United States Court of Appeals
For the First Circuit
No. 03-2568
ERICK CARABALLO-SEDA, ET AL.,
Plaintiffs, Appellees,
v.
MUNICIPALITY OF HORMIGUEROS, ET AL.,
Defendants, Appellants.
No. 03-2569
EDNA S. DELGADO-GREO, ET AL.,
Plaintiffs, Appellees,
v.
MARCELO TRUJILLO, ET AL.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Gina Ismalia Gutiérrez-Galang, with whom Law Offices of
Pedro E. Ortiz-Álvarez, PSC, was on brief, for appellants.
Pablo R. Landrau-Pirazzi, with whom Aldarondo & López-Bras,
was on brief, for appellees.
January 12, 2005
TORRUELLA, Circuit Judge. Defendants appeal from
interlocutory judgments denying their motions to dismiss for lack
of jurisdiction. The district court certified for interlocutory
appeal, pursuant to 28 U.S.C. § 1292(b), the issue of whether the
Workforce Investment Act ("WIA"), 29 U.S.C. §§ 2801-2945, requires
plaintiffs to exhaust administrative remedies before bringing a
claim under 42 U.S.C. § 1983 for violation of their First Amendment
rights. Since we see no reason to depart from our general rule
prohibiting interlocutory appeals from the denial of a motion to
dismiss, we vacate the order allowing the interlocutory appeal as
improvidently granted.
I. Background
Defendants in this case are non-profit partnerships
between neighboring municipalities in Puerto Rico; these
partnerships -- or consortiums, as they are termed -- are overseen
by the municipalities' mayors and administered by various executive
officers, all of whom are also defendants. The consortiums operate
under WIA, the purpose of which is "to provide workforce investment
activities, through statewide and local workforce investment
systems, that increase the employment, retention, and earnings of
participants, and increase occupational skill attainment by
participants, and, as a result, improve the quality of the
workforce [and] reduce welfare dependency." 29 U.S.C. § 2811. The
consortiums employ administrative staff ("plaintiffs") on a one-
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year contract basis to provide services to WIA program
beneficiaries.
As a result of the November 7, 2000 general election, the
consortiums underwent a shift in political power, from the New
Progressive Party ("NPP") to the Popular Democratic Party ("PDP").
Following these events, defendants discharged plaintiffs' contracts
with the consortiums.
Plaintiffs subsequently sued under § 1983, the First and
Fourteenth Amendments of the U.S. Constitution, and Puerto Rico
law, alleging that political discrimination spurred these personnel
decisions. Defendants moved to dismiss for lack of subject matter
jurisdiction, arguing that WIA precludes § 1983 claims because WIA
provides the exclusive administrative procedure for discrimination
claims.
The court denied defendants' motions to dismiss, holding
that Congress did not expressly or implicitly intend to foreclose
§ 1983 claims under WIA. Caraballo-Seda v. Rivera, 306 F. Supp. 2d
108 (D.P.R. 2004); see also Delgado-Greo v. Trujillo, 270 F. Supp.
2d 189 (D.P.R. 2003).1 The court, however, granted defendants'
motion for certification of interlocutory appeal pursuant to 28
U.S.C. § 1292(b) on this determination. The court's order stated
1
Two other district courts in Puerto Rico arrived at similar
holdings. See Borrero-Rodríguez v. Montalvo-Vázquez, 275 F. Supp.
2d 127 (D.P.R. 2003); Torres Ramos v. Consorcio de la Montaña, 286
F. Supp. 2d 126 (D.P.R. 2003).
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that this issue "involves a question of law as to which there is
substantial ground for difference of opinion," and that an
immediate appeal "may materially advance the ultimate determination
of the litigation." This Court granted defendants' petition to
hear the discretionary appeal on November 18, 2003, and for the
reasons set forth below, we vacate that order.
II. Analysis
Interlocutory appeals under § 1292(b) require an order
(1) "involv[ing] a controlling question of law," (2) "as to which
there is substantial ground for difference of opinion," and (3) for
which "an immediate appeal from the order may materially advance
the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
We have repeatedly emphasized that "interlocutory certification
under 28 U.S.C. § 1292(b) should be used sparingly and only in
exceptional circumstances, and where the proposed intermediate
appeal presents one or more difficult and pivotal questions of law
not settled by controlling authority." Palandjian v. Pahlavi, 782
F.2d 313, 314 (1st Cir. 1986) (quoting McGillicuddy v. Clements,
746 F.2d 76 n.1 (1st Cir. 1984) (citing In re Heddendorf, 263 F.2d
887, 888-89 (1st Cir. 1959))).
As a general rule, we do not grant interlocutory appeals
from a denial of a motion to dismiss. McGillicuddy, 746 F.2d at 76
n.1. In McGillicuddy, a case involving a denial of a motion to
dismiss a multi-count complaint, we held that the district court
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should not have considered the interlocutory appeal in the first
place: "[w]e would not normally allow an appeal from a denial of a
motion to dismiss, and, with the benefit of hindsight, we admit our
error in doing so in this case." Id. This reflects our policy
preference against piecemeal litigation, see Heddendorf, 263 F.2d
at 889, as well as prudential concerns about mootness, ripeness,
and lengthy appellate proceedings. Thus, the "fact that
appreciable trial time may be saved is not determinative,"
Palandjian, 782 F.2d at 314, and neither is the fact that the case
has "tremendous implications" or "might materially advance the
ultimate termination of the litigation," Slade v. Shearson, Hammill
& Co., Inc., 517 F.2d 398, 400 (2d Cir. 1974).
In the instant case, we see no reason to depart from our
general rule prohibiting interlocutory appeals from the denial of
a motion to dismiss. Although the issue of whether WIA expressly
or implicitly forecloses § 1983 suits is a "controlling question of
law," it has not met the other two factors of § 1292(b). The fact
that two other district courts in Puerto Rico have arrived at a
similar holding regarding WIA's non-preclusive effect on § 1983
claims, see Borrero-Rodríguez v. Montalvo-Vázquez, 275 F. Supp. 2d
127 (D.P.R. 2003); Torres Ramos v. Consorcio de la Montaña, 286 F.
Supp. 2d 126 (D.P.R. 2003), supports a finding that no "substantial
ground for difference of opinion" exists. 28 U.S.C. § 1292(b).
Moreover, since the rest of the claims based on the same underlying
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facts have proceeded in the district court, the interlocutory
appeal on the WIA issue does not "materially advance the ultimate
termination of the litigation." Id. Finally, we emphasize that
interlocutory appeals are granted at our "discretion," id. ("The
Court of Appeals which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an appeal to be
taken from such order") (emphasis added), and "with the benefit of
hindsight, we admit our error in doing so in this case," cf.
McGillicuddy, 746 F.2d at 76, n.1.
Thus, we vacate the initial order granting the
interlocutory appeal as improvidently granted, and remand the issue
to the district court for adjudication.
Vacated and Remanded.
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