           United States Court of Appeals
                      For the First Circuit


No. 13-1676

                      ROSAURA BUILDING CORP.,

                       Plaintiff, Appellant,

                                v.

                 MUNICIPALITY OF MAYAGÜEZ, ET AL.,

                       Defendant, Appellees.


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

        [Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]


                              Before

                   Torruella, Dyk,* and Thompson,
                          Circuit Judges.


     Israel Roldán-González, for appellant.
     Eliezer A. Aldarondo-López, with whom Eliezer A. Aldarondo-
Ortiz, Claudio Aliff-Ortiz and Aldarondo & López-Bras, were on
brief for appellees.




                         February 4, 2015




*
    Of the Federal Circuit, sitting by designation.
          TORRUELLA,    Circuit     Judge.     Rosaura      Building     Corp.

("Rosaura")   brought   this    §   1983   claim   based    on   an    alleged

deprivation of its First Amendment constitutional rights by the

Municipality of Mayagüez, Puerto Rico, and its mayor, the Honorable

José G. Rodríguez ("Rodríguez" or the "Mayor"), after Rodríguez

denied the corporation a government contract.              Rosaura fails to

allege what protected activity -- if any -- it exercised and was a

substantial   motivating   factor     in   bringing   about      the   Mayor's

purported retaliation, essential elements of its cause of action,

and thus we affirm the summary judgment granted in favor of the

Defendants.

                               I. Background

          We review the facts in the light most favorable to the

appellant, the party opposing summary judgment.             Agusty-Reyes v.

Dep't of Educ. of P.R., 601 F.3d 45, 48 (1st Cir. 2010).

A. Factual Background

          Rosaura is a family-owned corporation whose principal

place of business and sole asset is a commercial property located

at 107 Post Street South in the city of Mayagüez.                 During the

summer of 2010, several officials from the city-operated Head Start

program ("Head Start" or the "Program"),1 including its director,

1
    Head Start programs support the development of low-income
children from birth to age 5 to promote their school readiness.
The programs provide education, health, nutrition, social, and
other services to children and their families.   See 42 U.S.C.
§ 9831.

                                    -2-
Ms.   Elba   I.    Falto   de   Román,    and     the    facilities      maintenance

supervisor, examined the property to determine whether it was

suitable     for   Head    Start   classrooms.            Finding      that   it    was

appropriate for their needs, the city officials recommended the

lease and asked other employees to visit the property, including

the   program's     sub-director      and       the     city's    supervisors      for

education, nutrition, and health. These officials also unanimously

recommended the building over several others examined, because it

was the most accessible and it complied with all the needs of the

Program.

             Falto de Román met with representatives from Rosaura and

negotiated the terms of the proposed lease.                 Then, she instructed

them to contact Ms. Ana Martínez to help them with filing a

necessary contract petition form.              Martínez forwarded the contract

petition to the Head Start Program Finance Unit, and to officials

in the city's Department of Finance.                  All of them certified that

the Program and the city had the resources necessary to comply with

the   proposed     contractual     terms.        Following       the   city's    usual

bureaucratic process, Martínez sent the contract to the Contracts

Committee, an office directed by the Mayor's brother, which also

recommended that the contract petition be approved.                       With this

approval,     Martínez     told    representatives          from       Rosaura     that

everything was "ready" for the contract to be executed, and sent

the draft contract to the city's Legal Division. Everything seemed


                                         -3-
to be on track until the Legal Division unexpectedly replied that

there was a problem and the contract could not be signed.

            Falto de Román was surprised by the rejection.                She

believed that Rosaura's building was the only one available that

complied with the Program's requirements and that Rosaura had made

the best offer during the search process.            Moreover, the Program

was time-pressed to open the much-needed additional classrooms.

Shortly thereafter, Falto de Román received a letter from the Mayor

stating that all of the Program's contracts would need to have his

approval -- a departure from prior practice.          She acknowledged the

letter in writing and received a note in response from the Mayor

saying "[t]hat lease does not proceed."           Falto de Román notified

representatives    from   Rosaura    that   the   contract   had   not   been

approved by the Mayor.       Instead, the Program participants were

placed in provisional centers belonging to an alleged political

supporter of the Mayor.

            Aggrieved by this situation, Mr. Néstor Pagán-Vélez, one

of the shareholders of Rosaura, asked the Mayor in person about his

rejection of the contract.     He claimed in his deposition that the

Mayor responded that he "[would] not sign contracts with [. . .]

with enemies of mine, which is what . . . you already know, which

is   what   your   brother   and    your    nephew   are."    Pagán-Vélez,

interpreted this as a reference to his brother, Mr. Víctor Pagán-

Vélez, and his niece, Ms. Mignonia Acosta-Pagán.             These two had


                                     -4-
been members of the Municipal Legislature of Mayagüez, prior to the

2008 elections, and were ousted by the Mayor after a scuffle within

the local leadership of the Popular Democratic Party ("PDP").2

B. Procedural History

          Rosaura brought a civil rights claim for equitable relief

and damages pursuant to 42 U.S.C. § 1983 against the Mayor, in his

official and personal capacities, and the municipal government (the

"Defendants"), alleging initially that it had been retaliated

against because of the political affiliation of its shareholders.3

It argued perfunctorily that the actions taken by the Defendants

were "solely motivated by the plaintiff's political beliefs" since

Rosaura's "shareholders are identified with a faction within the

[PDP] that challenged the leadership of defendant José Guillermo

Rodríguez, within the same political party."                It claimed in a

brief,   conclusory   manner      that    these    actions    violated   its

constitutional   rights   under    the    First,   Fifth,    and   Fourteenth

Amendments.   Without further explanation, the complaint requested



2
    The Mayor later called Falto de Román and questioned her
communications with the shareholders of Rosaura and her explanation
as to why their contract was not approved. She told him what her
explanation to the shareholders had been: that Rodríguez had
rejected it. The Mayor furiously replied that she had to be loyal
to him. She was then terminated. Falto de Román also sued the
Mayor, and her case remains pending. See Falto de Román v. Mun.
Gov't of Mayagüez, et al., 2014 WL 460865 (D.P.R. Feb. 5, 2014).
3
     Víctor Pagán-Vélez and Mignonia Acosta-Pagán are not
shareholders of Rosaura. Nothing in the record suggests that they
are affiliated with the corporation in any way.

                                    -5-
injunctive relief ordering the municipality to sign the lease

contract, prohibiting Defendants from further acts of political

discrimination, and monetary damages.

           The Defendants filed a motion to dismiss that was granted

in part as to the municipal government by way of a docket order, on

the grounds that the complaint failed to plead a scintilla of facts

that could lead to liability by the municipal government pursuant

to Monell v. Department of Social Services, 436 U.S. 658, 695-701

(1978).   No corresponding judgment was issued with regard to this

docket order.4   Over a year-and-a-half later, Defendants requested

that the district court enter a judgment dismissing the claims

against the Mayor in his personal capacity since there was no

allegation in the complaint against him in his personal capacity,

and he had only been served in his official capacity. The district

court denied the request for dismissal because the Defendants had

also filed a motion for summary judgment on the same day, together

with a memorandum of law in its support, alleging that there is no

cognizable claim for First Amendment retaliation.      The district

court opted for considering the summary judgment motion instead.

           After reviewing the record, including the motion to

dismiss that had been granted by the docket order, the district

court entered the corresponding judgment dismissing the claims as


4
  The parties subsequently consented for the case to be decided by
a magistrate judge.   We refer to the magistrate judge and the
district court as the "district court" for simplicity.

                                -6-
to   the   municipal     government.       It   agreed    that   the   complaint

contained no allegations against the municipality and stressed that

Rosaura never requested leave to amend the complaint to add

allegations regarding that defendant. It also dismissed the claims

against the Mayor in his personal capacity because he was never

served with process as such.        Finally, the district court granted

summary judgment in favor of the Mayor on the claims remaining

against    him    in   his   official    capacity.       Regarding     the   First

Amendment claim, the district court found that this Court has never

extended    the     First    Amendment    anti-retaliation       protection     of

government contractors, recognized by the Supreme Court in Board of

County Commissioners v. Umbehr, to first-time bidders of government

contracts.       518 U.S. 668, 686 (1996).        That is, the Supreme Court

and this Court have not extended the protections recognized by

Umbehr for existing government contractors to parties that do not

have existing contractual relationships with a state actor.

             The district court noted that it was uncontested that

Rosaura never had a contract with the city, an important fact for

the instant appeal as explained below.               It concluded that "upon

absence of First Circuit Court precedent recognizing an independent

contractor without prior business relationship to raise First

Amendment claims, and the split among other circuits on the issue,"

it would deny the cause of action.              Thus, it dismissed the First




                                         -7-
Amendment claim.       It also dismissed the equal protection claim,

though without any analysis.      This appeal by Rosaura ensued.

                             II. Discussion

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

novo, drawing all inferences in favor of the non-movant.             See

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451,

456 (1992); Shafmaster v. United States, 707 F.3d 130, 135 (1st

Cir. 2013). Summary judgment shall be granted if "the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law."       Fed. R. Civ.

P. 56(a).     "[C]onclusory allegations, empty rhetoric, unsupported

speculation, or evidence which, in the aggregate, is less than

significantly probative will not suffice to ward off a properly

supported    summary   judgment   motion."    Nieves-Romero   v.   United

States, 715 F.3d 375, 378 (1st Cir. 2013)(quoting Rogan v. City of

Bos., 267 F.3d 24, 27 (1st Cir. 2001)(internal quotation marks

omitted)).

             The de novo standard of review does not limit this Court

to the district court's rationale, as we may affirm on "any ground

revealed by the record."          Houlton Citizens Coal. v. Town of

Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

A. Dismissal of Claims Against the Municipal Government

             In its appeal, Rosaura alleges that the district court

erred in dismissing the claims against the municipal government


                                   -8-
under Monell, after it found that Rosaura failed to plead a

scintilla of facts against that government entity.                Rosaura argues

that   a   claim    against    the     Mayor   in   this    context      binds   the

municipality as well.          In their brief, the Defendants appear to

concede Rosaura's contention based on Surprenant v. Rivas, 424 F.3d

5, 19 (1st Cir. 2005).         According to the Defendants, should this

Court reverse the determination on the merits, the Mayor would

still be a defendant in his official capacity, and joining the

municipal government would result in a duplicative claim. Although

this is not the reasoning followed by the district court, it

presents an alternate basis to affirm the dismissal granted as to

the municipal government.          We agree.

            A suit against a public official in his official capacity

is a suit against the government entity.                 Suprenant, 424 F.3d at

19; Wood v. Hancock Cnty. Sheriff's Dep't, 354 F.3d 57, 58 n.1 (1st

Cir. 2003).    The reason for this rule is that "it is when [the]

execution of a government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government

as an entity is responsible under § 1983."                 Monell, 436 U.S. at

694; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986)("[W]here       action    is    directed      by    those   who    establish

governmental       policy,   the     municipality    is    equally      responsible

whether that action is to be taken only once or to be taken


                                        -9-
repeatedly.").       We have also explained that a municipal government

is liable when it has caused the deprivation of a constitutional

right through an official policy or custom.                   See Rodríguez v.

Municipality of San Juan, 659 F.3d 168, 181 (1st Cir. 2011).                    "One

way of establishing a policy or custom is by showing that 'a person

with     final    policy   making     authority'         caused     the    supposed

constitutional injury."         Id. (quoting Welch v. Ciampa, 542 F.3d

927, 941-42 (1st Cir. 2008)).              Liability may be imposed on a

municipality for a single decision by a final policy maker.

Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 770 (1st Cir.

2010).

             Mayors   in   Puerto   Rico     are   the    government      officials

ultimately       responsible    for    employment          decisions       of   the

municipality. See id. (quoting Rodríguez-García v. Municipality of

Caguas, 495 F.3d 1, 12 (1st Cir. 2007)); Acevedo–García v. Monroig,

351 F.3d 547, 553 n.1 (1st Cir. 2003) (noting that under Puerto

Rico law, mayors of municipalities have the power to appoint and

remove municipal officials and employees, and thus a mayor's

"employment decisions ipso facto constituted the official policy of

the municipality" (internal quotation marks and citation omitted)).

Because     Umbehr     simply    extends      employment          protections     to

contractors, the same analysis applicable to employment decisions

governs in this case.       See Umbehr, 518 U.S. at 674.




                                      -10-
           In the instant appeal, the Defendants expressly concede

that it was exclusively the Mayor's decision to deny the contract

that caused Rosaura's purported constitutional injury.                Based on

the   foregoing,    the   Defendants   are   correct      that   there    is   no

practical effect in dismissing the claims against the municipal

government.   Therefore, the district court did not err in granting

the dismissal of the claims against the Municipality of Mayagüez.

B. The First Amendment Claim

           1. The "Newly Discovered Facts"

           There is one other procedural wrinkle that we must iron

out before reaching the merits of Rosaura's First Amendment claim.

One week before oral arguments, Rosaura filed an "Urgent Motion

Informing New Facts That Might Affect This Appeal."                      In that

motion,   Rosaura    claimed   --   for    the   first    time   --   that     its

shareholders had just informed its lawyer that they "had a previous

contract with the Municipality of Mayaguez."             It further requested

that we consider this as a matter of fact when resolving the case,

or, in the alternative, that we remand the case to the district

court so that it can reconsider its dismissal. Rosaura claims that

this new fact makes Umbehr dispositive of the instant controversy

and that it automatically possesses a cause of action.

           In Umbehr, a contractor who was an outspoken critic of a

county board "spoke at the Board's meetings, and wrote critical

letters and editorials in local newspapers regarding the County's


                                    -11-
landfill user rates, the cost of obtaining official documents from

the County, alleged violations by the Board of the Kansas Open

Meetings     Act,   [and]   the   County's    alleged     mismanagement    of

taxpayer's    money,"   among     other   subjects   of   public   interest.

Umbehr, 518 U.S. at 671.        The Supreme Court faced the question of

whether this contractor was entitled to First Amendment protection

against retaliation over its contract for hauling trash.             Id. at

672-73.    The Court held that, based on the similarities between

independent contractors and employees, it was appropriate to follow

the precedents that protected government employees from retaliation

for their public discourse.       Id. at 674 ("The similarities between

government employees and government contractors with respect to

this issue are obvious.").          After analyzing the justifications

stated by the government defendants, the Umbehr Court concluded

that the government may terminate contracts so long as it does not

do so in retaliation for protected activity, in the same manner

that government employees' claims for retaliation are subject to

the analysis established in Pickering v. Board of Education of

Township High School District 205, 391 U.S. 563 (1968). Id. at 678.

           The problem with Umbehr, as applied to the instant case,

is that it expressly rejected answering whether this protection

also extends to first-time bidders for government contracts.              Id.

at 685 ("Because Umbehr's suit concerns the termination of a pre-

existing commercial relationship with the government, we need not


                                    -12-
address the possibility of suits by bidders or applicants for new

government contracts who cannot rely on such a relationship.").

Thus, Rosaura would rather be in the same position as the plaintiff

in Umbehr, who had an ongoing contractual relationship.

          At first glance, we should not even take this issue into

consideration since Rosaura argues nothing in its motion suggesting

that the contract was in effect at the time of the alleged

retaliation, or that any legal agreement was breached in any way as

a result of the alleged retaliatory conduct.     Yet, even assuming

that it was, this motion with newly discovered facts does not help

Rosaura for several reasons.     Rosaura filed its complaint on

June 14, 2011.   From that moment on, its only legal strategy and

legal theory has been that this Court should extend the protections

recognized to existing contractors in Umbehr, so that first-time

bidders for government contracts like Rosaura are also protected.5

          Time and time again we have held that arguments not

advanced before the district court are waived.    Emp'r Ins. Co. of

Wausau v. OneBeacon Am. Ins. Co., 744 F.3d 25, 29 (1st Cir. 2014)

("'It is a virtually ironclad rule that a party may not advance for

the first time on appeal either a new argument or an old argument


5
   As mentioned, the case law in this Circuit has not extended
Umbehr beyond cases "where [the] government retaliates against a
contractor, or regular provider of services, for the exercise of
rights of political association or expression of political
allegiance." O'Hare Truck Serv., Inc. v. City of Northlake, 518
U.S. 712, 715 (1996); García-González v. Puig-Morales, 761 F.3d 81,
92-93 (1st Cir. 2014).

                               -13-
that depends on a new factual predicate.'")(citing Cochran v. Quest

Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003)).            The only theory

of the case advanced by Rosaura for over three years is that it did

not have an existing contract with the municipal government.

Rosaura cannot change this simply because a new theory now fits it

better.   Genereux v. Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014)

("[W]hen a litigant commits to a theory of the case and sticks to

that theory past the point of no return, he cannot thereafter

switch    to    a   different   theory   simply   because   it   seems   more

attractive at the time.").

               Furthermore, the procedure followed by Rosaura to inform

us of the new fact and obtain its request was incorrect. Appellate

review concentrates on considering the factual record presented in

the trial courts.       See, e.g., Fed. R. App. P. 10(a) (defining the

record on appeal as comprising the evidence introduced in the trial

court).   This is true of evidence that was available during trial.

However, when evidence is discovered after the case has been

adjudicated by a district court, it is to be introduced into the

record through Federal Rule of Civil Procedure 60(b)(2), which

outlines the procedure for vacating a judgment to address "newly

discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial. . . ."            See Fed.

R. Civ. P. 60(b)(2).       For those reasons, in Puerto Rico v. SS Zoe

Colocotroni, we held that parties litigating before this Court


                                    -14-
should file a motion under Rule 60(b) to vacate a judgment directly

with the district court, without seeking prior leave from the Court

of Appeals.   601 F.2d 39, 41 (1st Cir. 1979).      The district courts

are required "to review any such motions expeditiously, within a

few days of their filing. . . ."      Id. at 42.    Where the district

court considers a motion to have merit, it issues a memorandum so

that the movant may petition this Court to remand the case to the

district court for the judgment to be vacated.           Id.; see also

United States v. 6 Fox St., 480 F.3d 38, 46 (1st Cir. 2007).

Otherwise, a litigant may not request on appeal that this Court

remand a case to a district court for it to consider an argument

that the litigant waived before that court.        Toscano v. Chandris,

S.A., 934 F.2d 383, 386-87 (1st Cir. 1991) (holding that a litigant

must follow Colocotroni in such scenarios).

          In any event, Rosaura's attempt is likely doomed because

Rule 60(c)(1) requires that motions for newly discovered evidence

pursuant to Rule 60(b)(2) be brought before the district court

"within a reasonable time" and "no more than a year after the entry

of the judgment."   Fed. R. Civ. P. 60(c)(1).      The judgment in this

case was entered by the district court on April 30, 2013, but the

urgent motion informing the newly discovered fact was not filed

with us by Rosaura until July 21, 2014. Therefore, because Rosaura

failed to meet the one-year limitations period available under Rule

60(b)(2), it could only have been entitled to relief from judgment


                               -15-
under Rule 60(b)(6), which allows a court to relieve a party from

a judgment for "any other reason that justifies relief."                    Fed. R.

Civ. P. 60(c)(6).       Yet, this Court's precedents disallow a movant

from using this subsection to avoid the limitations period imposed

in clauses one through three, including Rule 60(b)(2) for newly

discovered evidence. See Cotto v. United States, 993 F.2d 274, 278

(1st Cir. 1993) (explaining that "clause (6) is designed as a

catchall, and a motion thereunder is only appropriate when none of

the first five subsections pertain.").                 Thus, Rosaura cannot force

its motion into clause six.            Simon v. Navon, 116 F.3d 1, 5 (1st

Cir. 1997) (pointing out that "were Rule 60(b)(6) to allow a second

out-of-time     bite    at    the   same      apple,    the   stringent   finality-

enforcing   limitation        period     of    [Rule]    60(b)(1)-(3)      would   be

eviscerated.").        Moreover, Rosaura failed to show "'extraordinary

circumstances' suggesting [it] is faultless in the delay." Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 393

(1993).

            For these reasons, we deny the motion and move on to the

merits.

            2. The Merits of the First Amendment Retaliation Claim

            Rosaura requests that we reverse the district court's

grant of summary judgment, arguing the district court erred in

concluding that, because this Circuit has not recognized a cause of

action    for   First        Amendment     retaliation        against     first-time


                                         -16-
contractors, no such cause of action exists. Rosaura invites us to

extend these protections to potential contractors whose business is

denied, basing its plea on Oscar Renda Contracting, Inc. v. City of

Lubbock, 463 F.3d 378 (5th Cir. 2006).              In that case, the Fifth

Circuit held that having prior contractual relationships is not a

requirement     for     First     Amendment     protection   of    independent

contractors, since this protection is analogous to the protections

recognized to employees, which also extend to hiring decisions on

applicants for employment with the government, pursuant to Rutan v.

Republican Party of Ill., 497 U.S. 62, 79 (1990); see Oscar Renda,

463 F.3d at 380, 385.

          On the other hand, the Defendants ask us to follow Barry

v. Moran, 661 F.3d 696, 706 (1st Cir. 2011) (dismissing a political

discrimination        claim     premised   on    personal,   not     political

association).    Defendants argue that Barry requires evidence that

the association being retaliated against is political in nature and

constitutionally protected, rather than simply personal.                Also,

they claim that pursuant to Correa-Martínez v. Arrillaga-Beléndez,

903 F.2d 49 (1st Cir. 1990), a plaintiff's relationship with

someone with whom the defendants had political difference does not

rise to engaging in constitutionally protected activity.               In the

instant appeal, as Defendants explain, Rosaura's claim, rather than

being premised on retaliation resulting from its engagement in

protected activity, is framed upon the relationship of a third


                                      -17-
party that is not a plaintiff –- Rosaura's shareholders –- with

relatives of theirs, an association that is not political in

nature.    Thus, there is no factual basis to support that Rosaura,

or even its shareholders, engaged in constitutionally protected

activity    regarding   matters    of    public   interest,   or   that   such

constitutionally protected activity was the driving cause of the

alleged retaliatory response.       We agree with the Defendants.

             In its complaint, Rosaura pleaded a few perfunctory,

conclusory statements that initially seemed to align its claim with

a plain political discrimination case, by alleging briefly that the

actions of the Defendants were motivated by Rosaura's political

beliefs, that the its shareholder's political beliefs were known to

the Defendants, and that the shareholders of Rosaura are identified

with a faction within the PDP that challenged the Mayor in the

past.      Yet, there are no further allegations regarding those

statements elsewhere in the record. Rosaura changed the story from

that point on, and has stated repeatedly that the retaliation was

caused by the relationship between the shareholders and their

relatives,    not   because   of   the    political   affiliation    of    its

shareholders. From that point on, Rosaura pleaded, argued, opposed

the motion for summary judgment, and appealed framing its case

exclusively as a political retaliation case that depended squarely

on Umbehr.    Rosaura thereby abandoned the possibility of bringing

this as a discrimination claim, while instead expressly advancing


                                    -18-
a retaliation cause of action.        "[T]he settled appellate rule [is]

that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived."                In re

Plaza   Resort     at   Palmas,   Inc.,   741   F.3d   269,   277   (1st     Cir.

2014)(alteration in original)(citing United States v. Zannino, 895

F.2d 1, 17 (1st Cir.1990)).         In its brief, Rosaura does not even

mention    those   conclusory     allegations    it    had   included   in   its

complaint.

             Rosaura's allegations pertaining to the Mayor's conduct

are also limited to him not signing the lease in retaliation for

his prior dispute with the brother and niece of one of Rosaura's

shareholder. Accordingly, we examine the instant appeal as a First

Amendment retaliation case based on that non-political association

on which Rosaura premised its case.

             Although political discrimination and retaliation cases

are intrinsically similar, and, in certain circumstances, courts

evaluate the evidence in the same manner, the two causes of action

are quite distinct.        Mercado-Berríos v. Cancel-Alegría, 611 F.3d

18, 22 (1st Cir. 2010).           Under political discrimination cases,

"government officials are forbidden from taking adverse action

against public employees on the basis of political affiliation or

belief."    Mercado-Berríos, 611 F.3d at 22 (citing Welch, 542 F.3d

at 938); Rutan, 497 U.S. at 64 (1990).




                                     -19-
             Retaliation cases, on the other hand, "'call[] for a

different,    though   related,   inquiry'   when   a   public   employee's

speech, rather than her political affiliation or belief, is at

issue." Mercado-Berríos, 611 F.3d at 22 (quoting O'Hare Truck, 518

U.S. at 719).     Thus, in analyzing this as a retaliation case, we

apply the balancing test established in Pickering.               See O'Hare

Truck, 518 U.S. at 719.

             The First Amendment guarantees the "public interest in

having free and unhindered debate on matters of public importance."

Pickering, 391 U.S. at 573.         The government is forbidden from

imposing burdens on persons that discourage or punish them from

exercising    protected   constitutional     rights.      See    Ramírez   v.

Arlequín, 477 F.3d 19, 22 (1st Cir. 2006).          A government employee

should not suffer reprisal from a government official for engaging

in protected speech because of the possible chilling effect against

the free exercise of constitutional rights.         Mercado-Berríos, 611

F.3d at 25; see also Hartman v. Moore, 547 U.S. 250, 256 (2006).

We have also held that, as a general matter, "claims of retaliation

for the exercise of First Amendment rights are cognizable under

§ 1983."   Centro Médico del Turabo, 406 F.3d at 9 (citing Powell v.

Alexander, 391 F.3d 1, 16 (1st Cir. 2004)).          As explained, Umbehr

extended the First Amendment protections of public employee rights

to private contractors.     518 U.S. at 673.




                                   -20-
            In these circumstances, to prevail on a § 1983 claim of

retaliation for First Amendment activity, a plaintiff must show:

(1) that his conduct was constitutionally protected, and (2) that

this conduct was a substantial factor or a motivating factor for

the defendant's retaliatory decision.      Pierce, 741 F.3d at 302-03;

Centro Médico del Turabo, 406 F.3d at 10; Powell, 391 F.3d at 17

(quoting Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429

U.S. 274, 287 (1977)).   The Supreme Court has also outlined what a

plaintiff must show in order to establish that its specific conduct

was constitutionally protected under the first prong.          There are

two particular requirements that must be met.            First, a public

employee must establish that she was speaking "as a citizen on a

matter of public concern."    Díaz-Bigio v. Santini, 652 F.3d 45, 51

(1st Cir. 2011) (citing Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)).    If plaintiff's speech is not on a matter of public

concern, there is no First Amendment cause of action. Id. Second,

the First Amendment protection of the speech must outweigh the

government's interest as an employer.      Id. (citing Rivera-Jiménez

v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004)).

            Additionally, in order to meet the motivation prong, a

plaintiff   must   produce   "sufficient   direct   or    circumstantial

evidence" that his constitutionally protected conduct was the

driving factor that caused the retaliation.      Id.     The plaintiff's

burden in establishing motivation "is more substantial than the


                                 -21-
burden of producing prima facie evidence in, for example, the first

stage of a Title VII discrimination case."            Id. at n.3 (citing

Guilloty Pérez v. Pierluisi, 339 F.3d 43, 56 n.11 (1st Cir. 2003)).

             The pleading standard for these elements of the cause of

action are also well-defined in our case law.         The First Amendment

does   not   create   a   constitutional   revision   process   for   every

government employment decision.      See Rojas-Velázquez v. Figueroa-

Sancha, 676 F.3d 206, 210 (1st Cir. 2012).       Therefore, it is vital

for any claim to clearly present the protected activity on which it

is premised. Id. at 211 ("[T]he appellant has not averred that the

defendants' misperception regarding his political loyalty (or lack

thereof) was based on his membership in the PDP, his support for

PDP candidates, his advocacy of pro-PDP policies, or any other

protected activity.").       More importantly for the instant appeal,

retaliation for relationships other than those which are political

in nature may be "undeserved" punishment, but are nonetheless not

protected by the First Amendment.      Id. ("This may be an undeserved

penalty, but discrimination based on non-political association does

not implicate the First Amendment.").

             In Correa-Martínez v. Arrillaga-Beléndez, we affirmed the

dismissal of a First Amendment claim brought by a government

employee alleging that his forced resignation was the result of his

close relationship with another employee with whom the defendants

had personal and political differences.        903 F.2d 49, 57-59 (1st


                                   -22-
Cir.   1990)       (overruled     on     other    grounds       by     Educadores

Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68 (1st Cir.

2004)).     There, we reasoned that the plaintiff's allegations in

that case did not explain how the defendants discriminated against

him based on his political beliefs or advocacy of ideas regarding

matters of public interest.         Id. at 57.     We further reasoned, "he

asserts     only   that    defendants      had    'personal     and    political

differences' with an unrelated individual [. . .] and discriminated

against him (plaintiff) because of his 'close association' with

[said individual]."       Id.   Such personal relationships with someone

with whom defendants have political differences do not rise to the

level of protected activity guaranteed by the Constitution.                     See

id. ("[I]n constitutional terms, freedom of association is not to

be defined unreservedly.           Entry into the constitutional orbit

requires more than a mere relationship.").               That is, "the First

Amendment does not protect against all deprivations arising out of

an act of association unless the act itself –- say, joining a

church or political party, speaking out on matters of public

interest,    advocacy     of    reform    –-   falls   within    the    scope    of

[protected] activities."          Id.    Therefore, when a constitutional

claim rests upon the political beliefs of third parties being the

cause of the adverse action without more, a plaintiff fails to

establish that its protected activity is the motivating factor

behind defendant's actions.


                                        -23-
           Here, Rosaura acknowledged that there would be material

facts in controversy requiring reversing the dismissal granted by

the district court, only if we decide that it had a valid cause of

action for retaliation under Umbehr.         Yet, Rosaura failed to argue

what protected conduct, if any, it engaged in that was a motivating

factor in the Mayor's retaliation.          Rosaura also failed to allege

that its association to the relatives of one of its shareholders

was political in nature, or related to other matters of public

concern.

           We note that here there is a particularly attenuated

relationship between Rosaura and the parties exercising First

Amendment rights (Rosaura alleged that it was denied a contract

because its shareholders are related to parties exercising First

Amendment rights), and there is no allegation that the denial of

the contract to Rosaura was designed to or would have any material

effect on the exercise of First Amendment rights by the relatives

of shareholders.     For those reasons, Rosaura failed to establish a

colorable claim for First Amendment retaliation.

C. The Equal Protection Claim

           Rosaura    claims,   in   the    alternative,   that   the   lease

contract was ultimately granted to a political supporter of the

Mayor, without submission for his written approval, as the Mayor

required of Rosaura's contract at the eleventh hour.               Thus, it

claims that this action violated its equal protection rights.             In


                                     -24-
support    of    the     purported    unequal          treatment,    Rosaura     simply

contends, without details, that the favored contractor's property

was sub-standard and did not meet Head Start requirements. Rosaura

points us without much guidance to Clark v. Boscher, which held

that "[a] plausible equal protection violation is established when

a plaintiff shows by his or her well-pleaded facts that she was

treated differently from 'others similarly situated . . . 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.'"                     514 F.3d 107,

114 (1st Cir. 2008).             Even assuming that these allegations are

sufficient, which we do not since we have held that Rosaura failed

to establish that it exercised constitutional rights, this also is

wrong on the merits.

            As stated before, an equal protection claim requires

"proof    that    (1)     the    person,    compared       with     others    similarly

situated, was selectively treated; and (2) that such selective

treatment was 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."       Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir.

2013).    Rosaura has failed to show any of these impermissible

considerations.




                                           -25-
           Defendants       correctly   reply      that   Rosaura's      equal

protection claim fails because it is a mere restatement of its

First Amendment claim and based on the same facts.                See Uphoff

Figueroa   v.    Alejandro,    597   F.3d   423,    426   (1st    Cir.   2010)

("Political discrimination and retaliation claims under the First

Amendment cannot be restated as claims under the Equal Protection

Clause"); Prisma Zona Exploratoria, 310 F.3d at 8 ("To the extent

that this claim pretends to be anything more than a restatement of

the failed First Amendment claim, it too is undeveloped and

abandoned.").

           Rosaura has also failed to make an argument as to how it

was similarly situated to the favored contractor. It simply states

without explanation that this competitor was awarded the contract

based on political favoritism, even though its facilities were

allegedly not as suitable for the municipal government's use.

Rosaura points to nothing in the summary-judgment record that might

shed   light    on   the   "similarly   situated"    prong   of    the   equal

protection analysis, or that it belongs to a protected category.

Accordingly, Rosaura's equal protection claim also fails.

                              III. Conclusion

           For the reasons foregoing we hold that Rosaura failed to

state a First Amendment retaliation cause of action, and failed to

state an equal protection claim. Therefore, we need not address at




                                     -26-
this   time    whether    Umbehr   protections   extend   to   first   time

government contractors. The district court's judgment is affirmed.

              AFFIRMED.




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