United States Court of Appeals

For the First Circuit

No. 03-1551

TOMAS AQUINO ESPINAL-DOMINGUEZ,

Plaintiff, Appellee,

v.

COMMONWEALTH OF PUERTO RICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Eduardo A Vera Ramírez, with whom Eileen Landrón Guardiola and

Landrón & Vera, L.L.P., were on brief, for appellant.

Nydia María Díaz-Buxó for appellee.

December 19, 2003
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SELYA, Circuit Judge. By means of this interlocutory

appeal, the Commonwealth of Puerto Rico attempts to exploit the

Supreme Court's recent redefinition of the calculus of federalism.

See, e.g., Rosie D. v. Swift, 310 F.3d 230, 231 (1st Cir. 2002)

(noting that the Court has "tilt[ed] the scales more and more

toward states' rights"). The Commonwealth's core contention is

that the 1991 Civil Rights Act fails validly to abrogate the

States' Eleventh Amendment immunity insofar as the Act authorizes

the imposition of compensatory damages in Title VII actions against

the States (and against Puerto Rico, which is considered the

functional equivalent of a State for Eleventh Amendment purposes).

This raises an interesting question but, as presently postured, one

that falls beyond our purview.

The stumbling block is the time-tested precept that "[n]o

matter how tantalizing a problem may be, a federal appellate court

cannot scratch intellectual itches unless it has jurisdiction to

reach them." Director, OWCP v. Bath Iron Works Corp., 853 F.2d 11,

13 (1st Cir. 1988). In this instance, the Commonwealth's

interlocutory appeal rests not on a denial of an asserted immunity

from suit, but, rather, on a denial of an asserted immunity from

the imposition of a certain type of money damages. So constructed,

the appeal does not satisfy the requirements of the collateral

order doctrine, and, thus, does not come within the encincture of

our appellate jurisdiction. We therefore dismiss the appeal,
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leaving the substantive issue raised by the Commonwealth to await

end-of-case review.

I.

Setting the Stage

We glean the necessary facts from the plaintiff's

complaint. See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d

507, 508 (1st Cir. 1998).

The Commonwealth hired plaintiff-appellee Tomás Aquino

Espinal-Domínguez, a native of the Dominican Republic, on September

7, 1988. He worked in various capacities for the Department of

Natural Resources (the Department) during the next fifteen years.

At that point, he was unceremoniously ousted from his employment.

The plaintiff concluded that his firing resulted from

national origin discrimination and filed an administrative

complaint to that effect with the Equal Employment Opportunity

Commission (EEOC). The EEOC declined to pursue a full-dress

investigation, instead issuing a right to sue letter. Letter in

hand, the plaintiff repaired to the federal district court and sued

the Commonwealth under Title VII, 42 U.S.C. §§ 2000e to 2000e-17.

His complaint alleged that he had been discharged on the basis of

his national origin, see id. § 2000e-2(a)(1), and prayed for

reinstatement, back pay, marginal benefits, compensatory damages,
1Two features of the plaintiff's complaint deserve special

mention. First, only the Commonwealth is prosecuting this appeal;

thus, we omit any further reference to the Department and the

several departmental officials who are named as additional

defendants. Second, the complaint at one point cites 42 U.S.C. §

2000e(j), a definitional provision that deals with discrimination

on the basis of religion. Since the body of the complaint contains

no facts alluding either to the plaintiff's religion or to any

failure to accommodate the plaintiff's religious practices, we

assume that the citation is in error.

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and "any other remedy in law or equity" that might be available

against the Commonwealth.1

The Title VII claim brought the plaintiff face to face

with the Eleventh Amendment, which provides that "[t]he Judicial

power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State." U.S. Const. amend. XI. This

provision has been authoritatively interpreted to safeguard States

from suits brought in federal court by their own citizens as well

as by citizens of other States. See, e.g., Edelman v. Jordan, 415

U.S. 651, 662-63 (1974); Rosie D., 310 F.3d at 233 n.2. This

immunity can, however, be waived or abrogated by Congress under

certain limited circumstances. See College Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999);

Ramirez v. P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983).

Despite its unique commonwealth status, Puerto Rico is

treated for many juridical purposes as a State. The Eleventh
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Amendment is included in this compendium and, thus, Puerto Rico is

entitled to a full measure of Eleventh Amendment immunity. See,

e.g., Jusino Mercado v. Comm. of Puerto Rico, 214 F.3d 34, 37 (1st

Cir. 2000).

Hoisting this banner, the Commonwealth moved to dismiss

the plaintiff's complaint on the ground that the Eleventh Amendment

pretermitted it (at least in part). To comprehend the

Commonwealth's position, it is helpful to place Title VII into an

historical perspective. 

Congress originally enacted Title VII as part of the

Civil Rights Act of 1964. Pub. L. No. 88-352, 78 Stat. 241, 253

(1964). In 1972, it amended the law to include public employers,

thus clearing the way for the prosecution of private rights of

action against States that practiced discrimination. See Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.

103, 103 (1972). This new right afforded only a limited set of

remedies against a state defendant, mainly equitable in nature.

Congress expanded the roster of remedies available against the

States in 1991, adding compensatory damages to the mix. See Civil

Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1072

(1991) (codified at 42 U.S.C. § 1981a(a)(1)).

In this proceeding, the Commonwealth, with a bow toward

the Supreme Court's decision in Fitzpatrick v. Bitzer, 427 U.S.

445, 456 (1976), concedes that Title VII, in its 1972 incarnation,
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constituted a valid abrogation of state sovereign immunity. See

Appellant's Br. at 10-11. In line with this concession, it has

not, insofar as can be gleaned from its papers, attempted to

circumnavigate federal jurisdiction as to the remedies that were

authorized when Fitzpatrick was decided (i.e., the remedies

originally provided by the 1972 amendments to Title VII). These

remedies included pecuniary damages, albeit in the form of back pay

awards. See 42 U.S.C. § 2000e(5)(g)(1); see also Fitzpatrick, 427

U.S. at 452-56 (holding that a back pay award is appropriate in a

Title VII case because Congress had the power to abrogate state

sovereign immunity under section five of the Fourteenth Amendment);

Sea Land Serv. Inc. v. Estado Libre Asociado, 588 F.2d 312, 313 n.3

(1st Cir. 1978) (discussing Fitzpatrick).

This concession perforce means that the plaintiff's

complaint has opened the Eleventh Amendment portal at least partway. The Commonwealth, however, seeks to keep the gates from

opening more widely. To that end, it directs its Eleventh

Amendment challenge to the availability of the nascent compensatory

damages remedy. It grounds this challenge on the premise that the

1991 Civil Rights Act, which made that anodyne available against

the States for the first time, fails to pass the congruence and

proportionality test delineated by the Supreme Court's recent

Eleventh Amendment jurisprudence. See, e.g., City of Boerne v.

Flores, 521 U.S. 507, 519-20 (1997) (holding that legislation
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passed pursuant to section five of the Fourteenth Amendment must

exhibit "congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that end"). All

legislation enacted pursuant to section five of the Fourteenth

Amendment must pass this test in order validly to abrogate States'

Eleventh Amendment immunity. Bd. of Trustees of Univ. of Ala. v.

Garrett, 531 U.S. 356, 364 (2001).

Invoking this doctrine and noting that Congress relied

upon section five in authorizing private rights of action against

state defendants, the Commonwealth asserts that Congress acted

outside its constitutional authority in purporting to abrogate

state sovereign immunity when it amended Title VII in 1991 (and

that, therefore, the Eleventh Amendment continues to protect the

Commonwealth from being forced to pay compensatory damages in Title

VII actions). Unimpressed by the ingenuity of this assertion, the

district court summarily denied the Commonwealth's motion to

dismiss. This appeal ensued.

II.

Appellate Jurisdiction

Even though the parties have assumed the existence of

appellate jurisdiction, we enjoy no comparable luxury. Because

federal courts are powerless to act in the absence of subject

matter jurisdiction, we have an unflagging obligation to notice

jurisdictional defects and to pursue them on our own initiative.
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See Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982); United States v. Horn, 29 F.3d 754, 767 (1st Cir.

1994); In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.

1988). After all, litigants cannot confer subject matter

jurisdiction on a federal court by "indolence, oversight,

acquiescence, or consent." Horn, 29 F.3d at 768.

The difficulty here is that the order appealed from — the

order denying the Commonwealth's motion to dismiss — does not end

the case. It is, therefore, not "final." That matters because

federal appellate jurisdiction in most civil actions arises out of

the power to review "final decisions of the district courts of the

United States." 28 U.S.C. § 1291. Although this finality

principle admits of certain exceptions, the majority of them are

statutory in origin. See, e.g., id. § 1292(a)(1)-(3) (establishing

special rules for jurisdiction over interlocutory appeals from

orders involving injunctive relief, admiralty cases, and

receivership matters). None of these statutory exceptions applies

here.

To be sure, the Supreme Court has glossed the finality

principle, admonishing that the general requirement of finality

should not be applied mechanically. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949) (suggesting that courts should

give the finality principle a "practical rather than a technical

construction"). This pragmatic approach has spawned a few judge-
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made exceptions to the general rule. Chief among these is the socalled collateral order doctrine. Because that doctrine affords

the only arguable basis for appellate jurisdiction over this

appeal, we chart its contours.

Any effort to decipher the collateral order doctrine must

begin with the Supreme Court's seminal opinion in Cohen. There,

the Court held that an order may be appealed immediately if it

"finally determine[s] claims of right separable from, and

collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require

that appellate consideration be deferred until the whole case is

adjudicated." Id. at 546. Following the Cohen Court's lead, we

have said that collaterality demands conformity to the following

four requirements:

The order must involve: (1) an issue

essentially unrelated to the merits of the

main dispute, capable of review without

disrupting the main trial; (2) a complete

resolution of the issue, not one that is

"unfinished" or "inconclusive"; (3) a right

incapable of vindication on appeal from final

judgment; and (4) an important and unsettled

question of controlling law, not merely a

question of the proper exercise of the trial

court's discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979).

Typically, all four of these prerequisites — which we have termed

"separability, finality, urgency, and importance," Recticel Foam,

859 F.2d at 1004 (citation and internal quotation marks omitted) —
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must be satisfied in order to pave the way for the operation of the

collateral order doctrine. See id. at 1003-04.

A decade ago, the Supreme Court ruled that an

interlocutory order denying a State's claim of Eleventh Amendment

immunity from suit may be appealed immediately by way of the

collateral order doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139, 141 (1993). The State's claim that the

Eleventh Amendment conferred upon it a total immunity from suit

furnished the predicate for the Court's finding that the elements

of the collateral order doctrine were present. See id. at 144.

The Court reasoned as follows. A trial court's denial of such an

immunity claim is final because it conclusively determines that the

State can be subjected to the coercive processes of the federal

courts. See id. at 145. It is urgent because the principal

benefit conferred by the Eleventh Amendment — an immunity from suit

— will be "lost as litigation proceeds past motion practice." Id.

Third, the trial court's order involves an important legal question

(the existence and extent of a "fundamental constitutional

protection"). Id. And, finally, that question has no bearing on

the substantive merits of the case (and, thus, is separable). Id.

Here, the parties' assumption that we enjoy appellate

jurisdiction apparently rests on the belief that Puerto Rico

Aqueduct is controlling. We are less sanguine. The precise

question before the Puerto Rico Aqueduct Court was "whether a
2We recognize that it may be possible to wrench certain

language in the Puerto Rico Aqueduct opinion from its contextual

moorings to promote the proposition that any denial of any species

of immunity is subject to immediate review. See, e.g., 506 U.S. at

147 (explaining that States "may take advantage of the collateral

order doctrine to appeal a district court order denying a claim of

Eleventh Amendment immunity"). Because indulging in such

linguistic legerdemain would distort the Court's rationale, we

eschew that course.

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district court order denying a claim by a State or a state entity

to Eleventh Amendment immunity from suit in federal court may be

appealed under the collateral order doctrine." Id. at 141

(emphasis supplied). The Court's affirmative answer to that

question gives us appellate jurisdiction to decide — even in the

absence of a final judgment — whether a State is amenable to suit

in a federal court with respect to a Title VII claim. See, e.g.,

id.; Okruhlik v. Univ. of Ark., 255 F.3d 615, 621 (8th Cir. 2001).

But that issue is not before us. Here, the Commonwealth does not

assert that it is immune from a Title VII suit in federal court.

Its only developed argument is that it is immune from a particular

strain of damages (a remedy first made available by Congress in

1991). This fact distinguishes the case before us from Puerto Rico

Aqueduct. See Mercer v. Magnant, 40 F.3d 893, 896 (7th Cir. 1994)

("The foundation for the interlocutory appeal authorized by [Puerto

Rico Aqueduct] is the existence of a right not to be a litigant.").

It follows inexorably that accepting appellate jurisdiction over

the instant appeal would require an extension of the holding

announced in Puerto Rico Aqueduct.

2
3Although not necessary for our conclusion, we note that this

interlocutory appeal might well fail the finality prong of the

Cohen test.

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We turn, then, to the task of testing the viability of

such an extension. This requires us to assess the Commonwealth's

actual asseveration (that subjecting it to a claim for compensatory

damages in a Title VII suit properly brought against it in a

federal court is barred by the Eleventh Amendment) and to decide,

applying the Cohen criteria, whether a pretrial rejection of that

asseveration is subject to immediate appeal.

Of the four requirements underpinning the collateral

order doctrine, urgency is perhaps the most elemental. See

Recticel Foam, 859 F.2d at 1004 (terming urgency the "central

focus" of the Cohen inquiry and perhaps the "dispositive

criterion"); Boreri v. Fiat, S.p.A., 763 F.2d 17, 21 (1st Cir.

1985) (similar). Here, our inquiry starts — and stops — with this

criterion.3 We have equated urgency with a showing of irreparable

harm. See Boreri, 763 F.2d at 21. In this instance, the

Commonwealth has wholly failed to show that precluding an immediate

appeal of the district court's order will result in any irreparable

harm. We explain briefly.

There is a critical difference between avoiding trial, on

the one hand, and limiting exposure to liability, on the other

hand. The denial of a colorable claim of immunity from suit cannot

effectively be reviewed after trial as the very object and purpose
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of the immunity is to protect the holder from the indignity of

being subjected to the coercive processes of a judicial tribunal at

the instance of a private party. See In re Ayers, 123 U.S. 443,

505 (1887); see also Pullman Constr. Indus., Inc. v. United States,

23 F.3d 1166, 1168 (7th Cir. 1994) (characterizing the Court's

decision in Puerto Rico Aqueduct as protecting "a governmental

body's right to avoid litigation in another sovereign's courts").

Put another way, the "ultimate justification" for applying the

collateral order doctrine in cases involving state sovereign

immunity "is the importance of ensuring that the States' dignitary

interests can be fully vindicated." P.R. Aqueduct, 506 U.S. at

146.

This concern is not implicated when the State interposes

the Eleventh Amendment not as the basis for an immunity from suit,

but, rather, as a defense to one of several remedies sought by a

particular plaintiff. See Thomas v. Nakatani, 309 F.3d 1203, 1207

(9th Cir. 2002) (explaining that the crucial difference between

non-final orders denying immunity that are immediately appealable

and non-final orders that are not is whether "the action . . .

would proceed against the state whether or not it prevailed on

appeal"). That scenario reflects an interest which, unlike

immunity from suit, is "fully vindicable on appeal from final

judgment." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 882 (1994). That is a vastly different matter: when a State
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has filed a pretrial motion invoking the Eleventh Amendment not to

establish an immunity from suit but merely to afford itself a

defense to a particular strain of damages, there is no reason to

enswathe a denial of its motion within the collateral order

doctrine. See Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265

F.3d 541, 547 (7th Cir. 2001) (declining to address claim that

state agency is immune from a punitive damages award on

interlocutory appeal because "[a] claim of immunity to a certain

class of damages" is different in kind from a claim of immunity

from suit); Burns-Vidlak v. Chandler, 165 F.3d 1257, 1260-61 (9th

Cir. 1999) (finding no appellate jurisdiction over State's claim

that an award of punitive damages for a violation of Title II of

the ADA is barred by the Eleventh Amendment because the State

"concedes that it is subject to suit . . . in federal court").

Divorced from the question of whether a State can be sued

at all in a federal court, the much narrower question of whether it

can be held liable for a certain type of pecuniary damages is a

question that adequately can be reviewed following trial. See

Cherry, 265 F.3d at 547 (finding no risk of irretrievable loss and

holding that a denial of a claimed immunity from punitive damages

can be effectively reviewed after judgment); see generally CSX

Transp., Inc. v. Kissimmee Util. Auth., 153 F.3d 1283, 1286 (11th

Cir. 1998) (adjudging claims of sovereign immunity under Florida

state law not subject to interlocutory review because Florida state
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immunity is immunity only from damages and not from suit itself);

cf. P.R. Aqueduct, 506 U.S. at 145-46 (suggesting that if the

Eleventh Amendment conferred only a defense to liability,

interlocutory review might not be warranted). In the ordinary

case, a party who is subjected to an erroneous award of damages can

remedy that error fully through an end-of-case appeal. See Swint

v. Chambers County Comm'n, 514 U.S. 35, 43 (1995) (making clear

that a potentially "erroneous ruling on liability may be reviewed

effectively on appeal from final judgment").

That tenet is fully operative here. If the plaintiff's

case goes forward and the Commonwealth is found liable for

compensatory damages, it will have an ample opportunity to test the

propriety of that award before it is forced to pay. Thus, the only

harm that the Commonwealth stands to suffer from the unavailability

of interlocutory review is an inchoate harm stemming from an

erroneous but non-final ruling. That is always a risk in

litigation — and not the sort of harm that warrants special

solicitude. After all, "almost every pretrial or trial order might

be called 'effectively unreviewable' in the sense that relief from

error can never extend to rewriting history." Digital Equip., 511

U.S. at 872.

Indeed, if the harm asserted here were deemed sufficient

to warrant interlocutory review, the Cohen exception would swallow

the finality principle in a single gulp. That is a consummation
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that ought to be avoided. The Supreme Court repeatedly has

cautioned that the collateral order doctrine constitutes only a

"narrow exception" to the final judgment rule and that it "should

stay that way." Id. at 868. There is good reason why the

conditions for interlocutory appeal are stringent. The case at bar

simply does not satisfy those conditions.

The Supreme Court's decision in Behrens v. Pelletier, 516

U.S. 299 (1996), does not suggest a contrary result. There, the

Court clarified that the collateral order doctrine provides a

jurisdictional hook on which to hang an immediate appeal from an

order denying qualified immunity even though the case contains

equitable claims against the "same" defendant. Id. at 311-12.

That situation is readily distinguishable from the case before us.

If an action is dismissed on qualified immunity grounds,

that dismissal disposes of the entire case against the defendant in

his or her personal capacity. See Scott v. Lacy, 811 F.2d 1153,

1153-54 (7th Cir. 1987) (per curiam) ("[A] public official who is

a defendant in a suit [for injunctive relief] is not 'on trial' at

all. The suit seeks relief against him in his official capacity;

he need not attend the trial, which will be conducted by attorneys

representing the governmental body."). Any cause of action

remaining is against the defendant in his or her official capacity.

An official capacity claim is tantamount to a suit against the

governmental entity, not to a suit against the individual. See,
4In all events, the purposes served by the doctrine of

qualified immunity are distinct from those served by the Eleventh

Amendment. State sovereign immunity is intended primarily to

"prevent the indignity of subjecting a State to the coercive

process of judicial tribunals at the instance of private parties."

In re Ayers, 123 U.S. at 505. Qualified immunity, however, is "a

right to immunity from certain claims, not from litigation in

general." Behrens, 516 U.S. at 312 (emphasis in original).

Consequently, the purposes of qualified immunity are served fully

by allowing an interlocutory appeal even when an official capacity

claim will remain velivolent.

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e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); NereidaGonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993).

Thus, a successful Behrens appeal completely protects the

individual from litigating on his or her own behalf; it does not

function merely to eliminate certain remedies from the case whilst

leaving the identities of the litigants intact.4

III.

Conclusion

We need go no further. We conclude that where, as here,

a State asserts only that a singular remedy, compensatory damages,

is precluded by the Eleventh Amendment, yet acknowledges that it is

subject to the plaintiff's federal court suit with respect to other

remedies arising as part of the same cause of action, that

acknowledgment defeats any claim of entitlement to an interlocutory

appeal. In such circumstances, the State must await final judgment

before testing on appeal the question of what remedies may be

available. Mercer, 40 F.3d at 897. Refusing to allow immediate
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review in such instances will not render "impossible any review

whatsoever." United States v. Ryan, 402 U.S. 530, 533 (1971).

We dismiss the appeal, without prejudice, for want of

appellate jurisdiction.