          United States Court of Appeals
                      For the First Circuit

No. 13-2277

                     IVÁN DÍAZ-CARRASQUILLO,

                       Plaintiff, Appellee,

                                v.

                    ALEJANDRO GARCÍA-PADILLA,
         as Governor of the Commonwealth of Puerto Rico,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]



                              Before

                 Torruella, Howard and Thompson,
                         Circuit Judges.


     Margarita Mercado-Echegaray, Solicitor General, with whom
Tanaira Padilla-Rodríguez, Deputy Solicitor General, were on brief,
for appellant.
     Jean Philip Gauthier Iñesta, with whom Jean Philip Gauthier
Law Office was on brief, for appellee.



                          April 16, 2014
           HOWARD, Circuit Judge.        This is an interlocutory appeal

from a preliminary injunction issued in favor of plaintiff Iván

Díaz-Carrasquillo, who sued the Governor of Puerto Rico and other

officials for attempting to oust him from his job as the Advocate

for Persons with Disabilities in August 2013. The defendants argue

that Díaz's job was abolished by a legislative act.           After review

of the record and the relevant laws, we find that the injunction

was improvidently granted and vacate the district court's order.1

                             I.    Background

           In 1985, the Puerto Rico Legislature passed Law 2,

creating the Office of the Ombudsman for Persons with Disabilities.

The   Ombudsman   was   declared   the    "director   or   first   executive

officer" of the Office.     The Governor appointed the Ombudsman, set

his salary, and could terminate him at will.          Law 2 was amended by

Act 9 of 2002, noting that the Ombudsman, while still appointed by

the Governor (with the Senate’s advice and consent), would serve a

ten-year term so as "not to be subject to the changes of public

Administration that occur as part of the electoral process every

four years."

           In June 2011, the Legislature passed Reorganization Plan

1, which subsequently was signed into law by Governor Fortuño. The



      1
      Defendants have filed two motions for a stay of the district
court's order during the pendency of this appeal. We denied the
first, without prejudice. The second, currently pending, is mooted
by this decision.

                                    -2-
Plan repealed 1985 Law 2 and created an umbrella Administration for

Advocate Offices under which were four "Advocates Offices" -–

Disabilities, Health, Retirees and the Elderly, and Veterans.             The

Disabilities Advocate was appointed by the Governor with Senate

advice and consent for a ten-year term, and could be removed only

for malfeasance in office as determined by the Governor after

notice and hearing.

           Governor   Fortuño   appointed   Díaz   to    the   position    of

Disabilities Advocate on November 15, 2011.2        There is nothing in

the record to suggest that Díaz's performance was unsatisfactory in

any way.

           Defendant García was elected Governor in November 2012.

In July 2013, Act 75 was enacted into law.3             This Act –- which

contained a lengthy preamble explaining why the Reorganization Plan

was a failure –- repealed the Reorganization Plan.             On the same

day, Act 78 again established an Office of the Ombudsman for

Persons with Disabilities of the Commonwealth of Puerto Rico.             The

Governor was given the power to appoint the Ombudsman to a ten-year

term, removable upon notice and hearing for negligence in office.


     2
      The statute gives the title as "Advocate for Persons With
Disabilities." The parties use the term "advocate" and "ombudsman"
interchangeably. We use the term found in the law applicable to
the various time periods relevant to this case.
     3
      Fortuño and García are members of opposing political parties.
Much of Díaz's brief is focused on the political motives behind the
various pieces of legislation at issue.       We do not find these
alleged motives germane to the issues before us.

                                  -3-
          Of note in Act 78 are Articles 19 and 20, which contain

the following:

          Article 19

                  From the entry into force of this Act,
          all    documents,   records,   materials   and
          equipment and the funds allocated to the
          Office of Ombudsman        for Persons with
          Disabilities under Reorganization Plan No.
          1-20114 shall be transferred to the Office of
          the Ombudsman of Persons with Disabilities of
          Puerto    Rico,   created  under   this   Act.
          Similarly, any state or federal funds received
          by the Office from the agencies which are used
          for the services offered by this Office shall
          be reversed and shall be transferred to this
          Office through the accounts in the Department
          of Treasury and the OMB, as applicable.


                 Article 20

                 Human Capital, Delegation    of
                 Functions, and Retirement    of
                 Officers and Employees

                 (a) The employees of the Office of the
          Ombudsman for Persons with Disabilities
          created under Reorganization Plan No. 1-2011,
          shall be transferred to the Office of the
          Ombudsman for Persons with Disabilities,
          created under this Act.

                 (b) The human capital of the Office of
          the Ombudsman for Persons with Disabilities of
          Puerto Rico, created under this Act shall be
          under the application of Act No. 184-2004, as
          amended, known as the "Administration of Human
          Resources in the Public Service Act of the
          Commonwealth of Puerto Rico".



     4
      Both Article 19 and Article 20 of Act 78 use the term
"Ombudsman" for the position that the Reorganization Plan created
with the title "Advocate." See also, supra note 2.

                               -4-
                   (c) Transferred employees shall retain
            all vested rights in accordance with the laws,
            rules, regulations and collective bargaining
            agreements applicable to them, as well as the
            privileges, obligations and status with
            respect to any existing pension, retirement or
            savings and loan fund system established by
            law, which were undertaken before the adoption
            of this law. Employees with regular status
            shall maintain that status.

            . . . .

            On August 28, 2013, Díaz was informed that, pursuant to

Acts 75 and 78, an Acting Ombudsman for Persons with Disabilities

had been appointed and that, pursuant to the same Acts, his

position – Advocate – had been abolished.              (The letter from the

Governor referred to his position as "former Office of Ombudsman").

This suit followed.

                      II.   District Court Proceedings

            On August 28, 2013, Díaz filed suit against Governor

García and others.      He sought declaratory, monetary and injunctive

relief     based   on   three    causes     of   action:        1)   political

discrimination in violation of 42 U.S.C. § 1983; 2) lack of due

process in terminating him from a job in which he held a property

right; and 3) negligence under Puerto Rico Article 1802.                   At

roughly the same time, Díaz filed an "Urgent Motion Seeking

Temporary Restraining Order and Injunction."               After a series of

orders, the district court dismissed the claims for monetary

damages.      On   September    26,   the   district    court    granted   the



                                      -5-
restraining order.5      The court did not reach the issue of whether

the Legislature had abolished the plaintiff's job, and thus never

reached defendants' central argument that the plaintiff was asking

the court to interfere with the responsibility of the executive

branch to execute validly enacted legislation.                Instead, citing

Humphrey's Ex'r v. United States, 295 U.S. 602 (1935), and Morrison

v. Olson, 487 U.S. 654 (1988), the district court framed the issue

as a "removal of a political appointee," and found that because

Díaz's position was "quasi-judicial," he could only be terminated

for cause and after a hearing.

           The defense -- responding to the district court's tack,

but not abandoning its thesis that the position had been abolished

--   relied principally on Gómez v. Negrón Fernández, 65 P.R.R. 286

(1945),   which   held    that    the    Legislature    has    the   virtually

unfettered power to abolish a position with the holder of the "old"

job not entitled to the new one.

           In   considering      the    request   for   an    injunction,   the

district court was tasked with determining:                  1) the movant's

likelihood of success on the merits; 2) whether and to what extent

the movant would suffer irreparable harm if the request were

rejected; 3) the balance of hardships between the parties; and 4)

any effect that the injunction or its denial would have on the



      5
      The court issued an order that day and two subsequent amended
orders.

                                        -6-
public interest.      Corporate Techs., Inc. v. Harnett, 731 F.3d 6, 9

(1st Cir. 2013). Despite expressing uncertainty as to the status of

Puerto   Rico      law,   the   court    ultimately   found     that   Díaz   had

demonstrated a likelihood of success on the merits by showing that

"in many ways his job functions are quasi-judicial," mostly akin to

the power of administrative law judges to enforce disability laws

and penalize violators.         The court found irrevocable harm in the

fact that, in the absence of an injunction, the plaintiff would be

removed from his job. In balancing hardships, the court ruled that

the defendants showed no reason why keeping Díaz in the job would

be a hardship when compared to his removal.               Finally, the court

observed    that    maintaining    the    status    quo   was   in   the   public

interest.    It also certified to the Puerto Rico Supreme Court the

question of whether to classify Díaz's job as quasi-judicial or

quasi-executive, explaining that it "harbors serious reservations

about the state of Puerto Rico law."

                                III.     Analysis

             Our review of the district court's decision to grant the

injunction is somewhat circumscribed.           "'[W]e scrutinize abstract

legal matters de novo, findings of fact for clear error, and

judgment calls with considerable deference to the trier.'"                 Id. at

10 (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287

F.3d 1, 9 (1st Cir. 2002)).              That said, our deference is not

without limits.       For example, a material error of law ineluctably


                                        -7-
constitutes an abuse of discretion.        Id.    We also will find an

abuse of discretion if the district court ignores a material factor

deserving significant weight, relies on an improper factor, or

makes a serious mistake in weighing relevant factors.         Id.

          Here, we find that the district court ignored a material

factor deserving significant weight -- indeed the central thesis of

appellant's    argument.    That   is,   the   plaintiff's   position   as

Advocate for Persons with Disabilities was abolished in 2013 when

Law 75 explicitly repealed Reorganization Plan 1 of 2011 and Law 78

created the Office of Ombudsman for Persons with Disabilities.          As

such, we further find that the court erred in finding that Díaz had

demonstrated a likelihood of success on the merits, the "sine qua

non of th[e] four-part inquiry."     New Comm Wireless Servs., Inc..

287 F.3d at 9.

              Díaz does not argue that the Legislature lacked the

power to abolish his Advocate position.        Instead, he disputes the

existence of that historical fact.       Specifically, he claims that

the legislative history does not evince an intent to eliminate

Díaz's Advocate position and that Law 78 does not explicitly

provide for his removal.6     While perhaps accurate, this argument

misses the point. Article 75, after providing numerous reasons for



     6
      Appellant's brief quotes the 2013 statutes as purportedly
stating a goal to "create once again the Office for the Ombudsman
. . . ."     (emphasis ours).   We cannot locate the underlined
language in either Law 75 or Law 78.

                                   -8-
doing so, unambiguously repealed the very Reorganization Plan which

created Díaz's job.       In so doing, the Legislature abolished the

position of      Advocate.   See Lewis v. United States, 244 U.S. 134,

144 (1917) (holding that Congressional repeal of an act creating an

office "had the effect to abolish it"); Brame v. United States, 10

Cl. Ct. 252, 255 (1986) (same) (citing Abt v. United States, 146

Ct. Cl. 205, 210 (1959)), aff'd, 818 F.2d 876 (Fed. Cir. 1987).

Repeal is an act unquestionably within the ken of the Puerto Rico

Legislature and thus is fatal to Díaz's legal position.                 See

Higginbotham v. Baton Rouge, 306 U.S. 535, 538 (1939) (holding that

state legislature may "at pleasure create or abolish" public

offices); see also Bastian v. Kennedy, 829 F.2d 1, 2 (1st Cir.

1987) (affirming state legislature "exercising its power to abolish

nonconsitutional offices"); see also Gómez, 65 P.R.R. at 291-92

(same).

            While the legislature's power is bounded by the state and

federal constitutions, see Newton v. Mahoning Cnty. Comm'rs, 100

U.S. 548, 559 (1879), there is no viable claim here that the

abolition   of    the   Advocate   Office   independently    violated   some

constitutional      proscription.      Díaz    asserts   a   retroactivity

argument, citing Puerto Rico law for the proposition that later

legislation cannot take away previously acquired rights.                But

again, while that may an accurate statement of the law, it is

misplaced here.     Díaz had no property interest, i.e., no "right,"


                                     -9-
in the Advocate position. See Gómez, 65 P.R.R. at 293 (noting that

plaintiff   had    "no   contractual       right   or   property    interest   in

accepting an office created by the Legislature").7                Moreover, even

if he could identify a valid property interest created by Puerto

Rico law, "the legislative process itself provide[d] [him] with all

of the 'process' [he] was 'due.'" Correa-Ruiz v. Fortuño, 573 F.3d

1, 14-15 (1st Cir. 2009) (quoting Gattis v. Gravett, 806 F.2d 778,

781 (8th Cir. 1986) (citing Atkins v. Parker, 472 U.S. 115, 131

(1985))).

            Díaz's final argument fares no better.                  In fact, it

undermines his position.       He asserts that the fact that Article 20

of Law 78 contains "saving" provisions that transfer all Advocate

Office personnel to the newly-created Ombudsman office (except

Díaz)    somehow     establishes      that     his      former    position     was

not abolished.      We find the opposite to be true.             Pursuant to the

statutory   maxim        expressio   unius    est    exclusio     alterius,    the

Legislature's      exclusion   of    the    Advocate's     position    from    the

affirmative listing of those "saved" implies that Díaz's position

was not saved.     See Sunshine Dev., Inc., v. F.D.I.C., 33 F.3d 106,

116-17 (1st Cir. 1994) (observing that under the same maxim, a


     7
      Díaz's cited cases regarding property rights in government
employment also miss the mark. He cites no case that addresses a
position, such as the Advocate, created and abolished by the
legislature. Meanwhile, Díaz makes no real effort to distinguish
Gómez. Instead he seeks to elide its clear holding by maintaining
that Article 75 did not abolish his office, a position we have
already rejected.

                                     -10-
legislature's    affirmative       description        of     certain    powers   or

exemptions implies denial of nondescribed powers or exemptions);

see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)

(clarifying that maxim has force "only when the items expressed are

members of an associated group or series, justifying the inference

that items not mentioned were excluded by deliberate choice, not

inadvertence" (internal quotation marks omitted)). So it is here.

By excluding Díaz from the "saved" list, the Legislature indicated

its intent not to save him.8

                             IV.    Conclusion

          Ultimately, by claiming that it is unconstitutional for

Puerto   Rico    to   abolish   the        Advocate        position    without   an

individualized    hearing,   Díaz     is    asking     the    federal    court   to

constrain the Puerto Rico Legislature's ability to restructure its

workforce. "Our Constitution, however, embodies no such federal

constraint . . . ." Mandel v. Allen, 81 F.3d 478, 482 (4th Cir.

1996).   "[I]n every perfect or competent government, there must

exist a general power to enact and to repeal laws; and to create

and change or discontinue, the agents designated for the execution


     8
      Díaz has directed us to cases involving two other displaced
Advocates in which the respective judges, one federal and one of
the Commonwealth Court of First Instance, enjoined the government.
See Montañez Allman v. García-Padilla, Civ. No. 13-1683(PG), 2013
WL 5719153 (D.P.R. Oct. 18, 2013) and Mellado López v. García-
Padilla, Civ. No. K PE2013-4143, Certified Translation MC-2013-454
(First Instance Court, Oct. 30. 2013). With due respect to the
esteemed judges in both cases, we are neither bound nor persuaded
by their reasoning.

                                     -11-
of those laws."    Butler v. Pennsylvania, 51 U.S. 402, 416-17

(1850).   Accordingly, we vacate the injunction entered by the

district court and remand this case for any further action not

inconsistent with this decision.




                              -12-
