OPINION AND ORDER
“I think there is one higher office than president and I would call that patriot.” — Gary Hart
According to the Department of Veterans Affairs, there were approximately 116,029 veterans of the United States Armed Forces in Puerto Rico
This case was brought by Agustín Montañez Allman (“Montañez” or “Plaintiff’), who was named Veteran’s Advocate (or Veteran’s Ombudsman) by former Governor and former President of the New Progressive Party (“NPP”), Luis Fortuño (“Fortuño”) in 2011. When the tides of politics brought about a new administration, the law under which Mr. Mоntañez had been named to his post was repealed and a new law creating the Office of the Ombudsman for the Veterans of the Commonwealth of Puerto Rico was enacted. Unbeknownst to Mr. Montañez, his tenure as Ombudsman would be short-lived. On August 28th, 2013, short of three years after he began serving his ten-year term as Ombudsman, Mr. Montañez received a letter informing him that the Office of the Advocate for Veterans created under Reorganization Plan 1 of 2011 had been eliminated and that a new interim Ombudsman had been named.
Mr. Montañez handed in the keys to the office and rushed to Federal Court to request injunctive relief in order to remain in his position and to enjoin defendants from further discrimination of any kind because of his political beliefs and association. See Docket No. 1.
A little more than a week before the preliminary injunction hearing was set to take place, plaintiffs requested a Second Temporary Restraining Order (“TRO”) to halt the confirmation by the Senatе of the candidate that Governor Garcia Padilla nominated to occupy the position of Veteran’s Ombudsman. The Court granted the TRO and ordered Governor Garcia Padilla to withdraw the nomination of Col. Hector Lopez for the post, but reserved any determination of whether Mr. Montañez should be reinstated in his position in lieu of the preliminary injunction hearing set for October 15, 2013.
The hearing was in fact held on such date and the parties submitted the matter with only the testimony of Mr. Montañez and the documents on the record. After careful consideration, the Court GRANTS Plaintiff’s request for a preliminary injunction against defendants.
I. PROCEDURAL BACKGROUND
Plaintiff Montañez, among others, brought suit against defendants Alejandro Garcia Padilla (“the Governor” or “Hon. Garcia Padilla”), individually and as Governor of Puerto Rico; Ingrid Vilá Biaggi
The plaintiffs sought declaratory and injunctive relief as well as compensatory and punitive damages pursuant to 42 U.S.C. § 1983 for violations to the First, Fifth and Fourteenth Amendments to the Constitution of the United States of America, as well as Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141.
Plaintiffs asked the Court to issue a TRO ordering defendants to vacate the appointment of López-Cabrera as Acting Veteran’s Ombudsman and allow Montañez to return to his duties without interference on defendants’ part with the operations at the offices of the Veteran’s Ombudsman. Plaintiffs also moved the Court to preclude any attempt to remove Montañez or members of his staff pending resolution of the claims.
The Court denied the plaintiffs’ request for a TRO on procedural grounds insofar as the documents submitted did not include an affidavit or verified complaint that laid down the specific facts upon which the request was premised, as required by Fed. R. Crv. P. 65(b). A preliminary injunction hearing was set for September 17, 2013.
At the hearing, it transpired that plaintiffs had not yet served defendants with the summons and complaint for which reason the court ordered plaintiffs to serve process and rescheduled the preliminary injunction hearing for October 15, 2013. See Docket No. 9.
On October 1, 2013 plaintiffs filed an Amended Complaint. See Docket No. 11. A Second Amended Complaint followed on Oсtober 6, 2013. See Docket No. 12. Simultaneously, plaintiffs filed the Second Motion for Temporary Restraining Order asserting that the Governor unlawfully nominated Colonel Hector Lopez (“Col. Lopez”) as Veteran’s Ombudsman and submitted such appointment to the Senate of Puerto Rico for its consideration and confirmation on October 3, 2013 despite being fully aware of the existence of the present action and the hearing scheduled for October 15, 2013 to discuss the merits of plaintiffs’ request for a preliminary injunction.
Accordingly, plaintiffs included Col. Lopez, and the Senate of Puerto Rico — represented by its president Hon. Eduardo Bhatia Gautier and the president of the Commission for Judiciary, Security and Veteran’s Affairs, Hon. Miguel Pereira Castillo — as defendants to the present action and asked that the Court order the Governor to vacate Col. Lopez’s nomination for appointment and preclude the Senate of Puerto Rico from proceeding with his confirmation until the Court issued a determination with respect to the constitutionality of defendants’ actions. See Docket No. 14. The Court granted plaintiffs’ request and ordered Governor Garcia Padilla to withdraw the nomination of Col. López until such time as the Court ruled on the request for a preliminary injunction. See Docket No. 18.
II. FACTUAL BACKGROUND
On March 8th, 2010, Mr. Montañez was appointed by former Governor Luis Fortuño as Veteran’s Advocate pursuant to Law No. 57 of June 27, 1987 (“Law No. 57”), which created the Puerto Rico Veterans Advocate’s Office. The Office was originally attached to the Department of Labor and Human Resources. Law No. 57 did not include a fixed term for the position of Veteran’s Advocate. On June of 2010, the Senate confirmed Mr. Montañez.
On June 22nd, 2011, former Governor Fortuño signеd Reorganization Plan No. 1-2011 (“Reorganization Plan”),
The Reorganization Plan also created a new office, called the Office of the Advocate for Veterans (“Oficina del Procurador del Veterano”). The new office was the entity within the Executive Branch responsible for protecting the rights of veterans in Puerto Rico. The Reorganization Plan also changed the position of Veteran’s Advocate from one of free removal to one with a fixed term of ten years. In addition, the Reorganization Plan provided that the Governor could only declare a vacancy in the position of the Veteran’s Advocate if the former determined that the Veteran’s Advocate was “permanently impaired” or had been “negligent in discharging the duties of the office” or had “incurred in misconduct.” See Attachment 1 at pages 20-21. Prior to declaring the vacancy, the law required the Governor to give the Advocate notice and a hearing. Id.
After the Reorganization Plan came into effect, Mr. Montañez was re-nominated by Governor Fortuño to the position of Advocate for the Veterans. On or around November of 2011, he was unanimously confirmed by the Senate for the position. Thus, his term was to expire on November of 2021.
On November 6, 2012, general elections were held in Puerto Rico and Garcia Padilla, who was a Senator at the time, won the Governorship for the Popular Democratic Party (“PDP”). Soon thereafter, several bills were introduced purporting to change once again the struсture of the different Ombudsmen Offices. Particularly, Senate Bill No. 356 sought to create an office dubbed the “Veteran’s Ombudsman Office of the Commonwealth of Puerto Rico.”
On July 24, 2013, the bills were signed by Governor Garcia Padilla and became Laws No. 75-2013 through 79-2013. Law No. 75 repealed Reorganization Plan 1-2011. Moreover, Law No. 75 provides that within thirty days after its approval, all the resources from the OAP should be transferred to the different Offices of the Ombudsman, under advise of the Office of Management and Budget (“OGP” by its Spanish acronym). See Docket No. 28-3 at page 2.
Law No. 79, for its part, created the “Office of the Veterans Advocate of the Commonwealth of Puerto Rico” and the position of Veterans Advocate. See Docket No. 34-1. Pursuant to Article 5 of Law
According to plaintiffs’ allegations, on or around August 19, 2012, Mr. Bienvenido Ramos, former employee of the Office of the Veteran’s Ombudsman, delivered a letter dated August 16, 2013 and signed by Governor Garcia Padilla to Montañez, as well as a document titled Petition of Information. See Docket No. 12, ¶¶ 31-32. The letter informed Mr. Montañez that Mr. Ramos had been appointed as President of the team that would oversee the transition from the extinct Office of the Veteran’s Ombudsman to the new Office of the Veterans Advocate of the Commonwealth of Puerto Rico. The letter also asked Mr. Montañez for his assistance to the Transition Committee, but made no mention of Plaintiffs termination or removal from his position. See Docket No. 3-3.
The Plaintiff alleges that on August 23, 2013, Mr. Montañez received a second petition of information for sensitive and confidential material, documents and property, such as keys and computer passwords. See Docket No. 12, ¶ 35. The Plaintiff testified during the hearing that still, at that point, he had not been informed of his removal or termination. Mr. Montañez provided the items and information requested.
The Plaintiff also testified that it wasn’t until August 26, 2013 that he learned through the press that Ms. Ingrid Vila had announced that the Ombudsmen would cease functions that same day and that the Governor would be making an announcement of the new interim appointments.
Two days later, while at an official event held at the Office of the Resident Commissioner of Puerto Rico, Pedro Pierluisi, Mr. Montañez alleges he received a copy of a press release dated that same day and issued by Vila, where she announced the designation of López-Cabrera as Acting Veteran’s Ombudsman. See Docket No. 12, ¶ 37; Docket No. 3-5.
That afternoon, the Plaintiff received a letter from Vila indicating that pursuant to Laws No. 75 and 79, the Ombudsman Office created under the Reorganization Plan ceased to exist. As such, all the documents, files, materials, equipment and funds assigned to the extinct Office of the Veteran’s Ombudsman would be transferred to the new Office of the Veterans Advocate of the Commonwealth of Puerto Rico. The letter also requested that Mr. Montañez make available all documents, files, materials, equipment, funds and resources to the newly appointed Acting Ombudsman. See Docket No. 3-6. Mr. Montañez testified at the injunction hearing that, prior to receiving the letter, he made several attempts to contact Ms. Vila, but was unsuccessful.
III. LEGAL STANDARD
A. Preliminary Injunction
“A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,
The standard for issuing a preliminary injunction is oft-quoted a four factor test: (1) the likelihood of success on the merits; (2) the potential for irreparable injury; (3) a balancing of the relevant equities most importantly, the hardship tо the nonmovant if the relief issues as contrasted with the hardship to the movant if relief is withheld; (4) the effect on the public interest of a grant or denial of the relief. See New Comm. Wireless Servs., Inc. v. SprintCom, Inc.,
In addition, the potential for irreparable injury criteria “must not be assumed, it must be demonstrated ... speculation injury does not constitute a showing of irreparable harm.” Narragansett Indian Tribe v. Guilbert,
IV. DISCUSSION
A. Due Process Claims
1. Substantial Likelihood of Prevailing on the Merits
In order to prevail in their request for a preliminary injunction on the basis of the alleged violations to the due process guarantees of the Fourteenth Amendment, the plaintiffs must first show a substantial likelihood that they will prevail on the merits. That is, plaintiffs must demonstrate that the ten-year term of employment bestowed upon the Veteran’s Ombudsman a constitutionally-protected property interest in continued employment for the duration of such fixed term, which in turn entitled him to enjoy the due process guarantees provided by the Fourteenth Amendment.
“Under 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,
“If the employee has such a state property interest, and that property interest rises to the level of a legitimate claim of entitlement, ... then the employer cannot dismiss the employee without affording him due process of law.” Acevedo-Feliciano v. Ruiz-Hernandez,
In this case, the question is whether or not the Plaintiff had a property interest in his employment that would trigger the constitutional protection of the Due Process Clause. However, any ruling on this constitutional right question is narrowly intertwined with the separation of powers doctrine in the Puerto Rico Constitution. Therefore, Plaintiffs “expectation of continued employment is constrained by two sources: the enabling statute creating the position ..., and the Governor’s power of removal under the Constitution of Puerto Rico. We address these in turn.” Santana v. Calderon,
The position of the Veterans Advocate is statutorily created. The relevant statute at the time the Plaintiff was named provided as follows:
The Office of the Veteran’s Advocate is hereby created as the body in the Executive Branch entrusted with, among other duties as provided in this Plan, handling and investigating claims by veterans in Puerto Rico and for safeguarding their rights in areas such as education, healthcare, security, employment, civil and political rights, social, labor and tax laws, housing, transportation, recreation, culture and others as referred by the AOA. Likewise, it shall be responsible for establishing and implementing a program to provide assistance, orientation, and advice to protect the rights of veterans and their families, and for coordinating with the corresponding entities the necessary services to be provided to veterans in Puerto Rico.
See Chapter V, Article 24 of the Reorganization Plan No. 1-2011, Attachment 1 at page 20. The Reorganization Plan also provided that “[t]he Veterans Advocate
“The Governor of Puerto Rico has a general power of removal that is statutorily derived.” Santana v. Calderon,
The Governor’s constitutional power of removal stems from Article IV of the Constitution of Puerto Rico, which provides, in relevant part that “[t]he Governor shall execute the laws and cause them to be executed.... He shall appoint, in the manner prescribed by this Constitution or by law, all officers whose appointment he is authorized to make.” P.R. Const, art. 4, § 4. The Puerto Rico Supreme Court spоke at length on the scope of the Governor’s power of removal under the Constitution in both Guzman v. Calderon,
In Guzman v. Calderon, the Supreme Court of Puerto Rico, upon this court’s request of a writ of certification, held that, where the officers in question “do not perform “purely executive” functions,” Guzman v. Calderon,
The Supreme Court of Puerto Rico analyzed the restriction imposed in this case on the Governor’s constitutional power of removal, to wit, the “just cause” requirement, in light of the legal framework set forth in the United States Supreme Court cases that analyze the scope of the President’s power of removal, name-' ly: (1) Myers v. United States,
If the officer has “purely executive” powers, the power of the Legislative Branch to impose requirements for the removal of said officer is minimаl, because in most cases these officers are directly involved in the implementation of public policy and in the performance of functions assigned by the Constitution to the Executive Branch.
The main test to determine the validity of the statute consists in that the legislative restriction on the removal power of the Governor of Puerto Rico cannot impermissibly and unreasonably infringe on his or her constitutional power to execute the laws and cause them to be executed and to formulate and implement public policy. An examination of the statute requires that the legislative restriction on said power should not impermissibly limit the powers of the Executive Branch or injure the balance of powers that must exist between government branches.
The case of officers who perform quasi-legislative or quasi-judicial functions is quite different. The Legislative Assembly can delegate to these officers a greater dеgree of independence, allowing them to perform their functions free from intrusion by other government branches. Therefore, in that case, any reasonable restriction on the Governor’s power of removal would be valid — unless, of course, it impedes the Governor’s power to perform his or her constitutional duties.
Id. at 238-239, Attachment 2 at pages 9-10.
Shortly thereafter, in Santana v. Calderon, the Supreme Court of Puerto Rico, once again upon this court’s request of a writ of certification, held that the functions of the Executive Director of the Occupational Development Council are strictly executive in nature, Santana v. Gobernadora,
In analyzing the scope of the Governor’s power of removal under the Puerto Rico Constitution, much like in Guzman, the Supreme Court of Puerto Rico in Santana v. Calderon also looked to the United States Supreme Court caselaw, and found that:
As we can see, when our Constitution was approved we made ours the analysis model presented in Myers and Humphrey’s Executor, to evaluate under what circumstances the Legislative Assembly can impose restrictions on the Governor to remove functionaries of the Executive. In other words, the decisions in those cases determine the boundaries of the Governor’s power to appoint and his or her power to remove and the limitation that such power necessarily represents for the exercise of the Legislative Assembly’s prerogatives.
In light оf the above, and considering that the Commonwealth Constitution is modeled in broad strokes after the government structured contained in the United States Constitution, it is appropriate for us to go over, in greater detail, the manner in which this subject has been treated by the United States Supreme Court, paying special attention to the decisions in Myers and Humphrey’s Executor.
Id. at 51-52, Attachment 3 at pages 29-30. After deciding that it would follow United States Supreme Court precedent in the analysis of the Governor’s power of removal under the Puerto Rico Constitution and summarizing these cases’ findings, the Supreme Court of Puerto Rico found that a joint analysis of Myers, Humphrey’s Executor and Wiener stood for the following principles:
First, that the President’s power to remove an official whose functions are purely executive is absolute. The second principle poses that when the functions carried out by the executive functionary partake of the attributes of the legislative or judicial function, Congress does have the authority to conditiоn the removal of that functionary from his or her post, by imposing, for example, the requirement of just cause for the removal.
Id. at 55 (emphasis ours), Attachment 3 at pages 35-36 (emphasis ours). We note the use of the phrase “for example” because in Humphrey’s Executor, the Supreme Court of the United States held that Congress could validly limit the President’s power of removal of officers with quasi-legislative and quasi-judicial functions, and in this exercise has the power to: (1) “fix the period during which they shall continue,” Humphrey’s Executor,
Finally, the Supreme Court of Puerto Rico noted that in Guzman, it had “adopted the ‘totality of circumstances’ analysis in Morrison to define the interrelation between the Governor’s power to appoint and remove in light of the Legislative Assembly’s prerogatives.” Santana v. Gobernadora,
Following the framework carefully laid down in Guzman and Santana, the Court must first determine whether the Veter
Law No. 79 confers upon the Ombudsman the following powers and prerogatives: (a) conduct investigations and obtain information he may deem pertinent regarding the complaints he investigates; (b) hold administrative hearings and sight inspections; (c) take oaths and statements; (d) inspect records, inventories, documents and physical facilities of the public agencies or private entities subject to the provisions of the law; (e) appear on behalf of the veterans and their families to obtain benefits under the pertinent state or federal laws or regulations before any forum, court, board, commission or state or federal agency; (f) order the appearance and testimony of witnesses as well as the production of papers, books, documents and other evidence relevant to the investigation. See Article 9 of Law No. 79, Docket No. 34-1. Law No. 79 also gives the Ombudsman the power to investigate, process and adjudicate complaints as well as order compliance with the applicable legislation in those cases in which any person or entity, including public ones, deny or hinder in any way the rights and benefits granted to veterans and their families. See Article 8 of Law No. 79, Docket No. 34-1.
The Supreme Court of Puerto Rico has found an entity to have quasi-judicial functions when, in the exercise of its adjudicative power, it has the prerogative to hold hearings; issue citations; take sworn testimony and statements from witnesses; receive evidence and issue resolutions and determinations directed to individuals, employers or organizations to cease and desist of any illegal practice. See Plan de Salud U.I.A v. A.A.A.,
Mr. Montafiez declared under oath that he received evidence relevant to the investigation of complaints filed by veterans before the Office of the Ombudsman. He also testified that he has threatened to impose fines and other penalties to those that were not complying with the regulations and laws that protect veterans and their families, a clearly quasi-judicial function. See Hernandez Chiques v. F.S.E.,
The Ombudsman also has the ability to adopt and promulgate whatever rules and regulations are needed to ensure the implementation of the provisions of Law 203-2007, as amended, known as the “Bill of the Rights of the Puerto Rican Veteran of the 21st Century” thus having quasi-legislative functions. See Article 13 of Law No. 79, Docket No. 34-1. As a matter of fact, according to the Plaintiffs testimony, the Office of the Ombudsman recently approved a regulation to provide an educational grant for children of veterans in Puerto Rico, a clearly quasi-legislative function.
Notably, the Office of the Veteran’s Ombudsman shall be the аgency in charge “of the administration of any state or federal program that, due to its nature, purpose and scope, is related with the functions that are entrusted” by the law. See Article 7 of Law No. 79, Docket No. 34-1. To that effect, during his testimony, Mr. Montafiez emphasized that the Office is in charge of overseeing-two federally-funded projects: a Veterans’ Home that houses around 150 veterans and is the only one of
It stems thus from the enabling law and the Plaintiffs testimony of the duties he performed, that the Office of the Veteran’s Ombudsman is more a quasi-judicial body than a purely executive one and that the Veteran’s Ombudsman is a position that has quasi-legislative and quasi-judicial functions. Hence, as set forth in Santana and Guzman, 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.
Those limitations may be in the form of a mandate of just cause for removal or a fixed term for the position. See Humphrey’s Executor,
When the lawmakers drafted Law No. 79, they maintained the ten-year term and, in fact, eliminated the provisions contained in the Reorganization Plan regarding removal of the Ombudsman in case of negligence or misconduct. That is, unlike its predecessor, nothing in Law No. 79 gave the Governor express power to remove the Ombudsman.
The scenario before us is remarkably similar to the set of facts in the case of Wiener. 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 statute to remove a member of the Commission “merely because he wanted his own appointees.” Wiener,
The court thus concludes that, here, by including a fixed term of ten years, the Legislature gave a clear indication of its desire to preserve separability between the Office of the Veteran’s Ombudsman and the Executive Branch. We thus find that the Legislature validly limited the Governor’s power of removal of the Veterans Ombudsman and that he had an expectation of continuity in said employment. See Quites,
Defendants contend that Mr. Montañez’s due process rights have not been violated because he was not terminated “but rather his tenure ceased because his position, as well as the agency/office created by Reorganization Plan No. 1 of 2011, were abolished by the Puerto Rico Legislature by enacting Acts 75-2013 and 79-2013 which were later signed into law by the Governor of Puerto Rico, Hon. Alejandro Garcia Padilla.” See Docket No. 6 at page 18. Defendants look to state jurisprudence, particularly to the case of Gomez v. Negron,
But most importantly, the Gomez holding is based on the comparison that the Court made of the law that was repealed versus the newly enacted law. After carrying out that exercise, the Supreme Court of Puerto Rico in Gomez held that because the new law substantially modified the terms of the position and the manner of appointment, the former post had in fact been abolished. See Gomez,
Despite defendants’ efforts to distinguish the nature and functions of the Office of the Veterans Advocate under the Reorganization Plan and the Office of the Veterans Advocate of the Commonwealth of Puerto Rico under Law No. 79, after a perfunctory review of both statutes, the court is not convinced at this point that such minor differences fundamentally change in any way the nature of the position. The court, however, will not dwell on this point insofar as it is irrelevant to the analysis under the Fourteenth Amendment.
Having found that Mr. Montañez has an expectation of continuity, and thus, a property interest in his position, it follows that he is protected by the provisions of the Fourteenth Amendment. If the employee has proven to have a property interest, then the employer cannot dismiss him without affording him due process of law. See Acevedo-Feliciano,
The record shows that Montañez did not receive a formal termination letter and was not afforded the opportunity to be heard prior to his removal. In fact, the evidence presented thus far shows that Plaintiff merely received a letter informing him that the law under which he was named no longer existed and he was to be substituted. In fact, the record is devoid of any evidence that Montañez engaged in сonduct that amounted to negligence or that he failed to fulfill the duties of his position in any way. Not having been given a proper notice and a meaningful opportunity to respond, the court finds that the defendants violated the Plaintiffs due process rights in the manner in which he was removed from his position as Veterans Advocate, the term of which was to expire on November, 2021 pursuant to the provisions of the Reorganization Plan. Hence, the Court finds that plaintiffs have met the first prong of the preliminary injunction standard by proving their likelihood of prevailing on the merits.
The irreparable injury analysis in this case centers on whether Mr. Montanez had a property interest in his employment. The Court will also look at the injury that the Office of the Ombudsman is suffering and will continue to suffer as result of his removal.
Irreparable harm consists of a substantial inquiry that is not accurately measurable or adequately compensable by money damages. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,
Mr. Montañez also expressed concern as to the state of the Office of the Veterans Advocate since it works closely with federal agencies and has several on-going projects that can lose sponsorship and/or funding if left unattended. Specifically, Mr. Montañez pointed out that the Veteran’s Cemetery was scheduled to open in November of 2013 and several steps needed to be undertaken to ensure that the funds designated for the project, to wit, $7.1 million, would not have to be returned to the Department of Veterans Affairs for lack of compliance with federal guidelines.
These elements cannot be adequately measured or are not compensable by money damages, and thus, the court finds that the second requirement of the preliminary injunction test weighs in plaintiffs’ favor.
3. Balance of Harms
“When resolving preliminary injunction motions, ‘[a]ny potential harm caused to [a plaintiff] by the denial of [his] motion must be balanced against any reciprocal harm caused to [the defendant] by the imposition of an injunction.’ ” Avaya, Inc. v. Ali, No. 12-10660-DJC,
4.Public Interest
A preliminary injunction is not appropriate unless there is “a fit (or lack of friction) between the injunction and the public interest.” Nieves-Marquez v. Puerto Rico,
The Court consequently holds that it is in the public interest thаt the Legislature’s intent be upheld and the Plaintiffs property interest be protected. Therefore, the fourth and final prong of the test for the preliminary injunction also tips in the Plaintiffs favor.
B. FIRST AMENDMENT
The Plaintiff also claims that the defendants violated his First Amendment rights by politically discriminating against him. According to the Plaintiff, he was removed from his position as Veterans Advocate because of his political affiliation to the NPP.
The First Amendment to the United States Constitution “insulates public employees who hold nonpolicymaking positions from the vicissitudes of personnel decisions rooted in partisan political concerns.” Bergeron v. Cabral,
The First Amendment political affiliation right described in the line of cases from Elrod to Branti v. Finkel,445 U.S. 507 ,100 S.Ct. 1287 ,63 L.Ed.2d 574 (1980), and Rutan v. Republican Party of Ill.,497 U.S. 62 ,110 S.Ct. 2729 ,111 L.Ed.2d 52 (1990), is cabined by an exception designed to give room to elected representatives to make policy choices reflective of their party platforms.
Torres Rivera v. Calderon Serra,
It is uncontested that the Plaintiff is affiliated with the NPP and was in fact named to the position of Veterans Advocate by former Governor Fortuno. It is also a fact that defendant Governor Garcia Padilla is the current President and member of the PDP, the opposing party to the NPP. Thеrefore, the first prong of the applicable test is easily met. The Plaintiff testified during the hearing that he personally knows the Governor since prior to his nomination as Ombudsman because they worked together as members of the Puerto Rico Bar Association from 2004-2006. According to the Plaintiff, the members would sustain what sometimes turned into “heated” political discussions, during which the Plaintiff expressed his “pro-American” political views. Given this evidence, it can be reasonably concluded that Hon. Garcia-Padilla knew of Plaintiffs political affiliations, thereby, establishing the second element of the test. The parties also stipulated the third prong of the test, namely, that the Plaintiff suffered an adverse employment action. On August 28th, 2013, Plaintiff received a letter notifying him of his removal from his position as Veterans Advocate.
However, “[m]erely juxtaposing a protected characteristic — someone else’s politics — with the fact plaintiff was trеated unfairly is not enough to state a constitutional claim.” Correa-Martinez v. Arrillaga-Belendez,
V. CONCLUSION
The court finds that the enabling statute is clear in its language stating that the Veterans Advocate was to be appointed to a term of ten years; that the Plaintiff had a valid expectation of continuity in his employment, and thus a property interest in his office; and that he was not afforded his due process rights under the Fourteenth Amendment prior to his removal. The court also finds that Plaintiff has met his burden of proof and is entitled to a preliminary injunction on Fourteenth Amendment Grounds. Therefore, the court hereby (1) VACATES Lopez-Cabrera’s appointment as Acting Veterans Advocate; (2) ORDERS defendants to allow Plaintiff to return to his position; (3) ENJOINS defendants from removing Mr. Montañez from his position without due process of law.
IT IS SO ORDERED.
Notes
. "Puerto Rico and the Department of Veterans Affairs.” State Summary issued by the Department of Veterans Affairs on November, 2010. Available at: http://www.va.gov/opa/ publications/factsheets/ss_puertorico.pdf.
. Attachment No. 1 to this order is a certified translation of the Reorganization Plan.
. The testimony of Mr. Montañez is further evidence that the Legislative intent was to grant independence to the Office of the Veteran’s Ombudsman. For example, Mr. Montañez mentioned that the Office recently represented a veteran in a proceeding against the Puerto Rico Treasury Department. He also pointed out that the Office had a meeting with former Governor Fortuño to dissuade him from passing a law that purported to eliminate some tax exemptions for veterans. We think it clear that both instances show that the Office of the Veteran’s Ombudsman is concerned first and foremost with protecting the rights of the veterans and their families, even in circumstances that could place its actions at odds with the public policy of the' Commonwealth's Executive Branch.