84 F.3d 487 (1st Cir. 1996), 95-2170, Barrios-Velazquez v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico

Docket Nº:95-2170.
Citation:84 F.3d 487
Party Name:Eliezer BARRIOS-VELAZQUEZ, et al., Plaintiffs-Appellants, v. ASOCIACION DE EMPLEADOS DEL ESTADO LIBRE ASOCIADO DE PUERTO RICO, et al., Defendants-Appellees.
Case Date:May 24, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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84 F.3d 487 (1st Cir. 1996)

Eliezer BARRIOS-VELAZQUEZ, et al., Plaintiffs-Appellants,



RICO, et al., Defendants-Appellees.

No. 95-2170.

United States Court of Appeals, First Circuit

May 24, 1996

Heard Feb. 28, 1996.

Page 488

[Copyrighted Material Omitted]

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Francisco R. Gonzalez-Colon, with whom Francisco R. Gonzalez Law Firm, was on brief, Guaynabo, PR, for appellants.

Lino J. Saldana, Hato Rey, PR, with whom Carmen M. Dominguez, San Juan, PR, was on brief, for appellees.

Before TORRUELLA, Chief Judge, and COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Chief Judge.

Appellants Eliezer Barrios-Velazquez ("Barrios"), Myrta Nieves-Vega ("Nieves") and Isidro Collazo ("Collazo"), in their personal capacity and as representatives of the "Comite de Delegados y Miembros Pro Sana Administracion de AEELA" ("SAAEELA") (collectively, "Plaintiffs"), appeal the district court's dismissal for lack of subject matter jurisdiction of their complaint brought pursuant to 42 U.S.C. § 1983 against the Asociacion de Empleados del Estado Libre Asociado de Puerto Rico ("AEELA") and Isaac Neftali Rojas-Nater ("Rojas"), Roberto Aquino-Garcia ("Aquino") and Miguel Martinez-Williams ("Martinez"), in their personal and official capacities (collectively, "Defendants"). We affirm the decision of the district court.


"We review the grant of a motion to dismiss de novo, taking the allegations in the complaint as true and making all reasonable

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inferences in favor of plaintiff." Rockwell v. Cape Cod Hosp., 26 F.3d 254, 256 (1st Cir.1994); see Rumford Pharmacy, Inc. v. City of E. Providence, 970 F.2d 996, 997 (1st Cir.1992). "We must liberally construe [Plaintiffs'] complaint and affirm its dismissal only if [they] cannot prove any set of facts entitling [them] to relief." Rockwell, 26 F.3d at 255.

Although it does not affect the outcome, it would appear that the motion to dismiss was converted to a motion for summary judgment since the district court plainly considered "matters outside the pleadings." Fed.R.Civ.P. 12(c). 1 Plaintiffs in fact argue in their brief that due to representations made to them by defendants' attorney, they postponed filing an opposition to defendants' motion to dismiss, and they were therefore not afforded a "reasonable opportunity" to present Rule 56 material. See Br. for Appellants at 12. The answer to this argument, of course, is clear: even considering this Rule 56 material, see supra note 1, we conclude that plaintiffs demonstrated no genuine issue of material fact.


The instant case stems from a dispute over the circumstances under which a Quadrennial Assembly (the "Assembly") of the AEELA was held on July 8, 1995. The AEELA has approximately 180,000 members, all of whom are regular or former employees of the government of Puerto Rico. Of these members, 75% are required by law to participate in and be members of the AEELA, and are required to provide 3% of their salary to be administered by the AEELA. Only employees of public corporations and municipalities may participate in the AEELA.

Plaintiffs contend, and this court must assume, given our procedural posture, that Defendants have exercised control over the AEELA since 1987, and used this control to handpick delegates to the Assembly in question in order to maintain their control, and that of the Popular Democratic Party ("PDP"), over the AEELA. We must further infer that Defendants impermissibly notified only those delegates who shared their political beliefs that the Assembly would be held, and refused to take the necessary measures to notify or confirm the membership of delegates who do not support the PDP. Furthermore, we infer that Defendants denied Plaintiff-Appellant Nieves a list of the certified delegates, thus hindering her candidacy for President of the AEELA's Board of Directors.

Plaintiffs charge that these actions amount to illegal political discrimination in violation of their rights under the Due Process Clause of the Fourteenth Amendment and the enabling law of the Commonwealth Employees Association, 3 L.P.R.A. § 862(b). They also contend, contrary to the district court opinion dismissing their claim under 28 U.S.C. § 1983, that the acts of Defendants are state action.


"Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory....' " Rockwell, 26 F.3d at 256 (quoting Lugar v. Edmondson Oil Co., 457

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U.S. 922, 924, 102 S.Ct. 2744, 2746-47, 73 L.Ed.2d 482 (1982)). To state a claim under § 1983, a plaintiff must make two showings: the existence of a federal or statutory right; and a deprivation of that right by a person acting under color of state law. 2 See id.; Watterson v. Page, 987 F.2d 1, 7 (1st Cir.1993).

The district court addressed only the second showing, dismissing this action on the ground that Defendants did not act under color of state law when they scheduled the general assembly for July 8, 1995. We note in passing that at least two courts have already concluded that the AEELA is not an agency, department or instrumentality of the Government of Puerto Rico, suggesting that the AEELA's actions and those of its members cannot be labeled state action. Morales v. Chaves, No. 75-1087, slip op. at 2 (D.P.R. Dec. 9, 1975) (noting that while "[i]t is true that the Association was created by statute and only government employees may be members ... there all relation with the Commonwealth ceases"); Association of Employees of Puerto Rico v. Vasquez- Perez, 92 JTS 52, slip op. at 26 (P.R.1992) (official trans.) (stating, in the context of deciding whether the AEELA was subject to the Truth in Lending Act, that "although the Association is a highly regulated entity created by the government, whose objective is to implement the government policy of ... encouraging saving among public employees ... it cannot be considered as a government agency, department, instrumentality or public corporation"). While persuasive as to certain points, these cases do not represent binding authority for this court. As a result, like the district court before us, we conduct our own inquiry into the issue.

Because section 1983 does not reach private actions, the key issue before us is whether the conduct at issue in this case may be " 'fairly attributable to the State,' " Rodriguez-Garcia v. Davila, 904 F.2d 90, 94 (1st Cir.1990) (quoting...

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