Rodriguez-Vazquez v. Solivan Solivan, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [16-1192]

Case: 16-1192

Document: 00117097350

Page: 1

Date Filed: 12/23/2016

Entry ID: 6057546

United States Court of Appeals
For the First Circuit
No. 16-1192
ERASMO RODRÍGUEZ-VÁZQUEZ,
Interested Party, Appellant,
JOSÉ LUIS DÍAZ-COLÓN, on his own behalf and on behalf of his
minor son J.L.D.R.; LINDA DELGADO, on behalf of her minor
daughter D.M.D.D.; ZORAIDA COLÓN-CARTAGENA; PEDRO DÍAZ; PEDRO
LUIS DÍAZ-COLÓN; YAHAIRA ENID DÍAZ-COLÓN; LOURDES DE JESÚSVELÁZQUEZ, on her own and on behalf of her minor children
J.L.S.D.; J.L.L.S.D. and L.S.D., on their own and as legal heirs
of Leopoldo Sanabria-Díaz; ALBAELA DÍAZ-CARABALLO; LEONARDO
SANABRIA-DÍAZ; JENNIFER PIRIS-JUSINO, on her own and on behalf
of her minor daughter G.R.P.; LUCY GUZMÁN-BORRERO; CARMELO
VELÁZQUEZ-COLÓN; CARMELO COLÓN-RIVERA; ORLANDO COLÓN-VELÁZQUEZ;
ORLANDO RAMOS-FÉLIX; JOSEFA FÉLIX; JOSÉ ANTONIO FÉLIX; ELISEO
RAMOS-FÉLIX; JUAN MARCOS MERCED-GÓMEZ; HÉCTOR MERCED-RODRÍGUEZ;
MARÍA E. GÓMEZ-VELÁZQUEZ; LEOPOLDO SANABRIA-MORALES; MARIBEL
ORTIZ-VÁZQUEZ, on behalf of minor, J.M.S.O.; ANA LUISA DÍAZRIVERA; YOLANDA ORTIZ-DÍAZ; EVELYN ORTIZ-DÍAZ; LUIS DANIEL
ORTIZ-DÍAZ; DIGNO ORTIZ-DÍAZ; FRANCIS I. LÓPEZ-DÍAZ; CHELSEA LUZ
MERCED,
Plaintiffs,
v.
ANÍBAL SOLIVAN SOLIVAN; HÉCTOR TIRADO; DANIEL COLÓN; FRANCISCO
BÁEZ-QUIÑONES; JESÚS FIGUEROA-CRUZ; JESÚS FIGUEROA DE JESÚS;
JOSÉ FUENTES AGOSTINI; DISTRICT ATTORNEY GABRIEL REDONDO;
DISTRICT ATTORNEY JOSÉ FIGUEROA-ZAYAS; DISTRICT ATTORNEY JOSÉ
CAPÓ; JUAN JOSÉ TOLEDO-BAYOUTH; JOSÉ TOLEDO-BAYOUTH; FERNANDO
TOLEDO-BAYOUTH; PEDRO J. TOLEDO-BAYOUTH,
Defendants, Appellees,
FNU CANDELARIA; UNKNOWN POLICE OFFICERS A TO J; DISTRICT
ATTORNEY ULPIANO-CRESPO; ESTATE OF ULPIANO CRESPO, comprised of
unknown individuals K through S; UNKNOWN DISTRICT ATTORNEYS T
THROUGH Z; ZOÉ DÍAZ-COLÓN; CONJUGAL PARTNERSHIP BÁEZ-DOE;

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CONJUGAL PARTNERSHIP CAPÓ-DOE; CONJUGAL PARTNERSHIP COLÓN-DOE;
CONJUGAL PARTNERSHIP DÍAZ-DOE; CONJUGAL PARTNERSHIP FIGUEROADOE; CONJUGAL PARTNERSHIP FUENTES-DOE; CONJUGAL PARTNERSHIP
REDONDO-DOE; CONJUGAL PARTNERSHIP SOLIVAN-DOE; CONJUGAL
PARTNERSHIP TIRADO-DOE; CONJUGAL PARTNERSHIP TOLEDO-DOE; JANE
DOE; JOHN DOES, unknown District Attorneys, Police and Penal
Officers,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Torruella, Thompson, and Kayatta,
Circuit Judges.

Guillermo Ramos Luiña for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice for the Commonwealth of Puerto Rico, with
whom Margarita L. Mercado-Echegaray, Solicitor General, Department
of Justice for the Commonwealth of Puerto Rico, was on brief, for
appellees.

December 23, 2016

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KAYATTA, Circuit Judge.

Date Filed: 12/23/2016

Entry ID: 6057546

In settling a civil lawsuit

against public officials, the parties in this case convinced the
district court to issue a report that the parties and the district
court

have

treated

as

a

gag

order

barring

the

parties

disclosing the terms and conditions of the settlement.

from

In short

order, Erasmo Rodríguez-Vázquez ("Rodríguez"), a lawyer assisting
one of the parties, made statements about the settlement to the
local press.

Unhappy with the press coverage of their secretive

settlement, the public officials who were parties to the settlement
obtained an order from the district court holding Rodríguez in
contempt and referring him to the Commonwealth of Puerto Rico's
Supreme Judicial Court for disciplinary review.

Finding no basis

in the record to support the contention that Rodríguez violated
any court order, we reverse.
I.
In 1999, several people were wrongfully convicted of
murder based in large part on the allegedly false testimony of one
key witness.

See Díaz-Colón v. Fuentes-Agostini, 786 F.3d 144,

145 (1st Cir. 2015).

After one of those people committed suicide

in prison, the witness "came forward to recant her testimony,
claiming that law enforcement personnel had coerced and bribed her
into giving fabricated testimony."
appealed

to

convictions

Puerto
were

Rico's

vacated,

Id.

Supreme

and

the

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The criminal defendants
Judicial

charges

Court,

against

them

their
were

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dropped.

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Rodríguez was appointed to represent one group of the

criminal defendants in that appeal; he successfully worked to
obtain the reversal of their criminal convictions.
The wrongfully convicted individuals and/or their heirs
or assigns brought two suits, consolidated into this single case,
against the police officers and prosecutors who had been involved
in their prosecutions.

Various defendants filed a motion for

summary judgment on the basis of absolute or qualified immunity,
which the district court denied.

On interlocutory appeal, we

affirmed the district court's ruling as to all but one defendant,
and we sent the case back to the district court in anticipation of
trial.

See id.
At that juncture, the parties to the civil lawsuit

reached

a

settlement

magistrate judge.

following

discussions

mediated

by

a

At the parties' request, the magistrate judge

memorialized the settlement--which had not yet been reduced to
writing--in a "Fourth Settlement Conference Report."

The aptly

named "Report" did just that: it reported the terms and conditions
of the parties' as-yet-unwritten agreement, including three terms
relevant to this appeal:

(1) "The settlement agreement shall not

signify acceptance of liability regarding the facts alleged in the
complaint";

(2)

"The

parties

shall

maintain

in

strict

confidentiality all the terms and conditions of the settlement

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agreement"; and (3) "The court shall retain jurisdiction to enforce
all the terms and conditions of the settlement agreement."
The parties to this appeal, including Rodríguez, treat
the Report as if it actually ordered compliance with the terms and
conditions it reported.

While that reading could be questioned,

in the absence of any argument by anyone that the Report was not
an order to comply with the terms of the reported settlement, we
will assume the parties' shared understanding to be correct.

The

parties also all assume that the magistrate judge had the power to
issue an order enjoining certain prospective conduct, but see 28
U.S.C. § 636(b)(1), so we shall as well, given the parties'
apparent unanimous consent, id. § 636(c).

Finally, Rodríguez

waives any argument that he was not subject to the assumed order.
Four days after the magistrate judge entered the Report,
a regional weekly newspaper called El Regional published an article
titled, "The circle is closed."1

The article stated that the

plaintiffs achieved victory against the Puerto Rican government by
way of settlement, but they were going to receive much less than
the ten million dollars they initially sought.

The precise amount

the plaintiffs would be paid under the settlement was not stated
"because of the court's confidentiality agreements," but the paper

1

The article was written in Spanish; this title, along with
the excerpted language that follows, is taken from the certified
translation to which the district court referred during the
contempt hearing.

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noted that it would be a small fraction of their claimed damages
and it might take several years for the amount to be paid out.
The article then quoted Rodríguez as saying:
It was inconvenient for them (the government)
to fight it because of the Circuit's (of
Boston)
decision
and
because
of
the
implications made by both the federal and
Circuit courts. . . .
This case is a
vindication of the plaintiffs' rights. It is
never payment for the damages suffered,
because that will not cover the loss of the
lives of Manuel Ortiz and Leopoldo Sanabria;
that has no price.
Or the death of Hector
Merced; that has no price, and the damage will
never be compensated, but at least there is
that implicit recognition of the violation of
the plaintiffs' civil rights.
No plaintiffs were quoted in the piece, nor were any of the
plaintiffs' attorneys.
The

defendants

claimed

"breach,"

or

more

precisely

"violation," triggering civil contempt proceedings that eventually
targeted Rodríguez.

After conducting an evidentiary hearing, the

district court found that Rodríguez made only the quoted statement
directly attributed to him.

The district court further found that

the quoted statement violated the order because it revealed a term
or condition of the settlement agreement.
II.
A.
Rodríguez's first argument on appeal is that there is
insufficient evidence to support the finding that he made even the

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statement directly attributed to him.
argument.

We easily reject this

The article itself was entered into evidence at the

contempt hearing without objection or restriction.
identified

Entry ID: 6057546

Rodríguez

as

the

source

of

the

It expressly

quoted

Rodríguez, in turn, never testified otherwise.

statement.

Such a record

provides ample support for the district court's fact finding in a
civil contempt proceeding. See Langton v. Johnston, 928 F.2d 1206,
1218–19 (1st Cir. 1991).
This
argument:

brings

us

Rodríguez's

second,

and

better,

that the statement he was found to have made did not

violate the court's order.
broad

to

reading

of

the

As a preliminary matter, we eschew any

court's

order

Rodríguez's statement violated it.

when

determining

whether

As construed by the district

court and the parties, the order constituted a prior restraint on
speech.

Such restraints bear "a heavy presumption against [their]

constitutional validity," N.Y. Times Co. v. United States, 403
U.S. 713, 714 (1971) (quoting Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963)), and even when valid are narrowly construed,
cf. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555–56 (1975)
(exceptions to the doctrine of prior restraint are few and narrow).
Principles of contempt similarly counsel against any broad reading
of the presumed order: a finding of contempt for violating a court
order should issue only "when there is clear and convincing proof
of a violation of a court decree."

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Burke v. Guiney, 700 F.2d 767,

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769 (1st Cir. 1983) (quoting Erhardt v. Prudential Grp., Inc., 629
F.2d

843,

846

(2d

Cir.

1980));

see

also

In

re

Grand

Jury

Investigation, 545 F.3d 21, 25 (1st Cir. 2008) ("[A] complainant
must prove civil contempt by clear and convincing evidence . . .
[and] the putative contemnor 'must have violated a clear and
unambiguous order that left no reasonable doubt as to what behavior
was expected and who was expected to behave in the indicated
fashion.'" (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 17
(1st Cir. 1991))).

Finally, while we review the district court's

findings of fact for clear error and its ultimate decision to
impose a contempt sanction for abuse of discretion, United States
v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005), "our review will
proceed more searchingly when, as here, we are confronted with a
finding of contempt than when we are called upon to consider a
finding exonerating a putative contemnor from a charged contempt,"
Project B.A.S.I.C., 947 F.2d at 16.
Employing these principles of law, we cannot agree with
the district court that Rodríguez violated the order.

In finding

a violation, the district court pointed to the Report's summary of
the portion of the parties' settlement agreement disavowing any
concession of liability.

The Report's summary states:

"The

settlement agreement shall not signify acceptance of liability
regarding the facts alleged in the complaint."

The district court

found that Rodríguez revealed the substance of this clause.

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It

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reasoned that by saying the settlement was "a vindication of the
plaintiffs'
agreement

rights"

was

plaintiffs'

an

and

"[b]y

'implicit

civil

rights,'

stating

recognition
[Rodríguez]

that
of

the

[was]

defendants [were] liable to plaintiffs."

the

settlement

violation

indicating

of

that

For two reasons, we

disagree.
First, Rodríguez's statement to the press was silent on
the matter of liability.
of the plaintiffs.

Rodríguez instead addressed the rights

Defendants and the district court seem to

assume that a recognition of the violation or vindication of
plaintiffs' rights clearly equals a concession of liability by the
defendants.

As we ourselves have previously recognized, however,

in the context of an order that a plaintiff not state that a
settlement was "evidence of [or] an admission of liability," a
statement that "the settlement vindicated [plaintiff's] contention
that his firing was illegal" is "ambiguous in itself."
F.2d at 769–70.
rights

suit

like

Burke, 700

That ambiguity becomes inescapable in a civil
the

one

settled

in

this

instance,

violation of rights does not establish liability.

where

a

Rather, in a

civil rights suit such as the underlying action here seeking
damages from individual government officials, a plaintiff must
also defeat defenses of absolute or qualified immunity.

See

Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 829 (1st
Cir. 1987) (liability in a suit brought under § 1983 implicates

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questions not only of culpability, but also of immunity and
causation); see also Solis-Alarcón v. United States, 662 F.3d 577,
583 (1st Cir. 2011) (observing that government officials are liable
in tort under Commonwealth law only where attaching liability would
strike a balance between citizens' rights to be compensated when
injured by the government officials' wrongful or negligent acts
and those government officials' duty to vigorously investigate
alleged criminal activity, the same "view that animates federal
qualified immunity doctrine").

In the past year alone, courts in

this circuit have decided at least eighteen cases in which the
Commonwealth and/or its officials have argued that there is no
liability

even

if

a

plaintiff's

2

rights

were

violated.2

It

See, e.g., López-Erquicia v. Weyne-Roig, No. 15-2278 (1st
Cir.), dkt. no. 33, at 6 (Feb. 23, 2016); Marrero-Méndez v.
Calixto-Rodríguez, 830 F.3d 38, 41 (1st Cir. 2016); Guadalupe-Báez
v. Pesquera, 819 F.3d 509, 517 (1st Cir. 2016); Miranda-Rivera v.
Toledo-Dávila, 813 F.3d 64, 72–73 (1st Cir. 2016); Román v.
Oliveras, 637 F. App'x 616, 618 (1st Cir. 2016); Escalera-Salgado
v. United States, No. 14-1352, 2016 WL 5374095, at *3 (D.P.R. Sept.
26, 2016); García-Melendez v. Rodríguez Gonzalez, No. 14-1560,
2016 WL 5173240, at *8 (D.P.R. Sept. 21, 2016); Pagán González v.
Moreno, No. 14-1899, 2016 WL 4384715, at *3 (D.P.R. Aug. 16, 2016);
Aviles v. Figueroa, No. 12-1200, 2016 WL 3920171, at *9 (D.P.R.
July 15, 2016); Ramos-Torres v. Municipality of Caguas, No. 121706, 2016 WL 3676201, at *2 (D.P.R. July 5, 2016); Gómez-Cruz v.
Fernández-Pabellón, No. 13-1711, 2016 WL 3511557, at *7–8 (D.P.R.
Mar. 31, 2016); Gonzalez v. Otero, 172 F. Supp. 3d 477, 494 (D.P.R.
2016); Mercado-Ruiz, v. Carazo, No. 14-1372, 2016 WL 1171508, at
*3 (D.P.R. Mar. 23, 2016); Diaz-Morales v. Rubio-Paredes, 170 F.
Supp. 3d 276, 287–88 (D.P.R. 2016); Díaz Rodríguez v. FigueroaSancha, No. 12-1243, 2016 WL 1247208, at *1 (D.P.R. Feb. 24, 2016);
Sánchez v. McClintock, No. 11-1542, 2016 WL 344528, at *5–6 (D.P.R.
Jan. 27, 2016); García-Matos v. Bhatia-Gautier, 156 F. Supp. 3d
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therefore follows that one could imply, or even state, that a
plaintiff's rights were violated and vindicated without revealing
whether the defendants bore any liability.
Second, even if Rodríguez's statement could be construed
as a statement that defendants were liable, such a statement would
not have revealed any of the terms and conditions of the settlement
agreement
liability.

which,

after

all,

contained

only

a

disavowal

of

A statement that defendants were liable would have

been a false description, rather than a disclosure, of a settlement
term.

It might perhaps have subjected Rodríguez to a libel claim,

but it would not have subjected him to a claim that he violated
the court's order.
For these reasons, the district court's contempt order
was clearly erroneous and cannot stand.

The concomitant monetary

sanction the court imposed falls with it.
B.
Rodríguez also challenges the district court's decision
to refer him for ethical review before the Puerto Rico Supreme
Judicial Court.

It is not clear what kind of remedy he seeks from

us, but he argues on appeal that the district court "abused its
discretion when it referred [him] to the Puerto Rico Supreme Court
for ethical review" because his conduct comported with the ethical

245, 256–57 (D.P.R. 2016); Torres-Rivera v. Garcia-Padilla, 156 F.
Supp. 3d 237, 244 (D.P.R. 2016).

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rules applicable in the district court.

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Defendants contend that

the district court's referral was not a judicial decision and we
therefore lack jurisdiction to review it, and that, in any event,
the district court did not abuse its discretion because Rodríguez
acted unethically.
We see no need to order any "un-referral."

The district

court was clear that it made a referral to the Supreme Judicial
Court of the Commonwealth only because the district court viewed
Rodríguez as having violated a court order.

Our holding in this

appeal eliminates the basis for the referral.

Rodríguez may

certainly send our opinion to the Puerto Rico Supreme Judicial
Court, and he offers no reason to think that some order reversing
the referral would have any different effect.
III.
Finally, we offer a note of caution concerning the
parties' apparent presumption that a federal court should order
compliance with settlement agreements.
most

certainly

proper

for

a

It is often helpful and

judicial

adjudicating a case to conduct mediation.
R. 83J.

officer

who

is

not

See, e.g., P.R. Local

In the normal successful event, the mediation may result

in a private contract between the parties, followed by dismissal.
Occasionally, there may be a reason for the court to retain
jurisdiction to hear a later claim that a party has breached the
contract.

Sometimes, too, at least where a principal form of

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relief sought in the underlying action is injunctive, it may be
appropriate to go further and turn the settlement agreement into
a court order.

See, e.g., Hawkins v. Dep't of Health & Human

Servs. for N.H., Comm'r, 665 F.3d 25, 30–31 (1st Cir. 2012)
(settlement resulted in consent decree that could be enforced by
seeking a contempt citation for a violation).

Taking such a step,

though, calls for restraint and careful consideration by the court
because it has duties and interests that may well differ from those
of the parties.

Here, for example, in a case that did not in any

way center on a request for an injunctive remedy, the district
court nevertheless found itself issuing what all involved treated
as a prior restraint on speech aimed at preventing the public from
knowing what public officials were doing in a matter of wellwarranted public interest.

And when the parties then claimed

breach, the district court found itself with the more difficult
task of defending the sanctity of its own order rather than
deciding a breach of contract dispute.
IV.
Rodríguez did not violate what the parties all treat as
a confidentiality order issued by the district court.

The court's

contempt finding and sanction were therefore based on clearly
erroneous findings of fact.

Accordingly, we reverse the decision

of the district court and vacate the contempt and sanctions order.
Costs are assessed against the appellees.

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