          United States Court of Appeals
                      For the First Circuit


No. 17-1723

         COMITÉ FIESTAS DE LA CALLE SAN SEBASTIÁN, INC.,

                      Plaintiff, Appellant,

                                v.

CARMEN YULÍN CRUZ SOTO, in her official and personal capacities;
                    MUNICIPALITY OF SAN JUAN,

                      Defendants, Appellees,

    SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC.; ALFREDO
                          CARRASQUILLO,

                           Defendants.


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

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


                              Before

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


     Jane A. Becker Whitaker, with whom Law Offices of Jane Becker
Whitaker was on brief, for appellant.
     Héctor Benítez Arraiza and Patricia Rivera MacMurray, with
whom Quiñones, Arobona & Candelario, PSC, Giselle M. Martínez-
Velázquez, and Raul S. Mariani-Franco were on brief, for appellees.
May 29, 2019
            KAYATTA, Circuit Judge.            The Comité Fiestas de la Calle

San Sebastián, Inc. ("the Comité") is a non-profit corporation

that promotes and helps run the Fiestas de la Calle San Sebastián

festival in San Juan, Puerto Rico.                This lawsuit arises from the

Comité's unhappiness with its diminished assigned role as vendor

and presenter at the 2015 Fiestas de la Calle San Sebastián

celebration.      After discovery, the district court granted summary

judgment for San Juan Mayor Carmen Yulín Cruz and the municipality

of San Juan on the Comité's trademark-infringement and First

Amendment retaliation, political discrimination, and religious

discrimination claims.           We now affirm.

                                        I.

            We first survey the pertinent facts.               The Fiestas de la

Calle San Sebastián is a four-day festival held in Old San Juan.

The Comité takes part in organizing and running the festival in

conjunction with the municipality of San Juan and likens its role

to that of the New York Road Runners in planning and orchestrating

the   New   York    City    Marathon.         Specifically,     it     "promote[s]

traditional      Puerto    Rican    music    and    culture,   particularly      the

celebration of Saint [Sebastián]" at the festival.                     The Comité

purports to be the successor organization of an older group, the

Vecinos de la Calle San Sebastián, which revitalized the festival.

            In    2014,    the     Comité    --    which   considers    itself    an

apolitical       entity    --     publicly        criticized   Mayor    Cruz     for


                                       - 3 -
deemphasizing   the   religious    and     traditional    aspects    of     the

celebration and for "turning historic Old San Juan into a big bar

with contests to see who could drink the most." The Comité alleges

that the municipality and Mayor Cruz, who is a member of the

Popular Democratic Party, retaliated against the Comité in various

ways in response to this criticism.              Specifically, the Comité

claims that the municipality awarded it a less advantageous vendor

contract than in previous years; imposed upon the Comité onerous

certification requirements that it did not enforce against two

other vendors with connections to the Popular Democratic Party;

and granted a coveted entertainment timeslot, during which the

Comité had previously presented traditional Puerto Rican music, to

a donor of the Popular Democratic Party.

          The      Comité    brought       First     Amendment      political

discrimination, retaliation, and religious discrimination claims

as well as counts for trademark infringement, alleging that the

Comité owns the "Fiestas de la Calle San Sebastián" mark.                 After

discovery, the district court granted summary judgment for Cruz

and the municipality on all counts.          Comité Fiestas de la Calle

San Sebastián, Inc. v. Cruz, 207 F. Supp. 3d 129, 148 (D.P.R.

2016).    The      Comité   then   filed     a     Rule 59(e)    motion     for

reconsideration.    The Comité's accompanying memorandum reasserted

its position that the record precluded summary judgment on the

Comité's political discrimination, trademark, and libel claims.


                                   - 4 -
In support of its trademark-infringement claims, the Comité also

brought new evidence from the U.S. Patent and Trademark Office

(PTO) in the form of a preliminary authorization to publish the

"Fiestas de la Calle San Sebastián" mark.                Comité Fiestas de la

Calle San Sebastián, Inc. v. Cruz, No. 14-1929 (FAB), 2017 WL

6888519, at *1 (D.P.R. May 19, 2017).              The district court denied

the motion, id. at *2, and this appeal followed.

                                       II.

                                       A.

            We    first   address   our      jurisdiction      to    consider       the

Comité's     timely       appeal.           Federal     Rule        of     Appellate

Procedure 3(c)(1)(B) requires that a notice of appeal "designate

the judgment, order, or part thereof being appealed."                             While

"[c]ourts will liberally construe the requirements of Rule 3," its

strictures "are jurisdictional in nature, and their satisfaction

is a prerequisite to appellate review."               Smith v. Barry, 502 U.S.

244, 248 (1992).

            The   Comité's    notice     of    appeal    references         only    the

district     court's      denial    of       its   Rule 59(e)            motion     for

reconsideration.       The Comité's opening brief on appeal, however,

solely challenges portions of the underlying summary judgment

order.     The government defendants argue that this misalignment

strips us of our ability to reach the merits of the district

court's summary judgment order.


                                    - 5 -
              Our    circuit's       Rule 3(c)(1)(B)      precedents   certainly

accommodate a robust application of waiver in circumstances such

as this one.         We have several times ruled that we do not have

jurisdiction to review an underlying judgment when the notice of

appeal designates only the district court's denial of a motion for

reconsideration.        See Zukowski v. St. Lukes Home Care Program, 326

F.3d 278, 282 (1st Cir. 2003); Mariani-Girón v. Acevedo-Ruiz, 945

F.2d 1, 3 (1st Cir. 1991); see also Wright & Miller, Fed. Practice

& Procedure § 3949.4 (4th ed. 2018).                However, our case law also

has   some    looseness       in   its   joints.     We   have   recognized,   for

instance, that "courts have some latitude to consider other grounds

originally urged against the underlying dismissal, especially

where the issues on original dismissal and the reconsideration

order overlap or are intertwined."               Díaz Aviation Corp. v. Airport

Aviation Servs., Inc., 716 F.3d 256, 262 (1st Cir. 2013) (quoting

McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 213 (1st Cir.

2012)); see generally Wright & Miller, supra, § 3949.4 ("[C]ourts

have often been willing to rescue such appellants by inferring

that they meant to appeal from the underlying judgment . . . .").

              Accordingly, in Díaz Aviation, we considered the merits

of a district court's underlying judgment when the notice of appeal

only referenced the court's denial of a motion for reconsideration

because      the    "motion    for   reconsideration      largely   rehashed   the

arguments . . . made in opposition to the original judgment."                  716


                                         - 6 -
F.3d at 262.       Under similar circumstances, in Town of Norwood v.

New England Power Company, we addressed a challenge to the district

court's motion-to-dismiss order because the appellant's motion for

reconsideration "cover[ed] . . . more or less the same points . . .

earlier made to the district court" on the motion to dismiss.                   202

F.3d 408, 415 (1st Cir. 2000).

             Here, as in Díaz Aviation and Town of Norwood, the

Comité's   Rule 59(e)      motion     (with   the      sole   exception   of    the

reference to new evidence on the trademark claim) raised "mere[]

elaborations of claims already presented."                Comité Fiestas de la

Calle   San    Sebastián,       Inc.,    2017     WL    6888519,     at *1     n.2.

Specifically, the Comité largely rehashed the same arguments as to

its political discrimination and trademark claims that it raised

in its opposition to summary judgment and that it now seeks to

raise before us on appeal.              And, as far as these claims are

concerned,     a    challenge    to     the   denial     of    its   motion     for

reconsideration and a challenge to the entry of summary judgment

for the government defendants turn on the same issue of law --

that is, whether a de novo review of the record supported the

district court's conclusions that there is no genuine issue of

material   fact     and   the   government      defendants     are   entitled    to

judgment as a matter of law.            See, e.g., Best Auto Repair Shop,

Inc. v. Universal Insur. Grp., 875 F.3d 733, 737 (1st Cir. 2017)

("We 'normally review a district court's decision to grant or deny


                                      - 7 -
a motion for reconsideration for abuse of discretion.'           But here,

as   'the   parties'   arguments   [are]   directed   to   the   underlying

substantive issue (the propriety vel non of summary judgment)

rather than the procedural issue (the desirability vel non of

reconsideration),' we review de novo the summary judgment ruling."

(citation omitted) (quoting Santiago v. Puerto Rico, 655 F.3d 61,

67 (1st Cir. 2011))), cert. denied, 139 S. Ct. 119 (2018).

            Additionally -- and importantly -- deeming the notice of

appeal sufficient to preserve for appellate review the overlapping

issues of law raised by the summary judgment ruling and the

Rule 59(e) ruling will cause no unfair prejudice to the appellees

in this case or to the administration of the appeal. The appellees

were timely apprised of the Comité's appeal.           They point to no

reliance of any type on the substance of the notice.              And both

parties have fully briefed the merits in ordinary course.           As the

Supreme Court has observed, "[i]t is too late in the day and

entirely contrary to the spirit of the Federal Rules of Civil

Procedure" to favor dispositions based on "mere technicalities."

Foman v. Davis, 371 U.S. 178, 181 (1962); see also Chamorro v.

Puerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) ("[B]oth

sides have fully briefed the merits, and undertaking appellate

review of the original order of dismissal would not unfairly

prejudice [appellee].").      Moreover, had the notice more wisely

appealed the "final judgment," the defendants would have learned


                                   - 8 -
exactly which orders the Comité wished to challenge in its appeal

no sooner than they did here.      See Denault v. Ahern, 857 F.3d 76,

81–82 (1st Cir. 2017) (explaining that an appeal of the final

judgment also appeals all interlocutory orders).

            That the Comité's Rule 59(e) motion also included new

argumentation as to its trademark claim should not strip us of our

jurisdiction over these other, preserved arguments.         In Biltcliffe

v. CitiMortgage, Inc., we found that we lacked jurisdiction over

a plaintiff's challenge to the district court's entry of summary

judgment when his notice of appeal only referenced his motion for

reconsideration and his memorandum in support of reconsideration

advanced additional arguments not raised at summary judgment.           772

F.3d 925, 929–30 (1st Cir. 2014).      Importantly, we did so in part

because we construed the plaintiff's opening appellate brief as

only advancing arguments directed at the district court's denial

of   the   motion   for   reconsideration,   see   id.   ("To   the   extent

[Biltcliffe] revisits certain substantive bases for the district

court's summary judgment order, he argues only that the court made

manifest errors of law and, as a result, abused its discretion

. . . ."), vitiating any claim that the defendant had proper notice

of the plaintiff's intent to appeal the entry of summary judgment.

Here, by contrast, the plaintiff's opening appellate brief plainly

and exclusively sought direct review of the summary judgment ruling

under Rule 56.      Accordingly, we hold that the Comité's appeal


                                  - 9 -
fairly encompasses both the Rule 59(e) ruling and those parts of

the district court's summary judgment order that are addressed in

the Comité's memorandum in support of its Rule 59(e) motion (i.e.,

the Comité's political discrimination and trademark-infringement

claims).

             Despite our willingness to broadly construe the notice

of appeal, the Comité has nonetheless failed to preserve for our

review every claim that it includes in its appellate briefs.              The

Comité's First Amendment retaliation claim was not raised at all

in    its   motion    for    reconsideration,   so   our   dispensation   for

overlapping arguments cannot save that claim.                And while the

Comité's appeal of the Rule 59(e) motion plainly sufficed to

preserve the Comité's argument that new evidence from the PTO

supported its trademark claim, the Comité chose not to raise that

argument in its main brief on appeal. Hence, this claim is waived.

See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29

(1st Cir. 2015).

                                       B.

             We finally turn to the merits of the preserved rulings.

The    Comité's      political    discrimination     claim   rests   on   the

allegation that the government defendants gave more favorable

organizational roles and contracts to two other event organizers

due to their political support for Mayor Cruz and the Popular

Democratic Party.           The Comité also alleges that the government


                                     - 10 -
defendants subjected it to a more rigorous permitting process than

it did these political supporters.      The district court nipped this

claim in the bud on summary judgment because the Comité pointed to

no evidence that the government defendants knew the political

affiliation of the Comité or its members.           Comité Fiestas de la

Calle San Sebastián, Inc., 207 F. Supp. 3d at 144.            The court's

legal premise aptly captures the law: A plaintiff bringing a claim

that   a   government    entity   discriminated    against   it   based   on

political affiliation need generally prove, as a starter, that the

defendant was aware of the plaintiff's relevant affiliation (or

lack thereof).     See Barry v. Moran, 661 F.3d 696, 704 (1st Cir.

2011); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.

2010). So, the only question for us is whether the record lacks

such evidence.

            The Comité points to four pages of the record that it

claims undermine the district court's assessment of the summary-

judgment record.        But as best as we can tell from those pages,

they show only that, during discovery, it became clear that the

Comité itself is apolitical and that the political activities of

its principal members remain unknown.             There is no cognizable

evidence that the pertinent city officials knew these facts when

they made the challenged decisions.

            In its brief on appeal, the Comité asserts that Mayor

Cruz's     "preferred    contractors   all   donated   to    Mayor   Cruz's


                                   - 11 -
campaign," evidencing the government defendants' hostility toward

the Comité for "fail[ing] to show public support for Mayor Cruz."

Certainly, a plaintiff can support a prima facie case of political

discrimination by showing that its "decision not to associate with

a political party or faction" was a substantial or motivating

factor in an employer's decision to take an adverse employment

action against the plaintiff.             See Barry, 661 F.3d at 703–04.         On

appeal, however, the Comité points to no evidence that those

deciding    to   favor    the   preferred         contractors   knew    that   these

contractors supported the Mayor or her political party.                    Rather,

the   Comité     points    only     to     evidence     produced   in    discovery

demonstrating that the contractors admitted to voting for or

supporting the Popular Democratic Party at some unknown time in

the past and that one acknowledged donating to the Mayor after the

decisions at issue here had already been made.                  On such a record,

it takes too much speculation to infer that those deciding to favor

the preferred contractors considered them political allies.                      We

therefore    cannot      conclude    that    the     district    court   erred    in

dismissing the Comité's political discrimination claim on such a

record.     See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.

1994) ("Without more, a nonmoving plaintiff-employee's unsupported

and speculative assertions regarding political discrimination will

not be enough to survive summary judgment.").




                                         - 12 -
           As to the Comité's trademark claim, its opening brief

points to nothing in the record establishing that the "Fiestas de

la Calles San Sebastián" term has gained the secondary meaning

required to obtain trademark protection.              See Bos. Beer Co., Ltd.

v. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir. 1993)

(explaining   that     descriptive    terms     are    entitled   to    trademark

protection only upon attaining secondary meaning).                And even were

we to consider the affidavits the Comité relies upon for this point

in its reply brief, none even hints that the public associates

this term with a single commercial source.             Bos. Duck Tours, LP v.

Super Duck Tours, LLC, 531 F.3d 1, 13 (1st Cir. 2008) (observing

that   establishing     secondary     meaning    requires    proof      that   the

"public associates the term or phrase not only with a specific

feature or quality, but also with a single commercial source").

           Thus, because the Comité has failed to show that any

"trial[-]worthy issue persists" as to its political discrimination

and trademark-infringement claims, Iverson v. City of Bos., 452

F.3d 94, 98 (1st Cir. 2006), the district court did not err in

entering summary judgment for the government defendants on those

claims.

                                      III.

           For   the    foregoing     reasons,    we    affirm    the    district

court's entry of summary judgment for the government defendants




                                     - 13 -
and   the   district   court's   denial    of   the   Comité's   motion   for

reconsideration.




                                  - 14 -
