Opinion
No. 09-2273.
Heard September 15, 2010.
Decided April 1, 2011.
Nora Vargas-Acosta, Esq., Rio Piedras, PR, Gregory Allen, Legal Department, Paul D. Polidoro, Patterson, NY, for Appellant.
Michael C. McCall, Esq., Claudio Aliff-Ortiz, Esq., Eliezer Aldarondo-Ortiz, Simone Cataldi Malpica, Esq., Aldarondo López Bras, Luis A. Rodriguez-Munoz, Landron Vera, LLP, Jose E. De la Cruz-Skerrett, Rafael G. Rivera Rosario. De La Cruz Skerrett Law Office, Pedro R. Vazquez, III, Luis A. Rodriguez-Munoz, Eduardo A. Vera-Ramirez, Guaynabo, PR, Luis E. Pabon-Roca, Esq., Clarisa I. Sola-Gomez, Esq., Faccio Pabon-Roca, Jose L. Gandara, Bauza Gandara, Marta L. Rivera-Ruiz, Esq., Victor Ricardo Rodriguez Fuentes, Jean Gabriel Vidal-Font, Sr., Esq., Cancio Nadal Rivera Diaz, Alejandro Gabriel Carrasco-Castillo, Esq., Alejandro G. Carrasco Law Office, Robert Millan, Esq., Millan Law Office, Isabel M. Rodriguez Casellas, Veterans Administration Hospital Region Counsel Office, Luis Sanchez-Betances, Sanchez-Betances Sifre Munoz-Noya Law Offices PSC, Leticia Casalduc Rabell, Esq., Iris Alicia Martinez Juarbe, Zaira Z. Giron Anadon, Susana I. Penagaricano Brown, Irene Sofia Soroeta-Kodesh, PR Department of Justice, Romulo A. Suero-Ponce, Reichard Escalera, Irene M. Vera, Salicrup Rodriguez, LLP, Amelia Caicedo-Santiago, Reichard Escalera, Pedro J. Salicrup, Miguel Emilio Miranda-Gutierrez, Wandymar Burgos-Vargas, San Juan, PR, Irializ Velez-Quinones, URB, Arecibo Gardnes, Arecibo, PR, Jason Gonzalez Delgado, Gonzalez Gonzalez, Ferdinand Vargas, Caguas, PR, Joseph Deliz-Hernandez, Bayamon, PR, Alberto J. Rodriguez-Ramos, Monroig Rodriguez Zaccheus PSC, Hato Rey, PR, for Defendants.
ORDER OF COURT
In response to this court's decision of February 7, 2011, several municipalities have petitioned for rehearing and rehearing en banc, and several others have been allowed to join in the petition.
Our decision affirmed an order of the district court rejecting a facial challenge to Puerto Rico's Controlled Access Law but overturned a further order on summary judgment rejecting as applied challenges. Watchtower Bible Tract Soc'y of N.Y., Inc. v. Segardia De Jesus, 634 F.3d 3 (1st Cir. 2011). In the latter order, the district court held that even regular and/or discriminatory exclusion of Jehovah's Witnesses from public streets would not offend the First Amendment because other means existed for Jehovah's Witnesses to communicate their religious views to residents.
The panel decision held that this blanket determination did not conform to Supreme Court First Amendment precedents and that a colorable claim existed that the constitutional rights of Jehovah's Witnesses were being abridged. Without resolving claims against any specific municipality or urbanization, this court held that further proceedings were required and outlined in skeleton form the principles that should guide the district court in structuring injunctive relief if and where it turned out to be appropriate.
In the petition for rehearing, the municipalities first claim that their statute of limitations defenses have been ignored, but, as the panel's decision explained, no damages have been sought; the present concern is with equitable relief; and nothing thus far shows that the plaintiffs slept on their rights to the prejudice of defendant. Where, as here, systemic continuing violations are charged, statutes of limitations do not ordinarily bar relief. E.g., Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994).
The petition also suggests that the panel's decision erred in citing survey evidence collected by the plaintiffs, which the petitioners say is controverted. The panel decision cited the survey evidence as indicating that the plaintiffs' factual claims had a colorable basis; but the panel made no determination as to the accuracy or typicality of obstructions to access alleged against any particular municipality or urbanization, and any municipality or urbanization is free on remand to urge that it did not improperly bar access or discriminate.
Finally, the municipalities repeat their claim that any improper obstructions were the work of the permitted urbanizations and not of the municipalities granting the permits. Although the panel did reject claims that the urbanizations could be regarded as wholly private actors free of the constraints imposed by the First Amendment, the panel decision made no determination as to how far municipalities themselves — by virtue of their permitting activities, possible involvement with exclusionary acts, or other entanglements — might properly be subject to injunctive relief or any other remedy.
Accordingly, the petition for panel rehearing is denied.