PeÑalbert–rosa v. FortuÑo–burset

• Decision Date: 28 January 2011
• Docket Number: 10–1410.,Nos. 09–2391,s. 09–2391
• Citation: 631 F.3d 592
• Parties: María D. PEÑALBERT–ROSA; Sirilo Correa–Rosario; Conjugal Partnership Correa–Peñalbert, Plaintiffs, Appellants,v.Luis G. FORTUÑO–BURSET, in his personal capacity and as Governor of the Commonwealth of Puerto Rico; LUCÉ VELA, in her individual capacity; Velmarie Berlingeri–Marín, in her individual and official capacity as Administrator of the Governor's Mansion; Juan Carlos Blanco, in his individual and official capacity as Chief of Staff; John Doe; Conjugal Partnership Doe–Berlingeri; Juanita Doe; Conjugal Partnership Blanco–Doe; Conjugal Partnership Fortuño–Vela, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

631 F.3d 592

31 IER Cases 1297

María D. PEÑALBERT–ROSA; Sirilo Correa–Rosario; Conjugal Partnership Correa–Peñalbert, Plaintiffs, Appellants,

v.Luis G. FORTUÑO–BURSET, in his personal capacity and as Governor of the Commonwealth of Puerto Rico; LUCÉ VELA, in her individual capacity; Velmarie Berlingeri–Marín, in her individual and official capacity as Administrator of the Governor's Mansion; Juan Carlos Blanco, in his individual and official capacity as Chief of Staff; John Doe; Conjugal Partnership Doe–Berlingeri; Juanita Doe; Conjugal Partnership Blanco–Doe; Conjugal Partnership Fortuño–Vela, Defendants, Appellees.

Nos. 09–2391

10–1410.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 2010.Decided Jan. 28, 2011.

Carlos A. Del Valle Cruz with whom Eileen Landrón Guardiola, Eduardo Vera Ramírez and Landrón & Vera, L.L.P. were on brief for appellants.Eliezer A. Aldarondo–López with whom Eliezer Aldarondo Ortiz, María Hadad–Orta and Aldarondo & López Bras, PSC were on consolidated brief for appellees.Before BOUDIN, STAHL and HOWARD, Circuit Judges.BOUDIN, Circuit Judge.

María D. Peñalbert–Rosa was discharged from public employment in Puerto Rico in February 2009, shortly after the governorship of the Commonwealth changed hands from one political party to another. According to her later complaint, Peñalbert had been employed since 2006 as a receptionist in an office building annexed to the Puerto Rico governor's executive mansion; from 1989 to 2006, she worked in a communications office within the same complex. Neither position, she asserts, entailed formulating policy or handling confidential information.

The new governor, Luis Fortuño–Burset, candidate of the New Progressive Party (“NPP”), was elected in November 2008 and assumed office in January 2009. Several weeks later, Peñalbert—a member of the Popular Democratic Party (“PDP”)—received a letter terminating her employment. The letter described her position as “one of trust” (that is, one subject to at-will termination under Puerto Rico law, P.R. Laws Ann. tit. 3, § 1465 (2006); see Costa–Urena v. Segarra, 590 F.3d 18, 22 (1st Cir.2009)), but it contained no criticism of her work or explanation for her firing.

On April 16, 2009, Peñalbert brought the present civil rights action, 42 U.S.C. § 1983 (2006), alleging that the termination violated her federal constitutional rights to freedom of speech and association, due process, and equal protection; she also invoked supplemental federal jurisdiction over various claims arising under Puerto Rico law. The complaint named as defendants Governor Fortuño; Fortuño's chief of staff, Juan Carlos Blanco; and the administrator of the governor's mansion, Velmarie Berlingeri–Marín—each in his or her individual and official capacities.

The central claim was that Fortuño and the two others fired Peñalbert because of her political affiliation to the PDP and gave her position to an NPP member. The complaint sought $1.5 million in compensatory damages as well as preliminary injunctive relief, which was denied. Ultimately, the district court dismissed the complaint for failure to state a claim under federal law, Fed.R.Civ.P. 12(b)(6); the claims under Puerto Rico law were dismissed without prejudice.

Peñalbert now appeals, focusing only on the political discrimination claim under the First Amendment and the denial of preliminary injunctive relief; she also says her local law claims should not have been dismissed with prejudice, but the district court dismissed them without prejudice. Our review of a judgment of dismissal for failure to state a claim under the federal statute is de novo, Morales–Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir.2008), accepting the well-pleaded allegations of the complaint as true and drawing all reasonable inferences in Peñalbert's favor, Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir.2006).

As construed by several path-breaking decisions, the First Amendment prohibits government officials from taking adverse employment actions against public employees because of the employees' political affiliations, unless partisan considerations are a legitimate requirement for the position in question. Branti v. Finkel, 445 U.S. 507, 516–18, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 372–73, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion). Subject to the latter exception, the plaintiff meets the test by showing that political affiliation was a substantial or motivating factor in the employment decision. Montfort–Rodríguez v. Rey–Hernández, 504 F.3d 221, 224–25 (1st Cir.2007).

The complaint adequately alleges a claim that someone discharged Peñalbert in violation of the First Amendment. Presumably, whoever discharged her was acting as a state actor, and no basis has yet been asserted for exempting Peñalbert from the protections of Branti and Elrod. While there may have been some reason independent of political party for the firing, the opposite inference may be drawn from the timing of the discharge, the lack of explanation and the replacement by a member of the opposing party.

The trouble with Peñalbert's complaint is not that the charge is implausible; political firings after elections in Puerto Rico are not uncommon. But, save under special conditions, an adequate complaint must include not only a plausible claim but also a plausible defendant. Yet there is nothing in the complaint beyond raw speculation to suggest that the named defendants participated—either as perpetrators or accomplices—in the decision to dismiss Peñalbert.

To be sure, the complaint asserts that Governor Fortuño “approves or disapproves of all personnel decisions [at the governor's mansion], including the personnel decisions concerning the termination of [Peñalbert]”; that the two named subordinate officials “participated” in these decisions; that the defendants “knew or assumed” that Peñalbert belonged to the PDP “and/or” was not a member of the NPP; and ultimately that all three conspired to dismiss Peñalbert because she was a member of the PDP. All except that conspiracy charge are at least couched in factual terms.¹

The plaintiff's factual allegations are ordinarily assumed to be true in passing on the adequacy of the complaint, which need not plead evidence. See, e.g., Sepúlveda–Villarini v. Dep't of Educ., 628 F.3d 25, 30 (1st Cir.2010); Sandler v. E. Airlines, Inc., 649 F.2d 19, 20 (1st Cir.1981) (per curiam). But “ordinarily” does not mean “always”: some allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross “the line between the conclusory and the factual.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 n. 5, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Thus, in Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the complaint charged that two high-ranking government officials knowingly condoned harsh detention conditions for the plaintiff “as a matter of policy, solely on account of [his] religion, race, and/or national origin,” id. at 1944 (quoting complaint). Although this was patently a factual claim about the named defendants' state of mind, the Supreme Court held that the bare allegation of intent was inadequate absent more specific factual assertions:

To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of “ ‘a contract, combination or conspiracy to prevent competitive entry,’ ” because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.

Id. at 1951 (internal citation omitted).

Iqbal could be viewed as emergent law, see, e.g., 129 S.Ct. at 1961 (Souter, J., dissenting), but we ourselves had earlier said a complaint that rests on “bald assertions” and “unsupportable conclusions” may be subject to dismissal, Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996); and our decisions since Iqbal have several times found unadorned factual assertions to be inadequate.² Without trying to lay down a mechanical rule, it is enough to say that sometimes a threadbare factual allegation bears insignia of its speculative character and, absent greater concreteness, invites an early challenge—which can be countered by a plaintiff's supplying of the missing detail.

Here, Peñalbert's complaint does allege that personnel decisions in the executive mansion are within the authority of the governor, but nothing beyond speculation supports the further assertion that the governor or his chief of staff participated in the decision to dismiss Peñalbert. Someone denominated the “administrator” of the governor's mansion might more plausibly be involved, but nothing in the complaint indicates the administrator's actual duties or that the administrator ordinarily passes on...