Judicial View > Federal Cases > > Business Owners Sue Over Politically Motivated Investigation -Andres Guillemard-Ginorio; Maria M. Noble-Fernandez; Conjugal Partnership Guillemard-Noble; et al v. Fermin M. Contreras-Gomez; Dorelisse Juarbe-Jimenez; et al

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that uvi paid commissions to lone star from the sale of the they were not. we are persuaded that the agency's investigation of -30- [state]. suits brought against a state finally, defendants argue that the district court erred court held, inter alia, that "summary judgment is warranted in plaintiffs for insurance code violations had been raised at the exhaust their administrative remedies prior to bringing a � 1983 lobel, glovsky & tye, llp, joan s. peters and nachman & guillemard, to discretionary local permitting decisions to proceed on an equal should be "the exception, not the rule." fragoso v. l�pez, 991 -55- board's discretionary decision to deny them a land use permit, billboard advertisements that do not conform with current law); whether the right at issue was 'clearly established' at the time of defendants "failed to comply with the frap 28(e) requirement that the proceedings are judicial (as opposed to [s]ince younger, deference has been similarly merits" began in federal court, the only pending state proceedings action in favor of the state-court litigation." exxon mobil corp. to two docket numbers corresponding with the district court's according to his own testimony at trial, at some point circumstances would have thought it was constitutionally liability but have only a single line for damages"). second, the considering the merits of defendants' younger and burford enforcing certain regulations, but do not attack the u.s. at 43-44). accordingly, plaintiffs further argue that even if in early 2003 plaintiffs learned that contreras and the oic commenced its investigation of the plaintiffs but prior to both abstention." quackenbush, 517 u.s. at 728; see also deakins, 484 dismissing the charges against them, juarbe had "adopted and justice, with whom roberto j. s�nchez-ramos, secretary of justice, 890. "other administrative proceedings fill the 'remedial' asked to interfere with state processes by reviewing the because "[t]he administrative appeal process could be triggered from the issuance of the december 23, 2003 order. specifically,13 already formally charged federal plaintiff with a violation of the coherent policy with respect to a matter of resolution of these questions is so related to an overall coherent of the due process and equal protection clauses of the fourteenth "proceeding" triggering younger abstention. -25- was not relevant and not timely produced. may justify abdication of the 'virtually unflagging obligation loc. r. 28(e) (same). defendants fail to comply with this packish v. mcmurtrie, 697 f.2d 23, 25 (1st cir. 1983) (holding that the order sanctioning them was to take effect automatically, and investigation and, on november 2, 2001, the oic assigned angela defendants contend that if it were shown that plaintiffs plaintiffs had already been indicted and were being criminally 89, 106 (1984). in pennhurst, the supreme court held that the defendants argue that plaintiffs' federal action is fonseca, 451 f.3d at 33-34, for the proposition that this circuit individual/personal capacities. in which she responded to allegations of incompetence and improper to telco constituted the start of administrative proceedings, the 2003 order issued by oic, which sanctioned the plaintiffs for preponderance of evidence that he would have issued the december with respect to retaliation, the jury found that plaintiffs had required whenever enforcement is threatened--would leave a party's succeeded on january 7, 2004 by defendant juarbe, who served as of the plaintiffs. specifically, having already established12 granted plaintiffs' motion with respect to liability on the due damages to be paid out of the official's pocket." see fallon, kercad�-mel�ndez chose to forego them, this distinction, again, the verdict." freeman v. pack. mach. co., 865 f.2d 1331, 1345 (1st d. overlap of claims facts persists throughout each prong of the qualified immunity doctrine of sovereign immunity beyond the literal words of the for each of the two overlapping claims," we find no basis for defendants now appeal. burford is normally implicated only "when the federal courts are is limited in its application to suits seeking equitable remedies, to the party that prevailed at trial,' and deference is 'accorded faith" provides an exception that precludes application of the of puerto rico law, "discriminatory motive is irrelevant." this pennhurst itself, defendants argue that there is a split among the id. result of the submission of both to the jury. while defendants conjugal partnership b�ez-juarbe; jos� b�ez; jane doe 03cv2390; government defendant is spared liability despite considering an the issue, and we limit our holding here to the facts before us. ("to the extent that a jury award on both claims would be attributable to the officer himself," sovereign immunity does not of suffolk, 298 f.3d 81, 93 (1st cir. 2002)). the law is -4- 1983 plaintiff need not exhaust state administrative remedies." the district court had excluded the evidence on grounds that it27 moved for a preliminary injunction against the enforcement of the 991 f.2d at 883 (holding that district court was not required to former insurance commissioner juan antonio garc�a, in which garc�a we again conclude that the district court properly denied to interfere with the oic's authority to develop and enforce -16- that jurisdictional grant. as damages in this case are being order. such request for administrative relief would stay the telco following complaints of wrongdoing by the company. the threatened prosecution and sought to enjoin all enforcement of the see acevedo-garc�a v. monroig, 351 f.3d 547, 569 (1st cir. 2003) commonwealth of puerto rico, we presume defendants' "eleventh which we affirmed, finding that an equal protection clause claim -20- statement" about guillemard and lone star. the jury also found andr�s guillemard-ginorio; mar�a m. noble-fern�ndez; (1987) (analyzing younger abstention as of the time the case was inquiry should not focus on the date the federal complaint was orleans, 967 f.2d 14, 16 (1st cir. 1992) (recognizing that "younger distinction without a difference, the important point being that qualified immunity on that claim, see id., and pursuant to10 conception of sovereign immunity. most prominently with respect to the grand jury proceedings stage affiliation or their filing of a federal lawsuit. because the footnote twenty-one, the court distinguished several cases in which matters, to the point where the presence of the federal court, as insurance commissioner until december 2008, when a new "in administering the court's test, this circuit has tended to20 arrangement between lone star and uvi. conjugal partnership urrutia-wiewall' urrutia vall�s, inc., coercive, and in most-cases, state-initiated, in order to warrant court has held that the eleventh amendment thus, of lone star and uvi, was common and normal in the way that discretion historically enjoyed by courts of equity"); id. at 731 this court, defendants fail to include in their appellate brief contrast, in this case, the district court was "not being asked to order, pending the administrative appeal. after an evidentiary 447 f.3d at 102. specifically, the court instructed the jurors completion of a full and fair pre-deprivation administrative sought from the state's treasury. the federal judiciary is verdict 'if it is highly probable that the error did not affect the favor of plaintiffs on their due process claims," as it "remains pursuant to rule 28(e) of the federal rules of appellate procedure has a unique perspective which enables [him] to make assessments of course, true that "a plaintiff is entitled to only one full agency-specific regulatory determinations, where federal despite the absence of support for their contention in irregularities. thus, it is clear that prior to the issuance of must review de novo the [district court's] essentially legal cir. 1997) (citing quackenbush for proposition that "in a damages issued constitute an "ongoing state proceeding" such that contreras and juarbe on plaintiffs' equal protection clause "class insurance brokers, such as uvi, work to obtain insurance on2 (remanding case to district court for determination of whether ferm�n contreras's december 23, 2003 order," and that contreras exercise of that authority, where it was established that oic finding that the puerto rico appellate court decision was solicitor general, was on brief for appellants. of a termination order and because all post-order proceedings were and against contreras for damages in his individual capacity and "[a]n appellate court has discretion to excuse waiver 'in the to the order's taking effect." maym�-mel�ndez, 364 f.3d at 36 decision in patsy, the panel reasoned, "she was not required to do right was so clearly established that it would have been clear to a. abstention when there are "difficult questions of state abstention is warranted). this circuit has taken no position on claims separately to the jury, when those claims substantially rendered, the evidence is 'construed in the light most hospitable "exercise of federal review . . . would be party ("npp"). the complaint included federal claims under the we note however, that, though there is no greater disruption,19 statute. id. at 39. here, however, plaintiffs allege defendants timely appealed. on appeal, defendants raise relevant date for assessing the propriety of abstention, there was arguments during trial, and later, in their rule 50 and 59(a) appeal on the basis of counsel's failure to comply with procedural january 2002 through to the conclusion of plaintiffs' state justification under the law for acting as they did. we disagree. seeking to enjoin a state official from enforcing state statute irrespective of prohibited motive, as is required to evade protection claims that are both substantially supported. see, an investigation to punish lone star plaintiffs for their political the "awkward circumstance of turning the federal court into a forum under the first amendment (political discrimination and toward guillemard in violation of the first and fourteenth interests of justice,'" (quoting thomas v. arn, 474 u.s. 140, 155 rational basis." we agree. we thus affirm the district court's -13- cir. 1995), for the proposition that showing that retaliation for juarbe-jim�nez ("juarbe"), individually and in their official the jury found breaches of this "clearly established" challenged evidence were made. they include only two references: beliefs, and terminating their insurance license without notice or investigation. payments such as bribes to third parties. castro never found any investigation. 39-41. and personal accounts of guillemard and noble. many of these defense as a grounds for the motion"); see also bennett v. city of in terms of political discrimination, the jury concluded that for dismissal submitted by the parties.8 pursuant to that investigation, rivera found evidence suggesting officers. see pennhurst, 465 u.s. at 111 n.21. in doing so, the (citing kercad�-mel�ndez, 829 f.2d at 260-62). we explained that conduct. kercad�-mel�ndez, 829 f.2d at 257. the termination order should have declined to exercise jurisdiction pursuant to the defendants also argue that the district court committed inapplicable on these facts, is compelled by our decision in f.3d 882, 884-85 (10th cir. 2009) (holding that proceeding right to petition the courts for redress of grievances. see younger v. harris, 401 u.s. 37 (1971); burford v. sun oil co., 319 considered clearly established "either if courts have previously coconspirator statements under evidence rule 801(d)(2)(e) absent plaintiffs appealed again to puerto rico's supreme court, which, on because legitimate grounds for the same action were also available. carbaugh, 885 f.2d 1225 (4th cir. 1989), cert. denied, 495 u.s. 904 contreras that "there was no legal grounds for this type of agency, lone star insurance producers, inc. ("lone star"), brought shared commissions on premiums for insurance of the kind that treated the plaintiffs differently from others similarly situated," verdict, and the amount of the damages award, defendants again relatedly, "whether the commissioner fairly applied [that] subject-matter jurisdiction, cannot be waived. the capacity in which the officer inflicts the alleged injury.'" pearson rendered the sequential nature of the saucier analysis process claims, we affirmed the district court's conclusion that and federalism are not implicated to the degree that they were in trial, guillemard met with then commissioner of insurance juan portion of d�az-fonseca cited by defendants involved a claim for that burford abstention is appropriate." we disagree. the proceeding which does not affect the substantial rights of the category and remain subject to patsy's holding that a federal � ha[d] not presented sufficient evidence to show that he was treated equitable relief." nopsi, 491 u.s. at 366 (quoting younger, 401 in a suit against an officer for money damages when the relief no citations to anything in the record or transcript that would plaintiffs and against contreras on the defamation claim, finding in umbehr, the plaintiff, who served as a trash collector for the represent only another way of pleading an statute] violates the due process clause." guillemard, 490 f.3d at defendant's alleged misconduct." pearson, 129 s. ct. at 815-16 discuss it further on this appeal. meetings leading up to the issuance of the order. the order (1) create a coherent framework for liquidation of insolvent insurance if "the effect of an entire state regulatory scheme [were being] time plaintiffs brought their federal action, which was after the commissioner of puerto rico ("oic") and two consecutive insurance waivable defense. see bonas v. town of north smithfield, 265 f.3d has jurisdiction so long as there is (1) an ongoing state judicial through the duration of the proceedings. state regulatory provision upon which defendants' burford argument suffering and emotional distress [it] find[s] that they endured as 350, 367-68 (1989) (recognizing extension of younger to civil to which the younger doctrine applies to a federal action seeking interests are involved." middlesex county ethics committee v. nopsi, 491 u.s. at 361 (quoting colorado river, 424 u.s. at 814). -3- informative motion filed by plaintiffs. effective appellate review of an evidentiary ruling admitting punishment under the insurance code for politically discriminatory the doctrine of qualified immunity protects government hicks and our holding in bettencourt, in terms of the relevant date suit against the state for purposes of there was no ongoing state proceeding at the time they brought (citing saucier, 533 u.s. at 201); see also bisbal-ramos v. city of states v. zannino, 895 f.2d 1, 17 (1st cir. 1990) ("[i]ssues telco sought federal court protection against further action by the defendants argue for extension of that holding to all federal "ocaso," which, defendants allege, would have undercut the code in a constitutionally impermissible manner. doing so was thus such payments. by december 17, 2001, castro concluded his audit. various claims for relief resting on the district court's alleged allege, without elaboration, that the damage amounts awarded by the the threshold issue is whether defendants' abstention agencies in 1993, when it was the agency that placed insurance for see borges-col�n v. rom�n-abreu, 438 f.3d 1, 19 (1st cir. 2006) whose admissibility is controverted on appeal" they "must be deemed pursuant to 28 u.s.c. � 2201 and 42 u.s.c. � 1983 against the oic (1st cir. 1989) (explaining that because there was no the exercise of constitutional rights or discrimination based on (7th cir. 1998) (explaining that "[f]or purposes of younger motion against injunctive relief filed after the entry of judgment. brief cites, without analysis, two of our cases, rosenfeld v. egy, plaintiffs had the option to request a hearing challenging the -27- v. saudi basic industries corp., 544 u.s. 280, 292 (2005). these insurance code prohibiting it. rosario testified that he told the order and subsequent administrative proceedings in puerto rico, that "the administrative proceeding that younger is meant to defendants concede failing to include abstention arguments in their younger." id. qualified immunity conclusion relied having been, in large part,22 the december 23, 2003 order, "no formal enforcement action ha[d] hand, the commissioner's motives for the issuance of the order, finally, with respect to the equal protection claim, bolstered their argument against plaintiffs' arbitrary and contreras and juarbe also issued ex parte subpoenas to various a hearing in retaliation for their filing of a legal action would -53- relied on a puerto rico insurance code statute, p.r. laws ann. tit. 361). waived. guillemard, 409 f. supp. 2d at 107. we affirmed that appellate record, reverse a district court's on-the-spot judgment under both the equal protection clause and first amendment having outcome of the case.'" id. at 52-53 (quoting mcdonough v. city of queries are affirmative, whether a reasonable public official, grounds for the commissioners concluding that they had legitimate the qualified immunity test as a three-part test." maldonado v. (explaining that "[i]n determining whether federal proceedings rule 50 motion but, without citing authority, contend that they affiliation. on december 10, 2003 plaintiffs filed the instant u.s. 315 (1943). they argue that the district court ought properly bearing on significant public policy as would prompt [burford] f.3d at 15. we affirmed the dismissal, reasoning that "rosenfeld we recognize that the performance of official proven that "their act of filing this lawsuit was a substantial or ii. discussion holyoke, 362 f.3d 1, 6 (1st cir. 2004) (holding that raising former, to which younger abstention is inapplicable, from the "formal enforcement proceedings" before abstention is required, mayag�ez, 467 f.3d 16, 25 (1st cir. 2006) ("a public officer is not a decision adverse to a plaintiff, only "by demonstrating that it enforcement of its laws or regulations in an administrative to have abstained from issuing injunctive relief or permitting the had notified plaintiffs that they were being investigated and had insurance broker and suggested he do so with urrutia vall�s, inc. nopsi, 491 u.s. at 374 (rehnquist, j., concurring) (explaining that sevigny v. employers ins. of wausau, 411 f.3d 24, 26-27 (1st cir. respect to contreras' argument for qualified immunity on the due it is arguable whether there is some tension between 1994), a legal argument made in a dispositive motion is not these post-trial motions, the district court concluded that its panel majority held that younger did not apply because puerto rico that guillemard and urrutia were erroneously allowed to provide (quoting colorado river water conservation dist. v. united states, whatsoever, is properly characterized as "summary action" as the lone star audit to his supervisor, which was entitled "final considerations, is no less offensive to the constitution, just 637 (1st cir. 1996)). nonetheless, the district court's findings contents of the challenged evidence. in short, they have not. oic issued its order sanctioning plaintiffs only after a full- is motivated, in fact, by political or other unconstitutional defense. law only. while the pennhurst holding was, on its facts, limited24 -11- met." esso standard oil co. v. cotto, 389 f.3d 212, 217 (1st cir. 2004) (quoting brooks v. new hampshire supreme court, 80 f.3d 633, c. eleventh amendment immunity ferm�n m. contreras-g�mez, individually; were properly sanctioned for insurance code violations as a matter 26, � 947(2)(a), which authorizes license revocation without a charging them with various violations of the insurance code ("the concerning the relative weighing of probative value and unfair constitutionality of the state statute that was the basis for the received or rejected." fed. r. app. p. 28(e); see also 1st cir. 2008); isom v. town of warren, 360 f.3d 7, 9 (1st cir. 2004) reasserting their evidentiary challenges once more before -62- the former case of liability, the supreme commenced." hawaii housing authority v. midkiff, 467 u.s. 229, having contributed substantial time and financial support to npp declared plaintiffs "incompetent" and "untrustworthy"; and (4) during which abstention is not required. telco commc'ns, inc. v. the required type of "ongoing state judicial proceedings," the event, the plaintiff's equal protection claim "substantially nevertheless address defendants' abstention arguments on the defendants. plaintiff has satisfied this first step, the court must decide fails to recognize that the eleventh amendment, and by implication, of the sixth circuit, sitting by designation.* injunction enjoining the revocation of plaintiffs' licenses pending challenged as unconstitutional," burford abstention also would not begun, he could have gone directly to federal court to challenge plaintiffs guillemard and noble are husband and wife. respect. in younger, the federal plaintiff challenged the reference to the challenged statements."). for example, defendants applicability of younger abstention are not met, we need not reach "if the federal plaintiff will 'suffer irreparable injury' absent the full continuum of those proceedings, including judicial review state officers acting in their individual capacities"); wilson v. it is well established in this circuit that a uvi and its principals, jorge r. urrutia vall�s ("urrutia") and1 eleventh amendment immunity. returning to the federal proceedings, discovery took whatever insurance regulations it saw fit. it merely enjoined the19 defendants assert that both personal capacity defendants, however, because we find that the requirements for the superintendent employed by puerto rico's department of public also held to be not substantially supported. id. at 15, 18. (1997)). christian schools, inc., 477 u.s. 619 (1986) (extending younger to rico law. in doing so, they rely upon the supreme court's23 also patsy, 457 u.s. at 514 (holding that litigants need not compensate the plaintiff's injuries just once." valent�n-almeyda, officials, including actions for damages. kercad�-mel�ndez by emphasizing that kercad� was only able to file jennings, 499 f.3d at 16 (quoting suboh v. dist. attorney's office appeal from the united states district court conduct does not violate clearly established statutory or the jury also found against contreras with respect to the first was filed); huffman v. pursue, ltd., 420 u.s. 592, 598-99 (1975)15 e. evidentiary challenges order] even if plaintiffs had not filed their lawsuit." commenced. we find it clear that in this case, that point had not required whenever a state bureaucracy has initiated contact with a under a pretextual motivation theory in the context of a highly because resolution of a federal question may result in the was remedial and not coercive, and thus was not the type entitled government insurance policies. enforcement proceedings); ohio civil rights comm'n v. dayton action, noting that "[i]f maym� had been summarily suspended by the important state interests; and (3) they prior to the issuance of the order. guillemard, 301 f. supp. 2d at for, the political affiliation and activities of guillemard. it with respect to the equal protection clause claims, the misapplying valid state regulations against them in an abstention doctrines, see, e.g., younger, 401 u.s. at 44, we will contreras, 409 f. supp. 2d 101, 112 (d.p.r. 2006). the district review the actions or decisions of any state body, be it judicial issuance of the preliminary injunction, which we dismissed as moot v. government contract, the first amendment is violated if the required before an investigation, in the criminal context, ripens 502 u.s. at 29-31 (holding that the eleventh amendment does not prong along with the first prong and, as a result, has articulated situation existed" that could justify such failure. id. at 107.9 to actions for damages as well. see, e.g., quackenbush v. allstate depended, had already taken place. guillemard, 161 fed. appx. at 132, 143-44 n.10 (1976) (recognizing that "abstention may be raised because exercising federal review in this case neither substantial public concern." plaintiffs' equal protection claim premised on a local planning we held that defendants were not entitled to qualified immunity11 plaintiffs were licensed to solicit. there was evidence at trial investigation, david castro anaya ("castro"), an oic auditor, was a matter of law contained no arguments with regard to abstention, magistrate judge's ("mj") recommendation, the district court (rejecting, under qualified immunity analysis, a factual scenario investigation" and thus, he did not wish to investigate lone star permissible to single out plaintiffs for sanctions, with no was on brief for appellees. remedial rather than coercive. this is because "[t]he december 19, 2003. at that time, the oic had not issued any commonwealth from suit in federal court. id. the decision said election, bringing into power the pdp administration of governor plaintiffs made out a violation of their constitutional rights. because we decide this case based on the first factor, we need17 capacities, alleging, inter alia, that defendants investigated and by the fourth circuit in telco between the commencement of "formal argument fails for lack of developed argumentation. see united that contreras' investigation was motivated by political animus nevertheless, even if we broaden the timeline to include cir. 1988); see also borden v. paul revere life ins. co., 935 f.2d crespo ("rosario"), the director of the anti-fraud unit at the oic -33- defendants' interlocutory appeal in this court, on june 12, 2007, or broker had been investigated or fined. this claim, defendants initiation. and while here plaintiffs chose to avail themselves of constitutionality of any underlying regulations. "this is instruction ("dpi"), was terminated after an informal dpi hearing failing to provide her with a pre-termination hearing. id. "the -59- transcript of the proceedings below, where rulings as to the distinction between official capacity and personal capacity suits to decide whether advertisers will be permitted to continue to post ruling. we held that this argument was only relevant to hearing held on february 4, 2004, the court issued a preliminary state, but by their own citizens as well. see alden v. maine, 527 does not change the essential fact that the proceedings at issue found that those facts were not so). as such, the first prong of agency's ex parte subpoenas of plaintiffs' financial records in judgment sought would expend itself on the public treasury or entitled to qualified immunity if he violated a plaintiff's january 10, 2006, accepting in part and rejecting in part a years. a report regarding the investigation had been provided by enjoining of all enforcement of a state statute, though it might be both are licensed insurance agents in puerto rico, each owning 50% or federal in origin, the eleventh amendment is no bar. this 126 (1st cir. 2006). we further note that "[t]he commonwealth of the investigator to the commissioner, but not to the plaintiffs. puerto rico insurance code. see p.r. laws ann. tit. 26, � 939 fern�ndez ("noble"), along with their jointly-owned insurance immunity de novo." whitfield v. mel�ndez-rivera, 431 f.3d 1, 6 amendments and that the subpoenas constituted an invasion of violations would violate their rights to equal protection. what before contreras, would not believe he could subject plaintiffs to 1229. in short, while "the threat of enforcement" against that those actions sought damages in tort against the individual between september 17 and october 3, 2007. on october 8, 2007 the -12- proceedings to which younger abstention attaches. -6- due process (deprivation of property without a hearing) and two 457 u.s. 423, "established the basic analytical framework that interests, see, e.g., green v. mansour, 474 u.s. 64, 68 (1985), whether the agency could have proceeded against the plaintiffs for handle all government insurance. based on testimony presented at federal complaint).16 legal fiction underlying the ex parte young doctrine, a compromise amendment"). as cogently articulated by our sister circuit: "before any proceedings of substance on the merits have taken place established law prohibits the government from conditioning the -22- defendants' interlocutory appeal, we affirmed. guillemard, 161 rivera to investigate uvi for its conduct in connection with the disclaims knowing of a relationship between lone star and uvi. (noting that although ballot-access cases typically involve both district court rejected this argument, most recently, in its denial -44- liability under mt. healthy. put another way, adverse action that permit or require the federal court to stay or dismiss the federal the qualified immunity test takes the form of a two-part inquiry. kind barred by the eleventh amendment -- as is true of . . . here, the relief sought in the federal suit is damages to be paid is an agent. . . . personal-capacity suits, on that he would prepare a final report in early 2002 and send u.s. 706, 728-29 (1999). this immunity "extends to entities that a change of government took place during the 2000 general 2003, plaintiffs amended their federal complaint to allege, among the plaintiffs was at too preliminary a stage to constitute a mt. healthy city bd. of ed. v. doyle, 429 u.s. 274 (1977)) affirmed. should be regarded as 'ongoing' for the purposes of younger which deference under younger is required. as for the december 23, we nevertheless find no "ongoing state proceedings" of the type to domain, or interfere with the public administration, or if the abstention. see kercad�-mel�ndez v. aponte-roque, 829 f.2d 255, effort to establish a coherent regulatory policy. on march 4, 2005, juarbe issued a resolution sustaining the finding action against an entity of which an officer determination is made; a neutral fact-finding process," but that 1988). "lie near the epicenter of the judicial process." reyes-garc�a v. star entered into a consortium with uvi. testimony and exhibits at run directly against the government, "nothing in our opinion we believe this rule, requiring the commencement of of their administrative challenge, the requisite "ongoing state court's articulation of the test" as well. 568 f.3d at 269 each claim, the verdict form should "identify separate bases for of the constitutional claims upon which the jury found adversely to & n.15 (1985)). thus, despite the possibility of waiver in this plaintiffs' motion for a permanent injunction and, on january 8, regardless of whether the claims alleged against the individual 522, 529 (2d cir. 1993) (holding that defendant official sued in contreras' issuance of the order, and that contreras failed to therefore, that "the period between the threat of enforcement and doctrines call upon federal courts to decline to exercise their theories of liability, there is no basis for assuming that the jury "the administrative proceeding is remedial rather than coercive" an administrative appeal of the order with the oic.4 political activities or affiliation." the jury also found against due to their political affiliation," and "easily affirm[ing]" the 939 [of the insurance code] forbids commission sharing" and revoked the plaintiffs' insurance licenses for a five-year period; commissioners, ferm�n contreras-g�mez ("contreras") and dorelisse summarily revoking plaintiffs' licenses defendants reasonably abstention may be waived"). our case law is clear that even if a [contractor's] speech"). defendants further argue, with respect to hicks, 422 u.s. at 349 (younger abstention is required when state judgment on the due process claim pursuant to fed. r. civ. p. 60(b) (emphasis added). thus, we "adopt[ed] the [supreme] court's two- unless plaintiffs requested an administrative hearing. although amendment bar . . ."); ying jing gan v. city of new york, 996 f.2d revocation of benefits on a basis that infringes constitutionally and personal accounts. guillemard also learned that contreras had3 resolution"). the resolution, however, reduced the fine amount to first and fourteenth amendments pursuant to 42 u.s.c. � 1983 custodio involved the dismissal, on summary judgment, of jury returned a verdict largely against the defendants and in favor -35- test, "[w]e consider whether existing case law was clearly then current insurance commissioner, juarbe, as a defendant, in her consumer affairs, 876 f.2d 1013, 1029 n.23 (1st cir. 1989). after employer "can show, by a preponderance of the evidence . . . that, affiliation or activities" of guillemard. it found further protection claim premised on the officer's discretionary decision capacity suits, the eleventh amendment places no limitations on explicitly required by our procedural rules. specifically, custodio, 964 f.2d 32, 40-41 (1st cir. 1992) (holding that denial immunity inquiry as requiring court to determine "(i) whether the v. contreras, 490 f.3d 31, 41 (1st cir. 2007). the commission sharing regulation. defendants raised these27 other claims were not properly raised before the mj and thus, business was conducted and that he had not found anything in the contend, substantially overlaps with plaintiffs' equal protection were able to appeal internally before oic. we see this as a that will effectively decide a host of detailed state regulatory reference to their voluminous (3000+ page) appendix or to the created to balance state sovereignty and federal supremacy abstention." fragoso, 991 f.2d at 883 (quoting nopsi, 491 u.s. at guillemard," and that contreras failed to prove that "he would have first, entertaining defendants' federal claims alleging abstention issues on the remaining immunity appeal. id. at 27 n.6. 2004). defendants, in turn, moved for dismissal of the complaint6 characterization of d�az-fonseca is entirely without basis. the -50- while the jury did not find that contreras instigated the22 reasonable officer in contreras' or juarbe's position would not plaintiffs differently than others similarly situated, without a federal court." id. the district court . . . there was not, for younger purposes, any of one" claim, concluding that both defendants "intentionally $1,675,000.00 (35%) corresponds to juarbe. question decided. rather, the jury was called upon to determine . . . to exercise the jurisdiction given' the federal courts" that "pennhurst and the eleventh amendment do not deprive federal jury was prejudicial as it likely resulted in duplicative recovery. claimed to violate the fourteenth amendment of the united states political affiliation or in retaliation for the exercise of his for the district of puerto rico inc., 265 f.3d 79, 81-82 (1st cir. 2001) (holding claim waived on continuing oic investigation, nothing resembling formal enforcement still governs younger abstention. under this paradigm, a federal from january 1, 1997 through september 30, 2001. the notification county pursuant to a government contract, had his contract to younger deference); majors v. engelbrecht, 149 f.3d 709, 712 puerto rico's insurance code permits the sharing of commissions. defendants additionally assert that the district court evidentiary objections to be waived. see conto v. concord hosp., for commission sharing. in response, contreras told rosario that established" that a licensee can prevail on a first amendment claim under some other tort theory."). but "in this circuit, the primary violate their constitutional rights." guillemard, 161 fed. appx. challenging the sufficiency of evidence supporting the jury's theory that since the state cannot authorize unconstitutional however, is flatly refuted by the jury's verdict, a verdict the there is substantial case law, both in the "regulated industry" 379-80 n.5 (1978). rather, burford abstention is primarily targeted in the federal court"); cf. pennzoil v. texaco, 481 u.s. 1, 17 -57- -47- discrimination claim, that "the political affiliation or activities (1st cir. 1990) (citation omitted). since then, the court has the interlocutory appeal also included a challenge to the7 -5- only monetary relief"); demauro v. demauro, 115 f.3d 94, 98 (1st -10- noncompliance with rule 28(e) severely hamstrings our ability to proposed by defendants, on the ground that the jury could have doctrines are only available to challenge the exercise of a federal apply in that circumstance. tenoco oil co., inc. v. department of authority to consider the issue. see bellotti v. baird, 428 u.s. we first note that, "younger is not a bar to federal his individual conduct." pennhurst, 465 u.s. at 102 (quoting ex damages for each claim. with no basis for concluding that a legitimate reason, not that it actually would have done so overlap were present, we see nothing in these cases that precludes its progeny, in which an indictment or other formal charge had claim, and that we lacked jurisdiction to review the district of business v. earle, 388 f.3d 515, 520-21 (5th cir. 2004) (holding commonwealth constitution. following a jury trial, plaintiffs were younger to state administrative proceedings). conclusions, evoke a more deferential standard of review. see "disruptive of state efforts to establish a coherent policy" under see generally erwin chemerinsky, federal jurisdiction � 7.5.2,25 whether the facts a plaintiff has . . . shown . . . make out a abstention doctrines, in declining to recognize defendants' issues," whitfield, 431 f.3d at 6, and constitutional violations our own. see, e.g., alden, 527 u.s. at 757 (explaining that where beliefs, and terminating their insurance license without notice or reference be made to the transcript pages containing the evidence after november 20, 2001, but before march 2002, melvin rosario ongoing state proceeding warranting abstention"), with texas ass'n specifically, defendants characterize plaintiffs' main claim, under prosecuted in state court when federal action was filed); procedural requirement, not including in their brief a single respect to the state law claims, the jury decided in favor of the thus, despite defendants' best attempts, nothing in our within the puerto rico administrative framework." plaintiffs notice or a hearing, issued an order against plaintiffs 23, 2003 order irrespective of the plaintiffs' political rights, and that the state had deprived her of due process by no formal charges of any kind had been brought against them. in amendment political discrimination and retaliation claims resulting did not apply). as explained by our sister circuit, "a state's conjugal partnership guillemard-noble; "clearly established" such that "it would have been clear to a agency. id. in rejecting the agency's contention that the letter plaintiff's equal protection and first amendment theories. id. at "as with other abstention doctrines," as "deriv[ing] from the alert us to the contents of the order, leaving us without a basis against it and invited it to attend an informal fact-finding amendment claim arising from the investigation, the jury found in administrative proceedings); maym�-mel�ndez v. �lvarez-ram�rez, 364 defendants counter that even if the oic investigation did unconstitutional conduct by state officials in the course of the entire oic proceedings against the plaintiffs, including the review the evidentiary issues they raise. see id.; see, e.g., plaintiff['s] injuries just once."); see also britton v. maloney, been found by the jury, we are compelled to conclude that inc. v. sherwin-williams co., inc., 40 f.3d 492, 497 (1st cir. 332, 349 (1975), "proceedings of substance" had taken place in the he would "have to go after this npp" anyway. rosario asked to be abstained when it was called upon to review a state railroad tort theory precludes any duplicative recovery for the same damages citing the policy problems described in custodio of permitting all, "there is . . . no doctrine requiring abstention merely of agency action. see 364 f.3d at 35-36. however, we explicitly heard and to present their version of the facts before a final 2008, relying on the jury's findings at trial, issued an order that eleventh amendment, holding that state governments, absent their interpretation and application of [puerto rico's insurance] code, the previous administration. uvi was named as a target of that december 23, 2003 order that proceedings of any kind can be said to first amendment and equal protection violations did not require the based on the newly discovered evidence, namely, a puerto rico litigation but, at their request, their action was dismissed by the the court to weigh in on the merits of the commissioner's order or of lone star, an insurance agency licensed to do business in puerto by the oic administrative proceedings, jointly constituted ongoing ut health ctr., 973 f.2d 1263, 1271 (5th cir. 1992) (recognizing federal action at the time the state proceedings commenced. they district court to resolve any "difficult questions of state law" there is mixed authority on the question of whether abstention14 administrative proceedings that are "'judicial in nature' . . . puerto rico appeals court, which upheld the oic's decision. prove that he would have issued the order "even in the absence of proceedings. they further argue that the issuance order, followed favor of the defendants. 129. companies). for example, in burford itself, the supreme court that, "[w]here no formal enforcement action has been undertaken, furthermore, assuming that plaintiffs' first amendment violation of a constitutionally protected right; (ii) if so, orders of state administrative agencies: (1) 165 f.3d 106, 110 (1st cir. 1999) (holding that "[c]learly also had to entertain arguments related to defendants' claims amendment" immunity arguments to be premised on this broader court action when state judicial proceedings have not themselves -54- grounds. pursuant to an amended opinion and order issued on the unconstitutional motivation. see ackerley com. of mass., inc. [it] would have terminated the contract regardless of recognized that "[t]he policies underlying younger are fully "recognize that rules are not mere annoyances," but, rather, they authority of federal courts to award relief on supplemental state intervention would threaten uniformity, and thereby, the state's state law. id. the decision was premised on the notion that the did not include any charges of wrongdoing. pursuant to that federal court alleging that she had been terminated as a result of in character," abstention pursuant to younger was required through juarbe from enforcing outstanding subpoenas issued by the oic in basing our holding on this issue on defendants' non- commenced an investigation, which had been pending for almost two defendants raise numerous grounds for relief. after context and as a general matter, "clearly establishing" that in fact, at no point in the federal litigation was this state law rule requiring citations to the record); united states v. isabel, constitutional rights of which a reasonable person would have by sovereign immunity absent a waiver of immunity by the marks omitted). "moreover, we 'disregard any error or defect in preserved for appeal unless perfected by its inclusion in a motion fact split as to whether an indictment or other formal charge is brought their action to federal court on december 10, 2003, the oic they further suggest that the abstention defense, like lack of against lone star was issued, which, they contend, would have order dated june 13, 2008, the district court denied each motion. evidentiary ruling is erroneous, we will not disturb the jury's so if plaintiffs had not filed their lawsuit. in denying qualified 403 of the federal rules of evidence ("fre"), the probative value violation of a constitutional right," and "[s]econd, if the -43- in an embryonic stage and no contested matter had been decided" at maldonado, we concluded that though our previous articulation of a individual capacity "may not assert immunity under the eleventh an official, will be considered one against the sovereign if the (requiring that a post-verdict qualified immunity ruling be case. f.3d 14, 18 (1st cir. 2005) ("[a] suit, although nominally aimed at effect of the judgment would be to restrain the government from jury were "most probably [] duplicated under a wrong impression they claim, "seriously prejudiced [them]." however, they provide verdict form called for one single damages award against contreras after full-fledged administrative proceedings" that were "judicial inapplicable, concluding that contreras had not shown by a assigned to perform the lone star audit. castro reviewed lone appeals. id. at 258. instead, kercad� filed a � 1983 suit in denial of qualified immunity after a jury verdict has been -58- 238-39 (1984). we are thus called upon to determine whether at the on relevancy grounds. defendants contend that, pursuant to rule plaintiffs had proven "that the political affiliation or activities part test and abandon[ed] our previous usage of a three step -7- february 6, 2009 dismissed their appeal, pursuant to a joint motion under popular democratic party ("pdp") administrations. the npp kercad� chose to file an administrative appeal to the dpi board of the jury found, however, with respect to the equal protection defendants' arguments for qualified immunity with respect to the made disparaging remarks regarding his and noble's political borges-col�n, 438 f.3d at 19 (characterizing as "frivolous" the reference is the date plaintiff filed his federal complaint"), with plaintiffs also amended the complaint on june 6, 2004 to add the5 the relevant question, however, is not whether pennhurst relating to an oic investigation of another insurance company, documents pertaining to insurance provided to government agencies. adverted to in a perfunctory manner, unaccompanied by some effort -17- policies and provided related insurance services to several abstention arguments, we find no error in the district court's broker, uvi, thereby deriving substantial commissions from policies citations to the relevant portions of the appendix or transcript as against one of the united states by citizens of another state, or amendment, as well as additional state law provisions. they also5 on june 7, 2005, defendants cross-moved for summary judgment, was not until may 2004 when plaintiffs challenged the oic's plaintiffs propose that we need not address this issue at all. issue." id. (quoting united states v. lanier, 510 u.s. 259, 271 official in contreras's position would have known that instigating health care fin. com'n, 853 f.2d 1007, 1012 (1st cir. 1988)). analysis." id. see fed. r. civ. p. 50. because defendants' motion for judgment as the evidence an order issued against uvi on the day the order the time state criminal summons was issued); brooks, 80 f.3d at law [applies] with obvious clarity to the specific conduct' at court's ruling in patsy v. florida board of regents 457 u.s. 496 transcript at which the evidence was identified, offered, and -18- "pennhurst[,] do[] not bar federal suits challenging state action damages under state law against the commonwealth of puerto rico to have waived their 801(d)(2)(e) claim" challenging the constitutional claims made by the plaintiffs against them. the puerto rico's ability to establish a coherent insurance scheme, the insurance agents, such as lone star, work on behalf of the structure of the verdict form." valent�n-almeyda v. municipality an investigation to punish lone star plaintiffs for their political first amendment and equal protection claims and "the two claims on december 10, 2007, the court held a hearing on a reasonable officer that his conduct was unlawful in the situation abstain in malpractice suit against insolvent insurer because court must abstain from reaching the merits of a case over which it least, instituted prior to any substantial progress in the federal b. qualified immunity awarded a $4.7 million money judgment as well as permanent -23- amended final judgment was entered on june 17, 2008. would report to aurea l�pez instead. court's equitable power, or alternatively, whether they may apply within the puerto rico administrative framework." kercad�- not disruptive of puerto rico's authority to establish a coherent plaintiffs, law claims against state officials where the monetary relief is not those remedial administrative proceedings, whereas the plaintiff in (internal citations omitted). this wholesale inapplicability of -60- inquiry, see jennings, 499 f.3d at 7, we too have no trouble impermissible criterion, such as political affiliation, in making right when it concluded, with respect to the political touches these cases." id. their first amendment claim against contreras with regard to the federal constitutional challenges. -28- supreme court affirmed. umbehr, 518 u.s. at 685. the supreme district court erroneously excluded documents and testimony commissioner of the commonwealth of puerto rico, having served in the first amendment and equal protection clause rights of the ruled that materially similar conduct was unconstitutional, or if -2- effect.'" united states v. pitrone, 115 f.3d 1, 8 (1st cir. 1997) the entry of judgment on overlapping claims, and in making certain also maldonado, 568 f.3d at 268-69. 2003, 13 days after the federal action was filed, nothing of -8- officer are grounded in state or federal law. see pena v. gardner, -29- in favor of the oic, and the commonwealth court of appeals the other hand, seek to impose individual law bearing on policy problems of substantial -42- intended to meet this heavy burden without even referring us to the defendants basically contend that it is not "clearly 259-61 (1st cir. 1987); see also brown ex rel. brown v. day, 555 only a pending investigation by a state executive agency, a non- immunity arguments in defendants' post-trial motions, the district defendants later filed a motion to vacate the district court's9 the district court properly denied abstention.18 personal capacities only, the eleventh amendment provides them no a regulatory decision-making center, makes it significantly more contrary to defendants' contention, abstention is a to evaluate the propriety of its exclusion. we face a similar as being in 'official capacity.'"); cf. muirhead v. mecham, 427 contreras and juarbe, are cloaked by qualified immunity as to all in this case, like in telco, at the time that plaintiffs that the exercise of federal review in this case would be entered into a commission-sharing arrangement with an insurance torruella, circuit judge. plaintiffs-appellees, andr�s then, sub-commissioner, juarbe, had issued the ex parte subpoenas conference. id. at 1227. following attendance at the conference, abstention until state appellate review is completed"). fact, despite what the report may have contained, the investigator "sovereign immunity shields an officer in his official capacity as "proper practice" for avoiding impermissible duplicate awards. doctrine. they cite phelps v. hamilton, 59 f.3d 1058, 1065 (10th for the first circuit official in his official capacity generally preserve their abstention arguments for appeal, or even had they important because the court in younger made the point that the judgment, we also cited the policy dangers of allowing challenges that the parties did not raise the [abstention] issues . . . either 1. younger abstention court, citing tapalian v. tusino, 377 f.3d 1, 6 (1st cir. 2004), -39- proceedings, "the issue is waived on appeal if not pressed in a the preceding period involving only a "threat of enforcement," antonio garc�a, who advised him to affiliate with a government new orleans towing ass'n v. foster, 248 f.3d 1143 (5th cir. 2001) (d.p.r. jan. 8, 2008). f.2d 878, 883 (1st cir. 1993). likewise, the supreme court has held and adequately compensate the plaintiffs for the actual pain, is structured so as to allow the jury to recompense the disruptive of state efforts to establish a 'a general constitutional rule already identified in the decisional situated similarly to the defendant, should have understood the middlesex, 457 u.s. at 428-29 (state disciplinary organization had at the time of their rule 50 motion . . . they have waived that below relies on the younger and burford abstention doctrines. see ratified" contreras' conduct. remittitur pursuant to fed. r. civ. p. 59(e). in addition to motivating factor" in contreras' decision to issue the order, and challenging state agency's decision to terminate medicaid benefits opposed to an "administrative proceeding[] that [is] judicial in that "the district court correctly determined that the complaint corporaci�n de puerto rico para la difusi�n p�blica, 460 f.3d 124, of andr�s guillemard were a substantial motivating factor" in appeal before the oic and on march 2, 2004 the oic held a hearing 2003 order, its issuance, which was not preceded by any process whether the state law, whatever its content, was being enforced in the eleventh amendment to personal-capacity suits applies -19- privacy under local law. contreras was served with summons on by its terms, the eleventh amendment provides only that "[t]he23 the question of whether any exceptions to the doctrine apply. from monetary damages . . . plaintiffs' complaint also seeks provide an adequate opportunity to raise (2) prohibited further license applications during that period; (3) amendment immunity analysis." d�az-fonseca v. puerto rico, 451 being sought is equitable or otherwise discretionary"); deakins v. officers under � 1983); flores-galarza, 484 f.3d at 26 ("in short, defendant raises a defense in a dispositive motion earlier in the district court erred in basing its liability finding on the equal i. background the award of money damages against them for violations of puerto plaintiffs' claim that they were the only ones ever penalized under into a "proceeding" for purposes of younger. this split features regulated industry. for this proposition they cite only one case, provided that the adverse action would not have been taken but for of obtaining insurance. it thus moved from an open bidding process others similarly situated," "that such selective treatment was enforcement proceedings," at which point younger applies, versus plaintiffs. given the deference we must afford at this procedural21 abstention, as in maym�-mel�ndez, would likely have been in order bd. of county comm'rs v. umbehr, 518 u.s. 668, 685 (1996), which, relies bears only on the question of whether plaintiffs had, in supp. 2d at 127-31 (opinion and order of february 4, 2004). taken the same action even in the absence of andr�s guillemard's relieved from the assignment, and contreras agreed that castro $208,000 and the license revocation period to three months. the protect must provide the parties involved with an opportunity to be result, no ground for disturbing the judgment.26 state-initiated civil or even administrative the jury's discernible resolution of disputed factual issues.'" id. unwarranted here in any event, we need not go further in unraveling court explicitly stated that because such monetary relief did not 193 (1988) (holding that because "[n]o indictment had been returned to castro's own testimony at trial, the sole purpose of his dorelisse juarbe-jim�nez; individually and as judicial power of the united states shall not be construed to authorized to hear supplemental claims for damages under state law investigation findings report." the report made no reference to dismiss stage, "we have no difficulty concluding that a reasonable violation of their constitutional rights." that contention, that contreras failed to prove that "he would have issued [the federal plaintiff was sanctioned by the local racing board "only of state proceedings; it cannot invoke abstention to dismiss the judicial proceedings" were under way in puerto rico. we hold that that claim. see guillemard, 490 f.3d at 41. thus, we need not 2004, and that, pursuant to eastern mountain plaintform tennis, consent, are not only immune from suit by citizens of another their federal claim on december 10, 2003 with which the action charges, reports or orders in connection with the lone star he confronted." (citing saucier, 533 u.s. at 201-02)). while20 issuance of its notice of investigation in november 2001 and the substantial or motivating factor in ferm�n contreras's decision to -31- -36- agency then notified telco, by letter, of the claimed violations insurers. would interfere with ongoing state proceedings, the proper point of insurance code violations, fined them, and stripped them of their this case also differs from the typical younger case in another15 licenses, was to become final within 20 days of its issuance, defendants qualified immunity with respect to the first amendment only in relation to plaintiffs' due process claims, finding that substance had yet transpired in the course of the federal "we review the district court's denial of qualified district court on november 12, 2004. see guillemard v. contreras, asociaci�n de subscripci�n conjunta del seguro de responsabilidad required resolving difficult questions of state law nor hampered guillemard testified that as a result of the issuance of the4 protection theory and noted the overlap, in any event, between that acting, or to compel it to act." (internal quotation marks under both state and federal law if the relief sought is not of the at 430 (4th ed. 2003) ("[t]he fact that a government officer is bright-line rule as to the precise point at which, in the course of to government contractors, held that despite a government court gave "[jury] instructions clearly directing the jury to meltzer & shapiro, hart & wechsler's, the federal courts and the pennhurst fails regardless. this is because defendants' argument defendants, however, offer no explanation as to why it jorge r. urrutia-vall�s; carolyne j. wiewall-navas; during the course of the investigation, defendants uncontroverted that defendants did not provide plaintiffs with a unconstitutional, would strip the state of all enforcement power in the first amendment, as being that because of their political court proceedings are initiated after federal action is filed but isabel, 945 f.2d at 1199 (explaining that "[w]e cannot conduct webster, 552 f.3d 12, 18 (1st cir. 2009) (articulating qualified 424 u.s. 800, 817 (1976)). bettencourt, 904 f.2d at 779 (quoting bath memorial hosp. v. maine clause claim. defendants argue that submitting both claims to the statute is no longer in effect" and, in any event, "because a on july 10, 2003, castro submitted his report relating to protection theories, which is the precise format that we described 26-27. we also held that we lacked jurisdiction to reach the an appeal before an external remedial body, whereas the respondents protection claims on two distinct theories: "selective enforcement" a manner, or based on motivations, that violated plaintiffs' sila m. calder�n. in may 2001, then treasury secretary juan flores pursuant to 28 u.s.c. � 1367, and in the context of personal kercad�-mel�ndez. in that case, the plaintiff, a school jury's resolution of disputed factual issues, we have no trouble individual-capacity liability for the person that the last time defendants properly raised the abstention issue see ex parte young, 209 u.s. 123 (1908) (holding that the24 injunctive relief in his official capacity, alleging, inter alia, principle is evident here where defendants' substantial kercad�-mel�ndez, 829 f.2d at 260. relying on the supreme court's united states, 414 f.3d 144, 154 (1st cir. 2005) (recognizing that for an investigation of lone star's operations and transactions in its rulings on various evidentiary matters. first, they contend against the plaintiffs. guillemard v. contreras, no. 03-2317 which deference under younger applies. rather, proceedings must be impairment of state law enforcement is not presented here, where suit altogether"). concluding, as we do, that abstention is proceedings had yet commenced. id. we need not articulate a (1st cir. 2006) (quoting fed. r. civ. p. 61). "thus, even if an the remaining issues were finally tried before a jury obtain any court orders authorizing such subpoenas. of andr�s guillemard were a substantial or motivating factor in bar the suit "so long as the relief is sought not from the xi (emphasis added). the supreme court, however, has expanded the ("uvi"), one such broker licensed in puerto rico. in 1994, lone1 2 issue the december 23, 2003 order" revoking their insurance when they are coercive--i.e., state enforcement proceedings"); -14- administrative appeal taken by plaintiffs before the oic (and denial of qualified immunity); el d�a, inc. v. governor rossell�, star's transactions for the relevant period, including all hearsay testimony regarding conversations they had with deceased relief from judgment" was too late to preserve the issue for plaintiffs did not succeed in their "selective enforcement"12 circuits on this issue, and proceed to cite our decision in d�az- that plaintiffs' act of filing a federal law suit "was a the state forum and extent of the state interest. reiterated by the supreme court in cases subsequent to pennhurst filed in federal court); doran v. salem inn, inc., 422 u.s. 922, the oic's issuance of an order against them and plaintiffs' filing insurance code prohibits commission sharing was reasonable. on plaintiffs fully cooperated with castro's investigation. according defendants, in due course, filed motions for a new trial, -52- list separately the two sub-parts of the 'clearly established' 161 fed. appx. 24, 26 n.2. (1st cir. 2005) (per curiam). (a) enjoined the then serving commissioner, juarbe, from taking carolyn j. wiewall navas, were also previously plaintiffs in this decision to exercise jurisdiction in this case. we explain. galarza announced an investigation of all insurance entities which the federal action was brought. see, e.g., younger, 401 u.s. at extend to any suit in law or equity, commenced or prosecuted careful consideration, finding none meritorious, we affirm. 69, 76 n.5 (1st cir. 2001) (holding that appellants had waived liability upon a government officer for so" in order to bring a � 1983 action in federal court. id.; see court noted that "the [agency's] contention--that abstention is excluding evidence rebutting this testimony, in the form of a political expression is a first amendment violation). this is the and retaliatory reasons. see whitfield, 431 f.3d at 7. in fact, had been providing insurance services to government agencies during first prong of the younger analysis was not satisfied. as such,17 and "incompetence" were eliminated. plaintiffs appealed to the would have made the same decision absent the forbidden judicial body to whom deference under younger is not required. it the heart of the dispute between the parties arises as to to the supreme court decision in saucier v. katz, 533 u.s. 194, 201 that they suffered prejudice, i.e., any duplicative damages, as a was recognized by the supreme court in pennhurst itself, when, at -51- claims. (stating generally, though in the context of burford abstention affirmed. decision. guillemard, 490 f.3d at 37. in so holding, we are persuaded by the distinction drawn or administrative." id. exercising jurisdiction did not require brought by county officials in state court and adjudicated by state duplicative" and parties agree that damages should be the same on f.3d 27, 31 n.3 & 34 (1st cir. 2004) (recognizing extension of equal protection or first amendment claims against juarbe or in ("� 1983") along with supplemental claims for relief under the claims exist but separate damages on each would be partly or wholly transcript from a committee hearing during which garc�a allegedly hearing, we held that such reliance was unreasonable "because the -38- individual capacity for money damages is not a selective enforcement claims. third, they contend that the court's two-part test," we "owe[d] fidelity to the [supreme] administration came to power. both contreras and juarbe served 2005); brooks, 80 f.3d at 637 & n.4. argued for entitlement to qualified immunity. in an opinion and on the merits of plaintiffs' appeal of the december 23, 2003 order. employer would not have taken that action but for the contractor's proven at trial, the basis of that decision remains intact. thus, in controversy must cite the pages of the appendix or of the had purportedly told them to create a fee sharing agreement between invasion of privacy or negligence." it further explained that understand that sanctioning plaintiffs for insurance code should be represented by licensed insurance brokers for the purpose distinguished that scenario from the scenario of summary agency comity and federalism predominate. see quackenbush, 517 u.s. at district court properly denied burford abstention. "[t]his appeal frames no 'difficult question[] of state law' appellate court decision holding that an interpretation that the planned parenthood league of mass. v. bellotti, 868 f.2d 459, 467 court's denial of the motion to vacate on this issue. guillemard appeal either the sufficiency of the evidence supporting the jury's reasonable official in their position would have known that [the contreras, 322 f. supp. 2d 153, 164 (d.p.r. 2004), and upon these complexities. error in not abstaining pursuant to the younger or burford any oic proceedings would only occur upon the plaintiffs' retaliation)." id. we further held that, "given the facts alleged insurance scheme. that an amount in compensatory and punitive damages was warranted action, the officer is "stripped of his official or representative plaintiffs, appellees, puerto rico banks and obtained documents concerning the business that state grand jury proceedings in which subpoenas have been fact, violated the insurance code. this fact would establish only no opportunity to object to its contents. v. pakala, 568 f.3d 47, 52 (1st cir. 2009) (internal quotation claims. a total of $4,755,000.00 was awarded to plaintiffs, of defendants' argument that "there was no clearly established right with respect to plaintiffs' "political discrimination" first13 rodr�guez & del valle, inc., 82 f.3d 11, 15 (1st cir. 1996). this hearing. guillemard v. contreras, 301 f. supp. 2d 122, 134 (d.p.r. as we have explained, burford abstention is concerned with avoiding "an independent contractor is protected under the first amendment plaintiffs could request an administrative hearing to contest the acting in the scope of official duties is not enough to bar a suit 2003, plaintiffs moved to quash the subpoenas in commonwealth inapplicable to the current controversy. see guillemard, 301 f. against the plaintiffs at the time they filed their complaint in officials "from liability for civil damages insofar as their before the district court was in a motion to dismiss filed in early candidates. defendant contreras is the former insurance no. 08-1302 eleventh amendment denies federal courts jurisdiction to award applicable to noncriminal judicial proceedings when important state accounts had nothing to do with lone star's business. defendants that they "must arrive at a sum of money that will justly, fairly and howard, circuit judge. pre-deprivation hearing" prior to issuing the order revoking their "[t]he damages that [it] award[s] must be fair compensation for all had informed the plaintiffs that his investigation had turned up no action, the district court may only order a stay pending resolution in the context of the injunction request, the district court6 siler, senior circuit judge,* government officials may not sanction a citizen because of his could interfere. rather on that date, which they contend is the lone star investigation and told contreras that he "did not feel based on the political affiliation and activities of mr. here, the jury explicitly found the mt. healthy defense position could have believed that issuing an order in retaliation time for a litigant to bring its [constitutional] challenges in of a criminal investigation. compare monaghan v. deakins, 798 f.2d also found that both contreras and juarbe intentionally treated was not stated. see 964 f.2d at 44. in affirming summary overturning of a state policy." zablocki v. redhail, 434 u.s. 374, -45- irrelevant to its ruling. the defendants also appealed this plaintiffs' political discrimination claim, not their due process (emphasis added). in this action, however, the meaning of the 976 f.2d 469, 474 (9th cir. 1992) (recognizing that "the eleventh three-part test was "faithful to the substance of the [supreme] have commenced, and that these, in any event, were not the kind of proceedings" are underway. compare bettencourt, 904 f.2d at 777 -48- order was so motivated. was impermissible to submit both theories to the jury. while their plaintiff's proffered version of the facts, if true, makes out a -61- "in younger v. harris the supreme court held that the moving on to the second prong of the qualified immunity -32- -26- affiliation, plaintiffs were investigated and then fined for the younger abstention doctrine were applicable, defendants' "bad content of the two-part test. see pearson, 129 s. ct. at 818; see (1982), "and entitled to younger deference." brown, 555 f.3d at was based on, and the same actions would not have been taken but entitlement to qualified and/or sovereign immunity, in permitting 945 f.2d 1193, 1199 n.12 (1st cir. 1991) (holding that because a court from submitting to a jury first amendment and equal contention misstates our law. under the mt. healthy defense, the filed, but rather, whether, pursuant to hicks v. miranda, 422 u.s. abstention doctrine states that federal courts: because of their political affiliation with the new progressive case law permits us to read pennhurst as calling into doubt the the "ocaso" documents, which the district court excluded, in part, 44-45. rosenfeld similarly involved a grant of summary judgment in "intrinsically involved with the statutory issue of whether section 727-28. as a general matter, this court has held that abstention concluding that "contreras treated the plaintiffs differently than terminated after he spoke out against and published letters joseph d. steinfield, with whom jeffrey j. pyle, prince, sanctioned them for purported insurance code violations solely on december 23, 2003, contreras, without affording -49- 2003)); see also jennings v. jones, 499 f.3d 2, 10 (1st cir. 2007) defendants make a conclusory and unsupported argument that a reasonable officer that his conduct was unlawful." bisbal-ramos, in the career plaintiffs not to have their employment terminated juncture to the "jury's discernible resolution of disputed factual despite this authority, we recognize that the circuits are in16 -46- constitution). the ex parte young opinion was premised on the compliance with our procedural rules, we urge the parties to commonwealth of puerto rico, and maite oronoz-rodr�guez, acting been undertaken" against the plaintiffs. see telco, 885 f.2d at the defendants was established on summary judgment. we have required to ongoing, originally for assessing whether, for purposes of younger, "ongoing state was permitted to proceed. unconstitutional manner. see id. thus, "the interests of comity difficult for a state to operate its regulatory system." conduct violated the plaintiff's constitutional rights.'" -9- putative violation; and (iii) if the answer to the preceding two breaches with respect to the retaliation claim, when it concluded doctrines and their alleged entitlement to sovereign, absolute and we normally "review the trial court's rulings admitting see 129 s. ct. 808, 815-16 (2009). "first, a court must decide defendants' first line of attack upon the proceedings licenses, and defendants "failed to establish that an emergency see estrada-izquierdo v. aponte-roque, 850 f.2d 10, 16 (1st cir. injunction, and the denial of their post-trial motions, that in the complaint," which we must accept as true at the motion to nothing regarding immunity where state officials are sued in their october 29, 2009 of aguadilla, 447 f.3d 85, 102 (1st cir. 2006). improper payments to third parties, but found that lone star had proceedings that satisfy three conditions: (1) a hearing in retaliation for their filing of a legal action would to deny plaintiff's firearm permit renewal application. see 346 officials carried out their functions in enforcing the insurance come to stand for an exception to eleventh amendment immunity in insuring the risks of the commonwealth. the report concluded that established so as to give the defendants 'fair warning that their latter, in which it must apply). we agree with the district court found it "obvious that no reasonable official under similar only on kercad�'s initiative if she wished to pursue her remedies the constitutional right shown to be violated here was thus sufficiency of which is not even challenged on appeal. the jury discussion, that "federal courts have the power to dismiss or properly held jurisdiction in circumstances where the interests of employer's general authority to terminate, or not-renew, an at-will beliefs, it did find that his issuance of the december 23, 2003 by citizens or subjects of any foreign state." u.s. const. amend. would come from the officer's own pocket, there is no eleventh rosario explained that the sharing of commissions, as in the case sufficient for [plaintiffs] to assert a cognizable claim for 196 f.3d 24, 32 (1st cir. 1999) (explaining that "when multiple behalf of the insured, in this case, the government of puerto rico. further action to enforce her march 4, 2005 resolution; (b) ordered that capacity from march 2001 to december 31, 2003. he was actions taken under color of state law. in annabelle rodr�guez, guillemard v. contreras, no. 03-2317 (d.p.r. june 13, 2008). and pdp are opposing political parties in puerto rico. although defendants point to the subsequent interlocutory appeal of the denial of their motion to dismiss the protected interests"); n�stor col�n medina & sucesores, inc. v. duplicative, the proper practice is to ensure that the verdict form duplicative recovery was awarded, there is no prejudice, and, as a castro informed guillemard that he had found no irregularities and court concluded that "no reasonable official in contreras's (quoting freeman, 865 f.2d at 1340). we fail to see how defendants did not give plaintiffs prior notice of the subpoenas, nor did they court is affirmed in all respects. were the remedial proceedings initiated by the plaintiffs. absent the subpoenas had been issued in january 2002. on march 6,3 evidentiary rulings. defendants, however, do not challenge on 638 (recognizing that the supreme court's decision in middlesex, puerto rico is treated as a state for purposes of eleventh declined to request abstention entirely, it would not deprive us of -21- rational basis for the difference in treatment. the district permissive rather than mandatory, it left intact the substantive and castro's supervisor, met privately with contreras regarding the juarbe to withdraw and revoke said resolution; and (c) prohibited rico. both guillemard and noble are prominent members of the npp, proceedings, to which deference, under younger, was due. see courts of jurisdiction over state law claims against state plaintiffs seek only to enjoin the conduct of state officials in that contreras "negligently published a false and defamatory and equal protection claims did overlap, defendants have not shown been reached at the time plaintiffs brought their federal action. orleans pub. serv., inc. v. city of new orleans ("nopsi"), 491 u.s. obligatorio v. flores-galarza, 484 f.3d 1, 26 (1st cir. 2007) in short, the distinction between official capacity and f.3d 13, 33 (1st cir. 2006). plaintiffs being citizens of the ("frap"), "[a] party referring to evidence whose admissibility is challenged act or omission to violate the discerned right"). in second, because the district court was not called upon to were not of the type to which deference under younger is required. recovery, no matter how many different legal grounds may support constitutional rights. regarding the meaning of puerto rico's insurance code. this is insurance commissioner of puerto rico; we have opined accordingly at a previous stage of this case. when suit against a state officer in his or her effect pending a final administrative decision. plaintiffs filed from others similarly situated, and that such selective treatment following the issuance of the order, on december 30, [hon. juan m. p�rez-gim�nez, u.s. senior district judge] his dismissal." id. at 36. the converse is true here. had the with "no rational basis for the difference in treatment." with thus, in this case, by the time "proceedings of substance on the known." harlow v. fitzgerald, 457 u.s. 800, 818 (1982). pursuant possibly overlapping claims] are the jury instructions and the decide any issues of puerto rico insurance law, it cannot be said in contrast, in maym�-mel�ndez, we held that where the we affirmed. guillemard, 490 f.3d at 41.11 exercise of his protected free speech rights. see id. at 685-86 injunctive relief under federal law. id. 467 f.3d at 25. nevertheless timely reasserted the issue by arguing it in their their claims regarding abstention); kyricopoulos v. town of already been filed against the parties seeking relief at the time the onset of formal enforcement proceedings may be an appropriate rule 50(a) motion." parker v. gerrish, 547 f.3d 1, 12 (1st cir. the district court considered defendants' qualified immunity10 -15- based on our reading, refutes, rather than supports their claim. guillemard-ginorio ("guillemard") and his wife, mar�a noble- out of the official's own pocket, be the alleged violations state or also, extends to actions at law. defendants' claim under already upheld the district court's denial of qualified immunity on "state-initiated proceeding, criminal or civil, to enjoin," younger of land use permit in unjustifiable retaliation for applicant's on all four separate claims under the first amendment and equal compelling circumstances--will we, from the vista of a cold down in [his] insurance business." for judgment as a matter of law filed at the close of evidence. duties creates two potential liabilities, affirmative defense "for the first time in a post-trial motion for the defendants. admissibility of co-conspirator statements). parte young, 209 u.s. at 160). the ex parte young doctrine has references in contreras' order to plaintiffs' "untrustworthiness" of fact and applications of law, as opposed to its ultimate legal or excluding evidence only for abuse of discretion." united states have held, "[b]ecause the judicial officer who presides at a trial to the district court or on . . . appeal"); see also olsen v. 632, 637 (3d cir. 1986) aff'd in part, vacated in part, 484 u.s. did not require any kind of formal procedure prior to the issuing plaintiffs filed their federal action. plaintiffs counter that defendants next challenge, on eleventh amendment grounds, and official-capacity liability for the on their due process claim. although defendants had argued that in reversible error in submitting plaintiffs' equal protection clause "[n]o such opportunity was given to the plaintiffs" in this case, in the order that plaintiffs had violated the insurance code ("the remand cases based on abstention principles only where the relief faced in 2005 with the qualified immunity issue on defendants' the court rejected defendants' argument that they were entitled to federal courts must defer to ongoing state criminal proceedings." disgruntled applicants subjected to a discretionary permit denials from retaliatory governmental action, just as an employee would 2. burford abstention toward the narrow class of cases seeking individualized review of protected status constitutes "bad faith" for younger purposes. trial established that "from 1994 to approximately april 2001, -41- racing administrator and no administrative proceeding had been of those documents outweighed any concern of prejudice. but as we enforcement but does not undertake it." id. the court held, order, as in kercad�-mel�ndez, this administrative hearing was merits. second, defendants contend that the court erroneously excluded from mel�ndez, 829 f.2d at 260. defendants attempt to distinguish "overlapped" with plaintiff's claims under the first amendment. bettencourt, 904 f.2d at 777 (footnote omitted); see also new defendants, appellants, jury found that the same unlawful conduct and injury supported two her political affiliation in violation of her first amendment administrative appeal process could be triggered only on [the declaratory and prospective injunctive relief against him and such (1st cir. 2005). "when, as here, the defendants appeal from a overlap is expressly limited to the discretionary benefit denial suit against defendants-appellants, the office of the insurance claim context, which is not presented here. second, even if meaning of section 939 was not determinative of the question at [sovereign's] treasury but from the officer personally"); hafer, federal system 1195 (5th ed. 2003) (emphasis added). where, as found, by a preponderance of the evidence, that defendants violated any disruption of state process will be slight." id. finally, the constitutional right and if, at the time of the violation, the the first prong of the younger analysis. defendants contend that parties.'" pelletier v. main street textiles, lp, 470 f.3d 48, 52 we believe our holding, that younger abstention is depends on "'the capacity in which the state officer is sued, not performance of a contract with the government of puerto rico. decision in pennhurst state school & hosp. v. halderman, 465 u.s. arguments are properly before us on appeal. plaintiffs contend and has not been departed from by the various circuits, including the first amendment claims, that given the commissioners' overlap[ped] with his stronger first amendment claim," which we sharing commissions, an activity for which no other insurance agent uvi and lone star. they relatedly contend that the court erred in -37- not consider the final two younger factors, involving adequacy of sought from and awarded against contreras and juarbe in their refusing him discretionary indemnification for medical expenses). first, the language in custodio and rosenfeld regarding court's opinion, which basically extended the mt. healthy defense violations, was that contreras treated the plaintiffs differently fined them more than $2 million. the order also provided that other things, retaliation under the first amendment and violation suit, we stated that taking as "given the facts alleged in the critical of the county. id. at 671. the tenth circuit held that [uvi], acting on behalf of the consortium, negotiated insurance the plaintiffs' damages, no more or no less." thus, even if the relief had been awarded against government officials on the ground fledged administrative proceeding that was judicial in nature, fed. appx. at 29. in relevant part, with respect to contreras'7 often overlap, it is sometimes appropriate to analyze them the political affiliation or activities of andr�s guillemard." this court was apprised of this development pursuant to an8 rule he sought to challenge at the time of the filing of the (2003) (repealed by law no. 10 of jan. 19, 2006, art. 8). a copy proceedings or orders of state administrative agencies." fragoso, burford abstention doctrine. see burford, 319 u.s. 315. provided order he lost various clients and that it "practically closed [him] the sharing of commissions was a violation of section 939 of the bars state law claims against state officials for injunctive or monetary relief. however, for the foregoing reasons, the judgment of the district whether that right was clearly established at the time of the (1990). in telco, a state agency commenced an investigation of (citing younger, 401 u.s. at 50-53). this danger of a far-ranging denial of qualified immunity on this, and all other constitutional claims are not barred by sovereign immunity." id. at 27 n.7. with process claim and denied defendants' motion. see guillemard v. officials strictly in their individual capacities"); see also hart judgment as a matter of law pursuant to fed. r. civ. p. 50(b), and and "discrimination in treatment against a class of one." this carlos a. del valle-cruz, special counsel, department of garden state bar ass'n, 457 u.s. 423, 432 (1982) (emphasis added). on november 20, 2001, then insurance commissioner, actions containing pendant state law claims against state injunctive relief against state officials based upon violations of 370, 383 (1st cir. 1991) ("[r]ecovery against a defendant under one v. city of somerville, 878 f.2d 513, 521 (1st cir. 1989) (holding proceeding constitutes a coercive action, exempt from" the supreme ins. co., 517 u.s. 706, 728 (1996) (describing burford abstention, relevant portions of that "cold appellate record" containing the individual capacity for unconstitutional or wrongful conduct fairly individual and official capacity. they alleged that by not proceedings initiated by the plaintiffs are not of the type to are determined to be arms of a state." pastrana-torres v. fail to see how either of these cases support their position. plaintiffs'] initiative if [they] wished to pursue [their] remedies commission's order allocating oil drilling rights. id. in violate their constitutional rights." id. at 29. thus, the case as to the first prong of the qualified immunity test, concluding that excessive recovery was in fact awarded. first, the specified that it would take effect ten days after receipt, unless amendment will not bar pendent state claims by [plaintiff] against suits against state officials seeking prospective declaratory or procedural due process claim, the jury entered damages accordingly. liability against both contreras and juarbe with respect to the individual capacity suits is well established. that distinction omitted)). sort to which younger applies," abstention may not be appropriate & wechsler, supra at 1195 (similar). the plaintiffs' suit seeks money damages from the officer "in his in this case, as in kercad�-mel�ndez, the december 23, imposition of the fine, but the license revocation would remain in nature." maym�-mel�ndez, 364 f.3d at 35-36 (distinguishing the within the discretion of the aggrieved party and were not necessary guillemard a copy. iii. conclusion earlier evidentiary rulings were "not erroneous." at 29. with the factual presumption upon which our earlier consideration." texas v. lesage, 528 u.s. 18, 20-21 (1999) (citing order"). juarbe, who was then the sub-commissioner, attended the an agency investigation, "proceedings" can be said to have showing that oic and the governmental agencies were aware of the meanwhile, plaintiffs also filed a timely administrative favor of defendant, a police officer, on plaintiff's equal seeking dismissal of the complaint on qualified immunity and other for the filing of a lawsuit was constitutionally permissible." character and . . . subjected in his person to the consequences of that area." kaylor v. fields, 661 f.2d 1177, 1182 (6th cir. 1981) federal case would not interfere with puerto rico's efforts to concluding that a reasonable officer, similarly situated to administrative and judicial challenges of the order, constitute u.s. at 204 (noting that only "extraordinary circumstance[s] . . . that plaintiffs' procedural due process rights were violated by21 -56- appeal). (quoting jarrett v. town of yarmouth, 331 f.3d 140, 147 (1st cir. to proceed under an equal protection theory, explained that in any a direct result of any constitutional deprivation, defamation, mar�a awilda quintana; conjugal partnership contreras-doe; claims. 38-39 (federal plaintiff was defendant indicted in state criminal office of the insurance commissioner, rico determined that public authorities and government agencies sovereign immunity claim, we held that while it is true that action for damages to go forward against the commissioners. "[w]e14 verdict or the damage amount awarded. the qualified immunity inquiry was satisfied with respect to each suit in the federal district court for the district of puerto rico bettencourt v. board of registration in medicine, 904 f.2d 772, 777 challenge the exclusion of the oic order issued against uvi, which separately under different standards of review"). it is, of ultimately, to the commonwealth courts), these post-hoc remedial (quoting hafer v. melo, 502 u.s. 21, 26 (1991)). it has been25 quincy, 452 f.3d 8, 19-20 (1st cir. 2006)). and obtained documents concerning guillemard's and noble's business recognizing that our deference to the jury's view of the because the oic administrative hearing, upon which the injunction to a brokered system where a handful of brokers were selected to lone star first began doing business with government by the court sua sponte"); cruz v. melecio, 204 f.3d 14, 22 n.7 investigation was to determine whether lone star had made improper better comports with the supreme court's decisions in younger and at developed argumentation, are deemed waived."). injunctive relief. it is from this judgment, the permanent torruella, circuit judge, case, in recognition of the important interests underlying the consistent with the jury verdict). deferring, as we must, to the qualified immunity. the court denied the motion, guillemard v. because plaintiffs' claims are not contingent upon whether or not united states court of appeals that municipality may not use protected speech as a basis on which against all defendants on the state law negligence and privacy be," umbehr v. mcclure, 44 f.3d 876, 883 (10th cir. 1995), and the this kind knowledgeably, 'only rarely--and in extraordinarily argue that at the time the oic's order was issued, on december 23, official in contreras's position would have known that instigating e.g., torres-torres v. puerto rico, 353 f.3d 79, 82 (1st cir. 2003) contreras was not entitled to such immunity. id. at 28. we held alleges at least three constitutional violations, one of procedural against state officials sued in their personal capacity. that -40- that adequate state court review is available, the burford fourth circuit "decline[d] to hold that younger abstention is court, but on october 31, 2005, the court of first instance found which $3,080,000.00 (65%) corresponds to contreras and government agencies and public corporations." lone star and uvi obligation to implement the insurance code, there were substantial does not apply with equal rigor to state action violative of state believed it was required to award plaintiffs a separate amount of concluding that qualified immunity was properly denied in this "state judicial proceedings" that were "ongoing" at the time that the puerto rico ports authority. in 1994, the government of puerto problem with respect to defendants' challenge to the exclusion of of defendants' fed. r. civ. p. 50(b) motion. -24- prohibit suits to impose individual and personal liability on state licenses, and that contreras had not shown that he would have done font�nes, 568 f.3d 263, 269 (1st cir. 2009); see, e.g., morelli v. action that was actually being prosecuted when federal complaint legislative) in nature; (2) they implicate determination of whether the requirements for abstention have been motions before the district court. in its opinion & order denying eleventh amendment did not bar an action in the federal courts -34- favors extending pennhurst to actions for damages under state law "[a]bstention doctrines may, in various circumstances, lone star insurance producers, inc., of the report was not sent to guillemard, and thus, guillemard had abstention, administrative proceedings are 'judicial in nature' its regulatory scheme. moreover, as we explained in fragoso, proceeding, instituted prior to the federal proceeding (or, at provision to the plaintiffs." they further argue that "the nevertheless, whether or not defendants failed to (1st cir. 2000) (ordering abstention sua sponte "[n]otwithstanding constitutional rights in limbo while an agency contemplates time plaintiffs filed their federal complaint by virtue of the comfortable with the legal grounds for such an investigation." contreras, issued a "notification and examination order" calling proceeding)....") (emphasis added). mechanisms to avoid impermissible duplicate awards for damages [on monaghan, 484 u.s. 193, 202 (1988) (declining to decide "the extent case even if permissible grounds for the adverse action existed, defendants contend that "the evidence brought at trial is not we note that "even assuming the state proceedings . . . are the18 346 f.3d 11, 15 (1st cir. 2003) and custodio, 964 f.2d at 45, we selectmen may not retaliate against fireman's political speech by 929 (1975) (holding younger applicable when "federal litigation was trial court); samuels v. mackell, 401 u.s. 66, 67 (1971) (federal putative federal plaintiff." id. at 1229. rather, it reasoned not constitute a "proceeding" for purposes of younger, the relevant must decline to interfere with proceedings or would not have issued the order "in the absence of the political on various grounds, including the burford and younger abstention suit in federal court). public import . . ."; or (2) where the investigation to punish lone star plaintiffs for their political to barring federal injunctive relief on state law grounds, (federal plaintiffs were already defendants in nuisance action (2001), as modified by its recent decision in pearson v. callahan, defendants, separately, without elaboration, contend that the26 that the balance of state and federal interests "only rarely favors regarding younger and burford abstention, which it found april 3, 2006, the district court denied the motion to vacate, differently than similarly situated individuals." id. we then, jury found against contreras on the "selective enforcement" claim, (noting that because "defendants did not raise immunity as an issue written rulings on evidentiary motions. we therefore hold their place and, on may 20, 2005, plaintiffs moved for summary judgment. itself and its department of education, which, we held to be barred complaint, we have no difficulty concluding that a reasonable

Business Owners Sue Over Politically Motivated Investigation

Recover $4.7 Million

Guillemard-Ginorio v. Contreras-Gomez, Case No. 08-1302 (C.A. 1, Oct. 29, 2009)