Alberty-Marrero et al v. Mendez et al

Filing 106

MEMORANDUM AND ORDER: For the reasons set forth in this Memorandum and Order, the Court DISMISSES plaintiffs' Fourteenth Amendment due process claim. Signed by Judge Raul M. Arias-Marxuach on 5/19/2023. (mrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SOCORRO ALBERTY, et al.
Plaintiffs
CIVIL NO. 17-2385 (RAM)

v.
CARLOS “JOHNNY” MÉNDEZ, et al.
Defendants

MEMORANDUM AND ORDER
RAÚL M. ARIAS-MARXUACH, U.S. District Judge
Pending before the Court is plaintiffs’ motion in compliance
with this Court’s order at Docket No. 101 (“Motion in Compliance”).
(Docket No. 103). For the reasons set forth below, the Court
DISMISSES plaintiffs’ Fourteenth Amendment due process claim.
On February 6, 2023, this Court ordered plaintiffs to show
cause as to why their due process claim should not be dismissed
for failure to state a claim upon which relief can be granted since
“to possess a protected property interest” under the Due Process
Clause, plaintiffs “must have a valid claim to career status.”
(Docket No. 101 (citing Figueroa-Serrano v. Ramos-Alverio, 221
F.3d 1, 6 (1st Cir. 2000)). The Court proceeded under Fed. R. Civ.
P. 12(b)(6) because plaintiffs’ own Amended Complaint describes
plaintiffs as “former term low-level employees of the House of

Civil No. 17-2385 (RAM)

2

Representatives” whose “appointments were consistently renewed
every six months.” (Docket No. 38 ¶ 3). In other words, plaintiffs
did not even allege that they had career status, which is a
requirement for their due process claim. Thus, record evidence
seemed unnecessary to dispose of that claim.
In response to the Court’s show cause order, plaintiffs first
point to Ríos-Campbell v. U.S. Dep’t of Com. for their argument
that dismissal pursuant to Fed. R. Civ. P. 12(b)(6) would be
untimely given that the parties have already conducted discovery.
(Docket No. 103 at 1-3 (citing 927 F.3d 21 (1st Cir. 2019)).
However, the First Circuit panel in Ríos-Campbell was concerned
with the fact that the District Court had converted a fully briefed
motion for summary judgment with extensive record citations into
a motion to dismiss. See Ríos-Campbell, 927 F.3d at 25 (“[v]iewed
against

this

backdrop,

the

district

court’s

attempt,

without

notice, to transform the defendants’ fully developed motion for
summary judgment, replete with exhibits gleaned partially through
discovery, into a motion to dismiss for failure to state a claim
strikes a dissonant chord”). The panel admonished the District
Court’s decision to ignore the evidence that the parties deemed
relevant in assessing the claim’s viability. See id. at 25-26.
Here, neither party has filed a motion for summary judgment
with regard to the due process claim. The motions at Docket Nos.
48 and 60 only seek summary judgment with respect to the First

Civil No. 17-2385 (RAM)

3

Amendment claim. See Docket No. 48 (only discussing plaintiffs’
First Amendment claims and making no mention of their due process
claims); Docket No. 60 (seeking partial summary judgment just on
plaintiffs’
District

First

Court

in

Amendment

claims).

Ríos-Campbell,

this

Therefore,
Court

is

unlike
not

the

ignoring

evidence that the parties deem relevant to adjudicating the due
process claim. 1
The Court simply noticed plaintiffs’ own Amended Complaint
failed to allege a key element of their due process claim and sua
sponte “afforded [plaintiffs] notice and an opportunity to amend
the complaint or otherwise respond.” Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 23 (1st Cir. 2014) (citation and internal
quotations omitted). Sua sponte dismissals are allowed under First
Circuit precedent “[o]nly where it is crystal clear that the
plaintiff cannot prevail and that amending the complaint would be
futile[.]” Id. (citation and internal quotations omitted). See
also Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (holding
that “a district court sua sponte may dismiss a complaint under
Rule 12(b)(6) as long as the dismissal does not precede service of
process” and that even “the failure to give [prior] notice is not
per se reversible error when it is patently obvious the plaintiff
could not prevail based on the facts alleged in the complaint”).
The Court notes that the Sixth Circuit has upheld a district court’s dismissal
of a claim pursuant to Fed. R. Civ. P. 12(b)(6) following the close of discovery.
See Walker v. Jackson Pub. Schs., 42 F. App’x 735 (6th Cir. 2002).
1

Civil No. 17-2385 (RAM)
As

the

Court

4

demonstrates

below,

there

is

no

way

for

plaintiffs to now amend their complaint in order to change the
nature of their employment and confer upon themselves a due process
right

to

continued

employment.

Nor

do

plaintiffs

seek

an

opportunity to do so in response the Court’s show cause order. See
Docket No. 103 at 3 (submitting to the Court that the allegations
in the complaint regarding due process survive the plausibility
standard and should not be dismissed). Accordingly, the Court sees
no reason that sua sponte dismissal of plaintiffs’ due process
claim following the close of discovery would be fundamentally
unfair in this case.
Moving on to plaintiffs’ arguments on the merits, plaintiffs
confuse the test for determining whether an employee has a property
interest protected by the Due Process Clause with the test for
determining whether an employee’s political speech is protected by
the First Amendment. 2 Supreme Court and First Circuit precedent is
clear that these are two separate tests and that an employee’s
political speech may be protected by the First Amendment even if
he does not possess a property interest in continued employment
protected

by

the

Due

Process

Clause.

See,

e.g.,

Perry

v.

Sindermann, 408 U.S. 593, 598-99 (1972) (“respondent’s lack of a
contractual or tenure ‘right’ to re-employment for the 1969—1970
The two-part test that plaintiffs describe is only relevant to their First
Amendment claim. See, e.g., Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11-18
(1st Cir. 1996).
2

Civil No. 17-2385 (RAM)

5

academic year is immaterial to his free speech claim”); NievesVillanueva v. Soto-Rivera, 133 F.3d 92, 98 (1st Cir. 1997) (“the
fact

that

a

transitory

employee

does

not

have

a

reasonable

expectation of renewal in his or her employment that would require
due process protections does not defeat a First Amendment claim”).
To

determine

whether

someone

has

a

protected

property

interest in continued employment, courts look to “local law and
the terms and conditions of the employment arrangement.” Galloza
v. Foy, 389 F.3d 26, 33 (1st Cir. 2004) (citations omitted). “In
order to maintain a constitutional due process claim arising out
of the termination of his 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.” Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 101
(1st Cir. 2002) (citing Perkins v. Bd. of Dirs., 686 F.2d 49, 51
(1st Cir. 1982)). For example, courts have found a reasonable
expectation

of

continued

employment

in

cases

involving

a

collective bargaining agreement that said employees could not be
terminated without just cause, see Wojcik, 300 F.3d at 102, and a
de facto tenure policy that alluded to “permanent tenure,” see
Perry, 408 U.S. at 600-03.
In Puerto Rico, transitory employees with termed appointments
generally only have a property interest in continued employment
for the duration of the appointment term. See Dept. of Natural

Civil No. 17-2385 (RAM)

6

Res. v. Correa, 18 P.R. Offic. Trans. 795, 806 (1987) (“[a] person
who has a transitory appointment, knowing that it expires at the
end of the period for which it is given, cannot validly claim that
he had a real expectancy that this type of appointment would offer
him a permanent job status or the right to have the same constantly
renewed”).
A transitory employee may under certain circumstances have a
property interest in permanent employment. See id.; Lupiáñez De
González v. Cruz, 5 P.R. Offic. Trans. 966 (1977). For example, in
Lupiáñez De González v. Cruz, the Puerto Rico Supreme Court held
that

the

plaintiff

had

a

due

process

interest

in

permanent

employment because her position was supposed to be a permanent
one, but due to budgetary constraints, she was to occupy it as a
temporary position pending completion of the procedure to create
the regular position. See Lupiáñez, 5 P.R. Offic. Trans. at 96869. The court said that “[a]lthough it is true that the position
which plaintiff held at the time when she was dismissed was in the
exempt service, since the position for which she was engaged and
which

was

in

the

process

of

being

created

had

a

permanent

character, her rights in relation to that position have to be
acknowledged.” Id. at 974 (emphasis added).
To have a due process interest in permanent employment, a
transitory

employee

must

not

only

be

promised

permanent

employment, that promise must be accompanied by some “action on

Civil No. 17-2385 (RAM)

7

the part of the government agency clearly showing an agreement to
make good on the promise[.]” Correa, 18 P.R. Offic. Trans. at 806.
In Correa, the Puerto Rico Supreme Court found that Correa did not
have a property interest in permanent employment because, unlike
the plaintiff in Lupiáñez, “[t[he offer of a career position was
undoubtedly just a promise where no steps or measures were taken
to effectively give him a permanent status.” Id. at 806. Here, not
only were there no steps taken to make plaintiffs’ jobs permanent,
they had not even been promised that their jobs would be converted
into permanent ones. Also, the mere fact that an employee has held
the position for a long time does not create a property interest
in

permanent

employment.

See

id.

(citations

and

internal

quotations omitted) (“the mere holding of a position for a long
period of time does not create per se a property interest”).
Plaintiffs have not alleged any statute, policy, rule, or
contract that affords them a reasonable expectation of continued
employment. The only source of an expectation that plaintiffs
reference in their Amended Complaint is the nearly automatic
renewal of their six-month contracts up until the time of the
alleged adverse employment action. (Docket No. 38 ¶ 3). As just
discussed, this is not enough to create a property interest in
permanent employment. See Correa, 18 P.R. Offic. Trans. at 806.
In response to the Court’s show cause order, plaintiffs assert
that a number of irrelevant factors afford them a reasonable

Civil No. 17-2385 (RAM)

8

expectation of continued employment, such as the number of years
that some of them had worked in the House of Representatives and
the

allegedly

apolitical

nature

of

their

positions. 3 None

of

plaintiffs’ stated reasons amount to a “statute, policy, rule, or
contract” that could bestow upon them a reasonable expectation of
continued employment under the Due Process Clause. 4 Wojcik, 300
F.3d at 101 (1st Cir. 2002) (citation omitted). Plaintiffs did not
plead anything that could lead to an inference that their jobs
were being converted to permanent positions. Thus, plaintiffs have
failed to allege a key element of their due process claim.
Even if the Court were to go beyond the pleadings despite
plaintiffs’ failure to allege a key element of their due process
claim, the record would not support their claim to a protected
property interest. Each plaintiff received a letter on June 29,
2016 renewing his appointment for another six-month term. 5 (Docket

3 Other irrelevant factors that plaintiffs point to are the purported lack of
advance notice that their contracts would not be renewed; that they are
allegedly entitled to workman’s compensation if injured; that they supposedly
contribute to the government’s retirement system; and more. (Docket No. 103 at
5-11).
4 Some of the listed factors, such as the purportedly apolitical nature of their
positions, could be relevant to plaintiffs’ First Amendment claim, though.
5 Though ordinarily a court may not consider extrinsic evidence not expressly
incorporated into a complaint on a motion to dismiss, “when a complaint’s
factual allegations are expressly linked to—and admittedly dependent upon—a
document (the authenticity of which is not challenged), then the court can
review it upon a motion to dismiss.” Alternative Energy, Inc. v. St. Paul Fire
& Marine Ins. Co., 267 F.3d 30, 34 (1st Cir. 2001) (citation and internal
quotations omitted). The letters referenced here are the plaintiffs’ most recent
contract renewal letters. They are thus central to plaintiffs’ employment law
claim. Furthermore, plaintiffs do not contest the authenticity of these letters.
See Docket No. 51-1 ¶¶ Ib, IIb, IIIb, IVb, Vb, VIb, VIIb, VIIIb, IXb, Xb, XIc.

Civil No. 17-2385 (RAM)

9

No. 49-2 at 4, 24, 37, 50, 59, 75, 86, 94, 103, 111, 125). These
letters state in relevant part:
By virtue of Section 9 of Article III of the
Constitution of the Commonwealth of Puerto
Rico, which provides, among other things, that
each Chamber will select its officials and
adopt the rules of the Legislative Bodies for
their procedures and self-governance, it has
been a restated and invariable rule that each
employee hired in the House of Representatives
will be freely appointed and removed. To such
effect, when you were recruited, you were
aware that your appointment had a certain
termination date.
We wish to notify you that your appointment
has been extended until December 31, 2016, on
which
date,
if
you
have
not
received
additional notice, you may deem your duties at
the House of Representatives terminated, and
proceed with the liquidation and payment of
any leave accrued in your favor, subject to
compliance with the procedures of the Human
Resource Office.
Your appointment continues to be considered of
free appointment and removal.
Id. (emphasis added). 6 In another due process case, the Puerto Rico
Supreme Court flagged a similar letter in support of its conclusion
that the plaintiff did not have a property interest in permanent
employment. See Correa, 18 P.R. Offic. Trans. at 806. Plaintiffs
here did not impugn these contract renewal letters; they merely
repeated

that

they

nonetheless

possess

a

protected

property

6 Plaintiff Wanda Llópiz-Burgos also received a short letter on December 30,
2016 stating in full, “I hereby notify you that your appointment has been
extended until January 31, 2017. Please report to your work area in your regular
schedule. Should you need additional information, please contact the Human
Resources Office.” (Docket No. 49-2 at 126).

Civil No. 17-2385 (RAM)

10

interest in continued employment, again without citing a single
statute, policy, rule, or contract conferring such an interest.
(Docket No. 51-1 ¶¶ Ib, IIb, IIIb, IVb, Vb, VIb, VIIb, VIIIb, IXb,
Xb, XIc). Regardless, the Court need not delve into the record to
dismiss plaintiffs’ due process claim, as they have failed to
identify in their Amended Complaint and their Motion in Compliance
a single statute, policy, rule or contract conferring on them a
property interest in continued employment.
Even after the Court afforded them notice and an opportunity
to respond, plaintiffs have failed to allege a key element of their
due process claim, let alone pointed to any potential evidence in
the record that could establish that element. The Court thus
DISMISSES their Fourteenth Amendment due process claim.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 19th day of May 2023.
S/ RAÚL M. ARIAS-MARXUACH_____
United States District Judge