Pagan et al v. Commonwealth of Puerto Rico et al
Filing
63
OPINION AND ORDER, GRANTED 24 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Salvador E. Casellas on 1/15/2014. (AVB) Modified on 1/15/2014 to edit event title (cm).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
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AUDREY PAGAN, ET AL.,
Plaintiffs,
Civil No. 13-1029 (SEC)
v.
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COMMONWEALTH OF PUERTO RICO,
ET AL.,
Defendants.
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OPINION AND ORDER
Before the Court are the defendants’ motion to dismiss for want of subject-matter
jurisdiction (Docket # 24), and the plaintiffs’ oppositions thereto. Dockets # 34, 47. After
reviewing the filings and the applicable law, this motion is GRANTED.
Factual and Procedural Background
In this federal-question suit, the plaintiffs — husband and wife — claim sexual
harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. They sued several defendants, including plaintiff Audrey Pagan’s employer, the
Commonwealth of Puerto Rico, and the Department of Sports and Recreation (collectively, the
Commonwealth Defendants). Their complaint also contains pendent state-law claims under
Puerto Rico Law 17, which provides that sexual harassment in employment is “an illegal and
undesirable practice,” P.R. Laws Ann. tit. 29, § 155; Law 69, which prohibits gender-based
employment discrimination, id. § 1321; Law 100, the local broad antidiscrimination statute, id.
§ 146; and Articles 1802 and 1803 of the Civil Code, P.R. Laws Ann. tit. 31, §§ 5141, 5142,
Puerto Rico’s general tort statutes. Docket # 1.
The Commonwealth Defendants move to dismiss for lack of subject-matter jurisdiction,
see Fed. R. Civ. P. 12(b)(1), invoking Eleventh Amendment immunity. Docket # 24. Although
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CIVIL NO. 13-1029
Page 2
they concede that Title VII abrogates their Eleventh Amendment immunity, id. at 5, they
nevertheless maintain that because the supplemental-jurisdiction statute, see 28 U.S.C. § 1367,
does not override the Eleventh Amendment’s bar on suing a state in federal court, this court is
barred from exercising jurisdiction over the plaintiffs’ state-law claims. Docket # 24, pp. 6-7.
The plaintiffs timely opposed. Docket # 34. They say, without much in the way of an
argument, that because there is federal-question jurisdiction over their Title VII claims, the
Court can exercise supplemental jurisdiction over their state-law claims.
Standard of Review
Rule 12(b)(1) is the appropriate vessel for challenging a court’s subject-matter
jurisdiction. Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Pertinently,
“Eleventh Amendment immunity can be raised at any time because of its jurisdictional
implications.” Acevedo López v. Police Dep’t, 247 F.3d 26, 28 (1st Cir. 2001).
In reviewing a motion to dismiss under this rule, the court construes the plaintiffs’
allegations liberally and “may consider whatever evidence has been submitted, such as . . .
depositions and exhibits.” Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011) (internal
quotation marks and citations omitted). Accordingly, courts are empowered to “[w]eigh the
evidence and make factual determinations, if necessary, to determine whether it has jurisdiction
to hear the case.” Massachusetts Delivery Ass’n v. Coakley, 671 F.3d 33, 40 n. 8 (1st Cir. 2012)
(citing Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007)). When faced
with a jurisdictional challenge courts must credit the plaintiffs’ well-pleaded factual averments
and indulge every reasonable inference in the pleader’s favor. Merlonghi v. United States, 620
F.3d 50, 54 (1st Cir. 2010) (citing Valentín, 254 F.3d at 363). Nonetheless, it is beyond dispute
that a plaintiff faced with a subject-matter jurisdiction challenge has the burden to demonstrate
its existence. Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007) (citations omitted).
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CIVIL NO. 13-1029
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Applicable Law and Analysis
Eleventh Amendment immunity
As said, the Commonwealth Defendants posit that Eleventh Amendment bars this court
from exercising jurisdiction over the plaintiffs’ state-law claims. The Court agrees.
The analysis starts with bedrock. The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. Am. XI. Although, if read literally, the
Eleventh Amendment applies only to suits against a State by citizens of another State, the
Supreme Court has consistently extended the scope of this Amendment to suits by citizens
against their own State. E.g., Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
362 (2001). Such a protection, it has been said, furthers two goals: The protection of a state’s
treasury, and the protection of its dignitary interest of not being haled into federal court.
Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr.
Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm’n v. S.C. State Ports Auth., 535
U.S. 743 (2002)).
While the Commonwealth of Puerto Rico is not a “State,” see, e.g., Examining Bd. v.
Flores de Otero, 426 U.S. 572, 594 (1976), it enjoys the protection of the Eleventh Amendment.
Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v. González-Feliciano, 695 F.3d
83, 103 (1st Cir. 2012), cert. denied, 134 S. Ct. 54 (2013).1 And the Department of Sports and
Recreation is, without serious question, an arm of the Commonwealth and therefore is treated
as the Commonwealth for purposes of sovereign immunity and the Eleventh Amendment.
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See also, e.g., United States v. Laboy-Torres, 553 F.3d 715, 721 (3d Cir. 2009) (O’Connor, J.);
Ezratty v. Puerto Rico, 648 F.2d 770, 776 n. 7 (1st Cir. 1981) (Breyer, J.). For a comprehensive
discussion of Puerto Rico’s status, see Salvador E. Casellas, Commonwealth Status and the Federal
Courts, 80 Rev. Jur. U.P.R. 945 (2011).
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CIVIL NO. 13-1029
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Meléndez v. Com. of Puerto Rico Pub. Recreation & Parks Admin., 845 F. Supp. 45, 51 (D.P.R.
1994); accord Irizarry-Mora v. Univ. of Puerto Rico, 647 F.3d 9, 12 (1st Cir. 2011). Cf.
Ainsworth Aristocrat Int’l Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d 1034, 1036 (1st Cir.1987)
(Wisdom, J.).
There are, however, two exceptions to sovereign-immunity protection: When Congress
abrogates the states’ immunity, as in legislation enacted to enforce the Fourteenth Amendment;
and when a state waives its immunity. See Va. Office for Prot. & Advocacy v. Stewart, 131
S.Ct. 1632, 1638 (2011). Here, all agree that this court has jurisdiction over the plaintiffs’
claims under Title VII, which was enacted to enforce the Fourteenth Amendment. See Lipsett
v. Univ. of Puerto Rico, 864 F.2d 881, 885 n. 6 (1st Cir. 1988) (citing Fitzpatrick v. Bitzer, 427
U.S. 445, 456-57 (1976)).
And barring the sovereign-immunity issue, the supplemental-jurisdiction statute, see 28
U.S.C. § 1367, would give this court jurisdiction over the plaintiffs’ state-law claims. Indeed,
a federal court with original jurisdiction over one claim (here, the Title VII claims) may exercise
“supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution.” § 1367(a). A claim is part of the same case or controversy
if it derives “from a common nucleus of operative fact or are such that [they] . . . would
ordinarily be expected to [be] tr[ied] . . . in one judicial proceeding.” Allstate Interiors &
Exteriors, Inc. v. Stonestreet Const., LLC, 730 F.3d 67, 72 (1st Cir. 2013) (citations and internal
quotation marks omitted; alterations in original). As correctly argued by the plaintiffs, that
standard is satisfied in this case, because the plaintiffs premise their state-law claims on the
same factual allegations as their Title VII claims. The Commonwealth Defendants do not
quarrel with this determination.
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CIVIL NO. 13-1029
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But “supplemental jurisdiction under § 1367 does not override the Eleventh
Amendment’s bar on suing a state in federal court.” Pettigrew v. Oklahoma ex rel. Oklahoma
Dep’t of Pub. Safety, 722 F.3d 1209, 1213 (10th Cir. 2013) (citing Raygor v. Regents of the
Univ. of Minn., 534 U.S. 533, 541 (2002); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 121 (1984)); see also McCormick v. Miami Univ., 693 F.3d 654, 664 (6th Cir. 2012);
Roberson v. McShan, No. 05-20055, 2005 WL 2673516, *1 (5th Cir. Oct. 20, 2005) (per
curiam) (unpublished). As the Supreme Court wrote, § 1367 does not “authorize district courts
to exercise jurisdiction over claims against nonconsenting States.” Raygor, 534 U.S. at 541. Put
another way, Congress has not abrogated the Eleventh Amendment for state-law claims.
That is precisely what the Commonwealth Defendants argue. Yet the plaintiffs have
failed to offer a response to this argument. In point of fact, their 16-page opposition “fail[ed]
to address the only, relevant issue raised” by the Commonwealth Defendants: Whether or not
“‘a State can claim the immunity in relation to causes of actions under state law brought under
the court’s supplemental jurisdiction, despite the fact that such federal court has jurisdiction
over the State through the federal action that serves as anchor.’” Docket # 41 (quoting Docket
# 24, pp. 5-6). So the plaintiffs were given a final chance to “file a supplementary brief . . . on
this issue,” id., which they did, see Docket # 47. Their supplementary brief is equally unhelpful,
however.
Their whole brief is devoted to discussing the doctrine of pendent jurisdiction, arguing
that because their state-law claims share a common nucleus and substance, they may be “tried
in one proceeding[ ].” Id., p. 4. That may be true so far as it goes: No one disputes that
supplemental jurisdiction under § 1367 is feasible here. But again, what the Commonwealth
Defendants say is that § 1367 does not override their sovereign immunity with respect to the
plaintiffs’ state-law claims. And the plaintiffs fail to respond to this eminently correct argument.
Given the plaintiffs’ failure to articulate their contention — thus making waiver applicable, see
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United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) — the Court dispatches this matter
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quickly.
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Suffice it to say that, while Puerto Rico has waived its sovereign immunity in its own
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courts for tort claims, e.g., Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006) (citing
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P.R. Laws Ann. tit. 32, § 3077) (hereinafter Law 104), such a consent “is not a waiver of its
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Eleventh Amendment immunity in federal courts.” See Hernández v. Texas Dep’t of Human
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Servs., 91 F. App’x 934, 935 (5th Cir. 2004) (per curiam) (citing Atascadero State Hosp. v.
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Scanlon, 473 U.S. 234, 238 171 (1985) (construing Texas Law)). The First Circuit has made this
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much clear, finding that Puerto Rico’s general tort statutes do not “contain[ ] an explicit waiver
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of the Commonwealth’s sovereign immunity. And Law 104, . . . which abrogates the
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Commonwealth’s immunity with respect to negligence suits filed against the Commonwealth
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. . . in [state courts], does not extend that waiver to suits filed in federal court.” Díaz-Fonseca
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451 F.3d at 33; Burgos v. Fontanez-Torres, No. 12-1641, --- F.Supp.2d ----, 2013 WL 3216063,
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at * 7 (D.P.R. June 27, 2013). Nor has the Commonwealth agreed to be sued in federal court
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for claims under Laws 17, 69, and 100, see Huertas-González v. Univ. of Puerto Rico, 520 F.
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Supp. 2d 304, 314-317 (D.P.R. 2007), so the same conclusion follows with respect to those
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claims. This ends the matter.2
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It would serve no useful purpose to continue to cite book and verse. Because Congress
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has not abrogated the Eleventh Amendment for state-law claims, and because Puerto Rico has
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not waived sovereign immunity in federal court over the instant state-law claims, the Court is
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barred from exercising jurisdiction over them.
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Insofar as the plaintiffs seek injunctive relief from the Commonwealth Defendants under Law
100, see Docket # 1 ¶ 77, the Eleventh Amendment likewise denies this court jurisdiction. See
Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 529 (1st Cir. 2009) (construing and discussing
Pennhurst). In all events, Law 100 does not even apply to the Commonwealth Defendants.
Ramos-Santos v. Hernández-Nogueras, 867 F. Supp. 2d 235, 275 (D.P.R. 2012).
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Conclusion
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For the reasons stated, the Commonwealth Defendants’ motion to dismiss is
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GRANTED. The state-law claims against them are, therefore, DISMISSED without
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prejudice. Partial Judgment will be entered accordingly.
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IT IS SO ORDERED
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In San Juan, Puerto Rico, this 15th day of January, 2014.
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S/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
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