Borras-Borrero v. Corp del Fondo del Seguro del ( 2020 )

United States Court of Appeals
For the First Circuit
No. 17-1769
ANTONIO BORRÁS-BORRERO; IVELISSE SERRANO-RODRÍGUEZ; CONJUGAL
PARTNERSHIP BORRÁS-SERRANO,
Plaintiffs, Appellants,
v.
CORPORACIÓN DEL FONDO DEL SEGURO DEL ESTADO;
LIZA ESTRADA-FIGUEROA; MIGDALI RAMOS-RIVERA;
FRANCISCO IRLANDA-MÉNDEZ; MARÍA ENID BARRETO-RODRÍGUEZ;
JUAN ESCOBAR-DEL VALLE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Rafael E. Rivera-Sánchez for appellants.
Carlos Lugo-Fiol, with whom Isaías Sánchez-Báez, Solicitor
General, was on brief, for appellees Lisa Estrada-Figueroa,
Migdali Ramos-Rivera, Francisco Irlanda-Méndez, María Enid
Barreto-Rodriguez, and Juan M. Escobar-Del Valle.
Peter W. Miller, with whom Javier A. Vega-Villalba, Stuart A.
Weinstein-Bacal, and Weinstein-Bacal, Miller & Vega, P.S.C. were
on brief, for appellee Corporación del Fondo del Seguro del Estado.
May 1, 2020
HOWARD, Chief Judge. Antonio Borrás-Borrero appeals the
district court's dismissal of his complaint1 alleging that the
Corporación del Fondo del Seguro del Estado (the "SIFC"2), along
with its administrators (the "Individual Defendants"), conspired
to deprive Borrás of his First, Fourth, Fifth, and Fourteenth
Amendment rights. Specifically, Borrás asserts that several
adverse employment actions taken against him by the SIFC — a
demotion, suspension with pay, and suspension without pay — were
acts of retaliation to punish him for his constitutionally-
protected whistleblowing activities.
We address the claims in two sets: first, we summarily
affirm the district court's dismissal of the following claims
because Borrás has failed to "seriously develop[]" arguments in
their favor on appeal: (1) deliberate and intentional infliction
of economic and emotional injury; (2) violation of Borrás's Fifth
Amendment right against self-incrimination; (3) impermissible
disclosure of Borrás's personnel file; and (4) malicious
prosecution. Tejada-Batista v. Morales, 424 F.3d 97, 103 (1st
1
In addition to Borrás, his wife, Ivelisse Serrano-Rodríguez,
and the partnership between them are also plaintiffs and
appellants. Outside of allegations that Serrano was improperly
transferred to a different office, the complaint describes conduct
directed at Borrás, and we refer to the claims as belonging to
Borrás for simplicity.
2
"Corporación del Fondo del Seguro del Estado" translates to
the "State Insurance Fund Corporation."
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Cir. 2005) (stressing that "[a]n argument not seriously developed
in the opening brief" is lost); see also Rodríguez v. Mun. of San
Juan, 659 F.3d 168, 175 (1st Cir. 2011) (holding that arguments
"adverted to in a cursory fashion, unaccompanied by developed
argument," are waived).
Next, for the reasons discussed below, we also affirm
the district court's dismissal of the remaining claims, although
we vacate the district court's dismissal of the Puerto Rico law
claims with prejudice and remand with instructions to dismiss those
claims without prejudice.
I. Factual History
The SIFC is a public governmental agency created under
Puerto Rico law to administer workers' compensation and medical
treatment programs for employees injured in the workplace. Borrás
has been an SIFC employee since 1984. The Individual Defendants,
also employees of the SIFC, include: (1) Liza Estrada-Figueroa,
the head Administrator of the SIFC; (2) Migdali Ramos-Rivera, the
Associate Director of the SIFC's Labor Relations Office under
Estrada's direct supervision; (3) Francisco Irlanda-Méndez, an
officer in the Labor Relations Office under Ramos's direct
supervision; (4) Juan Escobar-del Valle, a janitor and internal
messenger; and (5) María Enid Barreto-Rodríguez, a Regional
Director under Estrada's direct supervision, who, at all times
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relevant to the complaint, was the regional director for Borrás
and Escobar.
Two allegedly retaliatory actions by the SIFC comprise
the basis of Borrás's complaint. The first took place in 2010.
Early that year, soon after his promotion to supervisor of his
office, which produced worker's compensation policies for
employers, Borrás reported to the SIFC's audit division that an
employee named Nury Curet, whom he supervised, had been absent for
two days. According to Borrás, following his report documenting
Curet's absence, Curet's husband approached Borrás in his office
"full of rage" and attempted to physically assault him. Borrás
reported this incident both to the SIFC's internal Labor Relations
Office and to law enforcement. However, when the police came to
take Borrás's complaint, SIFC administrators told them that the
incident would be handled internally.
Shortly after this incident, the Regional Director of
Borrás's office allegedly told Borrás that he would be demoted
from his position as supervisor because of "his political
affiliation with the Popular Democratic Party." According to
Borrás, the Regional Director added that the incident with Curet
and her husband "had precipitated his demotion." The relationship
between Borrás's political affiliation and the incident with Curet
remains unclear from the complaint. Thereafter, Borrás was removed
from his post as supervisor and reassigned to his previous union-
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protected position. In response, Borrás filed a lawsuit against
the SIFC — unrelated to this one — alleging that he had been
impermissibly demoted because of his political affiliation.3
The second allegedly retaliatory act against Borrás took
place in 2014. According to Borrás, Defendant Juan Escobar-del
Valle had been engaged in a "pattern of hostilities" towards Borrás
for several years. In March 2014, these hostilities escalated
when Escobar allegedly "tried to assault and batter" Borrás at a
shopping mall and again at work the next day. Borrás reported
these incidents to the internal Labor Relations Office, as well as
to the Regional Director in charge of his office. Borrás alleges
that the SIFC failed to investigate these events.
On August 29, 2014, Borrás found himself in yet another
physical altercation with Escobar, this time at a union assembly
meeting. According to Borrás, Escobar deliberately bumped into
him and then used the bump to start a fight, "physically
assault[ing]" Borrás and hitting him in the face. Borrás sustained
"bruises and injuries to his eyes, especially his left eye that
3The complaint describes two additional incidents following
Borrás's demotion but before 2013. First, Borrás again reported
Curet for fraudulent expense practices and Borrás's immediate
supervisor failed to investigate Borrás's complaint. Second,
Borrás claims that Defendant María Enid Barreto-Rodríguez, who was
coordinating political donations for the office, failed to deliver
$1,100 in donations made by Borrás that were intended for the
Popular Democratic Party. It is not clear what role, if any,
Borrás alleges these incidents played in either his earlier
demotion or his years-later suspensions.
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had been operated [on] for glaucoma." This time, Borrás reported
the incident to the police.
Borrás alleges that after this incident, Escobar
contacted Defendant Maria Enid Barreto-Rodríguez (then the
Regional Director of the SIFC office in which Borrás and Escobar
worked) to inform her of the fight. Borrás further alleges that
after receiving this information, Barreto turned to Defendant
Migdali Ramos-Rivera (then the Chief of the Labor Relations
Office), asking her to fabricate disciplinary charges against
Borrás "as if [Borrás] had been the assailant." Finally, Borrás
alleges that Ramos assigned the task of creating a falsified
disciplinary action to Defendant Francisco Irlanda-Mendez (then an
employee at the Labor Relations Office for the SIFC), who did as
he was asked.
Four days after the fight at the union assembly meeting,
Irlanda summoned Borrás for an interview regarding the incident.
Borrás refused to speak to Irlanda about the physical altercation,
citing his Fifth Amendment right against self-incrimination and
explaining that because there was an ongoing criminal
investigation by the San Juan Municipal police, he did not know if
he would be charged. The next day, September 3, 2014, Borrás
received a letter indicating that, as a result of the fabricated
assault allegations against him, he had been suspended from work,
with pay.
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On September 11, 2014, criminal charges were filed
against Escobar in Puerto Rico court for the alleged assault. At
one point, the judge instructed Ramos, who was present in the
courtroom for a discovery conference, to produce a copy of Borrás's
personnel file for in camera inspection. Ramos complied, giving
the file directly to Escobar's attorney, despite Borrás's protests
that the production of his personnel file constituted a violation
of both his privacy rights and SIFC policy. The court ultimately
found Escobar not guilty.
Borrás also alleges that while all of this was going on,
the SIFC "unlawfully transferr[ed]" his wife, Plaintiff Ivelisse
Serrano-Rodríguez, to a different regional office, allegedly in
retaliation for her testimony during the trial. Serrano
immediately filed an internal complaint challenging her transfer,
and she was reinstated to her original post.
On September 22, 2014, the SIFC held a Loudermill hearing
for Borrás. The examiner at the hearing ultimately recommended
that Borrás be suspended without pay for sixty days. Shortly
thereafter, Boráas received a letter signed by Estrada notifying
him of his suspension without pay, which adopted by reference the
recommendation made by the hearing examiner.
II. Procedural History
In January 2016, Borrás filed the present complaint in
the United States District Court for the District of Puerto Rico,
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alleging that the SIFC and its officers had conspired to deprive
him of his constitutional rights. Specifically, Borrás asserted
that his internal and external reporting of the various incidents
were constitutionally-protected "whistleblowing activities," and
that the SIFC and its administrators had punished him for these
activities by demoting and suspending him. The complaint includes
claims brought under 42 U.S.C. § 1983 ("Section 1983") that the
SIFC and its administrators' behavior violated the U.S.
Constitution, as well as claims that the SIFC violated Puerto Rico
law.
The SIFC moved to dismiss Borrás's complaint based on
Eleventh Amendment immunity. A few weeks later, the Individual
Defendants followed suit, filing a "Motion for Joinder and Motion
to Dismiss under Additional Grounds." Borrás timely filed his
opposition to each motion. In his response to the Individual
Defendants' motion, Borrás referenced the need to amend his
complaint. Nevertheless, despite the ability to amend the
complaint "once as a matter of course" under Fed. R. Civ. P.
15(a)(1), at no point did Borrás actually amend his complaint or
request leave to file an amended complaint.
The district court entered a partial judgment granting
the SIFC's motion to dismiss based on Eleventh Amendment immunity
on March 22, 2017, and a judgment dismissing the entire case with
prejudice on June 14, 2017. This appeal followed.
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III. Discussion
In this appeal, we consider five key issues. First, we
discuss the possibility that the SIFC may be insulated from suit.
Second, we consider whether the district court properly dismissed
Borrás's Section 1983 claims. Third, we consider whether the
district court properly declined to exercise supplemental
jurisdiction over Borrás's claims under Puerto Rico law. Fourth,
we consider the merits of Borrás's claim that his Loudermill
hearing did not comport with the requirements of due process
because he was not afforded a hearing in an impartial forum before
an impartial adjudicator. Finally, we consider whether the
district court violated Borrás's due process rights by denying him
the opportunity to amend his complaint before dismissing it with
prejudice.
A. Standard of Review
We review the district court's dismissal of Borrás's
complaint for failure to state a claim de novo. Cortés-Ramos v.
Martin-Morales, 894 F.3d 55, 58 (1st Cir. 2018). "The make-or-
break standard . . . is that the combined allegations, taken as
true, must state a plausible, not a merely conceivable, case for
relief." Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d
25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662,
680-81 (2009)).
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The familiar Twombly standard clarifies that under Fed.
R. Civ. P. 12(b)(6), a complaint must allege a "plausible
entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 559 (2007). In evaluating whether a plaintiff has met this
burden, we "accept[] the complaint's well-pleaded facts as true
and indulg[e] all reasonable inferences in the plaintiff's favor."
Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008). Even so, the tenet
that a court must accept as true all of the allegations contained
in a complaint is "inapplicable to legal conclusions," and
"[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555). In other words,
"[i]f the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from the
realm of mere conjecture, the complaint is open to dismissal."
Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)
(quoting Secs. and Exch. Comm'n v. Tambone, 597 F.3d 436, 442 (1st
Cir. 2010)).
B. The SIFC's Amenability to Suit
Before we reach the merits of the Section 1983 claim, we
must first discuss two preliminary arguments that could
potentially insulate the SIFC from suit altogether.
First, the SIFC asserts that it can benefit from the
Commonwealth's Eleventh Amendment immunity because it is an "arm
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of the state." Fresenius Med. Care Cardiovascular Res., Inc. v.
P.R. and Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st
Cir. 2003) (finding that whether a public entity is entitled to
Eleventh Amendment immunity is an inquiry into whether it is an
arm of the state). Indeed, "Puerto Rico is treated as a state for
Eleventh Amendment purposes," id., and the district court
dismissed the claims against the SIFC based on its entitlement to
protection under the Commonwealth's immunity.
Nevertheless, determining whether the SIFC is entitled
to Eleventh Amendment immunity is not straightforward: in separate
cases, the District of Puerto Rico has decided the issue in both
directions. Compare Joubert-Vazquez v. Alvarez-Rubio, 820 F.
Supp. 2d 289, 298-300 (D.P.R. 2011) (finding that the SIFC was not
entitled to Eleventh Amendment immunity), with Borrás-Borrero v.
State Ins. Fund Corp., CIVIL 16-1114CCC, 2017 WL 1088284, at *1
(D.P.R. March 22, 2017) (finding that the SIFC was entitled to
Eleventh Amendment immunity) (citing Order, Bisbal-Bultron v.
State Ins. Fund Corp., CIVIL 10-01555CCC, ECF No. 80, at *2-3
(D.P.R. May 6, 2014)). But "it is well-established under First
Circuit precedent that federal courts may resolve a case on the
merits in favor of a state without first resolving any Eleventh
Amendment issues the state raises." Brait Builders Corp. v. Mass.,
Div. of Capital Asset Mgmt., 644 F.3d 5, 11 (1st Cir. 2011) (citing
Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys., 173 F.3d 46, 53-57
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(1st Cir. 1999)). As a result, we may "defer thorny Eleventh
Amendment questions in cases in which it is perfectly clear that
the state entity will prevail on the merits." Dávila v.
Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 14 (1st
Cir. 2007) (citing Parella, 173 F.3d at 53-57).
Because we comfortably conclude that Borrás's Section
1983 claims lack substantive merit, we decline to address whether
the SIFC may assert the Commonwealth's Eleventh Amendment
immunity.
Second, the Puerto Rico Oversight, Management, and
Economic Stabilization Act ("PROMESA"), enacted to help the
Commonwealth navigate its public debt crisis, included an
automatic stay of ongoing litigation that could result in the
Commonwealth incurring liability. See 48 U.S.C. § 2194(b). While
the SIFC references the stay and argues that we should interpret
PROMESA to strengthen its Eleventh Amendment immunity argument,
the SIFC does not argue that this action should be stayed under
PROMESA. Both Borrás and the Individual Defendants similarly do
not argue that the PROMESA stay prevents us from addressing the
claims against the SIFC on the merits.
While we are not bound by the parties' collective failure
to discuss applicable law, we are generally reluctant to venture
beyond the ambit of the parties' arguments to decide an issue
without full briefing. See Whyte v. Conn. Mut. Life Ins. Co., 818
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F.2d 1005, 1011 n.20 (1st Cir. 1987) (declining to address an issue
not raised by the parties unless "at a minimum . . . not raising
the issue would result in a gross miscarriage of justice"). That
reluctance is particularly warranted where, as here, the
underlying legal issue is not clear-cut: it is not obvious that
the Commonwealth should be considered an "obligor[] or guarantor"
of liability incurred by the SIFC, a prerequisite for the stay to
apply. 48 U.S.C. § 2194(a)(1)(A). Furthermore, though we do not
decide the issue, we are skeptical that the PROMESA stay's
prohibition of "the commencement or continuation, including the
issuance or employment of process, of a judicial . . . action," 48
U.S.C. § 2194(b)(1), requires the automatic implementation of the
stay in lieu of dismissal on the merits. Cf. In re Pecan Groves
of Ariz., 951 F.2d 242, 245 (9th Cir. 1991) (finding that creditors
were unable to attack purported violations of an automatic
bankruptcy stay under 11 U.S.C. § 362 because the stay was intended
to benefit the debtor).
Because the parties do not argue that the PROMESA stay
applies to this litigation, and because the implementation of the
stay is not clear-cut, we bypass this argument and proceed to the
merits of Borrás's claims.
C. Borrás's Section 1983 Claims
On the merits, we begin with whether the district court
properly dismissed Borrás's Section 1983 claims. Despite the
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litany of constitutional claims alleged in his complaint, Borrás
advances a single argument on appeal: that the SIFC and the
Individual Defendants violated his freedom of expression by
retaliating against him for speaking out against his fellow
employees.
Borrás is correct that government officials may not
retaliate against an individual for blowing the whistle and
reporting misconduct by other employees. See Mercado-Berrios v.
Cancel-Alegría, 611 F.3d 18, 25 (1st Cir. 2010) (citing Hartman v.
Moore, 547 U.S. 250, 256 (2006)). However, where a state employee
plaintiff (here, Borrás) asserts that a state-employer defendant
(here, the SIFC) violated his right to free expression by taking
an adverse employment action against him, we qualify the general
prohibition against retaliation in recognition of the government's
interest in running an effective workplace. See id. at 26. We
therefore apply a three-part test in these circumstances,
considering:
(1) whether the speech involves a matter of public
concern; (2) whether, when balanced against each
other, the First Amendment interests of the
plaintiff and the public outweigh the government's
interest in functioning efficiently; and (3)
whether the protected speech was a substantial or
motivating factor in the adverse action against the
plaintiff.
Rosado-Quiñones v. Toledo, 528 F.3d 1, 5 (1st Cir. 2008) (quoting
Jordan v. Carter 428 F.3d 67, 72 (1st Cir. 2005)).
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The district court held that Borrás failed to satisfy
the first and third prongs of this test, because (1) his speech
allegedly giving rise to retaliation was not on a matter of public
concern, and because (2) he failed to plead sufficient facts
establishing that his expression was a substantial or motivating
factor in the adverse decisions taken against him.
We agree with the district court on both fronts. Borrás
all but openly concedes that his speech is not on a matter of
public concern; the entirety of his argument on appeal is that his
speech need not be on a matter of public concern because Puerto
Rico law does not require government employee speech to be on a
matter of public concern to be protected. Therefore, according to
Borrás, both Supreme Court and First Circuit law restricting the
scope of First Amendment protections for government employee
speech do not apply here.
This proposition is patently untrue as a matter of law.
"It is established beyond peradventure that a state actor's failure
to observe a duty imposed by state law, standing alone, is not a
sufficient foundation on which to erect a section 1983 claim."
Martinez v. Colon, 54 F.3d 980, 989 (1st Cir. 1995). To the
contrary, in order to state a claim under Section 1983, a plaintiff
must "allege the violation of a right secured by the Constitution
and laws of the United States[.]" West v. Atkins, 487 U.S. 42, 48
(1988). The Supreme Court has consistently clarified that Section
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1983 "'is not itself a source of substantive rights,' but merely
provides 'a method for vindicating federal rights elsewhere
conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Whether or not
Borrás has a legitimate claim under state law that the SIFC
retaliated against his free expression, his Section 1983 claims
cannot succeed to the extent that they rely on protections that
are present in Puerto Rico law but not in the U.S. Constitution or
any federal statutes, as they therefore do not vindicate "federal
rights," Atkins, 487 U.S. at 49, secured by the United States'
"Constitution and laws," 42 U.S.C. § 1983.
We follow controlling First Amendment precedent and find
that Borrás's Section 1983 claims were properly dismissed. We
have explicitly found that a complaint regarding personal
animosity between coworkers, as here, represents "a classic
example of speech concerning internal working conditions affecting
only the speaker and co-workers," not speech which concerns the
public. Rosado-Quiñones, 528 F.3d at 5; see also Connick v. Myers,
461 U.S. 138, 145-46 (1983).
The facts before us are strikingly similar to the facts
in Rosado-Quiñones, in which the plaintiff was allegedly demoted
because he filed a lawsuit against his employer claiming "labor
harassment." 528 F.3d at 5. There, we found that the plaintiff's
claims, which were applicable to him alone, did not "implicate the
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ability" of the public employer to "carry out [its] responsibility
to the public," and therefore did not merit First Amendment
protection. Id. Applying this standard to the facts presented,
we cannot discern any articulable relationship between Borrás's
conflict with Escobar and the ability of the SIFC to fulfill its
public duties. Even drawing all reasonable inferences in Borrás's
favor, our most charitable reading of the complaint still reveals
that what Borrás attempts to frame as "whistleblowing" is better
characterized as a scattered collection of misgivings about his
fellow employees who, more often than not, were acting in their
personal capacities.
None of Borrás's speech acts concern the SIFC in its
operational capacity — and even if they did, the Supreme Court has
denied First Amendment protection to "mere extensions" of personal
disputes which, if released to the public, "would convey no
information at all other than the fact that a single employee is
upset with the status quo." See Connick, 461 U.S. at 148. Because
Borrás alleges nothing in the complaint to suggest that this
incident could be related to the SIFC's "official malfeasance,
abuse of office, and neglect of duties" — the quintessential
subjects of public concern when it comes to public employee speech
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— his claim cannot survive. Rosado-Quiñones, 528 F.3d at 5
(quoting Curran v. Cousins, 509 F.3d 36, 46 (1st Cir. 2007)).4
Furthermore, even if his speech were on a matter of
public concern, Borrás still fails to allege a single non-
conclusory fact linking his suspension to his "whistleblowing"
acts. The complaint is rife with conclusory allegations that the
defendants conspired to fabricate a disciplinary claim against
Borrás concerning his physical conflict with Escobar, but remains
conspicuously silent on several key questions, such as (a) whether
the defendants even knew of the speech that allegedly engendered
retaliation to begin with; (b) whether the defendants, if they did
know of the speech that allegedly engendered retaliation, felt
negatively (or had reason to feel negatively) about the speech;
and (c) whether the defendants at any time considered Borrás's
speech when suspending him from work.
We do not suggest that Borrás must painstakingly allege
facts that would address each of these issues to state a claim for
relief. But, taken as a whole, these open questions reflect a
conspicuous dearth of factual allegations in the complaint that
4
We do not consider whether Borrás's speech in relation to
his 2010 demotion was on a matter of public concern because the
demotion is the subject of a separate action. See Order,
Bisbal-Bultron, CIVIL 10-01555CCC, ECF No. 80. To the extent
included in this action, claims related to the demotion are barred
by the statute of limitations. See Muñiz-Cabrero v. Ruiz, 23 F.3d
607, 610 (1st Cir. 1994) (explaining that the statute of
limitations for a Section 1983 claim in Puerto Rico is one year).
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might tend to show that Borrás's suspension had anything to do
with the reporting of his coworkers. Even if the facts--construed
in the light most favorable to Borrás--might lead us to conclude
that he was treated unfairly by his public employer, a First
Amendment retaliation claim must allege specific facts that
connect an adverse employment action to the speech or
whistleblowing activity. Stripped of its conclusory allegations,
the complaint cannot survive under Fed. R. Civ. P. 12(b)(6).
D. Borrás's Puerto Rico Law Claims
Having determined that Borrás's Section 1983 claims were
properly dismissed, we next turn to whether the district court
properly dismissed Borrás's claims brought under Puerto Rico law.
District courts may exercise supplemental jurisdiction over state
law claims that are "so related to claims in the [federal]
action . . . that they form part of the same case or controversy
under Article III of the United States Constitution." 28 U.S.C.
§ 1367(a). However, it is settled law that district courts may
decline to exercise supplemental jurisdiction over pendent state
law claims when the anchor federal claims for those state law
claims are dismissed. See So. Commons Condo. Ass'n v. Charlie
Arment Trucking, Inc., 775 F.3d 82, 92 (1st Cir. 2014). "[W]hen
the federal-law claims have dropped out of the lawsuit in its early
stages and only state-law claims remain, the federal court should
decline the exercise of jurisdiction by dismissing the case without
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prejudice." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988); see also United States ex rel. Kelly v. Novartis Pharm.
Corp., 827 F.3d 5, 15 (1st Cir. 2016) (recognizing that when
federal claims are dismissed "at such an early stage" supplemental
state law claims should also be dismissed). Therefore, because
the district court properly dismissed Borrás's Section 1983
claims, it acted within its power to decline to exercise
supplemental jurisdiction and, accordingly, dismiss his pendent
Puerto Rico claims as well.
But, it appears that, in dismissing Borrás's Puerto Rico
law claims without discussion, the district court dismissed them
with prejudice, stating that "the Complaint . . . is DISMISSED,
with prejudice, in its entirety." When declining to exercise
supplemental jurisdiction over claims, it "does not wash" to
dismiss them with prejudice instead of without prejudice.
Novartis, 827 F.3d at 16. We therefore vacate the district court's
dismissal of Borrás's Puerto Rico law claims with prejudice and
remand with instructions to dismiss those claims without
prejudice.
E. Loudermill Hearing
Next, Borrás argues that "[t]he district court erred
when finding that [his] Loudermill informal hearing complied with
due process," because "it goes without saying that Loudermill
hearings must take place in an impartial forum, with an impartial
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adjudicator, free of bias." This argument contravenes established
law. In Cleveland Bd. of Educ. v. Loudermill, the Supreme Court
admonished that termination decisions typically require the
employee to be granted "some kind of a hearing" to avoid running
into due process concerns. 470 U.S. 532, 542 (1985).
Critically, however, "[t]he standard the defendant must
meet [for a Loudermill hearing] . . . is not high: the U.S.
constitution requires only 'some pretermination opportunity to
respond.'" Chmielinski v. Massachusetts, 513 F.3d 309, 316 (1st
Cir. 2008) (quoting Loudermill, 470 U.S. at 542). We have
consistently held that these hearings need not be elaborate so
long as the employee receives "(1) 'oral or written notice of the
charges against him,' (2) 'an explanation of the employer's
evidence,' and (3) 'an opportunity to present his side of the
story.'" Id. (quoting Loudermill, 470 U.S. at 545-46). And, we
have explicitly said that "there is no requirement that the hearing
officer be impartial; indeed, the terminating employer may
preside." Id. at 318.
Borrás does not assert that any alleged bias deprived
him of either notice or the opportunity to put his version of the
facts before a decision-maker; this is all that Loudermill
requires. Therefore, his argument that his Loudermill hearing did
not comport with due process fails.
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F. Ability to Amend Complaint
Finally, we turn to Borrás's assertion that the district
court's failure to allow him to amend his complaint before
dismissing it with prejudice violated his right to due process.
Fisher v. Kadant, Inc. is directly on point. 589 F.3d 505 (1st
Cir. 2009). In Fisher, we considered "what effect, if any . . .
a passing reference to a possible future motion to amend, contained
in an opposition to a motion to dismiss, [has] on the district
court's authority to allow amendment of a dismissed complaint after
the entry of judgment." Id. at 507. We concluded that "such a
passing request is without effect in these circumstances," and
that the Fisher plaintiffs' failure to avail themselves of the
opportunity to amend their complaint as of right before the
issuance of judgment against them rendered them without recourse
after the entry of judgment. Id.
Here, like the plaintiffs in Fisher, Borrás adverted to
the need to amend his complaint in his opposition to the
defendants' motion to dismiss. Nevertheless, at no point did
Borrás either take advantage of Fed. R. Civ. P. 15(a)(1), which
allows a pleading to be amended "once as a matter of course," or
request leave to amend under Fed. R. Civ. P. 15(a)(2). See Fed.
R. Civ. P. 15(a)(1)-(2) (allowing parties to amend pleadings "once
as a matter of course" under certain limitations and, outside those
limitations, with leave of the court or the other party's written
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consent). Only after the issuance of a judgment against him did
Borrás argue, on appeal, that he should have been permitted to
amend his complaint. Because Borrás chose not to file an amended
complaint prior to the issuance of judgment against him, there was
no due process violation.
IV. Conclusion
For the foregoing reasons, we affirm the district
court's dismissal of the federal law claims with prejudice, vacate
the dismissal of Borrás's Puerto Rico law claims with prejudice,
and remand with instructions to dismiss the Puerto Rico law claims
without prejudice.
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