Watchtower Bible & Tract Society of New York, Inc. v. Colombani , 712 F.3d 6 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1370
WATCHTOWER BIBLE AND TRACT SOCIETY
OF NEW YORK, INC. ET AL.,
Plaintiffs, Appellants,
v.
GUILLERMO SOMOZA COLOMBANI ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Paul D. Polidoro, with whom Gregory Allen, Associate General
Counsel, Legal Department, and Nora Vargas Acosta, were on brief
for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Luis R. Román-Negrón, Solicitor
General, was on brief for appellees.
April 1, 2013
SELYA, Circuit Judge. With only limited exceptions, the
federal judicial system bans piecemeal review of trial court
decisions. This policy is grounded in considerations of efficiency
and the proper allocation of overtaxed judicial resources. Courts
of appeals must police these boundaries with vigilance. This is
such an occasion.
This appeal arises out of an order dismissing officials
of the Commonwealth of Puerto Rico (collectively, the Commonwealth
defendants) as parties in a nuanced First Amendment case.
Concluding, as we do, that the appeal has been brought prematurely,
we dismiss it for want of appellate jurisdiction. The tale
follows.
I. BACKGROUND
This is our second intervention in this tangled matter.
The architecture of the case is delineated in our earlier opinion
in Watchtower Bible & Tract Society of New York, Inc. v. Sagardía
de Jesús (Watchtower I), 634 F.3d 3, 6-8 (1st Cir. 2011), and we
assume the reader's familiarity with that opinion. We rehearse
here only those events that are necessary to place this appeal into
perspective.
Puerto Rico has taken a unique approach to the creation
of gated communities. Its Controlled Access Law (CAL), P.R. Laws
Ann. tit. 23, §§ 64-64h, authorizes gated communities, called
"urbanizations," which — unlike gated communities elsewhere — may
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control access to public streets within their confines. See
Watchtower I, 634 F.3d at 6. Once created, urbanizations are run
by homeowners' associations. A homeowners' association may
regulate access by erecting fences or barriers with gates (manned
or unmanned) for entry and egress. See id.
Although the framework for creating urbanizations derives
from the CAL, the affected municipalities — not the Commonwealth —
are the source of permission to establish and operate particular
urbanizations: "each municipality after a public hearing makes the
decision whether to approve a permit application" for a specific
urbanization. Id. at 7. The Commonwealth "does not direct the
municipalities or urbanizations in their implementation of
permits." Id. at 7 n.4.
In a sense, the CAL is a contradiction in terms. The
streets within urbanizations remain public, and any restrictions
imposed by a homeowners' association "shall not prevent or hinder
residents from outside the community to use and enjoy sports,
recreational and other community installations, nor from obtaining
the services of private institutions such as schools, churches,
hospitals, civic clubs and others, located in the community." P.R.
Laws Ann. tit. 23, § 64b(e).
In 2004, the appellants Watchtower Bible and Tract
Society of New York, Inc. and Congregación Cristiana de los
Testigos de Jehová de Puerto Rico, Inc. brought suit under 42
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U.S.C. § 1983, alleging that the controlled access regime
unconstitutionally impeded their ability to pursue "a religious
duty to share the Bible's message publicly and to proselytize from
house to house." Watchtower I, 634 F.3d at 6. The suit,
originally brought against the Commonwealth defendants,1 was soon
expanded to include thirty-three municipalities and urbanizations
as additional defendants.
In Watchtower I, we determined that the CAL was
constitutional on its face. Id. at 12. We also determined,
however, that some municipalities and urbanizations were applying
the law in ways that bore "unreasonably on Jehovah's Witnesses'
access to public streets." Id. at 13. Consequently, we remanded
the case to the district court "to take prompt action to bring the
municipalities and urbanizations into compliance." Id. at 17.
Some municipal defendants sought rehearing. We rejected
those requests and, in so doing, clarified the import of Watchtower
I. See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Sagardía de
Jesús, 638 F.3d 81 (1st Cir. 2011) (order denying rehearing).
Pertinently, we explained:
Without resolving claims against any specific
municipality or urbanization, this court held
[in Watchtower I] that further proceedings
1
The Commonwealth defendants, appellees here, are the
Governor of Puerto Rico, the Secretary of Justice, the Commissioner
of the Planning Board of Puerto Rico, and the Executive Director of
the Office of Permit Management (formerly the Administrator of
Regulations and Permits).
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were required and outlined in skeleton form
the principles that should guide the district
court in structuring injunctive relief if and
where it turned out to be appropriate.
. . . .
. . . [T]he panel made no determination as to
the accuracy or typicality of obstructions to
access alleged against any particular
municipality or urbanization, and any
municipality or urbanization is free on remand
to urge that it did not improperly bar access
or discriminate.
. . . [T]he panel decision made no
determination as to how far municipalities
themselves — by virtue of their permitting
activities, possible involvement with
exclusionary acts, or other entanglements —
might properly be subject to injunctive relief
or any other remedy.
Id. at 83.
On January 31, 2012, the district court held a remand
hearing. The Commonwealth defendants noted that the
constitutionality of the CAL had been upheld in Watchtower I and,
on that basis, insisted that they should play no role in further
proceedings. The district court expressed agreement with this
view, concluding that it would serve no useful purpose for the
Commonwealth defendants to remain as parties "at this time" and
that the action against them should be dismissed. The next day,
the court issued a declaratory judgment order (the Order) in which
it formulated a plan for relief involving the municipal defendants
and memorialized the dismissal of the Commonwealth defendants.2
2
We say "memorialized" because the record reveals that the
district court came to its decision about the dismissal of the
Commonwealth defendants during the remand hearing.
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The appellants filed a notice of appeal. They also
requested reconsideration of that portion of the Order that
dismissed the Commonwealth defendants. After receiving briefs, the
district court reaffirmed its original decision to dismiss the
Commonwealth defendants. It explained that the case "only
involve[d] as defendants several municipalities and their
controlled access urbanizations," so that "the remedy this district
court can issue . . . is not island-wide, but rather limited to the
parties to this case." It added, however, that the dismissal was
without prejudice and that "if circumstances should change
requiring the presence of the Commonwealth, the court in the future
will revisit the issue."
II. DISCUSSION
"Federal courts, as courts of limited jurisdiction, may
not presume the existence of subject matter jurisdiction, but,
rather, must appraise their own authority to hear and determine
particular cases." Cusumano v. Microsoft Corp., 162 F.3d 708, 712
(1st Cir. 1998). "When a colorable question exists, an appellate
court has an unflagging obligation to inquire sua sponte into its
own jurisdiction." Charlesbank Equity Fund II v. Blinds to Go,
Inc., 370 F.3d 151, 155-56 (1st Cir. 2004). As such, "we have
jurisdiction to determine the existence and extent of our own
subject-matter jurisdiction." Subsalve USA Corp. v. Watson Mfg.,
Inc., 462 F.3d 41, 44 (1st Cir. 2006).
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In the appellants' opening brief, they asserted that
appellate jurisdiction existed because the Order was "final" within
the purview of 28 U.S.C. § 1291. Doubting this premise, we issued
a pre-argument order requiring supplemental briefing on the
jurisdictional point. By the time of oral argument, the appellants
had proposed three jurisdictional theories: first, that the Order
was appealable as a final judgment; second, that it was appealable
as a declaratory judgment; and third, that it had the practical
effect of denying injunctive relief and was, therefore,
interlocutory but immediately appealable. The Commonwealth
defendants, who had not previously questioned appellate
jurisdiction, contended in their supplemental brief that no
jurisdiction existed.3
We consider each of the appellants' jurisdictional
theories in turn.
A. Final Judgment.
28 U.S.C. § 1291 vests courts of appeals with
jurisdiction over "appeals from all final decisions of the district
courts." "Ordinarily, a judgment is final (and, thus, appealable
3
That the position taken by the Commonwealth defendants
represents a deathbed conversion is of no consequence; "[o]rdinary
raise-or-waive rules do not apply with respect to claims that a
court lacks subject matter jurisdiction." Cabán Hernández v.
Philip Morris USA, Inc., 486 F.3d 1, 5 (1st Cir. 2007). In any
event, we would have an obligation to pursue the jurisdictional
inquiry even if the Commonwealth defendants acquiesced in the
appellants' claim of jurisdiction. See Charlesbank Equity Fund II,
370 F.3d at 155-56.
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under [section 1291]) only if it conclusively determines all claims
of all parties to the action." Nichols v. Cadle Co., 101 F.3d
1448, 1449 n.1 (1st Cir. 1996) (per curiam).
In this instance, the Order plainly did not resolve all
claims against all parties. The district court, after issuing the
Order, is continuing to engage in the complicated task of custom-
tailoring remedies for particular urbanizations in particular
municipalities. This is intricate work: the municipal defendants
have not displayed a uniform approach to the permitting of
urbanizations, and the urbanizations themselves have disparate
features. The very existence of these ongoing proceedings in the
district court is a clear indication that the Order cannot
realistically be regarded as final.
This view of the Order makes sense. Were we to hold
otherwise, we would trigger the unseemly spectacle of two courts
competing simultaneously for the parties' attention. This would
offend basic tenets of judicial administration: "[t]he filing of a
notice of appeal is an event of jurisdictional significance — it
confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case
involved in the appeal." Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (per curiam). Consequently, in the
ordinary course "a federal district court and a federal court of
appeals should not attempt to assert jurisdiction over a case
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simultaneously." Id. This paradigm "derives from the notion that
shared jurisdiction almost always portends a potential for conflict
and confusion." United States v. Brooks, 145 F.3d 446, 456 (1st
Cir. 1998). "Allowing more than one court to take charge of a case
at any given moment often disserves the interests of comity and
judicial economy." Id.The appellants attempt to justify concurrent jurisdiction
here by invoking 28 U.S.C. § 2202, which authorizes "[f]urther
necessary or proper relief based on a declaratory judgment or
decree . . . against any adverse party whose rights have been
determined by such judgment." They argue that simultaneous trial
and appellate court jurisdiction may flourish in such a situation.
See, e.g., United Teacher Assocs. Ins. Co. v. Union Labor Life Ins.
Co., 414 F.3d 558, 572-73 (5th Cir. 2005); Burford Equip. Co. v.
Centennial Ins. Co., 857 F. Supp. 1499, 1502-03 (M.D. Ala. 1994).
But section 2202 does not magically imbue a nonfinal order with an
aura of finality, nor does it somehow create appellate jurisdiction
where none exists.
That ends this aspect of the matter. We conclude,
without serious question, that this court lacks appellate
jurisdiction, here and now, under 28 U.S.C. § 1291.44
To be sure, the appellants might have pursued an immediate
appeal had they requested and received a certified partial final
judgment under the procedural rule that allows a district court to
"direct entry of a final judgment as to one or more, but fewer than
all, claims or parties." Fed. R. Civ. P. 54(b); see Nystedt v.
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B. Declaratory Judgment.
The appellants' next claim of appellate jurisdiction is
easily dispatched. They suggest that declaratory judgments are
automatically appealable when issued. That suggestion is
unfounded: the Declaratory Judgment Act, 28 U.S.C. § 2201, simply
is not a grant of jurisdiction. See Progressive Consumers Fed.
Credit Union v. United States, 79 F.3d 1228, 1230 (1st Cir. 1996);
McCarthy v. Marshall, 723 F.2d 1034, 1036-37 (1st Cir. 1983). That
statute "merely defines the scope of available declaratory relief."
McCarthy, 723 F.2d at 1037. Seen in this light, section 2201
cannot itself create a basis for appellate jurisdiction.
At any rate, this argument is a red herring. The
appellants are not seeking review of the declaratory portion of the
Order. Rather, they seek review of the portion of the Order
memorializing the dismissal of the Commonwealth defendants. The
fact that this occurred simultaneously with the entry of a
declaratory judgment does not through some mysterious alchemy
transform the dismissal into a declaratory judgment. Cf. William
Shakespeare, Romeo and Juliet act 2, sc. 2 ("What's in a name?
[T]hat which we call a rose [b]y any other name would smell as
sweet . . . .").
Nigro, 700 F.3d 25, 29 (1st Cir. 2012). Here, however, the
appellants did not seek a certification under Rule 54(b), nor did
the district court issue one.
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C. Practical Effect.
We come now to the appellants' most robust jurisdictional
argument. They assert that because they sought injunctive relief
in their complaint, the Order had the practical effect of denying
an injunction. This is potentially significant because 28 U.S.C.
§ 1292(a)(1) confers jurisdiction over appeals from
"[i]nterlocutory orders of the district courts . . . granting,
continuing, modifying, refusing or dissolving injunctions."
As an exception to the finality principle, section
1292(a)(1) "must be strictly construed." Morales Feliciano v.
Rullan, 303 F.3d 1, 6 (1st Cir. 2002). "Doubts as to [its]
applicability . . . are to be resolved against immediate
appealability." Id. at 7.
Orders explicitly denying injunctive relief are
immediately appealable under section 1292(a)(1) without further
inquiry. See Anderson v. City of Boston, 244 F.3d 236, 238 (1st
Cir. 2001). Here, however, the Order does not explicitly deny
injunctive relief. When an order does not explicitly deny
injunctive relief, the right to an immediate appeal depends on
whether the putative appellant can make three showings. First, the
putative appellant must show that the lower court's action had the
practical effect of denying injunctive relief. See Carson v. Am.
Brands, Inc., 450 U.S. 79, 83-84 (1981); Fideicomiso de la Tierra
del Caño Martín Peña v. Fortuño, 582 F.3d 131, 133-34 (1st Cir.
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2009) (per curiam). Second, the putative appellant must show that
the refusal of injunctive relief will cause serious (if not
irreparable) harm. See Carson, 450 U.S. at 84; Anderson, 244 F.3d
at 238; Kartell v. Blue Shield of Mass., Inc., 687 F.2d 543, 551
(1st Cir. 1982); see also Gardner v. Westinghouse Broad. Co., 437
U.S. 478, 480-82 (1978). Third, and finally, the putative
appellant must show that the order can effectively be challenged
only through an immediate appeal. See Carson, 450 U.S. at 84;
Fideicomiso de la Tierra, 582 F.3d at 133. If any of these three
showings fails, section 1292(a)(1) is not triggered. See Carson,
450 U.S. at 84; Fideicomiso de la Tierra, 582 F.3d at 133.
In this instance, the appellants cannot satisfy the first
requirement. Thus, our inquiry stops there.
The foreclosure of injunctive relief about which the
appellants complain is relatively narrow — the denial of a
permanent injunction directed specifically at the Commonwealth
defendants. But the district court has made pellucid that it has
not foreclosed the possibility of such injunctive relief. At the
remand hearing the court deferred the issue, observing that if
injunctive relief became a desirable feature of a remedial plan, it
would advise the parties and hold an evidentiary hearing.
Similarly, in its order on reconsideration (which affirmed the
dismissal of the Commonwealth defendants), the court emphasized
that it was leaving the door open for possible future relief
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against the Commonwealth defendants. Consistent with this
emphasis, the district court's dismissal of the Commonwealth
defendants operates without prejudice, and the Commonwealth
defendants acknowledge that they may be required at a later date to
reenter the fray.
The district court has made a considered choice about how
to proceed.5 Recognizing the pivotal role of the municipalities in
the permitting process and the idiosyncracies of the urbanizations
that dot the landscape, it is endeavoring to effectuate
constitutionally compliant access on a municipality-by-municipality
basis. Ancillary to this choice, the court has dismissed the
Commonwealth defendants provisionally but it has not ruled out an
injunction against them (or others) should such relief prove useful
in fashioning appropriate remediation.
The upshot is that the appellants have not demonstrated
that the order of dismissal has the practical effect of refusing
injunctive relief. It follows inexorably that section 1292(a)(1)
does not supply a hook on which the appellants can hang
jurisdiction. See Fideicomiso de la Tierra, 582 F.3d at 133-34.
D. A Loose End.
During earlier stages of this litigation, questions arose
as to what role, if any, the Commonwealth police may play in
5
Because we have no jurisdiction to reach the merits of this
case, we take no view as to the appropriateness of that choice.
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ameliorating the asserted harm. To distill the dispute to its bare
essence, the appellants claim that the Commonwealth police refuse
to assist Jehovah's Witnesses in gaining constitutionally required
access to urbanizations; the Commonwealth defendants counter that
the Commonwealth police stand ready to provide such assistance. At
the remand hearing, the district court ordered the Commonwealth
defendants to bring the decision in Watchtower I to the attention
of the Governor, the Attorney General, and the Police
Superintendent. It directed those three officials to notify the
district court within thirty days "that they have read [the
Watchtower I opinion] and they will take all necessary measures to
enforce this, if there would be any violation."
At oral argument in this case, the Commonwealth
defendants vouchsafed that the three officials had been apprised of
Watchtower I as required. They conceded, however, that no
certification of this fact had been made to the district court.
They also conceded that none of the three officials had made the
desired assurances to the district court. We instructed the
parties to confer about this irregularity and to report in due
course to the court below. We are confident that the district
court, which is continuing to exercise jurisdiction over the case
as a whole, will take appropriate steps with respect to this
matter.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
we dismiss the appeal, without prejudice, for lack of jurisdiction.
Dismissed.
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