Espinal-Dominguez v. Com. of Puerto Rico, 03-1551.

• Decision Date: 19 December 2003
• Docket Number: No. 03-1551.,03-1551.
• Citation: 352 F.3d 490
• Parties: Tomas Aquino ESPINAL-DOMINGUEZ, Plaintiff, Appellee, v. COMMONWEALTH OF PUERTO RICO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

352 F.3d 490

Tomas Aquino ESPINAL-DOMINGUEZ, Plaintiff, Appellee, v. COMMONWEALTH OF PUERTO RICO, Defendant, Appellant.

No. 03-1551.

United States Court of Appeals, First Circuit.

Heard September 10, 2003.

Decided December 19, 2003.

COPYRIGHT MATERIAL OMITTED

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.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and HOWARD, Circuit Judge.

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, 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, 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, 94 S.Ct. 1347, 39 L.Ed.2d 662 (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, 119 S.Ct. 2219, 144 L.Ed.2d 605 (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 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, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), concedes that Title VII, in its 1972 incarnation, 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, 96 S.Ct. 2666 (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 part-way. 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, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding that legislation 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, 121 S.Ct. 955, 148 L.Ed.2d 866 (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. See Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (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 ...