Delgado-Greo v. Trujillo, (1st Cir. 2005)

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United States Court of Appeals

For the First Circuit

No. 03-2568

ERICK CARABALLO-SEDA, ET AL.,

Plaintiffs, Appellees,

v. MUNICIPALITY OF HORMIGUEROS, ET AL.,

Defendants, Appellants.

No. 03-2569



EDNA S. DELGADO-GREO, ET AL.,

Plaintiffs, Appellees,

v. MARCELO TRUJILLO, ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Lipez, and Howard,

Circuit Judges.

Gina Ismalia Gutiérrez-Galang, with whom Law Offices of

Pedro E. Ortiz-Álvarez, PSC, was on brief, for appellants.

Pablo R. Landrau-Pirazzi, with whom Aldarondo & López-Bras,

was on brief, for appellees.

January 12, 2005

TORRUELLA, Circuit Judge. Defendants appeal from

interlocutory judgments denying their motions to dismiss for lack

of jurisdiction. The district court certified for interlocutory

appeal, pursuant to 28 U.S.C. § 1292(b), the issue of whether the

Workforce Investment Act ("WIA"), 29 U.S.C. §§ 2801-2945, requires

plaintiffs to exhaust administrative remedies before bringing a

claim under 42 U.S.C. § 1983 for violation of their First Amendment

rights. Since we see no reason to depart from our general rule

prohibiting interlocutory appeals from the denial of a motion to

dismiss, we vacate the order allowing the interlocutory appeal as

improvidently granted.

I. Background

Defendants in this case are non-profit partnerships

between neighboring municipalities in Puerto Rico; these

partnerships -- or consortiums, as they are termed -- are overseen

by the municipalities' mayors and administered by various executive

officers, all of whom are also defendants. The consortiums operate

under WIA, the purpose of which is "to provide workforce investment

activities, through statewide and local workforce investment

systems, that increase the employment, retention, and earnings of

participants, and increase occupational skill attainment by

participants, and, as a result, improve the quality of the

workforce [and] reduce welfare dependency." 29 U.S.C. § 2811. The

consortiums employ administrative staff ("plaintiffs") on a one-year contract basis to provide services to WIA program

beneficiaries.

As a result of the November 7, 2000 general election, the

consortiums underwent a shift in political power, from the New

Progressive Party ("NPP") to the Popular Democratic Party ("PDP").

Following these events, defendants discharged plaintiffs' contracts

with the consortiums.

Plaintiffs subsequently sued under § 1983, the First and

Fourteenth Amendments of the U.S. Constitution, and Puerto Rico

law, alleging that political discrimination spurred these personnel

decisions. Defendants moved to dismiss for lack of subject matter

jurisdiction, arguing that WIA precludes § 1983 claims because WIA

provides the exclusive administrative procedure for discrimination

claims.

The court denied defendants' motions to dismiss, holding

that Congress did not expressly or implicitly intend to foreclose

§ 1983 claims under WIA. Caraballo-Seda v. Rivera, 306 F. Supp. 2d

108 (D.P.R. 2004); see also Delgado-Greo v. Trujillo, 270 F. Supp.

2d 189 (D.P.R. 2003). (1) The court, however, granted defendants'

motion for certification of interlocutory appeal pursuant to 28

U.S.C. § 1292(b) on this determination. The court's order stated

that this issue "involves a question of law as to which there is

substantial ground for difference of opinion," and that an

immediate appeal "may materially advance the ultimate determination

of the litigation." This Court granted defendants' petition to

hear the discretionary appeal on November 18, 2003, and for the

reasons set forth below, we vacate that order.

II. Analysis

Interlocutory appeals under § 1292(b) require an order

(1) "involv[ing] a controlling question of law," (2) "as to which

there is substantial ground for difference of opinion," and (3) for

which "an immediate appeal from the order may materially advance

the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

We have repeatedly emphasized that "interlocutory certification

under 28 U.S.C. § 1292(b) should be used sparingly and only in

exceptional circumstances, and where the proposed intermediate

appeal presents one or more difficult and pivotal questions of law

not settled by controlling authority." Palandjian v. Pahlavi, 782

F.2d 313, 314 (1st Cir. 1986) (quoting McGillicuddy v. Clements,

746 F.2d 76 n.1 (1st Cir. 1984) (citing In re Heddendorf, 263 F.2d

887, 888-89 (1st Cir. 1959))).

As a general rule, we do not grant interlocutory appeals

from a denial of a motion to dismiss. McGillicuddy, 746 F.2d at 76

n.1. In McGillicuddy, a case involving a denial of a motion to

dismiss a multi-count complaint, we held that the district court

should not have considered the interlocutory appeal in the first

place: "[w]e would not normally allow an appeal from a denial of a

motion to dismiss, and, with the benefit of hindsight, we admit our

error in doing so in this case." Id. This reflects our policy

preference against piecemeal litigation, see Heddendorf, 263 F.2d

at 889, as well as prudential concerns about mootness, ripeness,

and lengthy appellate proceedings. Thus, the "fact that

appreciable trial time may be saved is not determinative,"

Palandjian, 782 F.2d at 314, and neither is the fact that the case

has "tremendous implications" or "might materially advance the

ultimate termination of the litigation," Slade v. Shearson, Hammill

& Co., Inc., 517 F.2d 398, 400 (2d Cir. 1974).

In the instant case, we see no reason to depart from our

general rule prohibiting interlocutory appeals from the denial of

a motion to dismiss. Although the issue of whether WIA expressly

or implicitly forecloses § 1983 suits is a "controlling question of

law," it has not met the other two factors of § 1292(b). The fact

that two other district courts in Puerto Rico have arrived at a

similar holding regarding WIA's non-preclusive effect on § 1983

claims, see Borrero-Rodríguez v. Montalvo-Vázquez, 275 F. Supp. 2d

127 (D.P.R. 2003); Torres Ramos v. Consorcio de la Montaña, 286 F.

Supp. 2d 126 (D.P.R. 2003), supports a finding that no "substantial

ground for difference of opinion" exists. 28 U.S.C. § 1292(b).

Moreover, since the rest of the claims based on the same underlying

facts have proceeded in the district court, the interlocutory

appeal on the WIA issue does not "materially advance the ultimate

termination of the litigation." Id. Finally, we emphasize that

interlocutory appeals are granted at our "discretion," id. ("The

Court of Appeals which would have jurisdiction of an appeal of such

action may thereupon, in its discretion, permit an appeal to be

taken from such order") (emphasis added), and "with the benefit of

hindsight, we admit our error in doing so in this case," cf.

McGillicuddy, 746 F.2d at 76, n.1. Thus, we vacate the initial order granting the

interlocutory appeal as improvidently granted, and remand the issue

to the district court for adjudication.

Vacated and Remanded.

1. Two other district courts in Puerto Rico arrived at similar

holdings. See Borrero-Rodríguez v. Montalvo-Vázquez, 275 F. Supp.

2d 127 (D.P.R. 2003); Torres Ramos v. Consorcio de la Montaña, 286

F. Supp. 2d 126 (D.P.R. 2003).

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