United States Court of Appeals

For the First Circuit

No. 14-1297

HONORABLE BASILIO TORRES-RIVERA,

President of the Puerto Rico Industrial Commission,

Plaintiff, Appellee,

v.

ALEJANDRO GARCÍA-PADILLA, individually and as Governor of

Puerto Rico; GRACE SYLVETTE LOZADA-CRESPO, individually and as

Designated President of the Puerto Rico Industrial Commission,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Margarita L. Mercado-Echegaray, Solicitor General, Puerto Rico

Department of Justice, with whom Susana I. Peñagarícano-Brown,

Assistant Solicitor General, Puerto Rico Department of Justice, was

on brief, for appellants.

Fredeswin Pérez-Caballero, with whom Pérez-Caballero Law

Office was on brief, for appellee.

April 6, 2015
LYNCH, Chief Judge. The government of Puerto Rico

changed hands as a result of the November 2012 General Elections,

and quickly passed laws to "reorganize" different agencies. Many

of the officials displaced as a result brought suit, claiming

political discrimination and due process violations. See TorresRivera v. Garcia-Padilla, No. 14-1040, 2014 WL 357172, at *1 n.2

(D.P.R. Jan. 31, 2014) (listing cases).

This is an interlocutory appeal from one of those cases. 

It concerns the change effected by Law 180-2013, which explicitly

made the position of the Chair of the Puerto Rico Industrial

Commission ("PRIC") freely removable, and Governor Alejandro

García-Padilla's subsequent decision to remove the then-Chair,

Basilio Torres-Rivera, and to appoint a replacement. Torres-Rivera

responded almost immediately by bringing suit against GarcíaPadilla and the new PRIC Chair, Grace Sylvette Lozada-Crespo,

alleging violations of his constitutional rights under the First,

Fifth, and Fourteenth Amendments, as well as violations of Puerto

Rico constitutional and statutory law. The district court granted

a preliminary injunction based on Torres-Rivera's due process claim

that, inter alia, vacated the appointment of his replacement,

Lozada-Crespo, and reinstated Torres-Rivera.

Federal injunctive relief concerning the selection of

high-level political appointments in Commonwealth government is as

extraordinary as it is rare. Since the district court issued its

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preliminary injunction, the Supreme Court of Puerto Rico has made

clear the importance of these cases to the Commonwealth's own

constitutional balance of powers, see Díaz-Carrasquillo v. GarcíaPadilla, 2014 TSPR 75, 2014 WL 3013335 (P.R. 2014) (certified

translation provided by the parties), and the parties agree that

the relief available under Commonwealth law is adequate here. 

Accordingly, we again face the question of whether Torres-Rivera

remains entitled to federal injunctive relief for his due process

claim given the conceded adequacy of Commonwealth remedies. Cf.

Montañez-Allman v. García-Padilla, No. 13-2384 (1st Cir. Apr. 1,

2015); Acevedo-Feliciano v. Ruiz-Hernández, 447 F.3d 115, 124 (1st

Cir. 2006). In light of the extraordinariness of the relief

sought, the immense importance of this case to the Commonwealth's

own constitutional balance of powers, and Torres-Rivera's failure

to allege that Commonwealth procedure is inadequate, we remand with

instructions to vacate the preliminary injunction within thirty

days of the date of this opinion, and for further proceedings

consistent with this opinion.

I.

We summarize only the facts necessary to resolve the

appeal.

Established in 1935, the PRIC is the Puerto Rico agency

charged with reviewing decisions made by the Administrator of the

State Insurance Fund on claims for workers' compensation. The

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governor appoints the Commissioners of the PRIC with the advice and

consent of the Senate of Puerto Rico. The governor also appoints

the Chair, with the advice and consent of the Senate, who "serve[s]

simultaneously as a Commissioner and the Administrative Head of

[the] Agency." P.R. Laws Ann. tit. 11, § 8 (2010).

In May 2012, then-Governor Luis Fortuño appointed TorresRivera as Commissioner and Chair of the PRIC, and the Puerto Rico

Senate confirmed his appointment a month later.1

 At the time of

his appointment, the term of office was six years, pursuant to Law

45 of 1935, as amended through Law 141-2009.2 The parties dispute

1

 We follow the district court in using the term "Chair"

instead of "President" to be "consistent with the English

translation of the Puerto Rico law." Torres-Rivera, 2014 WL

357172, at *1 n.1.

2 Law 45, as amended and in effect in 2012, reads in relevant

part:

A Commission is hereby created, to be denominated as the

'Puerto Rico Industrial Commission,' constituted by five

(5) Commissioners appointed by the Governor with the

advice and consent of the Senate of Puerto Rico, who

shall be attorneys-at-law duly admitted to the bar in

Puerto Rico. The Governor, with the advice and consent

of the Senate, shall designate the Chair, who shall serve

simultaneously as a Commissioner and the Administrative

Head of this Agency, who shall set forth and administer

the public policy with discharge rulemaking authority or

to delegate such authority. In order to carry out this

task, he/she shall preside and direct the functions of

the Commissioner panel, whose appointments shall have an

effective term of six (6) years.

Commissioners shall remain in office until their

successors are legally designated and take office.

P.R. Laws Ann. tit. 11, § 8 (2010).

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whether this six-year term attached to a joint position of Chairand-Commissioner, jointly to both positions, or only to the

position of Commissioner.

When García-Padilla became Governor following the

November 2012 General Elections, a series of laws were enacted "to

usher the Governor's political supporters into office." TorresRivera, 2014 WL 357172, at *1. One of these, Law 180-2013, made

the PRIC Chair a freely removable position, arguably eliminating

the six-year term that the position may have had. By letter dated

January 11, 2014, García-Padilla notified Torres-Rivera of this

change. García-Padilla's letter also informed Torres-Rivera that

he could continue on as Commissioner, but that a new Chair had been

appointed. Less than a week later, Torres-Rivera filed suit in

federal district court against García-Padilla and the new Chair,

Lozada-Crespo, seeking declaratory and injunctive relief as well as

damages under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201-02, the Puerto

Rico constitution, and Commonwealth law.

The district court found that Torres-Rivera was likely to

succeed on his due process claim, reasoning that he had been

deprived of his property interest in continuing as PRIC Chair for

the six-year term to which he had been appointed. The district

court issued a preliminary injunction on this basis that:

(1) vacated Lozada-Crespo's appointment as Chair and Commissioner;

(2) ordered that Torres-Rivera be "maintain[ed]" as Chair and

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Commissioner; and (3) enjoined Torres-Rivera's removal from his

position as Chair and Commissioner without due process. This

appeal followed.

II.

The parties vigorously dispute several points of

Commonwealth law that they argue are relevant to the question of

whether Torres-Rivera had a property interest in the position of

Chair, and, if so, whether that interest survived Law 180.3

 They

also dispute both the applicability and the authority of the Puerto

Rico Supreme Court's decision in the related case of DíazCarrasquillo v. García-Padilla, 2014 TSPR 75, 2014 WL 3013335 (P.R.

2014).

We need not and will not adjudicate these disputes. 

Reinstatement is an equitable remedy, and, even if available, is

not inevitable. Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,

321 (1st Cir. 1989) (en banc) (noting that reinstatement must be

"tailor[ed] . . . on a case by case basis"). The parties agreed at

oral argument that the relief available in Commonwealth court is

adequate, and so we must consider whether the rather extraordinary

3 In particular, they disagree as to whether the position of

Chair is a separate position from that of Commissioner, which they

argue is relevant to whether the six-year term attached to one or

both, or could have been abolished as to one but not the other. 

They also disagree as to whether the nature of the PRIC Chair is

quasi-judicial or purely executive, again relevant to the validity

of any term and removal limitations that could create a property

interest.

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federal injunctive relief reinstating a Commonwealth political

appointment and removing the now-reinstated appointee's replacement

remains appropriate. See Montañez-Allman, No. 13-2384; cf. El Dia,

Inc. v. Hernandez-Colon, 963 F.2d 488, 496-98 (1st Cir. 1992)

("[E]quitable remedies should be granted only as a matter of

judicial discretion . . . ." (citation and internal quotation marks

omitted)).

When we last resolved this issue in Montañez-Allman, we

observed that "in determining entitlement to federal relief for due

process violations, a relevant consideration is the adequacy of

'existing state remedies.'" Montañez-Allman, No. 13-2384 (quoting

Acevedo-Feliciano, 447 F.3d at 124). We explained that this is

particularly true where, as here, the relief sought implicates

comity concerns, but is not "necessary to prevent great and

irreparable injury." Id. (quoting Mass. State Grange v. Benton,

272 U.S. 525, 527-29 (1926) (Holmes, J.)) (internal quotation marks

omitted); see also Rosario-Torres, 889 F.2d at 323 (urging caution

"[i]n shaping equitable remedies, [where] comity concerns can loom

large"); cf. R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500-

01 (1941) (holding that federal courts must "exercis[e] a wise

discretion" in administering equitable relief to "avoid[] . . .

needless friction with state policies" (citations and internal

quotation marks omitted)). Relying on such comity considerations

and the discretion inherent in equitable relief, we found that

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federal equitable relief was no longer appropriate given the

importance of the case to the Commonwealth's constitutional balance

of powers and the adequacy of relief that had become available

under the Puerto Rico Supreme Court's decision in DíazCarrasquillo. See Montañez-Allman, No. 13-2384 (finding

"applicable" Justice Holmes's "'important rule'" that injunctive

relief "'ought [not] issue against officers of a State . . . unless

in a case reasonably free from doubt and when necessary to prevent

great and irreparable injury'" (alteration in original) (quoting

Mass. State Grange, 272 U.S. at 527-29)).

The parties believe that this presents a different case

from both Montañez-Allman and Díaz-Carrasquillo. Superficially,

they are correct: Montañez-Allman and Díaz-Carrasquillo present 

"abolishment" cases, concerning limits on the legislature's ability

to effect a removal by "destroying" an executive office only to reestablish it under a new name, and the survival of a property

interest in the "destroyed" office as a property interest in the

"new" office. By contrast, this case, Torres-Rivera, appears to

present a "removal" case, concerning limits on the legislature's

ability to destroy a property interest in an office (assuming there

was such an interest) by lifting whatever removal limitations

created the property interest in the first place. Cf. Santana v.

Gobernadora, 165 P.R. Dec. 28, 2005 WL 1489094 (P.R. 2005)

(certified translation provided by the parties) (stating the

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principle that where there is no mandatory time period, there is no

proprietary interest).4

But despite these superficial differences, these cases

are similar in one significant respect: they implicate questions

concerning the limitations on the Legislative Assembly's "power to

create, consolidate or reorganize executive departments" that are

important to Puerto Rico's own constitutional balance of powers. 

P.R. Const. art. III, § 16. That is, these cases ask the federal

courts to referee a political dispute about Puerto Rico's

constitutional limitations on structural changes to high-level

political appointments. This we will not and need not do. Cf. El

Dia, 963 F.2d at 497 ("Simply because an equitable remedy may be

available does not necessarily mean that it must automatically

issue.").

Comity concerns are particularly compelling on the facts

of this case. Because the very existence of continuing property

interests in these high-level political appointments implicates

4 It must be emphasized that, to the extent that legislative

actions succeed in destroying property interests, there can be no

federal due process claim. It is well settled that "no due process

violation occurs when 'the legislature which creates a statutory

entitlement (or other property interest) . . . alter[s] or

terminat[es] the entitlement by subsequent legislative enactment.'" 

Correa-Ruiz v. Fortuño, 573 F.3d 1, 14 (1st Cir. 2009) (alteration

in original) (quoting Gattis v. Gravett, 806 F.2d 778, 780 (8th

Cir. 1986)); see also id. at 14-15 (collecting cases). That aspect

of our decision in Díaz-Carrasquillo v. García-Padilla, 750 F.3d 7,

11 (1st Cir. 2014), remains good law. Stronger procedural

protections may be required by the Commonwealth than under federal

law, but that issue is not before us.

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these difficult Commonwealth constitutional questions, the

authority to remove these officials -- and so the necessity of predeprivation procedures -- may be obscure prior to litigation. Cf.

S. Commons Condo. Ass'n v. Charlie Arment Trucking, Inc., 775 F.3d

82, 85-86 (1st Cir. 2014) (recognizing that, "in some

circumstances," an "after-the-fact remedy" under state law may be

adequate). Where, as here, the parties not only fail to allege

that Commonwealth law provides inadequate post-deprivation relief,

but agree that Commonwealth remedies would be adequate, comity

requires that we decline to interfere on procedural due process

grounds. See Montañez-Allman, No. 13-2384; Rumford Pharmacy, Inc.

v. City of E. Providence, 970 F.2d 996, 999-1000 & n.6 (1st Cir.

1992); cf. San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687

F.3d 465, 480-81 (1st Cir. 2012) (en banc).

Accordingly, we remand to the district court with

instructions to vacate the preliminary injunction within thirty

days of the date of this opinion (to provide time to file suit in

Commonwealth court), to dismiss without prejudice Torres-Rivera's

due process claim, to resolve Torres-Rivera's First Amendment

claim, and, if dismissed, to decline pendent jurisdiction over the

remaining Commonwealth claims. Cf. Desjardins v. Willard, 777 F.3d

43, 45-46 (1st Cir. 2015) (discussing standards for exercise of

supplemental jurisdiction).

So ordered. No costs are awarded.

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