Ivángonzález-Cancel; José Barbosa v. Partido Nuevo Progresista; Comisiónestatal Da Elecciones

United States Court of Appeals
For the First Circuit
No. 12-1243
IVÁN GONZÁLEZ-CANCEL; JOSÉ BARBOSA,
Plaintiffs, Appellants,
v.
PARTIDO NUEVO PROGRESISTA; COMISIÓN ESTATAL DA ELECCIONES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Rubén T. Nigaglioni, with whom Nigaglioni Law Offices P.S.C.
was on brief, for appellants.
David C. Indiano, with whom Seth A. Erbe and Indiano &
Williams, P.S.C. were on brief, for appellee Partido Nuevo
Progresista.
José L. Nieto-Mingo, with whom Nieto Law Offices was on brief,
for appellee Comisión Estatal de Elecciones.
October 2, 2012

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THOMPSON, Circuit Judge. Appellant Iván González-Cancel
aspired to run for Governor of Puerto Rico as Partido Nuevo
Progresista's ("PNP") candidate in the 2012 general election. But
when he applied for the job, PNP said he was not qualified.
Unhappy with PNP's decision, he and José Barbosa, a supporter of
González-Cancel's candidacy, sued PNP and Puerto Rico's Elections
Commission, the Comisión Estatal de Elecciones ("the Elections
Commission") in federal court, alleging that the decision violated
their constitutional rights. Because we agree with the district
court's dismissal of the complaint, we affirm.
BACKGROUND
We begin with a brief recitation of the facts. Because
the case is before us on a grant of a motion to dismiss, we take as
true all well-pleaded facts in the complaint and draw all
reasonable inferences therefrom in appellants' favor. Fothergill
v. United States, 566 F.3d 248, 251 (1st Cir. 2009).
The Statutory Scheme
The Electoral Code of Puerto Rico for the Twenty-First
Century, Act No. 78, June 1, 2011 ("the Electoral Code"), regulates
Puerto Rico's election system. Pursuant to the Electoral Code, 1
each political party determines whether a person is qualified to
run for elected office as its candidate, unless he or she runs as
Since the Electoral Code has yet to be codified, we, like the 1
parties, refer to the relevant articles of the code as "Art. __".
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an independent candidate. Art. 8.001(a). A person wishing to
represent a particular political party in elected office must
satisfy not only the requirements set forth by the party itself,
but also those of the Elections Commission. Art. 8.001(b).2
Political parties may disqualify a potential candidate if he or she
fails to meet any of these requirements. Art. 8.008.
PNP is one of the two main political parties in Puerto
Rico. Articles 79 and 4(26) of PNP's bylaws require a potential
candidate to meet all of the requirements set forth in the
Electoral Code. Article 79 further provides that a person is not
qualified to be a PNP candidate if he or she fails to satisfy all
of the requirements set forth in the "Primaries Regulation of the
Party and the Candidate's Evaluation Regulation," "has been
convicted of a felony or misdemeanor implicating moral depravation
or dishonesty," or has "engage[d] in activities" that are immoral
or unlawful.
PNP vets potential candidates through its Committee for
the Evaluation of Candidates for Public Office ("the Evaluation
Committee"). The Evaluation Committee, composed of five
individuals appointed by PNP's president, determines whether a
candidate is qualified for the position he or she seeks under the
criteria set forth in PNP's bylaws and the Electoral Code.
For example, potential candidates seeking to represent any 2
political party must submit certain documentation and
certifications to the Elections Commission. Id.
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González-Cancel Attempts to Run for Governor
On October 1, 2011, González-Cancel, a physician and
member of PNP, applied to be PNP's candidate in Puerto Rico's 2012
gubernatorial election. The Evaluation Committee reviewed his
application and supporting materials, interviewed him and those
with whom he worked closely, and allowed him to submit supplemental
information. At the end of October, the Evaluation Committee
decided that he was not qualified to run for Governor as PNP's
candidate. Relying on Articles 79 and 4(26) as the basis for its
decision, the Evaluation Committee pointed to (among other things)
discrepancies in certain submitted financial information and
complaints of sexual harassment against him that had aired publicly
in addition to "certain excesses of Dr. González Cancel in his
behavior with nurses and other co-workers, even in the Operating
Room itself." The Electoral Code requires that a political party
need only hold a primary for an elected position if two or more
qualified candidates are interested in the position. Art. 8.005.
By disqualifying González-Cancel, the Evaluation Committee had
determined that its President and (then) incumbent Governor of
Puerto Rico, Luis Fortuño, was the only qualified PNP gubernatorial
candidate, thereby obviating the need to hold a primary election.
In accordance with PNP's bylaws, González-Cancel timely
appealed the Evaluation Committee's decision to the PNP
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Directorate, PNP's final decision-making body. His appeal was
denied.
González-Cancel Files Suit
Article 8.007(i) of the Electoral Code provides a person
in González-Cancel's position the right to challenge a political
party's disqualification decision by appealing to the superior
court of Puerto Rico (the Court of First Instance) within five
business days after the party's final decision. Consistent with
this provision, González-Cancel sought further review of PNP's
decision in superior court on the same day the PNP Directorate
denied his appeal. But he also took another step. That very day
he, together with Barbosa, also brought a 42 U.S.C. § 1983 action
in federal court. The heart of their federal complaint is that
PNP's disqualification decision was arbitrary and erroneous because
he (González-Cancel) met all of the requirements under PNP's bylaws
and Puerto Rico law to be its potential candidate for Governor (or
so they allege). And, they add, PNP's decision violated their
rights under the First, Fifth and Fourteenth Amendments to the
Constitution -- namely, their right to associate with a political
party, to participate in the nomination of their party's candidates
for elected office, to vote in primaries and general elections, to
appear on primary and general election ballots, and not to be
excluded or disqualified from participating in their chosen party's
electoral processes for discriminatory reasons.
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On November 29, 2011, appellants moved in federal court
for Pullman abstention, asserting that state law imposed a choice
of forum to determine controversies arising under Puerto Rico law
and that, as a result, the federal court lacked jurisdiction over
their claims. In their motion, appellants further contended that 3
if the superior court resolved the state law issues, the federal
constitutional claims alleged in the complaint would become moot.
Then, appellants changed their position. They quickly
moved to withdraw their abstention motion on the grounds that
González-Cancel's case was no longer pending in superior court.
González-Cancel had voluntarily dismissed that case after PNP
requested that the Puerto Rico Supreme Court hear it through a
certification petition. Oddly enough, appellants argued that the
only means of redress was now in federal court since their five-day
window to re-file their appeal in superior court had closed.
PNP and the Elections Commission subsequently moved to
dismiss the complaint for lack of subject matter jurisdiction and
for failure to state a claim upon which relief may be granted. See
Pullman abstention, conceived by the Supreme Court in 3
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-502
(1941), "is warranted where (1) substantial uncertainty exists over
the meaning of the state law in question, and (2) settling the
question of state law will or may well obviate the need to resolve
a significant federal constitutional question." Batterman v.
Leahy, 544 F.3d 370, 373 (1st Cir. 2008). Given our ruling
discussed infra, we need not reach whether Pullman abstention
supported the district court's grant of appellees' motion to
dismiss.
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Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6). The district
court concluded that it lacked jurisdiction over appellants' claims
because they did not fall within one of the few narrow exceptions
required for a federal court's intervention in state or local
electoral disputes. This appeal followed.
STANDARD OF REVIEW
We review the grant of a motion to dismiss for lack of
jurisdiction de novo. Fothergill, 566 F.3d at 251. We are not
bound by the lower court's rationale, but may affirm the grant of
dismissal on any ground supported by the record. InterGen N.V. v.
Grina, 344 F.3d 134, 141 (1st Cir. 2003).
DISCUSSION
Appellants' main contention is that the district court
erred in dismissing their complaint for lack of jurisdiction. It
goes without saying that federal courts are courts of limited
subject matter jurisdiction and must have explicit authority to
decide a case. Bonas v. Town of North Smithfield, 265 F.3d 69, 73
(1st Cir. 2001). "Thus, we subject the plaintiffs' choice of a
federal forum to careful scrutiny." Id.
The jurisdictional statute, 28 U.S.C. § 1343(3), provides
that "district courts shall have original jurisdiction of any civil
action . . . [t]o redress the deprivation, under color of State
law, statute, . . . custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States by any
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Act of Congress providing for equal rights of citizens . . . ."
Because this statute mirrors the text of § 1983, federal
jurisdiction will attach if a plaintiff has alleged a colorable
claim under § 1983. Rosselló-González v. Calderon-Serra, 398 F.3d
1, 15 (1st Cir. 2004); Griffin v. Burns, 570 F.2d 1065, 1077 (1st
Cir. 1978).
However, we do not reach whether the complaint alleges a
colorable § 1983 claim. That is because the exercise of federal
jurisdiction over local election disputes requires a further
inquiry, arising from the principle of non-intervention. Since
appellants' claim involves a local election dispute, we must
determine whether federal intervention is appropriate. State or
local election law matters are "for the most part a preserve that
lie[] within the exclusive competence of the state courts." Bonas,
265 F.3d at 74. And we have repeatedly held that federal courts
must not intervene unless one of the few narrow and well-defined
exceptions applies to justify intervention. Rosselló-González, 398
F.3d at 16 (applying rule of non-intervention to an election
dispute in Puerto Rico); Bonas, 265 F.3d at 74; Griffin, 570 F.2d
at 1077.
One exception allows federal intervention where a
discrete group of voters are denied equal protection. Bonas, 265
F.3d at 74. Appellants assert no equal protection claim and the
record does not suggest one. Another exception applies where a
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denial of substantive due process occurs; that is, where "the
election process reaches the point of patent and fundamental
unfairness." Id. Distinguishing regular electoral disputes (which
do not warrant federal involvement) from those that work patent and
fundamental unfairness (which make federal intervention
appropriate) is often difficult. The cases that easily fit into
the latter category are those involving complete disenfranchisement
of voters. See, e.g., Griffin, 570 F.2d at 1078-79 (federal
intervention appropriate where absentee and shut-in voters were
denied their right to have their votes counted in a primary
election for a city council seat); Bonas, 265 F.3d at 75-76
(federal intervention warranted where a municipality's decision not
to hold a municipal election effectively disenfranchised all voters
eligible to vote that year). For other cases, "there is guidance
enough" in the idea "that due process is implicated where the
entire election process" -- which includes a "state's
administrative and judicial corrective process" -- "fails on its
face to afford fundamental fairness." Griffin, 570 F.2d at 1078.
This means that, as part of our due-process analysis, we must
consider "whether there was a state process in place to handle the
question posed by the plaintiffs, and whether the plaintiffs had
availed themselves of that state process." Rosselló-González, 398
F.3d at 16; accord Bonas, 265 F.3d at 75.
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Here, González-Cancel initiated a state court process in
place for resolving this very dispute, but decided to abandon it.
The Electoral Code provided González-Cancel the right to appeal
PNP's decision -- and he did so, filing his action in Puerto Rico
superior court. But he never gave any state court the opportunity 4
to evaluate his challenges to PNP's decision since he voluntarily
dismissed the case after PNP requested that the Puerto Rico Supreme
Court hear the parties' dispute through a certification petition.
Appellants attempt to explain this away, stating that
González-Cancel would not have been able to present evidence or
develop a full record before the Puerto Rico Supreme Court. But
their explanation is as perplexing as it is meritless. At the time
González-Cancel dismissed his case in superior court, the Puerto
Rico Supreme Court had not yet decided whether to grant PNP's
petition for certification. And even if the Puerto Rico Supreme
Court decided to hear the case (which appellants agree it had the
authority to do), appellants concede that it could have remanded
the case to the superior court for fact finding or appointed a
special master for similar purposes, thereby alleviating their
concerns. Where, as here, a plaintiff is aware of, yet fails to 5
The same day, he filed this case in federal court and, in 4
moving for Pullman abstention, acknowledged that if the local
courts ruled in González-Cancel's favor, the federal claims would
be moot.
See P.R. Laws Ann. tit. 32, App. III, Rule 41.2 ("The Supreme 5
Court may refer a matter to a master in any case or proceeding.");
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fully use, an adequate state administrative or judicial process to
address a local election dispute, a claim that the election process
created fundamental unfairness to warrant federal intervention
cannot survive. See Rosselló-González, 398 F.3d at 16; Griffin,
570 F.2d at 1077 (noting that "even claims of official misconduct[]
do not usually rise to the level of constitutional violations where
adequate state corrective procedures exist").6
Appellants press yet another argument as to why
fundamental unfairness abounds here: Fortuño had appointed the
Evaluation Committee members who, as his allies, disqualified
González-Cancel to ensure Fortuño faced no primary challenger in
running for Governor as PNP's candidate. Be that as it may, it
does not change our conclusion. Appellants had the opportunity to
raise this concern in state court, but they chose not to.
Accordingly, we see no fundamental unfairness.
id., Rule 41.3 ("The order of reference . . . may direct [the
master] . . . to receive and report evidence," and "he may require
the production before him of evidence," plus "rule upon the
admissibility of evidence unless otherwise directed by the order of
reference, and shall have the authority to put witnesses on oath
and may himself examine them and may call the parties to the action
and examine them upon oath.").
Appellants do not argue that the requirement, as set forth by 6
the Electoral Code, that they file suit in Puerto Rico superior
court for resolving such disputes is an inadequate or unfair means
of redress.
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CONCLUSION
For all these reasons, we affirm the district court's
decision not to intervene in the election dispute.
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