Acevedo-Concepcion et al v. Irizarry-Mendez et al

Filing 65

OPINION AND ORDER GRANTING 55 MOTION for Summary Judgment on grounds not raised in that motion. The parties have until July 10, 2013 to file simultaneous briefs, as detailed in the Opinion. Simultaneous memoranda due by 7/10/2013.Signed by Judge Jay A Garcia-Gregory on 6/25/2013.(RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ACEVEDO-CONCEPCIÓN, et al,
Plaintiffs,
v.

CIVIL NO. 09-2133 (JAG)

IRIZARRY-MÉNDEZ, et al,
Defendants.

OPINION & ORDER
Garcia-Gregory, D.J.
Pending

before

the

Court

is

the

Defendants’

motion

for

summary judgment. (Docket No. 55). Plaintiffs timely opposed.
(Docket No. 61). For the reasons that follow, the Court GRANTS
judgment independent of Defendant’s motion under Fed. R. Civ. P.
56(f)(2).1
STANDARD OF LAW
Federal Rule of Civil Procedure 56 states, in pertinent
part,

that

pleadings,

a

court

may

depositions,

grant

summary

answers

to

judgment

only

if

“the

interrogatories,

and

1

Rule 56(f)(2) allows a trial court to grant summary judgment on
grounds not raised by the movant. A court issuing such a
judgment must provide “notice and a reasonable time to respond.”
Id. Therefore, the Court will grant the parties 14 days from the
date of entry of this opinion to file any objections to the
same.

CIVIL NO. 09-2133 (JAG)

2

admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see also Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).
Summary judgment is appropriate if “there is no genuine
issue

as

to

any

material

fact

and

...

the

moving

party

is

entitled to a judgment as a matter of law.” See Fed.R.Civ.P.
56(c). The party moving for summary judgment bears the burden of
showing the absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In

order

for

a

factual

controversy

to

prevent

summary

judgment, the contested facts must be “material” and the dispute
must be “genuine.” “Material” means that a contested fact has
the potential to change the outcome of the suit under governing
law. The issue is “genuine” when a reasonable jury could return
a verdict for the nonmoving party based on the evidence. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is
well

settled

that

“[t]he

mere

existence

of

a

scintilla

of

evidence” is insufficient to defeat a properly supported motion
for summary judgment. Id. at 252. It is therefore necessary that
“a

party

opposing

summary

judgment

must

present

definite,

CIVIL NO. 09-2133 (JAG)
competent

evidence

to

3
rebut

the

motion.”

Maldonado-Denis

v.

Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
In making this assessment, the court “must view the entire
record

in

the

light

most

hospitable

to

the

party

opposing

summary judgment, indulging in all reasonable inferences in that
party's favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The court may safely ignore “conclusory allegations,
improbable

inferences,

and

unsupported

speculation.”

Medina-

Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
BACKGROUND
The uncontested facts, as set forth in Defendants’ Motion
for

Summary

Judgment

and

admitted

by

Plaintiffs,

read

as

follows:
1. Plaintiffs were appointed as career employees of the Family
Department between July 1, 2008 and September 4, 2008.
2.

On

March

9,

2009

former

Governor

Luis

A.

Fortuño

Burset

signed into Law Act 7 of March 9, 2009 (Act 7).
3. Act 7 empowered government agencies, including the Family
Department to dismiss thousands of government employees such as
plaintiffs.

CIVIL NO. 09-2133 (JAG)

4

4. On or about May 29, 2009 co-defendant Irizarry handed letters
to

plaintiffs

removing

them

from

their

position

within

the

Family Department.
5. Plaintiffs held career positions within the Family Department
until July 10, 2009.
6.

None

of

the

plaintiffs

had

worked

within

the

Family

Department for more than one (1) year and ten (10) days.
7. The dismissal of plaintiffs was authorized by Act 7.
8. Section 37.04 of Act 7 details the procedures and rights
plaintiffs had regarding their layoffs.
9. JREF means the Fiscal Restructuring and Stabilization Board
created pursuant to Section 37.04(b)(5) of Act 7, which was
created to achieve the objectives of Chapter 3 of Act 7, and
which was entrusted with taking all the necessary actions for
compliance with the same.
10.

Pursuant

to

Section

37.04(b)

3

of

Act

7

the

layoff

of

employees with a permanent or career appointment were to be
implemented by exclusive observance of the seniority criteria,
so that those who have less seniority shall be the first ones to
be laid off.

CIVIL NO. 09-2133 (JAG)

5

11. The JREF was created by Section 37.04(b)(5) of Act 7 and
included
Bank),

the

who

President

directed

the

of

the

Board,

GDB
the

(Government
Secretary

Developmental
of

Labor,

the

Secretary of the Department of Economic Development and Commerce
of Puerto Rico, the Secretary of the Department of the Treasury
of Puerto Rico and the Executive Director of OMB (Office of
Management and Budget).
12.

The

JREF

had

the

powers

necessary

and

convenient

to

undertake the tasks entrusted to it by Act 7, including but not
limited to conduct or direct the agencies or departments that
are in its charge, to conduct the needed studies; require of the
agencies the information needed to perform its tasks.
13. The JREF was tasked with the responsibility of determining
the total number of employees to be laid off.
14. Pursuant to Act 7 the agencies had to identify and certify
the seniority of each of its employees to the JREF within a term
not greater than fifteen (15) calendar days after the beginning
of Phase II. In that same term the agencies had to certify in
writing and individually, the date of seniority as it appears in
their records to affected employees.
15. The affected employee had thirty (30) calendar days as of
the day of notification, to present in writing to the agency

CIVIL NO. 09-2133 (JAG)

6

documentary evidence issued by competent authority or government
entity which refuted the certified seniority.
16. If the employee did not refute the seniority determination,
said seniority was conclusive for all purposes pertaining to
Chapter III of Act 7.
17. If the affected employee disputed the seniority, the agency
was

not

able

to

make

a

final

determination

without

first

granting a hearing to the employee.
18. If affected by the determination of the agency, the employee
could

request

review

by

CASARH

(Spanish

acronym

for

Appeals

Commission of the Public Service Human Resources Administration
System) of the final determination made by the agency solely as
to his/her seniority, pursuant to the provisions of Article 13,
section

13.14

of

Act

No.

184

of

August

3,

2004,

and

its

regulations.
19. The layoffs implemented under Phase II of Act 7 started July
1, 2009 and the JREF established the order in which the layoffs
would be implemented.
20. A criterion of 13.6 years of service was established by the
JREF as the cutoff date to lay off employees pursuant to Phase
II of Act 7.

CIVIL NO. 09-2133 (JAG)

7
DISCUSSION

The Scope of the Court’s Ruling on the Motion to Dismiss
In

their

complaint,

plaintiffs

named

as

co-defendants

Yanitsia Irizarry-Mendez, in her personal and official capacity
as

the

then-Secretary

of

the

Family

Department;

and

Esteban

Pérez Ubieta, in his personal and official capacity as the thenAdministrator

of

the

Family

Department.

Plaintiffs

pressed

claims of political discrimination, and charged Defendants with
violating their rights to due process under the Constitution of
the United States. Plaintiffs also brought claims under Puerto
Rico

law.

Plaintiffs

sought

money

damages,

along

with

an

injunction ordering Defendants to reinstate Plaintiffs to their
jobs. (Docket No. 1). Defendants moved to dismiss.
On December 29, 2011, the Court dismissed with prejudice
all of Plaintiffs’ claims except their procedural due process
claim against Defendants in their official capacity. In doing
so,

the

Court

found

that

Plaintiffs

due

process

claim

was

plausible because, in essence, Defendants did not follow the
layoff procedure contemplated by Act 7 before terminating the
employees.2 The Court also determined that sovereign immunity

2

Specifically, the complaint stressed that Act 7 authorized the
dismissal of employees strictly on a seniority basis (Docket No.
1, p. 6); that no seniority lists were provided to Plaintiffs in
order to ascertain whether their seniority status had been
properly recognized (Id.); that the Government had failed to
make a study of seniority status before determining who would be

CIVIL NO. 09-2133 (JAG)
barred

Plaintiffs’

8

claims

for

monetary

compensation

against

Defendants in their official capacity but not Plaintiffs’ claims
for “prospective injunctive and declaratory relief on the basis
of federal law.” (Docket No. 26).
Now, Defendants argue that the motion to dismiss left no
surviving claims against the Defendants because the complaint
did

not

plausibly

establish

a

causal

connection

between

Defendants and the alleged unconstitutional action. (Docket No.
55).

Defendants,

however,

misconstrue

the

language

the

Court

used to dismiss the claims against Defendants in their personal
capacity by trying to apply the same reasoning to the claims
against

Defendants

in

their

official

capacity.

This

argument

disregards the fact that those are two different claims with two
different

standards.

That

the

Court

dismissed

the

personal

capacity claim has no bearing on the official capacity claim.
In order to sustain an official-capacity claim against a
government

official

for

enforcing

a

state

law

in

an

unconstitutional manner, the complaint must allege, merely, that
the official had “some connection with the enforcement of the
act.” Ex parte Young, 209 U.S. 123, 157 (1908). This standard is
met

here.

Simply

put,

Defendants

signed

the

Plaintiffs’

dismissed (Id.); and that the Government did not afford
Plaintiffs an opportunity to question the decision to terminate
them based on their alleged seniority status. (Id.).

CIVIL NO. 09-2133 (JAG)

9

dismissal letters, as authorized by Act 7. Though this action,
taken alone, was not enough to establish the type of involvement
required to impose personal liability, the Court finds it is
more than enough to show they had “some connection” with the
enforcement of the act. Thus, Plaintiffs’ official-capacity suit
against Defendants survived the Motion to Dismiss.
Rule 25 Substitution
Even though Defendants no longer hold their positions as
Secretary and Administrator of the Family Department the suit
can continue against them pursuant to Rule 25(c) which states
“if an interest is transferred, the action may be continued by
or

against

orders

the

Fed.R.Civ.P.

the

original

transferee
25(c).

party
to

Rule

be
25(c)

unless

the

court,

substituted
requires

no

in

on

the

action

motion,
action.”
after

a

transfer of interest; the judgment will bind the successor of
the interest even if he is not named. See, e.g., In re Bernal,
207 F.3d 595, 598 (9th Cir. 2000). Therefore, the claim can
continue against current Defendants and it will be binding upon
the current officials of the Family Department.
Eleventh Amendment State Sovereign Immunity
Defendants next argue that they are immune from suit under
the doctrine of state sovereign immunity. (Docket No. 55). The
Supreme Court has consistently held that the Eleventh Amendment

CIVIL NO. 09-2133 (JAG)

10

provides immunity to an unconsenting State from suits brought in
federal courts by her own citizens as well as by citizens of
another state. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
This immunity extends to Puerto Rico in the same manner, and to
the

same

extent,

as

it

does

to

States.

De

León

López

v.

Corporación Insular de Seguros, 931 F.2d 116, 121 (1st Cir.
1991). Furthermore, the Eleventh Amendment may bar actions in
which the State is not a named party. See Ford Motor Co. v.
Dep’t of Treasury of Indiana, 323 U.S. 459 (1945) (overruled on
other

grounds).

determined

by

Whether
the

a

suit

“essential

is

one

nature

against
and

the

effect

state

is

of

the

proceeding.” Id. at 464. To illustrate, a suit is generally held
to be against the state “if the judgment sought would expend
itself on the public treasury or domain, or interfere with the
public administration.” Dugan v. Rank, 372 U.S. 609, 620 (1963).
Yet, the Eleventh Amendment is not a trump card for any
suit; when a suit challenges the constitutionality of a state
official’s action and asks for “prospective injunctive relief,”
it is not considered to be a suit against the state. See Ex
Parte Young, 209 U.S. 123, 159-160 (1908); Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 102 (1984). Therefore, if the
conditions for the Ex Parte Young exception are met, the suit is
not barred by the Eleventh Amendment and the criteria for the

CIVIL NO. 09-2133 (JAG)

11

general rule that Defendants rely on in their motion for summary
judgment are inapplicable.
Ex Parte Young allows the Court to order an injunction
governing a state official’s future conduct, but not one that
effectively awards retroactive monetary relief. Pennhurst, 465
U.S. 89, 102-103 (1984) (restating the holding in Edelman, 415
U.S. 651, 662-63 (1974)). The typical “prospective injunctive
relief” issued under Ex Parte Young is an injunction stopping
the unconstitutional enforcement of a state law, see, e.g., 209
U.S. 123 (1908), or an order requiring a government official to
comply with federal law, see, e.g., Rosie D. ex rel. John D. v.
Swift, 310 F.3d 230 (1st Cir. 2002). Plaintiffs’ only requested
relief that might qualify as “prospective injunctive relief” is
their request for reinstatement to their prior positions.

3

The overwhelming precedent of other circuits and suggestive
language from the First Circuit indicates that reinstatement is
one type of “prospective injunctive relief” allowed under Young.4

3

  The Ex Parte Young exception to the Eleventh Amendment only
applies when state action is challenged as violating federal
law. Pennhurst, 465 U.S. 89, 106 (1984). Plaintiffs’ claim
easily satisfies this first requirement since Plaintiffs are
alleging their procedural due process rights have been violated
under the United States Constitution. 
4
Every circuit that has spoken on this issue has held that
reinstatement to a previously held position is “prospective
injunctive relief” that is not barred under the Eleventh
Amendment because of Young. See Nelson v. Univ. of Tex. at

CIVIL NO. 09-2133 (JAG)

12

However, we do not have to definitively decide this question,
because even if Plaintiffs’ claims for reinstatement are not
barred by the Eleventh Amendment, the Court finds below that
such relief is not warranted.

Dallas, 535 F.3d 318, 322-24 (5th Cir. 2008); State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96-98 (2d Cir.
2007); Meiners v. Univ. of Kan., 359 F.3d 1222, 1232-33 (10th
Cir. 2004); Koslow v. Pennsylvania, 302 F.3d 161, 179 (3d Cir.
2002); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir.
2002); Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 84042 (9th Cir. 1997); Treleven v. Univ. of Minn., 73 F.3d 816, 819
(8th Cir. 1996); Coakley v. Welch, 877 F.2d 304, 307 (4th Cir.
1989); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986). As
the court in Doe states: “reinstatement would not compensate…
reinstatement would simply prevent the prospective violation of
Doe’s rights which would result from denying him employment in
the future.” 131 F.3d 836, 841 (9th Cir. 1997).
Furthermore, First Circuit precedent strongly suggests the
Circuit would hold that reinstatement is “prospective injunctive
relief.” See Negron-Almeda v. Santiago, 579 F.3d 45 (1st Cir.
2009) (holding that this Court’s reversal of its initial
decision that claim against government official in his official
capacity for reinstatement was barred by the Eleventh Amendment
was correct because that original decision was “obviously
wrong”); Fernandez v. Chardon, 681 F.2d 42 (1st Cir. 1982) (the
Court vacated this Court’s award of back pay to plaintiffs that
had been wrongfully demoted but the First Circuit left untouched
this Court’s order that plaintiffs be reinstated to their prior
positions).

CIVIL NO. 09-2133 (JAG)

13

Whether Plaintiffs are Entitled to Reinstatement
The Supreme Court has said that a plaintiff that does not
show actual injury caused by a due process violation is only
entitled to nominal damages. Carey v. Piphus, 435 U.S. 247, 266
(1978) (holding that if plaintiffs’ suspensions were justified,
then

they

were

only

entitled

to

nominal

damages

for

the

violation of their procedural due process rights). This appears
to be the case here.
The undisputed facts state that “none of the plaintiffs had
worked within the Family Department for more than one (1) year
and ten (10) days.” (Docket No. 56, No. 6). The parties also
agree that “a criterion of 13.6 years of service was established
by the JREF as the cutoff date to lay off employees pursuant to
Phase II of Act 7.” (Docket No. 56, No. 20). It seems apparent
to

the

Court

that,

because

they

would

have

been

laid

off

pursuant to Act 7 even if they had been given a proper hearing,
Plaintiffs cannot show they were actually injured by the alleged
violation of their due process rights.
The

Court

in

Carey

was

concerned

with

precluding

the

plaintiffs from recovering compensatory damages, leaving open
the question of whether the same reasoning applies to a claim
for a prospective injunction, such as reinstatement. We believe
it does and language from the First Circuit strongly suggests

CIVIL NO. 09-2133 (JAG)

14

so. See Whalen v. Mass. Trial Court, 397 F.3d 19 (1st Cir.
2005). In Whalen, even though the First Circuit held the suit
barred on Eleventh Amendment grounds, the Court addressed the
issue of causation of the plaintiff’s injury:
A plaintiff’s entitlement to more than nominal damages
in a procedural due process case turns on whether the
constitutional violation - the failure to provide a
pre-termination opportunity to contest termination did in fact cause the harm asserted - the loss of the
job and related benefits. If Whalen would have been
terminated even after a proper hearing, he would not
be eligible for either reinstatement or damages
flowing from his unemployment.
Id. at 29 (emphasis ours). Additionally, other Circuits have
held that reinstatement is only proper when the employee would
not have been dismissed if his procedural due process rights had
been observed. See Hopkins v. Saunders, 199 F.3d 968, 979 (8th
Cir.

1999);

McGhee

v.

Draper,

639

F.2d

639,

646

(10th

Cir.

1981); cf. Brody v. Vill. Of Port Chester, 345 F.3d 103 (2d Cir.
2003), (holding that reconveyance of plaintiff’s property was
only appropriate if plaintiff could show that his property would
not have been condemned had he been given his procedural due
process).
Furthermore, reinstatement is an equitable remedy and the
decision whether to award it lies within the sound discretion of
the trial court. See Hiraldo-Cancel v. Aponte, 925 F.2d 10, 13
(1st Cir. 1991). In order to issue a permanent injunction, the

CIVIL NO. 09-2133 (JAG)
court

must

irreparable

find

15

1)

injury,

that

2)

[Plaintiffs]

that

remedies

have

suffered

available

at

law

an
are

inadequate to compensate for the injury, 3) that considering the
balance of hardships between the parties, a remedy in equity is
warranted,

and

4)

that

the

public

interest

would

not

be

disserved by the injunction. Global NAPs, Inc. v. Verizon New
England,

706

F.3d

8,

13

(1st

Cir.

2013).

Principles

of

federalism must also be taken into account in determining the
availability and scope of equitable relief. See Rizzo v. Goode,
423 U.S. 362, 379 (1976).
Assuming arguendo that the first two factors are met, the
Court finds that the latter factors dominate this analysis. The
third factor, the balance of hardships, strongly tilts in favor
of

not

granting

reinstatement.

The

only

hardship

plaintiffs

suffered was the deprivation of the hearing they were entitled
to before being stripped of their career positions. The actual
loss of their jobs does not factor in since they would have been
dismissed

regardless

of

the

hearing.

In

contrast,

if

reinstatement were issued, the Government of Puerto Rico would
be forced to give jobs to employees that would have been fired
legally.

As

the

Supreme

Court

has

said,

“it

would

be

both

inequitable and pointless to order the reinstatement of someone
the employer would have terminated, and will terminate, in any

CIVIL NO. 09-2133 (JAG)

16

event and upon lawful grounds.” McKennon v. Nashville Banner
Publ’g Co., 513 U.S. 352, 362 (1995).
In considering the fourth factor, the public interest, a
court can reference the purpose of any underlying legislation
and the public’s interest in minimizing unnecessary costs to be
met from public coffers. Aventure Commc’n Tech. v. Iowa Utils.
Bd., 734 F.Supp.2d 636, 667 (N.D. Iowa 2010). The purpose of Act
7 was to establish a comprehensive fiscal stabilization plan to
address a fiscal emergency where the Government of Puerto Rico
could not meet its operational expenses. P.R. Laws Ann. tit. 3 §
§ 8791–8810 (2009); Act 7, March 9, 2009, Docket No. 55 Ex. 2.
If

the

Court

reinstates

employees

that

did

not

meet

the

seniority requirements to survive dismissal under Act 7, the
Court would be directly thwarting this purpose. It would also be
against the public interest to force the Government to pay the
salaries

of

these

individuals

from

public

coffers

when

the

economic crisis that prompted the passage of Act 7 is still
ongoing. Given the totality of the circumstances present, the
Court holds that reinstatement is not warranted in this case.5

5

The Court notes relief may also be barred because Plaintiffs
have not exhausted all possible remedies under state law. See
Parratt v. Taylor, 451 U.S. 527, 543-44 (1908) (overruled on
other grounds); see also Gonzalez-Cancel v. Partido Nueva
Progresista, 696 F.3d 115, 120 (1st Cir. 2012). In GonzalezCancel, the First Circuit held that where a plaintiff fails to
use an adequate state process, plaintiff’s substantive due

CIVIL NO. 09-2133 (JAG)

17
CONCLUSION

For the reasons stated above, the Court GRANTS Defendants’
Motion

for

Summary

Judgment

on

grounds

not

raised

in

their

motion, pursuant to Fed. R. Civ. P. 56(f)(2). The parties are
hereby given notice and have until on or before Wednesday July
10, 2013 to file simultaneous responses solely on the issue of
whether this Court can and should enter any equitable relief,
given that the record shows Plaintiffs did not have sufficient
seniority to avoid being laid off pursuant to Act 7.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 25th day of June, 2013.
S/ Jay A. Garcia-Gregory
United States District Judge

process claim cannot survive. By analogy, a plaintiff should not
be able to bring a procedural due process claim without
exhausting all available and adequate state remedies for that
violation. According to Act 7, the Plaintiffs here had thirty
days after notification to refute their seniority determination
to the agency, which they did not do. (Docket No. 56). And
though
they
never
received
notice
of
that
specific
determination, they did receive a letter terminating them from
employment as authorized by Act 7. (Docket No. 1, ¶ 29).
Nevertheless, since we hold that no relief is warranted on other
grounds, we find it unnecessary to consider this issue any
further.