Rosario-Urdaz v. Rivera-Hernandez

United States Court of Appeals
For the First Circuit

No. 02-2593

DORCAS ROSARIO-URDAZ,
Plaintiff, Appellant,

v.

VICTOR RIVERA-HERNANDEZ ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Roberto Busó-Aboy, with whom Victor Miranda-Corrada was on
brief, for appellant.
Celina Romany, with whom Juan M. Frontera Suau was on brief,
for appellee Rivera-Hernandez.
Sylvia Roger-Stefani, Assistant Solicitor General, with whom
Roberto J. Sánchez Ramos, Solicitor General, and Héctor Clemente
Delgado, Interim Deputy Solicitor General, were on brief, for
remaining appellees.

November 25, 2003
 SELYA, Circuit Judge. Plaintiff-appellant Dorcas

Rosario-Urdaz (Rosario) appeals from the denial of a motion for

preliminary injunction. Concluding, as we do, that the order was

improvidently entered, we vacate and remand.

The plaintiff is a long-time adherent of the New

Progressive Party (NPP). She was hired by the Puerto Rico

Department of Labor and Human Resources (DLHR) while the NPP was in

power. She worked for the DLHR for upwards of six years. She

initially occupied the position of Information Representative and

earned career status in that position. Although she was

temporarily posted to a higher-ranking job within the DLHR, she

retained career status in her original position.

Following the November 2000 gubernatorial election, a

rival faction, the Popular Democratic Party (PDP), took office.

The plaintiff reclaimed her post as an Information Representative.

On March 8, 2002, she was dismissed without the benefit of a pre-

termination hearing. The ostensible reason for the firing was the

new administration's assertion that the prior NPP administration

had appointed her to the position illegally, that is, despite her

lack of the statutorily required qualifications. The plaintiff

decries this explanation as pretextual, terming her ouster an act

of rank political discrimination.

In due course, the plaintiff repaired to the federal

district court, invoked 42 U.S.C. § 1983 (2000), and filed a civil

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action against three DLHR hierarchs.1 Her complaint charged, inter

alia, violations of the First and Fourteenth Amendments to the

United States Constitution. The defendants' actions, she

contended, had abridged her freedom of association and deprived her

of property — her job — without due process of law. The named

defendants, who were sued in both their official and individual

capacities, included Victor Rivera-Hernandez (Secretary of the

DLHR), Carmen Rosario Morales (the DLHR's assistant executive

director during the relevant period), and Maira González (head of

the DLHR's Information Center). The complaint attributed PDP

membership to all the defendants.

Contemporaneous with the docketing of her complaint, the

plaintiff sought reinstatement pendente lite via a motion for

preliminary injunction. The district court took no action on it

for over six months. When prodded, the court decided the motion

without taking evidence or entertaining oral argument. At that

time, the court had available to it the complaint, defendant

Rivera-Hernandez's answer, a series of motions to dismiss, and the

plaintiff's memoranda in opposition thereto — but nothing of

evidentiary quality.

1
The plaintiff's complaint also names a co-worker, Angel
Agosto, as a defendant, but she does not allege that Agosto
occupied any position of authority within the DLHR. We therefore
disregard him for purposes of this opinion.

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 The court's decision is less than one page in length.

See Rosario-Urdaz v. Rivera-Hernandez, Civ. No. 02-1498 (D.P.R.

Oct. 25, 2002) (unpublished). It must be read against the backdrop

of the familiar preliminary injunction standard. That standard

requires a trial court confronted with a motion for preliminary

injunction to mull four elements: the probability of the movant's

success on the merits, the prospect of irreparable harm absent the

injunction, the balance of the relevant equities (focusing upon the

hardship to the movant if an injunction does not issue as

contrasted with the hardship to the nonmovant if it does), and the

effect of the court's action on the public interest. Ross-Simons

of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir.

1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st

Cir. 1991).

In this instance, the district court decision addressed

two of the four factors. First, the court found no irreparable

harm because any failure to reinstate the plaintiff could be fully

compensated by an end-of-case award of money damages. Second, it

noted the dueling over the validity of the plaintiff's original

appointment and held, in light of that uncertainty, that the

plaintiff had not shown a likelihood of success on the merits.

This interlocutory appeal followed. We have jurisdiction under 28

U.S.C. § 1292(a)(1).

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 Appellate review of an order granting or denying a

preliminary injunction proceeds deferentially. The trial court's

evaluation of the four elements embedded in the preliminary

injunction calculus will stand unless the appellant can show an

abuse of discretion. Ross-Simons, 102 F.3d at 16. An error of law

is, of course, an abuse of discretion. United States v. Snyder,

136 F.3d 65, 67 (1st Cir. 1998). Apart from error of law, an abuse

of discretion occurs when the district court considers improper

criteria, ignores criteria that deserve significant weight, or

gauges only the appropriate criteria but makes a clear error of

judgment in assaying them. Indep. Oil & Chem. Workers of Quincy,

Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.

1988).

The plaintiff advances three arguments as to how the

district court abused its discretion. Two of these address the

court's adverse determinations anent the prospect of irreparable

harm and the likelihood of success, respectively. The other

involves the district court's failure to convene an evidentiary

hearing.

We turn first to the question of lasting harm or, put

another way, whether the plaintiff has an adequate remedy at law.

The district court ruled that the plaintiff had not shown an

irreparable injury because her claim for reinstatement, if

meritorious, could be fully vindicated by an end-of-case award of

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money damages. The plaintiff's riposte is that the Eleventh

Amendment bars an award of back pay or other pecuniary emoluments

against her employer, and that this circumstance undercuts the

district court's rationale. We probe this point.

The suit against the defendants in their official

capacities is a suit against the DLHR. See Nereida-Gonzalez v.

Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993) ("An official

capacity suit is, in reality, a suit against the governmental

entity, not against the governmental actor."). The DLHR is an

executive department of the Commonwealth of Puerto Rico. The

plaintiff is correct that money damages are unavailable against the

Commonwealth in this action (and, therefore, against the individual

defendants in their official capacities), but not necessarily for

Eleventh Amendment reasons. The shortest, most direct route to

that result evolves out of the fact that neither a State nor its

officers in their representative capacities are "persons" within

the meaning of 42 U.S.C. § 1983 with respect to actions for

damages. See Will v. Michigan Dep't of State Police, 491 U.S. 58,

71 (1989); Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991).

This holding squarely forecloses any possibility that the plaintiff

will obtain an award of damages payable out of the Commonwealth's

coffers. Consequently, we need not address the more nuanced issue

of Eleventh Amendment immunity. See Greenless v. Almond, 277 F.3d

601, 606-08 (1st Cir. 2002) (explaining that Eleventh Amendment

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issues, like other constitutional issues, should be avoided

whenever a case can be disposed of on other grounds); Parella v.

Retirement Bd., 173 F.3d 46, 56-57 (1st Cir. 1999) (similar).

The unavailability of back pay or other monetary damages

against either the Commonwealth or the defendants in their official

capacities goes a long way toward establishing irreparable injury.

It is nose-on-the-face plain that the plaintiff will lose wages

while she is contesting her ouster. Where a plaintiff stands to

suffer a substantial injury that cannot adequately be compensated

by an end-of-case award of money damages, irreparable harm exists.

Ross-Simons, 102 F.3d at 19. In this case, therefore, the denial

of reinstatement pendente lite cannot plausibly be grounded on the

absence of irreparable harm unless the plaintiff's section 1983

claim against the individual defendants in their personal

capacities affords her an adequate remedy at law. It is

theoretically possible that such a claim could yield an award of

compensatory damages equal to the plaintiff's lost wages. See

Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1043 n.7 (1st Cir.

1988). Were it clear that the plaintiff would receive such redress

if she eventually succeeded in her suit, this might well constitute

a remedy at law sufficient to sustain a denial of preliminary

injunctive relief.

Here, however, the district court made no findings

concerning the many potential obstacles to such a damage award,

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including whether the individual defendants would be entitled to

qualified immunity, whether they have the ability to pay any

monetary judgment, and whether there are alternate sources of funds

available (for example, indemnification under Puerto Rico law). In

the absence of such information, the district court was not

justified in denying preliminary injunctive relief on the ground

that the plaintiff had an adequate remedy at law. Should the

plaintiff prevail in her suit without having been reinstated in the

meantime, she may, insofar as we can tell from this record, never

be able to recoup her lost wages.

The district court's second ground for denying the

preliminary injunction relates to likelihood of success. The court

hinged its adverse determination on the defendants' suggestion that

the plaintiff's original hiring was illegal (and, thus, her

appointment was a nullity). There are several problems with this

determination. For one thing, it only addresses the plaintiff's

due process claim (not her claim of political discrimination). For

another thing, even taking the due process claim as emblematic of

the plaintiff's case, the court had before it nothing of

evidentiary quality upon which to base such a determination — no

affidavits, no depositions, no admissions, no answers to

interrogatories. It had only pleadings and written arguments of

counsel.

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 We appreciate that preliminary injunction rulings are, by

definition, premised on a tentative development of the facts, which

will be fleshed out as trial approaches. See, e.g., Philip Morris,

Inc. v. Harshbarger, 159 F.3d 670, 678 (1st Cir. 1998); Cohen v.

Brown Univ., 991 F.2d 888, 902 (1st Cir. 1993). Even taking the

nature and function of such motions into account and giving due

weight to the time constraints under which busy district courts

labor, we are at a loss to understand how the court could resolve

— even tentatively — the factbound tangle pertaining to the

validity of the plaintiff's original appointment without some

evidentiary predicate. Cf. Rosario-Urdaz, supra, at 1

(acknowledging that the "illegal appointment" question has a

significant factual component and terming the answer to that

question "far from clear").

This brings us, albeit in a roundabout way, to the

absence of an evidentiary hearing. While forgoing an evidentiary

hearing on a motion for preliminary injunctive relief does not, in

and of itself, amount to reversible error, Aoude v. Mobil Oil

Corp., 862 F.2d 890, 894 (1st Cir. 1988), evidentiary hearings are

often desirable at the preliminary injunction stage. Flexibility

is the watchword. If the trial court has before it competing

submissions of evidentiary quality, or if the facts are essentially

undisputed, or if the answer to the likelihood-of-success inquiry

is readily apparent, great respect ordinarily will be afforded to

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the presider's decision not to convene an evidentiary hearing. Id.

at 893-94. If, however, "the question is close and time permits,

then doubt should be resolved in favor of taking evidence." Id. at

894.

This case does not pass the Aoude screen. The

information in the record is simply too sparse to allow meaningful

assessment of the plaintiff's likelihood of success. We explain

briefly.

We assume arguendo (as did the district court) that the

plaintiff's quest for reinstatement depends primarily on the

strength of her due process claim. That claim derives from her

ostensible property interest in the career position of Information

Representative. It is credible on its face: a property interest

typically accrues to a public employee who holds a career position

in Puerto Rico, and with rare exceptions the Due Process Clause of

the Fourteenth Amendment is transgressed when such an employee is

cashiered without a pre-termination hearing. Figueroa-Serrano v.

Ramos-Alverio, 221 F.3d 1, 5-6 (1st Cir. 2000); Kauffman v. P.R.

Tel. Co., 841 F.2d 1169, 1173 (1st Cir. 1988). The plaintiff's

complaint, taken at face value, places her within this cocoon.

The defendants, however, tell a materially different

tale. They contend that an employee who is unlawfully hired into

a career position, in contravention of the controlling statutes,

does not acquire a constitutionally protected property interest in

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that position. That contention finds some support in the case law.

See, e.g., Figueroa-Serrano, 221 F.3d at 6; Rivera-Ruiz v.

Gonzalez-Rivera, 983 F.2d 332, 334 (1st Cir. 1993). So does the

related proposition that such an appointment is a nullity (and,

thus, does not give rise to the requirement for a pre-termination

hearing). See Kauffman, 841 F.2d at 1173. The defendants'

pleadings place the plaintiff on this more precarious perch.

This conflict in the parties' positions is precisely why

the district court needed to have before it testimony or other

material of evidentiary quality. The plaintiff vigorously asserts

that she had all the statutorily required qualifications at the

time of her original appointment and that the defendants are

estopped, at this late date, from questioning her bona fides. The

defendants, with equal vigor, assert the contrary. These are fact-

intensive questions and the record is, for all practical purposes,

bare as a new-born baby. We cannot even tell, except by way of

unsworn assertions, what credentials the plaintiff allegedly

possessed (or did not possess) at the time of her original

appointment. Because the lower court had before it insufficient

information of evidentiary quality to permit a reasoned

determination as to likelihood of success, the alternative basis

for denying the plaintiff's motion implodes. See New Comm Wireless

Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 10, 13 (1st Cir.

2002).

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 Let us be perfectly clear. We have used the plaintiff's

due process claim as an exemplar. We add that, even if the

defendants can establish that the plaintiff's employment was null

and void because she was hired illegally, the plaintiff still must

be accorded the opportunity to argue that her dismissal on this

ground was a pretext for political discrimination. If she can

establish that political discrimination was a motivating factor in

her ouster, the defendants must then attempt to prove that they

would have made the same decision even in the absence of any

discriminatory animus. See Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Mullin v. Town of

Fairhaven, 284 F.3d 31, 38 (1st Cir. 2002).

We need go no further. Given the amorphous state of the

record, the district court's summary denial of preliminary

injunctive relief cannot stand. Accordingly, we vacate the order

appealed from and remand the case for further proceedings

consistent with this opinion. We intimate no view as to the proper

resolution of the underlying motion.

Vacated and remanded. Costs are taxed in favor of the appellant.

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