Morales-Santiago v. Hernandez-Perez

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.

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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.").

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 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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