefs addressing the

effect of the Puerto Rico Supreme Court decision on this federal

suit. We advised the parties that we would withhold ruling on this

appeal until the United States Supreme Court issued its decision in

Tennessee v. Lane, 124 S. Ct. 1978 (2004), on the constitutionality


                                  -8-
of Title II of the ADA insofar as it purported to abrogate Eleventh

Amendment    immunity.      The     parties   later     provided     supplemental

briefing on how Lane impacts this appeal.

                                       I.

             We review de novo the district court's grant of the

defendants' motions to dismiss and may affirm on any independently

sufficient ground.        Willhauck v. Halpin, 953 F.2d 689, 704 (1st

Cir. 1991).        The district court dismissed Badillo's Title II ADA

claims against the Commonwealth and its officials in their official

capacities on Eleventh Amendment grounds, concluding that Congress

did not validly abrogate the Commonwealth's sovereign immunity to

such claims.        167 F. Supp. 2d at 198-201.         That ruling, on these

facts, turned out to be contrary to Tennessee v. Lane, 124 S. Ct.

1978 (2004), in which the Supreme Court held that Congress did

validly      abrogate     states'     sovereign       immunity       to   certain

constitutionally-based claims under Title II of the ADA, on an as-

applied basis.       Id. at 1994.

             In Lane, the Court held that Title II of the ADA enforces

a   number    of    constitutional     rights     and    that    a   history   of

unconstitutional disability discrimination supported Congress's

enactment of prophylactic legislation.             Id. at 1988-92 (applying

the first two parts of the three-part analysis of Fourteenth

Amendment legislation created by City of Boerne v. Flores, 521 U.S.

507 (1997)).       Considering next whether Title II is an appropriate


                                       -9-
response to    the   history   and   pattern   of   unequal   treatment    of

individuals with disabilities, the Court declined to "examine the

broad range of Title II's applications all at once" and instead

concluded that the only question before it was "whether Congress

had the power under § 5 to enforce the constitutional right of

access to the courts."    Id. at 1992-93.      The Court held that Title

II's "requirement of program accessibility . . . is congruent and

proportional to its object of enforcing the right of access to the

courts" as it requires only "'reasonable modifications' that would

not fundamentally alter the nature of the service provided" and

does not require states to "undertake measures that would impose an

undue financial or administrative burden."          Id. at 1993-94.       The

court thus concluded that Title II, "as it applies to the class of

cases implicating the fundamental right of access to the courts,"

is a valid exercise of Congress's authority under § 5 of the

Fourteenth Amendment.      Here, at least one of Badillo's federal

claims implicates his right of access to the courts and thus falls

within the holding of Lane, and so is not barred by the Eleventh

Amendment.    That is his claim that during his trial he was denied

due process because there was no reasonable accommodation of his

hearing impairment.2




     2
          For present purposes, we assume arguendo               that     his
impairment rose to the level of a disability.

                                     -10-
           It does not follow, though, that Badillo is now entitled

to go forward in federal court and try to establish the merits of

that claim.     Given the decision of the Supreme Court of Puerto

Rico, this case now presents a potential and separate bar to

federal   court   jurisdiction   under   the   Rooker-Feldman   doctrine

(and/or   the   issue   preclusion   doctrine).     The   Rooker-Feldman

doctrine provides that the district courts lack jurisdiction over

any action that is effectively or substantially an appeal from a

state court's judgment.     See Wilson v. Shumway, 264 F.3d 120, 125

(1st Cir. 2001); Hill v. Town of Conway, 193 F.3d 33, 34-35 (1st

Cir. 1999).     Rooker-Feldman applies to state or territorial court

judgments to which the federal courts would accord preclusive

effect, Cruz v. Melecio, 204 F.3d 14, 21 n.5 (1st Cir. 2000), and

the federal courts "can ascribe no greater preclusive force to a

state court judgment than would the courts of that state," id. at

21.

           The law of Puerto Rico accords preclusive effect only to

judgments that are "final and unappealable," id. at 20, so "a

commonwealth court judgment cannot be accorded preclusive effect

until all available appeals have been exhausted (or the time for

taking them has expired)," id.       When the district court issued its

decision dismissing Badillo's ADA claims on September 28, 2001,

Badillo's case in the Commonwealth courts was still pending review

by the Supreme Court of Puerto Rico.           Accordingly, the lack of


                                 -11-
finality of judgment in the case at that time prevented the Rooker-

Feldman doctrine from coming into play.                 Because Puerto Rico's

highest court has since issued a final judgment, and because the

claims in this federal suit appear to be the functional equivalent

of an appeal from that judgment, we remand the case to the district

court so that it can address whether it has jurisdiction under

Rooker-Feldman.       For the same reasons, if the district court

determines that it does have jurisdiction over the suit, then it

should address the res judicata and issue preclusion effects (if

any) of the judgment by the Commonwealth's highest court.

              We remand because the issue whether the federal suit is

barred is not straightforward, nor has it adequately been briefed

to this court by the parties.            Indeed, the Commonwealth has not

raised Rooker-Feldman, but we are obliged to do so because the

Rooker-Feldman     doctrine    is     jurisdictional.         Maymo-Melendez   v.

Alvarez-Ramirez, 364 F.3d 27, 33 n.7 (1st Cir. 2004) (the Rooker-

Feldman doctrine is jurisdictional).

              It is true that the Commonwealth officer defendants were

not nominally parties in the state court proceedings.                 Cf. Perez-

Guzman   v.    Gracia,   346   F.3d    229,   238   &   n.5    (1st   Cir.   2003)

(cautioning that Rooker-Feldman may not apply where there is no

identity of parties under Puerto Rico law).               It is equally true

that the Puerto Rico Supreme Court has adjudicated the merits of

Badillo's denial of due process claim and has done so under federal


                                       -12-
due   process   standards   and    has   articulated   a   reasonable

accommodation standard essentially equivalent to the Lane standard.

We thus reject Badillo's argument that the standard used by the

Puerto Rico Supreme Court was different from the ADA standard.    We

also reject Badillo's argument that the Puerto Rico Supreme Court's

analysis was affected by its allocation of the burden of proof as

to the reasonableness of an accommodation.        Nothing about the

outcome reached by the Puerto Rico Supreme Court turned on who had

what burden of proof.

          Although we remand, we caution Badillo about whether it

is worth continuing his suit.     Whether or not the decision of the

Supreme Court of Puerto Rico precludes him from having the lower

federal courts adjudicate his claim, Badillo should be aware that

the merits of his claim have been thoughtfully received and were

found to be wanting.

                                  II.

          Badillo also appeals from the dismissal of his claims

under § 1983 against Commonwealth officials.    The only place where

this might make a difference is in his request that the defendants

be enjoined to prepare a plan to secure compliance with the ADA and

educate the public.

          It is not clear if Badillo intends this as an independent

claim or whether he wishes to pursue it at all.    If, on remand, he

pursues the claim, then a number of issues must be resolved:


                                  -13-
whether such a claim is stated under the ADA, whether Badillo has

standing, whether the Eleventh Amendment and Lane foreclose such a

claim, and others.   These issues may be addressed initially in the

district court.

                                III.

          This leaves only Badillo's appeal from the district

court's refusal to allow him to amend his complaint to add claims

under § 504 of the Rehabilitation Act.     We review the district

court's denial of leave to amend for abuse of discretion and pay

deference "to any adequate reason for the denial."    Acosta-Mestre

v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 51 (1st Cir. 1998).   We

affirm.

          Badillo filed this case on August 31, 1998.   Before the

end of 1998, the defendants had filed several motions to dismiss.

Yet Badillo waited until September 1999 to retain counsel (counsel

made his first appearance on September 29, 1999), and he did not

file the motion to amend until October 22, 1999 -- almost one month

after the court had ruled on the defendants' motions to dismiss and

more than a full year after the filing of the complaint.     Under

those circumstances, it was within the district court's discretion

to deny the belated motion to amend.      See Hayes v. New England

Millwork Distribs., Inc., 602 F.2d 15, 20 (1st Cir. 1979) (undue

delay can be a basis for denial of leave to amend).




                               -14-
                                   IV.

           The judgment of the district court dismissing the ADA

claim is vacated, the denial of the motion to amend to add a § 504

claim is   affirmed,   and   the   case   is   remanded   for   proceedings

consistent with this opinion.      No costs are awarded.




                                   -15-