
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2170                          ELIEZER BARRIOS-VELAZQUEZ, ET AL.,                               Plaintiffs - Appellants,                                          v.                             ASOCIACION DE EMPLEADOS DEL                    ESTADO LIBRE ASOCIADO DE PUERTO RICO, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Francisco R. Gonz lez-Col n, with whom Francisco R. Gonz lez               ___________________________            _____________________          Law Firm was on brief for appellants.          ________               Lino  J. Salda a, with whom Carmen M. Dom nguez was on brief               ________________            ___________________          for appellees.                                 ____________________                                     May 24, 1996                                 ____________________                    TORRUELLA,  Chief Judge.   Appellants  Eliezer Barrios-                    TORRUELLA,  Chief Judge.                                ___________          Vel zquez  ("Barrios"), Myrta  Nieves-Vega ("Nieves")  and Isidro          Collazo   ("Collazo"),   in  their   personal  capacity   and  as          representatives  of the "Comit  de  Delegados y Miembros Pro Sana          Administraci n    de    AEELA"   ("SAAEELA")       (collectively,          "Plaintiffs"), appeal the district  court's dismissal for lack of          subject matter jurisdiction of  their complaint brought  pursuant          to 42  U.S.C.    1983 against  the  Asociaci n de  Empleados  del          Estado Libre Asociado de Puerto  Rico ("AEELA") and Isaac Neftal           Rojas-Nater  ("Rojas"),  Roberto  Aquino-Garc a   ("Aquino")  and          Miguel  Mart nez-Williams  ("Mart nez"),  in  their  personal and          official capacities (collectively, "Defendants").  We affirm  the          decision of the district court.                                I.  STANDARD OF REVIEW                                I.  STANDARD OF REVIEW                    "We  review the grant of  a motion to  dismiss de novo,                                                                   _______          taking  the allegations in the  complaint as true  and making all          reasonable inferences in  favor of plaintiff."  Rockwell  v. Cape                                                          ________     ____          Cod  Hosp., 26  F.3d  254,  256  (1st  Cir.  1994);  see  Rumford          __________                                           ___  _______          Pharmacy, Inc. v.  City of E. Providence, 970 F.2d  996, 997 (1st          ______________     _____________________          Cir. 1992).  "We  must liberally construe [Plaintiffs'] complaint          and affirm its dismissal only if  [they] cannot prove any set  of          facts entitling [them] to relief."  Rockwell, 26 F.3d at 255.                                              ________                    Although  it  does not  affect  the  outcome, it  would          appear  that the motion to dismiss was  converted to a motion for          summary judgment  since  the district  court  plainly  considered                                         -2-          "matters  outside  the  pleadings."    Fed.  R.  Civ.  P. 12(c).1          Plaintiffs   in  fact   argue  in   their  brief   that  due   to          representations  made  to  them  by  defendants'  attorney,  they          postponed filing an opposition  to defendants' motion to dismiss,          and they  were therefore not afforded  a "reasonable opportunity"          to present  Rule 56 material.  See Br. for Appellants at 12.  The                                         ___          answer to this  argument, of course,  is clear: even  considering          this  Rule  56  material, see  supra  note  1,  we conclude  that                                    ___  _____          plaintiffs demonstrated no genuine issue of material fact.                                   II.  BACKGROUND                                   II.  BACKGROUND                    The  instant  case  stems   from  a  dispute  over  the          circumstances under which a Quadrennial Assembly (the "Assembly")          of  the  AEELA  was  held  on  July  8,  1995.    The  AEELA  has          approximately 180,000 members, all of whom are  regular or former          employees  of the government of  Puerto Rico.   Of these members,                                        ____________________          1    These "matters"  included the  following:  1) the  AEELA was          created as a quasi-public entity to provide financial services to          government employees, which is a traditional government function;                                                       __________          2)  membership in the  AEELA is  mandatory for  most Commonwealth          employees  as is  the 3%  payroll deduction  to fund  the AEELA's          operations; 3) the AEELA's  operations and delegate elections are          heavily  regulated  by  statute  (e.g.,  number  of  members  per          delegate);  4)  heads  of  government   departments  appoint  the          Election Committee to run the delegate elections; 5) the Board of          Directors  and  the  Election  committee members  often  work  on          government time, and use  government facilities and equipment; 6)          the  AEELA's  finances  are  supervised  by  the   Commonwealth's          Comptroller; 7) the AEELA  is exempt from state taxation;  8) the          Commonwealth collects  the 3%  membership  fee for  the AEELA  by          making payroll deductions; 9) the AEELA may make investments only          "on advice" from the  Commonwealth's Treasury Department; 10) the          AEELA's  employees participate  in the  Commonwealth government's          pension  plan; 11) the Commonwealth provides  the AEELA with some          services  free of charge; and 12) the AEELA's members, delegates,          and directors are all government employees.                                         -3-          75%  are required by law to participate  in and be members of the          AEELA,  and are  required to  provide 3%  of their  salary  to be          administered by the AEELA.  Only employees of public corporations          and municipalities may participate in the AEELA.                    Plaintiffs contend,  and this court  must assume, given          our  procedural posture,  that Defendants have  exercised control          over  the AEELA  since 1987,  and used  this control  to handpick          delegates  to the Assembly in question in order to maintain their          control, and that  of the Popular Democratic  Party ("PDP"), over          the AEELA.   We must further infer  that Defendants impermissibly          notified only those delegates  who shared their political beliefs          that  the Assembly  would  be  held,  and  refused  to  take  the          necessary  measures  to  notify  or  confirm  the  membership  of          delegates who do not support the PDP.  Furthermore, we infer that          Defendants  denied  Plaintiff-Appellant  Nieves  a  list  of  the          certified delegates,  thus hindering her candidacy  for President          of the AEELA's Board of Directors.                    Plaintiffs charge that these actions amount  to illegal          political discrimination  in violation of their  rights under the          Due Process Clause  of the Fourteenth Amendment  and the enabling          law  of  the Commonwealth  Employees  Association,  3 L.P.R.A.             862(b).   They  also  contend, contrary  to  the  district  court          opinion dismissing their claim  under 28 U.S.C.   1983,  that the          acts of Defendants are state action.                                   III.  DISCUSSION                                   III.  DISCUSSION                    "Title  42   U.S.C.     1983  provides   a  remedy  for                                         -4-          deprivations of rights  secured by the  Constitution and laws  of          the United States when that  deprivation takes place 'under color          of  any statute, ordinance, regulation, custom,  or usage, of any          State or Territory . .  . .'"  Rockwell, 26 F.3d  at 256 (quoting                                         ________          Lugar v.  Edmondson Oil Co., 457 U.S. 922, 924 (1982)).  To state          _____     _________________          a claim  under   1983,  a plaintiff must  make two  showings: the          existence of a federal  or statutory right; and a  deprivation of          that  right by a  person acting under  color of state  law.2  See                                                                        ___          id.; Watterson v. Page, 987 F.2d 1, 7 (1st Cir. 1993).          ___  _________    ____                    The district court  addressed only the second  showing,          dismissing  this action on the ground that Defendants did not act          under color of state law when they scheduled the general assembly          for July 8,  1995.  We note  in passing that at  least two courts          have  already  concluded  that  the  AEELA  is   not  an  agency,          department or  instrumentality of the Government  of Puerto Rico,          suggesting  that  the AEELA's  actions and  those of  its members          cannot  be labeled state action.  Morales v. Chaves, No. 75-1087,                                            _______    ______          slip op. at  2 (D.P.R. Dec. 9, 1975) (noting  that while "[i]t is          true  that  the  Association  was  created  by  statute  and only          government employees may be members . . . there all relation with          the  Commonwealth ceases");  Association of  Employees  of Puerto                                       ____________________________________          Rico v. V squez-P rez,  92 JTS  52, slip  op. at  26 (P.R.  1992)          ____    _____________                                        ____________________          2   For the  purposes of  section 1983,  "Puerto Rico enjoys  the          functional  equivalent of  statehood," and  thus the  term "state          law" includes Puerto Rico law.   Mart nez v. Col n, 54 F.3d  980,                                           ________    _____          984  (1st Cir. 1995); see  Playboy Enters., Inc.  v. Public Serv.                                ___  _____________________     ____________          Comm'n of P.R., 906 F.2d 25, 31 n.8 (1st Cir.), cert. denied, 498          ______________                                  ____________          U.S. 959 (1990).                                         -5-          (official trans.)  (stating, in  the context of  deciding whether          the AEELA was subject to the Truth in Lending Act, that "although          the  Association is  a  highly regulated  entity  created by  the          government, whose objective is to implement the government policy          of  . .  . encouraging  saving among  public employees  . .  . it          cannot  be  considered   as  a  government   agency,  department,          instrumentality or public corporation").   While persuasive as to          certain points,  these cases  do not represent  binding authority          for this court.  As a  result, like the district court before us,          we conduct our own inquiry into the issue.                    Because  section 1983 does  not reach  private actions,          the key issue  before us is whether the conduct  at issue in this          case may  be "'fairly  attributable to  the State,'"   Rodr guez-                                                                 __________          Garc a v. D vila, 904 F.2d 90, 94 (1st Cir. 1990) (quoting Lugar,          ______    ______                                           _____          457 U.S. at 937);  see Ponce v. Basketball Fed'n  of Puerto Rico,                             ___ _____    ________________________________          760  F.2d 375, 377 (1st Cir. 1985).   The state action inquiry is          "'necessarily  fact-bound.'"   Id.  (quoting Lugar,  457 U.S.  at                                         ___           _____          937).   "In  cases  under     1983,  'under  color'  of  law  has          consistently been treated as the same thing as the 'state action'          required under the Fourteenth Amendment."  Rendell-Baker v. Kohn,                                                     _____________    ____          457 U.S. 830,  838 (1982).   "The ultimate  issue in  determining          whether  a person  is subject to  suit under    1983  is the same          question posed  in cases arising under  the Fourteenth Amendment:          is   the   alleged  infringement   of   federal   rights  'fairly          attributable to the  State?'"   Id. (quoting Lugar,  457 U.S.  at                                          ___          _____          937).                                         -6-                    On  appeal, Plaintiffs  contend  that the  AEELA is  an          extension of the  government of the Commonwealth  of Puerto Rico,          and  that the conduct  at issue may  be fairly  attributed to the          state  on  that basis  as  direct state  action.   Alternatively,          Plaintiffs   argue  that  even   if  the   AEELA  is   a  private          organization,  the actions that give rise to the instant case may          still be fairly attributed to the state as indirect state action.          Ultimately, a finding  of either direct or indirect  state action          would suffice  to sustain Plaintiffs'  section 1983 action.   See                                                                        ___          Rodr guez-Garc a, 904 F.2d at 95.          ________________                               A.  Direct State Action                                A.  Direct State Action                    Plaintiffs  contend  that  Defendants' actions  may  be          fairly  attributed to the state because, they claim, the AEELA is          a  public  corporation  and  therefore, an  "arm  of  the state."          Although "[t]he Act which creates the Association does not define          whether  it is an agency,  a department, an  instrumentality or a          public corporation," V squez-P rez, slip  op. at 24, both federal                               _____________          and state courts have held  that the AEELA is not  a governmental          agency,  see Morales,  slip op.  at 2  (noting that  "the Supreme                   ___ _______          Court of Puerto Rico has, since 1932, consistently ruled that the          Employees Association is not a part of the Government"); V squez-                                                                   ________          P rez, slip op. at 26.          _____                    Admittedly, technical  labels are not dispositive.   In          Lebr n v. National R.R. Passenger Corp., ___ U.S. ___, 115 S. Ct.          ______    _____________________________          961 (1995), the Supreme  Court addressed direct state  action and          technical labels, ruling that,  despite a statutory disclaimer of                                         -7-          agency status,  the National Railroad Passenger  Corp. ("Amtrak")          was nonetheless a government entity.  In deciding that Amtrak was          a  state actor when  it refused to lease  advertising space to an          artist's  display because  it was  "political," the  Court stated          that "it is  not for Congress to make the  final determination of          Amtrak's  status   as  a   government  entity  for   purposes  of          determining the constitutional rights of citizens affected by its          actions."  Id. at 971.   The Court, in dicta, indicated  that the                     ___          issue of state action and technical labels that it was addressing          also had relevance to the states, stating that "it cannot be that          government,  state or federal, is  able to evade  the most solemn          obligations imposed  in the  Constitution by simply  resorting to          the  corporate form [since] [o]n  that thesis, Plessy v. Ferguson                                                         ______    ________          can  be resurrected by  the simple device of  having the State of          Louisiana  operate   segregated  trains  through   a  state-owned          Amtrak."  Id. at 972 (citations omitted).                    ___                    While  the logic of Lebr n applies to the present case,                                        ______          we conclude  that it does not  avail Plaintiffs.   The Court held          that where                      the Government creates  a corporation  by                      special  law,  for  the   furtherance  of                      governmental objectives,  and retains for                      itself permanent authority  to appoint  a                      majority   of   the  directors   of  that                      corporation, the corporation  is part  of                      the Government for purposes of  the First                      Amendment.          Id. at 974-75.  The Supreme Court in Lebr n focused on the degree          ___                                  ______          of  control  that the  federal government  had  over Amtrak.   In          contrast, neither party  in the instant  case has contended  that                                         -8-          the Government  of Puerto  Rico has retained  permanent authority          over  the  directors of  the  AEELA.   This  distinction  becomes          clearer  when we  compare  the facts  surrounding Amtrak  and the          AEELA.     The  President  appoints  the   majority  of  Amtrak's          directors,  the federal  government owns  all of  Amtrak's voting          stock, and the government subsidizes Amtrak's "perennial losses."          Id. at 967.  By contrast, the government of Puerto  Rico does not          ___          retain the  power  to  appoint  any  of  the  AEELA's  directors.          Instead, the  directors are  elected by delegates  who themselves          are elected by the AEELA's membership at large.  Furthermore, the          AEELA's  losses, if  any,  are not  regularly  subsidized by  the          government of  Puerto  Rico.   As  a result  of  these facts,  we          conclude that the AEELA  does not constitute an extension  of the          government of Puerto Rico,  and so Defendants must be  treated as          private parties.   Thus, direct  state action is  not present  in          this case.                              B.  Indirect State Action                              B.  Indirect State Action                    We  therefore  turn  to  the question  of  whether  the          conduct at issue, while not that of the government of Puerto Rico          directly, may be nonetheless  fairly attributed to the state.   A          private entity's conduct is not actionable under section  1983 if          the challenged action results from the exercise of private choice          and  not  from  state influence  or  coercion.   See  id.  at 980                                                           ___  ___          (O'Connor,  J.,  dissenting)  (concluding  that  Lebr n  did  not                                                           ______          involve direct state action,  and therefore, unlike the majority,          inquiring  as to  indirect state  action);  San Francisco  Arts &                                                      _____________________                                         -9-          Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 547          _______________    ___________________________          (1987) (stating  that "[t]here  is no  evidence that  the Federal          Government  coerced or encouraged the USOC in the exercise of its          right  [to deny use of  its copyright]"); Rendell-Baker, 457 U.S.                                                    _____________          at  841 (holding  that discharge  decisions of  largely publicly-          funded private school for  troubled students were not subject  to          constitutional   challenge  because   those  actions   "were  not          compelled or even influenced by any state regulation").                    As  a result,  this  court must  determine whether  the          conduct  of Defendants, as private parties, rises to the level of          state  action.   As this  court has  previously spelled  out, the          relevant inquiries consist of whether there was                      (1) .  .  .  an  elaborate  financial  or                      regulatory nexus between [Defendants] and                      the  government  of  Puerto   Rico  which                      compelled  [Defendants]  to  act as  they                      did, (2) an assumption by [Defendants] of                      a  traditional public function,  or (3) a                      symbiotic   relationship   involving  the                      sharing of profits.          Rodr guez-Garc a, 904 F.2d at 96; see Ponce, 760 F.2d at 377.  We          ________________                  ___ _____          examine each  test in  turn, as  satisfaction of  any one of  the          three tests requires that we find indirect state action.                                  1.  Nexus Analysis                                  1.  Nexus Analysis                    As both parties acknowledge, "the challenged  action of          the  regulated entity . . . may be  fairly treated as that of the          State itself .  . . only  when it can be  said that the  State is          responsible  for  the specific  conduct  of  which the  plaintiff          complains."  Blum v. Yaretsky,  457 U.S. 991, 1004  (1982), cited                       ____    ________                               _____          in Rodr guez-D vila,  904 F.2d  at 97.   The test is  whether the          __ ________________                                         -10-          government exercised coercive power  or provided such significant          encouragement  that the complained-of  misconduct surrounding the          Assembly and the Board elections must be deemed to be the conduct          of the government.  Id., 904 F.2d at 90.                              ___                    We  emphasize  that  our  examination  focuses  on  the          government's  connection  to the  complained-of  action, not  the          government's  connection to the AEELA itself.  See Blum, 457 U.S.                                                         ___ ____          at 1004.  As  a result, we find extraneous  Plaintiffs' arguments          highlighting  the facts that the  AEELA was created  by law, that          its members  and Directors  are  public employees,  and that  the          elective process is regulated  by law, except to the  degree that          these facts  demonstrate government coercion  or encouragement of          the complained-of conduct.                    Plaintiffs  contend  that   Defendants  derived   their          authority  to schedule  the Assembly  and election from  a Puerto          Rico  law,  3  L.P.R.A.     862(d),   and  that  Defendants  were          government employees who  performed their  duties during  working          time  and using  government  equipment and  materials.   However,          Plaintiffs have  hung their claim on the  proposition that state-          granted authority suffices to find  state action, since they have          failed to  allege that the  government coerced or  encouraged the          specific election rigging that gives rise to their complaint.  We          believe that the state's grant of authority  alone cannot justify          a conclusion of state action in this case.                    We  draw  this  conclusion  by  comparing  two  of  our          previous cases.  First, like the district court, we are persuaded                                         -11-          by  our holding in Rockwell,  26 F.3d at  258, that state-granted                             ________          authority  making possible  a private  party's actions  does not,          without more,  sufficiently show  that the specific  action taken          under that authority constitutes state action.  Id.  In Rockwell,                                                          ___     ________          we  concluded   that  the  fact  that   a  Massachusetts  statute          authorized  public health  professionals  to hospitalize  persons          believed to present  a likelihood  of serious harm  by reason  of          mental illness,  did  not suffice  to  create a  sufficient  link          between the state  and the plaintiff's own  detention to classify          the hospital as a state actor.  Id. By contrast,  in Rodr ques v.                                          ___                  _________          Furtado,  950  F.2d 805,  814  (1st Cir.  1991), we  held  that a          _______          physician "functioned as a state actor" where he performed a body          cavity search of the  plaintiff pursuant to a search warrant.  We          justified  our  conclusion  on  the  ground  that the  scope  and          motivation  for the  specific conduct  occasioning the  complaint          "were established  solely by the state's  investigatory goals and          justified solely by the search warrant."  Id. at 814.                                                    ___                    We  conclude  that  to  the  extent that  state-granted          authority can  justify a finding of state  action, that authority          must be connected  to the  aim of encouraging  or compelling  the          specific  complained-of conduct.   Because  we conclude  that the          district court correctly found  that no state-linked financial or          regulatory nexus compelled Defendants to act as they did, we find          no state action under the nexus test.                      2.  Traditional Public Function Analysis                        2.  Traditional Public Function Analysis                    "[F]or a private actor to be deemed to have acted under                                         -12-          color of state  law, it is  not enough to  show that the  private          actor  performed a public function."   Rockwell, 26  F.3d at 258.                                                 ________          Rather,  "[t]he  plaintiff  must  show that  the  private  entity          assumed  powers  'traditionally   exclusively  reserved  to   the          State.'"   Id.  (quoting  Rodr ques,  950  F.2d  at  813).    The                     ___            _________          exclusive  function test  screens for  situations "where  a state          tries  to  escape  its  responsibilities by  delegating  them  to          private  parties."  Id. at 258; see Johnson v. Pinkerton Academy,                              ___         ___ _______    _________________          861  F.2d 335,  338 (1st  Cir. 1988).   If  the convening  of the          AEELA's assembly or  the election of  its board are  traditional,          exclusively sovereign functions which have merely  been delegated          to private  actors, then  the state cannot  escape responsibility          for  constitutional deprivations caused by private parties acting          pursuant to the delegation.  Rockwell, 26 F.3d at 258.                                       ________                    In Rendell-Baker,  457 U.S.  at 352, the  Supreme Court                       _____________          discussed the "public  function" analysis of  state action.   The          Court concluded  that although the education  of maladjusted high          school  students is a public function for which the state intends          to provide  services at public expense,  that "legislative policy          choice in no way  makes these services the exclusive  province of          the State . . . . That a private entity performs a function which          serves the public  does not makes its  acts state action."   Id.;                                                                       ___          see also Ponce, 760 F.2d at 381.          ________ _____                    Plaintiffs contend  that for public  interest purposes,          the  government of  Puerto Rico  has delegated  to the  AEELA the          traditional  activity  of  promoting  savings   among  government                                         -13-          employees, and  providing them benefits such  as loans, insurance          and medical  services.  We  agree with Plaintiffs  that providing          such  benefits  to public  employees  probably  does promote  the          public interest.   However,  these services cannot  reasonably be          characterized  as  the exclusive  province  of  the State,  since          banks, credit unions,  savings and loans  associations, brokerage          firms, mutual funds, and  insurance companies traditionally  have          existed to promote savings, loans and health and other insurance.          As a result, we conclude that Defendants cannot be found  to have          engaged in  state action under the  "traditional public function"          test.                              3.  Symbiotic Relationship                               3.  Symbiotic Relationship                      State  action  can be  found  by  way  of  a  symbiotic          relationship.   Under  this test,  a  private party's  acts  "are          attributable  to the  state only  if the  government 'has  so far          insinuated itself  into a  position of interdependence  with [the          private entity] that it must be recognized as a joint participant          in the  challenged activity .  . . .'"   Ponce,  760 F.2d at  381                                                   _____          (quoting Burton v.  Wilmington Parking Auth.,  365 U.S. 715,  725                   ______     ________________________          (1961)).  While "one of the key factors in determining  whether a          symbiotic  relationship  exists  is certainly  whether  the state          shared  in any profits made," the lack of a financial partnership          is not  necessarily dispositive.   Rodr guez-Garc a, 904  F.2d at                                             ________________          98-99  (listing  several factors  relevant to  finding "symbiotic          relationship").                    In Burton, the Court found state action where the state                       ______                                         -14-          leased  public  property  to  a  private  restaurant  owner,  who          maintained a  racially discriminatory policy, acknowledged  to be          indispensable to the success of the venture.  Burton, 365 U.S. at                                                        ______          723-24.  In contrast, there is no evidence that the government of          Puerto Rico  somehow profited from  the allegedly  discriminatory          actions of  Defendants.  Even  though the AEELA  receives legally          mandated funds from public employees, no contention has been made          that  this money  becomes  the  property  of  the  AEELA  or  the          government.   In fact,  Plaintiffs have  not disputed  that, upon          termination of employment,  public employees  receive back  their          funds.   While  the Puerto  Rico Secretary  of the  Treasury does          approve  the investments  made  by the  AEELA  with these  funds,          Plaintiffs  have not contended that  these funds are somehow used          to  the benefit  of the  government of  Puerto Rico,  rather than          invested at a market  rate of return.  Also,  Plaintiffs have not          even  attempted  to link  the  alleged election  rigging  to some          financial gain to the government of Puerto Rico, in  the way that          the discrimination  in Burton was  linked to the  state's returns                                 ______          from the venture.  Thus, whatever financial success the AEELA may          achieve is not shared with the government of Puerto Rico.                    Similarly, while  the lack  of financial enrichment  is          not dispositive, and  "[t]he test is  one of interdependence  and          joint  participation,"  we agree  with  the  district court  that          Plaintiffs have  failed to contest the proposition that the AEELA          is essentially independent in  the conduct of its  daily affairs.          And no  attempt has been  made to link  the government of  Puerto                                         -15-          Rico to the  decisions of when  to hold the  Assembly and how  to          conduct  Board elections.    As a  result,  we conclude  that  no          symbiotic relationship exists  between the  government of  Puerto          Rico and the AEELA.                    In  passing,  we  observe  that in  the  instant  case,          Plaintiffs  have not  premised their  claim on a  private party's          specific act, directed  by the government  of Puerto Rico,  which          somehow benefits the government via a symbiotic relationship with          the private actor.   This point can be illustrated  by comparison          with  the symbiotic relationship that  led to a  finding of state          action in Schneider v. Colegio de Abogados de Puerto Rico, 565 F.                    _________    __________________________________          Supp.  963, 974,  stay denied,  572 F.  Supp. 957  (D.P.R. 1983),                            ___________          vacated  on other grounds Romany v. Colegio de Abogados de Puerto          _________________________ ______    _____________________________          Rico,  742 F.2d  32 (1st  Cir. 1984)  (holding that  the district          ____          court should have abstained from reaching the merits of the First          Amendment claims until  the Puerto Rico  Supreme Court decided  a          pending controversy).  In  Schneider, the plaintiffs charged that                                     _________          Puerto  Rico laws  forcing them  to be  members of  Puerto Rico's          integrated bar  association violated their rights  to free speech          and  free association, since those laws forced them to belong to,          and  financially  support,  an organization  (the  Colegio) which          promoted  ideological  and  political causes  contrary  to  their          personal beliefs.  Id. at 965-66.  The court found state  action,                             ___          noting  not  only  that Puerto  Rico  law  required  attorneys to          maintain  membership in  the Colegio,  but also  emphasizing that          required  membership  aided  the  Colegio's  public  function  of                                         -16-          regulating  lawyers,  from  which  the government  was  found  to          benefit.  Id. at  973-74.  Essentially, the government  of Puerto                    ___          Rico was found to be advantaged  by the specific act on which the          complaint was grounded, namely, forced membership in the Colegio.                    By  contrast, plaintiffs  in  the instant  case do  not          mount a  facial challenge to  the laws that  create the  AEELA or          require that it  hold elections.   Instead, they  argue that  the          AEELA's    leadership    committed    discretionary    acts    of          discrimination, and did so  while exercising authority granted by          the  government of  Puerto Rico.   But  plaintiffs fall  short of          Schneider in at least two ways.  First, the conduct they complain          _________          of --  discrimination -- is  not specifically mandated  by Puerto          Rico law, as forced  membership in the Colegio was for lawyers in          Schneider.  Unlike the plaintiffs in Schneider, Plaintiffs do not          _________                            _________          challenge conduct  specifically directed by Puerto  Rico law; for          example, their forced membership in the  AEELA or the requirement          that  the   AEELA  hold  assemblies  and   elections.    Instead,          Plaintiffs complain of the  manner in which the assembly  and the                                      ______          elections  were held -- this  manner is not  directed by statute.                                        ______          Second, Plaintiffs  have failed  to link  these specific  acts of          discrimination in  the holding of AEELA's  assembly and elections          to  any symbiotic  relationship by  which the  government profits          from these specific discriminatory acts.  No  allegation has been          made  that the government of Puerto Rico is somehow advantaged by          the  alleged  misconduct in  AEELA's assembly  or elections.   By          contrast, in  Schneider, bar  membership required by  Puerto Rico                        _________                                         -17-          law constituted  the conduct complained of, and  also was alleged          to  benefit  the  government  of Puerto  Rico,  since  compulsory          membership made possible the  Colegio's regulatory functions.  As          a  result of these distinctions,  we conclude that Schneider does                                                             _________          not avail Plaintiffs.                                      CONCLUSION                                      CONCLUSION                    To maintain a Section 1983 action, state action must be          present.   Because we conclude that, reading the pleadings in the          best light for  Plaintiffs, they can  prove no set of  facts that          would implicate state action, the judgment of the district  court          is          affirmed.          affirmed.          ________                                         -18-
