Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO BASILIO TORRES-RIVERA, President of the Puerto Rico Industrial Commission, Plaintiff, v. CIVIL NO. 14-1040 (FAB) ALEJANDRO GARCIA-PADILLA, individually and as Governor of Puerto Rico; GRACE SYLVETTE LOZADA-CRESPO, individually and as Designated President of the Puerto Rico Industrial Commission, Defendants. MEMORANDUM AND ORDER GRANTING PRELIMINARY INJUNCTION BESOSA, District Judge. I. BACKGROUND Plaintiff Basilio Torres-Rivera was appointed as Commissioner and Chair1 of Puerto Rico’s Industrial Commission (“PRIC”) on May 29, 2012 by former Governor and former President of the New Progressive Party (“NPP”) Luis Fortuño. The Puerto Rico Senate confirmed Torres-Rivera on June 19, 2012, and he consequently began to serve what he expected to be a six-year term in office, as prescribed by Law 45 of 1935, which was then in effect. P.R. Laws Ann. tit. 11 § 8 (2010) (Docket No. 3-1). Defendant Alejandro 1 Plaintiff refers to this position as “President,” but to be consistent with the English translation of the Puerto Rico law, the Court uses the term “Chair.” Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 2 of 20 Civil No. 14-1040 (FAB) 2 Garcia-Padilla of the Popular Democratic Party (“PDP”) was subsequently elected as Governor of Puerto Rico, and with the changing political tides, new laws have emerged designed to usher the Governor’s political supporters into office.2 Law 180-2013 is one such law. Enacted on December 20, 2013, Law 180-2013 changed the PRIC’s Chair’s term from six-years to “free removal.” (Docket No. 15-1.) On Tuesday, January 14, 2014,3 defendant Grace Sylvette Lozada-Crespo served upon Torres-Rivera a copy of a letter informing him that by virtue of Law 180-2013, his position as PRIC’s Chairman was one of free removal. The letter, which was dated Saturday, January 11, 2014 and signed by defendant Governor Garcia-Padilla, informed Torres-Rivera that he “may continue to hold the position of Commissioner,” but that the Governor had appointed a new Chair. (Hearing Exhibit No. 4.) Torres-Rivera testified that Lozada-Crespo then verbally informed him that the Governor had designated her as the new PRIC Chair and provided him with the original letter, which he had requested. She required 2 This is the third case of its kind to reach this Court’s doors since defendant Governor has taken office. The Court notes that the operative facts in this case are similar to those in Diaz- Carrasquillo v. Hon. Alejandro Garcia-Padilla, Civil No. 13-1646 (Dominguez, J.), and Montañez-Allman v. Garcia-Padilla, 2013 U.S. Dist. LEXIS 151035, 2013 WL 5719153 (D.P.R. Oct. 18, 2013) (Perez- Gimenez, J.). 3 Monday, January 13, 2014 was a Commonwealth holiday and government agencies were closed. Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 3 of 20 Civil No. 14-1040 (FAB) 3 Torres-Rivera to surrender control of the keys to his office, documents, files, equipment, materials, funds, property, and any other agency resources to her. When Torres-Rivera initially resisted and informed Lozada-Crespo that he would contest her designation and would not surrender control of the agency resources to her, a certain Ramon Santiago, who had accompanied Lozada- Crespo, indicated to Torres-Rivera that he could be arrested and removed by court bailiffs or department of justice Special Investigations Bureau agents. At the end of the day, after Torres- Rivera presided over the hearings he had scheduled that day, he surrendered his office and resources as he had been requested to do by Lozada-Crespo. Two days later, on January 16, 2014, Torres-Rivera filed a complaint in this Court, seeking declaratory and injunctive relief as well as compensatory and punitive damages pursuant to 42 U.S.C. § 1983; 28 U.S.C. §§ 2201–02; the First, Fifth and Fourteenth Amendments to the U.S. Constitution; and article II, section I of the Bill of Rights of the Constitution of Puerto Rico. He claims that defendant Governor infringed upon his proprietary right to and continued expectancy of employment as Chair by unlawfully removing him from his position as PRIC’s Chair without just cause or prior notice. Consequently, Torres-Rivera requested the Court to issue a temporary restraining order (“TRO”) directing the Governor to vacate Lozada-Crespo’s appointment as PRIC’s Chair and allow Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 4 of 20 Civil No. 14-1040 (FAB) 4 Torres-Rivera to remain in his position as Chair. The Court granted the TRO on January 17, 2014 and scheduled the preliminary injunction hearing for January 31, 2014 at 9:00 a.m. That morning, the parties appeared before the Court for the preliminary injunction hearing. Plaintiff submitted five exhibits at the hearing without objection by the defendants. Both plaintiff Torres-Rivera and defendant Lozada-Crespo testified under oath. Plaintiff Torres-Rivera also clarified at the hearing that he seeks a preliminary injunction on the basis of his Due Process claim alone. After careful consideration, the Court now GRANTS plaintiff’s request for a preliminary injunction against defendants. II. LEGAL STANDARD The general purpose of injunctive relief is to prevent future acts or omissions of the non-movant that violate the law or constitute harmful conduct. United States v. Oregon Med. Soc., 343 U.S. 326, 333 (1952). A preliminary injunction “is traditionally viewed as relief of an extraordinary nature and does not purport to be a disposition of the matter on its merits.” Sanchez v. Esso Std. Oil Co., 572 F.3d 1, 14 (1st Cir. 2009) (internal citation omitted). In order to grant a preliminary injunction, a district court must consider the following four factors: (1) the likelihood that the party requesting the injunction will succeed on the merits; (2) the potential for irreparable harm if the injunction is Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 5 of 20 Civil No. 14-1040 (FAB) 5 denied; (3) the hardship to the movant if enjoined compared to the hardship to the movant if injunctive relief is denied; and (4) the effect of the Court’s ruling on the public interest. Id. While no single factor is dispositive, the First Circuit Court of Appeals has indicated that the first factor is the sine qua non of the preliminary injunction test. See Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). III. PRELIMINARY INJUNCTION REQUEST BASED ON DUE PROCESS A. Likelihood of Success on the Merits To receive a preliminary injunction based on alleged violations to the due process guarantees of the Fourteenth Amendment, plaintiff Torres-Rivera must first establish a substantial likelihood that he will succeed on the merits. Pursuant to the Due Process Clause of the Fourteenth Amendment, “persons who possess a property interest in continued public employment cannot be deprived of that interest without due process of law.” Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5–6 (1st Cir. 2000) (internal citation omitted). “It is well established, both in Puerto Rico and in federal law, that a person has secured a property right in his employment if he has an expectation of continuity in said employment.” Quiles-Rodriguez v. Calderon, 172 F. Supp. 2d 334, 344 (D.P.R. 2001) (Pieras, J.) (internal citations omitted) (finding that the Governor may not remove the Chair of the Public Service Commission, an employee appointed by the Governor to Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 6 of 20 Civil No. 14-1040 (FAB) 6 a term position, before the end of that term). Torres-Rivera must first demonstrate that he had a reasonable expectation of continued employment as the PRIC’s Chair for a six-year term in order to succeed on the merits. See Acevedo-Feliciano v. Ruiz-Hernandez, 447 F.3d 115, 121 (1st Cir. 2006) (“In a due process 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.’”) (quoting Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 101 (1st Cir. 2002)). He then must establish that he was fired without notice and without an opportunity to contest his removal. Acevedo-Feliciano, 447 F.3d at 121 (“In the public employment context, the required process typically includes ‘some kind of hearing’ and ‘some pretermination opportunity to respond.’”) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). The Court addresses each element in turn. 1. Expectation of Continued Employment The foundation of Torres-Rivera’s due process claim is Law 45, the statute that created the PRIC. At the time of Torres-Rivera’s appointment, it provided, in relevant part: I. Services organizations.— The following entities shall be in charge of rendering compensation services to workers and employees: .... (b) Industrial Commission.— Case 3:14-cv-01040-FAB Document 23 Filed 01/31/14 Page 7 of 20 Civil No. 14-1040 (FAB) 7 (1) Creation and organization.— A Commission is hereby created, to be denominated as the ‘Puerto Rico Industrial Commission,’ constituted by five (5) Commissioners appointed by the Governor with the advice and consent of the Senate of Puerto Rico, who shall be attorneys-at-law duly admitted to the bar in Puerto Rico.