Penalbert-Rosa v. Fortuno-Burset

United States Court of Appeals

For the First Circuit

Nos. 09-2391, 10-1410

MARÍA D. PEÑALBERT-ROSA; SIRILO CORREA-ROSARIO;

CONJUGAL PARTNERSHIP CORREA-PEÑALBERT,

Plaintiffs, Appellants,

v.

LUIS G. FORTUÑO-BURSET, in his personal capacity and as Governor

of the Commonwealth of Puerto Rico; LUCÉ VELA, in her individual

capacity; VELMARIE BERLINGERI-MARÍN, in her individual and

official capacity as Administrator of the Governor's Mansion;

JUAN CARLOS BLANCO, in his individual and official capacity as

Chief of Staff; JOHN DOE; CONJUGAL PARTNERSHIP DOE-BERLINGERI;

JUANITA DOE; CONJUGAL PARTNERSHIP BLANCO-DOE; CONJUGAL

PARTNERSHIP FORTUÑO-VELA,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]

Before

Boudin, Stahl and Howard,

Circuit Judges.

Carlos A. Del Valle Cruz with whom Eileen Landrón Guardiola,

Eduardo Vera Ramírez and Landrón & Vera, L.L.P. were on brief for

appellants.

Eliezer A. Aldarondo-López with whom Eliezer Aldarondo Ortiz,

María Hadad-Orta and Aldarondo & López Bras, PSC were on

consolidated brief for appellees.

January 28, 2011

BOUDIN, Circuit Judge. María D. Peñalbert-Rosa was

discharged from public employment in Puerto Rico in February 2009,

shortly after the governorship of the Commonwealth changed hands

from one political party to another. According to her later

complaint, Peñalbert had been employed since 2006 as a receptionist

in an office building annexed to the Puerto Rico governor's

executive mansion; from 1989 to 2006, she worked in a

communications office within the same complex. Neither position,

she asserts, entailed formulating policy or handling confidential

information.

The new governor, Luis Fortuño-Burset, candidate of the

New Progressive Party ("NPP"), was elected in November 2008 and

assumed office in January 2009. Several weeks later, Peñalbert--a

member of the Popular Democratic Party ("PDP")--received a letter

terminating her employment. The letter described her position as

"one of trust" (that is, one subject to at-will termination under

Puerto Rico law, P.R. Laws Ann. tit. 3, § 1465 (2006); see Costa-

Urena v. Segarra, 590 F.3d 18, 22 (1st Cir. 2009)), but it

contained no criticism of her work or explanation for her firing.

On April 16, 2009, Peñalbert brought the present civil

rights action, 42 U.S.C. § 1983 (2006), alleging that the

termination violated her federal constitutional rights to freedom

of speech and association, due process, and equal protection; she

also invoked supplemental federal jurisdiction over various claims

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arising under Puerto Rico law. The complaint named as defendants

Governor Fortuño; Fortuño's chief of staff, Juan Carlos Blanco; and

the administrator of the governor's mansion, Velmarie Berlingeri-

Marín--each in his or her individual and official capacities.

The central claim was that Fortuño and the two others

fired Peñalbert because of her political affiliation to the PDP and

gave her position to an NPP member. The complaint sought $1.5

million in compensatory damages as well as preliminary injunctive

relief, which was denied. Ultimately, the district court dismissed

the complaint for failure to state a claim under federal law, Fed.

R. Civ. P. 12(b)(6); the claims under Puerto Rico law were

dismissed without prejudice.

Peñalbert now appeals, focusing only on the political

discrimination claim under the First Amendment and the denial of

preliminary injunctive relief; she also says her local law claims

should not have been dismissed with prejudice, but the district

court dismissed them without prejudice. Our review of a judgment

of dismissal for failure to state a claim under the federal statute

is de novo, Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15,

18 (1st Cir. 2008), accepting the well-pleaded allegations of the

complaint as true and drawing all reasonable inferences in

Peñalbert's favor, Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 20

(1st Cir. 2006).

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As construed by several path-breaking decisions, the

First Amendment prohibits government officials from taking adverse

employment actions against public employees because of the

employees' political affiliations, unless partisan considerations

are a legitimate requirement for the position in question. Branti

v. Finkel, 445 U.S. 507, 516-18 (1980); Elrod v. Burns, 427 U.S.

347, 372-73 (1976) (plurality opinion). Subject to the latter

exception, the plaintiff meets the test by showing that political

affiliation was a substantial or motivating factor in the

employment decision. Montfort-Rodríguez v. Rey-Hernández, 504 F.3d

221, 224-25 (1st Cir. 2007).

The complaint adequately alleges a claim that someone

discharged Peñalbert in violation of the First Amendment.

Presumably, whoever discharged her was acting as a state actor, and

no basis has yet been asserted for exempting Peñalbert from the

protections of Branti and Elrod. While there may have been some

reason independent of political party for the firing, the opposite

inference may be drawn from the timing of the discharge, the lack

of explanation and the replacement by a member of the opposing

party.

The trouble with Peñalbert's complaint is not that the

charge is implausible; political firings after elections in Puerto

Rico are not uncommon. But, save under special conditions, an

adequate complaint must include not only a plausible claim but also

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a plausible defendant. Yet there is nothing in the complaint

beyond raw speculation to suggest that the named defendants

participated--either as perpetrators or accomplices--in the

decision to dismiss Peñalbert.

To be sure, the complaint asserts that Governor Fortuño

"approves or disapproves of all personnel decisions [at the

governor's mansion], including the personnel decisions concerning

the termination of [Peñalbert]"; that the two named subordinate

officials "participated" in these decisions; that the defendants

"knew or assumed" that Peñalbert belonged to the PDP "and/or" was

not a member of the NPP; and ultimately that all three conspired to

dismiss Peñalbert because she was a member of the PDP. All except

that conspiracy charge are at least couched in factual terms.1

The plaintiff's factual allegations are ordinarily

assumed to be true in passing on the adequacy of the complaint,

which need not plead evidence. See, e.g., Sepúlveda-Villarini v.

Dep't of Educ., Nos. 08-2283, 09-1801, 2010 WL 5093220, at *4 (1st

Cir. Dec. 10, 2010); Sandler v. E. Airlines, Inc., 649 F.2d 19, 20

(1st Cir. 1981) (per curiam). But "ordinarily" does not mean

"always": some allegations, while not stating ultimate legal

conclusions, are nevertheless so threadbare or speculative that

1

The legal charge of conspiracy standing alone is inadequate.

DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55

(1st Cir. 1999) (alleged antitrust conspiracy). See generally 5B

C. Wright & A. Miller, Federal Practice and Procedure § 1357, at

521 n.22 (3d ed. 2004) (collecting copious cases).

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they fail to cross "the line between the conclusory and the

factual." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 n.5

(2007).

Thus, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the

complaint charged that two high-ranking government officials

knowingly condoned harsh detention conditions for the plaintiff "as

a matter of policy, solely on account of [his] religion, race,

and/or national origin," id. at 1944 (quoting complaint). Although

this was patently a factual claim about the named defendants' state

of mind, the Supreme Court held that the bare allegation of intent

was inadequate absent more specific factual assertions:

To be clear, we do not reject these bald

allegations on the ground that they are

unrealistic or nonsensical. We do not so

characterize them any more than the Court in

Twombly rejected the plaintiffs' express

allegation of "'a contract, combination or

conspiracy to prevent competitive entry,'"

because it thought that claim too chimerical

to be maintained. It is the conclusory nature

of respondent's allegations, rather than their

extravagantly fanciful nature, that

disentitles them to the presumption of truth.

Id. at 1951 (internal citation omitted).

Iqbal could be viewed as emergent law, see, e.g., 129 S.

Ct. at 1961 (Souter, J., dissenting), but we ourselves had earlier

said a complaint that rests on "bald assertions" and "unsupportable

conclusions" may be subject to dismissal, Aulson v. Blanchard, 83

F.3d 1, 3 (1st Cir. 1996); and our decisions since Iqbal have

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several times found unadorned factual assertions to be inadequate.2

Without trying to lay down a mechanical rule, it is enough to say

that sometimes a threadbare factual allegation bears insignia of

its speculative character and, absent greater concreteness, invites

an early challenge--which can be countered by a plaintiff's

supplying of the missing detail.

Here, Peñalbert's complaint does allege that personnel

decisions in the executive mansion are within the authority of the

governor, but nothing beyond speculation supports the further

assertion that the governor or his chief of staff participated in

the decision to dismiss Peñalbert. Someone denominated the

"administrator" of the governor's mansion might more plausibly be

involved, but nothing in the complaint indicates the

administrator’s actual duties or that the administrator ordinarily

passes on the selection or discharge of a receptionist.

A defendant could be liable, even without knowing of

Peñalbert or her position, if (for example) on some generic basis

that defendant authorized the impermissible firing of PDP

supporters because of their party membership or beliefs. Cf.

2

See Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.

2009) (insufficiency, based on Iqbal, of conclusory assertion that

prison administrators failed to supervise lower-level officials

with "deliberate indifference and/or reckless disregard" to

plaintiff's rights); Maldonado v. Fontanes, 568 F.3d 263, 274 (1st

Cir. 2009) (insufficiency, based on Iqbal, of bare allegation that

defendant mayor had "personally participated" in raids to corral

and kill household pets in a public housing complex).

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

(discussing alleged statement by mayor of his "intention to rid

City Hall of NPP employees"). But, again, mere possibility is not

enough to state a claim and again no facts are stated in the

complaint to show that in this instance any of the three gave such

an order or that it is even plausible that they did.

If Peñalbert had any basis beyond speculation for

charging any one of the named defendants with knowing participation

in the wrong, it seems almost certain that this would have been

mentioned--if not in the complaint at least in the opposition to

the motion to dismiss. Specific information, even if not in the

form of admissible evidence, would likely be enough at this stage;

pure speculation is not. This may seem hard on a plaintiff who

merely suspects wrongdoing, but even discovery requires a minimum

showing and "fishing expeditions" are not permitted. DM Research,

170 F.3d at 55.

However, Peñalbert's position is in one respect

different: the complaint adequately alleges--based on the non-

conclusory facts already listed--that someone fired Peñalbert based

on party membership. Of course, the factual allegations might be

later undermined or countered by affirmative defenses, e.g.,

Cepero-Rivera v. Fagundo, 414 F.3d 124, 132-33 (1st Cir. 2005); but

at this stage the complaint adequately asserts a federal wrong by

someone. So while the present complaint does not justify suit

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against the defendants actually named, an avenue for discovery may

be open.

A plaintiff who is unaware of the identity of the person

who wronged her can sometimes proceed against a "John Doe"

defendant as a placeholder. E.g., Iqbal, 129 S. Ct. at 1943;

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 390 n.2 (1971); see also 5A Wright & Miller, supra note

1, § 1321, at 382 & n.6.3 We have previously condoned the device,

at least when discovery is likely to reveal the identity of the

correct defendant and good faith investigative efforts to do so

have already failed. See Martínez-Rivera v. Sánchez Ramos, 498

F.3d 3, 7-8 (1st Cir. 2007).

Whether Peñalbert could make such a showing is not clear

from the face of her complaint, and she has not sought this "John

Doe" alternative. Rarely do we rescue a civil claim--even to the

very limited extent now contemplated--on grounds not urged either

on the district court or on us. But Twombly and Iqbal are

relatively recent; developing a workable distinction between "fact"

and "speculation" is still a work in progress; and while upholding

3

By coincidence, two "John Doe" allegations appear in the

present complaint; the plaintiff did not know the names of two

spouses of named defendants--often included in Puerto Rico cases

for reasons that need not concern us--and so included them as "Juan

Doe" and "Juanita Doe." However, these are merely pseudonyms for

two specific persons whose liability, if any, is derivative, and

they are not a substitute for a "John Doe" claim against an unknown

perpetrator.

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the dismissal of the complaint against the named defendants, we

think that the interests of justice warrant a remand to give

Peñalbert a reasonable opportunity to move to amend the complaint

to seek relief against a "John Doe" defendant. See Rivera-Gomez v.

de Castro, 843 F.2d 631, 636 (1st Cir. 1988).

Peñalbert has also appealed from the denial of a

preliminary injunction--a determination ordinarily reviewed only

for abuse of discretion. See, e.g., Naser Jewelers, Inc. v. City

of Concord, 513 F.3d 27, 32 (1st Cir. 2008). Given that the

present complaint is inadequate to show liability on the part of

any named defendant, the denial of the preliminary injunction can

hardly be deemed error. If on remand Peñalbert is allowed to

proceed on a "John Doe" basis, she is free to renew her motion for

preliminary relief; whether such relief would be warranted at that

stage, and against whom, are matters not now before us.

Accordingly, we affirm the dismissal of the complaint as

to the named defendants and the denial of preliminary relief, but

we remand the case to allow Peñalbert to move promptly to add a

"John Doe" defendant. Each side shall bear its own costs on this

appeal.

It is so ordered.

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