Alvarado Aguilera v. Negron

          United States Court of Appeals
                     For the First Circuit

No. 06-2467

  ÁNGEL O. ALVARADO AGUILERA, EMMA I. BÁEZ LÓPEZ, IRIS Y.
   BLANCO RESTO, GLORIA I. CÁLIZ PABELLÓN, VIRGEN DEL S.
    COLÓN GONZÁLEZ, DEBORAH ORTIZ PÉREZ, DAPHNE Y. PAGÁN
   ORTIZ, BRENDA E. PAGÁN RIVERA, MAGDA E. QUIRÓZ PAGÁN,
    MIGUEL RODRÍGUEZ GONZÁLEZ, LUIS A. RODRÍGUEZ ORTIZ,
 ARIADNE RODRÍGUEZ VELÁZQUEZ, ANNETTE SAEZ VARGAS, OLGA J.
        SALDAÑA TORRES, and EMMA L. TORRES SANTIAGO,

                    Plaintiffs, Appellants,

                               v.

 JOSÉ R. NEGRÓN, ALBA N. CORA, and CARMEN GONZÁLEZ FUSTER,
             all in their personal capacities,

                     Defendants, Appellees.


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

         [Hon. Daniel R. Dominguez, U.S. District Judge]


                             Before

                      Lipez, Circuit Judge,
                Baldock, * Senior Circuit Judge,
                   and Howard, Circuit Judge.


     Julio Nigaglioni Arrache on brief for appellants. **
     Susana  I.   Peñagarícano-Brown,  Assistant  Solicitor
General, with whom Salvador J. Antonetti-Stutts, Solicitor

    *
         Of the Tenth Circuit, sitting by designation.
    **
        Mr. Nigaglioni Arrache failed to appear for oral
argument.  In his absence, the Court chose to hear the
appellees’ argument in accordance with Fed. R. App. P.
34(e).
General, Mariana D. Negrón-Vargas, Deputy Solicitor General,
and Maite D. Oronoz-Rodríguez, Deputy Solicitor General,
were on brief for appellees.



                      December 5, 2007
            BALDOCK, Senior Circuit Judge.                        The district court

disposed       of    the    present      case    via     a   motion       to   dismiss,

concluding       that       plaintiffs’     complaint         failed      to    state    a

claim upon which relief could be grated.                           See Fed. R. Civ.

P. 12(b)(6). Our review of a Rule 12(b)(6)dismissal is de

novo.    See Diaz-Ramos v. Hyundai Motor Co., 501 F.3d 12, 15

(1st    Cir.    2007).         “[W]e,     like    the    district         court,      must

assume    the       truth    of    all   well-plead          facts    and      give    the

plaintiff[s]          the    benefit      of     all     reasonable         inferences

therefrom.”         Ruiz v. Bally Total Fitness Holding Corp., 496

F.3d 1, 5 (1st Cir. 2007).                      Consequently, we proceed to

summarize       the     facts      of    this     case       as    they     appear      in

plaintiffs’ complaint.              See id. at 4.

                                          I.

        From October 1998 to January 2003, the Commonwealth of

Puerto Rico’s Administration of Juvenile Institutions (AJI)

contracted with Southwest Key Program (Southwest) to run the

Ponce    Detention          and   Training       School       Center      for    Girls.

Plaintiffs served as custody officers or technicians in the

Ponce Detention Center during this period.                          In January 2003,

the AJI decided to reassume direct responsibility for the

center’s operations.              On January 17, 2003, Defendant Negrón,

who served as the AJI’s administrator, came to the center

and met with Southwest’s employees.                     At this meeting, Negrón


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informed Southwest’s employees that they would be able to

continue working at the center under temporary government

appointments.            Thereafter,          Negrón    assured        Southwest’s

employees that they would receive permanent appointments to

government positions at the center.

       Plaintiffs did receive temporary appointments to their

prior positions.          These appointments commenced on January

17, 2003, and ended on June 30, 2003.                       Although plaintiffs

did    not     receive     further       temporary          appointments,        they

continued working at the center until April 2004.                           During

this    interim      period,         plaintiffs    applied       for     permanent

government      positions       with     the    AJI.         Despite     Defendant

Negrón’s       promise        that     they     would       receive      permanent

government       positions       at      the    center,       plaintiffs         were

terminated on April 30, 2004.

       Plaintiffs argue that Defendant Negrón’s promise gave

them    a     legitimate       claim     of     entitlement       to     permanent

government employment under Puerto Rico law. In addition,

plaintiffs      claim     a     right,     under       Commonwealth       law,     to

notification of the identities of the individuals who were

ultimately placed in the permanent positions for which they

applied.       Plaintiffs claim that the Commonwealth’s failure

to    grant   them   permanent         positions       of   employment     at     the

center, or notify them of the identity of the individuals


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selected         to       replace      them,    amounts         to   a    procedural       and

substantive           violation        of   the      Due       Process    Clause     of    the

Fourteenth Amendment.

                                               II.

       To       survive      a   motion        to    dismiss,        a    complaint       must

establish “a plausible entitlement to relief.”                                  Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007). Plaintiffs

claim the Commonwealth violated their rights under the Due

Process Clause of the Fourteenth Amendment.                                   In order to

state       a    valid       claim      for     a    procedural          or   substantive

violation            of    the   Due     Process       Clause,           plaintiffs       must

“exhibit         a    constitutionally              protected        interest   in    life,

liberty, or property.”                   Centro Medico del Turabo, Inc. v.

Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir. 2005).                                        In

this       case,          plaintiffs        assert         a     violation      of    their

“proprietary rights.”                   Property interests are created and

defined by “existing rules or understandings that stem from

an independent source such as state law.” 1                           Hatfield-Bermudez

v. Aldanondo-Rivera, 496 F.3d 51, 59 (1st Cir. 2007).                                       In

order to qualify as a property interest, state law must give

an “individual a legitimate claim of entitlement to some

sort of benefit.”                Id.


       1
        “For purposes of section 1983, Puerto Rico is the
functional equivalent of a state.”  Pagan v. Calderon, 448
F.3d 16, 31 n.6 (1st Cir. 2006).

                                               -5-
                                               A.

      We first address plaintiffs’ claim that Negrón’s promise

gave them a property interest in a permanent position of

government employment.               Puerto Rico law provides for the

appointment of temporary or “transitory employees.”                                   Dept.

of Natural Res. v. Correa, 18 P.R. Offic. Trans. 795, 801

(1987).      A transitory employee does not have a “legitimate

job retention expectancy once his appointment expires.”                                  Id.

at   804.        The     question    in    this           case   is   whether      Negrón’s

promise      effectively         altered            the    status       quo.       See   id.

(inquiring         whether       a   transitory              government          employee’s

“particular circumstances” gave him “a legitimate expectancy

of continuity” in his job).

      In Correa, the Supreme Court of Puerto Rico answered

this question.            In that case, the Court found an employee

who was given several temporary appointments, as well as a

promise of permanent employment, did not have a legitimate

expectation         of     continued       employment             with     a     government

agency.          See id. at 805-06.                  Reasoning the employee was

“aware      of    the     fact   that      the        position        he    occupied     was

transitory,” the Court concluded that “[a] simple offer of

a permanent position without any action on the part of the

government agency clearly showing an agreement to make good

on   the     promise       cannot,        by    itself,          give      [an    employee]


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anything beyond a unilateral expectation of job retention.”

Id. at 806.

       The Supreme Court of Puerto Rico’s holding in Correa

clearly    demonstrates       that    Negrón’s      promise     did   not    give

plaintiffs a legitimate claim of entitlement to a permanent

government position under Puerto Rico law.                      See Ruiz-Roche

v. Lausell, 848 F.2d 5, 8 (1st Cir. 1988) (stating that a

“naked-and vague-promise” of a permanent position “was not

enough,”    under    Puerto    Rico    law,    to    give   a    plaintiff     “a

legitimate     expectation     of    continued      employment”       with    the

Commonwealth).        The   agency’s       invitation   to      plaintiffs     to

fill out applications for permanent employment, as alleged

in the complaint, did not indicate the agency’s intent to

make    good   on   Negrón’s       promise.        Therefore,      plaintiffs’

attempt to distinguish Correa is unavailing.

                                      B.

       We now turn to plaintiffs’ argument that Puerto Rico law

gave    them   a    property    interest      in     notification      of     the

identity of the candidates selected to fill the permanent

positions for which they applied.              Assuming Puerto Rico law

provides plaintiffs a procedural right to such notification,

the    “simple      fact    that     state    law     prescribes       certain

procedures does not mean that the procedures thereby acquire

a federal constitutional dimension.”                Slotnick v. Staviskey,


                                      -7-
560   F.2d      31,   34   (1st    Cir.    1977).      On    the    contrary,    the

Supreme      Court     has   clearly       held    that     the    “categories    of

substance and procedure are distinct.”                        Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 541 (1985).                         “‘Property’

cannot     be    defined      by    the    procedures        provided     for    its

deprivation . . . .”              Id.   Plaintiffs’ allegation that they

were deprived of a right to a notification procedure related

to their termination thus fails to amount to an allegation

of a property interest protected by the Due Process Clause

of the Fourteenth Amendment.

                                          III.

       Plaintiffs’ complaint fails to allege facts sufficient

to    establish       they   possessed      a     constitutionally       protected

property interest.           Accordingly, plaintiffs have failed to

assert a “plausible entitlement to relief” under the Due

Process Clause of the Fourteenth Amendment.                        Rodriguez-Ortiz

v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007).                          The

district      court,       therefore,      properly       granted      defendants’

motion to dismiss plaintiffs’ complaint for failure to state

a claim upon which relief can be granted.                         See Fed. R. Civ.

P. 12(b)(6).

       AFFIRMED.




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