Costa-Urena v. Segarra , 193 F. App'x 1 ( 2006 )

Not For Publication in West's Federal Reporter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
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.
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