Nunez-Colon v. Toledo-Davila , 648 F.3d 15 ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-1784
MIGUEL NÚÑEZ COLÓN, et al.,
Plaintiffs-Appellants,
v.
HONORABLE PEDRO TOLEDO-DÁVILA, et al.,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, U.S. Magistrate Judge]
Before
Torruella, Leval,* and Thompson, Circuit Judges.
Jane Becker Whitaker was on brief for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor
General, Leticia Casalduc-Rabell, Deputy Solicitor General, and
Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for
appellees.
May 26, 2011
*Of the Second Circuit, sitting by designation.
THOMPSON, Circuit Judge. Police officer Miguel Núñez Colón
("Núñez") was arrested and fired from the Puerto Rico police
department after he misappropriated $600 during the search of a
home. Núñez claims multiple constitutional violations in
connection with this incident. The lower court disagreed, and
discerning no error we AFFIRM.
FACTS
The Misappropriation
On July 21, 2005, Núñez, a twelve-year veteran of the police
force, went with other officers to a residence in response to an
informant's tip. The tip concerned the possibility that drugs and
weapons were being stored at the home. A group of officers
searched the residence without a warrant, though it is disputed
whether Núñez actually entered the home. What is known is that a
woman named Wanda Serrano was found sleeping inside and that she
had $600 in small bills stored in a plastic bag. Ms. Serrano's
money somehow found its way to Núñez, though another bone of
contention is whether Núñez was given the money by another officer
or whether he found it himself. In either event, within hours,
Núñez contacted his supervisor, told him that he had the $600, and
asked him what to do. He was advised to return the money to Ms.
Serrano and to obtain a receipt from her, which Núñez did the next
day.
Though the money was back in the hands of its rightful owner,
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the police department initiated an investigation of the incident.
Further, a criminal complaint for illegal appropriation was filed
against Núñez, and the Puerto Rico Court of First Instance found
probable cause for his arrest. On December 3, 2005, things only
got worse for Núñez when defendant Police Superintendent Pedro
Toledo-Dávila ("Toledo") summarily suspended him without pay. On
December 15th, Núñez requested an administrative hearing.
The Administrative Proceedings
Six months after it was requested, Núñez's post-suspension
hearing began on June 1, 2006. Significant for purposes of this
appeal is the fact that Núñez was acquitted of the criminal charges
fourteen days prior to the start of the hearing. At the hearing,
Núñez was represented by counsel who questioned witnesses. But
alas this effort was to no avail. Núñez was found to have violated
police department regulations, a sanctionable offense. The police
department, through a letter penned by Toledo, terminated Núñez on
October 26, 2006.
Núñez appealed the administrative decision to the
Investigation, Processing and Appeals Commission (Spanish acronym
"CIPA"). CIPA also ruled against Núñez, finding that he in fact
violated department regulations when he took the $600, which was
not connected to any illegal activity and therefore should not have
been seized. CIPA also noted that Núñez's acquittal did not affect
the ability of the police department to fire him.
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Undeterred Núñez sought further review. He appealed CIPA's
decision to the Puerto Rico Court of Appeals ("PRCA"). Applying an
abuse of discretion standard, the PRCA affirmed CIPA. Núñez chose
not to petition the Puerto Rico Supreme Court to review the PRCA's
decision. Despite this fact, his quest for a remedy was not yet
complete.
The Federal Court Proceedings
Ever persistent, Núñez embarked on a contemporaneous journey
through the federal judiciary. Núñez's sojourn began in October
2006 when he filed a complaint with the United States District
Court for the District of Puerto Rico. Núñez (with his wife and
children as co-plaintiffs) sued the Puerto Rico police department,
the Puerto Rico Department of Justice, superintendent Toledo, and
other involved police department employees pursuant to 42 U.S.C. §
1983. He alleged: (1) wrongful arrest in violation of the Fourth
Amendment; (2) malicious prosecution also contrary to the Fourth
Amendment; (3) retaliation for conduct protected by the First
Amendment; and (4) Fourteenth Amendment due process violations.
Núñez also invoked supplemental jurisdiction over state-law
defamation and malicious prosecution claims.
Over the course of the next two years plus, the district court
ruled on various motions resulting in two written decisions. In
its first, the court dismissed Núñez's retaliation claim based on
the doctrine of collateral estoppel and his wrongful termination
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allegation because due process requirements were met. Núñez Colón
v. Toledo Dávila, 2009 WL 1108821 (D.P.R. Apr. 23, 2009). In its
second decision, the court dismissed Núñez's wrongful arrest and
malicious prosecution claims because he could not establish the
requisite elements - in part because collateral estoppel barred
Núñez from re-litigating certain issues. Núñez Colón v. Toledo
Dávila, 2009 WL 1311008 (D.P.R. Apr. 27, 2009). The court also
dismissed Núñez's state law defamation claim on supplemental
jurisdiction grounds as there was no common nucleus of fact between
it and the lone remaining federal claim. The court then went on to
dismiss the claims of the wife and children plaintiffs for lack of
standing, and the claims against all defendants but Toledo because
he was the only one Núñez alleged directly violated his rights.
With just Núñez and Toledo left standing, the case proceeded
to a jury trial. The only remaining issue was whether Núñez's due
process rights were violated during his post-suspension
administrative proceeding. After Núñez presented his case, Toledo
made a Rule 50(a) motion for judgment as a matter of law. The
district court ruled in Toledo's favor and issued a bench ruling
dismissing Núñez's final claim. The court first dismissed Núñez's
official capacity claim against Toledo. It held that because
recovery under this claim was limited to injunctive relief (e.g.
ordering the suspension to end), there was no feasible relief for
Núñez because he no longer worked for the police department. The
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court then addressed Núñez's claim against Toledo in his personal
capacity. With respect to this claim, the court found that there
was not legally sufficient evidence on which a jury could find in
Núñez's favor. His appeal to this court followed. In it, Núñez
claims that the district court blundered when it applied collateral
estoppel, excluded certain testimony, and ruled against him on the
due process claim.
DISCUSSION
Collateral Estoppel
In its first written decision, the district court applied the
doctrine of collateral estoppel to bar Núñez's argument that he did
not misappropriate the $600 and that his dismissal from the police
department was unwarranted. The court found that Núñez had already
litigated these issues in his post-suspension administrative
proceeding - the result of which was affirmed by CIPA and the PRCA.
The court also held that a Puerto Rico state law1 exception to
collateral estoppel (discussed at length below) did not apply.
With the precluded issues out of play, the court reasoned that
Núñez could not prove his retaliation, wrongful arrest, and
malicious prosecution claims and therefore dismissed them. We
review this dismissal de novo, taking as true the well-pleaded
1
Though Puerto Rico enjoys unique commonwealth status, it is
the "functional equivalent of a state for purposes of full faith
and credit" and therefore we sometimes refer to its courts as
"state courts" and its law as "state law." Cruz v. Melecio, 204
F.3d 14, 19 n.2 (1st Cir. 2000).
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facts in the complaint and drawing all reasonable inferences in
favor of Núñez. See Isla Nena Air Servs., Inc. v. Cessna Aircraft
Co., 449 F.3d 85, 87 (1st Cir. 2006).
On appeal, Núñez does not dispute that the elements of
collateral estoppel have been satisfied, and therefore we need not
tarry long on the doctrine's requirements. It suffices to note
that collateral estoppel bars re-litigation of any issues that
were, or could have been, brought in a previous action for which
judgement was rendered. See Barreto-Rosa v. Varona-Mendaz, 470
F.3d 42, 45 (1st Cir. 2006).
What Núñez does argue is that an exception to collateral
estoppel should apply. The particular exception is a Puerto Rico
state law doctrine that has been referred to by this court as the
"public policy exception."2 Medina v. Chase Manhattan Bank, 737
F.2d 140, 144 (1st Cir. 1984). The exception is premised on the
idea that in certain circumstances public policy will demand an
exception to collateral estoppel.3 See Barreto-Rosa, 470 F.3d at
48. More specifically, Puerto Rico courts have declined to apply
2
We look to Puerto Rico case law because we must apply state
law when deciding the res judicata effect of a state court judgment
in federal court. Cruz, 204 F.3d at 18.
3
Much of the case law addressing the public policy exception
speaks in terms of res judicata. The relevant Puerto Rico statute,
P.R. Laws Ann. tit. 31, § 3343, applies to both res judicata and
collateral estoppel and therefore we use the terms interchangeably.
See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 69 (1st
Cir. 2008).
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collateral estoppel when doing so would defeat the "ends of
justice, especially if reasons of public policy are involved."
Bonafont Solís v. Am. Eagle, Exec. Airline, Inc., 1997 P.R. Eng.
423,416 (1997) (internal quotation marks and citation omitted).
Regrettably, the Puerto Rico jurisprudence available in
English translation that addresses the public policy exception does
not articulate a clear standard as to when the exception applies.
The case law is also ambiguous as to the exception's requirements.
In particular, the courts sometimes use the terms "public interest"
and "public policy" interchangeably. See Bonafont Solís, 1997
P.R.-Eng. 423,416 (1997); Pagán Hernández v. U.P.R., 7 P.R. Offic.
Trans. 795 (1978). We do not believe these terms are synonymous
and treating them so creates ambiguities. Further, in Pagán
Hernández v. U.P.R. (a case Núñez cited heavily) the Puerto Rico
Supreme Court concluded that the pubic policy exception applied but
never articulated what public policy (or interest) was at play.
Pagán Hernández, 7 P.R. Offic. Trans. 795 (1978). This seems to us
an important piece of information to omit.
Nor do we derive much specific guidance from this court's
decisions. Although this court has plunged into the murky waters
of the public policy exception a handful of times, it has not set
forth a clear rule regarding when to apply the exception. See
Medina, 737 F.2d at 145 (noting that the "boundaries of the 'public
policy' exception . . . are not precisely defined"). Instead this
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court's analysis has centered around a factual comparison between
the case before it and the Puerto Rico public policy exception
cases - with a focus on the fairness of the process rendered to the
plaintiff in the first instance or whether an overriding public
policy was at stake. See, e.g., Barreto-Rosa, 470 F.3d at 48;
Medina, 737 F.2d at 144. This seems a wise course and so we
follow.
The public policy exception has been applied by the Puerto
Rico courts in a variety of cases. This includes actions where the
potentially preclusive prior judgment (1) affected the rights of a
minor, (2) was moot, or (3) involved a dismissal for lack of
prosecution. See Bonafont Solís, 1997 P.R.-Eng. 423,416 (1997)
(providing an account of cases where the public policy exception
has been applied). However, most germane to this appeal is the
aforementioned case of Pagán Hernández v. U.P.R., 7 P.R. Offic.
Trans. 795 (1978). In Pagán, the court found that the doctrine of
res judicata should be more flexible, as the possibly preclusive
judgment stemmed from a tainted administrative proceeding. Because
Núñez hung his hat almost exclusively on Pagán, we compare the
facts of the two cases.
Pagán involved a student who was expelled from the University
of Puerto Rico after his alleged participation in criminal
activities. The student, Pagán, sought readmission when the
criminal charges were dropped, but the university refused. Pagán
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sued, and one of the issues before the Puerto Rico Supreme Court
was whether it was barred by the doctrine of res judicata from
addressing the suspension because the university's disciplinary
board had already decided the issue. The court found that it was
not barred because the public policy exception applied. In
reaching this conclusion, the court found the following
circumstances significant.
First, Pagán was a young student who was invoking his
constitutional right to education.4 Second, he was being deprived
of this right based on evidence the Puerto Rico Supreme Court had
deemed inadequate in a separate proceeding. That is, the evidence
the administrative body relied on when suspending Pagán was found
in Pagán's criminal proceeding to be "insufficient, suggestive, and
unreliable." Pagán, 7 P.R. Offic. Trans. 795 (1978). Furthermore,
the Puerto Rico Superior Court had previously found that Pagán's
administrative proceeding was afflicted with "institutional
confusion" and that its conclusiveness was "dubious." Id. As for
what public policy was at issue, the court, as noted above, did not
answer this question and rather seemed to rely on a general
"furtherance of justice" principle. Id. With these facts in mind,
we turn to the case at hand.
As with Pagán, the decision which stands in the way of Núñez
4
Article II, section 5 of the Puerto Rico Constitution
provides for a right to education.
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litigating certain issues is an administrative one. Also, like the
plaintiff in Pagán, Núñez claims that his constitutional rights
were violated by defendant Toledo. But as stated in Pagán, the
"mere invocation of a constitutional right against an
administrative act is not a key which would automatically move us
to reject the presumption of res judicata." Id. Rather this court
must "inquire into the circumstances present in each particular
case." Id. And so we do.
In the matter at hand - unlike in Pagán - there is no inkling
that Núñez's administrative hearing or the resulting decision was
questionable or problematic. In particular, while the Pagán
administrative decision was criticized by the lower court, Núñez's
was upheld by both CIPA and the PRCA. Also dissimilar to Pagán is
the fact that there is no credible indication that the evidence
against Núñez at the administrative level was unreliable. For
although Núñez proclaims the existence of a malicious conspiracy,
this is not supported by the record. By Núñez's own admission, the
sworn testimony of several officers placed him in the apartment and
even in Serrano's bedroom. Furthermore, one officer testified that
he saw Núñez take the money and another officer told investigators
the same thing. Even Núñez himself admits that he was in temporary
possession of the money, in violation of police department
regulations. This contrasts starkly with Pagán, where the only
evidence against the plaintiff was the testimony of a lone officer
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(deemed unreliable) and a photographic identification (found
untrustworthy).
Finally, we find it significant that Núñez made the choice to
file an administrative action prior to initiating the federal
proceedings. Furthermore, Núñez (who was represented by counsel at
all levels) chose to end his administrative/state court journey by
not appealing the PRCA decision to the Puerto Rico Supreme Court.
We do not think public policy requires us to give Núñez a chance to
revisit those choices. See Baez-Cruz v. Municipality of Comerio,
140 F.3d 24, 30 (1st Cir. 1998) (finding that public policy does
not counsel in favor of allowing plaintiffs to revisit their
decision to initiate an administrative action first). In fact, as
we have said before, "public policy also includes an interest in
finality and efficiency." Medina, 737 F.2d at 144 (internal
quotation marks omitted). So although we acknowledge that Núñez
suffered a significant blow when he lost his job, he had a fair and
full opportunity to litigate such issues at the administrative and
state court level.
The public policy exception is inapplicable, and therefore the
doctrine of collateral estoppel barred Núñez from arguing that he
did not misappropriate the money and that he should not have been
fired. With these issues off the table, Núñez had no hope of
proving his retaliation, wrongful arrest, and malicious prosecution
claims. Notably, Núñez does not contend otherwise. We affirm the
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district court's dismissal of Núñez's claims.
Excluded Testimony
During trial and outside the presence of the jury, Núñez's
counsel made an offer of proof as to the testimony of various
police officers she planned to call as witnesses. Núñez wanted to
introduce the officers' testimony to show that the police
department's allegations against him were weak and malicious and
that therefore he should not have been suspended. The district
court excluded the testimony because it only pertained to whether
Núñez appropriated the money - an issue that was barred from being
addressed by collateral estoppel. Núñez claims error.5 We review
the district court's evidentiary ruling for abuse of discretion,
affording the court considerable deference. See United States v.
Gonzalez-Melendez, 594 F.3d 28 (1st Cir. 2010); United States v.
Wallace, 461 F.3d 15, 28 (1st Cir. 2006).
Our independent review of the testimony reveals that it indeed
pertains to the evening that Ms. Serrano's money was stolen. Here
are the particulars: Núñez sought to introduce testimony about the
informant's tip, what officers were wearing that night, the layout
5
Núñez relies on Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 543 (1985), for the proposition that a fired employee
should be given "some opportunity . . . to present his side of the
case." This reliance is incorrect. The Supreme Court was speaking
in terms of an employee presenting evidence as to the
appropriateness of his discharge, an issue that was no longer in
play at Núñez's trial. At this point, only due process questions
about the adequacy of Núñez's administrative proceeding remained.
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of the apartment, what happened during the search, what the
officers saw Núñez do with the money, and the criminal
investigation against him. This testimony is problematic because
it only relates to whether or not Núñez took the money, an issue
that was already off limits. The testimony has nothing to do with
the narrow trial issue of whether Núñez's due process rights were
violated in connection with his post-suspension administrative
hearing. A "district court has broad discretion to make relevancy
determinations," and we would be hard pressed to find an abuse of
that discretion here. Richards v. Relentless, Inc., 341 F.3d 35,
49 (1st Cir. 2003). Because the district court did not abuse its
discretion in excluding the testimony, we affirm.
Due Process Claim
At trial only Núñez's due process claim remained, but even
this would not see a jury. The court dismissed Núñez's official
capacity claim against Toledo because there was no possible remedy.
Finding insufficient evidence, the court also granted judgment as
a matter of law in Toledo's favor on Núñez's personal capacity
claim. Specifically, the court found that (1) police department
regulations permitted Toledo to summarily suspend Núñez without a
hearing, (2) any time delays were not unconstitutional, and (3)
Toledo was not personally involved in the alleged due process
violations. On appeal, Núñez only takes issue with the latter two
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findings.6 Because we find that the time delay did not violate
Núñez's due process rights, we need not reach the issue of Toledo's
personal involvement.
We review the district court's grant of judgment as a matter
of law de novo, and standing in the district court's shoes we
affirm if "a reasonable jury would not have a legally sufficient
evidentiary basis to find" for the non-moving party. Fed. R. Civ.
P. 50(a)(1); see also Crane v. Green & Freedman Baking Co., 134
F.3d 17, 21 (1st Cir. 1997). "This standard requires more than 'a
mere scintilla' of evidence in the non-moving party's favor."
Crane, 134 F.3d at 21 (citing Fashion House, Inc. v. Kmart Corp.,
892 F.2d 1076, 1088 (1st Cir. 1989)).
Núñez's due process argument is simple - it took too long for
his post-suspension hearing to take place. To be precise, Núñez
takes issue with the fourteen-day lag between his acquittal and the
start of the hearing.7 To establish a due process violation, Núñez
must "show first, a deprivation of a protected property interest,
and second, a denial of due process." Perez-Acevedo v. Rivero-
6
Núñez does not claim that the district court erred by
dismissing Toledo in his official capacity.
7
In his reply brief, Núñez for the first time advances
another argument - that the six months between the start of his
suspension and the start of the hearing also violated his due
process rights. Because Núñez failed to raise this argument
earlier, it is waived and we will not address it. See United
States v. Capozzi,486 F.3d 711, 719 n.2 (1st Cir. 2007) ("We have
consistently held that arguments not raised in the initial
appellate legal brief are considered waived.").
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Cubano, 520 F.3d 26, 30 (1st Cir. 2008). Only his ability to make
the second showing is contested and therefore we move on to the
question of whether Núñez received the process he was due.
The fatal flaw in Núñez's argument is its absence of
substance. He does no more than assert that the fourteen-day
period was too long to wait. The Supreme Court has previously
found such an argument deficient. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 543 (1985). In Loudermill, the plaintiff
waited nine months to receive a final decision on a post-
termination adjudication. Like Núñez, the plaintiff in Loudermill
relied on the time delay alone to support his position that a
speedy resolution was missing. The Supreme Court criticized this
approach, finding that the plaintiff "offered no indication that
his wait was unreasonably prolonged" other than the amount of time
it took. Id. at 547. The Court went on to hold that the
"chronology of the proceedings set out in the complaint, coupled
with the assertion that nine months is too long to wait, does not
state a claim of constitutional deprivation." Id. Núñez's
conclusory and generalized claim suffers from the same infirmity
because he does not articulate why the fourteen days was an
unreasonably lengthy period. Under Loudermill, he has thus failed
to state a constitutional deprivation claim. Accordingly defendant
Toledo was entitled to judgment as a matter of law.
Though our inquiry can end there, we will briefly touch on why
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we do not find the fourteen-day period unconstitutional based on
the limited argument before us. In order to do so, we look to the
factors set out by the Supreme Court in Gilbert v. Homar, 520 U.S.
924, 930 (1997), a case also dealing with the process due to a
suspended employee.8 The relevant factors to be balanced in a due
process inquiry are:
"'[f]irst, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest.'"
Id. at 931-32 (quoting Mathews v. Eldridge, 424 U.S. 319, 335
(1976)).
Regarding the first factor, there seem to be two private
interests at stake for Núñez: his interests in being reinstated to
his position and in being paid. We do not dispute that the
deprivation of one's livelihood is significant but, as noted in
Gilbert, we must consider the length and finality of the
deprivation. Id. at 932. The period Núñez takes issue with was
only fourteen days, and during that time he was faced with a
8
In Gilbert, the Supreme Court ultimately did not answer the
question of whether the employee received a sufficiently prompt
post-suspension hearing because the issue was not addressed by the
lower courts. The Court remanded the question to the Third Circuit
Court of Appeals, which remanded it to the district court, which
concluded that the sixteen-day period the plaintiff waited for his
post-suspension hearing was not unconstitutional. See Homar v.
Gilbert, 63 F. Supp. 2d 559, 570 (M.D. Pa. 1999).
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temporary suspension as opposed to termination (a factor that was
significant in Gilbert). Id. at 932. Further, though undoubtedly
important to Núñez, his income was reduced for a temporary and
short duration. This first factor does not bode in Núñez's favor.
As for the second factor of erroneous deprivation, we don't
think it favors Núñez either. Núñez was acquitted on May 17, 2006
and his hearing began on June 1, 2006. It was in Núñez's interest
for the department to take some amount of time to consider how the
positive development of Núñez's acquittal might affect his
suspension. This delay actually benefitted Núñez, who possessed
"'an interest in seeing that a decision concerning his . . .
continued suspension [was] not made with excessive haste.'" Id. at
935 (quoting FDIC v. Mallen, 486 U.S. 230, 243 (1988)).
With respect to the final factor - the government's stake -
the Court in Gilbert made it clear that the government has a
significant interest in suspending police officers when they are
accused of a felony. Id. at 932. However, as was the case with
Núñez, "[o]nce the charges [are] dropped, the risk of erroneous
deprivation increase[s] substantially." Id. at 935. Nonetheless,
Núñez's acquittal did not eliminate the police department's
interest in the controversy. The department needed to determine
whether Núñez (who had been accused of theft on the job in
violation of police department regulations) should continue to be
suspended in light of his acquittal. We do not think it
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unreasonable that the police department took fourteen days to make
this determination. This is especially true because as a police
officer, Núñez occupied a position "of great public trust and high
visibility." Id. at 932.
Balancing the Gilbert factors, we find that the fourteen-day
period was not unreasonably long and more importantly was not
unconstitutional. For the foregoing reasons, we affirm the grant
of judgment as a matter of law in Toledo's favor.
CONCLUSION
Accordingly, we AFFIRM the decision of the district court.
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