Torres-Rivera v. Garcia-Padilla et al

Filing 23

Memorandum and Order GRANTING PRELIMINARY INJUNCTION. Attachments to follow. Signed by Judge Francisco A. Besosa on 1/31/2014.(CD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BASILIO TORRES-RIVERA, President
of the Puerto Rico Industrial
Commission,
Plaintiff,
v.

CIVIL NO. 14-1040 (FAB)

ALEJANDRO GARCIA-PADILLA,
individually and as Governor
of Puerto Rico; GRACE SYLVETTE
LOZADA-CRESPO, individually
and as Designated President of
the Puerto Rico Industrial
Commission,
Defendants.
MEMORANDUM AND ORDER
GRANTING PRELIMINARY INJUNCTION
BESOSA, District Judge.
I.

BACKGROUND
Plaintiff Basilio Torres-Rivera was appointed as Commissioner

and Chair1 of Puerto Rico’s Industrial Commission (“PRIC”) on May
29, 2012 by former Governor and former President of the New
Progressive Party (“NPP”) Luis Fortuño.

The Puerto Rico Senate

confirmed Torres-Rivera on June 19, 2012, and he consequently began
to serve what he expected to be a six-year term in office, as
prescribed by Law 45 of 1935, which was then in effect.
Ann. tit. 11 § 8 (2010) (Docket No. 3-1).

1

P.R. Laws

Defendant Alejandro

Plaintiff refers to this position as “President,” but to be
consistent with the English translation of the Puerto Rico law, the
Court uses the term “Chair.”

Civil No. 14-1040 (FAB)
Garcia-Padilla

of

the

2
Popular

Democratic

Party

(“PDP”)

was

subsequently elected as Governor of Puerto Rico, and with the
changing political tides, new laws have emerged designed to usher
the Governor’s political supporters into office.2
one such law.

Law 180-2013 is

Enacted on December 20, 2013, Law 180-2013 changed

the PRIC’s Chair’s term from six-years to “free removal.”

(Docket

No. 15-1.)
On

Tuesday,

Lozada-Crespo

January

served

upon

14,

2014,3

defendant

Torres-Rivera

a

Grace

copy

of

Sylvette
a

letter

informing him that by virtue of Law 180-2013, his position as
PRIC’s Chairman was one of free removal.

The letter, which was

dated Saturday, January 11, 2014 and signed by defendant Governor
Garcia-Padilla, informed Torres-Rivera that he “may continue to
hold the position of Commissioner,” but that the Governor had
appointed a new Chair.

(Hearing Exhibit No. 4.)

Torres-Rivera

testified that Lozada-Crespo then verbally informed him that the
Governor had designated her as the new PRIC Chair and provided him
with the original letter, which he had requested.

She required

2

This is the third case of its kind to reach this Court’s
doors since defendant Governor has taken office. The Court notes
that the operative facts in this case are similar to those in DiazCarrasquillo v. Hon. Alejandro Garcia-Padilla, Civil No. 13-1646
(Dominguez, J.), and Montañez-Allman v. Garcia-Padilla, 2013 U.S.
Dist. LEXIS 151035, 2013 WL 5719153 (D.P.R. Oct. 18, 2013) (PerezGimenez, J.).
3

Monday, January 13, 2014 was a Commonwealth holiday and
government agencies were closed.

Civil No. 14-1040 (FAB)

3

Torres-Rivera to surrender control of the keys to his office,
documents, files, equipment, materials, funds, property, and any
other agency resources to her.

When Torres-Rivera initially

resisted and informed Lozada-Crespo that he would contest her
designation and would not surrender control of the agency resources
to her, a certain Ramon Santiago, who had accompanied LozadaCrespo, indicated to Torres-Rivera that he could be arrested and
removed

by

court

bailiffs

or

department

of

justice

Special

Investigations Bureau agents. At the end of the day, after TorresRivera presided over the hearings he had scheduled that day, he
surrendered his office and resources as he had been requested to do
by Lozada-Crespo.
Two days later, on January 16, 2014, Torres-Rivera filed a
complaint in this Court, seeking declaratory and injunctive relief
as well as compensatory and punitive damages pursuant to 42 U.S.C.
§ 1983; 28 U.S.C. §§ 2201–02; the First, Fifth and Fourteenth
Amendments to the U.S. Constitution; and article II, section I of
the Bill of Rights of the Constitution of Puerto Rico.

He claims

that defendant Governor infringed upon his proprietary right to and
continued expectancy of employment as Chair by unlawfully removing
him from his position as PRIC’s Chair without just cause or prior
notice.

Consequently, Torres-Rivera requested the Court to issue

a temporary restraining order (“TRO”) directing the Governor to
vacate

Lozada-Crespo’s

appointment

as

PRIC’s

Chair

and

allow

Civil No. 14-1040 (FAB)

4

Torres-Rivera to remain in his position as Chair.

The Court

granted the TRO on January 17, 2014 and scheduled the preliminary
injunction hearing for January 31, 2014 at 9:00 a.m.
That morning, the parties appeared before the Court for the
preliminary injunction hearing.

Plaintiff submitted five exhibits

at the hearing without objection by the defendants. Both plaintiff
Torres-Rivera and defendant Lozada-Crespo testified under oath.
Plaintiff Torres-Rivera also clarified at the hearing that he seeks
a preliminary injunction on the basis of his Due Process claim
alone.

After

plaintiff’s

careful

request

for

consideration,
a

the

preliminary

Court

now

injunction

GRANTS
against

defendants.
II.

LEGAL STANDARD
The general purpose of injunctive relief is to prevent future

acts or omissions of the non-movant that violate the law or
constitute harmful conduct. United States v. Oregon Med. Soc., 343
U.S. 326, 333 (1952).

A preliminary injunction “is traditionally

viewed as relief of an extraordinary nature and does not purport to
be a disposition of the matter on its merits.”

Sanchez v. Esso

Std. Oil Co., 572 F.3d 1, 14 (1st Cir. 2009) (internal citation
omitted).

In order to grant a preliminary injunction, a district

court must consider the following four factors: (1) the likelihood
that the party requesting the injunction will succeed on the
merits; (2) the potential for irreparable harm if the injunction is

Civil No. 14-1040 (FAB)

5

denied; (3) the hardship to the movant if enjoined compared to the
hardship to the movant if injunctive relief is denied; and (4) the
effect of the Court’s ruling on the public interest.

Id.

While no

single factor is dispositive, the First Circuit Court of Appeals
has indicated that the first factor is the sine qua non of the
preliminary injunction test. See Weaver v. Henderson, 984 F.2d 11,
12 (1st Cir. 1993).
III. PRELIMINARY INJUNCTION REQUEST BASED ON DUE PROCESS
A.

Likelihood of Success on the Merits
To receive a preliminary injunction based on alleged

violations

to

Amendment,

plaintiff

substantial

the

due

likelihood

process

guarantees

Torres-Rivera
that

he

will

must

of

the

first

succeed

on

Fourteenth

establish
the

a

merits.

Pursuant to the Due Process Clause of the Fourteenth Amendment,
“persons who possess a property interest in continued public
employment cannot be deprived of that interest without due process
of law.”

Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5–6 (1st

Cir. 2000) (internal citation omitted).

“It is well established,

both in Puerto Rico and in federal law, that a person has secured
a property right in his employment if he has an expectation of
continuity in said employment.”

Quiles-Rodriguez v. Calderon, 172

F. Supp. 2d 334, 344 (D.P.R. 2001) (Pieras, J.) (internal citations
omitted) (finding that the Governor may not remove the Chair of the
Public Service Commission, an employee appointed by the Governor to

Civil No. 14-1040 (FAB)

6

a term position, before the end of that term).

Torres-Rivera must

first demonstrate that he had a reasonable expectation of continued
employment as the PRIC’s Chair for a six-year term in order to
succeed on the merits.

See Acevedo-Feliciano v. Ruiz-Hernandez,

447 F.3d 115, 121 (1st Cir. 2006) (“In a due process claim stemming
from the termination of employment, ‘a public employee must first
demonstrate that he has a reasonable expectation, arising out of a
statute, policy, rule or contract, that he will continue to be
employed.’”) (quoting Wojcik v. Mass. State Lottery Comm’n, 300
F.3d 92, 101 (1st Cir. 2002)).

He then must establish that he was

fired without notice and without an opportunity to contest his
removal.

Acevedo-Feliciano, 447 F.3d at 121 (“In the public

employment context, the required process typically includes ‘some
kind

of

hearing’

and

‘some

pretermination

opportunity

to

respond.’”) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985)).
1.

The Court addresses each element in turn.

Expectation of Continued Employment
The foundation of Torres-Rivera’s due process claim

is Law 45, the statute that created the PRIC.

At the time of

Torres-Rivera’s appointment, it provided, in relevant part:
I. Services organizations.— The following entities shall
be in charge of rendering compensation services to
workers and employees:
....
(b) Industrial Commission.—

Civil No. 14-1040 (FAB)

7

(1) Creation and organization.— A Commission is hereby
created, to be denominated as the ‘Puerto Rico Industrial
Commission,’ constituted by five (5) Commissioners
appointed by the Governor with the advice and consent of
the Senate of Puerto Rico, who shall be attorneys-at-law
duly admitted to the bar in Puerto Rico. The Governor,
with the advice and consent of the Senate, shall
designate the Chair, who shall serve simultaneously as a
Commissioner and the Administrative Head of this Agency,
who shall set forth and administer the public policy with
discharge rulemaking authority or to delegate such
authority. In order to carry out this task, he/she shall
preside and direct the functions of the Commissioner
panel, whose appointments shall have an effective term of
six (6) years.
Commissioners shall remain in office until their
successors are legally designated and take office.
P.R. Laws Ann. tit. 11 § 8 (2010).

The face of the law indicates

that a fixed six-year term attached to Torres-Rivera’s Chair
position, because it makes no distinction between the terms of the

Civil No. 14-1040 (FAB)

8

Commissioners and that of the Chair.

Citing to Law No. 62 — an Act

approved on May 11, 2002 “to amend clause (1) of subsection (B) of
Section 6 of Act No. 45 of April 18, 1935” — defendants argue that
the Chair position does not carry a six-year term.
19.)

(Docket No.

Instead, they argue that the appointment to the position of

Chair “is separate and independent to the appointment to the
position of Commissioner and, therefore, [is] severable from the
latter at any time.”

(Docket No. 15 at p. 2.)

The Court is

unpersuaded. Although Law No. 62 did provide that the “designation
as Chairman is a confidential position [and] it shall be held for
a term that shall not go beyond December 31 of the year that
general elections are held,” (Docket No. 19-1), and that provision
was later echoed in Law No. 94 of March 25, 2003, the Legislature
later amended Law 45 again and specifically removed that language.
(See Law Nos. 94-2003 and 141-2009, Attachment Nos. 1 and 2,
respectively.)

Subsequent

amendment

history

reflects

the

Legislature’s decision to include instead a general provision
regarding the term length of all Commissioners on the panel: six
years.

See Law No. 141-2009, Attachment No. 2.

No subsequent

amendment — except for Law No. 180-2013 — separates the Chair’s
term from that of the other Commissioners.

The very deletion of

the provision dictating that the Chair’s term was to expire at a
different

time

than

his

term

as

Commissioner

cuts

against

defendants’ argument that since 1935 the amendments consistently

Civil No. 14-1040 (FAB)

9

reaffirm the separability of the Chair’s office from that of a
Commissioner.

The Statement of Motives of Law No. 141-2009, as

discussed infra in footnote 5, corroborates the Court’s conclusion.
The Court also rejects defendants’ argument that the
statute’s six-year “fix[ed]-term is in reference to the tenure of
the

commissioners

Presidency.”

that

conform

the

panel

(Docket No. 15 at p. 17.)

but

not

as

to

the

Simply no language exists

in the statute or legislative history to indicate that the Chair’s
appointed term in 2012 was anything other than the six-year term
applying to all Commissioners on the panel, including the Chair.
Finding no legal authority for defendants’ proposition that the
position of Chair is severable at any time, the Court instead views
the provisions regarding the removal of the Chair in Law No. 62 and
Law No. 180-2013 to be outlier provisions highly motivated by party
politics and/or personal vendettas.

Simple research reveals that

Senator Cirilo Tirado Rivera sponsored Law No. 62 and Law No. 94,
which unseated Torres-Rivera as PRIC’s Chair in 2003. See Law Nos.
62 & 94, available at http://www.oslpr.org/prontuario/; see also
Torres-Rivera v. Calderon-Serra, 328 F. Supp. 2d 237 (D.P.R. 2004)
(Garcia-Gregory, J.).

Senator Tirado subsequently opposed Torres-

Rivera’s nomination as Chair before the Senate on June 18, 2012,
(Exhibit 5 to the preliminary hearing), and upon the change of
administration, he introduced Law No. 180-2013, which establishes
the Chair’s position as one of free removal and which the Governor

Civil No. 14-1040 (FAB)

10

cited for the removal of Torres-Rivera on January 14, 2014.4
(Docket No. 15-1.)

“As frequently happens with such disputes in

Puerto Rico, the matter was brought to federal court.”

Torres-

Rivera v. Calderon-Cerra, 412 F.3d 205, 209 (1st Cir. 2005) (noting
that

“[w]ith

each

change

in

administration

—

at

both

the

commonwealth and municipal levels — the federal district courts in
Puerto Rico are flooded with hundreds of political discrimination
cases . . . .”).
Notably, Law 45 did not explicitly bestow power upon
the Governor to remove the Commissioners or reverse the designation
of the Chair, only to “preside and direct the functions of the
Commissioner panel,” and to “designate the Chair, who shall serve
simultaneously as a Commissioner and the Administrative Head of
this Agency.”

P.R. Laws Ann. tit. 11 § 8(I)(b)(1)(2010).

Whether

the statute gives plaintiff Torres-Rivera a reasonable expectation
in six years of employment as Chair or instead allows the Governor
to

remove

that

title,

constitutional powers.

therefore,

depends

on

the

Governor’s

See Montañez-Allman, 2013 U.S. Dist. LEXIS

151035, 2013 WL 5719153 (D.P.R. Oct. 18, 2013) (Perez-Gimenez, J.).
“The Governor of Puerto Rico has a general power of

4

Plaintiff Torres-Rivera testified that when he was first
appointed Chairman of the PRIC in 1994, he removed Senator Tirado,
who at the time was an assistant to the previous Chairman, from his
position because it was a position of trust. Twenty years is a
long time to hold a grudge, even in such a politically-charged
place like Puerto Rico.

Civil No. 14-1040 (FAB)

11

removal that is statutorily derived.”

Santana v. Calderon, 342

F.3d 18, 25 (1st Cir. 2003); see also P.R. Laws Ann. tit 3, § 6
(2013) (“The Governor shall have power to remove any officer whom
he may appoint, except officers whose removal is otherwise provided
for by the Constitution, and he may declare the office vacant and
fill the same in the manner provided by law.”).

In addition, he is

endowed with constitutional powers of removal, the boundaries of
which the Supreme Court of Puerto Rico has expounded upon on
several occasions.

See, e.g., Guzman v. Calderon, 164 D.P.R. 220

(2005) (Attachment No. 3); Santana v. Calderon, 2005 TSPR 86, 165
P.R. Dec. 28, 2005 juris P.R. 91 (2005) (Attachment No. 4).
Analogizing the powers of removal of the Governor of Puerto Rico to
those of the President of the United States, the Supreme Court of
Puerto Rico has held that the Governor enjoys absolute power to
remove an official whose functions are purely executive, but that
the Governor’s power is limited in the case of an official who
carries out quasi-legislative or quasi-judicial functions. Santana
v. Calderon, Attachment No. 4 at p. 24 (indicating that it has long
been recognized that the President’s power to remove an official
whose functions are purely executive is absolute); Guzman v.
Calderon, Attachment No. 3 at p. 10 (holding that in the case of
officials

performing

quasi-legislative

and

quasi-judicial

functions, “any reasonable restriction on the Governor’s power of
removal

would

be

valid

—

unless,

of

course,

it

impedes

the

Civil No. 14-1040 (FAB)

12

Governor’s power to perform his or her constitutional duties”).
Consequently, the Supreme Court of Puerto Rico has reasoned:
[A]ny determination on the constitutionality of a
statutory restriction on the Governor’s appointment or
removal power requires a case-by-case analysis in which
it is imperative to identify whether the officer
performed functions that were “purely executive” in
nature, or whether he or she exercised quasi-legislative
or quasi-judicial powers.
Guzman v. Calderon, Attachment No. 3 at p. 9 (emphasis added).
Inquiry into Torres-Rivera’s functions, therefore, is warranted.
It cannot seriously be questioned that the PRIC
performs quasi-legislative and/or quasi-judicial functions. Law 45
itself proscribes the Industrial Commission’s “functions of a
‘quasi-tutelary’ and ‘quasi-judicial’ nature for the investigation
and resolution of all cases of accidents.”
§

8(I)(b)(1)(2010).

The

PRIC

is

“in

P.R. Laws Ann. tit. 11
charge

of

rendering

compensation services to workers and employees,” and in exercising
its adjudicative power, it has the capacity to hold hearings; issue
citations; take sworn testimony and statements from witnesses;
receive evidence; and issue resolutions and determinations directed
to individuals.

See, e.g., Vega-Cruz v. Indus. Comm’n of P.R., 10

P.R. Offic. Trans. 443 (1980).
functions.

It thus performs quasi-judicial

See Rivera Santiago v. Srio. De Hacienda, 19 P.R.

Offic. Trans. 282 (1987) (explaining that an administrative hearing
of “a quasi judicial nature” entails the introduction of evidence
to the governing body, which then issues a decision setting forth

Civil No. 14-1040 (FAB)

13

the reasons or grounds upon which it is based); Murphy Bernabé v.
Tribunal Superior de P.R., 3 P.R. Offic. Trans. 958 (1975) (“In the
discharge of a quasi-judicial function, the Board of Appeals[] held
hearings and received oral and documentary evidence which it
evaluated,

and

on

the

conclusion] . . . .”).

basis

of

its

evaluation

it

[issued

a

Indeed, the Supreme Court of Puerto Rico

classifies the PRIC as an administrative agency with quasi-judicial
functions.

Hernandez-Chiques v. F.S.E., 152 P.R. Dec. 941, 949

(2000) (citing various Puerto Rico statutes to determine whether
the PRIC may impose sanctions).
As the administrative head of the PRIC, the Chair’s
duties

necessarily

functions.

include

administrative

and

adjudicative

Not only does he “set forth and administer the public

policy with discharge rulemaking authority,” “preside and direct
the functions of the Commissioner panel,” and “oversee the faithful
compliance and uniformity of the adjudicative public policy set
forth

in

this

chapter,”

P.R.

Laws

Ann.

tit.

11

§ 8(I)–8(I)(b)(1)(2010), but he has adjudicative duties, also. The
testimony elicited from Torres-Rivera at the preliminary injunction
hearing was that 90% of the Chair’s duties are adjudicative, while
Lozada-Crespo testified that the Chair’s adjudicative functions are
“minimal.”
duties

or

Whether the Chair spends more time on administrative
on

adjudicative

functions,

however,

is

of

no

Civil No. 14-1040 (FAB)

14

consequence.5
Given

that

the

Chair

performs

quasi-judicial

functions, “the Legislative Assembly may impose restrictions on the
Governor’s

power

of

removal

to

ensure

that

the

official

has

independence to carry out his functions without intervention from
the Executive Branch.”
151035 at *31.

5

Montañez-Allman, 2013 U.S. Dist. LEXIS

One such limitation is a fixed term for the

A plain reading of Law 45 in effect when Torres-Rivera was
appointed discounts defendants’ classification of the Chair’s
position as “independent and separate from the position of
[C]ommissioner,” (Docket No. 15 at p. 16), as well as their claim
that “the functions of the President are purely executive.”
(Docket No. 15 at p. 17.)
The statute clearly provides that the
Governor shall appoint five Commissioners, one of whom “[t]he
Governor — with the advice and consent of the Senate — shall
designate as chair.” P.R. Laws Ann. tit. 11 § 8(I)(b)(1). Once
confirmed, the Chair then serves “simultaneously as a Commissioner
and the Administrative Head of [the] agency,” id. (emphasis added),
which indicates that the Chair’s position is inseparable from the
Commissioner’s position and he thus performs quasi-judicial
functions as part of his combined duties.
As discussed earlier, an independent review of the legislative
history of Law 45 and its amendments fails to lend support for
reading the Chair as a free-floating and transferrable office that
can be freely stripped from the one Commissioner who the Governor
originally appointed and the Senate confirmed as Chair. Indeed,
Law No. 141-2009, which detailed the PRIC’s tumultuous history and
referenced various language regarding the expiration of the Chair’s
term between 1996 and 2009, reformed Clause (1) of subsection (B)
of Section 6 of Law 45 in pertinent part by providing that the
Commissioner panel’s appointments “shall have an effective term of
six (6) years” and not including any language about the term of the
Chair. (See Attachment No. 2 at p. 6.) Instead, the Legislature
explained that “[t]his Act empowers the Governor to designate one
of the Commissioners as Chair, who shall at the same time be the
chief executive and administrative head of the Agency.
The
Industrial Commission thus merged its administrative with its
adjudicative functions.”
(Attachment No. 2 at p. 1) (emphasis
added).

Civil No. 14-1040 (FAB)

15

position, such as the six-year term provided by Law 45.

See

Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935)
(“The authority of Congress, in creating quasi legislative or quasi
judicial agencies . . . includes . . . power to fix the period
during which [the officers] shall continue.”). Defendant Governor,
therefore, lacked the power to remove PRIC’s Commissioners and
Torres-Rivera as Chair and Commissioner, until their six-year terms
expire.

As stated previously by this Court:

[t]he scenario before us is remarkably similar to the set
of facts in the case of [Wiener v. United States, 357
U.S. 349 (1958)]. In that case, the law that established
the War Claims Commission contained no provision with
respect to removal of its commissioners.
The United
States Supreme Court, upon finding that the War Claims
Commission was an adjudicative body, concluded that in
light of Humphrey’s Executor holding, the President
derived no implied power from the statute to remove a
member of the Commission merely because he wanted his own
appointees.
Montañez-Allman,

2013

U.S.

Dist.

LEXIS

151035

at

*31.

By

historically including a set term for all Commissioners in Law 45,
the Puerto Rico Legislature has consistently indicated its desire
to preserve separability between the PRIC and the Executive Branch.
Simply because the Governor now wants his own appointees to serve
in the PRIC does not mean that he has the power to prematurely end
the current officials’ terms of service.

Accordingly, the Court

finds that Torres-Rivera has secured a property interest in his
position as the PRIC’s Chair that validly stemmed from Law 45.

Civil No. 14-1040 (FAB)
2.

16

Due Process Requirements
Because plaintiff Torres-Rivera enjoys a property

interest in his position, the Governor was not at liberty to
dismiss him without affording him due process of law pursuant to
the

Fourteenth

Amendment.

“The

Due

Process

Clause

of

the

Fourteenth Amendment protects government employees who possess
property interests in continued public employment.” Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. at 541; Galloza v. Foy, 389 F.3d
26, 33 (1st Cir. 2004).

Employees like Torres-Rivera, therefore,

have a right to notice and at least an informal hearing before
being discharged.

See Kauffman v. P.R. Tel. Co., 841 F.2d 1169,

1173 (1st Cir. 1988).
It is clear from the record that Torres-Rivera

was

afforded neither notice nor an opportunity to be heard prior to his
removal as PRIC’s Chair. The Governor signed the removal letter on
Saturday, January 11, 2014, and Torres-Rivera did not receive
notice of his termination as Chair until defendant Lozada-Crespo
delivered the letter on Tuesday, January 14, 2014.6

On that date,

defendant Lozada-Crespo informed Torres-Rivera that she had already
been appointed as Chairwoman, and she immediately required TorresRivera to surrender control of agency resources to her. No hearing
was held to discuss Torres-Rivera’s removal, and Torres-Rivera had

6

Monday, January 13, 2014 was a Commonwealth holiday and
government agencies were closed.

Civil No. 14-1040 (FAB)

17

no pretermination opportunity to be heard about the loss of his
job.

Accordingly, plaintiff has met the first prong of the

preliminary

injunction

standard

by

proving

his

likelihood

of

prevailing on the merits.
B.

Irreparable Harm
Torres-Rivera

has

presented

sufficient

—

though

not

overwhelming — evidence of irreparable injury to support the second
prong of the preliminary injunction standard.

He claims that

irreparable harm stems from his inability to carry out powers that
the law requires him to exercise, the humiliation and shame he will
endure in the eyes of the public and his peers, and damage to his
personal and professional reputation.
that

the

radio

and

newspapers

He testified at the hearing

reported

his

removal

almost

immediately with a picture of him taken years previously; that
being removed from his office made him look like a “criminal, a
corrupt

or incompetent person;” and that he suffered “mental and

spiritual consternation.”
Catholic

missionary

and

For example, he testified that he is a
his

removal

caused

his

question his credibility as a spiritual leader.

superiors

to

The Court notes

that damage to Torres-Rivera’s reputation, standing alone, does not
amount to irreparable harm.

See Gately v. Massachusetts, 2 F.3d

1221, 1232 (1st Cir. 1993) (“[T]he [Supreme] Court explained that
plaintiff’s allegations of temporary loss of income and harm to
reputation did not amount to a sufficient showing of irreparable

Civil No. 14-1040 (FAB)

18

harm.”) (citing Sampson v. Murray, 415 U.S. 61, 89–92 (1974)).
When a plaintiff’s claim is that he or she could not as a matter of
statutory or administrative right be discharged, however, the
analysis tips in his or her favor.

See Sampson, 415 U.S. at 91.

Given that Torres-Rivera has made a strong showing of likelihood of
success on the merits, and that “when the likelihood of success on
the merits is great, a movant can show somewhat less in the way of
irreparable harm and still garner preliminary injunctive relief,”
EEOC v. Astra USA, Inc., 94 F.3d 738, 743 (1st Cir. 1996), the
Court finds the irreparable harm element to be satisfied.
C.

Weighing of Hardships
The balancing of hardships also weighs decidedly in

Torres-Rivera’s favor.
suffer

if

the

Any difficulty or injury he will likely

injunction

is

not

imposed

far

outweighs

the

difficulties or injuries to the Governor if the injunction is
imposed.
his

An injunction will ensure that Torres-Rivera remains in

position

as

Chair

and

Commissioner

of

the

PRIC

for

remainder of the six-year term to which he was appointed.
Court

is

unpersuaded

that

by

prohibiting

the

Governor

the
The
from

appointing defendant Lozada-Crespo — or any other person — as Chair
until further order by the Court, the Governor’s constitutional
powers

of

removal

would

in

any

way

be

hindered.

Moreover,

defendant Lozada-Crespo only enjoyed an interim designation and was
not confirmed as PRIC’s Chair and Commissioner and thus does not

Civil No. 14-1040 (FAB)

19

possess any property interest in that position.

Given the narrow

scope of the injunction, defendants do not stand to suffer as much
hardship, if any, as Torres-Rivera would face absent injunctive
relief.

Accordingly, the balance of hardships weighs in favor of

issuing the injunction.
D.

Public Interest
A court may only issue a preliminary injunction if “a fit

(or lack of

friction) between

the

injunction and

the

public

interest” exists. Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120
(1st Cir. 2003).
fact

that

the

The Court need not linger on this issue.
Founding

Fathers

established

the

“[T]he

doctrine

of

separation of powers . . . towards prohibiting exactly this kind of
crass intrusion make the argument for erring on the side of
[plaintiff] even more compelling.”
2d at 345.

Quiles-Rodriguez, 172 F. Supp.

“The Executive, in this instance, while having the

power to appoint Commissioners, was simply not given the power to
remove

them,

and

cannot,

therefore,

government to do so at [his] will.”
weighs in favor of an injunction.

invade

this

Id. at 346.

sphere

of

This factor

Because all four factors are

met, plaintiff Torres-Rivera’s request for a preliminary injunction
is GRANTED.
IV.

CONCLUSION
The Court finds (1) that Law 45 in effect when Torres-Rivera

was appointed clearly indicated that the Chair of the Puerto Rico

Civil No. 14-1040 (FAB)

20

Industrial Commission was to be appointed to a six-year term; (2)
that plaintiff Torres-Rivera had a valid expectation of continuity
in his employment, and thus a property interest in his office; (3)
that plaintiff Torres-Rivera was not afforded his procedural due
process rights pursuant to the Fourteenth Amendment prior to his
removal; and (4) that plaintiff Torres-Rivera has satisfied his
burden of proof and is entitled to a preliminary injunction on
Accordingly, (1) the Court VACATES

Fourteenth Amendment grounds.
defendant

Lozada-Crespo’s

appointment

as

Chairwoman

and

Commissioner of the Puerto Rico Industrial Commission; (2) ORDERS
the defendants to maintain plaintiff Torres-Rivera as Chairman and
Commissioner;
plaintiff

and

(3)

Torres-Rivera

ENJOINS
from

the
his

defendants
position

as

from

removing

Chairman

and

Commissioner of the Puerto Rico Industrial Commission without due
process of law.
IT IS SO ORDERED.
San Juan, Puerto Rico, January 31, 2014.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE