Rojas–Velázquez v. Figueroa–Sancha

• Decision Date: 29 March 2012
• Docket Number: No. 11–1447.,11–1447.
• Citation: 676 F.3d 206
• Parties: Israel E. ROJAS–VELÁZQUEZ et al., Plaintiffs, Appellants, v. José FIGUEROA–SANCHA et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

676 F.3d 206

Israel E. ROJAS–VELÁZQUEZ et al., Plaintiffs, Appellants,

v.José FIGUEROA–SANCHA et al., Defendants, Appellees.

No. 11–1447.

United States Court of Appeals, First Circuit.

Heard March 8, 2012.Decided March 29, 2012.

Heriberto Güivas–Lorenzo, with whom Güivas & Quiñones Law Offices, PSC was on brief, for appellants.

Carlos Lugo–Fiol, with whom Luis R. Román–Negrón, Solicitor General, was on brief, for appellees.

Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellant Israel Rojas–Velázquez, a Commander in the Puerto Rico Police Department (the Department), complains that the Department and several of its high-ranking officials abridged his constitutional rights by (i) stripping him of certain duties and perquisites on account of his good relations with members of an opposing political party and (ii) denying him due process.¹ The district court dismissed the complaint for failure to state a plausible claim. Rojas–Velázquez v. Figueroa–Sancha, No. 09–1664, 2010 WL 2838615, at *2–4 (D.P.R. July 19, 2010). Discerning no error, we affirm.

I. BACKGROUND

When, as now, an appeal tests the mettle of a dismissal for failure to state a claim, we accept as true the well-pleaded facts delineated in the complaint and give the benefit of all reasonable inferences therefrom to the pleader. See Miranda v. Ponce Fed. Bank, 948 F.2d 41, 43 (1st Cir.1991).

The appellant began working for the Department in 1986. Over more than two decades, he made steady progress. Even though he was a card-carrying member of the New Progressive Party (NPP), one of Puerto Rico's two major political parties, he received promotions during times when the NPP's main rival, the Popular Democratic Party (PDP), dominated the executive branch of the Commonwealth's government. In 2008, he received such a promotion to the rank of Commander. The complaint does not allege that there is any job description for the rank of Commander assigning any particular complex of duties to that rank.

We have observed before that “irony is no stranger to the law.” Amanullah v. Nelson, 811 F.2d 1, 18 (1st Cir.1987). In yet another example of this verity, the appellant's career path became rocky when his own party, the NPP, won the 2008 general election and regained control of the government. At that point, some departmental hierarchs began openly questioning his fealty to the NPP in light of his promotion to Commander during the previous PDP administration. In short order, the Department's newly entrenched leadership eliminated many of his former duties, retrieved his official cellphone and departmental car, evicted him from his office, and reassigned him to the performance of mundane tasks that he viewed as beneath the dignity of his rank. ²

The appellant interpreted these serial workplace changes as a response to his perceived ties to the PDP. Despite the changes, however, he was neither discharged nor stripped of his rank, and he does not allege that his compensation was diminished.

On the heels of these developments, the appellant sued the Department and several of its leaders in the federal district court.³ Invoking 42 U.S.C. § 1983, he alleged that the defendants had violated his First and Fourteenth Amendment rights by (i) taking adverse employment actions against him based on political animus and (ii) depriving him of a property interest in the functions of his job without due process. He added pendent claims under local law.

The defendants moved to dismiss the complaint. See Fed.R.Civ.P. 12(b)(6). The district court (Pieras, J.) dismissed the section 1983 claims on the ground that the appellant had failed to show that the alleged adverse employment actions were either reprisals for engaging in constitutionally protected activity or deprivations of due process. Rojas–Velázquez, 2010 WL 2838615, at *2–3. It then declined to exercise supplemental jurisdiction over the local-law claims and dismissed them without prejudice. Id. at *3; see 28 U.S.C. § 1367(c)(3). After the appellant moved unsuccessfully to alter or amend the judgment,⁴ see Fed.R.Civ.P. 59(e), he filed a notice of appeal.

II. ANALYSIS

At the analytic threshold, we pause to iron out a jurisdictional wrinkle. We then proceed to consider each component of the appellant's asseverational array.

A. Appellate Jurisdiction.

In the notice of appeal, the appellant listed only the denial of his Rule 59(e) motion. In his brief on appeal, however, he assails the propriety of the underlying dismissal. This mismatch is potentially significant because the jurisdiction of the court of appeals normally is limited to review of orders and judgments specifically described in the notice of appeal. See Constructora Andrade Gutiérrez, S.A. v. Am. Int'l Ins. Co., 467 F.3d 38, 43–44 (1st Cir.2006); Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 45 (1st Cir.2006); see also Fed. R.App. P. 3(c)(1)(B).

Here, however, the jurisdictional problem is more apparent than real. This case falls within an exception to the general rule. When “the propriety of denying reconsideration is inextricably intertwined with the correctness of the original order,” the appellee is perforce alerted to the fact that listing of the former in the notice of appeal will entail testing the cogency of the latter. Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 112 (1st Cir.2007). In such a situation, enumerating the denial of reconsideration in the notice of appeal establishes appellate jurisdiction over both the underlying order and the order denying reconsideration. See id. So it is here: the notice of appeal listed the order denying reconsideration and, thus, adequately apprised the defendants that the dismissal itself would be contested on appeal. We therefore have jurisdiction to review the appellant's challenge to the order of dismissal.

B. Section 1983 Claims.

We review an order of dismissal for failure to state a claim de novo. McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.2006). In undertaking this chore, we accept as true all well-pleaded factual allegations limned in the complaint and cede all reasonable inferences therefrom in the pleader's favor. Bergemann v. R.I. Dep't of Envtl. Mgmt., 665 F.3d 336, 339 (1st Cir.2011).

To make out a viable cause of action under section 1983, a plaintiff must allege that the defendants, while acting under color of state law, deprived him of rights secured by the Constitution or federal law. Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir.2011). For this purpose, Puerto Rico is the functional equivalent of a state, Pagán v. Calderón, 448 F.3d 16, 31 n. 6 (1st Cir.2006), and the present defendants do not dispute that they were acting under color of Puerto Rico law. The only question, then, is whether their actions impermissibly deprived the appellant of any federally assured right.

The appellant advances two theories as to how his constitutional rights were transgressed. We examine these theories separately.

1. Political Discrimination. The appellant's flagship theory implicates the First Amendment. In this regard, he notes that the First Amendment protects non-policymaking public employees from suffering adverse employment consequences in retaliation for engaging in political activity. See, e.g., Rutan v. Repub. Party of Ill., 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 516–17, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Relying on this principle, he argues that the defendants impugned his First Amendment rights by trimming his duties and removing certain of his perquisites (e.g., a cellphone and a departmental motor vehicle) based on political animus.

As a general matter, the appellant is correct that non-policymaking public employees are protected by the First Amendment against adverse employment actions taken in response to their political activities and affiliations. Without such protection, those employees might be chilled from engaging in core First Amendment activities, such as joining a political party or expressing their views on public issues; or they may feel compelled to support policies and candidates that they find odious. See Elrod v. Burns, 427 U.S. 347, 355–57, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.); see also Rutan, 497 U.S. at 69, 110 S.Ct. 2729 (“[C]onditioning employment on political activity pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidates they do not support, and to contribute money to be used to further policies with which they do not agree.”).

In this context, something short of outright termination can comprise an adverse employment action. See Rutan, 497 U.S. at 74–76, 110 S.Ct. 2729. If a public employer imposes unreasonably inferior working conditions on a non-policymaking employee on account of the latter's engagement in constitutionally protected activity, that imposition can amount to an adverse employment action (and, thus, support a claim of constitutional breach). See Carrasquillo v. Puerto Rico ex rel. Justice Dep't, 494 F.3d 1, 4 (1st Cir.2007); Agosto–de–Feliciano v. Aponte–Roque, 889 F.2d 1209, 1217–18 (1st Cir.1989) (en banc).

But this is not to say that the First Amendment protects against any and all adverse employment actions. It does not. The prophylaxis of the First Amendment operates to shield public employees from adverse employment actions only to the extent that those actions result from their engagement in constitutionally protected activities. See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.2011); González–de–Blasini v. Family Dep't, 377 F.3d 81, 85–86 (1st Cir.2004); see also Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (holding that “the First Amendment ... does not empower [public workers] to constitutionalize the employee grievance” (internal quotation marks omitted)). It follows that in order...