United States Court of Appeals
For the First Circuit
No. 05-1238
VIVIAN COLÓN-SANTIAGO, ET AL.,
Plaintiffs, Appellants,
MYRIAM NOEMÍ HERNÁNDEZ, ET AL.,
Plaintiffs,
v.
HÉCTOR R. ROSARIO, ET AL.,
Defendants, Appellees,
RAÚL E. ROSADO-TORO, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Gibson, John R.,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Pablo Landrau-Pirazzi, with whom Aldarondo & López Bras, was
on brief, for appellants.
Courtney R. Carroll, with whom José R. Cintrón-Rodríguez,
Litigation Division, Puerto Rico Electric Power Authority, Roberto
Sánchez-Ramos, Secretary of Justice, Salvador Antonetti-Stutts,
Solicitor General, Eduardo A. Vera-Ramírez, Eileen Landrón-
Guardiola, and Landrón & Vera, LLP, were on brief, for appellees.
February 21, 2006
*
Of the Eighth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. This appeal involves twenty-
seven current and former employees ("Appellants") of the Puerto
Rico Electric Power Authority ("PREPA") who filed suit in the
United States District Court for the District of Puerto Rico on
December 21, 2001, alleging violations of the First, Fifth, and
Fourteenth Amendments. Defendants-appellees ("Appellees"), who are
officials in charge of PREPA as well as PREPA itself, filed a
motion for summary judgment which the district court granted.
Appellants filed various motions for reconsideration, all of which
were denied. Appellants now appeal the grant of summary judgment
and the denial of their motions for reconsideration. We affirm in
part, vacate in part, and remand.
I. Background
Appellants are all members of the New Progressive Party
("NPP"), which was the political party in power in Puerto Rico
before the 2000 general election. At the time of the election,
Appellants, who had previously held career positions, were in trust
positions.1 In the election, held on November 7, 2000, the NPP was
defeated by the Popular Democratic Party ("PDP"). In December
2000, PREPA's then-Executive Director Miguel Cordero ("Cordero")
1
In Puerto Rico, public employees are categorized as "career" or
"trust/confidential" employees. Trust employees are involved in
the formulation of policy and are "of free selection and removal."
3 P.R. Laws Ann. § 1350(8). Career employees are "selected
strictly on merit and can be removed only for cause." Jiménez-
Fuentes v. Torres-Gaztambide, 807 F.2d 236, 246 (1st Cir. 1986).
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reinstated ninety-two employees, including Appellants, from trust
positions to career positions. In many cases, Cordero awarded the
reinstated employees the same salaries ("reinstatement salaries")
they had earned in their trust positions; in some cases merely
token salary adjustments took place. Upon reinstatement, these
employees were earning more than others who held comparable
positions. These transactions occurred during the electoral ban
period, governed by a statutory provision prohibiting certain
public service personnel transactions two months prior to and two
months after an election. See 3 P.R. Laws Ann. § 1337; PREPA
Personnel Regulations for Non-Union Employees Article 10.2
In January 2001, PREPA's Governing Board appointed
Appellee Héctor R. Rosario Hernández ("Rosario") as Executive
Director. Thereafter, PREPA's Human Resources Directorate reviewed
all personnel transactions carried out during the electoral ban
period. PREPA also requested and obtained legal opinions from a
local law firm regarding the reinstatements that occurred during
the electoral ban period and the assignment of salaries to
employees reinstated to career positions. The law firm issued two
2
The Personnel Act is not applicable to public corporations that
operate as private businesses. PREPA is such a public corporation.
However, PREPA and corporations like it are required to regulate
their personnel issues in such a way as to protect and guarantee
the merit principle. See Torres-Solano v. PRTC, 27 P.R. Offic.
Trans. 499 (P.R. 1990); Flores-Román v. Ramos-Gonzáles, 27 P.R.
Offic. Trans. 601 (P.R. 1990). To that end, PREPA promulgated
Personnel Regulations for Non-Union Employees.
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opinions, one in March 2001 and the other in May 2001. In these
opinions, the firm opined that reinstatements which occurred during
the electoral ban were null and void, and that the reinstatement
salaries, to the extent they were on par with the employees' trust
position salaries, were also null and void.
At the conclusion of the review process, PREPA set out to
address the reinstatements. Appellee Ana Blanes ("Blanes"),
PREPA's Director of Human Resources, along with Aníbal Hernández
("Hernández"), a PREPA salary specialist, devised the following
threshold formula: the salary assigned by Cordero to each
reinstated employee ("discretionary salary") was compared to the
salary the employee would have earned if he had remained in his
last career position, accounting for natural salary increases
("non-discretionary salary"). If the discretionary salary exceeded
the non-discretionary salary by more than 10%, the employee's
salary was adjusted to the non-discretionary salary. If the
difference between the two salaries was less than 10%, the
employee's salary remained the same.
On June 17, 2001, using this formula, PREPA reduced the
salaries of thirty-three reinstated employees, including twenty-six
of the appellants in this case. The salaries of the remaining
fifty-nine employees were not adjusted. The affected employees
were advised of their right to appeal the decision by filing an
administrative complaint at PREPA's Labor Affairs Office.
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Appellants instead filed a complaint in the district court on
December 21, 2001, naming as defendants PREPA and various PREPA
officials in their official and individual capacities. The
complaint was amended on February 26, 2002.
In the amended complaint, Appellants brought claims
pursuant to 42 U.S.C. § 1983, alleging that Appellees violated
their First, Fifth, and Fourteenth Amendment rights under the
United States Constitution. Appellants also alleged violations of
certain laws of Puerto Rico. Specifically, the complaint alleged
that (1) Appellees violated Appellants' due process rights under
the Fifth and Fourteenth Amendments by reducing Appellants'
salaries without giving them an informal hearing; and (2) Appellees
violated Appellants' First Amendment rights of freedom of speech
and association because a substantial or motivating factor in the
salary reductions was Appellants' political affiliation. In
addition, there were First Amendment claims that certain Appellants
were harassed in the workplace due to their political views, and
one Appellant claimed that she was terminated on politically
discriminatory grounds.
On August 14, 2003, Appellees in their official
capacities filed a partial motion for summary judgment, arguing
that the First Amendment salary reduction claims and due process
claims should be dismissed. That same day, Appellees in their
individual capacities filed a motion for summary judgment, arguing
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that the complaint should be dismissed in its entirety. On
October 17, 2003, Appellees in their official capacity filed
another motion for partial summary judgment regarding the
politically-motivated harassment and termination claims.
Appellants opposed the first two motions to summary judgment, but
not the third. Instead, Appellants filed a motion to dismiss the
third motion, arguing that it had not been timely filed.3
On October 16, 2003, the district court referred the
first two motions for summary judgment to a magistrate judge. On
November 3, 2003, the magistrate judge issued a Report and
Recommendation recommending that the motions be denied. Both
parties filed objections to the Report and Recommendation. On
March 29, 2004, the district court issued an Opinion and Order in
which it rejected the magistrate's recommendation and dismissed
Appellants' complaint in its entirety. Regarding the First
Amendment salary reduction claims, the district court found that
"[t]he allegations and evidentiary support given by Plaintiffs
amounts to a prima facie case only with the broadest of
interpretations" because "Plaintiffs have not presented any
specific evidence other than a blanket assertion of being members
of the opposing political party." The district court then went on
to say that, even assuming Appellants had established a prima facie
3
The district court ruled that this motion was moot after
entering its Opinion and Order.
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case, Appellees had provided a sufficient non-discriminatory reason
for their actions. In this regard, the district court stated that
Appellants' reinstatements were illegal because they occurred
during the electoral ban and because the salaries they received
upon reinstatement were too high. The court then found that
Appellants had not shown that the non-discriminatory reason was
pretextual.
Regarding the due process claims, the district court
found that, because the reinstatements were illegal, Appellants did
not have protectable property rights to their positions and
Appellees were not required to give them hearings before
undertaking the salary reductions. The district court did not
address, or even mention, the politically-motivated harassment and
termination claims (which had also not been referred to the
magistrate), but nevertheless dismissed the entire complaint.
On April 1, 2004, Appellants filed a motion for
reconsideration of the Opinion and Order ("First Motion for
Reconsideration"), arguing that the district court erred in finding
that the reinstatements violated the electoral ban. On April 2,
2004, Appellants filed a motion for clarification and/or
reconsideration ("Second Motion for Reconsideration"), arguing that
the district court's Opinion and Order had failed to address the
politically-motivated harassment and termination claims even though
the Opinion and Order dismissed the entire complaint. The district
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court summarily denied both motions on May 10, 2004. On July 6,
2004, final judgment was entered.
On July 12, 2004, Appellants filed a motion for
reconsideration of the judgment ("Third Motion for
Reconsideration"). On July 19, 2004, Appellants filed a motion to
supplement the Third Motion for Reconsideration ("First Motion to
Supplement"). On July 22, 2004, Appellants filed a second motion
to supplement the Third Motion for Reconsideration ("Second Motion
to Supplement").4 On January 10, 2005, the district court denied
the Third Motion for Reconsideration and the First and Second
Motions to Supplement. Appellants filed an appeal on January 19,
2005. On appeal, Appellants argue that the district court erred in
granting summary judgment on their due process claims and their
politically-motivated harassment and termination claims. They also
argue that the district court abused its discretion in denying
their motions for reconsideration. They do not challenge the
district court's grant of summary judgment on the salary-reduction
First Amendment claims.
4
The district court characterized the two motions to supplement
as motions for reconsideration. However, it is clear from the
record that the motions to supplement were just that: motions to
supplement the Third Motion for Reconsideration.
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II. Discussion
A. Standard of Review
We review an entry of summary judgment de novo. Cepero-
Rivera v. Fagundo, 414 F.3d 124, 131 (1st Cir. 2005). Summary
judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c). We review a district
court's denial of a motion for reconsideration for abuse of
discretion. Rivera v. Puerto Rico Aqueduct & Sewers Auth., 331
F.3d 183, 192 (1st Cir. 2003).
B. Jurisdiction
Before we reach the merits, we must first address whether
we have appellate jurisdiction over this case. Appellees argue
that Appellants failed to timely file their appeal and that we
therefore lack jurisdiction. In the alternative, Appellees argue
that we only have jurisdiction to review the denial of the Third
Motion for Reconsideration and the First and Second Motions to
Supplement.
Under Federal Rule of Appellate Procedure 4 ("Rule 4"),
a notice of appeal in a civil case "must be filed with the district
clerk within 30 days after the judgment or order appealed from is
entered." Fed. R. App. P. 4(a)(1)(A). A judgment or order is
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"entered" for Rule 4(a) purposes when, "if Federal Rule of Civil
Procedure 58(a)(1) requires a separate document, . . . the judgment
or order is entered in the civil docket under Federal Rule of Civil
Procedure 79(a) and . . . the judgment or order is set forth on a
separate document". Fed. R. Civ. P. 4(a)(7).5
A motion for reconsideration under Federal Rule of Civil
Procedure 59(e) ("Rule 59(e)") is timely if it is filed within ten
days after entry of the judgment. If a party timely files a Rule
59(e) motion then the time to file an appeal does not begin to run
until the district court enters judgment on the Rule 59(e) motion.
See Fed. R. App. P. 4(a)(4)(A)(iv). However, "a subsequent motion
for reconsideration served within ten days of the order denying the
initial motion for reconsideration but more than ten days after the
entry of the original judgment does not toll the time for appealing
from that judgment." See Aybar v. Crispín-Reyes, 118 F.3d 10, 14
(1st Cir. 1997) (internal quotation marks and citation omitted).
The instant case involves a peculiar situation, mainly
due to the unusually lengthy period of time between the district
court's Opinion and Order and the entry of judgment. On March 29,
2004, the district court issued its Opinion and Order granting
summary judgment. However, the court did not enter judgment on a
5
Under Rule 4(a)(7), if 150 days run from the entry of the
judgment or order on the civil docket, but judgment has not been
set forth in a separate document, the judgment or order is
considered "entered." This clause of Rule 4(a)(7) does not apply
in the instant case.
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separate document, as required by Federal Rule of Civil Procedure
58 ("Rule 58"), until July 6, 2004. In the meantime, Appellants
filed two motions for reconsideration which were rejected by the
district court before judgment was entered. After judgment was
finally entered in accordance with Rule 58, Appellants filed their
Third Motion for Reconsideration, which they argue tolled the time
for appealing the judgment entered on July 6.
Appellees argue that the Third Motion for Reconsideration
did not toll the time for appealing the judgment. First, Appellees
argue that Rule 4 was amended in 2000 and that as a result, having
a judgment entered on a separate document does not affect the
validity of an appeal from that judgment. See Fed. R. App. P.
4(a)(7)(B) (2000). In other words, due to the 2000 amendment,
Appellants could have validly appealed from the March 29 Opinion
and Order, or the denial of the First and Second Motions for
Reconsideration, even though no judgment had been set forth in a
separate document. While this may be true, in our view it does not
follow that Appellants were obligated to appeal before judgment was
entered.
Appellees' second argument is that the Third Motion for
Reconsideration was a successive motion for reconsideration, and
that a successive motion for reconsideration will generally not act
to further toll the time period for filing an appeal if it just
repeats the arguments of an initial, timely motion for
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reconsideration. Appellees argue that the Third Motion for
Reconsideration therefore cannot toll the filing period because it
simply rehashes the arguments made by Appellants in their First
Motion for Reconsideration. This characterization is erroneous
because the Third Motion for Reconsideration contains two arguments
not mentioned in the First or Second Motions for Reconsideration.
Furthermore, this argument is premised on the assumption that
Appellants did not file the Third Motion for Reconsideration within
10 days of the entry of judgment.
Appellees' arguments are thus meritless. As we noted
above, it is well-settled that: (1) the thirty-day window to appeal
from a judgment does not begin to run until that judgment is
"entered"; (2) judgment is not "entered" until it is set forth in
a separate document as required by Rule 58; and (3) in this case,
judgment was not set forth in a separate document as required by
Rule 58 until July 6, 2004. Thus, the time to appeal did not begin
to run until July 6, 2004. Appellants filed their Third Motion for
Reconsideration within ten days of the entry of judgment, and filed
a notice of appeal within thirty days of the denial of the Third
Motion for Reconsideration. While it is true that "a subsequent
motion for reconsideration served within ten days of the order
denying the initial motion for reconsideration but more than ten
days after the entry of the original judgment does not toll the
time for appealing from that judgment," Aybar 118 F.3d at 14
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(internal quotation marks and citation omitted), here, the
"subsequent" motion for reconsideration was filed within ten days
of the entry of judgment.
In sum, the time to appeal did not begin to run until
July 6, 2004, when judgment was entered. Regardless of what
happened prior to the entry of judgment, Appellants filed a Rule 59
motion within ten days of the entry of judgment. This Third Motion
for Reconsideration was therefore timely and thus tolled the time
for Appellants to file their appeal. When the district court
denied the motions on January 10, 2005, Appellants filed a notice
of appeal within thirty days. We therefore have jurisdiction over
the appeal in its entirety, and not just the three motions filed
after judgment was entered. We turn now to the merits.
C. Due Process
Under the Due Process Clause of the Fourteenth Amendment,
a state may not discharge a public employee who possesses a
property interest in continued employment without due process of
law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985); Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003). "The
Constitution does not create property interests; instead, 'they are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law . . . .'" Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 6
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(1st Cir. 2000) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)).
Under Puerto Rico law, career employees have a property
interest in their continued employment. Id. However, that
interest is non-existent ab initio if the employees gained their
career positions in violation of the Personnel Act or regulations
promulgated thereunder. González-de Blasini v. Family Dep't., 377
F.3d 81, 86 (1st Cir. 2004). Further, a person holding a career
position "who accepts a trust position has an absolute right to be
reinstated to a career position equal to the last position she held
as a career employee." Id. at 84 n.1. Here, Appellants are not
claiming that they were not reinstated to their former career
positions, or that Appellees fired or demoted them from their
career positions without due process. Rather, they are claiming
that they were deprived of due process when Appellees reduced the
salaries they had been granted upon reinstatement. The issue
before us, then, is whether Appellants had a property interest in
their reinstatement salaries that would entitle them to due process
protections.
The Personnel Act sets up a merit system for career
employees. Id. at 86.6 In Puerto Rico, authorities are forbidden
from making "any movement of personnel involving areas essential to
6
As we noted above, although not under the Personnel Act, PREPA
is still required to regulate its personnel issues in a way that
guarantees and protects the merit principle.
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the merit principle, such as appointments, promotions, demotions,
transfers and changes in the category of employees" two months
prior to and two months after an election. 3 P.R. Laws Ann. tit.
3, § 1337; PREPA Personnel Regulations Art. 10. The parties spend
much of their time arguing whether Appellants' reinstatements from
trust positions to career positions, which occurred in December
2000, violated the electoral ban. Appellants argue that the
reinstatements did not violate the electoral ban due to a special
Normative Letter from the Central Personnel Administration Office
("OCAP") issued in 2000. Appellees challenge the validity of the
Normative Letter and argue that it is invalid because it is
contrary to the law of Puerto Rico. We need not reach this issue
because, even assuming that the reinstatements in general did not
violate the electoral ban, Appellants do not have a valid property
interest in their reinstatement salaries.
First, we agree with Appellees' argument that Appellants'
reinstatement with salaries equivalent to the salaries they earned
at their trust positions constituted a de facto promotion.
Normally, a promotion means a higher salary and increased duties
and responsibilities, along with a change in title. Appellants
here received, in a certain sense, the best of both worlds: a
higher salary without an increase in duties and responsibilities.
Further, Appellants were paid on a higher level than others with
similar job titles and job functions. Since Appellants received
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their de facto promotions during the electoral bans, these
personnel actions were in violation of the electoral ban. We wish
to be clear that we are in no way expressing any opinion as to
whether a reinstatement in general during the electoral ban is per
se invalid. However, it is undisputed that promotions are
prohibited by the ban. To the extent that the reinstatements
constituted de facto promotions, they violated the electoral ban.
Even if these reinstatements had not occurred during the
electoral ban, Appellants still would not have a property interest
in their reinstatement salaries. Under Article II, § 16 of the
Puerto Rican Constitution, employees have a right "to equal pay for
equal work." As a result of this principle and the merit
principle, the Personnel Act provides that, when a trust employee
who previously held a career position is reinstated to her former
career position, she is entitled to the salary for that position as
well as benefits extended to the position while she was in a trust
position. See 3 P.R. Laws Ann. tit. 3, § 1350(8). Under PREPA's
Personnel Regulations for Non-Union Employees, promulgated in
accordance with the merit principle, a reinstated trust employee's
"assigned salary will never be less than the one equivalent for
that occupational group and to the corresponding employee's salary
level, if he had remained in his last career position." PREPA
Personnel Regulations for Non-Union Employees Art. 11.4.3. There
is thus no question that, under the Personnel Act and PREPA's
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regulations, Appellants had a property interest in a salary equal
to the salary they would have received had they remained in career
positions.
Appellants wish to go one step further, however, and
argue that they have a property interest in a salary higher than
the one they would have had if they had remained in their career
positions. Appellants base their argument on Article 11.4.3 of the
Personnel Regulations, which states that when employees are
reinstated to career positions "[a]ll of the cases which bear a
possible salary reduction must be submitted to the Executive
Director, who will have the discretion of whether or not to apply
said reduction." According to Appellants, this regulation gives
the Executive Director discretion to award whatever salary he
chooses upon an employee's reinstatement.
Appellees argue that Article 11.4.3 was not in effect at
the time that the reinstatements took place; Appellants vigorously
contend that it was. We choose not to address this argument,
however, because even assuming that Article 11.4.3 was in effect,
it could not be read to support Appellants' argument. A grant of
unfettered discretion to the Executive Director to authorize
reinstatement salaries above what an employee was entitled to would
not comport with the merit principle or the constitutional
principle of "equal pay for equal work."
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One of the underlying policies behind the merit principle
is the constitutional principle of "equal pay for equal work." See
Ortiz Ortiz v. Dept. of Treasury, 20 P.R. Offic. Trans. 229, 234
(P.R. 1987). The Puerto Rico Supreme Court has stated "that
employee compensation is one of the most important areas to . . .
expedite the application of the merit principle." Id. (internal
quotation marks and citation omitted). If we accept Appellants'
argument, Article 11.4.3's grant of discretion to the Executive
Director to determine reinstatement salaries would undermine the
principle of "equal pay for equal work" and the merit principle.
It would allow an Executive Director to assign higher salaries to
employees who, upon reinstatement, are performing the same tasks as
other career employees. In other words, it would allow the
Executive Director to assign higher pay for equal work. It would
also allow the Executive Director to authorize salaries for
employees at a level they could not have validly obtained by merit.
We note further that, in 1993, Cordero, who had been
recently appointed PREPA's Executive Director, asked the Central
Office of Personnel Administration ("OCAP")7 to address the very
issue before us: whether trust employees who were reinstated to
career positions can be given the same salaries they were earning
as trust employees due to Section 11.4.3. OCAP responded by
stating that assigning reinstatement salaries equal to what the
7
Appellees refer to OCAP in their brief by the acronym "COPA."
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employees were earning at trust positions was inconsistent "with a
sound public policy administration" and was of "questionable public
morality." OCAP also noted that "all reinstatement transactions
will result in a salary reduction since we are referring to two
different levels of classification and compensation: one for the
career service and another for the service of trust." The OCAP
response also invited Cordero to seek an opinion from the Secretary
of Justice, which Cordero did. In 1995, the Secretary of Justice
issued an opinion stating that Section 11.4.3 gave the Executive
Director discretion to assign reinstatement salaries "that
correspond to said career positions, pursuant to the applicable
scales of PREPA's Classification and Compensation Plain, and in
keeping with a sound administrative policy and the constitutional
principle of equal pay for equal work."
In short, several years before his actions in 2000,
Cordero had been told by OCAP and the Secretary of Justice that
assigning reinstatement salaries equal to an employee's trust
position salary was inconsistent with the merit principle and
sound administrative policy, and was of questionable morality.
However, in 2000, Cordero proceeded to do just that: assign
reinstatement salaries equal to an employee's trust position
salary. Interestingly, Appellants, in arguing that the
reinstatements with the higher salaries did not violate the
electoral ban, rely heavily on a Normative Letter from OCAP -- the
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same OCAP which in 1993 said that reinstating employees with the
same salaries as they held in their trust positions was against
sound administrative policy and the constitutional principle of
"equal pay for equal work." Given these facts, we have no trouble
concluding that reinstatement to a career position while
maintaining the same salary from a trust position is a violation of
Puerto Rico law and the merit principle.
In conclusion, while Appellants have a property interest
in a career position equal to their last held career position,
including "all salary benefits extended to the [career] position"
while they were in their trust positions, P.R. Laws Ann. tit. 3,
§ 1350, they do not have a property interest in the higher salaries
they received. They are therefore not entitled to procedural due
process protections as to those higher salaries. Appellees did not
violate Appellants' due process rights when they reduced
Appellants' salaries to their appropriate levels.
D. Politically-Motivated Harassment and Termination Claims
As we have already noted, the district court did not
address claims made by some of the Appellants regarding political
harassment, and in the case of one Appellant, termination on
political grounds. However, in its order, the district court
dismissed all of the Appellants' claims, including these
politically-motivated harassment and termination claims.
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Appellees raise three waiver arguments. First, they
argue that Appellants have waived any argument on this issue
because they did not raise it in their Third Motion for
Reconsideration or their First or Second Motions to Supplement. We
reject this argument for two reasons. First, Appellants clearly
raised the issue in their Second Motion for Reconsideration.
Second, although a party may file a motion for reconsideration,
filing such a motion in no way obligates a party to bring up every
possible reason for reconsideration or else waive the right on
appeal to challenge any argument not brought up. Appellees cite to
no case authority to back up this novel idea of waiver, nor are we
aware of any.
Appellees next argue that Appellants failed to adequately
raise this issue in their initial brief. We disagree. While
Appellants did not devote a substantial amount of time to this
issue, the issue does not require a substantial amount of
discussion. Appellants adequately raised the issue in their brief.
Finally, citing Zanditon v. Feinstein, 849 F.2d 692, 702
(1st Cir. 1988), Appellees argue that Appellants waived the issue
because they never filed an opposition to Appellees' motion for
summary judgment on these politically-motivated harassment and
termination claims. Instead, they filed a motion to dismiss
Appellees' motion for summary judgment, arguing that Appellees'
motion on this issue was filed too late. The district court never
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ruled on this motion, but instead declared it moot after issuing
its Opinion and Order. We reject Appellees' argument for two
reasons. First, Appellants did in fact oppose the motion for
summary judgment but did so by asking the court to dismiss the
motion for being late. While it certainly would have been
preferable for Appellants to also file an opposition to the motion
for summary judgment, this does not change the fact that Appellants
did oppose the motion in some form. Second, Appellants in their
Second Motion for reconsideration raised the argument that they
raise before us now. In Zanditon, we affirmed the grant of summary
judgment where the party "neither filed a response to [the] motion
for summary judgment, nor sought reconsideration by the district
court after the judgment had been granted." Id. Because
Appellants here sought reconsideration, they have not waived this
issue.8
From the record it is clear that the district court
granted summary judgment as to the politically-motivated harassment
and termination claims without any analysis whatsoever. In fact,
the district court's Opinion and Order never mentions the
8
We wish to be clear as to what arguments Appellants have not
waived. First, they have not waived the argument that the motion
for summary judgment should have been dismissed for being untimely.
Second, they have not waived the argument that the district court
erred in granting summary judgment without giving any analysis
whatsoever. Appellants are not making any arguments as to the
substance of the motion for summary judgment, nor could they at
this point.
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politically-motivated harassment and termination claims, even in
its recitation of the facts. We have previously remanded cases to
the district court where "there is at least one significant legal
issue, not squarely addressed by the district court[,] that remains
unresolved." Alden, Inc. v. Alden Ins. Agency of Florida, Inc.,
389 F.3d 21, 25 (1st Cir. 2004)(internal quotation marks omitted).
The procedural posture of this case also gives us pause.
From the record it appears that Appellees' motion for summary
judgment on the politically-motivated harassment and termination
claims was filed one day after a deadline imposed by the district
court, after the court had already granted two extensions of time
to file the motion. Appellants asked the district court to dismiss
the motion for summary judgment on the ground that it was late.
The district court never ruled on the motion to dismiss Appellees'
motion for summary judgment. Given the posture of this case, we
think it would be unwise to "leapfrog[] to the merits." Id.
(internal quotation marks and citation omitted). We therefore
remand these claims to the district court for consideration of the
issues not decided by that court as explained herein.
E. Motions for Reconsideration
Lastly, we have considered the motions for
reconsideration filed by the Appellants. We do not believe that
the district court abused its discretion in denying the First or
Third Motions (along with the two Motions to Supplement). We
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therefore affirm the district court's decision as to these motions.
However, the district court did abuse its discretion in denying the
the Second Motion for Reconsideration -- which raised the fact that
the district court had dismissed the politically-motivated
harassment and termination claims without mentioning them in its
Opinion and Order. Since we are remanding the claims to the
district court for summary judgment purposes, our decision on this
issue makes no difference to the outcome of this appeal.
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment as to Appellants' due process claims. We
vacate the district court's grant of summary judgment as to
Appellants' politically-motivated harassment and termination claims
and remand the case for proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded. No
costs are awarded.
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