          United States Court of Appeals
                     For the First Circuit


Nos.14-1954
    14-1971

                   FAUSTINO GONZÁLEZ-OYARZUN,

                      Plaintiff, Appellee,

                               v.

         CARIBBEAN CITY BUILDERS, INC.; ME SALVE, INC.;
                      GIB DEVELOPMENT LLC,

                     Defendants, Appellees,

                   COMMONWEALTH OF PUERTO RICO;
               OFFICE OF THE COURTS ADMINISTRATION

                 Interested Parties, Appellants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Kayatta and Barron, Circuit Judges.


     Juan A. Marqués-Díaz and Isabel Torres-Sastre on brief for
appellant, Office of the Courts Administration.
     Margarita Mercado-Echegaray, Solicitor General, Andrés
González-Berdecía, Assistant Solicitor General, and Office of the
Solicitor General, Commonwealth of Puerto Rico on brief for
appellant, Commonwealth of Puerto Rico.
     Enrique J. Mendoza Méndez and Mendoza Law Offices on brief
for appellee, Faustino González-Oyarzun.
     Sergio E. Criado, Correa Acevedo & Abesada Law Offices, Carlos
R. Paula, Jaime E. Picó-Rodríguez and Labor Counsels, LLC on brief
for appellees, Caribbean City Builders, Inc., Me Salve, Inc., and
GIB Development, LLC.


                         August 17, 2015
                 PER   CURIAM.    The     district     court   dismissed   this

employment dispute on the basis of a valid forum selection clause.

It simultaneously issued a declaratory judgment stating that the

Seventh Amendment requires Puerto Rico to provide civil litigants

with a jury trial.           This latter action was in contravention of

binding Supreme Court precedent.                Accordingly, we vacate the

declaratory judgment.

                                         I.

                 Plaintiff-Appellee     Faustino   González-Oyarzun    brought

suit against his employers in the District of Puerto Rico, alleging

violations of the Age Discrimination in Employment Act, 29 U.S.C.

§ 621, and various Puerto Rico statutes.1                The employers timely

moved       to   dismiss   the   complaint;     they   highlighted   González-

Oyarzun's separation agreement which included a forum selection

clause providing exclusive jurisdiction in the Court of First

Instance, San Juan Division.            González-Oyarzun attempted to avoid

dismissal by arguing that since the Commonwealth does not provide

jury trials in civil cases, and since he did not affirmatively

waive his Seventh Amendment right, the forum selection clause was

invalid.



        1The employer-defendants are: Caribbean City Buildings,
Inc., Me Salve, Inc., and GIB Development, LLC. The briefs suggest
a dispute as to whether all of the corporate defendants can be
considered González-Oyarzun's employer.     As that issue has no
bearing on this appeal, we need not resolve it.


                                        - 3 -
          Drawn to González-Oyarzun's argument, the district court

requested supplemental briefing on whether the Seventh Amendment's

jury guarantee applied to the Commonwealth.       It simultaneously

ordered the plaintiff to serve a copy of the complaint and the

court's order, on both the Commonwealth of Puerto Rico and Puerto

Rico's Office of Courts Administration.2

          Ultimately, the district court concluded that the forum

selection clause was valid and thus dismissed the case. Its order,

however, went further.        The court ruled that the Fourteenth

Amendment's   Due   Process     Clause   incorporated   the   Seventh

Amendment's jury trial right.    Thus, in addition to dismissing the

case without prejudice to allow the plaintiff to re-file in the

proper venue, it entered a declaratory judgment stating "that the

Commonwealth of Puerto Rico must afford civil litigants the Seventh

Amendment right to a jury trial."3


     2  Both the Commonwealth of Puerto Rico and the Office of the
Courts Administration contend that the district court lacked
personal jurisdiction over them because the plaintiff never served
either of them with process as required under Fed. R. Civ. P. 4.
However, neither affirmatively argued the service issue until
after the district court rendered its decision. Admittedly, this
delay may have resulted from the confusing manner in which the
district court brought the appellants into the case (i.e., they
appear to have been brought in more as amici than as parties
involved in the case). In any event, the appellants' failure to
timely argue why service was improper limits our ability to
consider that argument now. See Fed. R. Civ. P. 12(b).
     3   The Appellants raise a Tenth and Eleventh amendment
challenge to the declaratory judgment.       The Tenth Amendment
argument goes nowhere since, had the district court's decision
been correct, it would have been doing nothing more than declaring


                                 - 4 -
           The Commonwealth of Puerto Rico and the Office of the

Courts Administration timely appealed; they vigorously challenge

the   declaratory     judgment.     Notably,       González-Oyarzun    did   not

cross-appeal    the    district     court's      conclusion   respecting     the

validity of the forum selection clause, nor did he otherwise appeal

the entry of dismissal.

                                         II.

           We   review     a   district         court's   decision    to   grant

declaratory relief "under a standard slightly more rigorous than

abuse of discretion."      Diaz-Fonseca v. Puerto Rico, 451 F.3d 13,

39 (1st Cir. 2006).      While we are inclined to "cede some deference

to the trier, especially as to findings of fact . . . we will not

hesitate to act upon our independent judgment if it appears that

a mistake has been made."         Id.

           In the context of constitutional questions, our review

of a declaratory judgment is even more searching.               We have noted


that a federal constitutional right is enforceable against the
states. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).
         Meanwhile, the Eleventh Amendment issue is filled with
wrinkles (including questions about whether the government
entities were technically joined as defendants in the suit such
that the Eleventh Amendment would be implicated; whether it was
proper for the court to add the government entities rather than
government officials; and whether the declaratory relief was
proper).   Our circuit law permits us to bypass an Eleventh
Amendment question where the case presents an easily resolved
merits issue, and we choose to do so here. See Parella v. Ret.
Bd. of R.I. Employees' Ret. Sys., 173 F.3d 46, 53-57 (1st Cir.
1999).


                                        - 5 -
that "declaratory judgments concerning the constitutionality of

government conduct will almost always be inappropriate when the .

. . underlying grievance can be remedied for the time being without

gratuitous exploration of . . . constitutional terrain."   El Dia,

Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992).

Indeed, we have warned that "courts should withhold declaratory

relief as a matter of discretion if such redress is unlikely to

palliate, or [is] not needed to palliate, the fancied injury."

Id.; cf. Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112

(1962); Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d

530, 535 (1st Cir. 1995).

          In this case, it is at least arguable that the district

court abused its discretion when it issued a declaratory judgment

on a constitutional issue not directly before it (one, we further

note, that neither party requested).4   In any event, we vacate the

judgment for a different reason: it conflicts with binding Supreme

Court precedent.   The Supreme Court has consistently held that

states are not constitutionally required to provide a jury trial


     4 The plain language of the Declaratory Judgment Act suggests
that a district court can only enter a declaratory judgment when
a party explicitly requests one. See 28 U.S.C. § 2201 (permitting
a declaratory judgment where an "interested party seek[s] such [a]
declaration" and "upon the filing of an appropriate pleading").
We have found no case law addressing that issue nor have the
parties briefed it.    In light of our disposition, we save the
question for another day.




                              - 6 -
in civil cases.      See City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 719 (1999); Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 432 (1996); Wagner Elec. Mfg. Co.

v. Lyndon, 262 U.S. 226, 232 (1923); Chicago, R.I. & P.R. Co. v.

Cole, 251 U.S. 54, 56 (1919); N.Y. Cent. R.R. Co. v. White, 243

U.S. 188, 208 (1917); Minneapolis & St. Louis R.R. Co. v. Bombolis,

241 U.S. 211, 217 (1916); cf. Pearson v. Yewdall, 95 U.S. 294, 296

(1877); Walker v. Sauvinet, 92 U.S. 90, 92-93 (1875). Nor, despite

the district court's insinuation otherwise, did the Supreme Court

expressly overrule that precedent in McDonald v. City of Chicago,

561 U.S. 742 (2010).      See Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this

Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls.")        Indeed,

neither time the McDonald court referenced the Seventh Amendment

did it purport to overrule any prior case.

            The Court first considered the Seventh Amendment issue

in McDonald by benignly stating: "[o]nly a handful of the Bill of

Rights protections remain unincorporated."       McDonald, 561 U.S. at

765.    Admittedly, the footnote attached to that statement remarked

"[o]ur governing decisions regarding . . . the Seventh Amendment's

civil    jury   requirement   long   predate   the   era   of   selective

incorporation."    Id. at 765 n.13.    However, such a purely factual


                                 - 7 -
statement does not compel the conclusion that the precedent is

somehow overruled.

            The Court's second reference to the Seventh Amendment is

perhaps more telling.           In discussing its trend towards a "total

incorporation" theory, it noted that a fundamental right will be

fully   binding     on   the    states     "unless   stare   decisis    counsels

otherwise."       Id. at 784.    The Court inserted a footnote at the end

of that statement, wherein it explicitly referenced the grand jury

clause of the Fifth Amendment and the civil jury requirement of

the Seventh Amendment.           Id. at 784 n.30.          Although the Court

acknowledged a trend of expanding the scope of incorporated rights,

it also clarified -- by referencing the principle of stare decisis

--   that   its    Seventh     Amendment    incorporation     cases    are   still

binding.

            As such, the district court erred in suggesting that

McDonald overruled the prior Seventh Amendment decisions.                    And,

given   those     previous     cases,    the    district   court's    declaratory

judgment was manifestly improper.

                                         III.

            We therefore vacate the portion of the district court's

judgment declaring that the Commonwealth of Puerto Rico must afford

civil litigants a jury trial, and we remand solely for the district

court to enter an amended judgment consistent with this opinion.

Each party shall bear its own costs of appeal.


                                        - 8 -
