*Of the District of Maine, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1275

PETER TORRÉNS, ET AL.,

Plaintiffs, Appellees,

v.

LOCKHEED MARTIN SERVICES GROUP, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

 Boudin, Chief Judge,

Howard, Circuit Judge,

and Carter,* Senior District Judge.

Anabel Rodríguez-Alonso with whom Pedro Giner-Dapena and

Schuster Usera & Aguiló LLP were on brief for appellant.

Mark B. Stern, Appellate Staff, Civil Division, Department of

Justice, with whom Peter D. Keisler, Assistant Attorney General, H.

S. García, United States Attorney, and Johathan H. Levy, Appellate

Staff, Civil Division, Department of Justice, were on brief for the

United States of America, Amicus Curiae.

Mauricio Hernández-Arroyo with whom Law Offices of Mauricio

Hernández-Arroyo, López-Lay Vizcarra & Simonet were on brief for

appellees.

February 7, 2005
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BOUDIN, Chief Judge. The narrow but important question

before us is whether certain property at U.S. Naval Station

Roosevelt Roads in Puerto Rico is "federal enclave" property over

which the federal government enjoys exclusive legislative

jurisdiction (save as federal law may incorporate local law). The

question, on which district court judges in Puerto Rico have now

reached conflicting results, is buried in a private law suit, now

a decade old.

Roosevelt Roads was a Navy base (recently deactivated but

still federally owned), primarily located at the eastern tip of

Puerto Rico. At its height, it was one of the largest naval

facilities in the world. The lands it occupied were acquired

piecemeal, at different times, starting around 1940--through

condemnation actions, reclamation, transfers of U.S. Army property,

and the like.

Piers at the base jut into Puerca Bay and Ensenada Honda

Bay, extending from land mostly created from fill. On the filled

land touching Puerca Bay, there is also a dry dock that extends

inland, partly on filled land and partly on original upland. These

piers and the surrounding landfill--collectively, the "piers area"-

-are central to this case. The large tract (just under 1,300

acres) from which the piers area extends was apparently acquired by

the United States on November 18, 1941; and construction of the

piers area--channel-dredging, landfilling, and building of the dry
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dock--were all underway between 1941 and 1943. Nieves v. Standard

Dredging Corp., 152 F.2d 719, 719-20 (1st Cir. 1945).

In 1995, former employees of a government contractor--

Lockheed Martin Services Group ("Lockheed") is the successor in

interest--brought suit against the company in a local Puerto Rico

court. The contractor provided maintenance and other services for

the Navy at Roosevelt Roads. The suit sought overtime pay and

other work-related relief under Puerto Rico wage and benefit laws

for past work performed in the piers area and perhaps aboard ships

docked at the piers.

After delay and appeals within the Puerto Rico court

system caused by disputes over service of process, the case was

proceeding forward in 1999, when the plaintiff employees added

claims under the federal Fair Labor Standards Act, 29 U.S.C. §§

201-219 (2000). Based on the federal claims, Lockheed removed the

case to federal court, 28 U.S.C. § 1441 (2000). It then sought

dismissal of the original claims grounded on Puerto Rico law,

asserting that federal law alone applied to work done within the

Roosevelt Roads facility.

This contention rested on doctrine derived from a

provision in the U.S. Constitution (article I, section 8, clause

17), sometimes described as the "enclave clause," which grants

Congress power 

[t]o exercise exclusive Legislation in all

Cases whatsoever . . . over all Places
1See, e.g., Paul v. United States, 371 U.S. 245, 263-67

(1963); James v. Dravo Contracting Co., 302 U.S. 134, 142, 147-49

(1937); Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 528

(1885). See generally U.S. Interdepartmental Comm. for the Study

of Jurisdiction over Federal Areas Within the States, Jurisdiction

over Federal Areas Within the States, pt. 1 (G.P.O. 1956) & pt. 2

(G.P.O. 1957) [hereinafter Jurisdiction over Federal Areas].

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purchased by the Consent of the Legislature of

the State in which the Same shall be for the

Erection of Forts, Magazines, Arsenals, dockYards, and other needful Buildings.

Under the enclave clause, a web of statutory provisions, practice

and case law has developed to determine whether and when property

acquired by the federal government meets the conditions for

treatment as a federal enclave to which state regulation does not

apply.1

This same regime of federal enclave law has regularly

been assumed to apply in Puerto Rico even though it is a

Commonwealth rather than a state (and therefore Congress might have

designed a different regime for governing federal property there).

The assumption is undisputed by the parties and (as will appear) is

reflected in Puerto Rico legislation, in the past conduct of

federal government officials and their analyses bearing on

Roosevelt Roads, in prior case law that has dealt with Roosevelt

Roads, and in the district court's decision in this case.

Under this body of federal enclave doctrine, a state does

not lose its police powers over land acquired by the federal

government--legislative jurisdiction may remain with the state,
2See Fort Leavenworth, 114 U.S. at 528; Jurisdiction over

Federal Areas, supra, pt. 2, at 47-54; Peter S. Twitty, U.S. Navy

Dep't, The Respective Powers of the Federal and Local Governments

Within Lands Owned or Occupied by the United States 12-13 (G.P.O.

1944).

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subject always to overriding federal legislation--unless (1) the

state consented to the land's acquisition or later ceded certain

powers, (2) the federal government has assumed the ceded authority,

and (3) the land's federal use is consistent with the enclave

clause. Paul, 371 U.S. at 263-67.

A 1903 Puerto Rico law granted blanket consent to any

future acquisition by the United States of lands within Puerto Rico

for "naval, military or other public purposes," providing also that

on such acquisition "all jurisdiction over such lands" by Puerto

Rico "shall cease and determine [sic]" so long as the United States

retains the property. Act of February 16, 1903, § 5, 1903 P.R.

Laws, 110, 111-12. This consent and cession provision, although

superceded in 1955, see 28 P.R. Laws Ann. §§ 54-55 (1985), was

still in force when much of Roosevelt Roads was acquired in the

1940s.

Prior to 1940, the prevailing understanding of the

enclave clause was that the states' blanket cession statutes

operated to "transfer" exclusive legislative jurisdiction to the

United States once the federal government acquired the land.2 But

in 1940, Congress passed a law specifying how the United States

should assume exclusive jurisdiction if it wanted such authority
3Dávila-Perez v. Lockheed-Martin Corp., 202 F.3d 464, 468 (1st

Cir. 2000); Rivera de Leon v. Maxon Eng'g Servs., 283 F. Supp. 2d

550, 558 (D.P.R. 2003); Kelly v. Martin Marietta Servs. Group, 25

F. Supp. 2d 1, 3-4 (D.P.R. 1998); Koren v. Martin Marietta Servs.,

Inc., 997 F. Supp. 196, 200-02 (D.P.R. 1998); Sopeña v. Colejon

Corp., 920 F. Supp. 259, 264 (D.P.R. 1996); Capitol Constr. v.

Sec'y of Treasury, 89 P.R.R. 319, 323 (1963); cf. People of P.R. v.

Koedel, 927 F.2d 662, 664-65 (1st Cir. 1991) (status of army base

at Fort Buchanan).

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and expressly instructing that "[u]nless and until the United

States has accepted jurisdiction over lands hereafter to be

acquired as aforesaid, it shall be conclusively presumed that no

such jurisdiction has been accepted." 40 U.S.C. § 255 (2000).

 Pertinently, the statute said that

the head or other authorized officer of any

department or independent establishment or

agency of the Government may, in such cases

and at such times as he may deem desirable,

accept or secure from the State in which any

lands or interests therein under his immediate

jurisdiction, custody, or control are

situated, consent to or cession of such

jurisdiction, exclusive or partial, not

theretofore obtained, over any such lands or

interests as he may deem desirable and

indicate acceptance of such jurisdiction on

behalf of the United States by filing a notice

of such acceptance with the Governor of such

State or in such other manner as may be

prescribed by the laws of the State where such

lands are situated. 

40 U.S.C. § 255 (emphasis supplied).

Prior to the present case, decisions in this circuit, and

a decision of the Puerto Rico Supreme Court, had uniformly held or

assumed that "federal enclave" status applies to Roosevelt Roads as

a whole.3 However, in the district court the plaintiffs responded
4The memorandum, dated November 30, 1976, was written by a

Navy official named Joseph Brooks on behalf of the "Command Judge

Advocate" to the "Head [of the] Naval Legal Service Branch Office."

Its purpose was to describe the legal status of Navy property at

Roosevelt Roads and other military commands in Puerto Rico. 

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to Lockheed's motion to dismiss local law claims by arguing, based

in part upon a newly discovered Navy memorandum, that no such

exclusive jurisdiction had been acquired by the United States over

the piers area because--as to this area--the assumption

requirements of the 1940 statute had never been met. If that were

so, local Puerto Rico law could of its own force apply to wage

benefit issues in dispute in this case. 

In a decision filed on April 8, 2003, the district court

decided that the piers area is not part of a federal enclave,

relying importantly on a 1976 internal Navy memorandum ("the Brooks

memorandum") describing the piers, dry dock, and landfill at

Roosevelt Roads as a location "in which [exclusive] federal

jurisdiction is lacking."4 Given the conflict with earlier

decisions and its importance, the district court certified

Lockheed's petition for interlocutory appeal, see 28 U.S.C. §

1292(b) (2000), which we granted, inviting the views of the United

States as amicus curiae.

In its amicus brief in this court, the United States

asserts that it did acquire exclusive jurisdiction over the

Roosevelt Roads piers area. Further, it has produced a 1942

document, hitherto uncited in the district court or in prior cases,
5The letter did not say expressly why it viewed the Secretary

of War's July 1945 general acceptance as inadequate, but probably

this rested on the 1940 statute's language requiring that authority

be accepted by an official as to lands "under his immediate

jurisdiction, custody, or control . . . ." Conceivably Brooks had

no wish to concede that the Secretary of War had anything to say

about Navy property.

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which the United States says represents its specific formal

acceptance of authority over the very area in Roosevelt Roads that

is at issue in this case. We conclude that this new document

requires a remand, but we resolve now as much as we properly can on

this appeal.

It is common ground that, following the 1940 statute

requiring a formal acceptance by the United States, the Secretary

of War on July 27, 1945, wrote a letter accepting exclusive

jurisdiction over all lands in Puerto Rico theretofore transferred

to the United States for military purposes and as to which

jurisdiction had not previously been accepted. Cf. Koren, 997 F.

Supp. at 200-01. The district court ruled that this was

insufficient to establish exclusive jurisdiction over the piers

area, relying upon the conclusions of the Brooks memorandum

supplied by plaintiffs in this case.

The Brooks memorandum has as its premise that the

Secretary of War's letter does not cover Navy property5 and, as to

such Navy property, ascribes the acceptance of exclusive

jurisdiction within Roosevelt Roads to specific documentation of

individual parcels covering only about half the base. Local Navy
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officials, says the memorandum, had repeatedly sought an

unequivocal acceptance by the Navy of exclusive jurisdiction over

all Navy property at Roosevelt Roads but had never secured it.

Further, by other references, Brooks' memorandum listed

the dry dock, piers, and related landfill as an area that he (or,

strictly speaking, the Command Judge Advocate) regarded as outside

the scope of any specific federal assumption of exclusive

authority. The district court was persuaded by this conclusion--

the court properly treated the letter as informative rather than

binding on the court--and ruled that the United States lacked

exclusive federal authority over the piers area.

On this appeal, the United States says that no weight

should be accorded to the views of a "mid-level" Navy officer whose

position (it suggests) may have been a draft and was never

expressly adopted by higher authority. However, bypassing any

question as to the scope of the Secretary of War's general

acceptance, the United States says that in any event there is an

express acceptance of authority by a Navy official over the piers

area. It attaches to its brief a copy of a letter, seemingly to

this effect.

The letter, dated September 14, 1942, is from then-Acting

Navy Secretary James Forrestal to the then-Governor of Puerto Rico,

Rexford Tugwell. It begins by citing the 1940 statute requiring a

notice of acceptance to be filed with the ceding state's governor.
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It then describes, by date of condemnation and survey measurements,

the specific parcel of just under 1,300 acres acquired in 1941 for

fleet operating facilities and anchorage security. It concludes by

saying that "jurisdiction" is "accepted" as to the property

effective noon, September 30, 1942. 

So far as the letter may apply to the piers area, it

supercedes by its own force the concerns raised by the Brooks

memorandum. The Brooks memorandum is not claimed to create an

estoppel or an authorized renunciation of federal authority;

whatever weight it has depends only on its persuasiveness. By its

own terms it says that a specific Navy acceptance is needed for

Navy property, such as the piers, dry dock, and landfill. The

United States now tenders the Forrestal letter to fill this

supposed gap, thereby quite possibly mooting the larger issue of

the reach of the Secretary of War’s letter.

The plaintiffs' answering brief does not directly address

the Forrestal letter, which was not, of course, part of the

district court record. At oral argument, plaintiffs’ counsel did

not suggest that the Forrestal letter was inauthentic or was merely

a draft. The copy supplied to us bears a date, the stamped

signature of a retained file copy (common enough before

photocopying of originals was possible) and an obscured file stamp.

We take government counsel to be representing that it is genuine

and that the original was sent.
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Nor would it matter that the letter has been belatedly

obtained in this case. No final judgment exists, and the issue of

exclusive federal authority vel non transcends the interests of the

parties. We are free ourselves to take judicial notice of the

existence of government records, Fed. R. Evid. 201(b)(2); see U.S.

v. Bello, 194 F.3d 18, 23-24 (1st Cir. 1999); and the letter is

relevant not for the truth of anything asserted in it but simply as

a legally significant event, like a treaty or a will.

At oral argument plaintiffs' counsel did say briefly that

the Forrestal letter did not “go to” the landfill issue. Although

this comment was not developed, plaintiffs may be intending to

suggest that the piers and dry dock where the plaintiffs worked may

rest on or extend from land reclaimed from the water and therefore

possibly not literally within the metes and bounds set out in the

Forrestal letter as the parcel taken in 1941 and for which

exclusive federal authority was accepted. This suggestion raises

questions that we cannot entirely resolve on this appeal but may at

least narrow. 

From the maps and descriptions furnished, it appears that

the Navy acquired in 1941 a significant piece of property bounded

on one side by the bay. As Nieves indicates, construction of the

piers area--channel-dredging, landfilling, and construction of the

dry dock--proceeded apace between 1941 and 1943. 152 F.2d at 719-

20. The United States asserts, and the plaintiffs have not
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specifically disputed, that the property described in the Forrestal

letter was the launching point for the piers area construction.

Whether the Navy built outward from the deeded land into

the bay and whether the work at issue in this lawsuit occurred on

the deeded property or the reclaimed land could be explored in the

district court, if the issue matters; but it may well not matter.

Assuming the Navy filled in submerged land that it did not already

own under the strict terms of the deed or otherwise--an issue on

which we take no view--the United States certainly took the land

when the Navy occupied it and built its permanent facilities upon

it. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 425-38 (1982).

If this is what happened, the Forrestal letter would

nevertheless encompass that land as well as the expressly deeded

property. The letter adverts to use of the deeded land for fleet

operating facilities, and we know (see Nieves) that construction

was underway when Secretary Forrestal wrote, specifically

confirming the exclusive authority of the United States. He cannot

have intended to exclude from the letter the very facilities being

built then and there for fleet operations, Congressional authority

for which was cited in the letter itself.

We decide only that the Forrestal letter, assuming that

it is authentic and was sent, would constitute an acceptance of

federal authority under the 1940 statute for the parcel it
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describes, any adjacent land reclaimed from the bay, and any piers

and dry docks built upon the parcel or the reclaimed land.

Plaintiffs are free on remand inter alia to dispute the

authenticity of the Forrestal letter, to show that the plaintiffs'

work occurred somewhere entirely different, or to debate the impact

of exclusive federal authority upon their local law claims.

We vacate the order of the district court determining

that the United States lacks exclusive authority over the piers

area at Roosevelt Roads and remand for further proceedings

consistent with this decision. Each side shall bear its own costs

on this appeal.

It is so ordered.