United States Court of Appeals 

For the First Circuit 

No. 18-1694 

RAFAEL LÓPEZ-SANTOS and ERASMO DOMENA-RÍOS, 

Plaintiffs, Appellants, 

v. 

METROPOLITAN SECURITY SERVICES, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Thompson, Lipez, and Barron, 

Circuit Judges. 

Judith Berkan, with whom Mary Jo Mendez and Berkan/Mendez 

were on brief, for appellants. 

 Luis R. Pérez-Giusti, with whom Liana M. Gutiérrez-Irizarry, 

Adsuar Muñiz Goyco, and Seda & Pérez-Ochoa, P.S.C., were on brief, 

for appellee. 

July 23, 2020 

	
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LIPEZ, Circuit Judge. Appellants Rafael López-Santos 

("López") and Erasmo Domena-Ríos ("Domena") served as court 

security officers for the District of Puerto Rico for thirty-two 

years. Their tenures ended in 2015 when appellee Metropolitan 

Security Services d/b/a Walden Security ("Walden") assumed the 

federal contract to provide courthouse security services and 

refused to hire them because they lacked certification from a law 

enforcement training academy. After López and Domena brought suit 

for statutory separation pay pursuant to Puerto Rico Law 80, the 

district court granted summary judgment for Walden. 

On appeal, López and Domena argue that the district court 

conducted the wrong legal analysis and that Walden should be held 

liable pursuant to Puerto Rico's common law successor employer 

doctrine. We agree that the district court misconstrued López and 

Domena's theory of liability, leading it to conduct a largely 

irrelevant analysis of their claims, but we nevertheless affirm. 

Although we recognize the unfortunate loss of livelihood 

experienced by López and Domena, the successor employer doctrine 

is simply inapplicable to their case, leaving them with no remedy 

pursuant to Law 80. 

I. 

 The following facts are undisputed by the parties. López 

and Domena both began work as court security officers ("CSOs") in 

1983. They were among the original thirteen CSOs serving the 
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District of Puerto Rico and received multiple accolades for their 

excellent work. 

 The United States Marshals Service ("USMS") drafts and 

manages the federal contract governing court security services for 

the District of Puerto Rico. The USMS awards the contract to 

private security companies, and those companies in turn hire CSOs 

to provide the District of Puerto Rico courthouses with armed 

security guard services. During the thirty-two years that López 

and Domena worked as CSOs, a number of different private security 

companies held the USMS contract at various times, and López and 

Domena worked for all of those companies. 

 In September 2015, the USMS awarded the contract to 

Walden, effective December 1, 2015. The contract set forth the 

minimum qualifications for CSOs employed by the contractor. 

Specifically, it stated: 

[E]ach individual designated to perform as a 

CSO [shall] ha[ve] successfully completed or 

graduated from a certified Federal, state, 

county, local or military law enforcement 

training academy or program that provided 

instruction on the use of police powers in an 

armed capacity while dealing with the public. 

The certificate shall be recognized by a 

Federal, state, county, local or military 

authority, and provide evidence that an 

individual is eligible for employment as a law 

enforcement officer. 

The record demonstrates that this same language had appeared in 

the USMS's contract with Akal Security, Inc. ("Akal"), the 
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contractor immediately preceding Walden, as well as the contract 

with MVM Security ("MVM"), the contractor immediately preceding 

Akal. 

In October 2015, Walden convened two meetings for all of 

the CSOs who were then employed by Akal. During the meetings, 

Walden provided information about its company policies and 

benefits and invited all of Akal's CSOs to submit employment 

applications to Walden. López and Domena attended Walden's 

meetings and submitted applications. However, neither of them had 

completed or graduated from a certified law enforcement training 

academy, as required by the USMS contract with Walden. This fact 

was reflected in their applications, both of which requested a 

waiver of the certification requirement. 

On November 30, 2015, the Vice President of Walden's 

Federal Services Division notified López and Domena that they were 

ineligible for Walden's CSO positions because they failed to 

satisfy the certificate requirement. They were the only two Akal 

CSOs not hired by Walden. As of December 1, 2015, they were out 

of a job.1 

1 It is not clear why the lack of certification did not become 

an issue when López and Domena were hired by Akal and MVM, but 

there is no evidence in the record suggesting that anyone ever 

questioned the qualifications of López and Domena during the 

fourteen years that MVM held the USMS contract, and the two to 

three years that Akal held the contract. 
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Thereafter, López and Domena, along with other members 

of the courthouse community, tried to dissuade Walden from 

enforcing the certification requirement against them. Roberto 

Santiago, the site supervisor under both Akal and Walden, spoke 

with Walden representatives about López and Domena's extensive 

experience and stellar employment records, demonstrating that they 

had "the sufficient skills and knowledge to be CSOs." Then-Chief 

Judge Aida M. Delgado-Colón and Judge Carmen Consuelo Cerezo asked 

the USMS to waive the certificate requirement for López and Domena 

in light of their long history of impeccable service.2 

After all of those efforts failed, López and Domena filed 

the instant lawsuit for statutory separation pay pursuant to Puerto 

Rico Law 80, invoking the federal district court's diversity 

jurisdiction. See 28 U.S.C. § 1332(a)(1), (e). In November 2017, 

the parties filed cross motions for summary judgment, agreeing 

that the relevant facts were not in dispute. The district court 

granted Walden's motion, reasoning that Law 80 did not apply to 

López and Domena's claims. See López-Santos v. Metro. Sec. Servs., 

2 In a letter to Judge Cerezo, the USMS took the position that 

because López and Domena were employees of Walden and not the USMS, 

the USMS would not instruct Walden to waive the certificate 

requirement; rather, Walden would have to affirmatively request 

that the USMS waive the requirement. At oral argument, counsel 

for Walden represented that Walden never asked the USMS for a 

waiver because Walden did not interpret the contract as permitting 

such a waiver. López and Domena dispute that interpretation of 

the contract, but the dispute is not material to our analysis. 
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Inc., 320 F. Supp. 3d 338, 343-44 (D.P.R. 2018). López and Domena 

timely appealed. 

II. 

A. Legal Framework 

 We review a grant of summary judgment de novo, construing 

the record in the light most favorable to the non-moving party. 

See Lapointe v. Silko Motor Sales, Inc., 926 F.3d 52, 54 (1st Cir. 

2019). As a federal court sitting in diversity jurisdiction, we 

must apply state substantive law to assess whether summary judgment 

is appropriate. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-

79 (1938). Accordingly, Puerto Rico law governs the substantive 

issues in this appeal. See 28 U.S.C. § 1332(e) (treating the 

Commonwealth of Puerto Rico as a state for purposes of diversity 

jurisdiction). 

Puerto Rico Law 80 imposes a monetary penalty, commonly 

known as the "mesada," on employers who discharge employees without 

"just cause." See P.R. Laws Ann. tit. 29, § 185a (2015)3 ("Every 

3 All citations to Law 80 are to the version of the law in 

effect in 2015 when Walden refused to hire López and Domena. Law 

80 was amended in significant ways in 2017, but the amendment does 

not contain a statement of retroactivity, see P.R. Laws Ann. tit. 

29, §§ 185a-185n (added on Jan. 26, 2017, No. 4), nor do the 

parties suggest that it should be applied retroactively. See,

e.g., Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 

946 (1997) (applying the "time-honored presumption" against 

retroactivity where "[n]othing in the [statutory] amendment 

evidences a clear intent by Congress that it be applied 

retroactively, and no one suggests otherwise"). 
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employee in commerce, industry, or any other business or workplace 

. . . in which he/she works for compensation of any kind, 

contracted without a fixed term, who is discharged from his/her 

employment without just cause, shall be entitled to receive from 

his/her employer, in addition to the salary he/she may have earned: 

[various forms of compensation]."); Otero-Burgos v. Inter Am. 

Univ., 558 F.3d 1, 7-8 (1st Cir. 2009) (describing the "mesada" 

and the operation of Law 80). In this manner, Law 80 modifies the 

concept of "at-will" employment, which traditionally permits 

employers to dismiss employees who do not have a contract for a 

fixed term "for any reason or no reason at all." See Otero-Burgos, 

558 F.3d at 7 (internal quotation marks omitted). 

Because Law 80 provides compensation for "discharge 

without just cause," a plaintiff invoking Law 80's protection must, 

as a general rule, demonstrate as a threshold matter that he or 

she had an employment relationship with the defendant entity and 

that the defendant entity terminated that relationship through a 

"discharge." See P.R. Laws Ann. tit. 29, §§ 185a, 185e (emphasis 

added). However, there are two exceptions to this requirement. 

First, pursuant to Article 6 of Law 80, after the sale 

of a business, "[i]n the event that the new acquirer chooses not 

to continue with the services of all or any of the employees and 

hence does not become their employer, the former employer shall be 

liable for the [mesada]." See id. § 185f. Under those 
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circumstances, although the seller did not technically "discharge" 

the employee -- rather, the seller failed to protect the employee 

in the contract of sale, and the acquirer subsequently declined to 

hire the individual -- the seller is liable to pay the mesada 

pursuant to Article 6. See id. 

Under the second exception, known as the "successor 

employer doctrine" and developed through Puerto Rico common law, 

the acquirer rather than the seller is liable for the mesada. See 

Rodríguez Oquendo v. Petrie Retail Inc. D.I.P., 167 P.R. Dec. 509, 

__ P.R. Offic. Trans. __ (2006). Pursuant to this doctrine, if an 

employer unjustly terminates one of its employees and then 

transfers the business to a new entity through a sale of assets or 

a merger, the previously discharged employee may hold the acquirer 

liable for the mesada, even though it was the predecessor entity 

that was actually responsible for the unjust discharge. See id. 

Thus, the successor employer doctrine permits a plaintiff to seek 

the mesada from an entity with which the plaintiff never had any 

employment relationship at all. 

B. The District Court Decision 

 Both before the district court and on appeal, López and 

Domena have consistently invoked the successor employer doctrine 

as their theory of liability. They concede that they were never 

"discharged" by Walden, given that Walden never hired them in the 

first place, and thus Walden cannot be liable under the traditional 
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Law 80 analysis. They also explicitly disclaim reliance on Article 

6 of Law 80, acknowledging that the plain text of Article 6 

requires a sale of a business. There was no such sale from Akal 

to Walden. 

Yet the district court limited its analysis to the issues 

conceded and disclaimed by López and Domena. Specifically, it 

granted summary judgment to Walden because Walden was never López 

and Domena's "employer" and thus never discharged them,4 and 

because Article 6 of Law 80 does not apply to their case because 

there was no sale of a business from Akal to Walden. See LópezSantos, 320 F. Supp. 3d at 343-44. In doing so, the district court 

ignored the only theory of liability that López and Domena actually 

do advance: the successor employer doctrine. This legal error 

requires us to decide whether to remand for the district court to 

conduct the proper analysis or to conduct our own legal analysis 

of the successor employer doctrine's applicability in the first 

instance, given the principle that we may affirm a grant of summary 

4 López and Domena argue to us that the district court's 

analysis of whether Walden was ever their "employer" improperly 

relied on definitions of "employer" and "employee" that were added 

to Law 80 by the Labor Reform Act in 2017. For the reasons stated 

in footnote 3, we agree. However, this particular error is 

immaterial, given the district court's larger error. Put 

differently, the district court's misplaced reliance on these new 

statutory definitions only came into play in a portion of the 

district court's analysis that we find irrelevant.
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judgment on any ground supported by the record. See Robinson v. 

Town of Marshfield, 950 F.3d 21, 24 (1st Cir. 2020).

We elect the latter approach. Because there are no 

material factual disputes, our analysis is purely legal and 

requires no further factfinding by the district court. Moreover, 

the successor employer doctrine is so clearly inapplicable to López 

and Domena's case that any remand to the district court would be 

futile, resulting in a waste of the parties' resources. 

C. Application of Successor Employer Doctrine

López and Domena's theory of liability based on the 

successor employer doctrine fails for two distinct reasons. First, 

the successor employer doctrine is applicable only where a 

plaintiff seeks to hold the successor entity liable for a Law 80 

violation by the predecessor entity. See Rodríguez Oquendo, 167 

P.R. Dec. 509 (citing Piñeiro v. Int'l Air Serv. of P.R., Inc., 

140 P.R. Dec. 343, 40 P.R. Offic. Trans. __ (1996), which held a 

successor employer liable pursuant to Law 80 for dismissals that 

took place five months prior to the transfer of the business); see 

also id. (explaining that the successor employer doctrine allows 

a plaintiff "to hold an entity liable for the unfair practices 

committed by another" (quoting L.R.B. v. Club Náutico, 97 P.R. 

376, 390 (1969)). But here López and Domena do not take issue 

with any action by Akal, the prior entity. Rather, they cite 

Walden's failure to hire them as the triggering event for their 
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Law 80 claim. Thus, the successor employer doctrine simply does 

not apply to the situation at bar.

If that were not enough, the successor employer doctrine 

is also applicable only where "an employer . . . replaces another 

through a transfer of assets or a corporate merger." Id.; see 

also id. (holding that the successorship doctrine applies to the 

transfer of assets in a federal bankruptcy proceeding, even if 

free of liens). In this case, López and Domena concede that Akal 

did not sell a business to Walden -- indeed, Akal and Walden had 

no relationship with one another other than the fact that they 

happened to win the USMS contract in consecutive terms. For this 

reason as well, Walden cannot be liable under the successor 

employer doctrine. 

López and Domena's arguments to the contrary are 

unavailing. First, they invoke the multifactor test used to 

determine whether the successor business "replaced" the former 

business, a requirement for the imposition of successor liability 

under the successor employer doctrine. See id. (holding that the 

successor business has "replaced" the former business when there 

is "a substantial similarity . . . 'in the operation and 

continuity of the identity of the enterprise before and after the 

change'" (quoting L.R.B. v. Cooperativa Azucarera, 98 P.R. 307, 

316 (1970)). The factors examined by Puerto Rico courts include: 
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(1) [T]he existence of a substantial 

continuation in the same business activity; 

(2) the utilization of the same operating 

plant; (3) the employment of the same or 

substantially the same labor force; (4) to 

maintain the same supervisory personnel; (5) 

to use the same equipment and machinery and to 

employ the same methods of production; (6) the 

production of the same products and the 

rendering of the same services; (7) continuity 

of identity; and (8) the operation of the 

business during the transfer period. 

Id. (quoting Cooperativa Azucarera, 98 P.R. at 317-18) (alteration 

in original). López and Domena argue that because the record 

indisputably demonstrates that nearly all of these factors are 

satisfied in their situation, we must hold Walden liable as Akal's 

"replacement." 

 We generally agree with López and Domena's 

characterization of the record, but that does not win the day for 

them. Specifically, the fact that Walden may have "replaced" Akal 

within the meaning of this multifactor test does not overcome the 

threshold limitations of the successor employer doctrine that we 

have already noted. Rather, those formal limitations prevent us 

from even applying the multifactor test. To the extent that López 

and Domena suggest that their case demonstrates the need to revisit 

those formal limitations, that argument also fails. "A litigant 

who chooses federal court over state court 'cannot expect this 

court to . . . blaze new and unprecedented jurisprudential trails' 

as to state law." Doe v. Trs. of Bos. Coll., 942 F.3d 527, 535 
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(1st Cir. 2019) (quoting A. Johnson & Co. v. Aetna Cas. & Sur. 

Co., 933 F.2d 66, 73 n.10 (1st Cir. 1991)) (omission in original). 

Instead, we "must take state law as [we] find[] it: not as it might 

conceivably be, some day; nor even as it should be." Kassel v. 

Gannett Co., 875 F.2d 935, 950 (1st Cir. 1989) (internal quotation 

marks omitted).

López and Domena also gain no benefit from the former5

executive order that they invoke. Executive Order 13,495 mandated 

that new federal contractors offer a right of first refusal to all 

qualified employees of the previous contractor. See Exec. Order 

No. 13,495, Nondisplacement of Qualified Workers Under Service 

Contracts, 74 Fed. Reg. 6103 (Jan. 30, 2009). Although the cited 

executive order does reflect a federal interest in "a carryover 

work force," see id., which arguably might be relevant to the 

question of whether López and Domena's discharge was "without just 

cause" under Commonwealth law, we never even reach that question 

given the futility of López and Domena's successor employer theory 

of liability.

5 Executive Order 13,495 was in effect when Walden assumed 

the USMS contract in 2015. See Exec. Order No. 13,495, 

Nondisplacement of Qualified Workers Under Service Contracts, 74 

Fed. Reg. 6103 (Jan. 30, 2009) (previously codified at 29 C.F.R. 

part 9). President Trump rescinded Executive Order 13495 in 2019. 

See Exec. Order No. 13,897, Improving Federal Contractor 

Operations by Revoking Executive Order 13495, 84 Fed. Reg. 59,709 

(Oct. 31, 2019). 
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Accordingly, we must affirm the district court's grant 

of summary judgment. So ordered.