United States Court of Appeals

For the First Circuit

Nos. 03-2520, 04-1169

MILTON NIEVES-LUCIANO; GERARDINA RIVERA-GALVAN;

SHAWN NIEVES-RIVERA; RICHARD NIEVES-RIVERA; JOANNE NIEVES-RIVERA,

Plaintiffs, Appellants,

v.

RAMÓN HERNÁNDEZ-TORRES, In His Personal Capacity and as Mayor of

the Municipality of Juana Díaz; MUNICIPALITY OF JUANA DÍAZ,

Defendants/Third-Party Plaintiffs, Appellees,

v.

SANTIAGO MARTÍNEZ-IRIZARRY

Third-Party Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Justo Arenas, U.S. Magistrate Judge]

Before

 Lynch, Lipez, and Howard, Circuit Judges.

Fredeswin Perez Caballero, with whom Jesus Hernandez-Sanchez

and Hernandez Sanchez Law Firm were on brief, for appellants.

Johanna M. Emmanuelli Huertas, with whom Gina Ismalia

Gutiérrez-Galang and Law Office Pedro E. Ortiz Alvarez, were on

brief, for appellees.

January 28, 2005
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HOWARD, Circuit Judge. Milton Nieves-Luciano and his

wife and children (collectively "appellants") sued the Municipality

of Juana Díaz and its mayor, Ramón Hernández-Torres, (collectively

"appellees") for terminating Nieves' public employment on account

of his political affiliation. In so far as relevant to this

appeal, the complaint alleged violations of the First Amendment and

the Fourteenth Amendment's due process clause. After discovery,

the district court awarded appellees summary judgment. We affirm.

Nieves is a member of the New Progressive Party ("NPP").

He was hired by the Municipality of Juana Díaz in July 1994 under

a professional services contract. In 1997, the then mayor of Juana

Díaz created the position of Director of Data Processing. This

position was identified as a trust position, meaning that its

occupant could be terminated at will and without cause. The

Director of Data Processing was primarily responsible for

implementing and managing a computerized accounting system for the

municipality. Nieves was appointed to the position in August 1997.

From 1993 through late 2000, the NPP controlled the Juana

Díaz municipal government. In November 2000, however, power

changed hands as Hernández-Torres, a member of the Popular

Democratic Party ("PDP"), was elected mayor. On April 11, 2001,

Nieves received notice that his appointment as Data Processing

Director would be terminated immediately. The letter did not

provide Nieves with a reason for the termination other than to
1This ruling is not challenged on appeal.

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state that, because Nieves occupied a trust position, his

employment could be terminated at any time.

Subsequently, appellees explained that they terminated

Nieves' employment because his position was unnecessary and was

created in violation of municipal law. According to appellees,

every municipality in Puerto Rico was required to participate in a

central accounting system operated by the Office of the Commission

for Municipal Affairs (the "OCAM system"). After the PDP assumed

power, the new government reviewed the utility of several municipal

positions. As part of this review, the government determined that

the Director of Data Processing position was duplicative because

the OCAM system already provided a mandatory accounting system that

contained essentially the same features as the local system that

Nieves had been overseeing. Appellants brought the underlying

lawsuit to assert that this rationale was a sham and that Nieves

was terminated on account of his NPP membership.

At the conclusion of discovery, appellees moved for

summary judgment on Nieves' First Amendment and due process claims.

The district court granted the motion on the due process claim

because appellants had not produced evidence that Nieves had a

property interest in his employment.1 The court, however, rejected

appellees' challenge on the political discrimination claim on the

ground that there were disputed material facts concerning the true
2Because of these disputed facts, the district court also

rejected Hernández-Torres' claim that he was entitled to summary

judgment on qualified immunity grounds.

3In April 2004, this Rule was recodified as D.P.R. Local R.

56(c).

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reason for the termination. Specifically, the court stated that

there were disputes concerning whether the local system was

duplicative of the OCAM system, whether Nieves was replaced as the

Director of Data Processing by PDP members, and whether the

position was initially created in violation of municipal law.2

A month after the district court's ruling, appellees

moved for reconsideration of the denial of their motions for

summary judgment on the First Amendment claim. On reconsideration,

the district court determined that appellants' original summary

judgment opposition did not comply with D.P.R. Local R. 311.12

because their counter-statement of facts did not contain record

citations.3 The court also ruled that Nieves' affidavit, which

stated that he had been replaced by PDP members and that HernándezTorres had said that he wanted to "clean the house of NPP

employees," was inadmissible because it was not based on personal

knowledge. As a result, the court granted appellees summary

judgment on the ground that there was no evidence from which a jury

could conclude that Nieves' termination was at least partially

motivated by his political affiliation.
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After the entry of judgment, appellants filed a Fed. R.

Civ. P. 60(b)(2) motion seeking relief from judgment because of a

newly acquired affidavit from one of Nieves' coworkers. The

affidavit stated that the affiant had heard Hernández-Torres say

that he "would clean the house of NPP employees." The court denied

appellants Rule 60(b)(2) relief on the ground that the affidavit

was "not newly discovered evidence" within the meaning of the Rule.

This appeal, challenging the summary judgment ruling and the denial

of the motion for relief under Rule 60(b)(2), followed. 

We review the district court's grant of summary judgment

de novo, viewing the record in the light most hospitable to the

party opposing summary judgment. See Padilla-García v. Guillermo

Rodriguez, 212 F.3d 69, 73 (1st Cir. 2000). Summary judgment is

only appropriate if there is no genuine issue as to any material

fact, and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c).

Before proceeding to the merits, we dispose of a

threshold issue that appellants call "jurisdictional." Appellants

contend that the district court was without power to reconsider its

initial denial of summary judgment on the political discrimination

claim because appellees did not move for reconsideration within ten

days as required by Fed. R. Civ. P. 59(e). The argument is

meritless. 
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Rule 59(e) provides a party with ten days to move to

alter or amend a judgment, and the district court may not enlarge

the time frame. See Feinstein v. Moses, 951 F.2d 16, 19 (1st Cir.

1991). But Rule 59(e) does not apply to motions for

reconsideration of interlocutory orders from which no immediate

appeal may be taken, see United States v. Martin, 226 F.3d 1042,

1048 (9th Cir. 2000), including summary judgment denials, see

Pacific Union Conf. of Seventh-Day Adventists v. Marshall, 434 U.S.

1305, 1306 (1977) (Rehnquist, J., in chambers). Interlocutory

orders such as these "remain open to trial court reconsideration"

until the entry of judgment. Geffon v. Micrion Corp., 249 F.3d

29, 38 (1st Cir. 2001) (quoting Pérez v. Crespo-Guillén, 25 F.3d

40, 42 (1st Cir. 1994)). Thus, the district court could reconsider

its initial summary judgment ruling even though appellees did not

seek reconsideration within ten days of the ruling.

We turn now to appellants' challenge to the correctness

of the summary judgment ruling. When alleging a claim of political

discrimination, a plaintiff bears the burden of producing

sufficient evidence, whether direct or circumstantial, that he

engaged in constitutionally protected conduct and that political

affiliation was a substantial or motivating factor behind the

challenged employment action. See Gonzalez-De-Blasini v. Family

Dept., 377 F.3d 81, 85 (1st Cir. 2004). The plaintiff must

identify evidence which, if believed, would permit a factfinder to
4Appellants also assert that there was a material dispute over

whether the Data Processing Director position was initially created

in violation of municipal personnel law. We fail to see the

materiality of this alleged dispute. Even if we assumed that the

position was properly created at its inception, this would not

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conclude that the challenged employment action stemmed from

politically based animus. See LaRoue v. Ridlon, 98 F.3d 659, 661

(1st Cir. 1996).

The district court ruled that appellants had failed to

identify evidence which could support a conclusion that Nieves was

fired because of his NPP membership. Even if we were to credit

appellants' inadequately supported counter-statement of facts

(which the district court declined to do), we see no error in this

judgment.

Appellants argue that there was a material dispute over

whether the local accounting system was actually duplicative of the

OCAM system and that this dispute warranted a trial on the First

Amendment claim. In support of this argument, appellants point to

a single sentence in the deposition testimony from an OCAM employee

in which she suggested that, at one point, the local system

provided a printing feature not available through the OCAM system.

Shortly after so testifying, however, the employee clarified that

the OCAM system was later updated to provide the same feature,

making the systems duplicative. This clarification refutes

appellants' argument that there was a genuine dispute over whether

the local accounting system was duplicative of the OCAM system.4
undermine appellees' primary explanation for terminating Nieves,

i.e., that the Data Processing Director position was duplicative.

In any event, appellants have not identified record evidence that

the Data Processing Director position was in fact lawfully created

in 1997. 

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Appellants next contend that two statements in Nieves'

affidavit were sufficient to establish a genuine issue of material

fact as to whether discriminatory animus prompted Nieves'

termination. The first statement identified PDP members whom

(Nieves claims) replaced him as the Director of Data Processing.

Appellees contend that Nieves was not replaced because the position

was eliminated. The second statement recited an alleged comment by

Hernández-Torres that he planned to "clean the house of NPP

employees." The district court treated these statements as

inadmissible because there was no indication that they were based

on personal knowledge as is required by Fed. R. Civ. P. 56(e).

For purposes of summary judgment, an allegation in an

affidavit must be based on personal knowledge and show

affirmatively that the affiant is competent to testify to the

matters stated therein. See López-Carrasquillo v. Rubianes, 230

F.3d 409, 414 (1st Cir. 2000). Nieves' statements do not meet this

requirement. If Nieves had been replaced, presumably the

replacements did not begin work until after Nieves' employment had

ended. Without further foundation, we cannot assume that Nieves

had personal knowledge of whether he was replaced and, if so, the

identity and political affiliations of the replacements. See Perez
5At oral argument, appellants' counsel conceded that Nieves

did not actually hear Hernández-Torres make this comment.

6In any event, Nieves was not entitled to an explanation for

his termination because his employment was terminable at will and

without cause. 

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v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (stating that

an affidavit attesting to facts that took place before the affiant

joined his employer are not based on the affiant's personal

knowledge). Similarly, there are no foundational facts indicating

that Nieves personally heard Hernández-Torres say that he planned

to "clean the house of NPP employees."5 

Finally, appellants contend that appellees' failure to

state the reason for Nieves' termination in the dismissal letter

suggests impermissible motive because it shows that appellees'

stated reasons for the termination were post hoc justifications.

We fail to see any logic in the inference that appellants would

have us draw. No reasonable fact finder could conclude, in these

circumstances, that the absence of a contemporaneous explanation in

Nieves' dismissal letter was proof of discrimination. Such a

conclusion would be the product of unsubstantiated speculation

which, of course, can never defeat a properly supported summary

judgment motion.6 See, e.g., Poulis-Minott v. Smith, 388 F.3d 354,

366-67 (1st Cir. 2004).

 In sum, appellants did not identify competent evidence

showing political animus. Nor did they identify evidence
7As noted above, appellants also challenge the district

court's Fed. R. Civ. P. 60(b)(2) ruling that the proffered

affidavit from Nieves' coworker (stating that she had heard

Hernández-Torres say that he planned to "clean the house of NPP

employees") was not newly discovered evidence. Relief from

judgment under Rule 60(b) is "extraordinary in nature" and "should

be granted sparingly." See Karak v. Bursaw Oil Corp., 288 F.3d 15,

19 (1st Cir. 2002). Among other requirements, the moving party

must show that the new evidence would likely change the result of

the proceeding. See United States Steel, Co. v. M. DeMatteo

Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002). Here, even if the

affidavit had been considered, it would have made no difference.

A generalized statement that the mayor intended to "clean house" of

opposition party members would be insufficient to satisfy

appellants' summary judgment burden. See Figueroa-Serrano v.

Ramos-Alverio, 221 F.3d 1, 8 (1st Cir. 2000). 

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disputing appellees' claim that Nieves was terminated because the

Director of Data Processing position was duplicative. Appellants

therefore failed to meet their initial burden of showing that

political affiliation was the substantial or motivating cause of

Nieves' termination. The district court correctly entered summary

judgment on the political discrimination claim. See Angulo-Alvarez

v. Aponte de La Torre, 170 F.3d 246, 250 (1st Cir. 1999).7

Affirmed.