Petition — Lamour-Nadal v. Puerto Rico Tourist Development Co.

IN THE

ICHAEL RODAK, JR., CLBR

Su, .&

k | i YD 1%

JUN 21 1976

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No, @5-1 835

ALEJANDRO LAMOUR-NADAL

Petitioner

Vs.

PUERTO RICO TOURIST DEVELOPMENT COMPANY

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR THE FIRST CIRCUIT

ALEJANDRO LAMOUR-NADAL

G.P.O. Box 1543

San Juan, Puerto Rico 00936

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No,

ALEJANDRO LAMOUR - NADAL

Petitioner

vs.

PUERTO RICO TOURIST DEVELOPMENT COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE FIRST CIRCUIT:

The petitioner, ALEJANDRO LAMOUR-NA-

DAL, on his own right, prays that a

writ of certiorari be issued to review

the Order of the Court of Appeals for

the First Circuit rendered in these

proceedings on February 19, 1976.

OPINIONS BELOW

The Order of the Court of Appeals, as

Appendix A, infra, p. . The opinion

of the United States District Court for

the District of Puerto Rico, is repor-

ted at 399 F. Supp. 1222, 1975.

JURISDICTION

The order of the Court of Appeals

was entered on February 19, 1976. And

received by petitioner on March 22,1976,

The Court of Appeals erroneously mailed

the copy of the order to petitioner's

previous legal representative,

Petitioner was out of San Juan, Puer-

to Rico for a period of approximately

four weeks, returning on the night of

Friday, March 19, 1976, On Monday, March

22, 1976 a telephone call was received

from the office of petitioner's previ-

ous legal representative indicating that

an order from the Court of Appeals had

been received there. (See Exhibit 24)

Petitioner's wife had been instruc-

ted to go to petitioner's Post Office

Box daily and if any notification from

the Court of Appeals arrived, to tele-

phone petitioner. None ever arrived,

In view of the aforestated, Petitio-

ner feels that the allotted 90 days to

file a petition for certiorari commen-

ced on March 22, 1976. And thus, this

petition is being filed within the pres-

cibed period of time. The jurisdiction

of this Court is invoked: under 28 USC

Section 1651 (a).

QUESTIONS PRESENTED

Petitioner was summarilly dismissed

from his employment with the Puerto Rico

Tourist Development Company without

ge given a hearing as established

in the personnel regulations. Suit was

brought in the United States District

Court for the District of Puerto Rico

by Petitioner against the Puerto Rico

Tourist Development Company. On Janua-

ry 2, 1975 Respondent contended (nine-

ty (90) days later) that it was not a

person within the meaning of 42 U.S.C.

Section 1983. The District Court so held

and dismissed the suit for lack of ju-

risdiction. And the Court of Appeals

summarilly dismissed for lack of appe-

llate jurisdiction based solely on the

record and without giving petitioner

the opportunity to be heard, to have

his day in court as guaranteed in the

Constitution of the United States.

The question thereby arising is:

1. Is the Puerto Rico Tourist Deve-

lopment Company a person within

the meaning of 42 U.S.C. Section

1983?

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States,

Ammendment V:

"No person shall......nor be depri-

ved of life, liberty or property,

without due process of law."

STATUTE INVOLVED

"Civil Rights Act, 42 U.S.C. Section

1983: Civil action for deprivation

of rights.

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory,

subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof

to the deprivation of any rights, pri-

vileges, or immunities secured by the

Constitution and laws, shall be liable

to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress."

STATEMENT OF FACTS

On October 30, 1972, Petitioner was

verbally dismissed from his job. Dis-

missal was contrary to Personnel Regu-

lations in effect which made mandatory

five steps for dismissal. The last step

is a hearing, which was never granted

to Petitioner.

Respondent contended that it was not

a person within the meaning of title 42

U.S.C. Section 1983. And the Honorable

United States District Court for the

District cf Puerto Rico so held én

September 16, 1975 and in so doing,

erred. (Please see Exhibit No. 16 )

A Motion of Plaintiff for Reconside-

ration was denied on December 15, 1975.

Petitioner, on his own right, in time,

on January 14, 1976, appealed to the Ho-

norable Court of Appeals for the First

Circuit. The Honorable Court of Appels

for the First Circuit from the record

solely dismissed the appeal for lack of

appellatte jurisdiction.

REASONS FOR GRANTING THE WRIT

1. The decision below directly con-

flicts with the decision rendered by

the Honorable United States District

Court for the District fo Puerto Rico

in Marin vs. University of Puerto Rico,

377 F. Supp. 613 (1974).

In Marin vs. University of Puerto

Rico, supra, the Honorable District

Court for the District of Puerto Rico

i held, "....the University of Puerto

Rico does not fall within the doctrine

set out in Monroe, supra, and reasser-

ted in Moor, supra, since it is not a

municipality, a municipal corporation

or a political subdivision of the Com-

monwealth of Puerto Rico.” (Emphasis

supplied)

2. The Puerto Rico Tourist Develop-

ment Company was created by Law Number

10 of June 18th., 1970, with"existence

and legal personality independent from

the Commonwealth of Puerto Rico or any

of its dependencies'’ (23 LPRA Section

° 671 Om or supplied).

In 23 LPRA Section 671 (K) of the

Puerto Rico Tourist Development Company

enabling statute, responsibilites for

debts, it was established "the debts

and other obligations of the Company

shall not constitute debts or obliga-

tions of the Commonwealth of Puerto

Rico nor of any of its municipalities

eee

or other political subdivisions, and the

latter shall not be liable with respect

to them, it being understood that said

debts and obligations shall not be -

able from funds other than those of he

Company. (Emphasis supplied)

3. If the University of Puerto Rico,

Marin v. Uriversity of Puerto Rico,

supra, “does not fall within the doc-

trine sei out in Monroe, supra,’ then

the Puerto Rico Tourist Development Com

pany does not fall within the Monroe v

Pape, 365 U.S. 167, 187-191, doctrine

either.

4. The decision below raises substan-

tial Constitutional questions such as:

a) Do Puerto Ricans have any rights

under the Constitution of the

United States of America?

b) Does the Due Process Clause

applies to Puerto Ricans?

5. Are Puerto Ricans protected to the

same extent as mainland citizens by laws

passed by the United States Congress?

6. If Puerto Ricans have the same

rights as mainland citizens under the

Constitution of the United States and

if they are protected to the same ex-

tent as mainland citizens by the laws

passed by the Congress of the United

States, then Petitioner contends that

he has been denied his day in court as

OO ON ,QGQ@ EE pee OE LLL.

as guaranteed by the Constitution of

the United States of America.

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the

order of the Honorable Court of Appeals

for the First Circuit.

DATED at San Juan, Puerto Rico this

18th. day of June 1976,

Respectfully submitted,

ALEJANDRO LAMOUR-NADAL

On his own right

G.P.O. Box 1543

San Juan, P. R. 00936

CERTIFICATE ON SERVICE

On this same date I have mailed two

copies of this Petition by Certified

Mail, number 041371, and return Receipt

Requested, postage pre-paid, to José A.

Acosta Grubb, Esq., P.O. Box 192, San

Juan, P. R. 00902.

Dated at San Juan, Puerto Rico, this

18th. day of June 1976.

ALEJANDRO LAMOUR-NADAL

On his own right

G.P.O. Box 15453

San Juan, P. R. 00936

APPENDI X

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

ALEJANDRO LAMOUR NADAL,

Plaintiff

PUERTO RICO TOURIST

'

'

'

'

vs. ‘CIVIL NO, 75-1

'

'

DEVELOPMENT COMPANY, '

'

’

Defendant

OPINION AND ORDER

On January 1, 1975, plaintiff fi-

led the instant complaint seeking dama-

ges and injunctive relief to redress

the alleged violation of rights secured

to him by the Constitution of the Uni-

ted States. Invoking jurisdiction of

the Court under Title 28, United States

Code, Section 1343, Title 42, United

States Code, Section 1983 and Title 23,

Laws of Puerto Rico Annotated, Section

671(d), plaintiff claims that his ter-

mination as an employee of defendant

without a statement of reasons or a he-

aring deprived him, under color of sta-

te law, of federally protected consti-

tutional rights, particularly his rights

to aue process of law, and seeks reins-

tatement to his position with defendant

$285,000 in damages and attorney's fees

and any such further relief that may be

just and proper.

Civil No. 75-1

After having obtained an extension

of time to file a responsive pleading,

defendant on April 30, 1975, filed a

motion to dismiss on the grounds, first,

that the doctrine of rea judicata bars

plaintiff's action because plaintiff

already sued defendant in the Superior

Court of Puerto Rico, San Juan Section,

for reinstatement to his position with

defendant and said action was dismissed

with prejudice on March 27, 1974 and,

second, that the Court lacks jurisdic-

tion to entertain the instant complaint

because defendant is not a "person" for

purposes of Title 42, United States

Code, Section 1983.

Of necessity, we must first address

the question of jurisdiction since a de-

termination of whether or not the doc-

trine of res judicata applies in this

case constitutes a judgment on the me-

rits that can be made only after the

Court assumes jurisdiction. Bell v.Hood

327 U.S.678 (1945). For the reasons out-

lined below, we find that the Court does

not hav. jurisdiction to entertain this

action and therefore must grant defen-

dant's motion to dismiss.

At the outset we must point out

that jurisdiction is not, and can not

be, conferred on this Court by Title 23,

Laws of Puerto Rico Annotated, Section

671(d) or any other statute of the Com-

monwealth of Puerto Rico. Federal distr-

ict courts have been created by Congress

pursuant to Article II, Section 1 of the

Civil No. 75-1

Federal Constitution. They are courts of

original but limited jurisdiction and

are empowered to hear only such cases as

are within the judicial power of the U-

nited States and have been entrusted to

them through a jurisdictional grant of

Congress. It is settled law that the ju-

dicial power of the United States having

been defined by Article IJI, Section 2

of the Constitution, Federal courts

can not be given authority beyond that

which the Constitution has thereby con-

ferred. Pursuant to its authority under

Article III, Section 1, Congress can

create inferior Federal courts and esta-

blish their jurisdiction, but it can not

vest in them more judicial power than

that which Article III, Section 2 grants

to the Federal Government. Obviously,

what Congress is powerless to do with

respect to Federal courts can not be do-

ne by the Legislature of the Commonwealth

of Puerto Rico.

Turning now to the main jurisdictio

nal allegation, that the Civil Rights

Act, Title 42, United States Code, Sec-

tion 1983, and its jurisdictional coun-

terpart, Title 28, United States Code,

Section 1343, empower this Court to en-

tertain the complaint, we find that the

Puerto Rico Tourist Development Company

is not a "person" within the meaning of

the Civil Rights Act and thus is not a-

menable to suit under said statute.

In Monroe v. Pape, 365 U.S. 167(1961)

the Supreme Court, relying on the exten-

Civil Ne. 75-1

sive congressional debates prior to pas-

sage of the Civil Rights Act of 1971,

in particular those related to the de-

feated proposal to make municipalities

liable under the Act, held that a muni-

cipal corporation is not a "person"

within the meaning of Title 42, United

States Code, Section 1983. This ruling,

as on ge | shown by Moor v. County of

Alameda, 411 U.S. 693 (1973) and ity

of Kenosha v. Bruno, 412 U.S. 507

(1973), has become settled law and the

lower Federal courts have made it appli-

cable as well to the states and their

political subdivisions and agencies.

In Sires v. Cole, 320 F. 2d 877

(9 Cir. 1963), the doctrine of Monroe

v. Pape, supra, was extended by the Co-

urt when it flatly stated that "Congress

did not undertake to bring municipal

corporations within the ambit of Title

42, United States Code, Section 1983...

The considerations which have led to

this conclusion...indicate that this is

likewise true of a state or county."

The rationale for this logical exten-

sion was fully articulated in Williford

v. People of California, 352 F. 2d 474

(9 Cir. T965) when the »roposition was

stated that "a municival corporation is

but a political subdivision of a state,

and if the state's political subdivision

are not "persons" under the statute,

then neither is the state."

In accordance with this extension of

the doctrine of Monroe v. Pape, supra,

Civil No. 75-1

mee es

Inc. v. City of Knoxville, et a

F, 2d 32 ir. 1967) that the State

of Tennessee was not liable as a "per-

son" within the meaning of Title 42,

United States Code, Section 1983, in U.

S. ex rel Gittlemacker v. County of Phi-

ladeIphia, 413 F. 2d 84 (3 Circ. 1969)

that the Commonwealth of Pennsylvania is

not a "person" within the meaning of

this Section and in Meyer v. New Jersey,

460 F. 2d 1252(3 Cir. 1572) that the

State of New Jersey could not be sued

under the Civil Rights Act.

it was held in Deane Hill County ciupe

,

The extension of the doctrine from

municipal corporations to the states had

as a logical corollary the entension of

the doctrine to other subdivisions of

the states. Thus, in Bennet v. People

of the State of California, 406 F. zi

36 (9 Cir. 1969), it was held that "sta-

te agencies... which are but arms of the

state government are not "persons" with-

in the meaning of the Civil Rights Act";

in Rosado v. Wyman, 414 F, 2d 170 (2Cir.

1969), Feverest on other grounds 397

(1970), that the Department of Social

Services for the State of New York was

not a "person" within the meaning of the

Act and in Olson v. California Adult Au-

thority, 423 F. 2d 1327 (9 Cir. 1970),

cert. den 398 U.S. 914 (1970), that the

California Adult Authority was not a

"person'' within the meaning of said Act.

In short, the doctrine of Monroe v.

Pape, supra, has been expressly eld

Civil No. 75-1

applicable not only to the states but

also to many of their political subdi-

vision including counties, towns, town-

ships, school districts, boards of edu-

cation, housing authorities, police de-

partments, municipally owned hospitals

and state colleges,.*

There is thus no question that by

now, as stated in Cheramie v. Tucker,

493 F, 2d 586 (5 Cir. 1974), "It is well

established that states and their poli-

tical subdivisions are not persons with

in the meaning of Title 42, U.S.C.,Sec-

tion 1983,''**

The Puerto Rico Tourist Development

Company has been created as a "public

corporation and instrumentality of the.

Government of the Commonwealth of Puerto

Rico" by virtue of Title 23,L.P.R.A.,

* See also in this respect Harvey v. Sad-

dle1, 331 F. 2d 387 (9 Cir. 1964);

Garrison v. County of Bernalillo, 338

F. 2d 1003 (10 Cir. T1964); Clark v.

Washington, 366 F, 2d 678 (9 Cir.1966)

Davis v. United States, 439 F. 2d

1118 (8 Cir. 1971).

**Some courts have also held that lia-

bility is personal under the Act and

can only be incurred in by individuals

not by juridical persons. See for ex-

ample Deane Hill Country Club, Inc. v.

City of Knosville et al, supra; Taylor

v. Pennsylvania Board of Parole, 263

Ee

Civil No. 75-1

Section 671(a). As such, as this Court

recently decided in its Order of August

1, 1975 in Hector Alfaro Flores v. Pu-

erto Rico Tourist Development Company,

Civil Number 75-499, it is clearly not

a "person" within the meaning of the

Civil Rights ‘Act and can not be sued

under its provisions. The Court there-

fore lacks jurisdiction to entertain

this action and must dismiss the com-

plaint. The Clerk of the Court is here-

by directed to enter judgment in accor-

dance with Rule 58 of the Federal Rules

of Civil Procedure, dismissing the com-

plaint and taxing costs to the plain-

tiff.

IT IS SO ORDERED.

San Juan, Puerto Rico, September 12,

1975.

JOSE V. TOLEDO

Chief U.S. District

Judge

Cont. **

F. Supp. 450 (MD Pa. 1967); Williams v.

Craven, 273 F. Supp. 649 (CD Cal.1967);

Miller v. Swenson, 315 F. Supp. 773 (W

D Mo. 1970).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO

ALEJANDRO LAMOUR NADAL,'

Plaintiff

vs. Civil No. 75-1

PUERTO RICO TOURIST

DEVELOPMENT COMPANY,

Defendant

JUDGMENT

The Court, Hon. José V. Toledo pre

siding, having entered an Opinion and

Order in the above captioned case fin-

ding this Court lacks jurisdiction to

entertain this action, it is

ORDERED AND ADJUDGED that this

complaint be and *ereby is dismissed

for lack of jurisdiction and it is

FURTHER ORDERED AND ADJUDGED that

plaintiff is to pay costs to the defen-

dant.

SO ORDERED.

San Juan, Puerto Rico, this 26th.

day of September 1975.

(S) Dennis A. Simonpietri

DENNIS A. SIMONPIETRI

Clerk

U.S. District Court

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF PUERTO RICO

ALEJANDRO LAMOUR NADAL,

Plaintiff

vs. CIVIL NO. 75-1

PUERTO RICO TOURIST

DEVELOPMENT COMPANY,

i |

Defendant

ORDER

Pursuant to our Opinion and Order

of September 12, 1975, judgment was en-

tered by the Clerk of the Court on Sep-

tember 26, 1975, dismissing this com-

plaint for lack of jurisdiction and ta-

xing costs on the plaintiff.

On October 28, 1975, plaintiff fi-

led a motion for reconsideration on the

grounds that the Court does have juris-

diction because the complaint included

a prayer for equitable relief as well

as demand for damages, and thus alleged

a cause of action under the Civil Rights

Act. Plaintiff further argues that the

Court gave undue relience to the deci-

sion in Alfaro Flores v. Puerto Rico To-

urist Development Co pany, Civil No.75-

499, decided August 1, 1975 by the Hon.

Juan R. Torruella, and that in light of

enheimer Méndez v. Acevedo, 388 F.

Su 326 (DC PR 1974); Wolfe v. O'Neill

336 8, ay 1255 t19>3)" and other ca-

Civil No. 75-1

ses cited in his motion, the Court does

have jurisdiction. Plaintiff therefore

prays that the Court grant the motion

for reconsideration, deny defendant's

motion for summary judgment and set the

matter for trial on the merits.

It is apparent that plaintiff has

not benefited from what the Court con-

sidered a clear and complete exposition

of the reasons for finding that the Pu-

erto Rico Tourist Development Company

is not a "person" for purposes of Ti-

tle 42, United States Code, Section 1983

This exposition was made precisely be-

cause the decision in Alfaro Flores v.

Puerto Rico Tourist Development Company,

Supra, citing only two cases, did not

go beyond flatly holding what is abun-

dantly upon a review of the applicable

jurisprudence.

Plaintiff's arguments lack merit.

Defendant's lack of amenability to suit

under Title 42, United States Code, Sec

tion 1983, d 2s not depend on the type

of relief sought by the plaintiff, nor

on whether the Commonwealth Labor Rela-

tions Board considers defendant an "em-

ployer™ within the meaning of the Com-

monwealth Labor Relations Act, nor on

the judicial determination of which are

the personnel rules applicable to those

employees transferred to defendant from

the Economic Development Administration

by virtue of the law that created the

defendant. Further, the cases cited by

the plaintiff do not support a finding

Civil No. 75-1

that the defendant is a "person" for

purposes of Title 42, United States Co-

de, Section 1983.

In short, the Court finds that pla-

intiff has failed to bring forth grounds

upon which the motion for reconsidera-

tion could be granted and the judgment

vacated. In addition, plaintiff's moti-

on for reconsideration was untimely fi-

led as more than ten (10) days had al-

ready elapsed from the entry of the

judgment.

In view of all of the above, pla-

intiff's motion for reconsideration is

hereby denied.

IT IS SO ORDERED.

San Juan, Puerto Rico, December 11,

1975S,

JOSE V. TOLEDO

Chief U.S. District

Judge

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

File No. 75-1

ALEJANDRO LAMOUR-NADAL

Plaintiff

Vv. NOTICE OF AP-

PEAL

PUERTO RICO TOURIST

DEVELOPMENT COMPANY

Notice is hereby given that Ale-

jandro Lamour-Nadal, plaintiff above

named, hereby appeals to the United Sta

tes Court of Appeals for the First Cir-

cuit from the final judgment entered in

this action on the 26th. day of Septem-

ber, 1975S.

Dated at San Juan, Puerto Rico,

this 14th. day of January 1976.

ALEJANDRO LAMOUR-

NADAL

Plaintiff

G.P.0.Box G1543

San Juan, P. R.00%6

February 6, 1976

Dana H. Gallup, Esquire

Clerk, U.S. Court of Appeals

for the First Circuit

John W. McCormack

Post Office and Courthouse

Boston, Massachussetts 02109

RE: Civil No. 75-1

Alejandro Lamour Nadal vs.

Puerto Rico Tourist Development

Company

Dear Mr. Gallup:

I am enclosing record on appeal in

the above entitled case in connection

with the appeal taken by:

Plaintiff: Alejandro Lamour Nadal

From: Judgment filed and en-

tered Sept. 26, 1975

as per identifying certificate and in-

dex attached. An attested copy of the

docket entris is also enclosed.

Sincerely,

(S)Dennis A. Simonpietri

DENNIS A.SIMONPIETRI

Clerk of the Court

Enclosures

Ce. George L. Weasler

P.O. Box 9898 Santurce, P.R.00908

(Counsel for plaintiff-appellant)

José A. Acosta Grubb, Esq.

P. O. Box 192, Old San Juan 00902

(Counsel for defendant-appellee)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. Misc. 76-8014.

ALEJANDRO LAMOUR NADAL,

Plaintiff, Appellant

Vv.

PUERTO RICO SOURIST DEVELOPMENT COMPANY,

Defendant, Appellee.

ORDER OF COURT

Entered February 19, 1976

Upon a review of the record on ap-

peal,

It is ordered that the appeal is

hereby dismissed for lack of appellate

jurisdiction.

By the Court:

(s)Dana H. Gallup

Clerk

(Cert. Copy, Clerk, U.8.D.C.,P.R.;

cc: Messrs. Weasler and Acosta Grubb.)