          United States Court of Appeals
                      For the First Circuit

No. 12-1642

                      ROCKET LEARNING, INC.,

                      Plaintiff, Appellant,

  LEARNING ALLIANCES, LLC; CURRÍCULOS EDUCATIVOS Y PROYECTOS DE
  DISEÑO INSTRUCCIONAL, INC., a/k/a CEPDI, INC.; BEST EDUCATION
           TRENDS, INC.; NIGHT STAR JOB COLLEGE, INC.,

                           Plaintiffs,

                                v.

    JESÚS RIVERA-SÁNCHEZ, in his personal capacity and as the
      Secretary of the Puerto Rico Department of Education,

                       Defendant, Appellee.


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

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


                              Before

                       Lynch, Chief Judge,
              Torruella and Selya, Circuit Judges.


     Rafael Escalera Rodríguez, with whom Amelia Caicedo Santiago,
Carlos M. Hernández Burgos, and Reichard & Escalera were on brief,
for appellant.
     Margarita L. Mercado Echegaray, Attorney, Puerto Rico
Department of Justice, with whom Carlos E. Cardona Fernández,
Claudio Aliff Ortiz, Eliezer Aldarondo Ortiz, and Aldarondo & López
Bras were on brief, for appellee.


                          April 18, 2013
           LYNCH,   Chief   Judge.             Rocket   Learning,    Inc.,     an

educational services provider based in Puerto Rico, appeals from a

district court order dismissing with prejudice this civil rights

action, filed pursuant to 42 U.S.C. § 1983, against defendant Jesús

Rivera-Sánchez, personally and in his official capacity as Puerto

Rico's Secretary of Education.

           The suit alleges constitutional violations arising from

a 2010 change to the certification and enrollment process for

providers in the Commonwealth's Supplemental Educational Services

program, funded under federal law.             The claim is essentially that

this   change   unilaterally      and        arbitrarily   disadvantaged      the

appellant, a certified provider, vis-à-vis its competitors.                   The

district court found that the amended complaint lacked sufficiently

well-pled facts to support a plausible claim that the defendant had

violated   Rocket   Learning's    equal        protection,   due   process,    or

commercial free speech rights.          We now affirm the district court's

decision on the alternative ground that the defendant was entitled

to qualified immunity as to all claims.

                                        I.

           Title I, Part A of the Elementary and Secondary Education

Act of 1965, as amended by the No Child Left Behind Act of 2001,

makes available federal funding for state educational agencies to

provide, inter alia, various academic opportunities to students

from low-income families.        See No Child Left Behind Act of 2001,


                                    -2-
Pub. L. No. 107-110, §§ 1111-1117, 115 Stat. 1425, 1444-1501 (2002)

(codified at 20 U.S.C. §§ 6311-6317).                One of these opportunities,

the Supplemental        Educational      Services       (SES)       program,   entitles

eligible students to receive tutoring services at no cost from a

private or public organization certified by the state and selected

by the students' guardians.              20 U.S.C. § 6316(e)(1); 34 C.F.R.

§ 200.45.     The Commonwealth of Puerto Rico has participated in the

SES   program    since    2003,     as   administered          by    the   Puerto    Rico

Department of Education (PRDE).

              Each academic year, the PRDE conducts a three-stage

enrollment procedure to match eligible students with SES providers.

First, in the certification process, prospective SES providers

submit   an    annual    certification         or    re-certification          proposal,

through a Request for Qualification (RFQ), which determines their

eligibility      to   enroll   students        in    the     upcoming      year.      Such

proposals must comply with requirements enumerated in the RFQ

application and in the Commonwealth's SES Procedures Manual ("SES

Manual"),     and     cannot   be   amended         after    submission      except    as

requested by the PRDE.

              After    certification,      SES       providers       compete       amongst

themselves to attract eligible students and their guardians to sign

up for their tutoring services during the pre-enrollment process.

As    required   by    federal      regulation,        the    PRDE    initiates      pre-

enrollment by compiling a roster of certified providers on its


                                         -3-
website for SES participants to evaluate.             Additionally, providers

hold    informational   meetings,        independently         and   through   local

schools, to describe the services that they will offer to students

in the upcoming year.         At the close of pre-enrollment, guardians

fill out a form SES-101 to identify, in order of preference, the

three SES providers with whom they would like their student to

work.

            Finally,     in     the      pre-test    process,         students are

administered    tests    to     assess    their     individual        needs,   which

providers discuss with each student's guardians. The guardians and

a   provider   then    submit    a    form     SES-102    to    the    PRDE,   which

memorializes their agreement as to that student's needs and the

services the provider will furnish to him or her.                Once the SES-102

forms are approved, the PRDE executes a contract with the relevant

provider and services ordinarily begin within two to four days.

            This case concerns the Commonwealth's SES enrollment

procedure for the 2010-2011 academic year.               As initially set forth

by the PRDE, the entire process was to span no more than four

months.    It began on June 11, 2010, the deadline for submitting an

RFQ application, and ended on October 15, 2010, the date on which

the PRDE would enter into an SES contract with the second provider

identified on the form SES-101 if the preferred provider had not

begun administering tutoring services to the relevant student.




                                         -4-
                Rocket Learning submitted its certification proposal for

the 2010-2011 academic year on June 9, 2010.                  The SES Manual in

place at that time, the "Old Manual," limited the kinds of prizes

that providers could award to their students as end-of-course gifts

to "medals, trophies, certificates, [and] educational materials,

such       as   educational      games,      manipulative    toys,    books,    and

dictionaries," and prohibited the promotion of any end-of-course

gifts during the enrollment process.              Importantly, neither the Old

Manual nor the RFQ application required certification proposals to

list specifically all electronic devices that would be used as part

of a provider's tutoring program.1

                The    PRDE    approved      Rocket   Learning's     certification

proposal        in    August   2010,   and    thereafter    SES   providers    began

promoting their services in anticipation of the pre-enrollment

process. Despite the Old Manual's restrictions, some SES providers

sought to entice potential students during this period by offering

electronic devices as end-of-course gifts, making these providers


       1
       The RFQ application did require certification proposals to
describe the provider's teaching methodology, including any
"teaching material[s]" that the provider planned on using in its
tutoring modules.    See, e.g., R. App. at 428 ("Describe any
additional teaching material you plan on using and have not
described before.   50 word limit."); id. at 429 ("Evidence the
educational teaching materials by grade and by subject that
correspond to the students' needs that have been identified.").
The Old Manual also required providers to maintain a "bank of
curricula and/or teaching modules[,]" including the "educational
materials for each module or curriculum."       R. App. at 452.
However, the Old Manual did not state whether or where these
teaching materials had to be disclosed.

                                          -5-
more attractive. The SES Providers Association -- a not-for-profit

organization to which most of the Commonwealth's SES providers

belong, including the appellant -- sent a letter to the PRDE

informing    it   of   these   improper   promotional   activities   and

requesting that the agency enforce the Old Manual.

            On September 28, 2010, defendant Jesús Rivera-Sánchez

(the "Secretary") issued a superseding version of the SES Manual,

the "New Manual."      The New Manual required for the first time that

all technological devices to be used in a provider's teaching

process be specified in its certification proposal.            It also

amended the Old Manual's provision concerning end-of-course gifts,

first by explicitly stating that "[o]ffering incentives during the

enrollment [process] . . . is strictly prohibited[,]" and second by

removing the sentence stating that the giving of "[a]ny other [end-

of-course] article or gift [not listed in the SES Manual] is

strictly prohibited."      Notwithstanding these changes, the PRDE did

not request that providers submit amended certification proposals

consistent with the New Manual.

            The pre-enrollment process took place between October 4

and October 21, 2010.      According to the complaint, approximately

eight of the fifty participating SES providers disregarded the New

Manual's prohibition on the promotion of end-of-course electronic

gifts. These organizations experienced considerable increases over

their traditional enrollment numbers, while the remaining providers


                                   -6-
suffered corresponding enrollment decreases.                Following written

protests and a demonstration at the PRDE's headquarters, the

Secretary met on October 20, 2010 with some of the SES providers

disadvantaged during this pre-enrollment process.

            The PRDE annulled the first pre-enrollment period on

November 4, 2010, and scheduled a second for December 6 through

December    10,    2010.    On    November   16,    the   PRDE   circulated   a

questionnaire by email to a group of approximately twenty-five SES

providers   to    clarify   the   relationship      between   the   electronic

devices included or referred to in their respective original

certification proposals and the provider's instructional services.

The   PRDE's      Technology     and   Curriculum    Unit     evaluated   each

organization's answers to determine whether, for purposes of the

SES Manual, the technological devices in question constituted

"educational material" that could be promoted during the enrollment

process.     Rocket Learning was not among the recipients of the

November 16 email, although its proposal did include as teaching

materials the use of audiobooks, videos, and music requiring the

use of electronic devices.

            On December 4, 2010, two days before the start of the

second pre-enrollment period, the PRDE published a full-page ad in

a local newspaper notifying eligible students that they could

retain any of the educational materials, including technological

devices, that they used during the SES program.             The PRDE also sent


                                       -7-
a   December    6       email    instructing             all    certified    providers     that

"educational        material       specifically            included    in    the    provider's

[certification          proposal] . .           .     [would]      not be     considered an

incentive or reward for purposes of compliance with the rules of

the Department of Education[,]" and therefore could be promoted and

given away as end-of-course gifts.

           As       a    result     of     these         various    changes,       only    those

providers that had received the November 16 email were permitted to

promote electronic              devices    during         the    December pre-enrollment

process.       At       the     close     of    this       process,    Rocket       Learning's

enrollment numbers had fallen by approximately fifty to sixty

percent from the previous year's.

                                                II.

           Within days, on December 21, 2010, Rocket Learning, along

with four other SES providers (collectively, "plaintiffs"), filed

suit    against         the     Secretary,          in    his     personal    and    official

capacities,       alleging         that        the       PRDE    had   intentionally         and

arbitrarily favored a select number of certified providers during

the 2010-2011 SES enrollment process, depriving the plaintiffs of

their   constitutional            rights       to     equal      protection    of    the   law,

substantive and procedural due process, and commercial free speech.

The plaintiffs sought injunctive relief and monetary damages,

pursuant to 42 U.S.C. § 1983, and a declaratory judgment finding




                                                -8-
the Secretary's actions unconstitutional, pursuant to 28 U.S.C. § 2201.

               On the same day, the plaintiffs also filed a motion for

a preliminary injunction, see Fed. R. Civ. P. 65(a), which was

referred      to   a   magistrate    judge     along    with    that       part    of   the

defendant's        motion    to   dismiss,     filed     on     January      18,    2011,

concerning the court's subject matter jurisdiction.                         On February

12, 2011, the magistrate judge issued a Report and Recommendation

advising the district court to deny both motions.                           In relevant

part, the magistrate judge found that some of the plaintiffs,

including Rocket Learning, had shown a likelihood of success on

only       their   equal    protection    claim,       but     that    a    preliminary

injunction was nonetheless inappropriate because the plaintiffs'

injuries arising           from   that claim    were not        irreparable.            The

district       court   adopted     the   magistrate          judge's   findings         and

recommendations in full on March 24, 2011.

               After the plaintiffs filed an amended complaint2 on March

25, 2011, the defendant renewed his motion to dismiss under Fed. R.

Civ. P. 12(b)(1) and 12(b)(6), arguing that (1) the complaint

failed to articulate a plausible § 1983 claim for any of the

alleged constitutional violations, (2) declaratory and monetary

relief against the Secretary in his official capacity were barred


       2
       The plaintiffs amended their complaint to allow plaintiff
Learning Alliances, LLC, to specify "the real damages [it] suffered
. . . because of the arbitrary and discriminatory actions of the
Secretary of the [PRDE]." This amendment does not bear on Rocket
Learning's appeal.

                                         -9-
by the Eleventh Amendment, and (3) the Secretary was entitled to

qualified immunity on the plaintiffs' individual capacity claims.

The matter was again referred to the same magistrate judge.

                 On August 13, 2011, the magistrate judge issued a Report

and Recommendation advising the district court to dismiss all

claims3 except for the plaintiffs' equal protection claim against

the Secretary in his personal capacity.4            Rocket Learning, Inc. v.

Sánchez, Civil No. 10-2252(FAB), 2011 WL 7645795, at *14 (D.P.R.

Aug.       13,   2011).    After   the    parties   filed   their   respective

objections to the Report and Recommendation, the district court, on

de novo review, issued an opinion and judgment on March 30, 2012,




       3
       The magistrate judge concluded that the plaintiffs' claims
for relief against the Secretary in his official capacity were moot
or foreclosed by the Eleventh Amendment, Rocket Learning, Inc. v.
Sánchez, Civil No. 10-2252(FAB), 2011 WL 7645795, at *5, *14
(D.P.R. Aug. 13, 2011), and that the plaintiffs had failed to state
a claim on their due process and commercial free speech claims
against the Secretary in his personal capacity, id. at *11-13.
       4
       As to that claim, the magistrate judge found that the
plaintiffs   had   sufficiently   alleged   (a)   that  they   were
"substantially similar to other providers that included technology
in their proposals and that received the November 2010 e-mail," id.
at *8, (b) that the Secretary had "intentionally discriminated
against them" during the 2010-2011 enrollment process by not
allowing the plaintiffs to promote electronic devices as end-of-
course gifts, id. at *9-10, and (c) that the Secretary's procedures
in so doing were, "at times, retroactive" and "irrational," id. at
*10. Moreover, the magistrate judge concluded that the Secretary
was not entitled to qualified immunity because he could not have
reasonably thought that treating the plaintiffs in an arbitrary and
irrational way was consistent with the Equal Protection Clause.
Id. at *14.


                                         -10-
dismissing the complaint in its entirety. Rocket Learning, Inc. v.

Rivera-Sánchez, 851 F. Supp. 2d 384, 397-98 (D.P.R. 2012).

           Contrary to the magistrate judge, the district court

found that the plaintiffs failed to state an equal protection

claim.    Specifically, the court found that the plaintiffs had not

shown: (1) that they were similarly situated to the provider

recipients of the November 16 email that were allowed to promote

electronic devices, id. at 393; (2) that there was no rational

basis for the Secretary's actions, id. at 393-94; and (3) that the

Secretary possessed the requisite discriminatory intent to support

an equal protection claim, id. at 395.            Additionally, because the

plaintiffs failed to establish a viable equal protection claim, the

district court found that the issue of qualified immunity was moot.

Id. at 397.     This timely appeal followed.

                                    III.

           Rocket Learning challenges only the district court's

dismissal of the three constitutional claims for money damages

alleged as the basis for its § 1983 action against the Secretary in

his personal capacity.       We review a dismissal for failure to state

a claim de novo, accepting all well-pleaded facts as true and

drawing   all   reasonable    inferences     in    the   plaintiff's   favor.

Eldredge v. Town of Falmouth, 662 F.3d 100, 104 (1st Cir. 2011).

"To   survive   a   motion   to   dismiss,   a     complaint   must    contain

sufficient factual matter, accepted as true, to 'state a claim to


                                    -11-
relief that is plausible on its face.'"                    Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

              Defendant      asserts   that     the   district      court   properly

concluded     that    the    complaint      failed    to   allege    any    plausible

constitutional violation. Alternatively, the Secretary argues that

even if the complaint had done so, it was properly dismissed

because he was entitled to qualified immunity.

              "In reviewing a Rule 12(b)(6) dismissal, 'we are not

wedded to the [district] court's rationale and may affirm . . . on

any basis made apparent from the record.'"                 Cook v. Gates, 528 F.3d

42, 48 (1st Cir. 2008) (first alteration in original) (quoting

McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006)); see also

Uphoff Figueroa v. Alejandro, 597 F.3d 423, 429 (1st Cir. 2010);

Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).

We   affirm    on    the    ground   that    the   defendant     was   entitled   to

qualified immunity.         See Sanchez v. Pereira-Castillo, 590 F.3d 31,

52 (1st Cir. 2009);         Beckles v. City of New York, 492 F. App'x 181,

182 (2d Cir. 2012).

A.            The Doctrine of Qualified Immunity

              The doctrine of qualified immunity protects a state

official from liability for damages under § 1983 where her conduct

did "not violate clearly established statutory or constitutional

rights of which a reasonable person would have known."                      Harlow v.


                                         -12-
Fitzgerald, 457 U.S. 800, 818 (1982); see Limone v. Condon, 372

F.3d 39, 44 (1st Cir. 2004).       Because the doctrine serves as "an

immunity from suit rather than a mere defense to liability[,] . . .

it is effectively lost if a case is erroneously permitted to go to

trial."      Mitchell    v.   Forsyth,    472   U.S.     511,   526    (1985).

Accordingly, qualified immunity should be resolved at the earliest

possible stage of litigation. Maldonado v. Fontanes, 568 F.3d 263,

268 (1st Cir. 2009).

            The two-step procedure for assessing a plea of qualified

immunity at the motion to dismiss stage is well-rehearsed.                   See,

e.g., Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 532-33

(1st Cir. 2011); Eldredge, 662 F.3d at 104-05.          On the basis of the

pleadings, we must decide "(1) whether the facts alleged or shown

by the plaintiff make out a violation of a constitutional right;

and (2) if so, whether the right was 'clearly established' at the

time of the defendant's alleged violation." Maldonado, 568 F.3d at

269 (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

            The "clearly established" inquiry, in turn, has two

related aspects.   One aspect focuses exclusively on the clarity of

the law at the time of the alleged violation.                   "To overcome

qualified    immunity,    '[t]he   contours     of     the   right    must     be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right.'"                 Id. (alteration in

original) (quoting Anderson v. Creigton, 483 U.S. 635, 640 (1987)).


                                   -13-
The other aspect considers the specific facts of the case at bar.

The "clearly established" inquiry "must be undertaken in light of

the   specific   context   of    the    case,    not    as   a   broad    general

proposition."     Brosseau      v.   Haugen,    543    U.S. 194,    198    (2004)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)) (internal

quotation marks omitted).            Thus, "[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable [official] that his

conduct was unlawful in the situation he confronted."               Maldonado,

568 F.3d at 269 (first alteration in original) (emphasis added)

(quoting Brosseau, 543 U.S. at 199) (internal quotation marks

omitted).

            In Pearson v. Callahan, 555 U.S. 223, the Supreme Court

recognized that "[w]hen qualified immunity is asserted at the

pleading stage, the precise factual basis for the plaintiff's claim

or claims may be hard to identify."              Id. at 238-39.          As such,

federal courts have discretion to administer the components of the

qualified immunity test in the order that they determine "will best

facilitate the fair and efficient disposition of each case."                  Id.

at 242.   Where the court can "quickly and easily decide that there

was no violation of clearly established law," it need not "turn[]

to the more difficult question [of] whether the relevant facts make

out a constitutional question at all."           Id. at 239.




                                      -14-
B.            The Equal Protection Claim

              Rocket Learning argues that the Secretary violated the

Equal Protection Clause of the Fourteenth Amendment by improperly

favoring a select group of SES providers during the 2010-2011

enrollment process.5       Specifically, the complaint asserts that, by

way of the PRDE's November 16 and December 6 emails, the Secretary

arbitrarily created two classes of otherwise similarly situated

providers: those permitted to promote and award electronic devices

and   those    not   so   permitted.     This   classification,       appellant

contends, was "wholly irrelevant" to the purposes of the SES

program and      cannot    withstand    even   the   lowest   level   of equal

protection scrutiny.6


      5
        In connection with its equal protection claim, Rocket
Learning also asserts that the district court erred by declining to
consider the preliminary injunction hearing record. We disagree.
It is well established that at the motion to dismiss stage, "any
consideration of documents not attached to the complaint, or not
expressly incorporated therein, is forbidden, unless the proceeding
is properly converted into one for summary judgment under Rule 56."
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); see Fed. R. Civ.
P. 12(d). The plaintiffs did not request such a conversion before
the magistrate judge, Rocket Learning, 2011 WL 7645795, at *6, and
we conclude, as the district court did, that the preliminary
injunction record does not fall within any of the narrow exceptions
to this rule, Rocket Learning, 851 F. Supp. 2d at 391; see also
Watterson, 987 F.2d at 3-4 (describing exceptions and collecting
cases).
      6
        Classifications that impinge on "fundamental rights,"
including free speech rights, are subject to strict scrutiny and
will only be upheld if "precisely tailored to serve a compelling
governmental interest." Plyler v. Doe, 457 U.S. 202, 217 (1982).
Rocket Learning argues unpersuasively that this court should apply
strict scrutiny to the Secretary's purported classification system,
which incidentally restricted the plaintiffs' speech-related

                                       -15-
            The Equal Protection Clause requires that "all persons

similarly situated . . . be treated alike."       City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see Tapalian v.

Tusino, 377 F.3d 1, 5 (1st Cir. 2004).      Accordingly, to establish

a plausible equal protection claim, a plaintiff not relying on

typically   impermissible bases    for   classification   (e.g.,   race,

religion, etc.) must show that it was "intentionally treated

differently from others similarly situated, that no rational basis

exist[ed] for that difference in treatment, and that the different

treatment was based on a malicious or bad faith intent to injure."

Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006).

            The district court concluded that Rocket Learning failed

to state a plausible equal protection claim. We do not decide that

question.    Rather, the appellant's claim falters on the "clearly

established" prong of the qualified immunity test. The record

establishes that a reasonable official in the Secretary's position

could have rationally concluded that his actions were consistent

with the Constitution.

            At the time Rocket Learning submitted its SES proposal,

the RFQ application required providers to describe any "teaching

material[s]" that they intended to use as part of their tutoring


promotional activities. For reasons set forth in our discussion of
Rocket Learning's commercial free speech claim, and in keeping with
the decisions of both the magistrate and district court judges, we
decline to do so. See Rocket Learning, 851 F. Supp. 2d at 394;
Rocket Learning, 2011 WL 7645795, at *9.

                                  -16-
services, and the Old Manual, in turn, permitted these materials to

be awarded as end-of-course gifts.      See supra note 1.   On the

Secretary's account, these rules promoted the PRDE's legitimate

interest in ensuring that guardians selected providers during pre-

enrollment based upon the merits of their educational services,

rather than the quality of their giveaways.

          When presented with allegations just weeks before the

first pre-enrollment process that some providers were violating

these rules, the Secretary set out to clarify the contours of the

rules and to determine whether the allegations were true.      The

Secretary invalidated the first round of pre-enrollment and set up

a second, creating time pressures on all, including himself, to

conduct a new certification inquiry aimed at assessing which

providers should be permitted to promote and award electronic

devices as "educational material[s]."

          The Secretary asserts that Rocket Learning was not among

the recipients of the November 16 email because it had not included

the sorts of electronic devices in its certification proposal that

warranted additional inquiry.   Although Rocket Learning's proposal

did indicate its intention to use music, videos, and audiobooks for

some of its tutorial modules, it did not describe the types or

quantities of technological devices that students would use to play

these materials. For example, the defendant points out that "since

the use of one CD player is enough to provide music or to play the


                                -17-
audio-book for a whole classroom," it would be unreasonable for the

PRDE to assume "that plaintiffs intended to give a CD player to

each student."     As such, the Secretary did not view the plaintiffs

as within the category intended to receive the email.

             At first blush, the Secretary's explanation for his

decision is not unreasonable. Indeed, the district court concluded

that   the    explanation     was   sufficient    to     establish   that   the

plaintiffs had not shown themselves to be similarly situated to the

recipients of the November 16 email. Rocket Learning, 851 F. Supp.

2d at 393.     We agree that a reasonable official in the Secretary's

position could think that the groups were not similarly situated.

But even if we found that the groups were similarly situated, that

would not, taken alone, defeat qualified immunity.

             Rocket Learning was also required to show that, in

misapplying the prohibitions in question, the Secretary acted with

a discriminatory purpose, which "implies that the decisionmaker

. . . selected or reaffirmed a particular course of action at least

in part 'because of,' not merely 'in spite of,' its adverse effects

upon an identifiable group."         Pers. Adm'r of Mass. v. Feeney, 442

U.S. 256, 279 (1979).         The appellant acknowledges that at this

stage of the litigation, it has not uncovered the "real motivation"

for the      Secretary's    purportedly     irrational    and discriminatory

conduct. Rocket Learning, 851 F. Supp. 2d at 395.             Instead, Rocket

Learning asks the court to infer the existence of an improper


                                     -18-
motivation   from     the    Secretary's    last-minute      rule    changes    and

retroactive application of the New Manual's provisions.

            The PRDE does not say that its administration of the

2010-2011    SES    enrollment    process     was   ideal.      However,       these

inadequacies       existed    against   the       backdrop    of    the   exigent

circumstances the Secretary faced, the PRDE's legitimate interest

in enforcing the prohibitions in question, and the seemingly non-

discriminatory      explanation    that     the     Secretary      furnished    for

treating the appellant as he did.

            This court has recognized that the "malice/bad faith

standard should be scrupulously met," Yerardi's Moody St. Rest. &

Lounge, Inc. v. Bd. of Selectmen of Town of Randolph, 932 F.2d 89,

94 (1st Cir. 1991) (quoting LeClair v. Saunders, 627 F.2d 606, 611

(2d Cir. 1980)) (internal quotation mark omitted), and that cases

satisfying this standard are "infrequent," id.               With this in mind,

and in light of the idiosyncratic circumstances surrounding the

2010-2011 SES enrollment process, we conclude that the appellant's

allegations were insufficient to show that the Secretary's actions

violated clearly established law under the second prong of the

qualified immunity test.

C.          The Procedural Due Process Claim

            Rocket Learning also claims that the Secretary violated

the procedural component of the Fourteenth Amendment's Due Process




                                     -19-
Clause.7     To establish a procedural due process violation, a

plaintiff must show that (1) it was deprived of a protected

property    interest,   and   (2)   the    procedures   attendant    to   that

deprivation were constitutionally inadequate. See González-Fuentes

v. Molina, 607 F.3d 864, 886 (1st Cir. 2010); Marrero-Gutierrez v.

Molina, 491 F.3d 1, 8 (1st Cir. 2007).

            Rocket Learning asserts a property right, arising from

its   SES   certification,    to    participate    in   a   fair    and   non-

discriminatory pre-enrollment process.          The Secretary is said to

have deprived the appellant of this property interest without the

process due by failing to provide the appellant with adequate

notice of the changes regarding the prohibitions on promoting and

awarding electronic devices or with an opportunity to challenge the

allegedly discriminatory enforcement of these changes.             See Rocket

Learning, 851 F. Supp. 2d at 395.

            The district court rejected this claim, finding that,

under Puerto Rico law, "a bidder for a contract with the government

does not acquire a property interest until the contract has been

formalized."    Id. (emphasis added).        The district court relied on

the Supreme Court of Puerto Rico's decision in Cancel v. Municipio

de San Juan, 1 P.R. Offic. Trans. 416 (1973).           There, an initially



      7
        While the complaint alleged violations of both the
procedural and substantive components of the Due Process Clause,
Rocket Learning has challenged only the district court's dismissal
of its procedural due process claim.

                                    -20-
successful bidder for a government contract sought to enjoin the

Municipality of San Juan from subsequently awarding that contract

to another bidder.       The court dismissed the case, holding that

Cancel had no claim to entitlement because "an agency has the right

to   revoke    the   award   of   a   contract   at   any   time   before   the

corresponding contract is entered into."               Id. at 422 (quoting

Cussiniano      v.   Commonwealth,     100   P.R.R.    333    (P.R.   1971)).

Similarly, in the circumstances of this case, the PRDE would not

enter into a contract with Rocket Learning until one or more

students actually enrolled in its tutoring program, i.e., after the

pre-enrollment process was already completed.

              Rocket Learning attempts to distinguish Cancel, arguing

that its SES certification is more akin to a license than a

contract, and relying on a series of cases recognizing that a

state-issued license may vest in its recipient a property interest

in the rights granted therein.         See, e.g., Bell v. Burson, 402 U.S.

535, 539 (1971); González-Droz v. González-Colón, 660 F.3d 1, 13

(1st Cir. 2011); Indus. Safety Equip. Ass'n, Inc. v. EPA, 837 F.2d

1115, 1121 (D.C. Cir. 1988).           This argument, not raised in the

district court, see Rocket Learning, 851 F. Supp. 2d at 395-96

("[P]laintiffs do not attempt to distinguish Cancel from the

situation before the Court . . . ."), is unpersuasive.

              Each of the cases cited involved a formally issued

license or certification that unambiguously conferred some property


                                      -21-
interests to its owner.          See, e.g., Indus. Safety Equip., 837 F.2d

at 1122 ("There is no question that appellants possess cognizable

property       interests   in      their   respirator     certifications.").

Additionally, in Bell and González-Droz, it was also clear that the

state    had    deprived   the    plaintiff   of   the   particular    property

interest at issue because the license had been revoked entirely.

Bell, 402 U.S. at 539 (suspension of driver's license); González-

Droz, 660 F.3d at 7 (suspension of medical license).8

               In contrast, Rocket Learning cites no authority treating

SES certifications as state-issued licenses, let alone licenses

conferring      a   property    interest in   a    particular   type   of   pre-

enrollment procedure.          Even if the appellant had done so, and had

shown that the PRDE deprived it of this right,9 there is nothing in


     8
       Indeed, to the extent the appellant's claim is at all like
the cited cases, it is most similar to Industrial Safety, in which
the D.C. Circuit concluded that the plaintiffs were not deprived of
any property interest secured by their certifications to sell
certain asbestos-protection respirators after the EPA published a
guide suggesting that these respirators were less effective than
others available on the market. See 837 F.2d at 1122 ("The EPA
. . . [has] not revoked any certificates; rather, [it has] only
introduced new information into the market with a possible effect
on competition.").
     9
        Before the district court, the plaintiffs argued that the
Secretary's actions amounted to a "de facto" decertification,
claiming that    "their   SES   certification   [was]  essentially
'worthless' without the opportunity to compete with other
providers--on equal terms--to enroll students in their programs."
Rocket Learning, 2011 WL 7645795, at *11. The appellant has not
attempted to develop this argument on appeal, however, and so it is
waived. See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687
F.3d 465, 492 (1st Cir. 2012), cert. denied, 2013 WL 1091770 (U.S.
Mar. 18, 2013) (finding due process claim waived where "[b]asic

                                       -22-
the   record      to     suggest    that       the   process      attendant    to    that

deprivation fell short of any requirements announced under clearly

established law.           Indeed, Rocket Learning offers no authority,

either     from    the    relevant       case    law   or    from    the    PRDE's     own

publications concerning the SES program, announcing procedural

guarantees in excess of those employed by the Secretary.10

             Since the property interest asserted here is dubious, and

there has been no showing that the process attendant to its alleged

deprivation       was    deficient,      we     conclude     that    the    appellant's

allegations       do    not    support    a    plausible     due process       claim as

required under the first prong of the qualified immunity test.

D.           The Commercial Speech Claim

             We more quickly dispatch Rocket Learning's remaining

claim that the Secretary violated its First Amendment commercial

speech rights. Commercial speech, or "expression related solely to

the economic       interests       of    the    speaker     and   its    audience," is

ordinarily accorded less First Amendment protection than are other

forms of constitutionally guaranteed expression.                        El Día, Inc. v.

P.R. Dep't of Consumer Affairs, 413 F.3d 110, 115 (1st Cir. 2005)

(quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of



issues necessary          to    assess     [it]"     had    not   been     addressed   or
developed).
      10
       Moreover, as the Secretary highlights, there is no dispute
that the RFQ application permitted the PRDE to ask for
clarification regarding SES certification proposals.

                                           -23-
N.Y., 447 U.S. 557, 561 (1980)) (internal quotation marks omitted).

Nonetheless, under the Central Hudson framework, where it is

"neither misleading nor related to unlawful activity," commercial

speech is safeguarded from unwarranted government intrusion.                  447

U.S. at 564.

            Rocket Learning appears to assert that it had a First

Amendment right to promote electronic devices as end-of-course

gifts during the December pre-enrollment process, and the Secretary

admits that he restricted the appellant's promotional activities in

this regard.      See Rocket Learning, 2011 WL 7645795, at *13.            As the

magistrate      judge   recognized,     however,      this    restriction    was

incidental to the Secretary's interpretation and enforcement of the

New Manual's rule governing the awarding of end-of-course gifts.

Because   the     Secretary   concluded      that    the    electronic   devices

described in the plaintiffs' SES certification proposals were not

awardable    as    end-of-course      gifts,   the    plaintiffs    were    also

disallowed from promoting those devices during pre-enrollment. Id.

Moreover, the complaint did not allege that the plaintiffs were

prevented from informing guardians or students about any of "the

approved aspects of their [SES certification] proposals."                  Id.

            The    district   court    dismissed      the    plaintiffs'    First

Amendment claim on this basis, explaining that:

            [I]f, as this Court    has determined, plaintiffs
            did not include the    type of electronic devices
            in their proposals     that defendant understood
            could be given away    as gifts to students, they

                                      -24-
          were not only banned from the underlying
          activity of gift-giving, but they were also
          banned from promoting the giving away of
          gifts, as allowing the latter without the
          former would clearly be misleading, and thus
          in violation of the first prong of the Central
          Hudson test.

Rocket Learning, 851 F. Supp. 2d at 396-97 (citing Central Hudson,

447 U.S. at 566 ("For commercial speech to come within [the First

Amendment's protections], it at least must concern lawful activity

and not be misleading." (emphasis added))); see also Va. State Bd.

of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,

771 (1976) ("Untruthful speech, commercial or otherwise, has never

been protected for its own sake.").

          We see no basis for disturbing the district court's well-

reasoned determination. For the reasons stated above, we have also

found that the Secretary offered a rational explanation for his

decision not to allow the appellant to award electronic devices as

end-of-course gifts.   As a result, any promotion of such devices

during the December pre-enrollment process by the appellant would

necessarily mislead guardians and students, removing that promotion

from the ambit of the First Amendment.        See Wine & Spirits

Retailers, Inc. v. Rhode Island, 481 F.3d 1, 8 (1st Cir. 2007)

(recognizing that, under the Central Hudson framework, "advertising

that is actually misleading 'may be prohibited entirely'" (quoting

In re R.M.J., 455 U.S. 191, 203 (1982))).




                               -25-
          Accordingly,   the   Secretary   is   entitled   to   qualified

immunity based upon Rocket Learning's failure to articulate a

plausible First Amendment violation.

                                 IV.

          The judgment of the district court is affirmed.




                                 -26-
