Guillemard-Ginorio v. Contreras-Gomez

United States Court of Appeals

For the First Circuit

Nos. 06-1436, 06-1819

ANDRÉS GUILLEMARD-GINORIO; MARÍA M. NOBLE-FERNÁNDEZ;

CONJUGAL PARTNERSHIP GUILLEMARD-NOBLE;

LONE STAR INSURANCE PRODUCERS, INC.,

Plaintiffs, Appellees,

v.

FERMÍN M. CONTRERAS-GÓMEZ, Individually and as Insurance

Commissioner of Puerto Rico; OFFICE OF THE INSURANCE

COMMISSIONER; MARÍA AWILDA QUINTANA; CONJUGAL PARTNERSHIP

CONTRERAS-QUINTANA; DORELISSE JUARBE, Individually and as

Insurance Commissioner of Puerto Rico,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and DiClerico, Jr.,* Senior District Judge.

Luis A. Rodríguez-Muñoz, with whom Roberto Sánchez-Ramos,

Secretary of Justice, Salvador Antonetti-Stutts, Solicitor General,

Eduardo A. Vera-Ramírez, Eileen Landrón-Guardiola, and Landrón &

Vera, LLP were on brief, for appellants.

Joseph D. Steinfield, with whom Jeffrey J. Pyle, Prince,

Lobel, Glovsky & Tye, LLP, Joan S. Peters, and Nachman & Guillemard

were on brief, for appellees.

June 12, 2007

*

Of the District of New Hampshire, sitting by designation.

TORRUELLA, Circuit Judge. This appeal arises out of a

dispute over the propriety of an order issued by the Insurance

Commissioner of Puerto Rico declaring Andrés Guillemard Ginorio,

his wife, María Noble Fernández, and their insurance agency, Lone

Star Insurance Producers (collectively, "Plaintiffs"),

untrustworthy and incompetent; revoking Plaintiffs' insurance

licenses for five years; barring Plaintiffs from applying for other

insurance licenses for five years; and imposing a $2,035,000 fine.

Plaintiffs allege, inter alia, that in issuing this order

without a hearing and in retaliation for their political beliefs,

Fermín Contreras Gómez, former Insurance Commissioner, and

Dorelisse Juarbe, the current Insurance Commissioner (collectively

"Defendants"), violated Plaintiffs' rights under the First

Amendment and the Due Process Clause. Plaintiffs moved for partial

summary judgment on their due process claim and Defendants moved

for summary judgment on all claims. The district court granted

Plaintiffs' motion for partial summary judgment and denied

Defendants' motion. Defendants now appeal. In addition,

Defendants also take this opportunity to appeal the district

court's denial of their motion to vacate the court's judgment under

Fed. R. Civ. P. 60(b) based on newly discovered evidence. After

careful consideration, we affirm the district court's denial of

qualified immunity and dismiss any appeal taken from the court's

-2-

grant of partial summary judgment or its denial of the motion to

vacate.

I. Factual and Procedural Background

Guillemard and Noble founded Lone Star Insurance

Producers in 1984. Both are well-known members of the New

Progressive Party ("NPP").

Early in 2001, Contreras became the Insurance

Commissioner for Puerto Rico. On November 2, 2001, the Office of

the Insurance Commissioner ("OIC") assigned Angela Rivera to

investigate Urrutia Vallés, Inc. ("UVI"), an insurance brokerage

company, for its conduct in connection with the performance of a

contract with the government of Puerto Rico. For several years,

Lone Star and UVI had worked together in obtaining and servicing

property, casualty, and other types of insurance for several

government agencies. Pursuant to the investigation, Rivera found

that UVI paid commissions to Lone Star from the sale of the

government insurance policies.

On November 7, 2001, an article in El Nuevo Día, a Puerto

Rico newspaper, reported that the OIC investigation into UVI would

also include Guillemard. That same day, Aurea López, the head of

the OIC's audit division, instructed Rivera to look for checks from

UVI to Lone Star.

On November 20, 2001, the OIC issued a "Notification and

Examination Order" calling for an audit of Lone Star's operations

-3-

and transactions from January 1, 1997 through September 30, 2001.

The notice did not allege any wrongdoing. David Castro Anaya, an

OIC auditor, was assigned to perform the Lone Star audit.

According to Castro, the sole purpose of his investigation was to

determine whether improper payments had been made to third parties.

Guillemard made available to Castro two Certified Public

Accountants to cooperate with the audit and provide all relevant

documents.

By December 17, 2001, all of the documents pertaining to

insurance issued to government agencies had been examined and the

audit had concluded. Castro informed Guillemard and Miguel

Carbonell, Lone Star's CPA, that he found no irregularities or

improprieties. Castro also told Guillemard and Carbonell that he

would prepare a draft of his final report within the next few

months and send them a copy.

At some point after November 20, 2001, but before March

2002, Melvin Rosario, the Director of the Anti-Fraud Unit at the

OIC and Castro's supervisor, met privately with Contreras to tell

him that he did not wish to investigate Lone Star for commission

sharing. He explained that the sharing of commissions, as in the

case of Lone Star and UVI, "was common, normal, in the way that

business was conducted. And that [his] opinion in that regard was

that [he] had not seen, in all honesty, anything in the Insurance

Code indicating that this could not be done that way." In

-4-

response, Contreras told Rosario that he "would have to carry [out]

the investigations against this N.P.P. member" anyway. Rosario

asked to be relieved from the assignment, and Contreras agreed that

Castro would report to López instead.

Early in 2002, Guillemard learned that the OIC had issued

subpoenas to several Puerto Rico banks demanding account

information for all transactions involving Guillemard, Noble, or

Lone Star.

On July 10, 2003, Castro submitted the Final

Investigation Findings Report (the "Report") relating to the Lone

Star audit to his supervisor. He did not send a copy to

Guillemard. The Report found no improper payments to third

parties, but it raised other issues. In particular, the Report

noted that Lone Star had entered into a commission-sharing

arrangement with UVI. The Report concluded that the sharing of

commissions is a violation of section 939(2) of the Puerto Rico

Insurance Code.

At the end of 2003, Plaintiffs were still being

investigated by the OIC. On December 10, 2003, Plaintiffs filed a

federal action against Contreras and the OIC, alleging that the

investigation was motivated by political animus in violation of

their rights under the First and Fourteenth Amendments. At that

time, the OIC had not issued any reports or orders in connection

-5-

with the Lone Star investigation since the submission of Castro's

July report.

Contreras found out about Plaintiffs' lawsuit by the

following day.1 On December 23, 2003, Contreras issued an order

declaring Plaintiffs incompetent and untrustworthy, revoking their

insurance licenses for a period of five years; denying them any

license in any capacity for a period of five years; and imposing a

fine of $2,035,000 (the "Order"). The Order stated that it would

become effective on January 7, 2004, but provided that Plaintiffs

could request an administrative hearing to contest it. The Order

also stated that a request for an administrative hearing would stay

the imposition of the fine, the declaration that Plaintiffs were

incompetent and untrustworthy, and the denial of any license in any

capacity. However, pursuant to the Order, the revocation of

Plaintiffs' licenses would remain in effect pending a final

administrative decision.

Following receipt of the Order, Plaintiffs promptly

requested an administrative hearing. They also amended their

complaint to allege claims of retaliation under the First Amendment

and violation of the Due Process and Equal Protection Clauses, as

well as state law provisions. In addition, Plaintiffs requested a

temporary restraining order to prevent the revocation from taking

1

By this time, Contreras had submitted his resignation as

Insurance Commissioner, effective at the end of December.

-6-

effect, and moved for a preliminary injunction. The district court

granted the temporary restraining order and scheduled a hearing on

the motion for a preliminary injunction. After a hearing, at which

only Plaintiffs chose to present evidence, the district court

entered an injunction restraining Contreras and the OIC from

revoking Plaintiffs' license pending completion of a full and fair

hearing on Plaintiffs' challenge to the revocation order. In its

order, the district court also concluded that Contreras was not

entitled to qualified immunity. Contreras filed an interlocutory

appeal challenging the preliminary injunction.

Shortly thereafter, Contreras moved to dismiss the

federal lawsuit on qualified immunity grounds. The court denied

the motion, reaffirming its prior conclusions. Contreras then

filed a second interlocutory appeal challenging this decision. The

two interlocutory appeals were consolidated and in a per curiam

decision, this court affirmed the district court's conclusion that

Contreras was not entitled to qualified immunity on the due process

claim. 161 Fed. Appx. 24 (1st Cir. 2005).2

The OIC held an administrative hearing on March 4, 2005.

Thereafter, the new Insurance Commissioner, Dorelisse Juarbe,

issued a resolution finding that Plaintiffs had violated the

Insurance Code, but revising the sanctions as follows: The fine of

2

We explicitly noted that "Contreras only challenge[d] the due

process portion of [Plaintiffs'] complaint." 161 Fed. Appx. at 28

n.8.

-7-

over $2,035,000 was reduced to $208,000; the five-year license

suspension was reduced to three months; the prohibition of filing

for a license within five years was eliminated; and the references

within Contreras's order as to Guillemard's "untrustworthiness" and

"incompetence" were omitted.

Back in the district court, Plaintiffs again amended

their complaint to add Juarbe as a defendant. The parties

subsequently filed cross-motions. Plaintiffs moved for partial

summary judgment, arguing that Contreras violated their due process

rights. Defendants moved for summary judgment, arguing that

Plaintiffs had failed to establish violations of the First

Amendment, the Due Process Clause, or the Equal Protection Clause,

and that Contreras and Juarbe were entitled to qualified immunity

on the due process claim.

The district court referred both motions to a magistrate

judge. In a report and recommendation (the "R&R"), the magistrate

judge recommended that Plaintiffs' motion for partial summary

judgment be denied, and Defendants' motion for summary judgment be

granted as to the equal protection claim and denied as to the

remaining issues. All parties objected to the R&R. In particular,

Defendants argued that they were entitled to qualified immunity on

all claims.

The district court adopted the R&R in part and rejected

it in part: it granted Plaintiffs' motion for partial summary

-8-

judgment on the due process claim and denied Defendants' motion for

summary judgment on all claims. With respect to Defendants' claim

qualified immunity on the due process claim, the district court

held that Defendants were not entitled to summary judgment because

a material issue of fact remained as to the third prong of the

qualified immunity analysis, whether "a reasonable official in

Contreras's position would have been justified in revoking

plaintiffs' license without a prior hearing." With respect to

their assertion of qualified immunity on the other claims, however,

the district court held that "[b]ecause the defendants did not

properly raise these arguments before the Magistrate-Judge, the

Court will consider their assertion of qualified immunity in

relation only to the due process claim."

Defendants later filed a motion to vacate the district

court's judgment pursuant to Fed. R. Civ. P. 60(b) based on the

newly discovered evidence of a Puerto Rico appellate court decision

holding that an interpretation that the Insurance Code prohibits

commission sharing was reasonable. On April 3, 2006, the district

court denied the motion to vacate, finding that the Puerto Rico

appellate court decision was irrelevant to its ruling.

On August 7, 2006, this Court ruled that Defendants were

entitled to appeal the district court's decision with respect to

qualified immunity on the due process claim, noting that Defendants

had conceded for purposes of appeal the factual issues the district

-9-

court had found to be in dispute. On September 8, 2006, we

modified the earlier order and ruled that appellate jurisdiction

also extends to the issue of whether the district court erred in

finding that Defendants had failed to adequately assert qualified

immunity with respect to the First Amendment claims.

II. Discussion

A. Qualified Immunity on the First Amendment Claims

We review for abuse of discretion the district court's

conclusion that Defendants were not entitled to qualified immunity

on the First Amendment claims of political discrimination and

retaliation because they had failed to adequately assert the

argument before the magistrate judge.3

3

In our September 8, 2006 Order, we extended appellate

jurisdiction to this issue, noting that "case management orders

precluding the assertion of the defense of qualified immunity are

reviewable, and the circumstances here seem analogous." We review

case management orders for abuse of discretion. Rosario-Díaz v.

Gonzáles, 140 F.3d 312, 315 (1st Cir. 1998).

Although Defendants conceded in their initial brief that the

district court's ruling was a case management order, they objected

to that characterization in their reply brief, without suggesting

an alternative characterization or arguing for a different standard

of review. Defendants cannot have it both ways. See Waste Mgmt.

Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) ("We

have held, with a regularity bordering on the monotonous, that

issues advanced for the first time in an appellant's reply brief

are deemed waived."). In any event, we have previously held that

a denial of summary judgment on qualified immunity issues for

procedural reasons constitutes a case-management order, see, e.g.,

Torres v. Commonwealth of Puerto Rico, No. 06-1771, 2007 WL 996302

at *4 (1st Cir. Apr. 4, 2007), and we see no reason why the

district court's ruling in this case should not also fall into this

category.

-10-

Defendants argue that the district court erred in

refusing to entertain their arguments on qualified immunity with

respect to the First Amendment claims. Specifically, they object

to the holding that "the defendants did not properly raise these

arguments before the Magistrate-Judge." Defendants claim that they

raised this defense in their motion for summary judgment when they

argued "broadly" that they were entitled to qualified immunity.

Defendants point to three sentences in their motion for summary

judgment which purportedly preserved their argument: (1)

"[D]efendants herein did not engage in any type of conduct that was

violative of any of plaintiffs' constitutional rights; hence it is

not plausible to conclude that defendants' actions were unlawful.

Thus, this entitles defendants to qualified immunity," Defs.' Mot.

for Summ. J. 26 (emphasis added); (2) "Moreover, the application as

a matter of law of both the Mt. Healthy and privileged qualified

immunity defenses warrants summary disposition of all claims at

this stage of the proceedings," id. at 2 (emphasis added); and (3)

"Defendants in their personal capacity cannot be held liable in

this case because they are cloaked by qualified immunity," id. at

25.

Defendants further argue that the specific reference to

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-284

(1977) (holding that adverse action against a government employee

cannot be taken if it is in response to the employee's "exercise of

-11-

constitutionally protected First Amendment freedoms"), in their

motion's discussion of qualified immunity shows that Defendants

asserted a qualified immunity defense to the First Amendment claims

because Mt. Healthy is only relevant to the First Amendment.

Had Defendants raised a qualified immunity defense to the

First Amendment claims before the magistrate judge, they would have

been entitled to the district court's "clearly erroneous or

contrary to law" review of the argument. See 28 U.S.C. § 636(b)

(1)(A). But "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived." De Araujo v. González, 457 F.3d 146, 153 (1st 2006)

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

By Defendants' own admission, their arguments on this point were

"broad in scope," which means they can just as easily be

characterized as "vague"; the qualified immunity section of their

summary judgment motion never even mentioned the words "First

Amendment," "political discrimination," or "retaliation." We

cannot say that Defendants' three sentences speaking to qualified

immunity "broadly" and their single reference to Mt. Healthy

satisfied their duty "to spell out [their] arguments squarely and

distinctly." Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec.

Co., 840 F.2d 985, 990 (1st Cir. 1988). Accordingly, we hold that

the district court did not abuse its discretion in holding that

Defendants waived their qualified immunity defense to the First

-12-

Amendment claims. See id. at 990-91 ("[Fed. R. Civ. P. 72(b)] does

not permit a litigant to present new initiatives to the district

judge. We hold categorically that an unsuccessful party is not

entitled as of right to de novo review by the judge of an argument

never seasonably raised before the magistrate."); Borden v. Sec'y

of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) ("Appellant

was entitled to a de novo review by the district court of the

[magistrate judge's] recommendations to which he objected, however

he was not entitled to a de novo review of an argument never

raised." (internal citations omitted)).

B. Qualified Immunity on the Due Process Claim4

4

Acknowledging that "courts have held that appellate jurisdiction

does not lie for an order granting partial summary judgment absent

certification under [Fed. R. Civ. P. 54]," Defendants nonetheless

ask us to review the district court's grant of Plaintiffs' motion

for partial summary judgment on the due process claims without such

certification.

In the ordinary course, our jurisdiction extends only to appeals

from "final decisions of the district courts." 28 U.S.C. § 1291.

"A partial summary judgment order is not a final judgment but is

merely a pre-trial adjudication that certain issues are established

for trial." Alberty-Vélez v. Corporación de Puerto Rico Para La

Difusión Pública, 361 F.3d 1, 6 n.5 (1st Cir. 2004); see also

Catlin v. United States, 324 U.S. 229, 233 (1945) (holding that a

district court's decision is "final" if it "ends the litigation on

the merits and leaves nothing for the court to do but execute the

judgment"). Defendants have given us no reason to depart from the

well-established rule of reviewing only a district court's final

decisions. See Manchester Knitted Fashions, Inc. v. Amalgamated

Cotton Garment & Allied Indus. Fund, 967 F.2d 688, 690 (1st Cir.

1992) ("It is generally established that in order for an

interlocutory order to be appealable, a litigant must . . . show

that 'the order of the district court might have a serious, perhaps

irreparable, consequence, and that the order can be effectually

challenged.'" (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 84

-13-

"Qualified immunity 'provides a safe harbor for public

officials acting under the color of state law who would otherwise

be liable under 42 U.S.C. § 1983 for infringing the constitutional

rights of private parties.'" Borges Colón v. Román-Abreu, 438 F.3d

1, 18 (1st Cir. 2006) (quoting Whitfield v. Meléndez-Rivera, 431

F.3d 1, 6 (1st Cir. 2005)). We apply a three-part test to

determine whether a public official is entitled to qualified

immunity, asking "(1) whether plaintiff's allegations, if true,

establish a constitutional violation; (2) whether that right was

clearly established at the time of the alleged violation; and (3)

whether a similarly situated reasonable official would have

understood that the challenged action violated the constitutional

right at issue." Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004).

If all three questions are answered in the affirmative, we deny

qualified immunity. Id. at 110. Defendants argue that, even

assuming the first two prongs are satisfied, they are entitled to

qualified immunity under the third prong of the test because a

similarly situated reasonable official would not have believed that

the pre-hearing deprivation violated Plaintiffs' rights to

procedural due process.

We review a district court's denial of summary judgment

on qualified immunity grounds de novo, considering only purely

(1981)). Accordingly, we will not review whether the district

court properly granted partial summary judgment on Plaintiffs'

procedural due process claim.

-14-

legal questions. Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90

(1st Cir. 2002).

With respect to Contreras, Defendants argue that he is

entitled to qualified immunity because he was acting pursuant to a

presumptively constitutional statute. Defendants point out that

the Puerto Rico Insurance Code authorizes the Insurance

Commissioner to "suspend, revoke or refuse to renew a license" by

issuing an "order . . . to licensee not less than fifteen days

prior to the effective date thereof, subject to the right of the

licensee to have a hearing," and provides that "pending such

hearing, the license shall be suspended." P.R. Laws Ann. tit. 26,

§ 947(2)(a). Defendants further point out that, as with all state

statutes, this statutory provision is presumed to be

constitutional, see Conn. ex rel Blumenthal v. Crotty, 346 F.3d 84,

102 (2d Cir. 2003), and that no court had, during the relevant time

period, found the statute unconstitutional. Accordingly,

Defendants argue that even if section 947(2)(a) is now deemed

unconstitutional, Contreras is entitled to qualified immunity for

his good faith reliance on the presumptively valid provisions of

the Insurance Code. See Freeman v. Blair, 862 F.2d 1330, 1332 (8th

Cir. 1988) (holding that defendants were entitled to qualified

immunity where "any defects in the regulatory scheme were not

sufficiently obvious to make the defendants' reliance on the scheme

objectively unreasonable").

-15-

With respect to Juarbe, Defendants argue that she is

entitled to qualified immunity on the due process claim because she

did not draft or sign the Order, she was not Contreras's supervisor

at the time of the issuance of the Order, and she was not present

during the conversation in which Contreras allegedly told Rosario

that he "would have to carry [out] the investigations against this

N.P.P. member." Thus, Defendants argue that there is no connection

between Juarbe's conduct and the alleged constitutional violation

of revoking Plaintiffs' licenses without a hearing. We do not

think this argument goes to qualified immunity so much as to the

ultimate question of liability under § 1983, a question not

properly before us. See Gutiérrez-Rodríguez v. Cartagena, 882 F.2d

553, 560 (1st Cir. 1989) ("Section 1983 imposes liability upon

those who 'subject[] or cause[] to be subjected, any citizen of the

United States . . . to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws . . . ."

(quoting 42 U.S.C. § 1983) (emphasis added) (other alterations in

original)). In any event, Defendants acknowledge that Juarbe

participated in meetings in which the Order was being drafted and

that she enforced the Order after it was issued. We think any

reasonable official in Contreras's or Juarbe's situation would have

known that the summary revocation provision in the Insurance Code

is unconstitutional; therefore, qualified immunity is available to

neither defendant.

-16-

First, to the extent Contreras or Juarbe acted in

reliance on section 947(2)(a), enacted in 1957, we find such

reliance unreasonable because that statute is no longer in effect,

having been superseded by the Puerto Rico Uniform Administrative

Procedure Act, P.R. Laws Ann. tit. 3, § 2101 et seq. (the "Puerto

Rico APA"). In Chalkboard, Inc. v. Brandt, 902 F.2d 1357 (9th Cir.

1989), the Ninth Circuit examined a factual scenario very similar

to this case. There, an agency summarily suspended a day care

center's license under a statute that allowed for such suspension

in emergency situations. Id. at 1377-78. However, a later-enacted

statutory provision required that the agency notify the attorney

general of any emergency circumstances, after which the attorney

general could seek a restraining order. Id. at 1378-79. The

Chalkboard court denied qualified immunity, holding that the

summary closure procedures "used by defendants in th[at] case could

not reasonably have been believed to meet constitutional

requirements." Id. at 1380-81. In so holding, the Ninth Circuit

specifically noted that it could not

accept the contention that a general purpose

summary-closure provision enacted years

earlier remains at the disposal of the DHS

officials when the state has adopted a more

recent and specific statutory scheme which

provides for both routine and expedited

methods of suspending the license . . . and

which does not permit summary action by agency

officials.

Id. at 1379.

-17-

Neither party disputes that the Puerto Rico APA provides

for pre-deprivation hearings at all agency levels. See P.R. Laws

Ann. tit. 3, §§ 2102-2103, 2151-2170(a); see also Magriz v.

Empresas Nativas, Inc., 143 P.R. Dec. 63, 70 (1997). Enacted in

1988, it requires all agencies adjudicating a controversy to

safeguard "(A) [t]he right to timely notice of the charges or

complaints or claims against one of the parties[;] (B) [t]he right

to introduce evidence[;] (C) [t]he right to an impartial

adjudication[; and] (D) [t]he right to have the decision based on

the record of the case." P.R. Laws Ann. tit. 3, § 2151(a)(2). The

Supreme Court of Puerto Rico has held that the Puerto Rico APA

expressly supersedes any conflicting statutes. See Hernández v.

Golden Tower Dev. Corp., 125 P.R. Dec. 744, 749 (1990) ("[I]t is

the express intent of the lawmaker, in adopting a uniform judicial

review procedure for rulings or orders of administrative agencies

or departments, that [the Puerto Rico APA] prevail over any other

legal provision -- appertaining to any agency in particular -- that

may be repugnant to the provisions of said act."); Asociación de

Dueños de Casas de la Parguera, Inc. v. Junta de Planificación de

P.R., 148 D.P.R. 307, 314 (1999). Given the Puerto Rico APA's pre-

deprivation hearing requirement, any claimed reliance on section

-18-

947's summary-revocation provision is unreasonable as a matter of

law.5

We also find reliance on section 947(2)(a) unreasonable

because the statute is patently unconstitutional. Although state

officials are ordinarily entitled to rely on presumptively valid

state statutes, courts have held such reliance unreasonable where

the relevant law is "so grossly and flagrantly unconstitutional

that any person of reasonable prudence would be bound to see its

flaws." Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); See,

e.g., Lawrence v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005)

(denying qualified immunity to an official who relied on an

ordinance allowing for the destruction of derelict automobiles

without a hearing because the official could not reasonably have

concluded that his actions were consistent with due process); Carey

v. Nev. Gaming Control Bd., 279 F.3d 873, 882 (9th Cir. 2002)

(denying qualified immunity to an official who relied on statutes

requiring individuals stopped pursuant to Terry to identify

themselves because "a reasonable officer in [the defendant's]

5

Defendants argue that Contreras's and Juarbe's actions were

reasonable, even under the Puerto Rico APA, because that statute

provides for exceptions to the pre-deprivation hearing requirement.

See P.R. Laws Ann. tit. 3, § 2167. However, the Puerto Rico APA

provision authorizing such exceptions provides for "emergency

adjudicatory procedures" only in situations that involve "imminent

danger to the public health, safety and welfare or which requires

immediate action by the agency." Id. § 2167(a). Defendants do not

argue that this case involved an emergency situation.

-19-

position would have known that [the plaintiff] had a clearly

established Fourth Amendment right not to identify himself").

Section 947(2)(a) is patently unconstitutional because it

specifically provides for the suspension of a professional license

before a hearing is provided, without limitation. P.R. Laws Ann.

tit. 26, § 947(2)(a). It has long been established that a state

may not suspend a professional license without a pre-deprivation

hearing.6 See Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir.

1985) ("Beauchamp unquestionably had a protected interest in his

license to practice medicine. A clearer example of 'new property'

is not easily imagined. The district court's holding that he had

a right to a hearing before his license could be revoked was

correct." (internal citations omitted)); see also Mard v. Town of

Amherst, 350 F.3d 184, 192 (1st Cir. 2003)("In general, the state

must provide some kind of hearing before depriving an individual of

a protected property interest." (internal quotation marks

omitted)).7 Thus, we find that Defendants are not entitled to rely

6

That "[a]n important government interest, accompanied by a

substantial assurance that the deprivation is not baseless or

unwarranted, may in limited cases demanding prompt action justify

postponing the opportunity to be heard until after the initial

deprivation," FDIC v. Mallen, 486 U.S. 230, 240 (1988), does not

change our conclusion. Section 947 does not limit its application

to any such circumstances. Moreover, Defendants do not point to

any special government interest motivating the pre-hearing

deprivation described in the Order.

7

Defendants argue that section 947 is not unconstitutional on its

face because "it does not preclude a hearing prior to the

revocation or refusal to renew a license." Appellants' Reply Br.

-20-

on section 947(2)(a)'s allowance for pre-hearing deprivations

because a reasonable official in their position would have known

that it violates the Due Process Clause. Accordingly, we affirm

the district court's denial of Defendants' motion for summary

judgment.

III. Motion to Vacate

Defendants also argue that the district court erred in

denying their motion to vacate the summary judgment order. They

claim that "newly discovered evidence" -- a Puerto Rico appellate

court decision finding that an interpretation that the Insurance

Code prohibits commission sharing was reasonable -- shows that

Defendants would have punished Plaintiffs' conduct regardless of

their political affiliation. This argument is a defense against

Plaintiffs' First Amendment political discrimination claim; it has

no effect on the due process claim, which is based solely on the

alleged pre-hearing deprivation.

We reiterate that this Court may only hear appeals taken

from final judgments, see supra note 3. Accordingly, we do not

have jurisdiction to review a motion to vacate the district court's

denial of summary judgment on the political discrimination claim.

17 (emphasis added). But this misses the point; section 947(a)(2)

is unconstitutional because it authorizes a pre-hearing

deprivation. It should also be noted that Contreras exercised this

authority when he issued the Order, which specifically provided

that the revocation of Plaintiffs' licenses would be effective

pending any administrative proceedings.

-21-

See Rivera-Jiménez v. Pierluisi, 362 F.3d 87, 93 (1st Cir. 2004)

("[W]e do not have jurisdiction over denials of summary judgment

motions . . . where a genuine issue of material fact remains in

dispute."). Moreover, as stated above, Defendants waived a

qualified immunity defense to the First Amendment claims, see supra

Section II.A, so we have no occasion to opine on that argument. As

such, we take no view of the district court's denial of Defendants'

motion to vacate.

IV. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Defendants' qualified immunity claims on summary

judgment.

Affirmed.

-22-