United States Court of Appeals
For the First Circuit
No. 04-1154
ENRIQUE ACEVEDO-FELICIANO, ET AL.,
Plaintiffs, Appellants,
v.
MIGUEL A. RUIZ-HERNÁNDEZ, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Claudio Aliff Ortiz, with whom Pablo Landrau Pirazzi and
Aldarondo & López Bras were on brief, for appellants.
Jorge Martínez-Luciano, with whom Gina Ismalia Gutiérrez-
Galang, Law Offices Pedro Ortiz Alvarez, Alfredo Acevedo-Cruz,
and Civil Rights Legal Task Force were on brief, for appellees.
May 11, 2006
LYNCH, Circuit Judge. Plaintiffs and appellants are
twenty-two former temporary employees of the Municipality of
Aguada, Puerto Rico. Each held a contract stating that the term of
employment was effective through June 30, 2001, but also stating
that the employment was "by way" of a particular financial grant (a
"Law 52" grant, explained further below) that the Municipality had
received from the Commonwealth. Funding under that grant was
exhausted on December 31, 2000, and the Municipality, under a new
Mayor, terminated plaintiffs' contracts one month later on the
basis of lack of Law 52 funding.
Plaintiffs sued the Municipality and individual municipal
officers (in their official and personal capacities) under 28
U.S.C. § 1983 on two federal claims and related state claims. They
alleged that the termination of their contracts before the
expiration dates, without a pretermination hearing, violated their
procedural due process rights under the U. S. Constitution. They
also alleged that their contracts were terminated because they
belonged to a different political party, the New Progressive Party
(NPP), than the newly elected Popular Democratic Party (PDP) mayor
of the Municipality in violation of the First Amendment.
Plaintiffs sought injunctive and declaratory relief, back pay,
front pay, economic and punitive damages, pre- and post-judgment
interest, and other relief.
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At trial on June 16, 2003, after the close of plaintiffs'
evidence, the district court granted judgment under Rule 50, Fed.
R. Civ. P., for defendants on the procedural due process claim.
The court held that the plaintiffs had no property interest in
further employment inasmuch as the program in which they were
employed depended upon receipt of the Law 52 funding from the
Commonwealth which had expired on December 31, 2000. The jury
considered the First Amendment claim and returned a verdict for
defendants.
On appeal, the plaintiffs challenge both the Rule 50
procedural due process ruling and the denial of a motion for
mistrial based on a nearly three-month delay in the middle of the
trial proceedings. They do not challenge the jury verdict. As to
the denial of the motion for mistrial, we find no abuse of
discretion and affirm. As to the procedural due process claim,
however, we vacate and remand for further consideration.
I.
The Commonwealth established the Law 52 program more than
twenty-five years ago. Under the program, see P.R. Laws Ann. tit.
29, § 711c, Puerto Rico "subsidize[s] locally managed programs to
ameliorate unemployment." Gomez v. Rivera Rodriguez, 344 F.3d 103,
107 (1st Cir. 2003). Municipalities do not have an automatic
entitlement to Law 52 grants: a municipality must submit a proposal
describing how it will use the money; such proposals must be
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approved by the Commonwealth's Department of Labor and Human
Resources (DLHR). Id. Once a grant is approved, the Commonwealth
and the municipality sign a contract specifying how much money the
municipality will receive, over what term, and how many jobs it
will subsidize. The various Law 52 contracts between the
Municipality of Aguada and the DLHR contained standard clauses
stating that the Municipality "commit[ted] itself to create" the
number of jobs specified, and that "[u]nder no circumstances will
it be construed that people hired [by virtue of the Law 52
contract] are or act as employees of the [DLHR]."
On July 1, 2000, a new Law 52 agreement ("the Law 52
contract") between the Municipality and the DLHR took effect.
Under the contract's provisions, the DLHR awarded the Municipality
$295,908 to pay the salaries and benefits of the forty-five
employees through December 31, 2000. The Law 52 contract required
the Municipality to keep the Law 52 funds separate from other
municipal funds.
The plaintiffs are among the forty-five workers hired by
the Municipality in connection with this Law 52 grant. Between
June 20 and September 1, 2000, each of the plaintiffs received
letters ("the hiring letters") signed by then-Mayor Julio César
Román, appointing them to various municipal jobs, including
carpentry and labor positions. The stated starting dates for these
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jobs ranged from July 1 to September 6, 2000. The stated
termination date for each job was the same: June 30, 2001.
Mayor Román was a member of the NPP, as is each of the
plaintiffs. It is noteworthy that the Mayor's letter used an
employment date for the plaintiffs through June 2001, despite the
fact the Law 52 funding lasted only through December 2000, and that
he did so in the face of an upcoming municipal election in which
control of the municipal government might switch to the opposing
political party. Defendants rely on this to argue that the Mayor
acted ultra vires in using a termination date of June 30.
The hiring letters signed by Mayor Román varied only
slightly in their terms. A typical letter, such as the one sent to
plaintiff José Méndez Valle, stated:
Allow me by these means [to] appoint you to
hold the post of Laborer by way of the Labor
Department Proposal1 for this Municipal
Administration.
The same shall be effective September 6, 2000
until June 30, 2001. You shall earn a monthly
salary of $837.00.
As of the autumn of 2000, then, the twenty-two plaintiffs
were all employed by the Municipality and receiving salaries paid
out of Law 52 funds. On November 7, 2000, elections were held in
Aguada, and a new mayor, defendant Miguel Ruiz-Hernández of the
1
It is clear that "the Labor Department Proposal" is a
reference to the Municipality's request for Law 52 funding from the
DLHR.
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PDP, was elected. The twenty-two plaintiffs had supported the new
Mayor's opponent in the mayoral race.2
Mayor Ruiz-Hernández was sworn into office on January 9,
2001. By this time, the funding provided by the Law 52 contract
had expired. The Municipality nonetheless continued plaintiffs'
employment through the month of January, paying their salaries out
of municipal funds. On January 31, however, Mayor Ruiz-Hernández
sent letters to the plaintiffs ("the firing letters") informing
them that the Law 52 funds had expired a month earlier and that
their jobs were therefore being terminated. A typical firing
letter, this one addressed to plaintiff Edwin Acevedo Acevedo, read
as follows:
I hereby inform you that your work contract
through the Proposal of the Department of
Labor and Human Resources (Law 52) expired on
December 31, 2000. The previous
administration failed in not informing you
that your contract expired and that your
functions ceased on the aforementioned date.
We do not have the funds that the Department
of Labor and Human Resources provided for
these contracts. That is why we have to
dispense with your services. We regret the
inconveniences this may cause you.
All of the plaintiffs' jobs were terminated on January 31; none of
the plaintiffs were granted a pre-termination hearing, although
2
The opponent was not Mayor Román; he had not run for
reelection.
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each had notice (via the firing letters) that the stated reason for
termination was the expiration of Law 52 funding.
On February 12, 2001, less than two weeks later, the
Municipality and the DLHR entered into a new Law 52 contract, which
provided funding for forty positions from February 16 through June
30, 2001. None of the plaintiffs were offered any of the jobs
created by these funds, despite the fact that defendant Glenda
Peña-Muñoz, the new municipal human resources director appointed by
Mayor Ruiz-Hernández, had promised them they would be recalled when
new Law 52 funds were procured.
The plaintiffs filed suit on April 12, 2001, against the
Municipality, Mayor Ruiz-Hernández, and Human Resources Director
Peña-Muñoz.3 In response to plaintiffs' political discrimination
claim, defendants countered that the terminations had nothing to do
with political animus, but were instead inevitable and proper given
the cessation of Law 52 funding. And as to the procedural due
process claim, defendants argued that Mayor Román had had no
authority to offer the plaintiffs contracts that outlasted the Law
52 funding; thus the contracts were void as to a June 30
3
Plaintiffs also sued municipal Director of Public Works
Aníbal Mendoza, but the district court dismissed Mendoza from the
case prior to the verdict, and plaintiffs do not appeal as to him.
The defendants filed a third-party complaint against former Mayor
Román; this complaint likewise was dismissed by the district court,
and Mayor Román is not a party on appeal.
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termination date, and no pre-termination hearing was required under
the Due Process Clause.4
Jury trial began on March 19, 2003. On April 4,
plaintiffs rested. Defendants moved for judgment as a matter of
law pursuant to Fed. R. Civ. P. 50(a) as to the political
discrimination and procedural due process claims. On June 16,
2003, during an extended hiatus in the trial (discussed further
below), the district court entered judgment for the defendants on
the procedural due process claim but allowed the political
discrimination claim to proceed. Trial resumed on July 1 on the
plaintiffs' remaining claims and the jury rejected the political
discrimination claim on July 18.5
4
Defendants also argued, in the district court and on appeal,
that some of the Municipality's Law 52 employees had not just a
hiring letter in their personnel files, but also a second letter
from Mayor Román, identical to the first except for the fact that
it stated a term of employment through December 31, 2000.
Defendants imply that Mayor Román knew he had to shorten
plaintiffs' terms of employment, that he took steps to do so, but
that he reversed course after his party lost the election, either
by removing the second letter from the plaintiffs' files or by
inserting a third letter with identical terms to the first.
Defendants point to a smattering of evidence in the record that
lends support to this idea. The district court did not mention
this evidence in granting judgment on the due process claims.
5
As to the negligence issue, the jury found for the
plaintiffs only against the Municipality itself, not defendants
Mayor Ruiz-Hernández and Peña-Muñoz. On August 12, 2003, the
Municipality moved for post-trial judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(b). It argued that since plaintiffs
had centered their negligence claim on the actions of Mayor Ruiz-
Hernández and Peña-Muñoz, and since the jury had found both not
liable, the Municipality itself could not be liable either. In a
December 19, 2003 order, the district court agreed and entered
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II.
A. Denial of Mistrial Based on The Trial Delay
Plaintiffs argue the district court erred in not granting
their motion for mistrial.
On April 4, 2003, the day the plaintiffs rested, the
district court authorized the jury forewoman to take a previously
scheduled vacation from April 11 through April 27 and halted the
trial pending her return. None of the parties objected to this
continuance, despite having had the chance to do so both on April
4 and at sidebar on April 2.
On April 24, the district court announced a date for
resumption of the trial, noting that it had two additional trials
scheduled for May and that another juror had told the court he
would be away from May 30 to June 22. The district court decided
that the trial would not reconvene until June 23. Again, there
were no objections.
On June 17, after the trial had already been on hold for
two-and-a-half months and only a week before it was to resume,
plaintiffs raised their first objection to the delay, moving for a
judgment for the Municipality. The plaintiffs have not appealed
from this ruling.
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mistrial.6 The district court rejected the motion three days
later. In a June 26 explanatory order, the court stated that
calendar exigencies and the unopposed absence
of two jurors in this case were the only
reasons for the interruption . . . . The
adjournment was compelled under the
circumstances since the Court could neither
vacate the trial settings in the other cases
nor did the plaintiffs in this case oppose the
absence of the two jurors who took annual
leave.
Review of denial of a motion for mistrial is for abuse of
discretion. Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399
F.3d 52, 62 (1st Cir. 2005). We will not reverse if there is no
showing of prejudice. See, e.g., Ferrara & DiMercurio v. St. Paul
Mercury Ins. Co., 240 F.3d 1, 12 (1st Cir. 2001); Clemente v.
Carnicon-P.R. Mgmt. Assocs., 52 F.3d 383, 388 (1st Cir. 1995)
(finding no abuse of discretion in part because appellant did not
"demonstrate[] actual prejudice"). Plaintiffs argue that prejudice
may be presumed from a protracted delay after the close of
plaintiffs' evidence. They cite supporting case law to this effect
from other courts. See Young & Simon, Inc. v. Merritt Sav. & Loan,
Inc., 672 F.2d 401 (4th Cir. 1982); Citron v. Aro Corp., 377 F.2d
750 (3d Cir. 1967). But whether prejudice may be presumed or not
is not the point.
6
The belated objection came a day after the district court
granted judgment in favor of the defendants as to the due process
claims.
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More important here is that plaintiffs did not offer any
objection when consulted about the time off requested by the two
jurors. As the district court pointed out in denying the mistrial
request, plaintiffs had multiple opportunities to object to the
initial three-week hiatus, and they did not do so. To the
contrary, they explicitly told the district court they had no
objection. Plaintiffs argue that their lack of objection "may"
have stemmed from their concern "that the vacationing juror . . .
could have become indisposed with plaintiffs for ruining her
leisure time." If that were so, then plaintiffs made a tactical
choice with which they must live. It may not be so: the record
makes clear that the district court offered plaintiffs the chance
to object at sidebar, out of the jury's presence, and they
declined. This was still a tactical choice. As to the second
portion of the continuance, the plaintiffs did not object until
June 17, one week before trial was scheduled to resume.
Plaintiffs did too little, too late. See Clemente, 52
F.3d at 388 (refusing to find an abuse of discretion in the
district court's denial of a mistrial where appellant had not
"preserved her rights"); id. at 388 n.5 (noting that "the time to
complain . . . is at the outset" and that "plaintiff did not make
a peep" when the district court took the action which plaintiff
later said warranted a mistrial). The cases plaintiffs rely on do
not help them in the face of their failure to object. See Young &
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Simon, 672 F.2d at 402 n.2 (ordering a new trial and repeatedly
emphasizing that "counsel timely and persistently objected to the
[delay] when it was proposed, when it occurred, and after the trial
ended"); Citron, 377 F.2d at 753 (ordering a new trial despite a
lack of objection to the delay, but emphasizing that the trial
judge had told counsel that he was not going to cancel a planned
trip "for this case or any other case," thus making clear in
advance that objection would be futile). The district court did
not abuse its discretion.
B. Rule 50 Motion Re: Procedural Due Process
The district court's grant of defendants' Rule 50(a)
motion as to the procedural due process claim is subject to de novo
review. Burton v. Town of Littleton, 426 F.3d 9, 14 (1st Cir.
2005). "We review the evidence, taking all inferences in favor of
[plaintiffs], and ask whether a reasonable jury could have found
defendants liable based on the evidence presented." Id.
In a due process claim stemming from the termination of
employment, "a public employee must first demonstrate that he has
a reasonable expectation, arising out of a statute, policy, rule,
or contract, that he will continue to be employed." Wojcik v.
Mass. State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002). We
determine whether such a property interest exists "by reference to
state law." Bishop v. Wood, 426 U.S. 341, 344 (1976).
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While state law may create property interests, it is a
separate question of federal law whether those interests rise to
the level of a legitimate claim of entitlement sufficient to
trigger procedural due process protections. See Memphis Light, Gas
& Water Div. v. Craft, 436 U.S. 1, 9 (1978) ("Although the
underlying substantive interest is created by 'an independent
source such as state law,' federal constitutional law determines
whether an interest rises to the level of a 'legitimate claim of
entitlement' protected by the Due Process Clause." (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))).
If the employee has such a state property interest, and
that property interest rises to the level of a "legitimate claim of
entitlement," id., then the employer cannot dismiss the employee
without affording him due process of law. See, e.g., Gomez v.
Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir. 2003). In the public
employment context, the required process typically includes "some
kind of hearing" and "some pretermination opportunity to respond."
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
Under our case law a one-year contract of employment with
a Puerto Rico government body usually suffices to show a property
interest sufficient under Commonwealth law. See, e.g., Caro v.
Aponte-Roque, 878 F.2d 1, 4 (1st Cir. 1989). Plaintiffs here argue
that they had approximately one-year contracts of employment, that
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those contracts had not yet expired, and therefore that defendants
were required to give them pre-termination hearings.
The district court disagreed, finding that plaintiffs had
no property interest in their employment past December 31, 2000,
the day Law 52 funding expired. As we understand the ruling, the
district court determined that either the Law 52 contract or
municipal law required that each plaintiff's hiring contract be
read to include the implicit condition that the term of employment
was conditioned on the Municipality's receipt of Law 52 funding.
The district court's stated reasoning was as follows.
The former mayor, it held, "lacked authority under the Law 52
contract then in effect" between the Municipality and the DLHR to
extend the appointments beyond the term of funding specifically set
forth in the award under Law 52. In response to the plaintiffs'
argument that the former mayor could have "extended" plaintiffs'
appointments and paid them using municipal funds, the district
court stated that it "need not delve into that possibility" because
"in making the appointments the former Mayor made sole and express
reference to the Law 52 'proposal' as the mechanism which made them
possible." The court relied on the hiring letters and their
references to appointments "by way of" the Law 52 funding
agreement. The court concluded:
[T]he former Mayor clearly acted ultra vires
in making appointments to Law 52 posts for
terms that exceeded the duration of the Law 52
grant, and in so doing failed to extend
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plaintiffs' property interest in continued
employment in their positions beyond the term
established in the Law 52 contract.
The court correctly referred to precedent to the effect that (1)
illegally obtained public employment confers no property interest
on the employee, see Rosario-Torres v. Hernandez-Colon, 889 F.2d
314, 319-20 (1st Cir. 1989) (en banc), and (2) written assurances
in a letter of engagement are insufficient to contravene a
"comprehensive network of statutory and regulatory directives
governing the terms of . . . employment," Correa-Martinez v.
Arrillaga-Belendez, 903 F.2d 49, 54-55 (1st Cir. 1990), overruled
on other grounds by Educadores Puertorriqueños en Accion v.
Hernández, 367 F.3d 61, 64 (1st Cir. 2004).
On appeal, plaintiffs argue that the due process interest
was created by the hiring letters, which themselves do not
explicitly limit the terms of the appointments to the limits on Law
52 funding. They say the Mayor had authority to enter into a
contract of a term of one year legally, without limits under Law
52, by providing additional funding from the municipal budget.
We understand the district court to have ruled as a
matter of law that Law 52, by its terms, prohibits the extension of
Law 52-funded jobs using municipal funds. But the law itself
contains no such prohibition. Indeed, the law speaks only in
general terms: it states that funds disbursed thereunder shall be
used to promote, inter alia, "employment opportunities in
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occupations with future possibilities," "jobs that are in demand in
the present market," and "the creation of high productivity
employment opportunities." P.R. Laws Ann. tit. 29, § 711c(b). It
further states that "[s]aid moneys may also be used to maintain
existing jobs, extend their duration, modify compensation as [a]
transitory remedial measure in situations that may involve possible
job loss, when it is deemed justifiable in the Secretary's
judgment." Id. § 711c(c). The statute does not support the
district court's conclusion.7
Nothing in the terms of the Law 52 contract between the
Commonwealth and the Municipality adds such a prohibition. It is
true that the Law 52 contract was effective only "until December
31, 2000," that it listed the "number of months" per worker as six,
and that it required that the Law 52 funds be held in a separate
account and that no expenditures be made from that account beyond
the sum in the grant. But none of these provisions forbids,
expressly or impliedly, the use of other funds to fill out a
contract as to which Law 52 funds had been exhausted. Indeed, the
seventh paragraph of Agreement provides:
The incentive approved shall be applied to the
salary and fringe benefit costs of the
7
Defendants cite Gomez v. Rivera Rodriguez, 344 F.3d 103, 107
(1st Cir. 2003), for the proposition that "Law 52 employment is
contingent upon Law 52 funding." Whether or not this is true, it
is not the question here. The question is whether a job that began
as Law 52 employment may be continued, using municipal funds, after
the Law 52 funding expires.
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employments agreed upon in this contract. If
the Municipality offers to the employees other
benefits which are not part of this agreement,
the Municipality assumes responsibility
therefore and pays them with its funds.
Of considerable significance is that the Municipality
did, in fact, provide non-Law 52 money from municipal coffers to
fund the plaintiffs' contracts for one month, January 2001. The
defendants explain this on the ground that they continued to pay
the plaintiffs only while they investigated whether the Law 52
funding had in fact been exhausted. Perhaps a jury could so
conclude, but because municipal funds were used, it is difficult to
conclude as a matter of law that there was a prohibition on the use
of municipal funds to fund plaintiffs' employment through June 30.
The same is true for the rationale, used by the district court,
that the contract mentioned only Law 52 funding. Given the
glancing nature of the reference in the hiring letters to Law 52
funding, that rationale is not dispositive.
The district court's opinion also appears to say that
under municipal law, the Mayor was forbidden from creating jobs (or
extending the duration of jobs) unless he had secured, in advance,
all of the necessary funds. It may be that under Puerto Rican
municipal law the Mayor was acting ultra vires, as the district
court found. But at this stage we cannot resolve the question.
The district court did not explain why the Mayor's actions should
be deemed ultra vires. While the Mayor could not expend more Law
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52 monies than he had available, there is no explanation so far as
to why the Municipality was precluded from using other sources of
funds to meet the commitment to the plaintiffs. The plaintiffs'
brief on appeal argues, in contrast, that the former mayor was
fully empowered to use municipal funds (even those not yet
allocated) to extend the duration of jobs created by other means.
But it, too, has cited to no law that supports its conclusion.8
Absent clarity on these issues of Puerto Rico municipal
law, the best course is to vacate the judgment and remand to the
district court. Since a new trial on the procedural due process
issue may not be necessary -- for example, the legal questions may
be susceptible to resolution, in whole or in part, via summary
judgment -- we leave it to the district court to determine the
8
Plaintiffs argue that the mayor unquestionably had such
authority because under "basic principles of budgeting," he could
have taken note of the fact that the Municipality had received Law
52 grants for many years in a row and anticipated that the
Municipality would receive another such grant in 2001. We are
unconvinced. Defendants, for their part, argue that "[i]n the
absence of funds earmarked for the salaries of improperly appointed
Law 52 employees, the Municipality cannot pay for such expenses
unless it makes a readjustment based on a budgetary surplus." But
the law defendants cite for this proposition, P.R. Laws Ann. tit.
21, § 4309, does not support it. The provision merely states when
and under what circumstances a legislature may adjust a municipal
budget; it contains no other express limitations or proscriptions.
See id.
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nature of the proceedings to follow.9 See Rivera Alicea v. United
States, 404 F.3d 1, 4 (1st Cir. 2005).
We add a few points. What we have been discussing is
whether Puerto Rican law supplies any sort of property interest
once the Law 52 funding ceased.
That still leaves the question, assuming plaintiffs have
some property interest under Commonwealth law, of whether such
state property interests are among those which give rise to a
"legitimate claim to entitlement protected by the federal due
process clause" and whether existing state remedies are adequate.
See Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195-96
(2001).
III.
We affirm the denial of the mistrial motion. We vacate
the judgment of the district court for defendants with respect to
the procedural due process claim and remand the case for further
proceedings consistent with this opinion. No costs are awarded.
9
We also note an admission in plaintiffs' brief: "Plaintiffs
submit . . . that, although clearly related, plaintiffs' employment
contracts' effectiveness was not contingent on the availability of
Law 52 funds. This is not to say that termination of those funds
would not have given rise to good cause to terminate the relevant
employment contracts."
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