Colon-Santiago v. Rosario

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

-9-
"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.

-10-
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

-11-
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

-12-
(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

-13-
(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

-16-
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

-21-
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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