Soto-Padró v. Public Buildings Authority

United States Court of Appeals
For the First Circuit

No. 10-2413

NEFTALÍ SOTO-PADRÓ,

Plaintiff, Appellant,

v.

PUBLIC BUILDINGS AUTHORITY; JAVIER SOTO-CARDONA, in his official
and personal capacities; LEILA HERNÁNDEZ-UMPIERRE, in her
official and personal capacities; ADRIÁN ACEVEDO-RIVERA, in his
official and personal capacities; RUDY MARTÍNEZ-CALDERÓN, in his
official and personal capacities; FABIO BARRETO-MARTÍNEZ, in his
official and personal capacities; JOSÉ GIRONA-MARQUEZ, in his
official and personal capacities; MIGUEL DÁVILA-SÁNCHEZ, in his
official and personal capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.

Raúl Barrera Morales for the appellant.
Edgardo Colón-Arrarás and Goldman Antonetti & Córdova for the
appellee Puerto Rico Public Buildings Authority and for the
individual appellees in their official capacities.
Irene S. Soroeta-Kodesh, Solicitor General, Department of
Justice, Leticia Casalduc-Rabell, Acting Deputy Solicitor General,
Zaira Z. Girón-Anadón, Acting Deputy Solicitor General, and Susana
I. Peñagarícano-Brown, Assistant Solicitor General, for the
individual appellees in their personal capacities.
March 12, 2012
 THOMPSON, Circuit Judge.

FOREWORD

Our story concerns a dispute that arose after Puerto

Rico's Public Buildings Authority (PBA) restructured its

organization in the late 2000s.1 We start, naturally, with the

facts. And because the case is here on summary judgment, we

present them in the light most flattering to Neftalí Soto-Padró,

the summary-judgment loser, consistent with record support. See,

e.g., Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st

Cir. 2011). Spoiler alert: when all is said and done, we affirm

the district judge's rulings across the board.

THE REORGANIZATION

For the uninitiated, the PBA is a commonwealth-created

public corporation whose central mission is preparing plans for and

meeting the maintenance needs of "physical facilities related to

government services," and whose seven-member governing board

includes four persons appointed by Puerto Rico's Governor. See

P.R. Laws Ann. tit. 22, §§ 902-04, 906. The board approved the

reorganization that has caused this dust-up – a reorganization that

1
The PBA's name is spelled "Public Building Authority" and
"Public Buildings Authority" in various parts of the record.
(Emphasis added.) We use the spelling employed by the PBA. And
while we are on the subject of spelling, the parties also spell the
names of the persons involved here differently in different places
– sometimes using hyphens, sometimes not; sometimes using accent
marks, sometimes not. We have done our best to get the names
right, and the parties have our apologies if we have gotten any
wrong.

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eliminated some PBA positions and created new ones too. Out went

Field-Operations-Supervisor positions, for example, and in came

Field-Operations-Manager and Technical-Services-Supervisor posts.

Soto-Padró is a member of the New Progressive Party

(NPP), one of Puerto Rico's two main political parties. The other

is the Popular Democratic Party (PDP). At some point in the

restructuring process, he went from being a Field Operations

Supervisor to a Technical Services Supervisor. According to the

summary-judgment evidence, here is how that happened.

After the PBA cut the Field Operations Supervisor

positions as part of the reorganization, Soto-Padró applied for

three PBA jobs: Auxiliary Regional Director, Field Operations

Manager, and Technical Services Supervisor. A trio of PBA

officials – Conservation Area Director Fabio Barreto Martínez,

Special Assistant to the Executive Director Miguel Dávila-Sánchez,

and Executive Sub-Director José Girona-Márquez – interviewed him

for the latter two positions. Human Resources and Labor Relations

Manager Rudy Martínez-Calderón also sat in on the interviews.

Everyone except Soto-Padró was a PDP sympathizer.

The Field-Operations-Manager job went to Adrián Acevedo-

Rivera, a PDP sympathizer and former Field Operations Supervisor.

Another PDP sympathizer, PBA Executive Director Leila Hernández-

Umpierre, wrote Soto-Padró that he had landed the Technical-

Services-Supervisor position instead. But despite being offered a

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job that he had applied for, Soto-Padró soon had a change of heart.

He realized that the switch from Field Operations Supervisor to

Technical Services Supervisor would lower the range of possible

pay-raise options, though it would not affect his immediate salary.

And he learned from talking with PBA Regional Director Javier Soto-

Cardona, a PDP activist, that he would have new duties: supervising

lower-ranked personnel than he had before and handling plumbing and

refrigeration issues, not electrical matters like he was used to

(Soto-Padró has a bachelor's degree in electrical engineering),

though he concedes that plumbing and refrigeration are critical

aspects of PBA operations. So Soto-Padró balked at the switch,

writing Hernández-Umpierre that he considered it a "demotion" since

it would lower his "pay scale" and lessen his "functions."

Martínez-Calderón responded, telling Soto-Padró that he would

"continue" as Field Operations Supervisor. But eight months later,

Hernández-Umpierre fired off another letter to Soto-Padró, this

time saying that he had been doing the duties of a Technical

Services Supervisor for the past "few months" or so anyway and that

the PBA was reclassifying his position to Technical Services

Supervisor.

Soto-Padró was hardly the only PBA staffer affected by

the reshuffling. And though executed by PBA personnel affiliated

with the PDP, the reorganization impacted workers in both political

camps, as we shall see shortly.

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 THE LAWSUIT

Invoking federal civil-rights statutes, 42 U.S.C.

§§ 1983, 1985, and 1988, as well as the federal declaratory-

judgment act, 28 U.S.C. § 2201, Soto-Padró sued everyone in sight:

the PBA, Soto-Cardona, Hernández-Umpierre, Acevedo-Rivera,

Martínez-Calderón, Barreto-Martínez, Girona-Márquez, and Dávila-

Sánchez. According to Soto-Padró, the defendants had demoted him

because he was affiliated with the wrong political party (the NPP

rather than the PDP), violating his First-Amendment and due-process

rights. His complaint included supplemental local-law claims too.

He sued the individual defendants in both their official and

personal capacities. And he asked for an amalgam of relief. For

openers, he requested a mix of injunctive and declaratory relief.

Paraphrasing his complaint, he writes in his brief that he asked

the court to declare his reclassification to Technical Services

Supervisor "null and void" and to order the PBA to place him in the

Field-Operations-Manager position.2 He also asked the court for

damages and attorney fees, among other things.3

2
His complaint also asked the court to declare the entire
reorganization "null and void" under the PBA's personnel
regulations "and other state personnel laws." But we see nothing
approaching an adequately developed argument on that point here, so
it is waived. See Negrón-Almeda v. Santiago, 528 F.3d 15, 25 (1st
Cir. 2008); see also Rodríguez, 659 F.3d at 175-76 (discussing some
of our dos and don'ts for presenting an argument on appeal).
3
For an excellent primer on what relief is available against
persons sued in their official or personal capacities, see
Martinez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 2007).

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 We step back for a moment to gain some perspective. A

claim for relief under section 1983 requires a showing of two

elements – first, that the plaintiff was deprived of either a

federal constitutional or statutory right, and, second, that the

deprivation was carried out by a defendant acting under color of

state law.4 See, e.g., Barrios-Velázquez v. Asociación de

Empleados del Estado Libre Asociado de P.R., 84 F.3d 487, 491 (1st

Cir. 1996). And section 1988 allows a "prevailing party" in a

section 1983 action "reasonable" attorney fees. 42 U.S.C.

§ 1988(b). Section 1985 permits suits against those who conspire

to deprive others "of the equal protection of the laws, or of the

equal privileges and immunities under the law . . . ." 42 U.S.C.

§ 1985(3). The elements of a section 1985 claim are

straightforward: (1) "a conspiracy," (2) "a conspiratorial purpose

to deprive the plaintiff of the equal protection of the laws,"

(3) "an overt act in furtherance of the conspiracy," and, lastly,

(4) either (a) an "injury to person or property" or (b) "a

deprivation of a constitutionally protected right." Pérez-Sánchez

v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). A section

1985 claim "requires 'some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the conspirators'

4
In the district court, the parties and the judge assumed
that that requirement was met here, and the parties make that same
assumption in their briefs to us. We will too. See Davila-Lopes
v. Zapata, 111 F.3d 192, 193 (1st Cir. 1997) (taking that tack in
a similar situation).

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action,'" id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102

(1971)), though we have held, in the not-too-distant past, that

this statute offers "no remedy" for discrimination based on

political affiliation, id. at 109. Soto-Padró makes no effort to

explain how his case comes within section 1985's sweep, so the

claim is waived. See, e.g., Rodríguez, 659 F.3d at 175-76.

THE RULINGS

About a year after he filed suit, Soto-Padró became a PBA

Regional Director – a position he still holds, the parties tell us,

and likes very much, not only because he got a nice salary bump but

also because none of the individual defendants have any supervisory

authority over him. In any event, the district judge later granted

the defendants summary judgment. Stripped to essentials, his

reasoning ran this way: The PBA's enabling legislation describes

the PBA's mission as fulfilling an "essential" government function,

see P.R. Laws Ann. tit. 22, § 902, but the judge concluded that the

PBA is not an "arm of the state," so it is not protected by the

Eleventh Amendment.5 Moving on, the judge held that the summary-

judgment record compels the conclusion that the defendants would

have taken the same employment action against Soto-Padró even if he

were a PDPer, which defeated his political-discrimination claim.

Also, the only differences between Field Operations Supervisor and

5
Because no one challenges that aspect of the judge's
decision, we say no more about that subject.

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Technical Services Supervisor, the judge stressed after surveying

the summary-judgment material, were, first, the duties performed,

and, second, the salary scale. And neither change, he quickly

added, worked a loss of a constitutional property interest.

Consequently, Soto-Padró's due-process theories failed too. The

judge also jettisoned all prayers for declaratory and injunctive

relief as moot or unripe (why he did that does not really matter in

this appeal, for reasons that we get to later), and he dismissed

the local-law claims without prejudice. Soto-Padró later filed a

motion under Fed. R. Civ. P. 59(e), asking the judge to reconsider,

but the judge denied the motion.

THE APPEAL

Needless to say, Soto-Padró disagrees with parts of the

judge's rulings. He appeals. But his arguments do not persuade.

(A)
Summary Judgment

We give de novo review to the judge's summary-judgment

decision, drawing all reasonable factual inferences in favor of

Soto-Padró, see, e.g., Rodríguez, 659 F.3d at 175, and affirming if

the record reveals no genuine dispute of material fact and

discloses the defendants' entitlement to judgment as a matter of

law, see Fed. R. Civ. P. 56(a). Soto-Padró must come forward with

evidence sufficient for "a fair-minded jury [to] return a verdict"

in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). "[C]onclusory allegations, improbable inferences, and

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unsupported speculation" will not do. Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). And we may

uphold the summary judgment for any reason supported by the record,

even if not relied on by the judge. See, e.g., Alliance of Auto.

Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005).

With these lessons in mind, we turn to the summary-

judgment issues before us, filling in some missing details as we

move along.

(1)
Political Discrimination

Soto-Padró remains adamant: the defendants "demoted" him

because of his NPP status.6 But even if a jury could reasonably

conclude from the summary-judgment evidence that his political

affiliation was a substantial or motivating factor in their

decisional calculus, he still would not be home free. The

defendants could still meet their summary-judgment burden by

showing that no sensible jury would reject their defense that they

would have taken the same action against him "in the absence of the

protected conduct." See, e.g., Díaz-Bigio v. Santini, 652 F.3d 45,

52 (1st Cir. 2011) (internal quotation marks omitted) (discussing

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977)); Costa-Urena v. Segarra, 590 F.3d 18, 25 (1st Cir. 2009)

(same). This is what is known as a Mt. Healthy defense, see

6
We use Soto-Padró's language but do not rule on whether he
was actually "demoted" in any actionable sense.

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Rodríguez, 659 F.3d at 176; Martinez-Vélez, 506 F.3d at 39, and the

judge rightly granted the defendants summary judgment based on that

defense. We explain.

With the blessing of its governing board, the PBA

restyled its operations – consolidating or modifying some

positions, wiping out others, and creating new ones – to help

things run more smoothly there. Efficiency was the PBA's

watchword. At least that is what the summary-judgment record

shows. The restructuring was entity-wide – in other words, it was

not one that was targeted exclusively at Soto-Padró's particular

corner of the PBA. And it focused on positions not persons.

But obviously a reshuffling of positions affects people,

and the people affected included NPP and PDP sympathizers: NPPers

and PDPers got promoted, and, as PBA Regional Director Soto-Cardona

stressed, PDPers got demoted – all as a result of the board-

approved restructuring. As an example, Soto-Cardona singled out

José Vargas – a PDP member who was demoted from Field Operations

Supervisor on account of the shake-up, just like NPP-member Soto-

Padró claims he himself was. Samuel Valentín-Vega, a PBA

Maintenance Supervisor, backed up Soto-Cardona's testimony on

Vargas's demotion.

Critically, our case is 180 degrees different in very

relevant respects from cases that deemed a Mt. Healthy defense

deficient – cases like Rodriguez-Rios v. Cordero, 138 F.3d 22, 25

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(1st Cir. 1998), where we held that even if the public-corporation

officials there had demoted an employee under a "reorganization"

plan, their real motives "remained very much in question," given

that the governing board had not "approved" that plan, as it had

earlier ones; Padilla-García v. Guillermo Rodríguez, 212 F.3d 69,

78 (1st Cir. 2000), where we noted that the "restructuring" there

had scrapped one job but not others; or Jirau-Bernal v. Agrait, 37

F.3d 1, 3 (1st Cir. 1994), and Rodriguez-Pinto v. Tirado-Delgado,

982 F.2d 34, 40 (1st Cir. 1993), where we stressed that every

single one of the employees demoted under the "reorganization"

schemes there was a supporter of the political party that opposed

the party in power. Even at the risk of testing the reader's

patience, we repeat that the summary-judgment submissions here show

that the PBA's governing board had green-lighted the entity-wide

restructuring plan – a plan implemented by PDPers, certainly, but

one that affected NPPers and PDPers alike, including a PDP-

sympathizer employee (Vargas) who was demoted from Field Operations

Supervisor, just like NPP-member Soto-Padró claims he himself was.

The Supreme Court has described the Mt. Healthy defense

this way: it deals with employment actions driven by "mixed

motives," and provides that where there are both "lawful" and

"unlawful" reasons for the adverse employment action, "if the

lawful reason alone would have sufficed to justify the [action],"

then the employee cannot prevail. McKennon v. Nashville Banner

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Pub. Co., 513 U.S. 352, 359 (1995). And in the context of a case

like this, we have said that even if a plaintiff shows an

impermissible political motive, he cannot win if the employer shows

that it would have taken the same action anyway, say, as part of a

bona fide reorganization. Nereida-Gonzalez v. Tirado-Delgado, 990

F.2d 701, 706 n.4 (1st 1993). That is our situation here: the

record, properly viewed (i.e., afresh and in the light most

generous to Soto-Padró), shows that the defendants still would have

reclassified Soto-Padró's position even if he were a PDP member or

sympathizer, which means that they have sufficiently established a

Mt. Healthy defense.

Soto-Padró's several attempts to cast doubt on this fail.

Take, for example, his claim that Valentín-Vega, as a PBA

Maintenance Supervisor, had zero personal knowledge of either PBA

personnel matters or the reorganization plan.7 But Valentín-Vega's

deposition testimony – given in response to a lawyer's directing

him to testify about matters only within his "personal knowledge"

on this point – cuts the legs out from under Soto-Padró's lead

argument. And Soto-Padró points to no evidence contradicting this.

Still focusing on Vargas's demotion, Soto-Padró thinks

that he has a trump card. Comparing him with Vargas is like

comparing apples and oranges, he writes, because Vargas was not a

7
Remember that Valentín-Vega had seconded Soto-Cardona's
testimony on Vargas's demotion.

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demotee. True, PBA Auxiliary Regional Director Gerardo García said

in his deposition that Vargas "was not demoted." (Emphasis added.)

García stressed that Vargas told him that after the PBA eliminated

the Field-Operations-Supervisor posts, he (Vargas) applied for the

newly-created position of Field Operations Manager. Not having the

right credentials for that job, Vargas ended up as a Supervisor

instead, which, apparently, was a better fit – at least that is

what García said Vargas said. Given these circumstances, comparing

Soto-Padró's situation with Vargas's does not cut it, or so Soto-

Padró insists.

This argument is not a winner either. For one thing,

García's testimony about what Vargas said smacks of hearsay (Soto-

Padró points us to no applicable hearsay-rule exception), and

hearsay evidence of this sort cannot defeat summary judgment. See,

e.g., Dávila v. Corporación de P.R. para la Difusión Pública, 498

F.3d 9, 17 (1st Cir. 2007). For another thing, García conceded

during his deposition that Vargas went from a higher-ranked

position (Field Operations Supervisor) to a lower-ranked one

(Supervisor) – the classic definition of a demotion, see Black's

Law Dictionary 497 (9th ed. 2009) – as a direct result of the

reorganization. It follows, then, as surely as summer follows

spring, that García's testimony is not enough to create a genuine

dispute of material fact regarding Vargas's demotion – for a

plaintiff cannot meet that standard by pouncing on comments made by

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a deponent that the deponent himself has undercut with his later

testimony. See Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 39 n.2

(1st Cir. 1999).

Soto-Padró also tosses around words like "arbitrary" and

"sham" to describe his reclassification in the hope of discrediting

the defendants' Mt. Healthy defense. The poster child for this

campaign is his claim that the PBA did not follow certain hiring

procedures in naming PDP sympathizer Acevedo-Rivera Field

Operations Manager, even though Acevedo-Rivera was "less qualified"

than he. And to bolster his theory, Soto-Padró relies on an

"expert report" prepared by a human-resources consultant that

accused the PBA of not adhering to some of its hiring protocols.

None of this helps his cause, however. For starters, he never

established that the supposedly less-qualified Acevedo-Rivera was

not qualified for the Field-Operations-Manager job. Also, and

importantly, the expert's report does not suggest that the

defendants would have reached a different reclassification decision

regarding Soto-Padró if he had been a PDP rather than an NPP

member.

That ends this phase of our analysis. Given this record,

the judge properly granted summary judgment to the defendants on

Soto-Padró's political-discrimination claim. So we soldier on.

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 (2)
Due Process

Convinced that the reclassification infracted his

substantive and procedural due-process rights, Soto-Padró faults

the judge for holding otherwise. To prevail on either due-process

theory, Soto-Padró must point to a protected property interest.8

See, e.g., Harron v. Town of Franklin, 660 F.3d 531, 536, 537 (1st

Cir. 2011); Alvarado-Aguilera v. Negrón, 509 F.3d 50, 53 (1st Cir.

2007); Centro Medico del Turabo, Inc., 406 F.3d at 7-8. The

Constitution, of course, does not create property interests –

rather they are created elsewhere, usually under local law. See

Rodriguez-Pinto, 982 F.2d at 41; Kauffman v. P.R. Tel. Co., 841

F.2d 1169, 1173 (1st Cir. 1988); see also Torres-Martínez v. P.R.

Dep't of Corr., 485 F.3d 19, 24 (1st Cir. 2007); Ruiz-Casillas v.

Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005). And that is

where Soto-Padró falters.

The essence of Soto-Padró's argument is that the "sham"

reorganization left him in a new position (Technical Services

Supervisor) with fewer duties and a smaller pay scale than his old

post (Field Operations Supervisor). We see two problems, though:

one, Puerto Rico law holds that an employee in Soto-Padró's shoes

8
The Due Process Clause protects liberty interests too, see
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
7-8 & n.4 (1st Cir. 2005), but Soto-Padró invokes none. It also
protects life, see U.S. Const. amend. XIV, § 1, but obviously that
is not a concern here.

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has "a property interest in [his] continued employment, not in the

functions [he] perform[s]," Ruiz-Casillas, 415 F.3d at 134

(internal quotation marks omitted and emphasis added); accord

Torres-Martínez, 485 F.3d at 24; and, two, Soto-Padró never cites

a Puerto Rico source showing that he had a protectable property

interest in his old pay scale. The judge had rejected the pay-

scale aspect of Soto-Padró's due-process argument, relying on

Rodriguez-Pinto v. Tirado-Delgado, 798 F. Supp. 77, 83 (D.P.R.

1992), a case where a different judge in the same court gave thumbs

down to a similar argument after concluding that the plaintiff

there had not satisfied "his burden of showing" that he had a right

to remain in the same salary scale. On appeal we affirmed,

sidestepping the constitutional question and deeming the issue

"waived" because (among other reasons) the plaintiff did not

pinpoint the source of the property right that he was supposedly

deprived of, spell out how that right (assuming it exists) was

"entitled to constitutional protection," or "cite any legal

authority" to bolster his theory. Rodriguez-Pinto, 982 F.2d at 41.

Because Soto-Padró's failings basically mirror those in Rodriguez-

Pinto, we follow Rodriguez-Pinto's lead and find his pay-scale

argument waived. The net result, then, is that the judge rightly

awarded the defendants summary judgment on Soto-Padró's due-process

claim as well.

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 (3)
Declaratory and Injunctive Relief

Recall that Soto-Padró's complaint asked for various

forms of declaratory and injunctive relief, among other things. His

opening brief attacks the reasoning behind the judge's decision not

to grant declaratory relief. His reply brief then assails the

judge's refusal to grant declaratory and injunctive relief. We do

not spend any time on these protests, however.

We can and do dispatch his injunction argument as waived,

since appellate arguments debuted in a reply brief are not

preserved. See, e.g., Liberty Mut. Ins. Co. v. Nippon Sanso K.K.,

331 F.3d 153, 162 (1st Cir. 2003). Another problem dooms both the

injunction and the declaratory-judgment arguments, actually:

because the judge (as we have said already) correctly tossed the

political-discrimination and due-process claims on summary

judgment, Soto-Padró has no basis for any relief at all against the

defendants, let alone declaratory and injunctive relief. See Lopez

v. Garriga, 917 F.2d 63, 70 (1st Cir. 1990) (holding that once

"plaintiff's constitutional claim" failed, "he was left without any

sound basis for" injunctive or declaratory relief); see also

Redondo-Borges v. U.S. Dep't of HUD, 421 F.3d 1, 5, 11 (1st Cir.

2005) (affirming a district-court ruling rejecting an equitable-

relief claim because "plaintiffs had failed to state any claim

cognizable under section 1983"). Enough said.

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 (B)
Reconsideration

With the summary-judgment issues out of the way, we take

up Soto-Padró's protest that the judge botched the reconsideration

ruling – a ruling that we review only for abuse of discretion,

keeping in mind that judges enjoy "considerable" discretion in this

area. See, e.g., Venegas-Hernandez v. Sonolux Records, 370 F.3d

183, 190 (1st Cir. 2004). Our cases generally offer three grounds

for a valid Rule 59(e) motion: an "intervening change" in the

controlling law, a clear legal error, or newly-discovered evidence.

See, e.g., Morán Vega v. Cruz Burgos, 537 F.3d 14, 18 (1st Cir.

2008); Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st

Cir. 2005). And our cases tell us that a party cannot use a Rule

59(e) motion to rehash arguments previously rejected or to raise

ones that "could, and should, have been made before judgment

issued." See, e.g., Morán Vega, 537 F.3d at 18 n.2 (internal

quotation marks omitted); see also Nat'l Metal Finishing Co. v.

BarclaysAmerican/Comm., Inc., 899 F.2d 119, 123 (1st Cir. 1990).

Given all this, it is exceedingly difficult for a litigant to win

a Rule 59(e) motion. See Marie, 402 F.3d at 7 n.2.

Moving from the general to the specific, Soto-Padró does

not play up an intervening change of law or newly-discovered

evidence. Instead he pins his hopes on persuading us to find a

manifest error of law. We see none, however.

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 Soto-Padró's first argument – that his motion brought to

the judge's attention "for the first time" a 1979 Supreme Court

case that supposedly supported his prayer for declaratory relief –

goes nowhere fast, given that he could and should have pressed that

point sooner. See, e.g., Morán Vega, 537 F.3d at 18 n.2. His next

two arguments – targeting parts of the judge's political-

discrimination and due-process analyses - also fail, but this time

because they are retreads of ones that the judge had already

rejected. See, e.g., id. And his parting shot – that the judge

gaffed the summary-judgment protocol – misses the mark too, since

the record undercuts his claim. Obviously, then, Soto-Padró has

not come close to showing an abuse of discretion here.

CONCLUSION

For the reasons revealed above, we uphold the judge's

rulings and judgment.

Affirmed, with appellate costs to the defendants.

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