Antilles Cement Corp. v. Acevedo Vila

• Decision Date: 25 May 2005
• Docket Number: No. 04-1232.,No. 04-1231.,No. 03-2713.,03-2713.,04-1231.,04-1232.
• Parties: ANTILLES CEMENT CORPORATION, Plaintiff, Appellee, v. An&#205;bal ACEVEDO VIL&#193;, Governor of the Commonwealth of Puerto Rico,<SMALL><SUP>*</SUP></SMALL> et al., Defendants, Appellants. Puerto Rican Cement Corporation, Inc., Intervenor, Appellant.
• Court: U.S. Court of Appeals — First Circuit

408 F.3d 41

ANTILLES CEMENT CORPORATION, Plaintiff, Appellee, v. AnÍbal ACEVEDO VILÁ, Governor of the Commonwealth of Puerto Rico,^* et al., Defendants, Appellants Puerto Rican Cement Corporation, Inc., Intervenor, Appellant.

No. 03-2713.

No. 04-1231.

No. 04-1232.

United States Court of Appeals, First Circuit.

Heard March 8, 2005.

Decided May 25, 2005.

Doraliz E. Ortiz-de-Leon, Assistant Solicitor General, with whom Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth Pamias-VelÁzquez, Deputy Solicitor General, were on brief, for appellants.

Juan Ramón Cancio, with whom Patricia Ramírez Gelpí, Cancio Covas & Santiago, LLP, Dora L. Monserrate Peñagarácano, Rubén T. Nigaglioni, and Nigaglioni & Ferraiouli Law Offices, PSC were on brief, for intervenor.

Lino J. Saldaña for appellee.

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

SELYA, Circuit Judge.

In the proceedings below, the district court declared two statutes enacted by the Puerto Rico legislature — one requiring the use of Puerto Rican cement in publicly funded construction projects and the other requiring special labels for cement manufactured elsewhere — antithetic to the dormant Foreign Commerce Clause of Article I, section 8 of the United States Constitution and enjoined their enforcement. The defendants (government officials sued in their representative capacities) appeal. They are joined by an intervenor, Puerto Rican Cement Corporation (PRCC).

Despite the obvious importance of the case, two questions of statutory interpretation — one critical to the resolution of these appeals and another of potential significance — were not addressed below. Perhaps more troublesome, we do not have a fully developed record to assist us in their resolution. This unfinished business sends up a red flag: courts should not hurry to resolve issues of great public import on the basis of incomplete information. Consequently, we return the case to the district court for further proceedings consistent with this opinion.

I. THE STATUTORY SCHEME

On July 12, 1985, the Puerto Rico legislature enacted Law 109, codified at 3 P.R. Laws Ann. §§ 927-927h, which, inter alia, requires the use of "construction materials manufactured in Puerto Rico" in all construction works financed with public funds. Id. § 927a. "Public funds" are defined as "funds or guarantees from the Commonwealth or from the United States Government, and those funds provided by federal laws for the purposes of revitalizing the economy." Id. § 927(f).

The scope of the law's application is unclear. The statute states that in "those cases in which a call for bids is required for the contracting of a construction work with public funds," the building specifications must contain a provision mandating the use of Puerto Rican construction materials. Id. § 927a. This section does not expressly limit the law's scope to situations in which the Commonwealth, or an agency of the Commonwealth, is the contracting entity. By contrast, section 927b provides that the law applies to projects not requiring competitive bidding when "the Commonwealth contracts a construction work." Id. § 927b. The law also applies to situations in which the Commonwealth undertakes construction to its own behoof. Id. § 927c. The Puerto Rico Supreme Court has never spoken to the scope of Law 109, nor has it interpreted the relationship among its various sections.

In all events, the requirements of Law 109 are rendered inapplicable in two sets of circumstances. First, the law does not hold with respect to any particular construction material when the cost associated with the use of local, as opposed to off-island, material would exceed a certain percentage set by the Puerto Rico Board of Preference for Government Purchases (Preference Board). See id. § 927e(a); see also id. §§ 914a-914k. Second, the law does not apply if indigenous construction materials are not available in sufficient quantity or quality. Id. § 927e(b).

While the statute covers a myriad of construction materials, only one — cement — is specifically defined. See id. § 927(d). "Cement manufactured in Puerto Rico" is described as that cement created from Puerto Rican raw materials, save only for components not available in industrial quantities from Puerto Rican sources. Id. The term "cement" as used in the statute encompasses "cement blocks, pre-mixed concrete, concrete mixed at the site and mixture for plastering." Id.

The statute not only confers the standard statutory exemptions upon cement but also allows the use of off-island cement for up to six months "in a case of force majeure or for causes or reasons beyond the control of the local factory." Id. This six-month window may be extended for up to six additional months if the Preference Board approves. Id.

Law 109's Statement of Motives explains that, at the time of the law's passage, Puerto Rico was experiencing a severe recession in the construction industry. See Act of July 12, 1985, No. 109, 1985 P.R. Laws 378, 379. The cement industry was a prominent player in the construction market, and it had suffered as a result. Id. Expressing concern about the loss of high-paying jobs and the reduction in the tax base accompanying the decline in the local cement industry, the legislature enacted the law to provide "greatly needed aid for [its] rehabilitation." Id.

There is a second statute at issue here. On September 17, 2001, the Puerto Rico legislature passed Law 132, requiring, inter alia, all bags of cement manufactured outside of Puerto Rico to carry a warning label, in both Spanish and English, stating that "in accordance with the federal laws (41 U.S.C. sec 10a et seq.) and the laws of Puerto Rico (§§ 927 et seq. of Title 3), th[is] cement shall not be used in construction works of the governments of the United States and of Puerto Rico nor in works financed with funds from said governments except in the specific cases established in said laws." 10 P.R. Laws Ann. § 167e(a)(4). Bags of foreign cement that are not so labeled cannot be sold within the Commonwealth. Id. § 167e(b). Law 132's Statement of Motives reiterated that cement is the principal material used in Puerto Rico construction projects. See Act of Sept. 17, 2001, No. 132, 2001 P.R. Laws 637, 638.

II. TRAVEL OF THE CASE

On April 30, 2002, Antilles Cement Corporation (Antilles), a Puerto Rico corporation engaged solely in importing foreign-made cement for distribution in the Commonwealth, brought suit against the governor of Puerto Rico and other executive branch officials in their representative capacities.¹ The complaint sought a declaration (i) that Law 109 and Law 132 are unconstitutional as applied to cement imported from foreign nations and (ii) that Law 109 is preempted by both the Buy American Act (BAA), 41 U.S.C. §§ 10a-10d, and section 165 of the Surface Transportation Assistance Act of 1982 (STAA), Pub.L. No. 97-424, 96 Stat. 2097. The complaint also sought concomitant injunctive relief.

Before the Commonwealth answered the complaint, Antilles filed a motion for summary judgment, appending thereto a series of affidavits and other exhibits. These exhibits included a letter from the Preference Board noting that there were only two manufacturers of cement in Puerto Rico (PRCC and ESSROC San Juan, Inc.). The letter verified that the Preference Board required indigenous cement to be used in projects subject to Law 109 so long as it cost no more than 115% of the price of off-island cement.

The Commonwealth asked the court to deny the summary judgment motion without prejudice on the ground that discovery had not yet commenced. Subsequently, Antilles abandoned its claim that the BAA preempted Law 109. At that juncture, the Commonwealth answered the amended complaint.

On October 16, 2003, the district court rejected the Commonwealth's request to deny the summary judgment motion pro forma. See Antilles Cement Corp. v. Calderón, 288 F.Supp.2d 187, 190-91 (D.P.R. 2003). The court proceeded to decide the merits of that motion. First, it ruled that Antilles lacked standing to raise STAA preemption, as that law only proscribes discrimination against certain domestic construction materials. Id. at 193. Antilles does not challenge this ruling on appeal. Next, the court inquired whether Law 109 and/or Law 132 infringed the dormant Foreign Commerce Clause. Finding that Law 109 discriminated on its face against foreign commerce, the court concluded that the law was "virtually per se invalid." Id. at 199 (citing Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct 2531, 57 L.Ed.2d 475 (1978)). The court deemed the interests asserted by the Commonwealth — essentially, the economic benefits accruing to the local economy — far outweighed by the federal government's interest in "speaking with one voice" with respect to international trade. Id. Relatedly, the court determined that although the Commonwealth was acting as a market participant, the market participant exception was not available to it in a case which, like this one, involved foreign commerce. Id. at 197. Finally, the court inquired whether congressional authorization shielded Law 109 from attack under the dormant Foreign Commerce Clause and answered that inquiry in the negative. Id. at 199-201.

Based on this reasoning, the court declared Law 109 unconstitutional. Id. at 201. The court simultaneously held Law 132 unconstitutional to the extent that it required labels on bags of cement that specifically referenced the use restrictions established by Law 109. Id. at 202. It enjoined enforcement of both statutes.

The Commonwealth filed a motion to reconsider or, in the alternative, to alter or amend the judgment. See Fed.R.Civ.P. 59(e). On December 17, 2003, the district court summarily denied the motion. The next day, PRCC moved to intervene for the purpose of prosecuting an appeal. See Fed.R.Civ.P. 24. The putative intervenor asserted that it had an...