582 F.3d 131 (1st Cir. 2009), 09-1911, Fideicomiso De La Tierra Del Cano Martin Pena v. Fortuno

Docket Nº:09-1911.
Citation:582 F.3d 131
Opinion Judge:PER CURIAM.
Party Name:FIDEICOMISO DE LA TIERRA DEL CA
Attorney:Judith Berkan, with whom Mary Jo Méndez, Berkan/Méndez, and Pedro J. Saadé, of the Clínica de Asistencia Legal de la Escuela de Derecho de la Universidad de Puerto Rico, were on brief for appellant. Eliezer Aldarondo-Ortiz, with whom Aldarondo & López Bras, Eliezer A. Aldarondo, Claudio Aliff-Ort...
Judge Panel:Before Torruella, Ripple,[*] and Boudin, Circuit Judges.
Case Date:September 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 131

582 F.3d 131 (1st Cir. 2009)

FIDEICOMISO DE LA TIERRA DEL CAÑO MARTÍN PEÑA, Plaintiff, Appellant,

v.

Luis G. FORTUÑO, in his official capacity as Governor of the Commonwealth of Puerto Rico; Antonio M. Sagardía-De Jesús, in his official capacity as Secretary of Justice of the Commonwealth of Puerto Rico; Municipality of San Juan; Jorge Santini, in his official capacity as the Mayor of the Municipality of San Juan; Autoridad de Energía Eléctrica de Puerto Rico (AEE); Autoridad de Carreteras; Administración de Terrenos, Defendants, Appellees.

No. 09-1911.

United States Court of Appeals, First Circuit.

September 17, 2009

Heard Sept. 14, 2009.

Page 132

Judith Berkan, with whom Mary Jo Méndez, Berkan/Méndez, and Pedro J. Saadé, of the Clínica de Asistencia Legal de la Escuela de Derecho de la Universidad de Puerto Rico, were on brief for appellant.

Eliezer Aldarondo-Ortiz, with whom Aldarondo & López Bras, Eliezer A. Aldarondo, Claudio Aliff-Ortiz, Michael C. McCall, Mercado & Soto Law Offices, and Francisco J. Amundaray, were on brief for appellees the Municipality of San Juan and Mayor Jorge Santini.

Carlos E. Cardona-Fernández, with whom M & C Consultores Jurídicos, CSP, was on brief for appellee Administración de Terrenos.

Maymí, Rivera & Rotger, P.S.C. and ́ Angel Rotger Sabat, on brief for appellees Luis G. Fortuño and Antonio M. Sagardía-De Jesús.

Raúl Castellanos-Malavé, on brief for appellee Autoridad de Carreteras.

Orlando Durán-Medero, Miguel Pagán, and Pagán & Pagán Law Offices, on brief for appellee Autoridad de Energía Eléctrica de Puerto Rico.

Before Torruella, Ripple,[*] and Boudin, Circuit Judges.

PER CURIAM.

The basic principles that must guide our inquiry are well-established. Although a denial of a preliminary injunction is appealable, 28 U.S.C. § 1292(a)(1), this statutory authorization is to be construed strictly. Dr. JoséS. Belaval, Inc. v. Pérez-Perdomo, 465 F.3d 33, 36 (1st Cir.2006). A denial of a temporary restraining order (" TRO") is ordinarily not appealable,

Page 133

San Francisco Real Estate Investors v. Real Estate Invest. Trust of America, 692 F.2d 814, 816 (1st Cir.1982). It is appealable only if it has the practical effect of refusing an injunction, if it might have a serious, perhaps irreparable consequence, and if the order can be effectually challenged only by immediate appeal. Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981). Under our case law, an order has the practical effect of refusing an injunction if there has been a full adversary hearing, or, in the absence of review, further interlocutory relief is unavailable. Levesque v. State of Maine, 587 F.2d 78, 79 (1st Cir.1978).

I.

Applying these principles to the early proceedings before the district court, we cannot characterize the district court's rulings as the denial of a preliminary injunction.

The Trust first moved only for a TRO. It attempted to comply with the procedures required for a TRO. It filed its request on a Friday; that request was denied promptly on the following Monday. The Trust next filed an " Urgent Motion for Relief Related to Issuance of TRO, Scheduling of Hearing on Preliminary Injunction and Recusal." This submission was devoted mostly to the TRO with a request " in the alternative," for a preliminary injunction. 1 One week later, the district court denied this second motion, saying that it was denying a motion for reconsideration of the TRO and denying the Trust's request for a hearing on or before July 3. The district court did not give a reason for its denial, which is permissible in denying a TRO but not permissible in denying a preliminary injunction. See Fed.R.Civ.P. 52. Indeed, the district court never stated that it was denying a preliminary injunction. Moreover, neither of the plaintiff's motions had developed, to any meaningful degree, an argument for why the Trust would succeed on the merits. The motions simply evinced a desire for quick, temporary relief, the precise function of a TRO.

The characterizations of the parties and of the district court are not dispositive. However, it is important to note that the district court's method of proceeding here was no radical departure from the usual course. Preliminary injunctions and TROs are often requested together. The denial of a TRO does not become appealable if, before resolving the preliminary injunction, the district court denies a motion for reconsideration of the TRO or issues an order focusing the parties on particular issues that must be addressed in later proceedings. Such a rule effectively would deprive district courts of the ability to manage effectively the initial phases of such litigation.

Moreover, the district court's order cannot be...

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