United States Court of Appeals 

For the First Circuit 

No. 17-1769 

ANTONIO BORRÁS-BORRERO; IVELISSE SERRANO-RODRÍGUEZ; CONJUGAL 

PARTNERSHIP BORRÁS-SERRANO, 

Plaintiffs, Appellants, 

v. 

CORPORACIÓN DEL FONDO DEL SEGURO DEL ESTADO; 

LIZA ESTRADA-FIGUEROA; MIGDALI RAMOS-RIVERA; 

FRANCISCO IRLANDA-MÉNDEZ; MARÍA ENID BARRETO-RODRÍGUEZ; 

JUAN ESCOBAR-DEL VALLE, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Thompson, Circuit Judges. 

 Rafael E. Rivera-Sánchez for appellants. 

 Carlos Lugo-Fiol, with whom Isaías Sánchez-Báez, Solicitor 

General, was on brief, for appellees Lisa Estrada-Figueroa, 

Migdali Ramos-Rivera, Francisco Irlanda-Méndez, María Enid 

Barreto-Rodriguez, and Juan M. Escobar-Del Valle. 

Peter W. Miller, with whom Javier A. Vega-Villalba, Stuart A. 

Weinstein-Bacal, and Weinstein-Bacal, Miller & Vega, P.S.C. were 

on brief, for appellee Corporación del Fondo del Seguro del Estado. 

May 1, 2020 
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HOWARD, Chief Judge. Antonio Borrás-Borrero appeals the 

district court's dismissal of his complaint1 alleging that the 

Corporación del Fondo del Seguro del Estado (the "SIFC"2), along 

with its administrators (the "Individual Defendants"), conspired 

to deprive Borrás of his First, Fourth, Fifth, and Fourteenth 

Amendment rights. Specifically, Borrás asserts that several 

adverse employment actions taken against him by the SIFC — a 

demotion, suspension with pay, and suspension without pay — were 

acts of retaliation to punish him for his constitutionallyprotected whistleblowing activities. 

We address the claims in two sets: first, we summarily 

affirm the district court's dismissal of the following claims 

because Borrás has failed to "seriously develop[]" arguments in 

their favor on appeal: (1) deliberate and intentional infliction 

of economic and emotional injury; (2) violation of Borrás's Fifth 

Amendment right against self-incrimination; (3) impermissible 

disclosure of Borrás's personnel file; and (4) malicious 

prosecution. Tejada-Batista v. Morales, 424 F.3d 97, 103 (1st 

1 In addition to Borrás, his wife, Ivelisse Serrano-Rodríguez, 

and the partnership between them are also plaintiffs and 

appellants. Outside of allegations that Serrano was improperly 

transferred to a different office, the complaint describes conduct 

directed at Borrás, and we refer to the claims as belonging to 

Borrás for simplicity. 

2 "Corporación del Fondo del Seguro del Estado" translates to 

the "State Insurance Fund Corporation." 
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Cir. 2005) (stressing that "[a]n argument not seriously developed 

in the opening brief" is lost); see also Rodríguez v. Mun. of San 

Juan, 659 F.3d 168, 175 (1st Cir. 2011) (holding that arguments 

"adverted to in a cursory fashion, unaccompanied by developed 

argument," are waived). 

Next, for the reasons discussed below, we also affirm 

the district court's dismissal of the remaining claims, although 

we vacate the district court's dismissal of the Puerto Rico law 

claims with prejudice and remand with instructions to dismiss those 

claims without prejudice. 

I. Factual History

The SIFC is a public governmental agency created under 

Puerto Rico law to administer workers' compensation and medical 

treatment programs for employees injured in the workplace. Borrás 

has been an SIFC employee since 1984. The Individual Defendants, 

also employees of the SIFC, include: (1) Liza Estrada-Figueroa, 

the head Administrator of the SIFC; (2) Migdali Ramos-Rivera, the 

Associate Director of the SIFC's Labor Relations Office under 

Estrada's direct supervision; (3) Francisco Irlanda-Méndez, an 

officer in the Labor Relations Office under Ramos's direct 

supervision; (4) Juan Escobar-del Valle, a janitor and internal 

messenger; and (5) María Enid Barreto-Rodríguez, a Regional 

Director under Estrada's direct supervision, who, at all times 
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relevant to the complaint, was the regional director for Borrás 

and Escobar. 

Two allegedly retaliatory actions by the SIFC comprise 

the basis of Borrás's complaint. The first took place in 2010. 

Early that year, soon after his promotion to supervisor of his 

office, which produced worker's compensation policies for 

employers, Borrás reported to the SIFC's audit division that an 

employee named Nury Curet, whom he supervised, had been absent for 

two days. According to Borrás, following his report documenting 

Curet's absence, Curet's husband approached Borrás in his office 

"full of rage" and attempted to physically assault him. Borrás 

reported this incident both to the SIFC's internal Labor Relations 

Office and to law enforcement. However, when the police came to 

take Borrás's complaint, SIFC administrators told them that the 

incident would be handled internally. 

Shortly after this incident, the Regional Director of 

Borrás's office allegedly told Borrás that he would be demoted 

from his position as supervisor because of "his political 

affiliation with the Popular Democratic Party." According to 

Borrás, the Regional Director added that the incident with Curet 

and her husband "had precipitated his demotion." The relationship 

between Borrás's political affiliation and the incident with Curet 

remains unclear from the complaint. Thereafter, Borrás was removed 

from his post as supervisor and reassigned to his previous union-
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protected position. In response, Borrás filed a lawsuit against 

the SIFC — unrelated to this one — alleging that he had been 

impermissibly demoted because of his political affiliation.3 

The second allegedly retaliatory act against Borrás took 

place in 2014. According to Borrás, Defendant Juan Escobar-del 

Valle had been engaged in a "pattern of hostilities" towards Borrás 

for several years. In March 2014, these hostilities escalated 

when Escobar allegedly "tried to assault and batter" Borrás at a 

shopping mall and again at work the next day. Borrás reported 

these incidents to the internal Labor Relations Office, as well as 

to the Regional Director in charge of his office. Borrás alleges 

that the SIFC failed to investigate these events. 

On August 29, 2014, Borrás found himself in yet another 

physical altercation with Escobar, this time at a union assembly 

meeting. According to Borrás, Escobar deliberately bumped into 

him and then used the bump to start a fight, "physically 

assault[ing]" Borrás and hitting him in the face. Borrás sustained 

"bruises and injuries to his eyes, especially his left eye that 

3 The complaint describes two additional incidents following 

Borrás's demotion but before 2013. First, Borrás again reported 

Curet for fraudulent expense practices and Borrás's immediate 

supervisor failed to investigate Borrás's complaint. Second, 

Borrás claims that Defendant María Enid Barreto-Rodríguez, who was 

coordinating political donations for the office, failed to deliver 

$1,100 in donations made by Borrás that were intended for the 

Popular Democratic Party. It is not clear what role, if any, 

Borrás alleges these incidents played in either his earlier 

demotion or his years-later suspensions. 
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had been operated [on] for glaucoma." This time, Borrás reported 

the incident to the police. 

Borrás alleges that after this incident, Escobar 

contacted Defendant Maria Enid Barreto-Rodríguez (then the 

Regional Director of the SIFC office in which Borrás and Escobar 

worked) to inform her of the fight. Borrás further alleges that 

after receiving this information, Barreto turned to Defendant 

Migdali Ramos-Rivera (then the Chief of the Labor Relations 

Office), asking her to fabricate disciplinary charges against 

Borrás "as if [Borrás] had been the assailant." Finally, Borrás 

alleges that Ramos assigned the task of creating a falsified 

disciplinary action to Defendant Francisco Irlanda-Mendez (then an 

employee at the Labor Relations Office for the SIFC), who did as 

he was asked. 

Four days after the fight at the union assembly meeting, 

Irlanda summoned Borrás for an interview regarding the incident. 

Borrás refused to speak to Irlanda about the physical altercation, 

citing his Fifth Amendment right against self-incrimination and 

explaining that because there was an ongoing criminal 

investigation by the San Juan Municipal police, he did not know if 

he would be charged. The next day, September 3, 2014, Borrás 

received a letter indicating that, as a result of the fabricated 

assault allegations against him, he had been suspended from work, 

with pay. 
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On September 11, 2014, criminal charges were filed 

against Escobar in Puerto Rico court for the alleged assault. At 

one point, the judge instructed Ramos, who was present in the 

courtroom for a discovery conference, to produce a copy of Borrás's 

personnel file for in camera inspection. Ramos complied, giving 

the file directly to Escobar's attorney, despite Borrás's protests 

that the production of his personnel file constituted a violation 

of both his privacy rights and SIFC policy. The court ultimately 

found Escobar not guilty. 

Borrás also alleges that while all of this was going on, 

the SIFC "unlawfully transferr[ed]" his wife, Plaintiff Ivelisse 

Serrano-Rodríguez, to a different regional office, allegedly in 

retaliation for her testimony during the trial. Serrano 

immediately filed an internal complaint challenging her transfer, 

and she was reinstated to her original post. 

On September 22, 2014, the SIFC held a Loudermill hearing 

for Borrás. The examiner at the hearing ultimately recommended 

that Borrás be suspended without pay for sixty days. Shortly 

thereafter, Boráas received a letter signed by Estrada notifying 

him of his suspension without pay, which adopted by reference the 

recommendation made by the hearing examiner. 

II. Procedural History 

In January 2016, Borrás filed the present complaint in 

the United States District Court for the District of Puerto Rico, 
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alleging that the SIFC and its officers had conspired to deprive 

him of his constitutional rights. Specifically, Borrás asserted 

that his internal and external reporting of the various incidents 

were constitutionally-protected "whistleblowing activities," and 

that the SIFC and its administrators had punished him for these 

activities by demoting and suspending him. The complaint includes 

claims brought under 42 U.S.C. § 1983 ("Section 1983") that the 

SIFC and its administrators' behavior violated the U.S. 

Constitution, as well as claims that the SIFC violated Puerto Rico 

law. 

The SIFC moved to dismiss Borrás's complaint based on 

Eleventh Amendment immunity. A few weeks later, the Individual 

Defendants followed suit, filing a "Motion for Joinder and Motion 

to Dismiss under Additional Grounds." Borrás timely filed his 

opposition to each motion. In his response to the Individual 

Defendants' motion, Borrás referenced the need to amend his 

complaint. Nevertheless, despite the ability to amend the 

complaint "once as a matter of course" under Fed. R. Civ. P. 

15(a)(1), at no point did Borrás actually amend his complaint or 

request leave to file an amended complaint. 

The district court entered a partial judgment granting 

the SIFC's motion to dismiss based on Eleventh Amendment immunity 

on March 22, 2017, and a judgment dismissing the entire case with 

prejudice on June 14, 2017. This appeal followed. 
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III. Discussion 

In this appeal, we consider five key issues. First, we 

discuss the possibility that the SIFC may be insulated from suit. 

Second, we consider whether the district court properly dismissed 

Borrás's Section 1983 claims. Third, we consider whether the 

district court properly declined to exercise supplemental 

jurisdiction over Borrás's claims under Puerto Rico law. Fourth, 

we consider the merits of Borrás's claim that his Loudermill 

hearing did not comport with the requirements of due process 

because he was not afforded a hearing in an impartial forum before 

an impartial adjudicator. Finally, we consider whether the 

district court violated Borrás's due process rights by denying him 

the opportunity to amend his complaint before dismissing it with 

prejudice. 

A. Standard of Review

We review the district court's dismissal of Borrás's 

complaint for failure to state a claim de novo. Cortés-Ramos v. 

Martin-Morales, 894 F.3d 55, 58 (1st Cir. 2018). "The make-orbreak standard . . . is that the combined allegations, taken as 

true, must state a plausible, not a merely conceivable, case for 

relief." Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 

25, 29 (1st Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 

680-81 (2009)). 
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The familiar Twombly standard clarifies that under Fed. 

R. Civ. P. 12(b)(6), a complaint must allege a "plausible 

entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 559 (2007). In evaluating whether a plaintiff has met this 

burden, we "accept[] the complaint's well-pleaded facts as true 

and indulg[e] all reasonable inferences in the plaintiff's favor." 

Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008). Even so, the tenet 

that a court must accept as true all of the allegations contained 

in a complaint is "inapplicable to legal conclusions," and 

"[t]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice." Iqbal, 

556 U.S. at 678 (citing Twombly, 550 U.S. at 555). In other words, 

"[i]f the factual allegations in the complaint are too meager, 

vague, or conclusory to remove the possibility of relief from the 

realm of mere conjecture, the complaint is open to dismissal." 

Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011) 

(quoting Secs. and Exch. Comm'n v. Tambone, 597 F.3d 436, 442 (1st 

Cir. 2010)). 

B. The SIFC's Amenability to Suit 

Before we reach the merits of the Section 1983 claim, we 

must first discuss two preliminary arguments that could 

potentially insulate the SIFC from suit altogether. 

First, the SIFC asserts that it can benefit from the 

Commonwealth's Eleventh Amendment immunity because it is an "arm 
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of the state." Fresenius Med. Care Cardiovascular Res., Inc. v. 

P.R. and Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st 

Cir. 2003) (finding that whether a public entity is entitled to 

Eleventh Amendment immunity is an inquiry into whether it is an 

arm of the state). Indeed, "Puerto Rico is treated as a state for 

Eleventh Amendment purposes," id., and the district court 

dismissed the claims against the SIFC based on its entitlement to 

protection under the Commonwealth's immunity. 

Nevertheless, determining whether the SIFC is entitled 

to Eleventh Amendment immunity is not straightforward: in separate 

cases, the District of Puerto Rico has decided the issue in both 

directions. Compare Joubert-Vazquez v. Alvarez-Rubio, 820 F. 

Supp. 2d 289, 298-300 (D.P.R. 2011) (finding that the SIFC was not 

entitled to Eleventh Amendment immunity), with Borrás-Borrero v. 

State Ins. Fund Corp., CIVIL 16-1114CCC, 2017 WL 1088284, at *1 

(D.P.R. March 22, 2017) (finding that the SIFC was entitled to 

Eleventh Amendment immunity) (citing Order, Bisbal-Bultron v. 

State Ins. Fund Corp., CIVIL 10-01555CCC, ECF No. 80, at *2-3 

(D.P.R. May 6, 2014)). But "it is well-established under First 

Circuit precedent that federal courts may resolve a case on the 

merits in favor of a state without first resolving any Eleventh 

Amendment issues the state raises." Brait Builders Corp. v. Mass., 

Div. of Capital Asset Mgmt., 644 F.3d 5, 11 (1st Cir. 2011) (citing 

Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys., 173 F.3d 46, 53-57 
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(1st Cir. 1999)). As a result, we may "defer thorny Eleventh 

Amendment questions in cases in which it is perfectly clear that 

the state entity will prevail on the merits." Dávila v. 

Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 14 (1st 

Cir. 2007) (citing Parella, 173 F.3d at 53-57). 

Because we comfortably conclude that Borrás's Section 

1983 claims lack substantive merit, we decline to address whether 

the SIFC may assert the Commonwealth's Eleventh Amendment 

immunity. 

Second, the Puerto Rico Oversight, Management, and 

Economic Stabilization Act ("PROMESA"), enacted to help the 

Commonwealth navigate its public debt crisis, included an 

automatic stay of ongoing litigation that could result in the 

Commonwealth incurring liability. See 48 U.S.C. § 2194(b). While 

the SIFC references the stay and argues that we should interpret 

PROMESA to strengthen its Eleventh Amendment immunity argument, 

the SIFC does not argue that this action should be stayed under 

PROMESA. Both Borrás and the Individual Defendants similarly do 

not argue that the PROMESA stay prevents us from addressing the 

claims against the SIFC on the merits. 

While we are not bound by the parties' collective failure 

to discuss applicable law, we are generally reluctant to venture 

beyond the ambit of the parties' arguments to decide an issue 

without full briefing. See Whyte v. Conn. Mut. Life Ins. Co., 818 
- 13 - 

F.2d 1005, 1011 n.20 (1st Cir. 1987) (declining to address an issue 

not raised by the parties unless "at a minimum . . . not raising 

the issue would result in a gross miscarriage of justice"). That 

reluctance is particularly warranted where, as here, the 

underlying legal issue is not clear-cut: it is not obvious that 

the Commonwealth should be considered an "obligor[] or guarantor" 

of liability incurred by the SIFC, a prerequisite for the stay to 

apply. 48 U.S.C. § 2194(a)(1)(A). Furthermore, though we do not 

decide the issue, we are skeptical that the PROMESA stay's 

prohibition of "the commencement or continuation, including the 

issuance or employment of process, of a judicial . . . action," 48 

U.S.C. § 2194(b)(1), requires the automatic implementation of the 

stay in lieu of dismissal on the merits. Cf. In re Pecan Groves 

of Ariz., 951 F.2d 242, 245 (9th Cir. 1991) (finding that creditors 

were unable to attack purported violations of an automatic 

bankruptcy stay under 11 U.S.C. § 362 because the stay was intended 

to benefit the debtor). 

Because the parties do not argue that the PROMESA stay 

applies to this litigation, and because the implementation of the 

stay is not clear-cut, we bypass this argument and proceed to the 

merits of Borrás's claims. 

C. Borrás's Section 1983 Claims 

On the merits, we begin with whether the district court 

properly dismissed Borrás's Section 1983 claims. Despite the 
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litany of constitutional claims alleged in his complaint, Borrás 

advances a single argument on appeal: that the SIFC and the 

Individual Defendants violated his freedom of expression by 

retaliating against him for speaking out against his fellow 

employees. 

Borrás is correct that government officials may not 

retaliate against an individual for blowing the whistle and 

reporting misconduct by other employees. See Mercado-Berrios v. 

Cancel-Alegría, 611 F.3d 18, 25 (1st Cir. 2010) (citing Hartman v. 

Moore, 547 U.S. 250, 256 (2006)). However, where a state employee 

plaintiff (here, Borrás) asserts that a state-employer defendant 

(here, the SIFC) violated his right to free expression by taking 

an adverse employment action against him, we qualify the general 

prohibition against retaliation in recognition of the government's 

interest in running an effective workplace. See id. at 26. We 

therefore apply a three-part test in these circumstances, 

considering: 

(1) whether the speech involves a matter of public 

concern; (2) whether, when balanced against each 

other, the First Amendment interests of the 

plaintiff and the public outweigh the government's 

interest in functioning efficiently; and (3) 

whether the protected speech was a substantial or 

motivating factor in the adverse action against the 

plaintiff. 

Rosado-Quiñones v. Toledo, 528 F.3d 1, 5 (1st Cir. 2008) (quoting 

Jordan v. Carter 428 F.3d 67, 72 (1st Cir. 2005)). 
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The district court held that Borrás failed to satisfy 

the first and third prongs of this test, because (1) his speech 

allegedly giving rise to retaliation was not on a matter of public 

concern, and because (2) he failed to plead sufficient facts 

establishing that his expression was a substantial or motivating 

factor in the adverse decisions taken against him. 

We agree with the district court on both fronts. Borrás 

all but openly concedes that his speech is not on a matter of 

public concern; the entirety of his argument on appeal is that his 

speech need not be on a matter of public concern because Puerto 

Rico law does not require government employee speech to be on a 

matter of public concern to be protected. Therefore, according to 

Borrás, both Supreme Court and First Circuit law restricting the 

scope of First Amendment protections for government employee 

speech do not apply here. 

This proposition is patently untrue as a matter of law. 

"It is established beyond peradventure that a state actor's failure 

to observe a duty imposed by state law, standing alone, is not a 

sufficient foundation on which to erect a section 1983 claim." 

Martinez v. Colon, 54 F.3d 980, 989 (1st Cir. 1995). To the 

contrary, in order to state a claim under Section 1983, a plaintiff 

must "allege the violation of a right secured by the Constitution 

and laws of the United States[.]" West v. Atkins, 487 U.S. 42, 48 

(1988). The Supreme Court has consistently clarified that Section 
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1983 "'is not itself a source of substantive rights,' but merely 

provides 'a method for vindicating federal rights elsewhere 

conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting 

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Whether or not 

Borrás has a legitimate claim under state law that the SIFC 

retaliated against his free expression, his Section 1983 claims 

cannot succeed to the extent that they rely on protections that 

are present in Puerto Rico law but not in the U.S. Constitution or 

any federal statutes, as they therefore do not vindicate "federal 

rights," Atkins, 487 U.S. at 49, secured by the United States' 

"Constitution and laws," 42 U.S.C. § 1983. 

We follow controlling First Amendment precedent and find 

that Borrás's Section 1983 claims were properly dismissed. We 

have explicitly found that a complaint regarding personal 

animosity between coworkers, as here, represents "a classic 

example of speech concerning internal working conditions affecting 

only the speaker and co-workers," not speech which concerns the 

public. Rosado-Quiñones, 528 F.3d at 5; see also Connick v. Myers, 

461 U.S. 138, 145-46 (1983). 

The facts before us are strikingly similar to the facts 

in Rosado-Quiñones, in which the plaintiff was allegedly demoted 

because he filed a lawsuit against his employer claiming "labor 

harassment." 528 F.3d at 5. There, we found that the plaintiff's 

claims, which were applicable to him alone, did not "implicate the 
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ability" of the public employer to "carry out [its] responsibility 

to the public," and therefore did not merit First Amendment 

protection. Id. Applying this standard to the facts presented, 

we cannot discern any articulable relationship between Borrás's 

conflict with Escobar and the ability of the SIFC to fulfill its 

public duties. Even drawing all reasonable inferences in Borrás's 

favor, our most charitable reading of the complaint still reveals 

that what Borrás attempts to frame as "whistleblowing" is better 

characterized as a scattered collection of misgivings about his 

fellow employees who, more often than not, were acting in their 

personal capacities. 

None of Borrás's speech acts concern the SIFC in its 

operational capacity — and even if they did, the Supreme Court has 

denied First Amendment protection to "mere extensions" of personal 

disputes which, if released to the public, "would convey no 

information at all other than the fact that a single employee is 

upset with the status quo." See Connick, 461 U.S. at 148. Because 

Borrás alleges nothing in the complaint to suggest that this 

incident could be related to the SIFC's "official malfeasance, 

abuse of office, and neglect of duties" — the quintessential 

subjects of public concern when it comes to public employee speech 
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— his claim cannot survive. Rosado-Quiñones, 528 F.3d at 5 

(quoting Curran v. Cousins, 509 F.3d 36, 46 (1st Cir. 2007)).4

Furthermore, even if his speech were on a matter of 

public concern, Borrás still fails to allege a single nonconclusory fact linking his suspension to his "whistleblowing" 

acts. The complaint is rife with conclusory allegations that the 

defendants conspired to fabricate a disciplinary claim against 

Borrás concerning his physical conflict with Escobar, but remains 

conspicuously silent on several key questions, such as (a) whether 

the defendants even knew of the speech that allegedly engendered 

retaliation to begin with; (b) whether the defendants, if they did 

know of the speech that allegedly engendered retaliation, felt 

negatively (or had reason to feel negatively) about the speech; 

and (c) whether the defendants at any time considered Borrás's 

speech when suspending him from work. 

We do not suggest that Borrás must painstakingly allege 

facts that would address each of these issues to state a claim for 

relief. But, taken as a whole, these open questions reflect a 

conspicuous dearth of factual allegations in the complaint that 

4 We do not consider whether Borrás's speech in relation to 

his 2010 demotion was on a matter of public concern because the 

demotion is the subject of a separate action. See Order, 

Bisbal-Bultron, CIVIL 10-01555CCC, ECF No. 80. To the extent 

included in this action, claims related to the demotion are barred 

by the statute of limitations. See Muñiz-Cabrero v. Ruiz, 23 F.3d 

607, 610 (1st Cir. 1994) (explaining that the statute of 

limitations for a Section 1983 claim in Puerto Rico is one year). 
- 19 - 

might tend to show that Borrás's suspension had anything to do 

with the reporting of his coworkers. Even if the facts--construed 

in the light most favorable to Borrás--might lead us to conclude 

that he was treated unfairly by his public employer, a First 

Amendment retaliation claim must allege specific facts that 

connect an adverse employment action to the speech or 

whistleblowing activity. Stripped of its conclusory allegations, 

the complaint cannot survive under Fed. R. Civ. P. 12(b)(6). 

D. Borrás's Puerto Rico Law Claims 

Having determined that Borrás's Section 1983 claims were 

properly dismissed, we next turn to whether the district court 

properly dismissed Borrás's claims brought under Puerto Rico law. 

District courts may exercise supplemental jurisdiction over state 

law claims that are "so related to claims in the [federal] 

action . . . that they form part of the same case or controversy 

under Article III of the United States Constitution." 28 U.S.C. 

§ 1367(a). However, it is settled law that district courts may 

decline to exercise supplemental jurisdiction over pendent state 

law claims when the anchor federal claims for those state law 

claims are dismissed. See So. Commons Condo. Ass'n v. Charlie 

Arment Trucking, Inc., 775 F.3d 82, 92 (1st Cir. 2014). "[W]hen 

the federal-law claims have dropped out of the lawsuit in its early 

stages and only state-law claims remain, the federal court should 

decline the exercise of jurisdiction by dismissing the case without 
- 20 - 

prejudice." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 

(1988); see also United States ex rel. Kelly v. Novartis Pharm. 

Corp., 827 F.3d 5, 15 (1st Cir. 2016) (recognizing that when 

federal claims are dismissed "at such an early stage" supplemental 

state law claims should also be dismissed). Therefore, because 

the district court properly dismissed Borrás's Section 1983 

claims, it acted within its power to decline to exercise 

supplemental jurisdiction and, accordingly, dismiss his pendent 

Puerto Rico claims as well. 

But, it appears that, in dismissing Borrás's Puerto Rico 

law claims without discussion, the district court dismissed them 

with prejudice, stating that "the Complaint . . . is DISMISSED, 

with prejudice, in its entirety." When declining to exercise 

supplemental jurisdiction over claims, it "does not wash" to 

dismiss them with prejudice instead of without prejudice. 

Novartis, 827 F.3d at 16. We therefore vacate the district court's 

dismissal of Borrás's Puerto Rico law claims with prejudice and 

remand with instructions to dismiss those claims without 

prejudice. 

E. Loudermill Hearing 

Next, Borrás argues that "[t]he district court erred 

when finding that [his] Loudermill informal hearing complied with 

due process," because "it goes without saying that Loudermill 

hearings must take place in an impartial forum, with an impartial 
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adjudicator, free of bias." This argument contravenes established 

law. In Cleveland Bd. of Educ. v. Loudermill, the Supreme Court 

admonished that termination decisions typically require the 

employee to be granted "some kind of a hearing" to avoid running 

into due process concerns. 470 U.S. 532, 542 (1985). 

Critically, however, "[t]he standard the defendant must 

meet [for a Loudermill hearing] . . . is not high: the U.S. 

constitution requires only 'some pretermination opportunity to 

respond.'" Chmielinski v. Massachusetts, 513 F.3d 309, 316 (1st 

Cir. 2008) (quoting Loudermill, 470 U.S. at 542). We have 

consistently held that these hearings need not be elaborate so 

long as the employee receives "(1) 'oral or written notice of the 

charges against him,' (2) 'an explanation of the employer's 

evidence,' and (3) 'an opportunity to present his side of the 

story.'" Id. (quoting Loudermill, 470 U.S. at 545-46). And, we 

have explicitly said that "there is no requirement that the hearing 

officer be impartial; indeed, the terminating employer may 

preside." Id. at 318. 

Borrás does not assert that any alleged bias deprived 

him of either notice or the opportunity to put his version of the 

facts before a decision-maker; this is all that Loudermill 

requires. Therefore, his argument that his Loudermill hearing did 

not comport with due process fails. 
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F. Ability to Amend Complaint 

Finally, we turn to Borrás's assertion that the district 

court's failure to allow him to amend his complaint before 

dismissing it with prejudice violated his right to due process. 

Fisher v. Kadant, Inc. is directly on point. 589 F.3d 505 (1st 

Cir. 2009). In Fisher, we considered "what effect, if any . . . 

a passing reference to a possible future motion to amend, contained 

in an opposition to a motion to dismiss, [has] on the district 

court's authority to allow amendment of a dismissed complaint after 

the entry of judgment." Id. at 507. We concluded that "such a 

passing request is without effect in these circumstances," and 

that the Fisher plaintiffs' failure to avail themselves of the 

opportunity to amend their complaint as of right before the 

issuance of judgment against them rendered them without recourse 

after the entry of judgment. Id. 

Here, like the plaintiffs in Fisher, Borrás adverted to 

the need to amend his complaint in his opposition to the 

defendants' motion to dismiss. Nevertheless, at no point did 

Borrás either take advantage of Fed. R. Civ. P. 15(a)(1), which 

allows a pleading to be amended "once as a matter of course," or 

request leave to amend under Fed. R. Civ. P. 15(a)(2). See Fed. 

R. Civ. P. 15(a)(1)-(2) (allowing parties to amend pleadings "once 

as a matter of course" under certain limitations and, outside those 

limitations, with leave of the court or the other party's written 
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consent). Only after the issuance of a judgment against him did 

Borrás argue, on appeal, that he should have been permitted to 

amend his complaint. Because Borrás chose not to file an amended 

complaint prior to the issuance of judgment against him, there was 

no due process violation. 

IV. Conclusion 

For the foregoing reasons, we affirm the district 

court's dismissal of the federal law claims with prejudice, vacate

the dismissal of Borrás's Puerto Rico law claims with prejudice, 

and remand with instructions to dismiss the Puerto Rico law claims 

without prejudice.