El Dia, Inc. v. Hernandez Colon

• Decision Date: 03 March 1992
• Docket Number: No. 91-1868,91-1868
• Citation: 963 F.2d 488
• Parties: 20 Media L. Rep. 1210 EL DIA, INC., et al., Plaintiffs, Appellees, v. Rafael HERNANDEZ COLON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 488

963 F.2d 488

20 Media L. Rep. 1210

EL DIA, INC., et al., Plaintiffs, Appellees, v. Rafael HERNANDEZ COLON, Defendant, Appellant.

No. 91-1868.

United States Court of Appeals First Circuit.

Heard March 3, 1992.

Decided May 7, 1992.

Lino J. Saldana, with whom Saldana, Rey & Alvarado, Marcos A. Ramirez Irizarry, and Ramirez & Ramirez were on brief, for defendant, appellant.

E. Susan Garsh, with whom Jonathan M. Albano, Bingham Dana & Gould, Daniel R. Dominquez, Carmen Irizarry de Dominguez, and Dominguez & Totti were on brief, for plaintiffs, appellees.

James E. O'Connell, Jr., Murphy and O'Connell, Jane E. Kirtley, and Rebecca Daugherty on brief, for Reporters Committee for Freedom of the Press, amicus curiae.

Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

The Governor of Puerto Rico appeals from a judgment that struck down an Executive Order on constitutional grounds. El Dia, Inc. v. Hernandez Colon, 783 F.Supp. 15 (D.P.R.1991). We direct the district court to vacate its grant of declaratory and injunctive relief.

I. THE EXECUTIVE ORDER

On April 15, 1991, in the roiled wake of a bitter controversy anent public access to government documents, and most especially, access to records reflecting the chief executive's off-island travel expenses, Governor Hernandez Colon issued Executive Order OE 1991-15. The Executive Order is reproduced in an appendix to the district court's rescript. See El Dia, Inc., 783 F.Supp. at 27-31.

The Order starts with six unnumbered "whereas" clauses. For the most part, these hortatory clauses limn a series of underlying aspirations. The fourth clause recites a litany of nine factors which, in the Governor's view, ought properly to restrict rights of access to public documents. In its directory paragraphs, the Order commands a broad array of government agencies "to establish the necessary internal regulations for the search, evaluation, inspection and reproduction of the public documents requested by ... interested persons and to establish [fee schedules for same]." Id. at 28. ¹ While the agencies retain some latitude in framing regulatory particulars, each agency's rules must cover eleven specific points "as a minimum."

The Order's "minimum requirements ... t[ook] effect as an emergency measure in each of the Agencies" on April 15, 1991. Id. at 31. Each agency was directed "to establish its necessary rules for compliance with th[e] Executive Order" within sixty days thereafter. Id.

II. THE CHALLENGE

On April 22, 1991, El Dia, Inc., the publisher of a daily newspaper, and Andrea Martinez de Jesus, a reporter, sued in the United States District Court for the District of Puerto Rico to declare the Order unconstitutional and enjoin its enforcement. ² The plaintiffs charged that several of the Order's provisions violated their First Amendment right of informational access; impermissibly chilled expression; thwarted freedom of the press; contravened due process; and undercut equal protection of the laws. On April 25, the plaintiffs filed a somewhat similar complaint in the Puerto Rico Superior Court. The paramount difference between the two suits was that the plaintiffs' federal court action sought relief under federal law (principally, the United States Constitution) whereas the plaintiffs' superior court action sought relief under local law (principally, P.R.Laws Ann. tit. 32, § 1781). ³

In response to the federal action, the Governor raised questions about the plaintiffs' standing. He also claimed that the Order filled a regulatory void and comprised a "vehicle for access" rather than a restriction upon it. The Governor contended, furthermore, that the Order constituted a permissible regulation of expressive activities--a regulation whose terms and principles were anchored in, and would be interpreted by reference to, Puerto Rican jurisprudence. The Governor's response to the superior court action, although not a part of the present record, was presumably along the same lines.

The early bird does not always catch the worm. Despite the fact that the federal suit had a three-day head start, matters proceeded more celeritously in the newer action. On April 30, the superior court granted a preliminary injunction (the TRO) blocking enforcement and implementation of OE 1991-15 "until a final decision is made as to whether [OE 1991-15] is or is not a valid regulatory exercise on the part of the [Commonwealth]." The TRO is still in force.

Notwithstanding their success in obtaining the TRO, the plaintiffs continued to press the federal court action. In due course, the opposing sides cross-moved for summary judgment. On July 18, 1991, the district court granted plaintiffs' motion against Hernandez Colon. El Dia, Inc., 783 F.Supp. at 27. The court resolved the issue of standing in plaintiffs' favor, concluding "that the executive order effectively deters [plaintiffs] in obtaining information from the government, thus, they have a cognizable injury that can be redressed by this court." Id. at 19. Having reached the merits, and discerning no genuine issues of material fact, the court ruled that a qualified First Amendment right of access existed with respect to government documents such that access thereto could be curtailed only on the basis of a "substantial compelling interest." Id. at 23. The court found that, far from achieving this benchmark, the Order unduly burdened "the flow of information," thereby "inhibit[ing] public criticism of public officials." Id. at 21. In the court's view, the resultant restraint was "inconsistent with the First Amendment," id., and, moreover, infracted constitutional guarantees of due process and equal protection. See id. at 25. The district court declared the Order a nullity and permanently enjoined the Governor from enforcing it. Id. at 27. This appeal followed.

III. STANDARD OF REVIEW

Some courts of appeals exhibit no deference whatever to the trier in the declaratory judgment context, affording plenary review of orders granting or denying declaratory relief. See, e.g., Allstate Ins. Co. v. Mercier, 913 F.2d 273, 277 (6th Cir.1990); Gayle Mfg. Co. v. Federal Sav. & Loan Ins. Corp., 910 F.2d 574, 578 (9th Cir.1990); see also Hanes Corp. v. Millard, 531 F.2d 585, 591 (D.C.Cir.1976) (grants or denials of declaratory relief are subject to "quite searching review"). Other courts of appeals show greater respect to the trier, affirming unless an abuse of discretion looms. See, e.g., Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1081, 112 L.Ed.2d 1186 (1991); Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1273 (10th Cir.1989).

We have occupied the middle ground, utilizing a form of independent review when passing upon orders granting or withholding declaratory relief. See National R.R. Passenger Corp. v. Providence & Worcester R.R. Co., 798 F.2d 8, 10 (1st Cir.1986) ("Our review of a district court's decision to grant or deny declaratory relief is conducted under a standard slightly more rigorous than abuse of discretion."); accord Century Indem. Co. v. McGillacuty's, Inc., 820 F.2d 269, 270 (8th Cir.1987). This approach requires that we attentively digest the facts and the district court's stated reasons for granting or withholding declaratory relief. If we conclude that a different result should have been reached, then we will reverse or modify the judgment below. If, however, the decisional scales tip in favor of the district court's solution, or if the scales are in equipoise, then the judgment will stand. Bluntly put, we cede some deference to the trier, especially as to findings of fact, but we will not hesitate to act upon our independent judgment if it appears that a mistake has been made. Accord Century Indem., 820 F.2d at 270.

The posture of the instant appeal also affects the calculus of review. Here, the lower court acted on cross-motions for summary judgment rather than after a trial or evidentiary hearing. In that mode, the judge could not serve as a factfinder; rather, he was required to scrutinize the record in the light most flattering to the party opposing summary judgment, indulging all reasonable inferences in that party's favor. ⁴ See Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990); Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). Clearly, the case for deference is at its lowest ebb in a situation like this one, where the district court was powerless either to make credibility determinations or to resolve factual conflicts.

We must, therefore, afford a particularly stringent version of independent review to the judgment below. ⁵

IV. DISCUSSION

The Declaratory Judgment Act is uncommon in that it neither imposes an unflagging duty upon the courts to decide declaratory judgment actions nor grants an entitlement to litigants to demand declaratory remedies. ⁶ See Green v. Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985); Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952); Terra Nova Ins. Co. v. 900 Bar, Inc., 887 F.2d 1213, 1222 (3d Cir.1989). In other words, declaratory relief, both by its very nature and under the plain language of 28 U.S.C. § 2201, is discretionary. Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 581, 7 L.Ed.2d 604 (1962) (per curiam); Kunkel, 866 F.2d at 1273. The federal courts' obligation to decide virtually all questions within their jurisdiction is, to that extent, curtailed when complainants seek declaratory relief. See Mitcheson v. Harris, 955 F.2d 235, 237-38 (4th Cir.1992); Terra Nova, 887 F.2d at 1222.

Declaratory judgment actions, being statutory creatures, are neither inherently legal nor inherently equitable. See Moretrench Am. Corp. v. S.J. Groves & Sons Co., 839 F.2d 1284, 1286 (7th Cir.1988); American Safety Equip. Corp. v. J.P. Maguire & Co., 391 F.2d 821, 824 (2d Cir.1968). Nonetheless, it is...