Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 07-2700

PUERTO RICANS FOR PUERTO RICO PARTY; NELSON ROSARIO-RODRÍGUEZ,

Electoral Commissioner of the Puerto Ricans for Puerto Rico

Party,

Plaintiffs, Appellants,

v.

JUAN DALMAU, Electoral Commissioner of the Puerto Rican

Independence Party; PUERTO RICAN INDEPENDENCE PARTY; GERARDO

CRUZ-MALDONADO, Electoral Commissioner of the Popular Democratic

Party; EDWIN MUNDO-RIOS, Electoral Commissioner of the New

Progressive Party; RAMÓN E. GÓMEZ-COLÓN, President of the

Commonwealth Elections Commission; WALTER VÉLEZ, Secretary of the

Commonwealth Elections Commission,

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,

Selya, Circuit Judge,

and Schwarzer, District Judge. *
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Juan José Nolla Acosta with whom Nelson Rosario-Rodríguez was

on brief for appellants.

Jorge Martínez-Luciano for appellee Gerardo Cruz-Maldonado,

and Ramon L. Walker-Merino for appellee Walter Vélez, with whom Law

Offices of Pedro Ortiz Alvarez, PSC was on brief.

October 6, 2008
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LYNCH, Chief Judge. This suit alleges abuse and uneven

application of certain electoral processes in Puerto Rico. The

plaintiffs are the Puerto Ricans for Puerto Rico Party, now a

recognized party in the Commonwealth of Puerto Rico, and its

Electoral Commissioner, Nelson Rosario-Rodríguez (collectively,

"PPR" or "plaintiffs"). In September 2007, they brought suit in

federal court under, inter alia, 42 U.S.C § 1983 against the Puerto

Rico Commonwealth Electoral Commission ("Commission"), its

Commissioners, and another political party. 

The suit challenges the Commission's treatment of

signatures submitted by the Puerto Rican Independence Party ("PIP")

in December 2004 to the Commission. The signatures were submitted

in furtherance of PIP’s effort to maintain its status as a

recognized political party in the Commonwealth by becoming a "party

by petition" after PIP failed to maintain its status as a

"principal party" because of an insufficient showing in the

November 2004 gubernatorial election. See P.R. Laws Ann. tit. 16,

§ 3101(1). Under Puerto Rican law, the Commission is "responsible

for planning, organizing, structuring, directing and supervising

the electoral body and all electoral procedures that govern any

election to be held in Puerto Rico." Id. § 3013. The Commission

thereby controls the conduct of elections and party certification

in Puerto Rico. The Commission also has "original

jurisdiction . . . to consider, take cognizance of and resolve any
-4-

matter or controversy of an electoral nature," id. § 3015, and so

exercises significant authority over the adjudication of electoral

disputes. In 2004, the three principal parties, including the PIP,

controlled the Commission because they were the only recognized

island-wide parties at the time of the 2004 election. PPR's suit

alleges that the Commission impermissibly favored the PIP and

disfavored the PPR in the matters raised in this federal case. 

The district court concluded that PPR was essentially

attempting to re-litigate the same challenge to PIP's attainment of

party by petition status that had already been determined in 2006

by the Supreme Court of Puerto Rico. Partido Acción Civil v.

Partido Independentista Puertorriqueño (PAC v. PIP), 2006 TSPR 193

(P.R. 2006). The district court dismissed the complaint on the

bases of the Rooker-Feldman and res judicata doctrines and awarded

fees against PPR. Puerto Ricans for P.R. Party v. Dalmau, 517 F.

Supp. 2d 604 (D.P.R. 2007). In so holding, the court relied on an

untranslated Spanish language version of the Puerto Rico Supreme

Court opinion. On appeal, we have been provided with an English

version of that opinion. After review of the English translation,

we conclude the district court should not have dismissed the case

or awarded fees. We vacate and remand for further proceedings.
The President of the Commission, who serves as its 1

Executive Officer, is nominated by the party whose candidate for

Governor obtained the most votes in the immediately preceding

elections. P.R. Laws Ann. tit. 16, § 3005. The Electoral

Commissioners then vote on the proposed candidate. Id. 

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I.

We give some pertinent background facts which are

undisputed and are needed to understand the issues in the case. We

also draw inferences in plaintiffs' favor, as the case was

dismissed on the allegations of the complaint. 

A. The November 2004 Election

This litigation has its historic origins in the November

2, 2004 elections in Puerto Rico for local, Commonwealth, and

federal offices. But the litigation itself concerns PPR’s

allegations in the wake of that election that PIP likely committed

fraud in submitting signatures on petitions to re-register, abetted

by the irregular and differential procedures used by the

Commission.

Every official political party in Puerto Rico is entitled

to an Electoral Commissioner seat on the Commission. The Electoral

Commissioner acts as a party representative. The President of the

Commission and the Electoral Commissioners together comprise the 1

Commission's voting members. Political parties may attain official

recognition (and therefore a seat on the Commission) through

several processes. Under Puerto Rican law, a political party that

obtains more than 5% of the gubernatorial vote cast in the election
-6-

becomes one of the "principal parties" of Puerto Rico. P.R. Laws

Ann. tit. 16, § 3101(1) (defining principal party).

Becoming a principal party is important because principal

parties are automatically placed on the ballot for the next election

and are entitled to additional offices within the Commission. The

three parties obtaining the largest number of votes in the previous

election are each entitled to a seat as a Vice-President of the

Commission, who has a voice but no vote. See id. § 3005. Under the

supervision of the President, the Vice-Presidents help oversee and

carry out the work of the Commission. See id. § 3007. The VicePresidents are paid by the Commonwealth and are entitled to support

staff. Id. § 3005. Parties are also entitled to use Commonwealth

resources for their campaign expenses. Id. § 3114. 

A party may also become a principal party if it obtains

3% of the straight-ticket ballots or 7% of the party symbol vote

cast on the gubernatorial ballot. Id. § 3101(1). If the party

fails to meet any of these requirements, it can alternatively

register as a "party by petition." To become a party by petition,

the party must register on or before June 1 of the election year by

filing notarized petitions containing voters' signatures in a number

equal to no less than 5% of the total votes cast for governor in the

previous election. Id. § 3101(3). Each petition must be signed and

sworn to before a notary public and filed with the Commission within

seven days after notarization. Id. §§ 3101(3), 3102. 
Defendant Juan Dalmau is the Electoral Commissioner of 2

PIP; Defendant Gerardo Cruz-Maldonado is the Electoral Commissioner

of PDP; Defendant Edwin Mundo-Rios is the Electoral Commissioner of

NPP; Defendant Ramón E. Gómez-Colón is President of the Commission;

and Defendant Walter Vélez is the Secretary of the Commission. Of

the five Defendants, only Cruz-Maldonado of PDP and Vélez ever

appeared. PIP never appeared.

-7-

At the time of the 2004 election, the Popular Democratic

Party ("PDP"), the New Progressive Party ("NPP"), and PIP were the

three principal parties. PIP, with the Commission and its officers,

collectively are the defendants here. By contrast, PPR, the 2

plaintiff here, had not then become an official party and therefore

had no representation on the Commission. Rather, during the time

preceding the November 2004 election and continuing during the

Commonwealth court litigation from 2004 to 2006 (described below),

supporters of what would become the recognized PPR party were

members of at least two "citizen associations," the first known as

the Civil Action Party ("CAP") and the second also known as PPR (a

predecessor organization to the plaintiff in the instant suit). The

PPR itself was not formally recognized as a political party until

May 2007.

As said, PIP's gubernatorial candidate obtained only 2.67%

of the vote in the 2004 election, thereby failing to meet the

statutory requirements to maintain PIP's status as a principal

party. The election between the top two candidates for governor,

however, resulted in a recount that was not resolved until December

2004. A party which fails to maintain its status as a party
PPR also recounts its view that by allowing PIP to 3

register beginning in November 2004, the Commission permitted PIP

to use computers and equipment belonging to the Commission,

including providing access to the master voting records for Puerto

Rico.

-8-

altogether must return any equipment or property of the Electoral

Fund to the Commission. P.R. Laws Ann. tit. 16, § 3118.

On November 5, 2004, PIP submitted a letter to the

Commission informing the Commission that it had failed to obtain

enough votes to retain its status as a principal party and

requesting authorization to re-register for the 2008 election

through the party by petition process. On November 7, 2004, the

Electoral Commissioners of PDP, NPP, and PIP met and authorized PIP

to commence gathering signatures to register as a party by petition

for the 2008 election. 

PPR's core allegation is that the Commission's actions

facilitated, accepted, and helped to cover up likely fraud by the

PIP in conducting its re-registration, thus favoring the PIP while

taking actions disfavoring the PPR. PPR's complaint alleges PIP 3

represented that it had gathered 43,000 signatures during the

weekend of November 12-14, 2004 despite a massive rainstorm in

Puerto Rico that led the Commonwealth to declare a state of

emergency. PPR alleges that the onerous administrative tasks

associated with verifying the petitions means that PIP could not

have obtained so many petitions in those few days without "emptying

the lists." "Emptying the lists" appears to be a reference to a
-9-

fraudulent use of master voter lists retained by the Commission,

which "include[] every data item about every voter" to copy the

signatures of voters. PPR alleges that "it is physically impossible

to gather and process as many signatures as PIP claims to have

. . . processed in those three days" and therefore concludes that

"[t]he PIP did not gather enough valid signatures to become a

registered party."

PPR contends that because PIP was given access to the

Commission's master voting records, which contain voters'

signatures, PIP likely exploited this opportunity to falsify

petitions by copying those signatures. Although PPR requested

access from the Commission to PIP's petitions in order to have the

signatures evaluated by an expert, the Commission "stonewalled" and

did not give PPR such access.

We describe below the later events involving the

Commission that led to this filing of this lawsuit, including

allegations of direct harm resulting to the PPR. We pause to

describe the interim litigation in the Commonwealth courts. 

B. Litigation in the Commonwealth Courts 

We provide a brief background of the proceedings in the

Commonwealth courts as outlined in the December 2006 Puerto Rico

Supreme Court decision in PAC v PIP. 

Puerto Rican law provides a procedure for reviewing

Commission decisions in the Puerto Rico courts. P.R. Laws Ann. tit.
That initial case was docketed as KPE 04-3481 in the 4

Court of First Instance. The Court of First Instance initially

determined that CAP needed first to exhaust its administrative

remedies before seeking review by the court and dismissed the

complaint. Following CAP's motion for reconsideration, the Court

of First Instance agreed to address only the claims regarding equal

treatment and use of public funds, as the remaining issues in the

electoral review in the other Commonwealth case. 

The predecessor group PPR initially was a party in the 5

second Court of First Instance matter but withdrew its claim after

the court found a conflict of interest because CAP and PPR were

represented by the same attorneys. There is no evidence in the

record as to whether the dismissal was without prejudice. 

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16, § 3016a. Sometime in November 2004 after the election, CAP and

PPR filed suit in Puerto Rico's Court of First Instance, Superior

Part of San Juan, requesting the repeal of the Commission's decision

authorizing the PIP to seek re-enrollment. The complaint also

sought an injunction to forbid PIP from using public funds in the

re-registration drive. That initial Commonwealth court suit4

ultimately resulted in a preliminary injunction on December 2, 2004

ordering PIP to cease its use of public funds and use of almost all

equipment purchased or leased with Electoral Fund subsidies.

CAP also filed another complaint on November 22, 2004, 5

docketed as KPE-04-3623, challenging the Commission's authorization

of PIP's re-registration, a case which ultimately reached the Puerto

Rico Supreme Court and resulted in the December 2006 PAC v. PIP

opinion. The Court of First Instance determined that the issue

presented was whether the Commission had violated Section 8.3 of the

Regulation of Enrollment of Parties by Petition, which prohibits
-11-

registration as a party by petition prior to December 31 in an

election year. The Court of First Instance affirmed the finding of

the Commission, concluding that it had validly interpreted its

regulations. The Puerto Rico Intermediate Appeals Forum then

affirmed the ruling on the regulation issued by the Court of First

Instance.

Finally, on December 29, 2006, the Puerto Rico Supreme

Court reviewed and affirmed the appeals court's decision on

certiorari. PAC v. PIP, 2006 TSPR 193. It upheld the appeals

court's refusal to consider claims outside of those related to the

Commission's compliance with the regulation, since these were the

only issues properly before the Court of First Instance. More

specifically, the Puerto Rico Supreme Court considered Section 8.3

of the Regulation of Enrollment of Parties by Petition and found

that even if the Commission had violated its own regulation in

authorizing the re-registration of PIP, that regulation was contrary

to the intent of the Puerto Rico legislature in drafting the

electoral law. Therefore, the Supreme Court concluded, the

Commission did not err in permitting the PIP's certification. The

Puerto Rico Supreme Court decision was thus not concerned with

whether the signature drive by the PIP to become a party by petition

was conducted in a fraudulent manner, with the Commission's abetting

that conduct.
PPR also sought access to the process by which its 6

petitions were reviewed in a separate civil suit against the

Commission and its Electoral Commissioners in federal district

court. This suit was dismissed in November 2006. The district

court directed PPR first to continue pursuing its remedies in

Commonwealth court. Civil Action Party v. Gracia-Morales, No. 05-

2064 (D.P.R. Nov. 29, 2006). 

-12-

C. PPR's Registration Leading to This Federal Court Complaint

Beginning in January 2005, and continuing after the

decision of the Puerto Rico Supreme Court was issued in December

2006, PPR sought its own registration as a party by petition.

Although 97,000 signatures were required to register, PPR ultimately

was forced to gather 113,000 signatures because 16,000 of its

signatures were disqualified. PPR alleges that these 16,000

signatures were improperly voided by the Commission. The Commission

voided most of the signatures for two articulated reasons. It said

6,700 signatures were invalid because the same signatories had

previously endorsed the PIP. It also said 6,500 signatures were

"incompatible" with the signatures in the official records of the

Commission. PPR alleges the Commission denied its request for

access to the documents necessary to evaluate these determinations. 6

PPR eventually became certified in May 2007. PPR alleges that it

would have been certified "sometime in late 2006" if not for the

Commission's actions.

On September 13, 2007, PPR learned for the first time that

the Commission Secretary's office had granted physical custody of

the PIP petitions, including those with the challenged signatures,
Ordinarily a party opposing a motion to dismiss would 7

have 20 days to respond under the Local Rule. D.P.R. R. 7.1(b). 

-13-

to the PIP. This action by the Commission, PPR contends, violated

the law and impeded its ability to compare at least the 16,000 PIP

signatures against the master list. It also was in contrast to the

Commission's refusal to give the PPR access to signatures. 

II.

PPR's instant federal complaint was filed on September 19,

2007, and was sought to be amended on October 11, 2007. In an

effort to prevent destruction of possible evidence of fraud in the

ballots that the Commission had turned over to PIP, PPR sought a

Temporary Restraining Order from the federal court on September 19,

2007. The district court denied the request on September 19 without

a hearing and without any filing by defendants. The order sua

sponte instructed the PPR to show cause by October 1 why its actions

should not be dismissed, although defendants had made no such

request.

Defendant Cruz-Maldonado did file a motion to dismiss on

September 20, 2007. Plaintiff moved for an extension of time on 7

September 24 until October 15 to file a reply. The court denied

that request the same day and ordered PPR to file its reply by

October 1. On October 1, PPR filed a second motion for extension of

time by several hours, until October 2, to file its memorandum of

law in response to the show cause order. That motion was granted

and the PPR filed a memorandum in compliance with the court's show
The district court opinion also stated that PPR failed to 8

assert an England reservation. The court reasoned this was

necessary for PPR to litigate its federal claims in federal court

following the resolution of its Commonwealth claims in the Puerto

Rico courts. This analysis is misplaced, as plaintiffs did not

seek initial review in federal court before resolution of the

Puerto Rico claims in the Commonwealth court, therefore no Pullman

abstention could occur. See England v. La. State Bd. of Med.

Exam'rs, 375 U.S. 411 (1964). And so PPR could not make an England

reservation.

-14-

cause order on October 2. That same day, the district court

dismissed the case without a hearing on Rooker-Feldman and res

judicata grounds. On October 11, 2007, PPR submitted a motion for 8

reconsideration along with an amended complaint. The district court

denied the motion for reconsideration the same day.

Following the plaintiffs' filing of the notice of appeal

on October 12, 2007, the district court sua sponte entered an order

on October 15 directing that the Puerto Rico Supreme Court turn over

all documents from the Supreme Court, the Court of First Instance,

and the appeals court that formed part of the record before the

Supreme Court in PAC v. PIP. It said it did so acting on

defendants' motion for purposes of attorneys' fees. The court

granted Cruz-Maldonado's motion for attorneys' fees on October 23,

2007, finding that PPR's "case [had] been filed in an unreasonable

manner and without foundation." The court awarded fees, and PPR's

appeal encompasses the attorneys' fees order.

PPR's federal complaint alleges, inter alia, First

Amendment and Fourteenth Amendment violations by the Commission
PPR also pleads that certain relief would follow. The 9

defendants argue that the remedy that PPR seeks is essentially

unobtainable because under Puerto Rico law the PPR was not actually

on the gubernatorial ballot in the 2004 election. We limit our

review to the Rooker-Feldman and res judicata bars considered by

the district court and will not address the merits of the complaint

or the relief that could be obtained if the PPR proves its case. 

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under color of Commonwealth law. See 42 U.S.C. § 1983. PPR

ultimately seeks declaratory and injunctive relief, if the proof

shows fraud, nullifying PIP's registration in the petition process,

decertifying PIP as a party, and granting PPR status as the third

principal party.9

III.

We review de novo the district court's dismissal on both

the res judicata and Rooker-Feldman grounds, accepting the

complaint's well-pleaded facts as true and indulging all reasonable

inferences in the plaintiff's favor. See Ramallo Bros. Printing,

Inc. v. El Dia, Inc., 490 F.3d 86, 89 (1st Cir. 2007) ("We review de

novo a district court's dismissal of a case on res judicata. . . .

We accept as true the factual allegations of the complaint and draw

all reasonable inferences in the plaintiff's favor."); Davison v.

Gov't of P.R.-P.R. Firefighters Corps., 471 F.3d 220, 222 (1st Cir.

2006) ("We review a dismissal for lack of subject matter

jurisdiction de novo, 'accepting the plaintiffs' well-pleaded facts

as true and indulging all reasonable inferences to their behoof.'"

(quoting McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006))).
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A. English Language Requirement in the Federal Courts In 

Puerto Rico

The district court erred in granting a motion to dismiss

that turned entirely on an untranslated Spanish language decision of

the Puerto Rico Supreme Court. Defendants, as the moving parties,

had the obligation to provide the district court with a certified

English translation of the Puerto Rico Supreme Court decision of

December 29, 2006, on which they relied for both arguments in their

motion to dismiss.

Under 48 U.S.C. § 864, "[a]ll pleadings and proceedings in

the United States District Court for the District of Puerto Rico

shall be conducted in the English language." We have enforced the

rule where the Spanish language document or matter is key to the

outcome of the proceedings in the district court.

In González-De-Blasini v. Family Department, we held that

"[t]he district court should not have considered any documents

before it that were in the Spanish language." 377 F.3d 81, 89 (1st

Cir. 2004). Violations of the English requirement "will constitute

reversible error whenever the appellant can demonstrate that the

untranslated evidence has the potential to affect the disposition of

an issue raised on appeal." United States v. Rivera-Rosario, 300

F.3d 1, 10 (1st Cir. 2002). By contrast, where "it is crystal clear

that none of [the Spanish language documents] bear on any of the

issues that the [district] court found dispositive in adjudicating,"

the presence of untranslated documents will not constitute
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reversible error. Dávila v. Corporación de P.R. para la Difusión

Pública, 498 F.3d 9, 13 (1st Cir. 2007). 

Here it is "crystal clear" that the Puerto Rico Supreme

Court opinion, which was not translated from the Spanish, provided

the very basis for the dismissal of the action on both grounds. The

defendants relied on the untranslated opinion both to make their

Rooker-Feldman argument and their res judicata arguments. Where a

party makes a motion to dismiss based on a decision that was written

in a foreign language, the party must provide the district court

with and put into the record an English translation of the decision.

There are many policy reasons for strictly enforcing the

statute's English-language rule in these circumstances, outlined in

our prior cases. See Estades-Negroni v. Assocs. Corp. of N. Am.,

359 F.3d 1, 2 (1st Cir. 2004). Allowing the outcome of a case to

turn on a non-English language document would be "at odds with the

premise of a unified and integrated federal courts system," id., and

effectively exclude the public from access to court decisions. "The

policy interest in keeping the District of Puerto Rico as an

integrated part of the federal judiciary is too great to allow

parties to convert that court into a Spanish language court at their

whim." Rivera-Rosario, 300 F.3d at 8 n.9. 

There is nothing new about the law in this area, and the

failure of defendants to provide a translated copy of a critical

decision alone warranted denial of their motion.
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B. Rooker-Feldman

The Rooker-Feldman doctrine bars parties who lost in state

court from "seeking review and rejection of that judgment" in

federal court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 291 (2005). Puerto Rico is treated as a state for

purposes of full faith and credit. Medina v. Chase Manhattan Bank,

737 F.2d 140, 142 (1st Cir. 1984); see also Badillo-Santiago v.

Naveira-Merly, 378 F.3d 1, 6 (1st Cir. 2004) (treating Puerto Rico

as a state for purposes of Rooker-Feldman).

The Rooker-Feldman doctrine does not apply here because

the core issues raised in plaintiffs' federal court complaint do not

seek to reverse the judgment of the Puerto Rico Supreme Court, which

concerned Regulation Section 8.3. Rather, PPR's federal suit

raises, inter alia, the separate issue of fraud and improper actions

by defendants arising from the Commission's later allowance of

contested PIP signatures during the petition drive, the Commission's

alleged abetting of fraudulent signatures, and the attempt to impede

efforts to prove the fraud by giving the petitions back to PIP, all

in contrast to the Commission's treatment of the PPR.

"The Rooker-Feldman doctrine . . . is confined to . . .

cases brought by state-court losers complaining of injuries caused

by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments." Exxon Mobil, 544 U.S. at 284; see
PPR also argues that Rooker-Feldman does not apply 10

because the doctrine may only be invoked where the same party that

lost in state court is the party which seeks review of that

judgment in federal court. See Lance v. Dennis, 546 U.S. 459,

466 (2006) ("The Rooker-Feldman doctrine does not bar actions

by nonparties to the earlier state-court judgment simply

because, for purposes of preclusion law, they could be

considered in privity with a party to the judgment."). PPR

contends that a different party brought suit in the Commonwealth

courts and that it was not at the time a recognized political party

as it is now. We do not reach this issue. 

-18-

also D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923); Overseas Military Sales

Corp. v. Giralt-Armada, 503 F. 3d 12, 15 n.2 (1st Cir. 2007).

"[T]he narrow ground occupied by Rooker-Feldman," Exxon Mobil, 544

U.S. at 284, does not apply here. The decision of the Puerto Rico

Supreme Court at issue in the instant case addressed only the

validity of the Commission's decision to certify PIP as a party by

petition under Section 8.3 of the electoral regulation. 

10

No doubt the "kitchen sink" approach taken by the

plaintiffs' broadly worded complaint contributed to the outcome the

district court reached. To be sure, PIP's federal court complaint

is inartfully drafted and does mention, as background, its argument

to the Puerto Rico Supreme Court that there was a violation of

Section 8.3 of the Commission regulation. Fairly read though, these

allegations are part of a larger set of allegations that the

Commission has favored the PIP and disfavored the PPR, as set out

earlier. Plaintiffs have made clear they do not seek to relitigate
-19-

the Section 8.3 issue, which was before the Commonwealth high court,

in this federal court proceeding.

C. Res Judicata

Plaintiffs also challenge the district court's dismissal

of their federal claims in this suit as barred by the doctrine of

res judicata. Defendants assert, however, that the same claims were

in fact brought, or alternatively that they could have been brought,

in the prior Commonwealth court proceedings. The defendants have

not provided any evidence to support either contention, even

considering the English translation of the Puerto Rico Supreme Court

decision.

"Under 28 U.S.C. § 1738, federal courts must give the same

effect to a state or territory judgment as the issuing jurisdiction

would." Morón-Barradas v. Dep't of Educ., 488 F.3d 472, 479 (1st

Cir. 2007); see 28 U.S.C. § 1738 ("[J]udicial proceedings of any

court of any . . . State, Territory or Possession . . . shall have

the same full faith and credit in every court within the United

States . . . as they have by law or usage in the courts of such

State, Territory or Possession . . . ."). Puerto Rican law thus

governs the preclusive effect of the Puerto Rico Supreme Court's

judgment in PAC v. PIP. See Cruz v. Melecio, 204 F.3d 14, 18-19 &

18 n.2 (1st Cir. 2000).
Because we find that defendants have not shown that 11

plaintiffs were precluded by the Commonwealth proceedings, we have

no need to address the perfect identity of the parties element.

-20-

Under Puerto Rican law, the party asserting a res judicata

defense, such as the defendants, must make a threefold showing:

(I) the existence of a prior judgment on the

merits that is 'final and unappealable'; (ii)

a perfect identity of thing or cause between

both actions; and (iii) a perfect identity of

the parties and the capacities in which they

acted.

R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 183 (1st Cir. 2006)

(emphasis added) (citing Boateng v. InterAmerican Univ., Inc., 210

F.3d 56, 61-62 (1st Cir. 2000)); see also Morón-Barradas, 488 F.3d

at 479 ("Under Puerto Rico law, res judicata applies when there is

'the most perfect identity between the things, causes, and persons

of the litigants, and their capacity as such.'") (quoting P.R. Laws

Ann. tit. 31, § 3343).

"[T]he phrase 'perfect identity' cannot be taken

literally" under Puerto Rican law. R.G. Fin. Corp., 446 F.3d at

183. This is particularly true in the requirement of a "perfect

identity of . . . cause in both actions." Id. Although the 11

statute uses the phrase "res judicata," that is, claim preclusion,

it also permits issue preclusion. Baez-Cruz v. Municipality of

Comerio, 140 F.3d 24, 29 (1st Cir. 1998). 

The doctrine of claim preclusion, or res judicata,

"generally binds parties from litigating or relitigating any [claim]
-21-

that was or could have been litigated in a prior adjudication."

Futura Dev. Corp. v. Centex Corp., 761 F.2d 33, 42 (1st Cir. 1985).

Issue preclusion, or collateral estoppel, "forecloses relitigation

in a subsequent action of a fact essential for rendering a judgment

in a prior action between the same parties, even when different

causes of action are involved." Gener-Villar v. Adcom Group, Inc.,

417 F.3d 201, 205-206 (1st Cir. 2005) (per curiam) (quoting Texaco

P.R., Inc. v. Medina, 834 F.2d 242, 245 (1st Cir. 1987)). Where the

district court and the parties base their analysis entirely on claim

preclusion, we do as well. Id. at 206; see also In re Bankvest

Capital Corp., 375 F.3d 51, 69-70 (1st Cir. 2004) (analyzing only

the category of res judicata doctrine argued by parties). 

"Puerto Rico's courts have held that res judicata

precludes the subsequent litigation of all claims that either were

or could have been asserted in a prior action." R.G. Fin. Corp.,

446 F.3d at 183; see, e.g., Commonwealth v. Sociedad Civil Agrícola

e Industrial, 4 P.R. Offic. Trans. 546, 554 (1975)(per curiam).

"For res judicata to operate, the precluded party must have had a

full and fair opportunity to litigate her case in the earlier

proceeding." Cruz, 204 F.3d at 19; see also Allen v. McCurry, 449

U.S. 90, 95 (1980).

As the party asserting the res judicata defense,

defendants bear the burden of demonstrating that PPR's claims were

raised or could have been raised in the state proceedings. "Once
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properly raised, a party asserting preclusion must carry the burden

of establishing all necessary elements." 18 Wright & Miller,

Federal Practice and Procedure § 4405, at 83 (2d ed. 2002). The

defendants have not made this showing. First, as a matter of

evidence, defendants did not put in the record a certified

translation of any aspect of the prior Puerto Rico court

proceedings.

Second, from the English language version of the Puerto

Rico Supreme Court opinion it appears that the issues actually

raised before the non-appellate Commonwealth courts were

substantially different from the claims for relief brought in the

complaint in the instant case. In the Commonwealth courts, PPR's

primary challenge was to the timing of the Commission's

authorization of PIP's re-registration, which it argued violated

Section 8.3 of the electoral regulation.

PPR argues that it never raised in the Commonwealth

courts the issue at the heart of the instant case, allegations we

have already described. On our reading of the translated Puerto

Rico Supreme Court opinion's description of the Commonwealth court

proceedings, the issues presented here were not at issue there.

There is one possible minor exception, not at the heart

of the federal case, concerning the preliminary injunction by the

Commonwealth Court of First Instance against illegal actions by the

Commission up to that date in allowing PIP to use public resources
Through a letter submitted under Rule 28(j), defendants 12

have cited Herman v. Meiselman, 541 F.3d 59 (1st Cir. 2008), to

argue that PPR's claims were or should have been brought in the

Commonwealth courts. This case does not help defendants, who have

failed to provide evidence of the proceedings in the Puerto Rico

courts. 

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in conducting its petition drive. However, on the record before us,

the federal suit raises issues about Commission "irregularities" as

to the use of resources which occurred later in time and which were

different in nature.12

The defendants also argue that plaintiffs could have

brought their claims in the Commonwealth proceedings. But they have

produced no evidence that this is so, even if one were to assume the

same parties were involved. Indeed, in the memorandum accompanying

his motion to dismiss, Cruz-Maldonado never described the

Commonwealth proceedings, and stated only the legal rule that res

judicata applies to all matters which might have been determined in

the Puerto Rico courts. This conclusory statement that these are

"the very same arguments" is insufficient to account for how PPR,

which may not have known the extent of the disqualification of its

ballots until sometime in 2006, and was unaware that PIP had

possession of the petitions normally maintained by the Commission

until September 2007, could have brought these claims in the

Commonwealth courts. The Puerto Rico Supreme Court decision issued

in December 2006, and the record necessarily closed long before

then, when the case was in the Court of First Instance. The
The judge ordered a "certified copy of the Court's case 13

file in Partido Accion Civil v. Partido Indenpendista

Puertorriqueño . . . includ[ing] all pleadings and appendices filed

in the Supreme Court, as well as all documents from the Court of

First Instance and Circuit Court of Appeals which formed part of

the record before the Supreme Court." 

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sequence of events casts further doubt on the defendants'

unsupported claims. On the papers before us, we cannot say that

plaintiffs could have brought their claims in the Commonwealth

courts. The case should not have been dismissed on res judicata

grounds. 

There are several other housekeeping issues to address.

Because defendants are not prevailing parties, they should not have

been awarded attorneys' fees. The district court sua sponte

ordered the Puerto Rico Supreme Court to turn over to the federal 13

district court the entire record in the PAC v. PIP proceedings from

the Commonwealth courts and ordered that those records be made a

part of this case. We order the prompt return of those records to

the Puerto Rico Supreme Court. Counsel for all defendants agreed

at oral argument to such an order. If counsel for either side

wishes to file with the federal court certified translations of

Commonwealth court records in support of their arguments in

proceedings on remand, it is their burden to do so. 

IV.

We vacate the judgment of dismissal of the district

court, reverse the award of attorneys' fees, order the Commonwealth
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court records returned to the Puerto Rico Supreme Court, and remand

for further proceedings consistent with this opinion. Costs are

awarded to the plaintiffs. So ordered.