          United States Court of Appeals
                     For the First Circuit

Nos. 14-1050
     14-1052

   DAMARIS APONTE-RAMOS; ELIZABETH DE JESUS-AFANADOR; OSVALDO
       DE LA ROSA-VIDAL; MARTA I. FELICIANO-MONTILLA; JOSE
    ARNALDO FLORES-GARCIA; WANDA I. GONZÁLEZ-SEGARRA; MARITZA
          LEBRÓN-GARCÍA; DAMARIS MARTÍNEZ-GONZÁLEZ; SYLVIA
  MARTÍNEZ-MARTÍNEZ; LUCY A. ORTIZ-RIVAS; DAVID PÉREZ-VÁZQUEZ;
       NEIDA I. RAMOS-TORRES; LORNA S. RIVERA-CORREA; LYDIA
      PRINCIPE-RODRIGUEZ; CARLOS J. RIVERA-RIVERA; WANDA J.
         SANTIAGO-SERRANO; MARYLIN SIERRA-GARCIA; EDGARDO
        TORRES-CABRERA; MARIA D. TORRES-HERNANDEZ; JUAN L.
           VÁZQUEZ-LOPEZ; RAFAEL ZAYAS-MORALES; CATHERINE
       GONZÁLEZ-RIVERA; MAYRA L. ALMODOVAR-CORTÉS; HUMBERTO
        VERGARA-AGOSTINI; ABRAHAM PÉREZ-VALENTÍN; LILLIAN
  GARCIA-CHANTA; LUZ E. BURGOS-RAMÍREZ; LUIS R. RAMOS-NAVARRO;
     FRANCISCO ESPINOSA-HUERTAS; IVETTE DÍAZ-VÁZQUEZ; JOSÉ O.
             RODRÍGUEZ-POMALES; ORLANDO ALDEBOL-BORRERO,

                     Plaintiffs, Appellants,

    FABIÁN LABOY-RODRÍGUEZ; OSVALDO DE LA ROSA-VIDAL; HÉCTOR
   RIVERA-RIVERA; HÉCTOR TORRES-RESTO; MARITZA VÁZQUEZ-RAMOS;
      ANTONIO SEDA-ZACOUR; HUMBERTO VERGARA-AGOSTINI; OMAR
                         NEGRÓN-SANTIAGO,

                           Plaintiffs,

                               v.

  ZOIMÉ ÁLVAREZ-RUBIO, in her personal and official capacity as
       Executive Director of the State Insurance Fund; SAÚL
     RIVERA-RIVERA, in his personal and official capacity as
       Human Services Director of the State Insurance Fund;
                 STATE INSURANCE FUND CORPORATION,

                     Defendants, Appellees.



          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
          [Hon. Gustavo A. Gelpí, U.S. District Judge;
          Hon. Marcos E. López, U.S. Magistrate Judge]



                              Before

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



          Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero
and Martínez-Luciano & Rodríguez-Escudero Law Office were on brief,
for appellants.
          Damaris Ortiz-González, with whom Sifre & Muñoz-Noya PSC
was on brief, for appellee State Insurance Fund Corporation.
          Tanaira   Padilla-Rodriguez,    with   whom   Susana   I.
Peñagarícano-Brown, Assistant Solicitor General, and Margarita
Mercado-Echegaray, Solicitor General, were on brief, for appellees
Zoimé Álvarez-Rubio and Saúl Rivera-Rivera.



                          April 3, 2015
           LYNCH, Chief Judge.      These two appeals arise out of

similar   lawsuits   in   which   plaintiffs,    current   and   previous

employees of the Puerto Rico State Insurance Fund Corporation

(SIFC), have alleged that defendants, the SIFC and its high-level

administrators, selectively enforced Puerto Rico's merit principle

against them.      This "selective enforcement" is said to be in

violation of the Equal Protection Clause.       U.S. Const. amend. XIV,

§ 1.

           Plaintiffs were appointed from 2001 to 2008 to career

managerial positions at the SIFC.           Control of the Puerto Rico

government changed parties in early 2009.           A later 2009 audit

revealed that these plaintiffs were appointed through internal job

postings, rather than through open announcements as required by

SIFC regulation.     Finding the appointments to have violated the

merit principle, the new administration annulled the appointments.

           The Equal Protection Clause does not provide a basis to

undo these employment actions.     Rather, this case can be viewed as

an effort to circumvent the limits imposed on First Amendment

claims. Indeed, we recently affirmed entry of summary judgment for

defendants in a suit by a former employee alleging that a similar

annulment constituted political discrimination in violation of the

First Amendment.     Reyes-Pérez v. State Ins. Fund Corp., 755 F.3d

49, 50-52, 55 (1st Cir. 2014).           These plaintiffs challenge the

annulment under the Equal Protection Clause, expressly disavowing


                                   -3-
any First Amendment claim.        The district courts granted summary

judgment   to   defendants    because      plaintiffs   failed   to   identify

similarly situated individuals treated differently by defendants.

We affirm on the same basis.



                                      I.

            When reviewing a grant of a motion for summary judgment,

"we recite the facts in the light most favorable to the non-moving

party, drawing all reasonable inferences in his favor." Id. at 50.

            Plaintiffs   are     thirty-seven       individuals       who were

appointed to career managerial positions at the SIFC, the Puerto

Rico    government   entity    that   administers       the   local   workers'

compensation program, between January 1, 2001, and December 31,

2008.    A "career managerial employee" is one of five employee

categories at the SIFC.         The term is defined as a permanent

employee of the SIFC "who is assigned semi-skilled and unskilled

technical professional duties and who does not belong to any of the

appropriate bargaining units for purposes of collective contracting

existing in the [SIFC]."      For example, one of the plaintiffs here,

José O. Rodríguez-Pomales, held a career managerial position of

Budget Officer.

            Plaintiffs were appointed while one of Puerto Rico's two

major political parties, the Popular Democratic Party (PDP), was in

power.     In 2009, when the New Progressive Party (NPP) came to


                                      -4-
power, the new administration performed an audit of all personnel

transactions     that   had   occurred   between   January   1,   2001,   and

December 31, 2008.      Defendants reviewed the personnel files of all

3,835 employees at the SIFC.        According to the October 28, 2009,

audit report, 232 appointments of career managerial employees --

including those of the plaintiffs -- were made through internal job

postings rather than public announcements.           In the SIFC's view,

this exclusion of outside candidates contravened Article 14.1 of

the SIFC Employee Manual, which, implementing Puerto Rico's "merit

principle," requires that positions be filled "by means of open

competition."1       See P.R. Laws Ann. tit. 3, § 1461(42) (2011)

(defining the "merit principle" as the "concept on which basis all

public employees shall be selected, promoted, retained and treated

in   all   matters   concerning   their   employment   based      upon   their

capability and without discrimination"). In January 2010, the SIFC

began to annul all of those appointments, including those of the

plaintiffs, regardless of the appointee's party affiliation.              See

generally González-Segarra v. State Ins. Fund Corp., 188 P.R. Dec.



      1
       In 2003, the SIFC Administrative Director had recommended
that the SIFC begin using internal job posting to recruit
managerial employees in part because employees had complained that
they were consistently losing out to candidates outside the SIFC
when seeking managerial positions. There is no suggestion that
this is the type of exception to the merit principle authorized by
Puerto Rico law. See González-Segarra v. State Ins. Fund Corp.,
188 P.R. Dec. 252, __ P.R. Offic. Trans. __ (P.R. 2013) (discussing
the scope of exceptions to the merit principle and finding that
none applied to the parties' appointments from the 2009 audit).

                                    -5-
252, __ P.R. Offic. Trans. __ (P.R. 2013) (describing the events

giving   rise    to   the   annulments    and   holding   that    plaintiffs'

appointments made through closed job announcements violate the

merit principle).

           The    Aponte-Ramos    plaintiffs     filed    suit    in   federal

district court in Puerto Rico on December 7, 2010,2 and the Díaz-

Vázquez plaintiffs did so on April 29, 2011.               Using 42 U.S.C.

§ 1983, plaintiffs sued the SIFC, its executive director, and its

director of human resources, in both their official and personal

capacities, seeking compensatory and punitive damages, as well as

injunctive relief reinstating plaintiffs.          Both sets of plaintiffs

alleged that defendants selectively enforced the merit principle

against them, in violation of Equal Protection Clause, along with

several other federal and Puerto Rico law claims.3               The district

court in Díaz-Vázquez granted summary judgment for the defendants

on October 22, 2013, and denied a motion for reconsideration on

December 4, 2013, finding that the plaintiffs had not identified

similarly situated individuals who had been treated differently by

defendants.      See Díaz-Vázquez v. Álvarez-Rubio, Civ. No. 11-1405


     2
       A second case, filed on May 16, 2011, was consolidated in
the district court with Aponte-Ramos on July 6, 2011.
     3
       The Díaz-Vázquez plaintiffs asked the district court for
voluntary dismissal of their other constitutional claims, which the
district court granted.     The Díaz-Vázquez district court then
declined to exercise supplemental jurisdiction over the state law
claims. In both cases, plaintiffs have appealed only on the Equal
Protection claim.

                                    -6-
(MEL), 2013 WL 6281455, at * 11 (D.P.R. Oct. 22, 2013) (granting

summary judgment); Díaz-Vázquez v. Álvarez-Rubio, Civ. No. 11-1405

(MEL), 2013 WL 6282309, at *3 (D.P.R. Dec. 4, 2013) (denying

reconsideration).      The district court in Aponte-Ramos granted

summary judgment for the defendants on December 10, 2013, adopting

the reasoning of the Díaz-Vázquez court.       This appeal followed.



                                   II.

            We review a district court's grant of summary judgment de

novo.    Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015).       In

so doing, we "scrutiniz[e] the facts in the light most agreeable"

to plaintiffs and "draw[] all reasonable inferences in [their]

favor."    Id. (quoting Foote v. Town of Bedford, 642 F.3d 80, 82

(1st Cir. 2011)) (internal quotation marks omitted). "Summary

judgment is proper only when no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of

law."     Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir.

2014).

            It is generally true that "[u]nder the Equal Protection

Clause,    persons   similarly   situated   must   be   accorded   similar

governmental treatment."    Marrero-Gutierrez v. Molina, 491 F.3d 1,

9 (1st Cir. 2007) (citing City of Cleburne v. Cleburne Living Ctr.,




                                   -7-
473 U.S. 432, 439 (1985)).4   In order to prove an Equal Protection

violation, plaintiffs must establish that, compared with other

similarly situated individuals, they were "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."      See id.

(alteration in original) (quoting Rubinovitz v. Rogato, 60 F.3d

906, 910 (1st Cir. 1995)) (internal quotation marks omitted).5

          "The formula for determining whether individuals or

entities are 'similarly situated' for equal protection purposes is

not always susceptible to precise demarcation."   Id.   "[T]he test

is whether a prudent person, looking objectively at the incidents,

would think them roughly equivalent and the protagonists similarly

situated. Much as in the lawyer's art of distinguishing cases, the



     4
        The individual defendants argue that we should construe
plaintiffs' claims as First Amendment political discrimination
claims, rather than as Fourteenth Amendment selective enforcement
claims. See, e.g., Uphoff Figueroa v. Alejandro, 597 F.3d 423, 430
n.8 (1st Cir. 2010) ("An equal protection claim alleging political
discrimination merely restates a First Amendment political
discrimination claim and . . . should [be] considered under the
First Amendment."). Plaintiffs respond that our cases say only
that plaintiffs bringing First Amendment claims may not "double-
dip" with a selective enforcement claim based on the same legal
theory.    The argument is beside the point.     It is clear that
plaintiffs cannot succeed under their asserted selective
enforcement theory.
     5
       The government has not argued that this claim should be
understood as a class-of-one theory, which is barred in the public
employment context, see Engquist v. Or. Dep't of Agric., 553 U.S.
591 (2008), so we do not address that argument.

                                -8-
'relevant aspects' are those factual elements which determine

whether reasoned analogy supports, or demands, a like result."

Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246

F.3d 1, 8 (1st Cir. 2001)       (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

(1st Cir. 2004)) (internal quotation marks omitted).                The cases

must be similar "in all relevant respects": "[e]xact correlation is

neither likely nor necessary, but the cases must be fair congeners.

In other words, apples should be compared to apples." Id. (quoting

Dartmouth    Review,    889   F.2d   at   19)   (internal     quotation     marks

omitted).

             Plaintiffs do not argue that there are individuals hired

to career managerial positions in violation of the merit principle

from 2001 to 2008 whose appointments were not annulled.               Rather,

they point to two other categories of individuals, appointed

earlier    by   other   decisionmakers:     (1)   a   group   of   individuals

appointed without any job announcement, open or closed, in the

1990s, and (2) several physicians appointed to career managerial

positions without any job announcement in 1995-1996.                They also

point to a third category appointed after the time period covered

by   the    audit:   union    employees     appointed   though     closed    job

announcements after 2009.       These obviously dissimilar appointments

simply present different factual situations to which the open


                                      -9-
competition requirement may, or may not, apply.                       Indeed, the

Supreme Court of Puerto Rico has rejected any notion that the merit

principle applies in the same manner across the board, without

regard to context or circumstance.                    González-Segarra, __ P.R.

Offic. Trans. at __.

                 The first two groups were allegedly appointed to SIFC

positions        without     open    job   announcements,     also   allegedly       in

violation        of   the    merit    principle.       To   plaintiffs,       that   is

similarity enough. Not so. First, plaintiffs have not established

that the open competition requirement applied to these individuals

at all.      Díaz-Vázquez, 2013 WL 6282309, at *1 & n.1.

                 Plaintiffs    fail   to   identify     employees    of   a   similar

category hired, promoted, or otherwise appointed in a similar way

who were not annulled following a similar audit.                          They rely

primarily on a collection of appointment letters and change reports

with dates ranging from 1993 to 1999.6                      The appointments and

changes identified in the collection of letters fall into four

categories: promotions from temporary status to regular status

based       on    positive    performance         evaluations,   appointments        to


        6
       Plaintiffs also rely on an affidavit from a former SIFC
Human Resources employee who states that he has personal knowledge
of two categories of appointments, along with individuals appointed
to career managerial positions before 2001 without open job
announcements. The district court found these allegations "non-
specific and insufficient to carry plaintiffs' burden," as they
provide "[n]o details about these individuals or the circumstances
surrounding their appointments." Díaz-Vázquez, 2013 WL 6281455, at
*9 n.3. We agree.

                                           -10-
temporary positions, salary increases, and a simple promotion.

There is no indication that these appointments involved career

managerial employees and were made through internal job postings;

to the contrary, it is undisputed that internal job announcements

were not used for career managerial employees before 2003 or after

2008.

           Individuals given a smorgasbord of status changes through

a different process are hardly similarly situated to plaintiffs.

Citing González-Segarra, plaintiffs argue that the Puerto Rico

Supreme Court has explained that the merit principle applied in

full to employees before 2001 and that nominating authorities are

obligated to seek out and annul any violations of the merit

principle. González-Segarra, however, holds only that appointments

which were annulled as a result of the 2009 audit violated the

merit principle and were not justified by any exception.   Id.   The

opinion says nothing about the appointments from before 2001.

           Finally, the first two groups also had their status

changed about a decade before the plaintiffs were appointed.

There was no reason for defendants to think these groups were

similar.   Nor was it unreasonable for defendants to audit only the

prior eight years, which constituted the entire period of hiring

through closed job announcements.       The Constitution does not

require the SIFC to audit indefinitely into the past, or even back

to the date of the last audit.     Cf. Williamson v. Lee Optical of


                                 -11-
Okla., Inc., 348 U.S. 483, 489 (1955) ("[T]he legislature may

select one phase of one field and apply a remedy there, neglecting

others.    The prohibition of the Equal Protection Clause goes no

further than the invidious discrimination." (citation omitted));

Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003) (finding

that two applicants for a permit were not similarly situated

because one was applying for a new permit and one was applying for

an   existing    permit,   and    the   relevant    regulation    entailed

"differential treatment of businesses applying for their first

permit and businesses applying to renew their permits").

             As to the union employees, plaintiffs do not dispute that

the SIFC is legally obligated to appoint some union employees via

internal   job    announcements   because   of     applicable    collective

bargaining agreements.       Díaz-Vázquez, 2013 WL 6282309, at *3.

Union employees, by definition, are also not career managerial

employees.     They are not similarly situated to plaintiffs in the

relevant respects.

                                   III.

             Plaintiffs' Equal Protection claims fail as a matter of

law. The district courts' grants of summary judgment are affirmed.

             So ordered.




                                   -12-
