Nelson Aristud-González v. Government Development Bank for Puerto Rico (gdb)

Of the District of Massachusetts, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 06-2676
NELSON ARISTUD-GONZÁLEZ,
Plaintiff, Appellee,
v.
GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO (GDB);
WILLIAMLOCKWOOD-BENNET, as current President of the GDB,
Defendants, Appellants.
__________
HÉCTOR MÉNDEZ-VÁZQUEZ, as former President of the GDB;
GOVERNMENT DEVELOPMENT BANK FOR PUERTO RICO (GDB); WILLIAM
LOCKWOOD-BENNET, as current President of the GDB; RAQUEL ANDÚJAR,
as Director of the Department of Pre-intervention of the GDB;
EDGARDO RODRÍGUEZ-NIEVES, as Director of Human Resources of the
GDB; AWILDA ARCHES, as Director of Payroll; AIICO of PR;
INSURANCE COMPANY X,
Defendants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Saylor, District Judge. *

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Mariela Rexach-Rexach with whom Ricardo Guzmán-López de
Victoria and Schuster Aguiló LLP were on brief for defendants,
appellants.
Fredeswin Pérez-Caballero with whom Jesús Hernández-Sánchez
and Hernandez Sanchez Law Firm were on brief for appellee.
August 31, 2007

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After Aristud was terminated in September 2005, he sought to 1
amend his federal complaint to include allegations arising from
that termination. The court did not permit the amendment, which
would have been Aristud's third.
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BOUDIN, Chief Judge. Nelson Aristud-Gonzalez was an
employee of the Government Development Bank for Puerto Rico ("the
bank"). He began work in 1999 as a payroll assistant and became a
payroll manager in 2000. When that promotion was revoked because
the bank had not followed merit procedures, he was made a special
assistant to the bank president--a "trust" position subject to
removal at will. In September 2005, Aristud lost that position and
was given no other.
In 2003, while working as special assistant, Aristud
brought suit under 42 U.S.C. § 1983 (2000), charging that he had
been deprived of his payroll manager position based on his
political affiliation; lack of a prior hearing (allegedly in
violation of his due process rights) was also alleged. The named 1
defendants were the bank, an instrumentality of the Commonwealth of
Puerto Rico, and its then-president Hector Mendez-Vazquez.
The district court rejected the first amendment claim,
determining that there was no evidence of improper political
motivation sufficient to justify a trial. As to the lack of a pre-
deprivation hearing, the court held that under Puerto Rico law
Aristud had no property interest in his payroll manager job because
the appointment had been improper, Kauffman v. P.R. Tel. Co., 841

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He also sought reinstatement to this position under Puerto 2
Rico law--later reenacted in 3 P.R. Laws Ann. § 1465a(1)--
providing for reinstatement of career employees who are transferred
to trust positions.
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F.2d 1169, 1173 (1st Cir. 1988), and none in his subsequent "trust"
position as special assistant. 3 P.R. Laws Ann. § 1465(2) (2006);
Galloza v. Foy, 389 F.3d 26, 34 (1st Cir. 2004).
Aristud had not sought relief implicating his original
position at the bank--a career position as payroll assistant--but
the district court's decision adverted to it as part of the
chronology. The district court noted that Aristud had secured the
payroll manager job after losing the assistant position and that he
had lost the assistant position because it was classified as a job
for union members and Aristud had declined to join the union.
Following the dismissal of his section 1983 claims,
Aristud brought a new lawsuit in the Puerto Rico Superior Court.
In it, he sought to require the bank to reinstate him to his
original career position as payroll assistant. Again, Aristud
alleged political discrimination in violation of the First
Amendment. The bank countered by moving in the original federal 2
action for an injunction to bar Aristud from pursuing his new case;
the new case, argued the bank, was an attempt to re-litigate
matters foreclosed by the federal judgment.
The district court rejected the request. In a brief
decision, the court said that it had power to protect its prior

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The bank asserts that two pertinent issues allegedly resolved 3
in the first case will, based on the complaint and discovery
materials in the second case, be at issue in the second: whether
Aristud lost his first job as payroll assistant because it was a
union job and he was not a member; and whether the bank had a
policy of discriminating against members of Aristud's party.
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judgment; but it said "substantial justification" was needed to
interfere with state proceedings and that--because res judicata and
collateral estoppel defenses could be asserted in those state
proceedings--there was no irreparable injury and an adequate
alternative remedy existed. A motion for reconsideration was
denied.
The bank now appeals to this court, arguing that the
district court abused its discretion in declining to enjoin the new
state court proceeding. Abuse of discretion is the usual standard
applied in reviewing the grant or denial of a preliminary
injunction, although issues of law (reviewed de novo) and issues of
fact (reviewed for clear error) can also arise. Water Keeper
Alliance v. United States Dep't of Def., 271 F.3d 21, 30 (1st Cir.
2001). The bank makes arguments that could be classified in each
of these categories.
Much of the bank's brief is devoted to an attempt to show
that the new state court suit is barred by findings made in the
federal action; the pertinent doctrine is collateral estoppel or 3
issue preclusion. The bank also argues that the new suit is barred
by the doctrine that forbids claim splitting--merger and bar or

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See Restatement (Second) of Judgments § 28 (1982); 18 Wright, 4
Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d §§
4416, 4422, 4426 (2002 & Supp. 2007); Hoult v. Hoult, 157 F.3d 29,
31 (1st Cir. 1998) (noting doctrine's various exceptions).
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claim preclusion. The latter is sometimes called res judicata but
strictly speaking both doctrines are branches of res judicata,
which is the umbrella term.
Whether either issue or claim preclusion applies to limit
or bar Aristud's new suit would take some sorting out. Claim
preclusion, especially in federal courts, has expanded in recent
decades from its long-time use to prevent re-litigation of the same
"cause of action" to the barring of claims that were not brought
earlier but grew out of the same nucleus of operative facts and
"should have been brought" in the earlier action. E.g., Porn v.
Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir. 1996).
Issue preclusion doctrine has been more stable, in the
respects pertinent to this case, but normally does not bar a whole
suit but rather only re-litigation of specific facts earlier
resolved and necessary to the original judgment. Grella v. Salem
Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir. 1994). Issue
preclusion--unlike the more rigid rules governing claim
preclusion--is also subject to various conditions and exceptions
laid out in the Restatement, treatises and case law. For example, 4
it is far from clear that a description of how Aristud came to lose

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his first position was "necessary" to the judgment in the federal
lawsuit.
Some overlap exists between Aristud's two lawsuits but we
have no intention of pursuing the issue--and for the same reason as
the district judge. True, a federal court can issue an injunction
to protect its judgment; this is a conventional ground for
equitable relief and an explicit exception to the Anti-Injunction
Act, 28 U.S.C. § 2283, which otherwise limits the ability of
federal courts to derail state litigation.
However, the "protect the judgment" category covers more
than one type of case. For example, ancillary injunctive relief is
common where a defendant has failed to comply with a prior
injunction. E.g., Nat'l Law Ctr. on Homelessness & Poverty v.
United States Veterans Admin., 765 F. Supp. 1, 6 (D.D.C. 1991).
Injunctive relief incident to an interpleader action is also
common--the whole purpose being to avoid inconsistent results in
separate lawsuits. E.g., Gen. Ry. Signal Co. v. Corcoran, 921 F.2d
700, 707 (7th Cir. 1991).
By contrast, the need for an injunction barring a new
lawsuit, where relief is sought solely on the ground that the claim
has already been litigated in a prior action, takes more
justification, De Cosme v. Sea Containers, Ltd., 874 F.2d 66, 68-69
(1st Cir. 1989), and injunctive relief based on issue preclusion
would be even rarer. Yes, the judge in the prior case knows the

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Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) 5
(possible use to bar repetitive suits where litigants are harassing
their opponents); In re Louisiana-Pacific Inner Seal Siding Litig.,
234 F. Supp. 2d 1170, 1180 (D. Or. 2002) (risk that multiple state
court suits would be instituted against defendant); Walter E.
Heller & Co., Inc. v. Cox, 379 F. Supp. 299, 309-10 (S.D.N.Y. 1974)
(litigant subjected to fifteen repetitive suits over nine years).
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scope of his own litigation, but the judge in the new case has the
advantage in assessing its scope. And res judicata in both its
forms turns on the relationship between two lawsuits.
Accordingly, many judges would take the view that, absent
unusual circumstances, res judicata is just another defense that
ought to be asserted in the new lawsuit; and judges are even more
likely to take this view where, as here, the res judicata question
is itself subject to debate and might not yield an all or nothing
answer. We ourselves have said that substantial justification
should be provided for such intervention. SMA Life Assurance Co.
v. Sanchez-Pica, 960 F.2d 274, 277 (1st Cir. 1992).
No doubt some cases call out for preemption:
considerations might be the number and frequency of new suits,
whether they are obviously barred by res judicata, the burden
imposed by re-litigation in a far away or unfriendly venue,
improper motivations for the new suit or suits and the extent to
which the res judicata issue turns on judgments that are clearly
better able to be made by the first judge. Courts have adverted to
such concerns to inform their discretion.5

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Compare Ballenger v. Mobil Oil Corp., 138 Fed. Appx. 615, 622 6
(5th Cir. 2005) ("No independent demonstration of irreparable harm
or a lack of alternative remedies is necessary to win an injunction
under the relitigation exception to the Anti-Injunction Act."),
with In re SDDS, Inc., 97 F.3d 1030, 1041 (8th Cir. 1996) (the cost
of relitigation constitutes irreparable harm), and with FDIC v.
Bank of N.Y., 479 F. Supp. 2d 1, 19 (D.D.C. 2007) (cost of
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This case has nothing that leaps out as a reason for
taking the res judicata issues away from the local court--let alone
reasons so compelling that we would think that the district court
had abused its discretion. The bank criticizes the district judge
for failing to spell out his calculations; but the considerations
so plainly supported a decision to leave the matter to the local
court that no one needed further explanation and the appeal,
although not technically frivolous, is hopeless.
The district judge spoke both of a lack of irreparable
injury and of an available remedy of urging res judicata
defensively in the new lawsuit. The bank says that the defense
against the new lawsuit will cost time and money and that this
counts as irreparable injury; it does not address the adequate
remedy issue but conceivably could argue that it would cost more to
litigate in the new case.
Courts sometimes treat the cost of further litigation as
an important equitable consideration, sometimes say it is not
irreparable injury, and sometimes disregard irreparable injury as
a requirement where someone seeks to re-litigate a previously
decided issue. Possibly there is some pattern to this contrariety 6

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repetitive litigation an equitable consideration), and with SMA
Life Assurance, 960 F.2d at 277 (defendant had not demonstrated
irreparable harm or an inadequate remedy).
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of statements; not all litigation expenses are the same in
magnitude or certainty or symmetry as between alternative forums.
In all events, the Puerto Rico courts are an alternative
forum and any assumption that it would cost less to decide the res
judicata issue in the district court is unsupported. If the res
judicata issue can be easily resolved, the local court can do that.
And, to the extent that res judicata has some application but does
not end the local litigation, only one court need tackle the
problem rather than two.
Affirmed.

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