CAMACHO v. AUTORIDAD DE TELEFONOS DE PUERTO RICO No. 88-1583.
868 F.2d 482 (1989)
Isaac CAMACHO, et al., Plaintiffs, Appellants, v. AUTORIDAD de TELEFONOS de PUERTO RICO, et al., Defendants, Appellees.
United States Court of Appeals, First Circuit.
Decided February 21, 1989.
Charles S. Hey-Maestre with whom Roberto Roldan-Burgos, Instituto Puertorriqueno de Derechos Civiles, Sara E. Rios, Frank E. Deale, Center for Constitutional Rights, Peter Berkowitz and Jose Antonio Lugo were on brief for plaintiffs, appellants.
Jose Juan Nazario de la Rosa, Juan Santiago Nieves, and Nazario, Santiago, De Leon on brief for Concilio General de Trabajadores and Comite en Defensa Derechos Ciudadanos, Inc., amici curiae.
Lino J. Saldana with whom Saldana, Rey, Moran & Alvarado, Jay A. Garcia-Gregory, Francisco de Jesus Schuck, Maria del Carmen Taboas, Fiddler Gonzalez & Rodriguez, Carmen Irizarry de Dominguez, Daniel Dominguez and Dominguez & Totti were on brief for appellees Autoridad de Telefonos de Puerto Rico, Enrique Jimenez, Miguel D. Lausell and Pedro Galarza.
John C. Harrison, Civil Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Daniel F. Lopez-Romo, U.S. Atty., and John F. Cordes, Jr., were on brief for intervenor-appellee the U.S.
Before COFFIN, BOWNES and SELYA, Circuit Judges.
SELYA, Circuit Judge.
We are asked to revisit a crossroads where the laws of the United States and Puerto Rico intersect. Having made the journey and inspected the terrain anew, we remain confident that our earlier survey of the intersection is accurate. Because that reaffirmation is dispositive of the most heralded point on this appeal, and because none of appellants' other initiatives have merit, we affirm the district court's dismissal of the action.
I. TRAVEL OF THE CASE
On December 19, 1986, plaintiffs (appellants before us) filed their complaint in Puerto Rico Superior Court. They claimed, variously, to have made or received electronically-intercepted telephone calls in 1984-85.
Appellees removed the case to federal district court. Plaintiffs neither contested removal nor sought remand. The United States then moved to intervene as a defendant on the ground that the suit cast a cloud over the integrity of federal law enforcement efforts in the Commonwealth; the district court granted the motion. Eventually, the court entertained, and acted favorably upon, motions for dismissal, ruling that plaintiffs' complaint did not state any actionable claim. This appeal followed.
We offer a thumbnail sketch of certain statutory and constitutional enactments referred to by the parties, and then limn the issues presented on appeal.
A. Title III.
By enacting the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, Tit. III, 82 Stat. 212, 18 U.S.C. §§ 2510-2520 (Title III), Congress acted affirmatively to regulate interception of telephonic communications. Title III provides that, under certain carefully controlled circumstances, law enforcement officers may seek federal court authorization for wiretaps, 18 U.S.C. § 2516, subject to a panoply
18 U.S.C. § 2511(2)(a)(ii) (1982).
B. The Federal Relations Act.
This court, and others, have written extensively about the roots of the relation between Puerto Rico and the United States, and about the interplay between the Puerto Rico Federal Relations Act, 48 U.S.C. § 731b et seq., and the Puerto Rico Constitution. We see no need for further fossorial exercises aimed at repastinating that soil, especially since we find ourselves in broad agreement with the pre-1953 historical synopsis contained in Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, 39-40 & nn. 7-19, 24 (1st Cir.1981), and with the following description of the shift in relations attendant upon the enactment of the federal enabling legislation:
Id. at 41. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 671-672, 94 S.Ct. 2080, 2085-2086, 40 L.Ed.2d 452 (1974).
What is most relevant for our purposes is that the Federal Relations Act has a provision setting forth the effect of federal statutes in Puerto Rico. It states: "The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States...." 48 U.S.C. § 734 (emphasis supplied).
C. The Puerto Rico Constitution.
The Puerto Rico Constitution flatly prohibits wiretapping. P.R. Const. Art II, § 10. That prohibition is embedded, as well, in the fabric of the Commonwealth's laws and regulations. See, e.g., P.R. Laws Ann. tit. 33, § 4187. By the same token, appellees operate under a legislative mandate that their customers "shall be able to enjoy the service offered [them] without
D. Issues Presented.
The district court dismissed plaintiffs' complaint because, in its view, the imperatives of Title III overrode the strictures of Puerto Rico law. Camacho v. ATPR, No. 87-0108 (PG), slip op. at 2-6 (D.P.R. Apr. 12, 1988). And, it held the defendants harmless from the suit by reason of the immunity conferred by 18 U.S.C. § 2511(2)(a)(ii). Id. at 6-10.
Appellants assign error in four respects. They urge (1) that their action was improperly removed from the superior court to the federal district court; (2) that Title III is "locally inapplicable" in Puerto Rico within the meaning of 48 U.S.C. § 734, at least in the circumstances at bar; (3) that, whether or not Title III has pertinence, appellees are not eligible for the statutory shield; and (4) that the district judge should have recused himself. We consider these issues seriatim.
Appellants' action was removed from the Puerto Rico Superior Court on divers grounds. One basis was 28 U.S.C. § 1442(a)(1), which provides in pertinent part as follows:
28 U.S.C. § 1442(a)(1) (emphasis supplied).
Given the language of this statute, it seems surpassingly difficult to fault the removal. After all, the gravamen of the action was that defendants "wiretapped and/or offered technical assistance to federal agents to wiretap, and/or facilitated ... the wiretapping by federal agents of plaintiffs' calls." Plaintiffs' Complaint at ¶ 10. The removal petition averred that "at all times referred to in said complaint, co-defendants ... were acting under express orders, control and directions of federal officers who were acting under color of their office as federal agents and in the performance of their official duties." This recital has never been contradicted. Nothing more was needed.
Appellees' involvement in the electronic surveillance was strictly and solely at federal behest. There is no reason to suppose that the agents were not engaged in official government business, that is, acting "under color of" their federal office. In such circumstances, the reach of section 1442(a)(1) extends to private persons, like appellees, who act under the direction of federal officers. See, e.g., Peterson v. Blue Cross/Blue Shield, 508 F.2d 55, 58 (5th Cir.) (suit properly removed under § 1442(a)(1) by private corporations which had acted as Medicare fiscal intermediaries), cert. denied, 422 U.S. 1043, 95 S.Ct. 2657, 45 L.Ed.2d 694 (1975); Texas v. National Bank of Commerce, 290 F.2d 229, 231 (5th Cir.) (suit properly removed under § 1442(a)(1) by bank operating branch at military base under right granted by Treasury Secretary), cert. denied, 368 U.S. 832,
Statutes like section 1442(a)(1) represent a legislatively-spawned value judgment that a federal forum should be available when particular litigation implicates a cognizable federal interest. Cf. Ely Valley Mines, Inc. v. Hartford Accident and Indemnity Co., 644 F.2d 1310, 1313 (9th Cir.1981) (construing 28 U.S.C. § 1442(a)(3)). Justice Marshall, writing for a near-unanimous Court, agreed that "the removal statute is an incident of federal supremacy...." Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 1815, 23 L.Ed.2d 396 (1969) (discussing section 1442(a)(1)). Therefore, it should not be read in a "narrow" or "limited" manner, id. at 406, 89 S.Ct. at 1815 (quoting Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 637, 76 L.Ed. 1253 (1932)), nor should the policy underlying it "be frustrated by a narrow, grudging interpretation...." Id. at 407, 89 S.Ct. at 1816. These principles, we think, are fully dispositive of the jurisdictional issue in this case. Only the most crabbed reading of section 1442(a)(1) could call the appropriateness of removal into question here. We refuse to interpret the statute in so unrealistic a way.
IV. APPLICABILITY OF TITLE III
The crown jewel in appellants' diadem is the argument that Title III is "locally inapplicable" within the purview of the Federal Relations Act, 48 U.S.C. § 734. Appellants point to an impressive collection of local connections: the wiretaps (1) occurred in Puerto Rico; (2) involved residents of Puerto Rico; (3) were facilitated by defendants — two quasi-public Commonwealth corporations and various "public servants," that is, individuals employed by PRTC and ATPR; and (4) implicate an area of the law — wiretapping — wherein the Commonwealth has unblinkingly declared its strong interest and announced an explicitly prohibitory policy, see supra Part II(C). Yet the argument conveys too little and arrives too late.
It is beyond cavil that Title III purports to displace conflicting state and local laws vis-a-vis wiretapping. 18 U.S.C. § 2511(2)(a)(ii) specifically provides that "[n]o cause of action shall lie in any court" against those who assist in the performance of a federal intercept. We have held — squarely and recently — that Title III applies in Puerto Rico with the same force and effect as in any of the fifty states. United States v. Quinones, 758 F.2d 40, 41-43 (1st Cir.1985); accord United States v. Gerena, 649 F.Supp. 1183, 1186-87 (D.Conn.1986); United States v. Perez, 465 F.Supp. 1284, 1285-86 (D.P.R.1979); cf. 18 U.S.C. § 2510(3) ("State" as used in Title III includes Puerto Rico); 18 U.S.C. § 2511(1)(b)(v) ( Title III's general prohibition extends to persons acting in Puerto Rico). Mindful of the unbroken precedential line of march, we decline appellants' invitation to reenter this thicket.
To be sure, the compact between the federal sovereign and the people of Puerto Rico confers a measure of autonomy on the Commonwealth akin to statehood — but it has never been read to bestow so great a degree of autonomy as to authorize the Commonwealth to escape the burdens of federal laws, not within specifically-excepted areas, see supra note 3, which Congress chooses equally to apply to Puerto Rico when it legislates for the Nation as a whole. The critical datum is not whether the Commonwealth approves of the law, or endorses its goals and values, or has enacted legal or constitutional provisions antithetic to it. What matters is that the terms and stipulations of Title III affect Puerto Rico in exactly the same manner as they affect the fifty states. The impetus for the law — the need to gather intelligence so as to enforce the federal criminal code — is a pervasive one; it is no less acute in the Commonwealth than on the mainland. Given the nature, scope, composition, and thrust of Title III, its use in Puerto Rico is fully consistent with the compact. Compare, e.g., Caribtow Corp. v. OSHRC, 493 F.2d 1064, 1065-68 & nn. 2-10 (1st Cir.) (Occupational Safety and Health Act applicable in Puerto Rico), cert. denied, 419 U.S. 830, 95 S.Ct. 52, 42 L.Ed.2d 55 (1974); Moreno Rios v. United States, 256 F.2d 68, 71-73 (1st Cir.1958) (Narcotic Drug Import and Export Act applicable in Puerto Rico).
Inasmuch as Congress clearly had power to make Title III effective in Puerto Rico, and unmistakably exercised that power, no question remains. The act cannot be regarded as "locally inapplicable." P.R. Const. Art. II, § 10, on the other hand, is utterly inconsistent with, and stands as an obstacle to the due operation of, the federal law. To permit Puerto Rico — or a state, for that matter — so dramatically to undercut the immunity conferred by section 2511(2)(a)(ii) would be to sabotage a vital cog in the machinery of Title III. Accordingly, the federal statute must prevail. See Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 108 S.Ct. 1350, 1353, 99 L.Ed.2d 582 (1988) (despite Puerto Rico's "unique status in our federal system ... the test for federal pre-emption of the law of Puerto Rico ... is the same as ... for pre-emption of the law of a State").
V. ELIGIBILITY FOR PROTECTION
Plaintiffs next say that even if Title III has effect within the Commonwealth, PRTC is not a "communication common carrier" under 18 U.S.C. § 2511(2)(a)(ii), quoted supra Part II(B), and thus appellees cannot claim immunity from civil suits. The dialectic, we concede, is an ingenious one — but once placed in proper perspective, it withers. We set the stage.
When the intercepts in question were performed, section 2511(2)(a)(ii) specifically mentioned "communication common carriers," ascribing to that term "the same meaning which is given the term `common carrier' by [the Communications Act, 47 U.S.C. § 153(h) ]." 18 U.S.C. § 2510(10).
We see no need to pass upon the district court's conceptualization or otherwise to address appellees' asseveration that a "connecting carrier" is indeed a "common carrier" within the ambit of Title III. We avail ourselves instead of an independently sufficient ground which has the same practical effect. Our ability to chart our own course in this fashion is indisputable. See Freeman v. Package Machinery Co., 865 F.2d 1331, 1349 (1st Cir.1988) (appellate court "not wed to ... trial court's reasoning" but free to affirm on alternate ground) (listing illustrative First Circuit cases); Pueblo Int'l, 725 F.2d at 825 (similar).
In this case, appellants admit that all of the defendants cooperated in the wiretapping effort pursuant to a federal court order. In the 1984-85 time frame (when the electronic surveillance occurred), section 2511(2)(a)(ii) authorized four categories of helpmeets to assist the implementation of court-ordered wiretaps: (1) "communication common carriers," and the "officers, employees, or agents" of such carriers; (2) "landlords"; (3) "custodians"; and (4) "other persons." The statute bestowed immunity upon all four groups. It is the fourth category which, we think, draws the grease from the goose. Title III has consistently defined the word "person" to include artificial persons (corporations) as well as individuals. 18 U.S.C. § 2510(6). Thus, nothing turns on whether or not PRTC is a "communication common carrier": if PRTC qualifies, then it, and the individual defendants as its "officers, employees, or agents," are immune from plaintiffs' action; if not, the defendants are nonetheless "other persons" within the catchall category of the statute, ergo, immune.
Not only does this reading of section 2511(2)(a)(ii) track the unambiguous language of the statute, but it comports with the discoverable intendment of the Congress. Title III's "other persons" exemption was crafted by the Foreign Intelligence Surveillance Act of 1978, Pub.L. No. 95-511, § 201(a), 92 Stat. 1796-1797. Prior thereto, the exemption was much more exiguous: "It shall not be unlawful ... for any officer, employee, or agent of any communication common carrier to provide information, facilities, or technical assistance" to law enforcement personnel engaged in court-sanctioned wiretapping. 18 U.S.C. § 2511(2)(a)(ii) (1976). In gauging the significance of the broadened language, we find the legislative history of the 1978 amendments to be revealing. The revision was designed to "include `landlords, custodians, or other persons' in the authorization," require the government to deliver a copy of the judge's order to the assister, and "relieve such person from all civil liability for actions in conformance with the court order...." H.R.Rep. 1283, 95th Cong., 2d Sess. 98-99 (1978). The Conference Committee report on the final version of the bill explained that the conferees had adopted the House provision so as to "afford[ ] civil immunity to any person who provides such assistance in accordance with a court order...." H.R.Conf.Rep. No. 1720, 95th Cong., 2d Sess. 35, reprinted in 1978 U.S.Code Cong. & Admin.News 3904, 4048, 4064 (emphasis supplied). We can conceive no plausible reason why Congress would have wanted to exclude connecting
In sum, then, three things coalesce: the language of section 2511(2)(a)(ii), as it read at the times material to our inquiry, the discernible intent of the Congress, and simple logic. All conduce to the view that the catchall "other persons" classification sweeps broadly. So construed, it plainly extends to appellees, irrespective of PRTC's "common carrier" status. In the matter of an assister's immunity under Title III, all roads lead to Rome.
Twice during the proceedings below, plaintiffs moved pursuant to 28 U.S.C. § 455(a) to excuse Chief Judge Perez-Gimenez.
We need not tarry in these precincts. Here, the judge performed no factfinding and exercised no discretion. He determined as a matter of law that plaintiffs' complaint was insufficient. A court of appeals reviews such determinations de novo. Since we have independently confirmed the correctness of the lower court's decision, see supra Parts III-V, the judge's refusal to recuse himself was, at worst, harmless error. Therefore, the matter of disqualification is moot. Cf. Fed.R.Civ.P. 61 (court "must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties"). Lest there linger any question, however, we explain why there was no error at all. Recusal was not exigible.
The test for disqualification under section 455(a) is straightforward: "whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant ..., but rather in the mind of the reasonable man." United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). We examine plaintiffs' three accusations through this prism, mindful that our oversight of a recusal motion's denial is limited to a search for abuse of discretion. See United States v. Giorgi, 840 F.2d 1022, 1034 (1st Cir.1988); United States v. Parrilla Bonilla, 626 F.2d 177, 179 (1st Cir.1980); Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir.1979).
1. The mere fact that Judge Perez-Gimenez authorized some (or all) of the underlying intercepts, and had some familiarity with their subject matter, did not compel disqualification. Our system of justice does not require that judges be empty vessels, wholly ignorant of all of the antecedents of a case. See, e.g., In re Cooper, 821 F.2d 833, 844 (1st Cir.1987) (per curiam); In re M. Ibrahim Khan, P.S.C., 751 F.2d 162, 165 (6th Cir.1984); United States v. Mirkin, 649 F.2d 78, 82 (1st Cir.1981);
2. The charges made against the judge in the course of appellants' attempt to bar the prosecutor from using wiretap evidence are likewise insufficient to mandate disqualification. We have read the record carefully. The accusations were serious ones, delivered in a highly charged atmosphere and in colorful language. But a party cannot expect to jettison an unwanted judge merely by calling him names, loudly and in public, see, e.g., United States v. Bray, 546 F.2d 851, 858 (10th Cir.1976) ("The mere fact that a [party] has made derogatory remarks about a judge is insufficient to convince a sane and reasonable mind that the attacked judge is biased or prejudiced...."); and furthermore, "[a] judge lives in an atmosphere of strife, in which, by nature and experience, he is expected to be a man of `fortitude.'" In re Union Leader Corp., 292 F.2d 381, 389 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961) (quoting Pennekamp v. Florida, 328 U.S. 331, 349, 66 S.Ct. 1029, 1038, 90 L.Ed. 1295 (1946)). It behooves the courts to exercise due restraint before making the hurling of epithets a rewarding sport for litigants. In this case, we do not think section 455(a) required the judge to yield in the face of plaintiffs' uncomplimentary appraisal of him.
3. Appellants, who would prefer a relationship between Puerto Rico and the federal sovereign other than statehood, say that an appearance of bias was produced by one or more pro-statehood speeches given publicly by the judge. But the question of statehood has no bearing on this case; it is the relationship that exists — Puerto Rico's status as a commonwealth under the compact and the Federal Relations Act — not the one that might exist in the future, which informs the applicable rule of law. Our judicial system would be paralyzed if judges were disqualified from deciding cases because of views about, or differences over, abstract policy issues. The judge's views on Puerto Rico's future were, therefore, irrelevant to the case and to the matter of recusal. See, e.g., United States v. Norton, 700 F.2d 1072, 1076 (6th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983) (judge's expressed opposition to racism of Ku Klux Klan and Nazi Party does not necessitate disqualification notwithstanding that defendants are members of such groups); Rosquist v. Soo Line R.R., 692 F.2d 1107, 1112 (7th Cir.1982) (judge's earlier writings on contingent fees do not preclude involvement
4. Appellants make one final pitch: they tell us that, even if items 1-3, taken severally, were insufficient to necessitate recusal, in the aggregate they compelled such a result. In this case, however, we can discern no such synergistic effect. Here, the whole is not greater than the sum of the parts. In combination, plaintiffs' points do not swell in importance. On the overall record, nothing required the judge to disqualify himself.
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