          United States Court of Appeals
                     For the First Circuit


No. 13-2267

          OMAYRA MULERO-CARRILLO; AGUSTÍN R. BENÍTEZ-DÍAZ;
    LARA VÁZQUEZ-VÁZQUEZ; OMAR GUERRERO-DÍAZ; DENISE GONZÁLEZ-
      SANTANA; YOHANNA SANTANA-IRIZARRY; SAMIR CRESPO-NIEVES;
      OMAR A. CRESPO-NIEVES; ANDY MELÉNDEZ-ZAYAS; JOSÉ DANIEL
   CRUZ-GONZÁLEZ; MELISSA GRAFALS-PÉREZ; LEONARDO CRUZ-FLORES;
      ÁNGEL I. FLORES-LUGO; REBECA VERA-SOTO; VERÓNICA LÓPEZ-
      TORRES; FERNANDO VALENTÍN-GONZÁLEZ; CARLOS J. SANTIAGO-
         AROCHO; MARITERE BABILONIA; GERARD BELTRE-TAVÁREZ;
                   GERARDO J. LÓPEZ-CEPERO-MONTES,

                     Plaintiffs, Appellants,

                               v.

     ALEJANDRO ROMÁN-HERNÁNDEZ, individually and as President
       of the P.R. Medical Board of Licensure and Discipline;
   VICTORIANO QUINTANA; AGUSTÍN VIDAL; POLICEMAN EDWIN MEJÍAS;
     DR. JOSÉ IBÁÑEZ; JUAN GONZÁLEZ; RAFAEL FERNÁNDEZ; MIGUEL
      TALAVERA; P.R. BOARD OF MEDICAL LICENSURE & DISCIPLINE,

                     Defendants, Appellees.


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

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Carlos A. Del Valle-Cruz, with whom Armando Lamourt were on
brief, for appellants.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, were
on brief, for appellees.
June 17, 2015
            TORRUELLA,    Circuit    Judge.      Plaintiffs-Appellants     are

twenty graduates from medical schools outside of the United States

who are ineligible to receive a medical license in Puerto Rico

because they failed the Puerto Rico Medical Licensing Examination

(the   "PRMLE").     They   challenge      the   validity   of   the   PRMLE's

purportedly arbitrary passing score via this 42 U.S.C. § 1983

action, alleging that Defendants-Appellees -- the Puerto Rico Board

of Medical Licensure and Discipline (the "Board") and eight of its

officers    (the    "Officers,"      and    together    with     the   Board,

"Defendants"), in their official and individual capacities --

violated the Plaintiffs' due process and equal protection rights.

The district court granted Defendants' motion to dismiss.              Finding

no plausible basis for a claim for relief, we affirm.

                             I.     Background

            In   2007,   investigators     uncovered    a   massive    medical

licensing scandal in Puerto Rico involving nearly one hundred

unqualified doctors who were illegally admitted to practice.                In

exchange for thousands of dollars in bribes, some former members of

the regulatory body that preceded the Board allegedly doctored exam

scores to grant medical licenses to unqualified applicants.               See

United States v. Rodríguez-Torres, 560 F. Supp. 2d 108, 110 (D.P.R.

2008).     In the wake of this scandal, Puerto Rico's legislature

enacted Law 139 of 2008 ("Law 139"), which reformed the Board's

authority by adding safeguards such as new oversight procedures and


                                     -3-
reporting requirements.          P.R. Laws Ann. tit. 20, §§ 131 et seq.

Under Law 139, the Board has broad authority to regulate Puerto

Rico's medical profession, including the power to delineate the

requirements for medical licenses.          Id. § 132d(3).

            Despite this latitude, Law 139 limited the Board's powers

to control the examinations by requiring it to "delegate the

preparation, administering[,] and correction" of the local medical

licensing     exam   (the    PRMLE)    to     an   external    organization.

Id. § 133a.     In compliance with this mandate, the Board selected

the National Board of Medical Examiners (the "NBME") to prepare the

PRMLE.     See P.R. Regs. Salud Reg. No. 7811 art. 3.3.              While the

NBME prepares the exam, "[t]he Board shall establish the grade

required to pass the [PRMLE]."          Id.     The Board chose a passing

score of 700 points for the PRMLE by issuing a regulation.

            As an alternative to the PRMLE, all applicants for Puerto

Rico medical licenses -- including Plaintiffs -- may instead take

the United States Medical Licensing Examination (the "USMLE"). The

USMLE is also prepared by the NBME.             Though both the USMLE and

PRMLE test similar subject matters, the parties agreed at oral

argument that they are substantively different exams.               In addition

to   the    differences     in   content,     there   are   other    important

distinctions.    First, while applicants can take the USMLE only in

English, the PRMLE is offered in both English and Spanish.                 Id.

Second, while a passing score on the PRMLE allows applicants to


                                      -4-
qualify for a medical license in Puerto Rico only, a passing score

on the USMLE allows applicants to qualify for a medical license in

both Puerto Rico and the rest of the United States.      Third, while

the Board set the PRMLE's passing score at 700 points, the NBME set

the USMLE's national passing score at 500 points.

          Plaintiffs voluntarily elected to take the PRMLE rather

than the USMLE and failed it.       They then opted for this § 1983

action requesting injunctive relief and damages, arguing that: (1)

the Board's "arbitrary" imposition of a 700-point passing score

deprived them of a liberty or property interest in practicing the

medical profession in violation of their due process rights; (2)

since the Board accepts both the USMLE and the PRMLE for medical

license applications, the difference in the passing scores between

the two tests constitutes an equal protection violation; and (3)

the Board's and its Officers' actions violated the Puerto Rico

Constitution and Puerto Rico laws and regulations.

          The   district   court   dismissed   Plaintiffs'   complaint.

First, the district court found that Plaintiffs conceded that their

constitutional claims are subject to only rational basis review and

held that Plaintiffs failed to plead facts plausibly demonstrating

that the Board's imposition of a 700-point passing score in the

PRMLE was not rationally related to the legitimate government

interest in ensuring that foreign-trained doctors are sufficiently

qualified to practice medicine in Puerto Rico.     The district court


                                   -5-
also   concluded   that   all   of   Plaintiffs'   constitutional   claims

against members of the Board acting in their official capacities

were also barred by sovereign immunity.            Finally, the district

court concluded that Plaintiffs' constitutional claims for damages

against members of the Board acting in their individual capacities

would also have been barred by qualified immunity.          Although the

district court found that it had discretion to retain supplemental

jurisdiction over the remaining state law claims, it declined to

exercise this jurisdiction because it had dismissed all federal

claims over which it had original jurisdiction.

            This appeal ensued.1

          II.   Sovereign Immunity and Constitutional Claims

A.   Standard of Review

            We review de novo a district court's dismissal of a

complaint for lack of subject matter jurisdiction under Rule

12(b)(1) of the Federal Rules of Civil Procedure.           McCloskey v.

Mueller, 446 F.3d 262, 266 (1st Cir. 2006).        We also review de novo

a district court's dismissal of a complaint for failure to state a

claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Id. Plaintiffs will survive a Rule 12(b)(6) motion to dismiss only

if their pleadings plausibly establish that they are entitled to

relief.    Vernet v. Serrano-Torres, 566 F.3d 254, 258 (1st Cir.



1
  Plaintiffs expressly waived any argument regarding the district
court's dismissal of all supplemental claims in their brief.

                                     -6-
2009).     In undertaking this inquiry, "we assume the truth of all

well-pleaded facts and indulge all reasonable inferences that fit

the plaintiff[s'] stated theory of liability."                        In re Colonial

Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

            Also, we "may affirm on any basis apparent in the

record."    Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 21 (1st

Cir.   2013);     see   also    Gabriel      v.      Preble,    396     F.3d    10,    12

(1st Cir. 2005).

B.   Sovereign Immunity Defense

            Plaintiffs       challenge      the      Board     and     the    Officers'

compliance       with   federal     due     process      and     equal       protection

guarantees, arguing that "[a] State cannot exclude a person from

the practice of . . . any . . . occupation in a manner or for

reasons that contravene the Due Process or Equal Protection Clause

of the Fourteenth Amendment."             Schware v. Bd. of Bar Examiners of

the State of N.M., 353 U.S. 232, 238-39 (1957).                  They argue that in

establishing requirements for professional licenses, a state's

action must be rationally related to the applicants fitness or

capacity    to    practice     in   a   regulated       field.         That    is,    the

requirements may not be arbitrarily chosen without connection to

the applicant's capacity.           Id. at 239 ("A State can require high

standards    of    qualification,       such    as    good     moral    character     or

proficiency in its law, before it admits an applicant to the bar,

but any qualification must have a rational connection with the


                                          -7-
applicant's fitness or capacity to practice law.").           Consequently,

Plaintiffs    request   that   we   enjoin   the    Board   from   penalizing

Plaintiffs because they failed the PRMLE.             See Dkt. #25 at 42,

¶ 147(4) (Pls.' First Am. Compl.).            They ask us to order the

Officers to retroactively apply a 500-point passing score to

Plaintiffs' preexisting PRMLE scores.         See id. at 42, ¶ 147(3).

             In response, Defendants contend that we must affirm

dismissal of all claims -- under federal and state law -- against

the Board and its members in their official capacity based on

Plaintiffs' failure to state a plausible claim, and on our lack of

subject matter jurisdiction pursuant to the Eleventh Amendment.

They   allege   that    Plaintiffs'    request     for   injunctive    relief

prospectively ordering the Board to change the passing score of the

PRMLE to 500 points violates the Commonwealth's sovereign immunity.

In support of this, Defendants point to Pennhurst State School &

Hospital v. Halderman, which held that "an unconsenting State is

immune from suits brought in federal courts by her own citizens as

well as by citizens of another state."             465 U.S. 89, 100 (1984)

(quoting Emps. v. Mo. Pub. Health & Welfare Dep't, 411 U.S. 279,

280 (1973)).

             In this case, we can bypass sovereign immunity issues

because Plaintiffs' amended complaint lacks any merit on its face.

"Eleventh Amendment questions are often labeled jurisdictional,"

Parella v. Ret. Bd. of Rhode Island Employees' Ret. Sys., 173 F.3d


                                      -8-
46, 55 (1st Cir. 1999), and generally, jurisdictional issues must

be resolved before analyzing dismissals under Rule 12(b)(6), Ne.

Erectors Ass'n of BTEA v. Sec'y of Labor, OSHA, 62 F.3d 37, 39 (1st

Cir. 1995).      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., 644 F.3d 5, 11 (1st Cir. 2011) (citing

Parella, 173 F.3d at 53-57).      See also      Redfern v. Napolitano, 727

F.3d 77, 82 (1st Cir. 2013) (bypassing jurisdictional question

entirely because claims became moot); Dávila v. Corporación de P.R.

para   la   Difusión   Pública,   498    F.3d   9,   14   (1st    Cir.    2007).

Therefore, we examine Plaintiffs' claims directly under a Rule

12(b)(6) analysis.

C. Rule 12(b)(6) Plausibility Analysis

            Plaintiffs will survive a Rule 12(b)(6) motion to dismiss

their federal constitutional claims -- based on equal protection

and substantive due process -– in this § 1983 action only if their

pleadings    plausibly   establish      that   the   Board   or   its    members

violated their federal constitutional rights.                 See 42 U.S.C.

§ 1983; Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53-55

(1st Cir. 2013).




                                     -9-
              1.    "Similarly-Situated" and the Equal Protection Claim

              The    Fourteenth     Amendment's         Equal    Protection      Clause

prohibits      a    state    from   treating         similarly    situated    persons

differently because of their classification in a particular group.

See U.S. Const. amend. XIV, § 1; Tapalian v. Tusino, 377 F.3d 1, 5

(1st Cir. 2004).            Generally, for an equal protection claim to

survive   a    motion       to   dismiss,   a   plaintiff        must   allege   facts

plausibly demonstrating that "'compared with others similarly

situated, [the plaintiff was] selectively treated . . . based on

impermissible considerations such as race, religion, intent to

inhibit   or       punish   the   exercise      of    constitutional      rights,   or

malicious or bad faith intent to injure a person.'"                       Barrington

Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7

(1st Cir. 2001) (second alteration in original) (emphases omitted)

(quoting Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)).

              Here, however, because the Plaintiffs concede there is no

implication of a fundamental right being affected, and, since they

do not claim to belong to a suspect classification,2 the Defendants

are correct to argue that their medical licensing decisions require

only rational basis review.           See González-Droz v. González-Colón,

660 F.3d 1, 9 (1st Cir. 2011) (citing Medeiros v. Vincent, 431 F.3d



2
   See Mills v. Maine, 118 F.3d 37, 47 (1st Cir. 1997) (defining
"suspect class" as a "class of persons characterized by some
unpopular trait or affiliation" that indicates a heightened
likelihood of bias against them).

                                        -10-
25, 29 (1st Cir. 2005).     Defendants add that, even assuming that

Plaintiffs   alleged   a   plausible    prima   facie   equal   protection

violation, the Board's action is rational to the extent that it

intended to require aspiring doctors to demonstrate a minimum level

of knowledge.

           Having carefully examined their complaint, as amended, we

find that Plaintiffs, as PRMLE examinees, have failed to plead that

they are similarly situated to USMLE examinees or that any alleged

classification violates their equal protection rights.          Instead of

alleging that the USMLE and the PRMLE are equivalent exams,

Plaintiffs' admitted at oral argument that these are different

exams.    Despite this admission, Plaintiffs make the implausible

assertion that the Board's "arbitrary" imposition of a 700-point

passing score on the PRMLE, when compared to the 500-point passing

score on the USMLE, automatically constitutes an equal protection

violation.    But, if the PRMLE and the USMLE are two different

exams, comprising different questions, the fact that they use two

different passing scores is insufficient to demonstrate a plausible

equal protection violation.      Takers of one exam are not equally

situated with takers of the other exam.

           "The formula for determining whether individuals or

entities are similarly situated . . . is not always susceptible to

precise   demarcation.     The   line    between   sufficient   facts   and

insufficient conclusions is often blurred ."        Barrington Cove, 246


                                  -11-
F.3d at 8 (alterations, citations, and internal quotation marks

omitted). Nevertheless, the standard "is whether a prudent person,

looking objectively at the incidents, would think them roughly

equivalent and the protagonists similarly situated."    Id. (quoting

Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir.

1989), overruled on other grounds by Educadores Puertorriqueños en

Acción v. Hernández, 367 F.3d 61, 64 (1st Cir. 2004)).

            Thus, we conclude that Plaintiffs' apples-to-oranges

comparison, even when read in the light most favorable to them,

does not pass Rule 12(b)(6) muster.   Plaintiffs, as PRMLE takers,

failed to plead an indicia of being similarly situated to takers of

the USMLE.    See Rodríguez-Cuervos v. Wal-Mart Stores, Inc., 181

F.3d 15, 21 (1st Cir. 1999) ("The comparison cases need not be

perfect replicas. . . . [But,] in offering . . . comparative

evidence, [a plaintiff] bears the burden of showing that the

individuals with whom he seeks to be compared have been subject to

the same standards and have engaged in the same conduct . . . .")

(internal quotation marks and citations omitted).

            2.    Rational Basis and the     Equal   Protection   and
            Substantive Due Process Claims

            Plaintiffs' pleadings also fail to establish why such

classification would be necessarily irrational, either for equal

protection or substantive due process purposes.         Because the

analysis required for those two claims is the same, we examine them

together.    González-Droz, 660 F.3d at 9; Medeiros, 431 F.3d at

                               -12-
32-33. For both equal protection and substantive due process, when

plaintiffs do not allege that a fundamental right is affected, they

are required to show that the governmental infringement is not

rationally related to a legitimate government purpose.    Id.

          Here, Plaintiffs do not allege that they belong to a

suspect category or that obtaining a license to practice medicine

is a fundamental constitutional right.   See Medeiros, 431 F.3d at

32 ("The right to 'make a living' is not a 'fundamental right,' for

either equal protection or substantive due process purposes."

(quoting N.Y. State Trawlers Ass'n v. Jorling, 16 F.3d 1303,

1309-12 (2d Cir. 1994)).   Therefore, their claim is within an area

of social and economic policy, where a legislative "classification

that neither proceeds along suspect lines nor infringes fundamental

constitutional rights must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification."

FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993).   We need not

examine what such reasonably conceivable state of facts may be

because "[r]emedial choices made by . . . regulatory bod[ies] are

. . . rebuttable only where the party challenging the . . .

regulation can establish that 'there exists no fairly conceivable

set of facts that could ground a rational relationship between the

challenged classification and the government's legitimate goals.'"

Medeiros, 431 F.3d at 30 (citing Wine and Spirits Retailers, Inc.


                                -13-
v. Rhode Island, 418 F.3d 36, 54 (1st Cir. 2005)). Plaintiffs bear

the   burden      of    "negat[ing]   any   conceivable     basis   which    might

support" that set of "fairly conceivable" facts.               Donahue v. City

of Boston, 371 F.3d 7, 16 (1st Cir. 2004) (quoting Beach Commc'ns,

508 U.S. at 315).

             As    we    discussed    above,   Plaintiffs    conceded   at    oral

argument that the PRMLE and USMLE are substantively different

tests, such that a 200-point difference in the minimum passing

score could be rationally related to the substantive difference.

And even though Plaintiffs do not "take issue . . . with the goals

of Law 139" (i.e., do not dispute that the state had a legitimate

government purpose in enacting the law), Plaintiffs alleged nothing

that would indicate that this 200-point difference is so extreme as

to be unjustified by the (unspecified) substantive differences

between the two tests.         Plaintiffs thus fail to allege facts that

could possibly negate the rational justification for the difference

in scores.

             Plaintiffs' complaint seemingly alleges an alternate

classification.         Their complaint could reasonably be read to argue

that the Board selected a different passing score on the basis that

it knows that foreign-trained applicants tend to take the PRMLE,

rather than the USMLE, treating them differently from U.S.-trained

applicants, who tend to take the USMLE.             See Dkt. #25 at 15, ¶ 46

(Pls.' First Am. Compl.) ("Applicants for a medical license that


                                        -14-
study in medical schools located in Puerto Rico usually take[] a

test different than that required of applicants like the Plaintiffs

that study in international schools." (emphases added)).   That is,

the Board meant to discriminate on the grounds that its Officers

know that foreign-trained applicants will normally choose the

PRMLE.    Even assuming that Plaintiffs had carefully alleged that

the Board intentionally discriminated against them for the sole

reason of being foreign-trained applicants, classifying them on

that basis, Plaintiffs' pleadings fail to establish why such

classification would be necessarily irrational, either for equal

protection or substantive due process purposes.    As the district

court suggested, the Board might have decided to impose a higher

score to foreign-trained applicants because foreign schools may be

subject to less demanding accreditation requirements.       With a

rigorous standardized test requirement, the state would not have to

independently determine that every international medical school had

accreditations or curricula equivalent to that of a domestic

school.   Plaintiffs do not negate these reasonings, which would be

rational justifications.   It suffices to say that Plaintiffs did

not establish that under no conceivable set of circumstances their

purported classification is reasonably related to the Defendants'

interest in regulating the medical profession and protecting public

health.   Thus, Plaintiffs have failed to plead a plausible claim




                                -15-
for relief for violations of their equal protection or substantive

due process rights.3

              3.    The Individual-Capacity Claims Against the Officers

              Plaintiffs also request damages against the Officers for

the same purported violations of their constitutional rights.

Unlike an official-capacity § 1983 claim, in which the state itself

is   liable    for     damages,     an    individual-capacity      §     1983   claim

threatens the personal assets of the state officer only. See Hafer

v. Melo, 502 U.S. 21, 25 (1991).             For that reason, a state officer

sued in his personal capacity cannot invoke a defense of sovereign

immunity.      See id.        Here, however, the Officers have invoked a

defense   of       official   immunity,     which   is   non-jurisdictional        in

nature.        Asociación      de   Subscripción    Conjunta       del   Seguro   de

Responsabilidad Obligatorio v. Flores-Galarza, 484 F.3d 1, 26 (1st

Cir.   2007)       (citing    Erwin      Chemerinsky,    Federal    Jurisdiction,

§ 7.5.2, at 429 (4th ed. 2003)).             There are two types of official

immunity: absolute immunity and qualified immunity.                        Absolute

immunity completely bars Plaintiffs' ability to recover damages




3
   This is not to say that the Board can come up with a passing
score "out of thin air." Indeed, the Board has to comply with
several requirements under Puerto Rico law, which we do not address
since Plaintiffs expressly waived all supplemental claims and
because federal courts are constrained by the Eleventh Amendment
from forcing the Commonwealth to comply with its own laws. See
Cuesnongle v. Ramos, 835 F.2d 1486, 1497 (1st Cir. 1987).

                                          -16-
from legislators in their legislative functions,4 judges in their

judicial functions, prosecutors, executive officers engaged in

judicial functions (i.e., administrative law judges), and the

President of the United States. See Harlow v. Fitzgerald, 457 U.S.

800, 807 (1982).   Meanwhile, qualified immunity applies to general

executive officials.   See id.

          Different from absolute immunity, which always bars

damages, qualified immunity does not bar damages when Plaintiffs'

pleadings plausibly demonstrate that (1) there was a violation of

a constitutional right; and (2) the right was "clearly established"

at the time of the alleged violation.     Mlodzinski v. Lewis, 648

F.3d 24, 32 (1st Cir. 2011).      To evaluate the second prong, we

would also consider "whether the legal contours of the right in

question where sufficiently clear that [a defendant] would have

understood that what he was doing violated the right."   Id. at 32-

33 (citing Decotiis v. Whittemore, 635 F.3d 22, 36 (1st Cir. 2011);

Pearson v. Callahan, 555 U.S. 223, 243 (2009) (holding that the

requirements for qualified immunity can be applied in any order).

We have already explained why the Plaintiffs' allegations, even if



4
  Relying on Bogan v. Scott-Harris, 523 U.S. 44, 53-54 (1998), the
Officers argue that they receive absolute immunity because they
enact policy, such as setting the PRMLE passing score by way of
approving a regulation. Because we conclude that they would be
protected from Plaintiffs' individual-capacity damages claim even
under qualified immunity, we express no views on whether the Board
members would receive absolute immunity in their quasi-legislative
role.

                                 -17-
taken as true, fail to establish any constitutional violation.

Therefore, Defendants are clearly entitled to qualified immunity

under the first prong.5

          Consequently, we affirm the district court's dismissal of

Plaintiffs' individual-capacity damages claim against the Officers

under Rule 12(b)(6).

                          III.   Conclusion

          For the foregoing reasons, the judgment of the district

court is affirmed.

          AFFIRMED.




5
  The district court also decided the qualified immunity issue by
finding that there was no plausible deprivation of a clearly
established constitutional right.

                                 -18-
