Montanez-Allman et al v. Garcia-Padilla et al

2013 | Cited 0 times | D. Puerto Rico | October 18, 2013


MONTAÑEZ ALLMAN, et al. Plaintiffs v. HON. GARCIA PADILLA, et al. Defendants

CIV. NO. 13-1683(PG)


president and I w Gary Hart According to the Department of Veterans Affairs, there were approximately 116,029 veterans of the United States Armed Forces in Puerto Rico 1

as of November of 2010. These veterans and their families receive an array of funds and benefits from both the Federal and State governments and also face everyday challenges in gaining access and taking advantage of those benefits. The Office of the Ombudsman for the Veterans was created to ensure that veterans and their families enjoy the services and benefits they require in a timely and efficient manner and that their rights are preserved.

This case was brought by Agustin Montañez Allman , who was named

by former Governor and former President of the New Progressive Party , o in 2011. When the tides of politics brought about a new administration, the law under which Mr. Montañez had been named to his post was repealed and a new law creating the Office of the Ombudsman for the Veterans of the Commonwealth of Puerto Rico was enacted. Unbeknownst to Mr. Montañez, his tenure as Ombudsman would be short-lived. On August 28 th

, 2013, short of three years after he began serving his ten-year term as Ombudsman, Mr. Montañez received a letter informing him that the Office of the Advocate for Veterans created under 1 Department of Veterans Affairs on November, 2010. Available at:

Reorganization Plan 1 of 2011 had been eliminated and that a new interim Ombudsman had been named. Mr. Montañez handed in the keys to the office and rushed to Federal Court to request injunctive relief in order to remain in his position and to enjoin defendants from further discrimination of any kind because of his political beliefs and association. See Docket No. 1. A little more than a week before the preliminary injunction hearing was set to take place, plaintiffs requested a Second Temporary Restraining Order to halt the confirmation by the Senate of the candidate that Governor Garcia Padilla nominated to occupy the position granted the TRO and ordered Governor Garcia Padilla to withdraw the nomination of Col. Hector Lopez for the post, but reserved any determination of whether Mr. Montañez should be reinstated in his position in lieu of the preliminary injunction hearing set for October 15, 2013. The hearing was in fact held on such date and the parties submitted the matter with only the testimony of Mr. Montañez and the documents on the record. After careful consideration, the Court GRANTS Plaintiff s request for a preliminary injunction against defendants.

I. PROCEDURAL BACKGROUND Plaintiff Montañez, among others, brought suit against defendants the Governor individually and as Gove

Social Welfare, Culture, Sports and Recreations; Rossanna López León

Ombudsman appointed by Governor García Padilla; Elizabeth López-Cabrera -

os Rivas Quiñones and as Executive Director of the Office of Management and Budget of the Commonwealth of Puerto Rico.

The plaintiffs sought declaratory and injunctive relief as well as compensatory and punitive damages pursuant to 42 U.S.C. § 1983 for violations to the First, Fifth and Fourteenth Amendments to the Constitution of the United States of America, as well as Article 1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5141.

Plaintiffs asked the Court to issue a TRO ordering defendants to vacate the appointment of López- allow Montañez to return to his duties without interference on

Ombudsman. Plaintiffs also moved the Court to preclude any attempt to remove Montañez or members of his staff pending resolution of the claims.

grounds insofar as the documents submitted did not include an affidavit

or verified complaint that laid down the specific facts upon which the request was premised, as required by FED. R. CIV. P. 65(b). A preliminary injunction hearing was set for September 17, 2013.

At the hearing, it transpired that plaintiffs had not yet served defendants with the summons and complaint for which reason the court ordered plaintiffs to serve process and rescheduled the preliminary injunction hearing for October 15, 2013. See Docket No. 9.

On October 1, 2013 plaintiffs filed an Amended Complaint. See Docket No. 11. A Second Amended Complaint followed on October 6, 2013. See Docket No. 12. Simultaneously, plaintiffs filed the Second Motion for Temporary Restraining Order asserting that the Governor unlawfully nominated Colonel Hector Lo o Ombudsman and submitted such appointment to the Senate of Puerto Rico for its consideration and confirmation on October 3, 2013 despite being fully aware of the existence of the present action and the hearing scheduled for October 15, 2013 to dis preliminary injunction.

Accordingly, plaintiffs included Col. Lopez, and the Senate of Puerto Rico represented by its president Hon. Eduardo Bhatia Gautier and the president of the Commission for Judiciary, S Affairs, Hon. Miguel Pereira Castillo as defendants to the present

action and asked that the Court order the Governor s

nomination for appointment and preclude the Senate of Puerto Rico from proceeding with his confirmation until the Court issued a determination See Docket No. 14. The Court granted plaintiffs request and ordered Governor García Padilla to withdraw the nomination of Col. López until such time as the Court ruled on the request for a preliminary injunction. See Docket No. 18.

On October 15, 2013 the Court held the preliminary injunction hearing with the appearance of the parties. The only testimony presented at the hearing was proffered by Mr. Montañez himself.


, 2010, Mr. Montañez was appointed by former Governor Luis Fortuño as Veteran s Advocate pursuant to Law No. 57 of June 27, 1987 , which created the Office. The Office was originally attached to the Department of Labor and

Human Resources. Law No. 57 did not include a fixed term for the position of Veteran s Advocate. On June of 2010, the Senate confirmed Mr. Montañez.

On June 22 nd

, 2011, former Governor Fortuño signed Reorganization Plan No. 1- , 2

which effectively repealed Law No. 57. The Reorganization Plan, also known as the Advocate Offices Reorganization Plan, created four Advocate Offices and an Office of Administration for an entity under which all the administrative powers, functions and duties of the individual offices would be consolidated.

The Reorganization Plan also created a new office, called the Office of the Advoca

responsible for protecting the rights of veterans in Puerto Rico. The m one of free removal to one with a fixed term of ten years. In addition, the Reorganization Plan provided that the Governor could only declare a vacancy in the position of the Advocate if the former determined that the 2 Attachment No. 1 to this order is a certified translation of the Reorganization Plan.

See Attachment 1 at pages 20-21. Prior to declaring the vacancy, the law required the Governor to give the Advocate notice and a hearing. Id.

After the Reorganization Plan came into effect, Mr. Montañez was re-nominated by Governor Fortuño to the position of Advocate for the Veterans. On or around November of 2011, he was unanimously confirmed by the Senate for the position. Thus, his term was to expire on November of 2021.

On November 6, 2012, general elections were held in Puerto Rico and Garcia Padilla, who was a Senator at the time, won the Governorship for the Popular Democratic Party . Soon thereafter, several bills were introduced purporting to change once again the structure of the different Ombudsmen Offices. Particularly, Senate Bill No. 356 sought to create an

On July 24, 2013, the bills were signed by Governor García Padilla and became Laws No. 75-2013 through 79-2013. Law No. 75 repealed Reorganization Plan 1-2011. Moreover, Law No. 75 provides that within thirty days after its approval, all the resources from the OAP should be transferred to the different Offices of the Ombudsman, under advise of See Docket No. 28-3 at page 2.

Law No. Office of the Veterans Advocate of the Commonwealth of Puerto Rico Advocate. See Docket No. 34-1. Pursuant to Article 5 of Law No. 79, the latter would be appointed by the Governor with the consent and approval of the Senate and is called to serve a term of ten years or until his successor is appointed and takes office. See Docket No. 34-1 at page 5.

Ombudsman, delivered a letter dated August 16, 2013 and signed by Governor García Padilla to Montañez, as well as a document titled Petition of Information. See Docket No. 12, ¶¶ 31-32. The letter informed Mr. Montañez that Mr. Ramos had been appointed as President of the team

that would oversee the transition from the extinct Office of the Office of the Veterans Advocate of the Commonwealth of Puerto Rico. The letter also asked Mr. Montañez for his assistance to the Transition Committee, but made no mention of termination or removal from his position. See Docket No. 3-3.

The Plaintiff alleges that on August 23, 2013, Mr. Montañez received a second petition of information for sensitive and confidential material, documents and property, such as keys and computer passwords. See Docket No. 12, ¶ 35. The Plaintiff testified during the hearing that still, at that point, he had not been informed of his removal or termination. Mr. Montañez provided the items and information requested.

The Plaintiff also testified that it wa that he learned through the press that Ms. Ingrid Vila had announced that

the Ombudsmen would cease functions that same day and that the Governor would be making an announcement of the new interim appointments.

Two days later, while at an official event held at the Office of the Resident Commissioner of Puerto Rico, Pedro Pierluisi, Mr. Montañez alleges he received a copy of a press release dated that same day and issued by Vila, where she announced the designation of López-Cabrera as See Docket No. 12, ¶ 37; Docket No. 3-5.

That afternoon, the Plaintiff received a letter from Vila indicating that pursuant to Laws No. 75 and 79, the Ombudsman Office created under the Reorganization Plan ceased to exist. As such, all the documents, files, materials, equipment and funds assigned to the extinct Office of the Veterans Advocate of the Commonwealth of Puerto Rico. The letter also requested that Mr. Montañez make available all documents, files, materials, equipment, funds and resources to the newly appointed Acting Ombudsman. See Docket No. 3-6. Mr. Montañez testified at the injunction hearing that, prior to receiving the letter, he made several attempts to contact Ms. Vila, but was unsuccessful.

III. LEGAL STANDARD A. Preliminary Injunction one that should not be granted unless the movant, by a clear showing,

carries Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citing WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2d § 2948) (emphasis ours). The determination of whether this burden has been met rests within the realm of the See Deckert v. Independence Shares Corp., 311 U.S. 282, 290 (1940); Anheuser-Busch, Inc. v. Teamsters Local No. 633, Nat. Conference of Brewery & Soft Drink Workers, 511 F.2d 1097, 1099 (1st Cir.1975) (citations omitted), cert. denied, 423 U.S. 875 (1975). The standard for issuing a preliminary injunction is oft-quoted a four factor test: (1) the likelihood of success on the merits; (2) the potential for irreparable injury; (3) a balancing of the relevant equities most importantly, the hardship to the nonmovant if the relief issues as contrasted with the hardship to the movant if relief is withheld; (4) the effect on the public interest of a grant or denial of the relief. See New Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 8-9 (1st

Cir.2002); Ross-Simons of Wardwick, Inc. V. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir.1996); Narragansett Indian Tribe v. Guilbert, probability-of-success component Lancor v. Lebanon Housing Authority, 760

F.2d 361, 362 (1 st

Cir.1985). The overseeing appellate court has called injunction test. See Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993);

see also SEC v. Fife, 311 F.3d 1, 8 (1st


ulation injury does not Narragansett Indian Tribe v. Guilbert, 934 F.2d at 6-7 (internal citations omitted). The comparable hardship factor requires the court to examine, and perform a comparison between the injuries suffered by plaintiff outweighing any harm which granting injunctive relief would inflict on the defendant. See DeNovellis v. Shalala, 135 F.3d 58, 77 (1st Cir.1998); Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). The final and fourth criterion, namely, the effect on the public interest, is measured by whether the public interest would be better served by issuing than by

denying the injunction. See Massachusetts Coalition of Citizens with Disabilities, et al., v. Civil Defense Agency and Office Emergency Preparedness, 649 F.2d 71, 74 (1st

Cir. 1981.) IV. DISCUSSION A. Due Process Claims 1. Substantial Likelihood of Prevailing on the Merits

In order to prevail in their request for a preliminary injunction on the basis of the alleged violations to the due process guarantees of the Fourteenth Amendment, the plaintiffs must first show a substantial likelihood that they will prevail on the merits. That is, plaintiffs must demonstrate that the ten-year term of employment bestowed upon the Vete -protected property interest in continued employment for the duration of such fixed term, which in turn entitled him to enjoy the due process guarantees provided by the Fourteenth Amendment.

of the Fourteenth Amendment, persons who possess a property interest in continued public employment cannot be Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5-6 (1st Cir.2000) (citing Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 263 (1st Cir.1987). claim stemming from the termination of employment, a public employee

must first demonstrate that he has a reasonable expectation, arising out of a statute, policy, rule, or contract, that he will continue to be employed. Acevedo-Feliciano v. Ruiz-Hernandez, 447 F.3d at 121 (quoting , 300 F.3d 92, 101 (1st Cir.2002). person has secured a property right in his employment if he has an

Quiles Rodriguez v. Calderon, 172 F.Supp.2d 334, 344 (D.P.R.2001) (internal citations omitted) (holding that the Chair of the Public Service Commission, an employee appointed by the Governor to a term position, cannot be

order to establish a constitutionally-protected property interest, a plaintiff must demonstrate that [he] has a legally recognized expectation that [he] will retain [his] position. A legitimate expectation of

continued employment may derive from a statute, a contract provision, or Santana v. Calderon, 342 F.3d 18, 24 (1st Cir.2003) (citing Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)).

property interest rises to the level of a legitimate claim of

cannot dismiss the employee without Acevedo-Feliciano v. Ruiz-Hernandez, minimum, due process rights entitle such individuals to notice and a

meaningful opportunity to respond Figueroa- Serrano v. Ramos-Alverio, 221 F.3d at 5-6 (citing Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 263 (1st Cir.1987). See also Acevedo- Feliciano v. Ruiz-Hernandez, 447 F.3d at c employment context, the required process typically includes some kind of hearing and some pretermination opportunity to respond.

In this case, the question is whether or not the Plaintiff had a property interest in his employment that would trigger the constitutional protection of the Due Process Clause. However, any ruling on this constitutional right question is narrowly intertwined with the separation of powers doctrine in the Puerto Rico Constitution. Therefore, inued employment is constrained by two

Santana v. Calderon, 342 F.3d at 24.

The position of the Veterans Advocate is statutorily created. The relevant statute at the time the Plaintiff was named provided as follows:

the body in the Executive Branch entrusted with, among other duties as provided in this Plan, handling and investigating claims by veterans in Puerto Rico and for safeguarding their rights in areas such as education, healthcare, security, employment, civil and political rights, social, labor and tax laws, housing, transportation, recreation, culture and others as referred by the AOA. Likewise, it shall be responsible for establishing and implementing a program to provide assistance, orientation, and advice to protect the rights of veterans and their families, and for coordinating with

the corresponding entities the necessary services to be provided to veterans in Puerto Rico. See Chapter V, Article 24 of the Reorganization Plan No. 1-2011, Attachment 1 at page 20. The Reorganization Plan also provided that all be appointed by the Governor with the advice and consent of the Senate and shall hold office for a term of ten Article 25 of the Reorganization Plan, Attachment 1 at page 20.

Therefore, it stems from the clear language of the enabling statute that a fixed ten-year term attached to the position.

Santana v. Calderon shall have power to remove any officer whom he may appoint, except

officers whose removal is otherwise provided for by the Constitution, and he may declare the office vacant and fill the same in the manner provided LAWS ANN. tit. 3, § 6 (2002 language in the manner provided by law indicates that the legislature Santana v. Calderon, 342 F.3d at 25. Despite the fact, however, that the

Puerto officer from his position, this court must consider whether or not any

limitation imposed by the Legislature is at odds with the separation of constitutional power of removal.

IV of the Constitution of Puerto Rico, which provides, in relevant part

n the manner prescribed by this

Constitution or by law, all officers whose appointment he is authorized P.R. CONST. art. 4, § 4. The Puerto Rico Supreme Court spoke at Constitution in both Guzman v. Calderon, 164 P.R. Dec. 220 (2005) and

Santana v. Gobernadora, 165 P.R. Dec. 28 (2005).

In Guzman v. Calderon, the Supreme Court of Puerto Rico, upon this

in quest Guzman v. Calderon, 164 P.R. Dec. at 241, Attachment 2 Case 3:13-cv-01683-PG Document 36 Filed 10/18/13 Page 10 of 23 requirement for removal of members of the Board of Directors of a public corporation that the relevant organic act provid

Guzman v.

Calderon, 164 P.R. Dec. at 242-243, Attachment 2 at page 12. In the case of officers who perform quasi-legislative or quasi-judicial functions, the Supreme Court of Puerto Rico found that any reasonable restriction on Id. at 238-

239, Attachment 2 at page 10.

The Supreme Court of Puerto Rico analyzed the restriction imposed in the United States Supreme Court cases that analyze the scope of the

Myers v. United States, 272 U.S. 52, 126, 47 S.Ct. 21, 71 L.Ed. 160 (1926), (2) Humph v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), (3)

Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), and (4) Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). See Guzman v. Calderon, 164 P.R. Dec. at 234-238, Attachment 2 at pages 7-9. The Supreme Court of Puerto Rico followed

intention of the constitutional delegates to incorporate into our jurisdiction standards similar to those adopted in the federal

Guzman v. Calderon, 164 P.R. Dec. at 233, Attachment 2 at page 6. As a

of this matter given to us by the members of the Constitutional

id. at 238, Attachment 2 at page 9, the Supreme Court of Puerto Rico

discussing the United States Supreme Court findings in Myers,

Executor, Wiener and Morrison, the Supreme Court of Puerto Rico established that, appointment or removal power requires a case-by-case analysis in which it

is imperative to identify whether the officer performed functions that were purely executive in nature, or whether he or she exercised quasi- legislative or quasi- Id. The court then set forth the applicable test, as follows:

power of the Legislative Branch to impose requirements for the removal of said officer is minimal, because in most cases these officers are directly involved in the implementation of public policy and in the performance of functions assigned by the Constitution to the Executive Branch. The main test to determine the validity of the statute consists in that the legislative restriction on the removal power of the Governor of Puerto Rico cannot impermissibly and unreasonably infringe on his or her constitutional power to execute the laws and cause them to be executed and to formulate and implement public policy. An examination of the statute requires that the legislative restriction on said power should not impermissibly limit the powers of the Executive Branch or injure the balance of powers that must exist between government branches. The case of officers who perform quasi-legislative or quasi-judicial functions is quite different. The Legislative Assembly can delegate to these officers a greater degree of independence, allowing them to perform their functions free from intrusion by other government branches. Therefore, in that case, of removal would be valid - unless, of course, it constitutional duties. Id. at 238-239, Attachment 2 at pages 9-10. Shortly thereafter, in Santana v. Calderon, the Supreme Court of quest of a writ of certification, held that the functions of the Executive Director of the Occupational Development Council are strictly executive in nature, Santana v. Gobernadora, 165 P.R. Dec. at 60, Attachment 3 at page 43, and although the organic law of the position in question provides that it

be held for a fixed term of four years, it found that this term provided Id. at 62, Attachment 3 at fill the position and therefore does not confer upon that functionary a proprietary interest therein. That term does not deprive the Governor, either, of his or her prerogative to remove the functionary of the position if he or she deems it necessary and Id. Puerto Rico Constitution, much like in Guzman, the Supreme Court of

Puerto Rico in Santana v. Calderon also looked to the United States Supreme Court caselaw, and found that:

As we can see, when our Constitution was approved we made ours the analysis model presented in Myers and , to evaluate under what circumstances the Legislative Assembly can impose restrictions on the Governor to remove functionaries of the Executive. In other words, the decisions in those cases determine the boundaries power to remove and the limitation that such power necessarily represents for the exercise of the s prerogatives. In light of the above, and considering that the Commonwealth Constitution is modeled in broad strokes after the government structured contained in the United States Constitution, it is appropriate for us to go over, in greater detail, the manner in which this subject has been treated by the United States Supreme Court, paying special attention to the decisions in Myers and Executor. Id. at 51-52, Attachment 3 at pages 29-30. After deciding that it would follow United States Supreme Court precedent in the analysis of the

that a joint analysis of Myers, and Wiener stood for the following principles:

official whose functions are purely executive is absolute. The second principle poses that when the functions carried out by the executive functionary partake of the attributes of the legislative or judicial function, Congress does have the authority

to condition the removal of that functionary from his or her post, by imposing, for example, the requirement of just cause for the removal. Id. at 55 (emphasis ours), Attachment 3 at pages 35-36 (emphasis ours).

Executor, the Supreme Court of the United States held that Congress could - legislative and quasi-judicial functions, and in this exercise has the Id.; see also Santana v. Gobernadora,

165 P.R. Dec. at 54, Attachment 3 at page 34, Guzman v. Calderon, 164 P.R. Dec. at 236, Attachment 2 at page 8. Finally, the Supreme Court of Puerto Rico noted that in Guzman, it totality of circumstances analysis in Morrison to defi Santana v.

Gobernadora, 165 P.R. Dec. at 59, Attachment 3 at page 36. And thus, it applied the standard outlined therein to the case before it. Id.

Following the framework carefully laid down in Guzman and Santana, performs quasi-legislative and/or quasi-judicial functions. If so, then the Legislative Assembly can delegate to these officers a greater degree of

Law No. 79 confers upon the Ombudsman the following powers and prerogatives: (a) conduct investigations and obtain information he may deem pertinent regarding the complaints he investigates; (b) hold administrative hearings and sight inspections; (c) take oaths and statements; (d) inspect records, inventories, documents and physical facilities of the public agencies or private entities subject to the provisions of the law; (e) appear on behalf of the veterans and their families to obtain benefits under the pertinent state or federal laws or regulations before any forum, court, board, commission or state or federal agency; (f) order the appearance and testimony of witnesses as well as the production of papers, books, documents and other evidence relevant to the investigation. See Article 9 of Law No. 79, Docket No.

34-1. Law No. 79 also gives the Ombudsman the power to investigate, process and adjudicate complaints as well as order compliance with the applicable legislation in those cases in which any person or entity, including public ones, deny or hinder in any way the rights and benefits granted to veterans and their families. See Article 8 of Law No. 79, Docket No. 34-1.

The Supreme Court of Puerto Rico has found an entity to have quasi- judicial functions when, in the exercise of its adjudicative power, it has the prerogative to hold hearings; issue citations; take sworn testimony and statements from witnesses; receive evidence and issue resolutions and determinations directed to individuals, employers or organizations to cease and desist of any illegal practice. See Plan de Salud U.I.A v. A.A.A., 169 P.R. Dec. 603(2009); Rivera Santiago v. Srio. De Hacienda, 119 P.R. Dec. 265 (1987) and Murphy Bernabe v. Tribunal Superior, 103 P.R. Dec. 692 (1975). Mr. Montañez declared under oath that he received evidence relevant to the investigation of complaints filed by veterans before the Office of the Ombudsman. He also testified that he has threatened to impose fines and other penalties to those that were not complying with the regulations and laws that protect veterans and their families, a clearly quasi- judicial function. See Hernandez Chiques v. F.S.E., 152 P.R. Dec. 941 (2000) (finding that the Industrial Commission of Puerto Rico, in its quasi-judicial functions, may impose sanctions).

The Ombudsman also has the ability to adopt and promulgate whatever rules and regulations are needed to ensure the implementation of the provisions of Law 203- of the Puerto Rican Veteran of the 21 st

- legislative functions. See Article 13 of Law No. 79, Docket No. 34-1. As a matter of fact, accord the Office of the Ombudsman recently approved a regulation to provide an educational grant for children of veterans in Puerto Rico, a clearly quasi- legislative function.

Notably, the Office of the Ombudsman shall be the agency due to its nature, purpose and scope, is related with the functions that

See Article 7 of Law No. 79, Docket No. 34-1. To that effect, during his testimony, Mr. Montañez emphasized that the Office is in charge of overseeing two federally-funded projects: a veterans and is the only one of its kind in Puerto Rico and the Caribbean and Cemetery. The guidelines and funding for these projects are solely provided by the Federal Government and the Ombudsman is charged with ensuring their implementation, independent from any State intervention.

It mony of the duties he performed, that the more a quasi-judicial body than a purely executive one and that the has quasi-legislative and quasi- judicial functions. Hence, as set forth in Santana and Guzman, the

removal to ensure that the official has independence to carry out his functions without intervention from the Executive Branch. 3

Those limitations may be in the form of a mandate of just cause for removal or a fixed term for the position. See , 295 U.S. at 629. In the case at hand, the restrictions took the form of a statutorily defined term. The ten-year term set forth in the statute was first incorporated in the Reorganization Plan of 2011. According to the testimony of Mr. Montañez, the veteran community in Puerto Rico had been lobbying for years to amend the law that created the Office of the position of Ombudsman with a fixed term and afford the Office with some continuity.

When the lawmakers drafted Law No. 79, they maintained the ten-year term and, in fact, eliminated the provisions contained in the Reorganization Plan regarding removal of the Ombudsman in case of

3 The testimony of Mr. Montañez is further evidence that the Legislative intent was to r. Montañez mentioned that the Office recently represented a veteran in a proceeding against the Puerto Rico Treasury Department. He also pointed out that the Office had a meeting with former Governor Fortuño to dissuade him from passing a law that purported to eliminate some tax exemptions for veterans. We think it clear that both instances show that the rights of the veterans and their families, even in circumstances that could place its actions at odds with the public policy of the Commonwealth .

negligence or misconduct. That is, unlike its predecessor, nothing in Law No. 79 gave the Governor express power to remove the Ombudsman.

The scenario before us is remarkably similar to the set of facts in the case of Wiener. In that case, the law that established the War Claims Commission contained no provision with respect to removal of its commissioners. The United States Supreme Court, upon finding that the War Claims Commission was an adjudicative body, concluded that in light of Humphr holding, the President derived no implied power from statute to remove a member of the Commission merely because he wanted his own appointees. Wiener, 357 U.S. at 356.

The court thus concludes that, here, by including a fixed term of ten years, the Legislature gave a clear indication of its desire to

the Executive Branch. We thus find that the Legislature validly limited mbudsman and that he had an expectation of continuity in said employment. See Quiles, 172 F.Supp.2d at 344 (citing Nieves-Villanueva v. Soto Rivera, 133 F.3d 92 (1 st

Cir. 1997)). Accordingly, he had a property interest in his position that validly stemmed from the enabling statute under which he was appointed.

s due process rights have not but rather his tenure ceased because his position, as well as the agency/office created by Reorganization Plan No. 1 of 2011, were abolished by the Puerto Rico Legislature by enacting Acts 75-2013 and 79-2013 which were later signed into law by the Governor of Puerto Rico, Hon. Alejandro García Padilla See Docket No. 6 at page 18. Defendants look to state jurisprudence, particularly to the case of Gomez v. Negron, 65 P.R. Dec. 305 (1945), for the theory that abolishing a position created by the Legislative Assembly does not violate any constitutional right of the incumbent as long as the action is done in good faith. Gomez, P.R. Dec. at 312. Firstly, the Gomez case is distinguishable from the controversy before this court insofar as the former reached the Supreme Court of Puerto Rico via writ of mandamus and is thus devoid of any reasoning under the Fourteenth Amendment to the Constitution. Secondly, Gomez was decided before the Wiener and Morrison

Constitution in the case of quasi-judicial and quasi-legislative officers.

But most importantly, the Gomez holding is based on the comparison that the Court made of the law that was repealed versus the newly enacted law. After carrying out that exercise, the Supreme Court of Puerto Rico in Gomez held that because the new law substantially modified the terms of the position and the manner of appointment, the former post had in fact been abolished. See Gomez, 65 P.R. Dec. at 310-12.

of the Office of the Veterans Advocate under the Reorganization Plan and the Office of the Veterans Advocate of the Commonwealth of Puerto Rico under Law No. 79, after a perfunctory review of both statutes, the court is not convinced at this point that such minor differences fundamentally change in any way the nature of the position. The court, however, will not dwell on this point insofar as it is irrelevant to the analysis under the Fourteenth Amendment.

Having found that Mr. Montañez has an expectation of continuity, and thus, a property interest in his position, it follows that he is protected by the provisions of the Fourteenth Amendment. If the employee has proven to have a property interest, then the employer cannot dismiss him without affording him due process of law. See Acevedo, 447 F.3d at 121.

The record shows that Montañez did not receive a formal termination letter and was not afforded the opportunity to be heard prior to his removal. In fact, the evidence presented thus far shows that Plaintiff merely received a letter informing him that the law under which he was named no longer existed and he was to be substituted. In fact, the record is devoid of any evidence that Montañez engaged in conduct that amounted to negligence or that he failed to fulfill the duties of his position in any way. Not having been given a proper notice and a meaningful opportunity to respond, the court finds that the defendants violated the

his position as Veterans Advocate, the term of which was to expire on November, 2021 pursuant to the provisions of the Reorganization Plan.

Hence, the Court finds that plaintiffs have met the first prong of the preliminary injunction standard by proving their likelihood of prevailing on the merits.

2. Irreparable Injury

The irreparable injury analysis in this case centers on whether Mr. Montañez had a property interest in his employment. The Court will also look at the injury that the Office of the Ombudsman is suffering and will continue to suffer as result of his removal.

Irreparable harm consists of a substantial inquiry that is not accurately measurable or adequately compensable by money damages. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8 (1 st

Cir. 2000). Mr. Quiñones has a property interest in his employment that is cloaked with Constitutional protection. His termination has resulted in the loss of his salary, but has also resulted in humiliation and shame in the eyes of the public and his peers, according to his testimony before the court. Mr. Montañez testified that he has suffered harm to his personal and professional reputation.

Mr. Montañez also expressed concern as to the state of the Office of the Veterans Advocate since it works closely with federal agencies and has several on-going projects that can lose sponsorship and/or funding if left unattended. Specifically, Mr. Montañez pointed out that the

steps needed to be undertaken to ensure that the funds designated for the project, to wit, $7.1 million, would not have to be returned to the Department of Veterans Affairs for lack of compliance with federal guidelines.

These elements cannot be adequately measured or are not compensable by money damages, and thus, the court finds that the second requirement of the preliminary injunction test .

3. Balance of Harms [a]ny potential harm caused to [a plaintiff] by the denial of [his] motion must be balanced against any reciprocal harm caused to [the defendant] by the imposition of an injunction. Avaya, Inc. v. Ali, No. 12 10660 DJC, 2012 WL 2888474, at *8 (D.Mass. July 13, 2012) (citing Touchpoint Solutions,

Inc. v. Eastman Kodak Co., 345 F.Supp.2d 23, 32 (D.Mass.2004). In the case at hand, the balancing of hardship factor also favors Plaintiff. During the pendency of these proceedings, the Plaintiff has been deprived of his title and his salary. On the other hand, defendants have not advanc constitutional powers of removal would in any way be hindered by the

Advocate remain in the position for the remaining of the ten-year term to which he was appointed. Moreover, co-defendant Lopez-Cabrera only has an interim designation as Veterans Advocate, and thus, does not have a property

Hector Lopez, is also not yet in office inasmuch as this court ordered the Governor to withdraw his nomination for appointment until we ruled on See Docket No. 18. Therefore, the defendants cannot be harmed by the issuance of this injunction in the same way the Plaintiff can were this court not to issue the same.

4. Public Interest

Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.2003). Here,

inasmuch as the public interest will not be harmed by the issuance of

this injunction. As stated by the Plaintiff during his testimony, the reason the Legislature in 2011 set a fixed ten-year term for the to was the goal of these limits, and the knowledge that one with more

experience will necessarily operate better and more efficiently than one Quiles Rodriguez, 172 F.Supp.2d at 345. Moreover, i the doctrine of separation of powers, kind of crass intrusion make the argument for erring on the side of

Id. The limitation set by the

Advocate evinces

government Humphr Executor, 295 U.S. at 625.

The Court consequently holds that it is in the public interest that be protected. Therefore, the fourth and final prong of the test for the

preliminary injunction .


The Plaintiff also claims that the defendants violated his First Amendment rights by politically discriminating against him. According to the Plaintiff, he was removed from his position as Veterans Advocate because of his political affiliation to the NPP.

public employees who hold nonpolicymaking positions from the vicissitudes

of personnel decisions ro Bergeron v. Cabral, 560 F.3d 1, 7 (1st Cir.2009) (citing Rutan v. Repub. Party of Ill., 497 U.S. 62, 74- forbidden by the First Amendment from taking adverse action against public employees on the basis of political affiliation, unless political Ocasio- Hernandez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir.2011) (citing Rutan, 497 U.S. at 75 76; Welch v. Ciampa, 542 F.3d 927, 938 39 (1st Cir.2008)). To make out a prima facie claim of political discrimination, a plaintiff that the plaintiff and defendant have opposing political affiliations, (2) affiliation, (3) that an adverse employment action occurred, and (4) that

political affiliation was a substantial or motivating factor for the Ocasio-Hernandez, 640 F.3d at 13 (citing Lamboy Ortiz v. Ortiz Vélez, 630 F.3d 228, 239 (1st Cir.2010)). However, Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 49

L.Ed.2d 547 (1976).

The First Amendment political affiliation right described in the line of cases from Elrod to Branti

v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), is cabined by an exception designed to give room to elected representatives to make policy choices reflective of their party platforms. Torres Rivera v. Calderon Serra, 412 F.3d 205, 211 (1st Cir.2005) (citing Branti, 445 U.S. at 517 18, 100 S.Ct. 1287; Rutan, 497 U.S. at 74, 110 S.Ct. 2729.

It is uncontested that the Plaintiff is affiliated with the NPP and was in fact named to the position of Veterans Advocate by former Governor Fortuño. It is also a fact that defendant Governor Garcia Padilla is the current President and member of the PDP, the opposing party to the NPP. Therefore, the first prong of the applicable test is easily met. The Plaintiff testified during the hearing that he personally knows the Governor since prior to his nomination as Ombudsman because they worked together as members of the Puerto Rico Bar Association from 2004-2006. According to the Plaintiff, the members would sustain what sometimes -

be reasonably concluded that Hon. Garcia- political affiliations, thereby, establishing the second element of the test. The parties also stipulated the third prong of the test, namely, that the Plaintiff suffered an adverse employment action. On August 28th, 2013, Plaintiff received a letter notifying him of his removal from his position as Veterans Advocate.

- someone - with the fact plaintiff was treated unfairly is not enough to Correa-Martinez v. Arrillaga- Belendez, 903 F.2d 49, 58 (1st Cir.1990) (citation omitted). At this stage of the proceedings, the Plaintiff has failed to adduce to sufficient evidence to establish the final element of the prima facie case, to wit, the causation requirement. Although the Plaintiff vehemently testified that his political affiliation must have been the reason why the Governor removed him from his position, the letter he received states that his position ceased to exist pursuant to a

rejected attempts by plaintiffs to challenge on First Amendment grounds loss of employment due to reorganizations of governmental agencies, whether the reorganization is effectuated by the legislature, by the governing board of the agency, or by the administrative head of the Torres Rivera, 412 F.3d at 211 n. 6 (internal citations omitted) of discriminatory intent simply will not do, and thus, in light of the evidence on record, this court is unable to make determinations of politically-discriminatory motive at this juncture injunction on First Amendment grounds must be DENIED.

V. CONCLUSION The court finds that the enabling statute is clear in its language stating that the Veterans Advocate was to be appointed to a term of ten years; that the Plaintiff had a valid expectation of continuity in his employment, and thus a property interest in his office; and that he was not afforded his due process rights under the Fourteenth Amendment prior to his removal. The court also finds that Plaintiff has met his burden of proof and is entitled to a preliminary injunction on Fourteenth Amendment Grounds. Therefore, the court hereby (1) VACATES Lopez-Cabrera s appointment as Acting Veterans Advocate; (2) ORDERS defendants to allow Plaintiff to return to his position; (3) ENJOINS defendants from removing Mr. Montañez from his position without due process of law. IT IS SO ORDERED.

In San Juan, Puerto Rico, this 18 th


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