United States Court of Appeals

For the First Circuit

Nos. 07-2013

 07-2140

MARIBEL NEGRÓN-ALMEDA ET AL.,

Plaintiffs, Appellees,

v.

CARLOS GABRIEL SANTIAGO ET AL.,

Defendants, Appellants.

____________________

PUERTO RICO TRADE AND EXPORT COMPANY,

Putative Intervenor, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Selya, Senior Circuit Judge,

and Howard, Circuit Judge.

Susana I. Peñagarícano-Brown, Assistant Solicitor General,

with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana

D. Negrón-Vargas, Deputy Solicitor General, and Maite D. OronozRodríguez, Deputy Solicitor General, were on brief, for defendants.

Eyck O. Lugo-Rivera, with whom Lauracelis Roques-Arroyo and

Martínez Odell & Calabria were on brief, for putative intervenor.

Claudio Aliff-Ortiz, with whom Michael Craig McCall, Eliezer

Aldarondo-Ortiz, Sheila Torres-Delgado, and Aldarondo & López Bras

were on brief, for plaintiffs.
June 5, 2008
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SELYA, Senior Circuit Judge. Following a jury verdict in

an employment discrimination case premised on a claim of political

connivance, the district court used its equitable powers to augment

the verdict. That action, along with the court's refusal to allow

the affected public corporation to intervene in the post-verdict

proceedings, have produced a series of conundra, with which we must

now grapple. 

After careful consideration of a meandering record, we

reverse the court's grant of equitable relief in the nature of both

reinstatement and backpay. Recognizing, however, that there is

still work to be done — on these particular facts, the issue of

reinstatement is potentially subject to resurrection — we vacate

its order denying intervention to the agency and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

We rehearse here only the bare facts needed to place

these appeals into perspective. In charting this course, we assume

the reader's familiarity with our earlier opinion in PegueroMoronta v. Santiago, 464 F.3d 29 (1st Cir. 2006), which involves

this litigation and which provides useful background information.

This case, like many political discrimination cases,

traces its genesis to the changing of the guard. The precipitating

event in this instance was Puerto Rico's 2000 general election,

which resulted in the replacement of a New Progressive Party (NPP)
Another cashiered employee, Miguelina Peguero-Moronta, 1

originally joined as a plaintiff. Her claims were disposed of on

summary judgment and need not concern us. We likewise have no

occasion to discuss the derivative claims initially brought by the

husbands of Negrón and Gascot.

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governor with one backed by the arch-rival Popular Democratic

Party. 

The newly-elected governor installed Carlos Santiago as

Director of the Commercial Development Administration (CDA).

Within weeks of his appointment, Santiago personally dismissed two

of the plaintiffs, Maribel Negrón-Almeda (Negrón) and Aracelis

Gascot-Cuadrado (Gascot). He also approved the decision by his

subordinate, Susana Hernández, to dismiss the third plaintiff,

Nilda Pérez-Montalvo (Pérez).

The trio brought suit in the United States District Court

for the District of Puerto Rico. Their complaint rested on the 1

premise that they had been fired for reasons relating to their

membership in the NPP, in violation of the First Amendment, the

Fourteenth Amendment, and local law. The complaint described the

plaintiffs' federal claims as being brought pursuant to 42 U.S.C.

§ 1983 and sought a gaggle of remedies, including compensatory

damages, punitive damages, backpay, front pay, declaratory relief,

and injunctive relief (i.e., reinstatement).

Santiago was the only defendant sued in his official

capacity and the only defendant against whom the plaintiffs

demanded injunctive relief. He was also sued in his individual
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capacity, as was Hernández and another CDA functionary, Vilma

Jiménez.

On March 31, 2004, the district court entered a summary

judgment order, which addressed the claims brought against Santiago

in his official capacity. The order stated: 

As to plaintiffs' section 1983 cause of action

against the named Defendants in their official

capacity, "[i]t is well settled 'that neither

a state agency nor a state official acting in

his official capacity may be sued for damages

in a section 1983 action.'" Wang v. N.H. Bd.

of Registration in Med., 55 F.3d 698, 700 (1st

Cir. 1995) (citing Johnson v. Rodríguez, 943

F.2d 104, 108 (1st Cir. 1991)). "This is so

because § 1983 did not abrogate an

unconsenting state's Eleventh Amendment

immunity from being sued in damages in federal

court." Vicenty-Martel v. Estado Libre

Asociado de P.R., 48 F. Supp. 2d 81, 92

(D.P.R. 1999). The court need not go further.

Accordingly, Plaintiffs' Section 1983 claims

against the named Defendants in their official

capacities must be DISMISSED.

At an ensuing trial, the district court twice granted

motions for judgment as a matter of law. First, at the end of the

plaintiffs' case in chief it granted Jiménez free passage with

respect to all claims against her. See Fed. R. Civ. P. 50(a).

Second, at the close of all the evidence it directed a verdict in

favor of the remaining defendants (Santiago and Hernández in their

individual capacities on the remaining claims). Id. 

The plaintiffs appealed from the latter order. They

could have, but did not, appeal the earlier summary judgment. We

concluded that the evidence proffered against Santiago and
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Hernández was sufficient to reach the jury and, therefore, reversed

the order from which the appeal had been taken. See PegueroMoronta, 464 F.3d at 53-54.

The parties retried the case. On March 27, 2007, the

district court submitted it to a jury. In pertinent part, the

court's instructions on damages informed the jurors, without

objection from either side, that "[y]ou should consider the

following elements of damages to the extent you find them proved by

a preponderance of the evidence, and no others: 1) Net lost wages

and benefits to the date of the trial . . . ." The jury found in

favor of the plaintiffs, awarding them both compensatory and

punitive damages.

A flurry of post-verdict motions ensued, beginning with

the plaintiffs' motion for an assortment of equitable relief. That

relief included reinstatement to their former positions and

retroactive contributions to their retirement and Social Security

accounts. The defendants objected on various grounds, noting among

other things that the requested relief was unavailable because the

Commonwealth was not a party to the action and no official-capacity

defendant remained before the court. The defendants also argued

that, in the circumstances at hand, reinstatement was

inappropriate.

On April 30, 2007, the district court rejected the

defendants' arguments and granted the requested relief. The court
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specified that reinstatement should "include benefits in the

government employees' retirement system and the Social Security

Administration." The court declared "that it was never its

intention to bar Plaintiffs from seeking and obtaining equitable

relief at the time of the [2004] dismissal of their monetary claims

against Defendants in their official capacities."

Within ten days, the defendants moved for clarification.

They later characterized this motion as a motion to alter or amend

the judgment, see Fed. R. Civ. P. 59(e) — a characterization that

we accept. No matter how a party titles it, "a post-judgment

motion made within ten days of the entry of judgment that questions

the correctness of a judgment is properly construed as a motion to

alter or amend judgment under Fed. R. Civ. P. 59(e)." Global NAPs,

Inc. v. Verizon New Engl., Inc., 489 F.3d 13, 25 (1st Cir. 2007)

(citations and internal quotation marks omitted).

The defendants' motion raised Eleventh Amendment concerns

and queried whether the benefits awarded were meant to be

retroactive. The plaintiffs served an opposition that denigrated

the defendants' Eleventh Amendment concerns and supported

retroactive application of the order for benefits. The defendants

filed a sur-reply, in which they cited this court's opinion in

Figueroa-Rodríguez v. Aquino, 863 F.2d 1037 (1st Cir. 1988), for

the proposition that backpay could not be awarded against an

individual employee but only against an employer.
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The district court overrode the defendants' objections

and confirmed that it had intended to grant, and was granting,

retroactive benefits against the defendants in their individual

capacities. The court shrugged off the statement in FigueroaRodríguez to the effect that a backpay award "must be paid by or on

behalf of the employer by definition," id. at 1043 n.7, saying that

the court there already had determined that the defendants were

entitled to qualified immunity and, thus, the quoted statement was

dictum.

In a closely related disposition, made on the same day,

the court denied a motion to intervene filed by the Puerto Rico

Trade and Export Company (COMEX). That aspect of the court's ruling

deserves further amplification.

COMEX, a public corporation, see P.R. Laws Ann. tit. 7,

§ 1227q, is arguably the successor-in-interest to the CDA (the

extent to which that is so is a matter in dispute among the

parties, and we do not purpose to resolve it here). COMEX filed

its motion to intervene approximately one month after the district

court's initial post-verdict grant of equitable relief. It

suggested that the motion was timely in light of the fact that it

had no notice of its exposure until the district court suddenly

resurrected the previously dismissed claims against Santiago in his
Claims against a state official in his official capacity are 2

treated as claims against the state. See Hafer v. Melo, 502 U.S.

21, 25 (1991); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71

(1989). Similarly, claims against an official of the Commonwealth

of Puerto Rico or of an agency thereof are treated as claims

against the Commonwealth. See, e.g., Redondo-Borges v. U.S. Dep't

of Hous. & Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005).

-9-

official capacity. COMEX maintained that, given this unexpected 2

turn of events, it deserved an opportunity to oppose reinstatement

and other forms of equitable relief that it would have to

effectuate.

In an accompanying Rule 59(e) motion, filed

provisionally, COMEX contended that any grant of equitable relief

had to be annulled because (i) neither it nor the CDA was a party

to the action and (ii) the district court lacked authority to

revisit its 2004 summary judgment that terminated the officialcapacity claims against Santiago. Alternatively, COMEX argued that

it was not the same entity as the CDA (which no longer existed) and

that no proper substitution of parties had been effected. See Fed.

R. Civ. P. 25(c), 25(d).

The district court branded COMEX's attempt to intervene

untimely on the ground that, notwithstanding the wording of the

court's earlier 2004 order, the official-capacity claims against

Santiago for injunctive relief had never been dismissed.

Therefore, the CDA's interest (and, thus, COMEX's interest) had

been implicated throughout the litigation. In so holding, the

court stressed that, in its 2004 order, it had intended to
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terminate only the section 1983 official-capacity claims for

damages. The court did not reach the arguments advanced in COMEX's

provisional Rule 59(e) motion, but it did criticize COMEX's

decision to wait a full month after the initial award of equitable

relief before seeking to intervene.

These timely appeals followed. One, prosecuted by COMEX,

challenges the denial of its motion to intervene. The other,

prosecuted by the defendants, disputes their liability for the

aforedescribed equitable relief. The jury's award of compensatory

and punitive damages is conceded.

II. ANALYSIS

We begin with the question of intervention (COMEX's

appeal) and then move to the question of backpay (the defendants'

appeal).

A. Intervention.

The parties agree that COMEX's motion to intervene seeks

intervention as of right and is, therefore, governed by Fed. R.

Civ. P. 24(a). We thus constrain our review to a search for an

abuse of discretion. Pub. Serv. Co. of N.H. v. Patch, 136 F.3d

197, 204 (1st Cir. 1998); Banco Popular v. Greenblatt, 964 F.2d

1227, 1230 n.3 (1st Cir. 1992). That same standard of review

governs a district court's subsidiary findings regarding

timeliness. See Greenblatt, 964 F.2d at 1230 n.3; Narragansett

Indian Tribe v. Ribo, Inc., 868 F.2d 5, 7 (1st Cir. 1989). 
-11-

Abuse of discretion is a relatively deferential standard

of review. Under it, we may not reverse a determination simply

because we, if sitting as a court of first instance, would have

weighed the relevant considerations differently. Iragorri v. Int'l

Elevator, Inc., 203 F.3d 8, 17 (1st Cir. 2000). That does not

mean, however, that the abuse-of-discretion standard is a rubber

stamp, counseling affirmance of every discretionary decision made

by a trial court. To the contrary: 

A district court may abuse its discretion if

it fails to consider a significant factor in

the decisional calculus, if it relies on an

improper factor in working that calculus, or

if it considers all the appropriate factors

but makes a serious error in judgment as to

their relative weight. Within this framework,

an error of law is always tantamount to an

abuse of discretion.

Torres-Rivera v. O'Neill-Cancel, ___ F.3d ___, ___ (1st Cir. 2008)

[2008 U.S. App. LEXIS 9312, at *6] (internal citation omitted).

Here, moreover, we are dealing with a claim for

intervention as of right. Where that modality is concerned, the

district court's discretion is somewhat more circumscribed than in

the context of intervention generally. See Patch, 136 F.3d at 204;

Int'l Paper Co. v. Inhabitants of Town of Jay, 887 F.2d 338, 344

(1st Cir. 1989) (citing Stringfellow v. Concerned Neighbors in

Action, 480 U.S. 370, 382 n.1 (1987) (Brennan, J., concurring)).

The case law applying Rule 24(a)(2) reflects a preference

for multipartite tests as part of a district court's analysis.
-12-

See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st

Cir. 1989). One of these seems particularly pertinent here: a

would-be intervenor as of right must satisfy a four-pronged test

focusing on whether it has (i) made a timely motion, (ii)

demonstrated a sufficient stake in the ongoing suit, (iii) showed

that resolution of the suit in its absence somehow threatens to

prejudice its interests, and (iv) negated the likelihood that some

other party can be expected adequately to protect its interests.

See B. Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541,

544-45 (1st Cir. 2006); Patch, 136 F.3d at 204. A failure to

satisfy any one of these criteria is fatal to the motion. See B.

Fernández & Hnos., 440 F.3d at 545; Patch, 136 F.3d at 204.

The only factor analyzed by the district court was the

timeliness of the proposed intervention. Especially where, as

here, the proposed intervention post-dates the entry of judgment,

timeliness is a crucial element in the Rule 24(a)(2) calculus. See

Greenblatt, 964 F.2d at 1230. Although judgments as to timeliness

depend on the totality of the circumstances, a number of factors

serve to structure and guide that analysis. These include "the

length of time the applicant knew or reasonably should have known

that its interest was imperilled before it moved to intervene," a

quantification of "the foreseeable prejudice to existing parties if

intervention is granted," and a similar quantification of "the

foreseeable prejudice to the applicant if intervention is denied."
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Id. at 1231; see Culbreath v. Dukakis, 630 F.2d 15, 20-24 (1st Cir.

1980).

These guideposts are standard fare — but in this case,

there is a special twist. Almost every aspect of the district

court's timeliness analysis depends on the interpretation of its

2004 order granting summary judgment in favor of Santiago in his

official capacity. In denying intervention, the court relied upon

the premise that the 2004 order did not terminate the plaintiffs'

claims for reinstatement and other equitable relief; that COMEX

ought to have known as much; and that, therefore, COMEX should have

tried to intervene years before. In order to evaluate the

plausibility of this reasoning, we must as a first step distill the

meaning of the 2004 order. Only then can we decide whether the

lower court's timeliness determination (and, thus, its denial of

intervention) constitutes an abuse of discretion.

District court orders are documents of considerable

import. A district court speaks to the parties and the court of

appeals primarily through its orders. See In re Thinking Machs.

Corp., 67 F.3d 1021, 1026 (1st Cir. 1995) (explaining that "[c]ourt

orders are customarily important events in the life of a judicial

proceeding; they are the primary means through which courts

speak"); Advance Fin. Corp. v. Isla Rica Sales, Inc., 74 F.2d 21,

26 (1st Cir. 1984) (similar). Thus, the phrasing of a court order

is significant. When that phraseology is imprecise, there may be
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some play in the joints. For example, a reviewing court can comb

relevant parts of the record to discern the authoring court's

intention. See, e.g., Weyerhaeuser Co. v. Wyatt, 505 F.3d 1104,

1111 (10th Cir. 2007); Subsalve USA Corp. v. Watson Mfg., Inc., 462

F.3d 41, 45 (1st Cir. 2006); see also Martha's Vineyard Scuba Hq.

v. Unidentified Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987)

(explaining that some deference is due to the writing judge in

elucidating the meaning and intendment of an imprecise or ambiguous

order). But when a court's order is clear and unambiguous, neither

a party nor a reviewing court can disregard its plain language

"simply as a matter of guesswork or in an effort to suit

interpretive convenience." Alstom Caribe, Inc. v. Geo. P. Reintjes

Co., 484 F.3d 106, 115 (1st Cir. 2007); see Lefkowitz v. Fair, 816

F.2d 17, 22 (1st Cir. 1987) (enforcing district court order that

"contained not the slightest ambiguity" over a claim that the

authoring judge "must" have meant something different). 

The short of it is that, absent amendment or vacation, a

court must carry out and enforce an order that is clear and

unambiguous on its face, whether or not the inscribed language

reflects the court's recollection of its actual intent. See United

States v. Spallone, 399 F.3d 415, 421 (2d Cir. 2005). Put another

way, unless and until a clear and unambiguous order is amended or

vacated — and the court below eschewed that course — "a court must

adopt, and give effect to, [the order's] plain meaning." Id.
-15-

(internal quotation marks omitted); see In re Nat'l Gypsum Co., 219

F.3d 478, 484 (5th Cir. 2000). 

In this instance, the plaintiffs suggest that we should

interpret the district court's 2004 order as leaving intact their

claims for injunctive relief against Santiago in his official

capacity. They concede that the language of the order is

inhospitable to this reading but cite three supposedly ameliorative

facts. First, they note that the district court itself took this

view of the order three years after entering it. Second, they

observe that the case law cited in the lead-up to the 2004 order

deals with the prohibition against bringing section 1983 claims for

damages against state actors in their official capacities. Third,

they assert that, at least once after 2004, the district court

referred to Santiago as "the Director of the CDA."

In the circumstances of this case, this grab-bag of

random facts lacks force. The 2004 order stated unambiguously and

with conspicuous clarity that the plaintiffs' section 1983 claims

against the defendants in their official capacities "must be

dismissed" (excess capitalization omitted). This statement was

made categorically and without any apparent limitation. The only

section 1983 claims that had been pleaded against any party in his

or her official capacity were the claims pleaded against Santiago

for injunctive relief. Viewed against this backdrop, the wording

of the order is clear on its face — and the plaintiffs' suggested
-16-

reading would render the affected portion of the order nugatory.

We therefore decline the plaintiffs' invitation to sanction a

Kafkaesque interpretation of the order that stands plain meaning on

its head.

Accordingly, we conclude that when the district court

terminated the plaintiffs' section 1983 official capacity claims,

the claim for reinstatement fell out of the case. COMEX had no

reason to believe that its interests, as opposed to the interests

of the individual defendants, were implicated in the ongoing

litigation. 

The fact that the case law cited in the text of the order

focused primarily on claims for damages does not get the plaintiffs

very far. A party faced with a clear and unambiguous court order

has no duty to look behind it. See 46 Am. Jur. 2d Judgments § 77

(2008) (explaining that a trial court's reasons "form no part of

the judgment itself"). Moreover, to the extent that there was any

room for doubt that the 2004 order meant exactly what it said, it

was the burden of the doubters (here, the plaintiffs) to ask the

district court in a timely fashion to clarify the scope of the

order. See Wyatt, 505 F.3d at 1111. The plaintiffs failed to do

so — and that failure estops them from now alleging the existence

of a hidden ambiguity. See Glover v. Johnson, 934 F.2d 703, 708-09

(6th Cir. 1991).

Finally, the district court's reference to Santiago as
This is not a case in which we are asked to infer from a 3

silent record that a defendant has been sued in his official rather

than his individual capacity. See, e.g., Kentucky v. Graham, 473

U.S. 159, 167 n.14 (1985); Powell v. Alexander, 391 F.3d 1, 22-23

(1st Cir. 2004). Here, we are asked to overturn an unambiguous

decree on account of a court's casual reference to a defendant by

his official title. That would require an unprecedented leap of

faith.

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"the Director of the CDA" is unavailing. Taken in context, that

use of Santiago's title was in all probability intended as a

gesture of respect rather than a description of his precise legal

status in the suit. 

3

At oral argument before us, the plaintiffs advanced a new

and different theory for upholding the district court's denial of

intervention. They posited that even if the 2004 order dismissed

all the section 1983 official-capacity claims, their complaint

nevertheless contained an implicit cause of action under Ex parte

Young, 209 U.S. 123 (1908). That cause of action, they maintain,

suffices to support the award of reinstatement.

The doctrinal roots of Ex parte Young run deep. For

roughly a century, that decision has stood for the proposition that

"the Eleventh Amendment does not prevent federal courts from

granting prospective injunctive relief to prevent a continuing

violation of federal law," in part because "a suit challenging the

constitutionality of a state official's action in enforcing state

law is not one against the State." Green v. Mansour, 474 U.S. 64,

68 (1985). But a legal doctrine cannot be viewed in a vacuum; more
Indeed, as late as their initial post-verdict motion 4

requesting reinstatement, the plaintiffs specifically averred that

"[t]he present action is predicated on 42 U.S.C. § 1983 for the

violation of plaintiffs' constitutional right of freedom of speech

and association."

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important than doctrine here is the commonsense principle that a

litigant cannot freely reinvent his case as he goes along.

The plaintiffs' complaint made an explicit representation

that their claims for injunctive relief were being brought under

section 1983. Given the sweep of that statute, recognizing a 4

separate (implicit) cause of action under the aegis of Ex parte

Young would serve simply to introduce a useless artifice into the

act of pleading. Ex hypothesi, the Ex parte Young cause of action

that the plaintiffs now say they impliedly pleaded would provide no

different rights than were already available to them under section

1983. To recognize such a cause of action on these facts would,

therefore, serve only to pervert the legitimate goals of notice

pleading. 

There is a second, equally impassable, obstacle that bars

the plaintiffs' belated assertion of an Ex parte Young theory. The

record reveals that this theory was not briefed on appeal.

Consequently, it has been waived. See United States v. Houlihan,

92 F.3d 1271, 1292 (1st Cir. 1996) (noting settled appellate rule

that issues not briefed and properly developed on appeal are

waived); Martínez v. Colón, 54 F.3d 980, 987 (1st Cir. 1995)

(same); United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.
Questions concerning whether the district court could or 5

should have vacated or amended that order, so long as it gave the

parties notice and an opportunity to be heard, are beyond the

purview of this opinion.

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1990) (same). 

That ends this aspect of the matter. We conclude that

the district court was bound by the plain meaning of the 2004

order. The court misinterpreted the order; that interpretive 5

bevue influenced its finding as to timeliness (including its

comments as to prejudice, which were clearly tied to the court's

conclusion that COMEX should have known of its stake in the

litigation since at least 2004); and that tainted finding, in turn,

led to the denial of intervention.

The plaintiffs have a fallback position. They note the

district court's observation that the motion to intervene was filed

one month after the court's initial grant of equitable relief.

Under the peculiar circumstances of this case — including the

district court's incorrect reading of its 2004 order — that period

of delay is so slight as not to render that intervention motion

untimely. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S.

385, 396 (1977) (reversing denial of post-judgment intervention

sought within the 30-day time limit for appealing the judgment);

Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 65 (1st Cir. 2008)

(finding Rule 24(a)(2) motion timely when intervenor waited roughly

one month after receiving notice that her interest had suddenly
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fallen into jeopardy); see also Dimond v. D.C., 792 F.2d 179, 193

(D.C. Cir. 1986). 

This disposes of the question of intervention. For the

reasons discussed above, the order refusing intervention must be

vacated. 

B. Equitable Relief (Backpay).

We turn next to the district court's denial of the

defendants' motion to alter or amend the judgment. A trial court's

disposition of a Rule 59(e) motion engenders review for abuse of

discretion. See Río Mar Assocs., LP v. UHS of P.R., Inc., 522 F.3d

159, 163 (1st Cir. 2008); Aybar v. Crispin-Reyes, 118 F.3d 10, 15

(1st Cir. 1997). Within that rubric however, abstract questions of

law receive de novo review. Pérez v. Volvo Car Corp., 247 F.3d

303, 319 (1st Cir. 2001). That is important because a court's

material error of law is invariably an abuse of its discretion.

See Río Mar, 522 F.3d at 163; Rosario-Urdaz v. Rivera-Hernández,

350 F.3d 219, 221 (1st Cir. 2003). 

In the matter at hand, the defendants postulate that the

district court committed two errors of law, both of which relate to

the award of retroactive contributions toward the plaintiffs'

retirement and Social Security accounts. This award was faulty,

the defendants say, because such redress (i) cannot be granted

against supervisors who are sued only in their individual

capacities and (ii) amounted to a double recovery. This latter
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point derives from the district court's instruction to the jury to

include lost benefits in its calculation of compensatory damages.

The plaintiffs' initial rejoinder is that neither of

these arguments has been preserved for appellate review. As to the

first argument, the plaintiffs are plainly incorrect. The rule is

that if an argument is raised belatedly in the district court but

that court, without reservation, elects to decide it on the merits,

the argument is deemed preserved for later appellate review. See,

e.g., Me. Green Party v. Me. Sec'y of State, 173 F.3d 1, 4 (1st

Cir. 1999); United States v. Lombard, 72 F.3d 170, 174 n.2 (1st

Cir. 1995). So it is here: although the defendants did not raise

this "status" argument until they filed their sur-reply, the

district court opted to address the argument head-on. No more is

exigible to preserve the point for appellate review. Thus, we

proceed to the merits.

It is settled law in the federal courts that backpay as

such cannot be awarded against a defendant in his or her individual

capacity. See, e.g., L.A. Police Protective League v. Gates, 995

F.2d 1469, 1472 n.1 (9th Cir. 1993); Lenea v. Lane, 882 F.2d 1171,

1178 (7th Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.

1985). By definition, backpay is an award against an employer and,

thus, any demand for backpay from an individual-capacity defendant

is a non-sequitur. See Fred v. Aponte-Roque, 916 F.2d 37, 38 n.2

(1st Cir. 1990); Figueroa-Rodríguez, 863 F.2d at 1043 n.7. This
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makes perfect sense; a suit for backpay, even one brought under a

tort-like cause of action such as that supplied by section 1983,

necessarily stems from the contract of hire — a contract to which

the individual-capacity defendant was never a party. See Omosegbon

v. Wells, 335 F.3d 668, 673 (7th Cir. 2003); cf. L.A. Police, 995

F.2d at 1473 n.1 (observing that allowing awards of backpay against

individual-capacity supervisors would thwart "the policies

underlying the qualified immunity doctrine").

As the plaintiffs point out, our previous decisions on

this point discuss retroactive awards of wages and benefits, but do

not specifically address retirement or Social Security

contributions. See, e.g., Figueroa-Rodríguez, 863 F.2d at 1043.

But the logic that prohibits the imposition of the former against

an individual-capacity defendant applies with equal force to the

imposition of the latter. The concept of backpay is not monolithic

but, rather, encompasses a panoply of items. Cf. Rasimas v. Mich.

Dep't of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983)

(observing in Title VII case that backpay includes "[s]ick leave,

vacation pay, pension benefits and other fringe benefits the

claimant would have received but for discrimination"). One common

denominator, however, is that all species of backpay are improper

forms of relief when imposed upon a defendant who is sued only in

his or her individual capacity.

Lest the cynical among us suggest that cold logic has
This result renders it unnecessary to reach either the 6

defendants' alternate argument as to the effect of the jury

instructions or the plaintiffs' rejoinder that this alternate

argument was forfeited.

-23-

robbed the plaintiffs of their just desserts, we hasten to add that

this rule is in no way inequitable. While backpay as such cannot

be imposed upon an individual-capacity defendant, a successful

plaintiff is nonetheless entitled to receive compensatory damages

against such a defendant. See Santiago-Negrón v. Castro-Dávila,

865 F.2d 431, 441 (1st Cir. 1989) (holding that lost wages are a

form of legal redress to be awarded by the jury, not equitable

relief to be awarded by the judge, in a section 1983 action for a

politically discriminatory firing). Properly proven, those damages

will equal the grand total of the plaintiff's aggregate lost wages

and benefits. See Rosario-Urdaz, 350 F.3d at 222. Indeed, the

district court's jury instructions in this very case, quoted

earlier, were commodious enough to cover the full array of

benefits.

To say more on this issue would be to paint the lily. We

conclude, without serious question, that the district court erred

in imposing liability for retroactive retirement and Social

Security contributions upon the defendants in their individual

capacities. Accordingly, we reverse that portion of the district

court's judgment.6
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III. CONCLUSION

We are far from enthusiastic about remanding this case

for yet another round of proceedings after two trials, two appeals,

and more than six years of litigation. But we do what we must. We

reverse those portions of the district court's judgment awarding

retroactive retirement and Social Security contributions against

the individual-capacity defendants. Given the unambiguous text of

the 2004 order, we also reverse the judgment insofar as it purports

to award reinstatement or other injunctive relief against Santiago

in his official capacity. Concomitantly, we vacate the denial of

COMEX's Rule 24(a)(2) motion to intervene. 

We recognize (and leave open) the possibility that the

plaintiffs, on remand, may seek to vacate or amend the pertinent

provision of the 2004 order so as to revive the issue of

reinstatement. Should such a motion be made, cf. United States v.

An Article of Drug, 661 F.2d 742, 746 (9th Cir. 1981) (allowing

post-verdict amendment of complaint to include injunctive relief),

the district court shall first reconsider COMEX's motion for

intervention. Thereafter, it shall afford the intervenor (should

intervention be granted) and the defendants an opportunity to be

heard on the motion to vacate and/or amend. 

In that regard, the court shall consider, among other

things, that in their earlier appeal to this court the plaintiffs

could have, but did not, mount a challenge to the 2004 order.
Reinstatement is not an automatic entitlement in an 7

employment discrimination case. See Selgas v. Am. Airlines, Inc.,

104 F.3d 9, 15 (1st Cir. 1997); Rosario-Torres v. Hernández-Colón,

889 F.2d 314, 321-23 (1st Cir. 1989) (en banc). 

-25-

Thus, the court will have to determine whether that foregone

opportunity precludes it from revisiting the 2004 order. See,

e.g., United States v. Connell, 6 F.3d 27, 30 (1st Cir. 1993)

(explaining that "issues that remain open on remand frequently will

be circumscribed by the earlier appeal"). 

If the court allows COMEX to intervene and also amends or

vacates the critical provision of the 2004 order, it must then pass

upon any arguments vis-à-vis the propriety of reinstatement raised

either by COMEX or by the defendants. 

We take no view as to whether COMEX should be permitted

to intervene, whether the 2004 order should be revisited, whether

vacation or amendment of that order should be allowed, or whether

reinstatement is appropriate. Such matters are, in the first 7

instance, for the district court.

We need go no further. In line with the foregoing, we

remand the case to the district court for further proceedings

consistent with this opinion.

Reversed in part, vacated in part, and remanded. Costs are to be

taxed in favor of the appellants.