ROSAURA BUILDING CORP., Plaintiff, Appellant, v. MUNICIPALITY OF MAYAGÜEZ, et al., Defendant, Appellees.
No. 13-1676.
United States Court of Appeals, First Circuit.
Feb. 4, 2015.
777 F.3d 55
“Mere reliance on a document‘s conclusions“—at most what we have here—“does not necessarily involve reliance on a document‘s analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference.” National Council of La Raza v. Dep‘t of Justice, 411 F.3d 350, 358 (2nd Cir.2005); Elec. Frontier Found. v. United States Dep‘t of Justice, 739 F.3d 1, 10-11 (D.C.Cir.2014) (“[T]he Court has refused to equate reference to a report‘s conclusions with adoption of its reasoning, and it is the latter that destroys the privilege.“)
It is a good thing that Government officials on appropriate occasion confirm with legal counsel that what the officials wish to do is legal. To hold that the Government must turn over its communications with counsel whenever it acts in this manner could well reduce the likelihood that advice will be sought. Nothing in the FOIA compels such a result.
IV. Conclusion
For the foregoing reasons, we affirm the district court‘s rulings.
So ordered.
Eliezer A. Aldarondo-López, with whom Eliezer A. Aldarondo-Ortiz, Claudio Aliff-Ortiz and Aldarondo & López-Bras, were on brief for appellees.
Before TORRUELLA, DYK,* and THOMPSON, Circuit Judges.
TORRUELLA, Circuit Judge.
Rosaura Building Corp. (“Rosaura“) brought this
I. Background
We review the facts in the light most favorable to the appellant, the party opposing summary judgment. Agusty-Reyes v. Dep‘t of Educ. of P.R., 601 F.3d 45, 48 (1st Cir.2010).
A. Factual Background
Rosaura is a family-owned corporation whose principal place of business and sole asset is a commercial property located at 107 Post Street South in the city of Mayagüez. During the summer of 2010, several officials from the city-operated Head Start
Falto de Román met with representatives from Rosaura and negotiated the terms of the proposed lease. Then, she instructed them to contact Ms. Ana Martínez to help them with filing a necessary contract petition form. Martínez forwarded the contract petition to the Head Start Program Finance Unit, and to officials in the city‘s Department of Finance. All of them certified that the Program and the city had the resources necessary to comply with the proposed contractual terms. Following the city‘s usual bureaucratic process, Martínez sent the contract to the Contracts Committee, an office directed by the Mayor‘s brother, which also recommended that the contract petition be approved. With this approval, Martínez told representatives from Rosaura that everything was “ready” for the contract to be executed, and sent the draft contract to the city‘s Legal Division. Everything seemed to be on track until the Legal Division unexpectedly replied that there was a problem and the contract could not be signed.
Falto de Román was surprised by the rejection. She believed that Rosaura‘s building was the only one available that complied with the Program‘s requirements and that Rosaura had made the best offer during the search process. Moreover, the Program was time-pressed to open the much-needed additional classrooms. Shortly thereafter, Falto de Román received a letter from the Mayor stating that all of the Program‘s contracts would need to have his approval—a departure from prior practice. She acknowledged the letter in writing and received a note in response from the Mayor saying “[t]hat lease does not proceed.” Falto de Román notified representatives from Rosaura that the contract had not been approved by the Mayor. Instead, the Program participants were placed in provisional centers belonging to an alleged political supporter of the Mayor.
Aggrieved by this situation, Mr. Néstor Pagán-Vélez, one of the shareholders of Rosaura, asked the Mayor in person about his rejection of the contract. He claimed in his deposition that the Mayor responded that he “[would] not sign contracts with [...] with enemies of mine, which is what you already know, which is what your brother and your nephew are.” Pagán-Vélez, interpreted this as a reference to his brother, Mr. Víctor Pagán-Vélez, and his niece, Ms. Mignonia Acosta-Pagán. These two had been members of the Municipal Legislature of Mayagüez, prior to the 2008 elections, and were ousted by the Mayor after a scuffle within the local leadership of the Popular Democratic Party (“PDP“).2
B. Procedural History
Rosaura brought a civil rights claim for equitable relief and damages pursuant to
The Defendants filed a motion to dismiss that was granted in part as to the municipal government by way of a docket order, on the grounds that the complaint failed to plead a scintilla of facts that could lead to liability by the municipal government pursuant to Monell v. Department of Social Services, 436 U.S. 658, 695-701, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). No corresponding judgment was issued with regard to this docket order.4 Over a year-and-a-half later, Defendants requested that the district court enter a judgment dismissing the claims against the Mayor in his personal capacity since there was no allegation in the complaint against him in his personal capacity, and he had only been served in his official capacity. The district court denied the request for dismissal because the Defendants had also filed a motion for summary judgment on the same day, together with a memorandum of law in its support, alleging that there is no cognizable claim for First Amendment retaliation. The district court opted for considering the summary judgment motion instead.
After reviewing the record, including the motion to dismiss that had been granted by the docket order, the district court entered the corresponding judgment dismissing the claims as to the municipal government. It agreed that the complaint contained no allegations against the municipality and stressed that Rosaura never requested leave to amend the complaint to add allegations regarding that defendant. It also dismissed the claims against the Mayor in his personal capacity because he was never served with process as such. Finally, the district court granted summary judgment in favor of the Mayor on the claims remaining against him in his official capacity. Regarding the First Amendment claim, the district court found that this Court has never extended the First Amendment anti-retaliation protection of government contractors, recognized by the Supreme Court in Board of County Commissioners v. Umbehr, to first-time
The district court noted that it was uncontested that Rosaura never had a contract with the city, an important fact for the instant appeal as explained below. It concluded that “upon absence of First Circuit Court precedent recognizing an independent contractor without prior business relationship to raise First Amendment claims, and the split among other circuits on the issue,” it would deny the cause of action. Thus, it dismissed the First Amendment claim. It also dismissed the equal protection claim, though without any analysis. This appeal by Rosaura ensued.
II. Discussion
We review a district court‘s grant of summary judgment de novo, drawing all inferences in favor of the non-movant. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir.2013). Summary judgment shall be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The de novo standard of review does not limit this Court to the district court‘s rationale, as we may affirm on “any ground revealed by the record.” Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999).
A. Dismissal of Claims Against the Municipal Government
In Umbehr, a contractor who was an outspoken critic of a county board “spoke at the Board‘s meetings, and wrote critical letters and editorials in local newspapers regarding the County‘s landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, [and] the County‘s alleged mismanagement of taxpayer‘s money,” among other subjects of public interest. Umbehr, 518 U.S. at 671. The Supreme Court faced the question of whether this contractor was entitled to First Amendment protection against retaliation over its contract for hauling trash. Id. at 672-73. The Court held that, based on the similarities between independent contractors and employees, it was appropriate to follow the precedents that protected government employees from retaliation for their public discourse. Id. at 674 (“The similarities between government employees and government contractors with respect to this issue are obvious.“). After analyzing the justifications stated by the government defendants, the Umbehr Court concluded that the government may terminate contracts so long as it does not do so in retaliation for protected activity, in the same manner that government employees’ claims for retaliation are subject to the analysis established in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Id. at 678.
Mayors in Puerto Rico are the government officials ultimately responsible for employment decisions of the municipality. See id. (quoting Rodríguez-García v. Municipality of Caguas, 495 F.3d 1, 12 (1st Cir.2007)); Acevedo-García v. Monroig, 351 F.3d 547, 553 n. 1 (1st Cir.2003) (noting that under Puerto Rico law, mayors of municipalities have the power to appoint and remove municipal officials and employees, and thus a mayor‘s “employment decisions ipso facto constituted the official policy of the municipality” (internal quotation marks and citation omitted)). Because Umbehr simply extends employment protections to contractors, the same analysis applicable to employment decisions governs in this case. See Umbehr, 518 U.S. at 674.
In the instant appeal, the Defendants expressly concede that it was exclusively the Mayor‘s decision to deny the contract that caused Rosaura‘s purported constitutional injury. Based on the foregoing, the Defendants are correct that there is no practical effect in dismissing the claims against the municipal government. Therefore, the district court did not err in granting the dismissal of the claims against the Municipality of Mayagüez.
B. The First Amendment Claim
1. The “Newly Discovered Facts”
There is one other procedural wrinkle that we must iron out before reaching the merits of Rosaura‘s First Amendment claim. One week before oral arguments, Rosaura filed an “Urgent Motion Informing New Facts That Might Affect This Appeal.” In that motion, Rosaura claimed—for the first time—that its shareholders had just informed its lawyer that they “had a previous contract with the Municipality of Mayaguez.” It further requested that we consider this as a matter of fact when resolving the case, or, in the alternative, that we remand the case to the district court so that it can reconsider its dismissal. Rosaura claims that this new fact makes Umbehr dispositive of the instant controversy and that it automatically possesses a cause of action.
In Umbehr, a contractor who was an outspoken critic of a county board “spoke at the Board‘s meetings, and wrote critical letters and editorials in local newspapers regarding the County‘s landfill user rates,
The problem with Umbehr, as applied to the instant case, is that it expressly rejected answering whether this protection also extends to first-time bidders for government contracts. Id. at 685 (“Because Umbehr‘s suit concerns the termination of a preexisting commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.“). Thus, Rosaura would rather be in the same position as the plaintiff in Umbehr, who had an ongoing contractual relationship.
At first glance, we should not even take this issue into consideration since Rosaura argues nothing in its motion suggesting that the contract was in effect at the time of the alleged retaliation, or that any legal agreement was breached in any way as a result of the alleged retaliatory conduct. Yet, even assuming that it was, this motion with newly discovered facts does not help Rosaura for several reasons. Rosaura filed its complaint on June 14, 2011. From that moment on, its only legal strategy and legal theory has been that this Court should extend the protections recognized to existing contractors in Umbehr, so that first-time bidders for government contracts like Rosaura—are also protected.5
Time and time again we have held that arguments not advanced before the district court are waived. Emp‘rs Ins. Co. of Wausau v. OneBeacon Am. Ins. Co., 744 F.3d 25, 29 (1st Cir.2014) (“‘It is a virtually ironclad rule that a party may not advance for the first time on appeal either a new argument or an old argument that depends on a new factual predicate.‘“) (citing Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir.2003)). The only theory of the case advanced by Rosaura for over three years is that it did not have an existing contract with the municipal government. Rosaura cannot change this simply because a new theory now fits it better. Genereux v. Raytheon Co., 754 F.3d 51, 53 (1st Cir.2014) (“[W]hen a liti-
Furthermore, the procedure followed by Rosaura to inform us of the new fact and obtain its request was incorrect. Appellate review concentrates on considering the factual record presented in the trial courts. See, e.g.,
In any event, Rosaura‘s attempt is likely doomed because
For these reasons, we deny the motion and move on to the merits.
Rosaura requests that we reverse the district court‘s grant of summary judgment, arguing the district court erred in concluding that, because this Circuit has not recognized a cause of action for First Amendment retaliation against first-time contractors, no such cause of action exists. Rosaura invites us to extend these protections to potential contractors whose business is denied, basing its plea on Oscar Renda Contracting, Inc. v. City of Lubbock, 463 F.3d 378 (5th Cir.2006). In that case, the Fifth Circuit held that having prior contractual relationships is not a requirement for First Amendment protection of independent contractors, since this protection is analogous to the protections recognized to employees, which also extend to hiring decisions on applicants for employment with the government, pursuant to Rutan v. Republican Party of Ill., 497 U.S. 62, 79, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); see Oscar Renda, 463 F.3d at 380, 385.
On the other hand, the Defendants ask us to follow Barry v. Moran, 661 F.3d 696, 706 (1st Cir.2011) (dismissing a political discrimination claim premised on personal, not political association). Defendants argue that Barry requires evidence that the association being retaliated against is political in nature and constitutionally protected, rather than simply personal. Also, they claim that pursuant to Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49 (1st Cir.1990), a plaintiff‘s relationship with someone with whom the defendants had political difference does not rise to engaging in constitutionally protected activity. In the instant appeal, as Defendants explain, Rosaura‘s claim, rather than being premised on retaliation resulting from its engagement in protected activity, is framed upon the relationship of a third party that is not a plaintiff—Rosaura‘s shareholders—with relatives of theirs, an association that is not political in nature. Thus, there is no factual basis to support that Rosaura, or even its shareholders, engaged in constitutionally protected activity regarding matters of public interest, or that such constitutionally protected activity was the driving cause of the alleged retaliatory response. We agree with the Defendants.
In its complaint, Rosaura pleaded a few perfunctory, conclusory statements that initially seemed to align its claim with a plain political discrimination case, by alleging briefly that the actions of the Defendants were motivated by Rosaura‘s political beliefs, that the its shareholder‘s political beliefs were known to the Defendants, and that the shareholders of Rosaura are identified with a faction within the PDP that challenged the Mayor in the past. Yet, there are no further allegations regarding those statements elsewhere in the record. Rosaura changed the story from that point on, and has stated repeatedly that the retaliation was caused by the relationship between the shareholders and their relatives, not because of the political affiliation of its shareholders. From that point on, Rosaura pleaded, argued, opposed the motion for summary judgment, and appealed framing its case exclusively as a political retaliation case that depended squarely on Umbehr. Rosaura thereby abandoned the possibility of bringing this as a discrimination claim, while instead expressly advancing a retaliation cause of action. “[T]he settled appellate rule [is] that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” In re Plaza Resort at Palmas, Inc., 741 F.3d 269, 277 (1st Cir.2014) (alteration in original)(citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)).
Rosaura‘s allegations pertaining to the Mayor‘s conduct are also limited to him not signing the lease in retaliation for his prior dispute with the brother and niece of one of Rosaura‘s shareholder. Accordingly, we examine the instant appeal as a First Amendment retaliation case based on that non-political association on which Rosaura premised its case.
Although political discrimination and retaliation cases are intrinsically similar, and, in certain circumstances, courts evaluate the evidence in the same manner, the two causes of action are quite distinct. Mercado-Berríos v. Cancel-Alegría, 611 F.3d 18, 22 (1st Cir.2010). Under political discrimination cases, “government officials are forbidden from taking adverse action against public employees on the basis of political affiliation or belief.” Mercado-Berríos, 611 F.3d at 22 (citing Welch, 542 F.3d at 938); Rutan, 497 U.S. at 64.
Retaliation cases, on the other hand, “‘call[] for a different, though related, inquiry’ when a public employee‘s speech, rather than her political affiliation or belief, is at issue.” Mercado-Berríos, 611 F.3d at 22 (quoting O‘Hare Truck, 518 U.S. at 719). Thus, in analyzing this as a retaliation case, we apply the balancing test established in Pickering. See O‘Hare Truck, 518 U.S. at 719.
The First Amendment guarantees the “public interest in having free and unhindered debate on matters of public importance.” Pickering, 391 U.S. at 573. The government is forbidden from imposing burdens on persons that discourage or punish them from exercising protected constitutional rights. See Ramírez v. Arlequin, 447 F.3d 19, 22 (1st Cir.2006). A government employee should not suffer reprisal from a government official for engaging in protected speech because of the possible chilling effect against the free exercise of constitutional rights. Mercado-Berríos, 611 F.3d at 25; see also Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). We have also held that, as a general matter, “claims of retaliation for the exercise of First Amendment rights are cognizable under § 1983.” Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 9 (1st Cir.2005) (citing Powell v. Alexander, 391 F.3d 1, 16 (1st Cir.2004)). As explained, Umbehr extended the First Amendment protections of public employee rights to private contractors. 518 U.S. at 673.
In these circumstances, to prevail on a § 1983 claim of retaliation for First Amendment activity, a plaintiff must show: (1) that his conduct was constitutionally protected, and (2) that this conduct was a substantial factor or a motivating factor for the defendant‘s retaliatory decision. Pierce v. Cotuit Fire Dist., 741 F.3d 295, 302-03 (1st Cir.2014); Centro Médico del Turabo, 406 F.3d at 10; Powell, 391 F.3d at 17 (quoting Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). The Supreme Court has also outlined what a plaintiff must show in order to establish that its specific conduct was constitutionally protected under the first prong. There are two particular requirements that must be met. First, a public employee must establish that she was speaking “as a citizen on a matter of public concern.” Díaz-Bigio v. Santini, 652 F.3d 45, 51 (1st Cir.2011) (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). If plaintiff‘s speech is not on a matter of public concern, there is no
Additionally, in order to meet the motivation prong, a plaintiff must produce “sufficient direct or circumstantial evidence” that his constitutionally protected conduct was the driving factor that caused the retaliation. Id. The plaintiff‘s burden in establishing motivation “is more substantial than the burden of producing prima facie evidence in, for example, the first stage of a Title VII discrimination case.” Id. at n. 3 (citing Guilloty Pérez v. Pierluisi, 339 F.3d 43, 56 n. 11 (1st Cir.2003)).
The pleading standard for these elements of the cause of action are also well-defined in our case law. The First Amendment does not create a constitutional revision process for every government employment decision. See Rojas-Velázquez v. Figueroa-Sancha, 676 F.3d 206, 210 (1st Cir.2012). Therefore, it is vital for any claim to clearly present the protected activity on which it is premised. Id. at 211 (“[T]he appellant has not averred that the defendants’ misperception regarding his political loyalty (or lack thereof) was based on his membership in the PDP, his support for PDP candidates, his advocacy of pro-PDP policies, or any other protected activity.“). More importantly for the instant appeal, retaliation for relationships other than those which are political in nature may be “undeserved” punishment, but are nonetheless not protected by the First Amendment. Id. (“This may be an undeserved penalty, but discrimination based on non-political association does not implicate the First Amendment.“).
In Correa-Martínez v. Arrillaga-Beléndez, we affirmed the dismissal of a First Amendment claim brought by a government employee alleging that his forced resignation was the result of his close relationship with another employee with whom the defendants had personal and political differences. 903 F.2d 49, 57-59 (1st Cir.1990) (overruled on other grounds by Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68 (1st Cir.2004)). There, we reasoned that the plaintiff‘s allegations in that case did not explain how the defendants discriminated against him based on his political beliefs or advocacy of ideas regarding matters of public interest. Id. at 57. We further reasoned, “he asserts only that defendants had ‘personal and political differences’ with an unrelated individual [...] and discriminated against him (plaintiff) because of his ‘close association’ with [said individual].” Id. Such personal relationships with someone with whom defendants have political differences do not rise to the level of protected activity guaranteed by the Constitution. See id. (“[I]n constitutional terms, freedom of association is not to be defined unreservedly. Entry into the constitutional orbit requires more than a mere relationship.“). That is, “the First Amendment does not protect against all deprivations arising out of an act of association unless the act itself—say, joining a church or political party, speaking out on matters of public interest, advocacy of reform—falls within the scope of [protected] activities.” Id. Therefore, when a constitutional claim rests upon the political beliefs of third parties being the cause of the adverse action without more, a plaintiff fails to establish that its protected activity is the motivating factor behind defendant‘s actions.
Here, Rosaura acknowledged that there would be material facts in controversy requiring reversing the dismissal granted by the district court, only if we decide that it had a valid cause of action for
We note that here there is a particularly attenuated relationship between Rosaura and the parties exercising First Amendment rights (Rosaura alleged that it was denied a contract because its shareholders are related to parties exercising First Amendment rights), and there is no allegation that the denial of the contract to Rosaura was designed to or would have any material effect on the exercise of First Amendment rights by the relatives of shareholders. For those reasons, Rosaura failed to establish a colorable claim for First Amendment retaliation.
C. The Equal Protection Claim
Rosaura claims, in the alternative, that the lease contract was ultimately granted to a political supporter of the Mayor, without submission for his written approval, as the Mayor required of Rosaura‘s contract at the eleventh hour. Thus, it claims that this action violated its equal protection rights. In support of the purported unequal treatment, Rosaura simply contends, without details, that the favored contractor‘s property was sub-standard and did not meet Head Start requirements. Rosaura points us without much guidance to Clark v. Boscher, which held that “[a] plausible equal protection violation is established when a plaintiff shows by his or her well-pleaded facts that she was treated differently from ‘others similarly situated ... based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
As stated before, an equal protection claim requires “proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir.2013). Rosaura has failed to show any of these impermissible considerations.
Defendants correctly reply that Rosaura‘s equal protection claim fails because it is a mere restatement of its First Amendment claim and based on the same facts. See Uphoff Figueroa v. Alejandro, 597 F.3d 423, 426 (1st Cir.2010) (“Political discrimination and retaliation claims under the First Amendment cannot be restated as claims under the Equal Protection Clause“); Prisma Zona Exploratoria de Puerto Rico, Inc. v. Calderon, 310 F.3d 1, 8 (1st Cir.2002) (“To the extent that this claim pretends to be anything more than a restatement of the failed First Amendment claim, it too is undeveloped and abandoned.“).
Rosaura has also failed to make an argument as to how it was similarly situated to the favored contractor. It simply states without explanation that this competitor was awarded the contract based on political favoritism, even though its facilities were allegedly not as suitable for the municipal government‘s use. Rosaura points to nothing in the summary-judgment record that might shed light on
III. Conclusion
For the reasons foregoing we hold that Rosaura failed to state a First Amendment retaliation cause of action, and failed to state an equal protection claim. Therefore, we need not address at this time whether Umbehr protections extend to first time government contractors. The district court‘s judgment is affirmed.
AFFIRMED.