P.R. Office of the Ombudsman v. Puerto Rico, Civil No. 09-2018 (JAG).

CourtU.S. District Court — District of Puerto Rico
Writing for the CourtGarcia-Gregory
Citation665 F.Supp.2d 74
PartiesPUERTO RICO OFFICE OF THE OMBUDSMAN FOR THE ELDERLY, herein represented by Hon. Rossana Lopez Leon, Plaintiff, v. Commonwealth of PUERTO RICO, et al., Defendant(s).
Docket NumberCivil No. 09-2018 (JAG).
Decision Date22 October 2009
665 F.Supp.2d 74
PUERTO RICO OFFICE OF THE OMBUDSMAN FOR THE ELDERLY, herein represented by Hon. Rossana Lopez Leon, Plaintiff,
Commonwealth of PUERTO RICO, et al., Defendant(s).
Civil No. 09-2018 (JAG).
United States District Court, D. Puerto Rico.
October 22, 2009.

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Puerto Rico Office of the Ombudsman for the Elderly, pro se.

Rossana Lopez-Leon, pro se.

Luis Fortuño-Burset, pro se.


GARCIA-GREGORY, District Judge.

For the reasons set forth below, this Court DISMISSES the present case for lack of jurisdiction.


Plaintiff Puerto Rico Office of the Ombudsman for the Elderly ("PROOE") is the designated state agency in Puerto Rico under the Older American Act of 1965, 42 U.S.C. §§ 3001, et seq. ("OAA"). The OAA is the only Federal social services law aimed solely at meeting the needs of citizens aged sixty (60) and over. Tyrrell v. City of Scranton, 134 F.Supp.2d 373, 382 (M.D.Pa.2001) (internal citation omitted). Under the OAA, the federal government provides assistance to states for the development and administration of a comprehensive system of services for the elderly. See 42 U.S.C. §§ 3001, 3003. The Administration on Aging ("AoA"), which is part of the Department of Health and Human Services, is responsible for the administration of the OAA at the federal level. 42 U.S.C. § 3011. In order to participate in the OAA programs, a State must designate a state agency that will be responsible for the development and administration of a state plan. 42 U.S.C. § 3025. The state plan, which must be submitted to the AoA for approval, must meet certain eligibility criteria. 42 U.S.C. § 3027. If the AoA determines that a state has failed to comply with those provisions of the Act governing state plans, the AoA may notify the state that no further funding will be forthcoming until the failure to comply has been corrected. 42 U.S.C. § 3027(d).

Defendant Board of Restructuring and Fiscal Stabilization of Puerto Rico ("BRFS") is an entity created by statute to aid in the economic recovery process of Puerto Rico. Specifically, BRFS is responsible for reducing the Commonwealth of Puerto Rico's government spending in accordance with Puerto Rico Act No. 7 of March 9, 2009 ("Act 7"). To achieve the level of cost reduction needed, Act 7 contains a provision that calls for the elimination of government positions.

On September 25, 2009, BRFS indicated to PROOE that pursuant to Act 7, one hundred eleven (111) of one thirty nine (139) PROOE employees were marked for termination. On that date, BRFS sent PROOE the termination letters that would be given to the employees marked for termination and provided instructions for the employment termination process.

PROOE believes BRFS is erroneously requiring it to terminate its employees because most of its employees' positions are federally funded and Act 7 exempts from termination "employees of Agencies that work in federal programs subsidized with federal funds and which program[sic] conditions the grant and receipt of federal funds to the retention of such employees."1 (Translation ours). Furthermore, PROOE considers that the terminations mandated by BRFS violate the OAA, the Age Discrimination Act ("ADA"), 42 U.S.C. § 6101 et seq., the Fifth and Fourteenth Amendment to the United States Constitution.

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On October 4, 2009, PROOE herein represented by the Ombudsman2 filed a complaint in this Court. (Docket No. 1). This complaint was amended on October 13, 2009.3 PROOE brings a 42 U.S.C. § 1983 action against Defendants the Commonwealth of Puerto Rico, the Governor of Puerto Rico, Luis G. Fortuño, BRFS, Carlos M. Garcia, María Sánchez Bras, Juan Carlos Puig Morales, Miguel Romero, and José Pérez Riera (collectively "Defendants") seeking injunctive relief for alleged violations of the OAA, the Fifth and Fourteenth Amendment of the United States Constitution. Moreover, PROOE avers that Defendants violated the ADA. PROOE also brings a supplemental law claim under Act 7. PROOE requests that this Court among other things enjoin Defendants from terminating PROOE's federally funded employees. PROOE also moves this Court for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

PROOE invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1331, which provides federal court jurisdiction in civil actions arising under the Constitution and laws of the United States. Additionally, PROOE requests that this Court exercise jurisdiction pursuant to 28 U.S.C. §§ 1343(a)(3) and (4)4 which parrots the text of 42 U.S.C. § 1983. Hence, federal jurisdiction under 28 U.S.C. § 1343(a) hinges upon the existence vel non of a substantial claim under § 1983. Bonas v. Town of N. Smithfield, 265 F.3d 69, 74 (1st Cir.2001). (Docket No. 18).

It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction as it is required to determine whether jurisdiction exists prior to proceeding to the merits of the case. United Seniors Ass'n v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007); McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004) (internal citation omitted). Accordingly, the parties were ordered to address whether this Court has jurisdiction over the case at bar. (Docket Nos. 4, 10). PROOE filed several motions in which it argued that this Court has jurisdiction over its claims. (Docket Nos. 5 and 20). On October 13, 2009, Defendants filed their brief in opposition. (Docket No. 21). On October 16, 2009, this Court heard oral arguments on the jurisdictional issue.5

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It is axiomatic that "[f]ederal courts are courts of limited jurisdiction." Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 17 (1st Cir. 2008) (internal citation omitted) (alteration in original). PROOE argues that this Court has jurisdiction under 28 U.S.C. § 1331 because its claims arise under the Constitution and laws of the United States as it brings forth claims under the OAA, ADA, Fifth and Fourteenth Amendment of the United States Constitution. PROOE also argues that there is jurisdiction under 28 U.S.C. § 1343 as it proffers substantial claims under § 1983. We will first discuss whether this Court has jurisdiction under the ADA.

1. ADA

The ADA prohibits age discrimination by entities receiving federal financial assistance. Section 303 of the ADA provides in pertinent part that "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance." 42 U.S.C. § 6102. A plaintiff must exhaust the administrative remedies set forth in 42 U.S.C. § 6104 and 45 C.F.R. 90.50 before bringing an action under the ADA. Administrative remedies are exhausted if 180 days have elapsed since the complainant filed a complaint before the relevant federal funding agency and the agency has made no finding, or if, whatever the interval, the agency has found in favor of the complainant. 42 U.S.C. § 6104(f); 45 C.F.R. § 90.50(a). Moreover, before filing the action in federal court, the complainant must give thirty days' notice by registered mail to the Secretary of Health and Human Services, the Attorney General, the head of the granting agency, and the grant recipient. 42 U.S.C. § 6104(e)(1); 45 C.F.R. § 90.50(b)(3)(iii). This notice must state the alleged violation of the ADA, the relief requested, the court in which the action shall be brought, and whether attorney's fees will be demanded if the plaintiff prevails. 42 U.S.C. § 6104(e)(2); 45 C.F.R. § 90.50(b)(3)(iv).

The record is devoid of any evidence that administrative remedies were exhausted in this case. PROOE, however, attempts to show the inapplicability of the exhaustion doctrine here, by arguing that the doctrine is subject to certain exceptions. Specifically, PROOE stresses that a party is not required to exhaust its administrative remedies where it would be futile for it to do so. See, e.g., Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 826 (1st Cir.1988) (discussing exhaustion in the context of ERISA). At oral argument, PROOE merely made a blanket assertion, unsupported by any facts that it would have been futile in this case for it to follow the ADA's administrative exhaustion process. We find that PROOE's attempt to call this exception into play is insufficient. See, e.g., id. (finding that a blanket assertion, unsupported by any facts, is insufficient to call the futility exception into play).

At oral argument, PROOE also pointed this Court to the fact that it is well settled law that exhaustion of state administrative remedies is not a prerequisite to filing an action under 42 U.S.C. § 1983. Chmielinski v. Mass. Office of the Comm'r of Prob., 513 F.3d 309, 314 (1st Cir.2008) (internal citations omitted). However, PROOE's claims under the ADA do not fall under the purview of § 1983 as it is a separate cause of action. Unlike claims brought under § 1983, the exhaustion of administrative remedies is a prerequisite to filing an action pursuant to the ADA. Therefore, it follows that PROOE may not ground its federal jurisdiction argument on the ADA. Accordingly, we shall proceed to discuss

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whether PROOE may hinge jurisdiction on the OAA.

2. OAA

In order to have jurisdiction to entertain PROOE's request for injunctive and declaratory relief pursuant to the OAA, said statute must confer a federal right enforceable under § 1983. "Section 1983 provides a remedy only for the deprivation of `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Specifically, § 1983 merely provides a mechanism for enforcing individual rights "secured" elsewhere, i.e., rights independently "secured by the...

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