Morales-Tañon v. Puerto Rico Electric Power Authority

United States Court of Appeals
For the First Circuit

No. 07-1774

LUIS MORALES-TAÑON,

Plaintiff, Appellant,

v.

THE PUERTO RICO ELECTRIC POWER AUTHORITY; HÉCTOR ROSARIO; EDWIN
RIVERA; VALERIANO OTERO; LUIS AVILÉS; WILFREDO PANTOJAS; RAMÓN
BURGOS; LUIS JIMÉNEZ-PAGÁN; JOHN DOE; RICHARD DOE; JORGE
RODRÍGUEZ; ANÍBAL HERNÁNDEZ-RAMOS,

Defendants, Appellees.

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

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,
and Keenan*, Senior District Judge.

Julio César Alejandro Serrano and Nicolás Nogueras Cartagena
on brief for appellant.
Marie L. Cortés Cortés and Llovet Zurinaga & López, PSC on
brief for appellees the Puerto Rico Electric Power Authority and
Jorge Rodríguez, Edwin Rivera, Valeriano Otero, Ramón Burgos, Luis
Jiménez-Pagán, and Luis Avilés in their official capacities.
Irene S. Soroeta-Kodesh, Assistant Solicitor General, Salvador
J. Antonetti-Stutts, Solicitor General, Mariana D. Negrón-Vargas,
Deputy Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy

*
Of the Southern District of New York, sitting by
designation.
Solicitor General, on brief for appellees Edwin Rivera, Valeriano
Otero, Luis Avilés, Wilfredo Pantojas, Ramón Burgos, and Luis
Jiménez-Pagán in their individual capacities.

April 17, 2008
 LYNCH, Circuit Judge. Luis Morales-Tañon appeals the

dismissal of his political discrimination and due process claims

against his employer, the Puerto Rico Electric Power Authority

("PREPA"), and various of its representatives. Morales-Tañon

brought suit under 42 U.S.C. § 1983, claiming violations of his

First, Fifth, and Fourteenth Amendment rights; he also alleged

violations of Puerto Rico law. The district court dismissed all of

plaintiff's claims, and we affirm.

Because plaintiff's claims were dismissed under Federal

Rule of Civil Procedure 12(b)(6), we accept the well-pleaded

allegations in plaintiff's complaint as true and draw all

reasonable inferences in his favor. Parker v. Hurley, 514 F.3d 87,

90 (1st Cir. 2008).

Morales-Tañon, an attorney, has held a career position as

a member of PREPA's Auction Committee since 1997. The complaint

gives no information about what the Auction Committee does. He is

an active member of the New Progressive Party ("NPP"), which

controlled the government in Puerto Rico at the time of his

appointment. The 2000 elections, however, brought the Popular

Democratic Party ("PDP") into power. The new administration in

2002 increased the size of PREPA's Auction Committee from three to

five members, with the two new members being PDP adherents. PREPA

officials then ceased appointing Morales-Tañon to temporary terms

as acting president of the Auction Committee, appointing the new

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PDP committee members instead. They did this even though the two

new individuals were not yet (according to Morales-Tañon) full

permanent members of the committee.

In January 2006, the president of the committee formally

retired. At the time of the filing of this complaint, PREPA had

yet to start the appointment process for a replacement president.

This takes us to the crux of Morales-Tañon's complaint: that PREPA

has not yet opened up the presidency position "for no other reason

than to discriminate against Plaintiff by allowing the newly

appointed members of the PDP to obtain their status as permanent

members of the Auction Committee and thus[] qualify for an

appointment as President . . ., all in retaliation for Plaintiff's

political activities in support of the NPP." Plaintiff asserts

that he is the only member of the committee who is currently

qualified to hold the presidency. Morales-Tañon also amended his

complaint to add allegations of continuing harassment and

retaliation. The alleged retaliation is his receipt of a reprimand

for raising his voice to a co-worker and an ethics charge for

engaging in private practice outside work hours, both of which

actions were taken in January 2007.

Morales-Tañon brought suit in federal district court in

November 2006, alleging that defendants deprived him "of a

reasonable employment promotion expectation" in violation of his

First Amendment and due process rights. He sought compensatory and

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punitive damages and requested that the court either order PREPA to

retroactively instate him as president (a position he has never

held) or to start the appointment process.

Defendants moved for dismissal, arguing that Morales-

Tañon had failed to state a cognizable constitutional claim under

§ 1983 and that many of his claims under § 1983 were also time-

barred. The district court agreed. It found plaintiff's

allegations regarding the 2002 change in the Auction Committee's

composition barred by the statute of limitations. It ruled out the

due process claim because Morales-Tañon had not identified a

recognized and protected property interest of which he was

deprived, and it found no First Amendment-based political

discrimination claim because plaintiff had not alleged any adverse

employment action. As to the amended complaint, the court found

the complaint had not pled any facts from which an inference could

be drawn of a connection between the reprimand and ethics charge

and Morales-Tañon's political affiliation. The court thus

dismissed the § 1983 claims with prejudice and, declining to

exercise supplemental jurisdiction over the remaining state law

claims, dismissed those claims without prejudice.

Our review of Rule 12(b)(6) dismissals is de novo.

Parker, 514 F.3d at 95. The district court's unpublished opinion

carefully and correctly analyzed plaintiff's claims; we thus keep

our analysis brief.

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 To survive a motion to dismiss for failure to state a

claim, a complaint must contain factual allegations sufficient to

"raise a right to relief above the speculative level." Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). "While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff's obligation to provide

the 'grounds' of his 'entitle[ment] to relief' requires more than

labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do." Id. at 1964-65 (quoting Fed. R.

Civ. P. 8(a)(2)) (alteration in original) (citations omitted).

Bell Atlantic "retire[d]" the seemingly broader language

regarding pleading standards in Conley v. Gibson, 355 U.S. 41

(1957). Bell Atl. Corp., 127 S. Ct. at 1969. Specifically, the

Court cabined Conley's language that "a complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Conley, 355 U.S. at

45-46. The Court clarified that Conley "described the breadth of

opportunity to prove what an adequate complaint claims, not the

minimum standard of adequate pleading to govern a complaint's

survival." Bell Atl. Corp., 127 S. Ct. at 1969; see also Damon v.

Moore, ___ F.3d ___, 2008 WL 748269, at *3 (1st Cir. Mar. 21, 2008)

(discussing Bell Atlantic's retirement of Conley's oft-quoted

language); Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-

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96 (1st Cir. 2007) (same). Thus plaintiff's assertion that "all

[he] needs to plead is enough facts for the Honorable Court to be

able to frame a constitutional claim," is simply wrong. A

plaintiff's complaint must itself frame a viable constitutional

claim.

In Puerto Rico, § 1983 claims are subject to a one-year

statute of limitations. Marrero-Gutierrez v. Molina, 491 F.3d 1,

5 (1st Cir. 2007). The statute of limitations on such claims

begins to run when the injury occurs, even if the plaintiff did not

know of the discriminatory animus at that time. Id. at 5-6. The

district court clearly explained why the statute bars plaintiff's

2006 attack on the 2002 change in the Auction Committee composition

and correctly concluded that any after-effects did not fall within

the so-called continuing violation doctrine.1 See Limestone Dev.

Corp. v. Vill. of Lemont, ___ F.3d ___, 2008 WL 852586, at *2-3

(7th Cir. Apr. 1, 2008) (Posner, J.) ("[T]he 'continuing violation'

doctrine is misnamed. . . . The office of the misnamed doctrine is

to allow suit to be delayed until a series of wrongful acts

blossoms into an injury on which suit can be brought."). Any

injury to plaintiff from the 2002 actions was clear by 2003.

Further, plaintiff does not provide any legal argument or case

1
The alleged retaliatory reprimand and ethics charge in
January 2007 were not part of a continuing violation, the office
which plaintiff assigned to them. If they were meant to stand
independently, they fail because no allegation sufficiently
connects them to Morales-Tañon's political affiliations.

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citations on appeal as to why the district court was wrong. "We

have steadfastly deemed waived issues raised on appeal in a

perfunctory manner, not accompanied by developed argumentation

. . . ." United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.

1997).

We turn then to plaintiff's timely claims regarding

PREPA's failure to open the application process in order to fill

the position of the Auction Committee presidency after January

2006. "The First Amendment protects non-policymaking public

employees from adverse employment actions based on their political

opinions." Marrero-Gutierrez, 491 F.3d at 9. To establish a prima

facie case of political discrimination in violation of the First

Amendment, a government employee must demonstrate both that there

was an adverse employment action and that this adverse action was

motivated by discrimination on the basis of political affiliation.

See, e.g., Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 22 (1st

Cir. 2006).

"Adverse employment action" includes not only discharge

and demotions, but also a government entity's refusal to promote,

transfer, recall after layoff, or even hire an employee. Rutan v.

Republican Party of Ill., 497 U.S. 62, 79 (1990). As the district

court noted, plaintiff has alleged no specific changes in his

existing working conditions. Further, PREPA has not turned him

down for a promotion. Morales-Tañon asserts only that PREPA has

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not begun accepting applications for a position for which he feels

eminently qualified. As the district court summarized, "[w]e have

not found, nor has Plaintiff cited to, a case where the failure to

open up a position in a timely fashion served as the basis for a

political or employment discrimination claim." Plaintiff still has

not identified such a case on appeal. We agree there is no

cognizable adverse employment action here within the scope of

Rutan. Plaintiff also makes no coherent claim of a violation of

free speech rights independent of his political affiliation claim.

Plaintiff's procedural due process rights claim does not

fare better. The district court explicated and applied the correct

standard. Morales-Tañon argues primarily that the court

impermissibly reached this issue sua sponte. We do not agree.

There is no concern about unfairness to plaintiff. While

defendants' motion to dismiss the § 1983 claims focused on

plaintiff's First Amendment arguments (which comprised the bulk of

plaintiff's complaint), defendants moved to dismiss the entire

§ 1983 cause of action for failure to state a claim, not just the

§ 1983 claim premised on a First Amendment violation. The motion

also referenced the very reason why the district court found the

due process claim to be meritless: "the complaint does not allege

that [the presidency] position was adjudicated in property [sic] to

anyone," that is, there was no assertion of a property interest.

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 Fundamentally, plaintiff has failed to state a procedural

due process claim because he has not alleged a property interest

under state law in the opening of an application process for the

president's position. See PFZ Props., Inc. v. Rodriguez, 928 F.2d

28, 30 (1st Cir. 1991) (allegation of a property interest under

state law is required to establish a procedural due process claim);

cf. Pérez-Acevedo v. Rivero-Cubano, ___ F.3d ___, 2008 WL 650665,

at *2 (1st Cir. Mar. 12, 2008) ("[T]o assume an entitlement

grounded in state law from a complaint that makes scant reference

to an insufficiently identified statute would go against Bell

Atlantic's admonition that a complaint's allegations must be more

than 'speculative.'"). Even now Morales-Tañon has cited to nothing

which would establish either a property interest on his part in the

president's position or in the opening of the position for

competitive selection. Thus we agree that the allegations in the

complaint, taken in the light most favorable to the plaintiff, fail

to state a claim on which relief can be granted.

We affirm. Costs are awarded to defendants.

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