San GerÓnimo Caribe Project Inc. v. Acevedo–vilÁ

• Decision Date: 17 June 2011
• Docket Number: No. 09–2566.,09–2566.
• Citation: 650 F.3d 826
• Parties: SAN GERÓNIMO CARIBE PROJECT, INC., Plaintiff, Appellant,v.Hon. Aníbal ACEVEDO–VILÁ, in his individual and personal capacity; Hon. Roberto Sánchez–Ramos, in his individual and personal capacity; Luis A. Vélez–Roche, P.E., in his individual and personal capacity; John Doe; Jane Doe, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

650 F.3d 826

SAN GERÓNIMO CARIBE PROJECT, INC., Plaintiff, Appellant,

v.Hon. Aníbal ACEVEDO–VILÁ, in his individual and personal capacity; Hon. Roberto Sánchez–Ramos, in his individual and personal capacity; Luis A. Vélez–Roche, P.E., in his individual and personal capacity; John Doe; Jane Doe, Defendants, Appellees.

No. 09–2566.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 2010.Decided June 17, 2011.

Background: Developer brought action against Secretary of Justice, former Governor, and head of Regulations and Permits Administration, after Administration issued order to hold in abeyance for 60 days construction permits relating to property for which construction was already under way. The United States District Court for the District of Puerto Rico, Daniel R. Domínguez, J., 663 F.Supp.2d 54, granted defendants' motion to dismiss, and developer appealed.

Holdings: The Court of Appeals, Torruella, Lipez, Circuit Judges, and Smith, District Judge, sitting by designation, held that:

(1) postdeprivation remedies were not sufficient to meet the requirements of due process, and

(2) defendants were entitled to qualified immunity on developer's due process claim.

Affirmed.

West CodenotesNegative Treatment VacatedWest's RCWA 29A.52.112, 29A.04.206, 29A.04.110, 29A.04.127, 29A.36.170, 29A.52.112, 29A.04.310, 29A.24.030, 29A.24.210, 29A.32.032, 29A.36.010, 29A.52.010, 29A.80.010, 42.12.040.

Richard H. Fallon, Jr., with whom John M. García, García & Fernández, Orlando Fernández, and Orlando Fernández Law Offices, were on brief for appellant.Susana I. Peñagarícano–Brown, Assistant Solicitor General, Department of Justice, with whom Irene S. Soroeta–Kodesh, Solicitor General, Leticia Casalduc–Rabell, Deputy Solicitor General, and Zaira Z. Girón–Anadón, Deputy Solicitor General, were on brief for appellees.

Before TORRUELLA and LIPEZ, Circuit Judges, and SMITH, ^* District Judge.TORRUELLA, Circuit Judge; LIPEZ, Circuit Judge; and SMITH, District Judge.

This appeal stems from a dispute involving the Paseo Caribe Project in San Juan, Puerto Rico. The controversy regarding the project concerned whether some of the lands on which the project was being built were part of the public domain and had therefore been improperly sold to a private party. Many opposed the construction of the project because it obstructed access to the San Gerónimo del Boquerón Fort.

The controversy prompted a legislative investigation and an opinion from the Puerto Rico Secretary of Justice finding that the lands were part of the public domain.¹ Op. Sec. Jus. No. 07–230–B of Dec. 11, 2007. As will be presently recounted, this was not the first opinion to be issued by a Secretary of Justice of the Commonwealth with respect to this matter. Relying on the Secretary of Justice's opinion, the Regulations and Permits Administration of Puerto Rico (“ARPE,” for its Spanish acronym) issued a resolution and order holding all permits for the Paseo Caribe Project in abeyance and ceasing construction for an initial period of sixty days. The ARPE issued this resolution and order without providing the project's developer, San Gerónimo Caribe Project, Inc. (“San Gerónimo”), with a meaningful hearing. After successful appeals in the Puerto Rico courts, San Gerónimo filed a complaint in the United States District Court for the District of Puerto Rico under 42 U.S.C. § 1983 due to the defendants' alleged violation of, inter alia, its procedural due process rights. San Gerónimo also included a Puerto Rico law tort claim under Article 1802 of the Puerto Rico Civil Code. The district court dismissed the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We affirm the dismissal of San Gerónimo's complaint.

I. Facts and Procedural History

Because the district court dismissed the case pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we view the well-pleaded facts in the light most favorable to San Gerónimo and draw all reasonable inferences in its favor. IOM Corp. v. Brown Forman Corp., 627 F.3d 440, 443 (1st Cir.2010); Fothergill v. United States, 566 F.3d 248, 251 (1st Cir.2009).

A. The Paseo Caribe Project and the Decisions of the Puerto Rico Courts

On January 12, 2000, the Puerto Rico Planning Board ² approved a proposal from San Gerónimo to develop the Paseo Caribe Project. The Paseo Caribe Project is a mixed residential, commercial and tourism project located in San Juan, Puerto Rico. On July 21, 2000, San Gerónimo purchased two parcels of land from Hilton International of Puerto Rico, Inc. (“Hilton International”). Shortly before, Hilton International had purchased the two parcels from the Hotel Development Corporation, a subsidiary of the Tourism Company of Puerto Rico.

In 2002, at the request of the Secretary of the Department of Natural Resources of Puerto Rico, the Department of Justice of Puerto Rico issued an opinion (the “2002 Department of Justice Opinion”), Op. Sec. Jus., No. 02–55–B of Oct. 28, 2002, concluding that the parcels sold in connection with the Paseo Caribe Project were not part of the public domain and could be sold without legislative action, despite the fact that the parcels were gained from the sea.

The ARPE issued all necessary permits for the development of the Paseo Caribe Project. San Gerónimo began construction in August 2002 and by 2007, it had invested over two hundred million dollars. As previously alluded to, in 2007, when part of the project was nearing completion, the Paseo Caribe Project became the target of negative publicity. This negative publicity was due to a small but persistent group of concerned citizens who claimed that the Paseo Caribe Project obstructed access to the San Gerónimo del Boquerón Fort. The group picketed the site and attempted to paralyze construction. This vocal group of protestors established a significant political constituency and received attention from the press.

The Puerto Rico legislature commenced an investigation and, in connection therewith, sought the advice of the Secretary of Justice, Roberto J. Sánchez Ramos, regarding public access to the San Gerónimo del Boquerón Fort. On December 11, 2007, Sánchez Ramos issued an opinion (the “2007 Department of Justice Opinion”), Op. Sec. Jus. No. 07–230–B of Dec. 11, 2007, in which he reversed the 2002 Department of Justice Opinion and concluded that San Gerónimo lacked valid title to some of the land on which the Paseo Caribe Project was being built. The 2007 Department of Justice Opinion stated that the land at issue was gained from the sea and therefore belonged to the public domain.³ As such, the land could not have been sold to a private party without legislative action. The 2007 Department of Justice Opinion recommended that state agencies reevaluate all permits granted in connection with the Paseo Caribe Project.

The next day, December 12, 2007, the Governor of Puerto Rico, Aníbal Acevedo Vilá, met with his cabinet. After this meeting, without granting San Gerónimo an opportunity for a hearing, Acevedo Vilá publicly ordered the pertinent administrative agencies to suspend all permits for the Paseo Caribe Project and to freeze all construction for an initial period of sixty days.

On December 14, 2007, the administrator of the ARPE, Luis A. Vélez Roche, invoked Puerto Rico's emergency adjudicatory procedure,⁴ P.R. Laws Ann. tit. 3, § 2167, and issued an order to show cause why the Paseo Caribe Project permits should not be held in abeyance and the construction suspended for sixty days in accordance with the 2007 Department of Justice Opinion. The ARPE scheduled a hearing for December 20, 2007.

Prior to the administrative hearing, San Gerónimo sought to quiet title in the lands at issue. Therefore, on December 19, 2007, San Gerónimo filed a complaint for declaratory judgment in the Puerto Rico Court of First Instance, requesting that the court enter judgment declaring that the parcels of land at issue are not part of the public domain and that title lawfully rests with San Gerónimo.

San Gerónimo appeared at the December 20, 2007 hearing. The ARPE panel consisted of two hearing examiners, one of whom stated that “the nature of the hearing [was] not adversarial” and that the purpose of the hearing was for the ARPE to “gather information ... so that [the ARPE] may make a determination regarding the Stay Order of the construction[ ]” on the Paseo Caribe Project. San Gerónimo presented a motion to dismiss and provided evidence of its valid title along with a copy of its complaint for declaratory judgment filed with the Puerto Rico Court of First Instance. San Gerónimo argued that the Department of Justice and the ARPE lacked jurisdiction to adjudicate the title over the property. The ARPE denied the motion to dismiss. The presiding officers stated that the issue of the validity of San Gerónimo's title would not be considered during the hearing. The presiding officer specifically stated that the ARPE's intent was to stop all construction until the issue of San Gerónimo's title was resolved.

During the hearing, San Gerónimo also claimed that its due process rights were being violated and that notice for the hearing had been insufficient. The ARPE did not introduce any evidence against San Gerónimo and did not charge it with any violations. The 2007 Department of Justice Opinion was not introduced into the record of the hearing.

On December 27, 2007, defendant Vélez Roche, administrator of the ARPE, issued a resolution and order holding the permits in abeyance and ceasing construction for a period of sixty days, with a proviso that the ARPE could extend that period if such extension was “in the public interest.” The ARPE's resolution did not address San Gerónimo's proprietary interest or that of the owners of the completed apartments.

San Gerónimo appealed the ARPE's order to the Puerto Rico Court of Appeals. On February 6, 2008, the Puerto Rico Court of Appeals concluded that...