Ochoa Realty Corp. v. Faria

• Decision Date: 06 April 1987
• Docket Number: No. 86-1874,86-1874
• Parties: OCHOA REALTY CORP., Plaintiff, Appellant, v. Rafael A. FARIA, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 812

815 F.2d 812

OCHOA REALTY CORP., Plaintiff, Appellant, v. Rafael A. FARIA, et al., Defendants, Appellees.

No. 86-1874.

United States Court of Appeals, First Circuit.

Argued March 4, 1987.

Decided April 6, 1987.

Robert E. Schneider, Jr., San Juan, P.R., with whom Juan E. Rodriguez Diaz, Hato Rey, P.R., Wallace Gonzalez Oliver, and Jorge R. Jimenez, San Juan, P.R., were on brief for plaintiff, appellant.

Reina Colon de Rodriguez, Asst. Sol. Gen., with whom Rafael Ortiz Carrion, Sol. Gen., and Norma Cottii Cruz, Deputy Sol. Gen., San Juan, P.R., were on brief for defendants, appellees Rafael A. Faria, Luis R. Landrau and Dario Hernandez Torres.

Alvaro R. Calderon, Jr., Hato Rey, P.R., for defendant, appellee Luis F. Quinones.

Before BOWNES and SELYA, Circuit Judges, and PETTINE, ^* Senior District Judge.

SELYA, Circuit Judge.

Once again, we are confronted with a challenge to activities undertaken by public officials in the Commonwealth of Puerto Rico in the course of land-use planning and related matters. The plaintiff/appellant, Ochoa Realty Corporation (Ochoa), owned three contiguous parcels of land in Hato Rey, totalling roughly 60,732.5 square meters in aggregate area. In a damage action which it filed in the United States District Court for the District of Puerto Rico, Ochoa alleged an unconstitutional "taking" of this large and valuable tract. It sought declaratory and injunctive redress, money damages, and associated relief under 42 U.S.C. Secs. 1983, 1985. Later, the Commonwealth commenced an eminent domain proceeding (known as an "expropriation" proceeding) in a local court. Ochoa, preferring the forum of its choice, resorted to 28 U.S.C. Sec. 1441(b) and removed the expropriation case to the federal district court.

In a series of decisions handed down at various intervals, the district judge dispatched all aspects of the two cases short of trial. On September 30, 1985, she remanded the expropriation case to the superior court. On April 14, 1986, she granted summary judgment in favor of one defendant (Quinones) in the civil rights action. Within the next few days, she jettisoned all of the prayers for declaratory and injunctive relief as moot, and dismissed the damage claims against two more defendants (Faria, Landrau). See Ochoa Realty Corp. v. Faria, 634 F.Supp. 723 (D.P.R.1986). On June 9, 1986, the last remaining defendant's motion to dismiss was granted. The district court denied Ochoa's motions to amend the resultant judgments. Fed.R.Civ.P. 52(b). This appeal ensued.

I. BACKGROUND

Because the district court did not reach the merits of the suits, we accept as true the well-pleaded factual averments contained in Ochoa's latest version of its civil rights complaint, and construe them most hospitably to the appellant's cause. See Kugler v. Helfant, 421 U.S. 117, 125-26 & n. 5, 95 S.Ct. 1524, 1531 & n. 5, 44 L.Ed.2d 15 (1975); Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.1987). "We exempt, of course, those 'facts' which have since been conclusively contradicted by plaintiffs' concessions or otherwise, and likewise eschew any reliance on bald assertions, unsupportable conclusions, and 'opprobrious epithets.' " Id. (citation omitted). ¹ We limit our account, however, to those facts which are necessary to place the issues on appeal into perspective and to explain why we affirm the judgments below.

The plaintiff charged that, sometime prior to 1974, the defendants and their predecessors in office, acting under color of law, designed the so-called Ramal Este highway to run through Ochoa's property. The defendants, it was said, shelved this plan in 1978, but replaced it with a mass transit project known as Agua-Guagua. According to the appellant, these projects so fragmented the subject property as to "render it useless and destroy its value." ²

In October 1984, Ochoa sued, alleging that its property had been taken without due process of law and without just compensation. The named defendants, appellees before us, eventually comprised the following public officials: Rafael A. Faria, former secretary of Puerto Rico's Department of Transportation and Public Works; Dario Hernandez-Torres, Faria's successor; Luis E. Landrau, former executive director of the Puerto Rico Highway Authority; and Luis F. Quinones, former executive director of the Puerto Rico Land Administration. Ochoa demanded, inter alia, money damages in the amount of $18,000,000.

In March of 1985, the Commonwealth instituted the expropriation action in Puerto Rico superior court. These condemnation proceedings were aimed at only those portions of the tract which would be used to build the proposed Agua-Guagua system. In connection with this initiative, the Commonwealth deposited $1,023,151 (its estimate of compensation due vis-a-vis its partial acquisition of the appellant's land) with the court. Ochoa swiftly removed the expropriation suit to federal court, so as to effect consolidation with its pending Sec. 1983 action.

There followed a spate of activity, much of which we have already catalogued. It suffices to say that the sum and substance of the district court's orders was to return the expropriation case to the Commonwealth forum and to extinguish all of the plaintiff's pending federal civil rights claims. In so doing, the district court found that Ochoa's prayers for equitable relief--the plaintiff had requested that the court, in the absence of any formal exercise of the power of eminent domain, enjoin further work on Agua-Guagua and order the defendants to declassify the property, thereby restoring it to its previous state and condition--had been mooted by the institution of the expropriation proceedings, and that no facts had been put forward sufficient to make out a federally cognizable damage claim against any of the named defendants.

II. THE REMAND ORDER

Once a suit has been removed from state to federal court--and Puerto Rico is for this purpose equivalent to a "state"--28 U.S.C. Sec. 1447(c) provides for remand if "the case was removed improvidently and without jurisdiction." Where, as here, a district court has exercised its power to remand under Sec. 1447(c), the imperative of 28 U.S.C. Sec. 1447(d) comes into play. That statute, with a narrow exception not applicable here, ³ declares in pertinent part that:

[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal, or otherwise,....

28 U.S.C. Sec. 1447(d).

The Court has recognized that the statute means exactly what it says; the provision anent nonreviewability comprises an "unmistakabl[e] command[ ]." Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam). See also Noel v. McCain, 538 F.2d 633, 635 (4th Cir.1976) (Section 1447(d) "denies appellate courts jurisdiction to review an order remanding a case because it does not raise a federal question...."); Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d 155, 156-57 (3d Cir.1971) (per curiam) (similar).

The appellant claims that Sec. 1447(d) does not preclude scrutiny of this remand order because of our holding in James v. Bellotti, 733 F.2d 989 (1st Cir.1984). That assertion is vapid. In James, the federal district court refused to remand a suit seeking injunctive relief--and then refused the injunction. An immediate appeal was taken. We pointed out that the "denial of an injunction is an appealable interlocutory order under 28 U.S.C. Sec. 1292(a)(1), and the refusal to remand to the state court, though not directly appealable by itself, is reviewable in conjunction with the interlocutory appeal." Id. at 992 (emphasis supplied). As can readily be appreciated, James reaffirmed, rather than undermined, the generic nonreviewability of orders touching upon remand.

Moreover, James differs from the case at bar in several material respects. We advert to but two. First, James did not involve a district court's remand order, but a district court's rebuff of a suggested remand. Second, there was only a single suit before the district court in the immediate James context; the (nonappealable) order declining remand was inextricably linked within the same case to the (appealable) order denying injunctive relief. That is simply not Ochoa's situation: the expropriation proceeding was a separate and distinct case, and the only order made therein was the district court's grant of the motion to remand. Unless Sec. 1447(d) is to be ignored--a step which we have no warrant to take--Ochoa's disappointment with the remand cannot clear the towering jurisdictional hurdle erected by the Congress.

The court below quite plainly indicated that its remand of the condemnation case was bottomed on the lack of any cognizable federal question. The court expressly concluded that it was bereft of jurisdiction and rejected plaintiff's contrived argument that the proceedings arose under the federal Urban Mass Transportation Act, 49 U.S.C. Secs. 1601 et seq. To be sure, the absence of federal question jurisdiction seems apparent. But, that is not the point. Whether or not the district judge was correct in her conclusion, Ochoa's appeal of the district court's remand order flies in the face of the "unmistakable command" of 28 U.S.C. Sec. 1447(d). We have no jurisdiction to entertain it.

III. EQUITABLE RELIEF

Appellant next argues that the district court improperly dismissed its claims for declaratory and injunctive relief. We disagree, and briefly limn our reasons.

The court below dismissed these claims as moot because the Commonwealth had finally brought an expropriation action against those portions of the Ochoa property directly implicated by the project under design. The appellant does not dispute that the Commonwealth enjoys the sovereign power of eminent domain. And, it is the well settled law of Puerto Rico that condemnees like Ochoa, in addition to receiving fair compensation for land actually taken, are entitled to severance...