          United States Court of Appeals
                      For the First Circuit

No. 09-1784

                   MIGUEL NÚÑEZ COLÓN, et al.,

                      Plaintiffs-Appellants,

                                v.

              HONORABLE PEDRO TOLEDO-DÁVILA, et al.,

                      Defendants-Appellees.


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

          [Hon. Marcos E. López, U.S. Magistrate Judge]



                              Before

        Torruella, Leval,* and Thompson, Circuit Judges.



     Jane Becker Whitaker was on brief for appellants.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor
General, Leticia Casalduc-Rabell, Deputy Solicitor General, and
Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for
appellees.



                           May 26, 2011



*Of the Second Circuit, sitting by designation.
       THOMPSON, Circuit Judge.     Police officer Miguel Núñez Colón

("Núñez") was arrested and fired from the Puerto Rico police

department after he misappropriated $600 during the search of a

home.      Núñez   claims     multiple    constitutional   violations   in

connection with this incident.           The lower court disagreed, and

discerning no error we AFFIRM.

                                   FACTS

                            The Misappropriation

       On July 21, 2005, Núñez, a twelve-year veteran of the police

force, went with other officers to a residence in response to an

informant's tip.    The tip concerned the possibility that drugs and

weapons were being stored at the home.             A group of officers

searched the residence without a warrant, though it is disputed

whether Núñez actually entered the home.         What is known is that a

woman named Wanda Serrano was found sleeping inside and that she

had $600 in small bills stored in a plastic bag.           Ms. Serrano's

money somehow found its way to Núñez, though another bone of

contention is whether Núñez was given the money by another officer

or whether he found it himself.           In either event, within hours,

Núñez contacted his supervisor, told him that he had the $600, and

asked him what to do.       He was advised to return the money to Ms.

Serrano and to obtain a receipt from her, which Núñez did the next

day.

       Though the money was back in the hands of its rightful owner,


                                    -2-
the police department initiated an investigation of the incident.

Further, a criminal complaint for illegal appropriation was filed

against Núñez, and the Puerto Rico Court of First Instance found

probable cause for his arrest.      On December 3, 2005, things only

got worse for Núñez when defendant Police Superintendent Pedro

Toledo-Dávila ("Toledo") summarily suspended him without pay.      On

December 15th, Núñez requested an administrative hearing.

                    The Administrative Proceedings

     Six months after it was requested, Núñez's post-suspension

hearing began on June 1, 2006.      Significant for purposes of this

appeal is the fact that Núñez was acquitted of the criminal charges

fourteen days prior to the start of the hearing.     At the hearing,

Núñez was represented by counsel who questioned witnesses.         But

alas this effort was to no avail.    Núñez was found to have violated

police department regulations, a sanctionable offense.      The police

department, through a letter penned by Toledo, terminated Núñez on

October 26, 2006.

     Núñez     appealed   the   administrative   decision     to   the

Investigation, Processing and Appeals Commission (Spanish acronym

"CIPA").     CIPA also ruled against Núñez, finding that he in fact

violated department regulations when he took the $600, which was

not connected to any illegal activity and therefore should not have

been seized. CIPA also noted that Núñez's acquittal did not affect

the ability of the police department to fire him.


                                 -3-
     Undeterred Núñez sought further review.       He appealed CIPA's

decision to the Puerto Rico Court of Appeals ("PRCA"). Applying an

abuse of discretion standard, the PRCA affirmed CIPA.          Núñez chose

not to petition the Puerto Rico Supreme Court to review the PRCA's

decision.      Despite this fact, his quest for a remedy was not yet

complete.

                     The Federal Court Proceedings

     Ever persistent, Núñez embarked on a contemporaneous journey

through the federal judiciary.      Núñez's sojourn began in October

2006 when he filed a complaint with the United States District

Court for the District of Puerto Rico.       Núñez (with his wife and

children as co-plaintiffs) sued the Puerto Rico police department,

the Puerto Rico Department of Justice, superintendent Toledo, and

other involved police department employees pursuant to 42 U.S.C. §

1983.   He alleged: (1) wrongful arrest in violation of the Fourth

Amendment; (2) malicious prosecution also contrary to the Fourth

Amendment; (3) retaliation for conduct protected by the First

Amendment; and (4) Fourteenth Amendment due process violations.

Núñez   also    invoked   supplemental   jurisdiction   over    state-law

defamation and malicious prosecution claims.

     Over the course of the next two years plus, the district court

ruled on various motions resulting in two written decisions.           In

its first, the court dismissed Núñez's retaliation claim based on

the doctrine of collateral estoppel and his wrongful termination


                                   -4-
allegation because due process requirements were met.               Núñez Colón

v. Toledo Dávila, 2009 WL 1108821 (D.P.R. Apr. 23, 2009).               In its

second decision, the court dismissed Núñez's wrongful arrest and

malicious prosecution claims because he could not establish the

requisite elements - in part because collateral estoppel barred

Núñez from re-litigating certain issues.              Núñez Colón v. Toledo

Dávila, 2009 WL 1311008 (D.P.R. Apr. 27, 2009).                The court also

dismissed    Núñez's    state    law   defamation     claim   on   supplemental

jurisdiction grounds as there was no common nucleus of fact between

it and the lone remaining federal claim.          The court then went on to

dismiss the claims of the wife and children plaintiffs for lack of

standing, and the claims against all defendants but Toledo because

he was the only one Núñez alleged directly violated his rights.

     With just Núñez and Toledo left standing, the case proceeded

to a jury trial.     The only remaining issue was whether Núñez's due

process     rights     were     violated     during    his    post-suspension

administrative proceeding.        After Núñez presented his case, Toledo

made a Rule 50(a) motion for judgment as a matter of law.                  The

district court ruled in Toledo's favor and issued a bench ruling

dismissing Núñez's final claim.         The court first dismissed Núñez's

official capacity claim against Toledo.                It held that because

recovery under this claim was limited to injunctive relief (e.g.

ordering the suspension to end), there was no feasible relief for

Núñez because he no longer worked for the police department.               The


                                       -5-
court then addressed Núñez's claim against Toledo in his personal

capacity.       With respect to this claim, the court found that there

was not legally sufficient evidence on which a jury could find in

Núñez's favor.          His appeal to this court followed.           In it, Núñez

claims that the district court blundered when it applied collateral

estoppel, excluded certain testimony, and ruled against him on the

due process claim.

                                        DISCUSSION

                               Collateral Estoppel

     In its first written decision, the district court applied the

doctrine of collateral estoppel to bar Núñez's argument that he did

not misappropriate the $600 and that his dismissal from the police

department was unwarranted. The court found that Núñez had already

litigated       these     issues   in    his     post-suspension   administrative

proceeding - the result of which was affirmed by CIPA and the PRCA.

The court also held that a Puerto Rico state law1 exception to

collateral estoppel (discussed at length below) did not apply.

With the precluded issues out of play, the court reasoned that

Núñez       could   not   prove    his    retaliation,    wrongful   arrest,   and

malicious prosecution claims and therefore dismissed them.                      We

review this dismissal de novo, taking as true the well-pleaded


        1
       Though Puerto Rico enjoys unique commonwealth status, it is
the "functional equivalent of a state for purposes of full faith
and credit" and therefore we sometimes refer to its courts as
"state courts" and its law as "state law." Cruz v. Melecio, 204
F.3d 14, 19 n.2 (1st Cir. 2000).

                                           -6-
facts in the complaint and drawing all reasonable inferences in

favor of Núñez.      See Isla Nena Air Servs., Inc. v. Cessna Aircraft

Co., 449 F.3d 85, 87 (1st Cir. 2006).

      On   appeal,   Núñez   does   not    dispute   that   the   elements   of

collateral estoppel have been satisfied, and therefore we need not

tarry long on the doctrine's requirements.             It suffices to note

that collateral estoppel bars re-litigation of any issues that

were, or could have been, brought in a previous action for which

judgement was rendered.        See Barreto-Rosa v. Varona-Mendaz, 470

F.3d 42, 45 (1st Cir. 2006).

      What Núñez does argue is that an exception to collateral

estoppel should apply.       The particular exception is a Puerto Rico

state law doctrine that has been referred to by this court as the

"public policy exception."2         Medina v. Chase Manhattan Bank, 737

F.2d 140, 144 (1st Cir. 1984).         The exception is premised on the

idea that in certain circumstances public policy will demand an

exception to collateral estoppel.3          See Barreto-Rosa, 470 F.3d at

48.   More specifically, Puerto Rico courts have declined to apply



      2
       We look to Puerto Rico case law because we must apply state
law when deciding the res judicata effect of a state court judgment
in federal court. Cruz, 204 F.3d at 18.
      3
       Much of the case law addressing the public policy exception
speaks in terms of res judicata. The relevant Puerto Rico statute,
P.R. Laws Ann. tit. 31, § 3343, applies to both res judicata and
collateral estoppel and therefore we use the terms interchangeably.
See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 69 (1st
Cir. 2008).

                                     -7-
collateral   estoppel   when   doing   so   would   defeat   the   "ends    of

justice, especially if reasons of public policy are involved."

Bonafont Solís v. Am. Eagle, Exec. Airline, Inc., 1997 P.R. Eng.

423,416 (1997) (internal quotation marks and citation omitted).

     Regrettably,    the   Puerto   Rico    jurisprudence    available      in

English translation that addresses the public policy exception does

not articulate a clear standard as to when the exception applies.

The case law is also ambiguous as to the exception's requirements.

In particular, the courts sometimes use the terms "public interest"

and "public policy" interchangeably.          See Bonafont Solís, 1997

P.R.-Eng. 423,416 (1997); Pagán Hernández v. U.P.R., 7 P.R. Offic.

Trans. 795 (1978).      We do not believe these terms are synonymous

and treating them so creates ambiguities.             Further, in Pagán

Hernández v. U.P.R. (a case Núñez cited heavily) the Puerto Rico

Supreme Court concluded that the pubic policy exception applied but

never articulated what public policy (or interest) was at play.

Pagán Hernández, 7 P.R. Offic. Trans. 795 (1978).        This seems to us

an important piece of information to omit.

     Nor do we derive much specific guidance from this court's

decisions.   Although this court has plunged into the murky waters

of the public policy exception a handful of times, it has not set

forth a clear rule regarding when to apply the exception.                  See

Medina, 737 F.2d at 145 (noting that the "boundaries of the 'public

policy' exception . . . are not precisely defined").          Instead this


                                    -8-
court's analysis has centered around a factual comparison between

the case before it and the Puerto Rico public policy exception

cases - with a focus on the fairness of the process rendered to the

plaintiff in the first instance or whether an overriding public

policy was at stake.         See, e.g., Barreto-Rosa, 470 F.3d at 48;

Medina, 737 F.2d at 144.            This seems a wise course and so we

follow.

      The public policy exception has been applied by the Puerto

Rico courts in a variety of cases.          This includes actions where the

potentially preclusive prior judgment (1) affected the rights of a

minor, (2) was moot, or (3) involved a dismissal for lack of

prosecution.    See Bonafont Solís, 1997 P.R.-Eng. 423,416 (1997)

(providing an account of cases where the public policy exception

has been applied).      However, most germane to this appeal is the

aforementioned case of Pagán Hernández v. U.P.R., 7 P.R. Offic.

Trans. 795 (1978).     In Pagán, the court found that the doctrine of

res judicata should be more flexible, as the possibly preclusive

judgment stemmed from a tainted administrative proceeding. Because

Núñez hung his hat almost exclusively on Pagán, we compare the

facts of the two cases.

      Pagán involved a student who was expelled from the University

of   Puerto   Rico   after    his   alleged    participation   in   criminal

activities.     The student, Pagán, sought readmission when the

criminal charges were dropped, but the university refused.            Pagán


                                      -9-
sued, and one of the issues before the Puerto Rico Supreme Court

was whether it was barred by the doctrine of res judicata from

addressing the suspension because the university's disciplinary

board had already decided the issue.              The court found that it was

not   barred   because    the       public    policy    exception      applied.      In

reaching   this    conclusion,          the     court     found       the    following

circumstances significant.

      First,   Pagán     was    a    young    student     who   was    invoking     his

constitutional right to education.4             Second, he was being deprived

of this right based on evidence the Puerto Rico Supreme Court had

deemed inadequate in a separate proceeding.                That is, the evidence

the administrative body relied on when suspending Pagán was found

in Pagán's criminal proceeding to be "insufficient, suggestive, and

unreliable." Pagán, 7 P.R. Offic. Trans. 795 (1978). Furthermore,

the Puerto Rico Superior Court had previously found that Pagán's

administrative    proceeding          was     afflicted     with      "institutional

confusion" and that its conclusiveness was "dubious."                       Id.   As for

what public policy was at issue, the court, as noted above, did not

answer this question and rather seemed to rely on a general

"furtherance of justice" principle. Id. With these facts in mind,

we turn to the case at hand.

      As with Pagán, the decision which stands in the way of Núñez



      4
       Article II, section 5 of the Puerto Rico Constitution
provides for a right to education.

                                        -10-
litigating certain issues is an administrative one. Also, like the

plaintiff in Pagán, Núñez claims that his constitutional rights

were violated by defendant Toledo.              But as stated in Pagán, the

"mere    invocation        of   a   constitutional         right      against    an

administrative act is not a key which would automatically move us

to reject the presumption of res judicata."            Id.    Rather this court

must "inquire into the circumstances present in each particular

case."   Id.    And so we do.

     In the matter at hand - unlike in Pagán - there is no inkling

that Núñez's administrative hearing or the resulting decision was

questionable or problematic.               In particular, while the Pagán

administrative decision was criticized by the lower court, Núñez's

was upheld by both CIPA and the PRCA.            Also dissimilar to Pagán is

the fact that there is no credible indication that the evidence

against Núñez at the administrative level was unreliable.                       For

although Núñez proclaims the existence of a malicious conspiracy,

this is not supported by the record.            By Núñez's own admission, the

sworn testimony of several officers placed him in the apartment and

even in Serrano's bedroom. Furthermore, one officer testified that

he saw Núñez take the money and another officer told investigators

the same thing.      Even Núñez himself admits that he was in temporary

possession     of    the   money,   in    violation   of     police    department

regulations.        This contrasts starkly with Pagán, where the only

evidence against the plaintiff was the testimony of a lone officer


                                         -11-
(deemed   unreliable)   and   a   photographic   identification   (found

untrustworthy).

     Finally, we find it significant that Núñez made the choice to

file an administrative action prior to initiating the federal

proceedings. Furthermore, Núñez (who was represented by counsel at

all levels) chose to end his administrative/state court journey by

not appealing the PRCA decision to the Puerto Rico Supreme Court.

We do not think public policy requires us to give Núñez a chance to

revisit those choices.    See Baez-Cruz v. Municipality of Comerio,

140 F.3d 24, 30 (1st Cir. 1998) (finding that public policy does

not counsel in favor of allowing plaintiffs to revisit their

decision to initiate an administrative action first). In fact, as

we have said before, "public policy also includes an interest in

finality and efficiency."         Medina, 737 F.2d at 144 (internal

quotation marks omitted).     So although we acknowledge that Núñez

suffered a significant blow when he lost his job, he had a fair and

full opportunity to litigate such issues at the administrative and

state court level.

     The public policy exception is inapplicable, and therefore the

doctrine of collateral estoppel barred Núñez from arguing that he

did not misappropriate the money and that he should not have been

fired.    With these issues off the table, Núñez had no hope of

proving his retaliation, wrongful arrest, and malicious prosecution

claims.   Notably, Núñez does not contend otherwise.      We affirm the


                                   -12-
district court's dismissal of Núñez's claims.

                         Excluded Testimony

     During trial and outside the presence of the jury, Núñez's

counsel made an offer of proof as to the testimony of various

police officers she planned to call as witnesses.        Núñez wanted to

introduce   the   officers'   testimony    to   show   that    the   police

department's allegations against him were weak and malicious and

that therefore he should not have been suspended.             The district

court excluded the testimony because it only pertained to whether

Núñez appropriated the money - an issue that was barred from being

addressed by collateral estoppel.       Núñez claims error.5     We review

the district court's evidentiary ruling for abuse of discretion,

affording the court considerable deference.       See United States v.

Gonzalez-Melendez, 594 F.3d 28 (1st Cir. 2010); United States v.

Wallace, 461 F.3d 15, 28 (1st Cir. 2006).

     Our independent review of the testimony reveals that it indeed

pertains to the evening that Ms. Serrano's money was stolen.           Here

are the particulars: Núñez sought to introduce testimony about the

informant's tip, what officers were wearing that night, the layout



     5
       Núñez relies on Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 543 (1985), for the proposition that a fired employee
should be given "some opportunity . . . to present his side of the
case." This reliance is incorrect. The Supreme Court was speaking
in terms of an employee presenting evidence as to the
appropriateness of his discharge, an issue that was no longer in
play at Núñez's trial. At this point, only due process questions
about the adequacy of Núñez's administrative proceeding remained.

                                 -13-
of   the   apartment,   what    happened    during   the    search,    what   the

officers    saw   Núñez    do    with   the   money,       and   the   criminal

investigation against him.        This testimony is problematic because

it only relates to whether or not Núñez took the money, an issue

that was already off limits.        The testimony has nothing to do with

the narrow trial issue of whether Núñez's due process rights were

violated in connection with his post-suspension administrative

hearing.    A "district court has broad discretion to make relevancy

determinations," and we would be hard pressed to find an abuse of

that discretion here.      Richards v. Relentless, Inc., 341 F.3d 35,

49 (1st Cir. 2003).       Because the district court did not abuse its

discretion in excluding the testimony, we affirm.

                               Due Process Claim

      At trial only Núñez's due process claim remained, but even

this would not see a jury.         The court dismissed Núñez's official

capacity claim against Toledo because there was no possible remedy.

Finding insufficient evidence, the court also granted judgment as

a matter of law in Toledo's favor on Núñez's personal capacity

claim.     Specifically, the court found that (1) police department

regulations permitted Toledo to summarily suspend Núñez without a

hearing, (2) any time delays were not unconstitutional, and (3)

Toledo was not personally involved in the alleged due process

violations.    On appeal, Núñez only takes issue with the latter two




                                     -14-
findings.6   Because we find that the time delay did not violate

Núñez's due process rights, we need not reach the issue of Toledo's

personal involvement.

     We review the district court's grant of judgment as a matter

of law de novo, and standing in the district court's shoes we

affirm if "a reasonable jury would not have a legally sufficient

evidentiary basis to find" for the non-moving party.   Fed. R. Civ.

P. 50(a)(1); see also Crane v. Green & Freedman Baking Co., 134

F.3d 17, 21 (1st Cir. 1997).   "This standard requires more than 'a

mere scintilla' of evidence in the non-moving party's favor."

Crane, 134 F.3d at 21 (citing Fashion House, Inc. v. Kmart Corp.,

892 F.2d 1076, 1088 (1st Cir. 1989)).

     Núñez's due process argument is simple - it took too long for

his post-suspension hearing to take place.     To be precise, Núñez

takes issue with the fourteen-day lag between his acquittal and the

start of the hearing.7   To establish a due process violation, Núñez

must "show first, a deprivation of a protected property interest,

and second, a denial of due process."      Perez-Acevedo v. Rivero-


     6
       Núñez does not claim that the district court erred by
dismissing Toledo in his official capacity.
     7
       In his reply brief, Núñez for the first time advances
another argument - that the six months between the start of his
suspension and the start of the hearing also violated his due
process rights.    Because Núñez failed to raise this argument
earlier, it is waived and we will not address it.      See United
States v. Capozzi,486 F.3d 711, 719 n.2 (1st Cir. 2007) ("We have
consistently held that arguments not raised in the initial
appellate legal brief are considered waived.").

                                -15-
Cubano, 520 F.3d 26, 30 (1st Cir. 2008).                 Only his ability to make

the second showing is contested and therefore we move on to the

question of whether Núñez received the process he was due.

     The       fatal   flaw    in    Núñez's       argument    is   its    absence    of

substance.          He does no more than assert that the fourteen-day

period was too long to wait.              The Supreme Court has previously

found such an argument deficient.                  See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 543 (1985). In Loudermill, the plaintiff

waited       nine   months    to    receive    a    final     decision    on   a   post-

termination adjudication.            Like Núñez, the plaintiff in Loudermill

relied on the time delay alone to support his position that a

speedy resolution was missing.            The Supreme Court criticized this

approach, finding that the plaintiff "offered no indication that

his wait was unreasonably prolonged" other than the amount of time

it took.        Id. at 547.          The Court went on to hold that the

"chronology of the proceedings set out in the complaint, coupled

with the assertion that nine months is too long to wait, does not

state    a    claim    of    constitutional        deprivation."         Id.   Núñez's

conclusory and generalized claim suffers from the same infirmity

because he does not articulate why the fourteen days was an

unreasonably lengthy period.            Under Loudermill, he has thus failed

to state a constitutional deprivation claim. Accordingly defendant

Toledo was entitled to judgment as a matter of law.

     Though our inquiry can end there, we will briefly touch on why

                                         -16-
we do not find the fourteen-day period unconstitutional based on

the limited argument before us.     In order to do so, we look to the

factors set out by the Supreme Court in Gilbert v. Homar, 520 U.S.

924, 930 (1997), a case also dealing with the process due to a

suspended employee.8    The relevant factors to be balanced in a due

process inquiry are:

     "'[f]irst, the private interest that will be affected by
     the official action; second, the risk of an erroneous
     deprivation of such interest through the procedures used,
     and the probable value, if any, of additional or
     substitute procedural safeguards; and finally, the
     Government’s interest.'"

Id. at 931-32 (quoting Mathews v. Eldridge, 424 U.S. 319, 335

(1976)).

     Regarding the first factor, there seem to be two private

interests at stake for Núñez: his interests in being reinstated to

his position and in being paid.           We do not dispute that the

deprivation of one's livelihood is significant but, as noted in

Gilbert,   we   must   consider   the    length   and   finality   of   the

deprivation.    Id. at 932.   The period Núñez takes issue with was

only fourteen days, and during that time he was faced with a



     8
       In Gilbert, the Supreme Court ultimately did not answer the
question of whether the employee received a sufficiently prompt
post-suspension hearing because the issue was not addressed by the
lower courts. The Court remanded the question to the Third Circuit
Court of Appeals, which remanded it to the district court, which
concluded that the sixteen-day period the plaintiff waited for his
post-suspension hearing was not unconstitutional.    See Homar v.
Gilbert, 63 F. Supp. 2d 559, 570 (M.D. Pa. 1999).

                                  -17-
temporary suspension as opposed to termination (a factor that was

significant in Gilbert).             Id. at 932.     Further, though undoubtedly

important to Núñez, his income was reduced for a temporary and

short duration.     This first factor does not bode in Núñez's favor.

     As for the second factor of erroneous deprivation, we don't

think it favors Núñez either.               Núñez was acquitted on May 17, 2006

and his hearing began on June 1, 2006.                 It was in Núñez's interest

for the department to take some amount of time to consider how the

positive    development         of    Núñez's      acquittal       might   affect     his

suspension.      This delay actually benefitted Núñez, who possessed

"'an interest in seeing that a decision concerning his . . .

continued suspension [was] not made with excessive haste.'" Id. at

935 (quoting FDIC v. Mallen, 486 U.S. 230, 243 (1988)).

     With respect to the final factor - the government's stake -

the Court in Gilbert made it clear that the government has a

significant interest in suspending police officers when they are

accused of a felony.        Id. at 932.            However, as was the case with

Núñez, "[o]nce the charges [are] dropped, the risk of erroneous

deprivation increase[s] substantially."                 Id. at 935.        Nonetheless,

Núñez's    acquittal      did    not       eliminate    the    police      department's

interest in the controversy.                The department needed to determine

whether Núñez (who had been accused of theft on the job in

violation of police department regulations) should continue to be

suspended   in    light    of        his   acquittal.         We   do   not   think    it

                                            -18-
unreasonable that the police department took fourteen days to make

this determination.   This is especially true because as a police

officer, Núñez occupied a position "of great public trust and high

visibility."   Id. at 932.

     Balancing the Gilbert factors, we find that the fourteen-day

period was not unreasonably long and more importantly was not

unconstitutional.   For the foregoing reasons, we affirm the grant

of judgment as a matter of law in Toledo's favor.

                             CONCLUSION

     Accordingly, we AFFIRM the decision of the district court.




                                -19-
