Opinion
Civil No. 04-1916 (SEC/ADC).
August 31, 2005
OPINION AND ORDER
Plaintiff Luis E. Martínez-Quiroz (hereafter "Martínez")brings suit pursuant to 42 U.S.C. § 1983, challenging the Engineers Architects and Surveyors Examining Board (hereafter the "Board") refusal to issue him a Certificate of Engineer in Training ( Docket Nos. 1, 37). In addition, he challenges the constitutionality of the laws as amended for issuance of engineering in training certificates. Finally, plaintiff alleges that he was retaliated against on the basis of his political affiliation when the Board refused to issue him the certificate.
Following the filing of the initial Complaint, the named defendants moved for dismissal, and Martínez opposed the motion ( Docket Nos. 8, 14). Since that time Martínez has filed an Amended Complaint ( Docket No. 37).
The parties consented to proceed before a Magistrate-Judge pursuant to 28 U.S.C. § 636(c) ( Docket Nos. 23, 26, 28, 47).
I. Procedural and Factual Background
Martínez is a Dominican American citizen residing in Puerto Rico. He graduated as an engineer in the Dominican Republic and for many years has worked for the Puerto Rico Highway Authority. He also has a master's degree in urban planning with a specialization in traffic and roads. Martínez has resided in Puerto Rico for 30 years, but is not proficient in English.
The Amended Complaint filed on June 10, 2005, alleges that Martínez was issued a Certificate as Engineer in Training in 1994, and it was renewed in 1999. By law, the certificates are to be renewed every five years. Martínez sought renewal of the certificate in April 2004, but the request was denied on August 13, 2004, via a letter signed by Defendants Ileana O. Sylva-González, Office of the Examining Board of Engineers and Surveyors, and Carmen Carrera, Director of the Examining Boards for the Commonwealth of Puerto Rico. The letter indicated that the certificate was not renewed because Martínez did not provide evidence establishing he had taken a required revalidation examination, twice during the five year period after issuance of the certificate and prior to renewal, as required by Article 17 of Law 173 of December 26, 1997, 20 P.R. Laws Ann. § 711.
Act 173 was approved in 1997 but was not made applicable to Martínez until and after the first five years of it being effective. For this reason, Martínez' certificate of engineer in training was re-issued in 1999. However, by 2004, after being aware of the requirements of Law 173, and having a period of 10 years gone by since issuance of his 1994 Certificate; Martínez was subjected to the provisions of Law 173.
Martínez alleges that Law 173 of December 26, 1997, as applied to him, is unconstitutional because it violates his property interest and has an ex post facto effect in depriving him of his property interest without due process in violation of the Fifth and Fourteenth Amendment of the U.S. Constitution.
In the amended complaint, and for the first time, Martínez also alleges that his constitutional rights are being violated because he is required to take the examination in English when he is a Spanish speaker.
The Complaint further alleges that the Board retaliated against Martínez on the basis of his political affiliation in denying him the engineer in training certificate as a result of his filing a previous political discrimination lawsuit against the Puerto Rico Highway Authority. (See Civil Case No. 04-1767)
The Defendants filed a Motion to Dismiss the original complaint asserting that the complaint fails to state a claim and to establish that Article 17 of Act 173 is unconstitutional as applied to Martinez. Defendants contend that the law at issue is rationally related to a legitimate government purpose, and the fact that an error was made in renewing Martínez's license in 1999 does not provide him with a cause of action; and Martínez fails to state a claim of political discrimination. The defendants also contend they are entitled to qualified immunity.
The main difference between the original Complaint and the Amended Complaint is the addition in the Amended Complaint of the allegation that Martínez's constitutional rights are being violated because he is required to take the exam in English when he is a Spanish speaker. The Defendants did not move to dismiss these allegations.
II. Motion to Dismiss
At the conference held on August 17, 2005, defendants reported that a review of internal records had revealed that plaintiff had never approved either one of the examination that will enable the Board to issue a Certificate of Engineer in Training. Defendants suggest that the Certification in plaintiff's possession was issue by mistake or fraudulently obtained. Plaintiff's counsel was provided notice of the Board's intent to initiate an administrative investigation and have an examiner appointed for such purposes.
A. Legal Standard
In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation omitted). The Court accepts the factual allegations in the complaint as true and draws all reasonable inferences from those alleged facts in favor of the pleader. Gorski v. New Hampshire Dep't of Corr., 290 F.3d 466, 473 (1st Cir. 2002) (quoting Hison v. King Spalding, 467 U.S. 69, 73 (1984)). The Court limits its inquiry to the facts alleged in the complaint, incorporated into the complaint, or susceptible to judicial notice. See In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003); Young v. Lepone, 305 F.3d 1, 11 (1st Cir. 2002) ("The fate of a motion to dismiss under Rule 12(b)(6) ordinarily depends on the allegations contained within the four corners of the plaintiff's complaint."); see also Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (courts must limit inquiry to facts stated in complaint, documents either attached to or incorporated into the complaint, and matters of which the court may take judicial notice). Indeed, a "complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as relief is possible under any set of facts that could be established consistent with the allegations." González-Pérez v. Hospital Interamericano De Medicina Avanzada, 355 F.3d 1, 5 (1st Cir. 2004) (citations omitted).
B. Constitutionality of 20 P.R. Laws Ann. § 711 l
Martínez challenges the constitutionality of the laws governing the issuance of certificates to engineers in training found at Puerto Rico Laws, Title 20, Chapter 35, 20 P.R. Laws Ann. §§ 711-711z. The purpose of §§ 711-711z is to "regulate the practice of engineering, architecture, surveying and landscape architecture in Puerto Rico, providing, among other things, for the registration and licensing of the persons qualified as such and for the certification of engineers, architects, surveyors and landscape architects in training." 20 P.R. Laws Ann. § 711.
Section 711 l sets forth the requisites for the renewal of certificates or license for engineers, architects and surveyors in Puerto Rico. It was amended on December 26, 1977, and at that time made changes to the renewal requirements. Both, before and after the amendment, certificates for engineering in training were effective for a term of not more than five years. 20 P.R. Laws Ann. § 711 l. When the five year period expires, the certificate must be renewed pursuant to 20 P.R. Laws Ann. § 711 l. Prior to the 1997 Amendment anyone seeking renewal had to submit an application for the renewal of the certificate together with a certificate from the professional college to which the professional held a certificate certifying that the holder was an active member, and an internal revenue receipt of the amount due for renewal. 20 P.R. Laws Ann. § 711 l (1996). Subsequent to the 1997 Amendment, engineers in training seeking the renewal of a certificate, in addition to the foregoing, are now required to (a) include in their application evidence indicating that its holder has taken the pending examinations at least twice during the term of effectiveness of the certificate to be renewed. Id. and (b) submit evidence that the continuing education requirements set by the Board have been met and that such courses have been taken in accredited colleges or organization within the United States.
Martínez alleges that the § 711 l requirement of taking examinations twice during the five year certificate period is unconstitutional as applied to him. He contends that he has an acquired property interest in his certificate and that this new requirement violates that property interest. He also contends that the statute has an ex post facto and retroactive effect depriving him of his property interest without due process in violation of the Fifth and Fourteenth Amendment of the United States Constitution. Finally, he alleges that the two examination requirement is unreasonable and has no public purpose.
The Defendants move for dismissal of Martínez's claims of unconstitutionality of the statute, arguing that in the exercise of its police power, the Commonwealth of Puerto Rico has broad discretion in controlling and regulating the practice of professions for protecting life, health, and property and for maintaining the general welfare. They contend the legislative means are rationally related to a legitimate government purpose.
In opposing the motion to dismiss, Martínez argues that he acquired a property interest when he obtained his engineer in training certificate in 1994 by complying with the requirements then established by the Examining Board. He argues that since he has proven to be qualified to perform his job safely over the past eleven years, the 1997 Amendments requiring the taking of examinations twice in a five year period establish an unreasonable requirement and has no public purpose. He contends that an ex post facto law cannot take away rights already acquired according to previous law and that if a law does not indicate that it has a retroactive effect, it will have prospective application only. Finally, Martínez also argues that the statute is unconstitutional as it was applied to him.
1. Constitutionality on its Face
Initially, the undersigned notes that Martínez did not respond to the defendants' position that the statute is valid on its face.
A statute is presumed constitutional, and the "'burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,'" whether or not the basis has a foundation in the record. Heller v. Doe, 509 U.S. 312, 320-21, (1993) (citation omitted). A "'facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.'" United States v. Salerno, 481 U.S. 739, 745 (1987).
It is well established that the States enjoy broad power to regulate "the practice of professions within their boundaries." Goldfarb v. Virginia State Bar. 421 U.S. 773, 792 (1975). The State may set certain requirements of minimum knowledge, ability, skills, good moral character or any other qualification that bears a rational relation to the objective of guaranteeing that the admitted persons have the competence to adequately practice the profession. Santiago-Girona v. Board of Med. Exam'rs, 118 D.P.R. 1, 18 P.R. Offic. Trans. 1 (1986) (citing Schware v. Board of Bar Exam'rs, 353 U.S. 232, 238-239 (1957); Massaro O'Brien, Constitutional Limitations on State-Imposed Continuing Competency Requirements for Licensed Professionals, 25 Wm. Mary L. Rev. 253, 266-267 (1983)). To successfully challenge the standards regulating admissions to the practice of an occupation or profession, there must be a showing that the rules applied by the state arbitrarily deny admission to the applicant on grounds that have nothing to do with the purpose of the regulations. Román v. Board of Med. Exam'rs, 116 D.P.R. 71, 16 P.R. Offic. Trans. 92, 102 (1985). The degree of public welfare requires only some evidence that the measures being taken are rational, and therefore, valid. Id. (citations omitted).
The Legislature created the Engineer, Architects and Surveyors Examining Board under Law No. 173 of August 12, 1998, as amended, 20 P.R. Laws Ann. § 711 et. seq. The Board is authorized to implement Law No. 173 which regulates the practice of engineering in Puerto Rico. The Statement of Motives for the 1997 Amendment states, "[t]he intention of the several amendments proposed, is to further improve the Law in view of the experiences noted in other States, and reconcile its provisions to the provisions of the Act which governs the Engineering, Surveying and Architecture Professions thus guaranteeing the quality and requirements which our people and the professional practitioners in these fields deserve." Statement of Motive, Act No. 185 of December 26, 1997.
The Statement of Motive for the 1997 amendment provides a rational basis for amending the statute; that is to reconcile its provisions to guarantee the quality and requirements deserved by the people of Puerto Rico and for professional practitioners in the engineering field. The regulations on their face are not arbitrarily applied, and on their face are applied equally to all. It is also noted that Martínez did not contest this portion of the motion to dismiss, and as a result, has confessed the same.
Based upon the forgoing, defendants' Motion to Dismiss as it relates to the contention that 20 P.R. Laws Ann. § 711 l is unconstitutional on its face is GRANTED and the claim is DISMISSED.
2. Constitutionality as Applied to Martínez
Martínez alleges that § 711 l is unconstitutional as applied to him, contending that he acquired a property interest in 1994 when he received his engineer in training certificate. At that time Martinez alleges he complied with the required requisites for said certificate. He argues that the law as amended, has the retroactive effect of causing harm to his acquired certificate, and that he is now deprived of that property without due process. Martínez contends that the principles of the "grandfather clause" should apply in renewing his certificate.
Assuming that the engineer in training certificate constitutes a constitutionally protected property interest, the facts of the case do not entitle Martínez to invoke the protection of the Constitution. That is because, "legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations." United States v. Locke, 471 U.S. 84, 104 (1985) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16 (1976). "Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties." United States v. Locke, supra, 471 U.S. at 104; see also Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985) (completion of qualifying units a valid condition for admittance to the "trial bar," even for an attorney who had already been a member of the bar before the creation of the "trial bar").
At the outset it must be noted that when the Puerto Rico legislature amended the Act 173 in 1997 requiring the taking of tests twice during a five year period, it did not choose to exempt existing engineer in training certificate holders from this requirement. Therefore, a grandfather clause is unavailable to Martínez. Indeed, "[i]n Puerto Rico, statutes generally are presumed to have prospective effect only, unless the statute expressly or by inescapable inference demonstrates a contrary legislative intent." Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 751-52 (1st Cir. 1995) (citing 31 P.R. Laws Ann. § 3 (no retroactive application of statutes absent express retroactivity provision); Vélez Reboyras v. Secretario De Justicia, 115 D.P.R. 533, 1984 WL 270917 (1984); Landgraf v. USI Film Prods., 511 U.S. 244 (1994).
In the case at bar, the amendments that Martínez complains of were not applied to him retroactively. To the contrary, the application of the test taking requirement, occurred after the effective date of the 1997 amendment, making the application prospective, rather than retroactive. A retroactive application would have occurred if after the 1997 amendments were enacted, but before it was time to renew his certificate in 1999, Martínez had been notified that his license was revoked because he had not taken the examinations. The complaint makes no such allegation.
It is a well settled principle that he conditions the legislature may impose on those who aspire to practice a profession do not have to remain the same through the years, they only need be reasonable. Pérez v. Board of Dental Exam'rs, 116 D.P.R. 218, 16 P.R. Offic. Trans. 269, 288 (1985) (citing Román v. Tribunal Exam. de Médicos, 116 D.P.R. 71 (1985). More so, "by social or public welfare imperatives, the lawmaker may provide different requirements through the years, without this conferring on anyone the constitutional right to be judged by previous requirements only because the person can satisfactorily meet those requirements formerly deemed sufficient by the Legislature." Pérez, 16 P.R. Offic. Trans. at 288.
This is precisely the case here. The legislature amended the requirements for renewal of an engineering in training certificate, providing a rational basis for doing so. It cannot be said that requiring a test to be taken is unreasonable. Continuing education and test taking are similarly required for many professional licenses or certificates.
Here, the allegations in the complaint are that the Board denied the renewal of Martínez's engineer in training certificate because he failed to comply with the requirements for renewal as established by law. The Board, in applying the 1997 amendments, did exactly was it was required to do. There are no allegations that the 1997 amendments were applied only to Martínez and no one else. Quite simply, as to the constitutionality of the statute as applied to Martínez, the allegations do not state a claim upon which relief can be granted
Therefore, the Motion to Dismiss as it addresses challenges to the constitutionality of the statute, as applied, is GRANTED and plaintiff's claim is DISMISSED.
3. Examination in English
In his Amended Complaint, Martínez alleges that the practice of the Board in giving the exams only in the English language, is unconstitutional and violates his Fourteenth Amendment Right under the U.S. Constitution. Martinez, in support, alleges that he is a member of a minority known as "Spanish Americans".
The defendants did not move to dismiss these allegations.
See footnote No. 2.
4. Retaliation due to Political Discrimination
Martínez alleges that he is a well known member of the New Progressive Party, who in the past had filed a suit against the Puerto Rico Highway Authority for political discrimination. Martínez further alleges that the denial of his Certificate as Engineer in Training is an act of retaliation due to the filing of the political discrimination claim. Defendants move for dismissal of this claim on the basis that Martínez failed to establish a casual link between his protected activity and the defendants alleged adverse decision.
Defendants basically contend that Martínez must meet a heightened pleading standard to survive a motion to dismiss. That, however, is no longer the standard in the First Circuit. See Educadores PuertorriqueZos en Acción v. Rey Hernández, 367 F.3d 61 (1st Cir. 2004). At this juncture, however, all Martínez need do is include in the complaint "a short plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
Martínez alleges that he is a well-known member of the New Progressive Party and filed, in the U.S. District Court for the District of Puerto Rico, a suit against the Puerto Rico Highway Authority for political discrimination in Civil Case No. 04-1767. In turn, plaintiff alleges that the defendants refused to renew his Certificate as Engineer in Training in retaliation for having filed said case. These facts alone are enough to survive defendants' Motion to Dismiss.
Therefore the Motion to Dismiss the political discrimination claim is DENIED.
D. Qualified Immunity
The Defendants in their personal capacity, argue that they are entitled to qualified immunity. Qualified immunity constitutes a right not to stand trial or face the burdens of litigation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The qualified immunity doctrine protects state officials from civil liability under § 1983 so long as their conduct does not violate a clearly established constitutional right of which a reasonable official would have been cognizant. Hatfield-Bermúdez v. Rey Hernández, 245 F.Supp.2d 383, 387 (D.P.R. 2003) (citations omitted).
Defendants argue that it is evident they have not violated any constitutional right of Martínez, but acted in accordance with the statute in force. Although they do not clarify this, it appears that the Defendants refer to the statute regarding the renewal of the engineer in training certificate. The issue is Moot inasmuch as, the Court has dismissed the claims alleging the unconstitutionality of Section 711 I (1997 renewal amendments) on their face and as applied to Martínez. It is noted that the defendants did not raise the issue of qualified immunity as to plaintiff's claim of unconstitutionality of the statue requiring an examination in the English languarge. Nor do they address qualified immunity as to the retaliation claim.
The Motion to Dismiss on the basis of qualified immunity is DENIED as Moot as it refers to the unconstitutionality (on their face and as applied to Martínez) of the 1997 license renewal amendments. The issue of qualified immunity as to the remaining claims, however is DENIED without prejudice.
III. CONCLUSION
The Motion to Dismiss ( Docket No. 8) is GRANTED in part and DENIED in part as set herein above. There remain two claims: 1) unconstitutionality of requiring Martínez to take the required examination in English, and 2) retaliation as a result of filing a political discrimination claim.
SO ORDERED.