Soto-Padro v. Public Building Authority, et al
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [10-2413]
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Entry ID: 5625386
United States Court of Appeals
For the First Circuit
No. 10-2413
NEFTALÍ SOTO-PADRÓ,
Plaintiff, Appellant,
v.
PUBLIC BUILDINGS AUTHORITY; JAVIER SOTO-CARDONA, in his official
and personal capacities; LEILA HERNÁNDEZ-UMPIERRE, in her
official and personal capacities; ADRIÁN ACEVEDO-RIVERA, in his
official and personal capacities; RUDY MARTÍNEZ-CALDERÓN, in his
official and personal capacities; FABIO BARRETO-MARTÍNEZ, in his
official and personal capacities; JOSÉ GIRONA-MARQUEZ, in his
official and personal capacities; MIGUEL DÁVILA-SÁNCHEZ, in his
official and personal capacities,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.
Raúl Barrera Morales for the appellant.
Edgardo Colón-Arrarás and Goldman Antonetti & Córdova for the
appellee Puerto Rico Public Buildings Authority and for the
individual appellees in their official capacities.
Irene S. Soroeta-Kodesh, Solicitor General, Department of
Justice, Leticia Casalduc-Rabell, Acting Deputy Solicitor General,
Zaira Z. Girón-Anadón, Acting Deputy Solicitor General, and Susana
I. Peñagarícano-Brown, Assistant Solicitor General, for the
individual appellees in their personal capacities.
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THOMPSON, Circuit Judge.
FOREWORD
Our story concerns a dispute that arose after Puerto
Rico's
Public
Buildings
Authority
organization in the late 2000s.1
facts.
(PBA)
restructured
its
We start, naturally, with the
And because the case is here on summary judgment, we
present them in the light most flattering to Neftalí Soto-Padró,
the summary-judgment loser, consistent with record support.
See,
e.g., Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st
Cir. 2011).
Spoiler alert:
when all is said and done, we affirm
the district judge's rulings across the board.
THE REORGANIZATION
For the uninitiated, the PBA is a commonwealth-created
public corporation whose central mission is preparing plans for and
meeting the maintenance needs of "physical facilities related to
government
services,"
and
whose
seven-member
governing
includes four persons appointed by Puerto Rico's Governor.
P.R. Laws Ann. tit. 22, §§ 902-04, 906.
board
See
The board approved the
reorganization that has caused this dust-up – a reorganization that
1
The PBA's name is spelled "Public Building Authority" and
"Public Buildings Authority" in various parts of the record.
(Emphasis added.) We use the spelling employed by the PBA. And
while we are on the subject of spelling, the parties also spell the
names of the persons involved here differently in different places
– sometimes using hyphens, sometimes not; sometimes using accent
marks, sometimes not.
We have done our best to get the names
right, and the parties have our apologies if we have gotten any
wrong.
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eliminated some PBA positions and created new ones too.
Out went
Field-Operations-Supervisor positions, for example, and in came
Field-Operations-Manager and Technical-Services-Supervisor posts.
Soto-Padró is a member of the New Progressive Party
(NPP), one of Puerto Rico's two main political parties.
is the Popular Democratic Party (PDP).
The other
At some point in the
restructuring process, he went from being a Field Operations
Supervisor to a Technical Services Supervisor.
According to the
summary-judgment evidence, here is how that happened.
After
the
PBA
cut
the
Field
Operations
Supervisor
positions as part of the reorganization, Soto-Padró applied for
three PBA jobs:
Manager,
and
Auxiliary Regional Director, Field Operations
Technical
Services
Supervisor.
A
trio
of
PBA
officials – Conservation Area Director Fabio Barreto Martínez,
Special Assistant to the Executive Director Miguel Dávila-Sánchez,
and Executive Sub-Director José Girona-Márquez – interviewed him
for the latter two positions.
Human Resources and Labor Relations
Manager Rudy Martínez-Calderón also sat in on the interviews.
Everyone except Soto-Padró was a PDP sympathizer.
The Field-Operations-Manager job went to Adrián AcevedoRivera, a PDP sympathizer and former Field Operations Supervisor.
Another PDP sympathizer, PBA Executive Director Leila HernándezUmpierre, wrote Soto-Padró that he had landed the TechnicalServices-Supervisor position instead.
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But despite being offered a
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job that he had applied for, Soto-Padró soon had a change of heart.
He realized that the switch from Field Operations Supervisor to
Technical Services Supervisor would lower the range of possible
pay-raise options, though it would not affect his immediate salary.
And he learned from talking with PBA Regional Director Javier SotoCardona, a PDP activist, that he would have new duties: supervising
lower-ranked personnel than he had before and handling plumbing and
refrigeration issues, not electrical matters like he was used to
(Soto-Padró has a bachelor's degree in electrical engineering),
though he concedes that plumbing and refrigeration are critical
aspects of PBA operations.
So Soto-Padró balked at the switch,
writing Hernández-Umpierre that he considered it a "demotion" since
it would lower his "pay scale" and lessen his "functions."
Martínez-Calderón
responded,
telling
Soto-Padró
that
he would
"continue" as Field Operations Supervisor. But eight months later,
Hernández-Umpierre fired off another letter to Soto-Padró, this
time saying that he had been doing the duties of a Technical
Services Supervisor for the past "few months" or so anyway and that
the PBA was reclassifying his position to Technical Services
Supervisor.
Soto-Padró was hardly the only PBA staffer affected by
the reshuffling.
And though executed by PBA personnel affiliated
with the PDP, the reorganization impacted workers in both political
camps, as we shall see shortly.
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THE LAWSUIT
Invoking
federal
civil-rights
statutes,
42
U.S.C.
§§ 1983, 1985, and 1988, as well as the federal declaratoryjudgment act, 28 U.S.C. § 2201, Soto-Padró sued everyone in sight:
the
PBA,
Soto-Cardona,
Hernández-Umpierre,
Acevedo-Rivera,
Martínez-Calderón, Barreto-Martínez, Girona-Márquez, and DávilaSánchez.
According to Soto-Padró, the defendants had demoted him
because he was affiliated with the wrong political party (the NPP
rather than the PDP), violating his First-Amendment and due-process
rights.
His complaint included supplemental local-law claims too.
He sued the individual defendants in both their official and
personal capacities.
And he asked for an amalgam of relief.
For
openers, he requested a mix of injunctive and declaratory relief.
Paraphrasing his complaint, he writes in his brief that he asked
the court to declare his reclassification to Technical Services
Supervisor "null and void" and to order the PBA to place him in the
Field-Operations-Manager position.2
He also asked the court for
damages and attorney fees, among other things.3
2
His complaint also asked the court to declare the entire
reorganization "null and void" under the PBA's personnel
regulations "and other state personnel laws." But we see nothing
approaching an adequately developed argument on that point here, so
it is waived. See Negrón-Almeda v. Santiago, 528 F.3d 15, 25 (1st
Cir. 2008); see also Rodríguez, 659 F.3d at 175-76 (discussing some
of our dos and don'ts for presenting an argument on appeal).
3
For an excellent primer on what relief is available against
persons sued in their official or personal capacities, see
Martinez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 2007).
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We step back for a moment to gain some perspective.
A
claim for relief under section 1983 requires a showing of two
elements – first, that the plaintiff was deprived of either a
federal constitutional or statutory right, and, second, that the
deprivation was carried out by a defendant acting under color of
state
law.4
See,
e.g.,
Barrios-Velázquez
v.
Asociación
de
Empleados del Estado Libre Asociado de P.R., 84 F.3d 487, 491 (1st
Cir. 1996).
section
And section 1988 allows a "prevailing party" in a
1983
§ 1988(b).
action
"reasonable"
attorney
fees.
42
U.S.C.
Section 1985 permits suits against those who conspire
to deprive others "of the equal protection of the laws, or of the
equal privileges and immunities under the law . . . ."
§
1985(3).
The
elements
of
a
section
1985
42 U.S.C.
claim
are
straightforward: (1) "a conspiracy," (2) "a conspiratorial purpose
to deprive the plaintiff of the equal protection of the laws,"
(3) "an overt act in furtherance of the conspiracy," and, lastly,
(4) either (a) an "injury to person or property" or (b) "a
deprivation of a constitutionally protected right."
Pérez-Sánchez
v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008).
A section
1985 claim "requires 'some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators'
4
In the district court, the parties and the judge assumed
that that requirement was met here, and the parties make that same
assumption in their briefs to us. We will too. See Davila-Lopes
v. Zapata, 111 F.3d 192, 193 (1st Cir. 1997) (taking that tack in
a similar situation).
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action,'" id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102
(1971)), though we have held, in the not-too-distant past, that
this
statute
offers
"no
remedy"
political affiliation, id. at 109.
for
discrimination
based
on
Soto-Padró makes no effort to
explain how his case comes within section 1985's sweep, so the
claim is waived.
See, e.g., Rodríguez, 659 F.3d at 175-76.
THE RULINGS
About a year after he filed suit, Soto-Padró became a PBA
Regional Director – a position he still holds, the parties tell us,
and likes very much, not only because he got a nice salary bump but
also because none of the individual defendants have any supervisory
authority over him. In any event, the district judge later granted
the defendants summary judgment.
reasoning ran this way:
Stripped to essentials, his
The PBA's enabling legislation describes
the PBA's mission as fulfilling an "essential" government function,
see P.R. Laws Ann. tit. 22, § 902, but the judge concluded that the
PBA is not an "arm of the state," so it is not protected by the
Eleventh Amendment.5
Moving on, the judge held that the summary-
judgment record compels the conclusion that the defendants would
have taken the same employment action against Soto-Padró even if he
were a PDPer, which defeated his political-discrimination claim.
Also, the only differences between Field Operations Supervisor and
5
Because no one challenges that aspect
decision, we say no more about that subject.
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of
the
judge's
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Technical Services Supervisor, the judge stressed after surveying
the summary-judgment material, were, first, the duties performed,
and, second, the salary scale.
added,
worked
a
loss
of
a
And neither change, he quickly
constitutional
property
interest.
Consequently, Soto-Padró's due-process theories failed too.
The
judge also jettisoned all prayers for declaratory and injunctive
relief as moot or unripe (why he did that does not really matter in
this appeal, for reasons that we get to later), and he dismissed
the local-law claims without prejudice.
Soto-Padró later filed a
motion under Fed. R. Civ. P. 59(e), asking the judge to reconsider,
but the judge denied the motion.
THE APPEAL
Needless to say, Soto-Padró disagrees with parts of the
judge's rulings.
He appeals.
But his arguments do not persuade.
(A)
Summary Judgment
We give de novo review to the judge's summary-judgment
decision, drawing all reasonable factual inferences in favor of
Soto-Padró, see, e.g., Rodríguez, 659 F.3d at 175, and affirming if
the
record
reveals
no
genuine
dispute
of
material
fact
and
discloses the defendants' entitlement to judgment as a matter of
law, see Fed. R. Civ. P. 56(a).
Soto-Padró must come forward with
evidence sufficient for "a fair-minded jury [to] return a verdict"
in his favor.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
"[C]onclusory allegations, improbable inferences, and
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unsupported
speculation"
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will
not
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do.
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Medina-Munoz
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
v.
R.J.
And we may
uphold the summary judgment for any reason supported by the record,
even if not relied on by the judge.
See, e.g., Alliance of Auto.
Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005).
With these lessons in mind, we turn to the summaryjudgment issues before us, filling in some missing details as we
move along.
(1)
Political Discrimination
Soto-Padró remains adamant: the defendants "demoted" him
because of his NPP status.6
But even if a jury could reasonably
conclude from the summary-judgment evidence that his political
affiliation
was
a
substantial
decisional
calculus,
defendants
could
he
still
still
meet
or
motivating
would
their
not
be
factor
home
in
their
free.
The
summary-judgment
burden
by
showing that no sensible jury would reject their defense that they
would have taken the same action against him "in the absence of the
protected conduct." See, e.g., Díaz-Bigio v. Santini, 652 F.3d 45,
52 (1st Cir. 2011) (internal quotation marks omitted) (discussing
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977)); Costa-Urena v. Segarra, 590 F.3d 18, 25 (1st Cir. 2009)
(same).
This is what is known as a Mt. Healthy defense, see
6
We use Soto-Padró's language but do not rule on whether he
was actually "demoted" in any actionable sense.
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Rodríguez, 659 F.3d at 176; Martinez-Vélez, 506 F.3d at 39, and the
judge rightly granted the defendants summary judgment based on that
defense.
We explain.
With
its
operations
restyled
the
blessing
–
of
its
governing
consolidating
or
board,
the
modifying
PBA
some
positions, wiping out others, and creating new ones – to help
things
run
watchword.
shows.
more
smoothly
there.
Efficiency
was
the
PBA's
At least that is what the summary-judgment record
The restructuring was entity-wide – in other words, it was
not one that was targeted exclusively at Soto-Padró's particular
corner of the PBA.
And it focused on positions not persons.
But obviously a reshuffling of positions affects people,
and the people affected included NPP and PDP sympathizers:
NPPers
and PDPers got promoted, and, as PBA Regional Director Soto-Cardona
stressed, PDPers got demoted – all as a result of the boardapproved restructuring.
As an example, Soto-Cardona singled out
José Vargas – a PDP member who was demoted from Field Operations
Supervisor on account of the shake-up, just like NPP-member SotoPadró
claims
Maintenance
he
himself
Supervisor,
was.
backed
Samuel
Valentín-Vega,
up Soto-Cardona's
a
testimony
PBA
on
Vargas's demotion.
Critically, our case is 180 degrees different in very
relevant respects from cases that deemed a Mt. Healthy defense
deficient – cases like Rodriguez-Rios v. Cordero, 138 F.3d 22, 25
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(1st Cir. 1998), where we held that even if the public-corporation
officials there had demoted an employee under a "reorganization"
plan, their real motives "remained very much in question," given
that the governing board had not "approved" that plan, as it had
earlier ones; Padilla-García v. Guillermo Rodríguez, 212 F.3d 69,
78 (1st Cir. 2000), where we noted that the "restructuring" there
had scrapped one job but not others; or Jirau-Bernal v. Agrait, 37
F.3d 1, 3 (1st Cir. 1994), and Rodriguez-Pinto v. Tirado-Delgado,
982 F.2d 34, 40 (1st Cir. 1993), where we stressed that every
single one of the employees demoted under the "reorganization"
schemes there was a supporter of the political party that opposed
the party in power.
Even at the risk of testing the reader's
patience, we repeat that the summary-judgment submissions here show
that the PBA's governing board had green-lighted the entity-wide
restructuring plan – a plan implemented by PDPers, certainly, but
one that affected
NPPers
and
PDPers
alike,
including
a
PDP-
sympathizer employee (Vargas) who was demoted from Field Operations
Supervisor, just like NPP-member Soto-Padró claims he himself was.
The Supreme Court has described the Mt. Healthy defense
this way:
it deals with employment actions driven by "mixed
motives," and provides that where there are both "lawful" and
"unlawful" reasons for the adverse employment action, "if the
lawful reason alone would have sufficed to justify the [action],"
then the employee cannot prevail.
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McKennon v. Nashville Banner
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Pub. Co., 513 U.S. 352, 359 (1995).
like
this,
we
have
said
that
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And in the context of a case
even
if
a
plaintiff
shows
an
impermissible political motive, he cannot win if the employer shows
that it would have taken the same action anyway, say, as part of a
bona fide reorganization.
Nereida-Gonzalez v. Tirado-Delgado, 990
F.2d 701, 706 n.4 (1st 1993).
record, properly
viewed
That is our situation here:
(i.e.,
afresh
and in
the
light
the
most
generous to Soto-Padró), shows that the defendants still would have
reclassified Soto-Padró's position even if he were a PDP member or
sympathizer, which means that they have sufficiently established a
Mt. Healthy defense.
Soto-Padró's several attempts to cast doubt on this fail.
Take,
for
example,
his
claim
that
Valentín-Vega,
as
a
PBA
Maintenance Supervisor, had zero personal knowledge of either PBA
personnel matters or the reorganization plan.7 But Valentín-Vega's
deposition testimony – given in response to a lawyer's directing
him to testify about matters only within his "personal knowledge"
on this point – cuts the legs out from under Soto-Padró's lead
argument. And Soto-Padró points to no evidence contradicting this.
Still focusing on Vargas's demotion, Soto-Padró thinks
that he has a trump card.
Comparing him with Vargas is like
comparing apples and oranges, he writes, because Vargas was not a
7
Remember that Valentín-Vega had seconded Soto-Cardona's
testimony on Vargas's demotion.
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demotee. True, PBA Auxiliary Regional Director Gerardo García said
in his deposition that Vargas "was not demoted." (Emphasis added.)
García stressed that Vargas told him that after the PBA eliminated
the Field-Operations-Supervisor posts, he (Vargas) applied for the
newly-created position of Field Operations Manager. Not having the
right credentials for that job, Vargas ended up as a Supervisor
instead, which, apparently, was a better fit – at least that is
what García said Vargas said. Given these circumstances, comparing
Soto-Padró's situation with Vargas's does not cut it, or so SotoPadró insists.
This argument is not a winner either.
For one thing,
García's testimony about what Vargas said smacks of hearsay (SotoPadró points us to no applicable hearsay-rule exception), and
hearsay evidence of this sort cannot defeat summary judgment. See,
e.g., Dávila v. Corporación de P.R. para la Difusión Pública, 498
F.3d 9, 17 (1st Cir. 2007).
For another thing, García conceded
during
Vargas
his
position
deposition
(Field
that
Operations
went
Supervisor)
from
to
a
a
higher-ranked
lower-ranked
one
(Supervisor) – the classic definition of a demotion, see Black's
Law Dictionary 497 (9th ed. 2009) – as a direct result of the
reorganization.
It follows, then, as surely as summer follows
spring, that García's testimony is not enough to create a genuine
dispute of material fact regarding Vargas's demotion – for a
plaintiff cannot meet that standard by pouncing on comments made by
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a deponent that the deponent himself has undercut with his later
testimony.
See Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 39 n.2
(1st Cir. 1999).
Soto-Padró also tosses around words like "arbitrary" and
"sham" to describe his reclassification in the hope of discrediting
the defendants' Mt. Healthy defense.
The poster child for this
campaign is his claim that the PBA did not follow certain hiring
procedures
in
naming
PDP
sympathizer
Acevedo-Rivera
Field
Operations Manager, even though Acevedo-Rivera was "less qualified"
than he.
And to bolster his theory, Soto-Padró relies on an
"expert report" prepared by a human-resources consultant that
accused the PBA of not adhering to some of its hiring protocols.
None of this helps his cause, however.
For starters, he never
established that the supposedly less-qualified Acevedo-Rivera was
not qualified for the Field-Operations-Manager job.
Also, and
importantly,
that
the
expert's
report
does
not
suggest
the
defendants would have reached a different reclassification decision
regarding Soto-Padró if he had been a PDP rather than an NPP
member.
That ends this phase of our analysis. Given this record,
the judge properly granted summary judgment to the defendants on
Soto-Padró's political-discrimination claim.
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So we soldier on.
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(2)
Due Process
Convinced
that
the
reclassification
infracted
his
substantive and procedural due-process rights, Soto-Padró faults
the judge for holding otherwise.
To prevail on either due-process
theory, Soto-Padró must point to a protected property interest.8
See, e.g., Harron v. Town of Franklin, 660 F.3d 531, 536, 537 (1st
Cir. 2011); Alvarado-Aguilera v. Negrón, 509 F.3d 50, 53 (1st Cir.
2007); Centro Medico del Turabo, Inc., 406 F.3d at 7-8.
The
Constitution, of course, does not create property interests –
rather they are created elsewhere, usually under local law.
See
Rodriguez-Pinto, 982 F.2d at 41; Kauffman v. P.R. Tel. Co., 841
F.2d 1169, 1173 (1st Cir. 1988); see also Torres-Martínez v. P.R.
Dep't of Corr., 485 F.3d 19, 24 (1st Cir. 2007); Ruiz-Casillas v.
Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005).
And that is
where Soto-Padró falters.
The essence of Soto-Padró's argument is that the "sham"
reorganization left him in a new position (Technical Services
Supervisor) with fewer duties and a smaller pay scale than his old
post (Field Operations Supervisor).
We see two problems, though:
one, Puerto Rico law holds that an employee in Soto-Padró's shoes
8
The Due Process Clause protects liberty interests too, see
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
7-8 & n.4 (1st Cir. 2005), but Soto-Padró invokes none. It also
protects life, see U.S. Const. amend. XIV, § 1, but obviously that
is not a concern here.
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has "a property interest in [his] continued employment, not in the
functions
[he]
perform[s],"
Ruiz-Casillas,
415
F.3d
at
134
(internal quotation marks omitted and emphasis added); accord
Torres-Martínez, 485 F.3d at 24; and, two, Soto-Padró never cites
a Puerto Rico source showing that he had a protectable property
interest in his old pay scale.
The judge had rejected the pay-
scale aspect of Soto-Padró's due-process argument, relying on
Rodriguez-Pinto v. Tirado-Delgado, 798 F. Supp. 77, 83 (D.P.R.
1992), a case where a different judge in the same court gave thumbs
down to a similar argument after concluding that the plaintiff
there had not satisfied "his burden of showing" that he had a right
to remain in the same salary scale.
On appeal we affirmed,
sidestepping the constitutional question and deeming the issue
"waived" because (among other reasons) the plaintiff did not
pinpoint the source of the property right that he was supposedly
deprived of, spell out how that right (assuming it exists) was
"entitled
to
constitutional
protection,"
or
"cite
any
legal
authority" to bolster his theory. Rodriguez-Pinto, 982 F.2d at 41.
Because Soto-Padró's failings basically mirror those in RodriguezPinto, we follow Rodriguez-Pinto's lead and find his pay-scale
argument waived.
The net result, then, is that the judge rightly
awarded the defendants summary judgment on Soto-Padró's due-process
claim as well.
-16-
Case: 10-2413
Document: 00116346169
Page: 18
Date Filed: 03/12/2012
Entry ID: 5625386
(3)
Declaratory and Injunctive Relief
Recall that Soto-Padró's complaint asked for various
forms of declaratory and injunctive relief, among other things. His
opening brief attacks the reasoning behind the judge's decision not
to grant declaratory relief.
His reply brief then assails the
judge's refusal to grant declaratory and injunctive relief.
We do
not spend any time on these protests, however.
We can and do dispatch his injunction argument as waived,
since
appellate
preserved.
arguments
debuted
a
reply
brief
are
not
See, e.g., Liberty Mut. Ins. Co. v. Nippon Sanso K.K.,
331 F.3d 153, 162 (1st Cir. 2003).
injunction
in
and
the
Another problem dooms both the
declaratory-judgment
arguments,
actually:
because the judge (as we have said already) correctly tossed the
political-discrimination
and
due-process
claims
on
summary
judgment, Soto-Padró has no basis for any relief at all against the
defendants, let alone declaratory and injunctive relief. See Lopez
v. Garriga, 917 F.2d 63, 70 (1st Cir. 1990) (holding that once
"plaintiff's constitutional claim" failed, "he was left without any
sound basis for" injunctive or declaratory relief); see also
Redondo-Borges v. U.S. Dep't of HUD, 421 F.3d 1, 5, 11 (1st Cir.
2005) (affirming a district-court ruling rejecting an equitablerelief claim because "plaintiffs had failed to state any claim
cognizable under section 1983").
Enough said.
-17-
Case: 10-2413
Document: 00116346169
Page: 19
Date Filed: 03/12/2012
Entry ID: 5625386
(B)
Reconsideration
With the summary-judgment issues out of the way, we take
up Soto-Padró's protest that the judge botched the reconsideration
ruling – a ruling that we review only for abuse of discretion,
keeping in mind that judges enjoy "considerable" discretion in this
area.
See, e.g., Venegas-Hernandez v. Sonolux Records, 370 F.3d
183, 190 (1st Cir. 2004).
Our cases generally offer three grounds
for a valid Rule 59(e) motion:
an "intervening change" in the
controlling law, a clear legal error, or newly-discovered evidence.
See, e.g., Morán Vega v. Cruz Burgos, 537 F.3d 14, 18 (1st Cir.
2008); Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st
Cir. 2005).
And our cases tell us that a party cannot use a Rule
59(e) motion to rehash arguments previously rejected or to raise
ones that "could, and should, have been made before judgment
issued."
See, e.g., Morán Vega, 537 F.3d at 18 n.2 (internal
quotation marks omitted); see also Nat'l Metal Finishing Co. v.
BarclaysAmerican/Comm., Inc., 899 F.2d 119, 123 (1st Cir. 1990).
Given all this, it is exceedingly difficult for a litigant to win
a Rule 59(e) motion.
See Marie, 402 F.3d at 7 n.2.
Moving from the general to the specific, Soto-Padró does
not play up an intervening change of law or newly-discovered
evidence.
Instead he pins his hopes on persuading us to find a
manifest error of law.
We see none, however.
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Case: 10-2413
Document: 00116346169
Page: 20
Date Filed: 03/12/2012
Entry ID: 5625386
Soto-Padró's first argument – that his motion brought to
the judge's attention "for the first time" a 1979 Supreme Court
case that supposedly supported his prayer for declaratory relief –
goes nowhere fast, given that he could and should have pressed that
point sooner.
two
arguments
See, e.g., Morán Vega, 537 F.3d at 18 n.2.
–
targeting
parts
of
the
judge's
His next
political-
discrimination and due-process analyses - also fail, but this time
because they are retreads of ones that the judge had already
rejected.
See, e.g., id.
And his parting shot – that the judge
gaffed the summary-judgment protocol – misses the mark too, since
the record undercuts his claim.
Obviously, then, Soto-Padró has
not come close to showing an abuse of discretion here.
CONCLUSION
For the reasons revealed above, we uphold the judge's
rulings and judgment.
Affirmed, with appellate costs to the defendants.
-19-
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