Of the Ninth Circuit, sitting by designation. * 

# U nit ed Sta tes C ou rt o f A pp eal s

For t h e Firs t C ircu it

No. 08-2048 JUAN CARLOS LASALLE-CONCEPCIÓN; LIZETTE DE LA CRUZ-LÓPEZ;CONJUGAL PARTNERSHIP LASALLE-DE LA CRUZ; SAMUEL ANTONIO VÉLEZLUGO; ELBA IRIS MÉNDEZ-JIMENEZ; CONJUGAL PARTNERSHIP VÉLEZ-MÉNDEZ, Plaintiffs, Appellants,

v . PEDRO TOLEDO-DÁVILA, COMMONWEALTH OF PUERTO RICO POLICE

DEPARTMENT; JOHN DOE; JANE ROE, Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

Before Lynch, Chief Judge, Farris and Boudin, Circuit Judges.

*

Heriberto Güivas-Lorenzo and Güivas & Quiñone s L aw Offices, PSC on brief for appellants. Irene S. Soroeta-Kodesh, Solicitor General, Ileana Oliver Falero, Acting Solicitor General, and Susana I. Peñagarícano-Brown on brief for appellees.

June 18, 2009Lasalle-Concepcion and Velez-Lugo were joined by their 1 sp o u s es as plaintiffs and also alleged civil rights violations under the Fourth, Fifth, N i n t h and Tenth Amendments, but then deserted these claims in their opposition to the motion to dismiss. -2- Per Curiam . Juan Carlos Lasalle-Concepcion a n d Samuel Antonio Velez-Lugo both suffered work-related injuries during their service as police officers with the Puerto Rico Police Department ("the Department" ) . Both received medical treatment for roughly six months to a year during the period 1996-1998. In 1999 the Department notified each of the men that his employment had been terminated because of his medical condition.

The officers then pursued administrative remedies and the Board of Appeals of the Personnel System Administration ("the Board") ruled in their favor. The Department pro m p t l y sought judicial review, and the Puerto Rico Court o f A p peals overturned the Board, leaving the original terminations in force. In 2001, the Department's Med i c al Board certified each man as capable of returning to work; the Department's superintendent requested reevaluation and in 2004 got the same result.

The two officers then filed this suit in federal district court, pursuant to 42 U.S.C. §§ 1983 and 1988 (2000), against the Puerto Rico P o l i c e Department and its former superintendent, arguing inter alia that the failure to reinstate them as police officers violated their due process rights under the Fourteenth Amendme n t . The district court dismissed the suit, holding that 1-3-

plaintiffs had no protected property inte r e s t in reinstatement under Puerto Rico law. The plaintiffs now appeal.

"Under the Due Pr o c e ss Clause of the Fourteenth Amendment, persons who possess a property interest in continued public employment cannot be deprived of that interest without due process of law." Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5 (1st Cir. 2000). For t h i s purpose, the Supreme Court looks to state law to determine the existence and dimensions of such an interest. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 ( 1 9 7 2 ) . S u b t l e t i e s m a y e x i s t b u t t h e y a r e n o t p r e s e nted in this case. The officers conc e d e in their complaint that they were permissibly terminated in 1999, P.R. Laws Ann. tit. 25, § 3117 (2006), but they assert a property right and legal expectation under state law in reinstatement as officers once their disabilities were resolved and the Medical Board certified them as capable of resuming their work. Plaintiffs cite Article 18 of Puerto Rico Law 53 as the source of this purported property interest. By its terms, Article 18 does not impose upon the police department any such obligation . I t merely recognizes that the police department has discretion to decide whether an officer should be reinstated: "Should the physical or mental disability disappear, said member of the Force may be reinstated to service-4-

upon certification of t he Medical Evaluation Board." P.R. Laws Ann. tit. 25, § 3117(b)(1) (2006). Whether or not the superintendent proposed to defer to the Medical Board, the statute created no property right.

By contrast, another Puerto Ric o s tatute does create a limited right of reinstatement for an employee who recovers after sustaining an injury on the job. Workmen's Accident Compensation Act, P.R. Laws Ann. tit. 11, § 7 (2006) ("[T]he employer shall be under the obligation to reserve the job filled by t h e laborer or employee at the time the accident occurred . . . ."). The contrast with Article 18's phrasing (" m a y " be reinstated) underscores the lack of an entitlement in Article 18.

The Workmen's Accident Compensation Act does not apply to the officers in this case because it includes requirements as to the timing of an application for reinstatement that were seemingly not met and cannot be met now. 11 L.P.R.A. § 7; Toro Cruz v. Policia de Puerto Rico, 159 P.R. Dec. 339 (2003). The details need not be discussed because that statute has not been invoked by the officers in this court.

Affirmed.