United States Court of Appeals For the First Circuit

No. 17-1769

ANTONIO BORRÁS-BORRERO; IVELISSE SERRANO-RODRÍGUEZ; CONJUGAL PARTNERSHIP BORRÁS-SERRANO,

Plaintiffs, Appellants,

v.

CORPORACIÓN DEL FONDO DEL SEGURO DEL ESTADO; LIZA ESTRADA-FIGUEROA; MIGDALI RAMOS-RIVERA; FRANCISCO IRLANDA-MÉNDEZ; MARÍA ENID BARRETO-RODRÍGUEZ; JUAN ESCOBAR-DEL VALLE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

Rafael E. Rivera-Sánchez for appellants. Carlos Lugo-Fiol, with whom Isaías Sánchez-Báez, Solicitor General, was on brief, for appellees Lisa Estrada-Figueroa, Migdali Ramos-Rivera, Francisco Irlanda-Méndez, María Enid Barreto-Rodriguez, and Juan M. Escobar-Del Valle. Peter W. Miller, with whom Javier A. Vega-Villalba, Stuart A. Weinstein-Bacal, and Weinstein-Bacal, Miller & Vega, P.S.C. were on brief, for appellee Corporación del Fondo del Seguro del Estado.

May 1, 2020 HOWARD, Chief Judge. Antonio Borrás-Borrero appeals the

district court's dismissal of his complaint1 alleging that the

Corporación del Fondo del Seguro del Estado (the "SIFC"2), along

with its administrators (the "Individual Defendants"), conspired

to deprive Borrás of his First, Fourth, Fifth, and Fourteenth

Amendment rights. Specifically, Borrás asserts that several

adverse employment actions taken against him by the SIFC — a

demotion, suspension with pay, and suspension without pay — were

acts of retaliation to punish him for his constitutionally-

protected whistleblowing activities.

We address the claims in two sets: first, we summarily

affirm the district court's dismissal of the following claims

because Borrás has failed to "seriously develop[]" arguments in

their favor on appeal: (1) deliberate and intentional infliction

of economic and emotional injury; (2) violation of Borrás's Fifth

Amendment right against self-incrimination; (3) impermissible

disclosure of Borrás's personnel file; and (4) malicious

prosecution. Tejada-Batista v. Morales,

, 103 (1st

1 In addition to Borrás, his wife, Ivelisse Serrano-Rodríguez, and the partnership between them are also plaintiffs and appellants. Outside of allegations that Serrano was improperly transferred to a different office, the complaint describes conduct directed at Borrás, and we refer to the claims as belonging to Borrás for simplicity. 2 "Corporación del Fondo del Seguro del Estado" translates to the "State Insurance Fund Corporation."

- 2 - Cir. 2005) (stressing that "[a]n argument not seriously developed

in the opening brief" is lost); see also Rodríguez v. Mun. of San

Juan,

(1st Cir. 2011) (holding that arguments

"adverted to in a cursory fashion, unaccompanied by developed

argument," are waived).

Next, for the reasons discussed below, we also affirm

the district court's dismissal of the remaining claims, although

we vacate the district court's dismissal of the Puerto Rico law

claims with prejudice and remand with instructions to dismiss those

claims without prejudice.

I. Factual History

The SIFC is a public governmental agency created under

Puerto Rico law to administer workers' compensation and medical

treatment programs for employees injured in the workplace. Borrás

has been an SIFC employee since 1984. The Individual Defendants,

also employees of the SIFC, include: (1) Liza Estrada-Figueroa,

the head Administrator of the SIFC; (2) Migdali Ramos-Rivera, the

Associate Director of the SIFC's Labor Relations Office under

Estrada's direct supervision; (3) Francisco Irlanda-Méndez, an

officer in the Labor Relations Office under Ramos's direct

supervision; (4) Juan Escobar-del Valle, a janitor and internal

messenger; and (5) María Enid Barreto-Rodríguez, a Regional

Director under Estrada's direct supervision, who, at all times

- 3 - relevant to the complaint, was the regional director for Borrás

and Escobar.

Two allegedly retaliatory actions by the SIFC comprise

the basis of Borrás's complaint. The first took place in 2010.

Early that year, soon after his promotion to supervisor of his

office, which produced worker's compensation policies for

employers, Borrás reported to the SIFC's audit division that an

employee named Nury Curet, whom he supervised, had been absent for

two days. According to Borrás, following his report documenting

Curet's absence, Curet's husband approached Borrás in his office

"full of rage" and attempted to physically assault him. Borrás

reported this incident both to the SIFC's internal Labor Relations

Office and to law enforcement. However, when the police came to

take Borrás's complaint, SIFC administrators told them that the

incident would be handled internally.

Shortly after this incident, the Regional Director of

Borrás's office allegedly told Borrás that he would be demoted

from his position as supervisor because of "his political

affiliation with the Popular Democratic Party." According to

Borrás, the Regional Director added that the incident with Curet

and her husband "had precipitated his demotion." The relationship

between Borrás's political affiliation and the incident with Curet

remains unclear from the complaint. Thereafter, Borrás was removed

from his post as supervisor and reassigned to his previous union-

- 4 - protected position. In response, Borrás filed a lawsuit against

the SIFC — unrelated to this one — alleging that he had been

impermissibly demoted because of his political affiliation.3

The second allegedly retaliatory act against Borrás took

place in 2014. According to Borrás, Defendant Juan Escobar-del

Valle had been engaged in a "pattern of hostilities" towards Borrás

for several years. In March 2014, these hostilities escalated

when Escobar allegedly "tried to assault and batter" Borrás at a

shopping mall and again at work the next day. Borrás reported

these incidents to the internal Labor Relations Office, as well as

to the Regional Director in charge of his office. Borrás alleges

that the SIFC failed to investigate these events.

On August 29, 2014, Borrás found himself in yet another

physical altercation with Escobar, this time at a union assembly

meeting. According to Borrás, Escobar deliberately bumped into

him and then used the bump to start a fight, "physically

assault[ing]" Borrás and hitting him in the face. Borrás sustained

"bruises and injuries to his eyes, especially his left eye that

3The complaint describes two additional incidents following Borrás's demotion but before 2013. First, Borrás again reported Curet for fraudulent expense practices and Borrás's immediate supervisor failed to investigate Borrás's complaint. Second, Borrás claims that Defendant María Enid Barreto-Rodríguez, who was coordinating political donations for the office, failed to deliver $1,100 in donations made by Borrás that were intended for the Popular Democratic Party. It is not clear what role, if any, Borrás alleges these incidents played in either his earlier demotion or his years-later suspensions.

- 5 - had been operated [on] for glaucoma." This time, Borrás reported

the incident to the police.

Borrás alleges that after this incident, Escobar

contacted Defendant Maria Enid Barreto-Rodríguez (then the

Regional Director of the SIFC office in which Borrás and Escobar

worked) to inform her of the fight. Borrás further alleges that

after receiving this information, Barreto turned to Defendant

Migdali Ramos-Rivera (then the Chief of the Labor Relations

Office), asking her to fabricate disciplinary charges against

Borrás "as if [Borrás] had been the assailant." Finally, Borrás

alleges that Ramos assigned the task of creating a falsified

disciplinary action to Defendant Francisco Irlanda-Mendez (then an

employee at the Labor Relations Office for the SIFC), who did as

he was asked.

Four days after the fight at the union assembly meeting,

Irlanda summoned Borrás for an interview regarding the incident.

Borrás refused to speak to Irlanda about the physical altercation,

citing his Fifth Amendment right against self-incrimination and

explaining that because there was an ongoing criminal

investigation by the San Juan Municipal police, he did not know if

he would be charged. The next day, September 3, 2014, Borrás

received a letter indicating that, as a result of the fabricated

assault allegations against him, he had been suspended from work,

with pay.

- 6 - On September 11, 2014, criminal charges were filed

against Escobar in Puerto Rico court for the alleged assault. At

one point, the judge instructed Ramos, who was present in the

courtroom for a discovery conference, to produce a copy of Borrás's

personnel file for in camera inspection. Ramos complied, giving

the file directly to Escobar's attorney, despite Borrás's protests

that the production of his personnel file constituted a violation

of both his privacy rights and SIFC policy. The court ultimately

found Escobar not guilty.

Borrás also alleges that while all of this was going on,

the SIFC "unlawfully transferr[ed]" his wife, Plaintiff Ivelisse

Serrano-Rodríguez, to a different regional office, allegedly in

retaliation for her testimony during the trial. Serrano

immediately filed an internal complaint challenging her transfer,

and she was reinstated to her original post.

On September 22, 2014, the SIFC held a Loudermill hearing

for Borrás. The examiner at the hearing ultimately recommended

that Borrás be suspended without pay for sixty days. Shortly

thereafter, Boráas received a letter signed by Estrada notifying

him of his suspension without pay, which adopted by reference the

recommendation made by the hearing examiner.

II. Procedural History

In January 2016, Borrás filed the present complaint in

the United States District Court for the District of Puerto Rico,

- 7 - alleging that the SIFC and its officers had conspired to deprive

him of his constitutional rights. Specifically, Borrás asserted

that his internal and external reporting of the various incidents

were constitutionally-protected "whistleblowing activities," and

that the SIFC and its administrators had punished him for these

activities by demoting and suspending him. The complaint includes

claims brought under

("Section 1983") that the

SIFC and its administrators' behavior violated the U.S.

Constitution, as well as claims that the SIFC violated Puerto Rico

law.

The SIFC moved to dismiss Borrás's complaint based on

Eleventh Amendment immunity. A few weeks later, the Individual

Defendants followed suit, filing a "Motion for Joinder and Motion

to Dismiss under Additional Grounds." Borrás timely filed his

opposition to each motion. In his response to the Individual

Defendants' motion, Borrás referenced the need to amend his

complaint. Nevertheless, despite the ability to amend the

complaint "once as a matter of course" under Fed. R. Civ. P.

15(a)(1), at no point did Borrás actually amend his complaint or

request leave to file an amended complaint.

The district court entered a partial judgment granting

the SIFC's motion to dismiss based on Eleventh Amendment immunity

on March 22, 2017, and a judgment dismissing the entire case with

prejudice on June 14, 2017. This appeal followed.

- 8 - III. Discussion

In this appeal, we consider five key issues. First, we

discuss the possibility that the SIFC may be insulated from suit.

Second, we consider whether the district court properly dismissed

Borrás's Section 1983 claims. Third, we consider whether the

district court properly declined to exercise supplemental

jurisdiction over Borrás's claims under Puerto Rico law. Fourth,

we consider the merits of Borrás's claim that his Loudermill

hearing did not comport with the requirements of due process

because he was not afforded a hearing in an impartial forum before

an impartial adjudicator. Finally, we consider whether the

district court violated Borrás's due process rights by denying him

the opportunity to amend his complaint before dismissing it with

prejudice.

A. Standard of Review

We review the district court's dismissal of Borrás's

complaint for failure to state a claim de novo. Cortés-Ramos v.

Martin-Morales,

(1st Cir. 2018). "The make-or-

break standard . . . is that the combined allegations, taken as

true, must state a plausible, not a merely conceivable, case for

relief." Sepulveda-Villarini v. Dep't of Educ. of P.R.,

(1st Cir. 2010) (citing Ashcroft v. Iqbal,

(2009)).

- 9 - The familiar Twombly standard clarifies that under Fed.

R. Civ. P. 12(b)(6), a complaint must allege a "plausible

entitlement to relief." Bell Atlantic Corp. v. Twombly,

(2007). In evaluating whether a plaintiff has met this

burden, we "accept[] the complaint's well-pleaded facts as true

and indulg[e] all reasonable inferences in the plaintiff's favor."

Cook v. Gates,

(1st Cir. 2008). Even so, the tenet

that a court must accept as true all of the allegations contained

in a complaint is "inapplicable to legal conclusions," and

"[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice." Iqbal,

(citing Twombly,

). In other words,

"[i]f the factual allegations in the complaint are too meager,

vague, or conclusory to remove the possibility of relief from the

realm of mere conjecture, the complaint is open to dismissal."

Artuso v. Vertex Pharm., Inc.,

(1st Cir. 2011)

(quoting Secs. and Exch. Comm'n v. Tambone,

(1st

Cir. 2010)).

B. The SIFC's Amenability to Suit

Before we reach the merits of the Section 1983 claim, we

must first discuss two preliminary arguments that could

potentially insulate the SIFC from suit altogether.

First, the SIFC asserts that it can benefit from the

Commonwealth's Eleventh Amendment immunity because it is an "arm

- 10 - of the state." Fresenius Med. Care Cardiovascular Res., Inc. v.

P.R. and Caribbean Cardiovascular Ctr. Corp.,

(1st

Cir. 2003) (finding that whether a public entity is entitled to

Eleventh Amendment immunity is an inquiry into whether it is an

arm of the state). Indeed, "Puerto Rico is treated as a state for

Eleventh Amendment purposes,"

and the district court

dismissed the claims against the SIFC based on its entitlement to

protection under the Commonwealth's immunity.

Nevertheless, determining whether the SIFC is entitled

to Eleventh Amendment immunity is not straightforward: in separate

cases, the District of Puerto Rico has decided the issue in both

directions. Compare Joubert-Vazquez v. Alvarez-Rubio,

(D.P.R. 2011) (finding that the SIFC was not

entitled to Eleventh Amendment immunity), with Borrás-Borrero v.

State Ins. Fund Corp., CIVIL 16-1114CCC,

, at *1

(D.P.R. March 22, 2017) (finding that the SIFC was entitled to

Eleventh Amendment immunity) (citing Order, Bisbal-Bultron v.

State Ins. Fund Corp., CIVIL 10-01555CCC, ECF No. 80, at *2-3

(D.P.R. May 6, 2014)). But "it is well-established under First

Circuit precedent that federal courts may resolve a case on the

merits in favor of a state without first resolving any Eleventh

Amendment issues the state raises." Brait Builders Corp. v. Mass.,

Div. of Capital Asset Mgmt.,

(1st Cir. 2011) (citing

Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys.,

, 53-57

- 11 - (1st Cir. 1999)). As a result, we may "defer thorny Eleventh

Amendment questions in cases in which it is perfectly clear that

the state entity will prevail on the merits." Dávila v.

Corporación de P.R. para la Difusión Pública,

(1st

Cir. 2007) (citing Parella,

).

Because we comfortably conclude that Borrás's Section

1983 claims lack substantive merit, we decline to address whether

the SIFC may assert the Commonwealth's Eleventh Amendment

immunity.

Second, the Puerto Rico Oversight, Management, and

Economic Stabilization Act ("PROMESA"), enacted to help the

Commonwealth navigate its public debt crisis, included an

automatic stay of ongoing litigation that could result in the

Commonwealth incurring liability. See

(b). While

the SIFC references the stay and argues that we should interpret

PROMESA to strengthen its Eleventh Amendment immunity argument,

the SIFC does not argue that this action should be stayed under

PROMESA. Both Borrás and the Individual Defendants similarly do

not argue that the PROMESA stay prevents us from addressing the

claims against the SIFC on the merits.

While we are not bound by the parties' collective failure

to discuss applicable law, we are generally reluctant to venture

beyond the ambit of the parties' arguments to decide an issue

without full briefing. See Whyte v. Conn. Mut. Life Ins. Co., 818

- 12 - F.2d 1005, 1011 n.20 (1st Cir. 1987) (declining to address an issue

not raised by the parties unless "at a minimum . . . not raising

the issue would result in a gross miscarriage of justice"). That

reluctance is particularly warranted where, as here, the

underlying legal issue is not clear-cut: it is not obvious that

the Commonwealth should be considered an "obligor[] or guarantor"

of liability incurred by the SIFC, a prerequisite for the stay to

apply.

(a)(1)(A). Furthermore, though we do not

decide the issue, we are skeptical that the PROMESA stay's

prohibition of "the commencement or continuation, including the

issuance or employment of process, of a judicial . . . action,"

(b)(1), requires the automatic implementation of the

stay in lieu of dismissal on the merits. Cf. In re Pecan Groves

of Ariz.,

(9th Cir. 1991) (finding that creditors

were unable to attack purported violations of an automatic

bankruptcy stay under

because the stay was intended

to benefit the debtor).

Because the parties do not argue that the PROMESA stay

applies to this litigation, and because the implementation of the

stay is not clear-cut, we bypass this argument and proceed to the

merits of Borrás's claims.

C. Borrás's Section 1983 Claims

On the merits, we begin with whether the district court

properly dismissed Borrás's Section 1983 claims. Despite the

- 13 - litany of constitutional claims alleged in his complaint, Borrás

advances a single argument on appeal: that the SIFC and the

Individual Defendants violated his freedom of expression by

retaliating against him for speaking out against his fellow

employees.

Borrás is correct that government officials may not

retaliate against an individual for blowing the whistle and

reporting misconduct by other employees. See Mercado-Berrios v.

Cancel-Alegría,

(1st Cir. 2010) (citing Hartman v.

Moore,

(2006)). However, where a state employee

plaintiff (here, Borrás) asserts that a state-employer defendant

(here, the SIFC) violated his right to free expression by taking

an adverse employment action against him, we qualify the general

prohibition against retaliation in recognition of the government's

interest in running an effective workplace. See id. at 26. We

therefore apply a three-part test in these circumstances,

considering:

(1) whether the speech involves a matter of public concern; (2) whether, when balanced against each other, the First Amendment interests of the plaintiff and the public outweigh the government's interest in functioning efficiently; and (3) whether the protected speech was a substantial or motivating factor in the adverse action against the plaintiff.

Rosado-Quiñones v. Toledo,

(1st Cir. 2008) (quoting

Jordan v. Carter

(1st Cir. 2005)).

- 14 - The district court held that Borrás failed to satisfy

the first and third prongs of this test, because (1) his speech

allegedly giving rise to retaliation was not on a matter of public

concern, and because (2) he failed to plead sufficient facts

establishing that his expression was a substantial or motivating

factor in the adverse decisions taken against him.

We agree with the district court on both fronts. Borrás

all but openly concedes that his speech is not on a matter of

public concern; the entirety of his argument on appeal is that his

speech need not be on a matter of public concern because Puerto

Rico law does not require government employee speech to be on a

matter of public concern to be protected. Therefore, according to

Borrás, both Supreme Court and First Circuit law restricting the

scope of First Amendment protections for government employee

speech do not apply here.

This proposition is patently untrue as a matter of law.

"It is established beyond peradventure that a state actor's failure

to observe a duty imposed by state law, standing alone, is not a

sufficient foundation on which to erect a section 1983 claim."

Martinez v. Colon,

(1st Cir. 1995). To the

contrary, in order to state a claim under Section 1983, a plaintiff

must "allege the violation of a right secured by the Constitution

and laws of the United States[.]" West v. Atkins,

(1988). The Supreme Court has consistently clarified that Section

- 15 - 1983 "'is not itself a source of substantive rights,' but merely

provides 'a method for vindicating federal rights elsewhere

conferred.'" Albright v. Oliver,

(1994) (quoting

Baker v. McCollan,

, 144 n.3 (1979)). Whether or not

Borrás has a legitimate claim under state law that the SIFC

retaliated against his free expression, his Section 1983 claims

cannot succeed to the extent that they rely on protections that

are present in Puerto Rico law but not in the U.S. Constitution or

any federal statutes, as they therefore do not vindicate "federal

rights," Atkins,

, secured by the United States'

"Constitution and laws,"

.

We follow controlling First Amendment precedent and find

that Borrás's Section 1983 claims were properly dismissed. We

have explicitly found that a complaint regarding personal

animosity between coworkers, as here, represents "a classic

example of speech concerning internal working conditions affecting

only the speaker and co-workers," not speech which concerns the

public. Rosado-Quiñones,

; see also Connick v. Myers,

(1983).

The facts before us are strikingly similar to the facts

in Rosado-Quiñones, in which the plaintiff was allegedly demoted

because he filed a lawsuit against his employer claiming "labor

harassment." 528 F.3d at 5. There, we found that the plaintiff's

claims, which were applicable to him alone, did not "implicate the

- 16 - ability" of the public employer to "carry out [its] responsibility

to the public," and therefore did not merit First Amendment

protection. Id. Applying this standard to the facts presented,

we cannot discern any articulable relationship between Borrás's

conflict with Escobar and the ability of the SIFC to fulfill its

public duties. Even drawing all reasonable inferences in Borrás's

favor, our most charitable reading of the complaint still reveals

that what Borrás attempts to frame as "whistleblowing" is better

characterized as a scattered collection of misgivings about his

fellow employees who, more often than not, were acting in their

personal capacities.

None of Borrás's speech acts concern the SIFC in its

operational capacity — and even if they did, the Supreme Court has

denied First Amendment protection to "mere extensions" of personal

disputes which, if released to the public, "would convey no

information at all other than the fact that a single employee is

upset with the status quo." See Connick,

. Because

Borrás alleges nothing in the complaint to suggest that this

incident could be related to the SIFC's "official malfeasance,

abuse of office, and neglect of duties" — the quintessential

subjects of public concern when it comes to public employee speech

- 17 - — his claim cannot survive. Rosado-Quiñones,

(quoting Curran v. Cousins,

(1st Cir. 2007)).4

Furthermore, even if his speech were on a matter of

public concern, Borrás still fails to allege a single non-

conclusory fact linking his suspension to his "whistleblowing"

acts. The complaint is rife with conclusory allegations that the

defendants conspired to fabricate a disciplinary claim against

Borrás concerning his physical conflict with Escobar, but remains

conspicuously silent on several key questions, such as (a) whether

the defendants even knew of the speech that allegedly engendered

retaliation to begin with; (b) whether the defendants, if they did

know of the speech that allegedly engendered retaliation, felt

negatively (or had reason to feel negatively) about the speech;

and (c) whether the defendants at any time considered Borrás's

speech when suspending him from work.

We do not suggest that Borrás must painstakingly allege

facts that would address each of these issues to state a claim for

relief. But, taken as a whole, these open questions reflect a

conspicuous dearth of factual allegations in the complaint that

4 We do not consider whether Borrás's speech in relation to his 2010 demotion was on a matter of public concern because the demotion is the subject of a separate action. See Order, Bisbal-Bultron, CIVIL 10-01555CCC, ECF No. 80. To the extent included in this action, claims related to the demotion are barred by the statute of limitations. See Muñiz-Cabrero v. Ruiz,

(1st Cir. 1994) (explaining that the statute of limitations for a Section 1983 claim in Puerto Rico is one year).

- 18 - might tend to show that Borrás's suspension had anything to do

with the reporting of his coworkers. Even if the facts--construed

in the light most favorable to Borrás--might lead us to conclude

that he was treated unfairly by his public employer, a First

Amendment retaliation claim must allege specific facts that

connect an adverse employment action to the speech or

whistleblowing activity. Stripped of its conclusory allegations,

the complaint cannot survive under Fed. R. Civ. P. 12(b)(6).

D. Borrás's Puerto Rico Law Claims

Having determined that Borrás's Section 1983 claims were

properly dismissed, we next turn to whether the district court

properly dismissed Borrás's claims brought under Puerto Rico law.

District courts may exercise supplemental jurisdiction over state

law claims that are "so related to claims in the [federal]

action . . . that they form part of the same case or controversy

under Article III of the United States Constitution."

(a). However, it is settled law that district courts may

decline to exercise supplemental jurisdiction over pendent state

law claims when the anchor federal claims for those state law

claims are dismissed. See So. Commons Condo. Ass'n v. Charlie

Arment Trucking, Inc.,

(1st Cir. 2014). "[W]hen

the federal-law claims have dropped out of the lawsuit in its early

stages and only state-law claims remain, the federal court should

decline the exercise of jurisdiction by dismissing the case without

- 19 - prejudice." Carnegie-Mellon Univ. v. Cohill,

(1988); see also United States ex rel. Kelly v. Novartis Pharm.

Corp.,

(1st Cir. 2016) (recognizing that when

federal claims are dismissed "at such an early stage" supplemental

state law claims should also be dismissed). Therefore, because

the district court properly dismissed Borrás's Section 1983

claims, it acted within its power to decline to exercise

supplemental jurisdiction and, accordingly, dismiss his pendent

Puerto Rico claims as well.

But, it appears that, in dismissing Borrás's Puerto Rico

law claims without discussion, the district court dismissed them

with prejudice, stating that "the Complaint . . . is DISMISSED,

with prejudice, in its entirety." When declining to exercise

supplemental jurisdiction over claims, it "does not wash" to

dismiss them with prejudice instead of without prejudice.

Novartis,

. We therefore vacate the district court's

dismissal of Borrás's Puerto Rico law claims with prejudice and

remand with instructions to dismiss those claims without

prejudice.

E. Loudermill Hearing

Next, Borrás argues that "[t]he district court erred

when finding that [his] Loudermill informal hearing complied with

due process," because "it goes without saying that Loudermill

hearings must take place in an impartial forum, with an impartial

- 20 - adjudicator, free of bias." This argument contravenes established

law. In Cleveland Bd. of Educ. v. Loudermill, the Supreme Court

admonished that termination decisions typically require the

employee to be granted "some kind of a hearing" to avoid running

into due process concerns.

(1985).

Critically, however, "[t]he standard the defendant must

meet [for a Loudermill hearing] . . . is not high: the U.S.

constitution requires only 'some pretermination opportunity to

respond.'" Chmielinski v. Massachusetts,

(1st

Cir. 2008) (quoting Loudermill,

). We have

consistently held that these hearings need not be elaborate so

long as the employee receives "(1) 'oral or written notice of the

charges against him,' (2) 'an explanation of the employer's

evidence,' and (3) 'an opportunity to present his side of the

story.'"

(quoting Loudermill,

). And, we

have explicitly said that "there is no requirement that the hearing

officer be impartial; indeed, the terminating employer may

preside." Id. at 318.

Borrás does not assert that any alleged bias deprived

him of either notice or the opportunity to put his version of the

facts before a decision-maker; this is all that Loudermill

requires. Therefore, his argument that his Loudermill hearing did

not comport with due process fails.

- 21 - F. Ability to Amend Complaint

Finally, we turn to Borrás's assertion that the district

court's failure to allow him to amend his complaint before

dismissing it with prejudice violated his right to due process.

Fisher v. Kadant, Inc. is directly on point.

(1st

Cir. 2009). In Fisher, we considered "what effect, if any . . .

a passing reference to a possible future motion to amend, contained

in an opposition to a motion to dismiss, [has] on the district

court's authority to allow amendment of a dismissed complaint after

the entry of judgment."

. We concluded that "such a

passing request is without effect in these circumstances," and

that the Fisher plaintiffs' failure to avail themselves of the

opportunity to amend their complaint as of right before the

issuance of judgment against them rendered them without recourse

after the entry of judgment.

Here, like the plaintiffs in Fisher, Borrás adverted to

the need to amend his complaint in his opposition to the

defendants' motion to dismiss. Nevertheless, at no point did

Borrás either take advantage of Fed. R. Civ. P. 15(a)(1), which

allows a pleading to be amended "once as a matter of course," or

request leave to amend under Fed. R. Civ. P. 15(a)(2). See Fed.

R. Civ. P. 15(a)(1)-(2) (allowing parties to amend pleadings "once

as a matter of course" under certain limitations and, outside those

limitations, with leave of the court or the other party's written

- 22 - consent). Only after the issuance of a judgment against him did

Borrás argue, on appeal, that he should have been permitted to

amend his complaint. Because Borrás chose not to file an amended

complaint prior to the issuance of judgment against him, there was

no due process violation.

IV. Conclusion

For the foregoing reasons, we affirm the district

court's dismissal of the federal law claims with prejudice, vacate

the dismissal of Borrás's Puerto Rico law claims with prejudice,

and remand with instructions to dismiss the Puerto Rico law claims

without prejudice.

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