Diaz-Carrasquillo v. Garcia-Padilla ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2277
IVÁN DÍAZ-CARRASQUILLO,
Plaintiff, Appellee,
v.
ALEJANDRO GARCÍA-PADILLA,
as Governor of the Commonwealth of Puerto Rico,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Howard and Thompson,
Circuit Judges.
Margarita Mercado-Echegaray, Solicitor General, with whom
Tanaira Padilla-Rodríguez, Deputy Solicitor General, were on brief,
for appellant.
Jean Philip Gauthier Iñesta, with whom Jean Philip Gauthier
Law Office was on brief, for appellee.
April 16, 2014
HOWARD, Circuit Judge. This is an interlocutory appeal
from a preliminary injunction issued in favor of plaintiff Iván
Díaz-Carrasquillo, who sued the Governor of Puerto Rico and other
officials for attempting to oust him from his job as the Advocate
for Persons with Disabilities in August 2013. The defendants argue
that Díaz's job was abolished by a legislative act. After review
of the record and the relevant laws, we find that the injunction
was improvidently granted and vacate the district court's order.1
I. Background
In 1985, the Puerto Rico Legislature passed Law 2,
creating the Office of the Ombudsman for Persons with Disabilities.
The Ombudsman was declared the "director or first executive
officer" of the Office. The Governor appointed the Ombudsman, set
his salary, and could terminate him at will. Law 2 was amended by
Act 9 of 2002, noting that the Ombudsman, while still appointed by
the Governor (with the Senate’s advice and consent), would serve a
ten-year term so as "not to be subject to the changes of public
Administration that occur as part of the electoral process every
four years."
In June 2011, the Legislature passed Reorganization Plan
1, which subsequently was signed into law by Governor Fortuño. The
1
Defendants have filed two motions for a stay of the district
court's order during the pendency of this appeal. We denied the
first, without prejudice. The second, currently pending, is mooted
by this decision.
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Plan repealed 1985 Law 2 and created an umbrella Administration for
Advocate Offices under which were four "Advocates Offices" -–
Disabilities, Health, Retirees and the Elderly, and Veterans. The
Disabilities Advocate was appointed by the Governor with Senate
advice and consent for a ten-year term, and could be removed only
for malfeasance in office as determined by the Governor after
notice and hearing.
Governor Fortuño appointed Díaz to the position of
Disabilities Advocate on November 15, 2011.2 There is nothing in
the record to suggest that Díaz's performance was unsatisfactory in
any way.
Defendant García was elected Governor in November 2012.
In July 2013, Act 75 was enacted into law.3 This Act –- which
contained a lengthy preamble explaining why the Reorganization Plan
was a failure –- repealed the Reorganization Plan. On the same
day, Act 78 again established an Office of the Ombudsman for
Persons with Disabilities of the Commonwealth of Puerto Rico. The
Governor was given the power to appoint the Ombudsman to a ten-year
term, removable upon notice and hearing for negligence in office.
2
The statute gives the title as "Advocate for Persons With
Disabilities." The parties use the term "advocate" and "ombudsman"
interchangeably. We use the term found in the law applicable to
the various time periods relevant to this case.
3
Fortuño and García are members of opposing political parties.
Much of Díaz's brief is focused on the political motives behind the
various pieces of legislation at issue. We do not find these
alleged motives germane to the issues before us.
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Of note in Act 78 are Articles 19 and 20, which contain
the following:
Article 19
From the entry into force of this Act,
all documents, records, materials and
equipment and the funds allocated to the
Office of Ombudsman for Persons with
Disabilities under Reorganization Plan No.
1-20114 shall be transferred to the Office of
the Ombudsman of Persons with Disabilities of
Puerto Rico, created under this Act.
Similarly, any state or federal funds received
by the Office from the agencies which are used
for the services offered by this Office shall
be reversed and shall be transferred to this
Office through the accounts in the Department
of Treasury and the OMB, as applicable.
Article 20
Human Capital, Delegation of
Functions, and Retirement of
Officers and Employees
(a) The employees of the Office of the
Ombudsman for Persons with Disabilities
created under Reorganization Plan No. 1-2011,
shall be transferred to the Office of the
Ombudsman for Persons with Disabilities,
created under this Act.
(b) The human capital of the Office of
the Ombudsman for Persons with Disabilities of
Puerto Rico, created under this Act shall be
under the application of Act No. 184-2004, as
amended, known as the "Administration of Human
Resources in the Public Service Act of the
Commonwealth of Puerto Rico".
4
Both Article 19 and Article 20 of Act 78 use the term
"Ombudsman" for the position that the Reorganization Plan created
with the title "Advocate." See also, supra note 2.
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(c) Transferred employees shall retain
all vested rights in accordance with the laws,
rules, regulations and collective bargaining
agreements applicable to them, as well as the
privileges, obligations and status with
respect to any existing pension, retirement or
savings and loan fund system established by
law, which were undertaken before the adoption
of this law. Employees with regular status
shall maintain that status.
. . . .
On August 28, 2013, Díaz was informed that, pursuant to
Acts 75 and 78, an Acting Ombudsman for Persons with Disabilities
had been appointed and that, pursuant to the same Acts, his
position – Advocate – had been abolished. (The letter from the
Governor referred to his position as "former Office of Ombudsman").
This suit followed.
II. District Court Proceedings
On August 28, 2013, Díaz filed suit against Governor
García and others. He sought declaratory, monetary and injunctive
relief based on three causes of action: 1) political
discrimination in violation of 42 U.S.C. § 1983; 2) lack of due
process in terminating him from a job in which he held a property
right; and 3) negligence under Puerto Rico Article 1802. At
roughly the same time, Díaz filed an "Urgent Motion Seeking
Temporary Restraining Order and Injunction." After a series of
orders, the district court dismissed the claims for monetary
damages. On September 26, the district court granted the
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restraining order.5 The court did not reach the issue of whether
the Legislature had abolished the plaintiff's job, and thus never
reached defendants' central argument that the plaintiff was asking
the court to interfere with the responsibility of the executive
branch to execute validly enacted legislation. Instead, citing
Humphrey's Ex'r v. United States, 295 U.S. 602 (1935), and Morrison
v. Olson, 487 U.S. 654 (1988), the district court framed the issue
as a "removal of a political appointee," and found that because
Díaz's position was "quasi-judicial," he could only be terminated
for cause and after a hearing.
The defense -- responding to the district court's tack,
but not abandoning its thesis that the position had been abolished
-- relied principally on Gómez v. Negrón Fernández, 65 P.R.R. 286
(1945), which held that the Legislature has the virtually
unfettered power to abolish a position with the holder of the "old"
job not entitled to the new one.
In considering the request for an injunction, the
district court was tasked with determining: 1) the movant's
likelihood of success on the merits; 2) whether and to what extent
the movant would suffer irreparable harm if the request were
rejected; 3) the balance of hardships between the parties; and 4)
any effect that the injunction or its denial would have on the
5
The court issued an order that day and two subsequent amended
orders.
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public interest. Corporate Techs., Inc. v. Harnett, 731 F.3d 6, 9
(1st Cir. 2013). Despite expressing uncertainty as to the status of
Puerto Rico law, the court ultimately found that Díaz had
demonstrated a likelihood of success on the merits by showing that
"in many ways his job functions are quasi-judicial," mostly akin to
the power of administrative law judges to enforce disability laws
and penalize violators. The court found irrevocable harm in the
fact that, in the absence of an injunction, the plaintiff would be
removed from his job. In balancing hardships, the court ruled that
the defendants showed no reason why keeping Díaz in the job would
be a hardship when compared to his removal. Finally, the court
observed that maintaining the status quo was in the public
interest. It also certified to the Puerto Rico Supreme Court the
question of whether to classify Díaz's job as quasi-judicial or
quasi-executive, explaining that it "harbors serious reservations
about the state of Puerto Rico law."
III. Analysis
Our review of the district court's decision to grant the
injunction is somewhat circumscribed. "'[W]e scrutinize abstract
legal matters de novo, findings of fact for clear error, and
judgment calls with considerable deference to the trier.'" Id. at
10 (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287
F.3d 1, 9 (1st Cir. 2002)). That said, our deference is not
without limits. For example, a material error of law ineluctably
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constitutes an abuse of discretion. Id. We also will find an
abuse of discretion if the district court ignores a material factor
deserving significant weight, relies on an improper factor, or
makes a serious mistake in weighing relevant factors. Id.
Here, we find that the district court ignored a material
factor deserving significant weight -- indeed the central thesis of
appellant's argument. That is, the plaintiff's position as
Advocate for Persons with Disabilities was abolished in 2013 when
Law 75 explicitly repealed Reorganization Plan 1 of 2011 and Law 78
created the Office of Ombudsman for Persons with Disabilities. As
such, we further find that the court erred in finding that Díaz had
demonstrated a likelihood of success on the merits, the "sine qua
non of th[e] four-part inquiry." New Comm Wireless Servs., Inc..
287 F.3d at 9.
Díaz does not argue that the Legislature lacked the
power to abolish his Advocate position. Instead, he disputes the
existence of that historical fact. Specifically, he claims that
the legislative history does not evince an intent to eliminate
Díaz's Advocate position and that Law 78 does not explicitly
provide for his removal.6 While perhaps accurate, this argument
misses the point. Article 75, after providing numerous reasons for
6
Appellant's brief quotes the 2013 statutes as purportedly
stating a goal to "create once again the Office for the Ombudsman
. . . ." (emphasis ours). We cannot locate the underlined
language in either Law 75 or Law 78.
-8-
doing so, unambiguously repealed the very Reorganization Plan which
created Díaz's job. In so doing, the Legislature abolished the
position of Advocate. See Lewis v. United States, 244 U.S. 134,
144 (1917) (holding that Congressional repeal of an act creating an
office "had the effect to abolish it"); Brame v. United States, 10
Cl. Ct. 252, 255 (1986) (same) (citing Abt v. United States, 146
Ct. Cl. 205, 210 (1959)), aff'd, 818 F.2d 876 (Fed. Cir. 1987).
Repeal is an act unquestionably within the ken of the Puerto Rico
Legislature and thus is fatal to Díaz's legal position. See
Higginbotham v. Baton Rouge, 306 U.S. 535, 538 (1939) (holding that
state legislature may "at pleasure create or abolish" public
offices); see also Bastian v. Kennedy, 829 F.2d 1, 2 (1st Cir.
1987) (affirming state legislature "exercising its power to abolish
nonconsitutional offices"); see also Gómez, 65 P.R.R. at 291-92
(same).
While the legislature's power is bounded by the state and
federal constitutions, see Newton v. Mahoning Cnty. Comm'rs, 100
U.S. 548, 559 (1879), there is no viable claim here that the
abolition of the Advocate Office independently violated some
constitutional proscription. Díaz asserts a retroactivity
argument, citing Puerto Rico law for the proposition that later
legislation cannot take away previously acquired rights. But
again, while that may an accurate statement of the law, it is
misplaced here. Díaz had no property interest, i.e., no "right,"
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in the Advocate position. See Gómez, 65 P.R.R. at 293 (noting that
plaintiff had "no contractual right or property interest in
accepting an office created by the Legislature").7 Moreover, even
if he could identify a valid property interest created by Puerto
Rico law, "the legislative process itself provide[d] [him] with all
of the 'process' [he] was 'due.'" Correa-Ruiz v. Fortuño, 573 F.3d
1, 14-15 (1st Cir. 2009) (quoting Gattis v. Gravett, 806 F.2d 778,
781 (8th Cir. 1986) (citing Atkins v. Parker, 472 U.S. 115, 131
(1985))).
Díaz's final argument fares no better. In fact, it
undermines his position. He asserts that the fact that Article 20
of Law 78 contains "saving" provisions that transfer all Advocate
Office personnel to the newly-created Ombudsman office (except
Díaz) somehow establishes that his former position was
not abolished. We find the opposite to be true. Pursuant to the
statutory maxim expressio unius est exclusio alterius, the
Legislature's exclusion of the Advocate's position from the
affirmative listing of those "saved" implies that Díaz's position
was not saved. See Sunshine Dev., Inc., v. F.D.I.C., 33 F.3d 106,
116-17 (1st Cir. 1994) (observing that under the same maxim, a
7
Díaz's cited cases regarding property rights in government
employment also miss the mark. He cites no case that addresses a
position, such as the Advocate, created and abolished by the
legislature. Meanwhile, Díaz makes no real effort to distinguish
Gómez. Instead he seeks to elide its clear holding by maintaining
that Article 75 did not abolish his office, a position we have
already rejected.
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legislature's affirmative description of certain powers or
exemptions implies denial of nondescribed powers or exemptions);
see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)
(clarifying that maxim has force "only when the items expressed are
members of an associated group or series, justifying the inference
that items not mentioned were excluded by deliberate choice, not
inadvertence" (internal quotation marks omitted)). So it is here.
By excluding Díaz from the "saved" list, the Legislature indicated
its intent not to save him.8
IV. Conclusion
Ultimately, by claiming that it is unconstitutional for
Puerto Rico to abolish the Advocate position without an
individualized hearing, Díaz is asking the federal court to
constrain the Puerto Rico Legislature's ability to restructure its
workforce. "Our Constitution, however, embodies no such federal
constraint . . . ." Mandel v. Allen, 81 F.3d 478, 482 (4th Cir.
1996). "[I]n every perfect or competent government, there must
exist a general power to enact and to repeal laws; and to create
and change or discontinue, the agents designated for the execution
8
Díaz has directed us to cases involving two other displaced
Advocates in which the respective judges, one federal and one of
the Commonwealth Court of First Instance, enjoined the government.
See Montañez Allman v. García-Padilla, Civ. No. 13-1683(PG), 2013
WL 5719153 (D.P.R. Oct. 18, 2013) and Mellado López v. García-
Padilla, Civ. No. K PE2013-4143, Certified Translation MC-2013-454
(First Instance Court, Oct. 30. 2013). With due respect to the
esteemed judges in both cases, we are neither bound nor persuaded
by their reasoning.
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of those laws." Butler v. Pennsylvania, 51 U.S. 402, 416-17
(1850). Accordingly, we vacate the injunction entered by the
district court and remand this case for any further action not
inconsistent with this decision.
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