Antilles Cement v. Calderon

• Court: Court of Appeals for the First Circuit
• Decided: May 25, 2005
• Docket: 03-2713
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 03-2713 04-1231 04-1232

ANTILLES CEMENT CORPORATION, Plaintiff, Appellee,

v.

ANÍBAL ACEVEDO VILÁ, GOVERNOR OF THE COMMONWEALTH OF PUERTO RICO,* ET AL., Defendants, Appellants.

PUERTO RICAN CEMENT CORPORATION, INC., Intervenor, Appellant.

____________

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

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

Doraliz E. Ortiz-de-Leon, Assistant Solicitor General, with whom Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth Pamias-Velázquez, Deputy Solicitor General, were on brief, for appellants.

__________ *By operation of law, Aníbal Acevedo Vilá, who became the eighth elected governor of Puerto Rico on January 2, 2005, has been substituted for his predecessor in office as a party defendant. See Fed. R. App. P. 43(c)(2). Juan Ramón Cancio, with whom Patricia Ramírez Gelpí, Cancio Covas & Santiago, LLP, Dora L. Monserrate Peñagarícano, Rubén T. Nigaglioni, and Nigaglioni & Ferraiouli Law Offices, PSC were on brief, for intervenor. Lino J. Saldaña for appellee.

May 25, 2005 SELYA, Circuit Judge. In the proceedings below, the

district court declared two statutes enacted by the Puerto Rico

legislature — one requiring the use of Puerto Rican cement in

publicly funded construction projects and the other requiring

special labels for cement manufactured elsewhere — antithetic to

the dormant Foreign Commerce Clause of Article I, section 8 of the

United States Constitution and enjoined their enforcement. The

defendants (government officials sued in their representative

capacities) appeal. They are joined by an intervenor, Puerto Rican

Cement Corporation (PRCC).

Despite the obvious importance of the case, two questions

of statutory interpretation — one critical to the resolution of

these appeals and another of potential significance — were not

addressed below. Perhaps more troublesome, we do not have a fully

developed record to assist us in their resolution. This unfinished

business sends up a red flag: courts should not hurry to resolve

issues of great public import on the basis of incomplete

information. Consequently, we return the case to the district

court for further proceedings consistent with this opinion.

I. THE STATUTORY SCHEME

On July 12, 1985, the Puerto Rico legislature enacted Law

109, codified at 3 P.R. Laws Ann. §§ 927-927h, which, inter alia,

requires the use of "construction materials manufactured in Puerto

Rico" in all construction works financed with public funds. Id. §

-3- 927a. "Public funds" are defined as "funds or guarantees from the

Commonwealth or from the United States Government, and those funds

provided by federal laws for the purposes of revitalizing the

economy." Id. § 927(f).

The scope of the law's application is unclear. The

statute states that in "those cases in which a call for bids is

required for the contracting of a construction work with public

funds," the building specifications must contain a provision

mandating the use of Puerto Rican construction materials. Id. §

927a. This section does not expressly limit the law's scope to

situations in which the Commonwealth, or an agency of the

Commonwealth, is the contracting entity. By contrast, section 927b

provides that the law applies to projects not requiring competitive

bidding when "the Commonwealth contracts a construction work." Id.

§ 927b. The law also applies to situations in which the

Commonwealth undertakes construction to its own behoof. Id. §

927c. The Puerto Rico Supreme Court has never spoken to the scope

of Law 109, nor has it interpreted the relationship among its

various sections.

In all events, the requirements of Law 109 are rendered

inapplicable in two sets of circumstances. First, the law does not

hold with respect to any particular construction material when the

cost associated with the use of local, as opposed to off-island,

material would exceed a certain percentage set by the Puerto Rico

-4- Board of Preference for Government Purchases (Preference Board).

See id. § 927e(a); see also id. §§ 914a-914k. Second, the law does

not apply if indigenous construction materials are not available in

sufficient quantity or quality. Id. § 927e(b).

While the statute covers a myriad of construction

materials, only one — cement — is specifically defined. See id. §

927(d). "Cement manufactured in Puerto Rico" is described as that

cement created from Puerto Rican raw materials, save only for

components not available in industrial quantities from Puerto Rican

sources. Id. The term "cement" as used in the statute encompasses

"cement blocks, pre-mixed concrete, concrete mixed at the site and

mixture for plastering." Id.

The statute not only confers the standard statutory

exemptions upon cement but also allows the use of off-island cement

for up to six months "in a case of force majeure or for causes or

reasons beyond the control of the local factory." Id. This six-

month window may be extended for up to six additional months if the

Preference Board approves. Id.

Law 109's Statement of Motives explains that, at the time

of the law's passage, Puerto Rico was experiencing a severe

recession in the construction industry. See Act of July 12, 1985,

No. 109, 1985 P.R. Laws 378, 379. The cement industry was a

prominent player in the construction market, and it had suffered as

a result. Id. Expressing concern about the loss of high-paying

-5- jobs and the reduction in the tax base accompanying the decline in

the local cement industry, the legislature enacted the law to

provide "greatly needed aid for [its] rehabilitation." Id.

There is a second statute at issue here. On September

17, 2001, the Puerto Rico legislature passed Law 132, requiring,

inter alia, all bags of cement manufactured outside of Puerto Rico

to carry a warning label, in both Spanish and English, stating that

"in accordance with the federal laws (41 U.S.C. sec 10a et seq.)

and the laws of Puerto Rico (§§ 927 et seq. of Title 3), th[is]

cement shall not be used in construction works of the governments

of the United States and of Puerto Rico nor in works financed with

funds from said governments except in the specific cases

established in said laws." 10 P.R. Laws Ann. § 167e(a)(4). Bags

of foreign cement that are not so labeled cannot be sold within the

Commonwealth. Id. § 167e(b). Law 132's Statement of Motives

reiterated that cement is the principal material used in Puerto

Rico construction projects. See Act of Sept. 17, 2001, No. 132,

2001 P.R. Laws 637, 638.

II. TRAVEL OF THE CASE

On April 30, 2002, Antilles Cement Corporation

(Antilles), a Puerto Rico corporation engaged solely in importing

foreign-made cement for distribution in the Commonwealth, brought

suit against the governor of Puerto Rico and other executive branch

-6- officials in their representative capacities.1 The complaint

sought a declaration (i) that Law 109 and Law 132 are

unconstitutional as applied to cement imported from foreign nations

and (ii) that Law 109 is preempted by both the Buy American Act

(BAA), 41 U.S.C. §§ 10a-10d, and section 165 of the Surface

Transportation Assistance Act of 1982 (STAA), Pub. L. No. 97-424,

96 Stat. 2097. The complaint also sought concomitant injunctive

relief.

Before the Commonwealth answered the complaint, Antilles

filed a motion for summary judgment, appending thereto a series of

affidavits and other exhibits. These exhibits included a letter

from the Preference Board noting that there were only two

manufacturers of cement in Puerto Rico (PRCC and ESSROC San Juan,

Inc.). The letter verified that the Preference Board required

indigenous cement to be used in projects subject to Law 109 so long

as it cost no more than 115% of the price of off-island cement.

The Commonwealth asked the court to deny the summary

judgment motion without prejudice on the ground that discovery had

not yet commenced. Subsequently, Antilles abandoned its claim that

1 The other defendants are the Secretary of Justice, the Secretary of Transportation and Public Works, and the Secretary of Consumer Affairs. The current occupants of these offices have been substituted as defendants by operation of law. See Fed. R. App. P. 43(c)(2). For simplicity's sake, we refer to the defendants, collectively, as "the Commonwealth."

-7- the BAA preempted Law 109. At that juncture, the Commonwealth

answered the amended complaint.

On October 16, 2003, the district court rejected the

Commonwealth's request to deny the summary judgment motion pro

forma. See Antilles Cement Corp. v. Calderón, 288 F. Supp. 2d 187,

190-91 (D.P.R. 2003). The court proceeded to decide the merits of

that motion. First, it ruled that Antilles lacked standing to

raise STAA preemption, as that law only proscribes discrimination

against certain domestic construction materials. Id. at 193.

Antilles does not challenge this ruling on appeal. Next, the court

inquired whether Law 109 and/or Law 132 infringed the dormant

Foreign Commerce Clause. Finding that Law 109 discriminated on its

face against foreign commerce, the court concluded that the law was

"virtually per se invalid." Id. at 199 (citing Philadelphia v. New

Jersey, 437 U.S. 617, 624 (1978)). The court deemed the interests

asserted by the Commonwealth — essentially, the economic benefits

accruing to the local economy — far outweighed by the federal

government's interest in "speaking with one voice" with respect to

international trade. Id. Relatedly, the court determined that

although the Commonwealth was acting as a market participant, the

market participant exception was not available to it in a case

which, like this one, involved foreign commerce. Id. at 197.

Finally, the court inquired whether congressional authorization

-8- shielded Law 109 from attack under the dormant Foreign Commerce

Clause and answered that inquiry in the negative. Id. at 199-201.

Based on this reasoning, the court declared Law 109

unconstitutional. Id. at 201. The court simultaneously held Law

132 unconstitutional to the extent that it required labels on bags

of cement that specifically referenced the use restrictions

established by Law 109. Id. at 202. It enjoined enforcement of

both statutes.

The Commonwealth filed a motion to reconsider or, in the

alternative, to alter or amend the judgment. See Fed. R. Civ. P.

59(e). On December 17, 2003, the district court summarily denied

the motion. The next day, PRCC moved to intervene for the purpose

of prosecuting an appeal. See Fed. R. Civ. P. 24. The putative

intervenor asserted that it had an interest protected by Law 109;

that its interest would be threatened should the district court's

judgment withstand review; and that the government defendants would

not adequately represent its interest. On January 15, 2004, the

Commonwealth filed a notice of appeal.2 The following day, the

district court granted PRCC's motion to intervene, whereupon PRCC

filed a notice of appeal in its own right.

2 The Commonwealth originally had filed a premature notice of appeal on November 14, 2003 (No. 03-2713). The new appeal (No. 04- 1231) was intended to supersede that appeal and to encompass the denial of the Rule 59(e) motion. These two appeals and the intervenor's appeal (No. 04-1232) have been consolidated.

-9- In this court, Antilles moved to dismiss PRCC's appeal,

arguing that the Commonwealth's second notice of appeal, filed on

January 15, 2004, divested the district court of jurisdiction over

the motion to intervene. We denied that motion without prejudice

to its renewal before this panel. PRCC has since moved for

intervention at the appellate level.

A federal court of appeals has broad discretion to grant

or deny intervention at the appellate level. See, e.g., Mangual v.

Rotger-Sabat, 317 F.3d 45, 62 (1st Cir. 2003). Since PRCC

satisfies all the criteria for permissive intervention, see Fed. R.

Civ. P. 24(b), we choose to exercise that discretion affirmatively

in this instance. That ruling puts an end to the procedural

contretemps. Having allowed PRCC to intervene in the

Commonwealth's pending appeals, PRCC's own appeal (No. 04-1232)

becomes superfluous.

III. DISCUSSION

This case brings into bold relief the principle that

federal courts ordinarily "should withhold decision on vexing

constitutional questions until consideration of those questions

becomes necessary." Eulitt v. Me. Dep't of Educ., 386 F.3d 344,

350 (1st Cir. 2004) (citing Ala. State Fed'n of Labor v. McAdory,

325 U.S. 450, 461 (1945)); see also Aggarwal v. Ponce Sch. of Med.,

745 F.2d 723, 726 (1st Cir. 1984) ("It has long been a basic tenet

of the federal courts to eschew the decision of cases on

-10- constitutional grounds unless and until all other available avenues

of resolution were exhausted."). It presents a paradigmatic

example of a situation in which constitutional questions have been

answered in advance of the demonstrated necessity for their

decision.

As framed in the lower court and briefed by the parties

on appeal, this litigation centers on novel constitutional

questions concerning the reach of the dormant Foreign Commerce

Clause and the existence vel non of a market participant exception

to that clause. A brief discussion regarding the doctrine is

appropriate.

The Constitution gives Congress the authority "[t]o

regulate Commerce with foreign Nations, and among the several

States." U.S. Const. art. I, § 8, cl. 3. This affirmative grant

of power has a negative aspect, known as the dormant Commerce

Clause. See Grant's Dairy-Me., LLC v. Comm'r of Me. Dep't of

Agric., Food & Rural Res., 232 F.3d 8, 18 (1st Cir. 2000). In

general, the dormant Commerce Clause "prevents state and local

governments from impeding the free flow of goods from one state to

another." Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999). As such, it "prohibits protectionist

state regulation designed to benefit in-state economic interests by

burdening out-of-state competitors." Grant's Dairy, 232 F.3d at

18. The dormant Commerce Clause and its doctrinal accouterments

-11- apply to Puerto Rico as though Puerto Rico were a state. Walgreen

Co. v. Rullan, ___ F.3d ___, ___ (1st Cir. 2005) [No. 03-2542, slip

op. at 9].

Although the language of dormant Commerce Clause

jurisprudence most often concerns interstate commerce, essentially

the same doctrine applies to international commerce. See Barclays

Bank v. Franchise Tax Bd., 512 U.S. 298, 310 & n.9 (1994). This

latter application — which, for ease in reference, we shall deem as

emanating from the dormant Foreign Commerce Clause — is relatively

undeveloped in the Supreme Court's case law. The Court's only

iterations of it have come in situations involving state taxation

of foreign commerce. See, e.g., Barclays Bank, 512 U.S. 298;

Wardair Can. Inc. v. Fla. Dep't of Revenue, 477 U.S. 1 (1986);

Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159 (1983);

Japan Line, Ltd. v. County of L.A., 441 U.S. 434 (1979).

In those cases, the Supreme Court recognized that, with

respect to foreign trade and relations, "the people of the United

States act through a single government with unified and adequate

national power." Japan Line, 441 U.S. at 448 (internal quotation

marks omitted). Consequently, there is a more pressing need for

uniformity in the realm of foreign trade; the government must be

able to "speak with one voice when regulating commercial relations

with foreign governments." Barclays Bank, 512 U.S. at 311

(citation and internal quotation marks omitted). We regard this

-12- concern as equally vivid in non-tax dormant Foreign Commerce Clause

cases. See Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38,

68-69 (1st Cir. 1999), aff'd on other grounds sub nom. Crosby v.

Nat'l Foreign Trade Council, 530 U.S. 363 (2000).

The market participant doctrine complicates this

constitutional algorithm. The Supreme Court has held, in cases

involving domestic commerce, that "if a State is acting as a market

participant, rather than as a market regulator, the dormant

Commerce Clause places no limitation on its activities." S.-Cent.

Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 93 (1984). Under this

elaboration, states have been shielded when engaged in activities

such as purchasing, Hughes v. Alexandria Scrap Corp., 426 U.S. 794,

808-10 (1976), selling commodities produced in a state-owned

facility, Reeves, Inc. v. Stake, 447 U.S. 429, 440 (1980), and

contracting for the construction of public buildings, White v.

Mass. Council of Constr. Employers, Inc., 460 U.S. 204, 205-06,

214-15 (1983). Withal, this shield has relatively modest

dimensions; for example, it does not extend to hybrid

proprietary/regulatory activities that have downstream effects in

a market in which the state is not a participant. See, e.g., S.-

Cent. Timber, 467 U.S. at 84-85 (holding invalid Alaska's practice

of selling state-owned timber with a contractual condition

requiring purchasers partially to process the timber before

shipping it out of state).

-13- It is uncertain whether the market participant doctrine

applies at all in the context of the dormant Foreign Commerce

Clause. The Supreme Court has never breached this frontier,

although it has insinuated that the doctrine, if viable to any

extent in the area of foreign commerce, would have to be more

narrowly configured. See Reeves, 447 U.S. at 437 n.9 ("We have no

occasion to explore the limits imposed on state proprietary actions

by the 'foreign commerce' Clause. . . . We note, however, that

Commerce Clause scrutiny may well be more rigorous when a restraint

on foreign commerce is alleged."). The issue has arisen

sporadically in other courts, and what little case law there is

appears to be in some disarray. Compare, e.g., Bethlehem Steel

Corp. v. Bd. of Comm'rs, 276 Cal. App. 2d 221, 228-29 (1969)

(holding state "Buy American" statute unconstitutional because it

interfered with federal foreign affairs power, emphasizing its

effect on foreign commerce), with, e.g., Trojan Techs., Inc. v.

Pennsylvania, 916 F.2d 903, 910 (3d Cir. 1990) (holding market

participant exception applicable to Foreign Commerce Clause so as

to shield state "Buy American" law); K. S. B. Tech. Sales Corp. v.

North Jersey Dist. Water Supply Comm'n, 381 A.2d 774, 789 (N.J.

1977) (same). This court has taken pains to leave the question

open. See Natsios, 181 F.3d at 65-66.

The district court, perhaps led astray by the parties,

ventured to resolve this case by plunging into this complex and

-14- largely undeveloped area of constitutional law. In doing so,

however, the court failed to consider two antecedent statutory

issues that have the capacity either to eliminate the need for

vexing constitutional adjudication or to narrow the constitutional

question. In our judgment, these issues — one of which concerns

the scope of the BAA and the second of which concerns the proper

interpretation of a key aspect of Law 109 — warrant further

development. In addition, the insights gleaned by a further

examination of the two challenged statutes may have some impact on

the question of their downstream effects — a factor that is

relevant to assessing the potential applicability of the market

participant doctrine.

We turn first to the BAA. Early in the game, Antilles

abandoned its claim that the BAA preempts Law 109.3 See Antilles

Cement, 288 F. Supp. 2d at 190 n.1. The BAA remained in the case,

however, through the Commonwealth's insistence that the BAA,

coupled with Congress's knowing acquiescence in the "Buy American"

statutes adopted by several states, furnished evidence of

congressional authorization for statutes such as Law 109. The

district court brushed aside this argument, stating without

elaboration that the BAA "applies only to contracts with federal

3 Antilles abandoned its claim because of its belief that the BAA did not apply to purchases by the Commonwealth and/or its agencies. Since this opinion calls that premise into question, there is no impediment to the plaintiff's reinstating its preemption argument, should it move to do so in a timely fashion.

-15- agencies, not to contracts involving . . . agencies of the

Commonwealth of Puerto Rico." Id.

The text of the BAA seems to contradict this statement.

It provides that

only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, shall be acquired for public use . . . [unless] sufficient and reasonably available commercial quantities and . . . quality [of American-made goods are not available].

41 U.S.C. § 10a. It further provides, with exceptions not relevant

here, that "[e]very contract for the construction, alteration, or

repair of any public building or public work in the United States"

must contain a clause requiring the "contractor, subcontractors,

material men, or suppliers" to use only American-made goods unless

"the head of the department or independent establishment making the

contract" determines that such usage is impracticable or

unreasonably expensive. Id. § 10b(a). When used in sections 10a

and 10b of the BAA, "[t]he terms 'public use,' 'public building,'

and 'public work' shall mean use by, public building of, and public

work of, the United States, the District of Columbia, Puerto Rico,

American Samoa, the Canal Zone, and the Virgin Islands." Id. §

10c(b) (emphasis supplied). Thus, it is at least arguable that the

BAA applies to public works contracts entered into by the

-16- government of Puerto Rico and requires that Puerto Rico include in

those contracts a clause restricting the use of foreign goods. It

is also arguable that, if so, Puerto Rico is not free to impose

clauses containing restrictions on the use of foreign goods greater

than those imposed by federal law. So viewed, the constitutional

questions might be avoided by construction of the statute.

We have been able to find only one reported case

interpreting the BAA as it pertains to Puerto Rico. See Caribbean

Tubular Corp. v. Fernandez Torrecillas, 67 B.R. 172 (D.P.R. 1986),

vacated on other grounds sub nom. In re Caribbean Tubular Corp.,

813 F.2d 533, 535 (1st Cir. 1987) (per curiam). There, the

district court concluded that the BAA applied four-square to

procurements and purchases of the Commonwealth. Id. at 174. The

court rejected an argument that the statute only covered federal

procurement and purchases within Puerto Rico. Id. at 174-75. The

court also rebuffed an argument that the Federal Relations Act, 48

U.S.C. §§ 731-731e, which authorized self-government for Puerto

Rico, rendered the BAA locally inapplicable. Id. at 175-76.

The language of the BAA is suggestive and that language,

reinforced by the reasoning of the Caribbean Tubular court, gives

us pause. Although we hesitate to say with certainty — after all,

neither side has briefed the issue — both the BAA and Law 109

appear at first blush to forbid the use of foreign construction

materials unless their domestic counterparts are unavailable in

-17- sufficient quantities or qualities. Indeed, the parallels between

the BAA and Law 109 are remarkable. The BAA forbids the use of

foreign materials in public works, but gives "the head of the

department or independent establishment making the contract"

authority to determine when to grant exemptions from that rule

based on impracticability or expense. 41 U.S.C. § 10b(a). Law 109

forbids the use of foreign materials in public works and directs an

independent establishment — now the Preference Board — to authorize

exceptions if domestic goods are unavailable or markedly more

costly. 3 P.R. Laws Ann. § 927e.

Notwithstanding these similarities, there are some

salient differences between Law 109 and the BAA.4 For instance,

the BAA permits the use of foreign goods if it is in the "public

interest," 41 U.S.C. § 10d, and Law 109 does not contain such an

exception. There are also disparities between the BAA and Law 109

as the former has been interpreted in federal regulations. One

such disparity is that the preference for domestic construction

materials in procurement by federal agencies is 6%, see 48 C.F.R.

§ 25.204(b), whereas the Preference Board currently sets the

preference for purposes of Law 109 at 15%. Furthermore, the BAA

4 Among other things, Law 109 goes well beyond the BAA in that it forbids procurement of American cement not manufactured in Puerto Rico. Because Antilles does not contest the lower court's finding, Antilles Cement, 288 F. Supp. 2d at 193, that it lacks standing to challenge the provisions of Law 109 insofar as those provisions apply to American-made cement manufactured off-island, we need not dwell upon this difference.

-18- requires contracts for construction of public buildings to favor

items manufactured in the United States that are "substantially

all" composed from American raw materials. 41 U.S.C. § 10b. The

applicable federal regulation defines "substantially all" as

meaning at least 50%. See 48 C.F.R. § 25.101(a)(2). In

contradistinction, Law 109 seems to require that cement be

manufactured 100% from indigenous (Puerto Rican) raw materials,

save for those indigenous materials that are unavailable in

commercial quantities. See 3 P.R. Laws Ann. § 927(d).

Viewed in this light, one might reasonably question

whether Law 109, in its differential treatment of foreign goods, is

consistent or inconsistent with federal law. This question can be

explored on remand, along with the related questions of whether the

BAA essentially preempts Law 109, see Natsios, 181 F.3d at 73-77,

or whether it represents direct congressional authorization for

that law. See N.Y. State Dairy Foods, Inc. v. Northeast Dairy

Compact Comm'n, 198 F.3d 1, 9 (1st Cir. 1999) (noting that

discriminatory state legislation may be shielded from dormant

Commerce Clause scrutiny if congressional consent is "expressly

stated or made unmistakably clear" (citation and internal quotation

marks omitted)); Houlton Citizens' Coalition, 175 F.3d at 184

(explaining that "[t]he dormant Commerce Clause does not affect

state or local regulations directly authorized by Congress"). If

the final question were to be answered in the affirmative — a

-19- matter on which we take no view — that answer would cast doubt upon

the district court's holding that, in enacting the BAA, "Congress

has given express approval for restrictions on the use of foreign

materials in federally-funded construction projects . . . [but] has

not granted similar approval for laws prohibiting the use of

foreign materials in . . . construction projects [funded by the

Commonwealth of Puerto Rico]." Antilles Cement, 288 F. Supp. 2d at

201. After all, the district court predicated this holding on the

assumption, quite possibly incorrect, that the BAA did not

expressly apply to Puerto Rico.

There is another unanswered question looming here. We

already have mentioned the market participant doctrine. Even were

we to assume that the doctrine applies in this context — a matter

on which we take no view — it is readily evident that determining

whether particular state activity constitutes market participation

would require a clear understanding of what the state is doing.

The record in this case does not furnish the basis for

such an understanding. One problem is that the scope of Law 109 is

unclear. On its face, section 927a does not appear to limit the

law's application to government contracts for construction goods

and services, but, rather, to reach all competitively bid

construction projects subsidized to any extent by either the

Commonwealth or the federal government. Notwithstanding the

breadth of the language contained in section 927a, however,

-20- sections 927b and 927c seem less expansive. Whether the latter two

provisions act to narrow section 927a is an open question.

Without discussing this tension, the district court

assumed that Law 109 was limited to public works projects. See

Antilles Cement, 288 F. Supp. 2d at 189. Based on that assumption,

the court concluded that Puerto Rico was acting as a market

participant with respect to construction goods and services. Id.

at 194. Whatever the lower court may have been told — the record

is silent on the subject — we have been given reason to doubt its

underlying assumption.

At oral argument in this court, we queried the parties as

to whether Law 109 applies to private development projects for

which either the Commonwealth or the federal government provided

some funding (say, a grant to an entrepreneur building housing for

the elderly). The Commonwealth and Antilles, who have agreed on

little else during the currency of this litigation, both asserted

that Law 109 would apply in such situations.5 The intervenor

disagreed, maintaining that the law only applies to public works.

Remarking the obvious — that the Commonwealth would be hard-pressed

to portray itself as a market participant if the statute regulated

private sector construction — we invited supplemental briefing.

5 Antilles's counsel further asserted that, as a result of this law, Antilles had been unable to sell off-island cement products to private developers. There are no facts in the record that either support or contradict that assertion.

-21- The supplemental briefs provide scant assistance.

Antilles elected not to file one. The Commonwealth made a complete

about-face and took the position that Law 109 only applies to

public works. The intervenor remained steadfast in its view,

noting that the title of Law 109 describes it as providing "for the

use of all types of construction materials manufactured in Puerto

Rico in the public works and buildings to be constructed,

reconstructed, preserved or repaired with public funds." 1985 P.R.

Laws at 378. As the title of an act may shed some light on its

meaning, E. Mt. Platform Tennis, Inc. v. Sherwin-Williams Co., 40

F.3d 492, 499 (1st Cir. 1994), this is helpful — but far from

conclusive.

A second obstacle impedes our effort to gauge Law 109's

reach: the record is devoid of any factual evidence of custom,

usage, or administrative practice. While the docket does contain

a translation of the Preference Board's "Guidelines for the

Interpretation and Application of Laws" — a document compiled in

2002 that discusses Law 109 — those guidelines do not purport to be

definitive with respect to the law's scope.6 To add to the

mystery, the local courts have had virtually no occasion to discuss

Law 109. Given this apparent void, evidence of custom, usage, and

6 The most relevant datum contained in the guidelines is a footnote stating that Law 109 "is applicable to government entities . . . and also to contractors and their subcontractors who perform construction work under government contracts" (emphasis supplied).

-22- administrative practice is likely to be useful. The statute is now

almost twenty years old. If the agencies charged with enforcing

its command consistently have interpreted the language one way or

another, that fact may prove to be of considerable assistance in

determining the statute's meaning. See Pharm. Research & Mfrs. of

Am. v. Concannon, 249 F.3d 66, 75 (1st Cir. 2001) (holding that

deference is owed to state agency's interpretation of state law);

Zambrana v. Gonzalez, 145 P.R. Dec. 616, 639 (P.R. 1998) (stating

that "the administrative interpretation given to an act by the

[Commonwealth] agency in charge of enforcing it deserves great

weight and deference").

These issues — the applicability of the BAA to Puerto

Rico, its significance (if any) as a sign of either congressional

authorization for or inconsistency with Law 109, the scope and

proper interpretation of Law 109, and the custom, usage, and

administrative practice that has gone before — are important.

Singly or in combination, they have the potential of allowing a

court to avoid, or at least to frame more precisely, a potentially

difficult constitutional inquiry. Yet, these issues remain virgin

territory. They have not been briefed or argued; they have not

been vetted in the district court; and they have not been the focus

of any discovery.

In the past, we have not shied from remanding cases when

significant questions of fact or law have been insufficiently

-23- considered by the parties or the trial court. See, e.g., Anderson

v. Boston Sch. Comm., 105 F.3d 762, 769 (1st Cir. 1997); In re San

Juan Dupont Plaza Hotel Fire Litig., 45 F.3d 564, 568-69 (1st Cir.

1995); see also 28 U.S.C. § 2106 (stating that appellate courts

"may remand [a] cause and . . . require such further proceedings to

be had as may be just under the circumstances"). This makes good

sense, as the district court is in the best position to develop the

record regarding previously overlooked issues, to examine their

factual foundations, and to explore their legal ramifications. We

elect to follow that salutary praxis here.

We do not limit this disposition to the issues

surrounding Law 109. The lower court's decision to declare Law 132

unconstitutional is inextricably intertwined with, and ostensibly

justified by, its decision anent the constitutionality of Law 109.

See Antilles Cement, 288 F. Supp. 2d at 202 ("As the Court today

has ruled that Law 109 is unconstitutional, Defendants are not

permitted to order that cement bags carry warnings reflecting the

language of Law 109. Therefore, the Court holds that the portions

of . . . Law 132 that impact upon foreign commerce are

unconstitutional under the Foreign Commerce Clause."). We

therefore remand the Law 132 issues as well and direct the district

court to reconsider its ruling with regard thereto in light of the

additional information (factual and legal) that it will glean in

the course of the remand.

-24- IV. CONCLUSION

We need go no further. For the reasons elucidated above,

we remand to the district court for further proceedings consistent

with this opinion. While we vacate the court's declaratory

judgment, we do not vacate the existing injunction at this time.

We believe that the more orderly course is for the district court,

on remand, to consider whether the usual criteria counsel in favor

of preliminarily enjoining enforcement of the statutes pendente

lite. See, e.g., Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,

102 F.3d 12, 15 (1st Cir. 1996) (limning four-part test for

preliminary injunctive relief); Narragansett Indian Tribe v.

Guilbert, 934 F.2d 4, 5 (1st Cir. 1991) (same). The district court

should make that determination within ninety days of the date of

this court's judgment. Cf. Langlois v. Abington Hous. Auth., 207

F.3d 43, 52 (1st Cir. 2000) (remanding but maintaining the status

quo for a limited period of time while affording the parties and

the trial court an opportunity to develop arguments about new

issues not previously addressed in the trial court). We intimate

no view on the outcome of this or any other issue in the case.

Appeal No. 04-1232 is dismissed as moot. The remaining

appeals are terminated and the case remanded to the district court

with instructions as contained herein. All parties shall bear

their own costs. So ordered.

-25-