Rocket Learning, Inc. v. Rivera-Sanchez

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Bruce M. Selya, Appellate Judge. Published. [12-1642]

Case: 12-1642

Document: 00116518358

Page: 1

Date Filed: 04/18/2013

Entry ID: 5726914

United States Court of Appeals
For the First Circuit
No. 12-1642
ROCKET LEARNING, INC.,
Plaintiff, Appellant,
LEARNING ALLIANCES, LLC; CURRÍCULOS EDUCATIVOS Y PROYECTOS DE
DISEÑO INSTRUCCIONAL, INC., a/k/a CEPDI, INC.; BEST EDUCATION
TRENDS, INC.; NIGHT STAR JOB COLLEGE, INC.,
Plaintiffs,
v.
JESÚS RIVERA-SÁNCHEZ, in his personal capacity and as the
Secretary of the Puerto Rico Department of Education,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Rafael Escalera Rodríguez, with whom Amelia Caicedo Santiago,
Carlos M. Hernández Burgos, and Reichard & Escalera were on brief,
for appellant.
Margarita L. Mercado Echegaray, Attorney, Puerto Rico
Department of Justice, with whom Carlos E. Cardona Fernández,
Claudio Aliff Ortiz, Eliezer Aldarondo Ortiz, and Aldarondo & López
Bras were on brief, for appellee.

April 18, 2013

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LYNCH,

Chief

Page: 2

Judge.

Date Filed: 04/18/2013

Rocket

Learning,

Entry ID: 5726914

Inc.,

an

educational services provider based in Puerto Rico, appeals from a
district court order dismissing with prejudice this civil rights
action, filed pursuant to 42 U.S.C. § 1983, against defendant Jesús
Rivera-Sánchez, personally and in his official capacity as Puerto
Rico's Secretary of Education.
The suit alleges constitutional violations arising from
a 2010 change to the certification and enrollment process for
providers in the Commonwealth's Supplemental Educational Services
program, funded under federal law.
this

change

unilaterally

and

The claim is essentially that

arbitrarily

disadvantaged

the

appellant, a certified provider, vis-à-vis its competitors.

The

district court found that the amended complaint lacked sufficiently
well-pled facts to support a plausible claim that the defendant had
violated

Rocket

Learning's

equal

commercial free speech rights.

protection,

due

process,

or

We now affirm the district court's

decision on the alternative ground that the defendant was entitled
to qualified immunity as to all claims.
I.
Title I, Part A of the Elementary and Secondary Education
Act of 1965, as amended by the No Child Left Behind Act of 2001,
makes available federal funding for state educational agencies to
provide, inter alia, various academic opportunities to students
from low-income families.

See No Child Left Behind Act of 2001,

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Pub. L. No. 107-110, §§ 1111-1117, 115 Stat. 1425, 1444-1501 (2002)
(codified at 20 U.S.C. §§ 6311-6317).
the Supplemental

Educational

One of these opportunities,

Services

(SES)

program,

entitles

eligible students to receive tutoring services at no cost from a
private or public organization certified by the state and selected
by the students' guardians.
§ 200.45.
SES

20 U.S.C. § 6316(e)(1); 34 C.F.R.

The Commonwealth of Puerto Rico has participated in the

program

since

2003,

as

administered

by

the

Puerto

Rico

Department of Education (PRDE).
Each academic year, the PRDE conducts a three-stage
enrollment procedure to match eligible students with SES providers.
First, in the certification process, prospective SES providers
submit

an

annual

certification

or

re-certification

proposal,

through a Request for Qualification (RFQ), which determines their
eligibility

to

enroll

students

in

the

upcoming

year.

Such

proposals must comply with requirements enumerated in the RFQ
application and in the Commonwealth's SES Procedures Manual ("SES
Manual"),

and

cannot

be

amended

after

submission

except

as

requested by the PRDE.
After

certification,

SES

providers

compete

amongst

themselves to attract eligible students and their guardians to sign
up for their tutoring services during the pre-enrollment process.
As

required

by

federal

regulation,

the

PRDE

initiates

pre-

enrollment by compiling a roster of certified providers on its

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website for SES participants to evaluate.
hold

informational

meetings,

Entry ID: 5726914

Additionally, providers

independently

and

through

local

schools, to describe the services that they will offer to students
in the upcoming year.

At the close of pre-enrollment, guardians

fill out a form SES-101 to identify, in order of preference, the
three SES providers with whom they would like their student to
work.
Finally,
administered

in

tests

the

pre-test

to

assess

their

process,
individual

students are
needs,

which

providers discuss with each student's guardians. The guardians and
a

provider

then

submit

a

form

SES-102

to

the

PRDE,

which

memorializes their agreement as to that student's needs and the
services the provider will furnish to him or her.

Once the SES-102

forms are approved, the PRDE executes a contract with the relevant
provider and services ordinarily begin within two to four days.
This case concerns the Commonwealth's SES enrollment
procedure for the 2010-2011 academic year.

As initially set forth

by the PRDE, the entire process was to span no more than four
months.

It began on June 11, 2010, the deadline for submitting an

RFQ application, and ended on October 15, 2010, the date on which
the PRDE would enter into an SES contract with the second provider
identified on the form SES-101 if the preferred provider had not
begun administering tutoring services to the relevant student.

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Rocket Learning submitted its certification proposal for
the 2010-2011 academic year on June 9, 2010.

The SES Manual in

place at that time, the "Old Manual," limited the kinds of prizes
that providers could award to their students as end-of-course gifts
to "medals, trophies, certificates, [and] educational materials,
such

as

educational

games,

manipulative

toys,

books,

and

dictionaries," and prohibited the promotion of any end-of-course
gifts during the enrollment process.

Importantly, neither the Old

Manual nor the RFQ application required certification proposals to
list specifically all electronic devices that would be used as part
of a provider's tutoring program.1
The
proposal

in

PRDE
August

approved
2010,

and

Rocket

Learning's

thereafter

SES

certification

providers

began

promoting their services in anticipation of the pre-enrollment
process. Despite the Old Manual's restrictions, some SES providers
sought to entice potential students during this period by offering
electronic devices as end-of-course gifts, making these providers

1

The RFQ application did require certification proposals to
describe the provider's teaching methodology, including any
"teaching material[s]" that the provider planned on using in its
tutoring modules.
See, e.g., R. App. at 428 ("Describe any
additional teaching material you plan on using and have not
described before.
50 word limit."); id. at 429 ("Evidence the
educational teaching materials by grade and by subject that
correspond to the students' needs that have been identified.").
The Old Manual also required providers to maintain a "bank of
curricula and/or teaching modules[,]" including the "educational
materials for each module or curriculum."
R. App. at 452.
However, the Old Manual did not state whether or where these
teaching materials had to be disclosed.
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more attractive. The SES Providers Association -- a not-for-profit
organization to which most of the Commonwealth's SES providers
belong, including the appellant -- sent a letter to the PRDE
informing

it

of

these

improper

promotional

activities

and

requesting that the agency enforce the Old Manual.
On September 28, 2010, defendant Jesús Rivera-Sánchez
(the "Secretary") issued a superseding version of the SES Manual,
the "New Manual."

The New Manual required for the first time that

all technological devices to be used in a provider's teaching
process be specified in its certification proposal.

It also

amended the Old Manual's provision concerning end-of-course gifts,
first by explicitly stating that "[o]ffering incentives during the
enrollment [process] . . . is strictly prohibited[,]" and second by
removing the sentence stating that the giving of "[a]ny other [endof-course] article or gift [not listed in the SES Manual] is
strictly prohibited."

Notwithstanding these changes, the PRDE did

not request that providers submit amended certification proposals
consistent with the New Manual.
The pre-enrollment process took place between October 4
and October 21, 2010.

According to the complaint, approximately

eight of the fifty participating SES providers disregarded the New
Manual's prohibition on the promotion of end-of-course electronic
gifts. These organizations experienced considerable increases over
their traditional enrollment numbers, while the remaining providers

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suffered corresponding enrollment decreases.

Entry ID: 5726914

Following written

protests and a demonstration at the PRDE's headquarters, the
Secretary met on October 20, 2010 with some of the SES providers
disadvantaged during this pre-enrollment process.
The PRDE annulled the first pre-enrollment period on
November 4, 2010, and scheduled a second for December 6 through
December

10,

2010.

On

November

16,

the

PRDE

circulated

a

questionnaire by email to a group of approximately twenty-five SES
providers

to

clarify

the

relationship

between

the

electronic

devices included or referred to in their respective original
certification proposals and the provider's instructional services.
The

PRDE's

Technology

and

Curriculum

Unit

evaluated

each

organization's answers to determine whether, for purposes of the
SES Manual, the technological devices in question constituted
"educational material" that could be promoted during the enrollment
process.

Rocket Learning was not among the recipients of the

November 16 email, although its proposal did include as teaching
materials the use of audiobooks, videos, and music requiring the
use of electronic devices.
On December 4, 2010, two days before the start of the
second pre-enrollment period, the PRDE published a full-page ad in
a local newspaper notifying eligible students that they could
retain any of the educational materials, including technological
devices, that they used during the SES program.

-7-

The PRDE also sent

Case: 12-1642

a

Document: 00116518358

December

6

"educational

email

instructing

material

[certification

Page: 8

Date Filed: 04/18/2013

all

specifically

proposal] . .

.

certified

included

[would]

in

Entry ID: 5726914

providers
the

not be

that

provider's

considered an

incentive or reward for purposes of compliance with the rules of
the Department of Education[,]" and therefore could be promoted and
given away as end-of-course gifts.
As

a

result

of

these

various

changes,

only

those

providers that had received the November 16 email were permitted to
promote electronic

devices

process.

close

At

the

during
of

the

this

December pre-enrollment

process,

Rocket

Learning's

enrollment numbers had fallen by approximately fifty to sixty
percent from the previous year's.
II.
Within days, on December 21, 2010, Rocket Learning, along
with four other SES providers (collectively, "plaintiffs"), filed
suit

against

capacities,

the

Secretary,

alleging

that

in

the

his
PRDE

personal
had

and

official

intentionally

and

arbitrarily favored a select number of certified providers during
the 2010-2011 SES enrollment process, depriving the plaintiffs of
their

constitutional

rights

to

equal

protection

of

the

law,

substantive and procedural due process, and commercial free speech.
The plaintiffs sought injunctive relief and monetary damages,
pursuant to 42 U.S.C. § 1983, and a declaratory judgment finding

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the Secretary's actions unconstitutional, pursuant to 28 U.S.C. § 2201.
On the same day, the plaintiffs also filed a motion for
a preliminary injunction, see Fed. R. Civ. P. 65(a), which was
referred

to

defendant's

a

magistrate

motion

to

judge

along

with

dismiss,

filed

on

that

part

January

concerning the court's subject matter jurisdiction.

of

18,

the

2011,

On February

12, 2011, the magistrate judge issued a Report and Recommendation
advising the district court to deny both motions.

In relevant

part, the magistrate judge found that some of the plaintiffs,
including Rocket Learning, had shown a likelihood of success on
only

their

equal

protection

claim,

but

that

a

preliminary

injunction was nonetheless inappropriate because the plaintiffs'
injuries arising
district

court

from
adopted

that claim
the

were not

magistrate

irreparable.

judge's

findings

The
and

recommendations in full on March 24, 2011.
After the plaintiffs filed an amended complaint2 on March
25, 2011, the defendant renewed his motion to dismiss under Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), arguing that (1) the complaint
failed to articulate a plausible § 1983 claim for any of the
alleged constitutional violations, (2) declaratory and monetary
relief against the Secretary in his official capacity were barred

2

The plaintiffs amended their complaint to allow plaintiff
Learning Alliances, LLC, to specify "the real damages [it] suffered
. . . because of the arbitrary and discriminatory actions of the
Secretary of the [PRDE]." This amendment does not bear on Rocket
Learning's appeal.
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by the Eleventh Amendment, and (3) the Secretary was entitled to
qualified immunity on the plaintiffs' individual capacity claims.
The matter was again referred to the same magistrate judge.
On August 13, 2011, the magistrate judge issued a Report
and Recommendation advising the district court to dismiss all
claims3 except for the plaintiffs' equal protection claim against
the Secretary in his personal capacity.4

Rocket Learning, Inc. v.

Sánchez, Civil No. 10-2252(FAB), 2011 WL 7645795, at *14 (D.P.R.
Aug.

13,

2011).

After

the

parties

filed

their

respective

objections to the Report and Recommendation, the district court, on
de novo review, issued an opinion and judgment on March 30, 2012,

3

The magistrate judge concluded that the plaintiffs' claims
for relief against the Secretary in his official capacity were moot
or foreclosed by the Eleventh Amendment, Rocket Learning, Inc. v.
Sánchez, Civil No. 10-2252(FAB), 2011 WL 7645795, at *5, *14
(D.P.R. Aug. 13, 2011), and that the plaintiffs had failed to state
a claim on their due process and commercial free speech claims
against the Secretary in his personal capacity, id. at *11-13.
4

As to that claim, the magistrate judge found that the
plaintiffs
had
sufficiently
alleged
(a)
that
they
were
"substantially similar to other providers that included technology
in their proposals and that received the November 2010 e-mail," id.
at *8, (b) that the Secretary had "intentionally discriminated
against them" during the 2010-2011 enrollment process by not
allowing the plaintiffs to promote electronic devices as end-ofcourse gifts, id. at *9-10, and (c) that the Secretary's procedures
in so doing were, "at times, retroactive" and "irrational," id. at
*10. Moreover, the magistrate judge concluded that the Secretary
was not entitled to qualified immunity because he could not have
reasonably thought that treating the plaintiffs in an arbitrary and
irrational way was consistent with the Equal Protection Clause.
Id. at *14.
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dismissing the complaint in its entirety. Rocket Learning, Inc. v.
Rivera-Sánchez, 851 F. Supp. 2d 384, 397-98 (D.P.R. 2012).
Contrary to the magistrate judge, the district court
found that the plaintiffs failed to state an equal protection
claim.

Specifically, the court found that the plaintiffs had not

shown: (1) that they were similarly situated to the provider
recipients of the November 16 email that were allowed to promote
electronic devices, id. at 393; (2) that there was no rational
basis for the Secretary's actions, id. at 393-94; and (3) that the
Secretary possessed the requisite discriminatory intent to support
an equal protection claim, id. at 395.

Additionally, because the

plaintiffs failed to establish a viable equal protection claim, the
district court found that the issue of qualified immunity was moot.
Id. at 397.

This timely appeal followed.
III.

Rocket Learning challenges only the district court's
dismissal of the three constitutional claims for money damages
alleged as the basis for its § 1983 action against the Secretary in
his personal capacity.

We review a dismissal for failure to state

a claim de novo, accepting all well-pleaded facts as true and
drawing

all

reasonable

inferences

in

the

plaintiff's

favor.

Eldredge v. Town of Falmouth, 662 F.3d 100, 104 (1st Cir. 2011).
"To

survive

a

motion

to

dismiss,

a

complaint

must

contain

sufficient factual matter, accepted as true, to 'state a claim to

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relief that is plausible on its face.'"

Entry ID: 5726914

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Defendant
concluded

that

the

asserts

that

complaint

the

failed

district
to

court

allege

properly

any

plausible

constitutional violation. Alternatively, the Secretary argues that
even if the complaint had done so, it was properly dismissed
because he was entitled to qualified immunity.
"In reviewing a Rule 12(b)(6) dismissal, 'we are not
wedded to the [district] court's rationale and may affirm . . . on
any basis made apparent from the record.'"

Cook v. Gates, 528 F.3d

42, 48 (1st Cir. 2008) (first alteration in original) (quoting
McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006)); see also
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 429 (1st Cir. 2010);
Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).
We

affirm

on

the

ground

that

the

defendant

was

entitled

to

qualified immunity.

See Sanchez v. Pereira-Castillo, 590 F.3d 31,

52 (1st Cir. 2009);

Beckles v. City of New York, 492 F. App'x 181,

182 (2d Cir. 2012).
A.

The Doctrine of Qualified Immunity
The doctrine of qualified immunity protects a state

official from liability for damages under § 1983 where her conduct
did "not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."

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Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982); see Limone v. Condon, 372
F.3d 39, 44 (1st Cir. 2004).

Because the doctrine serves as "an

immunity from suit rather than a mere defense to liability[,] . . .
it is effectively lost if a case is erroneously permitted to go to
trial."

Mitchell

v.

Forsyth,

472

U.S.

511,

526

(1985).

Accordingly, qualified immunity should be resolved at the earliest
possible stage of litigation. Maldonado v. Fontanes, 568 F.3d 263,
268 (1st Cir. 2009).
The two-step procedure for assessing a plea of qualified
immunity at the motion to dismiss stage is well-rehearsed.

See,

e.g., Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 532-33
(1st Cir. 2011); Eldredge, 662 F.3d at 104-05.

On the basis of the

pleadings, we must decide "(1) whether the facts alleged or shown
by the plaintiff make out a violation of a constitutional right;
and (2) if so, whether the right was 'clearly established' at the
time of the defendant's alleged violation." Maldonado, 568 F.3d at
269 (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
The "clearly established" inquiry, in turn, has two
related aspects.

One aspect focuses exclusively on the clarity of

the law at the time of the alleged violation.
qualified

immunity,

'[t]he

contours

of

the

"To overcome
right

must

be

sufficiently clear that a reasonable official would understand that
what he is doing violates that right.'"

Id. (alteration in

original) (quoting Anderson v. Creigton, 483 U.S. 635, 640 (1987)).

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The other aspect considers the specific facts of the case at bar.
The "clearly established" inquiry "must be undertaken in light of
the

specific

proposition."

context

of

Brosseau

the
v.

case,

Haugen,

not
543

as

a

broad

U.S. 194,

general

198

(2004)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (internal
quotation marks omitted).

Thus, "[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable [official] that his
conduct was unlawful in the situation he confronted."

Maldonado,

568 F.3d at 269 (first alteration in original) (emphasis added)
(quoting Brosseau, 543 U.S. at 199) (internal quotation marks
omitted).
In Pearson v. Callahan, 555 U.S. 223, the Supreme Court
recognized that "[w]hen qualified immunity is asserted at the
pleading stage, the precise factual basis for the plaintiff's claim
or claims may be hard to identify."

Id. at 238-39.

As such,

federal courts have discretion to administer the components of the
qualified immunity test in the order that they determine "will best
facilitate the fair and efficient disposition of each case."
at 242.

Id.

Where the court can "quickly and easily decide that there

was no violation of clearly established law," it need not "turn[]
to the more difficult question [of] whether the relevant facts make
out a constitutional question at all."

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Id. at 239.

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The Equal Protection Claim
Rocket Learning argues that the Secretary violated the

Equal Protection Clause of the Fourteenth Amendment by improperly
favoring a select group of SES providers during the 2010-2011
enrollment process.5

Specifically, the complaint asserts that, by

way of the PRDE's November 16 and December 6 emails, the Secretary
arbitrarily created two classes of otherwise similarly situated
providers: those permitted to promote and award electronic devices
and

those

not

so

permitted.

This

classification,

appellant

contends, was "wholly irrelevant" to the purposes of the SES
program and

cannot

withstand

even

the

lowest

level

of equal

protection scrutiny.6

5

In connection with its equal protection claim, Rocket
Learning also asserts that the district court erred by declining to
consider the preliminary injunction hearing record. We disagree.
It is well established that at the motion to dismiss stage, "any
consideration of documents not attached to the complaint, or not
expressly incorporated therein, is forbidden, unless the proceeding
is properly converted into one for summary judgment under Rule 56."
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see Fed. R. Civ.
P. 12(d). The plaintiffs did not request such a conversion before
the magistrate judge, Rocket Learning, 2011 WL 7645795, at *6, and
we conclude, as the district court did, that the preliminary
injunction record does not fall within any of the narrow exceptions
to this rule, Rocket Learning, 851 F. Supp. 2d at 391; see also
Watterson, 987 F.2d at 3-4 (describing exceptions and collecting
cases).
6

Classifications that impinge on "fundamental rights,"
including free speech rights, are subject to strict scrutiny and
will only be upheld if "precisely tailored to serve a compelling
governmental interest." Plyler v. Doe, 457 U.S. 202, 217 (1982).
Rocket Learning argues unpersuasively that this court should apply
strict scrutiny to the Secretary's purported classification system,
which incidentally restricted the plaintiffs' speech-related
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The Equal Protection Clause requires that "all persons
similarly situated . . . be treated alike."

City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see Tapalian v.
Tusino, 377 F.3d 1, 5 (1st Cir. 2004).

Accordingly, to establish

a plausible equal protection claim, a plaintiff not relying on
typically

impermissible bases

for

classification

(e.g.,

race,

religion, etc.) must show that it was "intentionally treated
differently from others similarly situated, that no rational basis
exist[ed] for that difference in treatment, and that the different
treatment was based on a malicious or bad faith intent to injure."
Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006).
The district court concluded that Rocket Learning failed
to state a plausible equal protection claim. We do not decide that
question.

Rather, the appellant's claim falters on the "clearly

established" prong of the qualified immunity test. The record
establishes that a reasonable official in the Secretary's position
could have rationally concluded that his actions were consistent
with the Constitution.
At the time Rocket Learning submitted its SES proposal,
the RFQ application required providers to describe any "teaching
material[s]" that they intended to use as part of their tutoring

promotional activities. For reasons set forth in our discussion of
Rocket Learning's commercial free speech claim, and in keeping with
the decisions of both the magistrate and district court judges, we
decline to do so. See Rocket Learning, 851 F. Supp. 2d at 394;
Rocket Learning, 2011 WL 7645795, at *9.
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services, and the Old Manual, in turn, permitted these materials to
be awarded as end-of-course gifts.

See supra note 1.

On the

Secretary's account, these rules promoted the PRDE's legitimate
interest in ensuring that guardians selected providers during preenrollment based upon the merits of their educational services,
rather than the quality of their giveaways.
When presented with allegations just weeks before the
first pre-enrollment process that some providers were violating
these rules, the Secretary set out to clarify the contours of the
rules and to determine whether the allegations were true.

The

Secretary invalidated the first round of pre-enrollment and set up
a second, creating time pressures on all, including himself, to
conduct a new certification inquiry aimed at assessing which
providers should be permitted to promote and award electronic
devices as "educational material[s]."
The Secretary asserts that Rocket Learning was not among
the recipients of the November 16 email because it had not included
the sorts of electronic devices in its certification proposal that
warranted additional inquiry.

Although Rocket Learning's proposal

did indicate its intention to use music, videos, and audiobooks for
some of its tutorial modules, it did not describe the types or
quantities of technological devices that students would use to play
these materials. For example, the defendant points out that "since
the use of one CD player is enough to provide music or to play the

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audio-book for a whole classroom," it would be unreasonable for the
PRDE to assume "that plaintiffs intended to give a CD player to
each student."

As such, the Secretary did not view the plaintiffs

as within the category intended to receive the email.
At first blush, the Secretary's explanation for his
decision is not unreasonable. Indeed, the district court concluded
that

the

explanation

was

sufficient

to

establish

that

the

plaintiffs had not shown themselves to be similarly situated to the
recipients of the November 16 email. Rocket Learning, 851 F. Supp.
2d at 393.

We agree that a reasonable official in the Secretary's

position could think that the groups were not similarly situated.
But even if we found that the groups were similarly situated, that
would not, taken alone, defeat qualified immunity.
Rocket Learning was also required to show that, in
misapplying the prohibitions in question, the Secretary acted with
a discriminatory purpose, which "implies that the decisionmaker
. . . selected or reaffirmed a particular course of action at least
in part 'because of,' not merely 'in spite of,' its adverse effects
upon an identifiable group."
U.S. 256, 279 (1979).

Pers. Adm'r of Mass. v. Feeney, 442

The appellant acknowledges that at this

stage of the litigation, it has not uncovered the "real motivation"
for the

Secretary's

purportedly

irrational

and discriminatory

conduct. Rocket Learning, 851 F. Supp. 2d at 395.

Instead, Rocket

Learning asks the court to infer the existence of an improper

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motivation

from

the

Page: 19

Secretary's

Date Filed: 04/18/2013

last-minute

rule

Entry ID: 5726914

changes

and

retroactive application of the New Manual's provisions.
The PRDE does not say that its administration of the
2010-2011

SES

inadequacies

enrollment
existed

process

against

was

the

ideal.

backdrop

However,
of

the

these

exigent

circumstances the Secretary faced, the PRDE's legitimate interest
in enforcing the prohibitions in question, and the seemingly nondiscriminatory

explanation

that

the

Secretary

furnished

for

treating the appellant as he did.
This court has recognized that the "malice/bad faith
standard should be scrupulously met," Yerardi's Moody St. Rest. &
Lounge, Inc. v. Bd. of Selectmen of Town of Randolph, 932 F.2d 89,
94 (1st Cir. 1991) (quoting LeClair v. Saunders, 627 F.2d 606, 611
(2d Cir. 1980)) (internal quotation mark omitted), and that cases
satisfying this standard are "infrequent," id.

With this in mind,

and in light of the idiosyncratic circumstances surrounding the
2010-2011 SES enrollment process, we conclude that the appellant's
allegations were insufficient to show that the Secretary's actions
violated clearly established law under the second prong of the
qualified immunity test.
C.

The Procedural Due Process Claim
Rocket Learning also claims that the Secretary violated

the procedural component of the Fourteenth Amendment's Due Process

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Clause.7

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To establish a procedural due process violation, a

plaintiff must show that (1) it was deprived of a protected
property

interest,

and

(2)

the

procedures

attendant

to

that

deprivation were constitutionally inadequate. See González-Fuentes
v. Molina, 607 F.3d 864, 886 (1st Cir. 2010); Marrero-Gutierrez v.
Molina, 491 F.3d 1, 8 (1st Cir. 2007).
Rocket Learning asserts a property right, arising from
its

SES

certification,

to

participate

discriminatory pre-enrollment process.

in

a

fair

and

non-

The Secretary is said to

have deprived the appellant of this property interest without the
process due by failing to provide the appellant with adequate
notice of the changes regarding the prohibitions on promoting and
awarding electronic devices or with an opportunity to challenge the
allegedly discriminatory enforcement of these changes.

See Rocket

Learning, 851 F. Supp. 2d at 395.
The district court rejected this claim, finding that,
under Puerto Rico law, "a bidder for a contract with the government
does not acquire a property interest until the contract has been
formalized."

Id. (emphasis added).

The district court relied on

the Supreme Court of Puerto Rico's decision in Cancel v. Municipio
de San Juan, 1 P.R. Offic. Trans. 416 (1973).

7

There, an initially

While the complaint alleged violations of both the
procedural and substantive components of the Due Process Clause,
Rocket Learning has challenged only the district court's dismissal
of its procedural due process claim.
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successful bidder for a government contract sought to enjoin the
Municipality of San Juan from subsequently awarding that contract
to another bidder.

The court dismissed the case, holding that

Cancel had no claim to entitlement because "an agency has the right
to

revoke

the

award

of

a

contract

at

corresponding contract is entered into."
Cussiniano

v.

Commonwealth,

100

any

time

before

the

Id. at 422 (quoting

P.R.R.

333

(P.R.

1971)).

Similarly, in the circumstances of this case, the PRDE would not
enter into a contract with Rocket Learning until one or more
students actually enrolled in its tutoring program, i.e., after the
pre-enrollment process was already completed.
Rocket Learning attempts to distinguish Cancel, arguing
that its SES certification is more akin to a license than a
contract, and relying on a series of cases recognizing that a
state-issued license may vest in its recipient a property interest
in the rights granted therein.

See, e.g., Bell v. Burson, 402 U.S.

535, 539 (1971); González-Droz v. González-Colón, 660 F.3d 1, 13
(1st Cir. 2011); Indus. Safety Equip. Ass'n, Inc. v. EPA, 837 F.2d
1115, 1121 (D.C. Cir. 1988).

This argument, not raised in the

district court, see Rocket Learning, 851 F. Supp. 2d at 395-96
("[P]laintiffs do not attempt to distinguish Cancel from the
situation before the Court . . . ."), is unpersuasive.
Each of the cases cited involved a formally issued
license or certification that unambiguously conferred some property

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interests to its owner.

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See, e.g., Indus. Safety Equip., 837 F.2d

at 1122 ("There is no question that appellants possess cognizable
property

interests

in

their

respirator

certifications.").

Additionally, in Bell and González-Droz, it was also clear that the
state

had

deprived

the

plaintiff

of

the

particular

property

interest at issue because the license had been revoked entirely.
Bell, 402 U.S. at 539 (suspension of driver's license); GonzálezDroz, 660 F.3d at 7 (suspension of medical license).8
In contrast, Rocket Learning cites no authority treating
SES certifications as state-issued licenses, let alone licenses
conferring

a

property

enrollment procedure.

interest in

a

particular

type

of

pre-

Even if the appellant had done so, and had

shown that the PRDE deprived it of this right,9 there is nothing in

8

Indeed, to the extent the appellant's claim is at all like
the cited cases, it is most similar to Industrial Safety, in which
the D.C. Circuit concluded that the plaintiffs were not deprived of
any property interest secured by their certifications to sell
certain asbestos-protection respirators after the EPA published a
guide suggesting that these respirators were less effective than
others available on the market. See 837 F.2d at 1122 ("The EPA
. . . [has] not revoked any certificates; rather, [it has] only
introduced new information into the market with a possible effect
on competition.").
9

Before the district court, the plaintiffs argued that the
Secretary's actions amounted to a "de facto" decertification,
claiming that
"their
SES
certification
[was]
essentially
'worthless' without the opportunity to compete with other
providers--on equal terms--to enroll students in their programs."
Rocket Learning, 2011 WL 7645795, at *11. The appellant has not
attempted to develop this argument on appeal, however, and so it is
waived. See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687
F.3d 465, 492 (1st Cir. 2012), cert. denied, 2013 WL 1091770 (U.S.
Mar. 18, 2013) (finding due process claim waived where "[b]asic
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record

to

suggest

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that

Date Filed: 04/18/2013

the

process

attendant

Entry ID: 5726914

to

that

deprivation fell short of any requirements announced under clearly
established law.

Indeed, Rocket Learning offers no authority,

either

relevant

from

the

case

law

or

from

the

PRDE's

own

publications concerning the SES program, announcing procedural
guarantees in excess of those employed by the Secretary.10
Since the property interest asserted here is dubious, and
there has been no showing that the process attendant to its alleged
deprivation

was

allegations

do

deficient,
not

support

we
a

conclude
plausible

that

the

appellant's

due process

claim as

required under the first prong of the qualified immunity test.
D.

The Commercial Speech Claim
We more quickly dispatch Rocket Learning's remaining

claim that the Secretary violated its First Amendment commercial
speech rights. Commercial speech, or "expression related solely to
the economic

interests

of

the

speaker

and

its

audience," is

ordinarily accorded less First Amendment protection than are other
forms of constitutionally guaranteed expression.

El Día, Inc. v.

P.R. Dep't of Consumer Affairs, 413 F.3d 110, 115 (1st Cir. 2005)
(quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of

issues necessary
developed).

to

assess

[it]"

10

had

not

been

addressed

or

Moreover, as the Secretary highlights, there is no dispute
that the RFQ application permitted the PRDE to ask for
clarification regarding SES certification proposals.
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N.Y., 447 U.S. 557, 561 (1980)) (internal quotation marks omitted).
Nonetheless, under the Central Hudson framework, where it is
"neither misleading nor related to unlawful activity," commercial
speech is safeguarded from unwarranted government intrusion.

447

U.S. at 564.
Rocket Learning appears to assert that it had a First
Amendment right to promote electronic devices as end-of-course
gifts during the December pre-enrollment process, and the Secretary
admits that he restricted the appellant's promotional activities in
this regard.
magistrate

See Rocket Learning, 2011 WL 7645795, at *13.
judge

recognized,

however,

this

As the

restriction

was

incidental to the Secretary's interpretation and enforcement of the
New Manual's rule governing the awarding of end-of-course gifts.
Because

the

Secretary

concluded

that

the

electronic

devices

described in the plaintiffs' SES certification proposals were not
awardable

as

end-of-course

gifts,

the

plaintiffs

were

also

disallowed from promoting those devices during pre-enrollment. Id.
Moreover, the complaint did not allege that the plaintiffs were
prevented from informing guardians or students about any of "the
approved aspects of their [SES certification] proposals."
The

district

court

dismissed

the

plaintiffs'

Amendment claim on this basis, explaining that:
[I]f, as this Court
did not include the
in their proposals
could be given away

has determined, plaintiffs
type of electronic devices
that defendant understood
as gifts to students, they
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First

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were not only banned from the underlying
activity of gift-giving, but they were also
banned from promoting the giving away of
gifts, as allowing the latter without the
former would clearly be misleading, and thus
in violation of the first prong of the Central
Hudson test.
Rocket Learning, 851 F. Supp. 2d at 396-97 (citing Central Hudson,
447 U.S. at 566 ("For commercial speech to come within [the First
Amendment's protections], it at least must concern lawful activity
and not be misleading." (emphasis added))); see also Va. State Bd.
of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
771 (1976) ("Untruthful speech, commercial or otherwise, has never
been protected for its own sake.").
We see no basis for disturbing the district court's wellreasoned determination. For the reasons stated above, we have also
found that the Secretary offered a rational explanation for his
decision not to allow the appellant to award electronic devices as
end-of-course gifts.

As a result, any promotion of such devices

during the December pre-enrollment process by the appellant would
necessarily mislead guardians and students, removing that promotion
from the ambit of the First Amendment.

See Wine & Spirits

Retailers, Inc. v. Rhode Island, 481 F.3d 1, 8 (1st Cir. 2007)
(recognizing that, under the Central Hudson framework, "advertising
that is actually misleading 'may be prohibited entirely'" (quoting
In re R.M.J., 455 U.S. 191, 203 (1982))).

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Accordingly,

the

Page: 26

Secretary

Date Filed: 04/18/2013

is

entitled

to

Entry ID: 5726914

qualified

immunity based upon Rocket Learning's failure to articulate a
plausible First Amendment violation.
IV.
The judgment of the district court is affirmed.

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