Mulero-Carrillo v. Roman-Hernandez , 790 F.3d 99 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2267
OMAYRA MULERO-CARRILLO; AGUSTÍN R. BENÍTEZ-DÍAZ;
LARA VÁZQUEZ-VÁZQUEZ; OMAR GUERRERO-DÍAZ; DENISE GONZÁLEZ-
SANTANA; YOHANNA SANTANA-IRIZARRY; SAMIR CRESPO-NIEVES;
OMAR A. CRESPO-NIEVES; ANDY MELÉNDEZ-ZAYAS; JOSÉ DANIEL
CRUZ-GONZÁLEZ; MELISSA GRAFALS-PÉREZ; LEONARDO CRUZ-FLORES;
ÁNGEL I. FLORES-LUGO; REBECA VERA-SOTO; VERÓNICA LÓPEZ-
TORRES; FERNANDO VALENTÍN-GONZÁLEZ; CARLOS J. SANTIAGO-
AROCHO; MARITERE BABILONIA; GERARD BELTRE-TAVÁREZ;
GERARDO J. LÓPEZ-CEPERO-MONTES,
Plaintiffs, Appellants,
v.
ALEJANDRO ROMÁN-HERNÁNDEZ, individually and as President
of the P.R. Medical Board of Licensure and Discipline;
VICTORIANO QUINTANA; AGUSTÍN VIDAL; POLICEMAN EDWIN MEJÍAS;
DR. JOSÉ IBÁÑEZ; JUAN GONZÁLEZ; RAFAEL FERNÁNDEZ; MIGUEL
TALAVERA; P.R. BOARD OF MEDICAL LICENSURE & DISCIPLINE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Carlos A. Del Valle-Cruz, with whom Armando Lamourt were on
brief, for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, were
on brief, for appellees.
June 17, 2015
TORRUELLA, Circuit Judge. Plaintiffs-Appellants are
twenty graduates from medical schools outside of the United States
who are ineligible to receive a medical license in Puerto Rico
because they failed the Puerto Rico Medical Licensing Examination
(the "PRMLE"). They challenge the validity of the PRMLE's
purportedly arbitrary passing score via this 42 U.S.C. § 1983
action, alleging that Defendants-Appellees -- the Puerto Rico Board
of Medical Licensure and Discipline (the "Board") and eight of its
officers (the "Officers," and together with the Board,
"Defendants"), in their official and individual capacities --
violated the Plaintiffs' due process and equal protection rights.
The district court granted Defendants' motion to dismiss. Finding
no plausible basis for a claim for relief, we affirm.
I. Background
In 2007, investigators uncovered a massive medical
licensing scandal in Puerto Rico involving nearly one hundred
unqualified doctors who were illegally admitted to practice. In
exchange for thousands of dollars in bribes, some former members of
the regulatory body that preceded the Board allegedly doctored exam
scores to grant medical licenses to unqualified applicants. See
United States v. Rodríguez-Torres, 560 F. Supp. 2d 108, 110 (D.P.R.
2008). In the wake of this scandal, Puerto Rico's legislature
enacted Law 139 of 2008 ("Law 139"), which reformed the Board's
authority by adding safeguards such as new oversight procedures and
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reporting requirements. P.R. Laws Ann. tit. 20, §§ 131 et seq.
Under Law 139, the Board has broad authority to regulate Puerto
Rico's medical profession, including the power to delineate the
requirements for medical licenses. Id. § 132d(3).
Despite this latitude, Law 139 limited the Board's powers
to control the examinations by requiring it to "delegate the
preparation, administering[,] and correction" of the local medical
licensing exam (the PRMLE) to an external organization.
Id. § 133a. In compliance with this mandate, the Board selected
the National Board of Medical Examiners (the "NBME") to prepare the
PRMLE. See P.R. Regs. Salud Reg. No. 7811 art. 3.3. While the
NBME prepares the exam, "[t]he Board shall establish the grade
required to pass the [PRMLE]." Id. The Board chose a passing
score of 700 points for the PRMLE by issuing a regulation.
As an alternative to the PRMLE, all applicants for Puerto
Rico medical licenses -- including Plaintiffs -- may instead take
the United States Medical Licensing Examination (the "USMLE"). The
USMLE is also prepared by the NBME. Though both the USMLE and
PRMLE test similar subject matters, the parties agreed at oral
argument that they are substantively different exams. In addition
to the differences in content, there are other important
distinctions. First, while applicants can take the USMLE only in
English, the PRMLE is offered in both English and Spanish. Id.
Second, while a passing score on the PRMLE allows applicants to
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qualify for a medical license in Puerto Rico only, a passing score
on the USMLE allows applicants to qualify for a medical license in
both Puerto Rico and the rest of the United States. Third, while
the Board set the PRMLE's passing score at 700 points, the NBME set
the USMLE's national passing score at 500 points.
Plaintiffs voluntarily elected to take the PRMLE rather
than the USMLE and failed it. They then opted for this § 1983
action requesting injunctive relief and damages, arguing that: (1)
the Board's "arbitrary" imposition of a 700-point passing score
deprived them of a liberty or property interest in practicing the
medical profession in violation of their due process rights; (2)
since the Board accepts both the USMLE and the PRMLE for medical
license applications, the difference in the passing scores between
the two tests constitutes an equal protection violation; and (3)
the Board's and its Officers' actions violated the Puerto Rico
Constitution and Puerto Rico laws and regulations.
The district court dismissed Plaintiffs' complaint.
First, the district court found that Plaintiffs conceded that their
constitutional claims are subject to only rational basis review and
held that Plaintiffs failed to plead facts plausibly demonstrating
that the Board's imposition of a 700-point passing score in the
PRMLE was not rationally related to the legitimate government
interest in ensuring that foreign-trained doctors are sufficiently
qualified to practice medicine in Puerto Rico. The district court
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also concluded that all of Plaintiffs' constitutional claims
against members of the Board acting in their official capacities
were also barred by sovereign immunity. Finally, the district
court concluded that Plaintiffs' constitutional claims for damages
against members of the Board acting in their individual capacities
would also have been barred by qualified immunity. Although the
district court found that it had discretion to retain supplemental
jurisdiction over the remaining state law claims, it declined to
exercise this jurisdiction because it had dismissed all federal
claims over which it had original jurisdiction.
This appeal ensued.1
II. Sovereign Immunity and Constitutional Claims
A. Standard of Review
We review de novo a district court's dismissal of a
complaint for lack of subject matter jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure. McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006). We also review de novo
a district court's dismissal of a complaint for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Id. Plaintiffs will survive a Rule 12(b)(6) motion to dismiss only
if their pleadings plausibly establish that they are entitled to
relief. Vernet v. Serrano-Torres, 566 F.3d 254, 258 (1st Cir.
1
Plaintiffs expressly waived any argument regarding the district
court's dismissal of all supplemental claims in their brief.
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2009). In undertaking this inquiry, "we assume the truth of all
well-pleaded facts and indulge all reasonable inferences that fit
the plaintiff[s'] stated theory of liability." In re Colonial
Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).
Also, we "may affirm on any basis apparent in the
record." Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 21 (1st
Cir. 2013); see also Gabriel v. Preble, 396 F.3d 10, 12
(1st Cir. 2005).
B. Sovereign Immunity Defense
Plaintiffs challenge the Board and the Officers'
compliance with federal due process and equal protection
guarantees, arguing that "[a] State cannot exclude a person from
the practice of . . . any . . . occupation in a manner or for
reasons that contravene the Due Process or Equal Protection Clause
of the Fourteenth Amendment." Schware v. Bd. of Bar Examiners of
the State of N.M., 353 U.S. 232, 238-39 (1957). They argue that in
establishing requirements for professional licenses, a state's
action must be rationally related to the applicants fitness or
capacity to practice in a regulated field. That is, the
requirements may not be arbitrarily chosen without connection to
the applicant's capacity. Id. at 239 ("A State can require high
standards of qualification, such as good moral character or
proficiency in its law, before it admits an applicant to the bar,
but any qualification must have a rational connection with the
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applicant's fitness or capacity to practice law."). Consequently,
Plaintiffs request that we enjoin the Board from penalizing
Plaintiffs because they failed the PRMLE. See Dkt. #25 at 42,
¶ 147(4) (Pls.' First Am. Compl.). They ask us to order the
Officers to retroactively apply a 500-point passing score to
Plaintiffs' preexisting PRMLE scores. See id. at 42, ¶ 147(3).
In response, Defendants contend that we must affirm
dismissal of all claims -- under federal and state law -- against
the Board and its members in their official capacity based on
Plaintiffs' failure to state a plausible claim, and on our lack of
subject matter jurisdiction pursuant to the Eleventh Amendment.
They allege that Plaintiffs' request for injunctive relief
prospectively ordering the Board to change the passing score of the
PRMLE to 500 points violates the Commonwealth's sovereign immunity.
In support of this, Defendants point to Pennhurst State School &
Hospital v. Halderman, which held that "an unconsenting State is
immune from suits brought in federal courts by her own citizens as
well as by citizens of another state." 465 U.S. 89, 100 (1984)
(quoting Emps. v. Mo. Pub. Health & Welfare Dep't, 411 U.S. 279,
280 (1973)).
In this case, we can bypass sovereign immunity issues
because Plaintiffs' amended complaint lacks any merit on its face.
"Eleventh Amendment questions are often labeled jurisdictional,"
Parella v. Ret. Bd. of Rhode Island Employees' Ret. Sys., 173 F.3d
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46, 55 (1st Cir. 1999), and generally, jurisdictional issues must
be resolved before analyzing dismissals under Rule 12(b)(6), Ne.
Erectors Ass'n of BTEA v. Sec'y of Labor, OSHA, 62 F.3d 37, 39 (1st
Cir. 1995). But "it is well-established under First Circuit
precedent that federal courts may resolve a case on the merits in
favor of a state without first resolving any Eleventh Amendment
issues the state raises." Brait Builders Corp. v. Mass., Div. of
Capital Asset Mgmt., 644 F.3d 5, 11 (1st Cir. 2011) (citing
Parella, 173 F.3d at 53-57). See also Redfern v. Napolitano, 727
F.3d 77, 82 (1st Cir. 2013) (bypassing jurisdictional question
entirely because claims became moot); Dávila v. Corporación de P.R.
para la Difusión Pública, 498 F.3d 9, 14 (1st Cir. 2007).
Therefore, we examine Plaintiffs' claims directly under a Rule
12(b)(6) analysis.
C. Rule 12(b)(6) Plausibility Analysis
Plaintiffs will survive a Rule 12(b)(6) motion to dismiss
their federal constitutional claims -- based on equal protection
and substantive due process -– in this § 1983 action only if their
pleadings plausibly establish that the Board or its members
violated their federal constitutional rights. See 42 U.S.C.
§ 1983; Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53-55
(1st Cir. 2013).
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1. "Similarly-Situated" and the Equal Protection Claim
The Fourteenth Amendment's Equal Protection Clause
prohibits a state from treating similarly situated persons
differently because of their classification in a particular group.
See U.S. Const. amend. XIV, § 1; Tapalian v. Tusino, 377 F.3d 1, 5
(1st Cir. 2004). Generally, for an equal protection claim to
survive a motion to dismiss, a plaintiff must allege facts
plausibly demonstrating that "'compared with others similarly
situated, [the plaintiff was] selectively treated . . . based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.'" Barrington
Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7
(1st Cir. 2001) (second alteration in original) (emphases omitted)
(quoting Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)).
Here, however, because the Plaintiffs concede there is no
implication of a fundamental right being affected, and, since they
do not claim to belong to a suspect classification,2 the Defendants
are correct to argue that their medical licensing decisions require
only rational basis review. See González-Droz v. González-Colón,
660 F.3d 1, 9 (1st Cir. 2011) (citing Medeiros v. Vincent, 431 F.3d
2
See Mills v. Maine, 118 F.3d 37, 47 (1st Cir. 1997) (defining
"suspect class" as a "class of persons characterized by some
unpopular trait or affiliation" that indicates a heightened
likelihood of bias against them).
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25, 29 (1st Cir. 2005). Defendants add that, even assuming that
Plaintiffs alleged a plausible prima facie equal protection
violation, the Board's action is rational to the extent that it
intended to require aspiring doctors to demonstrate a minimum level
of knowledge.
Having carefully examined their complaint, as amended, we
find that Plaintiffs, as PRMLE examinees, have failed to plead that
they are similarly situated to USMLE examinees or that any alleged
classification violates their equal protection rights. Instead of
alleging that the USMLE and the PRMLE are equivalent exams,
Plaintiffs' admitted at oral argument that these are different
exams. Despite this admission, Plaintiffs make the implausible
assertion that the Board's "arbitrary" imposition of a 700-point
passing score on the PRMLE, when compared to the 500-point passing
score on the USMLE, automatically constitutes an equal protection
violation. But, if the PRMLE and the USMLE are two different
exams, comprising different questions, the fact that they use two
different passing scores is insufficient to demonstrate a plausible
equal protection violation. Takers of one exam are not equally
situated with takers of the other exam.
"The formula for determining whether individuals or
entities are similarly situated . . . is not always susceptible to
precise demarcation. The line between sufficient facts and
insufficient conclusions is often blurred ." Barrington Cove, 246
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F.3d at 8 (alterations, citations, and internal quotation marks
omitted). Nevertheless, the standard "is whether a prudent person,
looking objectively at the incidents, would think them roughly
equivalent and the protagonists similarly situated." Id. (quoting
Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir.
1989), overruled on other grounds by Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 64 (1st Cir. 2004)).
Thus, we conclude that Plaintiffs' apples-to-oranges
comparison, even when read in the light most favorable to them,
does not pass Rule 12(b)(6) muster. Plaintiffs, as PRMLE takers,
failed to plead an indicia of being similarly situated to takers of
the USMLE. See Rodríguez-Cuervos v. Wal-Mart Stores, Inc., 181
F.3d 15, 21 (1st Cir. 1999) ("The comparison cases need not be
perfect replicas. . . . [But,] in offering . . . comparative
evidence, [a plaintiff] bears the burden of showing that the
individuals with whom he seeks to be compared have been subject to
the same standards and have engaged in the same conduct . . . .")
(internal quotation marks and citations omitted).
2. Rational Basis and the Equal Protection and
Substantive Due Process Claims
Plaintiffs' pleadings also fail to establish why such
classification would be necessarily irrational, either for equal
protection or substantive due process purposes. Because the
analysis required for those two claims is the same, we examine them
together. González-Droz, 660 F.3d at 9; Medeiros, 431 F.3d at
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32-33. For both equal protection and substantive due process, when
plaintiffs do not allege that a fundamental right is affected, they
are required to show that the governmental infringement is not
rationally related to a legitimate government purpose. Id.
Here, Plaintiffs do not allege that they belong to a
suspect category or that obtaining a license to practice medicine
is a fundamental constitutional right. See Medeiros, 431 F.3d at
32 ("The right to 'make a living' is not a 'fundamental right,' for
either equal protection or substantive due process purposes."
(quoting N.Y. State Trawlers Ass'n v. Jorling, 16 F.3d 1303,
1309-12 (2d Cir. 1994)). Therefore, their claim is within an area
of social and economic policy, where a legislative "classification
that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification."
FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). We need not
examine what such reasonably conceivable state of facts may be
because "[r]emedial choices made by . . . regulatory bod[ies] are
. . . rebuttable only where the party challenging the . . .
regulation can establish that 'there exists no fairly conceivable
set of facts that could ground a rational relationship between the
challenged classification and the government's legitimate goals.'"
Medeiros, 431 F.3d at 30 (citing Wine and Spirits Retailers, Inc.
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v. Rhode Island, 418 F.3d 36, 54 (1st Cir. 2005)). Plaintiffs bear
the burden of "negat[ing] any conceivable basis which might
support" that set of "fairly conceivable" facts. Donahue v. City
of Boston, 371 F.3d 7, 16 (1st Cir. 2004) (quoting Beach Commc'ns,
508 U.S. at 315).
As we discussed above, Plaintiffs conceded at oral
argument that the PRMLE and USMLE are substantively different
tests, such that a 200-point difference in the minimum passing
score could be rationally related to the substantive difference.
And even though Plaintiffs do not "take issue . . . with the goals
of Law 139" (i.e., do not dispute that the state had a legitimate
government purpose in enacting the law), Plaintiffs alleged nothing
that would indicate that this 200-point difference is so extreme as
to be unjustified by the (unspecified) substantive differences
between the two tests. Plaintiffs thus fail to allege facts that
could possibly negate the rational justification for the difference
in scores.
Plaintiffs' complaint seemingly alleges an alternate
classification. Their complaint could reasonably be read to argue
that the Board selected a different passing score on the basis that
it knows that foreign-trained applicants tend to take the PRMLE,
rather than the USMLE, treating them differently from U.S.-trained
applicants, who tend to take the USMLE. See Dkt. #25 at 15, ¶ 46
(Pls.' First Am. Compl.) ("Applicants for a medical license that
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study in medical schools located in Puerto Rico usually take[] a
test different than that required of applicants like the Plaintiffs
that study in international schools." (emphases added)). That is,
the Board meant to discriminate on the grounds that its Officers
know that foreign-trained applicants will normally choose the
PRMLE. Even assuming that Plaintiffs had carefully alleged that
the Board intentionally discriminated against them for the sole
reason of being foreign-trained applicants, classifying them on
that basis, Plaintiffs' pleadings fail to establish why such
classification would be necessarily irrational, either for equal
protection or substantive due process purposes. As the district
court suggested, the Board might have decided to impose a higher
score to foreign-trained applicants because foreign schools may be
subject to less demanding accreditation requirements. With a
rigorous standardized test requirement, the state would not have to
independently determine that every international medical school had
accreditations or curricula equivalent to that of a domestic
school. Plaintiffs do not negate these reasonings, which would be
rational justifications. It suffices to say that Plaintiffs did
not establish that under no conceivable set of circumstances their
purported classification is reasonably related to the Defendants'
interest in regulating the medical profession and protecting public
health. Thus, Plaintiffs have failed to plead a plausible claim
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for relief for violations of their equal protection or substantive
due process rights.3
3. The Individual-Capacity Claims Against the Officers
Plaintiffs also request damages against the Officers for
the same purported violations of their constitutional rights.
Unlike an official-capacity § 1983 claim, in which the state itself
is liable for damages, an individual-capacity § 1983 claim
threatens the personal assets of the state officer only. See Hafer
v. Melo, 502 U.S. 21, 25 (1991). For that reason, a state officer
sued in his personal capacity cannot invoke a defense of sovereign
immunity. See id. Here, however, the Officers have invoked a
defense of official immunity, which is non-jurisdictional in
nature. Asociación de Subscripción Conjunta del Seguro de
Responsabilidad Obligatorio v. Flores-Galarza, 484 F.3d 1, 26 (1st
Cir. 2007) (citing Erwin Chemerinsky, Federal Jurisdiction,
§ 7.5.2, at 429 (4th ed. 2003)). There are two types of official
immunity: absolute immunity and qualified immunity. Absolute
immunity completely bars Plaintiffs' ability to recover damages
3
This is not to say that the Board can come up with a passing
score "out of thin air." Indeed, the Board has to comply with
several requirements under Puerto Rico law, which we do not address
since Plaintiffs expressly waived all supplemental claims and
because federal courts are constrained by the Eleventh Amendment
from forcing the Commonwealth to comply with its own laws. See
Cuesnongle v. Ramos, 835 F.2d 1486, 1497 (1st Cir. 1987).
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from legislators in their legislative functions,4 judges in their
judicial functions, prosecutors, executive officers engaged in
judicial functions (i.e., administrative law judges), and the
President of the United States. See Harlow v. Fitzgerald, 457 U.S.
800, 807 (1982). Meanwhile, qualified immunity applies to general
executive officials. See id.
Different from absolute immunity, which always bars
damages, qualified immunity does not bar damages when Plaintiffs'
pleadings plausibly demonstrate that (1) there was a violation of
a constitutional right; and (2) the right was "clearly established"
at the time of the alleged violation. Mlodzinski v. Lewis, 648
F.3d 24, 32 (1st Cir. 2011). To evaluate the second prong, we
would also consider "whether the legal contours of the right in
question where sufficiently clear that [a defendant] would have
understood that what he was doing violated the right." Id. at 32-
33 (citing Decotiis v. Whittemore, 635 F.3d 22, 36 (1st Cir. 2011);
Pearson v. Callahan, 555 U.S. 223, 243 (2009) (holding that the
requirements for qualified immunity can be applied in any order).
We have already explained why the Plaintiffs' allegations, even if
4
Relying on Bogan v. Scott-Harris, 523 U.S. 44, 53-54 (1998), the
Officers argue that they receive absolute immunity because they
enact policy, such as setting the PRMLE passing score by way of
approving a regulation. Because we conclude that they would be
protected from Plaintiffs' individual-capacity damages claim even
under qualified immunity, we express no views on whether the Board
members would receive absolute immunity in their quasi-legislative
role.
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taken as true, fail to establish any constitutional violation.
Therefore, Defendants are clearly entitled to qualified immunity
under the first prong.5
Consequently, we affirm the district court's dismissal of
Plaintiffs' individual-capacity damages claim against the Officers
under Rule 12(b)(6).
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED.
5
The district court also decided the qualified immunity issue by
finding that there was no plausible deprivation of a clearly
established constitutional right.
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