Garcia-Gonzalez v. Puig-Morales ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2357
MANUEL A. GARCÍA-GONZÁLEZ,
Plaintiff, Appellant,
v.
JUAN C. PUIG-MORALES,
Defendant, Appellee,
RAMÓN L. CRUZ-COLÓN,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Jorge Martínez-Luciano, with whom Pedro E. Ortiz-Álvarez and
Pedro E. Ortiz-Álvarez, LLC, were on brief for appellant.
Michelle Camacho-Nieves, Assistant Solicitor General,
Department of Justice, with whom Margarita Mercado-Echegaray,
Solicitor General, were on brief for appellee Puig-Morales.
August 1, 2014
TORRUELLA, Circuit Judge. This case involves due process
and political discrimination claims related to the procurement of
public contracts by independent contractors. Plaintiff-Appellant
Manuel A. García-González ("García") alleges First and Fourteenth
Amendment violations and seeks compensatory and punitive damages
under 42 U.S.C. § 1983 over the rescission of a bid award for a
potential, but unexecuted, insurance brokerage contract with the
Puerto Rico government (the "Commonwealth" or the "government").
Defendant-Appellee Juan C. Puig-Morales ("Puig") was Puerto Rico's
Secretary of the Treasury at the time of these events.
The district court granted summary judgment in favor of
Puig on García's Fourteenth Amendment claim, holding that García
had no constitutionally protected property interest in the initial
bid award. Subsequently, the district court also granted Puig's
motion for summary judgment on García's First Amendment claim.
For the reasons set forth below, we affirm the district
court's grant of summary judgment on García's Fourteenth Amendment
due process claim, and we reverse the grant of summary judgment on
his First Amendment claim for political discrimination. We remand
that claim for further proceedings consistent with this opinion.
I. Background
A. Factual Background
Over an eight-year period, from April 28, 2001, through
May 30, 2009, García, a licensed insurance broker, held annual
-2-
contracts with the Puerto Rico Department of the Treasury (the
"Treasury") for the acquisition of insurance policies for various
government agencies. García received sizable commissions for
brokering these insurance contracts.
On October 1, 2008, García entered into a one-year
professional services contract with the Treasury to acquire
insurance policies for the Commonwealth's Public Buildings
Authority, the Americas Port Authority, the Administration of
General Services, and the "Portal del Futuro" Public Corporation.
Pursuant to the agreement signed by García and the Treasury, the
professional services contract could be terminated by either party
upon thirty days' written notice.
García self-identifies as a member of the Popular
Democratic Party ("PDP"). For all but the final five months of the
eight-year period during which García held contracts with the
Treasury, the executive branch of the Puerto Rico government was
controlled by governors from the PDP.
On November 4, 2008, however, the incumbent PDP governor
lost a general election to Luis Fortuño, a gubernatorial candidate
from the opposing New Progressive Party ("NPP"). Governor Fortuño
and his Treasury Secretary, Puig, were both sworn into their new
offices on January 2, 2009.
Less than three months later, in a letter dated March 20,
2009, Puig notified García that his existing brokerage contract --
-3-
which was scheduled to expire on September 30, 2009 -- would
instead be terminated early, with an effective end date of May 30,
2009. The letter further announced that Puig's office would
receive new proposals for insurance brokerage contracts between
March 25, 2009, and April 17, 2009. On March 26, 2009, the
Treasury published a Request for Proposals ("RFP") regarding the
provision of professional services for the acquisition of insurance
policies. The RFP document contained the terms and conditions that
were to govern the adjudication proceedings for selecting insurance
brokers. The RFP provided, among other things, that:
(1) "[t]he Secretary [of the Treasury] fully reserves the
right to revise this RFP, in part or whole";
(2) the Treasury's Agency for Public Insurance ("API")
"reserves the absolute right to reject any or all proposals
submitted and to limit selections to a determined number of all the
best qualified Producer[s] deemed sufficient to handle the amount
of work involved";
(3) "[a]s part of the process," API "will evaluate prior
perform[ance] of the Producer, if any, as well as their
qualifications and experience reflected on their proposals";
(4) the government "will not be liable in any way
whatsoever for any costs or expenses incurred by any person in the
preparation of proposals in response to this RFP, nor for the
-4-
presentation of its proposal and/or participation in any
discussions or negotiations";
(5) the selection of contractors "shall be final, except
for the right of the Secretary and API to terminate any designation
for reasonable cause";
(6) selected providers will be informed "about their
selection and what next steps are to be taken in relation to such
selection";
(7) "[a]fter the evaluation takes place and the Secretary
makes the corresponding decisions, the selected proposals will be
subject to the normal Government's procedural approvals for
professional services contracts";
(8) "[t]he Producer will be compensated with commissions
as stated on the Professional Services Contract"; and
(9) "API retains the right to terminate any contracted
Producer at any time due to unacceptable performance."
García submitted his proposal on April 15, 2009, within
the deadline prescribed by the RFP. His proposal was received by
API on April 17, 2009. On May 15, 2009, the Treasury issued an
"Adjudication Notification" letter to García. The letter informed
him that his proposal was "favorably considered" by the evaluating
board to "continue the process of finalizing the contract," before
he could ultimately sign a professional services contract for the
procurement of insurance policies. The accounts contemplated for
-5-
García's putative contract were for the purchase of insurance
policies for the following governmental instrumentalities: (a) the
Corrections Administration, (b) the Administration of Juvenile
Institutions, (c) the Department of Education, and (d) the Puerto
Rico Technological Institute. These policies accounted for a total
of $7,881,350 in estimated insurance premiums, and García asserts
that the brokerage contract would have yielded him approximately
$450,000 in commissions. The Adjudication Notification requested
that García sign and return it; it further outlined the subsequent
steps for the ultimate execution of a final professional services
contract between the parties.
García proceeded to sign the Adjudication Notification,
accepting all of the adjudicated accounts. On May 18, 2009, the
Treasury received García's timely acceptance of the adjudication,
along with the corresponding documents required prior to the
execution of the brokerage contract, pursuant to the specifications
of the Adjudication Notification. A final contract, however, was
not executed by the parties.
On May 28, 2009, García received a Treasury letter
rescinding the Adjudication Notification, explaining that "[t]he
processes carried out produced countless errors in issuing [his]
letter, as well as other letters that were also issued." The
letter also stated that García would soon receive a corrected
adjudication letter, or that he would be notified of a new date for
-6-
the distribution of corrected letters. No further details were
provided regarding the nature of the "countless errors" or whether
there were procedures available to contest the Treasury's
determinations.
García never received a corrected adjudication letter.
Instead, García was presented with a contract for accounts
different from those that he had been originally awarded. These
new accounts represented significantly lower insurance policy
premiums, and correspondingly, much lower commissions. Under the
proposed new contract, García's expected commissions were around
$15,000 -- between approximately three and four percent of the
expected commissions for the accounts in his original award.
García refused to sign the contract.
B. Procedural History
On May 26, 2010, García filed a complaint against
Treasury Secretary Puig and Ramón L. Cruz-Colón ("Cruz"), who was
then serving as the Insurance Commissioner. The complaint sought
declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for
alleged political discrimination and due process violations.
García also sought compensatory damages under Puerto Rico law.
On February 9, 2011, García filed a motion for partial
summary judgment in connection with his due process claim, alleging
that he had "a legitimate claim of entitlement to the signing of
the relevant contracts" and that he "was entitled to a
-7-
pre-deprivation proceeding before [Puig] materially changed the
terms of the adjudication."
Puig, in turn, opposed García's motion for partial
summary judgment on April 1, 2011, claiming that government
agencies may revoke the award of a contract at any time prior to
its execution. Puig further claimed that García's expectations did
not amount to a vested property interest in the signing of the
brokerage contract, and that the Parratt-Hudson doctrine barred
relief under the Due Process Clause because García could have
availed himself of an adequate post-deprivation remedy, but failed
to do so.1 In his opposition to summary judgment, Puig requested
the dismissal of García's due process claim.
On June 30, 2011, García filed a notice voluntarily
dismissing all claims against Cruz and requesting that those claims
be dismissed with prejudice.
On September 29, 2011, the district court denied García's
Motion for Partial Summary Judgment and granted summary judgment in
favor of Puig on García's Fourteenth Amendment claim. The district
1
The Parratt-Hudson doctrine establishes that "a deprivation of
a constitutionally protected property interest caused by a state
employee's random, unauthorized conduct does not give rise to a
§ 1983 procedural due process claim, unless the State fails to
provide an adequate postdeprivation remedy." Zinermon v. Burch,
494 U.S. 113, 115 (1990) (citing Hudson v. Palmer, 468 U.S. 517
(1984), and Parratt v. Taylor, 451 U.S. 527 (1981), overruled in
part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986));
see also San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687
F.3d 465, 478-81 (1st Cir. 2012) (outlining the Parratt-Hudson
doctrine).
-8-
court further gave Puig sixty days to file a dispositive motion as
to García's First Amendment claim. On September 30, 2011, García
filed a motion for reconsideration, which Puig opposed. On
December 2, 2011, Puig filed a motion for summary judgment as to
García's First Amendment claim.
On September 27, 2012, the district court denied García's
motion for reconsideration and granted Puig's motion for summary
judgment on the First Amendment claim. The district court
dismissed García's federal causes of action with prejudice and
dismissed his claims under Puerto Rico law without prejudice. This
appeal followed.
II. Discussion
We review a district court's grant of summary judgment de
novo, crediting the evidence favorable to the nonmoving party and
drawing all reasonable inferences in favor of the nonmovant. See,
e.g., Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.
451, 456 (1992); Shafmaster v. United States, 707 F.3d 130, 135
(1st Cir. 2013). Summary judgment shall be granted if "the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). "A fact is material if it carries with it the
potential to affect the outcome of the suit under the applicable
law." Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 36
-9-
(1st Cir. 2014) (quoting One Nat'l Bank v. Antonellis, 80 F.3d 606,
608 (1st Cir. 1996)).
A genuine issue of material fact "must be built on a
solid foundation -- a foundation constructed from materials of
evidentiary quality." Nieves-Romero v. United States, 715 F.3d
375, 378 (1st Cir. 2013). "'[C]onclusory allegations, empty
rhetoric, unsupported speculation, or evidence which, in the
aggregate, is less than significantly probative' will not suffice
to ward off a properly supported summary judgment motion." Id.
(alteration in original) (quoting Rogan v. City of Bos., 267 F.3d
24, 27 (1st Cir. 2001)).
A party may assert that a fact can, or cannot, be
genuinely disputed by citing to the presence or absence of facts
found in "materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory
answers, or other materials." Fed. R. Civ. P. 56(c)(1). When an
affidavit or declaration is used for these purposes, it "must be
made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to
testify on the matters stated." Id. 56(c)(4). Relatedly, a party
may object that the material cited "cannot be presented in a form
that would be admissible in evidence," id. 56(c)(2), and "[a]
witness may testify to a matter only if evidence is introduced
-10-
sufficient to support a finding that the witness has personal
knowledge of the matter," Fed. R. Evid. 602.
Here, García seeks compensatory and punitive damages
under 42 U.S.C. § 1983 for alleged constitutional violations under
the First and Fourteenth Amendments. Section 1983 establishes a
civil cause of action for the deprivation of constitutional rights.
See 42 U.S.C. § 1983. In order to prevail on a § 1983 claim, a
plaintiff must demonstrate: "(i) that the conduct complained of has
been committed under color of state law, and (ii) that the alleged
conduct worked a denial of rights secured by the Constitution or
laws of the United States." Cepero-Rivera v. Fagundo, 414 F.3d
124, 129 (1st Cir. 2005) (quoting Romero–Barceló v.
Hernández–Agosto, 75 F.3d 23, 32 (1st Cir. 1996)). There must be
a causal connection between the defendant's conduct and the alleged
deprivation: "only those individuals who participated in the
conduct that deprived the plaintiff of his rights can be held
liable." Id.
We begin with García's due process claim under the
Fourteenth Amendment and then turn to his political discrimination
claim under the First Amendment.
A. García's Due Process Claim
García argues that the Adjudication Notification letter
"created a legitimate expectancy" that he "would be engaged to
provide insurance brokerage services to the government."
-11-
Therefore, in his view, he "was entitled to some type of hearing
prior to being deprived of the adjudication to which he was
selected."
García concedes that, as a general matter, a contractual
relationship -- without more -- does not create a constitutionally
protected property interest that can give rise to damages under
§ 1983. Yet he nonetheless argues that a letter merely offering to
begin negotiations to establish a contractual relationship does, in
fact, establish such a protected interest. As further explained
below, based on clear precedent, we reject this illogical argument.
1. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment
provides that no state shall "deprive any person of life, liberty,
or property, without due process of law." U.S. Const. amend. XIV,
§ 1. Accordingly, "certain substantive rights -- life, liberty,
and property -- cannot be deprived except pursuant to
constitutionally adequate procedures." Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985). "'[T]he root requirement' of
the Due Process Clause" is that an individual must be provided
notice and an opportunity to be heard prior to being "'deprived of
any significant property interest.'" Id. at 542 (quoting Boddie v.
Connecticut, 401 U.S. 371, 379 (1971)).
In evaluating a procedural due process claim under the
Fourteenth Amendment, we must determine "whether [the plaintiff]
-12-
was deprived of a protected interest, and, if so, what process was
his due." Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
Accordingly, "[t]o establish a procedural due process violation,
the plaintiff 'must identify a protected liberty or property
interest and allege that the defendants, acting under color of
state law, deprived [him] of that interest without constitutionally
adequate process.'" González-Droz v. González-Colón, 660 F.3d 1,
13 (1st Cir. 2011) (second alteration in original) (quoting Aponte-
Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006)); see also
Rocket Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 11 (1st Cir.
2013) ("To establish a procedural due process violation, a
plaintiff must show that (1) it was deprived of a protected
property interest, and (2) the procedures attendant to that
deprivation were constitutionally inadequate."). Therefore, if
García has failed to establish that he had a protected property
interest in the rescinded Adjudication Notification, his due
process claim must fail. See Redondo-Borges v. U.S. Dep't of Hous.
& Urban Dev., 421 F.3d 1, 11 (1st Cir. 2005) ("Because the
plaintiffs identify no constitutionally protected property
interest, it is unnecessary to delve any deeper into the section
1983 inquiry.").
2. Property Interests and Bids for Government Contracts
We have stated that, to demonstrate a constitutionally
protected property interest, a plaintiff must identify a
-13-
"legitimate claim of entitlement" to the property in question and
must show more than an abstract need, desire, or unilateral
expectation of that property. Id. at 8 (quoting Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972)); see also id. at 9
("[D]ashed hopes of receiving future government work, without more,
cannot yield a constitutionally protected property interest.");
Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
8 (1st Cir. 2005) (same). We have also made clear that "[a]ward
procedures are not assigned to establish private entitlements to
public contracts but to produce the best possible contracts for the
government." Smith & Wesson v. United States, 782 F.2d 1074, 1081
(1st Cir. 1986).
Additionally, we have repeatedly held that "a simple
breach of contract does not amount to an unconstitutional
deprivation of property," and that "the existence of a state
contract, simpliciter, does not confer upon the contracting parties
a constitutionally protected property interest." Redondo-Borges,
421 F.3d at 10. We have explained that this rule "makes eminently
good sense," as "[t]o hold otherwise would run the risk of
transmogrifying virtually every dispute involving an alleged breach
of contract by a state or a state agency into a constitutional
case." Id. In Redondo-Borges, we also held that the plaintiffs'
interest in a revoked bid award did "not rise to the level of a
constitutionally protected property interest." Id. In so holding,
-14-
we cautioned that to reach the opposite result "would lead us down
a slippery slope to an untenable result: the constitutionalization
of all contract law in cases in which a state actor is a party."
Id. at 11.
While a government contract does not per se create a
protected property interest, there may be certain "special
circumstances" that can justify an exception to this general rule.
See id. at 10. The Third Circuit, for example, has identified two
types of contracts that can create protected property rights: (1)
where the contract confers a protected status upon the plaintiff,
or (2) where the contract provides that the government entity may
only terminate the contract "for cause." Linan-Faye Constr. Co. v.
Hous. Auth. of Camden, 49 F.3d 915, 932 (3d Cir. 1995), cited in
Redondo-Borges, 421 F.3d at 10.
Although the RFP is not a contract, García nevertheless
hangs his hopes on this second exception. He notes that the RFP
specifies that once the insurance brokers were selected, such
selections would only be set aside "for reasonable cause." In his
view, this "reasonable cause" language gave him a constitutionally
protected property interest in the contracts for which he bid, and
for which the Adjudication Notification stated that he had been
"favorably considered." García argues that "the RFP created a
legitimate expectancy that, if selected, a proponent would be
-15-
engaged to provide insurance brokerage services to the government."
We disagree.
3. The Relevant Documents
Admittedly, the "Introduction" section of the RFP does
state -- albeit in a subsection titled "Inquiries" -- that the
selections of insurance brokers "shall be final, except for the
right of the Secretary and API [the Agency for Public Insurance] to
terminate any designation for reasonable cause." However, the RFP
also provides that Puig "fully reserves the right to revise this
RFP, in part or whole." The RFP further states that the government
"reserves the absolute right to reject any or all proposals
submitted." There is no express language temporally limiting this
"absolute right" of rejection to the period prior to adjudication
or selection.
Moreover, the RFP makes clear that the initial selections
of providers will then be subject to the government's "normal . . .
procedural approvals" before the finalization of any contractual
relationship. Neither the RFP nor the Adjudication Notification
makes any promise or guarantee regarding the outcome of this
approval process. In a subsection titled "Goals of the Program,"
the RFP also states that "[t]he Secretary reserves the right to
limit individual Producer participation in the program based on
criteria such as its capacity to handle a particular amount of
business, its number of qualified professional[s], the size of its
-16-
operation or any other valid criteria." The foregoing language
reinforces the government's significant discretion in the bidding
and contracting process, such that provisionally successful bidders
do not have a guaranteed right to profits from their putative
contracts.
The RFP's statement that the government retains the
"absolute right" to reject any proposal -- together with the RFP's
explanation that successful bidders are required to provide
additional documents, submit to contract approval processes, and
engage in contract negotiations -- undermines García's argument
that selected bidders have a "legitimate expectancy" of being
"engaged to provide insurance brokerage services to the government"
that is sufficient to engender constitutional protection. In a
similar case, the Seventh Circuit held that under Illinois law, the
express reservation of the right to reject any and all bids
precludes a finding of a protected property interest. See Kim
Constr. Co. v. Bd. of Trs. of Mundelein, 14 F.3d 1243, 1246 (7th
Cir. 1994) ("[W]hen a state entity's advertisement for bids
contains explicit language reserving its right to reject any and
all bids, no bidder can claim a constitutionally protected property
interest in being awarded the contract."). Similarly, following
Supreme Court precedent, we have recognized that "a benefit is not
a protected entitlement if government officials may grant or deny
it in their discretion." Clukey v. Town of Camden, 717 F.3d 52, 56
-17-
(1st Cir. 2013) (quoting Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748, 756 (2005)) (internal quotation marks omitted).
The language of the Adjudication Notification further
weakens García's position. To be sure, this letter does inform
García that he had "been favorably considered." However, in the
next paragraph, the letter also specifies that García or his
representative must sign the letter "[i]n order to continue with
[the] process of formalizing the contract." The letter continues
to describe additional procedures and requirements necessary before
a contract could be executed between the parties. Nowhere in the
Adjudication Notification is there any suggestion that the
government is obligated to execute and approve a final contract
with García unless it has "reasonable cause" to cease negotiations
or reject the contract.
Read together, the RFP and the Adjudication Notification
establish that García was not granted a right to a final
professional services contract and its attendant commissions, but
rather was provisionally selected merely to begin contract
negotiations and to take part in a standard approval process with
multiple requirements prior to signing a contract with the
government. As García readily concedes, no such contract was ever
executed. Nor does García argue that the RFP and the Adjudication
Notification established a contractual relationship -- such as a
"contract to execute a contract" -- between him and the government.
-18-
Had a final contract been executed, García further
concedes that, under our precedent, he would not have a protected
property interest in that contract. Accepting this concession, we
cannot see how the government's non-binding offer to begin contract
negotiations and the "normal" contract-approval process granted
García a constitutionally protected property interest.
García's putative economic damages, he alleges, consist
of lost commissions amounting to approximately $450,000. The
Adjudication Notification specifies the accounts for which García
was "favorably considered" and their corresponding premiums, but it
does not provide any information regarding commissions for those
accounts. And the RFP clearly states that a broker's commissions
are to be set by the final professional services contract. As no
contract was executed, García's hoped-for commissions and profits
were merely speculative. The language of the RFP also contemplates
further "discussions or negotiations" between the parties prior to
signing a contract. For these reasons, García's "claim of
entitlement," Roth, 408 U.S. at 577, to any profits or commissions
would be stronger if a final professional services contract had
been executed by the parties. Given García's concession that he
would have no constitutionally protected entitlement to the
commissions under such a contract, it would defy logic to
nonetheless embrace his argument that the Constitution protects his
weaker claim to those commissions by means of a unilateral offer to
-19-
begin negotiations and a contract-approval process. Cf. Jones v.
City of Boston, 752 F.3d 38, 56 (1st Cir. 2014) (holding that a
plaintiff was not entitled to due process because "[i]t is clear
. . . that the [property] interest created by a conditional job
offer can be no stronger than that created by an unconditional job
offer, and that this interest in turn rises no higher than that
possessed by someone who has recently begun work in the
position").2
García's argument thus fails as a matter of logic. As
explained below, it also necessarily fails under governing Puerto
Rico law.
4. Property Interests as Defined by Puerto Rico Law
The property interests protected by the Fourteenth
Amendment "are defined by state law." Harron v. Town of Franklin,
660 F.3d 531, 537 (1st Cir. 2011). The Supreme Court of Puerto
2
In Jones, one plaintiff received a conditional job offer via a
letter that read: "If you successfully pass the medical examination
and hair drug testing components of the screening process, you will
be tendered a final offer of employment." Id. If the plaintiff
had been hired, she would have been subject to "a six-month
probationary period during which [she would] not have the
protection from termination without just cause afforded to tenured
employees." Id. In Massachusetts, such a probationary employee
with a job terminable with or without cause does not a have a
protected property interest in continued employment. Id. We
reasoned that "even had [the plaintiff] begun to work, she would
have had no cognizable property interest in continued employment
during the entirety of her probationary period." Id. Therefore,
we concluded that "[a] fortiori, having not begun work, [the
plaintiff] also had no cognizable property interest based on the
job offer alone." Id.
-20-
Rico has explicitly held that a Puerto Rico government "agency has
the right to revoke the award of a contract at any time before the
corresponding contract is entered into, since a contract is not
binding on an agency until [the] formal contract containing all the
legal requirements for the performance of the work is executed in
writing." Cancel v. Municipio de San Juan, 101 P.R. Dec. 296, 300-
01, 1 P.R. Offic. Trans. 416, 422 (1973) (quoting Justiniano v.
Commonwealth, 100 P.R. Dec. 334 (1971)); see also Rocket Learning,
Inc. v. Rivera-Sánchez, 851 F. Supp. 2d 384, 395 (D.P.R. 2012),
aff'd on other grounds, 715 F.3d 1 (1st Cir. 2013) ("[U]nder Puerto
Rico law, a bidder for a contract with the government does not
acquire a property interest until the contract has been
formalized.").
García identifies no Puerto Rico law -- not a single case
or statute -- demonstrating that the RFP and the Adjudication
Notification gave him a protected property interest. Because the
parties here did not execute in writing a "formal contract
containing all the legal requirements for the performance of the
work," Puerto Rico law makes clear that García did not have a
protected property interest in the Adjudication Notification. See
Cancel, 1 P.R. Offic. Trans. at 422; Rocket Learning, 851 F. Supp.
2d at 395. Therefore, given his failure to establish that he had
a protected property interest in the rescinded Adjudication
Notification, García's due process claim must fail. See
-21-
Redondo-Borges, 421 F.3d at 10 (recognizing that "[a] recurrent
theme in this court's jurisprudence" supported a holding that the
plaintiffs' interest in a rescinded bid award "d[id] not rise to
the level of a constitutionally protected property interest"); id.
at 11 (holding that the plaintiffs' § 1983 claim failed due to the
lack of a constitutionally protected property interest).3
B. García's First Amendment Claim for Political Discrimination
The second issue before us is whether there is a genuine
issue of material fact precluding affirmance of summary judgment in
favor of Puig as to his liability under 42 U.S.C. § 1983 for
political discrimination against García. García alleges that Puig,
Secretary of the Treasury in an NPP administration, rescinded his
bid award because of García's political affiliation with an
opposing political party, the PDP. Based on the cumulative weight
of the limited evidence put forth by García, we cannot say that
there is no genuine issue of material fact on his First Amendment
claim. Therefore, as further explained below, the grant of summary
judgment in favor of Puig on this issue requires reversal.
3
Given our conclusion that García has failed to demonstrate a
constitutionally protected property interest, we need not address
Puig's argument that García's due process claim would be barred
under the Parratt-Hudson doctrine based on Puig's assertion that
Puerto Rico law provides adequate post-deprivation remedies. See,
e.g., Gardner v. City of Balt. Mayor & City Council, 969 F.2d 63,
69 n.1 (4th Cir. 1992).
-22-
1. Political Discrimination in Public Contracting
"Section 1983 is the conventional vehicle through which
relief is sought for claims of political discrimination by state
actors." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st
Cir. 2013). "For this purpose, Puerto Rico is the functional
equivalent of a state." Id.
"The right to associate with the political party of one's
choice is an integral part of the basic constitutional freedom to
associate with others for the common advancement of political
beliefs and ideas protected by the First Amendment." Carrasquillo
v. Puerto Rico ex rel. Justice Dep't, 494 F.3d 1, 4 (1st Cir. 2007)
(citing Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973)). The First
Amendment therefore bars government officials from taking adverse
employment action on the basis of a person's political affiliation,
"unless political affiliation is an appropriate requirement for the
position." Méndez–Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir.
2011)); see also Welch v. Ciampa, 542 F.3d 927, 938 (1st Cir.
2008).4 The Supreme Court has held that First Amendment
protections also extend to independent contractors with preexisting
commercial relationships with the government, "where [the]
4
Puig does not argue that the insurance broker independent
contractor position sought by García is a policymaking position or
a position for which "political affiliation is an appropriate
requirement." See Méndez–Aponte, 645 F.3d at 64; see also Foote v.
Town of Bedford, 642 F.3d 80, 83 (1st Cir. 2011). Thus, we need
not consider whether this exception applies here.
-23-
government retaliates against a contractor, or a regular provider
of services, for the exercise of rights of political association or
the expression of political allegiance." O'Hare Truck Serv., Inc.
v. City of Northlake, 518 U.S. 712, 715 (1996); id. at 726 ("We
decline to draw a line excluding independent contractors from the
First Amendment safeguards of political association afforded to
employees."); see also Bd. of Cnty. Comm'rs, Wabaunsee Cnty., Kan.
v. Umbehr, 518 U.S. 668, 681-84 (1996) (expressing some skepticism
of the practices of patronage and political bias in government
contracting); id. at 685 (concluding that "independent contractors
do enjoy some First Amendment protection").
To date, we have not found it necessary to rule on
whether such protections extend to first-time bidders or applicants
for new government contracts. See Centro Médico, 406 F.3d at 9;
Prisma Zona Exploratoria de P.R., Inc. v. Calderón, 310 F.3d 1, 7
(1st Cir. 2002); see also Umbehr, 518 U.S. at 685 ("Because
Umbehr's suit concerns the termination of a pre-existing commercial
relationship with the government, we need not address the
possibility of suits by bidders or applicants for new government
contracts who cannot rely on such a relationship."). Nor does this
case present such an opportunity.
Although García is protesting his failed bid for an
unexecuted government contract, the record also shows that García
held various annual contracts with the Treasury for several years
-24-
prior to 2008. Indeed, the district court found that García had a
pattern of annual contracting with the Treasury during the eight-
year period beginning on April 28, 2001, and ending on May 30,
2009. This period was interrupted only by a two-month gap in 2003.
On that basis, the district court concluded that García had a
preexisting commercial relationship with the Treasury.
Furthermore, it is undisputed that García and the
Treasury entered into a one-year professional services contract on
October 1, 2008 -- a contract which the department terminated
immediately prior to the RFP and the Adjudication Notification at
issue. In the written notice the Treasury sent to García informing
him that his existing contract would be cancelled, the department
also specified that if he was "interested in continuing to
participate in the Program," he could apply in writing by
responding to the RFP. Although previously we have "take[n] no
view" on whether "the protections recognized in Umbehr . . . extend
to unsolicited bids for new government contracts," Centro Médico,
406 F.3d at 10 (emphasis added), this case involves a request for
proposals rather than an "unsolicited" bid for a new contract. In
essence, García was solicited to reapply for an existing contract
-- a contract similar to the annual contracts he held every year
since 2001.
We therefore find that, under these particular
circumstances, García had a preexisting commercial relationship
-25-
with the Commonwealth and is thus subject to First Amendment
protections against retaliation for his political affiliation. See
O'Hare Truck, 518 U.S. at 715; Umbehr, 518 U.S. at 685; Prisma
Zona, 610 F.3d at 7; Centro Médico, 406 F.3d at 9; cf. Rutan v.
Republican Party of Ill., 497 U.S. 62, 75 (1990) ("[P]romotions,
transfers, and recalls after layoffs based on political affiliation
or support are an impermissible infringement on the First Amendment
rights of public employees.").
As an additional preliminary matter, we pause to note
that the district court clearly erred by applying the balancing
test articulated in Pickering v. Bd. of Educ. of Twp. High Sch.
Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968), instead of the
principles established by the line of cases following Elrod v.
Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507
(1980). The Pickering balancing test applies to free speech cases,
"where a government employer takes adverse action on account of an
employee or service provider's right of free speech." O'Hare
Truck, 518 U.S. at 719. Because García's First Amendment claim is
premised solely on discrimination for his political affiliation,
and does not involve factual allegations of unconstitutional
infringement upon his freedom of speech,5 the Pickering test is
5
García's complaint captions his "First Cause of Action" as
"Freedom of Speech/Association" and alleges that the defendants'
actions "violate plaintiff's rights to freedom of speech and
freedom of association." However, for this cause of action, the
specific factual allegations in the complaint pertain solely to
-26-
inapplicable. See id.; see also Acevedo-Delgado v. Rivera, 292
F.3d 37, 45 (1st Cir. 2002) ("Pickering is inapposite to this case,
which does not involve an asserted state interest that allegedly
was compromised by an employee's statements."). Having disposed of
these threshold matters, we now turn to examine the elements of
García's prima facie claim for political discrimination, beginning
with a summary of the relevant evidence.
2. Evidence Relevant to García's First Amendment Claim
At the outset of this inquiry, we note that several facts
on which García relies, including which bidders gained and lost
contracts, are likely inadmissible hearsay. However, Puig did not
object to these statements below, and evidentiary objections not
discrimination based on political affiliation. The complaint
states that García "belongs to a political party that espouses
philosophies and ideas different to those of the defendants,
something that was known to defendants when they decided to take
adverse employment actions against him, moved and/or motivated by
plaintiff's affiliation to the PDP."
García's opposition to summary judgment and briefs also make
no specific factual allegations regarding any protected speech or
violations of his freedom of speech, but instead address only a
claim of discrimination based on political affiliation. Moreover,
in his appellate brief, García states that "[i]t is plain from the
face of the complaint and from every single document filed by the
parties thereafter that plaintiff's claim for violation of his
First Amendment rights stems from a political discrimination theory
of liability under the so-called Elrod/Branti rubric . . . ."
For these reasons, we see no reason to construe García's
"First Cause of Action" as including two causes of action so as to
find that he pleaded a freedom-of-speech claim in addition to his
freedom-of-association claim. See, e.g., EBI, Inc. v. Gator
Indus., Inc., 807 F.2d 1, 4-5 (1st Cir. 1986) (finding that the
plaintiff had not asserted a claim for breach of contract when the
complaint's breach-of-contract caption was "totally unsupported by
any factual allegations which would signal" such a claim).
-27-
raised before the district court are deemed waived on appeal. See,
e.g., Dorpan, S.L. v. Hotel Meliá, Inc., 728 F.3d 55, 67 n.14 (1st
Cir. 2013). We further note that several pieces of evidence
proffered by García are, in isolation, of questionable value.
Nonetheless, in the aggregate, the cumulative weight of García's
evidence -- together with the reasonable inferences drawn therefrom
-- is sufficient to defeat summary judgment.
In support of his theory of the case as to political
discrimination, García offers the following evidence: (1) his
deposition testimony stating that he spoke to multiple contractors
affiliated with the PDP who also had their initial bid awards
rescinded; (2) his deposition testimony that he personally knew of
NPP-affiliated brokers who were awarded the contracts originally
adjudicated to him; (3) a copy of a contract awarded to an alleged
NPP-affiliated broker; (4) a table outlining the Treasury's
numerical evaluation of the fifty-four independent contractors who
submitted proposals through the RFP; (5) a certification from the
Treasury denying that it has any documents concerning the alleged
errors involved with the original Adjudication Notification; and
(6) Puig's deposition testimony (in another case) that he had the
authority to make the final determinations regarding the awarding
of the Treasury contracts. Each category of evidence is examined
in more detail below.
-28-
First, when asked at his deposition whether he knew any
of the other contractors who had received the letter rescinding the
original adjudication, García replied, "I know all of them. After
thirty-five years in this business, I think I know all of them,
except the new ones . . . ." He testified that, after receiving
the letter informing him of the "countless errors" in the
Adjudication Notification, he reached out to several other
insurance brokers he knew to be affiliated with the PDP, including:
Benjamín Hernández, Consuelo Revuelta, Roberto Fonseca, and Tito
Casellas. He later saw three of these brokers at the Treasury
Department on May 26, 2009, and he confirmed with them that they
had received the letter. Together, they surmised that there was an
improper "external motivation" for the rescission of the
adjudications -- namely, their affiliation with the PDP.
Second, when asked about his allegation that all the
contracts that originally had been adjudicated to him were later
awarded to NPP insurance brokers, García explained in his
deposition that he personally knew of five different NPP-affiliated
contractors that were awarded such contracts: Lone Star Producers,
Inc. ("Lone Star"), Christiansen Insurance, Inc., Jorge Urrutia
Vallés, Ikon Group, and Luis Bonnet. García stated that "[a]ll I
know is that they were on May 15, all of them were in the
adjudication and what happened after May 15, was that all that were
not [NPP] people, [they were] stricken out . . . significantly the
-29-
amount of accounts that were given, and those accounts were
distributed among those [NPP-affiliated brokers] who already had
accounts." In context, this deposition testimony implies that
García -- based on his personal relationships built over the course
of his thirty-five years of experience in the industry -- knew the
political affiliations of most of the insurance brokers involved in
the bidding process. It further implies that he knew that the
reallocation of the rescinded bid awards favored brokers affiliated
with the NPP over those affiliated with the PDP.
Third, García provided a copy of the contract awarded to
Lone Star, one of the NPP-affiliated contractors he identified in
his deposition. The contract was awarded on May 25, 2009, for a
total amount of $1,363,813.02; the signing parties were Andrés
Guillemard for Lone Star and Secretary Puig for the government. We
need not rely solely on García's deposition testimony for the
proposition that Lone Star is affiliated with the NPP. Instead,
García points us to political discrimination cases filed by Lone
Star and its principals, in which they self-identified as NPP
members and were awarded $4.7 million in § 1983 damages for
political discrimination by the preceding PDP administrations.
See, e.g., Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 510
(1st Cir. 2009) (stating that plaintiffs-appellees Andrés
Guillemard–Ginorio and his wife, María Noble–Fernández, each fifty-
percent owners of Lone Star, are both "prominent members of the
-30-
NPP, having contributed substantial time and financial support to
NPP candidates"). Thus, there is some evidence that an NPP-
affiliated broker was awarded a high-value contract in the wake of
the rescinded Adjudication Notification.
Fourth, García points to a table detailing the numerical
evaluation scores given to all fifty-four contractors who
participated in the RFP; he asserts that the higher numerical
scores were given to the most qualified brokers. The PDP-
affiliated contractors identified by García were given the
following scores: (1) Consuelo Revuelta - 57.5; (2) Tito Casellas
& Co. - 52.5; (3) García himself - 47.5; and (4) Benjamín Hernández
- 45.5. By comparison, the contractors García identified as
affiliated with the NPP received the following scores: (1) Luis
Bonnet - 56; (2) Lone Star - 46; (3) Nicolás Muñoz - 41; (4)
Christiansen Insurance - 40; (5) Ikon Group - 36; and (6) Jorge
Urrutia Vallés - 31. All four PDP providers in the former group
had higher scores than all but two NPP providers in the latter
group. Nonetheless, García asserts that all of the PDP contractors
were "victims of the purported 'errors' in the original
adjudication" and had their contract awards reduced, despite having
higher scores than several NPP providers.6
6
This table, García's explanation of it, and his allegations
concerning a subset of the producers listed therein are far from
complete, clear, and conclusive. Nonetheless, the table provides
some support and corroboration for García's assertions in his
deposition testimony, particularly in light of the Treasury's
-31-
Fifth, García introduced a certification from the
Treasury, sent in response to his subpoena, stating that the
department has no documents or records concerning: (1) any
investigations into irregularities in the original adjudication of
bids submitted in response to the April 2009 RFP; (2) the letters
notifying all bidders of problems or irregularities with the
initial adjudications; (3) any measures taken by the Treasury to
correct the alleged errors in the adjudication process; or (4)
Secretary Puig's second adjudication of contracts under the RFP.
To date, the Treasury has offered no explanation of the alleged
"countless errors" that prompted the rescission of García's
original Adjudication Notification.
Finally, García provided an excerpt of the transcript of
a deposition of Puig taken in a different case on August 19, 2011.
In that deposition, Puig testified that he was responsible for the
selection of independent contractors for the Treasury, and that his
"authority is that of having to make a determination as to who is
going to be granted certain professional services contracts and who
is not."
3. The Elements of a Political Discrimination Claim
A plaintiff seeking to establish a prima facie claim of
political discrimination under the First Amendment must show four
failure to provide additional documents in response to García's
subpoena.
-32-
elements: "'(1) that the plaintiff and defendant have opposing
political affiliations, (2) that the defendant is aware of the
plaintiff's affiliation, (3) that an adverse employment action
occurred, and (4) that political affiliation was a substantial or
motivating factor for the adverse employment action.'"
Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 236 (1st
Cir. 2012) (quoting Méndez–Aponte, 645 F.3d at 64).7
On de novo review, if there is no genuine issue of fact
on the summary judgment record with respect to any of these
elements, then García's First Amendment claim must fail. See Fed.
R. Civ. P. 56(a). For purposes of summary judgment, we consider
only "materials of evidentiary quality." Hannon v. Beard, 645 F.3d
45, 49 (1st Cir. 2011). Accordingly, "both affidavits and
7
After a plaintiff has established a prima facie case for
political discrimination by showing these four elements, the burden
shifts to the defendant to "'prove by a preponderance of the
evidence that the adverse action would have been taken regardless
of any discriminatory political motivation.'" Cepero-Rivera, 414
F.3d at 132 (quoting LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.
1996)); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Barry v. Moran, 661 F.3d 696, 703-04 (1st
Cir. 2011). At this stage of the litigation, however, Puig has
advanced no evidence or argument that the adverse action would have
been taken absent any discriminatory motive; indeed, Puig has
offered no explanation of the "countless errors" in the
adjudication process that allegedly prompted rescission of the
original award. Accordingly, for purposes of the current appeal,
we need not consider the burden shift and we may confine our
inquiry to the elements of the prima facie case. See, e.g., Jones,
752 F.3d at 54-55 (declining to consider, in the first instance, a
post-burden-shift defense not yet considered by the trial court);
id. at 55 ("Federal appellate courts have discretion in deciding
whether to take up questions not considered below, but they
generally should not do so.").
-33-
deposition testimony are effective in opposing summary judgment
only when they are given on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
deponent (as the case may be) is competent to testify about the
matter in question." Id.
With these principles in mind, we address each element of
García's prima facie case in turn.8
a. Opposing Political Affiliations
To survive summary judgment, García must first
demonstrate that there is a genuine issue of fact as to whether he
and Puig have opposing political affiliations. See
Torres-Santiago, 693 F.3d at 236. He has done so. First, García
has provided deposition testimony that he is affiliated with the
PDP. The nature of his own political affiliation is certainly
8
We note that, on appeal, Puig has squarely presented challenges
to García's proof on only the first two elements: (1) whether the
parties have opposing political affiliations, and (2) whether Puig
was aware of García's political affiliation. Puig has thus
arguably waived any argument concerning the final two elements.
See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived. It is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work, create the
ossature for the argument, and put flesh on its bones." (internal
citations omitted)). Nonetheless, as we may affirm the district
court's "entry of summary judgment on any basis made manifest by
the record," Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117, 121
(1st Cir. 2013), we will examine the summary judgment evidence with
respect to all four elements of García's political discrimination
claim.
-34-
within García's personal knowledge and could serve as proper trial
testimony.
Therefore, for Puig to demonstrate that there is no
genuine issue of material fact as to the parties' opposing
political affiliations, he would have to establish that there is no
basis in the record for reasonably concluding that Puig is a member
of an opposing political party. This Puig has failed to do, as
"[t]he NPP and PDP are opposing political parties in Puerto Rico,"
Guillemard-Ginorio, 585 F.3d at 511, and the facts of this case
permit a reasonable inference that Puig is affiliated with the NPP.
We find Puig's arguments to the contrary unavailing.
Admittedly, García does not personally know Puig and has presented
no documentary evidence that Puig belongs to the NPP. And, in an
unsworn "Statement Under Penalty of Perjury" signed on December 5,
2011 (the "Unsworn Statement"), Puig declared that he was not
personally affiliated with the NPP. In Puig's view, this is
sufficient to demonstrate that "the uncontested facts establish
that Plaintiff and Defendant did not belong to opposing political
parties."
Puig argues that "the only reason" for García's belief
that Puig is a member of the NPP consists of an assumption grounded
upon Puig's nomination and service as the Secretary of the Treasury
under Governor Fortuño's NPP administration. This assumption,
however, is sufficient for present purposes. Reviewing the grant
-35-
of summary judgment, we must resolve all reasonable inferences from
the evidence in the light most favorable to García. See
Shafmaster, 707 F.3d at 135. No party disputes that Governor
Fortuño was a member of the NPP or that Puig, as Secretary of the
Treasury, was a high-ranking official in an NPP administration.
And "[i]t is no secret that political leaders most often choose
political allies to fill important policymaking positions."
Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012). It
is therefore reasonable to infer that Puig was affiliated with the
NPP during the relevant period. See id. at 47-48 (reasoning that
"a plausible inference can be drawn that the plaintiff, who was
named to a prestigious trust position by a PDP hierarch under a PDP
administration, was a member of the PDP," and remarking that a
court is not required "to blind itself to what is obvious").
b. Puig's Awareness of García's Affiliation
To establish the second element of a political
discrimination claim, García would have to show that Puig was aware
of García's political affiliation. See Torres-Santiago, 693 F.3d
at 236. Puig argues that there is no genuine issue of fact
regarding this element, because (1) there is no evidence showing
that Puig was aware that García was a member of the PDP, and (2)
Puig's Unsworn Statement conclusively resolves the issue in Puig's
favor.
-36-
Indeed, there is some support for Puig's position. It is
uncontested that García has never run for or held public office as
a PDP candidate and that he has not worked for the campaign of a
PDP candidate. He has not appeared on television or radio in
support of the PDP. Furthermore, in his Unsworn Statement, Puig
declared that: (1) he did not know who García was; (2) he did not
know of García's political affiliation; (3) he had not seen García
participate in political activities for the PDP; and (4) he had no
knowledge of García being an active member of the PDP.
García, for his part, testified in his deposition that he
was, in fact, affiliated with the PDP. He elaborated that he
publicly displayed his PDP affiliation by talking with his friends
and attending political rallies, meetings, gatherings, and cocktail
events for the 2008 election. He stated that he contributed
financially to the campaigns of several PDP candidates, including
the then-incumbent PDP governor who lost to Governor Fortuño in the
2008 election.
In his deposition, García further testified that he and
Cruz -- the Insurance Commissioner serving under Puig at the time
-- were friends and had worked together for several years. García
testified that Cruz "absolutely" knew his political "color" because
they had "talk[ed] about it." Puig, in his statement of
uncontested material facts, agrees that García "has had an
excellent relationship with the Insurance Commissioner Ramón L.
-37-
Cruz-Colón and considers him to be his friend." Puig does not
dispute that he and Cruz worked together in the Fortuño
administration during the relevant period, or that Cruz
participated in the RFP adjudication process at issue. Puig
declared, however, that Cruz had never informed him of García's
political affiliation.
Viewing these facts in the light most favorable to
García, and drawing all reasonable inferences in his favor, see
Shafmaster, 707 F.3d at 135, we conclude that there was a genuine
issue of material fact as to whether Puig was aware of García's
political affiliation, see Torres-Santiago, 693 F.3d at 236. In
his deposition, García testified that he made no secret of his
political affiliation and that he actively supported PDP candidates
with financial contributions and his presence at campaign rallies
and other events. Given García's friendship with Cruz, their
working relationship, and García's testimony that they talked about
politics and Cruz knew that he was a member of the PDP, it is
reasonable to conclude that Cruz knew of García's political
affiliation.
Accepting as true García's testimony that high-scoring
insurance brokers associated with the PDP had their contract awards
reduced while the awards for lower-scoring brokers associated with
the NPP were either unchanged or increased, the factfinder could
infer that whoever was making the decision must have been doing so
-38-
based largely on party affiliation. Puig does not dispute on
appeal that he was the decision maker who was ultimately
responsible for the rescission of the initial awards and their
subsequent reallocation.9 Nor has he provided any explanation for
the apparent correlation between results and partisan affiliation,
or for the supposed "errors" that led to the initial award to
García. Given that apparent correlation between results and
partisan affiliation, and the unexplained reasons for the changes,
a reasonable jury could infer that Puig likely learned of García's
political affiliation, an inference that is all the more plausible
because Puig had a ready source for that knowledge: Cruz.
For all these reasons, there is a genuine issue of fact
as to whether Puig knew of García's political affiliation.
Answering this question calls for "[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate
9
Similarly, we note that Puig has waived any argument that he was
not personally involved in the decision to rescind García's bid
award. See, e.g., United States v. Dellosantos, 649 F.3d 109, 126
n.18 (1st Cir. 2011) (finding an appellate argument waived due to
the government-appellee's "perfunctory treatment" of a case and
"lack of developed argumentation"). Moreover, on this summary
judgment record, any such argument would fail. García put forth
evidence of Puig's personal involvement, including that the RFP's
terms provide that Puig was responsible for selecting the insurance
brokers to receive contracts, that Puig gave deposition testimony
in another case stating that he chose the insurance company
providers, and that Puig himself signed the letter terminating
García's 2008-2009 contract early. Under these circumstances, such
evidence is sufficient to establish a genuine issue of material
fact as to whether Puig personally "participated in the conduct"
that allegedly deprived García of his rights. See Cepero-Rivera,
414 F.3d at 129.
-39-
inferences from the facts" -- all tasks for the jury, not the
judge. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
see also Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175
(1st Cir. 2011).10
c. Adverse Action
With respect to the third element of a prima facie
political discrimination claim, García would have to prove that an
adverse action occurred. See Torres-Santiago, 693 F.3d at 236. In
order to show an adverse action, García need not show a right to a
denied government benefit. The fact that a plaintiff has "no legal
entitlement" to a valuable government benefit is "immaterial" to
such a First Amendment claim. Rutan, 497 U.S. at 72 (citing Perry
v. Sindermann, 408 U.S. 593, 596-98 (1972)). Rather, "[t]he First
Amendment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with its
employees' freedom to believe and associate, or to not believe and
not associate." Rutan, 497 U.S. at 76.
We need not linger long upon this third element of the
analysis. Puig does not seriously contest that no adverse action
occurred. Nor could he. Through his deposition testimony and the
10
We also note that even if Puig is telling the truth and did not
personally know García's political affiliation, he could still be
liable if he told Cruz to rescind awards to PDP-affiliated bidders
and that instruction resulted in the revocation of García's award.
-40-
various letters he received from the Treasury, García has put forth
evidence that he suffered an adverse action.
First, García has provided the letter from Puig notifying
him of the early termination of his 2008-2009 contract. García has
also averred that he stood to profit by approximately $450,000 in
commissions from the contracts originally awarded in the rescinded
Adjudication Notification. He has further provided deposition
testimony to the fact that the substitute contracts offered by the
Treasury would result in commissions of approximately $15,000 --
less than four percent of the expected commissions for his original
award. These facts -- the early termination of García's existing
contract, the rescission of the Adjudication Notification, and the
significant reduction in commissions from his original bid award to
the final contracts offered him -- together can be considered to
constitute an adverse action. Puig has offered no argument to the
contrary.
d. Causation
Finally, in order to meet the fourth element for a prima
facie political discrimination claim, García must show that his
political affiliation with the PDP was a substantial or motivating
factor for the adverse action. See Torres-Santiago, 693 F.3d at
236; see also Vázquez v. López Rosario, 134 F.3d 28, 36 (1st Cir.
1998); LaRou, 98 F.3d at 661.
-41-
While "unsupported and speculative assertions regarding
political discrimination will not be enough to survive summary
judgment," Vázquez, 134 F.3d at 36, we have also made clear that
"one rarely finds 'smoking gun' evidence in a political
discrimination case," Ocasio-Hernández v. Fortuño-Burset, 640 F.3d
1, 17 (1st Cir. 2011) (quoting Lamboy-Ortiz v. Ortiz-Vélez, 630
F.3d 228, 240 (1st Cir. 2010)), and that "circumstantial evidence
must, at times, suffice," id.
Considering all of the evidence on the summary judgment
record, we find that García has presented evidence sufficient to
establish a genuine issue of fact as to causation. Indeed,
García's evidence presents a credible narrative of a paradigmatic
political discrimination case. He had an eight-year tenure as an
independent contractor for the Puerto Rico government under PDP
administrations, only to have his existing contract terminated
early, less than three months into a new NPP administration. He
was then awarded a lucrative set of new contracts in the
Adjudication Notification, only to have that award rescinded on the
basis of "countless" -- but unspecified and as yet unsubstantiated
-- errors. Ultimately, he was offered contracts for drastically
lower amounts: less than four percent of his original award. He
offers some evidence that PDP-affiliated brokers had their awards
reduced, while the awards of NPP-affiliated brokers were either
unchanged or increased.
-42-
To date, the government has never explained the nature of
the alleged errors prompting the rescission of the original award.
Puig's refusal to provide any explanation regarding the "countless
errors" leading to the adverse action provides some circumstantial
evidence of causation. See id. (providing that circumstantial
evidence may be sufficient in a political discrimination case).
Moreover, "temporal proximity between a change of administration
and an adverse employment action," as happened here, "is relevant
to whether political affiliation was a substantial or motivating
factor in that adverse employment decision." Torres-Santiago, 693
F.3d at 240; see also Grajales, 682 F.3d at 50 ("[T]he close
temporal proximity between the regime change and the [adverse
action], coupled with the absence of any legitimate reason for much
of the offending conduct, permits a plausible inference . . . that
political animus was a motivating factor behind the [conduct].").
And a "politically charged employment atmosphere" resulting from a
major shift in power from one political party to another, together
with evidence that a plaintiff and defendant are from opposing
parties, may be probative of discriminatory animus.
Torres-Santiago, 693 F.3d at 240 (quoting Ocasio–Hernández, 640
F.3d at 17-18).
Viewing the facts in the light most favorable to García,
and drawing all reasonable inferences therefrom, see Shafmaster,
707 F.3d at 135, we cannot say -- with respect to the final element
-43-
of causation -- that García's position is based merely on
"conclusory allegations" or "unsupported speculation," see Rogan,
267 F.3d at 27. Rather, we conclude that there is a genuine issue
of material fact as to whether García's political affiliation was
a substantial or motivating factor for the adverse action. See
Torres-Santiago, 693 F.3d at 236.
4. Summary
While the summary judgment record here is relatively
sparse, making this a close case, we find that García has met his
burden of demonstrating a genuine issue of material fact on the
prima facie elements of his political discrimination claim. See
Montfort-Rodríguez v. Rey-Hernández, 504 F.3d 221, 222 (1st Cir.
2007) ("Although the record is meager and the case is therefore
close, we conclude that appellants met their burden to generate a
genuine issue of material fact on the elements of their claim.").
The individually weak pieces of evidence relied upon by García are
nonetheless, in the aggregate, sufficient to defeat summary
judgment. See González-de-Blasini v. Family Dep't, 377 F.3d 81, 86
(1st Cir. 2007) (recognizing that a prima facie political
discrimination case may be built on circumstantial evidence if a
plaintiff has shown "'the specific facts necessary to take the
asserted claim out of the realm of speculative, general
-44-
allegations'" (quoting Kauffman v. P.R. Tel. Co., 841 F.2d 1169,
1173 n.5 (1st Cir. 1988))).11
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment on García's Fourteenth Amendment claim,
and we reverse the grant of summary judgment on his First Amendment
claim. We therefore remand García's political discrimination claim
for further proceedings consistent with this opinion.
AFFIRMED IN PART, AND REVERSED IN PART. Each party shall
bear its own costs.
11
As a final matter, we note that Puig makes a half-hearted
attempt to raise a qualified-immunity defense with respect to
García's First Amendment claim. Puig's brief states "there is no
need to enter into an in depth analysis of the qualified immunity
defense regarding the political discrimination claim because there
is no evidence on the record that shows the existence of a
constitutional violation." The two-sentence "argument" that
follows is really no argument at all, but instead is a merely
conclusory assertion that Puig is entitled to qualified immunity.
We have consistently held that such lackluster arguments will be
disregarded on appeal. See, e.g., United States v.
Delgado–Marrero, 744 F.3d 167, 203 (1st Cir. 2014) (stating that
the court may ignore "conclusory allegations" and "bare assertions"
in a party's brief).
-45-