United States Court of Appeals

For the First Circuit

No. 08-1989

CARLOS CONCEPCIÓN CHAPARRO; MARITZA ACEVEDO-ORAMA; YARITZA

ACEVEDO-ORAMA; ELIZABETH ACEVEDO-ORAMA; MIGDALIA ACEVEDO-ORAMA;

JOSÉ A. MÉNDEZ-VALLE; ANGEL CASTRO-GONZÁLEZ; MIGUEL A. CORTÉSROMÁN; WILLIAM ROSA-FIGUEROA; MIGUEL TORRES-PÉREZ; EDWIN ACEVEDOACEVEDO; RAÚL PANETO-COLÓN; MARIA PANETO-COLÓN; GILBERTO VARGASRÍOS; AMILCAR MUÑIZ-ROSADO; ADELAIDA ROSARIO-GALLOZA; ÁNGEL L.

JIMÉNEZ-ACEVEDO; EDWIN VILLARRUBIA-SOTO; JOSÉ VILLANUEVARODRÍGUEZ; JOSÉ A. CUEVAS-HERNÁNDEZ; ELBA I. QUINTANA-ROMÁN;

RAMONITA ACEVEDO-MUÑOZ; PABLO VILLANUEVA-RUIZ; THUALIA MUÑIZSANTONI; GLORIVEE SUÁREZ; RAMONITA RODRÍGUEZ-VARELA; ANÍBAL

MÉNDEZ-ACEVEDO,

Plaintiffs, Appellees,

EILEEN S. SÁNCHEZ-FELICIANO; SANTIAGO HERNÁNDEZ-RUIZ,

Plaintiffs,

v.

MIGUEL A. RUIZ-HERNÁNDEZ, in his official capacity as mayor of

the Municipality of Aguada and in his personal capacity; GLENDA

L. PEÑA-MUÑOZ, in her official capacity as the Municipality of

Aguada's human resources director and in her personal capacity;

ANÍBAL MENDOZA, in his official capacity as the Municipality of

Aguada's public works director and in his personal capacity,

Defendants/Third-Party Plaintiffs, Appellants,

MUNICIPALITY OF AGUADA, PUERTO RICO,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before

Lynch, Chief Judge,

Torruella and Howard, Circuit Judges.

Susana I. Peñagarícano-Brown, Assistant Solicitor General,

with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia

Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. GirónAnadón, Deputy Solicitor General, were on brief for appellants

Miguel A. Ruiz-Hernández and Glenda L. Peña-Muñoz, in their

personal capacities.

Lizabel M. Negrón for appellant Municipality of Aguada.

Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,

Eliezer A. Aldarondo-Lopez and Aldarondo & López Bras were on brief

for appellees.

June 3, 2010
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LYNCH, Chief Judge. This is the second appearance here

of a civil rights suit under 42 U.S.C. § 1983 brought by a group of

twenty-two contract employees against the Municipality of Aguada in

Puerto Rico and two municipal officers. See Acevedo-Feliciano v.

Ruiz-Hernández (Acevedo-Feliciano IV), 447 F.3d 115 (1st Cir.

2006). That opinion, with which we assume familiarity, states the

underlying facts.

In the earlier phases of this case, before the appeal and

remand, a jury rejected plaintiffs' claim that they suffered

political party affiliation discrimination in violation of their

First Amendment rights. This left only one federal claim in the

case: whether plaintiffs had, on the facts of this case, a

sufficient property interest in their employment by the

Municipality to invoke federal constitutional procedural due

process rights and whether those rights were violated.

Between June and September 2000, the (now-former) mayor

of Aguada gave plaintiffs approximately one-year contracts of

employment with the Municipality, through June 30, 2001. These

contracts stated that plaintiffs' employment was "by way" of a

grant from the Commonwealth to the Municipality under Law 52. That

law authorizes the Commonwealth to grant municipalities certain

funds to promote local employment. See P.R. Laws. Ann. tit. 29,

§ 711c. Law 52 funds initially paid for plaintiffs' salaries.

After six months of funding under Law 52 ended on December 31,
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2000, plaintiffs were paid for another month with municipal funds.

The Municipality terminated their employment on January 31, 2001,

without notice or hearing, some five months shy of the expiration

of their contracts.

In order for plaintiffs to have procedural due process

rights in their employment, each plaintiff must have had a

reasonable expectation, based on a statute, policy, rule, or

contract, that he or she would continue to be employed. See Wojcik

v. Mass. State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002).

These interests are commonly called "property interests," and we

look to state law to see if such property interests exist.

Acevedo-Feliciano IV, 447 F.3d at 121 (citing Bishop v. Wood, 426

U.S. 341, 344 (1976)). Whether these property interests rise to a

level sufficient to trigger procedural due process protections

remains a federal question. Id.

In our prior decision, we vacated the district court's

entry of judgment in favor of defendants, which was based on its

determination that "either the Law 52 contract or municipal law

required that each plaintiff's hiring contract be read to include

the implicit condition that the term of employment was conditioned

on the Municipality's receipt of Law 52 funding." Id. at 122.

After a discussion of Law 52 and pertinent municipal law,

we held that this rationale was not dispositive or supported, that

more analysis was needed, and that Puerto Rican law on the subject
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was unclear. Id. at 122-24. We vacated and remanded so the court

could address "whether Puerto Rican law supplies any sort of

property interest once the Law 52 funding ceased." Id. at 124. 

On remand, the district court directed both parties to

file cross-motions for summary judgment, granted summary judgment

for plaintiffs, and held an evidentiary hearing on related facts.

The district court held that on the undisputed facts, plaintiffs

had a continued expectation of employment even though the Law 52

funding had expired. See Acevedo-Feliciano v. Ruiz-Hernández, 524

F. Supp. 2d 150, 154 (D.P.R. 2007) (Acevedo-Feliciano V). It so

held because municipal law did not prohibit the Municipality from

using general funds to continue paying plaintiffs' salaries, and

the Municipality knew it had substantial uncommitted funds when it

terminated plaintiffs' contracts. Id. at 153-54.

The court further found that plaintiffs' expectation

constituted a property interest in continued employment cognizable

under the due process clause. Id. at 154. It also held that there

was no indication from defendants that there were any adequate

state remedies. Id. at 154-55. After a trial on damages, a jury

granted compensatory damages, punitive damages, and back pay to

plaintiffs.

The Municipality and the individual defendants have

appealed. We address their contentions in turn.
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I. Denial of Certification to Puerto Rico Supreme Court

After more than nine years of litigation, a prior appeal,

and having lost at trial, defendants ask that questions be

certified to the Supreme Court of Puerto Rico. The request is more

than a little late--it was not raised until after remand--and the

district court did not abuse its discretion in denying

certification. See U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d

43, 53-54 (1st Cir. 2002).

In addition to being untimely, the two questions

defendants ask to be certified are the wrong questions. Defendants

say the dispositive, unsettled questions of Puerto Rican law on the

procedural due process claim are (1) whether a one-year appointment

made under Law 52 creates a legitimate expectation of continued

employment for the entire year if, at the time of appointment, the

Law 52 allotment was only for six months; and (2) whether the

Municipality must continue funding those appointments from other

funds once Law 52 funds expire.

The more significant question of Puerto Rican law

necessary to resolve plaintiffs' claim, however, is whether, under

municipal law, the Municipality could choose to use general

municipal funds to pay for Law 52 positions beyond the funding from

the Law 52 grant, so as to create a legitimate expectation of an

approximately one-year appointment. The district court held that

the Municipality was allowed, but not required, to do so under
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municipal law. See Acevedo-Feliciano V, 542 F. Supp. 2d at 153-54.

The remaining questions concerning the application of that

principle to the facts of this case were for the federal court to

resolve. We decline to certify, and the district court did not

abuse its discretion in declining to do so.

II. Existence of Procedural Due Process Rights

The district court granted summary judgment for

plaintiffs because it found as a matter of law that plaintiffs had

a property interest under state law, which was cognizable under the

due process clause, and that defendants deprived plaintiffs of that

right without due process of law. Id. at 155. We review the

district court's grant of summary judgment de novo and will affirm

if "there is no genuine issue as to any issue of material fact and

. . . the movant is entitled to judgment as a matter of law."

Agusty-Reyes v. Dep't of Educ., 601 F.3d 45, 52 (1st Cir. 2010). 

There are no contested material facts. The only

questions before us are legal ones, specifically (1) whether, based

on contractual, policy, or other sources derived from Puerto Rican

law, plaintiffs had a property interest in continued employment

with the Municipality; (2) whether that interest is a

constitutionally protected right under the due process clause of

the federal Constitution; and (3) whether the Municipality deprived

plaintiffs of that right without providing constitutionally

adequate process. See Maymi v. P.R. Ports Auth., 515 F.3d 20, 29
Contrary to defendants' assertions, because the 1

procedural due process question was appropriately resolved on

undisputed facts on summary judgment, there is no Seventh Amendment

issue. See, e.g., Darr v. Town of Telluride, 495 F.3d 1243, 1252

(10th Cir. 2007). 

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(1st Cir. 2008). Plaintiffs satisfied all these conditions, and we

affirm the district court's grant of summary judgment in their

favor. 

A. Existence of Property Interests

We first address whether plaintiffs had a reasonable

expectation of continued employment, based on their contracts,

surrounding Puerto Rican law, and the facts of the case. We hold

that they did.

The undisputed facts established that when the 1

Municipality hired plaintiffs, the contracts committed the

Municipality to employing plaintiffs for almost a year, through

June 30, 2001, though the Municipality knew that the Law 52 grant

expired on December 31, 2000, approximately six months into that

period. 

The Municipality also had the power to commit to

employing plaintiffs for their full contractual terms, despite the

limited duration of the Law 52 funds. Law 52 does not, by its

terms, prohibit municipalities from supplementing Law 52 monies

with municipal funds, see P.R. Laws. Ann. tit. 29, § 711c, and the

Commonwealth's Law 52 agreement with the Municipality here

specifically provided that "[i]f the Municipality offers to the
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employees other benefits which are not part of this agreement, the

Municipality assumes responsibility therefore and pays them with

its funds." Acevedo-Feliciano IV, 447 F.3d at 123.

Nor was the Municipality prohibited by law from making

this commitment. Indeed, the Autonomous Municipalities Act

authorizes the mayor to propose readjustments to the Municipality's

general expenses budget when there are anticipated surpluses. See

P.R. Laws. Ann. tit. 21, § 4309.

Further, it is undisputed that the Municipality acted in

ways to confirm plaintiffs' contractual expectations. After the

Law 52 funds expired, the Municipality paid plaintiffs for some

weeks out of municipal funds, confirming plaintiffs' expectation

that their employment would continue under their contracts even

after the Law 52 funds expired. This is sufficient to show that

plaintiffs had a property interest in continued employment under

state law.

B. Interests Cognizable as Procedural Due Process Rights

Plaintiffs' property interest in continued employment

under their approximately one-year contracts is a recognized

procedural due process right. This circuit's law holds that a oneyear term of employment with Puerto Rican government bodies is

generally considered a protected property interest for procedural

due process purposes. See Acevedo-Feliciano IV, 447 F.3d at 121;

Caro v. Aponte-Roque, 878 F.2d 1, 4 (1st Cir. 1989).
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C. Deprivation of Plaintiffs' Due Process Rights

Finally, we consider, and reject, defendants' argument

that plaintiffs were not deprived of protected property interests

without due process of law because the process Puerto Rico provided

was adequate.

The plaintiffs' basic claim is that the Municipality

deprived them of their property interest in continued employment

pursuant to an official policy: the mayor, the Municipality's

official policymaker, made the final decision to terminate

plaintiffs, and the parties stipulated before the district court

that no pre-termination hearing was provided. 

Defendants advance two arguments as to why state

processes provided plaintiffs with all the process they were due.

First, defendants say that, in practice, the Municipality provided

plaintiffs with all the process they were due because plaintiffs

were given notice and a collective opportunity to comment on their

termination in the meeting where they were handed their termination

notices. That argument is foreclosed by our earlier conclusion,

based on the parties' previous submissions before this court, that

"none of the plaintiffs were granted a pre-termination hearing."

Acevedo-Feliciano IV, 447 F.3d at 118-19.

Second, defendants say that under Parratt v. Taylor, 451

U.S. 527 (1981), and its progeny, plaintiffs cannot make out a

§ 1983 claim without showing the inadequacy of existing state
Nor is this a case in which plaintiffs sought to 2

vindicate a right that had elapsed before suit was filed. Rather,

plaintiffs were "denied a right by virtue of which [they were]

presently entitled . . . to pursue a gainful occupation," and that

right cannot "be fully protected by an ordinary breach-of-contract

suit." Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196

(2001).

In August 2002, during the initial stages of this case, 3

the district court deemed one effort by the individual defendants

to present the qualified immunity question at summary judgment to

be untimely due to failure to comply with the court's deadlines.

See Acevedo-Feliciano v. Ruiz-Hernández (Acevedo-Feliciano I), No.

01-1445 (D.P.R. Aug. 16, 2002) (order denying defendants' motion

for summary judgment). On an interlocutory appeal, we affirmed the

untimeliness ruling on February 3, 2003. We added that "the

qualified immunity defense, if properly asserted in the defendants'

pleadings and otherwise properly maintained and presented, will

still be available at trial; the only consequence of the district

court's refusal to entertain the summary judgment motion on the

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remedies, and that plaintiffs have failed to carry that burden.

Defendants rely on cases involving random and unauthorized state

deprivations of property interests, in which a pre-termination

hearing is, by definition, infeasible and the question becomes

whether the state's post-deprivation processes are enough to

protect plaintiffs' rights. See, e.g., Chmielinski v.

Massachusetts, 513 F.3d 309, 315 (1st Cir. 2008). That is plainly

not the kind of violation alleged here.2

III. Claims against Individual Defendants

A. Qualified Immunity

Though the individual defendants repeatedly asserted that

they were entitled to qualified immunity both before and after the

remand, the district court did not address this question on

remand. Instead, having granted plaintiffs summary judgment on 3
qualified immunity question has been to preclude a pretrial

resolution of the issue." See Acevedo-Feliciano v. Ruiz-Hernández

(Acevedo-Feliciano II), No. 02-2287 (1st Cir. Feb. 3, 2003)

(unpublished judgment).

Defendants took all steps necessary to preserve this claim.

They again raised it in their April 4, 2003, motion for judgment as

a matter of law before the first jury trial, see Acevedo-Feliciano

v. Ruiz-Hernández (Acevedo-Feliciano III), 275 F. Supp. 2d 162,

164, 167-68 (D.P.R. 2003) (denying defendants qualified immunity on

the First Amendment claim but avoiding the question on the due

process claim by holding that plaintiffs had no procedural due

process right in continued employment). They also raised it after

remand in their motion for summary judgment on the procedural due

process claim, in their motion for judgment as a matter of law, and

in their motion for judgment notwithstanding the verdict.

To the extent that plaintiffs claim otherwise, nothing in 4

our prior decision precluded the individual defendants from

continuing to assert, on remand, that they were entitled to

qualified immunity.

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their procedural due process claim, the district court held that

the only remaining issue was to determine how much the Municipality

and the individual defendants owed plaintiffs in damages. See 4

Acevedo-Feliciano V, 542 F. Supp. 2d at 155.

We hold that the individual defendants are entitled to

qualified immunity. Even when plaintiffs make out a violation of

a constitutional right, officials are entitled to qualified

immunity unless that right was also "clearly established at the

time of [their] alleged misconduct." Pearson v. Callahan, 129 S.

Ct. 808, 816 (2009) (internal quotation marks omitted). Whether a

right is clearly established in turn depends on the clarity of the

law at the time of the violation and whether, on the facts of the

case, a reasonable official would know that his actions violated

plaintiffs' constitutional rights. See Walden v. City of
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Providence, 596 F.3d 38, 53 (1st Cir. 2010). We hold that the

individual defendants are entitled to qualified immunity because

the defendants could not have reasonably known in 2001 that

plaintiffs had a constitutionally protected right under the due

process clause.

Our previous decision established that Puerto Rico law

was unclear as to whether plaintiffs had any rights to continued

employment once the Law 52 funding ended. See Acevedo-Feliciano

IV, 447 F.3d at 124. The various pleadings submitted on municipal

law at summary judgment amply demonstrate the lack of clarity.

Indeed, the district court had originally concluded that Puerto

Rican law established that plaintiffs had no such rights, see

Acevedo-Feliciano III, 275 F. Supp. 2d. at 166-67, and then

reversed that determination on remand, see Acevedo-Feliciano V, 524

F. Supp. 2d at 152-54, relying in both instances on roughly the

same provisions of Commonwealth and municipal law. Given the

intricate maze of Commonwealth and municipal law regarding

employment under Law 52, no reasonable official would have known,

in 2001, that terminating plaintiffs' approximately one-year

contracts because Law 52 funds had expired would violate

plaintiffs' procedural due process rights.

Because the individual defendants are entitled to

immunity, we vacate the judgment against them and remand with

instructions to dismiss all claims against the individual
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defendants with prejudice. This ruling does not, however, affect

the Municipality's liability. See Walden, 596 F.3d at 55 n.23.

B. Award of Punitive Damages

The jury awarded punitive damages to each of the twentytwo plaintiffs in the sum of $15,000 each, which was allotted as

$7,500 against each of the two individual defendants. It was

error, indeed plain error, to submit this issue to the jury. 

Punitive damages in a § 1983 civil rights action can be

granted at the jury's discretion only if "the defendant's conduct

is shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally

protected rights of others." Smith v. Wade, 461 U.S. 30, 56

(1983). This court has "emphasized that the 'evil motive,'

'intent,' or 'reckless or callous indifference' pertains to the

'defendant's knowledge that [he] may be acting in violation of

federal law.'" Davignon v. Hodgson, 524 F.3d 91, 110 (1st Cir.

2008) (alteration in original) (quoting Iacobucci v. Boulter, 193

F.3d 14, 25-26 (1st Cir. 1999)).

Puerto Rican law was unclear as to whether plaintiffs had

a right to continued employment and so whether any constitutionally

protected interest was involved at all. Given the complexity of

the Commonwealth and municipal law at issue, it cannot logically be

true that the individual defendants knew they may have been acting

in violation of federal law. We vacate the punitive damages award
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and order dismissal of the punitive damages claim with prejudice on

remand.

IV. Award of Damages against the Municipality

As to each of the twenty-two plaintiffs, the jury awarded

$15,000 in compensatory ("suffering and anguish") damages and

$4,960 for back pay jointly and severally against defendants. We

need not determine whether this is the appropriate measure of

damages for a procedural due process violation; it is enough that

the Municipality has never challenged it.

Indeed, the Municipality's only challenge to the back pay

award is a specific argument that the award improperly included for

each plaintiff a $500 Christmas bonus for 2001. There was no error

in the district court's denial of remittitur on these grounds.

Plaintiffs had a property interest in their employment through June

30, 2001, and under Puerto Rican law, any employee who works for

the government for at least six months of a calendar year is

entitled to an annual Christmas bonus. See P.R. Laws Ann. tit. 3,

§ 757. There was sufficient evidence to support the award of the

bonus.

We have considered the rest of the arguments made by each

side and either have no need to reach them or have concluded they

are without merit.
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V. Conclusion

We vacate the judgments against the individual defendants

including the punitive damages award against them. We remand with

instructions to dismiss all claims against the individual

defendants with prejudice. Otherwise, the judgment against the

Municipality is affirmed. No costs are awarded.

So ordered.