Rojas-Velazquez v. Figueroa-Sancha

United States Court of Appeals
For the First Circuit
No. 11-1447
ISRAEL E. ROJAS-VELÁZQUEZ ET AL.,
Plaintiffs, Appellants,
v.
JOSÉ FIGUEROA-SANCHA ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Heriberto Güivas-Lorenzo, with whom Güivas & Quiñones Law
Offices, PSC was on brief, for appellants.
Carlos Lugo-Fiol, with whom Luis R. Román-Negrón, Solicitor
General, was on brief, for appellees.
March 29, 2012
SELYA, Circuit Judge. Plaintiff-appellant Israel Rojas-
Velázquez, a Commander in the Puerto Rico Police Department (the
Department), complains that the Department and several of its high-
ranking officials abridged his constitutional rights by (i)
stripping him of certain duties and perquisites on account of his
good relations with members of an opposing political party and (ii)
denying him due process.1 The district court dismissed the
complaint for failure to state a plausible claim. Rojas-Velázquez
v. Figueroa-Sancha, No. 09-1664, 2010 WL 2838615, at *2-4 (D.P.R.
July 19, 2010). Discerning no error, we affirm.
I. BACKGROUND
When, as now, an appeal tests the mettle of a dismissal
for failure to state a claim, we accept as true the well-pleaded
facts delineated in the complaint and give the benefit of all
reasonable inferences therefrom to the pleader. See Miranda v.
Ponce Fed. Bank, 948 F.2d 41, 43 (1st Cir. 1991).
The appellant began working for the Department in 1986.
Over more than two decades, he made steady progress. Even though
he was a card-carrying member of the New Progressive Party (NPP),
one of Puerto Rico's two major political parties, he received
promotions during times when the NPP's main rival, the Popular
Democratic Party (PDP), dominated the executive branch of the
1
The appellant's wife and their conjugal partnership are
named as co-plaintiffs. Because their claims are purely
derivative, we proceed as if the appellant were the only plaintiff.
Our decision is, of course, binding on all parties.
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Commonwealth's government. In 2008, he received such a promotion
to the rank of Commander. The complaint does not allege that there
is any job description for the rank of Commander assigning any
particular complex of duties to that rank.
We have observed before that "irony is no stranger to the
law." Amanullah v. Nelson, 811 F.2d 1, 18 (1st Cir. 1987). In yet
another example of this verity, the appellant's career path became
rocky when his own party, the NPP, won the 2008 general election
and regained control of the government. At that point, some
departmental hierarchs began openly questioning his fealty to the
NPP in light of his promotion to Commander during the previous PDP
administration. In short order, the Department's newly entrenched
leadership eliminated many of his former duties, retrieved his
official cellphone and departmental car, evicted him from his
office, and reassigned him to the performance of mundane tasks that
he viewed as beneath the dignity of his rank.2
The appellant interpreted these serial workplace changes
as a response to his perceived ties to the PDP. Despite the
changes, however, he was neither discharged nor stripped of his
rank, and he does not allege that his compensation was diminished.
On the heels of these developments, the appellant sued
the Department and several of its leaders in the federal district
2
The complaint is conspicuously silent as to the nature of
the duties and functions that the appellant claims were eliminated
under the new regime. It is similarly unenlightening regarding the
specific tasks that were subsequently assigned to him.
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court.3 Invoking 42 U.S.C. § 1983, he alleged that the defendants
had violated his First and Fourteenth Amendment rights by (i)
taking adverse employment actions against him based on political
animus and (ii) depriving him of a property interest in the
functions of his job without due process. He added pendent claims
under local law.
The defendants moved to dismiss the complaint. See Fed.
R. Civ. P. 12(b)(6). The district court (Pieras, J.) dismissed the
section 1983 claims on the ground that the appellant had failed to
show that the alleged adverse employment actions were either
reprisals for engaging in constitutionally protected activity or
deprivations of due process. Rojas-Velázquez, 2010 WL 2838615, at
*2-3. It then declined to exercise supplemental jurisdiction over
the local-law claims and dismissed them without prejudice. Id. at
*3; see 28 U.S.C. § 1367(c)(3). After the appellant moved
unsuccessfully to alter or amend the judgment,4 see Fed. R. Civ. P.
59(e), he filed a notice of appeal.
3
The individuals named in the complaint, all of whom were
sued in both their personal and official capacities, include José
Figueroa-Sancha (the superintendent of the Department), Antonio
Rivera-Estela (the director of the Department's Arecibo region),
and Deborah M. Vega (the Department's human resources director).
4
Sadly, Judge Pieras's illness rendered him unable to
complete the handling of the case. Judge Fusté stepped into the
breach and summarily denied the Rule 59(e) motion.
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II. ANALYSIS
At the analytic threshold, we pause to iron out a
jurisdictional wrinkle. We then proceed to consider each component
of the appellant's asseverational array.
A. Appellate Jurisdiction.
In the notice of appeal, the appellant listed only the
denial of his Rule 59(e) motion. In his brief on appeal, however,
he assails the propriety of the underlying dismissal. This
mismatch is potentially significant because the jurisdiction of the
court of appeals normally is limited to review of orders and
judgments specifically described in the notice of appeal. See
Constructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co., 467
F.3d 38, 43-44 (1st Cir. 2006); Shelby v. Superformance Int'l,
Inc., 435 F.3d 42, 45 (1st Cir. 2006); see also Fed. R. App. P.
3(c)(1)(B).
Here, however, the jurisdictional problem is more
apparent than real. This case falls within an exception to the
general rule. When "the propriety of denying reconsideration is
inextricably intertwined with the correctness of the original
order," the appellee is perforce alerted to the fact that listing
of the former in the notice of appeal will entail testing the
cogency of the latter. Alstom Caribe, Inc. v. Geo. P. Reintjes
Co., 484 F.3d 106, 112 (1st Cir. 2007). In such a situation,
enumerating the denial of reconsideration in the notice of appeal
establishes appellate jurisdiction over both the underlying order
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and the order denying reconsideration. See id. So it is here: the
notice of appeal listed the order denying reconsideration and,
thus, adequately apprised the defendants that the dismissal itself
would be contested on appeal. We therefore have jurisdiction to
review the appellant's challenge to the order of dismissal.
B. Section 1983 Claims.
We review an order of dismissal for failure to state a
claim de novo. McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.
2006). In undertaking this chore, we accept as true all well-
pleaded factual allegations limned in the complaint and cede all
reasonable inferences therefrom in the pleader's favor. Bergemann
v. R.I. Dep't of Envtl. Mgmt., 665 F.3d 336, 339 (1st Cir. 2011).
To make out a viable cause of action under section 1983,
a plaintiff must allege that the defendants, while acting under
color of state law, deprived him of rights secured by the
Constitution or federal law. Santiago v. Puerto Rico, 655 F.3d 61,
68 (1st Cir. 2011). For this purpose, Puerto Rico is the
functional equivalent of a state, Pagán v. Calderón, 448 F.3d 16,
31 n.6 (1st Cir. 2006), and the present defendants do not dispute
that they were acting under color of Puerto Rico law. The only
question, then, is whether their actions impermissibly deprived the
appellant of any federally assured right.
The appellant advances two theories as to how his
constitutional rights were transgressed. We examine these theories
separately.
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1. Political Discrimination. The appellant's flagship
theory implicates the First Amendment. In this regard, he notes
that the First Amendment protects non-policymaking public employees
from suffering adverse employment consequences in retaliation for
engaging in political activity. See, e.g., Rutan v. Repub. Party
of Ill., 497 U.S. 62, 69 (1990); Branti v. Finkel, 445 U.S. 507,
516-17 (1980). Relying on this principle, he argues that the
defendants impugned his First Amendment rights by trimming his
duties and removing certain of his perquisites (e.g., a cellphone
and a departmental motor vehicle) based on political animus.
As a general matter, the appellant is correct that non-
policymaking public employees are protected by the First Amendment
against adverse employment actions taken in response to their
political activities and affiliations. Without such protection,
those employees might be chilled from engaging in core First
Amendment activities, such as joining a political party or
expressing their views on public issues; or they may feel compelled
to support policies and candidates that they find odious. See
Elrod v. Burns, 427 U.S. 347, 355-57 (1976) (plurality op.); see
also Rutan, 497 U.S. at 69 ("[C]onditioning employment on political
activity pressures employees to pledge political allegiance to a
party with which they prefer not to associate, to work for the
election of political candidates they do not support, and to
contribute money to be used to further policies with which they do
not agree.").
-7-
In this context, something short of outright termination
can comprise an adverse employment action. See Rutan, 497 U.S. at
74-76. If a public employer imposes unreasonably inferior working
conditions on a non-policymaking employee on account of the
latter's engagement in constitutionally protected activity, that
imposition can amount to an adverse employment action (and, thus,
support a claim of constitutional breach). See Carrasquillo v.
Puerto Rico ex rel. Justice Dep't, 494 F.3d 1, 4 (1st Cir. 2007);
Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217-18 (1st
Cir. 1989) (en banc).
But this is not to say that the First Amendment protects
against any and all adverse employment actions. It does not. The
prophylaxis of the First Amendment operates to shield public
employees from adverse employment actions only to the extent that
those actions result from their engagement in constitutionally
protected activities. See Barry v. Moran, 661 F.3d 696, 704 (1st
Cir. 2011); González-de-Blasini v. Family Dep't, 377 F.3d 81, 85-86
(1st Cir. 2004); see also Garcetti v. Ceballos, 547 U.S. 410, 420
(2006) (holding that "the First Amendment . . . does not empower
[public workers] to constitutionalize the employee grievance"
(internal quotation marks omitted)). It follows that in order to
make out a section 1983 claim under a political discrimination
theory, a public employee must show that "his conduct was
constitutionally protected, and that this conduct was a
'substantial factor' — or . . . a 'motivating factor'" with respect
-8-
to the negative employment decision. Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see Carrasquillo,
494 F.3d at 4 ("To prevail on a claim of political discrimination,
a public employee must at a minimum show that she engaged in
constitutionally-protected conduct and that this conduct was a
substantial factor in the adverse employment decision.").
Applying these tenets, we agree with the district court
that the appellant has not alleged a plausible claim of political
discrimination. Even assuming, for argument's sake, that the
curtailment of his job functions and perquisites might qualify as
an adverse employment action, the appellant has not plausibly
alleged that his participation in constitutionally protected
activities drove that adverse action. We explain briefly.
The appellant alleges that the defendants' misperception
of his political leanings played a decisive role in his plunge into
obscurity. He explains that this misperception came about as a
result of his professional advancement during PDP administrations.
The rub is that professional success is not an activity that the
First Amendment protects. This is a matter of considerable import:
where, as here, a plaintiff fails to tie the alleged adverse
employment action to some protected activity, a political
discrimination claim cannot prosper. See, e.g., Barry, 661 F.3d at
708 (dismissing political discrimination claim where plaintiff
alleged that cronyism led to adverse employment action because
cronyism does not implicate First Amendment rights).
-9-
To be sure, political affiliation itself is a
constitutionally protected activity. See, e.g., Gomez v. Rivera
Rodriguez, 344 F.3d 103, 109-10 (1st Cir. 2003). But the appellant
has not alleged that he is being discriminated against because of
either his party preference or any other affiliation of a political
nature. He — like the defendants — is a member of the NPP, and he
does not in any way suggest that his party membership is at the
root of his troubles.5
This would be a different case if the defendants'
misperception of the appellant's political leanings arose from
protected activity or affiliation. See, e.g., Welch v. Ciampa, 542
F.3d 927, 938-39 (1st Cir. 2008) (upholding political
discrimination claim where plaintiff alleged that his protected
decision to remain neutral in recall election created a perception
regarding his political views and led to politically motivated
reprisals). Here, however, the appellant has not averred that the
defendants' misperception regarding his political loyalty (or lack
thereof) was based on his membership in the PDP, his support for
PDP candidates, his advocacy of pro-PDP policies, or any other
protected activity. Instead, he frankly admits that he is a member
of the NPP and alleges in substance that he has been penalized for
5
When factions exist within a single political party, there
may be situations in which a political discrimination claim can be
brought by a party member against other party members who belong to
a different faction. See Padilla-Garcia v. Guillermo Rodriguez,
212 F.3d 69, 73-76 (1st Cir. 2000). Here, the appellant has made
no effort to bring his case within this category.
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his successful professional relationships with members of prior PDP
administrations. This may be an undeserved penalty, but
discrimination based on non-political associations does not
implicate the First Amendment. See Correa-Martinez v. Arrillaga-
Belendez, 903 F.2d 49, 57 (1st Cir. 1990) (dismissing political
discrimination claim premised on the plaintiff's personal
relationship with an official with whom the defendants had
political differences). In other words, "the first amendment does
not protect against all deprivations arising out of an act of
association unless the act itself — say, joining a church or a
political party, speaking out on matters of public interest,
advocacy of reform — falls within the scope of activities eligible
for inclusion within the constitutional tent." Id. The
appellant's adroit networking with PDP leaders is an act of
association that falls outside of this tent.
2. Due Process. The appellant has a second section 1983
claim. He heralds the Fourteenth Amendment's prohibition against
a state depriving "any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1.
Building on this foundation, he asserts that he had a cognizable
property interest in his official job functions and that the
defendants deprived him of that interest without any process at
all.6
6
In his due process claim, the appellant focuses exclusively
on the curtailment of his job functions. He does not assert that
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Inasmuch as this is a procedural due process claim, it
can succeed only if the appellant has plausibly alleged a
constitutionally protected property interest in the functions of
his job. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
569-72 (1972). Determining whether the appellant had such an
interest requires us to look to local law. See Rosario-Torres v.
Hernandez-Colon, 889 F.2d 314, 319 (1st Cir. 1989) (en banc) ("The
sufficiency of a claim of entitlement to a property interest in
public employment must be measured by, and decided with reference
to, local law."). On this point, Puerto Rico law is pellucid: a
public employee may have a property interest in his continued
employment, see Costa-Urena v. Segarra, 590 F.3d 18, 27 (1st Cir.
2009), but not in the particular functions of his job, see Soto-
Padró v. Pub. Bldgs. Auth., ___ F.3d ___, ___ (1st Cir. 2012) [No.
10-2413, slip op. at 15-16]; Ruiz-Casillas v. Camacho-Morales, 415
F.3d 127, 134 (1st Cir. 2005).
The appellant has not alleged that he was terminated,
that he was demoted from the rank of Commander, or that his
compensation was diminished. All that he alleges is the loss of
job-related duties, never specifically described, in which Puerto
Rico law cedes him no constitutionally protected property interest.
Absent a deprivation of a constitutionally protected property
he had a constitutionally protected property interest in the
paraphernalia that has been taken away from him (e.g., the
cellphone and the departmental motor vehicle).
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interest, the appellant has not stated a plausible due process
claim.
In an attempt to distract us from this obvious
conclusion, the appellant argues that P.R. Laws Ann. tit. 25,
§ 3111 and a section of the Department's personnel handbook grant
him a cognizable property interest in the functions of his
position. These sources cannot support the weight that the
appellant places upon them.
The statutory provision says nothing about job
functions.7 Accordingly, it sheds no light on the existence vel
non of any property interest in such functions.
7
Subsection (a) of the statute prescribes a compensation
schedule for the various ranks in the Department. The remainder of
the provision reads:
(b) The Puerto Rico Police shall be constituted into a
unified organizational system in which the Superintendent
determines the best use of the human resources available
as provided in § 3105(d) of this title.
(c) The creation of any rank, classification or
specialized classification of the members of the Police,
other than those provided in §§ 3101-3138 of this title,
is hereby prohibited.
(d) No member of the Force who has not belonged to it for
a term of fifteen (15) years or more shall be considered
for promotion to the rank of Inspector, Major, Lieutenant
Colonel or Colonel.
(e) All academic requirements established herein shall be
applicable as provided in § 3137(c) of this title.
P.R. Laws Ann. tit. 25, § 3111.
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The reference to the personnel handbook is even less
helpful to the appellant. He has not supplied either the district
court or this court with a copy of the handbook, quoted its
pertinent language, or developed any coherent argument explaining
how the handbook creates a cognizable property interest.
Consequently, any argument predicated on the handbook has been
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
C. Pendent Claims.
The district court's dismissal without prejudice of the
claims brought under Puerto Rico law need not detain us. Because
the only federal claims in this suit were properly dismissed, see
supra Part II(B), the court's decision not to exercise supplemental
jurisdiction over the pendent claims cannot seriously be
questioned. See Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182,
191 (1st Cir. 2011); Martinez v. Colon, 54 F.3d 980, 990-91 & n.12
(1st Cir. 1995).
D. Rule 59(e).
The final matter is the appellant's claim that the
district court erred in refusing to alter or amend the order of
dismissal. We review a denial of a motion to alter or amend a
judgment for abuse of discretion. Negrón-Almeda v. Santiago, 528
F.3d 15, 25 (1st Cir. 2008). We descry none here.
As we already have explained, the court below did not
commit legal error when it dismissed the section 1983 claims. See
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supra Part II(B). A fortiori, it did not abuse its discretion by
declining to revisit the order of dismissal. See Hannon v. Beard,
645 F.3d 45, 51 n.5 (1st Cir. 2011) (stating that "[a] trial court
acts well within its discretion in declining to reconsider a
legally correct order").
III. CONCLUSION
We need go no further. Both of the appellant's theories
of constitutional injury fail. Because he has not plausibly
alleged that the defendants deprived him of any federally assured
right, his section 1983 claims were correctly dismissed. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In the aftermath of that
ruling, his pendent claims were also appropriately dismissed, and
his Rule 59(e) motion was properly denied.
Affirmed.
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