Penagaricano v. Llenza

• Decision Date: 07 September 1983
• Docket Number: Civ. No. 80-1228(JP).
• Citation: 571 F. Supp. 888
• Parties: Gabriel I. PEÑAGARICANO, Plaintiff, v. Orlando LLENZA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

571 F. Supp. 888

Gabriel I. PEÑAGARICANO, Plaintiff, v. Orlando LLENZA, et al., Defendants.

Civ. No. 80-1228(JP).

United States District Court, D. Puerto Rico.

September 7, 1983.

Julio Maymi Pagan, Santurce, P.R., for plaintiff.

Daniel F. Lopez Romo, U.S. Atty., San Juan, P.R., Deft. Carlos Romero Barceló, Kathleen K. Guillermety, Federal Litigation Division, San Juan, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

I. PROCEDURAL BACKGROUND

On April 24, 1980, plaintiff originally filed a complaint in the Superior Court of Puerto Rico, San Juan Part. Plaintiff requested injunctive relief, a mandamus and damages against the National Guard of Puerto Rico, the Hon. Carlos Romero Barceló, the Adjutant General of the National Guard, Orlando Llenza, and the members of the Selective Retention Advisory Board. Later, the complaint was amended on May 16, 1980, to include the names of Fred Brown, José A. Bloise and Francisco Rivera Cintrón, previously referred to as the unnamed Selective Retention Advisory Board members. The Hon. Carlos Romero Barceló was sued exclusively in his official capacity of Commander in Chief of the Puerto Rico National Guard. The remaining defendants were sued in both their official and personal capacities, even though this is not entirely clear from the complaint with regards to the Board members.

The central allegation of the complaint is that all defendants, acting in common agreement for the purpose of separating plaintiff from his position in the Puerto Rico National Guard on account of his political ideas, discriminatorily applied Air National Guard Regulation 36-06 which sets up the Advisory Board. Hence, it can reasonably be said that the conduct of the Board members which is pertinent to plaintiff's claim, is wholly within the ambit of their activities as members of the Advisory Board.

Colonel F. Brown, one of the three Board members, filed a removal petition on June 5, 1980. Removal was opposed and remand sought on June 18, 1980.

On January 29, 1982, this Court pursuant to an opinion emitted by the Hon. Carmen Cerezo, denied plaintiff's motion to remand because it was concluded that Colonel Brown and the other Board members were acting as federal officers within the scope of their federal duties when they recommended the non-retention of plaintiff as a federally recognized officer of the National Guard.

On December 1, 1980, defendant Hon. Carlos Romero Barceló filed a motion with this Court requesting that this action be dismissed as to him. Subsequently, this Court issued a partial judgment dismissing the instant action against the Hon. Carlos Romero Barceló and final judgment was entered on June 7, 1982.

All parties have filed motions for summary judgment or motions to dismiss, which have been duly opposed by the adverse parties. Plaintiff in his motion for summary judgment argues that a judgment should be entered in his favor because defendants separated him from his position as a federally recognized National Guard Officer and from his federal civilian job due to his political ideas and affiliations. The attorney for the National Guard of Puerto Rico and the Adjutant General, Orlando Llenza, in his official and personal capacity as a state employee has alleged that this action is barred because the Court does not have subject matter jurisdiction over the state defendants. Counsel for the federal defendants has also averred that this Court does not have subject matter jurisdiction over the federal defendants.

II. CONCLUSIONS OF FACT

Pursuant to a pre-trial conference held on August 30, 1983, the parties agreed upon a series of stipulated facts. The essential and pertinent facts agreed upon are herein set forth. In 1976, plaintiff was promoted to the rank of full Colonel through orders of the State and request for federal recognition was sent to the Pentagon. However, around January 1977, the newly appointed Adjutant General of the Puerto Rico National Guard, Orlando Llenza, rescinded the promotion order and withdrew the petition for "federal recognition". By March 1977, the Adjutant General had demoted plaintiff to Flight Safety Officer and ascended defendant Fred Brown to plaintiff's former position of Commander of the 156 Tactical Fighter Group. Plaintiff was demoted from his Civil Service classification from a GS-14 to a GS-13 in August of 1977 and Fred Brown was promoted to the only existing GS-14 position. Plaintiff appealed his civilian job change to the Civil Service System. An examiner recommended that plaintiff's change to a lower grade be set aside. However, the Adjutant General did not act on that recommendation. Furthermore, it was stipulated that following the procedure provided by the law in 1980, an Advisory Board of Selective Retention was appointed by the Adjutant General to carry out the purposes provided in ANGR 36-06, which are to recommend which officers are to be retained. A total of 19 officers, including plaintiff were considered by the Board for retention. The Board recommended the non-retention of plaintiff and one other officer. The Board members were Fred Brown, José A. Bloise and Francisco J. Rivera Cintrón, and each Board member took an oath that their duties would be discharged in accordance with the procedures established by the ANGR 36-06.

III. CONCLUSIONS OF LAW

Against this background of allegations and stipulated facts, this Court must come to a decision. This Court deems it both proper and expedient to consider the jurisdictional questions raised by the defendants.

A) Action Against the National Guard and the Adjutant General

We will first consider the jurisdictional questions raised by the attorney for the state National Guard of Puerto Rico,¹ and the Adjutant General of the National Guard Orlando Llenza, in his official and personal capacity as a state employee. In their motion filed on August 12, 1983, it is stated that the instant action is barred with respect to the Commonwealth of Puerto Rico, its alter ego, the National Guard of Puerto Rico and its agent (Adjutant General, Orlando Llenza) acting in his official capacity pursuant to the Eleventh Amendment of the United States Constitution.

Further, it is averred that this action is barred as to Orlando Llenza in his personal capacity because, after this Court denied his motion to remand, plaintiff failed to diligently amend his complaint in conformity with the Federal Rules of Civil Procedure. Plaintiff has not set forth in his complaint a federal statute which would give this Court jurisdiction over defendant Orlando Llenza and plaintiff has also failed to allege a federal statute in his complaint which would give plaintiff a cause of action against defendant in his personal capacity in a Federal Court.

It appears that both defendants and plaintiffs are in complete agreement as to the Eleventh Amendment bar regarding the Puerto Rico National Guard and Orlando Llenza as he acted solely in his official capacity. The position taken by plaintiff in an extensive memorandum of points and authorities in support of a motion to remand filed with this Court in the instant action of June 25, 1981, at page 2, is wholly in agreement with defendants. Plaintiff states in the memorandum that:

"Suits against officers and representatives of a state are the same as against the state and the thrust of the Eleventh Amendment cannot be avoided. In Rey Re Ayers, 123 U.S. 443 8 S.Ct. 164, 31 L.Ed. 216 (1887), cited in Litton Industries, Inc., et al. v. Rafael Hernández Colón, et al., 587 F.2d 70 (C.A. 1, 1978)"

We agree. Therefore, the action against the Puerto Rico National Guard and Adjutant General Orlando Llenza solely in his official capacity is hereby DISMISSED.

As to the action against Orlando Llenza in his individual capacity, it was contended that plaintiff failed to cite a federal statute which gives this Court jurisdiction over the subject matter of this action against defendant and plaintiff did not cite a statute which raises a cause of action for relief against defendant.

As set forth in Article III of the United States Constitution, federal courts are tribunals of limited jurisdiction. They are empowered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, and have been entrusted to them by a jurisdictional grant by Congress. Wright, Charles Alan, Law of Federal Courts, 2nd Ed., page 15. There exists a...