United States Court of Appeals
For the First Circuit
Nos. 07-2013
07-2140
MARIBEL NEGRÓN-ALMEDA ET AL.,
Plaintiffs, Appellees,
v.
CARLOS GABRIEL SANTIAGO ET AL.,
Defendants, Appellants.
____________________
PUERTO RICO TRADE AND EXPORT COMPANY,
Putative Intervenor, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Susana I. Peñagarícano-Brown, 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 defendants.
Eyck O. Lugo-Rivera, with whom Lauracelis Roques-Arroyo and
Martínez Odell & Calabria were on brief, for putative intervenor.
Claudio Aliff-Ortiz, with whom Michael Craig McCall, Eliezer
Aldarondo-Ortiz, Sheila Torres-Delgado, and Aldarondo & López Bras
were on brief, for plaintiffs.
June 5, 2008
SELYA, Senior Circuit Judge. Following a jury verdict in
an employment discrimination case premised on a claim of political
connivance, the district court used its equitable powers to augment
the verdict. That action, along with the court's refusal to allow
the affected public corporation to intervene in the post-verdict
proceedings, have produced a series of conundra, with which we must
now grapple.
After careful consideration of a meandering record, we
reverse the court's grant of equitable relief in the nature of both
reinstatement and backpay. Recognizing, however, that there is
still work to be done — on these particular facts, the issue of
reinstatement is potentially subject to resurrection — we vacate
its order denying intervention to the agency and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
We rehearse here only the bare facts needed to place
these appeals into perspective. In charting this course, we assume
the reader's familiarity with our earlier opinion in Peguero-
Moronta v. Santiago, 464 F.3d 29 (1st Cir. 2006), which involves
this litigation and which provides useful background information.
This case, like many political discrimination cases,
traces its genesis to the changing of the guard. The precipitating
event in this instance was Puerto Rico's 2000 general election,
which resulted in the replacement of a New Progressive Party (NPP)
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governor with one backed by the arch-rival Popular Democratic
Party.
The newly-elected governor installed Carlos Santiago as
Director of the Commercial Development Administration (CDA).
Within weeks of his appointment, Santiago personally dismissed two
of the plaintiffs, Maribel Negrón-Almeda (Negrón) and Aracelis
Gascot-Cuadrado (Gascot). He also approved the decision by his
subordinate, Susana Hernández, to dismiss the third plaintiff,
Nilda Pérez-Montalvo (Pérez).
The trio brought suit in the United States District Court
for the District of Puerto Rico.1 Their complaint rested on the
premise that they had been fired for reasons relating to their
membership in the NPP, in violation of the First Amendment, the
Fourteenth Amendment, and local law. The complaint described the
plaintiffs' federal claims as being brought pursuant to 42 U.S.C.
§ 1983 and sought a gaggle of remedies, including compensatory
damages, punitive damages, backpay, front pay, declaratory relief,
and injunctive relief (i.e., reinstatement).
Santiago was the only defendant sued in his official
capacity and the only defendant against whom the plaintiffs
demanded injunctive relief. He was also sued in his individual
1
Another cashiered employee, Miguelina Peguero-Moronta,
originally joined as a plaintiff. Her claims were disposed of on
summary judgment and need not concern us. We likewise have no
occasion to discuss the derivative claims initially brought by the
husbands of Negrón and Gascot.
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capacity, as was Hernández and another CDA functionary, Vilma
Jiménez.
On March 31, 2004, the district court entered a summary
judgment order, which addressed the claims brought against Santiago
in his official capacity. The order stated:
As to plaintiffs' section 1983 cause of action
against the named Defendants in their official
capacity, "[i]t is well settled 'that neither
a state agency nor a state official acting in
his official capacity may be sued for damages
in a section 1983 action.'" Wang v. N.H. Bd.
of Registration in Med., 55 F.3d 698, 700 (1st
Cir. 1995) (citing Johnson v. Rodríguez, 943
F.2d 104, 108 (1st Cir. 1991)). "This is so
because § 1983 did not abrogate an
unconsenting state's Eleventh Amendment
immunity from being sued in damages in federal
court." Vicenty-Martel v. Estado Libre
Asociado de P.R., 48 F. Supp. 2d 81, 92
(D.P.R. 1999). The court need not go further.
Accordingly, Plaintiffs' Section 1983 claims
against the named Defendants in their official
capacities must be DISMISSED.
At an ensuing trial, the district court twice granted
motions for judgment as a matter of law. First, at the end of the
plaintiffs' case in chief it granted Jiménez free passage with
respect to all claims against her. See Fed. R. Civ. P. 50(a).
Second, at the close of all the evidence it directed a verdict in
favor of the remaining defendants (Santiago and Hernández in their
individual capacities on the remaining claims). Id.
The plaintiffs appealed from the latter order. They
could have, but did not, appeal the earlier summary judgment. We
concluded that the evidence proffered against Santiago and
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Hernández was sufficient to reach the jury and, therefore, reversed
the order from which the appeal had been taken. See Peguero-
Moronta, 464 F.3d at 53-54.
The parties retried the case. On March 27, 2007, the
district court submitted it to a jury. In pertinent part, the
court's instructions on damages informed the jurors, without
objection from either side, that "[y]ou should consider the
following elements of damages to the extent you find them proved by
a preponderance of the evidence, and no others: 1) Net lost wages
and benefits to the date of the trial . . . ." The jury found in
favor of the plaintiffs, awarding them both compensatory and
punitive damages.
A flurry of post-verdict motions ensued, beginning with
the plaintiffs' motion for an assortment of equitable relief. That
relief included reinstatement to their former positions and
retroactive contributions to their retirement and Social Security
accounts. The defendants objected on various grounds, noting among
other things that the requested relief was unavailable because the
Commonwealth was not a party to the action and no official-capacity
defendant remained before the court. The defendants also argued
that, in the circumstances at hand, reinstatement was
inappropriate.
On April 30, 2007, the district court rejected the
defendants' arguments and granted the requested relief. The court
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specified that reinstatement should "include benefits in the
government employees' retirement system and the Social Security
Administration." The court declared "that it was never its
intention to bar Plaintiffs from seeking and obtaining equitable
relief at the time of the [2004] dismissal of their monetary claims
against Defendants in their official capacities."
Within ten days, the defendants moved for clarification.
They later characterized this motion as a motion to alter or amend
the judgment, see Fed. R. Civ. P. 59(e) — a characterization that
we accept. No matter how a party titles it, "a post-judgment
motion made within ten days of the entry of judgment that questions
the correctness of a judgment is properly construed as a motion to
alter or amend judgment under Fed. R. Civ. P. 59(e)." Global NAPs,
Inc. v. Verizon New Engl., Inc., 489 F.3d 13, 25 (1st Cir. 2007)
(citations and internal quotation marks omitted).
The defendants' motion raised Eleventh Amendment concerns
and queried whether the benefits awarded were meant to be
retroactive. The plaintiffs served an opposition that denigrated
the defendants' Eleventh Amendment concerns and supported
retroactive application of the order for benefits. The defendants
filed a sur-reply, in which they cited this court's opinion in
Figueroa-Rodríguez v. Aquino, 863 F.2d 1037 (1st Cir. 1988), for
the proposition that backpay could not be awarded against an
individual employee but only against an employer.
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The district court overrode the defendants' objections
and confirmed that it had intended to grant, and was granting,
retroactive benefits against the defendants in their individual
capacities. The court shrugged off the statement in Figueroa-
Rodríguez to the effect that a backpay award "must be paid by or on
behalf of the employer by definition," id. at 1043 n.7, saying that
the court there already had determined that the defendants were
entitled to qualified immunity and, thus, the quoted statement was
dictum.
In a closely related disposition, made on the same day,
the court denied a motion to intervene filed by the Puerto Rico
Trade and Export Company (COMEX). That aspect of the court's ruling
deserves further amplification.
COMEX, a public corporation, see P.R. Laws Ann. tit. 7,
§ 1227q, is arguably the successor-in-interest to the CDA (the
extent to which that is so is a matter in dispute among the
parties, and we do not purpose to resolve it here). COMEX filed
its motion to intervene approximately one month after the district
court's initial post-verdict grant of equitable relief. It
suggested that the motion was timely in light of the fact that it
had no notice of its exposure until the district court suddenly
resurrected the previously dismissed claims against Santiago in his
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official capacity.2 COMEX maintained that, given this unexpected
turn of events, it deserved an opportunity to oppose reinstatement
and other forms of equitable relief that it would have to
effectuate.
In an accompanying Rule 59(e) motion, filed
provisionally, COMEX contended that any grant of equitable relief
had to be annulled because (i) neither it nor the CDA was a party
to the action and (ii) the district court lacked authority to
revisit its 2004 summary judgment that terminated the official-
capacity claims against Santiago. Alternatively, COMEX argued that
it was not the same entity as the CDA (which no longer existed) and
that no proper substitution of parties had been effected. See Fed.
R. Civ. P. 25(c), 25(d).
The district court branded COMEX's attempt to intervene
untimely on the ground that, notwithstanding the wording of the
court's earlier 2004 order, the official-capacity claims against
Santiago for injunctive relief had never been dismissed.
Therefore, the CDA's interest (and, thus, COMEX's interest) had
been implicated throughout the litigation. In so holding, the
court stressed that, in its 2004 order, it had intended to
2
Claims against a state official in his official capacity are
treated as claims against the state. See Hafer v. Melo, 502 U.S.
21, 25 (1991); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989). Similarly, claims against an official of the Commonwealth
of Puerto Rico or of an agency thereof are treated as claims
against the Commonwealth. See, e.g., Redondo-Borges v. U.S. Dep't
of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005).
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terminate only the section 1983 official-capacity claims for
damages. The court did not reach the arguments advanced in COMEX's
provisional Rule 59(e) motion, but it did criticize COMEX's
decision to wait a full month after the initial award of equitable
relief before seeking to intervene.
These timely appeals followed. One, prosecuted by COMEX,
challenges the denial of its motion to intervene. The other,
prosecuted by the defendants, disputes their liability for the
aforedescribed equitable relief. The jury's award of compensatory
and punitive damages is conceded.
II. ANALYSIS
We begin with the question of intervention (COMEX's
appeal) and then move to the question of backpay (the defendants'
appeal).
A. Intervention.
The parties agree that COMEX's motion to intervene seeks
intervention as of right and is, therefore, governed by Fed. R.
Civ. P. 24(a). We thus constrain our review to a search for an
abuse of discretion. Pub. Serv. Co. of N.H. v. Patch, 136 F.3d
197, 204 (1st Cir. 1998); Banco Popular v. Greenblatt, 964 F.2d
1227, 1230 n.3 (1st Cir. 1992). That same standard of review
governs a district court's subsidiary findings regarding
timeliness. See Greenblatt, 964 F.2d at 1230 n.3; Narragansett
Indian Tribe v. Ribo, Inc., 868 F.2d 5, 7 (1st Cir. 1989).
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Abuse of discretion is a relatively deferential standard
of review. Under it, we may not reverse a determination simply
because we, if sitting as a court of first instance, would have
weighed the relevant considerations differently. Iragorri v. Int'l
Elevator, Inc., 203 F.3d 8, 17 (1st Cir. 2000). That does not
mean, however, that the abuse-of-discretion standard is a rubber
stamp, counseling affirmance of every discretionary decision made
by a trial court. To the contrary:
A district court may abuse its discretion if
it fails to consider a significant factor in
the decisional calculus, if it relies on an
improper factor in working that calculus, or
if it considers all the appropriate factors
but makes a serious error in judgment as to
their relative weight. Within this framework,
an error of law is always tantamount to an
abuse of discretion.
Torres-Rivera v. O'Neill-Cancel, ___ F.3d ___, ___ (1st Cir. 2008)
[2008 U.S. App. LEXIS 9312, at *6] (internal citation omitted).
Here, moreover, we are dealing with a claim for
intervention as of right. Where that modality is concerned, the
district court's discretion is somewhat more circumscribed than in
the context of intervention generally. See Patch, 136 F.3d at 204;
Int'l Paper Co. v. Inhabitants of Town of Jay, 887 F.2d 338, 344
(1st Cir. 1989) (citing Stringfellow v. Concerned Neighbors in
Action, 480 U.S. 370, 382 n.1 (1987) (Brennan, J., concurring)).
The case law applying Rule 24(a)(2) reflects a preference
for multipartite tests as part of a district court's analysis.
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See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st
Cir. 1989). One of these seems particularly pertinent here: a
would-be intervenor as of right must satisfy a four-pronged test
focusing on whether it has (i) made a timely motion, (ii)
demonstrated a sufficient stake in the ongoing suit, (iii) showed
that resolution of the suit in its absence somehow threatens to
prejudice its interests, and (iv) negated the likelihood that some
other party can be expected adequately to protect its interests.
See B. Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541,
544-45 (1st Cir. 2006); Patch, 136 F.3d at 204. A failure to
satisfy any one of these criteria is fatal to the motion. See B.
Fernández & Hnos., 440 F.3d at 545; Patch, 136 F.3d at 204.
The only factor analyzed by the district court was the
timeliness of the proposed intervention. Especially where, as
here, the proposed intervention post-dates the entry of judgment,
timeliness is a crucial element in the Rule 24(a)(2) calculus. See
Greenblatt, 964 F.2d at 1230. Although judgments as to timeliness
depend on the totality of the circumstances, a number of factors
serve to structure and guide that analysis. These include "the
length of time the applicant knew or reasonably should have known
that its interest was imperilled before it moved to intervene," a
quantification of "the foreseeable prejudice to existing parties if
intervention is granted," and a similar quantification of "the
foreseeable prejudice to the applicant if intervention is denied."
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Id. at 1231; see Culbreath v. Dukakis, 630 F.2d 15, 20-24 (1st Cir.
1980).
These guideposts are standard fare — but in this case,
there is a special twist. Almost every aspect of the district
court's timeliness analysis depends on the interpretation of its
2004 order granting summary judgment in favor of Santiago in his
official capacity. In denying intervention, the court relied upon
the premise that the 2004 order did not terminate the plaintiffs'
claims for reinstatement and other equitable relief; that COMEX
ought to have known as much; and that, therefore, COMEX should have
tried to intervene years before. In order to evaluate the
plausibility of this reasoning, we must as a first step distill the
meaning of the 2004 order. Only then can we decide whether the
lower court's timeliness determination (and, thus, its denial of
intervention) constitutes an abuse of discretion.
District court orders are documents of considerable
import. A district court speaks to the parties and the court of
appeals primarily through its orders. See In re Thinking Machs.
Corp., 67 F.3d 1021, 1026 (1st Cir. 1995) (explaining that "[c]ourt
orders are customarily important events in the life of a judicial
proceeding; they are the primary means through which courts
speak"); Advance Fin. Corp. v. Isla Rica Sales, Inc., 74 F.2d 21,
26 (1st Cir. 1984) (similar). Thus, the phrasing of a court order
is significant. When that phraseology is imprecise, there may be
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some play in the joints. For example, a reviewing court can comb
relevant parts of the record to discern the authoring court's
intention. See, e.g., Weyerhaeuser Co. v. Wyatt, 505 F.3d 1104,
1111 (10th Cir. 2007); Subsalve USA Corp. v. Watson Mfg., Inc., 462
F.3d 41, 45 (1st Cir. 2006); see also Martha's Vineyard Scuba Hq.
v. Unidentified Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987)
(explaining that some deference is due to the writing judge in
elucidating the meaning and intendment of an imprecise or ambiguous
order). But when a court's order is clear and unambiguous, neither
a party nor a reviewing court can disregard its plain language
"simply as a matter of guesswork or in an effort to suit
interpretive convenience." Alstom Caribe, Inc. v. Geo. P. Reintjes
Co., 484 F.3d 106, 115 (1st Cir. 2007); see Lefkowitz v. Fair, 816
F.2d 17, 22 (1st Cir. 1987) (enforcing district court order that
"contained not the slightest ambiguity" over a claim that the
authoring judge "must" have meant something different).
The short of it is that, absent amendment or vacation, a
court must carry out and enforce an order that is clear and
unambiguous on its face, whether or not the inscribed language
reflects the court's recollection of its actual intent. See United
States v. Spallone, 399 F.3d 415, 421 (2d Cir. 2005). Put another
way, unless and until a clear and unambiguous order is amended or
vacated — and the court below eschewed that course — "a court must
adopt, and give effect to, [the order's] plain meaning." Id.
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(internal quotation marks omitted); see In re Nat'l Gypsum Co., 219
F.3d 478, 484 (5th Cir. 2000).
In this instance, the plaintiffs suggest that we should
interpret the district court's 2004 order as leaving intact their
claims for injunctive relief against Santiago in his official
capacity. They concede that the language of the order is
inhospitable to this reading but cite three supposedly ameliorative
facts. First, they note that the district court itself took this
view of the order three years after entering it. Second, they
observe that the case law cited in the lead-up to the 2004 order
deals with the prohibition against bringing section 1983 claims for
damages against state actors in their official capacities. Third,
they assert that, at least once after 2004, the district court
referred to Santiago as "the Director of the CDA."
In the circumstances of this case, this grab-bag of
random facts lacks force. The 2004 order stated unambiguously and
with conspicuous clarity that the plaintiffs' section 1983 claims
against the defendants in their official capacities "must be
dismissed" (excess capitalization omitted). This statement was
made categorically and without any apparent limitation. The only
section 1983 claims that had been pleaded against any party in his
or her official capacity were the claims pleaded against Santiago
for injunctive relief. Viewed against this backdrop, the wording
of the order is clear on its face — and the plaintiffs' suggested
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reading would render the affected portion of the order nugatory.
We therefore decline the plaintiffs' invitation to sanction a
Kafkaesque interpretation of the order that stands plain meaning on
its head.
Accordingly, we conclude that when the district court
terminated the plaintiffs' section 1983 official capacity claims,
the claim for reinstatement fell out of the case. COMEX had no
reason to believe that its interests, as opposed to the interests
of the individual defendants, were implicated in the ongoing
litigation.
The fact that the case law cited in the text of the order
focused primarily on claims for damages does not get the plaintiffs
very far. A party faced with a clear and unambiguous court order
has no duty to look behind it. See 46 Am. Jur. 2d Judgments § 77
(2008) (explaining that a trial court's reasons "form no part of
the judgment itself"). Moreover, to the extent that there was any
room for doubt that the 2004 order meant exactly what it said, it
was the burden of the doubters (here, the plaintiffs) to ask the
district court in a timely fashion to clarify the scope of the
order. See Wyatt, 505 F.3d at 1111. The plaintiffs failed to do
so — and that failure estops them from now alleging the existence
of a hidden ambiguity. See Glover v. Johnson, 934 F.2d 703, 708-09
(6th Cir. 1991).
Finally, the district court's reference to Santiago as
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"the Director of the CDA" is unavailing. Taken in context, that
use of Santiago's title was in all probability intended as a
gesture of respect rather than a description of his precise legal
status in the suit.3
At oral argument before us, the plaintiffs advanced a new
and different theory for upholding the district court's denial of
intervention. They posited that even if the 2004 order dismissed
all the section 1983 official-capacity claims, their complaint
nevertheless contained an implicit cause of action under Ex parte
Young, 209 U.S. 123 (1908). That cause of action, they maintain,
suffices to support the award of reinstatement.
The doctrinal roots of Ex parte Young run deep. For
roughly a century, that decision has stood for the proposition that
"the Eleventh Amendment does not prevent federal courts from
granting prospective injunctive relief to prevent a continuing
violation of federal law," in part because "a suit challenging the
constitutionality of a state official's action in enforcing state
law is not one against the State." Green v. Mansour, 474 U.S. 64,
68 (1985). But a legal doctrine cannot be viewed in a vacuum; more
3
This is not a case in which we are asked to infer from a
silent record that a defendant has been sued in his official rather
than his individual capacity. See, e.g., Kentucky v. Graham, 473
U.S. 159, 167 n.14 (1985); Powell v. Alexander, 391 F.3d 1, 22-23
(1st Cir. 2004). Here, we are asked to overturn an unambiguous
decree on account of a court's casual reference to a defendant by
his official title. That would require an unprecedented leap of
faith.
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important than doctrine here is the commonsense principle that a
litigant cannot freely reinvent his case as he goes along.
The plaintiffs' complaint made an explicit representation
that their claims for injunctive relief were being brought under
section 1983.4 Given the sweep of that statute, recognizing a
separate (implicit) cause of action under the aegis of Ex parte
Young would serve simply to introduce a useless artifice into the
act of pleading. Ex hypothesi, the Ex parte Young cause of action
that the plaintiffs now say they impliedly pleaded would provide no
different rights than were already available to them under section
1983. To recognize such a cause of action on these facts would,
therefore, serve only to pervert the legitimate goals of notice
pleading.
There is a second, equally impassable, obstacle that bars
the plaintiffs' belated assertion of an Ex parte Young theory. The
record reveals that this theory was not briefed on appeal.
Consequently, it has been waived. See United States v. Houlihan,
92 F.3d 1271, 1292 (1st Cir. 1996) (noting settled appellate rule
that issues not briefed and properly developed on appeal are
waived); Martínez v. Colón, 54 F.3d 980, 987 (1st Cir. 1995)
(same); United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.
4
Indeed, as late as their initial post-verdict motion
requesting reinstatement, the plaintiffs specifically averred that
"[t]he present action is predicated on 42 U.S.C. § 1983 for the
violation of plaintiffs' constitutional right of freedom of speech
and association."
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1990) (same).
That ends this aspect of the matter. We conclude that
the district court was bound by the plain meaning of the 2004
order.5 The court misinterpreted the order; that interpretive
bevue influenced its finding as to timeliness (including its
comments as to prejudice, which were clearly tied to the court's
conclusion that COMEX should have known of its stake in the
litigation since at least 2004); and that tainted finding, in turn,
led to the denial of intervention.
The plaintiffs have a fallback position. They note the
district court's observation that the motion to intervene was filed
one month after the court's initial grant of equitable relief.
Under the peculiar circumstances of this case — including the
district court's incorrect reading of its 2004 order — that period
of delay is so slight as not to render that intervention motion
untimely. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S.
385, 396 (1977) (reversing denial of post-judgment intervention
sought within the 30-day time limit for appealing the judgment);
Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 65 (1st Cir. 2008)
(finding Rule 24(a)(2) motion timely when intervenor waited roughly
one month after receiving notice that her interest had suddenly
5
Questions concerning whether the district court could or
should have vacated or amended that order, so long as it gave the
parties notice and an opportunity to be heard, are beyond the
purview of this opinion.
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fallen into jeopardy); see also Dimond v. D.C., 792 F.2d 179, 193
(D.C. Cir. 1986).
This disposes of the question of intervention. For the
reasons discussed above, the order refusing intervention must be
vacated.
B. Equitable Relief (Backpay).
We turn next to the district court's denial of the
defendants' motion to alter or amend the judgment. A trial court's
disposition of a Rule 59(e) motion engenders review for abuse of
discretion. See Río Mar Assocs., LP v. UHS of P.R., Inc., 522 F.3d
159, 163 (1st Cir. 2008); Aybar v. Crispin-Reyes, 118 F.3d 10, 15
(1st Cir. 1997). Within that rubric however, abstract questions of
law receive de novo review. Pérez v. Volvo Car Corp., 247 F.3d
303, 319 (1st Cir. 2001). That is important because a court's
material error of law is invariably an abuse of its discretion.
See Río Mar, 522 F.3d at 163; Rosario-Urdaz v. Rivera-Hernández,
350 F.3d 219, 221 (1st Cir. 2003).
In the matter at hand, the defendants postulate that the
district court committed two errors of law, both of which relate to
the award of retroactive contributions toward the plaintiffs'
retirement and Social Security accounts. This award was faulty,
the defendants say, because such redress (i) cannot be granted
against supervisors who are sued only in their individual
capacities and (ii) amounted to a double recovery. This latter
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point derives from the district court's instruction to the jury to
include lost benefits in its calculation of compensatory damages.
The plaintiffs' initial rejoinder is that neither of
these arguments has been preserved for appellate review. As to the
first argument, the plaintiffs are plainly incorrect. The rule is
that if an argument is raised belatedly in the district court but
that court, without reservation, elects to decide it on the merits,
the argument is deemed preserved for later appellate review. See,
e.g., Me. Green Party v. Me. Sec'y of State, 173 F.3d 1, 4 (1st
Cir. 1999); United States v. Lombard, 72 F.3d 170, 174 n.2 (1st
Cir. 1995). So it is here: although the defendants did not raise
this "status" argument until they filed their sur-reply, the
district court opted to address the argument head-on. No more is
exigible to preserve the point for appellate review. Thus, we
proceed to the merits.
It is settled law in the federal courts that backpay as
such cannot be awarded against a defendant in his or her individual
capacity. See, e.g., L.A. Police Protective League v. Gates, 995
F.2d 1469, 1472 n.1 (9th Cir. 1993); Lenea v. Lane, 882 F.2d 1171,
1178 (7th Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.
1985). By definition, backpay is an award against an employer and,
thus, any demand for backpay from an individual-capacity defendant
is a non-sequitur. See Fred v. Aponte-Roque, 916 F.2d 37, 38 n.2
(1st Cir. 1990); Figueroa-Rodríguez, 863 F.2d at 1043 n.7. This
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makes perfect sense; a suit for backpay, even one brought under a
tort-like cause of action such as that supplied by section 1983,
necessarily stems from the contract of hire — a contract to which
the individual-capacity defendant was never a party. See Omosegbon
v. Wells, 335 F.3d 668, 673 (7th Cir. 2003); cf. L.A. Police, 995
F.2d at 1473 n.1 (observing that allowing awards of backpay against
individual-capacity supervisors would thwart "the policies
underlying the qualified immunity doctrine").
As the plaintiffs point out, our previous decisions on
this point discuss retroactive awards of wages and benefits, but do
not specifically address retirement or Social Security
contributions. See, e.g., Figueroa-Rodríguez, 863 F.2d at 1043.
But the logic that prohibits the imposition of the former against
an individual-capacity defendant applies with equal force to the
imposition of the latter. The concept of backpay is not monolithic
but, rather, encompasses a panoply of items. Cf. Rasimas v. Mich.
Dep't of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983)
(observing in Title VII case that backpay includes "[s]ick leave,
vacation pay, pension benefits and other fringe benefits the
claimant would have received but for discrimination"). One common
denominator, however, is that all species of backpay are improper
forms of relief when imposed upon a defendant who is sued only in
his or her individual capacity.
Lest the cynical among us suggest that cold logic has
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robbed the plaintiffs of their just desserts, we hasten to add that
this rule is in no way inequitable. While backpay as such cannot
be imposed upon an individual-capacity defendant, a successful
plaintiff is nonetheless entitled to receive compensatory damages
against such a defendant. See Santiago-Negrón v. Castro-Dávila,
865 F.2d 431, 441 (1st Cir. 1989) (holding that lost wages are a
form of legal redress to be awarded by the jury, not equitable
relief to be awarded by the judge, in a section 1983 action for a
politically discriminatory firing). Properly proven, those damages
will equal the grand total of the plaintiff's aggregate lost wages
and benefits. See Rosario-Urdaz, 350 F.3d at 222. Indeed, the
district court's jury instructions in this very case, quoted
earlier, were commodious enough to cover the full array of
benefits.
To say more on this issue would be to paint the lily. We
conclude, without serious question, that the district court erred
in imposing liability for retroactive retirement and Social
Security contributions upon the defendants in their individual
capacities. Accordingly, we reverse that portion of the district
court's judgment.6
6
This result renders it unnecessary to reach either the
defendants' alternate argument as to the effect of the jury
instructions or the plaintiffs' rejoinder that this alternate
argument was forfeited.
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III. CONCLUSION
We are far from enthusiastic about remanding this case
for yet another round of proceedings after two trials, two appeals,
and more than six years of litigation. But we do what we must. We
reverse those portions of the district court's judgment awarding
retroactive retirement and Social Security contributions against
the individual-capacity defendants. Given the unambiguous text of
the 2004 order, we also reverse the judgment insofar as it purports
to award reinstatement or other injunctive relief against Santiago
in his official capacity. Concomitantly, we vacate the denial of
COMEX's Rule 24(a)(2) motion to intervene.
We recognize (and leave open) the possibility that the
plaintiffs, on remand, may seek to vacate or amend the pertinent
provision of the 2004 order so as to revive the issue of
reinstatement. Should such a motion be made, cf. United States v.
An Article of Drug, 661 F.2d 742, 746 (9th Cir. 1981) (allowing
post-verdict amendment of complaint to include injunctive relief),
the district court shall first reconsider COMEX's motion for
intervention. Thereafter, it shall afford the intervenor (should
intervention be granted) and the defendants an opportunity to be
heard on the motion to vacate and/or amend.
In that regard, the court shall consider, among other
things, that in their earlier appeal to this court the plaintiffs
could have, but did not, mount a challenge to the 2004 order.
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Thus, the court will have to determine whether that foregone
opportunity precludes it from revisiting the 2004 order. See,
e.g., United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)
(explaining that "issues that remain open on remand frequently will
be circumscribed by the earlier appeal").
If the court allows COMEX to intervene and also amends or
vacates the critical provision of the 2004 order, it must then pass
upon any arguments vis-à-vis the propriety of reinstatement raised
either by COMEX or by the defendants.
We take no view as to whether COMEX should be permitted
to intervene, whether the 2004 order should be revisited, whether
vacation or amendment of that order should be allowed, or whether
reinstatement is appropriate.7 Such matters are, in the first
instance, for the district court.
We need go no further. In line with the foregoing, we
remand the case to the district court for further proceedings
consistent with this opinion.
Reversed in part, vacated in part, and remanded. Costs are to be
taxed in favor of the appellants.
7
Reinstatement is not an automatic entitlement in an
employment discrimination case. See Selgas v. Am. Airlines, Inc.,
104 F.3d 9, 15 (1st Cir. 1997); Rosario-Torres v. Hernández-Colón,
889 F.2d 314, 321-23 (1st Cir. 1989) (en banc).
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