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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1961 <br> <br>                  HILDA ORTIZ-FELICIANO, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                 PEDRO A. TOLEDO-DAVILA, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Perez-Gimenez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Boudin, Circuit Judge, <br>                                 <br>                 Bownes, Senior Circuit Judge, <br>                                 <br>                   and Lynch, Circuit Judge. <br>                                 <br>                                 <br> <br> <br>     Santiago Mari Roca on brief for appellants. <br>     Osvaldo H. Puig-Hernandez and Smith & Nevares on brief for <br>defendant, appellee Jos A. Fuentes-Agostini. <br> <br> <br> <br> <br> <br>April 16, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>  BOUDIN, Circuit Judge.  In December 1994, the plaintiffs, <br>all residents of Lajas, Puerto Rico, filed this civil action in the  <br>district court asserting claims under 42 U.S.C.  1983.  Two of the <br>plaintiffs are sisters and the gist of the complaint was that they <br>had been wrongfully arrested at the apartment of one of the two; <br>the co-plaintiffs were the husband of one of the sisters and the <br>children of the other.  The defendants were all individual police <br>officers who participated in the arrests or were allegedly <br>responsible for supervision of the officers directly involved. <br>  Although Puerto Rico itself was not named as a defendant, <br>its Secretary of Justice provided legal counsel for the defendants, <br>as permitted by Puerto Rico law.  See P.R. Laws Ann. tit. 32,  <br>3085-87.  Following a trial in 1996, the jury found six of the <br>seven defendants liable for violating the civil rights of the <br>plaintiffs,  and awarded compensatory damages to each plaintiff <br>(the range was $1,000 to $14,000).  The jury also awarded punitive <br>damages to each plaintiff ($1,000 to one and $2,000 to the other <br>four), finding that the defendants' conduct was shocking and <br>offensive to the conscience. <br>  The judgment awarding $43,000 was entered in August 1996.  <br> In January 1997, the district judge added $27,000 in attorney's <br>fees.  In March 1997, the Secretary of Justice notified the six <br>defendants held liable by the jury that they would not be <br>indemnified by Puerto Rico for the judgment against them.   Puerto <br>Rico law permits the Secretary to indemnify for judgments but <br>specifically excludes cases "when inexcusable neglect intervenes."  <br>P.R. Laws Ann. tit. 32,  3088(c). The Secretary said that the <br>jury's determination showed lack of good faith and inexcusable <br>negligence on the part of the defendants. <br>  An administrative proceeding then ensued, apparently <br>brought by the defendants to contest this ruling.  After a hearing, <br>the Secretary again concluded that the defendants were not entitled <br>to indemnification under the statute and applicable regulations.  <br>Although it appears that the Secretary's ruling is subject to <br>review in the local courts, there is no indication as to whether <br>the defendants sought review.  What is clear is that they did not <br>pay the judgment in the present case. <br>  Although Puerto Rico was not a party to the section 1983 <br>action, the plaintiffs nevertheless filed a motion in this case in <br>February 1998, requesting the district court to order the Secretary <br>of Justice to satisfy the judgment against the individual <br>defendants.  The plaintiffs' theory was that the Secretary was <br>obliged to indemnify the defendants and that plaintiffs were <br>entitled to the benefit of these payments.  As authority for the <br>district court to address the issue, plaintiffs relied upon the All <br>Writs Act, 28 U.S.C.  1651. <br>    The Secretary objected to the motion, asserting that <br>the Eleventh Amendment barred an award of damages against Puerto <br>Rico when it had not consented to be sued.  In an opinion and order <br>entered in June 1998, the district court denied the plaintiffs' <br>motion and dismissed the supplementary proceeding against the <br>Secretary.  The court ruled that the motion was in effect one <br>seeking the payment of funds by the Commonwealth, that the Eleventh <br>Amendment barred such an action in federal court absent waiver, and <br>that none of the events relied on by the plaintiffs constituted <br>such a waiver. <br>  The plaintiffs now appeal and we affirm.  Nothing <br>plaintiffs have said counters the district court's conclusion that <br>the motion in substance seeks a money judgment against the <br>Commonwealth.  This circuit has already decided that the <br>Commonwealth is protected by the Eleventh Amendment to the same <br>extent as any state, and the panel is governed by that ruling.  SeeMetcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 <br>F.2d 935, 939 n.3 (1st Cir. 1993).  Thus, the only question worth <br>discussing is whether there has been a waiver of Eleventh Amendment <br>immunity. <br>  The indemnification provisions of Puerto Rico law <br>certainly do not comprise such a waiver.  Puerto Rico law permits  <br>an official, charged in a civil rights action relating to official <br>duties, to "request" legal representation by the Commonwealth and <br>it permits the Commonwealth "subsequently" to assume payment of any <br>judgment.  P.R. Laws Ann. tit. 32,  3085.  It also provides that <br>the Secretary shall decide in which cases the Commonwealth shall <br>assume representation and "subsequently, after considering the <br>findings of the court or which arise from the evidence presented," <br>whether it is "in order" to pay the judgment.  Id.  3087. <br>  Only limited standards are provided for granting or <br>refusing indemnification, but they go to the merits of the <br>Secretary's decision, which we do not reach.  However, the <br>Eleventh Amendment issue is addressed directly by the section, P.R. <br>Laws Ann. tit. 32,  3085, which permits the request for <br>indemnification in civil rights actions; it says that its <br>provisions "shall not be construed . . .as a waiver of the <br>sovereign immunity of the Commonwealth."  Id.  The only remedy <br>provided for reviewing the refusal of the Secretary to order <br>indemnification is by "petition for review" before "the Superior <br>Court" limited solely to questions of law.  Id.  3087. <br>     There is thus no express waiver of the Eleventh Amendment <br>ban against suit in federal court.  See In re Secretary of Dep't of <br>Crime Control, 7 F.3d 1140, 1144-48 (4th Cir. 1993) (similar <br>statute).  As for implied waiver, it arises only "by such <br>overwhelming implication . . . as [will] leave no room for any <br>other reasonable construction."  Atascadero State Hosp. v. Scanlon, <br>473 U.S. 234, 239-40 (1985) (quoting Edelman v. Jordan, 415 U.S. <br>651, 673 (1974)) (brackets in original).  Consent to suit or review <br>in the Commonwealth's own courts is not enough.  See Great N. Life <br>Ins. Co. v. Read, 322 U.S. 47, 54 (1944).  Indeed, even a state's <br>"general waiver" of sovereign immunity does not remove the bar of <br>the Eleventh Amendment.  Atascadero, 473 U.S. at 241. In such <br>cases, a claim may exist but it would not be enforceable in federal <br>court. <br>     In this case, the acts said to constitute an implied <br>waiver fall pitifully short.  Plaintiffs say that the Secretary <br>provided counsel for the defendants in the jury trial, but the <br>Commonwealth entered no appearance of its own and providing legal <br>aid to another is not a consent to be sued.  Similarly, it does <br>not matter whether the Secretary erred in refusing to indemnify the <br>defendants; even if the Secretary agreed to indemnify them, the <br>Eleventh Amendment would still bar a claim by the plaintiffs <br>against the Commonwealth in federal court. <br>     The plaintiffs urge that the Secretary was required to <br>decide within 30 days of the jury verdict whether to indemnify the <br>defendants, see Regulation 4071, Articulo X(c) (September 8, 1989), <br>and failed to act within that period.  It is not clear that under <br>Puerto Rico law this error, if it occurred, creates an obligation <br>to indemnify that would not otherwise exist.  But in any case the <br>remedy would be a review action by the defendants in the Superior <br>Court.  See P.R. Laws Ann. tit. 32,  3087.  Nothing in the alleged <br>delay implies, let alone clearly states, that Puerto Rico consents <br>to be sued in federal court. <br>     In their brief in this court, the plaintiffs have re- <br>framed their objection to the delay as if the delay were an <br>independent violation of the Constitution.  The argument was <br>seemingly not made in the district court and is therefore waived.  <br>See Equine Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, <br>546 (1st Cir. 1995).  In any case, there is nothing to support the <br>claim that the delay violated the Constitution, see Coniston Corp.v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988) (a <br>violation of state law is not, without more, a denial of due <br>process of law), and, if any claim existed, it would belong to the <br>defendants and not to the plaintiffs.   <br>     Affirmed.</pre>

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