PEDRO MÉNDEZ-SOTO, President of the Junta de Técnicos del Registro de la Propiedad, Inc. v. ANABELLE RODRÍGUEZ, in her personal capacity

Of the Eighth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 04-2351
PEDRO MÉNDEZ-SOTO, President of the Junta de Técnicos del
Registro de la Propiedad, Inc.; ALBERTO MEDINA-VELÁZQUEZ, Vice-
President of the Junta de Técnicos del Registro de la Propiedad,
Inc.; JUNTA DE TÉCNICOS DEL REGISTRO DE LA PROPIEDAD, INC.,
representing 300 Property Registry Technicians,
Plaintiffs, Appellants,
v.
ANABELLE RODRÍGUEZ, in her personal capacity and as Secretary of
the Department of Justice of Puerto Rico; DELIA CASTILLO-DE-
COLORADO, in her personal capacity and as Property Registry
Director of the Department of Justice of Puerto Rico; DELIABEL
APONTE-TORRES, in her personal capacity and as Human Resources
Director of the Department of Justice of Puerto Rico;
PERSONS A-Z,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Hansen, Senior Circuit Judge. *
Francisco R. González with whom Miguel A. Verdiales-Morales,
Válery López-Torres and F.R. González Law Office were on brief for
appellants.
Jorge Martínez-Luciano, Civil Rights Legal Task Force, with

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whom Roberto Sánchez-Ramos, Secretary of Justice, was on brief for
appellees.
May 9, 2006

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BOUDIN, Chief Judge. This is an appeal from the district
court's dismissal of a law suit brought on behalf of technicians
working for the Property Registry of Puerto Rico. The Property
Registry is attached to the Puerto Rico Department of Justice ("the
Department"), and the defendants in the law suit were officials of
the Department. The pertinent events can be quickly summarized.
In 2000, the Puerto Rico legislature passed Law No. 363
("Law 363"), giving the technicians a 100 percent salary increase
effective July 1, 2001. The governor sought repeal, and on June
25, 2001, as the governor's request was being debated, some 300 of
the technicians went to the legislature to lobby against repeal.
The technicians claim to have filed leave forms, charging time off
as vacation or other permitted leave, but after the repeal effort
was defeated, disciplinary action was taken.
Eventually, 47 technicians were docked one day of pay and
suspended for three days (and an additional number of technicians
were threatened with the same sanctions) after the Department
determined that they did not have proper authorization to support
their absences. The plaintiffs--an association of technicians and
two of its officers--brought suit against a number of officials of
the Department, claiming retaliation in violation of the
technicians' first amendment and due process rights relating both
to the discipline and a separate claim of withheld benefits (yet to
be described).

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Cross-motions were filed and referred to a magistrate
judge, who recommended that a defense motion for summary judgment
on the disciplinary claims be granted in part and denied in part.
As to the separate claim for withheld benefits, the magistrate
judge construed this as one made under Puerto Rico law--
specifically, Law 363 itself--and recommended that the claim be
dismissed as barred by the Eleventh Amendment. Both sides sought
review of the magistrate judge's report and recommendation.
Then, in August 2002, the Department sent a letter to the
affected technicians, notifying them that all existing and proposed
disciplinary sanctions would be lifted. The Department
nevertheless asserted that the technicians had acted improperly and
said that it retained authority to sanction anyone who took leave
without proper authorization. The 47 technicians who had already
been disciplined appear to have been repaid any docked wages, while
those technicians threatened with disciplinary action were informed
that no sanctions would be imposed.
After additional briefing, the district court dismissed
the main claims on grounds of mootness, Mendez Soto v. Rodriguez,
306 F. Supp. 2d 120, 125 (D.P.R. 2004) ("Mendez-Soto I"), and
denied reconsideration, 334 F. Supp. 2d 62, 72 (D.P.R. 2004)
("Mendez-Soto II"). As to what it understood as the separate claim
for withheld benefits under Puerto Rico law, the district court
declined to exercise supplemental jurisdiction, 28 U.S.C. §

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1367(c)(3) (2000). Mendez-Soto I, 306 F. Supp. 2d at 125. This
appeal followed.
On appeal, the technicians say that the case was not
moot, a claim we review de novo. Ramírez v. Sanchez Ramos, 438
F.3d 92, 96-97 (1st Cir. 2006). Their main argument is that the
Department's conduct may be expected to recur; the technicians
point out that the Department continues to defend its conduct and
its authority to discipline for unauthorized absences.
Because the alleged mootness was brought about by
voluntary action of the Department, it has the "formidable" burden
to show that the challenged conduct "could not reasonably be
expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); Adams v. Bowater
Inc., 313 F.3d 611, 613 (1st Cir. 2002). The circumstances of the
mass lobbying effort, however, are peculiar, and a direct
repetition of these events is hardly to be expected.
A principal reason for deciding a case where compensation
and coercive remedies (that is, damages and injunctive relief) have
no role is to provide guidance for the future. See Step-Saver Data
Sys., Inc. v. Wyse Tech., 912 F.2d 643, 649 (3d Cir. 1990) ("The
idea behind the [Declaratory Judgment] Act was to clarify legal
relationships so that plaintiffs (and possibly defendants) could
make responsible decisions about the future.”). That discipline or
retaliation may occur in different circumstances is thus no

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argument against mootness. Furthermore, even if the case were not
moot, affording purely declaratory relief would still be a matter
of equitable discretion. Hartford Fire Ins. Co. v. R.I. Pub.
Transit Auth., 233 F.3d 127, 130 (1st Cir. 2000).
Conservation Law Foundation v. Evans, 360 F.3d 21 (1st
Cir. 2004), relied upon by the technicians, is easily
distinguished. There, a rule promulgated by the use of a disputed
procedure expired and was re-promulgated through different means.
Id. at 23-24, 26. However, the agency continued to maintain that
the disputed procedure was valid, creating a reasonable likelihood
of recurrence. Id. at 26-27. The agency's use of the same
procedure in the future, which was fairly predictable, would bring
up the identical question, whereas the peculiar circumstances here
are unlikely to recur.
The technicians also say in passing that their harms were
not sufficiently compensated by repayment of any lost wages, but
they never seriously develop such an argument, and it is thus
forfeit. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142
F.3d 26, 43 (1st Cir. 1998). We add that the suggestion of non-
monetary loss--emotional damages–-is unimpressive in the context of
an economic or labor dispute, although in some contexts such
damages may be recoverable under 42 U.S.C. § 1983. Chemerinsky,
Federal Jurisdiction § 8.11, at 580 & n.14 (4th ed. 2003)
(collecting cases).

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A variant, which might have served the technicians
better, would have been to argue that a claim for punitive damages
remained alive, but no such claim is pressed on the appeal. Once
again, the claim is hardly promising: the Department offered
informal hearings before disciplinary action was imposed and
distinguished between those who it thought had authorization for
their absence and those who did not. This would hardly be a
straightforward case for punitive damages.
The more interesting question on this appeal concerns the
secondary claim for withheld benefits. According to the
technicians, Law 363 assigned $10.6 million to the Department to be
disbursed to the technicians in fiscal years 2001 and 2002 (with
the fiscal year running from July 1 onward); the technicians allege
that starting in August 2001, the Department disbursed only $5
million of this allocation in these years, withholding potential
extra payments such as bonuses, differentials, and merit increases.
Thereafter, on October 17, 2002, the Puerto Rico
legislature reassigned to other uses the surplus Law 363 funds from
fiscal years 2001 and 2002. It thus appears that the Department no
longer has the funds originally available to pay for bonuses and
other extra-base salary payments. The technicians say that the
original failure to pay was itself retaliation by the Department
warranting damages from the individual defendants.

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The magistrate judge found: "A review of both plaintiffs' 1
complaint and amended complaint indicates that the claim for merit,
seniority, bonuses and other benefits as a salary increase is a
claim against state officials brought under state law. It is
brought under Law 363. The amended complaint cannot be clearer in
requesting the exercise of pendent jurisdiction over that claim."
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This claim does not appear to be moot, but the attempt to
assert it as a federal claim comes too late in the day. Fairly
read, the technicians' complaint put forward the claim based on the
withholding of benefits as one invoking the district court's
"supplemental jurisdiction"--that is, one arising under Puerto Rico
law. The district court, in its original decision dismissing the 1
main retaliation claims as moot, declined to exercise supplemental
jurisdiction. Mendez-Soto I, 306 F. Supp. 2d at 125.
On reconsideration in the district court, the technicians
referred to the legislative repeal, but the district court appeared
to regard this as a separate attack on the legislature's
reassignment of funds, over which the defendants had no control.
Mendez-Soto II, 334 F. Supp. 2d at 68-69. On appeal, the
technicians offer little more than a cursory response to this
characterization, along with an opaque passage referring us
(unhelpfully) to Ex Parte Young, 209 U.S. 123 (1908).
Whatever interesting questions would be raised by a
federal claim based on the withheld benefits, the technicians
cannot now convert their original withheld benefits claim under
Puerto Rico law into an independent federal claim under the first

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amendment. The magistrate judge and the district judge both
reasonably construed the complaint as asserting a claim under
Puerto Rico law, which was then properly dismissed when the main
federal claim became moot. 28 U.S.C. § 1367(c)(3).
Affirmed.

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