Baez-Cruz v. Comerio

• Court: Court of Appeals for the First Circuit
• Decided: April 2, 1998
• Docket: 97-1850
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1850



                     BERTA BAEZ-CRUZ, ET AL.,



                     Plaintiffs, Appellants,



                                v.



                 MUNICIPALITY OF COMERIO, ET AL.,



                      Defendants, Appellees.


APPEALS FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



         [Hon. Salvador E. Casellas, U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                Campbell, Senior Circuit Judge, 

                                

                   and Boudin, Circuit Judge.


Charles S. Hey-Maestre with whom Adalina De Jesus-Morales was

on brief for appellants.

     Francisco San Miguel Fuxench, with whom Miguel Pagan was on

brief for appellee, Municipality of Comerio.

     Sigfredo Rodriguez-Isaac, Assistant Solicitor General, with

whom Carlos Lugo Fiol, Solicitor General, Edda Serrano Blasini,

Deputy Solicitor General, were on brief for individual appellees.


March 31, 1998


CAMPBELL, Senior Circuit Judge.  Plaintiffs-appellants

Berta Baez-Cruz and twenty-three of her former co-workers brought

this action in the district court under 42 U.S.C.  1983 against

the municipality of Comerio, Puerto Rico, and four of its

officials.  Plaintiff-appellants alleged that their dismissal from

municipal employment was based on their political affiliation in

violation of the First and Fourteenth Amendments and the laws of

Puerto Rico.  Previously, Plaintiffs had sought reinstatement by

the Puerto Rico administrative body that handles government

employment disputes.  That body denied relief to Plaintiffs in a

decision that the Puerto Rico Supreme Court ultimately affirmed.

  Following the Puerto Rico Supreme Court's affirmance, the

district court granted Defendants' motion for summary judgment.  It

reasoned that Plaintiffs were collaterally estopped from arguing

that their dismissal was politically based by a contrary finding in

the Commonwealth proceedings.  Plaintiffs have appealed.  The

question we face is whether, under Puerto Rico law, the

administrative body's findings preclude relitigation of Plaintiffs'

termination.  We affirm.

                              FACTS

1.  Tension Between Comerio Municipal Employees and the New

    Comerio Administration



  In 1992, the citizens of Comerio elected Defendant Luis

Rivera Rivera ("Rivera"), a member of the New Progressive Party

(the "NPP"), as their Mayor.  That election ended a half-century of

rule in Comerio by the Popular Democratic Party (the "PDP").  Other

members of the NPP administration included Defendant Domingo

Marcano, Internal Auditor; Defendant Rufino Ayalo, Director of

Public Works; and Defendant Damian Rivera, Director of Civil

Defense.  Plaintiffs, all members of the rival PDP, were career

municipal employees.  

  The months following Rivera's assumption of the mayoral

post were marked by tension between the municipality and its

employees.  In their complaint, Plaintiffs alleged that they

perceived the new administration to be discriminating against PDP

holdovers by subjecting them to sudden transfers, threats, and

revocation of privileges.  Plaintiffs and other employees protested

this perceived mistreatment by declaring a one-day work stoppage. 

The Municipality admonished the protesters and withheld their pay

for the strike day.  

  After Mayor Rivera refused to negotiate, Plaintiffs and

those in agreement declared another strike, which directly led to

their dismissal.  The dismissed employees announced a four-day work

stoppage, with a protest on the first day in front of City Hall. 

Mayor Rivera responded by activating, through Defendant Damian

Rivera, the municipality's civil defense to provide Comerio with

essential services.  Plaintiffs and their fellows saw the civil

defense forces as strikebreakers.  The City Hall protest led to

physical and verbal confrontations between the civil defense force

and the strikers.

  Following the work stoppage, the municipality

investigated the strike, which, the parties agree, violated Puerto

Rico law forbidding municipal employees to strike.  The

municipality's auditor, Defendant Domingo Marcano, reviewed the

municipality personnel department's attendance records to determine

who participated in the strike.  The Municipality then informed

forty-eight employees of their dismissal.  

2.  The Administrative Proceedings

  The forty-eight terminated employees immediately

requested a hearing before the Puerto Rico Personnel Administration

Systems Appeal Board (known by its Spanish acronym, "JASAP"), the

administrative body that handles government employment disputes. 

See P.R. Laws Ann. tit. 3,  1394(1).  JASAP's examining officer

recommended that only those employees who could be identified as

having participated in the strike be terminated.  The investigation

positively identified only the twenty-four Plaintiffs in this

action.  The municipality quickly reinstated the other twenty-four

employees, but refused to reinstate the twenty-four Plaintiffs. 

  Plaintiffs contested the examiner's recommendations

before the JASAP.  JASAP upheld the examiner, adopting her findings

of fact and conclusions of law.  As a "Conclusion of Law," the

examining officer's report stated that,

                          The appellant party [the strikers-

                    Plaintiffs] brought to our consideration that

                    the dismissal was due to reasons of political

                    ideology.  It arises from evidence that all

                    the employees who participated in the strike

                    belonged to the [PDP]. (Findings of Fact No.

                    23)  Nevertheless, once the administrative

                    hearings were held not all the forty-eight

                    (48) employees who participated in [the]

                    strike were dismissed, but twenty-four (24)

                    employees.  There were twenty-four "Populares"

                    [i.e., members of the PDP] who were reinstated

                    after the administrative hearing with the

                    discount of the day.

                    

          3.  The  1983 Action

  On the same day that JASAP denied Plaintiffs' motion for

reconsideration, Plaintiffs brought the instant action under 42

U.S.C.  1983 in the United States District Court for the District

of Puerto Rico.  The complaint alleged that the terminations and

prior disciplinary measures violated Plaintiffs' rights conferred

by the Federal Constitution to free expression and association,

equal protection of the law, and procedural due process.  Also

included within the federal complaint were claims under the law of

the Commonwealth of Puerto Rico.  Defendants filed their answer,

and, based on the JASAP Report's findings, they moved for summary

judgment.  

  The district court stayed the proceedings, including

discovery, while Plaintiffs appealed from the JASAP decision to the

Puerto Rico courts.  Plaintiffs' appeal was rebuffed at every turn. 

The Superior Court, the Circuit Court, and, ultimately, by a 3-2

decision, the Supreme Court of Puerto Rico each affirmed JASAP's

decision.  

  Soon after the Supreme Court of Puerto Rico rendered its

decision, the district court granted Defendants' motion for summary

judgment.  The district court held that JASAP's determination "that

[in the court's words] the sole reason for plaintiffs' dismissal

was their participation in an illegal strike," collaterally

estopped Plaintiffs' political discrimination claim.  The district

court also held that Plaintiffs failed to demonstrate a genuine

issue of material fact in their procedural due process claim, and

then dismissed without prejudice the remaining claims under Puerto

Rico law.  

  Plaintiffs filed a Rule 59(e) motion to vacate and/or to

amend the judgment, arguing that Puerto Rico's rules of collateral

estoppel did not preclude relitigation of a factual issue unless

the parties in the second suit were identical to the first.  The

individual officials, defendants here, were not parties to the

JASAP proceeding.  Thus, Plaintiffs argued, the JASAP decision

could not collaterally estop a claim involving these new parties. 

The district court rejected this contention, and this appeal

followed.

                            DISCUSSION

1.  Background

  To survive summary judgment in a case alleging

unconstitutional political discrimination in public employment, an

employee must produce evidence that her political affiliation was

a "substantial" or "motivating" factor behind the challenged

employment decision.  Mount Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977); see also  Rodriguez-Pinto v. Tirado-Delgado,

982 F.2d 34, 39 (1st Cir. 1993).  Even if such a link is shown

between political affiliation and the adverse employment action,

the employee's claim will still fail if the employment decision

would have occurred regardless of plaintiff's political

affiliation.  See Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.

1993).  

  Here, the district court accurately described the JASAP

proceedings as establishing "that the sole reason for Plaintiffs'

dismissal was their participation in an illegal strike."  The JASAP

examiner expressly rejected Plaintiffs' contention that "the

dismissal was due to reasons of political ideology," reasoning that

the municipality reinstated twenty-four of the forty-eight

originally dismissed workers (all of whom shared the same party

affiliation) after the hearing examiner had found no proof of their

participation in the strike.  The Puerto Rico Supreme Court noted

this finding in affirming the JASAP decision and concluded that

"JASAP did not err when it decided that the action of dismissal of

petitioners herein was within the legal frame of action permissible

of the municipality."  It would not have been permissible for JASAP

to have determined that Plaintiffs' termination was lawful under

the "merit principle" of Puerto Rico's Personnel Law, P.R. Laws

Ann. tit. 3,  1331, if it had found the termination was based on

Plaintiffs' political affiliation.  See Diaz de Llovet v. Governor,

112 P.R. Offic. Trans. 941, 953-54 (1982) (discussing Branti v.

Finkel, 455 U.S. 507 (1980)).  A finding for Plaintiffs in the

present action would, therefore, necessarily contradict JASAP's

prior determination that the dismissals were not based on "reasons

of political ideology" but rather on the strike, as affirmed by the

Puerto Rico Supreme Court. 

  The Full Faith and Credit statute, 28 U.S.C.  1738,

provides that "judicial proceedings . . . shall have the same full

faith and credit in every court within the United States and its

Territories . . . as they have by law or usage in the courts of

such State [or] Territory . . . from which they are taken."  It is

well-settled that a proceeding in a state court collaterally estops

inconsistent arguments in a later federal action, including actions

under  1983.  Allen v. McCurry, 449 U.S. 90, 104-05 (1980). 

Preclusive effect is given not only to state judicial proceedings,

but also to facts found by a "state agency acting in a judicial

capacity [that] resolves disputed issues of fact properly before it

which the parties have had an adequate opportunity to litigate." 

University of Tenn. v. Elliott, 478 U.S. 788, 798 (1986).  The

applicable collateral estoppel rules are not federally created, but

are those of the state from which the judgment is taken.  Kremer v.

Chemical Constr. Corp., 456 U.S. 461, 481-82 (1982).

     These rules frame the central question in this appeal: 

whether the district court was correct in holding that Puerto

Rico's issue preclusion doctrine "bound [it] to accept those issues

which have already been litigated by the parties and adjudicated by

the J.A.S.A.P. Hearing Examiner" and affirmed by the Puerto Rico

courts.  To answer this question in the affirmative requires both

that the collateral estoppel rules of Puerto Rico would preclude

the issue in a Puerto Rico court and that Plaintiffs had a "full

and fair opportunity to litigate" the factual claims.  The district

court's grant of summary judgment is subject to our de novo review.

2.   Issue Preclusion Under Puerto Rico Law

     Puerto Rico's doctrine of preclusion, codified at 31 P.R.

Laws Ann. tit. 31,  3343, provides in pertinent part:

                    In order that the presumption of res judicata

                    be valid in another suit, it is necessary

                    that, between the case decided by the sentence

                    and that in which the same is invoked, there

                    be the most perfect identity between the

                    things, causes and persons of the litigants,

                    and their capacity as such.

                    

          Although the statute speaks of "res judicata," i.e., claim

preclusion, it also permits issue preclusion, or "collateral

estoppel by judgment."  See Texaco Puerto Rico, Inc. v. Medina, 834

F.2d 242, 245-46 (1st Cir. 1987) (citing A & P Gen. Contractors v.

Associacion Cana, Inc., 10 P.R. Offic. Trans. 987, 995-96 (1981)). 

The district court here concluded that because the Puerto Rico

Supreme Court had affirmed JASAP's finding that Plaintiffs'

termination was not the result of political discrimination,

Plaintiffs were collaterally estopped from relitigating the issue

of political discrimination in a federal court.

     Plaintiffs attack this conclusion on several grounds,

which we consider in turn.

     A.   Non-identity of Parties 

     Plaintiffs point out that the present action includes new

parties on both sides.  First, the federal complaint added one new

plaintiff -- the spouse and conjugal partnership of an original

plaintiff.  Second, and more significantly, the federal complaint

included as defendants the four municipal officials in their

individual capacities; they were not and could not have been

parties before JASAP. 

     The rather strict wording of Puerto Rico's mutuality

requirement is not a bar to appellees' defense.  Although the

language of the provision calls for "the most perfect identity of

persons" between the first and second case, we have noted on a

number of occasions that the Puerto Rico courts do not read the

requirement literally.  See, e.g., Futura Dev. Corp. v. Centex

Corp., 761 F.2d 33, 43 (1st Cir. 1985).  The preclusion statute

itself goes on to provide that, 

                    there is identity of persons whenever the

                    litigants of the second suit are legal

                    representatives of those who litigated in the

                    preceding suit, or when they are jointly bound

                    with them or by the relations established by

                    the indivisibility of prestations [i.e., "a

                    performance of something due upon an

                    obligation" according to Webster's New

                    International Dictionary 1796 (1971)] among

                    those having a right to demand them, or the

                    obligation to satisfy the same.

                    

          P.R. Laws Ann., tit. 33,  3343.  We have read this provision as

permitting issue preclusion to operate against a plaintiff who adds

defendants in the second action.  See Futura, 761 F.2d at 43;

Republic Sec. Corp. v. Puerto Rico Aqueduct and Sewer Auth., 674

F.2d 952, 955-56 (1st Cir. 1982); cf. De Leon v. Colon, 42 P.R.R.

21, 27 (1931) (permitting preclusion based on previous action that

included additional defendants); Restatement (Second) of Judgments 51(1).  The municipality and its officers share, in the words of

 3343, the "obligation to satisfy the same [claim]"; this shared

obligation is, under these circumstances, sufficient to allow

preclusion.  "Identity of parties and interest is required so that

a party's rights and obligations will not be determined without

their knowledge or an opportunity for participation."  Futura, 761

F.2d at 43.  As Plaintiffs were themselves active participants in

the JASAP proceedings and the consequent appeals, their own

addition of the officer defendants will not defeat the defense of

collateral estoppel by judgment.

     B.   Identity of Causes

     Plaintiffs' second challenge avers that the instant

action and the JASAP proceedings lack an identity of "causes," or

the factual predicate for relief.  Plaintiffs argue that their 

1983 action involves a different cause because JASAP's jurisdiction

is limited to claims under Puerto Rico's Personnel Law.  This

argument mistakes the legal cause of action for the factual "cause"

contemplated by Puerto Rico's preclusion statute: preclusion

requires an identity of the latter, not the former.  As the Supreme

Court of Puerto Rico has explained, a "cause" includes "'the

principal ground, the origin or exceptions raised and decided, and

it must not be mistaken for the means of proof nor for the legal

grounds of the claims adduced by the parties.'"  Lausell Marxuachv. Diaz de Yanez, 3 P.R. Offic. Trans. 742, 748 (1975) (quoting

VIII-2 Manresa, Comentarios al Codigo Civil Espanol 301 (6th ed.

1967)).  The Supreme Court of Puerto Rico has also stated that

identity of causes is unnecessary when the defense is one of issue

preclusion, rather than claim preclusion.  See A & P Gen.

Contractors, 10 P.R. Offic. Trans. at 996 (explaining that

"collateral estoppel by judgment" is "a variant of res judicata

where identity of causes is not necessary").  Even were collateral

estoppel by judgment to require an identity of causes, we would

have no trouble concluding that the two cases' identical subject

matter satisfied that requirement.

     C.   Public Policy Exception

     The Puerto Rico courts have recognized an exception to

the doctrine of preclusion "whenever its application would defeat

the ends of justice, [e]specially in the presence of public policy

considerations."  Pagan Hernandez v. University of Puerto Rico, 107

P.R. Offic. Trans. 795, 807 (1978).  However, "[t]he mere

invocation of a constitutional right against an administrative act

is not a key which would automatically move [the court] to reject

the presumption of res judicata."  Id.  Plaintiffs argue that the

JASAP finding should not bind them in light of the public policy

favoring access to the federal courts to seek redress for

deprivations of constitutional rights.  However, while employees

must exhaust their administrative remedies before bringing a

judicial action in the Puerto Rico courts, see Pierson Muller v.

Feijoo, 106 P.R. Offic. Trans. 1153, 1158 (1978), they were not

required to do so before bringing a  1983 action in federal court,

see Patsy v. Board of Regents, 457 U.S. 496, 515 (1982). 

Plaintiffs chose to proceed first in the JASAP before suing in the

federal courts; public policy does not require giving them a chance

to revisit that choice.

     D.   Full and Fair Opportunity To Litigate

     Plaintiffs claim that the JASAP proceeding did not afford

them the "full and fair opportunity to litigate" required of any

decision later given preclusive effect.  See Allen, 449 U.S. at 95. 

To meet this standard, "state proceedings need do no more than

satisfy the minimum procedural requirements of the Fourteenth

Amendment's Due Process Clause."  Kremer, 456 U.S. at 481.   

     Plaintiffs' main proposition is that they were unable to

argue their federal constitutional claims before JASAP because the

Commonwealth administrative proceedings were restricted to

determining solely whether dismissal of Plaintiffs violated Puerto

Rico's Personnel Law.  However, JASAP expressly considered and

rejected Plaintiffs' contention that they were dismissed "due to

reasons of political ideology," finding that the strike was

responsible for their dismissal.  This factual issue is the basis

of Plaintiffs' federal constitutional claim.  It is well-

established that judicially reviewed administrative fact-finding

may later estop a federal claim, even though the state

administrative body itself was unable to consider the federal claim

as such.  See, e.g., Gonsalves v. Alpine Country Club, 727 F.2d 27,

28-29 (1st Cir. 1984).  As in Kremer, Plaintiffs could not prevail

on their federal claim consistently with the prior finding of no

discrimination.  See 456 U.S. at 479.  Thus, JASAP's factual

conclusion may be given collateral estoppel effect regardless of

any inability by the administrative body to consider Plaintiffs'

federal constitutional claims.

     Finally, Plaintiffs point out that only one of the

twenty-four plaintiffs testified before JASAP; they allege no other

procedural defects in the JASAP proceedings.  Certainly, the

ability to give evidence is a crucial factor in answering whether

a party has been afforded a full and fair opportunity to litigate. 

However, nothing in the record indicates that Plaintiffs' failure

to testify resulted from JASAP's refusal to allow them to do so. 

For all we can tell, they simply chose not to give evidence before

JASAP.  See Lopez Vives v. Police, 8 P.R. Offic. Trans. 264, 278

(1987) (explaining that JASAP must honor "the right of an aggrieved

party to present all the evidence necessary to sustain his claim,

as well as to, orally or in writing, rebut the evidence brought

against him").  On the present record, this argument is undeveloped

and ultimately insufficient to raise any issue of the denial of due

process.  Cf. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990)("[I]ssues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived").

     The judgment is affirmed.  Costs to appellees.