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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