summer 2010 - Federal Bar Association

Transcription

SUMMER 2010 • ISSUE 44
Activities
Students Divisions Induction Ceremony
•6
Swearing-In Ceremonies • 7
A First Class Trial Advocacy
Competition • 8
2009 National Convention Report • 9
Luncheon with New Justices of the
Supreme Court of Puerto Rico • 10
The Ethics of Federal Criminal Practice
Seminar • 10
Judicial Reunion and Conversation with
Supreme Court Associate Justice Sonia
Sotomayor • 12
Panel at USCD to Judges and Clerks
from Argentina • 13
The Ethics of Federal Criminal Practice
Seminar • 13
Technology in the Courtroom Seminars
• 14
articles
Standing on the Shoulders of Giants
•3
Ponencia ante la matrícula de la FBA
• 11
IN EVERY ISSUE
President’s Message • 2
Noteworthies • 16
Clerk’s Tidings • 24
Federal Bar Association Practitioners
Directory • 33
The Federal Bar Association Newsletter
Obsolete Precedents
The Federal Bar
Association Newsletter
By: Salvador J. Antonetti-Stutts
Oliver Wendell Holmes famously wrote that “[t]he life of the law has not been
logic: it has been experience.” The Common Law, at 1 (1881; reprinted 2009). I
would suggest that, sometimes, the life of the law has not even been experience:
it has been habit.
Hon. Raymond L. Acosta
Puerto Rico Chapter
That habit, and not logic or experience, so often drives judicial decision-making
is an indirect result, in my view, of the Anglo-American doctrine of precedent. As
we all know, the primary goal of this doctrine is that like cases be decided alike.
But although the application of the doctrine requires logical rigor, particularly in
identifying and distinguishing holdings from dicta, its effect is often to perpetuate
prior rulings without further analysis.
Repetition of established holdings can be, and often is, an optimal result insofar
as the prior ruling can be said to be correct — or at least sufficiently close to
correct — and the cost of updating or modifying the rule would be greater than
that of leaving matters be. After all, whenever an established norm is modified,
judges and attorneys must expend time and effort to learn the new rule, and
during that process, decision-making can become unpredictable or slow. By not
straying from established holdings, courts make themselves more predictable,
allowing parties and attorneys to pattern their behavior accordingly.
But there are costs to slavish adherence to precedent, as well, because predictability is not the only goal of the law; far from it. Indeed, it should not be controversial to state that the primary goal of adjudication is to apply the law correctly
to the facts of each case. In that sense, the predictability and stability that the
doctrine of precedent seeks can be described as a secondary, instrumental goal.
Thus, where we can identify instances in which habitual adherence to precedent
is (predictably) leading to incorrect results, the precedent should be reevaluated.
Unfortunately, it often is not — because of habit.
To illustrate my point more concretely, I call the reader’s attention to a minor but
well-established precedent in our circuit: that Puerto Rico Rule of Civil Procedure
Continues on page 15
Editorial Board
Richard Graffam
McConnell Valdés LLC
(787) 250-5638
Editor-in-Chief
Director, Puerto Rico Chapter
Katherine González-Valentín
Associate Editor
Contributor:
Hon. Gustavo A. Gelpi
National Director and Past Chapter
President
Copyright ©2010 by the Federal Bar Association,
Honorable Raymond L. Acosta Puerto Rico
Chapter. The contents of From the Bar may not be
reproduced without the express written consent
of the author. This newsletter is intended for
information only and is not to be considered legal
advice. The views expressed by counsel in the
articles published herein are entirely theirs and not
of the Chapter or the editorial board.
Requests for additional copies, submissions, or
address updates should be directed to
Richard Graffam at rg@mcvpr.com.
President’s Message
Katherine González-Valentín (left) with Supreme Court Justice Sonia
Sotomayor during her visit to Puerto Rico.
It has been a year of gratifying challenges and historic
moments! After serving the Puerto Rico Chapter in different
capacities for several years, reaching the milestone of
becoming its President has given me the privilege and honor
of contributing to our community of federal practitioners
and heading a group of talented attorneys and leaders who
make up the Chapter’s Board. Those busy professionals
volunteer their time wholeheartedly to advance the interests
of the members of the federal bar, the federal judiciary and
the public we serve, as we work toward achieving a common
goal: strengthening the federal legal system, advancing the
science of jurisprudence and improving the federal legal
profession. That has been precisely the basis and purpose
of our different events and programs throughout this year,
none of which would have reached the level of success that
characterized them without the continued support of our
Chapter members, members of the bench and other friends
of the FBA who truly believe in our mission. I am extremely
grateful to all of you!
This edition of From the Bar portrays some of those
initiatives of the Board, our members and supporters and
provides a glimpse of our work in an effort to reach out to
the federal legal community, from its young lawyers to the
more seasoned and experienced ones, from federal judges
to the aspiring lawyers. The latter includes a now robust
group of student members who grew exponentially this year
and whom we’ve had the opportunity to mentor.
It has been a historic year, marked by the visit to Puerto Rico
of the third female Justice and the first Hispanic Justice of
the land’s highest court, Justice Sonia Sotomayor. An ode
2
to diversity, her appointment has served as inspiration to
women and men alike, Hispanics, minorities and all who
believe in the values that serve as pillars to our Nation
— equality, liberty and democracy. Justice Sotomayor’s
visit to Puerto Rico allowed our Chapter to partner with
the Foundation of the Federal Bar Association and the
Historic Foundation of the Supreme Court of Puerto Rico
in the celebration of a Judicial Conference and fellowship
ceremony that transcended our dreamed community
outreach.
And outreach is what the FBA’s membership campaign is
about. Chapter growth is essential to continue strengthening
our basis. Thus, I want to make sure all potential and actual
members are aware that belonging to our association
provides a great opportunity to enhance their practice and
be part of a spirited national bar organization devoted to
federal practice. A membership application is included with
this issue (see page 30) and it is also available online at
www.fedbar.org. I invite you to become a member, remain a
member, renew your membership and bring new members
so that you and others may benefit from what the FBA and
the Puerto Rico Chapter have to offer.
So, take a peak, read on and learn more about the
first activities of the 2009-2010 term. Also, our contact
information is in this issue. We invite you to contact us with
your ideas, suggestions, inquiries or articles and to become
an active member of the Chapter.
Best,
summer 2010 • issue no. 44
a member of my tribe; outside of that, I am a member of
the race of Indians; and outside of that I am a member of
humanity.
To help you know me I will tell you a little bit about my family.
Lawrence R. Baca
Presidential Swearing In Remarks
Federal Bar Association Annual Meeting
Oklahoma City, Oklahoma
September 12, 2009
My mother had to be one of the toughest white woman in
America. She married an Indian man at a time when it was
against the law for a white person to marry an Indian in 18
states. Then she had three sons. I used to give her a hard
time. I’d say, “You know mom, you really got it bad. You’re
not just the only woman in the house, you’re the only white
person.”
Believe it or not, I was her favorite son.
Now, every once in a while someone in an audience will ask
me, “If your mother was white and your father was Indian
Thank you Jo.
I guess all of us who have stood here have said it — and it
is always true about our spouses or partners.
JoAnn, I couldn’t be standing here right now if not for your
lifetime of support. Thank you.
Thank you to the Oklahoma Chapter and members of the
planning committee for sponsoring this wonderful celebration of the Federal Bar Association, for making this a spectacular four days and for the cultural events that have reminded us all that Oklahoma was once Indian Territory and
it is still Indian Country.
I am Pawnee.
I am Pawnee because my father was Pawnee.
My father was Pawnee because his parents were Pawnee.
They were Pawnee because the Creator wished it to be so.
I asked to be sworn in within a circle of judges because in
the Indian community we do many things in a circle. Chief
Black Elk said, “You have noticed that everything an Indian does is in a circle, and that is because the Power of
the World always works in circles, and everything tries to
be round. The nests of birds are in a circle. The sun and
the moon move in circles. The wind, in its greatest power,
whirls.”
Thank you Judges Bob Bacharach, Michelle Burns, Walter
Echo-Hawk, Gustavo Gelpi, Michael McBride & Vicki MilesLaGrange for being the power of my circle tonight.
We always begin with family. When asked “Who are you?,” I
must answer first that I am a member of my family; outside
of that, I am a member of my clan; outside of that, I am
“Even a person of small
stature, when standing
on the shoulders of a
giant, will see further
than the giant.”
how come you always call yourself an Indian?” The answer
is easy, I am mixed race, but I am an Indian because race
is in great measure a social construct. During my formative years there were girls that I could not date because
my father was Indian, but there were no girls I could not
date because my mother was white. There were stores and
restaurants in San Diego County with signs that said no Indians allowed. That meant our family could not enter. There
were no signs that said you can’t come in because you’re
mother is white. So, to be true to my heritage, I am mixed
race, I am an Indian by social circumstances.
My father was a full blood Pawnee. He was just six feet tall,
but a huge six feet. No one who met him came away believing that he was only six feet tall. In 1939, when he was 22
years old my father walked into a whites’ only bar looking
for a telephone because his truck had broken down. There,
six white men assaulted him and stabbed him 27 times with
a knife. Nothing says we hate you for being Indian like a
good stabbing. Nothing says I hate you back like surviving.
He survived the attack, but for the rest of his life he had
these white scars all over his chest and rib cage. My father took those scars to his grave. I took those scars to law
school.
Continues on page 4
3
Continues from page 3
We all have moments of demarcation
in our lives where everything changes.
For a young Indian, the arrival of the
acceptance letter to Harvard Law
School is a singular moment.
First, you want to share it with everyone you know. And that we did.
Then you want to rub it in the nose of
every father who’d told his daughter
you’d never amount to much. That I
didn’t do, but I did send a couple of
them graduation notices.
And most of all, you want to go back
to all those stores and movie houses with the signs that said you can’t
come in because you are an Indian —
you wanna hold it up to the window
and like the Terminator you want tell
them, “I’ll be back.”
I became a civil rights lawyer — and I
came back.
For me, Harvard was the H-bomb
that altered my landscape forever. It
cleared a path that would not have
been there for me otherwise. It is not
an accident that the first American
Indian in the Civil Rights Division went
to Harvard. When the Office of Indian
Rights was first created they claimed
that they were going to go to New
Mexico and Arizona and recruit some
real bead spittin’, bow tottin’, feather
wearing, Tonto speakin’ Indi’ns to
work in that Office.
Instead, three years later, they hired
an Ivy League, Southern California
beach Indian in a three-piece oxford
grey suit. Go figure.
Obviously, after law school I accepted
a position in the Civil Rights Division
at the United States Department
of Justice. My cousin Bunky has
forgiven me for that. I had interviewed
with him for a position with the Native
American Rights Fund. Between 1957,
when the Division was created, and
1973, the Civil Rights Division had filed
thousands of cases but only two cases
on behalf of American Indians. The
Office of Indian Rights was created
in 1973 to bring cases on behalf of
American Indian victims. For seven
years it was very active. I worked in
that Office until it was terminated in
1980. And between 1980 and 1990,
the civil rights of Indians again almost
disappeared.
During that decade, I was actually told
by two different supervisors that I did
“too much work with Indians.”
One supervisor criticized me for bringing to many “Indian cases.” That is
one of the subtleties of discrimination
in the Division — they refer to cases
involving American Indian victims as
“Indian cases” while cases on behalf
of other racial and ethnic minority victims are just called cases.
The other Supervisor was warning
me. He said that if I would back off
my Indian country work for six months
he could get my promotion to Senior
Trial Attorney through the promotions
committee. He made it very clear that
the promotion committee didn’t see
cases involving American Indians to
be as important as other cases. I assure you, it is a very special hell when
you believe that you have to fight the
civil rights division itself for equal
rights.
My first exposure to the Federal Bar
Association was when my supervisor
in the Office of Indian Rights sent me
to the FBA Indian Law Conference.
His parting words were, “Be sure you
find a way to let them know you’re
Indian.” It was important to him that
the Indian community know that they
had finally hired one of us. But there
was that message that having gone
to college and law school they had
educated the Indian look out of me so
I had to tell people about it. I finally
told the guy, “You know Jim when I’m
on an Indian reservation, they don’t
ask if I’m Indian. They might ask how
much, they always ask what tribe, but
they never ask AM I INDIAN.”
What I saw when I went to the first
Conference in 1977 was a room full
of potential referrals of civil rights
violations. There were only about 175
attendees in those days. By working
to expand that conference to the
750 attendees we have these days it
actually contributed to my work as a
civil rights lawyer. Because when we
expanded the conference mailing list
it meant that my name and phone
number with my title as a senior trial
attorney in the civil rights division went
to several thousand lawyers who work
in Indian country several times a year.
If any of them had a client who was
the victim of a civil rights violation they
knew who to call at the Department of
Justice. This simple fact contributed
greatly to my success.
As a result, I worked on more civil
rights cases involving Indian victims
than any other attorney in the history
of the Division. Between 1980 and
1990 I didn’t just file more cases on
behalf of Indians than any other lawyer in the Division, I filed more cases
on behalf of Indians than all of the other lawyers in the Division.
When I say that — I’m not bragging,
I’m complaining. It should not have
been true.
But my work in the Federal Bar Association — the visibility and profile
that the FBA has allowed me to have
— contributed to many of those Indian
victims and their attorneys coming to
me.
I am honored to be the first American
Indian President of the Federal Bar
Association.
As I step into the Presidency, I am
comforted by the words of Diddacus
Stella who wrote that “Even a person
of small stature, when standing on the
shoulders of a giant, will see further
than the giant.”
That is where I am today, standing
on the shoulders of giants. My work
with the FBA has been under 30 presContinues on page 5
4
idents. I have been encouraged and
mentored by many. I can only mention
a few tonight who particularly stand
out.
Jim Richardson is the inventor of
Take An Indian To Lunch Month. Jim
decided that during Indian Heritage
Month he should think nationally and
act locally. So every November for
the last ten years I got a free lunch
from Jim. Here’s what Jim get’s as
thanks. You may know, Jim is an avid
fisherman and sailor. So at the end of
Jim’s Presidency the Board presented
him an electronic fish finder for his
boat. After he graciously thanked the
Board, I leaned over and said, “Jim,
only a white man needs a fish finder
when he’s in a boat. An Indian would
just look over the side. The fish are
down there. In the water!”
When Jim was President he started
a program to get the Federal Bar Association working closer with smaller
law schools where our members
might provide benefits to their students whether mentoring or course
offerings as adjuncts. We started with
Howard University School of Law
where I established a course in federal Indian law. Jim is working with the
academic dean to establish a course
in military justice. That was a baby
step and I want us over the next year
to explore what more we can do with
law schools.
To Joyce Kitchens and Adrienne Berry,
both self described populists, Thanks
for your encouragement. Thanks for
your constancy in support of the ideals of the Federal Bar Association and
for always guiding the Board and the
President toward the straight and narrow.
And there are the Bobs, ... Mueller and
McNew. Bob Mueller like Adrienne
and Joyce represents a consistent
conscience of the FBA. Thank you
Bob.
McNew on the other hand is a special
guy — a very studied curmudgeon.
We were sitting together at a luncheon
program a few years ago and when
Bob got up to get a drink, a woman
at the table asked me how McNew
and I’d become friends. I told her that
I like him because of his leadership,
that he was intelligent and erudite,
self-effacing with humor but without
being completely slapstick. I told her
I had no idea why he liked me. When
McNew returned to the table he said
he didn’t know either.
Jackie Goff is a longtime friend and
supporter. We share the same ideals of
equality and diversity. At the Cleveland
convention she gave none other than
the Reverend Jesse Jackson a gentle
call down for forgetting American
Indians in his remarks about the
coalition of minorities. It was indeed
a curious moment. We were gathered
in Cleveland baseball stadium
surrounded by the garish racist
stereotyped image of Chief Wahoo
— and so perhaps Jackson was so
overwhelmed by the presence of the
faux Indian that he forgot that we too
are a real living racial minority group
— but Jackie didn’t let him forget for
long.
You have to admire that kind of
courage.
I am going to create a diversity committee and Jackie has agreed to serve
on it.
And then there is my brother Russell
del Toro, un hombre extraordinario.
I served on the nominations committee when Russell was President and
at the end of the meeting where we’d
selected the slate of candidates Russell said, “If there is no other business
I just have one question. Lorenzo,
when are we going to see your name
on this list as a candidate for the ladder?” I’d been encouraged to run before, Russell put me to the challenge.
“When are you going to step up to
the plate?” I promised him I’d give it
strong consideration. It is in fact our
duty as racial and ethic minorities who
have moved ahead to encourage and
mentor those who will follow us. Russell’s example will remind me to do the
same for others.
Russell — Tú eres uno de los tres
amigos y uno de los dos hermanos.
There is one other. Jackie Goff said
to me after I’d been elected DeputySecretary, “If Bill Robie were here, he’d
be so proud.” I know that if Bill were
alive, he’d be here tonight. I’m sure
his spirit is always with us. Bill and I
worked together at the Department
of Justice and here in the FBA. A few
may remember that former President
Robie shared responsibility for the
creation of the Indian Law Section. I
had chaired the Indian Law Committee
of the Environment, Energy and
Natural Resources Section for five
years. I went to then President-Elect
Robie and said, “So Bill, what does
the FBA think Indians are, are we part
of the environment, are we energy, or
are we a natural resource?”
Bill was always one of the sharper
pencils in the box and so shortly
thereafter as he was preparing for his
swearing in as President he called me
in to his office and said, “I want you
to draft the papers for the creation of
an Indian Law Section with Committees and I will use the influence of the
Office of the President to make it happen. And I will appoint you its Chair.”
Bill was quite simply one of the finest
men I’ve ever known. It overwhelms
me that I could assume to stand in
his shoes. It honors me that you have
elected me to stand on his and others
shoulders.
In my leadership of the FBA I will do
all I can to honor the women and men
who have preceded me.
Thank you for giving me the honor of
being your President.
5
Student Divisions Induction Ceremony
By: Janitza M. García Marrero, Esq.
On September 25, 2009, a very special
ceremony took place in the Clemente
Ruíz Nazario Federal Courthouse. In
this unique occasion, over 170 students
were sworn-in as new members of our
Chapter’s Student Divisions from the
three major, Puerto Rico law schools:
Pontifical Catholic University of Puerto
Rico, Inter American University of
Puerto Rico School of Law and the
University of Puerto Rico School of
Law. Hon. Gustavo A. Gelpí presided
over the ceremony and was joined by Judges Aida M.
Delgado Colón, Juan M. Pérez-Giménez, Jay A. García
Gregory, Daniel Domínguez and Francisco A. Besosa
and Magistrate Judge Marcos López. Puerto Rico Court
of Appeals Judge Abelardo Bemúdez also accompanied
the federal judges, denoting the importance of the evolving
relationship and interaction between state and federal
courts.
Chapter President Katherine González, Esq. also pointed
to the importance of being a member of the FBA and how
it serves as a tool in the students’ development as future
members of the legal profession. In concluding, the Student Divisions’ presidents introduced their respective new
members and Judge Delgado took their oath. A subsequent reception provided an opportunity to the students
to fraternize with the judges and other federal practitioners.
Judge Gelpi’s opening remarks were followed by an invocation from the Chapter’s Student Division Chair and
Director Janitza M. García Marrero, Esq. and messages
from each of the participating judges. The judges’ words
of encouragement, personal experiences in the bench,
anecdotes and historical recounts were educational and
served as inspiration for the aspiring attorneys and other
attendees. The subsequent congratulatory expressions of
In all, the ceremony was a great success thanks to the support of the federal court, the students’ enthusiasm and the
impressive efforts of the leaders of each of the schools’
divisions to promote membership in the Hon. Raymond L.
Acosta Puerto Rico Chapter. We congratulate all the new
members and exhort them to continue being active members of the FBA throughout their academic years and upon
becoming practicing attorneys.
6
Members of the Chapter’s Board with the leadership from the
Student Division of the Pontifical Catholic University of Puerto Rico
School of Law at the Student Division Induction Ceremony on
September 25, 2009.
Swearing-In Ceremonies
On July 13, August 21 and October 22, 2009, the United
States District Court for the District of Puerto Rico held
two of its traditional swearing-in ceremonies for the
new members of our Bar. These particular ceremonies
were presided by Chief Judge Fusté, Judge Francisco
Leadership and members from the Interamerican University School
of Law Student Division with Hon. Aida Delgado and members of
the Chapter’s Board.
Besosa, and Magistrate Judge Camille Vélez-Rivé. As
customary, the court served as an elegant backdrop
to an intimate proceeding where the newly admitted
members of our Bar and their family members could
delight in their accomplishment while enjoying first
hand the intricacies of our federal court. The Judges
offered words of wisdom and advice to the newly
sworn-in lawyers with respect to the federal practice
and their duties and responsibilities as officers of
the court. Manuel Pietrantoni, Vice President of the
Honorable Raymond L. Acosta Puerto Rico Chapter
of the Federal Bar Association, echoed the words of
the Judges, proudly welcomed the new members of
Members of the Board of the Chapter with the University of Puerto
Rico School of Law Student Division’s leadership.
our Bar, and invited them to become members of the
FBA.
7
A First Class Trial Advocacy Competition
By: Katherine González-Valentín
In an effort to continue to promote
early development of litigation skills
among law students, the Interamerican
University of Puerto Rico School of Law
successfully held the “Puerto Rico Trial
Advocacy Competition” (“PRTAC”)
from October 29 to October 31, 2009.
An fine event clearly consistent with our
mission, the Hon. Raymond L. Acosta
Puerto Rico Chapter of the Federal Bar
Association was among its sponsors.
Trial advocacy teams from different
prestigious Law Schools participated
in this mock trial competition including
universities such as Stetson, Catholic,
Temple, Harvard and the Interamerican
University of Puerto Rico.
Law students craftily handled different
aspects of a criminal case displaying
thorough preparation and a level
of presentation of their respective
cases of true professionals. The
competitions were held at the facilities
of the U.S. Bankruptcy Court for the
District of Puerto Rico in Old San Juan.
Distinguished members of the state
and federal bench as well as other
seasoned and respected attorneys and
professors participated as evaluators
of the teams’ litigation and advocacy
skills and included, among others,
Associate Justices of the Supreme
Court of Puerto Rico Hon. Anabelle
Rodríguez and Hon. Liana Fiol; Judge
Juan R. Torruella from the Untied
States Court of Appeals for the First
Circuit; Judges and Magistrates from
the United States District Court for
the District Court of Puerto Rico Hon.
Salvador Casellas, Hon. Francisco
Besosa, Hon. Jay Garcia-Gregory,
Hon. Camille Vélez Rivé, Hon. Marcos
López and from the Bankruptcy
Court, Hon. Sara de Jesús and Hon.
Brian Tester and attorneys Ricardo
Casellas (Past President of the Puerto
Rico Chapter), María Sandoval, María
Domínguez, Rafael Escalera, César
Alcover, Harry Anduze, Jaime Toro,
Eric Tulla, Jorge Peirats and Heidi
Rodríguez.
Students from Barry University presenting
evidence to the jury.
Evaluators in last round of the competition.
From left: Kelly Navarro, Maria Sandoval,
Nilda Navarro, Hon. Anabelle Rodriguez,
Hon. Francisco Besosa, AUSA Maria
Dominguez, Hon. Jay Garcia and Prof.
Carlos Concepcion Castro.
(Left to right) Dean Mariano Negron Portillo,
Katherine González and Dirctor of the
Competition Carlos Concepción Castro
The importance of this educational
event that recognizes the efforts
and skills of aspiring attorneys was
denoted by the presence of Ms. Kelly
Navarro who was an observer in
representation of the ABA/JMLS Trial
Advocacy Competition, official trial
advocacy competition of the American
Bar
Association.
Ms.
Navarro
commented that “this competition
was truly first rate; one of the best
three in the nation.” Similar comments
came from Mr. Arturo Ríos, trainer
and Stetson University professor who
stated: “Stetson goes to many, many
competitions every year, and I can
safely say that this is one of the best
organized and ran competitions that
we have had the privilege of both
participating in and being a part of.”
Puerto Rico Chapter President Katherine
González
Members of the team from the
Interamerican University of Puerto Rico
School of Law: Lloyd Isgut, Lismary Lopez,
Axel del Rosario and Oscar Cirilo.
Similarly, J. Soffiyah Elijah, professor at
Harvard University, joined the praises
and stated that “the competition was
SO very well organized; absolutely
THE BEST.”
Continues on page 9
8
2009 National Convention
Judge Gelpi, Katherine González
and Oreste R. Ramos attend FBA’s
Annual Meeting and Convention
Hon. Gustavo A. Gelpi, Chapter President Katherine
González and National Delegate Oreste R. Ramos attended
the FBA Annual Meeting and Convention in Oklahoma City
on September 10-12, 2009. The busy agenda of events
included several conferences by distinguished members
of the bench, bar and academia, as well as visits to the
Oklahoma City National Memorial, the Oklahoma History
Center and the National Cowboy and Western Heritage
Museum. During the FBA Awards Luncheon held on
September 12, the Chapter was honored with the Chapter
Activity Presidential Excellence Award and the Newsletter
Recognition Award. Judge Gelpi was one of several
judges who administered the oath of incoming National
President Lawrence Baca. During his inaugural speech, Mr.
Baca acknowledged the contributions of several people,
including past Chapter and National President Russell del
Toro. The 2010 convention will be held in New Orleans. We
hope to see you there.
— Oreste R. Ramos
Advocacy Competition…
A proud Director of the competition,
professor Carlos Concepción Castro
asserted that this type of activity
provides an opportunity to apply
concepts and theories in a practical
setting and serves as a venue for the
academia and legal practitioners to
come together. He concluded that this
initiatives result in a more solid and
better educated legal community.
The law students from the University of
Harvard were the wining team.
This was yet another event where the
symbol of federalism was represented
by the presence, joint participation and
interaction between state and federal
court judges. It was also another
opportunity for the Puerto Rico Chapter
to pursue and promote its mission. As
such, the Puerto Rico Chapter as well as
its leadership and some of its members
Wining team from Harvard University
were proud to sponsor and participate
in this enriching event directed toward
improving the federal practice, benchbar relations as well as fomenting
early development of trial advocacy
skills. Through the remarks of Chapter
President Katherine González during
the competition’s dinner, students and
guests alike were also introduced to
this mission and the objectives of the
Federal Bar Association and the Puerto
Rico Chapter.
9
Luncheon with New Justices of the
Puerto Rico Supreme Court
By: Ricardo L. Ortiz-Colón, Esq.
On September 3, 2009, the Hon. Raymond L. Acosta Puerto Rico Chapter of the Federal Bar Association (“FBA Puerto Rico Chapter”) held a Luncheon with the new Associate
Justices of the Puerto Rico Supreme Court, the Hon. Mildred G. Pabón Charneco, the Hon. Erick V. Kolthoff Caraballo and the Hon. Rafael L. Martínez Torres.
After welcoming remarks by Katherine González, President
of the FBA Puerto Rico Chapter, the new Supreme Court
Justices addressed the attendees and shared their visions
and expectations as new members of Puerto Rico’s Highest Court. Also, they answered several questions from the
audience. The activity also served as an opportunity to
provide our legal community with valuable insight on operational aspects of the Supreme Court of Puerto Rico and
intricacies of the nature of the work its justices perform.
The remarks by Associate Justice Rafael L. Martínez Torres
are included in this issue as a sample (see page 11)
10
Federal and local practitioners attended the Luncheon,
held at the Banker’s Club, which concluded with the Hon.
Justice Pabón Charneco’s taking of the oath to the new
members of the Board of the FBA Puerto Rico Chapter
Ponencia del Hon. Rafael L. Martínez Torres, Juez Asociado
del Tribunal Supremo de Puerto Rico, ante la matrícula del
Federal Bar Association en el almuerzo con los nuevos
Jueces Asociados el 3 de septiembre de 2009
Buenas tardes a todos, en particular a la directiva del
capítulo local de la Federal Bar Association y a los invitados
especiales que nos acompañan. Me place dirigirme a
ustedes por invitación de esta asociación. Le agradezco
a la directiva la oportunidad de compartir con ustedes
algunas de mis observaciones tras laborar por los pasados
seis meses en el Tribunal Supremo de Puerto Rico.
Como es de conocimiento general, antes de ocupar la plaza
de Juez Asociado, fui juez por catorce años en el Tribunal
de Apelaciones de Puerto Rico. Hoy quiero hablarles de
mis experiencias en los dos foros apelativos de la Isla.
Hay muchas fases comunes de la labor que realiza un Juez
del Tribunal Supremo y otro del Tribunal de Apelaciones.
Ninguno de ellos atiende público ni abre sala todos los
días. Ninguno realiza vistas para evaluar prueba. No tienen
que laborar con la presión de atender decenas de asuntos
en un día y tener que decidir sobre el trámite de los casos
o la admisibilidad de cierta prueba sin la ayuda de un
estudio previo del derecho aplicable. A diferencia de los
jueces apelativos, esa es la vivencia diaria de los jueces
del Tribunal de Primera Instancia. Por eso, al revisarlos,
tenemos que estar conscientes de esa realidad, admirar
su compromiso y dedicación con la justicia, y tratar sus
dictámenes con la deferencia que merecen.
Los jueces de los foros apelativos, en cambio, tenemos una
función diferente en nuestro sistema judicial. Los jueces del
Tribunal de Apelaciones y los Jueces del Tribunal Supremo
tenemos un calendario diario menos abultado y la ayuda
de oficiales jurídicos, para investigar el derecho aplicable
a los recursos apelativos. No abrimos sala todos los días.
Realizamos nuestra labor enclaustrados en nuestras
oficinas, con menos premura, sin contacto cara a cara con
el público ni con ustedes, sus abogados. Este ambiente
de trabajo fomenta el sosiego necesario para el estudio y
análisis de las controversias que se nos presentan.
Sin embargo, a pesar de todas estas similitudes, hay grandes
diferencias entre la labor de un Juez de Apelaciones y un
Juez Asociado del Tribunal Supremo. He notado que como
regla general, los recursos de complejidad comparable
a los que atiende a diario el Tribunal de Apelaciones son
los que el Tribunal Supremo despacha con un no ha lugar
o resuelve por sentencia. El foro intermedio tramitó todo
lo referente al relato escrito de la prueba oral, analizó los
hechos y el derecho, y fundamentó su decisión tomando
en cuenta los precedentes aplicables. Por lo general, su
decisión es correcta y merece gran deferencia. No hay por
qué duplicar su esfuerzo.
En cambio, los casos que el Tribunal Supremo atiende
por Opinión sobrepasan en complejidad a la mayoría de
los recursos que el Tribunal de Apelaciones resuelve. Por
esa razón, así como por la facultad de sentar precedentes,
redactar la Opinión del Tribunal Supremo, o una Opinión
concurrente o disidente, es una labor más compleja.
Requiere mayor estudio por más tiempo que el que se le
puede dedicar en el Tribunal de Apelaciones.
En el foro apelativo intermedio, la labor del juez se
limita a tramitar y evaluar cada recurso, investigar el
derecho aplicable y redactar la resolución o sentencia
correspondiente. Su decisión sólo obliga a las partes y no
a terceros. Basta que dos jueces se pongan de acuerdo
para concertar una mayoría.
En el Tribunal Supremo, en cambio, esa labor se complica
en los casos que atendemos para emitir una Opinión. En
esos casos, los Jueces tenemos que ser más cuidadosos
para que el lenguaje que utilizamos sea claro y preciso,
pues tiene que comunicar de forma adecuada la norma
que el Tribunal desea pautar como precedente. Para ello,
no basta con que un Juez convenza a otro Juez adicional
sino que hay que obtener la conformidad de una mayoría
de los Jueces que intervienen en el recurso.
Por necesidad, ese proceso es lento. Requiere que cada
miembro del Tribunal tenga el espacio y el tiempo para
pensar detenidamente con el objetivo de redactar una
ponencia completa y precisa que paute la norma aplicable,
o para hacer constar su conformidad —o inconformidad—
con el resultado propuesto o sus fundamentos. Por eso,
casi todas las Opiniones que se certifican finalmente son
diferentes de la versión original que se circuló.
Para visualizar una comparación de la velocidad con la que
los jueces del sistema local atendemos los casos, sugiero
la siguiente analogía: Si el juez del Tribunal de Primera
Instancia se mueve con velocidad en un automóvil, entonces
el juez del Tribunal de Apelaciones va en una motocicleta
y los Jueces del Tribunal Supremo nos movemos en una
patineta. Así pues, les confieso que el tiempo que toma
resolver un recurso en el Tribunal Supremo, de principio
a fin, es otro de los contrastes de mis experiencias como
juez en el Tribunal de Apelaciones y en el Tribunal Supremo.
He tenido que acostumbrarme a la lentitud de la patineta.
Es más lenta que los demás métodos de transportación
pero también da más tiempo para contemplar los detalles
del paisaje y observar con minuciosa atención el camino a
seguir. No obstante, la clave para conseguir una mayoría
en ambos tribunales colegiados es identificar el derecho
Continues on page 14
11
Judicial Reunion and Conversation
with Supreme Court Associate
Justice Sonia Sotomayor
By: Katherine González-Valentín
Shortly after her confirmation, Justice Sonia Sotomayor
visited the Island of Puerto Rico from December 16 to the
22nd. She honored us with her participation in various activities including a Judicial Conference at the U.S. District
Court for the District of Puerto Rico and a Conversatorium
with Judges from the federal and state benches. These and
other activities, worthy of significant media coverage, provided exposure to the associations involved in the initiative and their mission to reach out to our legal community
and the general public we serve in an effort to continue to
improve our legal systems and strengthen the relationship
between the federal and state government.
Guests who attended the Judicial Reunion held on December 17 at the Clemente Ruiz-Nazario US courthouse in Hato
Rey, Puerto Rico, were able to hear inspiring remarks by
Justice Sotomayor on her personal and professional experiences and judicial independence. Her message was followed by a ceremony where she was named Honorary Fellow and U.S. District Judges Carmen Consuelo Cerezo and
Juan M. Pérez-Giménez were named Life-Fellows of the
Foundation of the FBA. FBA President-Elect Ahsley Belleau
also addressed the group and spoke of the importance of
the Foundation to the legal profession and the community.
Left to right: U.S. District Court Judge Juan M. Pérez-Giménez and
Supreme Court Justice Sonia Sotomayor.
The Conversatorium with Judges was held on December
18 at the Puerto Rico Museum of Art. There, Justice Sotomayor engaged in an eloquent and entertaining dialogue
with Puerto Rico U.S. District Court Chief Judge José A.
Fusté and Puerto Rico Supreme Court Chief Judge Federico Hernández Denton. Puerto Rico Chapter Life Fellow
Néstor Méndez also participated as speaker in this session
along with Luis Alvarez, president of the Historical Society
of the Supreme Court of Puerto Rico. These activities were
possible due to the hard work and partnership between the
Foundation of the Federal Bar Association and its Puerto
Rico fellows, the Historic Foundation of the Supreme Court
of Puerto Rico and other important sponsors, including the
Puerto Rico Chapter.
12
Panel at USDC to Judges and Clerks
from Argentina re: Ethical Considerations
of the Legal Practice in Puerto Rico
On November 23, 2009, the United States District Court for the District of Puerto Rico, acting as host to a group of judges
and judicial personnel from Argentina, held a conference to offer the guests a presentation of ethical considerations of the
legal practice in Puerto Rico. The panel was composed of Manuel San Juan, Richard Graffam, and Manuel A. Pietrantoni,
and the Hon. Aida Delgado presided over the presentation. Mr. San Juan explained the overall ethical foundation of our
legal system, including certain state and federal nuances. Mr. Graffam covered specific differences between the Puerto
Rico Rules of Professional Conduct and those of Argentina. And Mr. Pietrantoni addressed the procedural aspects of
ethical issues and how the federal and state courts treated them. Judge Delgado and the members of the Panel responded
to questions at the end of the session, which included a lively discussion of the similarities and differences with respect to
ethical issues that arise in Puerto Rico and Argentina.
The Ethics of Federal Criminal Practice Seminar
On June 26, 2009, the Hon. Raymond L. Acosta Puerto Rico Chapter of the Federal Bar Association co-sponsored
a one-day seminar offered by the Federal Public Defender, “The Ethics of Federal Criminal Practice”. The seminar
featured a distinguished panel of three knowledgeable and experienced speakers.
After welcoming remarks by Joseph Laws, the Federal Defender for Puerto Rico, and Katherine González, president
of the FBA Puerto Rico Chapter, the seminar got started with a presentation by A.J. Kramer, the Federal Public
Defender for the District of Columbia, about Case Law and Relevant Standards in Ethics. This was followed by
the presentation of Terry MacCarthy, Defender Emeritus from Chicago, who spoke on Ethical Problems in Criminal
Practice and Practical Solutions.
Last, the Hon. Judge Nancy Gertner, U.S. District Judge for the District of Massachusetts, spoke on Ethical Issues in
Criminal Trial Practice. All three speakers enlivened their presentations with anecdotes from their personal experience
and practice illustrating the ethical issues under discussion. Interaction with seminar participants was a constant
feature of the presentations. The seminar ended with a round table discussion involving all three speakers.
The seminar was held at the Conrad Condado Plaza Hotel and Casino. It was also co-sponsored by the Puerto Rico
Association of Criminal Defense Lawyers. The Federal Public Defender is an independent organization within the
federal judicial branch that provides legal representation in federal court to indigent defendants.
13
Ponencia…
aplicable y enfatizar los puntos comunes.
Technology in the
Courtroom Seminars
Como en todo foro colegiado, la relación personal y
profesional entre los integrantes del Tribunal Supremo
es de suma importancia. Mi experiencia por los pasados
seis meses es la de una relación de cordialidad entre los
integrantes del Tribunal Supremo. Defendemos nuestras
convicciones en un marco de respeto a las ideas de cada
uno de nuestros compañeros Jueces y de su derecho a
expresarlas. Confío que ese ambiente no se deteriore.
Tenemos que darle un ejemplo a la sociedad de que se
puede discrepar sin caer en el personalismo y que se
pueden identificar puntos comunes sin claudicar nuestros
principios.
Por supuesto, es lógico esperar que la llegada simultánea
de tres Jueces nuevos al Tribunal Supremo tenga un
impacto mayor que la llegada de uno a la vez. Es natural
que los que recién hemos llegado al Tribunal traigamos
experiencias, pensamientos e ideas diferentes acerca de
las normas de derecho que se pretende pautar y respecto
al funcionamiento del Tribunal. Los nuevos precedentes se
asomarán paulatinamente y serán objeto de análisis crítico
por profesionales del derecho como ustedes. Por otro lado,
los cambios en el funcionamiento del Tribunal surgirán de
acuerdo a las necesidades del sistema y la obligación de
ser más eficientes al dispensar justicia sin sacrificar el
cuidado necesario para pautar el derecho.
In an effort to continue its mission of improving and
enhancing the level of practice in federal court, on
August 26, November 12, and December, 2009, the
Hay muchos casos pendientes en el Tribunal Supremo y
muchos más por llegar. Sin embargo, por lo general los
recursos en el Tribunal todavía tardan años en resolverse
después que quedan sometidos y en nuestras reuniones
semanales del Pleno estamos atendiendo escritos iniciales
de certiorari o apelación que se presentaron hace más de
seis meses. Para mí, eso es inaceptable. A mi juicio, esa
realidad requiere que repensemos de qué forma el Tribunal
Supremo puede aumentar su eficiencia y atender la carga
de trabajo de una manera más ágil. Sé que no me equivoco
al afirmar que los tres Jueces que nos encontramos aquí
compartimos el deseo de contribuir a la meta de hacer
justicia con imparcialidad, eficiencia y celeridad. Espero
que junto a los demás integrantes del Tribunal podamos
diseñar los métodos y condiciones necesarias para cumplir
con esos objetivos.
Honorable Raymond L. Acosta Puerto Rico Chapter
En resumen, reitero que aunque en el Tribunal Supremo hay
mucho trabajo hay también un compromiso de atender los
casos y hacer justicia. Para ello, hay que aprovechar todos
los recursos humanos y tecnológicos disponibles, e incluso
repensar el funcionamiento del Tribunal, si ello es necesario
para ser eficientes al dispensar justicia sin sacrificar el
ambiente de trabajo necesario para pautar el derecho de
forma adecuada. Mi tarea, junto a mis compañeros Jueces,
es hacer lo que esté a nuestro alcance para lograr ese
objetivo. Muchas gracias.
closing statements using power point presentations to
14
of the Federal Bar Association and the United
States District Court for the District of Puerto Rico,
cosponsored seminars about the use of technology
in the courtroom. The seminars were open to all the
members of the Bar and were free of charge. The guest
speaker was Manuel Quilichini. Mr. Quilichini delighted
the attendees with an interactive presentation of the
entire technological arsenal that the court has made
available to trial lawyers. Everything from opening and
document highlighting during expert testimonies was
discussed, and Mr. Quilichini spared no detail. The
presentation was open for questions at anytime, and
the attendees eagerly made use of that opportunity.
All three seminars were a success.
Obsolete Precedents…
44.1(d), which awards attorney fees to
a party when the opposing party has
been obstinate and temerarious, is
substantive for Erie purposes, and thus
should be applied in diversity cases in
which the governing law is that of the
Commonwealth of Puerto Rico. See
Erie Railroad Company v. Tompkins,
304 U.S. 64 (1938). The rule was first
announced — without analysis — in
Pan Am. World Airways, Inc. v. Ramos,
357 F.2d 341, 342 (1st Cir. 1966), and
it has been applied ever since without
question by federal courts. See, e.g.,
Dopp v. Pritzker, 38 F.3d 1239, 1252
(1st Cir.1994); Newell Puerto Rico, Ltd.
v. Rubbermaid Inc., 20 F.3d 15, 24 (1st
Cir. 1994); De León López v. Corporación Insular de Seguros, 931 F.2d
116, 126 (1st Cir. 1991). See also Paul
N. Howard Co. v. Puerto Rico Aqueduct and Sewer Auth., 110 F.R.D. 78,
83-84 (D.P.R. 1986). Unfortunately, the
rule was clearly wrong in 1966, and still
is.
In general terms, a federal court sitting
in diversity applies the substantive law
of the forum state and federal procedural rules. See 28 U.S.C. § 2072 (the
“Rules Enabling Act”); Erie, 304 U.S. at
78. A state law “that would be controlling in an action upon the same claim
by the same parties in a State court”
is substantive for Erie purposes if it
would “significantly affect the result
of a litigation for a federal court to disregard it.” Guaranty Trust Co. v. York,
326 U.S. 99, 109 (1945). Rule 44.1(d) is
not a controlling rule of law, however; it
is a procedural rule designed to vindicate the sovereign interest of the Commonwealth of Puerto Rico in ensuring
that obstinate parties do not force its
courts to needlessly waste their time
and resources in supervising frivolous
litigation. In contrast, when the Puerto
Rico Legislative Assembly has wanted
to provide an award of attorneys’ fees
as a substantive remedy as part of the
remedies available under a particular
statute, it has known how to do so quite
clearly. See, e.g., 29 P.R. Laws Ann. §
155k (“[t]he party that is found guilty of
the behavior prohibited pursuant to the
provisions of §§ 155–155m of this title
…the survival of such rulings
detr acts from the logical
coherence of our body of laws
and precedents, and eventually,
leads to lack of predictability.
shall pay the attorney fees and costs
of the proceedings as established by
a competent court.”) Not surprisingly,
the First Circuit has itself raised questions about whether its prior holding in
Ramos still holds water, so to speak.
See Servicios Comerciales Andinos,
S.A. v. General Elec. del Caribe, Inc.,
145 F.3d 463, 481 n.9 (1st Cir. 1998).
One can speculate that the reason why
the Ramos court got it wrong was that
attorney-fee-shifting statutes were rare
at the time (the Equal Access to Justice
Act, for example, would not exist for
another 22 years), and were almost
invariably substantive, in that they were
designed to supplement the remedies
available to prevailing plaintiffs. See,
e.g., Prudential Ins. Co. of America v.
Carlson, 126 F.2d 607, 611 (10th Cir.
1942). It must be kept in mind that
the “American Rule” on fee-shifting is
that “[i]n the absence of a fee-shifting
statute or contractual provision, civil
litigants in the federal courts ordinarily
are responsible to pay the fees of their
own counsel.” Estate of Hevia v. Portrio
Corp., 602 F.3d 34, 45 (1st Cir. 2010)
(citing Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247
(1975)). Thus, against this background,
it may have seemed natural to the Court
to assume that attorney-fee-shifting
provisions were always substantive.
But regardless of the reason why the
Court erred, in the first place, the more
important question that still puzzles
me is: why has this obsolete precedent
not been overruled during the past 44
years? The answer, it seems to me, is
the one I opened this essay with: habit.
One could argue that habitually
repeating a mistaken holding of this
sort is harmless, but I would disagree:
the survival of such rulings detracts
from the logical coherence of our body
of laws and precedents, and eventually,
leads to lack of predictability. After
all, until Ramos is overruled, future
cases involving questions about the
application of the Erie doctrine will
have to contend with this narrow
group of opinions that conclude that a
procedural rule is actually substantive.
This is not merely an aesthetic objection
— that erroneous precedents mar the
beautiful tapestry of the law — but also
the outgrowth of a concern that such
decisions will only delay adjudication
and generate unnecessary confusion.
Stare decisis is an indispensable tool
for the proper functioning of our legal
system, but it must be employed with
attention to detail, and most of all, with
sufficient flexibility to jettison obsolete
precedents.
15
Noteworthies
Jose María Alvarez Castro v.
Police Agent Marlene Negrón
Civ. No. 03-2103 (RLA)
Hon. Raymond L. Acosta
Plaintiff and his daughter filed suit against defendant police
agents in their individual capacities claiming violations of 42
U.S.C. § 1983. Plaintiffs claimed that they went to the police station to lodge a complaint against Armando Delgado
Alvarez for allegedly having threatened to kill them both.
Delgado, who was also at the station at the time, walked
over to plaintiff and hit him in the face with a revolver. Meanwhile plaintiff Luz Delia, Mr. Alvarez Castro’s daughter, was
attacked by the wife of Mr. Delgado. These events resulted
in criminal charges against Delgado, his wife and Luz Delia.
This suit was filed claiming defendants’ colaboration with
the prosecution of Luz Delia constituted malicious prosecution and an abuse of process, because of her innocence
in the scuffle. Additionally, plaintiffs argued that a constitutional duty to procure medical assistance for plaintiff was
breached by the defendants.
The Court noted that claims of malicious prosecution
cannot serve as grounds for due process violations, but
acknowledged that Albright v. Oliver, 510 U.S. 266 (1994)
left open the possibility that a section 1983 claim for malicious prosecution could be made on the basis of a Fourth
Amendment violation. The Court therefore examined
whether plaintiff’s allegations could state such a claim.
On the facts of the case however, the Court ruled that
plaintiff Luz Delia could not establish that her liberty was
in any way curtailed, and that the mere citation to appear
before a judge for trial was not a restriction which triggered
Fourth Amendment protection. Since she was not arrested,
detained or otherwise deprived of her liberty, no violation
of the Fourth Amendment could be established, therefore
no basis for a 1983 claim based on malicious prosecution
existed.
The Court then went on to question whether abuse of
process occurred. This is satisfied when an officer uses
a lawful criminal process to accomplish an unlawful purpose. This action can be held to lie regardless of whether
there was probable cause or whether the proceedings terminated in favor of the charged party. Santiago v. Fenton,
891 F. 2d 373, 388 (1st. Cir. 1989). Now, a mere abuse of
process does not allow for section 1983 liability; it must
be accompanied by a constitutional violation and the court
concluded that such was not the case at bar.
Plaintiff’s last claim consisted of the alleged denial of adequate medical attention by the government to Mr. Alvarez
Castro when he was allegedly under custody. The facts of
the case led the court to conclude that the plaintiff was not
16
injured while in the custody of defendants, and thus was
not entitled to such constitutional protection. The conditional prerequisites for a section 1983 claim were therefore
never met by the plaintiffs.
Emilia Villegas-Reyes v.
Universidad Interamericana de P.R. (IAU)
Civil No. 05-1997 (JP)
Hon. Jaime Pieras, Jr.
Plaintiff brought this action under the Age Discrimination in
Employment Act (ADEA), under Title VII of the Civil Rights
Act of 1964, and for violations of Puerto Rico law. She
claimed defendant discriminated against her on the basis
of her age, and retaliated against her for filing discrimination charges. IAU argued that Villegas was terminated due
to performance deficiencies and no evidence to rebut such
a statement was brought forth by plaintiff.
The Court sua sponte dismissed the Title VII claims for failure to state a claim upon which relief could be granted, and
granted summary for the employer on the ADEA claims.
The Court determined that there was no evidence in the
record that the plaintiff was terminated because of her age,
and although there was some evidence of age based harassment, there was no genuine issue as to whether that
harassment rose to the level of an actionable hostile work
environment.
Gastronomical Workers Union Local 610 &
Metropolitan Hotel Pension Fund et al. v.
Dorado Beach Hotel Corporation et al.
Civil No. 06-1346 (JAF)
Hon. Jose Antonio Fuste
The plaintiffs alleged that defendants violated § 302 of
the Employment Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. §1082, by failing to sufficiently fund the
Pension Fund. ERISA establishes minimum funding requirements for employee benefit plans that are covered by
its provisions. The minimum funding requirement for a plan
year according to section 302 of ERISA is met “if in the case
of a multiemployer plan such as the case at bar, the employers make contributions to or under the plan for any plan
year which, in the aggregate, are sufficient to ensure that
the plan does not have an accumulated funding deficiency
as of the end of the plan year.” This protects employees
from the inequity of under-funded employee benefit plans
that cannot deliver on promises made because of unforeseeable incidents. S. Rep. No. 93-127, at 4846. (1974). Defendants insisted that they were exempt from such funding according to the CBA with local 610, which only bound
them to contribute fixed payments, no matter how insufficient they may have been. Nevertheless the court found
that the CBA’s were not at issue here, but only defendant’s
Noteworthies
obligations under ERISA to adequately fund the Pension
Fund and to not have an accumulated funding deficiency.
Furthermore, defendants’ argument that Section 515 of
ERISA strengthens the ability of employers to comply with
the minimum funding by pointing to the importance to the
adherence of their written commitments was held to be untenable. This Section was meant only to strengthen multiemployer plans to recover delinquent contributions already
promised to them.
The court agreed with defendants on the issue of the Pension Fund’s standing to sue however. It held that the Pension Fund did not have standing to sue under ERISA, and
so it was dismissed from the case. There is simply no authority that bestows standing upon any employee benefit
plan, regardless of its qualifications as a trust under local
law. ERISA does not include employee benefit plans among
those with standing because they are not themselves beneficiaries, participants, or fiduciaries. However plaintiffs
did succeed in supporting the Trustees’ standing by stating that they were plan fiduciaries under ERISA and were
therefore authorized to file certain civil lawsuits under the
statute regardless of the Pension Fund’s existence as a
trust under Puerto Rico law. ERISA empowers fiduciaries
to bring a civil action “(1) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the
plan, or (2) to obtain other appropriate equitable relief to
redress such violations or to enforce any provisions of this
subchapter or the terms of the plan.” 29 U.S.C. § 1132 (a)
(3). ERISA law requires that “employee benefit plans provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation of the plan. 29 U.S.C. § 1102 (a) (1). The plaintiff’s trust
agreements were determined to have complied with the
aforementioned ERISA provisions and thus standing was
conferred by Judge Fuste under this prong.
In the end, the Court denied defendants’ motion to dismiss,
granted defendants’ motion for summary judgment dismissing the claims by the Pensions Fund and non fiduciaries, and denied defendants’ summary judgment request
as to the remaining fiduciaries.
Marlyn Rodriguez-Feliciano, et al v.
Puerto Rico Power Authority et al.
Hon. Jaime Pieras, Jr.
Plaintiff’s alleged that defendant PREPA had been violating the Public Utility Regulatory Policies Act (PURPA) by
illegally overcharging its customers in an amount estimated
by the office of the Puerto Rico Comptroller to be at least
$49.8 million. They also alleged that defendants failed to
comply with PURPA’s requirement to hold mandatory hearsummer 2010 • issue no. 44
ings on PREPA’s rate structure, and therefore plaintiffs were
illegally excluded from said hearings.
Defendants requested dismissal for lack of subject matter
jurisdiction. The Court held that Congress acted within its
constitutional authority in promulgating the federal court jurisdiction restrictions over actions arising under PURPA, as
set forth in 16 USC Section 2633 which states:
Notwithstanding any other provision of law, no court of the
United States shall have jurisdiction over any action arising
under any provision of subtitle A or B [16 USCS§§ 2611 et
seq., 2621 et seq.] or of this subtitle [16 USCS §§ 2631 et
seq.].
Undaunted, plaintiffs argued that the Court had jurisdiction
to hear the case under the exceptions to 16 U.S.C. Section
2633. The Court determined that none of the exceptions
were applicable to this case. The Court noted that First Circuit precedent supported its determination of lack of jurisdiction to entertain this case. Robinson v. Dept. of Public
Utilities 835 F. 2d 19, 22 (1st Cir. 1987).
The Court determined that the Plaintiffs had been afforded
all the procedural rights in the ongoing action in state court
and that their mere dissatisfaction with the proceedings before the steering committee appointed by such court could
not by itself confer jurisdiction on the U.S. District Court
over plaintiffs’ claims. Consequently, it granted defendants’
motion to dismiss.
United States of America v.
Edgar de la Cruz-Aza
Criminal No. 05-102 (JAG)
Hon. Jay A. Garcia-Gregory
Defendant Edgar de la Cruz de Aza and other co-defendants were charged with participating in a conspiracy to
commit money laundering and import narcotics, as well as
aiding and abetting another in conducting a financial transaction affecting interstate commerce.
A few days before trial, the Government informed that a
fugitive defendant had been apprehended and requested
that the trial be continued so the defendant and the newly
apprehended defendant could be tried together. The Government argued that the arrest tolled the Speedy Trial Act.
Defendant countered that there was an STA issue, and advised that he would move for the dismissal of the indictment.
Although the Court ordered defendant to file for dismissal,
defendant did not comply with the Court imposed deadline.
The government’s motion to continue was granted.
At the pretrial conference, defendant again raised the issue
of the STA and shortly after said conference, filed its mo17
Noteworthies
tion for dismissal. The Court denied defendant’s motion to
dismiss.
First, the Court held that plaintiff had simply not proven an
STA violation. In support of his request, co-defendant exclusively relied on the time that passed since his arrest in
June 2005, without considering excludable periods. Section 3161 (h) (7) of Title 18, for example, provides that among
the periods excluded from the STA are reasonable periods
of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no
motion for severance has been granted.” This means that
the clock does not commence until the date of the most
recent defendant’s initial appearance before the court. Furthermore where an indictment charges multiple defendants
and the district court has not granted a severance, a single
STA clock governs the action. United States v. Culpepper,
898 F. 2d 65, 66 (6th Cir. 1990). The Government in contrast, refuted defendant’s assertion and provided a detailed
computation of excludable periods, demonstrating that no
STA violation had occurred. The Court denied the defendant’s motion for dismissal on STA grounds.
TMTV Corp. v. Pegasus Broadcasting of
San Juan d/b/a Televicentro de Puerto
Rico Suzette Baco, et al. v. TMTV Corp.
Civil No. 05-1621 (JP) consolidated with
05-1641 (JP)
Hon Jaime Pieras, Jr.
TMTV sued Televicentro of PR (WAPA defendants) for copyright infringement under the Copyright Act and under the
Lanham Act. Plaintiff alleged that defendant produced an
unauthorized derivative work of its show “20 Pisos de Historia”, identified as “El Condominio”. The actors appearing
in “El Condominio” sued TMTV for declaratory judgment of
ownership alleging that they owned the copyrights to the
characters they portrayed. TMTV counterclaimed under the
Copyright and Lanham Acts.
WAPA defendants moved to dismiss the Copyright infringement claim claiming it was barred by the Copyright Act’s
three year statute of limitations. 17 USC § 507 (b). They
also moved for summary judgment on botht the Copyright
and Lanham Act claims on grounds of laches and other
equitable defenses.
With regard to the motion to dismiss the Copyright Act
claim, the Court concluded from the relevant facts that
TMTV had become aware of the “EL Condominio” in 1999
or 2000, and thus its infringement claims based on the episodes aired before June 9, 2002 were dismissed.
With respect to the WAPA defendants’ motion for summary
judgment, while the Court recognized laches as a potential
18
defense against copyright infringement claims, the Court
held that defendants had not met their burden of showing
unreasonable delay, and therefore denied the request for
summary judgment.
The Court also denied TMTV’s motion for summary judgment on its own copyright infringement claims against
WAPA. It determined that whether the two shows at issue in
this case were substantially similar was a genuine issue of
fact. When determining whether substantial similarity exists
with respect to a literary work, such as a television show, a
court must look for, among others, “articulable similarities
between the plot, themes, dialogue, mood, setting, pace,
characters, and sequence of events.”
The Court also denied TMTV’s motion for summary judgment on the actors’ claims. TMTV argued that the actors
could not hold the copyright to their characters because
they did not write the scripts. The Court held that the actors
were entitled to a reasonable inference that their contribution to the characters rendered them authors.
The Court also went on to dismiss TMTV’s Lanham Act
claims, sua sponte. Plaintiff claimed that WAPA by broadcasting a sitcom similar to the one they themselves produced gave the public the impression it had done so by
arrangement with them. They claimed WAPA made use
of its creative ideas without crediting them. The court determined that Dastar Corp. v. Twentieth Century Fox Film
Corp., 539 U.S. 23, 37 (2003) applied and consequently
barred such a claim.
Finally, the Court ordered the actors to show cause why
TMTV was not entitled to summary judgment on their
Copyright claims, on the ground that they were untimely.
Judge Pieras only left for consideration before the court the
actors’ designation of ownership and tortious interference
with contract claims, and TMTV’s copyright infringement
arising from the “El Condominio” episodes aired after June
9 2002.
SprintCom, Inc. v. Puerto Rico Regulations
and Permits Administration, et al.
Hon. Jaime Pieras, JR.
Plaintiff SprintCom, Inc. (“Sprint”) brought suit against Defendants Puerto Rico Regulations and Permits Administration (“ARPE”) and the Commonwealth of Puerto Rico for
their decision to deny Sprint’s application for a preliminary
plan approval to install a telecommunications facility on the
roof of a building in the town of Isabela, Puerto Rico. Defendant ARPE argued the case should be dismissed because
Sprint failed to exhaust administrative remedies or, in the
alternative, the Court should abstain from interfering with
Noteworthies
the proceedings or orders of state administrative agencies.
The Court held that the claims were properly before the
Court because the Federal Telecommunications Act (“FTA”)
bestowed a federal interest over state zoning authority for
wireless telecommunications in limited instances. Here,
Plaintiff alleged several violations of the FTA and therefore a
federal interest existed. The Court further held that ARPE’s
Resolution was a final agency action and therefore was appealable under the FTA in federal court. Finally, the Court
held that legal precedent did not require abstention by the
Court in this case.
Don King Productions, Inc. v.
La Barrita Snuppy et. al
Civil No. 06-1480(SEC)
Hon. Salvador E. Casellas
The plaintiff claimed to be the sole producer and copyright
holder of the telecast of a championship boxing match and
alleged to have contracted with various establishments in
Puerto Rico to broadcast the event in exchange for a fee.
According to plaintiffs, defendants willfully intercepted or
received the interstate communication of the event without ever seeking permission to do so or paying any fees in
contravention to the Federal Communications Act of 1934,
as amended (FCA), specifically 47 U.S.C.A.§§ 605 & 553.
Defendants moved to dismiss relying on Charter Communications Entertainment I, Dist. v. Burdulis, 460 F. 3d 168
(1st Cir. 2006) where it was held that section 605 did not
apply to unlawful interceptions of cable wire services. The
Charter court explicitly stated that the provisions of § 553
were intended by congress to be the primary protections
for communications stolen as they are being transmitted
over a cable wire. Therefore in the present case and after
relying on the Charter holding, the Court held that the only
remedy for the alleged damages suffered by defendants’
unauthorized interception of the Event was under section
553 and not 605.
$19,000 in US Currency
Civil No. 05-2076(SEC)
The government filed an in rem action pursuant to 18
U.S.C.A. §981 (a) (1) (A) for the forfeiture of money allegedly
derived from the trafficking of fraudulent identification cards
and financial documents, as well as money laundering. The
government thereafter issued warrants for arrest as to the
property seized. Defendant then filed a motion for summary
judgment in which he claimed to have acquired the property
through legal means. The Court struck Santos Feliciano’s
pleadings pursuant to Rule C(6) of the Supplemental Rules
for Certain Admiralty and Maritime Claims because he had
failed to file a verified statement of interest and answer
as required by such rule, and entered default judgment
forfeiting the property to the Government.
Claimant moved for reconsideration. Rule C(6) provides
that “a person who asserts a right of possession or any
ownership interest in the property that is the subject of
the action must file a verified statement of right or interest,
which describes the interest in the property that supports
the person’s demand for it’s restitution or right to defend
the action.” Government adduced that the defendant failed
to do so in this case. The relevant inquiry was whether the
motion for summary judgment could be read as a verified
statement of interest and verified answer as required by
Rule C(6), and if so, if it was timely filed? The court in this
case discussed U.S. v. One Urban Lot Located at 1 Street
A-1, et al, 885 F. 2d 994 (1st Cir. 1989) which stated that
“where a claimant timely files a verified answer containing
all the information required in a claim, the answer may be
deemed to have fulfilled the function of a claim in terms of
establishing the owner’s standing.” Urban Lot also recognized “that a district judge should exercise his discretion to
grant additional time for the filing of a claim or treat an answer containing all the elements of a claim as a claim when
the goals underlying the time restrictions and the verification of the claim are not thwarted.”
The Court in the present case acknowledged that defendant’s motion for summary judgment complied with Rule
C(6)’s requirements by being verified and containing all the
information to be included in a verified statement of interest. As to whether the motion for summary judgment was
timely filed in the allotted 30 days, the Court agreed with
defendant that he complied with the so called prison mailbox rule. In Houston v. Lack, 487 U.S. 266(1988) the court
recognized “that a litigant who is confined in prison ceases
to have control over the processing of his notice as soon
as he hands it over to the only public officials to whom he
has access.” Such was the case at bar because defendant
deposited his motion in the prison mail box well within the
allotted thirty days.
As a side matter, defendant’s lack of jurisdiction claim was
dismissed because all the elements under Rule C(6) had
been present. These being that a properly issued warrant
for arrest in rem had been executed and the requisite notice (service by publication and personal service of the proceedings) had been given to potential claimants.
Brendalee Melendez-Torres, et al. v.
American Express Corp., et al.
Civil No. 06-1264 (SEC)
Plaintiff alleged she received a call from a representative
from America Express telling her that she was responsible
19
Noteworthies
for the debt owed by her mother-in-law, and that if she did
not pay, her credit would be adversely affected. Accordingly Melendez paid the debt. She is now seeking redress
for the monetary damages suffered as a result of defendant’s allegedly false representations in violation of the Fair
Debt Collection Practices Act, 15 U.S.C.A. § 1692 (FDCPA).
American Express moved for dismissal.
The FDCPA prohibits deceptive and misleading practices
by “debt collectors” and so the relevant question before
the court was whether American Express fit this definition
under the facts of this case. Section 1692a of the FDCPA
defines a debt collector as “any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due another.” 15
U.S.C.A. § 1692a. A creditor is not to be considered a debt
collector when it is in the process of collecting his own
debts. In the present case American Express was not in the
business of only collecting the debts due another and for
this reason fell squarely outside of the FDCPA debt collector definition. It was also held that plaintiffs did not allege
that when the “American Express representative” called
they had the impression that a third party was involved in
the collection of American Express’s debt. This would have
potentially helped their complaint as the FDCPA also states
that a debt collector “includes any creditor who, in the process of collecting his own debts, uses any name other than
his own which would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C.A. §1692.
Plaintiff’s complaint conclusively failed to state a cause of
action against American Express pursuant to the FDCPA.
Rosita Vargas-Cabán, et al v.
Sally Beauty Supply Co., et al
Civil Number: 05-2104
Opinion Filed: March 4, 2007
Honorable Salvador Casellas
On October 14, 2005 Plaintiffs Rosita Vargas-Cabán
(Vargas), her sons, Eddie Cardona Vargas and Joshua Santana Vargas, and Vargas’ ex-husband José M.
Santana; Marangely Concepción-Bonilla and her husband
Melvin Rosado-Román; and Monisha Martínez-Pardo, of
which, Vargas, Concepción and Martínez worked as regular employees at Sally’s store, filed a complaint against
Defendants Sally, Sally PR, Sally supervisors and Vega, alleging that they were sexually harassed by Co-defendant
Vega, a Sally employee. The complaint was raised as a
violation of Title VII, 42 U.S.C.A. 2000e et seq and parallel
Puerto Rico legislation, specifically Act 17 of April 22, 1988
Laws of P.R. Ann. §15(a), et seq. (hereinafter Act 17), Act
100 of June 30, 1959, 29 Laws of P.R. Ann. §151 et seq.
(hereinafter Act 100), and Act 69 of July 6, 1985, 29 Laws
20
of P.R. Ann. §1322(1) et seq (hereinafter Act 69). Plaintiffs
also alleged that they complained of this conduct to Sally
supervisors who failed to take corrective action, and who
retaliated against them for complaining internally of the alleged harassment.
At the conclusion of the pleadings stage, all of the Defendants moved for dismissal, either partial or complete, of the
claims filed against them.
Sally moved for the Court to enter partial judgment dismissing all of Co-plaintiffs Martínez’ and Vargas’ claims arguing
that the Title VII claims are time-barred because they failed
to file their complaint within the 90 day period following the
Equal Employment Opportunity Commission’s (EEOC) issuance of the Notice if Right to Sue (NRS). Pursuant to 42
U.S.C.A. §2000-5(e)(1) a Title VII plaintiff must exhaust the
administrative remedies available to him within the 300 days
following the conduct complained of and prior to filing suit
in federal court. The plaintiff must then file suit within 90
days of its actual receipt of the NRS issued by the EEOC.
Sally argues that it is reasonable to assume that the CoPlaintiffs received the NRS on the same date as their counsels and that such date should be used to determine the
timeliness of these co-plaintiffs’ complaint. Their counsel
received a copy of the NRS on July 14, 2005 and Sally argues that Vargas and Martínez should have filed the complaint by October 12, 2005 and because they filed on October 14, 2005, the claims are time-barred.
The Co-defendants argue that because of the slowness of
the mail in Puerto Rico it is reasonable to conclude that the
NRS did not arrive until three days later after its issuance by
the EEOC, and therefore, that the dates that should be used
to calculate whether the complaint was timely filed should
be July 16 and 17 respectively for the NRS issued on July
13 and 14.
Fed. R. Civ. P. 6(e) provides that “[w]henever a party must
act within a prescribed period after service is made [by
mail], 3 days are added after the prescribed period would
otherwise expire.” There is no First Circuit precedent as
to the applicability of this rule to Title VII claims but it has
recently determined, based on a United States Supreme
Court opinion, that it does apply in factual scenarios like
the one at hand, creating a presumption that the notice is
received three days after it was issued by the EEOC.
Applying the above cited rule, Vargas and Martínez’ claims
where timely filed and Sally’s argument that the suit is timebarred is without merit. Therefore, the motion to dismiss
was denied.
The motions to dismiss by Sally PR, Sally supervisors and
Vega were unopposed.
Noteworthies
The dismissal argument relied on the fact that Plaintiffs
failed to include them in their EEOC charges and, therefore, failed to exhaust administrative remedies as to them.
In consequence, they averred that the claims were timebarred because the time to exhaust the administrative
remedies had elapsed. The Sally supervisors added that
dismissal was also proper on the ground that Title VII does
not provide for individual liability. Finally, Sally PR, Sally
supervisors and Vega argued that if the Court dismissed
Plaintiff’s federal law claims against them, having no independent jurisdictional basis to hear the pendent state law
claims, these should be dismissed.
According to the Court, a Title VII plaintiff must name a defendant in the administrative proceedings in order to maintain a federal court suit against it. The administrative charge
requirement ensures that the defendant has notification of
the procedures and offers him an opportunity for voluntary
compliance. The exceptions to this requirement are: (1) the
existence of substantial identity between the respondent
named in the EEOC charges and defendants in the civil action; (2) that the named respondent acted as the agent of
the defendant sought to be included in the civil action, at
least when the latter defendant had notice of and participated un the conciliation proceedings; and (3) that the defendant is an indispensable party under Fed. R. Civ. P 19 in
order to accord complete relief to the parties. McKinnin v.
Kwong Wah Restaurant, 83 F. 3d 498, 505.
Because none of Plaintiffs’ EEOC charges included Sally
PR, Sally supervisors nor Vega as charged parties and
because of the fact that they did not receive notice of the
pending proceedings before the EEOC nor did they have
the opportunity to participate in these proceedings, the
Court determined that Plaintiff failed to exhaust administrative remedies as to Sally PR, Sally supervisors and Vega.
In addition, Sally supervisors and Vega are also correct in
their argument that Title VII does not provide for individual
liability. Therefore, Plaintiffs’ Title VII claims against these
co-defendants were dismissed with prejudice.
Taking into account the early stage at which the federal
claims against these co-defendants have been dismissed,
the court deemed appropriate the dismissal, albeit without
prejudice, of the pendent state law claims as well.
Juan Segarra Rivera
Num 03-0188(SEC)
This case was remanded for the Court to hold an evidentiary hearing to determine whether the Defendant, Juan
Segarra-Rivera, had been coerced by his attorney Rafael
Anglada to enter a guilty plea, and whether he was thus
entitled to withdraw such plea. The First Circuit ordered the
Court to hold a full hearing on Segarra’s plea withdrawal
motion.
After appointing new counsel for defendant, the Court held
an evidentiary hearing on defendant’s request. At some
point during the hearing Segarra’s newly appointed attorney informed the Court that his client had expressed concerns regarding his quest to withdraw his guilty plea.
Having put on all of their evidence both Defendant and Government rested. Afterwards, the Court ordered both parties
to file briefs within ten days after the conclusion of the hearing. The Defendant filed a Motion to request an extension of
time to submit the memorandum, which was granted. The
Defendant then filed a motion requesting leave from the
Court to withdraw his prior motions to withdraw his guilty
plea. Upon questioning the Defendant about his request,
the Court found that he had voluntarily chosen to abandon
his prior request to withdraw his guilty plea. The Defendant
chose to finish serving his sentence, therefore his motion
was granted.
Although this resolution meant that the Court need not decide the merits of the original motion to withdraw his guilty
plea, the Court did declare that attorney Anglada’s representation of the Defendant in this case fully complied with
the highest ethical and professional standards.
Vimarie Santiago Leon v.
Municipality of San Juan
Num.04-1066(SEC)
Plaintiff moved for reconsideration of the Judgment dismissing the case with prejudice.
On August 8, 2006, the Court dismissed the case with prejudice because of Plaintiff’s continued failure to prosecute
their claims. Plaintiffs had failed to oppose Defendants’
motions to dismiss after the Court granted them an extension to do so. They also failed to timely file the Case Management Memorandum by the date required by the Court’s
case Management Order. After defendants moved for dismissal for failure to prosecute, the Court issued an Order to
Show Cause why the case should not be dismissed. Counsel for Plaintiffs’ tried to excuse this negligence by arguing
that he was a solo practitioner and had a heavy caseload.
Thereafter the Court issued an Opinion and Order dismissing in part Plaintiffs’ claims and setting new deadlines
that would govern the resolution of the remaining claims.
The Court warned that non compliance with the deadlines
would result in the imposition of sanctions including the
dismissal of the case with prejudice.
21
Noteworthies
After the remaining defendant moved for dismissal for lack
of prosecution again, and plaintiffs failed to oppose, the
Court proceeded to dismiss the case with prejudice. After reviewing recent First Circuit decisions in the context of
dismissals for failure to prosecute, the Court reiterated its
decision to dismiss. It held that the Plaintiffs’ in this case
were warned twice that their continued disregard of the
Court’s orders could result in the dismissal of the case with
prejudice. The Plaintiffs’ showed a complete lack of interest
in prosecuting the case and having been warned twice the
Court believed that lesser sanctions were not appropriate.
The motion for reconsideration was therefore denied.
Avila v. Sylvia Valentin-Maldonado, et. al.,
Civil Nos. 06-1285, 06-1517 and 06-2185
(consolidated) (GAG)
Plaintiffs instituted this action against federal police officers
who were working at the San Juan Veterans Affairs Medical Center, alleging that Defendants infringed their Fourth
Amendment rights by covertly videotaping the locker-break
room. The camera was placed focusing on the locker of an
officer who had been subject of unwelcome advances by
a fellow officer and who had later complained about two
harassing notes left in her locker. By the time the camera
was discovered, it had recorded four tapes. Yet no administrative actions were taken because no misconduct was
observed.
Defendants moved for summary judgment arguing that
they were entitled to qualified immunity. They contended
that the reason for the covert video surveillance was to
identify the employee who was leaving the notes in the officer’s locker.
The court explained that in order to prove a Fourth Amendment violation, Plaintiff has to show that a constitutional
right was infringed upon, and once that is determined, the
court has to decide if that specific right was clearly established.
The court relied on O’Connor v. Ortega, 480 U.S. 709. In
O’Connor, the Supreme Court set forth a two-step test in
order to determine if a work-related search is reasonable:
(1) whether there were reasonable grounds for suspecting that the search would turn up evidence of work-related
misconduct; and (2) whether the search as conducted was
reasonably related to its objective. The court determined
that the case met the O’Connor’s requirements and therefore the search was reasonable.
Recognizing that the Fourth Amendment analysis is more
rigorous than the O’Connor test, the court concluded that
even if the search would have been unreasonable, qualified immunity would apply to Defendants. It explained that
22
there is no precedent that clearly establishes the privacy
expectancy in a work related investigation of a locker room
through covert surveillance. Therefore, it could not have
been clear to the Defendants that their actions could infringe Plaintiff’s Fourth Amendment rights. Nevertheless,
the court stated that even if the right at issue was clearly
established, qualified immunity could still apply if officers of
reasonable competence could have disagreed on the legality of the action at issue.
Ultimately, the court concluded that the reasonability of Defendants’ conduct, plus the fact that officers of reasonable
competence could have disagreed on the legality of the covert video surveillance, was sufficient to entitle Defendants
to qualified immunity. It thus dismissed Plaintiff’s Fourth
Amendment claim.
Martinez-Jordan v. Baxter,
608 F.Supp. 2d. 224 (2009)
Hon. Aida M. Delgado-Colon
Former Baxter employee brought suit against its employer
for alleged age discrimination, disability discrimination and
retaliation under federal and local statutes. Baxter moved
for summary judgment asserting that some of plaintiff’s
claims were time-barred, that plaintiff failed to establish
a prima facie case of age and disability discrimination
and retaliation and that Baxter had legitimate nondiscriminatory reasons for the employment actions it took.
The Court granted Baxter’s motion for summary judgment
after applying the burden-shifting analysis articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
its progeny and other case law, statutory and regulatory
provisions concerning the Americans with Disabilities Act
(ADA), the Age Discrimination Act (ADEA) and Title VII.
Plaintiff started to work for Baxter’s pharmaceutical
manufacturing plant in Guayama (and/or its predecessor,
referred herein indistinctively as “Baxter” or the “Company”)
in July 1994. He first occupied the position of Manager
of Employee Safety in charge of the facilities’ security
program. His responsibilities included providing safety
training and orientations, conducting safety inspections,
taking measures for accident prevention, buying safety
equipment and the like. On November 1995, he was
demoted due to performance problems which included a
notable increase in work related accidents after he began
working with the Company and failure to implement training
to comply with training requirements. Plaintiff’s job titles
continued to change but he remained responsible for key
compliance and safety-related duties.
As a strictly regulated company, Baxter required a heighten
degree of attention to and successful performance of duties
relating to its safety program. The nature of its operation
Noteworthies
also required frequent corporate audits to manage risks,
ensure safety and compliance with laws, regulations and
policies and maintain certifications. Audits were conducted
periodically and the frequency increased depending on
whether a facility reflected significant deviations from the
standards. Beside the corporate audits, the plant also
conducted internal audits of which plaintiff was in charge.
As a result of a corporate audit in 2003, numerous problems were identified, including mismanagement of environmental issues. This resulted in the suspension of a certification for Baxter’s Guayama facility. Although plaintiff was
in charge of safety management up until the date of the
audit, he alleged that the deficiencies were attributable to
understaffing. Plaintiff was not reprimanded.
On August 2003, Baxter hired an expert on Process Safety Management to provide support to its Environmental,
Health and Safety Department. This employee was younger than plaintiff and was hired to share responsibilities with
him. Thereafter, the results of a corporate audit to reassess
prior deficient findings improved and resulted in favorable
recommendations mostly attributable to the new employee.
In March 2005, there was another corporate audit that
revealed significant repeat deficiencies. This audit
triggered an internal investigation to determine the cause
of the problems. The findings revealed that plaintiff was a
major contributor to Baxter’s noncompliance and plaintiff
admitted that he was accountable for deficiencies found.
Accordingly, Baxter suspended him on September 2005.
Plaintiff’s direct supervisor had also been admonished as
well as two other employees who were suspended due to
the results of the 2005 audit.
Subsequent internal and corporate audits on October 2006
revealed other deficiencies attributable to plaintiff. Again,
plaintiff assumed responsibility for several deficiencies
found and was terminated on December 2006 for poor performance and the magnitude of his repeated deficiencies.
During his employment, plaintiff had reported to the State
Insurance Fund (SIF) twice on April 2004 and September
2005. Before his termination, plaintiff had also complained
to Baxter’s Human Resources Manager of alleged
disability discrimination due to a hearing impairment and
discrimination and labor harassment on December 2003
and November 2005, respectively. Baxter investigated both
complaints and found no discrimination or harassment
against plaintiff. Plaintiff then filed a discrimination charge
with the Anti-discrimination Unit and the EEOC on January
2006.
In its analysis, the Court first concluded that some of plaintiff’s complaints of discriminatory acts were time- barred.
Plaintiff had to file administrative charges of discrimination within 300 days of the alleged discriminatory events.
However, in his discrimination charge of January 2006, he
included allegations of discriminatory comments and a demotion dating back to 1995 and the hiring of the younger
employee who came to assume some of his responsibilities
back in 2003.
With respect to the claim under the ADEA, the Court
concluded that plaintiff failed to establish a prima facie case
of age discrimination and that Baxter had legitimate, nondiscriminatory reasons for the actions it took. To the Court,
Baxter’s dissatisfaction with plaintiff’s job performance was
clear as plaintiff failed to offer evidence of positive reviews,
recommendations or promotions. On the contrary, plaintiff
admitted and the record supported his numerous problems
during his employment with Baxter. Thus, plaintiff’s job
performance did not meet Baxter’s legitimate expectations,
one of the prongs of the prima facie case.
The Court also dismissed plaintiff’s ADA claim. Although
the Court found that plaintiff had an impairment that limited
a major life activity, it concluded that the limitation of a major
life activity was not substantial. To determine if plaintiff’s
hearing impairment substantially limited a major life activity,
the Court considered plaintiff’s hearing aid as a mitigating
measure and also considered three key elements: (1) the
nature and severity of the impairment, (2) the duration or
expected duration and (3) the permanent or long or short
term impact resulting from the impairment.
Finally, plaintiff’s retaliation claim which was based on his
participation in protected activities such as reporting to the
SIF, his internal discrimination complaints and filing a charge
of discrimination with the EEOC were also dismissed. The
adverse employment actions allegedly attributable to these
protected activities were his September 2005 suspension
and his December 2006 termination. While plaintiff met the
“protected activity” and the “adverse employment action”
prongs of the prima facie case, he failed to show a causal
nexus between the two. The Court concluded that the
time that elapsed between the protected activities and the
alleged retaliatory actions was too long to establish causal
connection. In some instances well over a year had gone
by since the protected activity until the adverse action. The
shortest length of time elapsed between two such events
in this case was about 11 months and the Court fond this
period too long to establish a nexus.
Accordingly, the Court dismissed plaintiff’s federal claims
with prejudice and the local claims without prejudice.
23
Clerk’s Tidings
By: Frances Ríos de Morán, Esq.
Clerk of Court, U.S. District Court for the District of Puerto Rico
This is a section with news items, notices, and general information from the Clerk’s Office in the U.S. District Court for
the District of Puerto Rico, as part of a joint effort with the FBA to keep the Bar appraised of events and provide a better,
expedited service to its members. As part of this effort, we sometimes provide Internet link addresses to sites over which
the Clerk’s Office or the U.S. District Court exercise no control and thus take no responsibility for their organization, views,
accuracy, contents, standards, copyright, or trademark compliance or legality.
New Local Rules Effective
December 3, 2009
The Court approved changes to the local rules to conform
same to the changes approved by the Supreme Court of the
United States to appellate, civil, bankruptcy and criminal
rules as to the method in which time is calculated in the
federal courts, and the Statutory Time Period Technical
Amendments Act of 2009, which adjusts the time periods
impacted by the federal rules changes.
The amended local rules count intermediate weekends
and holidays for all time periods. All time deadlines in the
local rules have been carefully examined to mitigate any
inconsistency due to the change in the time-computation
method. Time deadlines of less than 30 days were changed
to multiples of seven days so that the expiration of the
deadline ordinarily would occur on a weekday.
Aside from the time-computation amendments, the Court
also approved amendments to: renumber and/or change
the titles of the rules to conform with the numbers and
titles of the corresponding rules of procedure; eliminate
obsolete rules, as well as those redundant or duplicative
of the corresponding rules of procedure; and, to correct
legal citations, spelling errors, and grammatical mistakes.
Substantive amendments based on changes in the law
were also approved.
Visit the Court’s website at www.uscourts.gov to download
a copy of the amended Local Rules.
Court-sponsored December
2009 Continued Legal
Education (CLE) Seminar
On December 17 and 18, 2009, the Court’s Committee
on Education Programs, chaired by the Hon. Carmen C.
Cerezo, sponsored a Continuing Legal Education (CLE)
Program, at the Caribe Hilton Hotel, San Juan, Puerto Rico.
This proved to be yet another extraordinary CLE giving
24
members of the bar in good standing the opportunity to earn
up to 9.5 hours of instruction free of charge. The Program
consisted of three lectures on the topics of: Prosecuting
and Defending Criminal Conspiracy Cases, offered by
Members of the bar during the CLE Program.
Paul Marcus, Haynes Professor of
Law at the College of William and
Mary in Virginia; Computer Crimes,
offered by Orin S. Kerr, Professor
at George Washington University
Law School; and, Federal Civil
Procedure, offered by A. Benjamin
Spencer, Associate Professor or
Law and Alumni Faculty Fellow at
the Washington and Lee School of
Law.
Hon. Carmen C.
Cerezo, Chairperson of
the Court’s Committee
on Education Programs
As a service to the bar, the Clerk of Court’s staff designed
a CLE Program website where attorneys could view the
CLE Program’s agenda, speaker information, and lecture
materials,
www.prd.uscourts.gov/CourtWeb/cle_info/
index.html. We thank those attorneys who assisted the
Clerk’s Office staff in testing the online evaluation forms
and invite all members of the bar to visit the CLE Program
website for updates on future educational opportunities
and new features.
Attorneys are reminded to keep
CM/ECF account information
current. CLE Programs are
announced by email to their
respective electronic addresses as
they appear in CM/ECF.
Clerk of Court Frances
Ríos de Morán, Esq.
Clerk’s Tidings
Rules Amendments Effective
December 1, 2010 Pending
Final Approval
•
Federal Rules of Appellate Procedure: Appellate Rules
1 and 29.
•
Federal Rules of Bankruptcy Procedure: Bankruptcy
Rules 1004.2, 1007, 1014, 1015, 1018, 1019, 4004,
5009, 5012, 7001, and 9001.
•
Federal Rules of Civil Procedure: Civil Rules 26 and 56.
•
Federal Rules of Criminal Procedure: Criminal Rules 5,
12.3, 15, 21, and 32.1.
•
Federal Rules of Evidence: Evidence Rule 804.
For more information on the proposed amendments and to
view the comments submitted go to, www.uscourts.gov/
rules/proposed0809.html. To listen to the podcasts of the
Rules Hearings to, www.uscourts.gov/rules/podcast.cfm.
H1N1 Preparedness
In the wake of the H1H1 Flu Virus, the District of Puerto
Rico has received guidance from the Judiciary Emergency
Preparedness Office of the Administrative Office of the U.S.
Courts to minimize workplace exposure and to ensure that
essential work functions and services will be maintained
in the event of a pandemic. Serving the bar and the public
responsibly is our most important goal.
Relief for Haiti
Members of the Clerk of Court’s staff raised over $1,200 in
relief for Haiti. They also amassed medical supplies, water,
non-perishable food and other items which were delivered
to charitable organizations to be sent to Haiti. We are
grateful for the Court family’s sense of community and its
kind and generous response to help the people of Haiti in
the after-math of the January 2010 earthquake.
Judge Raymond L. Acosta
Retires After 27 Years in the
Bench
On Friday, February 5, 2010, the Federal Court family
gathered in the atrium of the Clemente Ruiz Nazario United
States Courthouse to bid farewell to Judge Raymond L.
Acosta, who retired on February 1, 2010. Chief Judge José
A. Fusté, judicial officers and Clerk’s Office staff shared
anecdotes of Judge Acosta’s vast contributions to the
bar, the bench and to public service. Prior to his 1982
appointment to the bench by President Ronald Reagan,
Judge Acosta served as the United States Attorney
for the District of Puerto Rico.
Perhaps his most remembered
contribution from the bench is that
he masterfully presided over the
Dupont Plaza Fire Litigation, the
largest civil litigation case in U.S.
history at the time and pursuant Clerk of Court Frances
to which world-wide amendments Ríos de Morán, Esq.,
(far left) and Judge
in hotel security practices were Raymond L. Acosta
implemented. In the legal field, the (far right) flank Marie,
Dupont Plaza Fire Litigation set the Judge Acosta’s wife.
benchmark for cooperative defense
and fire disaster and insurance-related litigation in the
United States.
To learn more about Judge Acosta’s extraordinary life
and legacy, go to the Judges’ Biographies section of the
Court’s website at, www.prd.uscourts.gov.
Court Mourns Passing of
Judge Gilberto Gierbolini
On December 29, 2009, the Court
mourned the passing of Judge
Gilberto Gierbolini who retired in
2004. Judge Gierbolini dedicated
most of his life to public service
in different capacities. He was
Judge Gilberto
in active military duty during
Gierbolini Ortíz
both WWII and the Korean War.
He worked at the University of
Puerto Rico, and also served as assistant United States
attorney, Superior Court Judge, Solicitor General for the
Commonwealth of Puerto Rico, and Chairperson of the
Puerto Rico State Election Commission, among other
influential positions. Judge Gierbolini was appointed to the
bench on February 20, 1980, by President Jimmy Carter.
He served as chief judge from 1991 to 1993, and assumed
senior status on December 27, 1993, until his retirement
on March 23, 2004. In the legal field, Judge Gierbolini’s
most noteworthy case culminated in the 5-week trial which
led to the 1983 conviction of former police officer Alejo
Maldonado which led to a Government-wide investigation
into corruption within Puerto Rico’s Criminal Investigation
Corps. On the personal side, Judge Gierbolini, a proud
“coameño,” used to teasingly say that “Ponce’s best spot
is the exit to Coamo.” He loved poetry and was a music
aficionado who helped found the Museum of Puerto Rican
Music (“Museo de la Música Puertorriqueña”) in Ponce,
which is attached to the Institute of Puerto Rican Culture
(“Instituto de Cultura Puertorriqueña”).
To learn more about Judge Gilberto Gierbolini’s
extraordinary life visit the Judges’ Biographies section of
the Court’s website at, www.prd.uscourts.gov.
25
Clerk’s Tidings
The Jurisdiction and Venue
Clarification Act of 2009
The proposed “Federal Courts Jurisdiction and Venue
Clarification Act of 2009” (H.R. 4113) was introduced in the
Senate on November 19, 2009. Enactment of this proposed
legislation is supported by the Judicial Conference.
Initiated by the Conference’s Federal-State Jurisdiction
Committee, it contains amendments to title 28, United
States Code, related to diversity, removal and remand,
and the venue and transfer statutes with respect to, among
others: (1) treatment of resident aliens; (2) denial of district
court original jurisdiction of an action between a citizen of
a state and a resident alien domiciled in the same state; (3)
citizenship rules for corporations and insurance companies
with foreign contacts; and (4) removal procedures for civil
and criminal actions and summary remand.
For more information, including the full text of the
proposed legislation, go to www.govtrack.us/congress/
bill.xpd?bill=h111-4113. This bill, which would reduce
wasteful litigation over jurisdictional issues, was referred
to the Subcommittee on Courts and Competition Policy
on January 4, 2010. For a brief synopsis of the Judiciary’s
position go to, www.uscourts.gov/ttb/2009-12/article05.
cfm.
The Office of
the Federal
Register
The Office of the Federal
Register (OFR), online
since
1994,
provides
access to the official
text of federal regulatory
material, federal laws,
presidential documents,
and federal organizations’
programs and activities.
It also administers the
Electoral College and the
Constitutional Amendment process.
The Federal Register system is an official legal information
service of the United States government and the OFR
is a component of the National Archives and Records
Administration (NARA), which is joined in a statutory
partnership with the U.S. Government Printing Office
(GPO) to provide Federal Register publications and
services to the public under the Federal Register Act, the
GPO Access legislation, and related public information
laws. As a service to the Bar, the Court’s website has been
linked to e-CFR since 2008.
26
Every Federal government business day, starting at
approximately 8:45 a.m., the OFR updates its Public
Inspection Desk to display the documents that will appear
in the next day’s Federal Register, as well as selected
documents scheduled for later issues. To learn more about
the OFR, go to www.federalregister.gov.
Senior Judges in the Federal
Courts
Senior judges are active district judges who opt for
that status even though they can retire at full pay. They
voluntarily handle a significant work of federal district and
appellate courts. A senior judge must do 25 percent of the
work of an active service judge to keep staff and office
space, but some judges continue carrying a full caseload
after taking senior status.
In 1919, Congress first authorized judges to retire at age
70 after 10 years of service, and to continue to retain the
judicial office and perform duties in retired status. In 1948,
Congress provided that judges retiring from active service
would continue to receive the full judicial salary. Six years
later, the minimum retired age became 65, with 15 years of
service.
Dating back to the 12-month period ending June 30, 1980,
senior judges in the district courts terminated 9.0 percent
of all civil and criminal cases, and conducted 9.1 percent of
all trials. Significantly, in the last 12-month period for which
statistics are available —ending June 30, 2009— senior
judges in the district courts terminated 21.2 percent of all
civil and criminal cases, and conducted 26.0 percent of all
trials.
For more information on the significant contribution of
senior judges in the Federal Judiciary, go to www.uscourts.
gov/ttb/08-06/senior/index/html.
Hourly Rate and Case
Maximum Increases for
Criminal Justice Act (CJA)
Panel Attorneys
On December 16, 2009, Congress raised the non-capital
hourly panel attorney compensation rate from $110 to
$125, and the maximum hourly capital rate from $175 to
$178 (for federal capital prosecutions and capital postconviction proceedings). These rates apply to attorneys
appointed to represent eligible persons under the CJA, 18
U.S.C. §3006A, and the Antiterrorism and Effective Death
Penalty Act of 1996. The new hourly compensation
rates apply to work performed on or after January
1, 2010.
Clerk’s Tidings
The case compensation maximums resulting from the
increase in the hourly rate to $125 include: $9,700 for
felonies at the trial court level and $6,900 for appeal;
$2,800 for misdemeanors at the trial court level and
$6,900 for appeal; $9,700 for non-capital post-conviction
proceedings under 28 US.C. §§ 2241, 2254 or 2255, and
$6,900 for appeal; and, $2,100 for most other non-capital
representations and appeals. The new case compensation
maximums apply to a voucher submitted by appointed
counsel if that person furnished any CJA-compensable
work on or after January 1, 2010. The former case
compensation maximums apply to a voucher submitted by
appointed counsel if that person’s CJA-compensable work
on the representation was completed before January 1,
2010.
Electronic Public Access (EPA)
Fee Schedule Update
For more information, go to www.fd.org.
PACER Website Redesigned
On March 16, 2010, the Judicial Conference of the United
States approved an adjustment to the Electronic Public
Access (EPA) fee schedule so that users are not billed
unless they accrue charges of more than $10 of PACER
usage in a quarterly billing cycle. This adjustment in effect
quadruples the amount of data available without charge.
Previously, users were not billed until their accounts total
at least $10 in a one-year period. For questions, contact
the PACER Service Center at pacer@psc.uscourts.gov.
To view a copy of the latest fee schedule go to, http://pacer.
uscourts.gov/announcements/general/fee_sched_upd.
Survey on Modernizing
Bankruptcy Forms
The Federal Judicial Center has published the initial results
of a survey on modernizing bankruptcy forms, a project
led by the Judicial Conference Advisory Committee
on Bankruptcy Rules. This project is expected to take
between five to seven years for full completion. The initial
results include survey responses between November 1
and November 30, 2009 regarding the Voluntary Petition
and Schedules A and B, and answers to questions and
comments which apply to those forms. Seven different
groups of respondents were surveyed online: attorneys,
bankruptcy judges, U.S. trustees, Chapter 13 trustees, law
clerks and clerks of court.
For more information on the Bankruptcy Official Forms
Modernization Project or to link or download the Compiled
Survey Results, go to www.fjc.gov/library/fjc_catalog.nsf.
The document is available on-line only.
Court-sponsored March 2010
Continued Legal Education
(CLE) Seminar
On March 12, 2010, the Court’s Committee on Education
Programs, chaired by the Hon. Carmen C. Cerezo,
sponsored a Continuing Legal Education (CLE) Program
held at the Clemente Ruiz Nazario U.S. Courthouse in Hato
Rey, Puerto Rico. The Program consisted of a one-and-ahalf hour lecture on “The Changing Climate of Environmental
Law” offered by Professor Patrick A. Parenteau, Senior
Counsel to the Environmental and Natural Resources Law
Clinic at Vermont Law School.
The PACER Service Center website, www.pacer.gov, has
been redesigned with an improved look and feel to help
novice users learn how to access federal records online as well as allow expert users to more easily find the
information they need. Visitors will find all of the popular
features from the old site —links to courts, account
maintenance, and registration services— presented in a
much more user-friendly manner.
The PACER Case Locator, launched in March 2010, allows
users to search for court records in all district, bankruptcy,
and appellate courts and replaces the U.S. Party/Case
Index to provide enhanced search and display capabilities
including the ability to:
•
request lists of cases for a specified date range by
court type
•
conduct searches based on chapter, discharge date
and dismissal date for bankruptcy cases
•
access case information for the Judicial Panel on
Multidistrict Litigation
•
choose result formats, including HTML, delimited
text, and XML which can be easily imported to other
programs for analysis
•
change the sort order of the results displayed
•
conduct refined searches within the results of a
previous search
Visit the Case Locator at http://pcl.uscourts.gov.
27
Clerk’s Tidings
Judiciary Launches New
Public Site
The Federal Judiciary’s public website, www.uscourts.gov,
has been redesigned to make it more attractive, accessible,
and useful. Among the objectives of the redesign are a
more dynamic website that can integrate emerging web
technologies, such as RSS, podcasts, and multimedia.
Enhancements include:
•
28
Email Delivery Service — Interested users can
subscribe to uscourts.gov email updates to receive
alerts on topics of particular interest or alerts for all
updates. Subscriptions are free and can be canceled
at any time.
•
Multimedia — Video, Podcasts, Photos, YouTube —
Photo slide shows have been added to include and
illustrate such topics as naturalization ceremonies,
educational outreach programs, and Judiciary news,
including a link to the Judiciary’s YouTube Channel,
www.YouTube.com/uscourts.
•
Widgets — A widget is a portable chunk of computer
programming code that can be embedded in a website
to add dynamic content. Viewers can take a widget
from uscourts.gov and install it in their website to
directly receive continuous Federal Judiciary news
updates.
•
Read-Aloud Service — Web text is read aloud for
users who find it difficult to read online, a useful tool
for those who have difficulty reading or are mildly
visually impaired. This free program also allows users
to download portable files from uscourts.gov and
listen to it later.
Judiciary’s YouTube Channel
The Judiciary recently debuted its new YouTube channel,
a joint initiative of the Administrative Office of the U.S.
Courts and the Federal Judicial Center, designed to bring
the Judiciary’s news and educational videos to a larger
audience. Current offerings include the Court Shorts
series targeted to high school students, the bankruptcy
basics series of videos, and recruitment videos that feature
court employees explaining what it is like to work for the
Judiciary. Visit, www.YouTube.com/uscourts to view and
introductory video and see what the channel has to offer.
Acknowledgments
The Puerto Rico Chapter of the Federal Bar Association (FBA) would like to acknowledge the participation
and invaluable assistance of the following persons in the FBA’s Federal Bar Review Courses of October-September 2009
and March-April 2010.
Juan R. Acevedo Cruz
Juan R. Acevedo Law Offices
Magdamari Dávila Vallecillo
Fiddler, González & Rodríguez PSC
Salvador Antonetti Stutts, Esq.
O’Neill & Borges
Roberto A. Cámara Fuertes,
Fiddler, González & Rodríguez PSC
Raúl Arias, Esq.
Assistant U.S. Attorney Maritza González
U.S. Attorney’s Office for the District of PR
Antonio A. Arias Larcada
Richard Graffam
Manuel Fernández Bared
Toro, Colón, Mullet, Rivera & Sifre, PSC
Rica López de Alós
Ricardo Casellas
Casellas Alcover & Burgos, PSC
Andrés W. López
The Law Offices of Andrés W. López, PSC
Seth A. Erbe
Indiano & Williams, PSC
Manuel Pietrantoni
Casellas Alcover & Burgos, PSC
For information regarding the upcoming Bar Review Course, please contact:
Magdamari Dávila at (787) 759-3220 or by e-mail at mdavila@fgrlaw.com.
29
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The Federal Bar Association offers an unmatched array of opportunities and services to enhance your connections to the judiciary, the
legal profession, and your peers within the legal community. Our mission is to strengthen the federal legal system and administration of
justice by serving the interests and the needs of the federal and private practitioner, the federal judiciary, and the public they serve.
:]oh\Z\r
The opportunity to make a change
and improve the federal legal system
through grassroots work in 85 FBA
chapters and a strong national advocacy.
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Connect with a vast network of federal practitioners extending across all
50 states, the District of Columbia,
Puerto Rico, and the Virgin Islands.
Governance positions within the association help shape the FBA’s future
and make an impact on the growth of
the federal legal community.
E^Zkgbg`
Explore best practices and new ideas
at the many Continuing Legal Education programs offered throughout the
year—at both the national and chapter levels.
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THREE WAYS TO APPLY TODAY: c Mail application to FBA, 1220 North Fillmore St., Suite 444, Arlington, VA 22201; d Fax application
to (571) 481-9090; or e Join online at www.fedbar.org/connect.html. For more information, contact the FBA membership department
at (571) 481-9115 or membership@fedbar.org.
?>=>K:E;:K:LLH<B:MBHG:IIEB<:MBHG?HKF>F;>KLABI!<HGMBGN>LHGK>O>KL>"
Applicant Information
First Name
M Male M Female
M.I.
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Have you been an FBA member in the past? M yes M no
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30
Private Sector: M Private Practice
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Mkb[Ze
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PRACTICE TYPE
Court of Record: ________________________________________
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SUSTAINING MEMBERSHIP
Chapter Affiliation
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members of the FBA. Sixty dollars of the sustaining dues are used to support educational programs and publications of the FBA. Sustaining members receive a 5%
discount on the registration fees for all national meetings and national CLE events.
Private Sector
Public Sector
Member Admitted to Practice 0-5 Years ...........................M$140
M$120
Member Admitted to Practice 6-10 Years .........................M$190
M$165
Member Admitted to Practice 11+ Years ..........................M$215
M$180
Retired (Fully Retired from the Practice of Law) ..............M$135
M$135
ACTIVE MEMBERSHIP
Open to any person admitted to the practice of law before a federal court or a
court of record in any of the several states, commonwealths, territories, or possessions of the United States or in the District of Columbia.
Private Sector
Public Sector
Member Admitted to Practice 0-5 Years ...........................M $80
M $60
Member Admitted to Practice 6-10 Years .........................M $130
M $105
Member Admitted to Practice 11+ Years ..........................M $155
M $120
Retired (Fully Retired from the Practice of Law) ..............M $75
M$75
ASSOCIATE MEMBERSHIP
Foreign Associate Admitted to practice law outside the U.S. ....................... M $155
Law Student Associate Currently enrolled in law school ............................. M $25
=n^lMhmZe3XXXXXXX
Practice Area Sections
MAlternative Dispute Resolution .. $15
MAntitrust and Trade Regulation $15
MBankruptcy Law......................... $10
MCriminal Law ............................. $10
MEnvironment, Energy, and
Natural Resources ...................... $15
MFederal Litigation....................... $10
MFinancial Institutions and
the Economy ............................. N/C
MGovernment Contracts............... $20
MHealth Law ................................. $10
MImmigration Law ....................... $10
MIndian Law ................................ $15
MIntellectual Property &
Communications Law ................ $10
MInternational Law ...................... $10
MLabor and Employment Law ..... $15
MSocial Security............................ $10
MState and Local Government
Relations ....................................... $5
MTaxation ..................................... $15
MTransportation &
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MVeterans Law.............................. $10
Career Divisions
MFederal Career Service (past/present employee of federal government).....N/C
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MCorporate & Association Counsels (past/present member of
corporate/association counsel’s staff) .............................................................. $10
MSenior Lawyers* (age 55 or over) ................................................................... $10
MYounger Lawyers* (age 36 or younger or admitted less than 3 years) .......N/C
*For eligibility, date of birth must be provided.
L^\mbhglZg]=boblbhglMhmZe3XXXXXXX
Your FBA membership entitles you to a chapter membership. Local chapter
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to the chapter name (if applicable). If no chapter
Private next
Public
is selected,Sector
you will be
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–$25
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Georgia
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Acadiana
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Michigan
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Ohio–$10
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of Pennsylvania
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of Pennsylvania
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68%0,7
31
Board of Directors
President
Pietrantoni Méndez & Álvarez, LLP
Popular Center 19th Floor
209 Muñoz Rivera Ave.
San Juan, PR 00918
(787) 274-1212
kgonzalez@pmalaw.com
Secretary
Roberto A. Cámara-Fuertes
Fiddler González & Rodríguez, P.S.C.
P.O. Box 363507
San Juan, PR 00936-3507
(787) 759-3204
rcamara@fgrlaw.com
Directors
President-Elect
Carlos A. Valdejully
O’Neill & Borges
American International Plaza
250 Muñoz Rivera Ave., Suite 800
San Juan, PR 00918-1813
(787) 282-5725
carlos.valldejuly@oneillborges.com
Past-President
Ricardo F. Casellas
Casellas Alcover & Burgos, P.S.C.
P.O. Box 364924
San Juan, PR 00936-4924
(787) 756-1400
rcasellas@cabprlaw.com
Vice President
Manuel Pietrantoni
Casellas Alcover & Burgos, P.S.C.
P.O. Box 364924
San Juan, PR 00936-4924
(787) 756-1400
mpietrantoni@cabprlaw.com
National Delegate
Oreste R. Ramos
San Juan, PR 00918
(787) 274-1212
oramos@pmalaw.com
Treasurer
Andrés W. López
Law Offices of Andrés W. López, P.S.C.
207 Del Parque Street, Third Floor
San Juan, PR 00912
(787) 641-4541
andreswlopez@yahoo.com
.
32
Richard Graffam
P.O. Box 364225
San Juan, PR 00936-4225
(787) 250-5638
rg@mcvpr.com
Mariano A. Mier
Rexach & Pico
Avenida Fernández Juncos 802
Esquina La Paz
Miramar
San Juan, P.R. 00907
(787) 723-8520
mmier@rexachpico.com
Joanne Pardo Márquez
Martínez Alvarez, Menéndez-Cortada & Lefranc Romero, PSC
Ponce de León 701, Suite 407
San Juan, Puerto Rico 00907
Tel. 787-721-1140
jpardo@martilaw.com
Ricardo Ortiz
Fiddler González & Rodríguez, P.S.C.
P.O. Box 363507
San Juan, PR 00936-3507
(787) 753-3113 x. 3258
Salvador J. Antonetti
O’Neill & Borges
American International Plaza
250 Muñoz Rivera Ave., Suite 800
San Juan, PR 00918-1813
(787) 282-5758
santonetti@onielllborges.com
Janitz M. García Marrero, Esq.
San Juan, PR 00918
(787) 274-1212
jgarcia@pmalaw.com
Federal Bar Association
Practitioners Directory
B
Bird, Bird & Hestres, PSC
Fiddler González & Rodríguez, LLP
C
G
PO Box 363507
San Juan, Puerto Rico 00936-3507
Tel. 787-753-3113
Fax 787-759-3123
e-mail: fiddler@fgrlaw.com
PO Box 9024040
Tel. 787-721-0190
Fax 787-724-5305
e-mail: ehestres@bbh-law.com
Cancio, Nadal Rivera & Díaz
García & Fernández
Bolivia 33 - Suite 701
Tel. 787-764-1932
Fax 787-766-2132
e-mail: jmgarcia@gflawpr.com
PO Box 364966
Tel. 787-767-9624
Fax 787-764-4430
e-mail: cnrd@cnrd.com
E
Gnocchi-Franco Law Offices
PO Box 29314
Tel. 787-753-6455
Fax 787-758-5515
e-mail: efronprlaw@microjuris.com
Capital Center Building, Suite 801
239 Arterial Hostos Avenue
Tel. 787-753-1566/0446
Fax 787-765-2681
e-mail: agf@gnocchilaw.com
URL: www.gnocchilaw.com
William Estrella Law Offices, PSC
Goldman Antonetti & Córdova, PSC
David Efron Law Offices
150 Tetuán Street, Second Floor
Tel. 787-997-5050
Fax 787-997-5090
URL: www.welo.net
F
Faccio & Pabón-Roca Law Offices
Urb. Hyde Park
249 Calle Las Marías
Tel. 787-764-1800
Fax 787-777-0737
e-mail:facciopabonroca@microjuris.com
Ferraiuoli Torres Marchand & Rovira,
PSC
221 Plaza Bldg., Suite 403
221 Ponce de León Ave.
Hato Rey, PR 00917
T 787.766.7000
F 787.766.7001
URL: www.ftmrlaw.com
email: info@ftmrlaw.com
PO Box 70364
Tel. 787-759-8000
Fax 787-767-9333
URL: www.gaclaw.com
M
Martínez Odell & Calabria
PO Box 190998
Tel. 787-753-8914
Fax 787-753-8402
e-mail: moc@microjuris.com
270 Muñoz Rivera Avenue, 9th Floor
Tel. 787-759-9292
Fax 787-759-9225 & 787-759-8282
URL: www.mcvpr.com
Monserrate & Monserrate
606 Muñoz Rivera Avenue
Hato Rey, Puerto Rico 00918-3632
Tel. 787-764-8960
Fax 787-751-7114
e-mail: dmp@monserratelaw.com
Muñoz Boneta Benitez Peral &
Brugueras
PO Box 191979
Tel. 787-751-9393
Fax 787-751-0910
e-mail: munet@munetlaw.com
N
Nigaglioni Ferraiuoli, PSC
I
Indiano & Williams, PSC
207 Del Parque Street
3rd Floor
Tel. 787-641-4545
Fax 787-641-4544
e-mail: david.indiano@indianowilliams.com
www.indianowilliams.com
J
Jiménez, Graffam & Lausell
PO Box 366104
Tel. 787-767-1030
Fax 787-751-4068
e-mail: manager@jgl.com
PO Box 195384
Tel. 787-765-9966
Fax 787-751-2520
e-mail: vero@nf-legal.com
O
O’Neill & Borges
American International Plaza, Suite 800
Tel. 787-764-8181
Fax 787-753-8944
www.oneill&borges.com
33
Ortiz Toro & Ortiz Brunet
PO Box 192064
Tel. 787-754-7698
Fax 787-766-1596
e-mail: carmentc@caribe.net
P
Pinto-Lugo, Oliveras & Ortiz, PSC
PO Box 9024098
Tel. 787-724-8103
Fax 787-724-8152
e-mail: plr@pintolaw.com
Manuel Porro-Vizcarra Law Offices
Buchanan Office Center - Suite 201
40 Carr. 165
Guaynabo, Puerto Rico 00968-8001
Tel. 787-774-8200
Fax 787-774-8297
URL: mpvlaw@centennialpr.net
Pietrantoni Méndez & Alvarez LLP
San Juan, PR 00918
Tel. (787)274-1212
Fax (787)274-1470
URL: www.pmalaw.com
Q
Quetglas Law Offices
PO Box 16606
Tel. 787-722-0635/7745
Fax 787-725-3970
e-mail: quetglaslaw@hotmail.com
URL: www.quetglaslaw.com
34
Quiñones & Arbona, PSC
Schuster Aguiló LLP
R
Siera/Serapion, PSC
Doral Bank, Suite 701
33 Resolución Street
Tel. 787-620-6776
Fax 787-620-6050
e-mail: equinones@qalawpr.com
Law Offices of Ramos Díaz y Acevedo,
CSP
359 De Diego Avenue, Suite 601
Tel. 787-722-9090
Fax 787-724-4391
e-mail: jarlo@caribe.net
Reichard & Escalera
Royal Bank Center, 10th Floor
255 Ponce de León Avenue
Tel. 787-758-8888
Fax 787-765-4225
e-mail: counsellors@reichardescalera.com
URL: www.recounsel.com
S
Law Offices of Manuel San Juan
PO Box 9023587
Tel. 787-723-6637
Fax 787-725-2932
e-mail: sanjuanm@microjuris.com
255 Ponce de León Avenue
MCS Plaza, Suite 400
Tel. 787-765-4646
Fax 787-765-4611
e-mail: counsellors@salawpr.com
Westernbank World Plaza, Suite 906
Tel. 787-754-2820
Fax 787-754-2830
e-mail: seiser@coqui.net
T
Troncoso & Schell
PO Box 9023352
Tel. 787-722-0741
Fax 787-724-2563
e-mail: ftroncoso@troncosolaw.com
U
Usera Law Offices, P.S.C.
PO Box 9022487
Tel: (787) 725-8080
Fax: (787)
www.useralaw.com

summer 2010 - Federal Bar Association

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