USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-1409

JUAN A. DAVILA-LOPES,

Plaintiff, Appellant,

v.

JOSE SOLER ZAPATA, ET AL.,

Defendants, Appellees.
____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on April 17, 1997, is

corrected as follows:

Page 2, second paragraph, line 5, change "appellants" to

"appellees."

United States Court of Appeals

For the First Circuit
____________________

No. 96-1409

JUAN A. DAVILA-LOPES,

Plaintiff, Appellant,

v.

JOSE SOLER ZAPATA, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,

____________________
and Stahl, Circuit Judge.
_____________
____________________

Guillermo Ramos Luina for appellant.

_____________________

Sigfredo Rodriguez-Isaac, Assistant Solicitor General, Departm

_________________________
of

Justice, with whom Carlos Lugo Fiol, Solicitor

_________________

Serrano Blasini,
_______________

Assistant Solicitor General,

General, and E
_

were on brief

for

Commonwealth of Puerto Rico.

Eli B. Arroyo
_____________

for appellees

Ausberto Alejandro Benitez, Jose

Dalmasy Montalvo and Edgar Belmonte.

____________________

April 17, 1997

____________________

COFFIN,

Senior Circuit Judge.

_____________________

This

physician from a judgment dismissing his

officials of

initial

a Puerto Rico

application

explanation

or hearing, in

raises the interesting

set

of

entitling

for

procedural

is

courtesy

violation of

created

who rejected

privileges

his

without

hospital by-laws.

question whether the

regulations

by

1983 complaint against

regional hospital

limited

an appeal

It

hospital's detailed

appellant to procedural due process.

property

interest

We conclude that

they did not.

Appellant,

1983, claiming

process

a licensed

that his

was violated

responsible

"Hospital").1

physician, has

constitutional right to

by defendants,

for the operation of

While some

state action was involved,

pursued on appeal,

by

who are

U.S.C.

procedural due

various officials

the Guayama Area Hospital (the

of the appellees argued below

the argument was only very

without citation to

financed

invoked 42

authorities.

the Commonwealth,

its

that no

cursorily

Since

by-laws

the

Hospital

is

were

approved

by the Secretary of Health, and its "Governing Body" or

final decider is the Secretary or his Regional Director, we, like

the

state

district court, shall assume that the

action

is

satisfied.

Appellant

1983 prerequisite of

seeks

declaratory

____________________

There are two groups of defendants-appellees.

One

consists of the present and former Secretary of the Department of

Health of the Commonwealth, Regional Director of the Department
for the Southern Region, and Chief Executive Director of the
Guayama Area Hospital.

The second consists of the three hospital

officials, Dr. Alejandro and two other doctors, who constituted

the Executive Committee which initiated the action complained of.

Our reference to "the Hospital" will embrace the interests of
all.

-3-

judgment, compensatory

and punitive

damages, and

an injunction

giving him his requested hospital privileges.2

Factual Background
__________________

The factual

setting is

the following.

In 1986

appellant

joined the Hospital's regular staff in the Department of Internal

Medicine.

In 1987, after

some history of

difficulties, he was

dismissed from the Medical Faculty of the University charged with

operating the

Appellant

Court.

Hospital

proffered

Hospital, and all his

thereupon

brought

suit in

That court rendered a judgment

acted

on

by the

and

Commonwealth

grounds, citing

Hospital,

ranging from

seeking

to being tardy or not

out

intensive

Superior

on June 7, 1990 that the

ample

rounds when on call,

clinics,

privileges were terminated.

care

some

seven

reasons

appellant not

making

attending outpatient

patients

who

were

insured.

Less than ten

months later,

on April

applied anew for Hospital privileges.

the

University, he

which

was eligible

29, 1991,

appellant

Not having a contract with

for only

Courtesy Privileges,

were reserved for physicians who would not admit more than

____________________

Appellant mentions in his brief a pendent state claim

which he asserts was improperly and inadvertently included in the

dismissal of the complaint.

He asks us, in the event of an

affirmance, to clarify the record to show that the dismissal of

the state claim was for lack of jurisdiction.

We see nothing in

the complaint that rises to the dignity of a state claim.

Although at one point it invokes 28 U.S.C.

1367 (concerning

supplemental jurisdiction), the only reference to state law is

found in the prayer for relief from, inter alia, violation "of
_____ ____
the applicable laws of the Commonwealth of Puerto Rico and
regulations."

This falls far short of identifying any pendent

state claim.

-4-

fifteen

appellant

patients for

faced

hospital

period

of

hospital, as he made repeated

request.

Eventually, on

privileges was

review.

denied

A hearing

of sorts

per

apparent

year.

Thereafter,

by

the

inquiries as to the status of

his

November

by the

which appellant was unable

care

stonewalling

11, 1991,

Regional Director

was held on

his

request for

and he

January 17,

to obtain a statement of

sought

1992, at

reasons for

the

rejection of his request.

notified

that

privileges

the

Shortly thereafter, appellant was

decision

had been

to

ratified.

reject

On

his

application

October 23,

for

1992, appellant

filed his complaint in the present case.

The

By-Laws

of

the

procedurally detailed.

There are five

which the Courtesy Staff is

Associate,

Appointment

Staff

and

Special

of the

Hospital

comprehensive

categories of staff,

one, along with Consulting,

Associate

Courtesy Staff

channels."

are

(Art. VIII,

Staff. (Art.

is "through

Sec.

5)

III,

and

of

Active,

Sec.

2)

regular Medical

After an

applicant

furnishes some fifteen different documents (Art. III, Sec. 3) and

various

releases

subsequent

Chief,

steps

and

authorizations

include a

deliberation

and

written

(Art.

report

recommendation

III,

by the

by

the

Sec.

4),

Department

Executive

Committee,

and, in

the event

of an

adverse

recommendation, a

hearing before a specially convened hearing committee.

Prior to

any hearing, a notice to the practitioner "shall

contain a concise statement of the practitioner's alleged acts or

omissions, including

[patient records]

or the other

reasons or

-5-

subject matter forming the basis for the adverse recommendation."

Provisions governing hearings cover the composition of the panel,

the duties

of the

examining and

exhibits,

the

memoranda.

In

burden

the

on

moderator, allowance for

representation, the

cross examining of witnesses,

the introduction of

making of

hearings on

not

"Denial of

(Item 1,

the filing

body

to show

a "Denial

Article IV,

that

requested clinical

the

or

of initial

page 16

of written

By-Laws place

"arbitrary, irrational

hearings involving

staff status"

and

most issues, the

institutional

recommendation was

But in

a record,

of

adverse

capricious."

appointment to

By-Laws) or

privileges" (Item 7,

will be

the practitioner

who shall

thereafter be

responsible for supporting by evidence his challenge to

the recommendation or action
he

establishes by clear

and shall prevail only if

and convincing

Article IV,

page 17 of By-Laws), the By-Laws provide that

it

the

evidence that

the recommendation or

action was arbitrary, irrational

or capricious. (Page 26 of By-Laws)

Moreover, in hearings relating to these same items,

the evidence presented by the . . . Executive Committee

in

support of

relate

to

its

initial determination

negative

judgments of

regarding information contained

application

or

documentation

request,
to the

and related

by such

acceptable

for

the

may

such

body

references

and

materials, for

body, fail to

granting

. .

practitioner's

effect that such

reasons explained
basis

in the

establish an

application

or

request. Id.
__

Analysis
_________

It

is clear

follow the steps

the

that the

set forth in the By-Laws.

district court,

process

on

process given

relied

the appellant's

for the

knowledge

-6-

to appellant

did not

The appellees, like

notice requirement

of the

1987

of due

charges of

misconduct,

Commonwealth

as

contained

Superior

in

the

Court.

"Findings

This would

foundation in light of the passage of time,

entire absence of

of

seem

Fact"

to be

of the

a shaky

although we note the

any indication given by appellant that changes

in his conduct could be expected.

The critical and

interest

in

threshold question is

being given

courtesy

whether appellant's

privileges

is "grounded

in

substantive legal relationships

or federal rules

of law."3

Board of Regents
________________

v. Roth, 408
____

defined by . . .

As the Supreme

U.S. 564, 577

constitutionally protected interest, one

abstract

need,"

entitlement,"

one

must

have

specific state

Court explained

(1972), to have

where

must have "more than an

"a

legitimate

claim

of

"defined by an existing rule or understanding that

stems from an independent source such as state law . . . ."

example,

in

rules so

defined

welfare

For

eligibility that

an

applicant had a right to a hearing to attempt to demonstrate that

he

was

within the

requirements.

see also
___ ____

statutory

See Goldberg
___ ________

Bishop v. Wood, 426

______
____

427 U.S. 215, (1976).

definition,

this

met the

v. Kelly, 397 U.S. 254,

_____

above

268 (1970);

U.S. 341 (1976); Meachum

_______

v. Fano,
____

Our own

Cir.

opinion in

Lowe v. Scott,
____
_____

959 F.2d 323,

338 (1st

1992), is relied upon by appellant for the proposition that

requirements

of

adequate

hospital privileges

process

can create

in

decisions

a property interest.

"affecting"

Appellant

____________________

Laurence H. Tribe, American Constitutional Law 677 (2d

ed. 1988).

-7-

overreaches.

In

protesting

the

suspension of a staff privilege to supervise nurse midwives.

See
___

id.
__

may create

the

imposing

the

at 325.

property

that

case

plaintiff

When

we

stated that

"[A] state

interest

in

privileges

directly

requirement . . . that all hospitals

process in

was

provide physicians adequate

decisions affecting privileges,"

the context, made clear

by

we were speaking in

by the preceding sentence, of

an action

taking away something that had been enjoyed -- i.e. that a public

hospital

could

guaranteeing that

cause

or

create

property interest

these privileges

a hearing."

Id.
__

at 338

by

will not be

"regulations

revoked without
_______

(emphasis supplied).

meaning was reaffirmed when we subsequently referred to

This

the kind

of

state law that would be applicable

statute

hospital

or

court decision

"requiring

privileges comport

with due

to all hospitals, i.e., a

that

the revocation
__________

process."

of

Id. (emphasis
__

supplied).4

Appellant

privilege was

does not

assert that

taken from him.

any preexisting

Rather, his claim

status or

to a property

interest is based on the detailed procedural rules of the By-Laws

of

the Hospital,

together

with

what

he

asserts

is

such

____________________

Similarly, appellant has sought to overextend Hernandez

_________

v. Asociacion Hosp. del Maestro, 106 P.R. Offic. Trans. 96

_____________________________
(1977).

Appellant cites it for the proposition that actions by

hospitals that "affect" staff privileges must comply with due

process.

But that case involved hospital action in canceling

membership on a hospital's medical staff and summarily suspending

all privileges.

See id. at 101.

___ __

The Puerto Rico Supreme Court

detailed the procedures which were triggered by a suspension or

revocation and concerned itself solely with ascertaining whether
they had been followed.

See id. at 106.

___ __

-8-

stringent

substantive

limitation on

that he has "a legitimate

the

Hospital's discretion

claim of entitlement," citing Laborde________

Garciav. PuertoRico TelephoneCo., 993F.2d 265,267 (1stCir. 1993).

______
_______________________

The

existence

of a

clearly

inadequate

to

property

right.

'careful

procedural

detailed

create

As Professor

characterizes such

structure'

an approach

set of

procedural

constitutionally

Tribe notes, "the

is

not

rules is

protected

existence of a

enough,"

although

as "narrowly formalistic."5

he

In

Hewitt v. Helms, 459 U.S. 460, 471 (1983), the Supreme Court made
______
_____

it

clear that

"a careful

procedural structure,"

without more,

cannot create a constitutionally protected interest, saying

It would be ironic to hold that when a State embarks on

such desirable
door to
that

scrutiny by

choose

entirely

experimentation

not to

avoid

the

it thereby

the federal courts,

opens

the

while States

adopt such

procedural provisions

strictures

of

the

Due

Process

Clause.

The first part of appellant's argument therefore fails.6

This brings us to appellant's last argument, that appellees'

discretion was so limited

that appellant could reasonably expect

to obtain the desired status

Supreme Court

articulated the

if he could present his case.

possibility that

The

where stringent

____________________

Tribe, supra note 3, at 698.

_____

This is not to say that it makes any policy sense to

enact comprehensive rules and then not apply them to those who,
facially, are covered by them.

It may be that appellees feared

another lawsuit if they advanced reasons for their refusing to

grant courtesy privileges to appellant.

Ironically, their

failure to follow their own rules, however, did not avoid another
lawsuit.

But, while state law might command faithful adherence

to an institution's mandatory rules, and result in some remedy or

sanction, violating a procedural rule does not alone accomplish
the creation of a protectible constitutional interest.

-9-

regulations

strictly

procedures

may

give

interest.

See Hewitt,
___ ______

statutes governing

segregation

limit state

rise

459 U.S.

the

limited

to

officials'

placing of

correction

discretion, these

constitutionally

at 472.

In that

prisoners in

officials'

others,"

and

notices,

discretion

a serious threat to the

hearings,

case, state

administrative

situations in which there was "a need for control,"

a serious disturbance, or

protected

investigations,

conditions were the subject of mandatory provisions.

to

"a threat of

individual or

and

release

Id. at 470__

71

n.6.

mandatory

The Court

language

substantive predicates

held that

in

"[T]he repeated use

connection

demands a

with

is

to be

contrasted with

Wakinekona, 461 U.S. 238,

__________

requiring a hearing before

requiring

specific

conclusion that the

created a protected liberty interest."

This

of explicit

State has

Id. at 472.
__

the

situation in

Olim v.
____

249 (1983), where, despite regulations

an interstate transfer of

an inmate,

the Court held that no state-created liberty interest was created

since the regulations did

official discretion."

were

discussed

in

not impose "substantive limitations on

The contours of "substantive

Justice

Connecticut Board of Pardons

______________________________

Brennan's

limitations"

concurring

v. Dumschat,
________

452

opinion

U.S. 458,

in

467

(1971),

cited with approval by the Olim court, as requiring that

____

"particularized

standards" and "objective

and defined criteria"

guide the State's decision makers.

Our own precedents are instructive.

548

F.2d

13,

15

(1st

Cir.

1977),

In Lombardo v. Meachum,
________
_______

despite

prison

transfer

statement

of

purpose,

-10-

regulations

which

contained

rehabilitation,

"with

the

and a

kindness which

conduct merits,"

created

directive to

we

since no

held

their

obedience,

that no

significant

officials to

liberty

treat inmates

industry and

interest

limitations had

had

good

been

been imposed

on

officials' discretion in ordering transfers.

Quite a

different situation was presented in Laborde-Garcia

______________

v. Puerto Rico Telephone Co., 993

___________________________

F.2d 265 (1st Cir.

1993).

telephone employee sought treatment from the State Insurance Fund

within two months

was terminated

after a recent accident.

from her job

more than

twelve months had

See
___

The

id.
__

company argued

See id. at 266.

___ __

because the company

elapsed since

that

She

concluded that

an earlier

reinstatement was

illness.

only

an

expectation

statute

of

reemployment.

required employers

"reinstate" the employee

See id.
___ __

at

to "reserve"

if "no more

267.

However, the

an employee's

job and

than 'twelve months'

"lapse[d] . . . from the date of the accident."

have

Id.
__

Then Chief Judge Breyer, writing for our court, said:

[T]he

workmen's

government's

compensation statute

discretion

Laborde (during

the relevant

provides her with

to that

to

so

narrows the

refuse to

reinstate

Ms.

twelve

months) that

it

a 'legitimate claim of

continued employment.

entitlement'

That is to

say, local

law's narrowing of the employer's discretion

not

to

reinstate

reasonably have
that

local

employed.

With

these

law

means

that

Ms.

believed, and relied

would

to decide

Laborde

could

upon her belief,

likely permit

her

to

in

assess

remain

Id.
__

strictures

mind,

we

whether

the

standards governing the Hospital's extension of privileges are so

particularized,

objective, and

defined,

and

also narrow

the

-11-

Hospital's

discretion

so

significantly that

appellant's position could be

an

applicant

in

reasonably confident that he would

be granted courtesy privileges.

To begin, the

substantive standard set forth in the By-Laws

is that decisions must not be made

capriciously.

Contrary to

arbitrarily, irrationally, or

appellant's argument, these words are

not

synonymous

with "just

headed, based on false

penny-pinching

or

cause."

Decisions could

assumptions, overcautious or overzealous,

open-handed,

and

exhibit a

priorities and yet escape denomination

and capricious.

appellant was

had been

poor

sense

of

as arbitrary, irrational,

Moreover, in cases involving the kind of request

making, the burden of

placed on him.

burden of proof by

decision makers

be wrong-

proving arbitrariness, etc.

Not only that,

but he had

clear and convincing evidence.

were entitled to

arrive at a

the severe

Finally, the

negative judgment

that the materials and information submitted failed "to establish

an acceptable basis for granting the application."

We

minimum

twice

cannot

believe that

bite such

as

words

of

maximum generality

"arbitrary, irrational

and

and

capricious",

and perhaps three times diluted by the shifting of burden,

the

heightening of required proof

provision

for

"acceptable,"

catch-all

suffice to

to carry the

negative

create a

judgment

burden, and the

of

what

was

constitutionally protectible

property right that could serve as the basis for compensatory and

punitive

under

damages.

Administrative

administrative

procedure

officials generally

acts

-12-

to

standard

are held

free

of

arbitrariness,

irrationality, and

Procedure Act, 5 U.S.C.A.

that an

"abstract

See Administrative
___

706(2)(A) (West 1996).

explicit articulation of

need or desire" into

their discretion was not so

caprice.

the same

It cannot be

standard changes

a protectible right.

circumscribed that such an

an

In short,

interest

was created.

Affirmed.
Only the Alejandro appellees are entitled to
____________________________________________________________

costs.7
______

____________________

Normally, a successful appellee is entitled to costs.

this appeal we have found the Commonwealth's brief so unhelpful

In

that we depart from the usual rule.

-13-