United States Court of Appeals
For the First Circuit
No. 06-1459
JUSTO MORALES-SANTIAGO; RICARDO PÉREZ-VIRELLA;
SONIA CEDEÑO-ACOSTA; WILLIAM FERNÁNDEZ-AGUILA;
CONJUGAL PARTNERSHIP FERNÁNDEZ-CEDEÑO;
EMELY RAMOS-CASTILLO; SAMUEL RODRÍGUEZ-BURGOS,
Plaintiffs, Appellants,
v.
JOSÉ M. HERNÁNDEZ-PÉREZ, in his personal and official
capacities; ALEX RODRÍGUEZ; JOHN DOE; RICHARD ROE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and DiClerico,* District Judge.
John F. Nevares, with whom Carlos R. Ramírez and John F.
Nevares & Associates, P.S.C. were on brief, for appellants.
Sarah Y. Rosado-Morales, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana D.
Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, were on brief, for appellees.
May 23, 2007
*
Of the District of New Hampshire, sitting by designation.
LYNCH, Circuit Judge. This political affiliation case
from Puerto Rico presents a few new twists.
In Rutan v. Republican Party of Illinois, 497 U.S. 62
(1990), the Supreme Court held that non-policymaking governmental
employees are protected by the First Amendment from discriminatory
promotion, transfer, recall, or hiring on the basis of political
affiliation. Id. at 79. In Branti v. Finkel, 445 U.S. 507 (1980),
the Court had held that non-policymaking public employees are
protected from firing based solely on political affiliation, and
that dismissed employees need not prove that they were coerced into
changing their political affiliation. Id. at 516-17; see also
Elrod v. Burns, 427 U.S. 347, 372-73 (1976) (plurality opinion)
(concluding that the First Amendment protects against patronage
dismissals unless political affiliation is an appropriate
requirement for the position in question).
In many places, when there is a change in control of the
administration between two major political parties -- in Puerto
Rico, a change between the Popular Democratic Party (PDP) and the
New Progressive Party (NPP) -- overly zealous political operatives
of the prevailing party terminate, demote, or reduce the salaries
of employees affiliated with the outgoing opposition party.
Sometimes these actions violate the First Amendment, see, e.g.,
Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 75-76 (1st Cir.
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2006), whereas other times, they do not, see, e.g., Vélez-Rivera v.
Agosto-Alicea, 437 F.3d 145, 148-50 (1st Cir. 2006).
This action in turn sometimes causes a reaction. In
Puerto Rico, we have noted that at times, "the outgoing party
attempts to secure the continued tenure of its members in public
jobs through a variety of devices, such as reclassifying policy-
type appointments as career positions or making appointments in
violation of Puerto Rico law." Sanchez-Lopez v. Fuentes-Pujols,
375 F.3d 121, 125 (1st Cir. 2004).
The plaintiffs in this case, with one exception, are
employees of the Puerto Rico Public Service Commission (PSC).1
They bring this action under 42 U.S.C. § 1983, alleging that a
newly elected PDP administration engaged in political
discrimination against them and violated their rights to equal
protection and due process. They also bring various claims under
Puerto Rico law. P.R. Const. art. II, §§ 1, 6, 7; Public Service
Personnel Act, P.R. Laws Ann. tit. 3, §§ 1301-1431 (2003 & Supp.);
id. tit. 31, § 5141. The district court granted summary judgment
to the defendants on all federal claims and declined to exercise
supplemental jurisdiction over the claims brought under Puerto Rico
1
William Fernández-Aguila brings a claim under Puerto Rico
law as the husband of plaintiff Sonia Cedeño-Acosta, a PSC
employee. We refer to the PSC employees as "the plaintiffs"
throughout this opinion.
-3-
law. Morales Santiago v. Hernandez Perez, No. 03-1734, 2005 U.S.
Dist. LEXIS 34704, at *42 (D.P.R. Dec. 20, 2005). We affirm.
I.
We review the district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to the
nonmoving party. Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d
97, 98 (1st Cir. 1997).
On November 7, 2000, the PDP's candidate for governor won
the general election in Puerto Rico, ushering in a change of
administration from the incumbent NPP to the PDP. The new PDP
administration assumed power on January 2, 2001.
The plaintiffs in this case held various positions at the
PSC in the former NPP administration, and all were affiliated with
the NPP. Details as to each plaintiff and defendant may be found
in the thoughtful opinion by the district court. Morales Santiago,
2005 U.S. Dist. LEXIS 34704, at *4-20. We describe the essential
facts.
Each of the plaintiffs, save one, had the following
career path in common. Each was a member of the NPP and held a
trust position in the PSC under a chairman affiliated with the NPP
party. Each resigned that trust position several months before the
November 2000 general election2 and/or before the October 2002
2
During the period in question, Puerto Rico had a ban on
most personnel actions, including changes in the category of
employees, taking place within the two months prior to and the two
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change in party control of the PSC's chairmanship.3 Each was
reinstated to his or her former career position or a similar career
position,4 to which each was entitled under Puerto Rico law. P.R.
Laws Ann. tit. 3, § 1350(8)(a) (2003 & Supp.); see also Rosario-
Urdaz v. Velazco, 433 F.3d 174, 176 (1st Cir. 2006); González-de-
Blasini v. Family Dep't, 377 F.3d 81, 84 n.1 (1st Cir. 2004).
However, each was rewarded by the then-NPP administration with a
salary more commensurate with the previously held trust position
than with the reinstated career position. This was done through a
device called "salary by exception."
months after a general election. P.R. Laws Ann. tit. 3, § 1337
(2003 & Supp.); see also Colón-Santiago v. Rosario, 438 F.3d 101,
104 (1st Cir. 2006). A similar ban currently exists at P.R. Laws
Ann. tit. 3, § 1462h.
3
Defendant José Hernández-Pérez became Chairman of the PSC
on October 1, 2002. His predecessor, Waldemar Quiles-Rodríguez,
who was affiliated with the previous administration, had previously
sought an order from the federal district court enjoining the new
PDP governor from removing him as Chairman before the expiration of
his term on September 28, 2002. Quiles Rodriguez v. Calderon, 172
F. Supp. 2d 334, 337 (D.P.R. 2001). Although no injunction issued
in light of the plaintiff's failure to file certified English
translations of Spanish documents, the district court found that
Quiles-Rodríguez was entitled under Puerto Rico law to hold the
chairmanship until the expiration of his term. Id. at 348.
4
This return to career positions is common because many,
though not all, trust positions are policymaking positions into
which a newly elected administration may place members of its party
without violating the First Amendment. See Ruiz-Casillas v.
Camacho-Morales, 415 F.3d 127, 130-32 (1st Cir. 2005); Jimenez
Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986)
(en banc).
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In October and November 2002, within approximately one
month of the PDP's gaining control of the PSC's chairmanship, the
PDP administration reduced the salaries of each plaintiff to within
(or above) the range of his or her relevant career job
classification. The new administration stated that it did this to
correct excessive salaries illegally awarded by the outgoing NPP
administration.
Specifically, under the applicable regulations for re-
entry to career service, an increase in salary by exception for an
employee returning to career service from a trust position would
have been authorized only if two conditions were met: (a) the
employee had served in the same trust position for a continuous
period of not less than five years, and (b) the employee's duties
and responsibilities in the career position were equivalent to
those in the trust position. Uniform Compensation Regulation, P.R.
Reg. No. 3109, § 4.8.7 (June 7, 1984). Even if those two
conditions were met, it would have been discretionary whether the
salary was raised, and any increase would have been limited by the
maximum salary in the schedule for the career service position.
Id.
The remaining plaintiff, Sonia Cedeño-Acosta, served as
Associate Commissioner of the PSC, a trust position, from April
2000 until November 2001. At that point in time, she returned to
a career position and received a salary increase by exception.
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Shortly thereafter, she was appointed to a different trust
position, where she remained until she was removed by the new PDP
administration on September 30, 2002. Cedeño-Acosta was reinstated
to her previous career position at a salary that was substantially
less than the salary she had been receiving in the trust position,
but that was well within the range for the career position. All of
the PSC's actions were taken pursuant to the Uniform Compensation
Act, P.R. Laws Ann. tit. 3, §§ 760-760j (2003 & Supp.), and
regulations implementing that act.
The plaintiffs filed suit, alleging primarily that the
salary reductions by the defendant PDP administrators constituted
political discrimination.5 In addition to the First Amendment
claim, the plaintiffs asserted equal protection and procedural due
process claims, as well as various claims under Puerto Rico law.
The general defense of the new administration was that the old NPP
administration had violated Puerto Rico law by increasing the
plaintiffs' salaries by exception and that Puerto Rico law fully
authorized the corrective measures the new administration had
taken.
5
One of the plaintiffs also initially alleged that her
employment conditions had been substantially eroded. We understand
the issue on appeal to be limited to the reduction in the
plaintiffs' salaries. See 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.").
-7-
The district court granted summary judgment to the
defendants on all federal claims, dismissing them with prejudice.
Morales Santiago, 2005 U.S. Dist. LEXIS 34704, at *42. On the
political discrimination claim, the district court found that the
plaintiffs had failed to establish a prima facie case, by failing
to adduce sufficient evidence that political affiliation was a
substantial or motivating factor in the salary reductions, in the
face of the defendants' stated reasons that they acted to correct
the illegality of the earlier personnel actions. Id. at *22, 35.
The district court also found that the plaintiffs' evidence had
failed to create a material issue of fact that they were entitled
to their previous salaries, and that the adjusted salaries of all
the plaintiffs were, at the least, at the upper end of the salary
scale for their respective career positions. Id. at *34-35.
Finally, the district court rejected the plaintiffs' reliance on
various statements allegedly made by the defendants, finding such
evidence insufficient to raise a genuine issue of material fact as
to the defendants' motivation. Id. at *31-32.
The district court held that the equal protection claim
was essentially duplicative of the First Amendment claim and
dismissed it for the same reasons. Id. at *36-37. The court also
held that a post-deprivation hearing satisfied any constitutional
due process requirements, noting that the plaintiffs had not been
terminated from their jobs. Id. at *39-42. Having dismissed the
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plaintiffs' federal claims, and having found no independent basis
for federal jurisdiction over the Puerto Rico law claims, the
district court declined to exercise supplemental jurisdiction and
dismissed the Puerto Rico law claims without prejudice. Id. at
*42.
II.
A. First Amendment Political Discrimination Claims
There is an initial question of law as to whether the
plaintiffs have stated a First Amendment claim at all with respect
to the reduction of their higher salaries that had been previously
raised by exception. The claim does not literally fall within the
scope of Rutan's extension of First Amendment protection from job
dismissals to promotion, transfer, recall, or hiring decisions.
497 U.S. at 79. Further, the analysis in Rutan as to why the
protection extends to these categories of job actions does not flow
readily to the reduction of salaries enhanced by exception. See
id. at 71-79. However, the defendants chose not to make this
argument in their papers in the district court or here, although it
did come up at oral argument. In the absence of briefing on the
issue, we turn to the summary judgment argument.
In Colón-Santiago v. Rosario, 438 F.3d 101 (1st Cir.
2006), this court provided a description of the relevant Puerto
Rico employment law. Id. at 108-09. We highlight the key points
for this case. Public employees in Puerto Rico are either
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confidential (trust) employees or career employees. P.R. Laws Ann.
tit. 3, § 1349 (2003 & Supp.).6 When a career employee moves to a
trust position, the employee has a right to reinstatement to a
position equivalent to the former career position, but may not
retain the increased salary of the trust position. Id. §
1350(8)(a)7; see also Colón-Santiago, 438 F.3d at 111.
As the district court sagely observed, this has created
the following dynamic. Morales Santiago, 2005 U.S. Dist. LEXIS
34704, at *20-21. It has become common in Puerto Rico that as an
election approaches, the administration in power, as a political
measure to protect its party members, returns its trust employees
to their previous positions as career employees. They do so not
at the salary then scheduled for the career position, as provided
for by Puerto Rico law, see, e.g., P.R. Laws Ann. tit. 3,
§ 1350(8)(a) (2003 & Supp.), but rather at a salary in excess of
that traditionally awarded for the position. See, e.g., Cardona
Martinez v. Rodriguez Quiñones, 306 F. Supp. 2d 89, 96-97 (D.P.R.
2004); see also Céspedes Rodríguez v. Rivera Hernandes, 135 F.
App'x 441, 442 (1st Cir. 2005) (per curiam). Where a higher salary
by exception is awarded in violation of Puerto Rico law, the new
administration has authority to reduce that excessive salary to the
6
A similar provision can now be found at P.R. Laws Ann.
tit. 3, § 1465.
7
A similar provision can now be found at P.R. Laws Ann.
tit. 3, § 1465a(1).
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scheduled salary for the career position. See Colón-Santiago, 438
F.3d at 111; Cardona Martinez, 306 F. Supp. 2d at 97-98. An
employee whose salary is reduced may bring an appeal before the
Appeals Board of the Personnel Administration System.
We simplify the analysis to whether there was evidence to
create a material issue of fact that political affiliation was a
substantial or motivating factor in the salary reduction.
Plaintiffs say that their salaries were reduced because the
defendants knew that they were NPP members. Defendants counter
that the salaries were reduced because the previous raises had been
given in violation of Puerto Rico law and that these reductions
would have occurred regardless of plaintiffs' political
affiliation.
Plaintiffs do not dispute that no disparate impact claim
is recognized under Rutan, see Sanchez-Lopez, 375 F.3d at 140, but
nonetheless argue that an inference of intentional discrimination
is raised from the mere fact that they were all known NPP members
and their salaries were reduced by the new PDP heads of the PSC.
In context, that is not a rational inference.
It is quite likely that when a new administration looks
to correct violations of Puerto Rico law as to the salaries of
employees retained from the prior administration, the majority --
if not all -- of the corrections will be to salaries of persons
belonging to the party of the now-deposed prior administration.
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Indeed, such corrective action may be needed to prevent abuse of
the Rutan doctrine. Rutan is clear that the democratic process
and, correspondingly, the electorate's decision to put a different
political party in power should not be frustrated. 497 U.S. at 70.
The payment of unwarranted, higher salaries awarded by the prior
administration would leave a new administration with fewer
financial resources available to do the will of the voters.
Here, the Puerto Rico laws and regulations that put
limits on the extent of government salaries were meant to secure
compliance with Puerto Rico's constitutional policy of equal pay
for equal work. Colón-Santiago, 438 F.3d at 109; see also P.R.
Const. art. II, § 16. These provisions also help prevent Rutan
abuses by authorizing the new administration to take corrective
actions to undo preferential salary adjustments given by a former
administration to its stalwarts.
The plaintiffs have offered no evidence that the
defendants' position that the salaries were reduced to correct
violations of Puerto Rico law is false.8 Perhaps in rare cases
8
The plaintiffs argue that § 4.11 of the Uniform
Compensation Regulation gives discretion to the nominating
authority to grant higher salaries to employees when, after
rigorous evaluation, it is determined that the merits of the
individual case justify it and such a salary increase would provide
a benefit to the agency. However, the plaintiffs fail to address
the fact that § 4.11 also provides that when there is a change of
category from a trust position to a career position, the employee's
salary will be set in accordance with § 4.8 and its prerequisites
for salary by exception.
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such an explanation by administrators can be said clearly to be a
pretext. Not here. The defendants submitted evidence establishing
that the plaintiffs had failed to meet the prerequisites for any
award of salary by exception. Further, there is no evidence here
that any state adjudicatory body has ruled that the defendants are
wrong to have taken corrective actions. See Sanchez-Lopez, 375
F.3d at 131. In short, we agree with the district court's
assessment of the record: that there was no material dispute that
the plaintiffs' previous salary raises did not comport with Puerto
Rico law, and that the new administration's adjustments corrected
the inflated salaries by reducing them to the levels appropriate
for their respective positions.
The plaintiffs' assertion that the defendants imposed
salary reductions only on NPP members, and not on similarly
situated PDP members, is not sufficient to rebut the defendants'
showing. There is no indication in the record that there were any
similarly situated PDP members. This circumstance is not
surprising because it is unlikely that the NPP administration would
place members of the PDP into key policymaking trust positions, and
it is even more unlikely that the NPP would have illegally
increased the salaries of any such PDP members on their return to
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career positions. There is no evidence here of an inconsistently
applied practice of remedying prior illegalities.9 See id. at 132.
B. Fourteenth Amendment Equal Protection Claims
The plaintiffs also appeal from the district court's
dismissal of their equal protection claims. The equal protection
argument founders, however, because it is merely a "restatement of
appellant[s'] failed First Amendment claim[s]." Ruiz-Casillas v.
Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005); see also Nestor
Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st
Cir. 1992) (declining to apply equal protection analysis in light
of the overlap between plaintiffs' First Amendment and equal
protection claims).
C. Fourteenth Amendment Procedural Due Process Claims
The plaintiffs also appeal from the dismissal of their
procedural due process claims. Although it is true that career
employees have a property interest in their continued employment
under Puerto Rico law, Figueroa-Serrano v. Ramos-Alverio, 221 F.3d
1, 6 (1st Cir. 2000), the plaintiffs here were not terminated from
their career positions, but rather only had their salaries by
exception carved back. Further, Puerto Rico law does not recognize
a property interest in salaries paid to government employees that
9
Indeed, it is not clear that a political discrimination
claim could be maintained where reductions in salaries by exception
are at issue, even when there is inconsistent application of
regulatory discretion as to whether to reduce illegal salary
increments. We do not reach that issue.
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are illegally awarded. See Colón-Santiago, 438 F.3d at 109-11.
Accordingly, there can be no viable procedural due process claims
here. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 32 (1st
Cir. 1996) (requiring plaintiff to demonstrate a protected interest
in life, liberty, or property to prevail in action alleging
deprivation of procedural due process).
D. Supplemental Jurisdiction
Having properly dismissed the plaintiffs' federal
claims,10 the district court did not abuse its discretion in
declining to exercise supplemental jurisdiction over the claims
brought under Puerto Rico law. See 28 U.S.C. § 1367(c)(3); see
also Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 55 (1st Cir. 2006).
III.
For the foregoing reasons, we affirm. Costs are awarded
to defendants.
10
Since we agree with the district court that the
defendants were entitled to summary judgment on the federal claims,
we do not address the parties' arguments regarding qualified
immunity.
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