Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2322

ANTONIO COSTA-UREÑA, IVYS MARRERO; CONJUGAL PARTNERSHIP

COSTA-MARRERO; LUIS JIRAU; ADELAIDA JOESFINA CABRERA-AGUILAR;

CONJUGAL PARTNERSHIP JIRAU-CABRERA; CARLOS RUEDA-ARENAS;

SUSAN IVETTE FIGUEROA-NATAL; CONGJUAL PARTNERSHIP 

RUEDA-FIEGUEROA,

Plaintiffs, Appellees,

v.

MILTON SEGARRA; ANÍBAL ACEVEDO VILÁ,

Defendants, Appellants, 

WILLIAM MENDEZ, CONJUGAL PARTNERSHIP MENDEZ-DOE;

HYLSA SYLVA-JANER; CONJUGAL PARTNERSHIP DOE-SYLVA;

JOSE J. FAS; CONJUGAL PARTNERSHIP FAS-DOE; LILY ORONOZ;

CONJUGAL PARTNERSHIP DOE-ORONOZ; CONJUGAL PARTNERSHIP 

SEGARRA-DOE; JOHN DOE,

Defendants.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

 Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.
Eduardo A. Vera Ramírez, with whom Roberto Sanchez Ramos,

Secretary of Justice, Salvador Antonetti Stutts, Solicitor

General, Eileen Landrón Guardiola, Courtney R. Carroll and

Landrón & Vera, LLP, were on brief, for appellants.

Marie Elsie Lopez Adames, with whom Gonzalez Lopez & Lopez

Adames was on brief, for appellees.

July 13, 2006
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Per Curiam. This is an interlocutory appeal of the

denial of a motion for summary judgment brought by two defendants

to a political discrimination lawsuit. One of the appellants is

Aníbal Acevedo Vilá, the Governor of the Commonwealth of Puerto

Rico. Acevedo Vilá is a substitute defendant to an official

capacity claim for prospective injunctive relief initially lodged

against his predecessor, Sila María Calderón. See Fed. R. Civ. P.

25(d). (Confusingly, plaintiffs-appellees argue as if former

Governor Calderón remains a defendant, but she has not been a party

to this action for quite some time). The other appellant is

Milton Segarra, the Executive Director of the Commonwealth's

Tourism Company, who has been sued in his individual capacity.

Three former employees of the Tourism Company brought the action,

which seeks damages from Segarra and the equitable remedy of

reinstatement under federal and Commonwealth law.

The motion for summary judgment was based, in relevant

part, on immunity defenses, Acevedo Vilá claiming Eleventh

Amendment immunity, and Segarra invoking the application of

qualified immunity. The district court disagreed, holding that the

claims against the Governor were permissible under Ex parte Young,

209 U.S. 123, 155-56 (1908), and that genuine issues of material

fact as to motive precluded summary judgment on the basis that the

Executive Director was entitled to qualified immunity.
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We start with the Governor's arguments. Acevedo Vilá

says that the district court erred in two respects. First, the

court overlooked the fact that plaintiffs do seek damages from him

in his official capacity. Second, the court failed to appreciate

that the pleadings and evidence are insufficient to establish the

Governor's authority to order plaintiffs' reinstatement. In making

the latter argument, the Governor invokes Ex parte Young's

admonition that the case not be too broadly applied. See 209 U.S.

at 157 ("In making an officer of the state a party defendant in a

suit to enjoin the enforcement of an act alleged to be

unconstitutional, it is plain that such officer must have some

connection with the enforcement of the act, or else it is merely

making him a party as a representative of the state, and thereby

attempting to make the state a party.").

We reject the Governor's argument pertaining to monetary

relief. Our review of the record simply does not substantiate

Acevedo Vilá's assertion that plaintiffs are seeking monetary

damages from him. Of course, were it otherwise, plaintiffs' claim

for monetary relief would be barred by the Eleventh Amendment.

See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

102-03 (1984). But the district court fully appreciated this. See

Costa Ureña v. Segarra, Civil No. 02-2745 (JAF), slip op. at 3

(D.P.R. June 16, 2005). If the desire is to have the judgment

modified to more explicitly state that the Governor is immune from
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monetary liability in his official capacity, such a request should

be directed to the trial court.

We also reject the Governor's request that he be relieved

of the burden of defending against plaintiffs' claim for

reinstatement. Initially, we doubt that we have jurisdiction to

entertain the Governor's argument. Our jurisdiction under the

collateral order doctrine encompasses only interlocutory appeals

from denials of motions to dismiss based on the Eleventh Amendment,

see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 141 (1993), and "inextricably intertwined" matters, see

Nieves-Márquez v. Commonwealth of Puerto Rico, 353 F.3d 108, 123-24

(1st Cir. 2003). Although the Governor purports to base his

exemption from suit on the Eleventh Amendment, it is difficult to

see how the sovereignty interests the Amendment seeks to protect

are implicated here. Clearly, some Commonwealth official could

properly be ordered to reinstate plaintiffs, so this is not a

situation where we are being asked, in substance, "to prevent the

indignity of subjecting a State to the coercive process of judicial

tribunals at the instance of private parties." In re Ayers, 123

U.S. 443, 505 (1887). The official capacity claim against the

Governor seeks nothing other than prospective injunctive relief,

and the Eleventh Amendment is "wholly inapplicable" to such claims.

Metcalf & Eddy, 506 U.S. at 146; cf. Swint v. Chambers County

Comm'n, 514 U.S. 35 (1995) (refusal to dismiss on basis of
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qualified immunity not immediately appealable as a collateral order

insofar as refusal was based on an assertion that defendant was not

the proper defendant). In any event, even if we concluded that the

Governor's argument properly was based on the Eleventh Amendment,

we would reject his request for relief on the merits. Cf. Parella

v. Ret. Bd. of the R.I. Employees Retirement Sys., 173 F.3d 46,

53-57 (1st Cir. 1999) (courts may bypass jurisdictional inquiries

involving the denial of an Eleventh Amendment defense where the

merits of the underlying issue are easily resolved). An Eleventh

Amendment defense is waivable, and the proponent bears the burden

of proof. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.

480, 494 n.20 (1983); Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664,

667 (1st Cir. 1996). Here, the Governor attempts to carry his

burden by means of a one-sentence argument: that his undisputed

power to make appointments under Puerto Rico law and to appoint the

Executive Director of the Tourism Company are "legally insufficient

bas[e]s to connect the Governor of the Commonwealth of Puerto Rico

to the injunctive relief requested." Why this is so is entirely

unelaborated and far from self-evident. We are at the very least

dubious that an order from the Governor to the Executive Director

of the Tourism Company that plaintiffs be reinstated would go

unheeded. But in any event, we are not inclined to address the

merits of what may be a complicated issue of Commonwealth law
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without assistance from the party bringing the appeal. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

Finally, the Executive Director's appeal fails on

jurisdictional grounds. The appeal does not argue that the

district court misapplied clearly established federal law to the

facts as those facts must be taken at the summary judgment stage.

Rather, the appeal, which challenges the adequacy of the evidence

that the Executive Director harbored a discriminatory animus

against plaintiffs and members of plaintiffs' political party,

argues only that the court misread the evidence in arriving at the

corpus of facts under which the legality of the Executive

Director's conduct must be assessed. Such an argument may not,

under the collateral order doctrine, ground an interlocutory appeal

from the denial of a motion to dismiss on qualified immunity

grounds. See, e.g., Johnson v. Jones, 515 U.S. 304, 311 (1995);

Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60 (1st Cir. 2004).

Affirmed in part; dismissed in part.