Acevedo-Villalobos v. Hernandez

• Citation: 22 F.3d 384
• Decision Date: 10 March 1994
• Docket Number: No. 93-1544,ACEVEDO-VILLALOBOS,93-1544
• Parties: Norma I., et al., Plaintiffs, Appellants, v. Hon. Rafael HERNANDEZ, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 384

22 F.3d 384

28 Fed.R.Serv.3d 731

Norma I. ACEVEDO-VILLALOBOS, et al., Plaintiffs, Appellants, v. Hon. Rafael HERNANDEZ, et al., Defendants, Appellees.

No. 93-1544.

United States Court of Appeals First Circuit.

Heard March 10, 1994.

Decided April 28, 1994.

Jesus Hernandez-Sanchez, with whom Hernandez-Sanchez Law Firm was on brief, for appellants.

Fidel A. Sevillano Del Rio, Asst. U.S. Atty., with whom Guillermo Gil, U.S. Atty., Donnie R. Murray, Deputy Regional Counsel, U.S. Dept. of Housing and Urban Development, and Teresa Pombo, Chief Counsel, U.S. Dept. of Housing and Urban Development, were on brief, for appellees, U.S., et al.

Vannessa Ramirez-Kausz, Asst. Sol. Gen., for the Com. of P.R., with whom Carlos Lugo-Fiol, Deputy Sol. Gen., was on brief, for appellee, Com.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal raises a procedural question of first impression in our circuit: whether the dismissal of a complaint, which does not explicitly dismiss the action, constitutes a "final decision[ ]," and is therefore

                appealable under 28 U.S.C. Sec. 1291. 1  We rule in the affirmative, holding that the plaintiffs had both the right to appeal from the judgment dismissing their complaint and the duty to do so in a timely manner.  Because plaintiffs' appeal was not timely, we lack jurisdiction to review the dismissal of the complaint.  Furthermore, we conclude that appellate jurisdiction is lacking over the district court's denial of plaintiffs' first motion for postjudgment relief, and that their second such motion was untimely, and therefore properly denied by the district court.  Accordingly, we affirm
                

I. BACKGROUND

Plaintiffs-appellants are, for the most part, former employees of the Puerto Rico Public Housing Administration (PRPHA). On May 2, 1992, PRPHA and the Commonwealth of Puerto Rico, acting through former governor Rafael Hernandez Colon, signed an agreement with representatives of the United States Department of Housing and Urban Development (HUD). Under the agreement, the Commonwealth and HUD agreed to take certain actions in order to expedite the privatization of the management of federally funded public housing projects in Puerto Rico, as well as the decentralization of PRPHA. The privatization provisions of the agreement are at the center of plaintiffs' claims.

The agreement committed the Commonwealth to pursue, and HUD to support, a plan to privatize federally assisted housing projects by transferring the administration and maintenance of such projects to private contractors. As a result of this privatization, a sizeable percentage of PRPHA's employees would be laid off. The agreement between HUD and PRPHA briefly addresses the plight of PRPHA's employees in a cursory manner:

The private management process may require the elimination of positions within the present structure of the PRPHA. Employees holding said positions will receive benefits as provided by law. HUD will provide federal funding for payment of their benefits resulting from the federally funded public housing program. The Commonwealth will fund costs ineligible for federal funding.

Privatization Agreement, Art. I, Sec. 4. In addition, PRPHA agreed to encourage private contractors to employ displaced employees. Id. at Sec. 6b. Shortly thereafter, PRPHA formulated a layoff plan to comply with the relevant provisions of Puerto Rico's Public Service Personnel Act, see 3 L.P.R.A. Sec. 1336(6). A layoff plan was finalized in April 1992, and the privatization agreement was set to go into effect on August 1.

On June 26, 1992 letters were sent to PRPHA employees notifying them that,

[s]ince you are one of the persons affected by layoffs, we notify you that owing to lack of work, we have no other alternative than to decree your layoff from public service effective July 31, 1992. We advise you of your right to present arguments or documentary evidence, if any[,] which you consider will benefit you, before the designated official.

On July 15, 1992, plaintiffs filed an action in United States District Court for the District of Puerto Rico against various Commonwealth and federal agencies and officers, ² seeking injunctive, declaratory and monetary relief.

Plaintiffs' constitutional claims against the state defendants are predicated upon 42 U.S.C. Sec. 1983, while their constitutional claims against the federal defendants are based on the doctrine set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The major themes of plaintiffs' complaint are as follows. First, plaintiffs allege that the privatization On October 27, 1992, the state defendants moved to dismiss the complaint, or alternatively, for summary judgment, on a plethora of grounds including, but not limited to, the complaint's failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). Two days later the state defendants moved to stay discovery pending the court's resolution of their dispositive motion. The court granted the requested stay.

agreement is invalid (and consequently that the layoffs were illegal) because it was entered into in violation of both Puerto Rico and federal law, and that the various local and federal defendants acted ultra vires by signing the agreement. Accordingly, plaintiffs allege that the layoffs were illegal. Next, plaintiffs allege that they had a property interest in their jobs, and that they were deprived of this property interest without due process. Finally, plaintiffs maintain that a Puerto Rico official made derogatory comments about them in public, thereby depriving them of "liberty" without due process.

On January 15, 1993, the district court granted the state defendants' motion to dismiss. The court stated that "[p]laintiffs' complaint fails to provide the Court with a clear idea of the contours of their claims and also fails to provide appropriate support for their allegations." Gonzalez v. Hernandez, No. 92-1972, slip op. at 4, 1993 WL 52807 (D.P.R. Jan. 15, 1993). According to the court, plaintiffs' complaint was "infected with conclusory allegations and unfounded accusations," id. at 5-6, and "insufficiently illustrate[d] the essential nature of their claim[s]." Id. at 4. The court dismissed plaintiffs' complaint in its entirety, stating: "The Court therefore ORDERS that defendants' Motion to Dismiss pursuant to Rule 12(b)(6) is hereby GRANTED and that plaintiffs' complaint is hereby DISMISSED." Id. at 6. On the same day the court entered judgment on a separate document, pursuant to Fed.R.Civ.P. 58 and 79(a), which stated as follows: "By virtue of the Opinion & Order of the Court, entered on this date, it is hereby ORDERED, ADJUDGED and DECREED that plaintiffs' complaint is DISMISSED." Plaintiffs filed two postjudgment motions for relief, both of which were denied. This appeal ensued.

II. DISCUSSION

In their notice of appeal filed May 14, 1993, plaintiffs list four decisions of the district court from which they appeal: (1) the judgment of January 15, 1993 dismissing the complaint, and the court's opinion and order of the same date; (2) the order of November 30, 1992 granting a stay of discovery; (3) the order of March 2, 1993 denying plaintiffs' first Rule 59(e) motion for reconsideration and to amend the complaint; and (4) the order of April 19, 1993 denying plaintiffs' second Rule 59(e) motion for reconsideration. ³

A. Dismissal of the Complaint

Under Fed.R.App.P. 4(a)(1), any party appealing from a judgment or order of the district court, where "the United States or an officer or agency thereof is a party," must file a notice of appeal within sixty days of the date of entry of the judgment or order. Timely filing of a notice of appeal is "mandatory and jurisdictional." Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir.1993) (quoting Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978)). In the present case, plaintiffs' notice of appeal was filed more than 100 days after entry of the judgment dismissing the complaint. But, under Fed.R.App.P. 4(a)(4), a timely motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) tolls the time for filing a notice of appeal, and the time for filing the notice starts to run from the entry of the order denying said motion. See United States v. 789 Cases of Latex Surgeon Gloves, 13 F.3d 12, 14 (1st Cir.1993); Fed.R.App.P. 4(a)(4). Under Rule 59(e), "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Fed.R.Civ.P. 59(e).

Although plaintiffs' original Rule 59(e) motion was timely filed (it was served within ten days from the entry of the judgment dismissing the complaint), their notice of appeal was not filed until sixty-four days after the entry of the order denying of the motion. Thus, even with the benefit of Rule 4(a)(4)'s tolling provision, plaintiffs' notice of appeal was seemingly late. We lack jurisdiction over late appeals.

This brings us to the principal issue on appeal: Plaintiffs now argue that the judgment dismissing their complaint was not a "final decision" within the meaning of 28 U.S.C. Sec. 1291, and that their time to file a notice of appeal did not start to run until the denial of their second motion for reconsideration. Because the notice of appeal was filed within sixty days from the entry of the order denying the second motion, plaintiffs maintain that their notice of appeal was timely with respect to the underlying judgment.

We have never ruled on this procedural dilemma. It has, however, given rise to some disagreement among those circuits that have. Three distinct views have emerged. The Seventh and Ninth Circuits have held that the dismissal of a complaint, as opposed to the dismissal of an action, is not a final, appealable order, unless the trial court has...